South Florida Criminal Defense Lawyer Blog

Mental Capacity and A Criminal Act: Part II

Tue, 03 Aug 2010 10:24:08 -0500

To successfully mount the defense of insanity in Florida criminal courts,( Miami, Fort Lauderdale, and West Palm Beach), the accused (arrested) defendant must prove that the/she was insane at the time the criminal act occurred. Insanity before or after is not a defense. Further, that the mental deficiency must be related to the specific criminal charge. Insanity in general is not a defense to an arrest or criminal law prosecution in South Florida criminal courts. In Florida criminal law the word “sanity” addresses the issue of one's ability, at the time of the act, to understand and distinguish the difference between right and wrong. This is called the McNaughton rule. The rule goes to the ability to understand the nature and quality of a defendant's act, and its consequences. In South Florida criminal law insanity goes to one's capacity to distinguish right from wrong. For more information on defenses to crimes in South Florida, whether it be a drug offense, murder, burglary, violation of probation, or other drug-related offenses, such as possession of cocaine or possession of methamphetamine, contact a South Florida criminal defense attorney. If you've been arrested in South Florida the first thing I suggest you do is speak with a South Florida criminal defense attorney as to other legal defenses you might have, including self-defense, entrapment, and a due process argument to prevent a South Florida Criminal Court from prosecuting you for the an alleged crime in Florida.

Defenses: insanity criminal culpability and competency

Mon, 02 Aug 2010 10:18:54 -0500

In South Florida, as in most states; criminal responsibility for the vast majority of crimes requires intent. A person who is under a mental disease or defect, or is incompetent to stand trial, has the defense to criminal charges of competency or insanity. In South Florida, Fort Lauderdale, and Miami, very few successful insanity defenses have been litigated in South Florida criminal courts. The reason is insanity has fallen in disfavor with the legislature and most judges and juries. A South Florida criminal defense attorney can explain the trends in the charging and prosecuting of drug crimes, burglaries, robberies, and violations of probation, where the defense of incompetency or insanity has been rejected. Do not confuse insanity with competency. Insanity is the inability to form the requisite criminal intent due to mental disease or mental defect. Competency goes to an individual's current state at the time of the prosecution: if a person under arrest and facing a criminal trial in South Florida cannot effectively assist counsel, and is unaware of the function and role of the judge, a criminal defense attorney, and a jury, then the defense of incompetency to prosecution is raised by the criminal defense attorney. Incompetency merely delays the prosecution for up to two years, during that time the state has the duty to assist in the restoration of competency. For more information call or e-mail your favorite South Florida criminal defense attorney, or contact my office.

THE BRADY BUNCH IN FEDERAL COURT

Wed, 21 Jul 2010 13:42:08 -0500

THE BRADY BUNCH IN FEDERAL COURT

The friendly antics of the Brady Bunch family and TV land has nothing to do with the realities, the cold realities of criminal proseuctions in federal courts. In the public view federal courts are where our civil and constitutional rights are preserved. It is even more common for people to believe that federal court is where state court abuses are corrected. True a generation ago but not true today. Florida State criminal courts have championed fair trial rights, and left the federal courts in the dust, mingled in the dust of the lost souls who were convicted in federal criminal courts, in many cases wrongly. Florida criminal courts, Miami Fort Lauderdale West Palm Beach, give criminal defendants the right to see evidence that exonerates them. If you are arrested for drug trafficking, or any serious felony and come before a Florida criminal Court you have the right to compel the government to turn over to you evidence that might prove your innocence. Florida criminal courts find the legal basis for these rights in a federal case called Brady versus Maryland. In it a federal court ruled that defendants have the right to information that would aid in their defense, information in the possession of the state of Florida must be turned over. Any South Florida criminal defense attorney will tell you that in Florida criminal courts you will receive a discovery package in which the government turns over to you any information they have which might aid in your defense. In federal court the Brady case has been largely forgotten and ignored by the federal rules of criminal procedure. Ask your South Florida criminal defense attorney for more information about a defendant's rights in Florida criminal courts

Can the Police Search Me for Any Reason or No Reason at all?

