Florida Criminal Lawyer Blog

As West Palm Beach drunk driving criminal defense attorneys, we are extremely interested in the ongoing debate throughout Florida about the use of a particular brand of breath-testing machine in DUI cases. Some of our fellow defense attorneys contend that the Intoxilyzer, a machine used by Florida law enforcement, is unreliable and should not be used, or that the machine’s manufacturer should be forced to release source code so that defense attorneys can understand how evidence against their clients is reached. Several counties have already ruled on the Intoxilyzer’s admission, and now, Palm Beach County is considering it as well. On Feb. 23, the South Florida Sun-Sentinel reported that a panel of seven criminal judges is considering whether to throw out Intoxilyzer records for nearly 500 defendants with active DUI cases.

Most interestingly, the two private attorneys and one public defender in the case say that some Palm Beach County prosecutors are intentionally turning off machines when it looks like they are going to fail inspections. Intoxilyzer machines must be inspected routinely to ensure that the evidence they produce is reliable. A Florida Department of Law Enforcement employee was fired last year for doing this in Miami-Dade County. The defense attorneys claim the fired employee had told at least four others how to do this as well, and an outside forensic expert said he found evidence that certain inspectors had a pattern of doing this. However, one police officer said he sometimes turns off machines because they “freeze.” The defense lawyers also argue that the specific model of Intoxilyzer at issue must be approved by the federal government to be used in Florida.

A ruling in favor of the defense attorneys would require prosecutors to throw out all of the cases against their nearly 500 clients. It would also invalidate the use of the Intoxilyzer in Palm Beach County, though not necessarily in neighboring counties. As Miami DUI criminal defense lawyers, we hope the judges come to a decision that is fair to DUI defendants whose test results may have been skewed by the inspectors’ malfeasance. The blood-alcohol concentration test result is essential in a drunk driving case, because it usually makes up the only direct evidence against the driver. If that test is off by even 0.01, innocent people can be criminally charged with drunk driving (and guilty people can go free). Tampering with that test result is essentially tampering with justice.

Continue reading "Palm Beach County Judges Consider Admissibility of Intoxilyzer Machine in DUI Cases" »

Our Fort Lauderdale sex crimes criminal defense attorneys have long believed that sex offender registration laws and residency restrictions are not good laws. This is in part because they create homelessness and obstacles to rehabilitation, but also because they don’t allow flexibility for special circumstances. We believe that flexibility may have been called for in the case of a homeless man recently profiled in the South Florida Sun-Sentinel. The newspaper ran an article March 1 following up on a Feb. 25 profile of Gary Kerpan, 60, who is a sex offender because of his conviction for raping and killing a 12-year-old girl in Illinois. He is also a Vietnam veteran with paranoid schizophrenia and post-traumatic stress disorder.

Kerpan confessed in 1990 to the 1977 rape, stabbing and murder of a child in the Chicago suburbs. He was released from prison in 2006 and came to Florida, in part because his mother lives here. However, he was arrested in early 2007 for failure to register as a sex offender and imprisoned until August of 2009. At that time, he started living on the streets in Fort Lauderdale. Because of his sex offender status, he is not allowed to stay with his mother or in Broward County shelters. After the newspaper profiled him, he was arrested Feb. 26 for failing to report his address as “transient” to the state as part of his sex offender obligations. The Department of Veterans Affairs said it could help Kerpan with housing and mental health services if a judge agreed. However, the Broward State’s Attorney’s office has not yet decided whether to prosecute him.

This article doesn’t emphasize Kerpan’s schizophrenia or post-traumatic stress disorder. However, our West Palm Beach sex offense defense lawyers suspect that these are the primary causes of his homelessness. Even the mentally ill who are lucky enough to have loving families and financial resources can end up on the streets. Their illnesses make it nearly impossible to meet basic obligations like holding down a job and paying rent. In Kerpan’s case, his mental illness may also make it difficult to remember, and follow through on, his obligation to register. Holding offenders like him to their obligations may still be necessary, but the state should do so with realistic expectations, and possibly by providing help when necessary. If that’s not possible, the least police and prosecutors should do is show some mercy to people like Kerpan, who now faces his second felony failure-to-register charge.

