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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.
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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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543053_sheriff_badge.jpgEarlier 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.

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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.
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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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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. germanshepherd.jpg

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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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.

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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.behindbars.jpg

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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Valentine’s Day is supposed to be one of romance – sweet cards, roses and candlelight. heart.jpg

But our Fort Lauderdale criminal defense lawyers know that too often, the night ends horribly – with someone in the back of a squad car on their way to being booked for a domestic violence charge.

The Sun Sentinel reports that this past Valentine’s Day, there were two dozen people in both Broward and Palm Beach County Jails, booked on charges of assaulting or battering a loved one. We can’t say for certain whether those cases absolutely involved spouses (domestic violence can be charged against any intimate, including children and roommates). However, we do know that domestic violence counselors at the Broward County Women in Distress handled nearly 40 calls that day – both women and men.

The counselors say there is a lot of pressure on couples when it comes to holidays like Valentine’s Day to have a “perfect” day or evening. (The same could be said of holidays like Thanksgiving and New Year’s Eve.) When it doesn’t happen that way, tempers can flare. Factor in the red wine or other alcohol, and things can quickly get ugly.

The unfortunate thing is that by the time police are called, someone is most likely going to jail – even if both parties agree that initial accounts were exaggerated. Police don’t want to risk being called out later that night for a more serious crime, and will more often than not choose to separate the two by arresting one – even above the protestations of the other.

In addition to actual assaults, we also see a lot of violation of domestic violence injunction arrests surrounding this day. In the spirit of the holiday, people are trying to patch the fences and reconcile. Violations aren’t always another incident of assault. Often, they are handed out simply by the defendant coming within 500 feet of the petitioner’s home, school, work or other specified location, per Florida Statute 741.31.

But it’s important to understand that an arrest for violation of injunction for a protection order can happen even when both parties consent to the meeting. Anyone – not just the petitioner – can report that violation.

This most recent Feb. 14, one of the more serious local cases involved allegations of text-message infidelity between a pregnant fiancee and the best friend of her betrothed. The two men went to confront the female in her apartment, but the men ended up brawling in the bedroom while the woman hid under the sheets. Her fiance then refused to allow her to leave. She reportedly called police, who upon arrival said the fiance was aggressive and ended up using a Taser on him.

The following day in court, the woman denied she had been unfaithful and didn’t want to cooperate in her fiance’s prosecution. In these cases, however, the requests of the alleged victim are not always honored.

A domestic violence conviction can haunt you for years to come. It’s important that no matter your situation, you contact an experienced criminal defense lawyer to assist you in fighting the charge.
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It truly sounds like a creative episode of CSI: law enforcement officials using “water bullets” to catch those suspected of crimes. water.jpg

However, our Fort Lauderdale criminal defense lawyers have learned this is more than a good television show plot. As it turns out, the Fort Lauderdale Police Department has initiated a water marking pilot program that is being closely monitored by law enforcement agencies across the country.

It’s not actually “water,” and it’s not just police who are being encouraged to use it. It’s a liquid substance called SmartWater CSI, and it leaves a semi-permanent mark on either a person or property that is visible only with the use of a special ultraviolet light. The idea is to arm store clerks, homeowners and property owners in general with these “guns.” The anticipation is that valuable property can be marked with the liquid solution for later proof of identification or that suspects may be squirted with the substance as later proof that they were the individual involved.

Primarily, city police have said, their goal will be to use it in efforts to combat property crimes. Patrol units will actually be carrying ultraviolet light detectors, while residents in certain neighborhoods will be given the liquid solution kits.

Administrators for the company that sells the product have already placed numerous signs in the area, warning that the technology is being used.

The liquid, comprised of certain earth minerals, reportedly contains microdots that hold identification numbers that a technician would be able to see under a special microscope. The markings last on a person or property for up to five years and may be next to impossible to remove during that time, company leaders say.

Yearly subscriptions are reportedly being sold for $200. For this, buyers would receive the liquid, registration information and warning signs. There are even special solutions available solely for boats and vehicles.

Businesses could also access sprinkler systems that would mark anyone who entered, giving police an option to identify an individual potentially weeks or even months after an incident.

Of course, our criminal defense lawyers would point out that if DNA technology has taught us anything, no technology is infallible. Theoretically speaking, an individual may be able to obtain another person’s spray solution and frame an innocent individual.

There are also Fourth Amendment considerations that haven’t been answered. For example, the U.S. Supreme Court is right now weighing whether police officers must first get a warrant before obtaining a blood sample from a suspected drunk driver. So what should be the protocol for putting a suspect under a UV light?

We know that officials in England have been using this technology for roughly 15 years now, and there has reportedly been a successful prosecution rate as a result. But local officials concede such technology has not yet been tested in the U.S. legal system – meaning it may be rife for challenges.

That position has some officials back-tracking to say it’s more of a deterrent than an actual crime-fighter. For example, the demand for stolen property may be decreased markedly if scrap yards and pawn shops are wary of buying SmartWater-marked items. (Though we would argue too that this could cut down on the ability of legitimate owners to hawk these items.)

