Wednesday, January 4, 2017

Drug Possession

If you or a loved one has been charged with a drug crime, you need to understand that the potential consequences can be quite severe.  A conviction for a drug charge can result in prison time, lengthy probationary periods, high fines, and suspension of your driving privileges.  An experienced criminal defense attorney may be able to help you avoid these dire consequences. 

Whether you have been charged with possession, possession with intent to sell, or drug trafficking, an experienced drug crimes lawyer will explore some of the following defenses to fight your case:

Illegal Search and Seizure

The Fourth Amendment to the United States Constitution is a safeguard of justice and protects people against unreasonable searches and seizures of either self or property by government officials.  In this scenario, a skilled drug crimes lawyer will evaluate your case to determine whether law enforcement had probable cause to stop your vehicle or to search your car or your person. 

Constructive Possession

To establish constructive possession, the state must show that the accused had dominion and control over the contraband, knew the contraband was within his presence, and knew of the illicit nature of the contraband. Brown v. State, 428 So.2d 250 (Fla. 1983).

Insufficient Evidence

When charged with a felony drug offense, the State is charged with the burden of proving that the recovered substance is in fact the illicit drug that law enforcement claims it is.  This means that the State will be required to send the substance to the Florida Department of Law Enforcement (FDLE) to have the substance tested and weighed.  In a number of cases, the substance either doesn’t test positive for what it is alleged to be, doesn’t meet the weight requirement for a trafficking offense, or simply doesn’t get tested at all.  In any of these scenarios, and experienced drug crimes lawyer will move to have your charges dismissed.

Entrapment

In the State of Florida, there are two types of entrapment defenses: subjective and objective.
    
          Subjective Entrapment

To establish a subjective entrapment defense, a drug crimes lawyer would need to establish that law enforcement induced their client to commit an offense that they were not otherwise predisposed to commit.  Pursuant to Florida Statute §777.201, the accused must establish the following elements by the greater weight of the evidence:
  1. the accused was induced or encouraged by law enforcement or a law enforcement agent (such as a confidential informant) to engage in criminal conduct in order for law enforcement to obtain evidence of the commission of a crime;
  2. the accused engaged in such criminal conduct as a direct result of law enforcement inducement or encouragement;
  3. the person who induced or encouraged the accused was a law enforcement officer or a person engaged in cooperating with or acting as an agent of a law enforcement officer;
  4. the person who induced or encouraged the accused employed methods of persuasion or inducement so as to create a substantial risk that the crime would be committed by a person other than the one who was ready to commit it; and
  5. the accused was not a person ready to commit the crime.
Once the Court finds that the defense has met their burden, the burden shifts to the State to prove beyond a reasonable doubt that the accused was predisposed to commit the alleged crime and that the accused’s predisposition to commit the crime existed prior to and independent of the inducement or encouragement by law enforcement.

           Objective Entrapment

Objective entrapment is applied in cases involving egregious law enforcement conduct and is evaluated under the due process provision of the Florida Constitution. The defense of objective entrapment requires reviewing the totality of the circumstances in order to ascertain whether police conduct offends canons of decency and fairness.

In cases where these defenses are not available, other options that can be explored include drug court and pre-trial diversion.

Drug Court

Most jurisdictions offer drug court programs aimed at rehabilitation of the offender.  These programs typically range from 7 – 18 months.  In order to be deemed eligible to participate in a drug court program, the offender must meet the following criteria: (1) must have a serious drug/alcohol problem; (2) be a non-violent offender; (3) not previously terminated from a drug court program; and (4) be charged with a felony drug related charge (possession, purchase, or obtaining prescriptions by fraud).

Pre-Trial Diversion

This program is offered for first-time offenders who charged with possession of small amount of drugs.  The pre-trial diversion program requires the offender to complete drug treatment, undergo random drug screens, complete community service hours, and pay a fine.  Successful completion of a pre-trial diversion program will result in the criminal charges being dismissed.

Free Case Evaluation

If you or a loved one has been charged with a drug offense, it is important to seek the advice of a competent and skilled criminal defense lawyer.  We will be able to evaluate your case and look for defenses that may not be obvious to you.  Call today at 407-473-1233 to schedule your free and confidential case review. 