Continue reading "Mentally Ill Sex Offender Arrested for Failing to Report Address as Homeless" »

We are proud to announce that Balliro Seltzer LLC is sponsoring radio station 93 Rock's Best Damn Brew Review event -- happening this Friday, Feb. 26 at 8 p.m. This is the station's outdoor beer garden and concert, featuring 200 beers and a concert stage with local South Florida bands Ghost of Gloria, Venejer and Streetkind. Along with First Class Transportation, we are sponsoring the Safe Ride Home program, which offers rides home to participants who don't feel safe to drive. Our West Palm Beach DUI defense attorneys know firsthand how costly a drunk driving charge can be, in lives and money, and we want everyone to have fun and arrive home safely.

Here's the radio promo for the event, which mentions us as a sponsor. For more information, you can check out the BDBR page at 93rock.com.

Our West Palm Beach tax fraud criminal defense attorneys were extremely interested in a Feb. 21 Miami Herald article about an unusual tax fraud scheme. According to the article, inmates at the Monroe County Jail near Key West ran a large-scale tax fraud scheme netting nearly $1 million in bogus refunds. The participants were not in jail for tax fraud, and in most cases have moved on to prison for unrelated crimes since the crimes were uncovered nearly three years ago. But while they were in jail, about 50 inmates were able to claim refunds for taxes they never paid, “automatically deducted” from paychecks that never existed. The article says this is a growing problem in jails and prisons around the nation.

Investigators say two inmates served as ringleaders in the schemes, and even charged other inmates for information on how it worked. Shawn Clarke and Danilo Suarez filed 1040EZ forms along with Form 4852, which is a self-reported substitute for a W-2. Participants fabricated their information, claiming to have worked for companies that don’t really exist, sometimes while they were in jail. Some filed multiple returns despite having never before filed tax returns, claiming an average of about $5,000 in returns. Jail officials uncovered the scheme in late 2006 when they found a written document in a cell, and handed the IRS a case complete with confessions and recordings of incriminating phone calls. Local officials complain that the federal government has delayed the case for years, bringing evidence before a grand jury only this month.

As Miami tax fraud criminal defense lawyers, we’re pleased that the federal government is prosecuting this well-documented case. (However, we’d like to note that jailhouse confessions are unreliable, because prisoners can be under duress.) But if authorities start seriously pursing tax fraud from jails and prisons, we’re concerned that inmates who make honest mistakes may get swept up in the investigations. The article notes that some of the inmates in this case had never filed tax returns before. The tax code is notoriously complicated and confusing; it must be even more confusing for those with no past tax experience, some of whom may never have held a legal job. Such inmates may also honestly rely on bad advice from people like Clarke and Suarez. It would be a shame to criminally prosecute such a person for trying to do the right thing.

Continue reading "Investigation Finds Key West Inmates Filed False Tax Returns From Jail" »

An unusual Valentine’s Day story caught the attention of our Miami assault and battery criminal defense attorneys. A Feb. 16 article in the South Florida Sun-Sentinel says a man was arrested Sunday for attacking a couple celebrating Valentine’s Day. The unidentified man and woman said Larry Bert Sexton, 37, broke into their house and attacked both of them with his fists. Sexton and an unnamed acquaintance said they saw the man beating up the woman and tried to help. Law enforcement in St. Lucie County apparently sided with the couple, charging Sexton with two counts of battery, impersonating an officer and burglary of an occupied dwelling.

The incident happened around 4 a.m. early on Feb. 14. According to the newspaper, the man said he arrived at the home with flowers and carried the woman inside. About ten minutes later, he said, Sexton kicked down the door and announced that he was a sheriff’s deputy. Sexton then threw a punch that missed, followed the man into a bedroom and began punching him. The woman tried to pull Sexton away from the fight, but Sexton turned and began strangling her. After the fight, Sexton went into a house across the street. Sexton told police he and a resident had been watching the couple from that house. He said he saw them in an argument that turned violent; his companion said they saw a man beating up a woman. Police found no evidence to support that, the article said.

