FAQ

Questions

Why do I need a lawyer if I know that I am guilty?
What is a Plea?
I got a call from a police officer wanting me to come to the station.  What do I do?
What is pleading the fifth?
What is my right to counsel?
What is Drug Possession in Florida?
What is Constructive Possession in Florida?
If a passenger has Marijuana in my car, can I get arrested?
Do I have to perform Field Sobriety Tests if a police officer tells me to?
Should I blow into the breathalyzer if I am arrested for DUI?
What if I refuse to blow in the breathalyzer after arrest for DUI?
Do I always have to stop for a police officer behind me?
When are the police allowed to search my car?
What is a Warrant in Florida?
Can the police search my car without a warrant?
Can I get a DUI on a bicycle?
What is a BUI?
What is arraignment?
What is Actual Possession of Drugs?
Can I be charged with criminal possession of my prescription drugs?
Can I be charged for drugs that belong to my roommate?
What if I was arrested in Florida, but I live in another country?
What if I am arrested in Florida, but I live in another state?
Police still arrested me for DUI even though my breath test was under the limit. Why?
My breath result was under .05, why was I arrested?
The officer said I refused, but he never even asked me to do the breath test.  Why did he do that?  What can I do?

Answers

Why do I need a lawyer if I know that I am guilty?

This question gets asked to me several times per week by clients accused of their first offense.  Just because you are charged with a crime, and feel you are guilty of a crime does not mean that you should run into court and accept whatever punishment may come.  The job of the skilled criminal defense attorney is to fully investigate the charges against you.  This investigation is intended to ensure that the evidence used against you was collected in a lawful manner, that you are being treated fairly by the government and to protect your rights from being violated or ignored.

It is never advisable to try to go to court on your own and resolve a case.  Too many times I have seen defendants accept plea deals that are unfair and cause extensive damage to their future. If you feel you are guilty and want to accept a plea bargain with the government, the assistance of an experienced criminal defense attorney should never be left out of the equation.  A criminal defense attorney will be able to negotiate terms and conditions of a plea bargain with the government or with the court to make sure that you get the best results possible on your particular charge.

Hiring a criminal defense attorney can make a big difference in how your case is handled and resolved.

What is a Plea?

What most people refer to when discussing a “plea” is most commonly referred to as a Plea Bargain or Plea Offer.  A Plea Bargain or Plea Offer is a pre-negotiated sentence to whatever crime you are charged with.  Going to trial on a case a losing will expose you to whatever the maximum penalty provided by law.  Misdemeanors and felonies all have different levels of potential penalties which should be made known to you as soon as you speak with an attorney about your case.

The benefit of entering into a plea with the government or with the court is that you know what the sentence of your case will be.  Negotiating a resolution with the government or with the court will require you to either enter a plea of Guilty or No Contest.  A Guilty plea means that you admit all of the allegations being brought against you.  A No contest plea, if accepted by the court, is neither an admission of the allegations nor is it a denial.  No contest is the preferred method of entering into a plea because it allows you to resolve the case, accept a sentence without actually admitting anything.

The type of plea and sentence on your case will vary greatly depending on a number of factors.  First and most important is your actual charge.  The type of charge brought against you is the first thing to look at in determining what type of sentence can be given.  Second, but also very important is your criminal history.  If you have an extensive criminal record, you should expect a less lenient sentence than if this is your first offense.  Other factors to be considered include but are not limited to: level of involvement in the crime, level of sophistication involved in committing the crime, amount of money/property stolen/damaged, the need for restitution to victims, degree of injury to victims if any, degree of your remorse, time spent in jail already.  The government and the court will take many factors into consideration when negotiating a sentence on your case.  It is very important that you have a experienced criminal defense lawyer working hard for you to achieve the best plea deal possible on your case.

I got a call from a police officer wanting me to come to the station.  What do I do?

If you have been contacted by law enforcement it is important that you find out why.  If you are under investigation of alleged criminal activity, the last thing you want to do is speak with a police officer.  By agreeing to go to the police station, you are entering the lions den and putting your rights and possibly your life at risk.   Be smart, contact a criminal defense lawyer to put some distance between you and the government.

What is pleading the fifth?

Pleading the Fifth is short for: Invoking your right to remain silent under the Fifth Amendment to the Constitution.  Taking the Fifth can be used in any type of proceeding both in and out of court.  In a criminal setting, invoking your Fifth Amendment right to remain silent can protect you from officers continuing to interrogate you.  It is important in any criminal setting to speak to an experienced Fort Lauderdale criminal defense lawyer.

