Miami Criminal Defense Lawyer Blog

Florida has asked the United States Supreme Court to decide whether police officers can legally use a trained narcotics dog to sniff a front door of a residence without probable cause to believe that a crime has been committed inside the residence. Miami narcotics detectives received an anonymous tip that a particular residence was being used as a marijuana "grow house". Despite a lengthy period of surveillance on the house, the detectives were unable to gather any evidence sufficient enough to allow them to seek obtaining a search warrant. When the surveillance failed, the detectives approached the residence with a trained narcotics dog that alerted upon sniffing the front door. After the dog alerted, another detective approached the front door and then magically smelled the strong odor of marijuana emanating from the residence. The detectives drafted an affidavit in support of a search warrant which was then signed off on by a judge. The detectives returned to residence, busted down the door with the warrant in hand and discovered a large hydroponic marijuana grow house.

A Miami criminal lawyer filed a motion to suppress which was heard before a Miami-Dade County circuit court judge. Following the law issued by a federal appellate court, the trial court judge found that the dog's sniff was a search under the constitution and was improper without probable cause and a warrant. The federal court ruling in 2004 held that when searching a private home, "a firm line remains at the entrance, blocking the noses of dogs from the intimate details of an individual's life." The 3rd District Court of Appeal disagreed with the trial court, reversing the ruling by holding that a dog sniff does not equal a search and therefore a warrant is not required to put a dog up on the porch to sniff around the door of the residence. The Court of Appeal relied on another federal case which found that a dog sniff of contraband is not a search as no privacy interest exists in illegal contraband.

The Florida Supreme Court reversed the decision of the 3rd DCA and noted that a person's home is afforded a special status and that a dog sniff at the front door was an unreasonable intrusion into the sanctity of a home. The Court went further to say that a dog sniff is "a substantial intrusion" and constitutes a search within the 4th Amendment to the Constitution of the United States. Despite the ruling, the opinions of the justices were not unanimous with two of the judges dissenting. The state has taken the appeal up to the Supreme Court on the basis that the ruling in Florida is in direct contravention of the case it relied up at the 3rd District Court of Appeal. The state also noted in the appeal that the Florida Supreme Court's decision will hamper drug enforcement across the state if probable cause is needed before deploying a drug dog.

At this point, it is not clear whether the Supreme Court will hear the matter. Miami criminal defense lawyers would clearly be elated if the Court refuses to hear the issue in that drug sniffing dogs could only be used if probable cause for the sniff exists. In the event the Supreme Court believes that Florida is handing down rulings in direct contravention of the earlier laws, they will probably step in and intercede, finding that Florida has erred and overstepped its bounds. In either event, the law as it stands enures to the benefit of home owners. Anyone arrested for illegal contraband in the home, especially narcotics, that were discovered as the result of a sniff, should files a motion to suppress in their case.

Front Door Sniff By A drug Dog Require Probable Cause, Sunshine Slate.com, November 21, 2011.

The Broward County Sheriff's Office with the assistance of federal, state and local authorities conducts a large scale crackdowns every few months in an effort to get drugs and guns off the street. The latest operation dubbed "Operation Cold Turkey" netted 280 arrests over a two day period. One of the big scores came when the investigation led to a marijuana grow house which contained large amounts of cannabis, guns and other illegal drugs. Other items seized during the operation included 2,000 oxycodone pills and illegal firearms. In a separate incident, a former Miami Dolphin player was among those arrested. He was charged with one count of possession of marijuana, less than twenty grams. Igor Olshansky was taken to the Broward County Jail where he was released on a $100.00 bond. It is not clear whether, the former defensive tackle will hire a Broward or Miami criminal lawyer to defend the charge.

Possession of marijuana is a first degree misdemeanor punishable up to 364 days in the county jail. While the potential punishment seems harsh, people arrested having a small amount of marijuana never go to jail. In fact, many of the cases are dismissed in Miami-Dade County because the officers fail to appear in court; and if they appear, usually forget to bring the marijuana with them to court. Either event will result in the dismissal of the charges. Prosecutors will offer first time offenders a pretrial diversion program which will result in a nolle pros or dismissal of the charges if a defendant completes a couple hours of drug classes and pays the enrollment fee. People who have prior criminal records will most likely not be eligible for the program and will be offered time served and court costs. If a person is not eligible for the program, experienced defense attorneys will set the case for trial as the plea offer will always be the same.

Marijuana possession charges can come in many forms depending on the amount involved in the case. Possession of less than 20 grams is a misdemeanor as previously discussed. Possession in excess of twenty grams of marijuana is a third degree felony punishable up to 5 years in prison. Sentences of this kind are very rare and usually require a defendant to have an extensive criminal record and would also require a conviction after a jury trial. The most serious of the marijuana cases is trafficking. To be charged with trafficking in marijuana, a defendant must be in actual or constructive possession in excess of 25 pounds. There are different levels of trafficking depending on the weight of the illegal substance. Cases involving between 25 and 2,000 pounds of marijuana carry a 3 year minimum mandatory sentence; between 2,000 and 10,000 pounds a 7 year minimum mandatory sentence; and in excess of 10,000 pounds a 15 year minimum mandatory sentence apples.

