ARREST AND BOOKING – ANATOMY OF AN ARREST IN FLORIDA, PART III

December 30, 2010 Leave a comment

You’re Under Arrest…

If the authorities decide that they have probable cause in your case and decide to proceed with charges against you, they are going to have to get you into the courthouse in some fashion.  There are three ways that this can be accomplished:

1)     The police officer can give you a Notice to Appear for certain first or second degree misdemeanors or municipal ordinance violations.  This means that you will not be handcuffed and taken to jail and your booking photograph will not be displayed on your local Sheriff’s web site for the rest of your life.  Instead, the officer will hand you a notice with the date, time and location of your first court date, called an Arraignment.  You should hire an attorney if you have not already done so at this point.  At any rate, do not miss your court date or an arrest warrant, called a capias, will be issued for you by the judge.

2)     The prosecutor will get an arrest warrant for you, based upon a sworn affidavit and signed by a judge.  Any sheriff’s deputy or police officer in Florida will be able to arrest you once an arrest warrant is issued.  Typically the police in your town or county will be notified of the warrant and they will come to your residence or work place to take you into custody.  If the police have an arrest warrant, or a search warrant, they can come into your home without permission in order to grab you, as long as they have probable cause to believe you are in there.  They can even break the door down, if they have a warrant. As long as they have the correct address, they won’t have to pay to fix the door either.  If this ever happens to you, you should be cooperative with the police and remain silent, other than giving them your correct name and date of birth.  If you have an attorney, he or she will probably be able to arrange a time and place for you to turn yourself in so that you can arrange your affairs and not have to be dragged from the house in front of your family or from your workplace.  Sometimes an attorney will be able to arrange for you to turn yourself in at court and ask the judge for a reduced bond or release on recognizance (ROR) immediately.

3)     The police may feel that they have sufficient probable cause to arrest you without a warrant.  This is possible under Florida law if the crime involved is a felony, or a misdemeanor which allows for probable cause arrest under the Florida statutes.  In this case, the police officer will either come to your home, workplace, or other location where you can be found and place you in custody.  The officer may relay the probable cause to another police officer, who is allowed by law to then arrest you if you are found.  The police cannot enter your home in order to search for or arrest you without permission, a search or arrest warrant, or without some emergency condition leading to exigent circumstances requiring entry to a private residence.  However, you are best advised to cooperate with the police and above all, to get an attorney.  Hiding from an arrest warrant places you on fugitive status and has many negative implications, ranging from a life on the run, susceptibility to immediate arrest and detention anytime you are stopped for a minor traffic infraction, to an inability to receive Social Security benefits.

Turn Around and Put Your Hands Behind Your Back…

If you are ever placed under arrest you will likely hear those words and you will be handcuffed.  Most, if not all, police agencies have policies in place that require all persons placed into custody to be handcuffed, so try not to take it personally!  The law also allows the officers to search you and the area within your immediate presence and if illegal items or evidence is found, to keep it.  If you are being arrested by the officer or detective who is investigating your case, you may be read your Miranda rights and then asked questions about your case.  As before, your response should be to politely decline to answer those questions and ask for an attorney.

Eventually an arrested person will be taken to a jail and booked in.  Florida law requires that an arrested individual be taken to the jail in the same county where they were arrested.  If this is different than the county that issued the warrant, you will eventually be transported to the jail where your charges are from, unless you are able to bond out.   At the jail, you will go through the booking process where your fingerprints and photograph are taken and all the paperwork is completed.  Depending upon the time of day and the number of other people being booked in, the booking process can take up to several hours.  During this process the jail officers will usually be able to set a bond amount for your case.  If a criminal case involves extremely serious charges, or if there is some reason that the police are afraid that a person may not show up for court or is dangerous, a bond may not be set.  For the most minor offenses, some counties permit the jail personnel to give Release On Recognizance (ROR) to local residents.   While you are going through the booking process, you will be given opportunity to make telephone calls to relatives or friends, bail bondsmen and attorney’s offices.

Under the law of Florida, you must be taken before a judge within 24 hours of your arrest for your first appearance, also called an Advisory Hearing.  The purpose of this hearing is for the judge to examine a sworn statement by the police or prosecutor which gives the facts and laws supporting the arrest.  If the statement has sufficient facts to show that more likely than not a crime has been committed, then the judge will find that there is probable cause to keep you in jail.  The judge will also read you the charge and ask if you have an attorney.  If you do not and you meet the financial criteria to be declared indigent, then the judge will appoint a Public Defender to represent you.

If you don’t get ROR, you will have to sit in the jail for the rest of your case until you post your bond.  The bond is to insure that you will return for your court dates while your case is pending.  You may either post the full amount of the bond yourself (keep in mind that any future court fines, costs and restitution will be deducted from your cash bond before the rest is released to you at the end of your case), or you can call one of the many bail bondsmen in the Tampa Bay area to arrange for them to post the bond for you. The bail bondsmen generally charge 10 to 15% of the bond amount for this service, and sometimes may require that you sign an automobile or home over to them as collateral. Call several bondsmen and get quotes from them before deciding which to hire if the first one sounds too expensive.

