Moser & Moser, P.A.

~ Attorneys at Law ~

516 North Harbor City Boulevard

Melbourne, Florida  32935

321.733.7303

Criminal Law Information

 

CRIMINAL OFFENSES

We handle ALL criminal offenses at Moser & Moser, P.A.

At your FREE initial consultation appointment, we will provide you with additional information about the offense(s) of which you are specifically accused. When you call to schedule your initial consultation, you will be asked to provide the offenses for which you are seeking legal assistance and relevant instructional information will be ready for you at your appointment. At Moser & Moser, we want you to be completely informed about the legal process and the laws related to your case.

 

FLORIDA'S CRIMINAL PENALTIES

Imprisonment & Fines

    In Florida, crimes are defined and classified as either a misdemeanor or felony charge. Depending upon the type of criminal charge, the potential penalties differ greatly and are generally delineated in s. 775.082 and s.775.083 in the Florida Statutes. There are also minimum mandatory sentences and other mandatory penalties that may apply depending on the type of offense committed, criminal history, the victim involved, etc., which are authorized in chapter 775 and some other parts of the Florida Statutes.  If convicted, a person could be sentenced by a judge to any of the following maximum penalties (in addition to mandatory court costs, investigative costs, and other statutorily required or authorized sanctions):

    Misdemeanor charges are under the jurisdiction of county courts and are broken down into two different degrees: 

     Felony charges are under the jurisdiction of circuit courts and are broken down into five different categories: 

 

    In all felony cases, the state of Florida has created a very complicated scoring system pursuant to the Criminal Punishment Code and it's offense severity ranking chart in order to determine if an accused scores any mandatory prison time. Additionally, in cases involving either drug trafficking, a firearm, or assault of a law enforcement officer, as well as under other particular circumstances, there are minimum-mandatory sentences that must be imposed if a person is convicted.

 

Probation

    For both felony and misdemeanor cases, there is a possibility of receiving probation in lieu of, or in addition to, jail or prison time. If you are placed on probation, you must adhere to certain guidelines, which may include attending counseling or classes, paying fines and victim restitution, performing community service hours, as well as refraining from using drugs and alcohol and being randomly tested to determine your adherence thereto, or staying away from certain people or places, among many other conditions that can be imposed by the court. Although there are different types of probation with different levels of supervision, probation is supervised by a probation officer, who can be employed by a local probation provider for criminal-traffic and misdemeanor offenses or by the Florida Department of Corrections for felony offenses. Part of your supervision will include paying for your probation supervision as well as keeping a clean record, which means no arrests at any time during your supervision.

    Violations of probation, or VOP's, are serious charges. If you are convicted of a VOP, depending on the case, you can be sentenced to an extended term of probation or a more severe form of probation, or you can be sentenced to the maximum penalties of the original offense(s) you were convicted of and for which you were serving the probation sentence. This means that with a VOP, you are exposed to the possible sentence of the maximum prison time you could have received for your original offense.

    It is so important to place yourself in the hands of a skilled attorney for any criminal offense. An inattention to detail and a lack of concern about future risks and potential exposure to future harsh sentences if you slip up violate your community supervision can have earth-shattering results.

    Regardless of what type of criminal charges you may be facing, whether it be felony, misdemeanor, DUI, criminal-traffic, or violation of probation, you need an experienced criminal attorney on your side. You need a lawyer who is tenacious, considers all potential challenges and legal arguments, is an effective negotiator, and has a solid command of the courtroom to ensure you have the best outcome possible in your case. If your case leaves you no choice but to go to trial, hire an attorney who has more trial experience than the prosecutor!

Call Moser & Moser, P.A., at 321.733.7303 for the real help you need.