The majority of marijuana trafficking cases that come out of Miami-Dade and Broward County stem from "grow house" operations. Despite the harsh potential sentences a defendant faces if caught running a grow house, several defenses exist to fight these cases. More likely than not, narcotics detectives gained access to the residence containing the marijuana without the use of a warrant and generally rely on obtaining consent from the residents. Often times, the detectives threaten to arrest everyone present, unless consent is granted. If this issue arises, a motion to suppress the search should be filed as the consent was not truly voluntary. If the detectives obtain a search warrant, grow house cases are more difficult to defend unless counsel can convince a judge at a motion to suppress that the facts that established probable cause in the warrant were illegally obtained or untrue.

Former Dolphin Igor Olshansky Arrested on Marijuana Charge, Sun Herald.com, December 2, 2011.

After months of legal arguments and thousands of motions to dismiss being filed by defense counsel, the question as to the constitutionality of the state's drug laws will finally come to a head. According to court records, thousands of defendant's convicted of or charged with drug offenses could be exonerated across the State. Every Miami criminal lawyer is anxiously waiting for word to come down from the State of Florida's highest court. While only two judges across the state have granted motions on cases involving drug crimes, some the appellate courts have ruled on the reading of the law while others have sent the cases to the Supreme Court as a matter of great public importance.

On September 14, 2011, a Manatee County Circuit Court Judge dismissed charges against 42 defendants involved in 46 cases. Manatee County falls within the Second District Court of Appeal. Two weeks after the Manatee County ruling, a three judge panel sitting on the court of appeal sent the matter to the Florida Supreme Court for a decision. Around the same time, another Miami-Dade County Circuit Judge dismissed numerous drug cases. That judge was in fact the first to find the drug laws unconstitutional. He agreed with a ruling handed down by federal judge who found Florida's drug law unconstitutional. The federal judge sided with a defendant charged will selling, manufacturing or delivering crack cocaine. The judge was quoted as saying, "Other states have rejected such a draconian and unreasonable construction of the law." The Third District Court of Appeal has jurisdiction over Miami-Dade County and ruled against the Miami judge.

From the prosecution's standpoint, the law is still valid because a defendant can present evidence that they did not know of the presence of the illegal substance or have guilty knowledge of the illegal substance. Defense attorneys contend that the law is unconstitutional because it shifts the burden of proof to the defendant. Under the Constitution of the United States, the government has the sole burden or proving criminal charges. We should not criminalize innocent conduct and shift the burden of proof. While it is not clear what the First, Fourth or Fifth District Court of Appeal have ruled, the Supreme Court is set to hear oral argument on December 6, 2011.

While the drug laws appears unconstitutional on their face, the Supreme Court will want to prevent the release or discharge of thousand of convicted or charged defendants under Florida's Anti-Drug laws. However, if for some reason, the Supreme Court strikes down the drug laws, motions to dismiss drug cases should be filed across the state. Don't lose hope. The Supreme Court has in the past ruled in favor of defendants involved in large numbers of criminal cases. For example, the highest court has previously found state sentencing laws unconstitutional and has ordered the local courts to re-sentence thousand of defendants. Whatever the case may be, the Supreme Court seems poised to hand down the answer before the end of the year.

Drug Law Case on Fast Track in Florida Supreme Court, Miami Herald.com, November 21, 2011.

A doctor, previously convicted of Medicare fraud back in 1992, has again been arrested for Medicare fraud and drug traffcking. Twenty-three others were also listed in the indictment. The indictment alleges that the group sold prescription medications, mostly pain killers and billed the federal healthcare program millions for prescriptions that never existed. Miami criminal lawyers, either assistant federal public defenders or privately retained counsel, will represent the defendants. Frank Ballesteros, a Miami doctor, is accused of playing a major role in a large scale pill mill operation. The majority of the defendants received a bond in the case, however, the doctor was denied a bond. His lawyer represented him at a pre-trial detention hearing, but was denied bond as the magistrate found him to be a flight risk and a danger to the community.

The Constitution provides everyone the right to a bond. However, like in state court, there are exceptions in federal court. In the majority of the cases, the assistant U.S. attorney prosecuting the case will agree to a bond and set an amount depending on the severity of the charges and a defendant's ties to the community. On other occasions, the prosecutor will not agree to a bond. The remedy at that point is to request a pre-trial detention hearing. A magistrate presides over these types of hearings and can either grant a bond and set an amount, or can deny a defendant a bond. The prosecutor will generally proffer the facts of the case with the lead agent assisting in the hearing. The defense lawyer will be permitted to cross examine the lead agent. After testimony is taken, both counsel will argue to the magistrate why a bond is or is not appropriate in the case. The magistrate will then consider a defendant's ties to the community and whether or not the defendant is a danger to the community. If the magistrate finds either, the magistrate will not set a bond and order the defendant detained.