What is my right to counsel?

The right to be represented by an attorney is located in the 6th amendment to the constitution. Once you invoke your right to counsel, police officers are required to stop any and all questioning of you.  It is important to invoke your right to counsel correctly.  You have to clearly and unequivocally tell the police that you are not speaking at all without a lawyer present.  The right to counsel is often invoked the same time as the right to silence.

What is Drug Possession in Florida?

No matter what you are accused of possessing; bag of cocaine, bottle of pills, a gun or even a dead body the law is basically the same.  Possession falls into two categories: Constructive Possession and Actual Possession.

What is Constructive Possession in Florida?

Constructive Possession is a theory used by the government to prove that you are in control of an illegal item when you do not actually hold it in your pocket, in your hand or in a container in your hand.  The government will try to show that the illegal item is in an area that you had control over, you had knowledge the item was there and that you could exercise “dominion and control” over the item.

This is a common scenario where many people are in one place and drugs or weapons are found.  The government will accuse everyone of owning it and seek to convict everyone of possession.

If a passenger has Marijuana in my car, can I get arrested?

Yes, you can be arrested for any illegal items found in your car.  However, in order to convict you of the crime of Possession of Marijuana, the government has to prove that you had knowledge the cannabis was in the car, and it was in an area that you could control.  For example, if you are stopped by a police officer and your passenger has marijuana in his/her pocket, you cannot be charged with that.

A good idea would be that if you are getting into a car to make sure nobody has anything illegal on their person, in their pockets or in any bags or packages they are holding.  The best defense to any crime is to not be there when it happens.

Do I have to perform Field Sobriety Tests if a police officer tells me to?

No. I have seen thousands of videos of people performing field sobriety tests who are then arrested for DUI even if they were performed perfectly!  The tests are designed to make you fail because it is impossible to perform them in a way that will satisfy the police officer to let you go home.  If you step off the line by one centimeter, the officer will say that you failed and are impaired.  If you miss touching your nose even one time, you are impaired. If you can’t stand on one foot for 30 seconds, you’re impaired.  There is no way to win with these officers.

What the police officer doesn’t tell you is that these field sobriety tests are optional.  Yes, optional.  You do not have to take them if you do not want to.  Keep the evidence out of the police officer’s hands and refuse, and then call a lawyer to make sure that you don’t wrongfully end up with a conviction on your record.

Should I blow into the breathalyzer if I am arrested for DUI?

Since all arrests and circumstances are different, it is really difficult to give a blanket answer to this very frequently asked question.  The best answer I can give is it is probably a better idea to refuse to blow into the breathalyzer if you have consumed any alcohol the day of your arrest.  The machines are very sensitive and can detect even low levels of alcohol in your breath.  In addition, any result will 100% be used against you in court.  If that is the case, why would you want to hand over more evidence to the government for them to turn around and use against you?

What if I refuse to blow in the breathalyzer after arrest for DUI?

Florida issues driver licenses to its citizens under certain conditions.  Florida considers driving a privilege rather than a right. Therefore as a driver in the state of Florida, you are considered as having given “Implied Consent” to submit to any lawful test of your breath to determine alcohol content.  A police officer may lawfully request a test of your breath to determine its alcohol content if they have probable cause to believe that you have been operating a vehicle under the influence of alcohol.  There is not much information needed by the officer apart from the odor of alcohol on your breath in addition to a few other factors for the court to find the officer had probable cause to believe you were impaired.

Once you are arrested, the officer will recite the Florida Implied Consent Law.  This law basically tells you that if you refuse to submit to the breath test, your driver license will be suspended for e period of time.  If you have had any alcohol to drink at all on the day of your arrest, you should refuse the breath test. There are administrative procedures to get your license back so you can drive for work and necessary life purposes.  Refusing to submit to a breath test after a 2nd arrest for DUI is a misdemeanor on its own.  A first time refusal is not a crime.  To fully protect your license and your freedom it is important to contact a DUI lawyer in your county.

Do I always have to stop for a police officer behind me?