After you have been released from jail, you need to find and hire an experienced criminal defense attorney. You can find my advice on how to go about locating, interviewing and hiring the best attorney for you in my blog articles, HOW DO YOU FIND AN ATTORNEY FOR YOUR CASE?; HOW DO YOU CHOOSE WHICH ATTORNEY? and DEMYSTIFYING LEGAL FEES.

Garry L. Potts is a former 15 year prosecutor and former insurance defense trial lawyer. Garry L. Potts handles legal matters in the following practice areas: Criminal Law, Civil Practice, Driving While Intoxicated, Breath test Refusals, Drivers License Revocations or Suspensions, Assault and Battery, Felonies, Misdemeanors, Sealing & Expungement, Traffic Violations, Theft, Personal Injury, Automobile Accidents, Wrongful Death, Family Law, Child Custody & Support, Divorces, Wills, Trusts and Probate. With over 22 years of experience and more than 100 jury trials, Garry Potts is one of the most experienced attorneys in the Tampa Bay area.

INSUFFICIENT PROBABLE CAUSE – ANATOMY OF AN ARREST IN FLORIDA, PART II

December 22, 2010 Leave a comment

What Happens If They Don’t Have Enough Evidence to Arrest Me?

Assuming that the police have conducted their investigation and they still don’t believe they have probable cause to arrest anyone, they can follow one of the following procedures.  One, they can close their file and forget about it.  Or, they can leave the file open hoping to collect more evidence later.  Finally, they can refer the case to the prosecutor by scheduling what is called in Pinellas and Pasco Counties a “non-arrest investigation”.

It’s a Little Like the Game of ‘Hot Potato”

A non-arrest investigation simply means that the police are punting the case to the State Attorney’s Office for them to decide if there is enough evidence to warrant an arrest and prosecution.  The prosecutors will examine the evidence, often speaking to witnesses themselves, and eventually decide whether to drop the case or to proceed by obtaining an arrest warrant.  This is a crucial point in any criminal investigation where a good experienced criminal defense attorney can help greatly.  The time period during a State Attorney investigation, before the prosecution has made up their minds on whether to charge the crime or not is the easiest time to attempt to  convince them to drop the case.  Once the prosecution has decided to proceed with filing a charge with the court, it becomes their decision and they often feel bound to stick with it rather than admit that they made an error.  Once the prosecutor files the charge, the train has left the station and its much harder to stop it.

Communication is a Good Thing

Prosecutors tend to be a little more objective about the facts of a criminal case than police often are.  This is true for two reasons; first, prosecutors are trained attorneys and usually (not always!) understand the laws, the rules and our Constitutional protections better than non-attorney law enforcement officers.  Mainly, though, it is because the prosecutor is the one who ultimately gets left holding the bag if a weak case is charged.  It is the prosecutor who must go to court and argue the case and most prosecutors really don’t like to lose in court.  In many cases the prosecutor’s office will simply drop, or “no-file” the case and move on to bigger and better things.

So, during a non-arrest investigation an attorney who is familiar with the local prosecutor’s office and its practices can be very effective by speaking to the prosecutor handling your case and relaying any defenses, information, even excuses which you may have in an attempt to convince the prosecutor to either drop the case or at least file a lesser criminal charge than was referred by the police.

You should not attempt to speak to the prosecutor yourself.  Most prosecutors are reluctant to speak to suspects outside of court and off the record.  Even if the prosecutor is willing to speak with you, you must assume that you are being recorded or listened to by others on speaker phone and remember that everything you say can and will be used against you in court some day.

It Ain’t Over ‘Til Its Over

Whether the police or the prosecutor’s office decides to drop your case, remember that if you have not been arrested yet your case can be re-opened at anytime before the Statute of Limitations run out.  Statutes of Limitation vary in Florida depending upon the type of crime; some crimes may have very long limitations periods or may never expire.  The shortest Statute of Limitation in Florida is for a second degree misdemeanor and is for a period of one year.

However, if the prosecutor decides that they have enough evidence to allow a jury or judge to convict, they will often choose to file an Information (called an Indictment in Grand Jury cases) and proceed with prosecution.  Next article will discuss what happens then.

Garry L. Potts is a former 15 year prosecutor and former insurance defense trial lawyer. Garry L. Potts handles legal matters in the following practice areas: Criminal Law, Civil Practice, Driving While Intoxicated, Breath test Refusals, Drivers License Revocations or Suspensions, Assault and Battery, Felonies, Misdemeanors, Sealing & Expungement, Traffic Violations, Theft, Personal Injury, Automobile Accidents, Wrongful Death, Family Law, Child Custody & Support, Divorces, Wills, Trusts and Probate. With over 22 years of experience and more than 100 jury trials, Garry Potts is one of the most experienced attorneys in the Tampa Bay area.

