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Florida Supreme Court | Recording Cannot Be Used As Evidence

Recording as Evidence

Two-Party Consent Law The Florida Supreme Court ruled in McDade v. State of Florida, that secretly recorded statements by the victim of a crime cannot be used as evidence against the defendant; this applies even in cases of child sex abuse, or neglect. It was unanimously decided by the justices that the FloridaLegislature would have to change the current law as it stands to allow any such evidence to be allowed as evidence into court. Within the 18-page decision, Justice Charles Canady made it clear that there is no exception to this ruling: “The recordings supported the victim’s testimony that McDade would regularly ask her to have sex with him after school. On both occasions, though he did not use sexually explicit language, he appeared to be asking her to have sex with him. He pressured her by suggesting that if she did not have sex with him he would get physically sick. McDade also indicated he was doing her a favor by not telling her mother that they were having sex because if the mother knew she would take the victim back to Mexico.”… Read More

Child Neglect | Gun in Toddler’s Mouth

Video of Toddler Gun in Mouth | Child Neglect

Video of Toddler with Gun in Mouth Parents Arrested | Child Neglect & Criminal Recklessness Parents from Evansville, Indiana, are facing charges of criminal recklessness and child neglect after police found a video of their one-year-old child placing a gun in her mouth, which police later identified as a .40-caliber handgun. According to the report, a man can be heard saying “pow”, and encouraging the child to do the same. Michael Barnes was arrested after attempting to sell a gun to an undercover police officer that he met online, which then led to the discovery of the video on the phone. It is still unclear whether or not police legally obtained the video from the cell phone; according to the U.S. Supreme Court opinion in Riley v. California, police need to obtain a warrant to go through the contents of a suspect’s phone. If the video was illegally obtained, a criminal defense attorney may file a motion to suppress the evidence due to an illegal search or seizure. Assuming there was no error on the police’s part, the video will be used against Michael Barnes during… Read More

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

Drug Trafficking | State v. Sanchez

Drug Trafficking | State v Sanchez Criminal Defense Attorney

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

Most Common DUI Question Answered

DUI | Criminal Defense

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

Federal Crimes

Fort Lauderdale Criminal Defense Attorney | FBI & 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

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

Drug Conspiracy Law In Florida – Hampton v. State

Drug Trafficking Cocaine

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

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

Self-Defense Criminal 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

PUSH FOR LIGHTER SENTENCES FOR WHITE COLLAR CRIMES

White collar crimes criminal defense

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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