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Criminal
“The police officer had no reason to follow me when he saw me pull out of a bar, and cannot run my tag without reason.”
Even though it doesn’t seem fair for a police officer to be allowed to wait for a person to drive away from a bar, follow that person, and then stop the person for driving in a manner that makes the officer think the person is ill, injured or impaired (or really just impaired or why else would the officer wait until the person left the bar), it still isn’t entrapment when the person is arrested for DUI.
And even when the three illusory I-words or buzzwords10 found on every officers’ cheat sheet (right along with such other fraternal favorites as: training & experience, spontaneous utterance, furtive movements, bulge, plain view, Officer safety, and odor of cannabis) do not exist, a police officer can still pull up behind any automobile for no reason and run its tag number.
And if the tag comes back registered to a person with a suspended license, or no driver’s license, the officer can make a lawful stop.11 Unless of course it is obvious that the person driving the car does not match the description of the owner.12 However, the officer does not have to try to confirm this prior to the stop, but if after the stop as the officer is approaching the vehicle he realizes the driver is obviously not the registered owner, then all the officer can do is make personal contact with the driver to explain the reason for the stop.13The officer cannot ask to see the person’s driver’s license14 or in any other way continue to detain the person, unless as the officer approaches he observes one of the aforementioned buzzwords15 or recognizes the person as being on the FBI’s Most Wanted List, having an active warrant16 or suspended license, and the information is not stale.17
Speed traps are not entrapment, either. Police officers can hide at night with their lights out in an unmarked vehicle to catch a person speeding.
These myths besides finding their basis for truth in the fourth amendment and entrapment also find their basis for truth in the belief that the police are not allowed to use trickery and deception to enforce the law. But as long as the police do not take it too far, trickery and deception are allowed.18
“She said she wasn’t a police officer.”
The next Suburban Legal Myth deals with the prostitution and/or drug deal scenario where someone asks the undercover police officer if he or she is a police officer and the officer says, ‘no.’ The defendant thinks that because the police officer lied about her true identity that the case has to be thrown out. The only possible basis in truth for this rather ludicrous myth that if true would hamper all undercover police activity7 is found in the defense of entrapment. 8
Most clients think that if an informant or under cover police officer set them up, then it has to be entrapment. They have trouble understanding that their predisposition to commit the crime tends to negate the entrapment defense. And that the negation is even more so with those who have a prior record for committing the same crime. 9
Of course, it is usually a good rule of thumb that if a person is even thinking about asking whether someone is a police officer, to not go through with the deal.
“I wasn’t read my rights!”
The most popular Suburban Legal Myth deals with the person who was arrested, but was not read his Miranda rights. He thinks because he wasn’t read those magical words that his triple homicide will get thrown out of court. Actually, he’s usually hoping his DUI will get thrown out.
Most of the time when a person complains about not having been read his rights, he had been placed under arrest and therefore was in custody.1 But he was not interrogated,2 or if he was questioned what he said was non-testimonial3 in nature. So the fact that he was not read his rights is irrelevant.
However, not being read Miranda rights can in some cases result in a successful motion to suppress a confession, and if without the confession the charge cannot get passed a Judgment of Acquittal, then the case will be dismissed.4 So there is a basis in truth to this myth.
Domestic Violence
How does the law define “domestic violence”?
Florida Statute 741.28 defines “domestic violence” as any:
- assault
- aggravated assault
- battery
- aggravated battery
- sexual assault
- sexual battery
- stalking
- aggravated stalking
- kidnapping
- false imprisonment
or any criminal offense resulting in physical injury or death of one family or household member by another who is or was residing in the same single dwelling unit.
Pleas in Absentia
If you are charged with a misdemeanor and live out of state or out of Brevard County or for whatever reason you do not want to appear in court there are times when I can plea the case without you ever having to come to court. This is called pleading in your absence. This way you do not have to drive back to Brevard County or fly back to Florida.
3.180. Presence of Defendant
(a) Presence of Defendant. In all prosecutions for crime the defendant shall be present:
(1) at first appearance;
(2) when a plea is made, unless a written plea of not guilty shall be made in writing under the provisions of rule 3.170(a);
(3) at any pretrial conference, unless waived by the defendant in writing;
(4) at the beginning of the trial during the examination, challenging, impanelling, and swearing of the jury;
(5) at all proceedings before the court when the jury is present;
(6) when evidence is addressed to the court out of the presence of the jury for the purpose of laying the foundation for the introduction of evidence before the jury;
(7) at any view by the jury;
(8) at the rendition of the verdict; and
(9) at the pronouncement of judgment and the imposition of sentence.
(b) Presence; Definition. A defendant is present for purposes of this rule if the defendant is physically in attendance for the courtroom proceeding, and has a meaningful opportunity to be heard through counsel on the issues being discussed.
(c) Defendant Absenting Self.
(1) Trial. If the defendant is present at the beginning of the trial and thereafter, during the progress of the trial or before the verdict of the jury has been returned into court, voluntarily absents himself or herself from the presence of the court without leave of court, or is removed from the presence of the court because of his or her disruptive conduct during the trial, the trial of the cause or the return of the verdict of the jury in the case shall not thereby be postponed or delayed, but the trial, the submission of the case to the jury for verdict, and the return of the verdict thereon shall proceed in all respects as though the defendant were present in court at all times.
(2) Sentencing. If the defendant is present at the beginning of the trial and thereafter absents himself or herself as described in subdivision (1), or if the defendant enters a plea of guilty or no contest and thereafter absents himself or herself from sentencing, the sentencing may proceed in all respects as though the defendant were present at all times.
(d) Defendant May Be Tried in Absentia for Misdemeanors. Persons prosecuted for misdemeanors may, at their own request, by leave of court, be excused from attendance at any or all of the proceedings aforesaid.
(e) Presence of Corporation. A corporation may appear by counsel at all times and for all purposes.
