Criminal Defense Attorney | Criminal Defense Law

Blog Published By Kenneth Padowitz, P.A.


Bautista v. State | DUI Manslaughter

DUI Manslaughter | Double Jeopardy? The Supreme Court of Florida is faced with a certified question “of great public importance” from the Fourth District regarding the decision of Bautista v. State: “DOES THE “A/ANY” TEST ADOPTED IN GRAPPIN V. STATE AND STATE V. WATTS AS THE METHOD FOR DETERMINING THE UNIT OF PROSECUTION FOR THE COMMISSION OF MULTIPLE PROSCRIBED ACTS IN THE COURSE OF A SINGLE EPISODE, PRECLUDE MULTIPLE CONVICTIONS FOR DUI MANSLAUGHTER WHERE MORE THAN ONE DEATH OCCURS IN A SINGLE ACCIDENT AS APPROVED IN MELBOURNE V. STATE?”  Background: Bautista v. State David Bautista was driving while intoxicated (under the influence of alcohol) when his motor vehicle crashed into another car, resulting in the death of both individuals that were in that car. In trial, Bautista was convicted of two counts of DUI manslaughter. Mr. Bautista appealed, claiming the Florida statute does not allow multiple convictions of DUI manslaughter stemming from one single incident of DUI. The Fourth District Court of Appeal affirmed the convictions, citing Melbourne v. State, which held that multiple convictions from a single DUI did not violate the principles of double jeopardy. What is DUI Manslaughter? Section… Read More

Additional 3 Months for Beach Place

Fort Lauderdale declared Beach Place, a popular outdoor mall in front of the beach on A1A, a nuisance to the city due to reported drug dealing and various other criminal activities in and around the bars and outlet shops of Beach Place. Lee Feldman, the Fort Lauderdale City Manager, threatened possible closure of the retail complex if problems continued. Owners of Beach Place previously promised additional security measures, which were never implemented. Recently, the city commissioners approved a new plan allowing an additional three months to step up security measures; it was decided that it would not be the greatest idea to close up shop during one of its busiest seasons. Commissioner Romney Rogers explained that he was worried Beach Place would end up like Riverfront complex near Andrews Avenue; once a popular location, but is now nearly empty. Commissioner Dean Trantalis wanted to revoke the special entertainment district designation; which allows multiple bars to set up shop on the property, and allows them to continue serving alcohol until 4 a.m. “As I listen and as I read what we’re talking about in terms of an… Read More

Boynton Beach Police Officer Accused Of Rape | Seeking Pretrial Release

Stephen Maiorino, a married Boynton Beach police officer and a father of two, has been accused of on-duty rape and is seeking pretrial release. The prosecutor called the officer a danger to the victim and the rest of the community. The defense attorney claims the sexual encounter was “consensual”. Maiorino is facing two counts of sexual battery by a law enforcement officer with a firearm, armed kidnapping, and a bribery-type offense; if convicted he faces a maximum sentence of life in prison. On October 15, police pursued an individual who was later arrested for DUI, fleeing and eluding, and resisting arrest without violence. The passenger of this vehicle, the accuser, was left stranded with no working cell phone after police towed the vehicle. According to court records, Maiorino was supposed to take the alleged victim back to the police station so she could call family for a ride. In her statement, the officer began to threaten her with arrest unless she performed oral sex on him upon arrival to the police station parking lot. Soon after, the officer drove her to an “abandoned field” to… Read More

Ineffective Assistance of Counsel | Florida Rule of Criminal Procedure 3.850

Ineffective Assistance of Counsel Florida Rule of Criminal Procedure 3.850 An appeal based on the Florida Rule of Criminal Procedure 3.850, is an appeal of last resort. It is used when all other appeals have been exhausted. This appeal is a claim of ineffective assistance of counsel, in which the defense attorney was unprepared, or incompetent in representing the client. An appeal of this type suggests that if it weren’t for the incompetent attorney, the end-result of the case would have been different; for this appeal to be effective, the appellant must substantiate this claim. The United States Supreme Court decision of Strickland v. Washington established the standard to determine the legitimacy of the claim of ineffective assistance: “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is… Read More

