Categories
Driving Under the Influence (DUI) key west Uncategorized

A Look At Primary & Secondary Key West DUI Penalties

A Look At Primary & Secondary Key West DUI PenaltiesYou are never really done dealing with a Key West DUI conviction. And that unfortunate reality is something many individuals learn the hard way. From when you are initially pulled over to the field sobriety test to receiving the charges in your case, dealing with a DUI is an incredibly intimidating and frustrating experience.

The most significant penalty is the simple fact a DUI conviction can never be sealed or expunged.
Some of the primary penalties attached to a Key West DUI include:
• Heavy fines
• Probation
• License suspension and/or revocation
• Community service
• Mandatory attendance of a victim impact panel
• Vehicle impound
• Mandatory DUI or substance abuse education courses
• Installation of an ignition interlock device on your vehicle

As you can see from the list above, Key West takes DUI punishment very seriously, and the imposition of any or all of these penalties will have a major impact on your personal and professional life.

Unfortunately, the list does not stop there.

The secondary penalties of a DUI will impact your life as well. You will see your car insurance premiums skyrocket for years to come. This is perhaps a logical, though frustrating consequence of a DUI. After all, car insurance companies raise rates for just about anything, so it is no wonder that when you have a DUI conviction on your record, they will raise your rates, if not drop you all together.

It’s one thing to privately see your insurance rates rise. Perhaps worse yet, you will have to disclose a DUI conviction on important applications, read by future employers, loan officers, and so forth. Anything from a housing application to a job application to a loan application can ask about whether you have been convicted of a DUI. If you have or are applying for a professional license, they can ask about that there too.

If you want to limit the impact a Key West DUI will have on your life both in the immediate and the long term, then you want attorney Alan Fowler on your side. Your first consultation with Alan is always free. So, pick up the phone today, and let’s fight this! Call Alan at 305.912.2516 today!

Categories
Florida Criminal Statutes Uncategorized

Mental State and Florida Crimes

Every crime has two components which the prosecution must prove beyond a reasonable doubt in order to obtain a conviction of the defendant: the actus reus and the mens reaActus reus refers the thing or act itself, while mens rea, Latin for “guilty mind, is the defendant’s state of mind when engaging in the alleged criminal conduct. Mens rea and actus reus must exist simultaneously to establish criminal liability. Thinking about committing a crime without doing so is not punishable as a criminal act. Engaging in a prohibited act without the requisite criminal intent is also not punishable as a criminal act.

For years, criminal law distinguished the severity of homicide using terms like Murder in the First Degree for intentional or premeditated murder, Aggravated Manslaughter for reckless homicide, and Manslaughter for negligent homicide. Florida still uses these terms in its criminal code.

One of the major innovations of the Model Penal Code (MPC) is its use of standardized mens rea terms, or “culpability” in MPC terminology, to determine levels of mental states. Florida combines MPC with common law terminology. Under the MPC, there are four different levels of mens rea or mental states:

1) purposely,

2) knowingly,

3) recklessly, and

4) negligently.

“Purposely” involves a conscious objective to engage in the conduct or cause the result. “Knowingly” involves awareness or practical certainty that the result will occur. “Recklessly” describes the conscious disregard of a substantial and unjustifiable risk, such that its disregard involves a gross deviation from normal standards of conduct. “Negligently” describes a failure to be aware of a substantial and unjustifiable risk, such that the failure to perceive involves a gross deviation from the standard of conduct observed by a reasonable person. Again, these mental states must occur contemporaneously with some act or conduct.

Some criminal statutes require no mens rea or criminal state of mind and may be considered strict liability statutes. American jurisprudence generally frowns upon strict liability crimes. However, the Florida legislature has eliminated, at least in part, an element of mens rea from drug offenses, while still requiring proof of a defendant’s mens rea for almost all other serious criminal offenses.

If you have been charged with a criminal offense, call Alan Fowler, an experienced Florida Keys criminal defense attorney, for a consultation at 305.912.2516.

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Drug Offenses Florida Criminal Statutes Uncategorized

Florida Reforms The Contraband Forfeiture Act

In April of 2016, in a move lauded by many civil liberties groups and even some law enforcement agencies, Gov. Scott signed a new bill into law significantly reforming Florida’s civil forfeiture statute. The State of Florida is authorized to seize property connected to illegal activity through its civil forfeiture statute, Florida Statutes §§ 932.701-704. In Florida, prior to the new amendments, the State could seize property and money from individuals that were criminal suspects, i.e., the State could initiate a civil forfeiture proceeding against an individual without filing any criminal charges.