Sun, 30 May 2010 21:54:14 -0500

No. A police officer can only make a search or your person (your body, your clothes, your personal space) under one of the following three circumstances:
1. You agree to the search. Your consent cannot be forced or the product of a submission to a show of force. It must be freely given, and not the product of police bullying.
2. Officer safety. But that means a real and provable reason. It can be said that police work is always dangerous and that police officer safety is always a top and legitimate concern. True enough. But a sleeping grandma or a three month old baby are not a reasonable threat and cannot be searched. Likewise, even a fully grown adult male can’t be searched for office safety unless he does something that would create a reasonable (attach a reason) to be a threat. Officer safety must be proven before a judge will allow the things found during a non-consensual search to be used to convict you.
3. Lastly (thirdly?) After a lawful arrest.
Florida criminal lawyers live and breathe by the hundreds of cases that clarify and are fact specific to the above three paragraphs. Don’t think by understanding the basic rules you can be correct in your evaluation of a fact pattern surrounding a search. Speak with a local criminal defense lawyer before you stick your foot in your mouth, or worse, get in trouble with the law. There is no substitute for knowledge and experience and there is no end to woe from ignorance and stupidity. Ask and know. Or, better still; buy a copy of my book “CAN THE POLICE LIE TO ME?” you can buy it on amazon.com for $18.95.

What is Florida Criminal Law on “Fake” ID?

Sat, 29 May 2010 21:27:15 -0500

In Florida you must be 21 years of age to purchase alcoholic beverages. Once 18 it has long been 21. Of course you can serve in the Army at 18 but you can’t drink until you are 21. Some young people in Florida run afoul of the criminal laws by obtaining “fake” ID. Don’t. It is an arrest able offense; it can even be a felony!
In South Florida (Fort Lauderdale, Pompano, Miami, Davie, West Palm Beach) you can be charged with a misdemeanor if you have a fake set of identification. If you have someone’s driver’s license it is felony. A felony carries a five year prison sentence and a lifetime of grief. If you use someone else’s identification you can both face criminal charges: You can be arrested for possession of a false or fraudulent drivers’ license and your friend (brother? Sister?) can be charged with contributing to the delinquency of a minor. What to do? DO NOT display fake ID. Cool down with an ice tea, not Long Island ice tea. Life is too short and cops are too mean, thinks first and then don’t do it!

Drug Possession and Trace Amounts of Cocaine

Fri, 28 May 2010 21:19:21 -0500

Possession of cocaine and trafficking in cocaine criminal charges begin with the government finding and proving possession of measurable amounts of cocaine. Often Florida criminal defense attorneys must defend cases where a small or trace amount of cocaine is found, and often found not ON someone but in close proximity. What is a provable amount of cocaine for Florida criminal statutes to be invoked?
It varies from state to state, but our concern here is Florida criminal law. In Florida if the state can prove even a trace amount of cocaine, or cocaine residue, then they have met their burden. Outrageous yes? Yes. A trace amount of cocaine can be the cocaine dust that remains in a baggie that once contained cocaine, or the burnt residue of consumed cocaine in a pipe. It is enough. Possession of cocaine cases in Florida can be made if the State can find and prove you had a baggie that once contained cocaine, or a pipe (paraphernalia) that once burned crack or cocaine. In the waning months of 2009 the U.S. Supreme Court ruled that Florida criminal defense attorneys in Fort Lauderdale and Miami could demand a chemist appear in court to make the case, but the law remains: possession of cocaine can be proven with a charred pipe or an empty plastic bag.
Possession is a subject of another blog entry…so stay tuned! Or, if you have a question, contact a Florida criminal defense attorney in Fort Lauderdale, West Palm Beach, or Miami. Start with Ralph Behr; he’s been at it for over 34 years!

UNDERAGE ALCOHOL CRIMES IN FLORIDA

Thu, 06 May 2010 21:38:06 -0500

It is against Florida criminal laws for an underage person (21) to sell, serve, possess or consume alcoholic beverages. Serving alcohol to a minor can be a felony: child abuse. If alcohol is present in the same space as a minor the law permits a presumption, albeit rebuttable, but a presumption nonetheless, which means an arrest and a trip to the courthouse. The proving of actual possession is the trick, but the trump is the arrest and the charge. A minor (under 21) can work in an establishment that serves alcohol, he/she can serve it, but cannot consume. If you are underage and in a car that is stopped you will be arrested. The arrest leads to a criminal charge, a South Florida criminal defense lawyer to defend you and an anxious South Florida jury to examine the evidence. All in all the best route is to say no when invited into a car or a party where underage people are holding, drinking, offering and or consuming alcohol. A criminal arrest can derail life plans, so wait until you are 21.

