Florida Criminal Lawyer Blog

A ruling by the U.S. Supreme Court on Tuesday greatly disappointed our Fort Lauderdale criminal defense attorneys. According to the Miami Herald, the justices ruled 5-4 that criminal defendants must explicitly tell the police that they are invoking their right to remain silent in order to stop the questioning. The ruling came in the case of a Michigan man who stayed silent for three hours of police interrogation before saying something that implicated him in a murder. After he was convicted, he appealed, arguing that he had invoked his Miranda rights by remaining silent for the majority of the interrogation. Invoking this right should stop a questioning. The Supreme Court majority disagreed, however, writing that suspects must explicitly say they are remaining silent in order to get the law’s protections.

The majority opinion was written by Justice Anthony Kennedy, who said the defendant could easily have made a simple, unambiguous statement like “I do not want to talk to the police.” By failing to do this, he failed to invoke his rights, the majority said. Criminal prosecutors were pleased, the Herald said, saying that it allowed police to know when to stop questioning without ambiguity or guessing. However, the dissenting justices said the majority’s ruling would be counterintuitive for defendants because it requires them to speak in order to explain that they intend to stay silent. Furthermore, wrote Justice Sonia Sotomayor for the dissenters, the majority’s decision allows courts to presume that suspects have waived their rights without requiring them to clearly say they intend to do so.

We wish the court had not ruled this way. In our experience as Miami criminal defense lawyers, not many defendants know their rights in the first place. When they are arrested and booked and read those rights, they are under a lot of stress and are not in a position to ask for more explanation. Then, when they get to the interrogation room -- which can be hours later -- they are under even more pressure from officers who are professional interrogators. Not surprisingly, some of them fail to understand that they can stay quiet. In that context, defendants could easily forget that they need to explicitly say they plan to remain silent. This is particularly true since, as the dissent said, it is not intuitive to ask someone to speak in order to stay silent. This decision removes yet more of defendants’ rights against police overreaching.

Continue reading "Supreme Court Rules Suspects Must Speak Up to Invoke Right to Remain Silent" »

Our Fort Lauderdale drunk driving criminal defense attorneys were very interested to read about the controversy surrounding a DUI arrest in Sunrise. According to the May 24 South Florida Sun-Sentinel, investigators have dismissed allegations that Sunrise Police Chief John Brooks intervened in the DUI stop of a politically connected resident. Herbert Turner was pulled over in July of last year on suspicion of DUI, but the charges were eventually dropped. An anonymous letter accused Brooks of intervening in the stop as a favor to Joey Scuotto, a Sunrise city commissioner who is friends with Turner. The state’s attorney’s office looked into the matter and found no wrongdoing.

According to the article, the anonymous letter claimed Turner was arrested for DUI after the July 22, 2009, traffic stop. During that interaction, the letter said, Turner called Scuotto for help. Scuotto allegedly called Brooks, who called the supervisors for the officer involved. The letter said the officer was ordered to release Turner and destroy records of the arrest. However, the state’s attorney’s investigation did not find evidence backing up this version of events. Assistant State’s Attorney Jeannette Camacho interviewed several officers who denied the allegations. Under oath, the officer at the scene said there was no arrest. Camacho said her office dropped the case for lack of evidence. If the allegations had been found to be true, Brooks could have been prosecuted for misusing his office.

As West Palm Beach DUI criminal defense lawyers, we hope the state’s attorney is right. Officials who use their influence to get themselves and their friends out of trouble are abusing their power, and law enforcement officers who go along with them are abusing theirs. If Brooks had acted to free Turner on Scuotto’s behalf, he would have been indirectly harming the authority of the police department and the rule of law. However, it’s not unusual for drunk driving prosecutions to be dropped for lack of evidence. To win an intoxicated driving case in Florida, prosecutors need to show a blood-alcohol content of 0.08 or higher, or “impairment of normal faculties.” Without a breath or blood test, the prosecution has to rely on the impairment part of the statute, which is harder to prove. For example, field sobriety tests are genuinely not very scientific or reliable, making them easy for an experienced attorney to challenge.

