What do I need to know if I am arrested in Florida:

On the off chance that you have been arrested, detained or under scrutiny, ensure you know your rights.

Frequent Questions After an Arrest.

  • What does it mean to be arrested?

    When you are arrested, you are not allowed to leave the scene. Even if you are not arrested, you could be confined or held for a brief timeframe. This will happen if a police officer or other individual trusts you might be associated with a crime. For instance, an officer may keep you if circumstances warrant a reason for suspicion. Business owners may also detain you if they believe you are involved in a theft. Regardless of whether you are arrested or confined, it’s not a requirement that you answer questions. You must only give your name and address and show identification upon request.

  • What are my rights during an arrest?

    As a citizen or non-citizen of our country, in Florida you have certain rights if you are arrested. At the time of your arrest the legal authority should disclose that you have the following rights:

    • You have the right to remain silent.
    • Anything you say may be used against you.
    • You have a right to have a lawyer present while you are questioned.
    • If you cannot afford a lawyer, one will be appointed for you.

    The U.S. Constitution guarantees these rights, referred to as the Miranda rights. If you are not given these warnings, anything statement given to the police will not be used against you. But this does not necessarily imply that your case will be dismissed. This may not make a difference on the off chance that you volunteer data to law enforcement without being questioned.

  • Can I be questioned after I am read my rights?

    Yes. You may be questioned without a lawyer to represent you. However, questioning may only take place if you understand what rights your are giving up. Also if you voluntarily agree to surrender those rights. If you consent, and then during the questioning, change your mind, all questioning must cease. Questioning must also immediately cease if you request a lawyer. If questioning proceeds after you ask for legal representation and you keep speaking, your answers might be used against you. Even if your answers change during the legal process.

    You might be required to give certain physical proof. For example, a test to measure alcohol in your system if you are detained for suspicion of a DUI. If you refuse to take the test, it can be used in court, and your driver’s license can be suspended.

  • Who has the authority to arrest me?

    It’s important to know who can arrest or detain you. In Florida any of the following law enforcement officers can detain, arrest, and question you, whether they are off duty. This includes police officers, county sheriff officers, investigators in a State Attorney’s Office. As well as the Attorney General’s Office, highway patrol officers, and probation or parole officers.

    You can be arrested even if law enforcement does not have arrest warrant. In the event that they have reasonable justification or valid justification to trust you submitted a felony offense. A felony offense is a wrongdoing of a more serious nature than a misdemeanor. Typically deserving of imprisonment for over a year. Whereas punishment for a misdemeanor offense is typically a fine or prison term of less than one year. Law enforcement does not need to see you commit a felony to arrest you. But they do need to see you commit a misdemeanor.

  • What about with a minor offense?

    If you commit a minor offense, where the penalty is usually a fine, law enforcement may request you sign a citation rather than custody. You may sign the citation, without conceding your guilt, your signature represents your agreement to appear in court. If you are unable to present valid identification, or refuse, the law enforcement officer may take you into custody.

  • What do I need to know about arrest warrants?

An arrest warrant is often issued for your arrest if you are to be arrested from inside your home. If you flee from the law, destroy evidence, or threaten someone’s life or property, immediate action may be needed. This is done by law enforcement, and an arrest may be made in your home without an arrest warrant.

Arrest warrants are signed by a judge or magistrate. Judges must have a valid reason to believe that the arrest warrant is needed because you have committed a crime. There is not usually a time limit on using a warrant to make an arrest. Any law enforcement officer can arrest you, regardless of the warrant, once the warrant has been issued. It is your right to see the arrest warrant at the time of your arrest, if the law enforcement officer has the warrant. If the law enforcement officer does not have the warrant, you should be able to see the warrant when it’s practical.

  • What must a law enforcement officer do in warrant?

    Law enforcement must knock, identify themselves, and inform you that you are going to be arrested before they enter. Law enforcement officers may break down your door or enter through a window, if you refuse to open the door.

    Arrest warrants cover a search of the area within your reach. This is important if you are arrested outdoors, as law enforcement officers may not search your home or car in this situation.

    It is a crime to resist arrest or detention. Doing so puts you and your personal safety at risk. It’s likely you will be charged with a misdemeanor or felony in addition to the original crime for which you are being arrested. It’s also likely the officer may use whatever force is necessary. This can include deadly force, to detain you or keep you from causing bodily injury to anyone.

  • What is bail and how is the amount of bail determined?

    Bail is defined as an amount of money or security deposited with the court. This ensures that you appear for all proceedings during the prosecution of your criminal case. Bail is set by a predetermined schedule for each county. There are some cases with traffic citations when you may be notified by the court that you can forfeit or give up your bail instead of making a court appearance. If you are ever in doubt about whether you need to appear, go to court. This will prevent a new warrant being issued for your failure to appear.

    The following considerations are made by the court when determining the bail which is set for your case: seriousness of the offence, prior failures to appear (even traffic cases), previous criminal records, and your connections to the community. The probability that you will appear in court, is the final consideration used by the court to determine bail. The court will then set your bail based on the written schedule for that county.

