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Driving Under the Influence (DUI) Florida Criminal Statutes Uncategorized

Marijuana And DUI

Under Fla.Stat. §316.293(1)(a), a person is guilty of a DUI in Florida if he or she is driving under the influence of any controlled substance to the extent that the person’s normal facilities are impaired. Fla.Stat. §316.1934(1) states that a person’s normal facilities include, in general, the performance of the many mental and physical activities of daily life. These normal facilities also include “the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, and act in emergencies.”So if a person can’t perform the many activities of mundane, everyday life like talk or judge distance because of the influence of marijuana while driving a vehicle, he or she may be found guilty of DUI in Florida. As more states legalize marijuana, DUIs for cannabis will become a law enforcement priority.

Fla.Stat. §316.193(1)(a) defines “under the influence” as the driver being in actual physical control of the vehicle while affected by the drug, or combination of drugs and alcohol thereof, to the extent that the driver’s normal faculties are impaired. Florida’s jury instructions define “actual physical control” as the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time. People have been charged with DUI while asleep in a parked vehicle, and even other situations where they were otherwise not driving the vehicle but still in “actual physical control.”

Some states, like Florida, use “Drug Recognition Experts” (DREs) to determine drug impairment in motorists. DREs are specially trained police officers who follow specific guidelines to reach a conclusion whether someone is under the influence of marijuana or some other drug. In almost every case, the police are required to continue a DUI investigation only with a DRE. In Florida, the majority of police officers are not qualified as DREs.

Thus, a non-DRE police officer does not have the right a driver to submit to a urine test. It is not unusual for police to ask someone to submit to a urine test after a low breathalyzer result, still believing that the subject driver is in fact legally drunk. But normal, non-DRE police officers may not do this unless they are qualified DREs. Beware that any statement a driver makes admitting marijuana use can give law enforcement probable cause, so drivers should always exercise their right to remain silent and talk to a criminal defense attorney as soon as possible.

The officer must have an independent justification to believe the defendant is under the influence of something other than alcohol. Simply providing a negative result on a breath test does not by its self justify a demand for a urine sample, otherwise, and the officer runs the risk of the positive urine result being suppressed as evidence due to a violation of the defendant’s constitutional rights.

Metabolites from marijuana are known to stay in a person’s system for up to thirty days after use. Thus, a driver, believing in his or her innocence may voluntarily submit to a blood or urine test and still test positive for marijuana. In Arizona, inactive metabolites (THC-carboxy) do not constitute evidence of impairment, which increases the burden on the State to prove that the impairment was a result of marijuana use.

If you have been charged with DUI for marijuana, enlist the aid of an experienced and knowledgeable criminal defense attorney to defend you and determine whether the State of Florida even has the required evidence to support its case against you, call Alan Fowler, an experienced Florida Key West criminal defense attorney, for a consultation at 305.417.9378.

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Florida Criminal Statutes Uncategorized

Is Loitering Really A Crime?

Florida law contains a statue that prohibits loitering or prowling. §856.021 of Florida Statutes makes it is unlawful for any person to “loiter and prowl” in a place, at a time, or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. The accused must have engaged in unusual or suspicious behavior that causes justifiable concern that a crime is about to be committed against persons or property. Loitering or Prowling is classified as a second degree misdemeanor with penalties of a $500 fine and jail time of up to 60 days.

Two elements must be established to prove the offense of Loitering or Prowling:
1. The defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals, and
2. The defendant’s behavior occurred under circumstances that warranted justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity of the accused.

In determining whether “alarm” or “immediate concern” is justified under the circumstances, a wide range of factors are considered, including, but not limited to whether the defendant attempted to conceal herself or any object she was carrying, or took flight upon the arrival of law enforcement officers. These actions will create a rebuttable presumption that the officer’s “alarm” or “concern” was justified.

Florida’s Loitering and Prowling statute neither criminalizes idleness or vagrancy nor gives police the power to detain citizens to explain an unusual presence in an area. Mere suspicion about an accused’s presence is insufficient to detain or arrest a suspect. Thus, an individual’s simple presence late at night even in an area of recent burglaries, or in a location nearby or behind closed business establishments will not provide sufficient grounds to sustain a Loitering or Prowling conviction. Consult an experienced criminal defense attorney if you think your rights have been violated under this statute.

A detention by police for Loitering or Prowling requires that accused’s conduct suggest that a breach of the peace is imminent. The evidence must show that the individual closely approached, but fell short of, the actual commission or attempted commission of a substantive crime. Without an imminent breach of peace or imminent threat to persons or property, a detention or arrest is unlawful and a defendant may not be convicted in a Florida court. Both elements of a loitering and prowling charge must be committed in the presence of a police officer before the officer may detain or arrest a suspect.