Committee Notes 1968 Adoption. (a) The suggested rule is in great part a recopying of section 914.01, Florida Statutes: In (3) the words “at the beginning of the trial” are recommended for inclusion to avoid questions arising as to the necessity for the defendant’s presence at times other than upon trial, such as when the jury venire is ordered, etc. Subdivision (a)(8) is not in the present statute. However, it is deemed advisable to include it, as the several sections of chapter 921, Florida Statutes, particularly section 921.07, appear to impliedly or expressly require the defendant’s presence at such times. (c) The statute and the suggested rule make no distinction between capital and other cases. In all probability, however, were a person on trial for a capital case to escape during trial, a mistrial should be ordered if such person were not captured within a reasonable time. (d) It is suggested that this language be used rather than the all inclusive general language of the present statute as to misdemeanor cases. (e) This provision does not appear in section 914.01, Florida Statutes, but it is a part of Federal Rule of Criminal Procedure 43. It is deemed useful to include it.
What’s a Miranda Warning, Anyways?
Most citizens feel obligated to respond when called upon by police to answer questions.
Even good citizens who are apprehended or stopped by the police are a bit intimidated by the ‘color of authority’: the uniform, the badge, and the gun.
The Miranda warning is a cautionary notice that is required to be given by police to suspects in custody (or in a custodial situation) before they are interrogated. The warning puts the suspect on notice that whatever he or she says is going to be considered voluntary from that point on if he chooses to continue talking to police.
Intended to prevent coerced confessions and admissions
The use of the Miranda warning reduces the incentive officers potentially have to “play dirty” (not that all do). History is replete with accounts demonstrating the danger to liberty that coerced confessions bring. Use of the warning puts the responsibility of choosing one’s words carefully upon the speaker rather than the hearer. Some detectives and interrogators are skilled at reading body language, trapping suspects in custody into giving what appeared to be harmless information that can be later intentionally or unintentionally misunderstood by police. This is why it is important to have a Bar Certified Criminal Trial Expert like Geoff Golub at your side during any questioning.
In Miranda v. Arizona, the Supreme Court of the United States held that an elicited incriminating statement by a suspect will not constitute admissible evidence unless the suspect was informed of the right to decline to make self-incriminatory statements and the right to legal counsel (hence the so-called “Miranda rights”), and makes a knowing, intelligent and voluntary waiver of those rights. The Miranda warning is not a condition of detention, but rather a safeguard against self-incrimination; as a result, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may still interrogate that person and act upon the knowledge gained, but may not use that person’s statements to incriminate him or her in a criminal trial.
A U.S. Supreme Court decision (Berghuis v. Thompkins) guarantees suspects the 5th Amendment right to remain silent, and the 6th Amendment right to the assistance of counsel; however, if a suspect waives these rights and interrogation begins, the right to halt further questioning by the police (and to not have your answers used against you) must be exercised explicitly by invoking one’s 5th and/or 6th Amendment rights.
Remember, if you are called upon to answer questions “down at the station”, contact me forthwith so I can help to protect your rights and gather information during the interrogation for the battle to come.
Pretrial Release (“Bail bonds”)
You have a right to a bail bond for misdemeanors and most felonies
Anyone arrested for a misdemeanor shall be entitled to pretrial release on reasonable conditions unless no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process.
(b) Hearing at first appearance-Conditions of Release
i.) There is a presumption in favor of release on non-monetary conditions for any person who is granted pretrial release. The judge shall impose the first of the following conditions of release that will reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process; or, if no single condition gives that assurance, shall impose any combination of the following conditions:
(A) Personal recognizance of the defendant
(B) Execution of an unsecured appearance bond in an amount specified by the judge;
(C) Placement of restrictions on the travel, association, or place of abode of the defendant during the period of release;
(D) Placement of the defendant in the custody of a designated person or organization agreeing to supervise the defendant;
(E) Execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; provided, however, that any criminal defendant who is required to meet monetary bail or bail with any monetary component may satisfy the bail by providing an appearance bond; or
(F) any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours.
(3) In determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the judge considers the following:
i.) The nature and circumstances of the offense charged
ii.) The penalty provided by law
iii.) Weight of evidence against the accused
iv.) Family ties
v.) Length of residence in the community
vi.) Employment history
vii.) Financial resources
viii.) Mental condition
ix.) Defendant’s past and present conduct
x.) Record of convictions
xi.) Previous flight to avoid prosecution
xii.) Previous failures to appear at court proceedings
xiii.) Probability and nature of danger posed to community
xiv.) Source of funds used to post bail
xv.) Whether the defendant is already on release pending resolution of another criminal proceeding
xvi.) On probation
xvii.) On parole
xviii.) On any release pending completion of sentence
xix.) Any other facts the court considers relevant
Rule 3.132. Pretrial Detention
(a) Motion Filed at First Appearance. A person arrested for an offense for which detention may be ordered under section 907.041, Florida Statutes, shall be taken before a judicial officer for a first appearance within 24 hours of arrest. The state may file with the judicial officer at first appearance a motion seeking pretrial detention, signed by the state attorney or an assistant, setting forth with particularity the grounds and the essential facts on which pretrial detention is sought and certifying that the state attorney has received testimony under oath supporting the grounds and the essential facts alleged in the motion. If no such motion is filed, or the motion is facially insufficient, the judicial officer shall proceed to determine the conditions of release pursuant to the provisions of rule 3.131(b)(1). If the motion for pretrial detention is facially sufficient, the judicial officer shall proceed to determine whether there is probable cause that the person committed the offense. If probable cause is found, the person may be detained in custody pending a final hearing on pretrial detention. If probable cause is established after first appearance pursuant to the provisions of rule 3.133 and the person has been released from custody, the person may be recommitted to custody pending a final hearing on pretrial detention.
(b) Motion Filed after First Appearance. A motion for pretrial detention may be filed at any time prior to trial. The motion shall be made to the court with trial jurisdiction. On receipt of a facially sufficient motion and a determination of probable cause, unless otherwise previously established, that an offense eligible for pretrial detention has been committed, the following shall occur:
(1) In the event of exigent circumstances, the court shall issue a warrant for the arrest of the named person, if the person has been released from custody. The person may be detained in custody pending a final hearing on pretrial detention.