 

 

DUI - DRIVING UNDER THE INFLUENCE

 

    In the State of Florida, you commit the offense of Driving Under the Influence or "DUI" if you drive, or are in actual physical control of, a motor vehicle while under the influence of alcohol, a controlled substance under Chapter 893, Florida Statutes, or certain chemical substances, AND your ability to safely drive is impaired (as evidenced by your normal faculties being affected) OR you have a breath-alcohol level (BAL) of .08 grams or higher of alcohol per 210 liters of breath (or per 100 milliliters of blood if you have a blood test), as proscribed by s. 316.193, Florida Statutes. Technically speaking, you can still be guilty of DUI if your normal faculties are impaired, regardless of whether you take a breath-alcohol test or your breath or blood-alcohol test measures lower than a .08 BAL. You are also in violation of the DUI statute if you drive with any level of a controlled substance or certain chemical substances and your normal faculties are impaired.

 

    Your breath-alcohol level is determined by blowing into a breath-test machine, called an "Intoxilyzer" or "Breathalyzer," that is administered by a law enforcement officer who is trained and certified to give such tests. In Florida, for the "privilege" of driving upon the roads of Florida, there is an "implied consent" by drivers to submit to a breath, urine, or blood test if a law enforcement officer has reasonable suspicion that you have been drinking and has probable cause to arrest you and pursuant to a lawful arrest asks you to take a breath test or, under certain circumstances, another type of test to determine a person's blood-alcohol level or the presence of any controlled substance or certain chemical substances. If you refuse to submit to a breath-alcohol test, your driver's license is administratively suspended for one year upon a first refusal and 18 months upon a second-incident refusal, as per s. 316.1932, Florida Statutes.

 

A.  DUI - Florida Statutory Penalties:

 

1st DUI Conviction requires certain mandatory sentences such as:

 

    1.    A six-month driver license suspension;

    2.    DUI Program and an alcohol evaluation and completion of any referred subsequent treatment;

    3.    50 hours of community service;

    4.    A $500.00 fine plus court costs;

    5.    A ten day vehicle immobilization;

    6.    A six-month to 1-year probationary period;

    7.    A possible six month to two year vehicle ignition interlock device; and

    8.    A potential jail sentence up to six months.

 

    If a driver's is convicted for the first time, but his/her Blood Alcohol Level (BAL) is .15 or higher or the person is convicted for the first time and at the time of the first offense was accompanied by a person under the age of 18, the fine is increased to not less than $1,000 or more than $2,000, and potential jail sentence may be increased up to 9 months.  In addition to these increased penalties, the court must also impose the placement of an Ignition Interlock Device on a vehicle primarily used by the defendant for a minimum of 6 months up to 2 years.

If you have already been convicted of a prior DUI, the penalties that you may face will be greater and may include...

2nd DUI Conviction within 5 years of a prior conviction:

1.    Minimum of $500 of fines for a Blood Alcohol Level (BAL) under .15, or a minimum of $1,000 of fines for a BAL of .15 or higher or the offense

            was committed while accompanied by a person under the age of 18;

2.    Mandatory imprisonment of 10 days, with a maximum imprisonment of 9 months if your BAL is under .15, or 12 months if your BAL is

            .15 or higher or the offense was committed while accompanied by a person under the age of 18;

3.    A six-month to 1-year probationary period;

4.    DUI Program with substance abuse evaluation and completion of any referred subsequent treatment;

5.    Impoundment or immobilization of your vehicle for a minimum of 30 days;

6.    A minimum of a 5 year license revocation, with hardship reinstatement eligibility after one year; and

7.    Minimum 2 year placement of an Ignition Interlock Device on a vehicle primarily owned/used by the defendant.

 

 

2nd DUI Conviction, 5 years after your prior conviction:

 

1.    Minimum of $500 of fines for a BAL under .15, or a minimum of $2,000 and a maximum of $4,000 of fines for a BAL of .15 or higher or the offense   

            was committed while accompanied by a person under the age of 18;

2.    Maximum imprisonment of 9 months if your BAL was under .15 or 12 months jail if your BAL is .15 or higher or the offense was

            committed while accompanied by a person under the age of 18;

3.    A six-month to 1-year probationary period;

4.    DUI Program with substance abuse evaluation and completion of any referred subsequent treatment;

5.    Impoundment or immobilization of your vehicle;

6.    Minimum drivers license revocation of 180 days; and

7.    Minimum 2 year placement of an Ignition Interlock Device on a vehicle primarily owned/used by the defendant.

 

