March 2012 Archives

March 28, 2012

Dozens of Arrests at Ultra Music Festival

Another year in South Florida brought the annual Ultra Music Festival attended by thousands of local residents and tourists. In typical fashion, the music festival which is held in Miami, Florida was fun for all who attended except for the dozens of people arrested on a variety of charges. Anyone arrested at the festival should immediately contact a Miami criminal lawyer to defend the case. Seventy-one individuals were arrested over the weekend with 48 of those facing felony charges, mostly for drug possession. The majority of the arrests were for possession of an illegal substance. The most common illegal substance found at the concert was ecstacy or MDMA. While the concert is certainly not a hot bed for drug trafficking, many of those who attended the festival possessed MDMA. On its face, being arrested for possession of an illegal substance, such as ecstacy, seems like no big deal. While penalties of jail or prison time are remote, possession of ecstacy is a third degree felony under the laws of the State of Florida.

Tourists and residents alike, arrested for possession of ecstacy or possession of marijuana should not take their cases too lightly as entering a plea and receiving credit time served could have long term damaging affects on a person's personal and professional life. Everyone arrested should understand the process when involved in the criminal justice system. After someone is arrested, they are taken to the Dade County Jail. Upon booking into the jail, a bond will be set in the case. There are two ways to post bail. First, the cash amount of the bond can be paid resulting in the release of the person arrested. Once the case is closed, the money posted for the bond will be returned to the person who paid via a check from the clerk's office. If a person does not have the funds to post a cash bond, a bondsman can be hired. Florida residents will generally have to pay the bondsman 10% of the bond to secure a release. Out of state residents are typically charged the full amount of the bond, with 90% of the money being returned at the conclusion of the case.

After a person has posted bond or bail, he or she can return to the state where they reside. An arraignment will occur 30 days after the arrest. Prior to the arraignment, the state attorney's office will subpoena the witnesses listed on the arrest affidavit and conduct a pre-file conference. If the prosecution believes the case can be proved beyond a reasonable doubt and there are no search and seizure issues, the charges will likely be filed. At the arraignment, if a defendant has no prior criminal record, the prosecution will offer the drug court program or a withhold and credit time served. There are serious problems with both resolutions. The drug court program is highly intensive and takes 9 months to a year to complete. A person must attend narcotics anonymous meetings three times a week and engage in some form of outpatient drug treatment. While the successful completion of the program will result in a nolle pros or dismissal, it is a long hard road to get that result. A time served plea is much easier and the case will resolve right away. However, a defendant who takes that plea will have a criminal record. The case can be sealed, but certain government agencies will have access to the criminal record.

A skilled defense attorney will not subject his or her client to the drug court program or allow the client to enter a plea. Lawyers familiar with the system can usually work out a compromise with the prosecutor. For example, a charitable contribution or community service hours can be exchanged for a nolle pros or dismissal. The success of such a strategy usually lies with prosecutors in a particular criminal court division. A defense lawyer's relationship with prosecutors in the division goes along way in resolving a case favorably for the client. If the case cannot be resolved in that manner, depositions of the involved officers should be taken. After the depositions are taken, cases of this nature generally fall apart due to the number of arrests made over the Ultra Festival weekend.

Drug Arrest at Ultra Music Festival, Miami Herald.com, March 28, 2012.

March 23, 2012

Legislators Re-Thinking Stand Your Ground

In 2005, the Florida legislature passed the "Stand Your Ground" law under Florida Statue 776.013 (3) which provides that a person who is not engaged in an unlawful activity and who is attacked in any other place where he or she had a right to be, has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another to prevent the commission of a forcible felony. Since the law's inception, Miami criminal attorneys and defense lawyers from around the state have increasingly used the new law as a primary defense to violent crimes such as murder and manslaughter. The use of the law has drastically increased in the last year and a half.

