Fort Lauderdale Criminal Attorney Blog

April 20, 2013

New Florida DUI Manslaughter Trial for Polo Mogul?

By The Law Offices of Richard Ansara, P.A.

A columnist with the Sun-Sentinel recently penned an article he claimed pained him.

In it, he wrote that as much as he hated to say it, the wealthy businessman convicted of DUI manslaughter in the 2010 death of a 23-yaer-old college student deserved another round in the courtroom.

Our Broward DUI manslaughter defense attorneys know that even if an appellate court agrees to the defense’s request, it’s the kind of opportunity defendants rarely get. That’s why it’s so critical for defendants to get it right the first time, with a defense attorney who is experienced, skilled and tireless in his approach.

The reason this case may result in another trial has little to do with the facts of the case itself, and a lot to do with the actions of one of the jurors.

The facts of this case have been well-publicized. The defendant, who is a multimillionaire polo magnate, reportedly had been drinking prior to getting in his vehicle and striking another vehicle, driven by a 23-year-old man, whose vehicle ended up in a canal, where he drowned. The defendant reportedly drove away without calling for help.

The conviction was handed down a year ago.

But the juror in question has been quite busy since then. He has written a string of self-published books. In one of those, the juror revealed that he had conducted his own at-home drinking experiment during the deliberation phase of the trial. He consumed as much vodka as the defendant was alleged to have consumed. Part of the defense’s argument had been that while the defendant had been drinking, he was not actually intoxicated. The juror set out to find out for himself how intoxicated one might be after consuming that much.

There are so many problems with this, it’s hard to know where to begin. First, jurors are only supposed to decide a case based on the evidence before them. They aren’t supposed to be conducting their own investigations in the midst of the trial.

Secondly, an at-home experiment like this lends itself to a great deal of inaccuracy. Even slight physical differences between the two could mean that one person could consume a certain amount and not be inebriated, while the other clearly might be. Tolerance levels might affect this as well, depending on how much alcohol each individual regularly drank.

Defense lawyers recognized this and requested a new trial – especially after other jurors said that this one had mentioned in during the course of deliberations.

Then, in a second publication, this same juror revealed that his former wife had once been under arrest for DUI. This was something he did not mention during the jury selection.

As the Sentinel columnist points out, the defense team has been grasping at whatever straws are available to try to get this conviction overturned, as it carries a 16-year prison sentence. However, this one juror and his improprieties may hold the key to actually getting this man a new trial.

A hearing on the matter is scheduled for later this month.

The bottom line is that everyone is entitled to a fair trial. It’s our job to make sure you get one.

If this defendant did not receive one, he deserves to have another day in court.
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April 18, 2013

DUI Blood Tests Require Warrant, Supreme Court Rules

By The Law Offices of Richard Ansara, P.A.

The U.S. Supreme Court has ruled that in most cases, if a police officer wishes to draw a blood sample and does not have your consent, a warrant must first be obtained.

Our Broward DUI attorneys know that this is a significant victory for individual rights, as the justices ruled that such action would be unconstitutional, per the portion of the Fourth Amendment that protects against unreasonable searches and seizures.

Law enforcement in this case, Missouri v. McNeely, had attempted to argue that the natural dissipation of alcohol in the blood stream was enough to circumvent normal procedure and initiate a blood draw without a warrant.

That reasoning did not fly with the majority of the justices, who ruled 5-4 in favor of the defendant.

An officer had stopped him for speeding and driving left of center. The defendant refused to take a breathalyzer test and also refused consent to a blood draw. Although this officer had no issues in the past quickly obtaining a warrant, he decided to skip it this time, instead transporting the defendant straight to the hospital to have a sample drawn. The defendant was handcuffed the entire time and did not consent to the procedure.

The fact that the defendant’s blood-alcohol level was well above the legal limit was found to be beside the point. The bigger issue was the denial of due process.

The justices found that in routine DUI stops, there is no reason why law enforcement officers shouldn’t be expected to first obtain a warrant if the defendant does not consent to the invasive blood draw procedure. The exception would be if there was an emergency situation in which the delay necessary to get a warrant would result in the significant and irreversible destruction of evidence. The fact that alcohol naturally dissipates in a person’s system is not reason enough to forgo the effort to get a warrant.