Tuesday, November 1, 2016

I Have Been Arrested for DUI, Now What?


Unlike most criminal cases, DUI cases seem to affect the broadest demographic of clients.  According to the Centers for Disease Control and Prevention (CDC), in 2014, over 1.1 million Americans were arrested for DUI.  If you have been arrested for DUI, there are some things that you need to know.

In the State of Florida, an arrest for a DUI will not only result in a criminal charge, it will also result in an Administrative Suspension of your driving privileges through the Florida Department of Highway Safety and Motor Vehicles (DHSMV) if you refused to provide and blood, breath, or urine sample, or if you provided a breath test in excess of the legal limit.

As frightening as the prospect of having to appear before a Judge to answer to the DUI charge might be, your first concern should be in regards to your driving privileges.  You only have 10-days from the date of your arrest to either apply for a hardship license or to file an Application for a Formal Review Hearing. 

If this is your first time being arrested for DUI, you can register for the DUI Counter Attack School through the Florida Safety Council.  Once you register for the class, you will be able to take the certificate of registration to the DMV and petition for a hardship hearing. 

The second option is to file an Application for a Formal Review Hearing.  At the time of filing of the application, the DMV will provide you with a temporary driving permit that will have an expiration date approximately 42 days from the date of issuance.  You will then receive a Notice from the DMV advising you of the date and time of the Formal Review Hearing.  Following the hearing, the hearing officer will make a formal finding whether to sustain or overturn the suspension of your driving privileges. 

Now that you have taken care of your license, you will need to focus on the criminal matter.  The Clerk of Court in the County in which you were arrested will send you a Notice scheduling an Arraignment.  At your arraignment, the Judge will advise you of the potential sanctions that could be imposed and give you an opportunity to plead not guilty, guilty, or no contest.  If you plead guilty or no contest, the court will immediately move onto sentencing and you will be sentenced.  For a list of possible penalties, please visit: http://www.zlawfirmfl.com/dui-penalties.html.

If you plead not guilty at your arraignment, the court will schedule you for a Pre-Trial Conference.  The Pre-Trial Conference is where defense attorneys and prosecutors discuss cases in an effort to reach a resolution.  If you are unrepresented, the Prosecutor will likely make an offer that you can accept or reject.  Prosecutors will not negotiate with you if you are unrepresented. 

If you maintain your plea of not guilty, your case will be scheduled for a jury trial.  At trial, you will have an opportunity to participate in the jury selection process and six jurors will listen to the testimony and render a judgment. 

This is a roadmap of how a DUI case works.  However, the process is truly far more complex.  An experienced criminal defense lawyer will tell you that DUI Defense is one of the most complex areas of criminal defense.  It would greatly benefit you to speak with an experienced DUI Lawyer before you begin to navigate your way through your case.

An experienced DUI Lawyer will advise you of what option is best for you to select when it comes to reinstating your driving privileges.  The Administrative Review Hearing system is tilted heavily in favor of the State and should not be handled by someone who is not well-versed in DUI law. 

Having an attorney review your case may also result in the possibility of finding issues that can be litigated in pre-trial hearings.  An experienced DUI Lawyer will be able to utilize the arresting officer’s mistakes to his client’s benefit.  Many times these hearings can result in the charges being reduced or dismissed. 

So, if you have been arrested for a DUI, call and speak with an experienced DUI Lawyer who can advise you of your rights, answer your questions, provide you with a framework for how they plan to fight the case, and discuss possible outcomes.  Having an experienced DUI Lawyer working for you can make the difference in the outcome of your case. 

Monday, October 24, 2016

That's Not Meth


On December 11, 2015, an Orlando man was arrested for a felony charge of Possession of Methamphetamine.  The resulted from a traffic stop as the Orlando man was exiting an Orlando area 7-11.  Orlando police officers claimed that they had stopped the man’s vehicle for failing to come to complete stop as he was exiting the convenience store parking lot.

According to the arrest affidavit, Orlando Police Officer Shelby Riggs-Hopkins wrote that she “observed in plain view a rock like substance on the floor board where his feet were.”  When questioned about what was found, the man advised that what she was looking at was sugar from a Krispy Kreme donut. 

