Arrests, Investigations, and Forfeiture Hearings
Know Your Rights? Protect yourself. Call Us (407) 408-0494.
Just because you have been arrested does not mean you have been charged or convicted. Our Orlando criminal trial attorney Shayan H. Modarres will protect you by upholding your constitutional right to the presumption of innocence.
The legal team at The Modarres Law Firm will conduct a thorough investigation prior to your arraignment and present our findings to the state attorney. This may lead to a reduction or dismissal of charges against you.
If your charges are pending, but you have not yet been arrested, our law firm will arrange for a more discreet surrender to the authorities and pursue a reasonable bond or a release on recognizance (ROR).
What are Miranda Rights?
Miranda Rights, also known as Miranda Warnings, are a series of statements that a police officer is required to recite to anyone who is being placed under arrest – especially those facing potential DUI charges. These statements inform the person who has been drinking and driving of their constitutional right not to answer potentially incriminating questions and include:
You have the right to remain silent.
Anything you say may be used against you in a court of law.
You have the right to an attorney.
If you can’t afford an attorney, one will be appointed to you.
Why Are Police Officers Required to Read a Person Facing Criminal Charges Their Miranda Rights?
Once you have been placed under arrest for a criminal offense, the officer must read you these rights in order to be able use anything you say from the point of arrest forward against you in a court of law. If you are facing DUI charges, you can request what is called a Miranda hearing. During the hearing the prosecuting lawyer must be able to prove that your Miranda Rights were read to you properly, that you understood them, and that you knowingly waived them and answered the questions or made the statements regardless.
When are Miranda Rights read to someone facing DUI charges?
The minute you are placed under arrest for drinking and driving, your Miranda rights must be read to you and that is when they take effect. However, be advised that prior to arrest or the police officer forming probable cause to arrest for a DUI charge, the officer may freely ask you questions without reading you the Miranda Rights. In fact, many police officers trained in issuing DUI charges will try to get as many incriminating answers as possible during the pre-arrest investigation phase. Additionally, many officers will wait to arrest you until after all the field sobriety tests are conducted in order to establish probable cause for arrest because if the officer reads you Miranda Warnings before the field tests, it will be difficult to justify doing the tests after that. What purpose do they serve if the officer already had probable cause?
Will the Police Officer Go Easier on Me for DUI Charges If I Talk?
Someone being suspected of DUI charges is not required to speak and may simply say they “I would like to speak with a lawyer”. At that point, if the police continue to question the suspect, the police may be in danger of violating the DUI suspect’s Miranda Rights and anything the DUI suspect says after the violation will usually be inadmissible as evidence in court. However, police officers will often tell those who have been drinking and driving that they will go easier on them if they talk. Be advised that the police have no control over what happens to you after you have been arrested. Whether or not you will be issued DUI charges is up to the State or Federal prosecutor, a potential jury, and the presiding judge. Accordingly, if you are arrested and accused of drinking and driving, you are advised not to talk with anyone other than your DUI defense lawyer otherwise your case may be more difficult to defend. It is almost always easier for a DUI defense lawyer to defend a case when the person facing DUI charges has not given a statement to the police.
Forfeitures (Assets / Cash)
Vehicle forfeitures are subject to a far less stringent standard than that of a criminal court to obtain a conviction. More and more police departments in Florida are utilizing forfeitures of cash and assets as an alternative method of generating increased revenue. In Florida, forfeiture is governed under the forfeiture statute of Section 932.701-932.707 Florida Statutes.
Under the Florida Contraband Forfeiture Act it can be very difficult to disprove probable cause and have your vehicle or cash returned to you, but with a knowledgeable attorney it is possible. One method, which may be your best shot, would be to just negotiate with the law enforcement agency. They may charge you a fee depending on what the car is worth, but every law enforcement agency is different. Some will discount Kelly Blue Book value by 50-75% (if your car’s Kelly Blue Book is $10,000, they may charge you $2,500-$5,000 to return it to you… the alternative would be hiring a law firm to represent you in a civil trial which may cost upwards of $10,000). In limited circumstances, no offer will be made at all and law enforcement will turn the car over to the financing bank that holds the lien. At that point, the bank may not return the car unless you pay the balance in full (if you were able to pay the full balance, surely you would have instead of making monthly payments right?).
