December 2008 Archives

With the holiday season in full swing, the use of breathalyzers at DUI checkpoints and other traffic stops designed to nab impaired drivers will be used with great frequency.  Yet, these breathalyzers are notoriously inaccurate.  These inaccuracies are not only due to ineffective or sloppy administration. 

By design, the breathalyzer is designed to attempt to measure the presence of chemicals that are found in alcohol.  However, there's a inherent problem in this type of measurement.  First of all, the breathalyzer can only provide an estimated result.  Secondly, many other chemicals present in breath can trigger an elevated reading.  Diabetics, those on Atkins type diets, smokers, and those who've recently been exposed to gasoline may register higher measurements due to factors that have nothing to do with alcohol.  Those who suffer from acid reflux or regurgitation will also register a falsely elevated measurement.  The cases have become so notorious that some states refuse to admit breathalyzer test results as part of the prosecutor's case.

According to expert Dr. David Hanson, the human breath can contain over 100 chemical compounds at any one point and of those 70 to 80% of them mimic the chemical structure of alcohol.  According to Dr. Hanson, false positive breathalyzer readings can occur for a myriad of reasons, not merely the presence of alcohol. 

That's why a blood alcohol test is a more accurate measure of BAC.  If you're stopped and have submitted to a breathalyzer, don't assume the police have the evidence necessary for a DUI conviction.  A good DUI lawyer can fight these results and may be able to suppress that evidence in your case.

If you've been driving around the Tampa Bay area this holiday season, you're bound to notice the number of DUI checkpoints law enforcement officials have set up to catch potential impaired drivers. 

If you're stopped and arrested in one of these DUI checkpoints, you'll need an experienced criminal trial lawyer who handles DUI offenses. 

These checkpoints have come under more legal scrutiny the last few years especially concerning the manner in which officers conduct the stops and how they determine which vehicles to stop and check.  The 4th Amendment protects your rights in these types of situations and an experienced DUI attorney may be able to file and litigate a Motion to Suppress if your civil rights were violated during the stop.  A successful motion to suppress would essentially throw out all the evidence gathered against you during the stop.  This would leave the prosecutor with nothing to present during trial.  The second district court of appeals recently reaffirmed this view in Guy v. State, _ So.2d_, 2008 WL 4276326 (Fla. 2d 2008).  

In Guy, the second district court of appeals sided with the defendant (Guy) who argued that law enforcement had inadequate DUI checkpoint guidelines and that the officers had to much discretion concerning who would be stopped. 

The 4th Amendment to the United States Constitution provides a strong checks and balance to the law enforcement's ability to conduct unlawful searches and seizures.  It's your duty to hire a good DUI lawyer who knows how to apply the 4th Amendment to your particular situation. 

With news reports of Caylee Anthony's remains being positively identified and her mother charged with first degree murder, it's a good time to review what a charge of 1st degree murder entails. 

In order to be convicted of 1st degree murder, the accused must have acted in a premeditated fashion ie. he/she intended to kill the victim. 

Other than providing an alibi whereby the accused could not have committed the crime (first degree murder), another defense recognized under Florida law is the "heat of passion" defense.  Heat of passion describes a mental state brought upon by fear, rage, anger, or terror that, combined with adequate provocation, is a defense against conviction of first or second degree murder.  Adequate provocation is defined as that which might cause a reasonable person in the heat of the moment to lose self control or adequate reflection to act impulsively.  The case most often cited in these types of defenses is Villella v. State of Florida where a husband charged with killing his wife argued that his crime was one of passion after he learned of his wife's affair. 

If you read your local paper, the St. Pete Times or the Tampa Tribune, you can't help but notice the plethora of stories about those charged with sex crimes.  The crimes can range from solicitation to child pornography on the Internet.  Given the sensitive nature of the crimes as well as the prevalence, a proper defense can be problematic.  People tend to believe that the person charged is guilty rather than innocent due to the nature of the offense.  That's why a strong, aggressive defense is necessary.

If the charge concerns an Internet child pornography offense, a good computer forensics expert will be necessary.  If the charge has to do with person to person contact, a detailed background investigation of the circumstances is paramount.  In either case, a criminal defense attorney with experience handling these types of cases may be your only chance at a fair trial. 

This time the criminal lawyer wasn't paid by the client for his services.  This time the defense lawyer was a public defender.  Yet, the inadequate job he did representing his client closely resembles the case I blogged about yesterday.  In this particular case, a young man, a teenager, was sentenced to prison for 30 years for vehicular homicide.  The teen pled no contest to the charge after his lawyer promised him that he wouldn't go to jail. 

in the late evening of December 28, 2004, William Thornton was driving home when he skidded through a stop sign and crashed into another vehicle, killing the two occupants.  Thornton was not found to be using alcohol or drugs at the time of the accident.  He did, however, lack a valid driver's license. 

In the hearing that set him free, Thornton told the judge and the prosecutor that he agreed to the plea after he was promised no jail time.  In reality, the public defender had not worked out any plea arrangement with the prosecutor.  In fact, he took no depositions, didn't interview anyone, didn't investigate the crime scene, didn't take photos of the accident scene, and didn't consult with accident reconstruction experts.  In other words, he didn't do his job. 