Loitering has long been an offense that gives police officers the opportunity to exercise power in a manner that is inconsistent with the standards of the U.S. and Florida Constitutions. Such questions surround the Florida loitering or prowling statute and have caused the Florida Court of Appeals to state that the statute must not be used as a catchall provision to detain and prosecute citizens without sufficient basis to convict them on some other charge.

If you have questions about whether you are guilty of loitering or prowling under Florida law, call Alan Fowler, an experienced Key West criminal defense attorney, for a consultation at 305.417.9378.

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Driving Under the Influence (DUI) Uncategorized Vacation Crime

Tips For Avoiding A DUI When On Vacation

Arrests for alcohol-related criminal offenses such as DUI, underage drinking , BUI (Boating Under the Influence) and disorderly conduct increase during the winter and spring holidays. Arrests for DUI are highest during the time period from Thanksgiving weekend to New Year’s Day. This winter period, as well as spring break, are both periods when many people vacation in Florida to get away from the winters of the Rust Belt and Midwest. There are certainly more drivers on the road at this time. Regarding number of DUI arrests, Florida was second in the country in 2015.

Here are some tips for avoiding DUI when on vacation in Florida:
1. Plan ahead. Beware of areas where there are likely to be more police and if the area is abundant with police, consider not drinking at all.
2. Drive with caution. A vacation is a special time so drive with patience and without haste or hurrying. During the holidays, more police will be on the road and available to monitor illegal motorist activity.
3. Limit alcohol consumption or simply do not drink and drive. Do not drink on an empty stomach. Designate a sober driver otherwise.
4. If you have had more than your limit or enough to probably blow a .08 BAC, call a professional for a ride home. A cab or ride share application like Uber or Lyft will accomplish this.
5. If you are pulled over or involved in an accident, remember, you have the right to remain silent until you have your lawyer present. If you are involved in an accident, stop immediately and remain at the scene. Do not admit to anything and request to speak with a lawyer as soon as possible.
6. Do not do anything unusual to draw suspicion of any possible intoxication like fall asleep any place inside your vehicle. If the keys are in the ignition or the engine is running, you may be arrested.
7. If going a long distance on a particular evening, consider making overnight accommodations at the destination.
8. Do not speed and do not drive excessively slow to draw attention to yourself.

If you are stopped, pull over as soon as it is safe to do so, produce license and registration. Failing to do the latter with the normal amount of expected ease will raise suspicion of drinking. If you in fact have been drinking, be careful about denying it since you may smell of alcohol which will cause the officer to lose any trust in you to tell the truth. Being asked if you have been drinking is not the same as being asked how much have you been drinking. Don’t volunteer information. Be succinct and to the point. Don’t be compelled to speak whenever there are gaps of silence in the exchange between the officer and you. Remember that you have the right to remain silent. Exercise your right to counsel. Ask to speak with an attorney

If you have been charged with DUI while vacationing in Florida, call Alan Fowler, an experienced Florida Keys criminal defense attorney, for a consultation at 305.417.9378.

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Driving Under the Influence (DUI) Uncategorized Vacation Crime Warrants & Arrest

What To Do If You’re On Vacation And Arrested

Visitors to Florida on vacation sometimes make mistakes resulting in transgressions like DUI or drug possession charges. If not dealt with expediently, such a situation has the capacity to become a very difficult situation in the future. What may result is the necessity to make frequent trips back and forth between home and Florida to deal with pending criminal charges. This typically includes the burden and expense of taking time off work, plane tickets, as well as room and board and all things related thereto.

Unless non-Florida-based defendants want to appear in court themselves, they must obtain legal representation to appear on their behalf at future court dates. Otherwise, any failures to appear will likely result in the issuance of a bench warrant by the presiding judge. Bench warrants may have serious effects upon the immigration status of foreigners, thus it is of particular importance for those that are arrested on vacation to obtain immediate and competent legal representation.

DUI and disorderly intoxication are two of the most common offenses committed by Florida tourists. The latter is a general offense, kind of a “catch all” for police desiring to increase local coffers. For many misdemeanor offenses, the police may issue a PTA, or promise to appear, which is only a technical rather than physical arrest.

