Your DUI case: You Can’t Judge a Book by Its Cover

I was just in court yesterday on a DUI case where my client was cited for failing to maintain a single lane, pulled over, performed poorly on the field sobriety tests, and whose breath alcohol level was a .128 and .132. The client was arrested for DUI and hired me shortly thereafter. When I was initially retained on the case; it didn’t look good for my client. However, after more than 5 months of working on the case, the State Attorney’s Office amended the DUI charge to a reckless driving charge. My client was happy; and I was happy to have been able to get a very good and appropriate result for my client.

Then my thoughts turned to all of the phone calls that I get from prospective client’s who have a similar set of facts; and then they say to me or just decide to go into court without a lawyer and plead to a DUI. I understand the potential client’s perspective. They are thinking: This person wants to charge me a lot of money. What can he do for me? Attorneys can’t and shouldn’t guarantee results. It is not ethical and it is frankly impossible given all of the potential variables in any given case. However, during the initial consultation, I may have a pretty good idea how to defend a client’s case; but other times, I will tell the prospective client that I will not be able to know for certain until I review all of the discovery (police reports, evidence, witness statements, etc.). Ultimately, like yesterday, cases can and do turn on one statement by an officer or one small piece of evidence. Yesterday’s case reminded me to continue to be as diligent and attentive to details as I can for my clients. Don’t just look at the cover, read the book.

Child Abuse or Corporal Punishment?

“It is apparent that there is a serious risk of ‘going too far’ every time physical punishment is administered.” Herbert v. State, 526 So. 2d 709, 712 (Fla. 4th DCA 1988).

During my time as a prosecutor, I investigated countless cases of child abuse. One of the more difficult decisions I had to make was whether to charge a parent or guardian with child abuse, a felony in Florida; or was it a case of corporal punishment? Incidents involving a parent or guardian causing injuries such as welts and bruises to their child often times pose difficult filing decisions to prosecutors and ultimately a court reviewing the case down the road. Is this parent or guardian a criminal? Or are they just trying to discipline their child? Now as a criminal defense attorney, I deal with the same issues, just on the other side of the fence.

So what’s the answer? The long and the short of it is that there is no clear cut answer. Each case is evaluated on its individual facts. However, in reviewing the appellate cases in Florida they seem to give some guidance in determining whether a case is child abuse or simply corporal punishment. But there is still grey area. A parent or one standing in loco parentis has no absolute immunity from a charge of child abuse. However, the parent or guardian may assert as an affirmative defense that they used “reasonable” or “nonexcessive” corporal punishment such as a typical spanking. In general courts and prosecutors are going to look at two things: whether the actions on the part of the accused were reasonable; and whether the injuries suffered were excessive or just welts and bruises not requiring medical attention.

Appellate cases which found that there was not felony child abuse as a matter of law include: King v. State, 903 So.2d 954 (Fla. 2d DCA 2005), where the Court held that a school administrator, who had written permission from the parents to paddle a child and he did so causing welts, was not guilty of felony child abuse as a matter of law. However, the Court held that the administrator’s actions may constitute Contributing to the Dependency of a Child, a misdemeanor; and State v. Figarola, 788 So.2d 1109 (Fla.3d DCA 2011), where the Court held that a father striking his son in the face two times causing the son’s lip to split, and forcing the son to eat as punishment for his failure to eat dinner was not felony child abuse as a matter of law.

However, appellate cases where the Court held that the actions of the parents or guardian were unreasonable include: Julius v. State, 953 So.2d 33 (Fla. 2d DCA 2007), where a mother was accused of beating her two children with a wooden leg of a table which had a metal screw at the top because she was late for work and the children couldn’t find her shoe. She appealed her conviction of the count involving her younger daughter who “only” had “significant bruises or welts.” The Court upheld the conviction because “there was no evidence that the beatings were a legitimate form of discipline to punish some specific misbehavior; Czapla v. State, 957 So.2d 676 (Fla. 1st DCA 2007), where the Court upheld a child abuse conviction when the defendant punched his son in the head, pushed him into a room, and kicked him while he was on the floor because his son failed to do yard work. The Court held that this was not reasonable corporal punishment; and recently in the case of Chisolm v. State, 36 Fla. L. Weekly D (Fla. 1st DCA 2011) the Court upheld a conviction of child abuse where the father whipped his son with a belt containing some type of metal circles or studs causing bruising and welts on the entire surface of the child’s back and arms. The Court ruled that “this type of conduct cannot be likened to a typical spanking or other form of corporal punishment.”