Once the prosecutor and the judge heard the testimony, the prosecutor immediately agreed the judge that the conviction should be set aside.  According to his own testimony, this was the public defender's first vehicular homicide case. 

Hopefully, we'll all learn some valuable lessons from this tragedy.  First, hire a lawyer that's experienced and takes the time to listen.  Follow up with your lawyer and become involved by asking questions about the progress of the investigation and/or negotiations.  Also, be certain that the lawyer you hire is actively investigating and working the case.  If you're charged with a crime, your freedom and future may depend on it!

It's so rare that I've never seen it done in more than two decades of criminal defense trial work.  Hillsborough County Circuit Judge William Fuente ordered a new trial in David Rolon's murder case.  In the order, Judge Fuente cited the inadequate defense offered by Attorney Byron T. Christopher.  Fuente waited for defense motions for overturning the conviction or a new trial.  When none were forthcoming, Fuente ordered a new trial citing inadequate defense.

The defendant stood accused of fatally shooting a neighbor and faced 25 years to life in prison if convicted. 

In open court, Attorney Christopher admitted to having spent less than five minutes preparing him for testifying in his own defense.  During the questioning, the defendant appeared confused and even gave incriminating statements to questions from his own defense attorney.  What Rolon's attorney did or didn't do is an outrage.  The Sixth Amendment provides for competent legal counsel and Judge Fuente found that Christopher did not provide it to his client. 

In any criminal case, the defendant's life is on the line.  Whether the charge is murder or petty theft, the outcome will impact the defendant for the rest of his life.  A competent, skilled, and aggressive defense is not only required by law but demanded by justice and the oath that the attorney takes upon admission to the Bar. 

When hiring a criminal defense lawyer, know the right questions to ask your potential lawyer.  Remember, you are interviewing him or her for a job.  Make certain your lawyer has sufficient trial experience and has a good record with the Florida Bar (or whatever Bar holds sway in your area).  Determine before hiring an attorney that he or she has no violations or reprimands in the record.  Finally, make sure the attorney listens to you and your concerns.  If the prospective attorney seems too busy for you or is distracted by other phone calls or meetings, hire a different attorney.  You deserve your attorney to focus and expend all his or her legal skill and experience on your case.  The stakes are too high to do otherwise.

Two Hispanic men were the victims of an early morning attempted robbery in Clearwater.  One of the men was taken to St. Joseph Hospital after suffering a gunshot wound.  The assailants were described as two young men in their early 20's.  The shooter was described as a thin African-American wearing a dark, hooded sweatshirt with long dark shorts.  The Caucasian was described with long hair and wearing a light blue jacket and long, blue shorts.

The police are presently searching for the two men.  Irrespective of who the police arrest, one of the principal defenses of those charged will be that this is a case of mistaken identity.  Of course, in order to prove that the police arrested the wrong people, those arrested will have to provide law enforcement with solid alibis.  They would need to show police that they could not be the ones who committed the attempted robbery because they were elsewhere with reputable witnesses at the time the crime was committed.

Garrett Harrison, 18, and Latiff Khan, 44 were both arrested for the cultivation of marijuana at their rental property in Seminole yesterday.  The police were tipped off to the marijuana cultivation by neighbors who reported to police suspicious behavior. When the police investigated they found 100 marijuana seedlings growing in the ground as well as in pots. 

Now, the real question concerns probable cause.  Did the police have sufficient cause to enter the rental property to search for illegal activity based on witness reports of "suspicious behavior"?  Unfortunately, "probable cause" is a real catch-all term that can be very liberally applied by law enforcement.  It's the job of the criminal trial lawyer to question their application of probable cause in any given scenario.  In any criminal case, probable cause often means the difference between guilt and innocence and even sometimes charges being dropped altogether.  It's an important part of the criminal justice system and a good criminal lawyer will know the intricacies and every minute detail of the legal concept.

John Silva, owner of John's Variety on 4th St. North in St. Petersburg, didn't sit around and give two masked robbers what they wanted.  Instead, he picked up his .380 gun and started firing.  In fact, he followed the robbers out of the store and fired three rounds at them.  When police were asked if he might face gun charges, they responded "Probably not."  However, he's probably lucky since he actually pursued the assailants and fired shots down a public street.  If he'd hit an innocent bystander, he may have been looking at a different scenario.

However, Florida's Castle Doctrine allows such action.  The Castle Doctrine provides for three things:  1)It establishes, in law, the presumption that a criminal who forcibly enters or intrudes into your home or occupied vehicle is there to cause death or great bodily harm, therefore a person may use any manner of force, including deadly force, against that person. 2)It removes the "duty to retreat" if you are attacked in any place you have a right to be. You no longer have to turn your back on a criminal and try to run when attacked. Instead, you may stand your ground and fight back, meeting force with force, including deadly force, if you reasonably believe it is necessary to prevent death or great bodily harm to yourself or others.  3)It provides that persons using force authorized by law shall not be prosecuted for using such force. It also prohibits criminals and their families from suing victims for injuring or killing the criminals who have attacked them.

