DUI Prosecution Made Easier?

The Intoxilyzer 8000 is the official breath-testing unit used in the State of Florida for suspected drunken drivers. The machine prints out a BAC (Blood Alcohol Content) report that is analyzed by a specialist and used as dominant evidence in court.

The Intoxilyzer 8000 is not a cheap piece of machinery and neither is the required expert that must be present in court to testify regarding the validity of the results. A Herald Tribune article stated that prosecutors for years felt their only option was to hire “Matthew Malhiot, a former Florida Department of Law Enforcement employee who charged them $1,200 a day to appear in court.” Facing such a large expense, prosecutors decided they wanted to cut ties with Malhiot and hire current FDLE employees to testify instead.

On Thursday, a Sarasota County judge approved the decision to allow state employees to say that the machine is scientifically reliable and that the results are valid. Criminal defense attorneys, especially those who specialize in DUI defense, may find this decision surprising. The expert who analyzes the machine’s data is supposed to be independent and impartial to the trial. Having a state employee (one who often testifies in DUI cases anyways) as the witness who validates the reliability of the Intoxilyzer 8000 could be viewed as a conflict of interest. Although this may save money and make prosecuting easier in DUI cases, the job of the criminal defense lawyermay become more difficult. It will be interesting, however, to see if an argument surrounding this possible conflict of interest emerges as a plausible DUI defense.

If FDLE is going to testify that their own procedures are scientifically valid, where’s the unbiased opinion that court’s should rely on?

Tampa Teen Arrested with Alleged Plans to Surpass Columbine Massacre

“I just did the dumbest thing ever [sic]” was 17-year-old Jared Cano’s Facebook status update hours before he was arrested for allegedly plotting to kill school officials and students with home-made bombs.

What Cano is referring to as “the dumbest thing ever” is unclear, but we do know that immediately after a anonymous tip came in about Cano’s plan, the bomb squad was at his Tampa apartment. It is likely that Cano had shared his plan, and that someone called the police. Some are calling this anonymous tipster a “local hero”.

Cano had a manifesto found by police that detailed his every move and motive. According to an ABC article, his goal was to surpass “the number of students who were killed and injured during the 1999 Columbine High School massacre.” With such serious claims found in Cano’s manifesto, it will be interesting to see what route his criminal defense attorney advises him to take.

With an existing criminal record to begin with, Cano has been accused of threatening to throw, project, place or discharge a destructive device, possession of bomb-making materials, cultivation of marijuana, possession of drug paraphernalia and possession of marijuana.

Cano currently sits in juvenile lockup while the state attorney’s office decides whether or not he will be charged as an adult. Given the seriousness of these allegations and the defendant’s age, he will likely face these charges in adult court.

How are you prosecuted for Mortgage Fraud if there is no Federal Statute?

While there is no federal statute that references “mortgage fraud” directly, recent news articles abound on the subject. In four separate cases in South Florida, the U.S. Attorney accuses 27 of mortgage fraud, according to an August 4th article posted on LoanSafe.org. On the same day, an Arizona builder pleads guilty to mortgage fraud, according to KTAR.com and fox news cited that 14 have been charged in a $60 Million mortgage fraud scheme. The list goes on…

Cases involving “mortgage fraud” are typically prosecuted under existing federal statutes involving conspiracy, wire fraud, bank fraud, false statements to an FDIC-Insured Bank and others. Ancillary offenses, including tax fraud and bankruptcy fraud can also be charged following a “mortgage fraud” investigation. Depending on the number of properties involved and the dollar amount of the loss, penalties vary widely and can involve real estate agents, mortgage brokers, real estate attorneys, title closers, appraisers, and straw buyers. Some of the schemes in the news are fairly elaborate, involving fraudulent mortgage applications, fake W-2s and tax stubs, fraudulent short sells and even arson and insurance fraud.

Sometimes innocent consumers unknowingly fall victim to unscrupulous real estate agents, bankers and brokers and may find that they are under investigation by the government for “mortgage fraud”. When this happens, it is critical to contact an experienced federal criminal defense attorney before speaking to the government.

Casey Anthony: A not-so-free woman after all?

We’ve spent months following the Casey Anthony case, and until this past Monday, we didn’t think there would be anything left to write about. Then news broke that Casey Anthony had 72 hours to report back to Orlando to meet her probation officer.