SB 1044 is a response to a common public opinion that forfeiture laws are an infringement of civil liberties and give law enforcement suspect financial incentives. Many critics of forfeiture laws argue that the state should first convict an individual of a crime before taking his property. The bill addresses this criticism and amends the Florida Contraband Forfeiture Act by adding the requirement that, in most cases, police make an arrest to seize property. The Act as amended also increases the evidentiary standard of proof from “clear and convincing” to “proof beyond a reasonable doubt.”

Law enforcement agencies must also meet new specific reporting requirements to track forfeitures. Further, agencies are also now liable for any damages caused to an individual in seizing his property. Florida law enforcement agencies typically donate a percentage of seized assets greater than $15,000 to predetermined programs. The new law increases this percentage from 15% to 25%.

Many procedural requirements and deadlines apply to forfeiture actions. Individuals should contact competent legal counsel immediately upon receiving a written notice of seizure and pending forfeiture. Individuals must avail themselves of their right to an adversarial preliminary hearing, especially if they are “innocent owners” under the law. Too often, property owners do not take any appropriate action within these strict time limitations, and the government takes the property unopposed.

Forfeitures have harsh economic consequences. If the State of Florida has filed criminal charges against you and/or initiated a civil forfeiture proceeding, call Alan Fowler, an experienced Florida Keys criminal defense attorney, for a consultation at 305.912.2516.

Categories
Drug Offenses Search & Seizure Uncategorized Warrants & Arrest

Can Police Search My Car If They Smell Marijuana?

When law enforcement officers claim they smell marijuana during a traffic stop, they have the right, in the absence of any other circumstances, to search the individuals in the car as well as the interior of the car, pursuant to the holding in State v. Betz, 815 So. 2d 627 (Fla. 2002), a case decided by the Florida Supreme Court.

In Betz, after a traffic stop, police officers smelled marijuana on the driver’s clothes and inside his vehicle, which constituted sufficient probable cause to search both his person and the interior of his vehicle for weapons and contraband. However, police additionally searched the trunk of Betz’ car and found a bag of marijuana, which the prosecutor presented as evidence of a crime.

In the reversing part of the decision, the Florida Appeals Court ruled that the probable cause which existed to search the interior of the vehicle did not extend to the trunk or containers therein. Therefore, the bag of marijuana discovered inside Betz’s trunk was obtained illegally, and it should have been inadmissible in Betz’s original criminal trial.

However, the Florida Supreme Court overruled the appellate court holding that the police officers had the right to search the entire vehicle under a “totality of the circumstances” analysis. These circumstances included the smell of marijuana on Betz and in his vehicle, his nervous demeanor during questioning by the officers, and the discovery of marijuana on his person. These circumstances taken together presented the police officers with sufficient probable cause to search the defendant’s entire vehicle.

Thus, pursuant to Betz, the smell of marijuana alone provides police officers with probable cause to conduct a search of your person and the interior of their vehicle during a traffic stop. Moreover, if the smell is present with other factors, then it can provide sufficient probable cause for the police to search your entire vehicle. Often, the result of a search in this situation is that police find other controlled substances instead of marijuana, resulting in a felony arrest.

The facts of every police search must be thoroughly analyzed by an attorney experienced in search and seizure law. The admissibility of any evidence will most likely rest upon issues of the credibility of the officer compared to the car’s driver and passengers.

If you have been charged with a crime resulting from evidence obtained by a search and seizure conducted based upon a law enforcement officer allegedly detecting the smell of marijuana in your car or truck during a routine traffic stop, call Alan Fowler, an experienced Florida Keys criminal defense attorney, for a consultation at 305.912.2516.

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Uncategorized Vacation Crime

Can I Be Arrested For Driving Badly On Vacation In Florida?

Whether you reside or vacation in Florida, you are required to drive here in a careful and prudent manner, while taking into consideration all attendant circumstances so as not to endanger life, liberty, or property. Failure to drive in such a manner constitutes Careless Driving under Florida law. Any driver that fails to drive carefully and prudently is subject to a citation for this moving violation, which is a civil traffic offense.

Careless Driving

In Florida, police officers commonly use a Careless Driving citation as a catch-all for various driving infractions, including issuing such a citation to the at-fault driver in a car accident. However, such offenses are moving violations, which are generally civil traffic offenses that will not result in an arrest.