Continue reading "Prosecutors Find No Wrongdoing in DUI Arrest of City Commissioners Friend" »

Our Miami-Dade juvenile criminal defense attorneys were interested to see a recent article outlining the controversy over enforcement of the city’s teen curfew law. According to a May 16 article from the Miami Herald, newly stepped up enforcement of the law is causing controversy, among both teenagers and adults. The law forbids kids under 18 from being out on the streets unaccompanied after 11 p.m. on weeknights and after midnight on weekends. Its renewal was advocated city commissioner Richard P. Dunn II, who said the law is intended to “protect the children” and also to keep teenagers away from crime. Dunn encouraged the police to bring back the curfew after a series of shootings in his troubled north Miami district, including some with juvenile victims.

Miami stopped enforcing its curfew in 2004, when the state Supreme Court ruled similar ordinances in Tampa and Pinellas Park unconstitutional. That ruling criticized the curfews for targeting minorities and including improper criminal sanctions. In response, a local prosecutor said, criminal penalties were removed from the Miami law and exceptions were made; the main penalty for the teens is being picked up by parents at a police station. Nonetheless, a police officer and a group of teens both said teens aren’t staying home at night; they’re simply finding ways to stay out of officers’ sight. An attorney for the American Civil Liberties Union said she was concerned that the law was being enforced selectively, and the article noted that thus far, only teens in Dunn’s district have been cited. Dunn believes the curfew is working, noting that fights between juveniles and adults at teen clubs have stopped now that teenagers are sent home at midnight.

As Fort Lauderdale juvenile criminal defense lawyers, we’re not surprised that these fights have stopped with the curfew. Indeed, almost all crime could be stopped if no one were ever allowed on the street without the government’s permission -- but that doesn’t mean our society should be run that way. Essentially, a teen curfew law convicts all teenagers of crimes before they actually commit any. In addition to being against both the letter and the spirit of our justice system, this denies teenagers the opportunity to have independent experiences and make their own mistakes, an important part of growing up. It’s also worth noting that kids with legitimate errands, like a job that keeps them out late, could be unfairly cited. And as the ACLU attorney suggested, the law depends on police to use their judgment, which gives it potential for unequal enforcement -- according to the racial, gender and situational biases of the individual officers.

Continue reading "Opponents Call Miami Teen Curfew Law Selective and a Violation of Teens’ Rights" »

As West Palm Beach spousal abuse criminal defense attorneys, we thought a recent news report was a good illustration of some of the protections and pitfalls of the jury system. The South Florida Sun-Sentinel reported May 9 that jurors in the trial of a former Davie police officer regret acquitting him of assault on his pregnant wife. As the jury in that trial was finding him not guilty, Vally Getejanc was fleeing the country, first to Rome and then likely to relatives in his native Serbia or in Switzerland. He may have been fleeing his second trial, which was another assault case involving the same woman, who has since given birth to a son and divorced Getejanc. Jurors told the newspaper that if they had known about the second charge and that Getejanc would flee the country, they would have changed their decision.

In the first trial, Getejanc was accused of holding his service weapon to his pregnant wife’s head and threatening to kill her. Juror John Morgan said the jury thought Getejanc was guilty, but felt it didn’t have the evidence to vote for a guilty verdict. That was before Morgan and other jurors found out about the second charge, in which Getejanc was accused of pushing his wife onto the ground while she was five months pregnant. They also regretted not knowing that Getejanc’s former girlfriend sought a restraining order against him in 2008, although that request was not granted. Morgan and another juror, who asked not to be named, said they felt this information was necessary to help them make their decision. It’s not clear whether prosecutors knew Getejanc had fled the country at the time of the trial, but Morgan said knowing that would have influenced his decision as well.

Our Fort Lauderdale spousal abuse criminal defense lawyers understand that jurors are frustrated, particularly since the article suggests Getejanc will not be sought in Europe. But we’re glad the system worked as intended in this case, because there are good reasons not to share this kind of extra information with a jury. In criminal trials, prosecutors usually may not tell jurors about other charges against the accused, or other background information not relevant to the charges. The goal is to keep from prejudicing a jury, allowing them to make decisions solely about whether this particular charge was proven beyond a reasonable doubt. This helps preserve the defendant’s Sixth Amendment right to an impartial jury. It also limits prosecutors’ ability to bring up information about irrelevant or very old past convictions, or introduce personal information intended only to make the accused unpopular.