 

3rd DUI Conviction within 10 years:

 

1.    Maximum of $5,000 of fines and a minimum of $4,000 fine if your BAL is .15 or higher or the offense was committed while accompanied by a

            person under the age of 18;

2.    Mandatory imprisonment of a minimum of 30 days;

3.    A six-month to 1-year probationary period;

4.    DUI Program with substance abuse evaluation and completion of any referred subsequent treatment;

5.    Impoundment or immobilization of your vehicle for a minimum of 90 days;

6.    Minimum of 10 years drivers license revocation, with only a “hardship” DL eligibility after 2 years.

7.    Minimum 2 year placement of an Ignition Interlock Device on a vehicle primarily owned/used by the defendant.

 

 

3rd DUI Conviction, 10 years after your prior conviction:

 

1.    Minimum of $1,000 fine with a BAL of under .15 and a minimum of $4,000 fine if your BAL is .15 or higher or the offense was committed while

            accompanied by a person under the age of 18;

2.    Maximum imprisonment of 12 months;

3.    A six-month to 1-year probationary period;

4.    DUI Program with substance abuse evaluation and completion of any referred subsequent treatment;

5.    Impoundment or immobilization of your vehicle;

6.    Minimum of 5 years driver's license revocation, with hardship eligibility after 1 year; and

7.    Minimum 2 year placement of an Ignition Interlock Device on a vehicle primarily owned/used by the defendant.

 

 

4th or subsequent DUI Conviction, is a 3rd degree felony*:

 

     1.    Minimum of $2,000 fine with a BAL of under .15 and a minimum of $4,000 fine if your BAL is .15 or higher or the offense was committed while

                accompanied by a person under the age of 18, and a maximum of $5,000 fine;

     2.    Minimum of 30 days jail and up to 5 years in prison;

3.    A six-month to 5-year probationary period;

4.    DUI Program with substance abuse evaluation and completion of any referred subsequent treatment;

     5.    Vehicle impoundment for a minimum of at least 90 days; and

     6.    Permanent revocation of the defendant's driver's license.

 

* If a serious injury or death is involved in the DUI offense, the felony degree can be greater and the penalties would potentially be much more severe.

 

B.  DUI - Effect on Drivers License

1.  Administrative Suspensions

    Your drivers license is suspended by the Department of Highway and Safety Motor Vehicles (DHSMV or DMV) through the arresting officer upon your arrest for DUI and either blow over the legal limit (.08) or refuse to provide a blood, breath or urine test upon request by a law enforcement officer as authorized by s. 322.2615, Florida Statutes. The ONLY way to avoid this suspension is to request a review of the suspension within 10 days of the issuance of notice of suspension by DHSMV which is in conjunction with the taking of your license by law enforcement at the time of arrest. If you do nothing, your license will be suspended as follows:

 

You can challenge this suspension by requesting a formal review hearing within 10 days of your arrest. During this 10-day period your DUI ticket is a driving permit if it is marked yes in the "eligible for permit" box of the ticket. If you do not make the formal hearing request within the 10-day time frame, then you waive your right to challenge your suspension and a "hard suspension" of your license will begin. If the formal review is requested, the DMV will send a temporary driving permit out to our office that allows you to drive in limited circumstances until seven days after the hearing is heard and final order rendered.

 

    a.)    DMV Hearings

    At the formal review hearing, a hearing officer at the DMV will decide if the police have provided them with enough information to suspend your license. If they decide in your favor then your suspension will be taken off of your record and there will be no more hardship driving. However, if the hearing officer does not find in your favor, then you will begin a "hard suspension" effective when the temporary driving permit expires. The "hard suspension" is either for a 30-day, 90-day or 18-month period of time i.e., this is the time where DMV will not allow one to drive under any circumstance.

