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Everybody has heard of Miranda rights, but few actually understand what they are and what they do. You may be surprised to learn that police officers do not always have to read you your Miranda rights when they are questioning or even arresting you?  Sounds crazy, but it’s true.  

The name “Miranda” came from the landmark United States Supreme Court case Miranda v. Arizona in 1966. The issue was whether police officers had to advise a person of his or her Constitutional rights before questioning them about a crime.  What constitutional rights?  The Fifth Amendment to the Constitution provides the constitutional right against self-incrimination.  In other words, the government can’t make you tell them anything that may incriminate you.  And the person must be told that he or she has the right to consult with an attorney to discuss the Fifth Amendment right.  So, out of the Miranda case, came the Miranda rights or warnings that we all have become accustomed to when someone is arrested.

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But Miranda rights only relate to custodial interrogation and the right against self incrimination.  So, if you don’t incriminate yourself, no Miranda rights are required.  And law enforcement must only advise you of your Miranda rights before interrogating you in a custodial setting.  Whether a person is in custody depends on what a reasonable person in the person’s place would believe that they were in custody.  So if officers don’t interrogate you or it’s not in a custodial setting, then they don’t have to read you your rights.  

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Starting July 1, 2024, the laws relating to Racing on Highways in Florida are changing.  The Florida legislature has increased the penalties and created new provisions that will affect anyone charged with this crime.  

The crime of racing on the highways includes a lot of activities including racing, street takeovers, stunt driving, speed exhibitions and more.  It applies to highways, roadways, and parking lots.  An officer doesn’t need a warrant to make an arrest.  And even a first time offense will result in a mandatory driver license revocation for at least 1 year. 

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In federal criminal courts, when a person is convicted of a drug offense with a minimum mandatory sentence provision, there are only two ways that allow a federal judge to go below that statutory minimum mandatory sentence: a 5K motion filed by the federal prosecutor if the client provides substantial assistance to the government or the safety valve provision of 18 U.S.C. §3553(f).  Congress recently broadened the safety valve provision and one particular section has been subjected to intense litigation resulting in varying outcomes from the various circuits.  

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If otherwise qualified under different subsections, a person is eligible for the safety valve, and therefore a sentence below a statutory minimum mandatory sentence under §3553(f)(1) if:

  1. The defendant does not have –
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Close-up of the U.S. ConstitutionEvery person charged with a crime in the United States is entitled to a speedy trial.  This is a federal constitutional right guaranteed by the Sixth Amendment to the United States Constitution which states, [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”  The State of Florida also made this a state constitutional right in Section 16 of the Florida Constitution, which states that in all criminal prosecutions the accused shall, upon demand…shall have the right…to have a speedy and public trial…  

The Florida Supreme Court adopted Florida Rule of Criminal Procedure 3.191, which provides that every person charged with a crime be brought to trial on a misdemeanor within 90 days of arrest on a misdemeanor and within 175 days of arrest on a felony.  The Rule states that the time period commences when the person is taken into custody, which is defined as “when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged;”  There are exceptions to these timeframes and the most common exception is when the person charged waives their right to a speedy trial.  There are valid reasons to waive that right.  Basically, a person is not entitled to have their cake and eat it too.  In other words, a person charged with a crime is going to need time to investigate the case, to potentially take depositions, to conduct legal research, to file motions and have motion hearings, and to otherwise conduct pretrial negotiations and/or litigation.  So, if a person demands a speedy trial, that person is necessarily not going to have additional time to prepare a defense.  So, in most cases, a person charged is going to move to continue the case to allow for preparation.  However, what happens when the time has expired before the person has waived his or her right to a speedy trial?

In State v. Williams, Ms. Williams was arrested on October 8, 1999.  The State filed formal charges on May 3, 2000, which was 206 days after her arrest.  Ms. Williams filed a motion for discharge alleging that the State failed to bring her to trial within the time allowed by Florida Rule of Criminal Procedure 3.191.  Under subsection (p)(3), the defendant can file a notice of expiration of speedy trial and then the trial court must conduct a hearing within five days and set the case for trial within 10 days.  This is referred to as the “recapture period.”  So, the trial judge treated the motion for discharge as a notice of expiration of speedy trial and held a hearing and scheduled the case for trial within 10 days.  Ms. Williams objected, arguing that she should have been discharged because the time frame had expired.