The Drug Enforcement Agency has been cracking down on clinics in South Florida that are illegally distributing oxycodone and other pain killers and arresting those involved with drug trafficking. The clinics are also wrongfully billing Medicare which leads to Medicare fraud arrests. The DEA claims that there are large groups of doctors, clinic owners and pharmacists that are working in concert in these illegal ventures. If caught working together, the defendants will also be charged with conspiracy to traffic in illegal substances and conspiracy to commit Medicare fraud. The special agent in charge was quoted as saying, "Drug trafficking and healthcare fraud are a vile combination, especially when offenders steal from taxpayers to pay for highly addictive, highly profitable street drugs."

The DEA busted five clinics located in Miami, Hialeah, and Plantation. Ballesteros is accused of writing all the phony prescriptions for these clinics. Anyone being investigated or arrested for being involved in a fraudulent clinic or pill mill should retain a defense lawyer experienced in defending these types of cases in federal court. Individuals charged with drug trafficking and Medicare fraud are potentially looking at long prison sentences and should be represented by qualified counsel as the consequences are so dire.

Miami Doctor Charged with Medicare Fraud, Convicted of Same Offense in 1992, Miami Herald.com, October 30, 2011.

While a Miami circuit court judge first ruled that the Florida drug laws unconstitutional, a second judge from Manatee County has followed suit and dismissed felony drug charges levied against 42 defendants. Miami criminal lawyers and defense attorneys across the state have been filing motions to dismiss on behalf of their clients charged with drug offenses. Although hundreds of the motions have been filed, very few have been granted. Many circuit judges have motions pending in their courts, but have declined to rule on them at this point. While numerous circuit court judges have handed down rulings, the final decision as to the constitutionality of the state will be determined by the Florida District Courts of Appeal and will ultimately be determined by the Florida Supreme Court as a matter of great public importance.

The turmoil regarding the Florida drug laws was initially caused by a Middle District of Florida judge. The Middle District is a federal court, which begs the question, why are some state court judges following the precedent set forth by a court with no jurisdiction. Typically, federal courts have no jurisdiction of over state court judges, but rulings can be used as guidance by state court judges regarding their cases. The federal court judge decided back on July 27, 2001, that the Florida drug laws violated the Due Process Clause of the United States Constitution. The basis for the ruling was that the Florida Statutes regarding drug offenses do not have a knowledge requirement. Generally, all crimes in Florida and across the United States require criminal intent. Florida is the only state where criminal intent is not a prerequisite to being charged with certain drug offenses.

The problem with the current state of the drug laws is that an individual can be charged and convicted of a drug offense despite the fact that the prosecution cannot prove that the defendant had the intent to possess or sell an illegal substance. The Florida Statutes specifically do not require that the prosecution prove knowledge that the presence of the illegal substance. Without the element of intent, a person can be charged even if he or she innocently, accidently, unintentionally or mistakenly possessed an illegal substance. The burden is placed on the defendant that he or she did not have knowledge of the presence of the substance. Shifting the burden to the defense goes against the general principles of the constitution which squarely places the burden of proof on the prosecution to prove its case.

The penalties for violating Florida's drug laws are very serious. Simple drug possession such as cocaine or ecstasy possession are third degree felonies punishable up to 5 years in prison. Sale or possession with intent to sell an illegal substance is a second degree felony punishable up to 15 years in prison. Drug trafficking is a first degree felony punishable up to 30 years in prison and can be a life felony if a firearm was used in the commission of the offense. There are other serious ramifications for being convicted of a drug offense such as a permanent criminal record or even a driver's license suspension. Only until the appellate courts rule on this issue will we know whether or not the laws will be upheld. As a side note, over 100,000 individuals have been convicted of what could be determined to be an unconstitutional law.

Tampa Bay Alleged Drug Offenders Challenging Florida Drug Sentences After Federal Judge Ruling, PRWeb.com, October 18, 2011.

Criminal defense attorneys across the State of Florida have been peppering the courts with motions to dismiss drug cases from simple possession to drug trafficking. To date, only one judge out of Miami-Dade County has granted motions to dismiss drug cases based on an obscure ruling out of the federal court in the Middle District of Florida. While the Miami judge was one of the first to rule on the motion, other judges across the state have failed to follow suit. The latest order denying motions to dismiss based on the unconstitutionality of the state drug laws comes out of Panama City, Florida. Defendants charged with drug offenses have had their lawyers running to the court houses to file these motions. Again, the media twisted facts and led the general public to believe that drug cases throughout the state would be thrown out of court. This could not be further from the truth.

The story began with a federal judge in the Middle District of Florida that ruled that Florida's Drug Abuse Prevention and Control act was unconstitutional. Soon thereafter, a Miami judge handed down an order dismissing drug cases in his courtroom consistent with the federal court ruling. Since that time, every other judge in Miami, as well as, judges from Broward and Palm Beach Counties have routinely denied these motions to dismiss. Judges on the west coast of Florida up through panhandle have all denied these motions. On September 13, 2011, a circuit court judge from Panama City denied a motion to dismiss a drug trafficking case based on the same grounds. In a nutshell, the judge's ruling indicated that he was concerned about the state's drug laws, but his ruling fell back on an earlier decision issued by the First District Court of Appeal.