We still don’t know Casey Anthony’s current whereabouts, but if she is ordered to serve probation, she will be required to provide an Orlando address to her probation officer. In most cases, the parolee’s address is public record, but exceptions can be made and given the public’s opinion in this case, that exception may be considered.

Anthony is facing the possibility of probation for check fraud charges that she plead guilty to last year. The confusion lies in whether or not Anthony’s jail time counted towards that probation. Anthony’s criminal lawyer argues yes, but Judge Stan Strickland says no. According to anMSNBC article, “Strickland said at the time he had meant that Anthony — found not guilty of killing her daughter and released in July — should serve the probation order if and when she was freed.”

On Tuesday, Cheney Mason filed a motion to disqualify Judge Strickland. Today, the judge has recused himself and the matter has been reassigned to Chief Judge Belvin Perry, the judge who presided over Anthony’s first-degree murder trial.

We will see whether Casey Anthony will be required by Judge Perry to return to Orlando to serve probation and whether she will abide by the court’s order. If a bench warrant issues for her arrest for failing to return to Orlando, the fever to locate her will be heightened. Media and law enforcement from across the country will seek to capture her arrest and return her to Florida. The public spectacle surrounding Casey Anthony will surely continue.

Manuel Valle’s Criminal Defense Attorney Successful in Staying Execution Over Drug Concerns

On Monday July 25, 2011 the Florida Supreme court determined that Manuel Valle, convicted of killing a police officer, had valid concerns regarding the new death penalty drug. As a result, Valle’s death sentence has been postponed until September 1.  In general, an inmate’s concerns elsewhere have not put a stop to executions.

According to an article published by Reuters, the Supreme Court determined that “[Valle] has raised a factual dispute, not conclusively refuted as to whether the use of pentobarbital in Florida’s lethal injection protocol will subject him to a ‘substantial risk of serious harm.’”

What is the difference between pentobarbital and sodium thiopental(the drug previously used)?

Not much except that Pentobarbital is often used to euthanize animals. The reason many correctional facilities are using the drug is because there is a shortage of sodium thiopental and it will not be made by U.S. manufacturers any more.

Valle’s lawyer’s argued that pentobarbital will subject him to substantial harm. It isn’t uncommon in recent days that a criminal defense attorney will argue the risk of harm to postpone a sentence.

Judge Declares Florida’s Drug Law Unconstitutional

Mary S. Scriven, United States District Judge for the Middle District of Florida, Orlando Division, held Florida Statute 893.13, Florida’s drug statute, unconstitutional in an order filed on July 27, 2011. In accord with Rule 57 of the Federal Rules of Civil Procedure, a Declaratory Judgment shall be entered separately, declaring Florida Statute, 893.13 unconstitutional. In her 43 page order, Judge Scriven granted Petitioner, Mackle Vincent Shelton’s Petition for Writ of Habeas Corpus under 28 U.S.C. Section 2255.

Click for the full text of the opinion.

Charges Reduced for Florida Teen Accused of Killing Parents

Tyler Hadley, 17-year-old male from Port St. Lucie, Florida has been accused of murdering his parents, Blake and Mary-Jo Hadley. Hadley allegedly bludgeoned his parents to death with a hammer Saturday night before throwing a party where 40-60 teens attended as guests.

Hadley was appointed a public defender before facing a judge from St. Lucie County Jail, in Fort Pierce, via closed circuit camera. He was first charged with two counts of first-degree murder which have now been reduced to second-degree. No reason has been given as to what Hadley’s motive was or why the charges were dropped from first-degree murder to second. See the story from WSVN News.

First-degree murder is considered premeditated while second-degree is categorized as a crime of passion. Given the murder weapon, and the events that took place afterwards, it’s hard not to wonder, why the drop in charges? Was there a fight between the parents and Hadley prior? Is it because of the suspect’s age? There are many questions to consider, and this is only a few days after the incident. It will be interesting to see what approach the criminal defense lawyertakes in this case. We don’t know much but this is certainly a case to watch as more develops.

What are the DUI laws in Florida?

In the state of Florida, if you are driving under the influence and have a blood/breath alcohol level of .08 or higher you will be charged with a DUI. According to the Florida Department of Highway Safety and Motor Vehicles, the penalties upon conviction are the same but depending on certain factors such as prior convictions or if there was a minor in the car, the suspect will face heavier consequences.