 

    b.)    DMV Penalties

    After your DMV Hearing, your license suspension will either be invalidated or it will be sustained, depending on the facts and circumstances of your DMV Hearing. If your license suspension is invalidated, then you will be eligible to have your license reissued upon receiving the hearing officers ruling. If your license was suspended because you "blew" over a .08 and the suspension is sustained, then you will have 30 days of no driving, after which you may apply for a "hardship permit." If your license was suspended because you refused to take a Breathalyzer, and the license suspension is sustained, then you will have 90 days of no driving, after which you may apply for a hardship permit.

 

2.  Court-Imposed DL Suspensions

    Upon conviction for DUI, a court imposing the sentence for a conviction can/will impose a driver's license suspension as part of the penalties it imposes pursuant to the DUI conviction. The conviction can come as a result of a plea of "No Contest" (Nolo Contendre) or "Guilty," or by finding of guilt by a judge or jury pursuant to a jury or "bench" (non-jury) trial. The length of suspension imposed by the court must comply with the minimum mandatory requirements of the Florida Statutes, but the court can exceed the minimum mandatory suspension period if it deems appropriate under the particular circumstances. See the potential DL suspension penalties above under "DUI-Florida Statutory Penalties" heading to see the applicable minimum mandatory DL suspensions for the applicable first or subsequent DUI convictions.

    DUI is a serious offense in the State of Florida, which resulted from a quick, bad decision that landed you behind of the wheel of a vehicle.  The penalties, fines, and long lasting effects from being charged and convicted of a DUI cannot be understated.  You need an experienced criminal attorney on your side - one who is considering all present and future possibilities, possible defenses, technical requirements, and the legality of the evidence gathered by law enforcement, to ensure you have the best outcome possible in your case. If your case leaves you no choice but to go to trial, hire an attorney who has more trial experience than the prosecutor!

Call Moser & Moser, P.A. at 321.733.7303 for the help you need.

 

 

 

TERMINOLOGY In Criminal Cases - GLOSSARY of TERMS

 

Arraignment - The proceeding where the accused/defendant appears before a judge and is formally and officially notified of which criminal offenses he or she is charged with and enters a formal plea to the charges. If a defendant remains in custody, they must be arraigned within 48 hours.

 

Appeal - Subsequent to a final/dispositive judgment in a case (unless it' an interlocutory appeal), this is the process whereby a higher court reviews the actions of a lower court for the purpose of determining error, if any, by the lower court. The higher court receiving the appeal can either affirm or overturn the lower court's ruling or refuse to hear the appeal on procedural grounds.

 

Arrest - An instance where law enforcement detains a person in any way to make it clear that the person is not free to leave. A law enforcement officer must have probable cause to believe that a person has committed a crime in order to lawfully arrest a person. When a person is arrested, law enforcement must give a person their "Miranda warnings" before they can lawfully ask questions about the person's involvement or knowledge of a crime.

 

Bail - In criminal cases, where a person has been arrested, a sum of money is posted by or on behalf of a defendant to guarantee his appearance in court after being released from jail. Bail can be all cash, or through a bail bondsman, the use of collateral can be used to guarantee (surety for) the total amount of bail to secure a person's release from jail pending his/her appearance in court.

 

Bail Bond - Money that is given to the court by a "bondsman" to guarantee a named defendant will appear in court at his or her appointed time.

 

Bondsman - A person who charges a fee (usually 10-15%) for posting the bond. If you do not appear in court when you are supposed to, the bondsman may lose his or her money or property through forfeiture/estreature. When this happens, the bondsman will look for the person and bring them back to court, forcefully if necessary, in order to get their money back.

 

Booking - The process a defendant must go through with the police after arrest, which includes taking photographs and fingerprints.

 

Calendar Call - In criminal cases, these hearing dates are set for the purpose of determining if there are any outstanding issues for scheduling purposes because you case has been set for trial the day/week of your calendar call date. This date is the establishment of the certainty of your case going to trial that same day or week.

 

Capias - Also called "Bench Warrant," which is a warrant issued by a judge to take a person into custody via arrest when a person has failed to appear in court.