Yes.  You must always stop for a police officer who is attempting to pull you over.  You will know they are attempting to pull you over because their overhead blue and red lights will be flashing and the officer will be following your every move with his car.  Failure to pull over could result in a Misdemeanor charge of Failure to Obey an Officer.  If you wait too long to pull over and continue traveling while the officer is behind you, the officer could arrest you with Fleeing/Attempting to Elude a police officer.  Even worse, if you are traveling at a high rate of speed, the officer could arrest you for Aggravated Fleeing and Eluding, which is a felony requiring a mandatory driver license suspension.  Avoid unwanted issues with the police; pull over when they order you to.  The likelihood of beating a police officer in an argument on the street is very small, better to follow their order and hire an attorney to fight later in court.

When are the police allowed to search my car?

Generally, police need a warrant to search your car.  However, during a traffic stop a police officer only needs probable cause to search your car.  Probable cause means that the police officer has a reasonable basis that he/she can clearly articulate which would lead him/her to believe that something illegal is going on in the car.  Most common reason for a vehicle search is an officer claiming they can smell marijuana inside.

Police officers know the law well enough to know they cannot simply order you out of the car to search it.  That is why they will phrase their request in the form of a question “Would you please mind stepping out of the car please?” instead of “Get out of the car” and “Do you mind if I search the vehicle?” instead of “I am searching your car now, please step aside”.  Most scenarios where a police officer will search your car require your consent.  If you do not give consent, most times the officer will not be able to search.

This is a highly contested area of the law in criminal court so don’t press your luck by telling the officer about how you know your rights.  The best defense is to never have anything illegal in your car at any time.  Always know your rights but be respectful when speaking with a police officer, speak to an attorney today to discuss your rights during a traffic stop.

What is a Warrant in Florida?

A warrant is authorization from the court to do something; either make an arrest or search a place.  Arrest warrants are court ordered authorization to arrest a person.  A Search warrant gives law enforcement the permission to enter your home, vehicle, place of business, boat, plane or any other place to conduct a search for items or people contained within the search warrant.  When the police have a search warrant, you must permit them to enter where they have been given authority to go by the court.  Refusing to obey could cause you to get arrested.  Unfortunately, whenever police have authority from the court to enter your home or anywhere else to conduct their search, they usually tear the place apart, leave a huge mess and often break things.  Some police officers have been accused of stealing while in your home executing a search warrant.

Properly obtaining a search or arrest warrant involves a process that the police must follow precisely.  Police have to provide a sworn affidavit to the judge indicating everything that leads them to believe that a search of the particular place will result in evidence of crime.  Many search warrants have been executed and then thrown out later in court because the police officers failed to mention certain important facts in the affidavit to the judge or even lied in order to obtain the warrant.  This is why it is so important to hire a criminal defense attorney to represent you in court.  If police searched your home or anywhere else under the authority of a warrant, you need a criminal defense lawyer to challenge the search and fight for your rights and protections under the law.

Can the police search my car without a warrant?

Yes, there are situations where an officer can conduct a search of your car without a warrant.  If you are lawfully stopped by a police officer during a traffic stop, a police officer can detain you long enough to gather your information and issue a traffic citation.  However, if the officer sees anything illegal: baggie of cocaine, marijuana roach or any alcoholic container, the police officer can order everyone out of the car, conduct a search without a warrant.  This is also known as a “Plain View Search”.

Can I get a DUI on a bicycle?

Yes, as silly as it sounds, you can be arrested for DUI even while not driving a car.  In fact, you could be arrested for DUI while riding a bicycle, farm equipment, moped, motor scooter or electronic bicycle.  Check your city rules for mandatory bicycle safety equipment to avoid being stopped and harassed by police while riding your bicycle.  Many cities require reflective material, lights and some cities even require registration.  Check with local government for specific regulations in your city.  And of course, if you are arrested for DUI, contact your Broward DUI Defense Attorney, Grant Schwarz.

What is a BUI?

BUI stands for Boating Under the Influence.  It is very similar to a DUI and is treated just as seriously.  The field sobriety tests given to suspected boaters under the influence are different than those given to drivers. The main reason is that the law enforcement officers often board your boat while it is still in the water.  When the boat is in the water and is rocking from the waves, it is very difficult to walk a straight line, so the police came up with other ways to test your coordination.  These tests as well as the breathalyzer are optional, and you should always ask to speak with an attorney before talking to any law enforcement.  Call Fort Lauderdale DUI Defense Attorney Grant Schwarz to begin building a case against your charges.

What is arraignment?

Arraignment is a phase in criminal procedure where the court reads the formal charges that the state of Florida has brought against you.  This is the time when you, with the assistance and advice of your hired criminal defense attorney will enter a plea of not guilty, no contest or guilty.  Arraignment is a critical phase in the criminal system and should never be attended without the help of an experienced criminal defense attorney.  You usually have several weeks between the date of arrest and the arraignment to speak with and hire an affordable and skillful criminal defense attorney.