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The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures.  Police officers can’t simply walk up to any citizen and detain or arrest that person.  There must be reasonable suspicion or probable cause that the person has, is, or is committing a crime in order to detain or arrest them. 

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Typically, if a police officer wants to make an arrest, they must seek an arrest warrant.  In order to obtain an arrest warrant, the officer must establish to a judge that there is probable cause that a crime occurred and that the defendant committed the crime.  The judge will then issue an arrest warrant if the judge determines there is probable cause exists.  

However, a police officer does not always have to obtain an arrest warrant in order to make an arrest.  There are exceptions to the arrest warrant requirement.  Florida Statute §901.15 lays out when an officer can make an arrest without an arrest warrant. There are many exceptions to the arrest warrant requirement.  For example, an officer doesn’t need a warrant to arrest a person for driving under the influence.  The officer can simply make the arrest once observing all of the elements of the offense.

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A major issue in DUI cases has not been fully fleshed out and has caused a lot of confusion among practicing criminal defense attorneys and judges.  When a driver is pulled over and the officer has reasonable suspicion that the driver is under the influence of alcoholic beverages or drugs, does that officer have to obtain voluntary consent before requesting that the driver submit to field sobriety exercises?  

The leading case on this issue comes out of the Second District Court of Appeals.  In State v. Liefert, 247 So.2d 18 (Fla. 2d DCA 1971), the Second DCA held that when an officer has sufficient cause to believe a driver committed a DUI, the driver’s consent to taking field sobriety exercises is immaterial and the officer can require that the driver submit to them, or the refusal can be used against the driver as evidence of consciousness of guilt. 

dui-law-300x200In Liefert, an officer observed Mr. Liefert weaving across two lanes of traffic.  The officer pulled Mr. Liefert over and noticed an odor of alcoholic beverage.  The officer asked Mr. Liefert if he would take some physical sobriety tests and Mr. Liefert agreed.  Mr. Liefert was arrested, based in part on the results of the sobriety tests and Mr. Liefert filed a motion to suppress all evidence obtained as The trial court granted the motion finding that the officer did not advise Mr. Liefert of a right to refuse to take the tests.  

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The Florida Legislature has granted immunity from prosecution to any person who acted in lawful self defense.   Fla. Stat. §776.032 provides that any person who acts with justifiable use of force is immune from criminal prosecution and civil action.  “Criminal prosecution” includes arrest, detention and being charged or prosecuted.   

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So, how does that work exactly?  Who decides whether a person was acting in lawful self defense?  Initially, it is the police officer investigating the case.  The officer determines whether the person is immune from arrest because that person acted with justifiable use of deadly force.  §776.032(2) lays out the procedure for a police officer to use standard procedures for investigation, but provides that the officer may not arrest the person unless the officer determines that there is probable cause that the force used or threatened was unlawful.

If the police officer determines that the use of force was not justifiable and makes an arrest, the defendant gets a second bite at the apple.  The defendant can file a motion to dismiss, pursuant to Fla. Stat. §776.032.  At a hearing on the motion to dismiss, the trial judge would hear testimony, receive evidence and make his or her own determination whether the defendant is immune from prosecution.  §776.032(4) lays out the procedure for hearings before a judge.  Once a defendant makes a prima facie claim of self defense, the government then has the burden by clear and convincing evidence to show that the defendant is not immune from prosecution.   So, a defendant would file a motion claiming that he or she was acting in self defense along with the facts to support the claim.  If, on its face, the claim would result in justifiable use of force, the burden shifts to the prosecutor to show by clear and convincing evidence that the use of force was not justifiable.   If the judge denies the motion, the case could go to trial where a jury would decide whether the defendant is guilty of the crime or not guilty based on the use  of justifiable force.  A third bite at the apple.  

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