Florida procedural law permits misdemeanor defendants to waive their presence in writing, allowing their attorneys to represent them at all stages of the judicial process. Attorneys may even accept a negotiated plea agreement on behalf of a defendant. Most importantly, attorneys can request the evidence the state intends to produce to prove its case, and therefore determine how to proceed with an individual’s defense.

If arrested for an offense that qualifies for Pre-Trial Diversion (PTD), a defendant’s written waiver and power of attorney may allow counsel to enter that person into the diversion program. If arrested for a felony, a defendant may waive his or her presence but only for certain matters. Defendants should wisely expect to attend any trial or other court date where attendance is required or necessary under the circumstances.

If arrested on vacation for DUI, it is important to know that the Interstate Drivers License Compact will ensure that a Florida defendant’s DUI offense may cause the suspension of a driver’s license or even another arrest warrant, for a failure to appear in a Florida court. Defendants may actually face the suspension of a driver’s license until the outcome of the proceeding in Florida is concluded. Also, a pending criminal DUI proceeding may prevent an American citizen from leaving the country.

Remember that when on vacation the federal constitutional rights relating to the right to counsel and the right to be free from unreasonable searches and seizures still apply wherever a person may go on vacation. If you are a tourist and you are arrested for the commission of a criminal offense in Florida, it is wise to hire a lawyer so that you do not have to continually return to Florida for each and every court hearing.

As a Monroe County criminal lawyer, I can represent any out-of-state defendant at all stages of the judicial process in Monroe County, Key West, or anywhere else in the Florida Keys. Call Alan Fowler, an experienced Key West criminal defense attorney, for a consultation at 305.417.9378.
What To Do If You're On Vacation And Arrested

Categories
Florida Criminal Statutes Uncategorized

Florida Statute Of Limitations Law

Florida law imposes a statutory deadline on prosecutors, forcing them to begin prosecuting their criminal cases within a certain period of time. This period of time for filing criminal charges, as even most laypersons know, is called the “Statute of Limitations” and, in Florida, is found in Florida Statute §775.15. As with most laws, §775.15 contains a long list of exceptions and conditions, which requires the assistance of an experienced Florida criminal defense attorney to fully comprehend, understand and navigate.

Here are the basics regarding Florida crimes and their respective statutes of limitation:

Felonies
No Statute of Limitations: Felony crimes that result in death, death penalty felonies, felonies that are punishable by life in prison, and perjury in an official proceeding associated with the prosecution of a capital felony have no Statute of Limitations and may be brought at any time.
First-Degree Felony: Four years after the crime is committed.
Other Felonies: Three years after the crime is committed.

Misdemeanors
First Degree: Two years after the crime is committed.
Second Degree: One year after the crime is committed.

Other
Noncriminal Violation: One year after the crime is committed.
Some Specific Offenses: For first degree and second degree felonies for abuse or neglect of an aged or disabled adult the limitation period is five years. For violation of a securities transaction it is also five years. For violation of environmental control it is five years from the of date of discovery.

Any offense which fraud or breach of fiduciary obligation is a material element has a three year limitation period. Misconduct in public office must be brought within two years of leaving office or any above limit, whichever is greater. And for sexual offenses such as battery, assault, and intercourse when the victim is under eighteen, the limitation period does not start to run until age sixteen or when the violation is reported to a law enforcement or other governmental agency, whichever occurs earlier.

When Does the Clock Start Ticking?
When does the Statute of Limitations start running for a particular offense? It depends upon when the offense was committed. An offense is committed either when every element has occurred or, if a legislative purpose to prohibit a continuing course of conduct is clearly present, at the time when the course of conduct or the defendant’s complicity with such conduct is terminated. Time starts to run on the day after the offense is committed.

Unreasonable Delay
In criminal cases, the burden is on the state to inform the defendant of the lawsuit “without unreasonable delay.” If a suspect has not yet been arrested, a judge must sign and issue an arrest warrant, and the sheriff then attempts to locate the defendant to make the arrest. A case will be dismissed for violation of the Statute of Limitations If the sheriff’s office makes insufficient or no effort to locate a defendant, thereby constituting an “unreasonable delay.”

Tolling the Statute
However, the Statute of Limitations is tolled (or ceases to run) during any time a defendant is continually absent from the state or has no identifiable place of work or home in Florida. It is under this circumstance where the government’s unreasonable delays will be allowed, if a defendant is found to have left the state. Under §775.15(4)(b), the failure to extradite a defendant in another state does not constitute an unreasonable delay. Pursuant to §775.15 (5), the limitation period does not run during any time when the defendant is continuously absent from the state. However, the Statute of Limitations period may not be extended for more than three years.