What is Actual Possession of Drugs?

Actual possession means that the illegal item; drugs, weapons etc. is in your hand, in your clothing or in a container in your hand or clothing.

Can I be charged with criminal possession of my prescription drugs?

There are several prescribed drugs that are illegal to possess without a valid prescription.  However, a valid prescription for a narcotic is a complete defense to the crime of drug possession.  However, sometimes people get arrested for possession merely because the pills were loose in their pocket, purse or car.  To avoid any issues with an over zealous police officer, keep your medications secure in the original pill bottle.  Also make sure that the pills in the bottle match the prescription on the label.

Can I be charged for drugs that belong to my roommate?

College students listen up.  You can be charged with possession of anything your roommate possesses that is either illegal under Florida Criminal Law or against campus policy.  This means weapons, drugs, drug paraphernalia even historic decorative ninja swords (true story).  It may not seem cool, but tell your roommate to get rid of the illegal stuff, or report it to the RA.  You do not want to get caught on campus, in campus housing with contraband.  You could be kicked out of campus housing or even suspended from school.

What if I was arrested in Florida, but I live in another country?

Florida is a popular travel destination and sometimes people get arrested while on vacation.  If you live in another country and have been arrested for a misdemeanor or felony in Florida, you need to hire an attorney.  One of the best benefits of hiring your own private attorney is that most times, your presence in court can be waived.  If you do not have a lawyer, you will be required to attend all of your court hearings which can result in several thousands of dollars worth of airfare and hotel stays.  An Attorney can make sure that you do not have to go to court, and can even resolve most types of cases without you having to ever go to court or returning to the United States.

What if I am arrested in Florida, but I live in another state?

Florida is a top destination for vacationers, spring breakers, retirees and even business travelers.   Unfortunately, many times people come to Florida and fall victim to our very aggressive police force.  When arrests happen for out of town defendants, there is nothing more important than hiring an experienced attorney to represent you.  You want to make sure that you do not have to keep coming to court every few weeks and spend thousands of dollars on plane tickets and hotels.  An experienced criminal defense attorney can make sure that your presence in court is not required.  A skilled criminal defense lawyer can even resolve most types of criminal cases without you having to ever go to court or returning to Florida.

Police still arrested me for DUI even though my breath test was under the limit. Why?

.08 is the legal limit for alcohol content in a persons breath.  Just because the breath result read below that number, does not mean that the police cannot still make an arrest, it just means that a conviction is less likely.  The police and the government will likely take the breath result and make other claims that you showed signs of impairment from drugs or other chemical or controlled substances.  This is just another reason why refusing to submit is probably a better idea than blowing.

My breath result was under .05, why was I arrested?

You can be arrested if a police officer had probable cause to believe you were under the influence of alcohol, chemical or controls substances to the extent your normal faculties were impaired.  If the only information the officer had was your low breath result, you should not have been arrested unless the officer can point to other evidence of impairment by controlled substances or chemical substances.  There are very few police officers who can do that, they are called Drug Recognition Experts or “DRE”.  Unless you exhibited serious signs of impairment or urine test positive for drugs, a breath result that low will rarely if ever result in a conviction for DUI.

The officer said I refused, but he never even asked me to do the breath test.  Why did he do that?  What can I do?

Sometimes, but not often a police officer can forget to ask you to provide a breath sample, realized it later and couldn’t fix his mistake so he covered it up by saying you refused.  Other times, an officer will simply say that you refused based on allegations of aggressive or defiant behavior.  There are also situations where an officer doesn’t want to deal with the process and writes you down as a refusal to avoid additional paperwork.  These things happen which is why it is very important to have a DUI defense attorney working for you right away after your arrest for DUI in Ft. Lauderdale, Miami or West Palm Beach.

A criminal defense lawyer will ask the court for permission to take the depositions of each officer and witness in your DUI case.  At these depositions, your DUI defense lawyer can ask the police detailed questions about each phase of the investigation and arrest.  Most often, lazy officers are exposed through this process.  Officers who write vague reports will try to substitute their “memory” for what is missing from their report.  Whenever an officer says “My best recollection is…” what he really means is “I didn’t take the time to write that down, so I am going to wing it right now”.  Don’t fall victim to lazy officers, get an experienced DUI defense attorney to fight back.