In 2002, the State of Florida re-wrote its drug laws and promulgated a new version of the Drug Abuse Prevention and Control Act in response a ruling issued by the Supreme Court of the State of Florida in a drug conviction was overturned. The new law allowed an individual to be charged and convicted of a drug offense even though a person did not intend to possess drugs or were not even aware of their presence. Florida is the only state where a conviction for a drug offense can be legally sustained without proof of one's intent to possess controlled substances. The current state of law allows for jurors to presume that a defendant was aware of the presence of illicit substance and shifted the burden of proof to the defendant to convince a jury that he or she was not aware of the illegality of the substance or its presence. That is the crux of the argument in all of the motions to dismiss. Defendants should not be compelled to testify or present evidence in a case with the sole burden resting on the prosecution.

The federal judge that found the state statute unconstitutional ruled that holding someone presumptively guilty violated the basic fundamentals of the Constitution. The circuit court in Miami followed suit and dismissed 39 cases. After that, every other judge has upheld the state statute, leaving the decision to the appellate courts, with the ultimate decision likely residing with the Supreme Court of Florida. The issue may find its way all the to the Supreme Court of the United States. With all that being said, anyone charged with a drug related offense should believe the media hype or veiled promises from some lawyers. The chances of having a motion to dismiss a drug offense based on the grounds is slim to none. However, experienced criminal defense lawyers should eventually file these motions in all cases to preserve a defendant's appellate rights.

Judge Denies Motion to Dismiss Drug Charges, The Walton Sun.com, September 14, 2011.

Federal authorities arrested 13 doctors that were involved in the operation of illegal pill mills. After completing a three year investigation dubbed "Operation Oxy Alley", 32 people have been indicted for their involvement in oxycodone trafficking. The investigation targeted owners, operators and doctors from the four largest pain clinics in the country. All of the arrests occurred in Palm Beach and Broward Counties, however, some of the defendants will likely retain Miami criminal defense attorneys. The defendants ages range from 25 to 76 and were charged with crimes including racketeering, money laundering and possession with intent to distribute controlled substances.

The are first oxycodone cases prosecuted b y the federal government where the defendants are being charged with racketeering. The indictment includes allegations that the defendants were involved with pill mills that handed out over 20 million pills and in turn made $40 million from the illegal sales of controlled substances. According to the FBI special agent in charge of the investigation, "As a result of today's takedown, we have dismantled the nation's largest organization that was illegally distributing pain killers and steroids." The is the first federal case where doctors, health clinics and suppliers have been indicted. It definitely shows that the focus has shifted from individuals possessing oxycodone to the individuals and entities that are distributing the highly addictive narcotics.

In a side note, one of the doctors has been charged with first degree murder in Palm Beach County in a case where a West Palm Beach man dies within hours of receiving pain killers from a clinic. Federal authorities are making a committed to shutting down the clinics that illegally distribute oxycodone. They are calling the problem an epidemic after the Florida Medical examiner released a report indicating that 2,710 people dies in 2010 by taking illegally prescribed pain killers. That figure was up 8% from 2009. The report also indicated that Florida is responsible for the distribution of 85% of the oxycodone sold in the country.

South Florida has become the focus of the oxycodone problem as individuals from all over the country travel to obtain the illegal substance. Some people are addicts while other travel here to get the pills cheap and return to their states to sell the drugs for a large profit. Drug trafficking in oxycodone carries steep penalties in state and federal court. Anyone caught with in excess of 28 gram of the substance faces a 25 year minimum mandatory sentence. The current campaign against the offense is now focused in clinic owners and doctors. Anyone involved with these types of clinics must know that the focus is now against clinic owners and doctors from Palm beach County to Miami.

Investigators Charge 13 Doctors in Pill Mill Crimes - and One with Murder, Miami Herald.com, August 24, 2011.

A long road lies ahead for defendants charged with drug crimes, as well as, for prosecutors who are trying to keep their cases from unraveling. Recent decisions from the federal and state benches have put all drug cases under the proverbial microscope. A federal judge out of Orlando was the first to declare that Florida's drug laws are unconstitutional as they violate the 14th Amendment of the Constitution. While courts across the state are still undecided how to handle the matter, one state court judge has followed suit. Two other state court judges and one federal court judge have declined to throw out or dismiss cases in their courtrooms. As a matter of course, all Miami criminal defense attorneys should file motions to dismiss or motion to vacate previously entered pleas to all drug cases from simple possession to drug trafficking.

While it is unknown how many judges will toss the drug cases in their courtroom, motions should be filed on behalf of clients charged with drug offenses. The problem with the current state of the law can be traced back to 2002 when the Florida legislature repealed the knowledge requirement in dealing with drug cases. Florida is the only state that has done away with the knowledge requirement for narcotics offenses. In criminal cases, the prosecution has the obligation to prove that a defendant acted with criminal intent. Defense lawyers are currently arguing that the current law which fails to provide that knowledge is a key element in any offense is a violation of an individual's due process rights. As such, the facts of any particular drug case are irrelevant as the current conflict strikes at the heart of law as it currently stands on the books.

