Frequently Asked Questions - Criminal Hide All | View All
The importance of competent legal representation is so great that the Constitution guarantees every criminal defendant the right to an attorney. A criminal attorney is your best asset after being charged with a crime. This expert knows the laws and court customs relevant to your case, and can apply this knowledge to protect and maximize your legal interests. No matter what your legal situation, a criminal attorney will help you more than you could help yourself by going it alone. In fact, sometimes judges won't even consider a plea bargain from a defendant without legal representation.
The US Constitution gives those who have been arrested or accused of a crime, a number of rights. If you have been arrested, answer all questions about your identification-- such as name, address, and birth date-- truthfully. You have the right to refrain from answering self-incriminating questions, and you have the right to consult an attorney. You also have the right to reasonable bail, right to a fair and public trial, right to be informed of the charges against you, the right to be confronted with the witnesses against you and to gather witnesses of your own. A criminal defendant is also presumed innocent until proven guilty. This means the prosecutor has the burden of proving (beyond a reasonable doubt) you committed the criminal act(s) in question. This also means a defendant does not have to do anything or say anything to prove innocence.
A misdemeanor charge is a minor criminal charge. The maximum penalty for a misdemeanor offense is one year in the county jail (usually a facility located within the county where the Defendant is sentenced).
Examples of misdemeanors are:
-Assault
-Battery
-DUI (1st or 2nd Offense)
-Domestic Violence
-Shoplifting/Petit Theft
-Driving on Suspended License
-Possession of Marijuana (under 20 grams)
-Possession of Paraphernalia
A felony charge is one for which a person may be sentenced to serve a period of time in the State Penitentiary/Prison. This sentence can vary from year and one day up to life, depending upon the charge. Some felony charges carry with them the potential of a sentence of death. A person convicted/adjudicated of a felony, whether prison time is ordered or not, loses their right to own a firearm and vote. Florida law (as of 7/1/04) allow for only one withhold adjudication (or not being a convicted felon) for first time offenders charged with a third degree felony, and in limited exceptions, for offender charged with a second degree felony. Florida law no longer allows for withhold adjudications for first degree, or higher, felonies.
Examples of felony charges are:
-Murder
-Possession, Delivery, or Sale of a Controlled Substance Robbery
-Felony DUI
-Aggravated Battery
-Burglary
-Grand Theft
Miranda warnings are given only when a suspect is in custody and the police are going to ask the suspect questions, or make statements, that are going to lead the suspect into giving potential incriminating responses. Therefore, just because you are arrested, does not mean the police are going to read your rights - it only applies to custodial interrogation/questioning. The Miranda Warnings involve the right not to testify against ones’ self. These warnings provide procedural safeguards to secure the suspect’s privilege against compulsory self-incrimination. There are 4 main parts:
You have a right to remain silent; if you chose to give up that right, anything you say can and will be used against you in a court of law; you have the right to an attorney and to have him present at every stage of the proceedings; and if you cannot afford a lawyer, one will be appointed for you.
If bail has been set, the only way to get the person out of jail is to pay the bond for his/her release. If the bond amount is unreasonably high, a lawyer may file a motion to reduce bond in an effort to get the bond amount reduced. A bail bond is like insurance; it means that the suspect agrees to appear at all subsequent legal proceedings. A bond amount is ordered by the court and if the defendant has the means to make that bond, he/she may be released subject to the bond. In most cases, a defendant is bonded through a bonding company where they typically will have to pay the bondsman 10% of the face value of the bond. An example of this is where someone is charged with a crime and the bond is set at $10,000. The suspect, or his/her family will pay the bondsman $1,000 and offer some type of collateral so that the bondsman will then make a guarantee to the court that if the defendant does not show up for court, they will pay the court the face amount of the bond, i.e. $10,000. In certain criminal cases bail may be denied. If the judge believes there is a high risk, the defendant will flee, or if he/she has been charged with a serious crime like murder, bail may be denied.
Try to gather as much information as possible about the arrest and write it down. The following questions may be useful: What is the name, birth date, and social security number of the arrested person? What have they been charged with? What law enforcement agency made the arrest? Where is the arrested person being held? Has bail been set and, if so, what is the amount? Don’t talk to the arrested person about the reason for the arrest because that is not privileged information and a court of law can question you on it.