The above cases deal with the common question of whether a case is child abuse or corporal punishment. The question becomes that much easier for the Court’s and prosecutors when the injuries are more severe than bruises or welts. Based on experience, if any of the same cases addressed above resulted in injuries such as fractured bones or some other excessive or permanent injury; it is highly likely that a prosecutor will file the case and an appellate court will uphold the conviction.

Conclusion

As a criminal defense attorney, I am more likely going to be successful arguing on behalf of a client that was using reasonable corporal punishment to disciple a specific misbehavior. What is reasonable in the eyes of a prosecutor and the Court will be decided on a case-by-case basis. I invite your comments on this issue.

Spring Break Arrests: Avoid the Common Mistakes

It’s that time of year again. Young students from all across the country flock to Florida for Spring Break looking to blow off some steam from the stresses of their studies. However, inevitably for some of the spring breakers, things get out of hand and they get arrested or cited for a crime. Aside from the obvious point that you should not break the law and get arrested in the first place; don’t make the common mistakes which can impact you for the rest of your life.

1. Plea to the charge at your First Appearance Hearing
It’s normal that once you are in jail that your initial thought is to get out of there as soon as possible. You may not be able to bond out right away and within 24 hours, Florida law requires that you must make a First Appearance before a judge. It is at this time that the Judge may offer to resolve your case for a fine or for “time served.” The natural inclination may be to take it and get out of jail. That may be a huge mistake. Depending on how the case gets resolved, you may not be able to seal or expunge that charge or any subsequent one for that matter. This could have an impact on your current or future employment. It could impact scholarships. It may seem like the path of least resistance at the time; but it could come back to haunt you. You may be pleading to a case that the State Attorney was not going to file at all. There may not be sufficient evidence to convict you for the charge. In other words, you may be doing the prosecutor a favor by pleading to the charge. Don’t waive important rights and defenses you may have just because you want to get out of jail; or you want to resolve you case as fast as possible.

2. Plea and fail to pay the fine or complete your conditions of probation
So you decided to plea at the first appearance hearing. As I discussed above, that can be a mistake. However, don’t compound it by failing to pay your fine or complete some condition of your sentence or probation. It is your responsibility to make sure you know how much your fine is and what conditions, if any, you have to complete as part of your sentence. If you get out of jail and fly back to your home out of state or out of town, don’t think you can ignore your sentence. It WILL come back to haunt you. Eventually you’ll have a warrant for your arrest for violating probation or your driver’s license may get suspended. In the age of computers, they will ultimately find you.

3. Fail to Appear for court
If you do bond out or simply get a criminal citation or Notice to Appear, do NOT ignore your court date. If you fail to appear (FTA), the Court will issue a warrant for your arrest and perhaps suspend your driver’s license depending on the charge. Warrants will remain active for years. They will ultimately catch up with you.

4. Wait for the State to make a filing decision
Be proactive in this situation. Hire a local criminal defense attorney to address your charge as early as possible. Please see my earlier blog post, Criminal Pre-Filing Decision: Don’t Miss Your Window of Opportunity!

5. Believe that you must return to Florida to resolve your case
If you have been charged with a misdemeanor crime, Florida law allows for you to resolve your case without having to actually appear in court. The process is called a Plea in Absentia. Your criminal defense attorney can appear in court on your behalf and file the Plea in Absentia while you remain in your home state. If your charge is a felony, your criminal defense attorney may be able to negotiate a reduced charge with the State Attorney so that you can resolve your case with a Plea in Absentia.

Conclusion
If you are arrested on Spring Break or at any other time, remember that a criminal charge can have a significant impact on your life now and into the future. Don’t take the path of least resistance and ignore it altogether or plea just to get out of jail. You may be waiving important rights and defenses. You should seek legal counsel before you resolve any criminal case.

