Articles Posted in Florida Criminal Defense

Florida‘s Punishment Code

In 1988 The Florida Legislature enacted The Florida Sentencing Guidelines following the lead of the Federal government’s Sentencing Guidelines. The Legislature hoped to rationalize sentences by creating an arithmetical formula for sentencing and limited judicial discretion. Now, someone convicted of drug trafficking, or possession of cocaine, or even a probation violation, would be sentenced the same throughout the State of Florida. South Florida sends the greatest number of people to prison and has been studied for the similarity of sentencing. The sentencing guidelines, now called the Punishment Code lists each crime, from assault to witness tampering, assigns it a category or range and requires judges to sentence in accord with the punishment code. There was, and remains, at outcry against the punishment code for two reasons: firstly racial minorities are statistically over-represented in the prison population and the punishment code continues that disparity. Secondly, the individual’s need for punishment by prison sentence precludes a judge’s ability to fashion punishments that are not compliant with the legislative scheme: this often creates over-harsh sentencing and injustices. A Judge can be harsher than the code but cannot go under the code unless the judge follows a limited and prescribed number of reasons for a downward departure. Your South Florida criminal defense lawyer can explain to you the system for scoring and computing felony sentences in Florida.

Although the courts remain largely in denial, the science of analyzing your breath for the presence of ethyl alcohol marches forward. With apologies for the corruption of some good Shakespearean verse: my breath flies up my machines below, machines without science should not to court go. You can start with this: breath analysis devices currently in use are accurate plus or minus .01 in their reported reading. With the legal limit in most states down to.08 that kind of error is significant: almost 15%. It is also fact that the blood level associated with impairment is based on 50+ year-old scientific experiments, which were limited to male subjects. I may be the first lawyer in the world, if not in Florida, to take a female DUI client to the Supreme Court on a charge of sexual bias. If you have a DUI matter contact your South Florida criminal defense attorney or my office for more information about the current legal status of challenges to the breathalyzer and Intoxilizer machines.

A national newspaper (name withheld..I don’t advertise) ran a story on a case that should be of interest to residents of South Florida. A young lady was arrested for driving intoxicated, or impaired, at the same time as she was texting sexual content. The cop thought it was a triple play, the lawyer walked her out-of-court. Why? Impairment from non-alcoholic substances is difficult to prove. I, your South Florida criminal defense lawyer, made some new law several years ago…it was a vehicular homicide case in which the impairment was based on blood work of the driver…..it showed the presence of cocaine distillates: chemicals in the blood which are markers or indicators that cocaine was ingested and processed. The mere existence of these indicators does not prove impairment; it just proves cocaine was ingested. By refusing to speak to the arresting officer and refusing to submit to roadside sobriety tests the defendant was charged with several criminal offenses. The state was unable to prove impairment and the jury found the defendant not guilty of vehicular homicide. The defendant was found guilty of several other charges involving resisting arrest, filing false police report, and destruction of evidence. The reported case similarly had evidence problems. The texting and sexting could not be proven to have occurred at the moment of the impact. Likewise the non-alcohol impairment was too hard to prove. Florida and several other state legislatures have proposed statutes which prohibit texting while driving. Contact your South Florida criminal defense lawyer for more information.

Probation violations are the area of law where many people get confused and confounded. If you understand the steps by which a violation becomes an arrestable offense, you can deal with them. The first question is: Were you properly informed of the terms and conditions of your probation: It must be in the sentencing order, or the statute, spoken to you in open court by the judge, or read to you by the probation officer. Step one is the State has to prove up the probation terms were communicated by one of the above methods. Probation officers cannot invent terms and conditions. Step two: Once you’re on probation the probation officer as to monitor and supervise. If the probation officer believes you have violated any condition of probation he cannot arrest you unless the violation occurs in front of him or the act itself is an arrestable offense. The probation officer writes up a violation of probation report and sends it to your judge. The judge reads it. Only if the judge believes, based on the probation officers report, that the violation is both WILLFUL and SUBSTANTIAL will he/she sign the document. When the judge signs the document it becomes an arrest warrant. Once the violation report, reviewed by the judge, becomes a warrant then you will be brought before the judge. The Judge must determine after a hearing whether the facts alleged in the report are true. At this point you need your South Florida Criminal defense attorney to either get you out of jail before the hearings, or represent you at the final evidentiary hearing.

In South Florida, as in most states; criminal responsibility for the vast majority of crimes requires intent. A person who is under a mental disease or defect, or is incompetent to stand trial, has the defense to criminal charges of competency or insanity. In South Florida, Fort Lauderdale, and Miami, very few successful insanity defenses have been litigated in South Florida criminal courts. The reason is insanity has fallen in disfavor with the legislature and most judges and juries. A South Florida criminal defense attorney can explain the trends in the charging and prosecuting of drug crimes, burglaries, robberies, and violations of probation, where the defense of incompetency or insanity has been rejected. Do not confuse insanity with competency. Insanity is the inability to form the requisite criminal intent due to mental disease or mental defect. Competency goes to an individual’s current state at the time of the prosecution: if a person under arrest and facing a criminal trial in South Florida cannot effectively assist counsel, and is unaware of the function and role of the judge, a criminal defense attorney, and a jury, then the defense of incompetency to prosecution is raised by the criminal defense attorney. Incompetency merely delays the prosecution for up to two years, during that time the state has the duty to assist in the restoration of competency. For more information call or e-mail your favorite South Florida criminal defense attorney, or contact my office.