The officer will ask the driver to perform certain field sobriety tests. You do not have to consent to them. Also, the officer may ask you to take a breathalyzer test or BAC. Likewise, you may refuse. However, refusal of these tests can result in the loss of your Driver’s License for a period of up to one year. In Florida, the legal limit is .08. In a "refusal case" the department of motor vehicles will provide an administrative hearing to assure that the officer had probable cause to make an arrest for DUI and that the defendant was advised that their license would be suspended for the refusal. The defendant in a "refusal case" must act quickly, since they only have 10 days to apply for a formal review hearing to request that DHMV does not suspend their drivers license. The criminal proceedings include a variety of fines, programs, penalties, and classes that you may be required to complete. But, an experienced criminal defense attorney may be able to challenge the evidence and negotiate other options for you.
DUI can be charged if a person is either driving a vehicle (including a bicycle) or is in actual physical control of the vehicle while impaired. Sitting or sleeping in a car while impaired may result in an arrest for DUI.
Law enforcement officers must offer a breath test in all DUI cases unless the person is seriously injured. If the injury requires a hospital visit the police will request a blood test. If the arrested person submits to the breath test then a blood test can be requested by the defendant at his own expense. The law enforcement officer will require two samples of the breath test. A third sample can be requested if there is a large disparity between the first two samples. Refusal to submit to a breath test will cause a suspension of your drivers license for one-year. A second refusal may result in an additional criminal charge that could result in a one year jail sentence. Blood tests are mandatory in all accidents involving serious injury or death. Blood tests may be demanded by the defendant in all cases where a breath test has been completed. Urine tests can be requested by the police in all cases where the breath test results in a non-impaired reading (under .08) or if the officer believes a controlled substance (either legal or illicit) has caused impairment. Refusal to give a urine sample will result in at least a one-year driver's license suspension.
No, however, you can demand an attorney prior to answering any questions. Law enforcement officers must stop the questioning once you exercise your right to legal counsel.
If you or someone you know in St. Lucie, Martin, Indian River or Okeechobee Counties needs legal counsel or assistance of an experienced criminal defense lawyer, please contact E. Clayton Yates, at (772) 465-7990, or complete the contact form provided on this site to begin your consultation with a skilled criminal defense trial attorney.
Frequently Asked Questions - Employment Hide All | View All
There are three primary areas of federal law that prohibit discrimination in the workplace. Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits discrimination on the basis of race, color, religion, sex, and national origin. The Age Discrimination in Employment Act of 1967 ("ADEA") prohibits discrimination based on age and the Americans with Disabilities Act of 1990 ("ADA") prohibits discrimination based on disability.
The Florida Civil Rights Act of 1992 (“FCRA”), Chapter 760, Florida Statutes, prohibits discrimination based on an individual's race, color, religion, sex, national origin, age, handicap, or marital status.
For employers: the hiring, promotion, discharge, compensation, terms, conditions and privileges of employment, classifying, limiting or segregating employees or job applicants.
For Labor Organizations: limiting, segregating, or classifying membership or applicants for membership; and in referral of individuals for employment. Labor organizations may not exclude, expel or otherwise discriminate against persons covered by these laws and may not cause an employer to discriminate against covered individuals. Labor organizations are covered as employers for the purpose of interpretation of these laws.
For Employment Agencies: the classification or referral of individuals for employment. For purposes of these anti-discrimination statutes, employment agencies are covered as employers.
For Employers, Labor Organizations and Employment Agencies: Printing or publishing discriminatory advertisements; and retaliating against any individual for opposing a discriminatory practice, or the filing of a charge of discrimination with the Employment Opportunity Commission ("EEOC"), the Florida Commission on Human Relations ("FCHR"), a local fair employment practices agency ("FEPA") or participating in an investigation by one of these agencies.
In addition to the above, Title VII, the ADA and the FCRA explicitly prohibit discrimination based on the protected classes covered by these statutes by any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs or employment in any program established to provide apprenticeship or other training.
Sexual harassment is a form of sex-discrimination that violates Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature...when submission to or rejection of such conduct is used as the basis for employment decisions...or such conduct has the purpose or effect of...creating an intimidating, hostile or offensive working environment."