As West Palm Beach battery criminal defense lawyers, we are not so sure. The article doesn’t have enough detail to show who was telling the truth, but it’s easy to see another side to the story. For one thing, it’s a sad truth, and well-known to law enforcement, that victims of domestic violence often side with their abusers. If the man truly was beating the woman, it’s not unlikely that she would try to help cover it up after the fact, and even try to defend him from Sexton. The police said they found no evidence of a fight, but the fight with Sexton may have covered up evidence of a previous fight. While it was illegal for Sexton to lie about being a sheriff’s deputy, he may have been trying to scare the man. And if there was no intent to batter the couple or commit any other crime, the burglary charge is legally bogus and must be dropped.

Continue reading "Treasure Coast Man Arrested for Assault in Alleged ‘Good Samaritan’ Incident" »

The recent arrest of Miami Dolphins defensive tackle Tony McDaniel highlights issues we believe are important in any case of alleged domestic abuse. The South Florida Sun-Sentinel reported Feb. 7 that McDaniel, 25, was arrested the day before and charged with misdemeanor battery of his girlfriend. The arrest report said McDaniel and Alaina Smith had an argument outside their Davie home Saturday morning that turned into a shoving match. The two have different accounts of the reasons for the fight as well as the physical part of the confrontation. This he-said, she-said problem is one of the most common situations affecting our practice as Fort Lauderdale domestic violence criminal defense attorneys.

According to the article, Smith was returning to the house with food around 8:30 a.m., around the same time McDaniel was coming home from a night out. Smith said McDaniel confronted her about not answering the phone the night before, then grabbed her purse. During their struggle for the purse, she said she fell and hit her head. She ran into the house, she said, asked her guests to call 911 and ran out to find McDaniel smashing her phone on the ground. McDaniel told police Smith was upset at him for staying out all night and started scratching and slapping him. Police found scratches on both parties, but no head injury on Smith, who declined medical treatment. The houseguests said they saw the argument, Smith’s fall and McDaniel smashing the phone. He was arrested and released on $3,500 bail the next day.

As Miami-Dade spousal abuse criminal defense lawyers, we see stories like this time and time again. Each person claims the other started the fight; the physical evidence doesn’t say much; and there are few, if any, witnesses. This means the police are forced to choose the story they think fits the situation better. More often than not, police choose to believe the woman and arrest the man, following outdated gender stereotypes. The truth is that people of both genders can be guilty of domestic violence, and Florida law recognizes that either spouse can be a victim. Arresting the husband or boyfriend at the first sign of trouble may stop the fight, but it can also unfairly and unnecessarily get him into major, life-changing legal trouble.

Continue reading "Miami Dolphins Player Arrested for Domestic Violence After Fight With Girlfriend" »

As Fort Lauderdale criminal defense attorneys, we were interested to see that a law with major implications for South Florida government is going all the way to the U.S. Supreme Court. According to a Jan. 31 article in the South Florida Sun-Sentinel, the court is expected to rule in the next few months on the legality of a federal law that has sent several politicians to prison in Broward and Palm Beach Counties. The “honest services fraud” law is a 28-word add-on to the federal law prohibiting wire and mail fraud. It can be used in private business, but is most often used to criminally charge government figures who are accused of using their offices to get material advantages that don’t meet the stricter definition of bribes. In the Supreme Court case, an Alaska politician convicted of corruption is challenging the law as unconstitutionally vague.

In Weyhrauch v. United States, former Alaska state senator Bruce Weyhrauch was convicted of failing to disclose that he was seeking employment with an oil company before he voted in that firm’s interest on a tax bill. In South Florida, politicians were prosecuted for honest services fraud for actions like taking money to help businesses get municipal contracts, or using decision-making power to profit from secret land deals. Prosecutors like the law because it allows them to prosecute politicians who didn’t accept an outright bribe, but still lined their pockets instead of working for taxpayers. Detractors say the statute is so broad that it’s impossible for an average person to understand what’s prohibited. The language of the law says “For the purposes of this chapter, the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.”