This eleven-year veteran of the Orlando Police Department retrieved the observed substance and conducted a field test.  The substance produced a positive result for amphetamines.  When questioned further about the substance, the 64-year old man advised Officer Riggs-Hopkins that the substance was sugar.

Rather than conducing any further testing on the substance, Officer Riggs-Hopkins arrested and charged the man with a third-degree felony charge.  After additional testing by the Florida Department of Law Enforcement (FDLE), the substance was confirmed to be sugar from a Krispy Kreme donut.

Now the Orlando man has filed a lawsuit in Orange County Circuit Court alleging negligence on the part of the City of Orlando and the company which produces the drug test kits.  The man is claiming emotional harm, including embarrassment and humiliation. 

Monday, October 17, 2016

Traffic Ticket Quotas

The Winter Springs Police Department is currently being investigated for a program where Officers were rewarded for meeting and/or exceeding citations issued and arrests made during a week in September.  During the weekend of September 10th, more than 100 citations, warnings, and arrests were made.  A discovered internal handwritten memo titled, "Delta Shift Weekend Competition" offered points to the officers for cases ranging from a traffic ticket to a DUI arrest.  The winner of the contest would be able to "float" for a pay period and would get a surprise.

On July 1, 2015, Florida Governor Rick Scott signed a law that forbids local governments from having traffic ticket quote programs.  Many believe that this law ensures transparency in government and prevents the exploitation of motorists.  This investigation into the Winter Springs Police Department being conducted by WFTV News 9 could create issues for the agency.

If you were issued a civil traffic infraction or if you were arrested for a drunk driving (DUI) charge during the month of September 2016 in Winter Springs, Florida, you may want to contact a Winter Springs Criminal Defense Lawyer to determine whether your case is impacted by this quota program.

Wednesday, October 12, 2016

Changes to Florida Minimum Mandatory 10-20-LIFE Law

Florida Senate Bill 228 was drafted as an act relating to mandatory minimum sentences.  On October 1, 2016, it was enacted into law by amending Florida Statute 775.087.  The amendment deleted aggravated assault from the list of convictions which carry a minimum term of imprisonment if during the commission of the offense the convicted person possessed a firearm or destructive device.  It also deleted the term aggravated assault from the list of convicts which carry a minimum term of imprisonment if during the commission of the offense the convicted person possessed a semiautomatic firearm.

Tuesday, October 11, 2016

Changes to Florida Firearms Law

The Florida Legislature has enacted an act making it a crime to threaten terror or acts of violence towards public officials.  Senate Bill 436 was signed into law and created Florida Statute 836.12.  This statute defines the terms "family member" and "law enforcement officer."  Senate Bill 436 also amends Florida Statutes 790.163 and 790.164 by creating the crime of falsely reporting the use of firearms in a violent manner against a person or persons.

Thursday, September 15, 2016

Criminal Defense - Escape


Claudio J. Poillot was serving a 48-month prison sentence for a felony conviction.  While in state custody and being housed at the Kissimmee Community Center, Poillot began employment with a construction company, JS & Son Construction Services through the work release program.  The work release program permitted Poillot to work outside of the correctional facility from 6:00 a.m. to 6:00 p.m., Monday through Saturday.  On July 29, 2014, he left the Kissimmee Community Work Release Center and timely reported to work at JS & Son Construction.  Shortly thereafter, Poillot left his place of employment without permission and was unaccounted for until he timely returned to the work release center before 6:00 p.m.  Upon his return, Poillot was arrested and charged with escape pursuant to Florida Statute §944.40.  Subsequently, the trial court granted Poillot’s Motion to Dismiss and the State appealed.

The Fifth District Court of Appeals reversed the lower court’s decision, concluding the work release program was an extension of Poillot’s confinement, and his deviation from the program in the manner asserted by the State establishes a prima facie case for escape. The Florida Supreme Court concurred with the Fifth District Court of Appeals and held that an inmate is still confined when he is working as part of a work release program, and leaving without permission would subject the inmate to a charge of escape.  Poillot v. State, No. SC15-1691 (Fla. September 8, 2016).