Whether you live or vacation here in Florida, how badly must you drive to actually get arrested? What are the possible fines and jail time for such offenses? Nonresidents of Florida should note that their driver’s licenses are.

When a motorist is observed violating the law while driving, and pulled over for a routine traffic stop, he or she will be cited for either a moving or criminal traffic violation. Moving violations such as speeding or running a stop sign result in the issuance of a ticket, which usually carries some potential fine and license points. As you would expect, criminal traffic violations are much more serious and result in misdemeanor or felony charges that may carry larger fines and possible jail time.

Aggressive Careless Driving

Florida drivers that commit two or more of the acts listed in Florida Statute §316.1923 simultaneously or in succession may be cited for Aggressive Careless Driving. This list of acts includes exceeding the posted speed, unsafely or improperly changing lanes, following another vehicle too closely, failing to yield the right-of-way, improperly passing, and violating traffic control and signal devices. Usually, this results in the issuance of a moving violation.

Reckless Driving

Under Florida Statute §316.192, any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of Reckless Driving, a criminal offense. Fleeing a law enforcement officer in a motor vehicle is reckless driving per se. Some other examples of reckless driving in Florida include, but are not limited to, texting while driving, drag racing, driving around a stopped school bus knowing children are getting off, and weaving in and out of traffic at an extremely high rate of speed. Florida drivers may be arrested for Reckless Driving.

Upon a first conviction, Reckless Driving is punishable by imprisonment for a period of not more than 90 days or by fine of not less than $25, nor more than $500, or both. On a second or subsequent conviction, it is punishable by imprisonment of not more than 6 months or by a fine of not less than $50 nor more than $1,000, or both. Someone that causes damage to the property or person of another commits a misdemeanor of the first degree, while someone that causes serious bodily injury to another commits a felony of the third degree.

Permitting Unauthorized Operator to Drive

It is also a criminal offense in Florida for a person to allow a motor vehicle under his or her ownership or control to be operated upon any highway by a person who is unauthorized to operate a motor vehicle under Florida law. Any person who violates this statute commits a misdemeanor of the second degree. If the loaned vehicle is involved in an accident resulting in bodily injury or death, the owner will have his or her license suspended for one year.

Racing on Highways

It is also a criminal offense for a person to drive any motor vehicle, in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, or exhibition of speed or acceleration or for the purpose of making a speed record on any highway, roadway, or parking lot. It is also a criminal offense to coordinate, facilitate, schedule or collect money for any such race or competition. Similarly, it is also a Florida criminal offense if someone knowingly rides as a passenger in any such race or competition or purposefully causes the movement of traffic to slow or stop.

First-time offenders of this law commit a misdemeanor of the first degree and are subject to a one-year license suspension and fines of not less than $500 and not more than $1,000. The fines and time periods for which licenses are suspended increase for repeat offenses. The fine may be as much as $5,000 with a license suspension of as much as four years for third-time offenders

If you’ve been arrested and charged with Reckless Driving in Key West, call Alan Fowler, an experienced Key West criminal defense attorney, for a consultation at 305.912.2516.

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Deadly Weapons Florida Criminal Statutes Uncategorized

What Is A Deadly Weapon Under Florida Law?

In Florida, a weapon is a “deadly weapon,” if it is used or threatened to be used in a way likely to produce death or great bodily harm.” Fla. Std. Jury Instr. (Crim.) 8.4. The use of a deadly weapon while making an intentional, unlawful threat, along with the apparent ability to complete the threat, or doing some act which creates a well-founded fear in another person that such violence is imminent,” constitutes the Florida crime of Aggravated Assault. Florida Statute section 784.021(1)(a). Because the definition of deadly weapons is so broad, Florida courts have designated many instrumentalities as a “deadly weapon.” Here is a sampling of some Florida court decisions regarding what is and what is not a deadly weapon in Florida:

Instrumentalities Held To Be Deadly Weapons

A firearm is, by definition, a deadly weapon because it is designed to expel a projectile by the action of an explosive which is likely to cause death or great bodily injury. State v. Williams, No. 3D08-1586 Decided: May 27, 2009.