Forfeiture Procedure
After your vehicle (or asset) has been seized by law enforcement as a forfeiture, the government must send you proper notice explaining your right to a Preliminary Adversarial Hearing. At the Adversarial Hearing, the government must prove by clear and convincing evidence that the car (or asset) is subject to forfeiture (See Below for an example “Notice” and example “Request for hearing”). This is usually not a very high burden for the government to meet (unless there is a 4th Amendment search/seizure or illegal stop issue, which may be your best chance at winning this hearing). The disposition of this hearing will not effect a future civil lawsuit against the law enforcement agency for the return of your property, so if you lose at the hearing, all hope is not lost.
Once your attorney has demanded the Preliminary Hearing for you, the law enforcement agency/government should set the hearing with a judge within 10 days. The law enforcement agency must prove a ‘nexus’ between your car/property and the alleged illegal activity, creating a reasonable belief that the car was used or intended to be used in violation of the Contraband Forfeiture Act. For example, in Duckham, no drugs were ever found in the defendant’s car, no drug deals were made inside of the car, but the defendant used the car to go to and from drug transactions, so the Court ruled that the car was subject to forfeiture. (See Duckham v. State, 478 So.2d 347 (1985)).
A common defense is known as the “innocent owner” which may result in return of the car/property if your attorney can prove that the owner of the vehicle did not know the car was being used in criminal activity. However, if the Court finds that the owner should have known the car was being used in the commission of a criminal activity, the forfeiture may be upheld. In some circumstances, your attorney may argue that the seizure amounts to an execessive fine, arguing both a ‘Proportionality test‘ and an ‘Instrumentality test‘. The proportionality test compares the fines that could be imposed versus the value of the car/property. The instrumentality test examines how the car was used. See In Re: 1990 Chevrolet Blazer (684 So.2d 197 (Fla. 2d DCA 1996)).
There are a lot of legal arguments and theories that can be used to return your car/property. Hiring The Modarres Law Firm may save you a lot of money in the long run. THE MODARRES LAW FIRM (407) 408-0494.
If you have been arrested by law enforcement, are being investigated for a crime or are facing forfeiture of your car/property, The Modarres Law Firm will help you protect your rights that could be easily lost without the help of an experienced and aggressive criminal defense attorney. Protect yourself, call us now. (407) 408-0494.
Copyright © 2013 The Modarres Law Firm – Orlando Florida Defense Lawyers – Central Florida Criminal Defense Attorneys – All rights reserved. Orlando Criminal Lawyer Disclaimer: The civil rights, criminal, criminal defense or other legal defense information presented at this site should not be considered formal legal advice nor the formation of a lawyer or attorney client relationship. Our criminal defense law firm serves the following communities, among others: Orlando, Pine Hills, Apopka, East Orlando, West Orlando, Conway, Bay Hill, Doctor Phillips, Belle Isle, Pine Castle, Oviedo, Ocoee, Winter Park, Winter Springs, Maitland, Eatonville, Winter Garden, Southeast Orlando, Southwest Orlando, Casselberry, Altamonte Springs, Maitland, Apopka, Sanford, Seminole County, Orange County, Heathrow, Lake Mary, Longwood, Midway, UCF, University Park, Thornton Park, Baldwin Park, Colonial Drive, Orange Avenue, Robinson Street, S Orange Avenue, Downtown Orlando, Alafaya Trail, University Blvd, Curry Ford, Lake Underhill, Goldenrod Road, Dean Road, Chickasaw Trail, Pershing, Semoran Blvd, Lake Margaret, Conway.
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