IMG_6709-2-194x300DRUG BUSTS

100 ‘most asked ‘ questions

IS RESIDUE POSSESSION?

Yes.  Residue is possession.

In most state courts they don’t care if there is a trace amount, or a consumable amount of a controlled substance.

If it can be chemically identified as a controlled substance, or residue it is possession.

Ash is residue.

The film of smoke inside a pipe or bong is residue.

In most states you cannot be convicted of possession of a controlled substance if it is found in your body tissues or fluids.

Consuming a controlled substance, which often happens when someone is stopped by the police and tries to eat the drugs is charged as the crime of obstruction of justice, tampering with evidence, or resisting arrest.

IMG_6709-2-194x300DRUG BUSTS

100 ‘most asked ‘ questions

WHAT IS POSSESSION?

To possess means to have personal charge of, or, exercise the right of ownership, management or control over the “thing” possessed.

Mere proximity to a thing does not prove possession.  There has to be knowledge of its presence and control.

The law presumes you have knowledge of things within your control. That means anything on your person, in your clothing or within ready reach can be presumed to be in your possession.

You can be held accountable for possession of something that is not physically on your person. So, if you give a controlled substance to someone and it remains within your control, you can be charged with possession.

There are no easy rules or bright line distinctions between possession and mere proximity. It is always a question for the jury to decide.

IMG_6709-2-194x300CRIMES

50 ‘most charged’ crimes defined

DRUG CRIMES

The state can prohibit entirely the use of particular drugs for which there is both a lawful and an unlawful market, and may exercise broad police powers in regulating the possession of drugs.

Controlled substances are divided into five categories, largely according to their relative potential for abuse.

It is a crime to be in possession of a controlled substance without a valid prescription.

 

IMG_6709-2-194x300CRIMES

50 ‘most charged’ crimes defined

BATTERY

A battery is an unlawful touching.

The state must prove:

  • The defendant intentionally touched or struck the victim against his/her will.
  • A battery may become a felony when the touching causes serious bodily harm.

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CRIMES

50 ‘most charged’ crimes defined

ARSON

Arson is the damage of property by fire or explosion.  For it to be a crime the state has to prove:

  1. There was damage to a structure or dwelling, caused by fire or explosion.
  2. The damage was done willfully, or during the commission of another felony.

 

 

us-supreme-court-300x225What Do I Do After I’m Arrested In Miami Florida?

This three-part series title: What Do I Do After I Am Arrested in Miami , is a complete run through of the criminal court processes from arrest through final disposition of a Miami criminal case.  This Article is Part Three of a Three Part Series that begins with the final disposition of your criminal case filed by the Miami State Attorney’s Office case.  Please also see parts two and three in this series regarding Miami Criminal Cases and processes.

Final Disposition of Your Case:

At some point, you will need to decide whether you want to resolve your case by agreement with the state, to ‘plead open’ to the mercy of the Court, or to proceed to trial.

To resolve your case by agreement with the State Attorney’s Office, your attorney and the Assistant State Attorney, assigned to prosecute your case, must come to a complete agreement regarding all of the terms of an agreement for all of your pending charges.  The court can accept or reject the terms of the agreement but cannot modify the terms without your advance consent.

If you decide to ‘plead open’ to the mercy of the Court after consulting with your attorney, the judge will decide what sentence will be imposed after considering your ‘Criminal Punishment Code Score Sheet’, which lists your offenses in severity and assigns points for those offenses.  If you decide to go to trial, you and your attorney should have some legal defense and be otherwise fully prepared.  The fact that the State’s case against you is very weak is a defense in itself.  Generally, if you do not have a defense that will present well in Court, you should consider another option.  There is nothing worse in your case than going to trial unprepared, with little or no defense.

Sentencing Issues and The Criminal Punishment Code:

The Criminal Punishment Code Score Sheet is like a report card that the judge reviews at the time of sentencing.  The score sheet tabulates a specific number of points per offense scored at the time of sentencing set by Florida statute in consideration of the severity of the offense or violation.  If your total combined score is less than or equal to 44 points, the judge can impose a non-state prison sanction which could mean, county jail time of one year or less, house arrest, probation, a fine, payment of Court costs, or even no punishment at all.  If total points are greater than 44 points, the Court will impose mandatory state prison time unless the Court finds both a legal reason to downward depart and is willing to downward depart from the minimum prison sentence set by the criminal punishment code.  A downward departure sentence is a sentence below the minimum permissible sentence based upon a legally permissible exception in sentencing laws.  The judge does not have to grant a bonafide downward departure motion and it is completely in the Court’s discretion to disregard it under the law.  Your attorney can assist you in deciding what course of action is best depending on your charges and other factors unique to your case.  No two cases are the same.