Referenced from the Department of Highway and Safety and Motor Vehicles, here is an outline of the consequences and suspension laws for a DUI in Florida.

First offense:

  • Pay a fine anywhere between $500- $1000.
  •  50 hours of community service is mandatory; you can either complete the community service or pay $10 for every hour that is required.
  • Probation (should not exceed a year).
  • You will not face more than 6 months jail time.
  • Your license will be suspended anywhere from 180 days to a year.
  • Mandatory DUI school before hardship reinstatement.
  • Your car will be impounded 10 days.

If it is your first offense AND you have a BAL of .15 or higher or have a minor in the car your sanctions will worsen. Your fines will increase to $1,000-$2,000 and you could face up to 9 months in jail.

Second offense:

  • A fine of $1,000- $2,000
  • You will not face more than 9 months of jail time.
  • If it is within 5 years of prior offense, license will be suspended for 5 years.
  • Mandatory DUI school.
  • Your car will be impounded for 30 days.

If you have a BAL of .15 or higher or a minor is present, your fines increase to $2,000-$4,000 and you can face up to 12 months in jail.
Third offense:

  • A fine of $2,000-$5,000
  • You will face at least 30 days of jail time but no more than 12 months.
  • If it is within 10 years of prior offense, license will be suspended for 10 years.
  • Mandatory DUI school.
  • Your car will be impounded for 90 days.

Again, if you have a BAL of .15 or higher or a minor is present, your fines increase to no less than $4,000.

The most important thing you can do after receiving a DUI is to contact a criminal defense attorney. Hillsborough County is one of Florida’s most active counties in cracking down on drunk drivers. Generally speaking, if you are pulled over for DUI questioning, you will be arrested. Unfortunately you must pay the price, but having a Tampa defense attorney present throughout your process will ensure that you are making the right decisions as you go forward. A Board-Certified attorney should know the DUI laws like the back of their hand, so they will be able to educate you on what happens next.

Is your personal information up for sale?

If you have a Florida driver’s license, then yes. And believe it or not the State of Florida has been doing this for years.

It’s logical to think this act must be breaking a law when in reality, “the courts have ruled there is nothing illegal about it” according to an ABC Action News article.

Not anyone has the ability to purchase your license; the state only sells information to companies like ShadowSoft, Inc., which claims to sell the information they get from the state to businesses to whom use it for customer verification.

For example, if a doctor’s office was trying to track a patient down and came across that the patient has since moved or changed their mailing address, they would buy the patient’s personal information from a business like ShadowSoft.

There are 10 different companies that Florida sells drivers license information to. According to the article, our personal information is worth a lot – $62,968,946 to be exact.

So the question arises, is this constitutional? Courts say yes but the public, or at least the ones who know about it, say no. Larry Brindley was stopped outside of the Department of Motor Vehicles and asked his thoughts on the topic. After ABC Action News explained what was happening with Florida drivers’ personal information, Larry responded with

“I have a problem with that, it’s just another cash cow for somebody, and I think information is exploited to the max.”

This spring, a group Florida citizens attempted to shut down the relationship between ShadowSoft and the state. The judge declared it legal and said it did not violate the Driver’s Privacy Protection Act. So now we wonder… the more the public finds out about what is happening to their personal information, will we see an appeal to this case in the future?

DUI Suspension Rules Change

Last Thursday, the Florida Supreme Court ruled that the state can no longer suspend motorist’s license if they refuse a DUI test. What’s the catch? That is only if the driver felt the refusal did not follow a lawful stop.

Prior to this ruling, Florida’s “implied consent” law required that if police officials had probable cause to pull a suspected motorist over and they denied the sobriety test, their license would immediately be suspended. Officials never had to consider the legality of the stop.

In the article, DUI License Suspension Rules Will Change After Ruling, attorney David Robbins says, “This gives defendants a fighting chance.” He and another attorney believed that since law enforcement had the ability to suspend someone’s license right on the spot, suspects had no chance to appeal the decision.

So what does the passing of this law tell us? It’s safe to say that we’ll see an uptick in the number of people that will challenge the lawfulness of their stop.

This law applies to DHSMV administrative suspension proceedings and excludes all criminal DUI cases.