Drug Trafficking: Conspiracy in Florida

Mon, 26 Apr 2010 10:02:22 -0500

In Miami, Fort Lauderdale, and West Palm Beach, South Florida criminal prosecutors almost always file conspiracy charges with all drug trafficking cases. It is a lazy prosecutor’s method to seek a criminal conviction under two theories: drug trafficking and an agreement to traffic in drugs. One does not need to complete the crime to be convicted of conspiracy. Proving drug trafficking requires proving the elements of possession with the intent to distribute a controlled substance of a weight sufficient to file drug trafficking charges. Proving a conspiracy is in many ways easier.
A conspiracy to traffic in a controlled substance such as cocaine or marijuana requires the prosecutor prove an agreement in which each member of the conspiracy becomes the agent of each and every other member. The most essential part of the conspiracy offense is the making of the agreement. The next element is an overt act: which means during the life of the agreement each criminal defendant must take one overt act to advance the criminal undertaking. The conspiracy can be proven with statements from co-conspirators only if they are made during and in the course of the conspiracy. Once the conspiracy ends, either by the withdrawal of a participant, or the completion of the criminal enterprise, the conspiracy ends. Conspiracy, to summarize; requires that two or more persons come to an understanding, that the participants are voluntarily entering into a criminal enterprise, that there is an act, an overt act, to advance the crime. Lastly that the act was knowingly done to carry out the objective of the conspiracy. For more information on criminal conspiracy in South Florida, contact a South Florida criminal defense attorney for a consultation.

The Entrapment Defense in Drug Trafficking Cases in Florida

Sun, 18 Apr 2010 16:52:52 -0500

Entrapment is one of the few defenses which are “affirmative defenses”. In cases such as drug trafficking, and conspiracy to sell or deliver cocaine, an affirmative defense is a law created avoidance of the charges. It bars conviction.
Entrapment is based on the due process rights created in both the Florida and U.S. constitution. In Florida criminal courts a subjective and objective entrapment defense can be raised. Objective defenses are argued before the judge, without the jury, and involve allegations of outrageous police actions, such as when the police take cocaine they seized from dealers, take it to a police laboratory, turn it into crack cocaine, then release it for use in sting operations. Subjective entrapment, a jury issue, argues that the accused was not looking for or seeking to commit the crime, that the opportunity was brought to him/her by the police or an agent (confidential informant), had no history of that particular crime, and was brought into the criminal enterprise by inducements engineered by the police or a police agent (confidential informant). If you believe you have been entrapped contact a South Florida criminal defense attorney and ask for a meeting to explore the current state of entrapment law in Florida criminal courts, such as Miami-Dade, Broward, Fort Lauderdale, and West Palm Beach.

Bond in Florida: You Have a Constitutional Right

Sat, 17 Apr 2010 16:40:20 -0500

Florida’s constitution is clear: the right to bond (pre-trial release) is a right, not a privilege. Our constitution says that pre-trial release (bail) cannot be denied by a judge unless he makes a finding that there are no conditions (restrictions) that can assure your appearance in court, or can assure the safety of the community. Written in the constitution, but treated lightly by the legislature and most judges. How so? Go to Florida statute 903.0471, your legislature said a judge can deny you bond if you have a new arrest while out on another charge. South Florida criminal defense lawyers, yours truly among them, have been reminding judges that bond is a right than can only be taken away if the judge makes a finding that the arrestee is a danger of flight or danger to the community. The legislature and most criminal judges in Florida avoid dealing with the constitution in a rush to judgment. It may appeal to common sense that if you are arrested once and then a second time, you may be a habitual or repeat offender. But being a repeat offender is not a constitutional basis for denying bond. I have been fighting in court, just again last week, to overturn the law that denies bond to re-offenders. Constitutional rights exist, they are there to preempt passions and imagined fears and should not be taken away easily. Contact a Florida criminal lawyer to know your rights to bail.

Bond in Florida: You Have a Constitutional Right

Thu, 15 Apr 2010 16:40:20 -0500

Florida’s constitution is clear: the right to bond (pre-trial release) is a right, not a privilege. Our constitution says that pre-trial release (bail) cannot be denied by a judge unless he makes a finding that there are no conditions (restrictions) that can assure your appearance in court, or can assure the safety of the community. Written in the constitution, but treated lightly by the legislature and most judges. How so? Go to Florida statute 903.0471, your legislature said a judge can deny you bond if you have a new arrest while out on another charge. South Florida criminal defense lawyers, yours truly among them, have been reminding judges that bond is a right that can only be taken away if the judge makes a finding that the arrestee is a danger of flight or danger to the community. The legislature and most criminal judges in Florida avoid dealing with the constitution in a rush to judgment. It may appeal to common sense that if you are arrested once and then a second time, you may be a habitual or repeat offender. But being a repeat offender is not a constitutional basis for denying bond. I have been fighting in court, just again last week, to overturn the law that denies bond to re-offenders. Constitutional rights exist, they are there to preempt passions and imagined fears and should not be taken away easily. Contact a Florida criminal lawyer to know your rights to bail.