The "Stand Your Ground Law" has been invoked more than 130 times since it hit the books. The recent slaying of Trayvon Martin has brought the controversial law back into the spotlight as the other person involved in the case, George Zimmerman, who allegedly shot the victim has yet to be charged. Zimmerman has not be charged with any violent crime to date despite a public outcry for the contrary. The governor of Florida announced that he is assembling a task force to review and study the new law. Out of 130 cases that have involved the new law, 70% of the cases have involved a fatality. Defense lawyers in 50 cases used to the law to prevent their clients from being charged with violent crimes, such as murder, manslaughter or aggravated battery charges. In 10 cases, the law was able to allow defendants to plead to lesser charges. Twenty-eight "Stand Your Ground" cases have made to trial, with prosecutors achieving convictions on 19 occasions.

To invoke the self-defense law, counsel must file a motion to dismiss which will be heard by the circuit court prior to the commencement of the trial. After hearing testimonial evidence and reviewing the physical evidence, the judge can either dismiss the case or deny the motion and set the case for trial. Prosecutors and law enforcement officers have long been opponents of the "Stand Your Ground" law, as there are seldom any witnesses or physical evidence to refute the surviving person's version of the events. Proponents of the law say the law as it stands on the books is allowing citizens to defend themselves from violent crimes. Until the recent shooting of Trayvon Martin, changes in the law were not imminent. Today, it appears as if the legislature is going to scrutinize the law sooner than later.

Part of the problem with the new law is that it is being applied differently throughout the state. Once set of facts in Miami may lend itself to a dismissal, while a case in Ocala with the same set of facts will end up going to trial. The main variable that lends itself to disparate results is that the law can be interpreted differently based on the same set facts. The law requires a judge to consider a defendant's or potential defendant's state of mind which is always a difficult thing to do. The law is likely to be reviewed on an expedited basis as protests are occurring in Sanford, Florida as we speak during an election year. Until the law is reviewed and perhaps changed, the viability of the defense of justifiable use of deadly force will be decided on a case by case basis with a lack of visibility of success.

Number of Stand Your Ground Cases Rises as Legislators Re-Think Law, Miami Herald.com, March 23, 2012.

March 19, 2012

Caribbean Drug Trafficking Routes Back in Play

Efforts to curtail drug trafficking in Central American may inadvertently re-open former drug routes throughout the Caribbean. If the Caribbean becomes utilized for its drug routes as it has in the past, Miami may once again become the hub for drug importation into the United States. As the federal government's "war on drugs" concentrates in shutting down drug routes in the Central American corridors, Puerto Rico and other Caribbean islands could become main routes in the drug trafficking business. Miami criminal lawyers have always seen a steady stream of cases since the 1980's, however, federal authorities expect an increase in the number of cases as old trafficking routes are re-opened.

Congress, as well as, the United Nation's Narcotics Control Board is concerned that the increased pressure on Central American drug routes will cause the less protected Caribbean to once again become the primary trade route for illegal narcotics such as cocaine and heroin. Drug related violence in Puerto Rico has already began to sky-rocket with the number of murder cases rising to 1,136 last year. It is believed that 70% of those murder cases are drug related. Puerto Rico has enlisted the national guard to quell the violence. New equipment and security measures are being implemented in San Juan that will allow for the inspection of all of the cargo passing through the port. Concern is mounting that the re-routing of drugs will cause Miami to re-live the 1980's where the "Cocaine Cowboys became infamous. The 1980's were a time a violence and chaos as cocaine trafficking was taken to new highs. During these times, Miami and South Florida was considered to be the most dangerous locales in the United States.

Many fear that an increase in the flow of drugs through the Caribbean will directly impact Miami. Over the past couple of years, the Florida legislature has contemplated reducing the Draconian minimum mandatory penalties in an effort to reduce the costs of housing prisoners receiving double digit prison sentences for drug trafficking. The rationale of doing away with the minimum mandatory sentences was based on prison overcrowding, budget cuts and the burden being put on the taxpayers responsible for paying the high cost of housing inmates for extended periods of time. While the costs incurred by housing inmates for extended periods of time are a concern, the possibility of increased drug trafficking and violent crimes in Miami and South Florida make it highly unlikely that the legislature will repeal the long prison sentences that can be handed down for those arrested and convicted of drug trafficking.