In the upcoming weeks and months, motions to dismiss open cases or motions to vacate previously closed cases will be granted and denied. Some judges will grant motions, while others will deny them which pretty much leaves defendants with the luck of the draw. Eventually the issue will be heard in the appellate courts as prosecutors and defendants file appeals depending on which side was victorious in their endeavor. At this point it is unclear which appellate court will render the final verdict. Appeals will be taken the Florida Supreme Court, the 11th U.S. Circuit Court of Appeals and even to the Supreme Court of the United States. It is important to remember that any current victories in drug cases could be overturned putting a defendant in the same position he or she was in prior to winning the dismissal.

Statistics kept by the Florida Department of Corrections show that 94,000 individuals are currently serving prison sentences for a variety of drug crimes. While recent rulings are not going to result in prisoners being released at this time, the recent rulings are definitely a concern for prosecutors across the state. As judges come forward and begin dismissing cases, state attorneys' offices across the state will file their appeals. It is not clear whether judges will hold their orders in abeyance while waiting for higher court to rule. Because this is a matter of great importance, the appellate courts will probably rule sooner than later. In the meantime, courts will be flooded with motions further clogging the courts' dockets. Ultimately, if the laws are struck down, a little chaos will ensue as attorneys rush to file their motions.

Rulings Muddle Florida Drug Law, The Wall Street Journal, August 22, 2011.

The South Florida criminal justice system is replete with defendants charged with narcotics crimes from simple drug possession to drug trafficking. Criminal attorneys across the state including Miami criminal defense lawyers are seeking to have drug possession and drug trafficking cases thrown out of court. In Miami, three judges have ruled on the matter with two disagreeing with the federal ruling, while a third is following suit. Florida, a state where drug-related crimes constitute nearly half of all criminal convictions, is likely to experience massive turmoil in its court system after a district court's ruling in Shelton v. Department of Corrections. After Judge Mary Scriven called Florida's drug statute "draconian," and declared some of the state drug laws unconstitutional, state courts have been buried with motions from lawyers looking to dismiss their client's drug related charges.

Under Florida law, prosecutors are not required to prove that a defendant has any knowledge of drugs on their person. In fact, Florida is the only state to do away with this aspect of a drug conviction. The knowledge requirement was removed nine years ago by the Florida Legislature, claiming that it was simply too burdensome on the prosecution to prove something as nebulous as "knowledge" of drugs. Judge Scriven notes that this reasoning makes an individual that unwittingly has cocaine hidden in their backpack just as guilty as a bona-fide drug trafficker. In her Shelton ruling, Judge Scriven argued that due to the heavy sanctions in place for drug traffickers (anywhere from 3-25 years in prison plus large fines), doing away with the knowledge requirement was a violation of a defendant's right to due process. For example cocaine trafficking can carry a 15 year prison sentence while trafficking in oxycodone can carry a 25 year prison sentence.

Despite her ruling, this legal drama is far from resolved. Palm Beach lawyer Nellie King, president of the Florida Association of Criminal Defense Lawyers points out that the "State Attorneys' Offices are going to argue that her decision is not binding, and they're correct. But her decision is right, so our job is going to be getting state courts to agree that Florida has been going about things the wrong way." Indeed, state court judges are not legally bound by the opinion of a district court judge. Two Circuit Judges in Miami-Dade have refused to acknowledge the ruling; one Pensacola judge refused to dismiss any of the 17 drug cases brought before him. Miami-Dade Judge Jorge Cueto contends that Scriven's legal analysis is "flawed." Miami-Dade prosecutor Christine Zahralban notes that there is no knowledge requirement for age in cases of statutory rape, a crime that also carries heavy sentences - why should drug cases be any different?

Despite many Florida judges not agreeing with Scriven, Miami criminal defense attorneys have had some luck. Judge Milton Hirsch believes that Scriven's ruling is "absolutely binding" and allowed for the release of many defendants with drug charges. Defendants that have posted bail on cases in his division were all released on their own recognizance, meaning they no longer have any commitment to the bondmen who posted their bail. With over 1000 pending drug cases currently in South Florida courts, Floridians can probably expect to see a large number of charges dropped. However, even if Florida were to change its drug laws to conform to Scriven's ruling, it is unclear whether any convicts already serving prison terms would be affected.

Legal Drama Flares in Florida Drug-Law Case, Miami Herald.com, August 13, 2011.

Not yet, but advocates are pushing to decriminalize marijuana possession on the beach. More than a dozen people pushing for the new law arrived at city hall on Miami Beach with a petition that contained more than 9,000 signatures supporting the change. The new law would decriminalize marijuana possession of less than 20 grams and merely make it a civil fine. As it stands, people arrested for marijuana possession face a first degree misdemeanor charge punishable up to a year in jail. While it is not the most serious offense on the books, people arrested for this crime generally hire a Miami criminal defense lawyer to defend the charge. Typically in Miami, prosecutors offer pre-trial diversion of a withhold of adjudication and court costs.