Now, it’s not all that difficult for law enforcement officials investigating a DUI to obtain a warrant for a blood draw. A lot of times, the entire request can be processed and granted right from the patrol car. So the justices ruled that the procedure is not such a hindrance that it poses significant delay that could result in scores of DUI defendants walking free for lack of evidence.

Further, the court pointed out there are already stiff penalties in place for those who refuse to undergo breathalyzer tests. These are known as implied consent laws, and all 50 states have them. In Florida, if you refuse to submit to a breathalyzer test, you will incur an automatic 18-month suspension on your license. You will also face a misdemeanor charge and the possibility of jail time.

It’s worth noting that if you consent to have a blood sample drawn, the officer is not required to obtain a warrant. So if you have been drinking prior to the traffic stop, you may want to carefully consider whether you should offer consent. Not giving it doesn’t guarantee the officer won’t get a warrant and take it anyway, but it could provide a potential for a strong defense in court if the officer does not obtain a warrant, as is now required.
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April 9, 2013

Sibling Domestic Violence in Florida Quite Common

By The Law Offices of Richard Ansara, P.A.

They say twins share a bond that is unrivaled.

But in the case of two twins from Palm Coast, it appears their rivalry too was unrivaled.

Our Fort Lauderdale domestic violence attorneys understand the two 21-year-old brothers spared using just about anything that was in reach – including a frying pan, a machete, a pickup truck and a gun. At one point, their mother got involved.

It sounds like a rather outrageous story not only because they are twins but because we tend to think of our siblings as the ones who are supposed to stand up and defend us. The reality is that sibling-on-sibling violence is not as unusual as you might think. Animosity can be deep-rooted, stemming from small slights in childhood all the way to grievous wrongs as adults.

A 2005 study by the University of Michigan revealed that roughly 35 percent of all siblings commit assaults against one another. This was true regardless of race, income level or ethnic group.

Part of the problem is that parents tend to expect siblings to fight in childhood, so they often do little to intervene. Those patterns then repeat themselves, sometimes into adulthood.

In this case, it’s not clear exactly what started the altercation. The brother alleged to be the victim told investigators that his brother approached him with a frying pan in hand, wielding it in a manner he deemed threatening.

The alleged victim said he pleaded with his brother to “stop pulling weapons on me,” before running out to his truck in an effort to get away. The aggressor however then climbed onto the hood of the truck and began banging on it with the frying pan. The aggressor then reportedly went inside the home, grabbed a machete and ran back outside threatening to stab his brother.

During this time, the other brother might have gotten away, but for the fact that he realized his keys were inside the house. In a reported effort to make it safely from his truck to his home, the alleged victim grabbed his gun from inside the truck, pointed it has brother and warned him to back up. When his brother refused, he reportedly fired two shots into the ground.

He then was able to go inside, retrieve his keys and leave, though he later told investigators he was worried his brother might have suffered a gunshot wound to the foot.

Investigators arrived to find that the aggressor reportedly did have a wound to his foot, though he refused to reveal to officers whether it was from a gunshot wound or something else. By the time officers got there, the boys’ mother was there and reportedly attempted to impede the investigation. She told police shots were never fired, though officers aren’t clear on how else she tried to impede their work.

Officers arrested the one brother for domestic violence assault and the mother for interfering with an investigation.

Domestic violence statutes are located in Chapter 741 of Florida Statutes, which cover domestic relations. A lot of times when we’re referring to domestic violence, we’re talking about married spouses or couples in relationships. However, the law doesn’t limit it in that way.

A domestic violence is considered any assault, battery, stalking, sex crime, kidnapping or any other criminal offense that results in injury or death against one family member, household member or romantic partner against another. It could mean someone who is related to you by marriage or by blood or someone with whom you have a child but are not romantically involved. It could even involve your roommate, regardless of whether you have any romantic or familial ties to that person.

Penalties for a domestic violence charge can be severe, and they could include sanctions at work or effects on your child custody arrangements as well. Your top priority after arrest should be to hire an experienced South Florida domestic violence attorney.
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March 28, 2013

Hollywood Police Arrest Mother in “Honor Violence”

By The Law Offices of Richard Ansara, P.A.

