South Florida Criminal Defense Lawyer Blog

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.

In Miami and Fort Lauderdale, South Florida criminal prosecutors almost always file conspiracy charges with all drug trafficking cases. It is a lazy prosecutor’s method to seek a criminal conviction under two theories: drug trafficking and an agreement to traffic in drugs. One does not need to complete the crime to be convicted of conspiracy. Proving drug trafficking requires proving the elements of possession with the intent to distribute a controlled substance of a weight sufficient to file drug trafficking charges. Proving a conspiracy is in many ways easier.

A conspiracy to traffic in a controlled substance such as cocaine or marijuana requires the prosecutor prove an agreement in which each member of the conspiracy becomes the agent of each and every other member. The most essential part of the conspiracy offense is the making of the agreement. The next element is an overt act: which means during the life of the agreement each criminal defendant must take one overt act to advance the criminal undertaking. The conspiracy can be proven with statements from co-conspirators only if they are made during and in the course of the conspiracy. Once the conspiracy ends, either by the withdrawal of a participant, or the completion of the criminal enterprise, the conspiracy ends. Conspiracy, to summarize; requires that two or more persons come to an understanding, that the participants are voluntarily entering into a criminal enterprise, that there is an act, an overt act, to advance the crime. Lastly that the act was knowingly done to carry out the objective of the conspiracy. For more information on criminal conspiracy in South Florida, contact a South Florida criminal defense attorney for a consultation.

Entrapment is one of the few defenses which are “affirmative defenses”. In cases such as drug trafficking, and conspiracy to sell or deliver cocaine, an affirmative defense is a law created avoidance of the charges. It bars conviction.

Entrapment is based on the due process rights created in both the Florida and U.S. constitution. In Florida criminal courts a subjective and objective entrapment defense can be raised. Objective defenses are argued before the judge, without the jury, and involve allegations of outrageous police actions, such as when the police take cocaine they seized from dealers, take it to a police laboratory, turn it into crack cocaine, then release it for use in sting operations. Subjective entrapment, a jury issue, argues that the accused was not looking for or seeking to commit the crime, that the opportunity was brought to him/her by the police or an agent (confidential informant), had no history of that particular crime, and was brought into the criminal enterprise by inducements engineered by the police or a police agent (confidential informant). If you believe you have been entrapped contact a South Florida criminal defense attorney and ask for a meeting to explore the current state of entrapment law in Florida criminal courts, such as Miami-Dade, Broward, Fort Lauderdale, and West Palm Beach.

Insanity as a defense to a criminal charge in Florida can be raised, but like any defense, such as entrapment or self defense, one must admit to the crime and then raise the defense. South Florida criminal lawyers find Florida criminal juries very reluctant to accept insanity defenses. Insanity under Florida criminal law, means that due to a mental infirmity, disease or defect the accused did not know what he/she was doing or its consequences, or, although he/she knew what he/she was doing, but did not know it was wrong. If the defendant believed what he/she was doing was morally right, then he/she is not insane, if he/she was aware that it violated societal standards or knew it was against the law.

In Florida criminal courts (Fort Lauderdale, West Palm Beach and Miami) there is a presumption of sanity. That means a criminal defendant in Florida has the burden of proving the defense of insanity. The standard of proof is by clear and convincing evidence. Clear and convincing evidence is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief, without hesitation, about the matter or defense raised. Unrestrained passion or ungovernable temper is not insanity.

Attacking probation violation warrants starts with the basics: 1. was the alleged violation a condition of the probation sentence? 2. Did the violation occur during the probationary period? 3. Was the warrant obtained during or after probation ended? If you have an outstanding violation of probation from a Florida criminal court, contact a South Florida criminal defense attorney and let him/her do the basics? 1 – 2 – 3. What? When? Timely?

Violation of Probation warrants are often filed wrongly or too late to be lawful. A legal attack on a violation of probation warrant requires some digging. First get a copy of your final disposition: did the Judge include the condition in the probationary term? If it is a violation of probation based on the statute, check the statute in effect: statutes are amended by the legislature and conditions are added and deleted. Verify that the violation of probation warrant was submitted during the term of the probation. If the violation warrant was sent to the judge after the expiration of the probationary term then it is not a legal warrant and is subject to attack and dismissal. Don’t just submit to a violation of probation warrant without a competent and diligent Florida criminal attorney doing due diligence. A sloppy lawyer will just assume the warrant is correct, but that is not always the case. For more information contact my office for a no-cost consultation. If you have an open violation of probation warrant from Broward (Fort Lauderdale), Miami (Miami Dade County Florida) or Palm Beach, contact a Florida criminal lawyer and assert your right to a legal defense.

Fort Lauderdale and Miami criminal courts all have special criminal court divisions dedicated solely to prosecuting cases of domestic violence. Florida criminal law defines domestic violence as any assault, battery, sexual assault or stalking, kidnapping, or false imprisonment committed on a “family or household member”….or anyone you’re dating, (or dated in the past year) lived with (even if over a year in your past), married to or related to up to the third consequinity. That covers a lot of people. The legislature chimed in with some extra long sentences and a whole bunch of rules that make pre-trial release or bail almost beyond reach. If the charge involves domestic abuse or violence then you are going to be held hard in jail before the case even gets to a judge. Wrong? Unfair? Over the top? Maybe yes, but it’s the law. And why? Well because your legislature is very sensitive to voters who are vocal, and promoters of domestic violence issues holler loud and shrill when pitching legislators for harsher and harder rules that deny bond and inflict longer prison terms for domestic violence, and dating offenses. What to do? Don‘t marry, don’t date, disavow and disown your family (including aunts and nephews), live alone and avoid contact with human beings. A better answer: don’t touch, don’t strike, don’t hit. If there is a problem open the door and leave.