Colorado v. Schaufele | Driving Under the Influence

Driving under the influence of alcohol is a common offense in the United States of America. Sobriety tests and blood analysis are two common ways of testing for alcohol consumption. The offense is a misdemeanor and therefore rarely gets to the Supreme Court. Recent questions have however arisen pertaining as to whether warrants to conduct blood tests should be obtained or not. The United States Supreme Court was engaged in the case of The People of the State of Colorado v Jack Lee Schaufele. Schaufele was charged with driving under the influence of alcohol on May 30 2012. He was involved in a car accident on that day. Two officers who arrived at the scene recalled that the accused had a “thick tongue” and “sluggish speech”. They however associated these to the impact of the accident and as such felt no need to draw a blood sample from him. Furthermore, a paramedic at the scene smelled Schaufele’s breath and did not suspect or detect possible alcohol consumption. A third officer who arrived at the scene later was briefed on the situation and accompanied the victim… Read More

Most Common DUI Question Answered

Most Common DUI Question Answered: What Do I Do If I Am Pulled Over? The moment you see those blue lights flashing in the mirror, your heart skips a beat and you begin to have sweaty palms. Your mind starts to race and you ask yourself – what do I do now? Knowledge is power. If you remember these simple facts you will be in the best legal position should you be arrested for DUI. Don’t Drink and Drive.  If you are like millions of Americans and do frequent restaurants, bars, nightclubs, sporting events or anywhere that legally serves alcohol, do not drink until your “normal faculties are impaired”, or you have a “Blood Alcohol Level” (BAC) of .08 or above if you’re an adult. It is perfectly legal to drink and drive, just not beyond the limits just described. The Police are Gathering Evidence To Be Used Against You. As citizens, we want the police to keep our streets safe and conduct criminal investigations of motorists when appropriate. If you are pulled over after drinking alcoholic beverages, the police officer may very well begin… Read More

Necessity Defense

Florida’s Take On The Necessity Defense In The Context Of A DUI Charge Under certain circumstances, any individual charged with DUI in Florida may argue that they were justified in driving under the influence due to an emergency situation. As explained by the Fifth District Court of Appeal in Florida in Driggers v. State, there are six elements to the defense of necessity: The defendant must reasonably believe there was danger or an emergency existed that was not intentionally caused by the suspect The danger or threat of danger must be “real, imminent, and impending” The danger or emergency must threaten significant harm to themselves or another person The defendant must have had no other way to avoid the emergency or danger except by committing the crime The crime must have been committed out of duress, with the purpose of avoiding the danger or emergency The harm the defendant potentially avoids must outweigh any potential harm caused by committing the crime In Newsome v. State, a trial court ruled that in favor of a man claiming that it was necessary for him to move the… Read More

Blood Alcohol Content: A Standard Measurement for Law Enforcement in DUI Investigations

Blood Alcohol Content: A Standard Measurement for Law Enforcement in DUI Investigations  What is Blood Alcohol Content? Alcohol gets absorbed into our blood through our intestines and stomach lining. BAC is a measurement of how much alcohol has passed through and is now flowing in the blood throughout our entire body. A Breathalyzer test is often used by law enforcement and is considered a standard tool to measure BAC; it is considered accurate enough to be allowed into evidence into a court of law. Every 45 minutes, someone in the United States is killed from an alcohol-related automobile accident. Blood Alcohol  Concentration (BAC) Typical Effects Predictable Effects on Driving .02% Some loss of judgment Relaxation Slight body warmth Altered mood Decline in visual functions (rapid tracking of a moving target) Decline in ability to perform two tasks at the same time (divided attention) .05% Exaggerated behavior May have loss of small-muscle control (e.g., focusing your eyes) Impaired judgment Usually good feeling Lowered alertness Release of inhibition Reduced coordination Reduced ability to track moving objects Difficulty steering Reduced response to emergency driving situations .08% Muscle coordination… Read More