A Hollywood woman is facing child abuse charges after investigators allege she burned her 17-year-old daughter, who had reportedly engaged in an online relationship with a boy, despite the fact that she was betrothed to her cousin.

Our Fort Lauderdale domestic violence lawyers know that instances like this, involving conservative Middle Eastern parents and their children, are sometimes referred to as “honor violence.” The girl’s actions, although acceptable by Western standards, are deemed a stain on her family’s honor by those within their religious and cultural community.

However, law enforcement officials and prosecutors will not take cultural backgrounds into consideration when deciding when to pursue charges in these cases. They are looking strictly at whether the alleged actions violate the law.

As styles of parental discipline can vary greatly between cultures, it’s very important immigrants to the U.S. understand how criminal laws vary between their native country and their new one. What in other places may be seen as a reasonable effort to control or punish unacceptable behavior, here is interpreted as child abuse or domestic violence.

Domestic violence, as defined in Florida Statute 741.28, is any form of assault, battery, sexual assault or battery, stalking, kidnapping, false imprisonment or any other offense that results in the physical injury or death of a family or household member by another family or household member.

When the alleged victim of these acts is under the age of 18, it may be considered child abuse. There are varying degrees of this crime, but in its most basic form, child abuse is defined in Florida Statute 827.03 as the intentional infliction of physical or mental injury to a child or the intentional act that could reasonably result in physical or mental injury to a child or the intentional encouragement of such act.

In this case, the principal of the girl’s school called authorities after a classmate alerted them to the girl being suicidal over the incident, which is alleged to have taken place in January. Her 35-year-old mother, who was born in Yemen and speaks no English, reportedly burned the girl three times with a hot knife on her arm after learning of the friendship she had developed online with another boy, despite the fact that she had an arranged marriage pending.

The girl said that although her mother had carried out the action, her father had known about it. He has not at this juncture been charged with a crime, though based on the “encouragement” portion of the definition, he certainly could be at some point.

Initially when questioned, he told investigators the girl had burned herself on the stove. When detectives pointed out the presence of three different burns, the father requested to speak to an attorney and the interview ended. The mother was not interviewed, as she speaks only Arabic.

The mother was arrested on three counts of domestic violence and was released after posting nearly $23,000 bond.

There are numerous other examples where this issue has arisen in the U.S. recently. In the spring of 2008, a suburban New York brother stabbed his teen sister for going to nightclubs and donning clothing he deemed immodest. He was ultimately convicted of attempted murder and handed a 10-year sentence.

In the fall of 2009, a father killed his 20-year-old daughter in Arizona by running her over with a vehicle after she reportedly refused to be a party to the arranged marriage her parents had established for her. He was convicted of murder and given 35 years behind bars.

And then just last year, a 19-year-old was reportedly attacked by her father, mother and younger sister after she was caught speaking to a non-male family member. All three family members are facing assault charges.
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March 23, 2013

Florida DUI Charge Even When Under the Limit?

By The Law Offices of Richard Ansara, P.A.

Despite a breathalyzer result that showed he had consumed less than the legal blood alcohol content threshold of 0.08 percent, the mayor of Gainesville was arrested recently by state troopers on a DUI charge.

Our Broward DUI lawyers know that situations like this are somewhat rare, but not altogether unheard of.

Although many tend to associate breathalyzer or blood sample analysis with the be-all-end-all when it comes to determining intoxication, the reality is it’s only one tool for law enforcement officers. Still, it is true that generally if you pass a breathalyzer or blood test, you will be released by the officer.

The exception to this is if you appear to be intoxicated or impaired. Officers might conclude that you are under the influence of other substances, even if it isn’t immediately identifiable which ones. You can actually be charged with DUI for taking your own prescription medications if those drugs cause you to become impaired.

Or, if the only thing you have consumed is alcohol, officers might conclude that even if you are not legally over the limit, you have a lower tolerance level and could still be charged with driving under the influence.

Anytime your blood alcohol testing results come back with a lower-than-legal limit threshold, it is going to work in your favor in court (bearing in mind that the legal limit is lower for commercial drivers and those under the age of 21).