(2) In the absence of exigent circumstances, the court shall order a hearing on the motion as provided in (c) below.
(c) Final Order.
(1) Hearing Required. A final order of pretrial detention shall be entered only after a hearing in the court of trial jurisdiction. The hearing shall be held within 5 days of the filing of the motion or the date of taking the person in custody pursuant to a motion for pretrial detention, whichever is later. The state attorney has the burden of showing beyond a reasonable doubt the need for pretrial detention pursuant to the criteria in section 907.041, Florida Statutes. The defendant may request a continuance. The state shall be entitled to 1 continuance for good cause. No continuance shall exceed 5 days unless there are extenuating circumstances. The defendant may be detained pending the hearing, but in no case shall the defendant be detained in excess of 10 days, unless the delay is sought by the defendant. The person sought to be detained is entitled to representation by counsel, to present witnesses and evidence, and to cross-examine witnesses. The court may admit relevant evidence and testimony under oath without complying with the rules of evidence, but evidence secured in violation of the United States Constitution or the Constitution of the State of Florida shall not be admissible. A final order of pretrial detention shall not be based exclusively on hearsay evidence. No testimony by the defendant shall be admissible to prove the guilt of the defendant at any other judicial proceeding, but may be admitted in an action for perjury based on the defendant’s statements made at the pretrial detention hearing or for impeachment.
(2) Findings and Conclusions to Be Recorded. The court’s pretrial detention order shall be based solely on evidence produced at the hearing and shall contain findings of fact and conclusions of law to support it. The order shall be made either in writing or orally on the record. The court shall render its findings within 24 hours of the pretrial detention hearing.
(3) Dissolution of Order. The defendant shall be entitled to dissolution of the pretrial detention order whenever the court finds that a subsequent event has eliminated the basis for detention.
(4) Further Proceedings on Order. If any trial court enters a final order of pretrial detention, the defendant may obtain review by motion to the appropriate appellate court. If motion for review is taken to the supreme court or the district court of appeal, notice and a copy of the motion shall be served on the attorney general and the state attorney; if review is taken to the circuit court, service shall be on the state attorney.
(d) Length of Detention. If ordered detained pending trial pursuant to section 907.041(4)(b), Florida Statutes, the defendant may not be held more than 90 days. Failure of the state to bring the defendant to trial within that time shall result in the defendant’s release from detention subject to any conditions of release, unless the trial delay was requested or caused by the defendant or the defendant’s counsel.
3.133, Pretrial Probable Cause Determinations And Adversary Preliminary Hearing
(a) Nonadversary Probable Cause Determination.
(1) Defendant in Custody. In all cases in which the defendant is in custody, a nonadversary probable cause determination shall be held before a magistrate within 48 hours from the time of the defendant’s arrest; provided, however, that this proceeding shall not be required when a probable cause determination has been previously made by a magistrate and an arrest warrant issued for the specific offense for which the defendant is charged. The magistrate after a showing of extraordinary circumstance may continue the proceeding for not more than 24 hours beyond the 48-hour period. The magistrate, after a showing that an extraordinary circumstance still exists, may continue the proceeding for not more than 24 additional hours following the expiration of the initial 24-hour continuance. This determination shall be made if the necessary proof is available at the time of the first appearance as required under rule 3.130, but the holding of this determination at that time shall not affect the fact that it is a nonadversary proceeding.
(2) Defendant on Pretrial Release. A defendant who has been released from custody before a probable cause determination is made and who is able to establish that the pretrial release conditions are a significant restraint on his or her liberty may file a written motion for a nonadversary probable cause determination setting forth with specificity the items of significant restraint that a finding of no probable cause would eliminate. The motion shall be filed within 21 days from the date of arrest, and notice shall be given to the state. A magistrate who finds significant restraints on the defendant’s liberty shall make a probable cause determination within 7 days from the filing of the motion.
(3) Standard of Proof. Upon presentation of proof, the magistrate shall determine whether there is probable cause for detaining the arrested person pending further proceedings. The defendant need not be present. In determining probable cause to detain the defendant, the magistrate shall apply the standard for issuance of an arrest warrant, and the finding may be based on sworn complaint, affidavit, deposition under oath, or, if necessary, on testimony under oath properly recorded.
(4) Action on Determination. If probable cause is found, the defendant shall be held to answer the charges. If probable cause is not found or the specified time periods are not complied with, the defendant shall be released from custody unless an information or indictment has been filed, in which event the defendant shall be released on recognizance subject to the condition that he or she appear at all court proceedings or shall be released under a summons to appear before the appropriate court at a time certain. Any release occasioned by a failure to comply with the specified time periods shall be by order of the magistrate on a written application filed by the defendant with notice sent to the state or by a magistrate without a written application but with notice to the state. The magistrate shall order the release of the defendant after it is determined that the defendant is entitled to release and after the state has a reasonable period of time, not to exceed 24 hours, in which to establish probable cause. A release required by this rule does not void further prosecution by information or indictment but does prohibit any restraint on liberty other than appearing for trial. A finding that probable cause does or does not exist shall be made in writing, signed by the magistrate, and filed, together with the evidence of such probable cause, with the clerk of the court having jurisdiction of the offense for which the defendant is charged.
(b) Adversary Preliminary Hearing.
(1) When Applicable. A defendant who is not charged in an information or indictment within 21 days from the date of arrest or service of the capias on him or her shall have a right to an adversary preliminary hearing on any felony charge then pending against the defendant. The subsequent filing of an information or indictment shall not eliminate a defendant’s entitlement to this proceeding.
(2) Process. The magistrate shall issue such process as may be necessary to secure attendance of witnesses within the state for the state or the defendant.
(3) Witnesses. All witnesses shall be examined in the presence of the defendant and may be cross-examined. Either party may request that the witnesses be sequestered. At the conclusion of the testimony for the prosecution, the defendant who so elects shall be sworn and testify in his or her own behalf, and in such cases the defendant shall be warned in advance of testifying that anything he or she may say can be used against him or her at a subsequent trial. The defendant may be cross-examined in the same manner as other witnesses, and any witnesses offered by the defendant shall be sworn and examined.