Sexual harassment is any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when 1) submission to such conduct is either expressed or suggested, 2) submission or rejection of the conduct by an employee is used as a basis for employment decisions affecting that employee, or 3) such conduct interferes with employee’s job performance or creates an intimidating, hostile or offensive working environment.
You are not required to hire an attorney in order to file a sexual harassment charge with the EEOC. However, considering the legal complexities and documentation requirements of federal discrimination laws, it is advisable to retain a qualified attorney as soon as possible after you experience sexual harassment on the job.
Once your employer knows or should have known about the harassment, the employer has the duty to take immediate and appropriate corrective action to end the harassment. The employer’s response must be reasonably calculated to end the harassment. If earlier discipline did not end the harassment, more severe action must be taken.
There are several types of damages you can recover if you are successful. For example: receive an order demanding the harassment stop; recover lost wages and other job-related losses (i.e. promotions, or favorable work status you lost because of the sexual harassment); obtain compensation for personal injuries (i.e. physical, mental and emotional injuries); obtain punitive damages against the harasser(s) and/or company; recover attorneys’ fees and costs.
The Americans with Disabilities Act (ADA) is a federal law enacted in 1990, which prohibits discriminatory hiring and personnel practices against "qualified individuals with disabilities." It requires employers to make "reasonable accommodations" to the employees with qualified disabilities unless the requested accommodation presents an "undue hardship" upon the employer or poses a "direct threat" to other employees.
The ADA is intended to remove barriers, which prevent individuals with disabilities from enjoying the same employment opportunities available to persons without disabilities.
The ADA covers people with either physical or mental disabilities. One must meet the ADA requirement of a "qualified individual with a disability" who can perform the essential functions of a job without a "reasonable accommodation."
There are three different groups of individuals who are protected under the Act:
1. A "qualified individual" with a physical or mental impairment that "substantially limits" a "major life activity."
2. A person who has a record of a disability .
3. A person who is regarded as having a disability.
Some conditions, such as illnesses resulting from current illegal drug use, are specifically excluded under the ADA.
Specific remedies are awarded to restore you to your position prior to the act of discrimination. These remedies include: hiring; promotion; reinstatement; front pay; back pay; order to reasonably accommodate; punitive damages and; attorney's fees.
If you suspect that you have been discriminated on the basis of disability, race, color, religion, national origin, or gender, then contact Joe Mancini at Yates & Mancini, LLC as soon as possible. With the passage of time, valuable evidence can be lost and the memories of witnesses may fade. You do not need an attorney to file a discrimination charge with the EEOC. However, considering the legal complexities of Federal Discrimination law, it is advisable to contact our office as soon as possible.
If we determine that you have a claim, we will schedule a personal consultation to review, in detail, the facts surrounding your claim.
If you have left a job on anything less than friendly terms–you were fired, laid-off, or asked to resign, you quit over a salary dispute, or you felt you had to quit because of how you were being treated by your employer–you should consult an employment attorney. Your attorney will be able to tell you whether your rights were violated when you were laid off, or whether you have a legal claim even though technically you resigned. In order to get the most out of the initial consultation with the lawyer, it's a good idea to gather copies of the following documents to show the attorney. Be sure to make two copies–one for you to keep for yourself and one to leave at the law office should the attorney decide to take your case or wish to review them further.
- Your employment application,
- The company's employee manual or handbook.
- Any employment contract or agreement you may have had with the employer.
- Your job description.
- Any pre-employment screening documents, such as drug test results, background check, and letters of reference.
- Your resume.
- Payroll records, including records of paid leave accrued and used.
- Records of any in-house grievance proceedings in which you were involved.
- Names and addresses of co-workers who had similar employment problems, who have information about your situation, witnessed the events involved in why you are seeing the attorney, or who might be willing to testify on your behalf.
- Your attendance records.
- A diary or log, if you kept one, or a written chronology of events, with dates of particularly important employment problems and meetings. Be as thorough as possible.
- Performance evaluations and results of drug tests, employment tests, training completed, or other records of your job performance.
- Memoranda or correspondence, including printouts of e-mail messages, that relate to your termination or grievance.
- Accident reports, if applicable.
- Medical records, if applicable.
- Your financial and credit information.
- Salary information from your current job and/or unemployment compensation records.
Call Yates & Mancini to discuss employment and labor law at 772-465-7990.