The Legislature as well as public opinion is decidedly siding with the victim of crime, even if it's a "Dirty Harry" scenario.

OJ Simpson's lawyers believe they have multiple grounds to appeal his conviction as well as his sentence in spite of the fact that the prosecution has said the evidence is "overwhelming".  Some of the factors that have compelled Simpson lawyers to appeal include the fact that the judge allowed testimony concerning Simpson's 1994 murder trial and the absence of African American from the jury process.  The appellate process may take years and Simpson will most likely have to spend the time in jail. 

In any criminal matter, whether in the appellate process or the pre-trial phase, the defense must act aggressively and quickly.  In spite of the fact that our legal system is based on the premise "innocent until proven guilty", the penal process works against those charged with crimes.  A good criminal trial lawyer knows how to navigate the process, deal effectively with the prosecution, and hire experienced investigators to gather the facts of the case. 

Perhaps it's the bad economy but criminal activity is on the rise.  There are more reports of robberies, assaults, attempted murders, and domestic batteries this time of year.  This doesn't include the rise in DUI arrests as well.  If you attend a holiday party or outing this year and you plan on drinking, get a designated driver or arrange for alternative transportation before you leave.  The police are on a heightened alert for impaired drivers as well as suspicious activity this time of year. 

If you don't take precautions, you may end up calling an attorney to bail you out of a situation you didn't plan on.  That's not a risk worth taking.  Be careful, be smart, and be safe.

There was an interesting article in the NY Times yesterday on the legal predicament confronting NY Giants wide receiver Plaxico Burress.  By the way, it's a situation many of those charged with gun possession in the Tampa Bay area face every day. 

When then-Governor George Pataki signed into law the tough gun possession law it eliminated a provision in the law that allowed judges the option of not imposing an automatic jail sentence on those convicted of gun possession charges.  This is a disturbing trend in criminal law not only in New York but all across America.  On the surface, such legislation is popular because it appears to be tough on crime and criminals.  However, what isn't taken into account is that every criminal case is different.  At times, there are extenuating circumstances which beg for a judicial exception in sentencing. 

Now, I'm not saying Burress deserves to be one of those eliminated exceptions. However, a judge should be allowed to weigh the evidence in light of the particular circumstances of the case in front of him and make a prudent sentencing decision.  Unfortunately, what has happened all too often (and it's happening in Florida) is that judge's are not allowed to exercise their authority because it has been stripped from them by an over zealous legislature that seeks a quick political win.  Politicians think they can score quick political points with their constituents if they appear "tough on crime". 

The real loser in this political power game is our democracy which presupposes fair play and the presumption of innocence.  It's an example of one branch of government overstepping their powers and encroaching on another branch. 

Tampa native Derek Bell was arrested yesterday in Tampa on four counts of possession of drug paraphernalia.  He was arrested in 2006 on a cocain possession charge but adjudication was withheld.  None of the media reports I've read stated whether the law enforcement officials found the paraphernalia after stopping Derek for an earlier failure to appear warrant.  If that's the case, the police could've searched his car without first seeking a warrant.  On the other hand, if Bell gave his consent (which most people inexplicably do) for the car search, he unnecessarily forfeited his civil rights.  This may jeopardize his future freedom as well as his earlier withhold of adjudication on the cocaine charge. 

These are not good days for Derek Bell. 

I'm writing this post in the post-Plaxico Burress shooting debacle.  Florida's laws concerning the possession of a firearm are serious and have potentially stiff penalties if convicted.  If you're convicted of carrying a concealed weapon, its a 1st degree misdemeanor with a $1,000 fine and a year in jail as the maximum penalty.  If the conviction concerns a concealed firearm, it's much more serious (3rd degree felony) and the penalty of a maximume 5 years in jail and a $5,000 fine. 

As in most states, Florida requires a license in order to carry a concealed firearm or weapon.  Those who are not issues such licenses include: 

Plaxico Burress may find out the hard way.  He apparently didn't know the law.  If you're reading this blog post, you now know the consequences for illegal possession of a weapon or firearm.  If you want to carry a firearm, get a license and avoid having to hire a criminal lawyer to get yourself out of hot water!

When clients come to me after having been charged with the serious crime of attempted murder, I know immediately, without having heard the specific circumstances of the case, that my skills as a criminal trial lawyer will have a huge impact upon my client's future. 

An attempted murder conviction is based primarily upon the prosecution's ability to prove to a judge or a jury that the person charged actually intended to kill another human person.  In other words, to make an attempted murder charge stick, the prosecutor has the burden of proof to convince the judge or a jury that the intention to murder was present.  That's the law and attempted murder cases are more about the power of persuasion than the law.  The law basically places the case in the hands of the two lawyers-the prosecutor and the defense attorney.  As a criminal defense attorney, I have to place that intent in doubt so that my client will not be convicted of the serious charge of attempted murder.