June 2013 Archives

June 28, 2013

Two Sisters Arrested Simultaneously for DUI

Two South Florida women were arrested for driving under the influence (DUI) at the same time and for driving the same car. As a Monroe County police officer was attempting to stop a vehicle for a traffic infraction, the driver inexplicably stopped in the middle of U.S. 1 and switched seats with the passenger. The only problem is the officer saw the switch which put both sisters in actual physical control of the vehicle. The switch was allegedly captured on the dash board camera located in the officer's vehicle. Both defendants were arrested and booked into the Monroe County Detention Center and charged with DUI. Any Miami criminal defense lawyer that defends DUI cases will tell you that this situation is an unusual occurrence.

The two sisters arrested were Steffany and Vanessa Miranda. The police report indicates that Steffany was operating the vehicle as it traveled down U.S. 1. After the vehicle stopped, Vanessa jumped into the driver's seat switching places with her sister. Unfortunately, the officer that made the traffic stop observed the switch. The sisters were arrested on DUI charges and taken to the Monroe County Detention Center. Steffany refused to submit to breath alcohol testing, while Vanessa submitted to the test. Her reading came back at .127 and .129. The legal limit in the State of Florida is .08.

To prove the crime of DUI, the prosecutor must prove that a defendant drove or was in actual physical control of a motor vehicle. In most DUI cases, a law enforcement officer will observe a driver commit a traffic infraction and stop the vehicle. Once the officer approaches the vehicle and makes contact with the driver, the element is easily proven. In other cases, it is not so easy to prove the element of actual physical control (APC). In many accident cases, the driver has already exited the vehicle prior to the arrival of law enforcement. In multi-car accidents, drivers or passengers in the other vehicles will be required to testify to prove that the defendant was in APC of the vehicle. In one car accidents, witnesses or bystanders who observed the accident will be required to testify that the defendant operated the vehicle prior to the accident and exited the vehicle.

If the prosecution can establish APC, the next element to be proven is that the defendant was either under the influence of alcoholic beverages or a controlled or chemical substance to extent his or her normal faculties were impaired, or that the defendant had a blood or breath alcohol level of .08 or more. If the prosecution has a blood test that exceeds .08 they will attempt to prove the case using these test results. If a driver refuses to submit to the test, the prosecution will use the result of the field sobriety exercises commonly deployed by law enforcement in DUI investigations. The results of the exercises are far more subjective that the results of blood or breathing testing. It is always more difficult for the state to prove the offense of DUI relying on the results of the field exercises. Note that drivers are not required to perform roadside exercises. Experienced DUI attorneys always recommend to refuse the breath test and the field exercises as this will limit the evidence necessary for the prosecution to prove the case.

One Car, One Traffic Stop, Simultaneous DUI Arrests in Keys for Miami Sisters, Miami Herald.com, June 27, 2013.

June 17, 2013

Second Week of Jury Selection Begins in Zimmerman Case

After three days of jury selection, 29 potential jurors were ordered by the judge to return to court this week. After prosecutors and criminal defense lawyers questioned dozens of potential candidates, those who have not been stricken for cause were told to come back to court to participate in the ongoing jury selection in the highly publicized Zimmerman case. The case involves the shooting of a young black male in Sanford, Florida. Due to the publicity the case has garnered over the past year, it is difficult to say the least, gathering a fair an impartial jury to determine Zimmerman's fate.

Most criminal defense attorneys will tell you that the most important part of any criminal jury trial rests with the first part of any criminal case, jury selection. Questioning of potential jurors by the judge and the participating lawyers is supposed to meet one common objection, seat fair an impartial jurors to determine the guilt or innocence of a defendant. A secondary objection in jury selection is to build a rapport with the jurors. Zimmerman has pled not guilty to one count of second degree murder. Because second degree murder is not a capital offense, six primary jurors will be chosen to determine his guilt or innocence. Additional jurors will be selected as alternates. The number of alternate jurors will be determined by the judge. The alternate jurors will hear all of the same evidence as the primary jurors. If one or more of the primary jurors cannot fulfill their obligations, the alternate jurors will be used to determine the guilt or innocence of the defendant.

Of the 29 candidates ordered to return for a second week of jury selection, 19 are white, six are African American, two are Hispanic, and one is Asian-American. While race is never supposed to play a role in any criminal trial, a cases of this nature make it difficult to overcome that hurdle. Zimmerman, a white male, is accused of killing Trayvon Martin, a black male, in cold blood. Zimmerman has availed himself of self-defense claim since the date of the shooting incident. The case has caused a lot of public scrutiny because the victim was a young black male who was shot while walking through a gated community by a white male.

The judge's goal is to compile 40 perspective jurors that during initial questioning were found to be fair and impartial. Seventy-five potential jurors have already been dismissed after the first round of questioning. Once the first 40 jurors pass the first test, prosecutors and defense lawyers will begin a second round of questioning in an attempt to seat the six primary jurors and the alternates. Jurors can be dismissed for two reasons under Florida law. The first is referred to as a challenge for cause. Challenges for cause will be granted if a juror can not be found to be fair and impartial. The court will make the ultimate determination whether a juror can be fair and impartial. The lawyers involved in the trial can make as many challenges for cause as they think are appropriate. The second type of challenge is called a peremptory challenge. In felony cases that are punishable by death or life in prison, each side is entitled to 10 peremptory challenges. In all other felony cases, each side is entitled to six peremptory challenges. Peremptory challenges can be made for any reason as long as it is race and gender neutral. The media expects jury selection to completed as early as next week.