If a defendant charged with marijuana possession has no criminal record, prosecutors will likely offer pre-trial diversion. A defendant will be required to pay a $250 fee to enroll in the program and then be required to complete a drug course. While the conditions are not onerous, defendants are only afforded to enter the program once. That is why it is recommended to fight the case and seek an outright nolle pros or dismissal of the charges. Although not recommended, the easiest way to dispose of the charge is to take a plea to a withhold and court costs, but that will leave someone with a criminal record and possible immigration consequences. If 4,300 signatures are verified and the city attorney and city commission find that the new ordinance is constitutional, the police will only be permitted to issue $100 fines and no longer be permitted to make arrests.

The new law does not appear imminent and there are many hurdles before it is passed. For now, the Miami Beach city attorney is of the opinion that the ordinance is probably not constitutional. In the event the ordinance is declared constitutional, the bill still has to be placed on a ballot and voted into law. In the event that occurs, Miami Beach would be the first city in the State of Florida to decriminalize marijuana possession. The move to change the law is being driven by the Committee for Sensible Marijuana Policy. The group has been pushing for the change since 2010. Proponents of the change claim that the new law would save millions for the city. They claim that Philadelphia passed a similar ordinance and saved $2 million the first year the change was in effect.

In the event the law is passed, all other laws involving marijuana will remain on the books. Felony marijuana possession more than 20 grams or marijuana trafficking offenses will continue to be charged and prosecuted. While felony possession cases are easily defended, trafficking cases are more difficult as a three year minimum mandatory sentence attaches. In either case, anyone arrested for any marijuana charge should seek out a qualified defense firm to defend the case. Even if time served or probation is offered, defendants must be aware that accepting pleas of this nature will subject one to deportation in the event they are not a U.S. citizens. Residents could also lose their green cards by accepting pleas for these charges.

Pot-Referendum Bid Put Off, Miami Herald July 7, 2011.

A new program designed to assist military veterans with drug addictions has officially opened its doors. The new venue is referred to as Veteran's Court and is brand new to Miami-Dade County. Miami criminal attorneys have used the drug court as a way to get help for their clients and to ensure that after successfully completing the program getting their clients charges dismissed. The standard drug court program allows defendants with simple drug possession charges to enroll in the court and receive drug treatment from local drug addiction facilities. Bear in mind that all defendants charged with simple drug offenses are not always eligible to enroll. Defendants with certain priors, such as burglary and robbery will not be allowed into the program.

The new Veteran's Court will get services from count rehabilitation facilities, but also from the Department of Veteran Affairs. The use of Veteran's Court has gained traction around the country. It allows for defendants that are veterans to avoid jail or criminal records by undergoing intensive court monitored drug rehabilitation programs. The program also assists veteran in obtaining financials grants allowing them to continue and complete their education. Military lawyers are happy that veterans are getting additional benefits for their time in service. The Veteran's Court is presided over by the same judge who presides over drug court. Currently, there are ten veterans enrolled in Miami-Dade County. The justice system is looking to have at least 100 enrolled in he program at any given time.

The Veteran's Court in Miami is the 69th such court created in 24 states around the country. The first of its type opened its doors in Buffalo, New York. The court was created because of the increasing number of veterans returning from the Middle East with drug addiction problems. The number of veterans being charged with cocaine possession, marijuana possession and heroine possession was increasing at an alarming rate. These statistics led to the creation of the program. Like drug court, veterans charged with minor possession or purchase drug offenses are eligible, as long as hey do not have extensive prior criminal histories or have been previously convicted of violent crimes.

Anyone enrolled in the drug court program, or the newly created off-shoot should be aware that completing the program is no easy task. Outpatient rehabilitation and multi-weekly narcotics anonymous classes are required. Defendants who render positive urine tests may find themselves behind bars for at least a couple of days. This makes drug court much more intensive than any form of probation that results from accepting a plea. In Miami, first-time offenders charged with a simple drug offense will usually be offered "credit time served". Bear in mind, the extra effort of the drug court program will allow a defendant's charges to be dismissed, which will further allow him or her to expunge the criminal record. An additional plus is that a defendant can kick his or her drug addiction, thus preventing a return to criminal court.

Miami-Dade Starts Specialized Drug Court for Military Veterans, Miami Herald.com, May 2, 2011.

In many cases, simple traffic citations lead to drug possession and drug trafficking arrests. Last week, police officers from the Lee County Sheriff's Department stopped a car traveling northbound on I-75, near Fort Myers, Florida. The police stopped the driver of a 2001 SUV for having illegal window tints on the front a back windows. Miami criminal defense lawyers that represent individuals charged with drug possession and drug trafficking charges can share many stories of clients being charged with serious drug related offenses that occurred as a result of a what amounted to a simple traffic stop. In this case, three people were present in the vehicle at the time of the stop. Upon making contact with the driver, officers noticed a strong smell of marijuana emanating from the vehicle. A K-9 dog was summoned to the scene and alerted to the presence of illegal narcotics within the vehicle.