THE BRADY BUNCH IN FEDERAL COURT
The friendly antics of the Brady Bunch family and TV land has nothing to do with the realities, the cold realities of criminal proseuctions in federal courts. In the public view federal courts are where our civil and constitutional rights are preserved. It is even more common for people to believe that federal court is where state court abuses are corrected. True a generation ago but not true today. Florida State criminal courts have championed fair trial rights, and left the federal courts in the dust, mingled in the dust of the lost souls who were convicted in federal criminal courts, in many cases wrongly. Florida criminal courts, Miami Fort Lauderdale West Palm Beach, give criminal defendants the right to see evidence that exonerates them. If you are arrested for drug trafficking, or any serious felony and come before a Florida criminal Court you have the right to compel the government to turn over to you evidence that might prove your innocence. Florida criminal courts find the legal basis for these rights in a federal case called Brady versus Maryland. In it a federal court ruled that defendants have the right to information that would aid in their defense, information in the possession of the state of Florida must be turned over. Any South Florida criminal defense attorney will tell you that in Florida criminal courts you will receive a discovery package in which the government turns over to you any information they have which might aid in your defense. In federal court the Brady case has been largely forgotten and ignored by the federal rules of criminal procedure. Ask your South Florida criminal defense attorney for more information about a defendant’s rights in Florida criminal courts

No. A police officer can only make a search or your person (your body, your clothes, your personal space) under one of the following three circumstances:
1. You agree to the search. Your consent cannot be forced or the product of a submission to a show of force. It must be freely given, and not the product of police bullying.
2. Officer safety. But that means a real and provable reason. It can be said that police work is always dangerous and that police officer safety is always a top and legitimate concern. True enough. But a sleeping grandma or a three month old baby are not a reasonable threat and cannot be searched. Likewise, even a fully grown adult male can’t be searched for office safety unless he does something that would create a reasonable (attach a reason) to be a threat. Officer safety must be proven before a judge will allow the things found during a non-consensual search to be used to convict you.
3. Lastly (thirdly?) After a lawful arrest.

Florida criminal lawyers live and breathe by the hundreds of cases that clarify and are fact specific to the above three paragraphs. Don’t think by understanding the basic rules you can be correct in your evaluation of a fact pattern surrounding a search. Speak with a local criminal defense lawyer before you stick your foot in your mouth, or worse, get in trouble with the law. There is no substitute for knowledge and experience and there is no end to woe from ignorance and stupidity. Ask and know. Or, better still; buy a copy of my book “CAN THE POLICE LIE TO ME?” you can buy it on amazon.com for $18.95.

In Florida you must be 21 years of age to purchase alcoholic beverages. Once 18 it has long been 21. Of course you can serve in the Army at 18 but you can’t drink until you are 21. Some young people in Florida run afoul of the criminal laws by obtaining “fake” ID. Don’t. It is an arrest able offense; it can even be a felony!

In South Florida (Fort Lauderdale, Pompano, Miami, Davie, West Palm Beach) you can be charged with a misdemeanor if you have a fake set of identification. If you have someone’s driver’s license it is felony. A felony carries a five year prison sentence and a lifetime of grief. If you use someone else’s identification you can both face criminal charges: You can be arrested for possession of a false or fraudulent drivers’ license and your friend (brother? Sister?) can be charged with contributing to the delinquency of a minor. What to do? DO NOT display fake ID. Cool down with an ice tea, not Long Island ice tea. Life is too short and cops are too mean, thinks first and then don’t do it!

Possession of cocaine and trafficking in cocaine criminal charges begin with the government finding and proving possession of measurable amounts of cocaine. Often Florida criminal defense attorneys must defend cases where a small or trace amount of cocaine is found, and often found not ON someone but in close proximity. What is a provable amount of cocaine for Florida criminal statutes to be invoked?
It varies from state to state, but our concern here is Florida criminal law. In Florida if the state can prove even a trace amount of cocaine, or cocaine residue, then they have met their burden. Outrageous yes? Yes. A trace amount of cocaine can be the cocaine dust that remains in a baggie that once contained cocaine, or the burnt residue of consumed cocaine in a pipe. It is enough. Possession of cocaine cases in Florida can be made if the State can find and prove you had a baggie that once contained cocaine, or a pipe (paraphernalia) that once burned crack or cocaine. In the waning months of 2009 the U.S. Supreme Court ruled that Florida criminal defense attorneys in Fort Lauderdale and Miami could demand a chemist appear in court to make the case, but the law remains: possession of cocaine can be proven with a charred pipe or an empty plastic bag.

Possession is a subject of another blog entry…so stay tuned! Or, if you have a question, contact a Florida criminal defense attorney in Fort Lauderdale, West Palm Beach, or Miami. Start with Ralph Behr; he’s been at it for over 34 years!

It is against Florida criminal laws for an underage person (21) to sell, serve, possess or consume alcoholic beverages. Serving alcohol to a minor can be a felony: child abuse. If alcohol is present in the same space as a minor the law permits a presumption, albeit rebuttable, but a presumption nonetheless, which means an arrest and a trip to the courthouse. The proving of actual possession is the trick, but the trump is the arrest and the charge. A minor (under 21) can work in an establishment that serves alcohol, he/she can serve it, but cannot consume. If you are underage and in a car that is stopped you will be arrested. The arrest leads to a criminal charge, a South Florida criminal defense lawyer to defend you and an anxious South Florida jury to examine the evidence. All in all the best route is to say no when invited into a car or a party where underage people are holding, drinking, offering and or consuming alcohol. A criminal arrest can derail life plans, so wait until you are 21.