Continue reading "Jurors Say They Regret Acquitting Man Who Fled County With More Charges Pending" »

Our Fort Lauderdale robbery criminal defense attorneys were very interested to see a piece about the arrest of the son of a South Florida political figure for felony strong-armed robbery. Lois Frankel, the mayor of West Palm Beach, has publicly stated that the arrest of her 32-year-old son, Ben Lubin, was politically motivated, the Palm Beach Post reported May 3. Lubin and a friend, Jason Elden, were arrested Friday night after getting into an altercation with a supporter of the West Palm Beach police department and “media buyer” who runs a business generating “free publicity and major media exposure” for clients. That man, Jim Whelan, was carrying a sign critical of Frankel outside of the large outdoor concert SunFest. Lubin and Elden were released on their own recognizance on the following Saturday morning.

Frankel has been publicly fighting with the police department over pay, and the police department had planned a protest called “Operation SunFest” outside the concert to air its grievances. It was not clear whether Whelan, who describes himself as a “cowboy of free publicity” and wears glittery cowboy outfits to public events, was paid to appear at the protest. However, he claims he was walking down the street when Lubin, Elden and a third man tried to smash his sign and threw him up against a window. WPBF reported April 30 that Whelan gave them the signs, which may have led to the robbery charge. Frankel called that charge inappropriate, saying there was no money and no weapon involved. She said the arrest was politically motivated and the incident likely pleased Whelan, who she said was at the protest for self-promotion purposes.

Our West Palm Beach robbery criminal defense lawyers don’t have all the facts. But if the allegations of sign theft are the only allegations supporting the charge of felony strong-arm robbery, we believe the charge will be easily defended. Florida’s robbery statute outlaws “the taking of money or other property” with the intent to deprive the victim of that property, using force or violence or fear. It doesn’t require the use of a weapon or the theft of money, as Frankel implied, but it does require intent. In this case, it seems more likely that Lubin was acting out of anger after seeing a slur against his mother, not attempting to steal Whelan’s signs for personal gain, or even destroy them. Lubin and Elden may have committed a crime in the incident, but it may have been closer to assault and battery than felony robbery. The fact that Lubin is a former Marine captain with experience in Iraq and Afghanistan could also prejudice a jury in his favor.

Continue reading "West Palm Beach Mayor Calls Son's Strong-Arm Robbery Arrest Politically Motivated" »

Our West Palm Beach traffic ticket criminal defense attorneys were disappointed to read that the Legislature is considering making a statewide red light camera law. The South Florida Sun-Sentinel reported April 26 that the proposed bill would override ordinances already in use in various Florida municipalities, including Pembroke Pines, Hallandale and West Palm Beach. People caught on camera running a red would face a fine of $158, with about half going to the county where the violation took place and half going to the state. The driver would not get any license points, and the matter would be treated as a traffic infraction rather than a crime. The House voted on the proposal Friday and the Senate was expected to take up a similar bill on the day of the article.

The sponsors of the bill say it will save lives by reducing the number of people who run red lights. In fact, it’s named for Mark Wandall, who was killed at the age of 30 in 2003 when another driver ran a red light at 50 mph. However, opponents say the bill, and all red light camera laws, is intended primarily to generate more money for the state and municipalities. They point to projections saying the cameras would generate $39.3 million in their first year, then bring in $160.5 million -- more than three times as much -- by 2013-2014. Each ticket would generate $75 for local governments and $70 for the state, as well as smaller donations to other state funds. If a local government contracts with DHSMV to run the cameras, it would get $45 and the state would get $100. If the bill passes, municipalities with their own red-light cameras would have until July 2011 to meet its standards.