The Law Office of Garry L. Potts
13575 58th Street North, Suite 126, Clearwater, Florida 33760
Telephone: 727-538-4166

Web site: www.GPottsLaw.com

Web site: Clearwater DUI Attorney



INVESTIGATION AND INTERVIEW – ANATOMY OF AN ARREST IN FLORIDA, PART I

December 14, 2010 Leave a comment

To be the target of a criminal investigation and subsequent arrest for criminal charges can be one of the most devastating, anxiety-producing events one can face in life.  Whether it results from a mistake or not, to find oneself in the total control and custody of the authorities with no freedom or privileges can be an overwhelming nightmare for those who do not understand the criminal justice system and have no idea what is going to happen once they are placed under arrest and handcuffed.  In my next few blog posts I am going to review the law and procedures regarding arrests and the initial stages of a criminal case in Florida, as followed in the Tampa Bay, Clearwater, St. Petersburg and Pasco County areas.

It All Starts With an Investigation

The beginning of a criminal case usually involves a report, or observation, of suspected criminal activity.  The law enforcement agency that receives information of a suspected crime and initiates an investigation into it will proceed by collecting evidence, if any, and speaking with the complaining victim, eye-witnesses and other people who may have knowledge of what occurred.  The investigator for the agency, usually your local police department, or county sheriff’s office, will be trying to determine if a crime occurred, if the person who committed the crime can be identified, and if there is enough evidence and testimony to arise to “probable cause” that the suspect committed a crime.  Probable cause is a legal requirement which the authorities must have before any arrest is justified.  In plain words, it means that the facts and circumstances must indicate more likely than not that a crime was committed by the person who is being arrested.  In order to get enough evidence to reach probable cause, the investigator often wants to interview the suspect.

Probable Cause Often Comes From Suspect Interviews

In some cases the law enforcement investigator will want to interview the accused suspect early in the investigation in order to hear both sides before making a decision about what occurred and who is to blame.  Sadly, more often than not in my career in criminal law, I have seen that the opposite is more common.  In other words, the investigator will speak to the initial complaining victims and their witnesses and then decide that a crime was committed and that the accused did it.  From then on the investigation’s purpose becomes an exercise in bolstering the evidence in order to reach probable cause and make the case more winnable for the prosecutor.  One technique that is often used in a criminal investigation is to finish the investigation, gathering all the available facts and evidence, and then try to interview the suspect.  In these cases, the goal in interviewing the suspect is not to objectively collect information in order to make a decision, but to attempt to trap the suspect in lies by pretending to know little or nothing about the complained of incident and allowing the suspect to “educate” them.  I have seen many times, in my 15 years as a prosecutor in the Pinellas and Pasco County State Attorney’s Office, that the police need to get statements from the suspect in order to have the probable cause necessary to make an arrest.

They Call Miranda a Warning for a Reason

If the investigator wishes to interview you about a crime you are a suspect of, you will get a call or visit from them.  Depending upon the circumstances of the interview, the famous “Miranda Warning” may or may not be required.  Contrary to popular opinions derived from television and movies, Miranda is not necessary to any arrest and will not be a reason for you to have your case dismissed.  Miranda warnings are only required if the police question you while you are in their custody and a reasonable person would not feel free to leave.  If the police are questioning you before you have been arrested, you volunteer and you are free to leave anytime you want to, no Miranda warning is necessary and everything you say can and will be used against you!  Anytime that law enforcement asks to speak to you about a criminal investigation that you believe you may be a suspect of, you should decline to speak to them and contact an attorney.  Always!  Depending upon the circumstances, your attorney may speak to the police on your behalf to relay information you may have. Your attorney may even offer to have you meet with the police and answer questions, but only in rare cases and only after spending much time discussing the matter with you beforehand.  Generally, when the police ask to speak with a suspect they have either made up their minds about probable cause and intend to make an arrest anyway; or they don’t have sufficient evidence for probable cause and hope that the suspect will supply probable cause by making some key admission during an interview.  Either way, it is highly unlikely that your interview with the police investigators will change the situation in your favor.  If the police come to the interview intending to arrest you, you are extremely unlikely to say anything that will change their minds – they will just assume that you are being untruthful to them.  And, if the police come to the interview not expecting to arrest you, the only thing that could change their minds would come out of your mouth during your statements to them.  Remember, you have the right to remain silent!  Although the investigators may try to make you feel as if you are hurting yourself, or appearing “guilty” by not speaking with them, just the opposite is true.  As I’ve stated, you can really only change your situation to the worse by making a statement to police.  Any information you have that could help your situation would be better communicated to the police by your attorney, whose words cannot be used against you later.

Next post I’ll discuss what happens to a criminal investigation if the police and prosecutors decide not to proceed with an arrest warrant and charges.

Garry L. Potts is a former 15 year prosecutor and former insurance defense trial lawyer. Garry L. Potts handles legal matters in the following practice areas: Criminal Law, Civil Practice, Driving While Intoxicated, Breath test Refusals, Drivers License Revocations or Suspensions, Assault and Battery, Felonies, Misdemeanors, Sealing & Expungement, Traffic Violations, Theft, Personal Injury, Automobile Accidents, Wrongful Death, Family Law, Child Custody & Support, Divorces, Wills, Trusts and Probate. With over 22 years of experience and more than 100 jury trials, Garry Potts is one of the most experienced attorneys in the Tampa Bay area.