 

County Court - In criminal cases, a county court has jurisdiction, or "power," over traffic, criminal-traffic, and criminal misdemeanor cases, whereupon the potential fine (excluding other mandatory costs) for a charge would not exceed $1,000 and incarceration would not exceed one year in the county's correctional facility (jail).

 

Circuit Court - In criminal cases, a circuit court has jurisdiction, or "power," over criminal felony cases, whereupon, depending on the level of felony committed, the potential fine (excluding other mandatory costs) for a charge could be up to $15,000 and incarceration could be incarceration for life a state correctional facility (prison) or potentially execution if convicted of a capital felony.

 

Deposition - The taking of testimony of a witness under oath, outside of court, which is transcribed in writing by a court reporter or, occasionally, on video recording. A deposition can occur in a variety of locations, but frequently occurs in attorney offices.

 

Disposition - The outcome of a case which may be by judge or jury decision, by settlement/plea, or by action of the prosecutor (to not file formal charges or to drop/nol pros the charges). In juvenile court it is the order determining what is to be done with a minor already adjudged to be within the court's jurisdiction.

 

Docket Sounding - This is a court hearing where the court is essentially conducting a "status check" on a case to ascertain what the defendant intends to do next on his or her case. Docket Sounding hearings ensures that a case does not languish in the court system and that movement toward a disposition is being achieved. A variety of things may occur at a Docket Sounding hearing, including, but not limited to:

Felony - A classification of a crime that is more serious than a misdemeanor. They are crimes punishable by a term of imprisonment of not less than one year and/or a fine of $1,000 or more, depending on the felony classification, and may be punishable by death. See "Felony" under the "Criminal Penalties" heading above for a more detailed explanation.

 

First Appearance - A judicial proceeding that occurs at a jail, or where a judge appears via video link at the jail, where persons who have been arrested and placed in jail come before a judge and are informed of the criminal charges against them. At this time they are informed of their rights to legal counsel and to bail. A person is not allowed to plea to criminal charges at this time.

 

Indictment - After being presented with the preliminary evidence against a defendant, the resulting formal charges from a grand jury, which may be convened by the prosecution.

 

Information - The formal charging document that charges a defendant with one or more criminal offenses, which is issued by the State Attorney's Office.

 

Judicial Circuit - In Florida, the state is divided into 20 jurisdictions, or "judicial circuits," for the purpose of court administration. This administration includes the actual courts operating within those jurisdictions, which includes the circuit and county courts and the judges therein, the Court Administrator, the Clerk of Court, the State Attorney, and the Public Defender. The boundary lines for judicial circuits follow county lines; a judicial circuit may be made up of only one county or may include multiple counties. Brevard and Seminole Counties make up the 18th Judicial Circuit.

 

Jury - A chosen group of people who are fact-finders in a trial and apply the law, as instructed by the judge, to decide on a verdict/acquittal in a trial. In nearly all criminal cases, six (6) people serve on a jury. However, twelve (12) people serve on a capital case. Juries typically have alternate jurors who also sit throughout the trial, but they are released from duty when the jury retires to deliberate at the end of the trial.

 

Miranda Warnings/Rights - A series of warnings read by law enforcement that encompass constitutional rights an accused has, including the right to remain silent (what you say can and will be used against you in any judicial proceedings) and the right to speak to an attorney before they make any statement or answer questions. These "warnings" are derived from a 1966 U.S. Supreme Court ruling in Miranda v. Arizona.

 

Misdemeanor - A classification of a crime that is less serious than a felony. They are punishable by incarceration in the county jail of up to one year and/or a fine of up to $1,000. See "Misdemeanor" under the "Criminal Penalties" heading above for a more detailed explanation.

 

"No Contest" Plea - This plea is from the Latin phrase "Nolo Contendre," which means that you are neither entering a plea of "guilty" (admitting guilt) nor "not guilty" (denying guilt) but that you are "not contesting" the charge and you are moving the case to disposition and sentencing by the court.