A knife, when used by a person making threats outside a car towards a person sitting inside of a car with a closed window, is a deadly weapon. King v. State, 12 So. 3d 1271 (Fla. 5th DCA 2009). A pocket knife, when waived around by a defendant while threatening to “poke” the alleged victim, was held to be a deadly weapon. J.M. v. State, 872 So. 2d 985 (Fla. 1st DCA 2004).

A moving automobile driven towards police officers, while they are sitting in another vehicle, as if intending to make an impact, is a deadly weapon. Bryan v. State, 865 So. 2d 677 (Fla. 4th DCA 2004).

A dart from a blow gun, which penetrated a victim’s back one inch, but required no medical treatment, is a deadly weapon. V.M.N. v. State, 909 So. 2d 953 (Fla. 4th DCA 2005).

A glass bottle thrown overhand and striking within a foot of victim is a deadly weapon. H.E.S. v. State, 773 So. 2d 90 (Fla. 2d DCA 2000). The use of a beer bottle to strike the alleged victim on the head is a deadly weapon. Cloninger v. State, 846 So. 2d 1192 (Fla. 4th DCA 2003).

Instrumentalities That Were Held Not To Be Deadly Weapons

A bicycle thrown at a victim is not a deadly weapon. D.B.B. v. State, 997 So. 2d 484 (Fla. 2d DCA 2008).

A skateboard thrown at victim is not a deadly weapon. E.J. v. State, 554 So. 2d 578 (Fla. 3d DCA 1989).

A broom handle thrown at victim is not a deadly weapon. Forchion v. State, 214 So. 2d 751 (Fla. 3d DCA 1968).

A flower pot, one foot in diameter filled with dirt, thrown at window, breaking glass but not penetrating the screen, is not a deadly weapon. Rogan v. State, 203 So. 2d 24 (Fla. 3d DCA 1967).

A fork used to stab a victim three times in the back, fork caused scratches, swelling, and puncture marks, but no medical treatment required, not a deadly weapon. C.A.C. v. State, 771 So. 2d 1261 (Fla. 2d DCA 2000).

Looking at these different court rulings, you may have been surprised by what has and has not been considered a deadly weapon. Other than obvious devices, like a discharged gun, the definition of a deadly weapon is a very fact-intensive analysis that requires the help of an experienced defense attorney.

If you’ve been arrested for a crime involving the alleged use of a deadly weapon, call Alan Fowler, an experienced Key West criminal defense attorney, for a consultation at 305.912.2516.

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

What If I’m Arrested During Spring Break?

Spring is well upon us. Thus, it’s the time of year when college students and older travelers alike make their way to Florida for Spring Break and vacation. However, throughout the state of Florida, from South Beach to Daytona Beach, things seem to have gotten a little crazier and more out of control in 2016. More than 50 people have been arrested and one individual was shot dead in the festivities in South Beach on Ocean Drive. Daytona Beach reported more than 100 arrests in the first two weeks since the break officially started.

Alcohol is considered to be the common factor in most of the arrests. It’s interesting to note that most students when polled, didn’t know that alcohol is illegal in Daytona Beach. I suspect the same is true for people visiting the Florida Keys. Whether you’re a student on Spring Break or another adult on vacation, the last souvenir you want to bring back to campus or work is an arrest and its inherent consequences. This blog will identify some things for students to keep in mind to minimize any negative effects a spring break arrest may have presently and in the future.

Don’t Plea to the Charge

Upon arrest, a defendant is entitled to a “First Appearance.” Except when previously released in a lawful manner, every arrested person must be taken before a judicial officer within 24 hours of arrest. Of course, anyone arrested wants to get out of jail immediately. At this First Appearance, you may receive an offer to resolve his or her case for jail time served or a simple fine. This may sound like a reasonable solution, and a way to get out of jail as soon as possible, but it may be a costly mistake. Here’s why.

First, for all you know, the evidence may be insufficient to convict you of the criminal charge(s). The prosecutor may have no intention of even filing the case at all. A desire to quickly get out of jail shouldn’t interfere with asserting valuable rights and defenses. More importantly, the particular resolution of a case may be such that you may later be unable to seal or expunge the present charge, or even a subsequent charge. If you plea out to a DUI, for example, you must be adjudicated guilty. A DUI conviction prevents you from sealing or expunging any prior record forever. This could have an effect on scholarships and employment, both in the present and future.

Pay the Fine!

If you do plea at the First Appearance, make sure you pay your fine and/or complete the conditions of your sentence or probation. If you should fail to do so, don’t think that the fact that you have returned to your home state (perhaps several hundred miles away from Florida) that you are untouchable and this will all go away. It won’t.