We know arguing in favor of allegedly corrupt politicians does not always make attorneys popular. But as West Palm Beach criminal defense lawyers, we agree that the language of the law seems like it may be overly broad. The article quoted Supreme Court Justice Antonin Scalia, who observed that the law could prohibit using personal or political influence to get a restaurant reservation. In fact, depriving someone of honest services could be an act as small as goofing off at work. Without clarity about what the law actually prohibits, both public and private employees are at risk of prosecution for any action the local prosecutors don’t happen to like. This not only creates injustice, but opens the door to politically motivated prosecutions that abuse the law.

Continue reading "Supreme Court to Rule on Anti-Corruption Law Used Against South Florida Officials" »

Our Miami-Dade tax evasion criminal defense lawyers were very interested in the IRS investigation of Swiss bank UBS and its clients who are American taxpayers. That case is nearly settled, although a recent Swiss ruling may stymie matters. However, clients of at least one other bank got an unpleasant surprise recently when the New York Times ran a piece about a whistleblower at another Swiss bank, the privacy-focused Julius Baer. The newspaper reported Jan. 19 that Rudolf M. Elmer, a former Julius Baer employee, began meeting with tax authorities last week to disclose information he says shows that his ex-employer and numerous American banks knowingly helped Americans hide their assets from the IRS.

Elmer worked for Julius Baer for 15 years in Switzerland and another eight years as the COO of a branch in Grand Cayman, a Caribbean island. He claims that he discovered evidence of tax evasion in 2002, the same year he was dismissed from his job. Specifically, Elmer claims to have documents showing that American investment companies steered clients who wanted to avoid taxes to Julius Baer. The Swiss bank, in turn, backdated documents establishing tax shelters and funneled high-value transactions for American investment firms through the bank’s Caribbean entities, where they could avoid U.S. taxes. His attorney said this information helps confirm information the IRS has already recovered through its voluntary disclosure program, although the IRS declined to confirm this. The IRS did say that it is investigating banks other than UBS.

Julius Baer claims Elmer is a disgruntled former employee seeking revenge for losing a promotion, his dismissal and what he perceives as an insufficient financial settlement. It also said he stole documents while at the bank, and that he has forged documents in order to trump up evidence against the bank and its clients. Swiss authorities are investigating the stolen-documents claims, but Elmer was already jailed briefly, in 2005, for breaking Swiss banking secrecy laws. In fact, each side accuses the other of borderline violence.

As West Palm Beach tax fraud defense attorneys, we will watch the IRS closely this year to see whether it pursues a case against Julius Baer clients who pay taxes in the United States. If Elmer’s claims are true, many very wealthy individuals who were not involved with UBS will now have to face the possibility of audits, investigation and criminal charges. To make matters worse, the IRS no longer offers its special voluntary disclosure program, which gave lenience and lower fines to taxpayers who come clean and share information with the government. The agency does offer a normal voluntary disclosure program, but the special rules from last year do not apply. That’s why it’s even more important now for taxpayers considering a disclosure to get help from an experienced tax crimes defense lawyer

Continue reading "Swiss Bank Whistleblower Exposes More American Clients to Tax Evasion Charges" »

Our West Palm Beach traffic ticket defense attorneys were appalled by a news report about an elderly woman who was in jail over Thanksgiving because she failed to respond to a DHSMV letter. BrowardBulldog.org reported Jan. 11 that Gabrielle Shaink Trudeau, 78, was held in Broward County Jail for 15 days and given $2,000 bail for traffic charges. Trudeau had no previous criminal record when she failed to appear in court on charges of driving with a suspended license. She was arrested and appeared in court wearing heavy chains, prompting a sharply worded speech from the judge who released her.