(4) Record. At the request of either party, the entire preliminary hearing, including all testimony, shall be recorded verbatim stenographically or by mechanical means and at the request of either party shall be transcribed. If the record of the proceedings, or any part thereof, is transcribed at the request of the prosecuting attorney, a copy of this transcript shall be furnished free of cost to the defendant or the defendant’s counsel.
(5) Action on Hearing. If from the evidence it appears to the magistrate that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the magistrate shall cause the defendant to be held to answer to the circuit court; otherwise, the magistrate shall release the defendant from custody unless an information or indictment has been filed, in which event the defendant shall be released on recognizance subject to the condition that he or she appear at all court proceedings or shall be released under a summons to appear before the appropriate court at a time certain. Such release does not, however, void further prosecution by information or indictment but does prohibit any restraint on liberty other than appearing for trial. A finding that probable cause does or does not exist shall be made in writing, signed by the magistrate, and, together with the evidence received in the cause, shall be filed with the clerk of the circuit court.
(c) Additional Nonadversary Probable Cause Determinations and Preliminary Hearings. If there has been a finding of no probable cause at a nonadversary determination or adversary preliminary hearing, or if the specified time periods for holding a nonadversary probable cause determination have not been complied with, a magistrate may thereafter make a determination of probable cause at a nonadversary probable cause determination, in which event the defendant shall be retained in custody or returned to custody upon appropriate process issued by the magistrate. A defendant who has been retained in custody or returned to custody by such a determination shall be allowed an adversary preliminary hearing in all instances in which a felony offense is charged.
903.21. Method of surrender; exoneration of obligors
(1) A surety desiring to surrender a defendant shall deliver a copy of the bond and the defendant to the official who had custody of the defendant at the time bail was taken or to the official into whose custody the defendant would have been placed if she or he had been committed. The official shall take the defendant into custody, as on a commitment, and issue a certificate acknowledging the surrender.
(2) When a surety presents the certificate and a copy of the bond to the court having jurisdiction, the court shall order the obligors exonerated and any money or bonds deposited as bail refunded. The surety shall give the state attorney 3 days’ notice of application for an order of exoneration and furnish the state attorney a copy of the certificate and bond.
(3) The surety shall be exonerated of liability on the bond if it is determined prior to breach of the bond that the defendant is in any jail or prison and the surety agrees in writing to pay the transportation cost of returning the defendant to the jurisdiction of the court. For purposes of this subsection, “jurisdiction” means within the judicial circuit as prescribed by law.
903.286. Return of cash bond; requirement to withhold unpaid fines, fees, and court costs
Notwithstanding the provisions of s. 903.31(2), the clerk of the court shall withhold from the return of a cash bond posted on behalf of a criminal defendant by a person other than a bail bond agent licensed pursuant to chapter 648 sufficient funds to pay any unpaid court fees, court costs, and criminal penalties. In the event that sufficient funds are not available to pay all unpaid court fees, court costs, and criminal penalties, the clerk of the court shall immediately obtain payment from the defendant or enroll the defendant in a payment plan pursuant to s. 28.246.
903.26. Forfeiture of the bond; when and how directed; discharge; how and when made; effect of payment
(1) A bail bond shall not be forfeited unless:
(a) The information, indictment, or affidavit was filed within 6 months from the date of arrest, and
(b) The clerk of court gave the surety at least 72 hours’ notice, exclusive of Saturdays, Sundays, and holidays, before the time of the required appearance of the defendant. Notice shall not be necessary if the time for appearance is within 72 hours from the time of arrest, or if the time is stated on the bond.
(2)(a) If there is a breach of the bond, the court shall declare the bond and any bonds or money deposited as bail forfeited. The clerk of the court shall mail a notice to the surety agent and surety company in writing within 5 days of the forfeiture. A certificate signed by the clerk of the court or the clerk’s designee, certifying that the notice required herein was mailed on a specified date and accompanied by a copy of the required notice, shall constitute sufficient proof that such mailing was properly accomplished as indicated therein. If such mailing was properly accomplished as evidenced by such certificate, the failure of the surety agent, of a company, or of a defendant to receive such mail notice shall not constitute a defense to such forfeiture and shall not be grounds for discharge, remission, reduction, set aside, or continuance of such forfeiture. The forfeiture shall be paid within 60 days of the date the notice was mailed.
(b) Failure of the defendant to appear at the time, date, and place of required appearance shall result in forfeiture of the bond. Such forfeiture shall be automatically entered by the clerk upon such failure to appear, and the clerk shall follow the procedures outlined in paragraph (a). However, the court may determine, in its discretion, in the interest of justice, that an appearance by the defendant on the same day as required does not warrant forfeiture of the bond; and the court may direct the clerk to set aside any such forfeiture which may have been entered. Any appearance by the defendant later than the required day constitutes forfeiture of the bond, and the court shall not preclude entry of such forfeiture by the clerk.
(c) If there is a breach of the bond, the clerk shall provide, upon request, a certified copy of the warrant or capias to the bail bond agent or surety company.
(3) Sixty days after the forfeiture notice has been mailed:
(a) State and county officials having custody of forfeited money shall deposit the money in the fine and forfeiture fund established pursuant to s. 142.01;
(b) Municipal officials having custody of forfeited money shall deposit the money in a designated municipal fund;
(c) Officials having custody of bonds as authorized by s. 903.16 shall transmit the bonds to the clerk of the circuit court who shall sell them at market value and disburse the proceeds as provided in paragraphs (a) and (b).
(4)(a) When a bond is forfeited, the clerk shall transmit the bond and any affidavits to the clerk of the circuit court in which the bond and affidavits are filed. The clerk of the circuit court shall record the forfeiture in the deed or official records book. If the undertakings and affidavits describe real property in another county, the clerk shall transmit the bond and affidavits to the clerk of the circuit court of the county where the property is located who shall record and return them.