In this case, the Gainesville mayor was reportedly found sleeping behind the wheel of his car, which had sustained significant damage. He had reportedly been involved in a nearby accident.

About an hour before the mayor was found at approximately 3:45 a.m., troopers were called to the scene of an accident. We don’t know much about that crash except for the fact that it apparently caused some property damage and no one was hurt.

When troopers discovered the mayor, he conceded to officers that he had drunk three beers the night before (this was around 4 a.m.). He told deputies that the cause of the crash was that he had dozed off behind the wheel.

Officers said that while his blood alcohol level did not put him over the limit, he displayed other indicators of impairment. He smelled of alcohol. His eyes were red. Officers said he failed a field sobriety test.

Florida Statute 316.193 holds that you may be arrested for DUI if you are in actual physical control of the vehicle AND at least one of the following:
–Your blood alcohol level is 0.08 percent or higher;
–You are under the influence of either alcohol or any chemical substance that affects your normal faculties.

When the blood alcohol or breathalyzer test doesn’t support the testimony of the officer, it becomes a he-said-he-said situation. For instance, the judge and jury can’t know to what extent a person smelled of alcohol. It’s entirely subjective.

Given that this individual holds a great deal of credibility as a public official, we suspect he has a strong chance of successfully fighting the charge.

But even if you aren’t a mayor, you can successfully beat a DUI charge – especially if you blew under the limit and most especially if you have a skilled attorney on your side.
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March 22, 2013

Broward County Sheriff’s Deputy Evades Charges Of Official Misconduct

By The Law Offices of Richard Ansara, P.A.

Earlier this month, trial commenced for a former Broward County Sheriff’s Deputy who was confronted with severe allegations of official misconduct, tampering with evidence, and grand theft.

These charges derived from a September, 2011 sting operation at which time the deputy purportedly seized a significant amount of Oxycodone pills and $7,340.00 in cash from a suspected drug dealer. The only problem was the suspected drug dealer was actually an undercover police officer conducting an operation in Deerfield Beach, Florida. When the time came for the deputy to transfer over into evidence the drugs and money seized from the arrest, guess what? Only $6,000.00 was handed over! Law enforcement immediately noticed the discrepancy and arrested the Deputy.

From a defense perspective, the former deputy asserted at trial that he fully intended to hand over the balance of cash before his shift ended, however, was prevented from doing so due to his arrest. Sounds suspicious, doesn’t it? Why keep $1,340.00 until the end of your shift, and then process it into evidence when you were supposed to have handed it over already. Well, due to good creative defense lawyering, the deputy succeeded in his arguments and was given a jury verdict of not guilty.

Our Fort Lauderdale criminal defense attorneys know that if convicted on all counts, the former deputy could have faced a maximum penalty of 16 years in state prison. For the prosecution to succeed and show that there was official misconduct, they had to prove beyond and to the exclusion of every reasonable doubt that the Defendant, who at the time of the offense was a public servant, and while acting in a public servant capacity falsified public records, concealed or manipulated official records, and while doing so intended to act corruptly. The State, evidently, did not meet its burden as the deputy was found faultless and evaded further jail time. Had the state not been precluded from introducing to the jury concurrent charges alleging that the deputy was selling steroids to coworkers, maybe the results would have been different.

It is expected that local, state and federal law enforcement personnel investigating a crime will conduct themselves professionally and preserve pertinent evidence to ensure the accuracy of future prosecution. However, this is not always the case. It is often too easy for law enforcement to forget that they are not above the law.

March 15, 2013

Broward Domestic Battery Charges Filed Against Decorated Deputy

By The Law Offices of Richard Ansara, P.A.

A retired Broward County Sheriff’s deputy who survived a gunshot wound to the head during a traffic stop five years ago, has been arrested on charges of domestic violence battery by strangulation against his estranged wife.

Fort Lauderdale domestic violence defense attorneys know that this charge is a third-degree felony under FL Statute 784.041, punishable by up to five years in prison.

It’s a serious charge that requires prosecutors to prove that the defendant knowingly and intentionally, against the will of the other person, impedes the alleged victim’s normal breathing or circulation by applying pressure to the person’s neck or throat or by blocking the person’s mouth or nose. It’s considered a domestic violence situation if the relationship between the accused and accuser is familial or dating or if the two share a household.

