Winston Law PA

Criminal Cases and Civil Forfeiture: Adding More Consequences to Criminal Cases.

June 5, 2012 by  
Filed under Blog, Florida Criminal Law, Florida Lawyer

Criminal Cases and Civil Forfeiture: Adding More Consequences to Criminal Cases.

If you are charged with a felony in Florida, you are facing prison time, fines, loss of driving privileges, and a permanent criminal record.  However, there is one other consequence that doesn’t immediately come to mind, civil forfeiture.  Civil forfeiture is the taking of assets by the state that are either proceeds of a crime or instrumentalities of a crime.  Most often civil forfeitures occur in federal court or state court when there are instances of trafficking in large amounts of drugs or weapons.  Examples of assets that may be taken are cash, boats, vehicles, bank accounts, homes and any other assets used as an instrumentality of a crime or are the proceeds of the crime. 

The Florida Statutes that govern civil forfeiture require a state agency (usually a police department) to follow specific rules when seizing a vehicle for civil forfeiture.  Within 5 days of the seizure a letter must be sent via certified mail to the property owners stating the vehicle has been seized for civil forfeiture and stating that the owner has 15 days to request an adversarial preliminary hearing.  An adversarial preliminary hearing is an opportunity for the respondent (the person whose assets were taken) to argue the government does not have probably cause to seize the asset. 

If the judge rules there is probable cause for the government to seize the asset, the government then has 45 days from the date of seizure to file a complaint.  The respondent will then have 20 days to answer.  A respondent has the right to a jury trial if their property is seized by a government agency.  This trial will occur in the Civil Circuit Court and has no relationship to the criminal case.  Your criminal case may be dropped or you may win in trial and the government can still move forward in your civil forfeiture case.

Recently municipalities in Palm Beach County have begun to use this process in many drug cases.  For example, if you are pulled over for any valid reason and the police have a valid reason to search your vehicle, if they find any felony amount of drugs in the vehicle, your car can be seized for civil forfeiture.  That means if the police legally find minimal amounts of cocaine for personal use in your vehicle, they may take your car!  Florida courts have upheld this type of civil forfeiture.

If your property has been seized by a government agency in conjunction with a felony arrest, you need an experienced Palm Beach County criminal defense attorney to fight for your rights in both criminal and civil court. 

If you or a loved one have been arrested or a facing civil forfeiture, please contact Winston Law, P.A. at (561) 670-9375 or [email protected] for your free consultation.

What are my Miranda rights? How do they work?

May 10, 2012 by  
Filed under Blog, Florida Criminal Law

What are my Miranda rights? How do they work?

          As a criminal defense attorney, one of the most frequently asked questions I am asked is, the police did not read me my Miranda rights can my case be dropped?  In order to answer that
question, it is important to first explain the Miranda rights and where they came from.

Miranda rights were created in 1966 and came from a United States Supreme Court case, Miranda v. Arizona.  Several years earlier, in 1963, Ernest Miranda was arrested based on evidence linking him to the kidnapping and rape.  After two hours of interrogation by police officers, Miranda signed a confession to the rape charge. At no time was Miranda told of his right to counsel, and he was not advised of his right to remain silent or that his statements would be used against him during the interrogation before being presented with the form on which he was asked to write out the confession he had already given orally. At trial, when prosecutors offered Miranda’s written confession as evidence, his court-appointed lawyer, Alvin Moore, objected that because of these facts, the confession was not truly voluntary and should be excluded. Moore’s objection was overruled and based on this confession and other evidence, Miranda was convicted of rape and kidnapping and
sentenced to 20 to 30 years imprisonment on each charge. Moore filed Miranda’s appeal to the Arizona Supreme Court claiming that Miranda’s confession was not fully voluntary and should not have been admitted into the court proceedings. From the Arizona Supreme Court the case was sent to the United States Supreme Court and consolidated with several others having similar issues.

The United States Supreme Court debated the following question: Does the police practice of interrogating individuals without notifying them of their right to counsel and their protection against
self-incrimination violate the Fifth Amendment?  The Court answered that question by stating that no
confession could be admissible under the Fifth Amendment self-incrimination clause and Sixth Amendment right to an attorney unless the suspect, before interrogation, is clearly informed that he/she has the right to remain silent, and that anything he/she says will be used against them in court; he/she must be clearly informed that he/she has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he/she cannot afford a lawyer, a lawyer will be
appointed to represent him/her.

The key to understanding Miranda rights to understand the term “custodial interrogation.” Since the Miranda decision, Florida Courts and the United States Supreme Court have been working to define and explain the term.  It is important for people to understand that Miranda rights only have to be read when a suspect is in custody and being interrogated.

What does in custody mean?  The courts have determined it to mean “not free to leave.” If you are under arrest, handcuffed, in a police car, told to stay in one place and not to leave these situations
constitute not being free to leave.  Unfortunately, there are many situations that the law considers
consensual encounters with the police, in which the person involved in the encounter could leave but does not feel comfortable enough to exercise that right.  For example, when a police officer approaches you on the street and asks you questions.  Florida courts have determined in that situation that the person is free to leave and therefore not in custody for the purposes of Miranda warnings.  A knowledgeable and skilled criminal defense attorney can evaluate each individual set of circumstances to determine whether there is a legal argument that the average citizen would feel he/she was not free to leave.

Florida Courts and the Supreme Court have also tried to define the term interrogation
as it relates to Miranda rights.  An interrogation does not include questions such as your name, contact information or background information that does not directly relate to the suspected
crime.  Police can get into these questions without reading you Miranda.  Police could also ask you questions that could be considered interrogation, without reading your Miranda warnings, if you are not in custody.

Even if your Miranda rights have been violated, meaning you were in custody and
interrogated without being read the warnings, your case may not be dropped completely.  The first step for a criminal defense attorney to determine whether your Miranda rights have been violated is to determine whether you made a self-incriminating statements.  If you have not made any statements that incriminate yourself, there can be no challenge under Miranda.  The next step is to determine whether you were in custody at the time you made the incriminating statements.  If there is an argument that you were in custody at the time the statements were made, your attorney can file a Motion to Suppress.  A Motion to Suppress requests that the judge order the self-incriminating statements be kept out of evidence because the statements were collected in violation of Miranda.  If you win the Motion to Suppress and the self-incriminating statements are kept out of evidence at trial, it is still possible for the government to move forward with your case.  This will depend on what other forms of evidence the government has against you.  If the government feels it does not have enough evidence to prove its case without your statements, they will likely drop the case.  If there is enough evidence to move forward, the government will move forward in prosecuting the case, without the self-incriminating statements.

Every case is different.  That is why it is important to have a skilled, knowledge and experienced criminal defense attorney fighting for your rights.  If you or a loved one have been arrested or charged with a crime please contact Winston Law, P.A. at (561) 670-9375 or [email protected].