If you have questions about whether the State of Florida may still be within the limitation period under Florida law for filing criminal charges against you, call Alan Fowler, an experienced Florida Keys criminal defense attorney, for a consultation at 305.417.9378.

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Uncategorized Warrants & Arrest

What To Do When You Have A Pending Warrant For Your Arrest

An arrest warrant is a written order issued by authority of the state commanding the seizure of the person named therein. It is usually signed by a judge or magistrate and establishes probable cause that a crime has been committed granting law enforcement officers the right to make an arrest of that person. The warrant is issued upon a sworn declaration by a district or county attorney, a police officer or an alleged victim that the accused person committed a crime.

Arrest warrants are often issued without direct notice to the defendant so awareness of a pending warrant may come as a surprise to a potential arrestee during the most inconvenient of circumstances. An arrest warrant can land someone in jail, but an experienced criminal defense attorney can insure that an arrestee spends as little time in jail as possible under the circumstances.

If lucky enough to come upon such information an individual should determine the exact nature of the crime upon which the warrant is based, the date thereof, and anything else of significant relevance to the event in question. If course, it’s then necessary to establish whether the crime did in fact occur and whether the State of Florida is capable of proving, and therefore pursuing, any charges.

In order to formulate any defenses, an accused needs to find the specific information contained in the original charging document detailing why the warrant was issued. Certain questions need to be answered including whether the defendant was physically present in Florida when the crime occurred. Another may be whether the defendant actually participated in the underlying event or transaction to the crime charged.

What incriminating evidence exists of the crimes charged? What exculpatory evidence exists of the crimes charged? As an experienced Florida criminal defense attorney, I can help gather, identify, and present all available evidence to defend out-of-town and out-of-state visitors, as well as local residents, from any criminal charges contained in any pending arrest warrant.

Generally, the older the case, the more likely any related evidence is lost or missing. Witnesses may no longer be available or evidence may have grown stale by the time the arrest warrant is actually served. Such a situation typically decreases the likelihood that the State of Florida will meet its burden of proving a crime beyond a reasonable doubt.

If it comes to a person’s attention that there is an active arrest warrant in his or her name, it’s crucial to immediately retain a criminal defense lawyer. Attorneys can help check the status of warrants. The warrant will be listed on the FDLE wanted person page. Retaining an attorney early in the process insures that an immediate course of action may be planned and taken to help quickly navigate toward the most favorable resolution of the warrant.

There are a number of sources which detail arrest warrants and whetherthey have been issued. A Florida attorney can determine whether a person has any warrants out for arrest. Of course, a law enforcement agency will have these records but a trip to any of these places without the representation of counsel will undoubtedly result in incarceration.

Non-Florida residents that have missed their court dates may be subject to a bench warrant, also called a “failure to appear.” The bench warrant is like an arrest warrant in that it authorizes police to make an arrest. Persons brought in pursuant to bench warrants usually receive higher bonds based upon their unreliability in appearing in court. It is important for non-Florida residents to retain Florida criminal defense counsel to deal with such matters before the inconvenienc e of resolving them grows unnnecessarily out of proportion with the original harm done or any inconvenience caused by a failure to appear.

If you have questions about a pending warrant for your arrest, call Alan Fowler, an experienced Florida Keys criminal defense attorney, for a consultation at 305.417.9378.

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Expungements & Sealments Florida Criminal Statutes Uncategorized

The Effects Of Sealments And Expungments And Other Important Points/ Expungements and Sealments Part 2

In my last blog I explained expungements and sealments, defining them under Florida law. In this blog I will explain the effects of expunging or sealing a criminal record as well as some other important points to know about them like what offenses may not be expunged or sealed.

Under Florida law, sealing or expunging a criminal record allows an individual, in most circumstances, to legally declare that he or she has not been arrested or convicted of a particular offense, including DUI, Driving While a License is Suspended (DWLS), and many other criminal offenses. In a job interview or any other stage of the employment application process, a job applicant may negatively reply to a question regarding the presence of a criminal record if he or she has been granted an expungement.

When a record has been expunged, those entities which would have access to a sealed record will receive notice that the subject of the record has had a record expunged, and have no access to the record itself without a court order. A statement indicating that “Criminal Information has been Expunged from this Record” will be transmitted to the requestor.

The privilege of having a criminal record protected from background checks by having it sealed or expunged does not apply to all criminal offenses. Also, future types of employment may still require an individual to disclose a sealed criminal record or expungement. Some of these types of employment include occupations related to law like a lawyer, judge, and police officer, or related to care for children and the elderly. Certain governmental bodies and other entities related thereto, listed in Fla.Stat. § 943.059(4)(a), have complete, free, and legal access to sealed records. For example, sentencing courts may use expunged records.