Opening Up Pandora’s Box: Cell Phone Searches Incident to Arrest

In January of 2011, the California Supreme Court in the case of California v. Gregory Diaz, held that a warrantless search incident to arrest of a defendant’s cell phone was valid. Mr. Diaz was the driver of a car in which a sale of Ecstasy occurred between another person and a police informant. He was arrested and his cellular phone was seized from his person and searched incident to a lawful arrest. The search incident to a lawful arrest exception has been traditionally “justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained.” Law enforcement found incriminating text messages made by Mr. Diaz which were used to convict him.

What impact will this case have here in Florida? Because of the pervasive use of cell phones and smartphones in the United States, California v. Diaz seems headed for a review by the U.S. Supreme Court. The Majority reasoned that the cell phone was immediately associated with the defendant’s person just as if law enforcement was searching a cigarette package. The Dissent argued among things, that the type of personal and business information stored in a smartphone or hand held computer “dwarfs that which can be carried on the person in a spatial container.” Until the U.S. Supreme Court addresses this matter, this case is persuasive authority in the state of Florida. Without a doubt, you will now see law enforcement seizing an arrested suspect’s cell phone as a matter of course. Imagine what type of incriminating information will be found. They will find incriminating text messages, Facebook posts, tweets, photographs, witness names, witness phone numbers, etc. The list will go on-and-on. All types of crimes will be impacted by this decision.

I invite you to share your thoughts on this case.

Criminal Pre-Filing Decision: Don’t Miss Your Window of Opportunity!

An arrest of a criminal suspect is just that – an arrest. It does not mean you have been formally charged by the State Attorney’s Office or convicted for that matter. It just means that the arresting officer is of the opinion that there is probable cause to arrest you for the charge. That is not to say that it is an insignificant event. It is significant and important. An arrest is usually the beginning of the criminal process. However, it is also an opportunity for the arrestee. So don’t miss it.

After an arrest, within the next several weeks a prosecutor will be evaluating the facts, circumstances, and evidence of your case to determine whether a formal charge will or should be filed. The prosecutor has broad discretion to choose to file or not file a formal charge during this time. The prosecutor also has the discretion to choose to file a different or lesser formal charge from that with which you were arrested. This process usually takes approximately four to six weeks after an arrest is made. It is at this time that your criminal defense attorney can speak with the prosecutor and provide him with information that can be used to determine that a formal criminal charge should not be filed against you; or that some lesser charge is more appropriate. Perhaps it is your first brush with the law and you are remorseful. Maybe the victim does not want to prosecute you. Is there even enough evidence to gain a conviction? Are there conflicting statements as to what actually happened? This is the time to get the ear of the prosecutor. Don’t roll the dice and hope that your case falls through the cracks. They don’t. Be proactive during this time. It may be your best and only opportunity to get your case dropped. Once that filing decision is made; it is much more difficult to get the State to change their minds.

Criminal Pre-Filing Decision: Don’t Miss Your Window of Opportunity!

An arrest of a criminal suspect is just that – an arrest. It does not mean you have been formally charged by the State Attorney’s Office or convicted for that matter. It just means that the arresting officer is of the opinion that there is probable cause to arrest you for the charge. That is not to say that it is an insignificant event. It is significant and important. An arrest is usually the beginning of the criminal process. However, it is also an opportunity for the arrestee. So don’t miss it.

After an arrest, within the next several weeks a prosecutor will be evaluating the facts, circumstances, and evidence of your case to determine whether a formal charge will or should be filed. The prosecutor has broad discretion to choose to file or not file a formal charge during this time. The prosecutor also has the discretion to choose to file a different or lesser formal charge from that with which you were arrested. This process usually takes approximately four to six weeks after an arrest is made. It is at this time that your attorney can speak with the prosecutor and provide him with information that can be used to determine that a formal criminal charge should not be filed against you; or that some lesser charge is more appropriate. Perhaps it is your first brush with the law and you are remorseful. Maybe the victim does not want to prosecute you. Is there even enough evidence to gain a conviction? Are there conflicting statements as to what actually happened? This is the time to get the ear of the prosecutor. Don’t roll the dice and hope that your case falls through the cracks. They don’t. Be proactive during this time. It may be your best and only opportunity to get your case dropped. Once that filing decision is made, it is much more difficult to get the State to change their minds.