  • What should I expect at my Initial Appearance?

    Your first court appearance, the Initial Appearance, happens without unnecessary delay after your arrest. It is reasonable to expect this court appearance within 48 hours. At the Initial Appearance you will appear before the judge who will inform you of the exact charges against you. The Initial Appearance is when an attorney may be appointed for you, if you cannot afford one. This is also a time when your bail could be raised or lowered by the court. Bail changes are determined by the circumstances of the case.

    During an Initial Appearance you could ask to the court to release you on R.O.R. (released on your own recognizance), even if bail has already been set. This is a written promise, signed by you as the defendant. This promises the court that you will appear for all future court proceedings. This also means you will not engage in any illegal activities while out on R.O.R.

    If you do not understand English, you have the right to an interpreter during court appearances.

    If you are charged with a misdemeanor, you have three options to enter a plea. You may plead Guilty or Not Guilty. There is a third option, which is nolo contendere. This is a plea of no contest and means that you will not contest the charges as they have been presented. Although a plea of nolo contendere is the same legally as a plea of guilty, it does mean that it can’t be sued against you in a civil case.

  • How is a bond hearing set?

    Scheduling a bond hearing isn’t any easy undertaking. First a Motion to Set Bond has to be drafted and filed with the Clerk of the Court. Then the motion requesting the bond change must be scheduled in the front of the proper judge. Determining the correct judge may be difficult for someone without much experience in dealing with the court system as the correct judge is determined by events such as whether the charges have been formally filed, if the case is a misdemeanor or felony, or even a violation of probation charge. After the correct judge has been determined, the bond motion hearing must be coordinated and scheduled. This is done with the the clerk of the court, the judge, the judicial assistant, and the prosecutor.
  • How is a reasonable bond determined?

    During your bond hearing, the court take into account your ties to the community. This can include how long you have lived in the area, whether you have family in the area, and whether you currently hold a job in the vicinity. The judge will also consider whether you have a criminal record, and whether you have been allowed out on bail before. They can also consider if you appeared at all court proceedings while out on this previous bail. As well as any of the following when determining your reasonable conditions of release: the nature of the crimes you are charged with, the amount of evidence related to your alleged crimes, your community ties (local family members, length of residence, employment history, financial resources), and your mental condition.

    The judge may also consider any past and present criminal history. For example, any criminal convictions, past failures to appear, and previous flight from prosecution. Along with whether you are a danger to the community, alleged victim(s), or others.

    Your source of funds and ability to post bail once set will also be considered during this process.

  • What is DUI and Drunk Driving?

    DUI (driving under the influence) is when a person is driving or in actual physical control of a vehicle within the state. The person under the influence of alcoholic beverages or any chemical or controlled substance set forth under the applicable statutes when affected to the extent that his or her normal faculties are impaired. Or when the person has a blood alcohol level of 0.08% or higher. Although commonly referred to as “Drunk Driving”, this is a misnomer. It is important to note that all individuals who drive while drunk are considered DUI, an individual does not need to be drunk to be DUI.

  • Can the Police take away my license if I am arrested for DUI?

    An officer may seize your driver’s license and issue you, as the driver, a traffic ticket which serves as a ten (10) day temporary work permit and also a notice of the suspension of your driver’s license. Under Florida law, a law enforcement officer may seize the driver’s license of any person who is driving with an unlawful blood alcohol level of 0.08% or higher. Or who has refused to submit to breath, blood or urine test.
  • If I refuse to submit to DUI testing, how long is my driver’s license suspended?

    When you refuse to submit to lawful breath, blood, or urine testing during a DUI arrest, your driving privileges will be suspended for a period of one (1) year for a first refusal. It can be eighteen (18) months if your driving privilege has previously been suspended as a result of a refusal to submit to a test.

    If you have an unlawful blood alcohol level (0.08% or above), your driving privilege will be suspended for six (6) months for the first offense.  If your driving privilege has been previously suspended, this can be one (1) year. All such suspensions are effective as of the date of the arrest.

  • Can my driver’s license be suspended before a trial for my DUI arrest?

    Driving a motor vehicle is a privilege and not a right. Therefore the State of Florida has the lawful authority to withdraw said privilege.
  • Can I challenge the suspension of my driver’s license after a DUI arrest?

    You have ten (10) days from the date your license was seized or suspended to request a formal review hearing before the Bureau of Administrative Review with the Florida DHSMV. During this hearing you can challenge the legality of your driver’s license suspension.
  • What is the blood alcohol limit for a Florida DUI?

    It is a crime to drive with an unlawful blood alcohol level of 0.08% or above in the State of Florida.
  • Will I be presumed guilty if my blood alcohol level is 0.08% or higher?

    The United States Constitution sets forth our rights as citizens for the courts to hold a presumption of guilt against a defendant. Our government must prove its case beyond and to the exclusion of every reasonable doubt. However, if the prosecutor is able to prove in court that you had 0.08% or more by weight of alcohol in your blood and you were operating a motor vehicle, then the court will determine that prima facie evidence exists to prove that you were under the influence.
  • Will I be presumed guilty if my blood alcohol level is 0.08% or higher?