(b) The bond and affidavits shall be a lien on the real property they describe from the time of recording in the county where the property is located for 2 years or until the final determination of an action instituted thereon within a 2-year period. If an action is not instituted within 2 years from the date of recording, the lien shall be discharged. The lien will be discharged 2 years after the recording even if an action was instituted within 2 years unless a lis pendens notice is recorded in the action.
(5) The court shall discharge a forfeiture within 60 days upon:
(a) A determination that it was impossible for the defendant to appear as required due to circumstances beyond the defendant’s control. The potential adverse economic consequences of appearing as required shall not be considered as constituting a ground for such a determination;
(b) A determination that, at the time of the required appearance, the defendant was adjudicated insane and confined in an institution or hospital or was confined in a jail or prison;
(c) Surrender or arrest of the defendant if the delay has not thwarted the proper prosecution of the defendant. If the forfeiture has been before discharge, the court shall direct remission of the forfeiture. The court shall condition a discharge or remission on the payment of costs and the expenses incurred by an official in returning the defendant to the jurisdiction of the court.
(6) The discharge of a forfeiture shall not be ordered for any reason other than as specified herein.
(7) The payment by a surety of a forfeiture under the provisions of this law shall have the same effect on the bond as payment of a judgment.
(8) If the defendant is arrested and returned to the county of jurisdiction of the court prior to judgment, the clerk, upon affirmation by the sheriff or the chief correctional officer, shall, without further order of the court, discharge the forfeiture of the bond. However, if the surety agent fails to pay the costs and expenses incurred in returning the defendant to the county of jurisdiction, the clerk shall not discharge the forfeiture of the bond. If the surety agent and the sheriff fail to agree on the amount of said costs, then the court, after notice to the sheriff and the state attorney, shall determine the amount of the costs.
903.28. Remission of forfeiture; conditions
(1) On application within 2 years from forfeiture, the court shall order remission of the forfeiture if it determines that there was no breach of the bond.
(2) If the defendant surrenders or is apprehended within 90 days after forfeiture, the court, on motion at a hearing upon notice having been given to the clerk of the circuit court and the state attorney as required in subsection (8), shall direct remission of up to, but not more than, 100 percent of a forfeiture if the surety apprehended and surrendered the defendant or if the apprehension or surrender of the defendant was substantially procured or caused by the surety, or the surety has substantially attempted to procure or cause the apprehension or surrender of the defendant, and the delay has not thwarted the proper prosecution of the defendant. In addition, remission shall be granted when the surety did not substantially participate or attempt to participate in the apprehension or surrender of the defendant when the costs of returning the defendant to the jurisdiction of the court have been deducted from the remission and when the delay has not thwarted the proper prosecution of the defendant.
(3) If the defendant surrenders or is apprehended within 180 days after forfeiture, the court, on motion at a hearing upon notice having been given to the clerk of the circuit court and the state attorney as required in subsection (8), shall direct remission of up to, but not more than, 95 percent of a forfeiture if the surety apprehended and surrendered the defendant or if the apprehension or surrender of the defendant was substantially procured or caused by the surety, or the surety has substantially attempted to procure or cause the apprehension or surrender of the defendant, and the delay has not thwarted the proper prosecution of the defendant. In addition, remission shall be granted when the surety did not substantially participate or attempt to participate in the apprehension or surrender of the defendant when the costs of returning the defendant to the jurisdiction of the court have been deducted from the remission and when the delay has not thwarted the proper prosecution of the defendant.
(4) If the defendant surrenders or is apprehended within 270 days after forfeiture, the court, on motion at a hearing upon notice having been given to the clerk of the circuit court and the state attorney as required in subsection (8), shall direct remission of up to, but not more than, 90 percent of a forfeiture if the surety apprehended and surrendered the defendant or if the apprehension or surrender of the defendant was substantially procured or caused by the surety, or the surety has substantially attempted to procure or cause the apprehension or surrender of the defendant, and the delay has not thwarted the proper prosecution of the defendant. In addition, remission shall be granted when the surety did not substantially participate or attempt to participate in the apprehension or surrender of the defendant when the costs of returning the defendant to the jurisdiction of the court have been deducted from the remission and when the delay has not thwarted the proper prosecution of the defendant.
(5) If the defendant surrenders or is apprehended within 1 year after forfeiture, the court, on motion at a hearing upon notice having been given to the clerk of the circuit court and the state attorney as required in subsection (8), shall direct remission of up to, but not more than, 85 percent of a forfeiture if the surety apprehended and surrendered the defendant or if the apprehension or surrender of the defendant was substantially procured or caused by the surety, or the surety has substantially attempted to procure or cause the apprehension or surrender of the defendant, and the delay has not thwarted the proper prosecution of the defendant. In addition, remission shall be granted when the surety did not substantially participate or attempt to participate in the apprehension or surrender of the defendant when the costs of returning the defendant to the jurisdiction of the court have been deducted from the remission and when the delay has not thwarted the proper prosecution of the defendant.
(6) If the defendant surrenders or is apprehended within 2 years after forfeiture, the court, on motion at a hearing upon notice having been given to the clerk of the circuit court and the state attorney as required in subsection (8), shall direct remission of up to, but not more than, 50 percent of a forfeiture if the surety apprehended and surrendered the defendant or if the apprehension or surrender of the defendant was substantially procured or caused by the surety, or the surety has substantially attempted to procure or cause the apprehension or surrender of the defendant, and the delay has not thwarted the proper prosecution of the defendant. In addition, remission shall be granted when the surety did not substantially participate or attempt to participate in the apprehension or surrender of the defendant when the costs of returning the defendant to the jurisdiction of the court have been deducted from the remission and when the delay has not thwarted the proper prosecution of the defendant.
(7) The remission of a forfeiture may not be ordered for any reason other than as specified herein.