Florida Domestic Violence and the Non-Cooperating Victim

Florida Law specifically states that domestic violence shall be treated as a criminal act rather than a private matter. As a result, there is a pro-prosecution mentality even if the alleged victim does not want to cooperate in the prosecution. The reasoning behind this position is the State’s public interest in “protecting” the victim of domestic violence. What if the victim does not want to cooperate with the prosecution of the case? Can the State Attorney’s Office proceed with the case? The short answer is yes.

State v. The Defendant
The charging document setting forth the criminal allegations will read that the State of Florida is prosecuting the crime. It is not the victim versus the defendant. Therefore, if the State Attorney’s Office elects to prosecute the crime, often times it is against the wishes of the victim.

Independent Witnesses and Evidence
If the State Attorney’s Office does not receive cooperation from the victim, it can proceed with testimony from other witnesses who may have seen the incident or heard statements of the defendant or victim; or they may use additional independent or corroborative evidence to prosecute the case. Evidence such as 911 tapes, photographs, or other forensic evidence is frequently used.

State Attorneys Office may subpoena the non-cooperating victim to testify against their wishes
Depending on the facts of the case, the State Attorney’s Office may decide that even though the victim doesn’t want to testify, they are going to compel the victim’s testimony through the use of a court ordered subpoena. Once served, if the victim fails to appear or refuses to testify, they could be facing a jail sentence or other sanctions.

Fifth Amendment Privilege to refuse to testify generally doesn’t apply to the victims of domestic violence
As a general rule, if you are the victim of a crime you cannot refuse to testify on the basis of the Fifth Amendment. That privilege is invoked when someone is facing a criminal charge. (There may be exceptions that apply. You should consult a lawyer to discuss them).

Husband-Wife Privilege Does Not Apply
In the State of Florida, Husband-Wife Privilege only applies towards communications which were intended to be made in confidence between the spouses. However, Florida law specifically states that there is NO Husband-Wife Privilege when one spouse is charged with committing a crime against the other spouse. This privilege does NOT apply towards observations made by the victim spouse.

Recanting Victim Testimony
If the non-cooperating victim believes that lying or changing their story is the best course of action, they may want to think twice about that. The victim can very easily go from a situation where they are truly the victim to a situation where they are now a criminal defendant themselves. A victim lying to law enforcement or the State Attorney’s Office can lead to many problems. The victim could be charged with perjury, obstruction of justice, filing a false police report, or be held in contempt of court.

The Defendant and the Recanting Victim or Witness
Another significant problem that could develop is when the defendant encourages the victim or a witness for that matter to testify untruthfully. If this information comes to the attention of law enforcement, the defendant could be charged with additional crimes such as Witness Tampering. The State Attorney’s Office would surely bring this information to the attention of a jury; arguing that it showed the guilty conscience of the defendant.

Conclusion
Domestic violence cases can lead to significant legal issues and problems for both the victim and defendant. You are urged to consult with an attorney to discuss these issues as soon as possible.

DRUG POSSESSION DEFENSES

Whenever a person is charged with the crime of illegally possessing a drug or narcotic, by their very nature, these cases give rise to numerous issues relating to whether the evidence was obtained by law enforcement in violation of a person’s 4th Amendment Protections against unreasonable searches and seizures as guaranteed by the Bill of Rights to the U.S. Constitution. If law enforcement violates the law with respect to an unreasonable search and seizure contrary to the 4th Amendment, a person accused of a crime can file a Motion to Suppress evidence. If the Court rules that law enforcement seized the evidence illegally; then the evidence is suppressed. It cannot be used against the accused in their trial. In addition to 4th Amendment Search and Seizure issues, a person charged with illegally possessing a drug may also have other legal defenses which, if raised, may make it difficult for the prosecution to gain a conviction. Therefore, just because you are arrested and charged with illegally possessing a drug, it does not mean that you will be found guilty. Your Criminal Defense Attorney will be able to review the facts of your case and determine if you may have certain legal defenses such as:

• Was the initial stop by law enforcement conducted illegally?
• Was the subsequent search of the drugs or paraphernalia conducted illegally?
• Were any statements obtained by law enforcement in violation of your
Miranda Rights?
• Were there drugs or paraphernalia in your constructive possession only?
• Were there any legal defects in the warrant used to search your
home, apartment, or automobile?
• Is there an entrapment defense?
• Is there an alibi defense?
• Is there an identity defense?