In this case, the pair had been married just three months and were allegedly arguing over whether their young son could or should stay with his paternal grandparents. Police say when the mother reached in to the vehicle to retrieve their son, the retired officer began pushing her from where he sat in the driver’s seat. He then reportedly grabbed her by the neck and applied pressure to the point that she was unable to breathe. It’s not clear whether he actually got out of the vehicle at any point during the alleged altercation.

The woman reportedly went to her parents’ home and immediately called police, who noted visible scratching and bruising on her throat.

However, defense attorneys for the former officer say that the residual effects of that shooting five years ago would have prevented him from carrying out that assault.

The traffic stop in which he was shot involved a convicted felon who reportedly owned a handgun. The felon had just learned that his probation officer knew about the gun, and was determined not to return to jail. When he was stopped, he responded by shooting the officer at close range in the head.

The officer required numerous surgeries and rehabilitation, during which he regained his ability to speak in both Spanish and English. Doctors called the recovery “miraculous.”

Then last year, while he was off-duty at an ice cream shop with his mother, he said a homeless man approached the two and assaulted his mom. He said he ordered the man to stop, but he would not. In the end, he said, he was forced to shoot him. The man survived, but no charges were ever filed.

The police report in this most recent case makes no mention of whether the officer’s traumatic head injury played a role in what happened. In fact, defense attorneys are denying the alleged victim’s allegations. But if the evidence at some point indicates that he did somehow assault his wife, defense lawyers may consider approaching it from the perspective that the head injury had impaired his judgment, and he therefore should not be held entirely or at all responsible.

This same reasoning could be potentially applied in domestic violence cases involving soldiers or others who have suffered some sort of severe trauma to the brain. It’s estimated that some 1.7 million Americans experience a traumatic brain injury each year, according to the Centers for Disease Control.

A 2011 study conducted by the University of Michigan, Ann Arbor indicated that young adults who have suffered severe head injuries were more likely to be involved in a physical altercation or participate in some other kind of violence. The findings were presented in the journal Pediatrics.

Researchers found that severe brain injuries may cause changes with regard not only to a person’s memory and emotions, but also their ability to reason and control impulsiveness and aggression.
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March 4, 2013

SCOTUS: Florida K-9 Unit Bark Enough to Warrant Search

By The Law Offices of Richard Ansara, P.A.

In a unanimous decision, the U.S. Supreme Court overturned the Florida Supreme Court’s earlier ruling dismissing all evidence obtained following an erroneous indication of drugs during a traffic stop.

Our Broward criminal defense attorneys are troubled by this precedent, which holds that an indicator from a trained K-9 unit is enough for police to assume probable cause and initiate a search.

The case, Florida v. Harris, stems from what was a seemingly routine stop in which the officer asked for consent of the driver to search the vehicle. The driver refused. The officer responded by having his dog, Aldo, conduct a “sniff” around the exterior of the vehicle. The dog in turn alerted its handler to possible drug residue on the driver’s side door handle. The officer took this as enough of a foundation to establish probable cause and executed a search.

Nothing that the dog was trained to detect was found. However, the officer did find a substance called pseudoephedrine, an ingredient used sometimes to make methamphetamine. Several other ingredients used to make this drug were also found.

The driver was subsequently arrested for illegal possession of those substances.

Later, that same driver was out on bail and he was stopped again – by the same officer. The dog again alerted his handler to a controlled substance and the officer once again searched the vehicle, this time finding nothing.

The lower trial court denied a motion to suppress, but that decision was appealed to the state supreme court, which ruled the evidence was inadmissible. The state high court had ruled that the dog’s previous performance record indicating how many times it had falsely alerted was relevant in the pending criminal case. But this police department – and many others – don’t keep those records. As such, the state court found, probable cause could not appropriately be established.

In overturning that verdict, the U.S. Supreme Court determined that the standard to which the dog should be held was “fair probability.” Further, the high court found the state court’s requirement of hit-and-miss documentation was “rigid” and failed to allow for a totality-of-circumstances approach to probable cause. The court further stated that such records may be skewed – either overstating or understating the dog’s accuracy, as those records would not include court case outcomes.