Individuals may seal or expunge felonies and misdemeanors other than motor vehicle violations or minor misdemeanors that do not fall into certain categories. Some criminal statute specifically state that a particular crime is not expungeable. Expungeable offenses include most types of theft and shoplifting, as well as other non-violent crimes like disorderly conduct, trespass, criminal mischief, and vandalism. Driver’s license and motor vehicle violations also cannot be expunged. Also, minor misdemeanors and other violations which are not considered crimes are not expungeable.

Any offense which requires a mandatory prison sentence cannot be expunged. This list includes sexual assault and battery, corruption of a minor, sexual imposition, or obscenity or pornography involving a minor. Also, violent felonies and first-degree misdemeanors and offenses in which the victim is a child are not expungeable.

The same eligibility requirements which apply to sealing also apply to expunction, with certain additional requirements. Any charge, which resulted in a withholding of adjudication or in an acquittal (not guilty verdict) after trial, may not be expunged unless and until it has first been sealed for at least 10 years. See § 943.0585(2)(h),

If you have questions about expungements or sealments under Florida law, call Alan Fowler, an experienced Florida Keys criminal defense attorney, for a consultation at 305.417.9378.

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Cruise Ship Crime Uncategorized Vacation Crime

Crime And Cruise Ships

Miami is home to more cruise ships than any other port and is known as the “Cruise Capitol Of The World.” Several cruise lines like Carnival and Royal Caribbean port their largest vessels in Miami. Taking a cruise on a large ship with hundreds of other passengers, like any other large-scale excursion or event, presents the opportunity for accidents and crime.

Cruise ships which depart from U.S. ports are considered “common carriers” under the Shipping Act of 1984, 46 U.S.C. §1702(6). Entities that own or possess property have a duty to protect users and occupants from the negligent and intentional acts of third parties. Common carriers owe their passengers a heightened duty of care in protecting them from physical harm, which includes protection from the criminal actions of crew members as well as guests and passengers.

In 2010, legislation was enacted which required cruise lines to report all crimes aboard cruise ships to the FBI, as well as take actions to protect crime victims. Cruise lines that make port in the U.S. are required to report crimes including homicides, assaults that result in serious injuries, sexual assaults and thefts of more the $10,000 to the FBI and the U.S. Coast Guard.

The seriousness of the crimes on cruise ships ranges from minor theft to rape. Sexual assault is the crime that occurs most on cruise ships and is usually grossly underreported. In 2014 alone, Carnival, Royal Caribbean and Norwegian reported a total of 61 alleged rapes and other sexual assaults. Since only a theft of more than $10,000 is required to be reported to the FBI or Coast Guard, many petty thefts are never reported.

Onboard each ship, cruise lines are required to include medical staff capable of collecting forensic evidence, as well as provide medical care for sexual assault victims. Also, cruise ships are now required to observe stricter safety rules and take appropriate compliant measures. Poor security on the premises of cruise ships account for many criminal assaults and other violent crimes on cruise ships. Many of these crimes are the result of negligent or inadequate security personnel, or inadequate lighting and security equipment.

Potential cruise line passengers should realize that signing a ticket for passage issued by the cruise line embodies a contract setting forth the terms of the cruise. These contract terms usually limit passenger rights, including the type of claim, choice of forum, and the limitation period for any claim brought against the cruise line. The venue for bringing claims is typically Miami, which can create more then inconvenience for out-of-state residents that choose a cruise line for vacation. Typically, out-of-state, or at least out-of-town, residents are passengers on these Florida-based cruise ships. As a South-Florida based attorney, I can assist both local and out-of-town cruise ship passengers that require representation for claims against a cruise line.

Especially worth noting is that any claim is usually subject to a one year limitation period for filing suit, typically a limitation period shorter than that under Florida law for similar claims “on land.” Note that a cruise line may not force passengers to sign waivers that immunize the cruise lines from any and all responsibility for injuries or death caused by negligence or other causes that are the fault of the company.

Recent increases in the rate of crime aboard cruise ships has caused Florida prosecutors to assert jurisdiction over these cruise ship crimes. If you have been injured as a passenger onboard a cruise ship and have questions about possible claims under Florida law, call Alan Fowler, a Florida Keys attorney experienced in dealing with claims against cruise ship lines, for a consultation at 305.417.9378.