A thorough analysis of the facts is needed to determine whether any of the above defenses or others may be viable in your case. Contact the Law Office of Joseph Montrone, Jr. for a free consultation 727-538-4155.

When Should I Seek the Advice of a Criminal Defense Attorney – Yesterday

The short answer is as soon as possible. Why? In the words of Benjamin Franklin: An ounce of prevention is worth a pound of cure. The earlier you seek and follow the advice of a criminal defense attorney; the less likely it is that you say or do something that will compromise your defense in the future. Often, when meeting with a client for the first time, we are able to educate them on the criminal process; both in court and with what law enforcement may be trying to do to gather evidence against you.

Case in point: recently the local fire chief for the Clearwater Fire Department, Jamie Geer, was arrested for the crime of Capital Sexual Battery. This crime carries a mandatory life sentence. In Florida life means life. Good bye. Thanks for playing. If convicted you are spending the remainder of your days in prison. It is alleged that Mr. Geer was having an ongoing sexual relationship with a girl under the age of 12 beginning in 2004. The alleged criminal activity was brought to the attention of law enforcement. Law enforcement began an investigation which included a controlled phone call (police have victim or witness contact suspect to make incriminating statements which are captured on tape). Now Mr. Geer is sitting in the Pinellas County Jail with a $500,000.00 bond, and the very real prospect of spending the remainder of his life in prison. Although I have no personal knowledge; I’m going to assume that Mr. Geer elected not to speak with an attorney before the police cuffed him and took him to jail.

Admittedly Mr. Geer’s case is an extreme example to illustrate the point. The vast majority of criminal cases do not end up with the suspect sitting in a jail cell facing life in prison. In Mr. Geer’s case, it is alleged the victim was taped on the phone asking him about their ongoing sexual relationship. During their conversation Mr. Geer made numerous comments that to him at that time may not have seemed incriminating. But to a criminal defense attorney, or a prosecutor; his statements may end up being the nail in his coffin. As his arrest warrant pointed out, Geer never denied having sex with the victim during the phone call. Those of us who practice criminal law call that an admission.

Could the advice of a criminal defense attorney have helped Mr. Geer avoid these charges? I think without question the answer is yes. I’m sure that if Mr. Geer thought that it was too expensive or too early to hire an attorney for this matter; his previous opinions have now changed.

Florida’s Habitual Traffic Offender Designation: Criminal Traffic Pleas Without Consulting With An Attorney Can Come Back to Haunt You

The Florida Statute Section 322.64 designates Habitual Traffic Offenders as persons with specified convictions within a 5 year period. Convictions for such offenses as involuntary manslaughter, DUI, Driving with a Suspended or Revoked License, Leaving the Scene of an Accident resulting in Death or Personal Injury, or any felony in the commission of which a motor vehicle is used will result in the designation as a Habitual Traffic Offender. Once the convictions occur, the Florida Department of Highway Safety & Motor Vehicles will send you a notice that your license is suspended for 5 years.

People frequently get a civil citation for Driving with a Suspended or Revoked License Without Knowledge. They then simply just pay the ticket without realizing that it is considered a conviction under the statute designating someone as a Habitual Traffic Offender. It is important to consult with an experienced attorney before entering any type of plea or disposition to any criminal traffic offenses or civil infractions involving the suspension or revocation of your license. How your case is resolved can have a significant impact on whether you are designated as a Habitual Traffic Offender.

If you have resolved your case without the assistance of an attorney and you have received your notice of suspension from the Florida Department of Highway Safety & Motor Vehicles; you may still have legal remedies available to you.

Contact CLEARWATER FLORIDA HABITUAL TRAFFIC OFFENDER Attorney Joseph Montrone, Jr. for a free consultation.