Hiring the Right Attorney:

Consulting with an attorney on your case gives you a chance to interview the attorney to determine if he or she is the right attorney to represent you in your case.  You should feel comfortable with the attorney that you hire and confident that he or she will work diligently in preparing the best defense possible for you.  You will know when you have found the right attorney for your case.  Make sure that you ask a lot of questions during your consultation and during the pendency of your case.  Your attorney cannot prepare a proper defense for you without your assistance.  You are the most valuable asset in the defense case.

This article by Miami Federal Criminal Defense Lawyer Ralph S. Behr is for informational purposes only and should not be construed as constituting legal advice.  You should consult with your attorney to determine the best course of action to take on your case.  For consultation regarding the specific facts of your case and arrest please contact Miami Criminal Defense Lawyer Ralph S. Behr.

IMG_6709-2-194x300CRIMES

50 ‘most charged’ crimes defined

VEHICULAR HOMICIDE

The state must prove more than a failure to use ordinary care.  The state must prove:

  1. The victim is dead.
  2. The death was caused by a motor vehicle operated by the defendant.
  3. The defendant operated the motor vehicle in a reckless manner likely to cause death or great bodily injury.

The state does not have to prove any intent on the driver to injure the victim, just reckless operation.

GovermentWhat Do I Do After I’m  Arrested  In Miami  Florida?

This three part series: What Do I Do After I Am Arrested in Miami, is a complete run through of the criminal court processes from arrest through final disposition of a Miami criminal case.  This Article is Part Two of a Three Part Series that begins with the Miami State Attorney’s Office case filing decision.  Please also see parts one and three.

Case  Filing  Decision:

The State Attorney’s Office will generally begin to review the case filing package on your case within 2-weeks after your arrest and make a filing decision within 21 days of your arrest, if you are in custody.  If you are not in custody, the filing decision generally takes about 30 days or longer.  Once the State files what is known as an ‘Information’ in your case, the Clerk’s Office will post your charges into the Clerk’s computer and you will be noticed with an Arraignment date.  You may also have changes to your bond on the same date, assuming there are added charges or changed charges, from the charges that you were originally arrested for by the police.  This is common because, the police do not  always arrest  you  for the identical offenses that your are ultimately charged  with by the State Attorney’s Office.

Pre-Filing Package:

Before your charges are filed, you have an opportunity to provide the case filing Assistant State Attorney with additional materials such as;  witness  statements, documents, recordings, and papers for his or her consideration in determining what, if any, charges should be filed against you by the state of  Florida.  I have represented thousands of clients pre-filing, which many times has gotten charges completely dropped. Oftentimes, supplemental materials filed by you will result in greatly reduced charges that are in  the process of being filed against you.  The pre-filing package represents the first line of defense in many cases.  If you do not file supplemental materials with the State Attorney’s Office,  the case  filing Assistant State Attorney will  rely solely upon the case filing package of materials received from the police department, and  may accept all allegations and statements contained in the police package as true.   This could result in  more serious charges  being  filed against you in the criminal Information.  Your defenses will rarely be set forth in the police reports used as the basis to arrest you.  It is unfortunate indeed  that  more defendants do not utilize the pre-filing package opportunity in an effort to have reduced charges filed.  I can assist you with these critical stages in your case.

The Defense Case:

After Arraignment in your case, you can  file a ‘notice of discovery’, which is an official  request for the state  to file a discovery response  listing  witnesses, papers, and other specific evidence upon which the state will  rely in attempting to prove it’s case against you.   You are entitled to take discovery depositions from all material state’s witnesses in the preparation of your defense.  The state will  also provide you with copies of all relevant papers in your case, which may include witness statements, lab  reports,  photos, crime scene reports, police reports, and  all other materials.  You may also list defense witnesses and use defense exhibits in your case, provided that you give notice of these witnesses and materials to the state in advance.  This is known as reciprocal discovery.

As your case progresses and as your attorney prepares your defense, pretrial motions may be filed on a variety of legal issues.  As a general rule, the harder your attorney works on your case- the better your ultimate disposition in the case will be.  Your attorney should examine the facts of your case and determine whether some or all of the charges filed against you can be dismissed and to file the appropriate defensive motions for dismissal.   The results achieved in every case differ depending on a variety of factors, such as the nature of the charges, your prior arrests, the strength of the state’s case, the strength of the defense case, the judge, and the Assistant State Attorney assigned to your case.  The prosecutor assigned to your case may change during the pendency of your case, which is quite common.  This could be a good thing or a bad thing. Being fully prepared for all possibilities is the key to a successful defense.