 

"No Information" - This a formal declaration by the State Attorney that no formal charges will be filed on a particular offense or offenses.

 

"Nol Pros" - This is from the Latin phrase "Nolle Prosequi," which is the action of the State Attorney when they officially "drop" a criminal charge or charges against a person after a person had been formally charged with an offense by either an Information or with another charging document, such as a "Notice To Appear."

 

Plea Bargaining - The negotiations between a prosecutor and defense attorney that can result in a particular sentence or combination of penalties in exchange for a defendant pleading to one or more criminal offenses.

 

Pre-trial Conference Hearing - This is a hearing before the court whereupon a variety of things can happen, which include, but are not limited to, entering a plea and the court imposing the sentence, setting the case for trial, or setting the case for an evidentiary hearing (ie. Motion to Suppress, etc.)

 

Probation - A sentence, or portion of a sentence, where a defendant is required to comply with conditions (requirements) imposed by the court. A probation officer supervises/monitors the probationer to insure that the probationer complies with the court's sentence. If a defendant violates his/her probation, a potential penalty is the maximum sentence of the original offense(s) for which the defendant was sentenced and received the probation sentence.

 

Restitution - Court-ordered payment by the defendant to the victim for the purpose of reimbursing the victim for loss or costs caused by the defendant.

 

Sentence - The judgment formally pronounced by the court to impose the punishment upon the defendant after conviction in a criminal prosecution case.

 

Status Hearing or Status-Check HearingSome judicial circuits use this name for the type of hearing that other judicial circuits (including the 18th judicial circuit) call a "Docket Sounding Hearing." This is a court hearing where the court is essentially conducting a "status check" on a case to ascertain what the defendant intends to do next on his or her case. Status Hearings ensures that a case does not languish in the court system and that movement toward a disposition is being achieved. A variety of things may occur at a Status Hearing, including, but not limited to:

 

Subpoena - An official order to appear in court (or at a deposition) at a specific time. Failure to obey a subpoena to appear in court is potentially subject to being held in contempt of court.

 

Summons - An official notice on behalf of the court to a particular person that a court action has been commenced against him or her and that he or she is required to appear in the particularly named court to on the specified date and time to answer the criminal complaint/charges against him or her.

 

Testimony - Evidence given/spoken by a competent witness, under oath, which is given in open court or some other proceeding, such as a deposition.

 

Warrant - A written order issued and signed by a judge, which allows law enforcement to search a place and seize specified items found there (search warrant) or to arrest and detain a specified person (arrest warrant).

 

 

Call us at 321.733.7303 for a FREE consultation with a Criminal Defense or DUI Attorney.

We'd be honored to help you.

 

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MOSER & MOSER...protecting your rights, interests, & pursuit of happiness.

 

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Our Melbourne Office is centrally located to serve all of Brevard County

in Criminal, DUI, Driver's License, & Traffic Matters.

 

We serve clients from Melbourne, Palm Bay, Rockledge, Viera, Merritt Island, Cocoa, Cocoa Beach, Patrick Air Force Base, Satellite Beach, Indialantic,

Indian Harbor Beach, Melbourne Beach, Malabar, Palm Shores, Titusville, Sharpes, Port St. John, Grant, Valkaria, Micco, and Mims,

or wherever you may be, including out-of-state clients, and need legal assistance in Brevard County, Florida.

 

 

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Note: The information contained in this web site is intended to convey general information about the law, which is subject to interpretation and change. It should not be construed as legal advice or opinion. Any time-sensitive or confidential email sent via the Internet using email addresses listed in this web site would not be confidential under the attorney-client privilege, may not be treated in a time-sensitive manner, and would not create an attorney-client relationship. The hiring of a lawyer is an important decision that should not be based solely on advertisements. Before you decide, ask us to send you free written information about our qualifications and experience or call us at 321-733-7303 to meet us in a FREE initial consultation to discuss our qualifications and experience and your legal issue.

MOSER & MOSER, P.A.

~Attorneys At Law~

516 North Harbor City Boulevard

Melbourne, Florida  32935

321.733.7303