Anyone stopped for a traffic violation should know that a police officer conducting the stop does not have the right to search an occupant of the vehicle or the vehicle itself unless he or she has probable cause to believe that a person is in possession of an illegal substance or the vehicle itself contains illegal contraband. A law enforcement officers can establish probable cause by several means. The driver or passenger in the vehicle can admit that he or she possesses an illegal substance or that an illegal substance is present in the vehicle. Statements of this nature can provide the police with the probable cause to search an occupant or the vehicle itself. Police can also establish probable cause if they smell an illegal substance such as marijuana coming from the vehicle. K-9 units can be used to establish probable cause if specially trained narcotics dogs alert to an occupant of the vehicle or to the vehicle itself.

After the K-9 alerted to the vehicle, the search revealed a large quantity of marijuana, ecstasy based amphetamine powder and nitrous oxide gas. All three defendants were arrested for possession of marijuana more than 20 grams, one count of trafficking in phenethylamines, possession of nitrous oxide and possession of drug paraphernalia. The only serious charge is the drug trafficking offense which carries a three-year minimum mandatory sentence. While the defendants are facing serious charges, it remains to be seen if the state can actually prove the charges. It is important to know where the drugs were found and who was the owner of the vehicle. To prevail in ths case, the state must be able to prove that the individuals arrested in this case had knowledge that the vehicle contained the illegal substances. Of course, these facts become less important if any those arrested provided confessions regarding the drugs.

There are useful tips that should be taken away from the article. First, never transport or do drugs in a vehicle. If the police have any idea criminal activity of this kind is taken place, they will not need to obtain a warrant to conduct a search, because unlike a home or a residence, the automobile exception to the warrant requirement will allow for an almost immediate search of a vehicle. Secondly, unless you are absolutely sure, never consent to the search of vehicle as the police may find something you forgot about or that you did not even know you had in the vehicle. Never, give a statement to law enforcement, as confessions only further damage the ability to defend a criminal case. Be pleasant, but request the presence of a lawyer at the time of questioning. While this will aggravate the investigating officer, the only person you should talk to is the lawyer you eventually hire to defend your case.

Traffic Stop Leads to Three Arrests on Drug-Related Charges, Cape Coral Daily Breeze.com, March 24, 2011.

The Florida legislature will consider two bills aimed at eliminating minimum mandatory sentences on drug trafficking cases. For years, defendants charged with drug trafficking offenses, such as marijuana trafficking, cocaine trafficking, heroine trafficking and trafficking in prescription medications face draconian sentences if convicted of these types of offenses. Miami criminal defense lawyers have struggled for years with cases involving minimum mandatory prison sentences. It has always been difficult to obtain waivers from the state. Even first-time offenders faces the stiff penalties surrounding the minimum mandatory sentences.

Until the Miami-Dade State Attorney's Office revamped its narcotics unit, defense attorneys seldom had less difficulty getting division prosecutors to waive the minimum mandatory sentences. Currently all requests for minimum mandatory waivers must be reviewed by the narcotics unit prosecutors and approved at the highest levels of the state attorney's office. Generally, waivers are only granted if the defendants agree to cooperate with law enforcement officers or if there are significant defects in the case itself. Minimum mandatory sentences will be waived if there are search and seizure issues involved with the case. For example, questionable searches or arrests made in violation of a defendants constitutional rights will often lead to waivers of the harsh sentences.

Due to the drug trafficking problems that existed in Miami in the late 80's and early 90's, the legislature passed laws that put the minimum mandatory sentences into effect. For example, cocaine trafficking in excess of 400 grams carries a 15 year mandatory sentence, trafficking in excess of 28 grams of heroine carries and 25 year mandatory sentence and oxycodone trafficking in excess of 28 grams carries a 25 year mandatory sentence. Mandatory sentences refer to sentences that are the minimum that a court can sentence a defendant to in the event of a conviction. Mandatory sentences also require defendants to serve every day of the sentence imposed. Generally, defendants only serve 85% of the time for which they are sentenced. Mandatory sentences require defendants to serve 100% of the sentence imposed by the court.

The removal of mandatory prison sentences would provide defense attorneys with more flexibility in resolving cases for client. The change in the law would also give more flexibility to prosecutors to resolve cases by allowing them to offer pleas well below the mandatory sentences. The removal of the mandatory sentences would then allow plea negotiations to begin with guidelines set forth under the Florida statutes which when calculated are far below the mandatory sentences. Rather than starting with the mandatory sentences, defendants would begin plea negotiations at the bottom end of the guideline range. The comments above are in no way meant to infer that defendant arrested on trafficking charges should enter guilty plea. Rather, drug trafficking cases should be fought even if it eventually requires a jury trial. However, well prepared cases with viable motions to suppress or motions to dismiss should be fought until a favorable plea is offered or until the case is set won at trial.

Proposed Bills Would Eliminate Mandatory Sentencing for Drug Trafficking, Florida Independent.com February 24, 2011.