Part Three Of Three will discuss what happens next through disposition of a criminal case filed in Miami, Florida.

This article by Miami Federal Criminal Defense Lawyer Ralph S. Behr is for informational purposes only and should not be construed as constituting  legal  advice. You should consult with your attorney to determine the best course of action to take on  your  case. For consultation regarding the specific facts of your case and arrest please contact Miami Criminal Defense Lawyer Ralph S. Behr.

IMG_1145-300x212What Do I Do After I’m Arrested In Miami Florida?  Part One of Three Part Series.

This three part series: What Do I Do If I Am Arrested in Miami Florida,  is a complete run-through of the criminal court processes from arrest through final disposition of a Miami criminal case.

Part One Of Three:

You have been arrested in Miami (by a Florida  police officer or deputy sheriff), this starts the criminal court process. Bienvenidos a’ Miami!  I will lead you through the mine-fields after your arrest in South Florida, and there are many.

Posting A Bond:

In all cases, you are entitled to a reasonable set of pre-trial release conditions, or bond, unless it is a capital charge, or you are currently on pre-trial release in Florida or any other jurisdiction.  Generally, this requires that you post a bond with the court.  A bond is a binding agreement to pay, or deposit money to the court to assure the Court  that you will appear for your scheduled court dates.  This holds true regardless of whether you are arrested in Miami, Florida, or anywhere else in  Florida.  A bond is intended to assure your appearance in the case.  Your bond may either be a cash bond in smaller cases, or a surety bond in larger cases.  To post a surety bond you will need the assistance of a bondsman who will file a bond  with the court on your behalf, guaranteeing your appearance at all scheduled court dates.  The bond is a conditional release.  Therefore, if you are arrested for a subsequent offense while you are out on bond, your original bond may be revoked by the court without notice.  If you cannot afford to post the bond that is set by the court it may be necessary to request a bond reduction hearing with the court.  I can move the court on your behalf quickly for a bond reduction.  Depending on the severity of the allegations made against you, the court may also impose other conditions of your pre-trial release, which could include many other restrictive conditions, such as electronic monitoring.

Magistrate  Court:

Once  you  are  arrested,  you  are  entitled  to  a  magistrate  hearing  within 24 hours if you are still in custody for a determination of whether probable cause exists for your arrest.  I have represented thousands of clients in magistrate court.  Probable cause for an arrest are facts and circumstances, which would lead a reasonably prudent person to believe that a crime has been committed.  If no probable cause is found for your arrest, you can be released on your own recognizance.  In the majority of cases, probable cause is found by the magistrate judge and the bond amount is generally set by the Clerk of Courts, as a standard bond amount.  If your arrest stems from an arrest warrant (a court order by a judge commanding your arrest), the judge signing the arrest warrant will set the bond amount, which is typically higher than a standard bond amount for the same offense.

Tracking Your Case:

Within a day or two, the probable cause affidavit or initial arrest report on your case, will filter it’s way to the Clerk’s Office from the booking desk at the jail.  You will be assigned a case number and judge by random assignment.  This information  is normally viewable online at  the  Clerk Of  Court’s Website.  You can track certain information about your case, including court dates and case status from the same site once it is logged online.

Part Two Of Three we will discuss what happens during and after a criminal case filing decision is made by the Miami State Attorney’s Office.

This article by Miami Federal Criminal Defense Lawyer Ralph S. Behr is for informational purposes only and should not be construed as constituting  legal  advice.  You should consult  with your attorney to determine the best course of action to take on  your  case. For consultation regarding the specific facts of your case and arrest please contact Miami Criminal Lawyer Ralph S. Behr.

IMG_6709-2-194x300CRIMES

50 ‘most charged’ crimes defined

R.I.C.O.

(Racketeering Influenced and Corrupt Organization Act)

There are five specific facts which must be proved:

  1. The defendant was associated with an “enterprise”.
  2. The defendant knowingly and willfully committed, or aided, at least two predicate offenses.
  3. That the two predicate offenses were connected with each other by some common scheme, plan or motive, so as to be a pattern of criminal activity.
  4. The defendant conducted or participated in the enterprises’ affairs.