The Law Office of Garry L. Potts
13575 58th Street North, Suite 126, Clearwater, Florida 33760
Telephone: 727-538-4166

Web site: www.GPottsLaw.com

Web site: Clearwater DUI Attorney



Categories: Arrests, Criminal Law

WHAT TO DO IF YOU GET A DUI?

December 4, 2010 Leave a comment

Stopped For DUI – You’re Under Investigation, Now What Do You Do?

One of the most common questions that any criminal defense attorney is asked by clients, acquaintances and family is “What should I do if I am pulled over for DUI?” Well, in the first place, driving under the influence of alcohol or drugs to the extent that one’s ability is impaired is an extremely serious matter. Everyone should avoid driving after they have drank alcohol or at the very least stay aware of the number of drinks you have had and don’t drive if you feel impaired or believe that you are even near the Florida unlawful blood alcohol level of .08%.

If you are unfortunate enough to see the blue lights of a police car in your rear view mirror, you should keep in mind that you are required by Florida law to pull your vehicle over in a safe manner as soon as you are reasonably able. Remember that police officers have a hazardous job and quite often the people they encounter are violent, nasty or dangerous. The officer will be alert to any indication that you are going to either try to harm him or her or try to run. So you can help to avoid a nasty or even life-threatening confrontation with the officer by following a few simple steps at the very beginning. First, once you have safely pulled your car off of the road, turn off your car’s engine and roll down your driver’s side window. You should stay in your vehicle unless asked to get out by the officer, since jumping out and heading back to the police car could be seen as a hostile and threatening gesture by a paranoid officer. While you are waiting for the officer to walk up to your window, keep your hands visible to the officer – on the steering wheel is best. This is a good time to think about where your driver’s license, vehicle registration and proof of insurance are located – the officer will ask for them and you are required by law to provide them. Fumbling or forgetting where they are will be used by the police and prosecution as evidence of impairment if there is a DUI charge.

Be Polite, Don’t Say Too Much, and Try Not To Breathe On The Cop

Although you are required to give the police officer your name, drivers’ license, vehicle registration and proof of insurance card, unless you have been in an accident you are not required to tell the officer any more information. By law you cannot provide false information to the officer, but you are not required to tell him or her if you have been coming from a bar, or drinking, or how much and what type of alcohol you may have had. However, in some cases it may be desirable to answer the officer’s questions.

Keep in mind that the officer may only be stopping you to give you warning about a burned-out tail light, or for some other traffic infraction. If you have not been drinking alcohol or taking prescription or illegal drugs (or you do not any reason to suspect that you are being investigated for any other crime) you generally will be better off answering the officer’s questions in a friendly, respectful manner. However, if it becomes apparent that the officer believes that they are investigation a drunk-driving case, or any other criminal activity, you are best advised to stop answering the questions.  Sometimes even seemingly innocent comments that people make to the police that will be turned around for some advantage by the prosecutor later, if charges are filed.  There is no magic way to refuse to answer questions from a police officer – simply saying “I don’t want to talk” will do the trick.  Asking for an attorney before you wish to talk works in most situations, but the courts have ruled that DUI investigations at the road side, prior to actually being handcuffed and officially arrested do not rise to the legal levels that require access to an attorney.   A very good way to decline to answer a police officer’s questions during a DUI investigation when you have not consumed any alcohol or drugs, or very little, would be to say something like: “I do not want to answer any more questions but I want to take a breath test and a blood test as soon as I can”.

Smile! You’re On Candid Camera!

Everything you say or do will be noted by the officer and could be used as evidence against you in court. Remember at all times that you are probably being video taped and audio recorded by the police – whether you are standing outside your car, sitting in the back of the police car, or at the police station. Many police cars now have video cameras behind the front grill or on the dashboard. These cameras are activated by the officer and can be turned on or off at the officer’s desire.

But I Didn’t Have a Chance to Study For a Test!