Regardless, there are sure to be some test cases arising. If you are among those individuals arrested following the use of SmartWater technology, call us today.
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The sales of synthetic marijuana and cocaine products continue to proliferate in South Florida, despite bans at the local, state and federal levels. salt.jpg

That’s according to a recent report by The Sun Sentinel. Our Broward County criminal defense lawyers are well aware of the continuing trend, and remain one step ahead of prosecutors when it comes to defending these cases.

Our greatest advantage at this point is the specificity with which the laws were written. Each of the measures contain language banning certain chemical compounds and anything that is considered “analogue” to those substances. For a substance to be considered “analogue,” it must contain the same active-ingredient chemical make-up.

This might seem fairly straightforward. However, the ingredients of these products are ever-changing. So the successful defense of these cases is going to depend highly on proving that the chemical compounds that comprise the drug in question vary significantly enough from the formally-banned compounds named in the laws.

If you are arrested, this defense could be critical, considering that violation of the state law can result in a third-degree felony charge, punishable by up to five years in prison and those charged federally will face up to 40 years in prison.

A recent local example of this argument involves the compound UR-144. Federal prosecutors taking aim at a former Daytona Beach manufacturer are calling it an analogue substance, akin to the substances that are already illegal. However, the Controlled Substances Act doesn’t specifically name UR-144.

The chemical was found in packets of herbal incense called Dead Man Walking. But when the drug was tested by an independent lab in Miami, scientists questioned whether it was actually similar enough to formally outlawed substances be grouped in the same category. The case has yet to go to trial, though it is being closely watched by others in the industry.

The UR-144 compound is now illegal under Florida law, per an emergency order signed in December by the attorney general. However, that measure isn’t applicable to the pending case, as it passed after the defendant’s arrest.

Of course, those in the industry need to recognize the risk they may be taking. Part of the problem is that the laws are being interpreted by the federal government. As we’ve seen with the federal crackdowns on medical marijuana even in states where it is legal, this is dangerous, as the government’s interpretation is not always consistent with the science provided (or with common sense, for that matter).

Manufacturers and sellers should not be prosecuted simply because people choose to blatantly ignore the instructions of use. If that were the case, we would see manufacturers making everything from cold medicine to glue being prosecuted.
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Federal authorities reportedly arrested 17 people in South Florida – and are seeking dozens more – in connection with a pill mill operation that reportedly engaged in the trafficking of some 45,000 prescription Oxycodone pills. oxycodone.jpg

Our Fort Lauderdale criminal defense lawyers understand that officials with the U.S. Drug Enforcement Administration honed in on an operation in Dania Beach more than a year ago after a pharmacist called the state’s pill mill tip line to report a suspicious amount of pain medication being dispensed.

Prescription drug trafficking and fraud are on the top of law enforcement’s priority list in Florida and in South Florida in particular, an area that has become notorious for easy access to habit-forming pills.

A number of legislative measures, including the introduction of the pill mill tip line, have been introduced in recent years to combat the problem. There was also the establishment of the “pill mill database,” which aims to curb doctor-shopping and prescription fraud by requiring physicians to submit the names of those given certain types of pain medications.

However, addiction is powerful, so demand remains high and law enforcement officials remain on alert. These types of sweeps are not uncommon.

According to the Sun-Sentinel, after that initial tip came in, investigators uncovered a network of at least 45 individuals who were allegedly using stolen prescription pads to obtain tens of thousands of pain pills to sell on the street.

To give you an idea of the profit margin here, a single Oxycodone pill can command $30 on the street, which means a full bottle of 180 pills could generate a $3,000 profit for the person selling.

In addition to arresting those involved in the street sales, agents also arrested four of those who worked at the Palm Beach County pain management facility, which dissolved last year after failure to file annual state reports.

While conducting the sweep in the early morning hours, detectives also reportedly found $7,000 in cash at one location, along with two kilograms of cocaine and an AK-47 assault rifle.

Although such actions can result in federal drug trafficking charges, those arrested in the course of this investigation will be prosecuted at the state level.

But make no mistake: state charges aren’t any less serious. Florida Statute 893.135 holds that any person who intentionally and illegally sells, buys, manufactures, delivers into the state or is in possession of more than 30 grams of controlled prescription drugs, such as Oxycodone, Hydrocodone, opium or morphine is guilty of drug trafficking, which is a first-degree felony, punishable by between 15 to 25 years in prison. If a person subsequently overdoses and dies as a result of that act, it’s considered a capital felony.

In this case, officials say they consider this “a good start,” and intend to continue searching for the remaining suspects. Unfortunately, those arrested on charges connected to prescription drug abuse may fail to take the charges seriously. Often, these defendants have little experience with the criminal justice system. Failure to consult with an experienced criminal defense attorney in Broward can have significant consequences.

If you’re arrested for illegal possession or trafficking of prescription drugs, don’t take any chances with your future. Immediately contact an experienced criminal defense firm. You have a number of effective defense strategies to consider.
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