Frequently asked questions when someone gets arrested
1. What is an arrest?
When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, however, you still could be detained or held for questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a recent burglary site. Storekeepers also can detain you if they suspect you have stolen something. Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested.
2. What rights do I have?
Whether you are an adult citizen or non-citizen, you have certain rights if you are arrested. Before the law enforcement officer questions you, he or she should tell you that:
- 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.
These are your Miranda rights, guaranteed by the U.S. Constitution. If you are not given these warnings, your lawyer can ask that any statements you made to the police not be used against you in court. But this does not necessarily mean that your case will be dismissed. And this does not apply if you volunteer information without being questioned by the police.
3. Once I’m told my rights, can I be questioned?
You can be questioned, without a lawyer present, only if you voluntarily give up your rights and if you understand what you are giving up. If you agree to the questioning, then change your mind, the questioning must stop as soon as you say so or as soon as you say that you want a lawyer. If the questioning continues after you request a lawyer and you continue to talk, your answers can be used against you if you testify to something different.
You may be required to give certain physical evidence. For example, if you are suspected of driving under the influence of alcohol, you may be requested to take a test to measure the amount of alcohol in your system. If you refuse to take the test, your driver’s license can be suspended and the refusal can also be used against you in court.
Once you have been booked, (meaning your arrest has been written into official police records, and you have been fingerprinted and photographed) you have a right to make and complete three free telephone calls within the local dialing area. Any additional calls made from jail must be collect calls.
4. When should I see a lawyer?
If you are arrested for a crime, particularly a serious one, you should contact me as soon as possible. I can advise you or your family or friends on the bail process and what steps to take next.
5. What if I can’t afford a lawyer?
The U.S. Constitution guarantees everyone charged with a crime the right to legal counsel. A public defender, or other court-appointed attorney, will be appointed for you if you cannot afford to hire an attorney on your own.
Public defenders are experienced trial attorneys licensed by the Florida Bar who specialize in criminal law. They do not work for the prosecutors or the police; they are there to represent your best interests.
6. Who can arrest me?
All law enforcement officers (such as police officers, county sheriff officers, investigators in a State Attorney’s Office or the Attorney General’s Office, and highway patrol officers) can arrest you whether they are on or off duty, in most cases. A probation or parole officer also can arrest you.
They can arrest you even if they do not have an arrest warrant – if they have probable cause or good reason to believe you committed a felony. A felony is a crime of a more serious nature than a misdemeanor, usually punishable by imprisonment for more than a year. A misdemeanor is usually punishable with a fine or a jail term of less than one year. They do not have to see you commit a felony in order to arrest you. They do, however, have to see you commit a misdemeanor in order to arrest you.
If you commit an infraction, they may ask you to sign a citation or notice instead of taking you into custody. This is a minor offense, such as a moving violation, where the punishment usually is a fine. If you sign the citation, you are not admitting guilt; you are only promising to appear in court. If you have no identification or refuse to sign, however, an officer may take you into custody.
7. When is an arrest warrant used?
Usually, a warrant is required before you can be taken into custody from within your home. But you can be arrested at home without a warrant if fast action is needed to prevent you from escaping, destroying evidence, endangering someone’s life or seriously damaging property.
An arrest warrant must be signed by a magistrate or judge, who must have good reason to believe that you committed a crime.
Once an arrest warrant is issued, any law enforcement officer in the state can arrest you – even if the officer does not have a copy of the warrant. Generally, there is no time limit on using a warrant to make an arrest.
Before entering your home, a law enforcement officer must knock, identify him or herself and tell you that you’re going to be arrested. If you refuse to open the door – or if there’s another good reason – the officer can break in through a door or window.
If the police have an arrest warrant, you should be allowed to see it. If they don’t have the warrant with them, you should be allowed to see it as soon as is practical.
The police may search the area within your reach. If you are arrested outdoors, they may not search your home or car.
Resisting an arrest or detention is a crime. If you resist arrest, you can be charged with a misdemeanor or felony in addition to the crime for which you are being arrested. If you resist, an officer can use force to overcome your resistance or prevent your escape. The officer can even use deadly force if it appears you will use force to cause great bodily injury.
8. What is bail and how is it set?
The amount of bail – money or other security deposited with the court to insure that you will appear – is set by a schedule in each county. For some traffic citations, you may be notified that you can forfeit or give up bail instead of appearing in court. However, if you have any doubt, go to court so a new warrant is not issued for your arrest for failing to appear.
When you are taken to court for bail setting or release, the judge will consider the seriousness of the offense with which you are charged, any prior failures to appear (even for traffic tickets), any previous criminal record and your connections to the community, as well as the probability that you’ll appear in court. Generally, the amount of bail is set according to a written schedule based on your charges.
9. Who maintains arrest records and what do they include?
Local police departments, sheriff’s offices and the Florida Department of Law Enforcement keep arrest records. They share their records through a criminal database known as the Criminal Justice Information System (“CJIS”).
The arrest record includes when and why you were arrested, whether the charges against you were dropped or whether you were convicted of the charges and the subsequent sentence imposed. Both pleading guilty and being found guilty after a trial count as convictions.
10. What happens at an Initial Appearance?
You have a right to an Initial Appearance without unnecessary delay after being arrested, usually within 48 hours. At the Initial Appearance, you will appear before a judge who will officially inform you of the accusations against you.