If the officer continues investigating you for a DUI, you will be better off declining to perform any physical field sobriety tests and politely ask for both breath and blood tests. Field sobriety tests (FST’s) consist of an eye exam followed by two or three physical tasks. The eye exam given by police officers during a DUI investigation is called the Horizontal Gaze Nystagmus test (HGN) in which the officer will ask you to hold your head still while your eyes follow a light. The officer is looking for any quivering of your eyes as you look from side to side. Although alcohol can cause a person’s eyes to quiver more than normal, there are other causes of this quivering, or nystagmus which may be misinterpreted by the officer. At any rate, the results are not recorded or objective and the judge and jury will only have the officer’s word as to what your eyes did during that test. The physical tests consist of the  Walk and Turn and One Leg Stand.  Sometimes a police officer will also use the Finger to Nose test.  These tests are designed as “divided attention” tests and meant to distract the person taking them.  They can be difficult to do, especially under the stress of a police investigation by the side of a busy highway and often at night. The instructions for each test are detailed and officers often have learned to say them in a manner that can be somewhat confusing in order to make the DUI suspect appear “impaired”. You should politely decline to take any of the field sobriety tests. The only penalty for not taking field sobriety tests is that the judge and jury will be told that you refused them, as if that in itself is an indication of your guilty conscience. However, it is easy to explain to a jury or the judge that you are not particularly coordinated and that you didn’t believe you could perform on the side of the road at that time. It is important not to say something like “I couldn’t do those tests even if I was sober” when declining the FST’s! Instead, if you have not drank any alcohol or taken any controlled drugs, prescription or otherwise, you should decline the FST’s by asking for both breath and blood tests. Although if the officer for some reason believes that you are impaired from alcohol or drugs at this point, you may be arrested and taken to the police station for a breath test, a correct result by the Intoxilyzer breath testing machine will further prove your innocence. By Florida law, the police should give you the opportunity to arrange for and obtain blood testing at your own expense at a local medical facility. The results of that test will be invaluable as independent evidence that you have not been drinking should the breath test machine make an error and you are arrested for DUI.  If your breath test results do show that you have not had any alcohol, expect the police officer to request that you provide a urine sample.  By Florida law you are required to provide the sample, the same as taking a breath test, if the officer has probable cause to believe you are driving under the influence to extent that your normal faculties are impaired.  The urine sample will be sent to a crime lab for analysis for drugs.

Got Stopped Going Home From The Bar?

If you have been drinking, but you are sure that you are not over the legal limit of .08% BAL or impaired from alcohol or drugs, you do not have to answer any questions about your drinking. You should decline politely to take any field sobriety tests, but politely ask for both breath and blood tests. This is a somewhat risky tactic, since it depends upon the accuracy of your prediction of how much your alcohol intake has affected your blood alcohol level. And, as we all know, a few drinks can effect anyone’s ability to make important judgments. For that reason, this advise should only be used when you are absolutely certain that your blood alcohol level is well below the legal limit in Florida of .08% and that you are not impaired from the alcohol. If you do not know how to make a calculation of the effect various amounts of alcohol over periods of time have on your blood alcohol level, you can read more on this subject by searching for “Widmark’s Formula” on the internet. There are several very rough guidelines to predict your blood alcohol level for various amounts you have consumed, however they are rough estimates whose accuracy depends upon each person’s body weight, fat content and other physical and medical factors influencing alcohol metabolism.

If you have been drinking or taking drugs and you believe you are impaired from them, or that your blood alcohol level is over the legal limit of .08%, you are very likely in trouble by the point you need this advice. And since you have already disregarded the very first piece of advice given at the beginning of this article, you probably won’t be able to remember or correctly follow any advice, much less legal advice. However, by this time, as you stare at the flashing blue lights and the handcuffs hanging from the police officer’s belt, you are finally beginning to realize that DUI is a serious and potentially deadly offense and you are regretting your lapse of judgment. In order to minimize the impact that your lapse of judgment may have on your life, you should politely decline to answer any questions the officer asks. You should decline to take any tests – the eye test (Horizontal Gaze Nystagmus, or HGN), the field sobriety tests and the breath test. Keep in mind that refusing the breath test will result in increased suspension periods of your driver’s license as well as potentially a separate criminal charge of Refusal. However, providing the breath test will likely just make it easier for the State Attorney to prove your DUI case, and if your blood alcohol level is over .15%, will result in higher fines and other sentencing provisions upon a conviction. You should expect to be arrested – be cooperative and polite at all times.

What’s going to happen if I get arrested?

Once you are booked into the jail, you will be held there for at least eight (8) hours, or until your blood alcohol level is less than .05% and you are no longer impaired. Therefore, it is important not to raise a fuss, yell, scream, argue or otherwise appear impaired from alcohol if you want to go home. You may be allowed to leave at that time without having to post a bond, called a Release on Recognizance (ROR), if you live locally and are employed. If you are not released ROR, a DUI bond in Pinellas or Pasco Counties generally will range from $150 to $1,000, depending upon the number of prior DUI’s and whether or not there was an accident with injury or property damage involved. You may either post the full amount of the bond yourself (keep in mind that any future court fines, costs and restitution will be deducted from your cash bond before the rest is released to you at the end of your case), or you can call one of the many bail bondsmen in the Tampa Bay area to arrange for them to post the bond for you. The bail bondsmen generally charge 10 to 15% of the bond amount for this service, and sometimes may require that you sign an automobile or home over to them as collateral. Call several bondsmen and get quotes from them before deciding which to hire if the first one sounds too expensive.

After you have been released from jail, you need to find and hire an experienced DUI attorney. You can find my advice on how to go about locating, interviewing and hiring the best attorney for you in my blog, the Florida Law Blog, at http://gpottslaw.wordpress.com/.