As a result if the large scale drug importation business that riddled South Florida, the legislature passed sentencing laws that would take those convicted of drug trafficking off the streets for many years. For example, anyone convicted of cocaine trafficking in excess of 400 grams faces a 15 year minimum mandatory sentence. Heroin trafficking in excess of 28 grams carries a 25 year minimum mandatory sentence. The federal sentencing guidelines are every bit as oppressive when dealing with federal drug trafficking cases. Another negative impact caused by an increase in drug trafficking cases could be reflected in more stringent policies being put in place when dealing with bonds, both in state and federal court. Bond reductions may be less prevalent and prosecutors may look at Nebbia satisfaction requirements with a more discerning eye. All defendants charged with drug trafficking must prove to the prosecuting authority where the proceeds used to post bail originated, for both the collateral and the premium. With the downturn in the housing market, it is increasingly difficult to prove to the prosecution that houses have the required collateral to satisfy the bond requirements. If the future is as some predict, the criminal court system in South Florida could once again be indirectly overwhelmed by drug cartels.

Cocaine Cowboys, Not Again?, Miami Herald.com, March 19, 2012.

March 5, 2012

DUI Manslaughter Trial to Begin in Palm Beach

One of South Florida's rich and famous personalties is set to begin a trial where he is charged with DUI manslaughter and vehicular homicide. According to the charging documents, John Goodman, is accused of causing the death of another motorist by operating a motor vehicle while under the influence of alcohol. On February 12, 2010, the defendant allegedly drank too much and collided with a vehicle operated by a recent graduate of Central Florida. If convicted on all charges, Goodman is facing up to 30 years in the state prison. The criminal defense attorney representing Goodman has had two years to prepare the case for trial. While DUI manslaughter cases occur around the state, this case has garnered a lot of media attention, largely because of the status of the defendant.

Court documents and police reports allege that the defendant was speeding along a road in Palm Beach County in his convertible Bentley when he struck a Hyundai being operated by recent college graduate, Scott Wilson. The collision purportedly caused Wilson's vehicle to crash into a canal. Wilson could not escape, as he was wearing his seatbelt and could not remove himself from the upside down vehicle and drowned as a result. Accusations include the fact that the defendant was speeding and ran a stop sign causing the crash. It is also alleged that the defendant fled the scene after the accident, failing to render aid to the victim. As a result, the defendant is also charged with leaving the scene of an accident (LSA) that resulted in death.

If the allegations are true that the defendant fled the scene, the biggest hurdle for the prosecution is to prove that the defendant was impaired and in actual physical control of the vehicle. To prove the offense of DUI manslaughter, the prosecution must prove three elements. First, the state must prove that a defendant was in actual physical control of a vehicle. This is typically proven by a wheel witness, or in other words, a witness who can place a defendant behind the wheel at the time of the accident. The state can also prove actual physical control using forensic evidence left behind, such as DNA, taken from blood samples the driver may have left as a result of the accident. Secondly, the state must prove that a defendant was under the influence of an alcoholic beverage, chemical substance, or controlled substance to the extent his or her normal faculties were impaired or that a defendant had a blood alcohol content (BAC) of .08 or more. In cases involving accidents with serious bodily injury, blood samples can being taken as long as probable cause exists that DUI was the cause of the accident. Third, the fact that a defendant was DUI was the proximate cause of the death of the victim.

According to reports, Goodman made contact with a civilian witness. The testimony of this witness will be crucial to the state in proving whether the defendant was under the influence of alcohol. Testimony regarding alcohol on the breath, blood shot eyes, slurred speech and a flushed face are all indicia of being under the influence of alcohol. However, many of these indicia can be explained away by other external factors. The BAC is the best evidence that the prosecution can present to the jury. If a DUI charge is weak, the prosecution will also charge vehicular manslaughter which is established by different elements. The state will be required to prove that a defendant operated a vehicle in a reckless manner which was likely to cause death or great bodily harm. The allegations of speeding and running a stop sign at night could be enough to obtain a conviction for vehicular manslaughter. Both DUI and vehicular manslaughter are second degree felonies punishable up to 15 years in prison. If a jury convicts on both counts, the penalties can be enforced concurrently leaving a defendant looking at 30 years in state prison.

Houston Millionaire's Trial in Fatal DUI Crash Starts Tuesday in Florida, Chron.com, March 4, 2012.