An attorney may be appointed for you if you can’t afford one, and the bail can be raised or lowered depending on the circumstances of the case. You also can ask to be released on R.O.R., even if bail was previously set.
If you are charged with a crime and are unable to understand English, you have a right to an interpreter throughout the proceedings.
If you are charged with a misdemeanor, you can plead guilty or not guilty at the Initial Appearance. Or, if the court approves, you can plead nolo contendere, meaning that you will not contest the charges. Legally, this is the same as a guilty plea, but it cannot be used against you in a non-criminal case.
11. When can an officer conduct a search?
An officer can always conduct a search with either your consent or a search warrant. You have a right, however, to see the warrant before the search begins.
12. When can an officer search you, your home or your car without a warrant?
1. Body Searches: If you are arrested, an officer can search you, without a warrant, for weapons, evidence or illegal or stolen goods. Strip searches should not be conducted for offenses that do not involve weapons, drugs or violence unless police reasonably suspect you are concealing a weapon or illegal goods, and they have authorization from the supervising officer on duty. If you are booked and jailed, you may undergo a full body search, including body cavities.
2. Home Searches: In emergencies, such as when an officer may be trying to prevent someone from destroying evidence, your home can be searched without your consent and without a warrant.
If you are taken into custody in your home, an officer can only search the limited area in which you were arrested. Other rooms – and even other parts of the same room – are off limits, unless the officer has a search warrant or believes that other suspects are hiding in other rooms. While searching your home, an officer can seize evidence of any crime, such as stolen property or drugs, which is in plain sight.
3. Car Searches: Your car and trunk can be searched without your consent or a warrant if an officer has good reason to believe it contains illegal or stolen goods or evidence. If the police stop your car for any legal reason – such as a broken taillight – they can take any illegal goods in plain sight.
If you, your home or your car is searched illegally, a judge might say that any evidence found during the search cannot be used against you in court. If you or your lawyer, however, does not object to the evidence before trial, the court might allow the evidence to be used. Even if the judge does decide that the evidence cannot be used against you, your case will not necessarily be dismissed.
13. What is an Arraignment?
An arraignment is a brief hearing when you or your lawyer enter a plea of not guilty to the charges. The judge will ask the accused to enter a plea of either guilty, not guilty or no contest. If you have hired our firm or any private attorney, your appearance will be waived so that way you do not have to take time out of your day or miss work to be present for this preliminary hearing in which no witness will be present nor evidence discussed. This court date is simply to give you an opportunity to enter a plea, but we always recommend that plea should always be NOT guilty at this stage so that we can request any evidence in the case and begin preparing the case for trial if our client is wrongfully accused or there is evidence lacking to prove the crime beyond a reasonable doubt, or to have time for negotiations or presenting mitigation in cases where the evidence is clear but what needs to be shown is why our client deserves another chance and a lighter sentence. We will always fight for our clients to avoid going to jail or to prison or to minimize the time they get in even the most serious of cases. After the arraignment, a pretrial conference or a docket sounding, or some other preliminary conference will be scheduled usually in about 30 to 45 days.
14. Do I have to show up for every court date?
No, in fact our goal is to make your criminal case as easy and worry free as possible and as such, we automatically waive your appearance at all court hearings that the law allows so that we can appear on your behalf. We will provide you with written, electronic or verbal notification of all your court dates, however you are not required to attend them unless specifically instructed to do so, in which case someone from our team will reach out to you via telephone and inform you of the date, time and location as well as what to expect.
Different Kinds of Defenses
Pretrial defenses are raised prior to trial and are used to challenge the legality of how the evidence against you was obtained and the sufficiency of the evidence used to charge you with a crime.
The most common Pretrial Defenses are:
- Illegal Search and Seizure
- Self Defense
- Speedy Trial Violation Statute of Limitations
- Warrantless Stop
In general, these pretrial defenses are raised through either a:
- Motion to Suppress or
- Motion to Dismiss
Not every available defense will result in the outright dismissal of a case; but the prosecution needs all of its evidence to prove a crime, prevent an appeal, and build a strong case for trial.
So if one link in the State’s case is successfully challenged at the pretrial stage, resulting in key evidence being thrown out (suppressed), the State may be unable to prosecute you as charged, be forced to negotiate a favorable plea, or be unable to prove their case at trial beyond a reasonable doubt.
As the name implies, trial defenses are raised during the actual trial and either:
1.Raise an Affirmative Defense to a Crime; or
2.Challenge the Sufficiency of the Evidence.
Under certain circumstances, Florida law allows a person to raise an Affirmative Defense, which does not deny that an offense occurred, but that the conduct was legally justified.
The most common Affirmative Defenses are:
- Advice of Counsel
- Self Defense
When an Affirmative Defense is raised, the defendant must present some evidence to support the defense. If such evidence is presented, the burden shift back to the State to convince a jury beyond a reasonable doubt that the defense is not applicable.
By far, the most common trial defense is that a case cannot prove beyond a reasonable doubt.
And not only must the prosecutor prove the case beyond a reasonable doubt, each element of the crime charged must be proven beyond a reasonable doubt. So if a pretrial defense was granted, the State may have a difficult time proving an element of a crime at trial.