Garry L. Potts is a former 15 year prosecutor and former insurance defense trial lawyer. Garry L. Potts handles legal matters in the following practice areas: Criminal Law, Civil Practice, Driving While Intoxicated, Breath test Refusals, Drivers License Revocations or Suspensions, Assault and Battery, Felonies, Misdemeanors, Sealing & Expungement, Traffic Violations, Theft, Personal Injury, Automobile Accidents, Wrongful Death, Family Law, Child Custody & Support, Divorces, Wills, Trusts and Probate. With over 22 years of experience and more than 100 jury trials, Garry Potts is one of the most experienced attorneys in the Tampa Bay area.

The Law Office of Garry L. Potts
13575 58th Street North, Suite 126, Clearwater, Florida 33760
Telephone: 727-538-4166

Web site: www.GPottsLaw.com

Web site: Clearwater DUI Attorney

DEMYSTIFYING LEGAL FEES

November 12, 2010 1 comment

In my last post I spoke about the process of narrowing your list of candidate attorneys down to the one you want to hire to represent you. I recommended that you make interview appointments with at least three local attorneys you have chosen. During the interview you will be looking for the attorneys whom you feel most comfortable dealing with, who communicate well with you and who have the experience in the type of case you have to earn your, and your opponent’s, respect. Once you narrow your list down to those individuals, it’s time to talk about money.

How Much Is That Lawyer In The Window?

As you interview attorneys for your legal matter, you are likely to find that between them they charge significantly different fees. Some will seem very high, others very low. Some attorneys prefer to charge an hourly rate, based upon the work they do. That is most common in business legal cases and contested family law matters. Other attorneys may quote you a flat rate fee, which is meant to cover the entire case, regardless of the number of hours the attorney ultimately puts into it. Many times you will find some kind of “hybrid” approach to attorney’s fees – either a sliding scale, in which the fee increases as the case progresses; or a non-refundable retainer with a provision for an hourly rate should the amount of work done on your case exceed initial expectations.

Some cases, which usually involve injury or monetary damages, might be handled under a special form of fee arrangement called a “contingency fee”. Contingency fees are usually determined by a percentage of any money “won” in a case and collected. If you don’t win, you don’t have to pay your attorney. The percentages are usually fairly high, between fifteen and forty percent of the settlement or awarded amount, because the attorney must take a chance on handling the case and not collecting any money. This type of fee arrangement allows people who might not otherwise afford an attorney to pursue their rights in court. Contingency fees are not allowed by the Florida Bar for criminal cases or divorce cases. If you have the type of case in which contingency is allowed, the attorneys you meet with will evaluate your case and tell you if they are willing to accept the case on a contingent basis.

You may have heard that attorneys will take some cases and handle them for free, under what is called a “pro bono publico” basis. This is from a Latin phrase meaning “for the public good”. In a pro bono case the attorney will handle the case without charge, as a service to the poor and society in general. The Florida Bar recommends that each attorney perform at least twenty hours of pro bono legal service each year. Many attorneys perform more than that amount. While it may not hurt to ask attorneys if they would be willing to accept your case pro bono, you should not expect it. Attorneys often prefer to receive their pro bono case as referrals from legal aid organizations, who will first determine that the client is indigent and meets the financial guidelines for pro bono work. Also, for criminal charges, the Public Defenders Office is available to provide legal representation for the indigent.

It’s All About Timing

Whether an attorney quotes you a flat rate, hourly or “hybrid” type fee, all of those are really based upon a prediction of how much time that attorney predicts he or she will spend on your case. Abraham Lincoln, who was a successful trial lawyer prior to becoming our sixteenth president, once said, “A lawyer’s time and advice are his stock in trade.” When you retain an attorney, what you are buying are the time and attention of that lawyer to you and to your case and the lawyer’s advice and opinions as to the best course of action to take in your case. The attorney that quotes you a “flat rate” fee is really just making an estimate of the number of hours he or she will be spending on your legal matter. Sometimes the attorney may be able to successfully end your case in a short amount of time. In that case, the attorney probably came out ahead monetarily. Other times the case may drag on, for various reasons, far longer than the attorney expected. In that case the attorney may lose out monetarily by spending more of their “stock in trade” than they intended, without getting any extra pay for it.

Hourly rates for legal services vary widely. Hourly rates in the Tampa Bay area typically range from $90 to $350 dollars an hour, based upon the type of legal work and the experience of the attorney. You can ask the attorney to lower the hourly rate for you, but, generally, unless you are bringing a high-volume amount of work to that law firm, expect to be charged the normal rate for that attorney. Whichever hourly rate an attorney is using to calculate the retainer fee, the one thing that you could control is the attorney’s perception of the amount of time that is going to be spent on your case.

Time’s A Wastin’

The first thing to remember when you are speaking with an attorney about your case is that “time is money”. The more prepared you are at presenting your case to the attorney the better. Before the consultation meetings, gather all the documents and facts of your case in a logical order. It is helpful to write down a concise narrative of the facts of your case, including names, addresses and telephone numbers of witnesses and other involved parties. Documents can be photocopied before meeting with the attorneys so that you just give copies to the attorney you decide to hire, rather than paying the attorney to copy them for you. When telling the attorney about your case, give an overall, objective view of the facts, not just those facts that help you. It is in your best interests for the attorney to know both the good and the bad about your legal problem in order to decide the best way to help you. One mistake potential clients sometimes make is to present the attorney with an overly-optimistic view of the defenses available, thinking that if the attorney believes that the case is an easy one to win, he or she will charge less. In fact, almost the opposite is usually true. The more defenses and witnesses that are involved in a case, the longer that case is going to take to investigate and defend. With each new tale of a possible defense, a wrongful persecution or a conspiracy among the other side, the attorney is calculating more and more time that will have to be spent running down these defenses and presenting the worthy ones in court.