Federal agents arrested several doctors from multiple clinics in South Florida. Doctors working out of such counties as Palm Beach, Broward and Miami-Dade County were arrested for oxycodone trafficking. The feds raided 15 clinics or "pill mills" which resulted in the arrests of five doctors, along with a few street drug dealers and employees of the clinics. The media has consistently reported the recurring problem which has caused certain activists and politicians to request that a database be put in place to end the illegal distribution of pain killers from the mills. Governor Scott has ben an opponent of the database for ideological reasons such as the right to privacy. All of the individuals arrested yesterday will appear in federal court today at their initial appearance. At the first appearance, bond will be set and each defendant and will either be represented by a private criminal defense lawyer or a criminal attorney from the public defender's office. Individuals that cannot afford to hire a lawyer will be represented by a public defender or a court appointed lawyer.

Oxycodone trafficking cases can be prosecuted both in state and federal court. The potential sentences vary depending on which jurisdiction the case is prosecuted. In state court, oxycodone trafficking minimum mandatory sentences attach to anyone convicted of this offense. Trafficking in 4 to 14 grams of oxycodone carries a 3 year minimum mandatory sentence, 14 to 28 grams carries a 15 year sentence and in excess of 28 grams carries a whopping 25 year sentence. In federal court, the sentencing guidelines apply and the weight of the oxycodone determines the offense level. To determine the potential sentences, a defendant must look at the drug equivalency table where 1 gram of oxycodone is treated like 6,700 grams of marijuana. When considering the weight of the oxycodone, the guidelines require that only the drug itself be weighed excluding the pill, capsule or casing. A 10 year minimum mandatory sentence may apply as well.

Investigators claim that the doctors were handing out prescriptions for fake injuries and false pain. The arrests came from undercover detectives acting as patients who received no medical evaluation from the prescribing doctor. One of the doctors allegedly ordered in excess of 280,000 pills for patients. Records indicate that the top 39 prescribers of the pills work out of South Florida. Residents from other states travel all the way to South Florida because of the easy access to prescription medications. The pill mills are very popular in South Florida because of the lack of regulation. Most other states use tracking systems to prevent this problem. Most advocate for a monitoring system that would prevent the clinics from obtaining and selling large quantities of oxycodone.

Anyone being investigating for oxycodone trafficking or any other form of drug trafficking should not speak with investigators prior to speaking with a criminal defense attorney. Any statements made to law enforcement can and will be used at trial and will certainly limit a defendant's ability to defend the charges, both in state and federal court. Anyone arrested for these types of charges should seek legal counsel as soon as possible to defend the case.

Pill-Mill Arrests Hit Right Target: Doctors Cranking Out Oxycodone Prescriptions, Miami Herald.com, February 23, 2011.

The governor of the State of Florida, Rick Scott, made public his desire to repeal the state law that was promulgated in an attempt to reduce the prescription drug trafficking problem facing the state, especially South Florida. Unlike marijuana and cocaine trafficking, trafficking in pills is a more recent phenomenon. South Florida and Miami criminal defense attorneys have seen an upswing in the number of prescription drug cases, such as Oxycodone trafficking, being prosecuted both in state and federal court. The state legislature recently enacted a law that was designed to reduce the prescription pill problem plaguing the state. Drug dealers and addicts from other state's flock to South Florida to obtain prescription pills because they are not regulated in Florida like other states.

The Florida legislature implemented an electronic monitoring program which would supposedly track prescription medications. Scott believes that the program will not be as effective as advocates proclaim and also is worried about the privacy rights of legitimate patients. Proponents of the new law claim that the program is the most effective method in curtailing the problem. They believe that Florida has the problem because they do not have a drug monitoring program or system like other states around the country. Despite the fact that there is enough funding for the program, many desire that the program never be implemented.

While possessing or dealing pills would seem to be less serious, the potential sentences under these cases are more severe than the penalties for marijuana or cocaine trafficking. Due to the addictive nature of pain killers such as oxycodone and hydrocodone (more common names are Oxycodone, Vicodin and Percocet), the penalties for trafficking in these pills is commensurate with penalties for opium and heroine trafficking. Anyone caught with more than 4 grams, but less than 14 grams of these types of pills faces a 3 year minimum mandatory sentence. Anyone caught with between 14 and 28 grams of the controlled substance faces a 15 year sentence. Anyone caught with more than 28 grams faces a 25 year prison sentence. Based on the penalties, it is apparent how serious the legislature considers the trafficking of these pills to be.

The majority of these drug trafficking cases that are prosecuted by the state arise from transactions between those arrested and confidential informants (CI's) or undercover narcotics detectives (UC's). The majority of the transactions are set-ups which are tape and video recorded by law enforcement officers. With that in mind, street dealers should always bear in the mind the large number of CI's working the streets of Miami and South Florida. The majority of the CI's are out there setting up deals in an effort to prevent their arrest and prosecution or are trying to reduce their exposure when they are sentenced in court.

Scott Proposing Repeal of Florida Drug Trafficking Law, Miami Herald.com, February 8, 2011.