Don’t Fail to Appear in Court

Students or vacationers that don’t plea and are released on bond should not ignore any notice to appear in court. Any failure to appear will result in the court issuing a warrant for your arrest. You may even have your driver’s license suspended, if the charge is a driving-related offense like DUI.

Find an Experienced Florida Criminal Defense Attorney

Persons arrested for misdemeanor crimes are permitted under the Florida Rules of Criminal Procedure to resolve a criminal case without having to make an actual court appearance by utilizing a Plea in Absentia. Florida Rule 3.180(c). On your behalf, an experienced criminal defense attorney may appear in court and file the Plea in Absentia, while you remain in the peace of your dorm room or house.  If the charge is a felony, a criminal defense attorney may be able to negotiate a reduced charge, which would then allow a case to be resolved with a Plea in Absentia.

If you are a student arrested while on vacation in Key West during Spring Break, remember that a criminal charge may have a profound effect upon your life presently and in the future. If you have been arrested while vacationing, call Alan Fowler, an experienced Key West criminal defense attorney, for a consultation at 305.912.2516.

Categories
Driving Under the Influence (DUI) Uncategorized

Can You Be Arrested for DUI for Prescription Drugs?

Most of us don’t often hear of people being arrested for driving under the influence (“DUI”) of prescription drugs or medications. As a criminal defense attorney, I can tell you that it’s possible under Florida law, and it happens every day. Pursuant to Florida Statute §316.193, a person is guilty of DUI if, when in physical control of a vehicle, he or she is under the influence of alcohol, any chemical substance listed in Florida Statute §877.11, or any substance controlled under Florida Statutes Chapter 893, when affected to the extent that his or her normal faculties are impaired. Many different kinds of substances can be involved in this form of DUI. Florida Statute §§877.11, 893.02, and 893.03 provide detailed lists of various chemicals and substances to which Florida’s DUI statute applies.

A Prescription Is No Excuse or Defense

This particular criminal charge may be referred to as “DUID,” “DUI drugs,” or “drugged driving.” It is irrelevant that the medication was legally prescribed by a doctor and taken as directed. Law enforcement officers are disinterested in whether or not an underlying prescription exists for the drug which caused impairment. If they believe that your abilities were impaired by a drug –  any drug whether prescribed or no – they will still make a DUI arrest. Drivers must realize that any substance which influences and impairs their normal faculties can be the cause of a DUI arrest and conviction.

Types of Drugs

The following are some prescription drugs that can cause impairment and, consequently, DUI:

  • Painkillers, including OxyContin, Percocet, Morphine, Codeine, Vicodin, Lortab, Lorcet, Celebrex, Ultram, Fentanyl;
  • Anti-anxiety medications, including Ativan, Valium, Librium, Xanax, and Klonopin, Xanax;
  • Anti-ADHD drugs, including Ritalin or Adderall;
  • Anti-insomnia medications, including Lunesta or Ambien; and
  • Anti-addiction drugs, including Suboxone or Methadone.

DUI Investigations

Florida law enforcement personnel may stop a driver on suspicion of DUID, just as they would stop someone suspected of driving under the influence of alcohol. A breath test will only indicate whether any alcohol was used in combination with the medications. It will not provide much other insight into the ingested medication. Field sobriety exercises could only be used to determine whether the driver’s normal faculties were impaired.

Prosecution Challenges

In many DUID cases, prosecutors face hurdles in trying to establish and prove the crime. Because tests for medications are often inconclusive, arrests for DUID must include a blood or urine test to further determine whether drugs were factually present in the driver’s system. Yet, there is really no other reliable scientific test to compare the amount of drugs in a driver’s system to the level of impairment caused thereby. There is also no test or method available allowing law enforcement to identify an individual’s tolerance to a particular drug. When you couple this with the fact that medications affect people differently, police officers really have no legitimate basis to determine whether a person’s ability to drive was impaired by the ingested amount. Because many arresting officers are untrained and inexperienced in identifying symptoms and other indications of prescription drug use, an experienced and knowledgeable Florida criminal defense attorney may be able to prevent the officer from testifying in a Florida DUI trial.

If you have been arrested for driving under the influence of medications or prescription drugs, call Alan Fowler, an experienced Florida Keys criminal defense attorney, for a consultation at 305.912.2516.