29 Possible Jurors to Return in Zimmerman Case, South Florida Times.com, June 17, 2013.

June 10, 2013

Cruise Lines Under Scrutiny

The laws regarding the reporting of crimes in large part do not apply to cruise lines. The delayed reporting of crimes by the cruise industry has come under scrutiny by lawmakers and watchdogs alike. With Miami and South Florida being major ports of call for the cruise line industry, it is important for criminal defense lawyers and passengers to understand the laws that govern the reporting of crimes at sea. Congress created The Cruise Vessel Security and Safety Act (CVSSA) in 2010 which established security requirements and procedure for reporting crimes aboard cruise vessels. Under the act, cruise lines are required to immediately contact the nearest FBI office as soon as an incident has been reported. They are also responsible for filing a written report which must be kept in a log book to be made available by any law enforcement agency upon request.

The CVSSA required the United States Coast Guard to report annual crime statistics. However, they are only required to report closed criminal investigations. Last year, the Coast Guard reported 15 closed investigations. Of the 15 investigations, 11 involved sexual assault and battery investigations. Crew members working on board vessels were suspects in six of the criminal investigations. The International Cruise Victims Association was created to protect passengers who were victims of crimes. The chairman of the association, Kendall Carver, claims that the number of incidents reported is much lower than the incident that occur aboard cruise ships.

Carver, along with a Canadian professor, used the Freedom of Information Act (FOIA) to request criminal reports received by the FBI from cruise ships. The final report indicated that 151 reports of unwanted sexual contact were made by passengers an crew members. Of the reported incidents, 56 involved both passengers and crew members. While the number of crimes reported seems keep in mind that an approximately 17.2 million people traveled on North American based cruise lines last year. While crimes on cruise ships occur, proponents of the industry claim that cruise afford the safest of vacation destinations. Cruise goers are not a fair cross section of the population. The majority of the passengers travel as families and a large percentage are elderly. As such, there a very few incidents of violent crimes aboard cruise vessels.

The most recent event regarding cruise ship safety involved a sexual assault committed against an eleven-year-old girl aboard a Disney cruise ship while in port in Port Canaveral. The Port Canaveral police were not contacted until the following day. The ship had already sailed for the Bahamas. When the ship returned four days later, the crew member accused of the sex crime was sent back to India from the Bahamas and was never investigated for committing a crime. Disney claimed that the family declined to prosecute and that is why the crew member was sent back to India. Regardless of the victim's position, Carver and other watchdogs are still concerned with the lack of reporting of crime aboard cruise vessel. They believe that the industry is largely unmonitored and that a culture of "cover up" exists. The U.S. Senate Committee of Commerce, Science and Transportation recently sent letter to three cruise lines requesting reports on crimes such as homicides, theft and sex offenses. To date the cruise lines have not complied.

Cruise Ship Stats Aren't Smooth Sailing, Florida Today.com, June 9, 2013.

June 4, 2013

Former County Employees Arrested for Fraud

Two former county employees were arrested on fraud related charges. Police say the allegations stem from an over-billing scheme that has cost the tax payers of Miami-Dade County millions of dollars. An extensive investigation revolved around a company called Data Industries, Inc. that has received approximately $16 million in tax payer funds for contract work. Two former employees of the Miami-Dade County Internal Services Department, also known as the General Services Administration (GSA), were arrested Tuesday for their alleged involvement.

Jesus Pons, Diana Pons, and Bruno Diaz were arrested for racketeering, organized scheme to defraud and a variety of other white collar offenses. Law enforcement officials claim that Pons and Diaz received kickbacks for arranging the contracts which led to over-billing the county. The GSA is a Miami-Dade County Department responsible for building and property management along with real estate transactions. The original contract between GSA and Data Industries was for $760,000. At the end of the contract, Data Industries received $10.7 million from the county.

Because Pons and Diaz were employed by Miami-Dade County and the offense arose while performing their official duties, criminal lawyers from the public corruption unit at the state attorney's office will prosecute the case. The public corruption unit prosecutes public officials charged with criminal misconduct committed within their scope of employment. Both defendants were relived of their jobs soon after detectives executed search warrants at their places of employment.

The probe into the allegations began as a result of a subcontractor reporting suspicious activity. The subcontractor told investigators that pursuant to the contract Data Industries was supposed to charge the county $125 per hour. Instead the company was billing the county between $230 to $275 per hour. Other allegations of financial malfeasance was reported where individuals were being paid far more than they were entitled to under the contract. The Miami-Dade County State Attorney's Office takes public corruption cases seriously. Only the most experienced prosecutors are offered the opportunity to work in that highly specialized department.

Former Miami-Dade County Employee Arrested in Massive Overbilling Scheme, Miami Herald.com, June 5, 2013.