(8) An application for remission must be accompanied by affidavits setting forth the facts on which it is founded; however, the surety must establish by further documentation or other evidence any claimed attempt at procuring or causing the apprehension or surrender of the defendant before the court may order remission based upon an attempt to procure or cause such apprehension or surrender. The clerk of the circuit court and the state attorney must be given 20 days’ notice before a hearing on an application and be furnished copies of all papers, applications, and affidavits. Remission shall be granted on the condition of payment of costs, unless the ground for remission is that there was no breach of the bond.
(9) The clerk of the circuit court may enter into a contract with a private attorney or into an interagency agreement with a governmental agency to represent the clerk of the court in an action for the remission of a forfeiture under this section.
(10) The clerk of the circuit court is the real party in interest for all appeals arising from an action for the remission of a forfeiture under this section.
Driver License Revocation or Suspension Hearings
Under Florida law, a law enforcement officer who arrests a person for DUI is expected to suspend that person’s license. Another condition under which a person’s license is subject to suspension is if the driver refuses to submit to a breath, urine, or blood test
Florida Statute 322.2615. Suspension of license; right to review
(1)(a) A law enforcement officer or correctional officer shall, on behalf of the department, suspend the driving privilege of a person who has been arrested by a law enforcement officer for a violation of s. 316.193, relating to unlawful blood-alcohol level or breath-alcohol level, or of a person who has refused to submit to a breath, urine, or blood test authorized by s. 316.1932. The officer shall take the person’s driver’s license and issue the person a 10-day temporary permit if the person is otherwise eligible for the driving privilege and shall issue the person a notice of suspension. If a blood test has been administered, the results of which are not available to the officer at the time of the arrest, the agency employing the officer shall transmit such results to the department within 5 days after receipt of the results. If the department then determines that the person was arrested for a violation of s. 316.193 and that the person had a blood-alcohol level or breath-alcohol level of 0.08 or higher, the department shall suspend the person’s driver’s license pursuant to subsection (3).
(b) The suspension under paragraph (a) shall be pursuant to, and the notice of suspension shall inform the driver of, the following:
1. a. The driver refused to submit to a lawful breath, blood, or urine test and his or her driving privilege is suspended for a period of 1 year for a first refusal or for a period of 18 months if his or her driving privilege has been previously suspended as a result of a refusal to submit to such a test; or
b. The driver violated s. 316.193 by driving with an unlawful blood-alcohol level as provided in that section and his or her driving privilege is suspended for a period of 6 months for a first offense or for a period of 1 year if his or her driving privilege has been previously suspended for a violation of s. 316.193.
2. The suspension period shall commence on the date of arrest or issuance of the notice of suspension, whichever is later.
3. The driver may request a formal or informal review of the suspension by the department within 10 days after the date of arrest or issuance of the notice of suspension, whichever is later.
4. The temporary permit issued at the time of arrest will expire at midnight of the 10th day following the date of arrest or issuance of the notice of suspension, whichever is later.
5. The driver may submit to the department any materials relevant to the arrest.
(2) Except as provided in paragraph (1)(a), the law enforcement officer shall forward to the department, within 5 days after the date of the arrest, a copy of the notice of suspension, the driver’s license of the person arrested, and a report of the arrest, including an affidavit stating the officer’s grounds for belief that the person arrested was in violation of s. 316.193; the results of any breath or blood test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer or correctional officer and that the person arrested refused to submit; a copy of the citation issued to the person arrested; and the officer’s description of the person’s field sobriety test, if any. The failure of the officer to submit materials within the 5-day period specified in this subsection and in subsection (1) shall not affect the department’s ability to consider any evidence submitted at or prior to the hearing. The officer may also submit a copy of a videotape of the field sobriety test or the attempt to administer such test.
(3) If the department determines that the license of the person arrested should be suspended pursuant to this section and if the notice of suspension has not already been served upon the person by a law enforcement officer or correctional officer as provided in subsection (1), the department shall issue a notice of suspension and, unless the notice is mailed pursuant to s. 322.251, a temporary permit which expires 10 days after the date of issuance if the driver is otherwise eligible.
(4) If the person arrested requests an informal review pursuant to subparagraph (1)(b)3., the department shall conduct the informal review by a hearing officer employed by the department. Such informal review hearing shall consist solely of an examination by the department of the materials submitted by a law enforcement officer or correctional officer and by the person arrested, and the presence of an officer or witness is not required.
(5) After completion of the informal review, notice of the department’s decision sustaining, amending, or invalidating the suspension of the driver’s license of the person arrested must be provided to such person. Such notice must be mailed to the person at the last known address shown on the department’s records, or to the address provided in the law enforcement officer’s report if such address differs from the address of record, within 21 days after the expiration of the temporary permit issued pursuant to subsection (1) or subsection (3).
(6)(a) If the person arrested requests a formal review, the department must schedule a hearing to be held within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing.
(b) Such formal review hearing shall be held before a hearing officer employed by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas, regulate the course and conduct of the hearing, and make a ruling on the suspension. The department and the person arrested may subpoena witnesses, and the party requesting the presence of a witness shall be responsible for the payment of any witness fees and for notifying in writing the state attorney’s office in the appropriate circuit of the issuance of the subpoena. If the person who requests a formal review hearing fails to appear and the hearing officer finds such failure to be without just cause, the right to a formal hearing is waived and the suspension shall be sustained.
(c) A party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides. A failure to comply with an order of the court shall result in a finding of contempt of court. However, a person shall not be in contempt while a subpoena is being challenged.
(d) The department must, within 7 working days after a formal review hearing, send notice to the person of the hearing officer’s decision as to whether sufficient cause exists to sustain, amend, or invalidate the suspension.
(7) In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension. The scope of the review shall be limited to the following issues:
(a) If the license was suspended for driving with an unlawful blood-alcohol level in violation of s. 316.193:
1. Whether the arresting law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances.
2. Whether the person was placed under lawful arrest for a violation of s. 316.193.
3. Whether the person had an unlawful blood-alcohol level as provided in s. 316.193.
(b) If the license was suspended for refusal to submit to a breath, blood, or urine test:
1. Whether the arresting law enforcement officer had probable cause to believe that the person was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances.