While the totality of circumstances is of course an important factor, what’s also noteworthy is the fact that even well-trained drug dogs get it wrong – sometimes more often than not. Even controlled-settings studies have proven this.

A study published in the George Mason Law Review by a University of North Carolina at Chapel Hill law professor found that even well-trained K-9 units that do well in controlled testing environments have a high rate of error when it comes to false positives in traffic stops. The reason, based on the Bayesian probability formula, is that the majority of motorists aren’t actually harboring drugs in their vehicle. This ups the chances for a false positive – much more than a false negative.

Still, given the fact that the court drove home the point of totality-of-circumstances, if an officer searches your vehicle on the sole basis of a K-9 indication, there may be a valid case made for why any evidence subsequently uncovered should be suppressed.
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February 26, 2013

Broward State Attorney Dismisses Case Moments before Trial

By The Law Offices of Richard Ansara, P.A.

Client was arrested and charged with one count of Intimidating a Witness, Retaliating against an informant, and Criminal Mischief. These allegations stem from an incident in which the government accused my client of making threats and damaging an informant’s car by smashing out the windows.

The Government had an alleged eye witness that they claim saw my client commit these acts. The client maintained his innocence in this matter and wanted his day in court in order to fight these criminal charges. Had he been convicted in Court he would be exposed to decades in prison.

After being hired I immediately went to work in order to clear my client’s name. After speaking with the case filing attorney I was able to get a major break early on in the case. The case filing attorney is the initial prosecutor that reviews all the initial reports generated by law enforcement and decides what the proper charges should be.

February 22, 2013

Overzealous Prosecutors Committed to Win – No Matter the Cost

By The Law Offices of Richard Ansara, P.A.

The suicide of young computer genius Aaron Swartz sent shock waves throughout the country, as it was an immense loss of incredible talent. The 26-year-old would have been looking toward a very bright future – but for the fact that he was facing up to 35 years in federal prison and $1 million in fines – for downloading academic records for which he should have paid.

Our Fort Lauderdale criminal defense attorneys believe that if there is anything to be learned here, it is this: We must work aggressively to curb the increasingly common practice of both federal and state criminal prosecutors to pile on every imaginable charge – no matter how over-the-top it seems with regard to the crime – in a simple effort to win at any cost.

Certainly, we understand that prosecutors can’t stop doing their job in anticipation of every scenario in which someone may harm themselves in the face of serious charges. However, the potential punishment didn’t fit the crime here – and prosecutors well knew it.

In fact, they often know exactly what they’re doing when they heap countless charges on a defendant in an effort to make something stick. They will stretch the law to make broad interpretations so they can fit the scenario at hand.

There are some basic reasons why they do this. By piling on a mountain of charges, they give themselves a strong starting point for plea deal negotiations. They know full well that many of these charges won’t be able to withstand the scrutiny of a trial. But they have no intention of actually taking them to trial. What they want to do is apply pressure to the defendant so he or she will plead guilty to the lesser charges.

In doing this, prosecutors can secure convictions without having to endure the cost, time and effort of going through a trial.

For defendants, though, the practice is inherently unfair. They have a choice to plead guilty, regardless of the circumstances, or take the gamble of going to trial and facing potentially years or decades behind bars if they lose.

It’s no wonder that only 3 percent of cases in federal criminal courts actually went to trial in 2010 – the most recent year for which numbers are available and a marked decrease from what it was even just a few years ago. Local and state court statistics follow similar trends.

It represents a shift from the strong, ethical standard of years’ past. It used to be that if a prosecutor piled on 40 or 50 charges to a fairly straightforward case, a judge would toss it out. Today, though, that’s the norm.

Even prosecutors will admit that it happens routinely, though some say it is primarily young, ambitious prosecutors who are most likely to engage in this tactic. But a defendant can’t control the prosecutor who takes his case.

The stakes couldn’t be higher, which is why defendants – particularly those in federal or felony cases – need to invest smartly in an experienced criminal defense attorney who is prepared to fight for you. If that means calling the prosecutor’s bluff on having those non-supported charges stick at trial, we are prepared to do that.
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