The Insanity Defense in Florida

Tue, 13 Apr 2010 16:23:57 -0500

Insanity as a defense to a criminal charge in Florida can be raised, but like any defense, such as entrapment or self defense, one must admit to the crime and then raise the defense. South Florida criminal lawyers find Florida criminal juries very reluctant to accept insanity defenses. Insanity under Florida criminal law, means that due to a mental infirmity, disease or defect the accused did not know what he/she was doing or its consequences, or, although he/she knew what he/she was doing, but did not know it was wrong. If the defendant believed what he/she was doing was morally right, then he/she is not insane, if he/she was aware that it violated societal standards or knew it was against the law.
In Florida criminal courts (Fort Lauderdale, West Palm Beach and Miami) there is a presumption of sanity. That means a criminal defendant in Florida has the burden of proving the defense of insanity. The standard of proof is by clear and convincing evidence. Clear and convincing evidence is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief, without hesitation, about the matter or defense raised. Unrestrained passion or ungovernable temper is not insanity.

How Do I Get Information About Florida Criminal Law?

Sun, 11 Apr 2010 22:46:21 -0500

If you have a need to know and understand Florida’s criminal laws here is the best way to start: go the Florida’s Jury Instructions and read the jury instruction for the Florida criminal law you are interested in learning about. That’s where I start and I’ve been a criminal lawyer since 1976! Here’s why: Juries don’t read statutes, judges don’t read statutes to juries. Only lawyers read law, so skip the law and go to the jury instructions. After the trial the judge doesn’t explain the law, he reads the jury instructions. Jurors base their decisions on their understanding of the jury instructions. So what does a statute mean? It’s anyone’s guess, and it often is just that: something lawyers and judge’s wrestle with in motions and hearings. But when the tire meets the road and a criminal defendant is on trial the only law that matters is what the jury hears, and the judge just reads them the jury instructions. Florida criminal jury instructions can be found on the website of the Florida Supreme Court, or just Google it! Once you’ve read them then call me for a consultation. Start with a little basic research and you’ll get better results from your Florida criminal lawyer. Be informed, it’s your best defense! Knowledge is power.

Probation Violations and Warrants in Florida Criminal Courts

Fri, 09 Apr 2010 22:26:18 -0500

Attacking probation violation warrants starts with the basics: 1. was the alleged violation a condition of the probation sentence? 2. Did the violation occur during the probationary period? 3. Was the warrant obtained during or after probation ended? If you have an outstanding violation of probation from a Florida criminal court, contact a South Florida criminal defense attorney and let him/her do the basics? 1 – 2 – 3. What? When? Timely?
Violation of Probation warrants are often filed wrongly or too late to be lawful. A legal attack on a violation of probation warrant requires some digging. First get a copy of your final disposition: did the Judge include the condition in the probationary term? If it is a violation of probation based on the statute, check the statute in effect: statutes are amended by the legislature and conditions are added and deleted. Verify that the violation of probation warrant was submitted during the term of the probation. If the violation warrant was sent to the judge after the expiration of the probationary term then it is not a legal warrant and is subject to attack and dismissal. Don’t just submit to a violation of probation warrant without a competent and diligent Florida criminal attorney doing due diligence. A sloppy lawyer will just assume the warrant is correct, but that is not always the case. For more information contact my office for a no-cost consultation. If you have an open violation of probation warrant from Broward (Fort Lauderdale), Miami (Miami Dade County Florida) or Palm Beach, contact a Florida criminal lawyer and assert your right to a legal defense.

Domestic Violence: Solving Society’s Problems or Court Sponsored Male Bashing?

Wed, 07 Apr 2010 16:21:39 -0500

Fort Lauderdale, Miami and West Palm Beach criminal courts all have special criminal court divisions dedicated solely to prosecuting cases of domestic violence. Florida criminal law defines domestic violence as any assault, battery, sexual assault or stalking, kidnapping, or false imprisonment committed on a “family or household member”….or anyone you’re dating, (or dated in the past year) lived with (even if over a year in your past), married to or related to up to the third consequinity. That covers a lot of people. The legislature chimed in with some extra long sentences and a whole bunch of rules that make pre-trial release or bail almost beyond reach. If the charge involves domestic abuse or violence then you are going to be held hard in jail before the case even gets to a judge. Wrong? Unfair? Over the top? Maybe yes, but it’s the law. And why? Well because your legislature is very sensitive to voters who are vocal, and promoters of domestic violence issues holler loud and shrill when pitching legislators for harsher and harder rules that deny bond and inflict longer prison terms for domestic violence, and dating offenses. What to do? Don‘t marry, don’t date, disavow and disown your family (including aunts and nephews), live alone and avoid contact with human beings. A better answer: don’t touch, don’t strike, don’t hit. If there is a problem open the door and leave.