Once an attorney decides to accept your case and quotes you a fee, whether it is a flat-rate, hourly or hybrid fee, it is fair to ask the attorney if he or she would accept less. Whether the attorney agrees to negotiate the fee lower or not, no harm will be done by asking. Realize that many attorneys will have already set the fee as low as they are willing to make them before they quoted it to you. Legal practice is very competitive and most attorneys realize that you are speaking with other attorneys and getting fee quotes from them as well.

If you would like to hire the attorney but cannot afford to pay the entire retainer fee up front, don’t hesitate to ask the attorney if a payment plan could be arranged. Some attorneys will tell you this is available up-front. Others will wait until a client asks about it. Attorneys will vary widely in their willingness to agree to payments for legal fees, so as before, it will not hurt to ask.

Garry L. Potts is a former 15 year prosecutor and former insurance defense trial lawyer. Garry L. Potts handles legal matters in the following practice areas: Criminal Law, Civil Practice, Driving While Intoxicated, Breath test Refusals, Drivers License Revocations or Suspensions, Assault and Battery, Felonies, Misdemeanors, Sealing & Expungement, Traffic Violations, Theft, Personal Injury, Automobile Accidents, Wrongful Death, Family Law, Child Custody & Support, Divorces, Wills, Trusts and Probate. With over 22 years of experience and more than 100 jury trials, Garry Potts is one of the most experienced attorneys in the Tampa Bay area.

The Law Office of Garry L. Potts
13575 58th Street North, Suite 126, Clearwater, Florida 33760
Telephone: 727-538-4166

Web site: www.GPottsLaw.com

Web site: Clearwater DUI Attorney

HOW DO YOU CHOOSE WHICH ATTORNEY?

November 10, 2010 Leave a comment

In my last post I discussed how to begin searching for an attorney to handle your legal matter. The best way to begin is by compiling a list of qualified, experienced local attorneys for the type of legal problem you have. I suggested starting by asking family and friends for suggestions and then getting a broader listing of local attorneys though various legal directories that are available, including mailed advertisements for criminal matters. I mentioned the online directory, Avvo.com, which lists all attorneys in Florida by location and specialty. Avvo also provides information about the attorney’s experience and major areas of practice.

The Interview Process

Once you have a list of names and phone numbers of at least three local attorneys that seem to be experienced in the area of your legal problem, you are ready for the next step. You are now ready to interview attorneys for your case. Now you can simply call the attorneys and either speak to them on the telephone, or more likely, set an appointment to meet with them. Many attorneys will provide a free consultation so that you can meet and talk with them without spending any money. Don’t expect them to give you their legal advice or to teach you how to handle your own case during a free consultation however. The initial free consultation is to allow you to speak face to face with the attorney and give him or her an idea of the nature and complexity of your case. You have the chance to find out if you like dealing with that attorney in person and the attorney can get the background needed to decide how much time will likely be spent on your legal problem in order to quote you a fee.

Just A Little R-E-S-P-E-C-T

It is very important to find an attorney that you can communicate with and who gives you complete and understandable explanations. It is important to find an attorney whom you respect, for you are hiring an attorney not just as a companion to stand next to you in court, nor solely to do paperwork for you, but really you need an attorney for his or her expert advice on the best way to proceed with your case. Just like hiring a physician for serious surgery, you are really placing yourself in your attorney’s hands regarding your legal matter. If that legal matter happens to be a criminal charge, punishable by prison, jail, driver’s license revocations or suspensions and monetary fines, you are facing a serious situation in your life and, just like your surgeon, you must have trust in your attorney. Similarly, if you are facing a contested divorce, child custody, division of property and assets or alimony, or if you have been injured in an automobile accident or slip and fall and need prolonged medical treatment and have experienced significant pain and suffering, you will need to be able to rely upon someone with experience to guide you in reaching the best possible outcome for your case.

Are You Experienced?

The attorney’s experience, both in number of years of practice and in number of cases handled of your type will tell you a lot about that attorney’s qualifications to handle your case. More importantly, does the attorney’s experience show that he or she is seasoned at the type of case you are facing? If your type of legal problem involves criminal charges, accident injuries or contested family law matters, such as divorce, child support or custody or alimony, the amount of experience that an attorney has dealing with litigation and trials should be extremely important to you. Each of those types of cases involves litigation. Litigation is the term used for legal problems that are ultimately decided in a court of law, either by a judge or a jury. Ask how many trials, including jury trials, the attorney has done. You will want to find an attorney who can communicate to you, whom you respect and who not only knows how to find the courthouse, but feels comfortable and at home once they are there. You will want to hire the best attorney that you can afford.