    The United States Constitution sets forth our rights as citizens for the courts to hold a presumption of guilt against a defendant. Our government must prove its case beyond and to the exclusion of every reasonable doubt. However, if the prosecutor is able to prove in court that you had 0.08% or more by weight of alcohol in your blood and you were operating a motor vehicle, then the court will determine that prima facie evidence exists to prove that you were under the influence.
  • What happens if I refuse to take a breath, blood, or urine test when I am arrested for DUI in Florida?

    When you are issued a Florida Driver’s license, you accept the privilege extended by the laws of the state to operate a motor vehicle. You give your consent to submit to an approved chemical or physical test of your breath for the purpose of determining the alcoholic content of your blood.

    You also submit to a urine test for the purposes of detecting the presence of drugs. If you are ever lawfully arrested for any offense allegedly committed while driving, or in actual physical control of a motor vehicle while under the influence of alcoholic beverages, chemical substances, or controlled substances.

    When you refuse to submit to such tests, you subject yourself to additional costs. Florida law provides the Department of Highway Safety and Motor Vehicles may suspend your privilege to drive a motor vehicle for a period of one (1) year for a first refusal, or a period of eighteen (18) months for a second or subsequent refusal.

    Your refusal to comply with a request for chemical, physical, breath, or urine testing by a law enforcement officer, may also be admissible in any criminal proceeding against you. Also, in the event you have previously refused this testing, you may be charged with an additional misdemeanor upon a second refusal.

  • What is “In Actual Physical Control” in a DUI case?

    “In Actual Physical Control” is defined as follows: the individual has had the capability and power to dominate, direct or regulate the vehicle, regardless of whether or not he or she was exercising that capability or power at the time of the alleged offense. This means that an individual who is sitting behind the wheel with the keys in the ignition may qualify as being “in actual physical control” of a vehicle even when the vehicle is not moving.

  • Can I beat a DUI if I blew over the legal limit?

    Yes. There are very tight regulations, processes, and procedures and strict maintenance which apply to the machines used by law enforcement to determine if an individual is tested over the legal limit in a DUI case. Failure to properly maintain the equipment, or conduct tests in accordance with standard testing procedures can result in the testing being inadmissible in court proceedings.
  • What is the difference between sealing a criminal record and expunging a criminal record?
  • Sealing a Criminal Record in Florida

    Yes. There are very tight regulations, processes, and procedures and strict maintenance. These apply to the machines used by law enforcement to determine if an individual is tested over the legal limit in a DUI case. Failure to properly maintain the equipment, or conduct tests in accordance with standard testing procedures can result in the testing being inadmissible in court proceedings.

  • Expunging a Criminal Record in Florida

    Expungement (expunction) is different than sealing of a criminal record. It is defined as the physical destruction of all records as they relate to your criminal case held by any criminal justice agency. Only one copy of your criminal history in the case of an expungement is confidentially retained by the Florida Department of Law Enforcement and the Clerk of the Court. Neither of these records are open to the public. The law provides that your record may only be expunged if the State Attorney has dropped all the charges or the court dismisses your case completely.

    If your plea and adjudication of guilt was withheld or went to trial and you were found not guilty of the charges brought against you, the law only permits for a sealing of your criminal record.

    If you have spent ten years after the sealing of your criminal record trouble free, you may request that your criminal record be expunged.

  • What are the benefits of having my criminal record is sealed or expunged?

    Here are some benefits to having your criminal record sealed or expunged:

    • The criminal record is confidential and not subject to disclosure by any State or Federal agency who possesses it
    • A criminal justice agency in possession of your criminal record is not permitted to say that you have a criminal record. Or that this record was sealed or expunged without incurring a first degree misdemeanor for divulging such information.
    • Information regarding the criminal offense is removed from the Criminal Justice Information System and does not appear on any background checks.
  • Can I have a felony offense sealed or expunged?

    Felony offenses are eligible for sealing and expunging in Florida. Although some specific offenses are not eligible for sealing or expunging.
  • What if I have multiple charges from one arrest? Can I seal or expunge them all?

    You can seal or expunge multiple charges which are related to the same arrest.
  • How long does sealing or expunging a criminal record take?

    You can expect the sealing or expunging process to take up to six months in the State of Florida.
  • What are the steps to seal or expunge my criminal record in Florida?

    • Complete and file an application with the Florida Department of Law Enforcement. If your application is approved, you will receive a certificate of eligibility.
    • Once you receive the Certificate of Eligibility, prepare a Petition to Seal or Expunge and file it with the local court where your case is filed.
    • The court will rule on the petition without a hearing or may set the petition for a hearing. The court makes the determination to grant or deny the petition.
    • If your petition is granted by the court, an order to seal or expunge your criminal record will be issued.
    • The court’s order is then sent to all criminal justice agencies involved in your arrest, and any agencies having criminal records which are related to your case, and to the clerk of the court.

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