Criminal Defense Attorney | Criminal Defense Law | Page 8 of 9 | Blog Published By Kenneth Padowitz, P.A.

Colorado v. Schaufele | Driving Under the Influence

Criminal Attorney Kenenth Padowitz discusses the issue of a search and seizure involving BAC in a DUI case

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

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Drug Trafficking | State v. Sanchez

Drug Trafficking Charge Not All Charges Are Equal There are often completely different outcomes in similar criminal cases depending on the statute an individual is charged with. Prosecution must be accurate and precise in their charging decisions. Charging someone with the wrong crime can result in charges being dropped; cases are lost all the time due to technicalities. In State v. Sanchez, Florida’s Fourth District Court of Appeal acknowledges the importance of being charging an individual under the correct statute, but then goes ahead and reverses the trial court’s decision based on an interpretation of the law. Betsy Sanchez, a nurse practitioner, was charged with nine conspiracy and drug trafficking offenses. The prosecution claimed she had been selling prescription drugs, including various painkillers such as Oxycontin. They went further to say that these prescriptions were “written in bad faith and not in the course of professional practice.” At trial, prosecution had a debate over whether the charges filed were correctly chosen; 893.135(1)(c) or 893.13(8). The section under 893.135(1)(c) does not apply to medical practitioners; and penalties range up to first degree felonies. Statute 893.13(8), specifically applies… Read More

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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

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Federal Crimes

Federal Crimes What are Federal Laws? Federal laws are passed by Congress and apply throughout the United States, including Washington D.C. Often times, criminal acts are considered offenses in both State and Federal law; prosecutors must then decide whether the perpetrator should be tried in State or Federal Court. Some crimes are written in Title 18 of the United States Code, which is the Federal criminal code; others will be listed under other titles, for example: possession of banned firearms which is listed under the National Firearms Act, and tax evasion are both criminalized in Title 26 of the United States Code. What Does it Mean to be Charged with a Federal Crime? When charged with a federal crime, you will be dealing with local or State law enforcement, along with any Federal agencies (FBI, U.S. Immigrations and Customs Enforcement, DEA, U.S. Secret Service, or Criminal Investigation division of the IRS) involved in the investigation. The FBI is the agency that investigates and prosecutes the majority of Federal offenses. With extensive resources, sweeping authority, and highly trained personnel, these Federal agencies allow the prosecution to… Read More

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Necessity Defense

DUI |Driggers v. State | Brooks v. State

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

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Drug Conspiracy Law In Florida – Hampton v. State

Interpretation Of Criminal Law Hampton v. State A conspiracy is defined in law as an agreement between two or more individuals to commit a crime. Although this may seem like a pretty straightforward definition, as with most criminal law, it is up to interpretation. The focus of this post will be to discuss Florida’s Fifth District Court of Appeals interpretation of a conspiracy charge, and how it applies to those accused of drug trafficking. In Hampton v. State, Albert Hampton appeals a guilty verdict of conspiracy to traffic cocaine. The City County Investigative Bureau of the Seminole County Sheriff’s Office found a mid-level supplier of cocaine named Marcel Crichlow. Police were able to tap his phone, which resulted in recordings of Crichlow and Hampton discussing their illicit business, often using code words. With these series of conversations available to police, Hampton was arrested and charged with conspiracy to traffic cocaine. During trial, Crichlow testified against Hampton; claiming up to five ounces of cocaine were sold to Hampton at regular intervals; an explanation as to the meaning of the code words that were used in their… Read More

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Self-Defense and Florida’s New Perspective | Criminal Defense Law

Florida’s New Perspective on Self-Defense Florida Governor Rick Scott made it official that the use of defensive threats of force, such as “warning shots”, is considered self-defense. By signing HB89, Floridian’s are now allowed to use a defensive threat as a means of self-defense, without the fear of going to prison. An Affirmative defense is defined as one in which a defendant admits to all elements of the crime but is not held criminally liable. Affirmative defenses fall into two categories, either an excuse or justification. In a justification defense, the defendant admits to all elements of the crime, but argues there is no criminal liability because the acts are justified. Where as in an excuse defense, the defendant argues the wrongdoing is excused for some reason that is personal to the defendant. Lack of mental capacity, insanity, and duress are all examples of an excuse defense. Self-defense is a justification defense. The defendant is a non aggressor who reasonably believes that force is necessary to protect themselves from the imminent use of unlawful force by another. The force used by the defendant must be… Read More

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PUSH FOR LIGHTER SENTENCES FOR WHITE COLLAR CRIMES

GROUP PUSHES FOR LIGHTER SENTENCES FOR WHITE COLLAR CRIMES Families Against Mandatory Minimums has entered the picture for Americans convicted of fraud and other white-collar crimes. An advocacy group that has primarily fought strict drug sentences, has begun to shift their attention towards lighter punishment for financial crimes. It’s been noted that sentences in cases of fraud, insider trading and other economic crimes are now and again inconsistent and excessive, says the advocacy group Families Against Mandatory Minimums (FAMM). Lighter sentences for white-collar crimes have been an issue that many defense lawyers and some federal judges been trying to resolve. Unfortunately their efforts have been unsuccessful. This is due to the fact that consumer advocates along with Congress believe that more cases should have been brought against Wall Street during the financial crisis of 2007-2009. Prolonged prison terms have resulted from dozen of these cases over insider trading by Federal prosecutors in New York and other districts. Judges are still relying heavily on sentencing guidelines for consistency, even though they are advisory rather than mandatory. The guidelines are “mixed up and crazy” argue the advocates which… Read More

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Seeking to Make Drug Maker Pay for OxyContin Abuse

More than 20,000 Americans a year have been killed, jails have become filled, treatment centers are frequently visited, and the reemergence of heroin use; all which can be traced to prescription drug abuse. And nowhere is the pill problem more prevalent than in Kentucky’s Appalachians, where officials trace its roots to the aggressive marketing of one potent drug: OxyContin. A Civil lawsuit has been in the works for seven years and time has ticked, but finally there is light at the end of the tunnel. The end result being making drugmaker Purdue Pharma pay. As early as next year, it could bring the first-ever jury trial pitting Purdue against an addiction-plagued state over the painkiller, which experts say may lead more communities to file suit; Chicago and two California counties already have. “This is about holding them accountable,” says Kentucky Attorney General Jack Conway. “They played a pre-eminent role in the state’s drug problem. This started to explode in the mid-1990s, when Purdue Pharms was marketing OxyContin. The resulting opiate epidemic … is a direct result.” An aggressive and deceptive marketing campaign misled doctors, consumers… Read More

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Jury Trial | Simulations vs. Animations

Court animation | Fort Lauderdale Criminal Defense Attorney

Computer “Animations” vs. “Simulations”: Why Attorneys Need to Know Difference Imagine being in court ready to present a topnotch animation created by a professional litigation graphics company. The opposing counsel jumps up to say, “Your honor, we object to this animation since there is no foundation that it’s identical to what happened, it will confuse the jury, and it does not meet the scientific evidence requirements for admissibility.” How should you respond? If you know the difference between a computer “animation” and a computer “simulation”, then the answer is simple. In a jury trial, simulations are far harder to get into evidence then an animation. The difference boils down to this, if the presentation is used to simply illustrate an expert’s or witness’s description of what happened, then that’s an animation and therefore considered demonstrative evidence only; i.e. it shows real evidence, but is not evidence itself. If a computer model or program tells him or her what happened, that is a simulation hence it’s “real evidence” requiring all the levels of foundation and acceptance of methods used by the expert to create the simulation… Read More

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