2. Whether the person was placed under lawful arrest for a violation of s. 316.193.
3. Whether the person refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.
4. Whether the person was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.
(8) Based on the determination of the hearing officer pursuant to subsection (7) for both informal hearings under subsection (4) and formal hearings under subsection (6), the department shall:
(a) Sustain the suspension of the person’s driving privilege for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such tests, if the arrested person refused to submit to a lawful breath, blood, or urine test. The suspension period commences on the date of the arrest or issuance of the notice of suspension, whichever is later.
(b) Sustain the suspension of the person’s driving privilege for a period of 6 months for a violation of s. 316.193, or for a period of 1 year if the driving privilege of such person has been previously suspended as a result of a violation of s. 316.193. The suspension period commences on the date of the arrest or issuance of the notice of suspension, whichever is later.
(9) A request for a formal review hearing or an informal review hearing shall not stay the suspension of the person’s driver’s license. If the department fails to schedule the formal review hearing to be held within 30 days after receipt of the request therefor, the department shall invalidate the suspension. If the scheduled hearing is continued at the department’s initiative, the department shall issue a temporary driving permit which shall be valid until the hearing is conducted if the person is otherwise eligible for the driving privilege. Such permit shall not be issued to a person who sought and obtained a continuance of the hearing. The permit issued under this subsection shall authorize driving for business or employment use only.
(10) A person whose driver’s license is suspended under subsection (1) or subsection (3) may apply for issuance of a license for business or employment purposes only if the person is otherwise eligible for the driving privilege pursuant to s. 322.271.
(a) If the suspension of the driver’s license of the person for failure to submit to a breath, urine, or blood test is sustained, the person is not eligible to receive a license for business or employment purposes only, pursuant to s. 322.271, until 90 days have elapsed after the expiration of the last temporary permit issued. If the driver is not issued a 10-day permit pursuant to this section or s. 322.64 because he or she is ineligible for the permit and the suspension for failure to submit to a breath, urine, or blood test is not invalidated by the department, the driver is not eligible to receive a business or employment license pursuant to s. 322.271 until 90 days have elapsed from the date of the suspension.
(b) If the suspension of the driver’s license of the person arrested for a violation of s. 316.193, relating to unlawful blood-alcohol level, is sustained, the person is not eligible to receive a license for business or employment purposes only pursuant to s. 322.271 until 30 days have elapsed after the expiration of the last temporary permit issued. If the driver is not issued a 10-day permit pursuant to this section or s. 322.64 because he or she is ineligible for the permit and the suspension for a violation of s. 316.193, relating to unlawful blood-alcohol level, is not invalidated by the department, the driver is not eligible to receive a business or employment license pursuant to s. 322.271 until 30 days have elapsed from the date of the arrest.
(11) The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to the administration of a breath test or blood test or the refusal to take either test. However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test.
(12) The formal review hearing and the informal review hearing are exempt from the provisions of chapter 120. The department is authorized to adopt rules for the conduct of reviews under this section.
(13) A person may appeal any decision of the department sustaining a suspension of his or her driver’s license by a petition for writ of certiorari to the circuit court in the county wherein such person resides or wherein a formal or informal review was conducted pursuant to s. 322.31. However, an appeal shall not stay the suspension. This subsection shall not be construed to provide for a de novo appeal.
(14) The decision of the department under this section shall not be considered in any trial for a violation of s. 316.193, nor shall any written statement submitted by a person in his or her request for departmental review under this section be admissible into evidence against him or her in any such trial. The disposition of any related criminal proceedings shall not affect a suspension imposed pursuant to this section.
(15) If the department suspends a person’s license under s. 322.2616, it may not also suspend the person’s license under this section for the same episode that was the basis for the suspension under s. 322.2616.CREDIT(S) Amended by Laws 1995, c. 95-148, 414, eff. July 10, 1995; Laws 1995, c. 95-186, 2, eff. July 1, 1995; Laws 1996, c. 96-272, 2, eff. Jan. 1, 1997; Laws 1996, c. 96-330, 11, eff. July 1, 1996; Laws 1997, c. 97- 96, 38, eff. July 1, 1997; Laws 1999, c. 99-248, 43, eff. June 8, 1999; Laws 2001, c. 2001-196, 14, eff. June 8, 2001.<General Materials (GM) – References, Annotations, or Tables>
322.271. AUTHORITY TO MODIFY REVOCATION, CANCELLATION, OR SUSPENSION ORDER
(1)(a) Upon the suspension, cancellation, or revocation of the driver’s license of any person as authorized or required in this chapter, except a person whose license is revoked as a habitual traffic offender under s. 322.27(5) or a person who is ineligible to be granted the privilege of driving on a limited or restricted basis under subsection (2), the department shall immediately notify the licensee and, upon his or her request, shall afford him or her an opportunity for a hearing pursuant to chapter 120, as early as practicable within not more than 30 days after receipt of such request, in the county wherein the licensee resides, unless the department and the licensee agree that such hearing may be held in some other county.
(b) A person whose driving privilege has been revoked under s. 322.27(5) may, upon expiration of 12 months from the date of such revocation, petition the department for restoration of his or her driving privilege. Upon such petition and after investigation of the person’s qualification, fitness, and need to drive, the department shall hold a hearing pursuant to chapter 120 to determine whether the driving privilege shall be restored on a restricted basis solely for business or employment purposes.
(c) For the purposes of this section, the term:
1. “A driving privilege restricted to business purposes only” means a driving privilege that is limited to any driving necessary to maintain livelihood, including driving to and from work, necessary on-the-job driving, driving for educational purposes, and driving for church and for medical purposes.
2. “A driving privilege restricted to employment purposes only” means a driving privilege that is limited to driving to and from work and any necessary on-the-job driving required by an employer or occupation.
Driving for any purpose other than as provided by this paragraph is not permitted by a person whose driving privilege has been restricted to employment or business purposes. In addition, a person whose driving privilege is restricted to employment or business purposes remains subject to any restriction that applied to the type of license which the person held at the time of the order of suspension, cancellation, or revocation.