Shaink Trudeau’s license was suspended in late August because she failed to respond to a letter from the DHSMV about undisclosed medical issues. A few weeks later, she was pulled over for driving too slowly and issued a ticket for driving on a suspended license. However, in mid-September, she received a letter saying her license was reinstated. Believing that letter resolved the ticket, she didn’t appear at an early October court hearing. The judge in that case issued a bench warrant for her arrest, and Broward County deputies eventually showed up to arrest her in her own kitchen.

Pretrial workers found Shaink Trudeau a good candidate for release without bail, and some were on duty during her bail hearing. But neither they nor the two public defenders on duty advocated for her or suggested that her case needed special handling. As a result, the magistrate simply set a predetermined amount of bail and zipped on to the next defendant. After the bail was set, Shaink Trudeau said she made a confused gesture to her neighbor, but nobody saw. She said she never paid the $2,000 bail during the next two weeks she spent in jail because someone kept telling her it wasn’t necessary. Finally, at her Dec. 2 arraignment, prosecutors dropped the charges because they incorrectly believed her license hadn’t been suspended when she got the ticket. It was reinstated afterward -- but suspended again while she was in jail because she failed to obtain a medical reevaluation.

We wonder how many other Gabrielle Shaink Trudeaus are out there. This case underscores multiple important problems with Florida’s justice system: overly harsh traffic laws, confusing communications and court workers who are too busy or too disinterested to notice when a case requires special attention. Many of our clients, like Shaink Trudeau, don’t realize their licenses were suspended until after they have been pulled over and ticketed. From there, it takes very little to end up arrested and jailed -- all over something small like a speeding ticket or a medical examination requirement. Without a Fort Lauderdale traffic offense criminal defense attorney or another advocate, these drivers could end up jailed indefinitely, and not all of them are as sympathetic as a 78-year-old woman.

Continue reading "Palm Beach County Grandmother Jailed 15 Days by Mistake" »

A recent article about a drug arrest caught the attention of our Fort Lauderdale drug crimes defense attorneys. The South Florida Sun-Sentinel reported Jan. 8 that the Port Everglades terminal was evacuated and a cruise ship passenger arrested after a customs agent found a “suspicious” liquid on the passenger. After sniffing the liquid, the agent reported feeling lightheaded and having an elevated heart rate. He was seen and released from the hospital, and laboratory tests of the liquid have suggested that it’s harmless. However, the passenger, 25-year-old Casey Flynn, was found with marijuana and arrested for drug possession. As a precaution, authorities also evacuated the terminal for about three hours.

The Sun-Sentinel said customs agents and the Broward Sheriff’s Office were scanning the crowd for people with outstanding arrest warrants on the morning that Flynn was disembarking from a five-day, music-themed cruise. As he was leaving the ship, an agent saw him drop a container of liquid and stopped him. After the agent reported feeling unwell, authorities evacuated about 300 people from the terminal. More of the cruise ship’s 2,750 passengers were required to wait on board the ship until hazardous materials investigators cleared the terminal to reopen. Laboratory tests found the liquid harmless, but these results were deemed inconclusive and the samples were sent for additional testing. Flynn may face charges related to the liquid in addition to the marijuana possession charge.

As Miami drug possession defense lawyers, we think Flynn may have a strong case for defending himself against both charges, if a second charge is even brought. As a rule, evidence obtained from illegal searches cannot be admitted in court. This includes evidence that forms the backbone or entirety of a criminal case, such as the marijuana found on Flynn. It’s not clear from the article whether the search was legal, but judging by the description, the customs agent may not have had probable cause to search him. After all, travelers routinely carry liquids like shampoo and mouthwash. If the search is thrown out, the marijuana possession charge, and any charge related to the mysterious liquid, may also have to be thrown out. And to charge Flynn in connection with the evacuation, prosecutors would have to show that he, and not law enforcement overreaction, was responsible for causing it.