Next, I will talk a little about attorney’s fees and try to demystify them, as well as give some tips on how to avoid getting quoted a very high fee.

Garry L. Potts is a former 15 year prosecutor and former insurance defense trial lawyer. Garry L. Potts handles legal matters in the following practice areas: Criminal Law, Civil Practice, Driving While Intoxicated, Breath test Refusals, Drivers License Revocations or Suspensions, Assault and Battery, Felonies, Misdemeanors, Sealing & Expungement, Traffic Violations, Theft, Personal Injury, Automobile Accidents, Wrongful Death, Family Law, Child Custody & Support, Divorces, Wills, Trusts and Probate. With over 22 years of experience and more than 100 jury trials, Garry Potts is one of the most experienced attorneys in the Tampa Bay area.

The Law Office of Garry L. Potts
13575 58th Street North, Suite 126, Clearwater, Florida 33760
Telephone: 727-538-4166

Web site: www.GPottsLaw.com

Web site: Clearwater DUI Attorney

HOW DO YOU FIND AN ATTORNEY FOR YOUR CASE?

November 9, 2010 1 comment

Need An Attorney?

Searching to hire an attorney, whether it is for a business legal matter, divorce or for criminal charges, is a daunting task. I recommend that your search for the right attorney for your legal matter should begin by researching for experienced attorneys in the Clearwater, St. Petersburg, Tampa areas who practice in the area of law that you need. One obvious way to begin your research is to ask family and friends for the names of attorneys that they may have used in the past and were happy with. The problem with only using this method of research is that the information you get is very limited. Your circle of friend and family, hopefully, probably has only a limited experience with legal problems and attorneys. So, you are likely to get the name or names of only one or two attorneys, who are often the only attorneys they know. Another way to research attorneys is to look at legal directories, such as the Florida Bar’s list of attorneys in your city, the phone book listings of attorneys or the local Bar associations, such as the Clearwater or St. Petersburg Bars. One very handy online legal directory is Avvo.com. Avvo is a listing of all attorneys in your state, organized by location, areas of practice and their own rating of the attorneys. The Avvo rating system seems to be based mainly upon years of experience and involvement in the legal community. While that information is useful, the rating system alone should not be relied upon in choosing a lawyer for your problem.

Who The H*## Sent All of These Brochures?

Another useful way to collect attorney names in your local area may at first seem like an imposition. That would be the attorney direct mail advertisements which attorneys are sometimes permitted to send out, usually in criminal cases. In Florida, the Florida Bar rules allow attorneys to send advertisements by mail to people who may require legal counsel. There are several rules which limit these direct mail advertisements. The outside and inside page of the mailing must be marked “Advertisement” in red letters and the outside of the mailing cannot state what the legal problem is. Also, while attorneys may mail advertisements to people who are facing criminal charges immediately, they must wait for thirty days following an injury or accident in a personal injury or wrongful death case. If you are ever unfortunate enough to be arrested for a crime in the Tampa Bay area, you will likely receive two dozen or more mailings from attorneys within a couple of days of your arrest. Some are colorful brochures, obviously from a criminal defense law firm, while other will be more professional and subtle letters in an envelope. The Florida Bar allows attorneys to send these ads out by mail because they recognize that people who have been arrested, or had a major accident with injuries, will be in need of legal representation, but may have no idea where or how to look for an attorney. While receiving so many mailed advertisements is often annoying to the recipient, they do provide you with a list of local attorneys who are willing to take on your type of case. Within the advertisement you will usually find information about the law firm and its lawyers, such as prior experience, address and phone number. The law firms and attorneys that you like from the mailings should be checked against the Avvo.com site discussed above for experience and major practice areas.

Making A List And Checking It Twice

With the list of attorneys that you have found you are ready for the next step. I recommend choosing no less than three and up to six or more names from your research. You are not actually making your decision as to which attorney to hire yet. What is important is to find a listing of attorneys in your city or county and get the names and phone numbers of those who practice the type of law that you need and have the most experience.

Later we’ll look at specific things to look for in an attorney and how to proceed to find the best attorney for you.

Garry L. Potts is a former 15 year prosecutor and former insurance defense trial lawyer. Garry L. Potts handles legal matters in the following practice areas: Criminal Law, Civil Practice, Driving While Intoxicated, Breath test Refusals, Drivers License Revocations or Suspensions, Assault and Battery, Felonies, Misdemeanors, Sealing & Expungement, Traffic Violations, Theft, Personal Injury, Automobile Accidents, Wrongful Death, Family Law, Child Custody & Support, Divorces, Wills, Trusts and Probate. With over 22 years of experience and more than 100 jury trials, Garry Potts is one of the most experienced attorneys in the Tampa Bay area.

The Law Office of Garry L. Potts
13575 58th Street North, Suite 126, Clearwater, Florida 33760
Telephone: 727-538-4166

Web site: www.GPottsLaw.com

Web site: Clearwater DUI Attorney

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