(2)(a) Upon such hearing, the person whose license has been suspended, canceled, or revoked may show that such suspension, cancellation, or revocation of his or her license causes a serious hardship and precludes the person’s carrying out his or her normal business occupation, trade, or employment and that the use of the person’s license in the normal course of his or her business is necessary to the proper support of the person or his or her family. Except as otherwise provided in this subsection, the department shall require proof of the successful completion of an approved driver training or substance abuse education course and may require letters of recommendation from respected businesspersons in the community, law enforcement officers, or judicial officers in determining whether such person should be permitted to operate a motor vehicle on a restricted basis for business or employment use only and in determining whether such person can be trusted to so operate a motor vehicle. If a driver’s license has been suspended under the point system or pursuant to s. 322.2615, the department shall require proof of enrollment in an approved driver training course or substance abuse education course, and may require the letters of recommendation described in this subsection to determine if the driver should be reinstated on a restricted basis; if such person fails to complete the approved course within 90 days after reinstatement, the department shall cancel his or her driver’s license until the course is successfully completed. The privilege of driving on a limited or restricted basis for business or employment use shall not be granted to a person who has been convicted of a violation of s. 316.193 until completion of such education or training course. Except as provided in paragraph (b), the privilege of driving on a limited or restricted basis for business or employment use shall not be granted to a person whose license is revoked pursuant to s. 322.28( or suspended pursuant to s. 322.2615 and who has been convicted of a violation of s. 316.193 two or more times or whose license has been suspended two or more times for refusal to submit to a test pursuant to s. 322.2615 or former s. 322.261.
(b) A person whose license has been revoked for a period of 5 years or less pursuant to s. 322.28(2)(a) may, upon the expiration of 12 months after the date said revocation was imposed, petition the department for reinstatement of his or her driving privilege on a restricted basis. A person whose license has been revoked for a period of more than 5 years under s. 322.28(2)(a) may, upon the expiration of 24 months after the date the revocation was imposed, petition the department for reinstatement of his or her driving privilege on a restricted basis. Reinstatement of the driving privilege pursuant to this subsection shall be restricted to business or employment purposes only. In addition, the department shall require such persons upon reinstatement to have not driven and to have been drug free for at least 12 months immediately prior to such reinstatement, to be supervised by a DUI program licensed by the department, and to report to the program at least three times a year as required by the program for the duration of the revocation period for supervision. Such supervision shall include evaluation, education, referral into treatment, and other activities required by the department. Such persons shall assume reasonable costs of supervision. If such person fails to comply with the required supervision, the program shall report the failure to the department, and the department shall cancel such person’s driving privilege. This paragraph does not apply to any person whose driving privilege has been permanently revoked.
(c) For the purpose of this section, a previous conviction of driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, or any other similar alcohol-related or drug-related offense outside this state or a previous conviction of former s. 316.1931, former s. 316.028, or former s. 860.01 shall be considered a previous conviction for violation of s. 316.193.
(d) The department, based upon review of the licensee’s application for reinstatement, may require use of an ignition interlock device pursuant to s. 316.1937.
(3) Upon such hearing, the department shall either suspend, affirm, or modify its order and may restore to the licensee the privilege of driving on a limited or restricted basis for business or employment use only.
(4) Notwithstanding the provisions of s. 322.28(2)(e), a person whose driving privilege has been permanently revoked because he or she has been convicted four times of violating s. 316.193 or former s. 316.1931 or because he or she has been convicted of DUI manslaughter in violation of s. 316.193 may, upon the expiration of 5 years after the date of such revocation or the expiration of 5 years after the termination of any term of incarceration under s. 316.193 or former s. 316.1931, whichever date is later, petition the department for reinstatement of his or her driving privilege.
(a) Within 30 days after the receipt of such a petition, the department shall afford the petitioner an opportunity for a hearing. At the hearing, the petitioner must demonstrate to the department that he or she:
1. Has not been arrested for a drug-related offense during the 5 years preceding the filing of the petition;
2. Has not driven a motor vehicle without a license for at least 5 years prior to the hearing;
3. Has been drug-free for at least 5 years prior to the hearing; and
4. Has completed a DUI program licensed by the department.
(b) At such hearing, the department shall determine the petitioner’s qualification, fitness, and need to drive. Upon such determination, the department may, in its discretion, reinstate the driver’s license of the petitioner. Such reinstatement must be made subject to the following qualifications:
1. The license must be restricted for employment purposes for not less than 1 year; and
2. Such person must be supervised by a DUI program licensed by the department and report to the program for such supervision and education at least four times a year or additionally as required by the program for the remainder of the revocation period. Such supervision shall include evaluation, education, referral into treatment, and other activities required by the department.
(c) Such person must assume the reasonable costs of supervision. If such person fails to comply with the required supervision, the program shall report the failure to the department, and the department shall cancel such person’s driving privilege.
(d) If, after reinstatement, such person is convicted of an offense for which mandatory revocation of his or her license is required, the department shall revoke his or her driving privilege.
(e) The department shall adopt rules regulating the providing of services by DUI programs pursuant to this section.
(5) A person may not be issued a commercial driver’s license during a period in which such person is disqualified from operating commercial motor vehicles or in which the driving privilege of such person is suspended, revoked, or canceled.
Pleas in Absentia
If you live outside of Brevard county and are charged with a misdemeanor, I may be able to enter a plea in your case in your absence (in absentia) so you do not have to appear in court.
In like manner, if you are charged with a misdemeanor in Florida and you live outside of the state, I may be able to work out your case without you ever having to return to Florida.
DUI, BUI, and Drinking-related Offenses
Look on the back of your citation, under the heading “Formal Review”, and request a formal review of your license suspension within 10 days of your arrest, do not waive this right, you may be able to get your license back. At the very least it will enable you to get a business permit license until your formal review hearing and even for a little while after. If you need help with this process, contact Geoff by e-mail.