Continue reading "Cruise Ship Passenger Held After Customs Agent Finds Suspicious Liquid" »

Just before the holidays, the Orlando Sentinel undertook an investigation that amused our Fort Lauderdale traffic ticket defense attorneys. According to the Dec. 22 article, Florida Gators team members have racked up a total of 251 traffic tickets in Alachua County, where Gainesville is located, between 2006 and 2009. Thirty-two of those cases have not yet been resolved, meaning the ticket has not been paid or the charges were not resolved. This includes traffic citations of all types, including tickets that didn’t lead to an arrest as well as high-profile incidents like the DUI arrest of Carlos Dunlap on Dec. 1. The newspaper counted citations among 96 students who participated in Gators games or were listed as participants in the organization.

The traffic offenses were not evenly distributed throughout the team, the investigation found. Twelve Gators players have seven or more tickets. By contrast, 32 have no tickets at all. Among them is quarterback Tim Tebow, as well as 11 students who haven’t yet been on campus for a full year. Most of the traffic offenses counted were citations rather than criminal charges, for offenses like speeding and expired registration. Dunlap had the only drunk driving charge, but others on the team had been arrested for repeatedly driving with a suspended license. A state’s attorney told the newspaper that this is a common problem in Florida because too many unpaid traffic tickets of any kind can trigger a suspension. A driver caught with a suspended license will be issued yet another citation for that offense -- but failure to pay that ticket could lead to arrest.

As West Palm Beach traffic citation criminal defense lawyers, we see this process at work for all kinds of drivers, most of whom are not football stars. Younger people aren’t always the most responsible drivers, which is one reason why their auto insurance rates are higher. Getting traffic tickets, and failing to pay them, is not the best behavior, but they’re not unusual for young adults getting their first taste of freedom. As the article notes, Florida’s license-suspension process is almost notorious for leading to surprise arrests, for people who had no idea that failure to pay tickets could mean jail. And many of the Gators players are famous, which means they may be victims of officers’ eagerness to show that they don’t play favorites.

Continue reading "Investigation Shows Gators Players Have 251 Traffic Citations Team-Wide" »

As Naples DUI criminal defense lawyers, we were pleased to see a recent series of articles focusing on DUI enforcement in the Daytona Beach News-Journal. Just in time for New Year’s Eve, which law enforcement says is the biggest drinking holiday of the year, the newspaper is running a three-part series on the large percentage of drunk driving cases in Volusia County that end with dropped or reduced charges. The second installment, published Dec. 28, focuses on the way intoxicated driving is handled in the city of Port Orange. The city has the highest rate of DUI arrests in the county, the newspaper said -- but also the highest rate of dropped and reduced charges.

The Port Orange Police Department has a reputation for being aggressive in its DUI enforcement and prevention efforts, and has even won an award for its traffic safety work. The News-Journal said the city has consistently had the most DUI arrests of any city in Volusia County since 2000. However, the newspaper said almost 64% of Port Orange cases involving a single-charge DUI end with dropped or reduced charges. That’s the highest rate in the county and substantially greater than the 53% rate in Daytona Beach Shores. Drunk driving defense attorneys told the newspaper that it tends to be easier to find flaws in cases from Port Orange than in cases from other cities. At least one lawyer told the newspaper he believes Port Orange police make arrests for crimes that wouldn’t result in arrests in other cities.

The article outlined some of the most common problems with DUI arrests that can lead to a dismissal or reduction of charges. Among them are mistakes with either the initial traffic stop or the administration of the breath test. Our Fort Myers drunk driving criminal defense attorneys frequently use mistakes by police during these vital phases of the arrest to help our clients. For example, as the article notes, Florida law does not compel motorists to give blood samples without a warrant. If a police officer has told one of our clients that it does, any evidence resulting from that interaction may be illegal. This can allow us to ask the judge to throw it out, weakening the prosecution’s case. Without much of a case, the prosecution is substantially more likely to offer a reduced charge like reckless driving in exchange for a guilty plea.

Continue reading "Aggressive DUI Enforcement Comes With High Rate of Dropped or Reduced Charges" »