As Fort Lauderdale traffic offense criminal defense lawyers, we’re afraid we agree that the red-light cameras are more about making money than public safety. In fact, traffic safety researchers have conducted studies concluding exactly that. A 2008 report from the University of South Florida College of Public Health found that red light cameras actually increase accidents because motorists stop suddenly when the light changes, triggering a rear-end crash. The researchers said the auto insurance industry backs the cameras because they increase insurance premiums and thus the insurers’ profits. Another report, by the U.S. House of Representatives, found that red-light camera timers are often set too short to increase the numbers of tickets. And of course, the state law allows the state to rake in 40% or more of the revenues generated by red light camera tickets, whereas previously it had no share at all of most cities’ revenues.

Continue reading "State Legislature Considering Statewide Law Standardizing Use of Red Light Cameras" »

Our Miami-Dade traffic offense attorneys were interested to note an article highlighting a heightened enforcement effort by Florida Highway Patrol. The South Florida Sun-Sentinel ran an article April 19 saying FHP troopers plan to pay extra attention this week to enforcing speeding laws in the area of Interstate 595 that is currently under construction. Those areas, like all work areas in Florida, are subject to a 55-mph speed limit, lowered from 65 mph, for the safety of workers on foot. Violating that speed limit will incur double the usual fine, which means a speeding ticket costing $405 for someone caught going 15 to 19 mph over the speed limit, and $455 for someone driving 20 to 25 mph over.

Interstate 595 is under construction for about 10 miles between Davie Road and Nob Hill Road, said the newspaper. The project is supposed to ease traffic by adding reversible lanes, new outside lanes and ramps. However, the construction has changed the road commuters confront five days a week by closing some shoulders and narrowing the lanes. And of course, crews will be working on the edges of the road and behind barricades. The goal of the stepped-up enforcement, which coincides with Work Zone Safety Awareness Week, is to prevent injuries to both the road workers and the drivers in serious accidents. Flashing signs will warn drivers when they’re approaching the reduced-speed areas. Enforcement will be more intense from 10 p.m. to 6 a.m., Sunday through Thursday, because those are the times when crews can close lanes altogether for work.

Preventing unnecessary accidents is a worthwhile goal. But as Fort Lauderdale traffic ticket defense lawyers, we suspect that the increased enforcement will have negative consequences for some drivers. With the economy the way it is right now, many people simply can’t afford a ticket that costs $400 or more. Those drivers may deal with the ticket by simply ignoring it. This saves money in the short term, but ignoring a speeding ticket in Florida has long-term consequences. A speeding ticket puts points on your license -- four points for speeding up to 15 mph above the limit and six points for 16 mph or more. Your license is suspended at 12 points, so it only takes a few violations to lose your license for a year. Once that happens, you can be pulled over at any time and arrested for driving on a suspended license, sometimes before you even realize there’s a problem. Losing your license, with or without a subsequent arrest, can also throw your work, home and social life into chaos.

Continue reading "State Troopers to Crack Down on Speeding in 595 Construction Work Zone" »

As Fort Lauderdale sex crimes criminal defense attorneys, we were interested to note that two young men were recently arrested in Lakeland for consensual sexual activity with younger girls. Eric Arce and Kyle Wohlfarth-Simmons, both 18 and baseball players for Lakeland High School, are accused of lewd battery on two unnamed girls, ages 14 and 15. Arce is also accused of lewd molestation. The Lakeland Ledger reported April 8 that they were arrested the preceding Friday night after a deputy found them in a truck with the semi-clothed girls, making out. The girls told the deputy that the activity was entirely consensual, but both young men were arrested and jailed until they made bail on the following Sunday.

The Polk County Sheriff told the newspaper that the ages of the people involved left his deputy no choice but to arrest the young men. After he did, said Sheriff Grady Judd, the girls’ parents were upset and chose to go through with prosecution. Florida state law does not allow minors under the age of 16 to consent to any sexual activity, Judd said. If the girls had been 16 or older, there would have been no arrests. However, if everyone involved had been 14 or 15, all four would have been arrested, he said. As things stand, Arce and Wohlforth-Simmons are both facing second-degree felony charges. If convicted, they could be required to register as sex offenders, the State’s Attorney’s office told the newspaper.

Our Miami sex crimes criminal defense attorneys believe this is a serious flaw in Florida’s handling of underage sexual activity. It’s clear that some age of consent is appropriate, but setting the age of consent at 16 creates unfair and potentially life-altering legal situations. By allowing the older half of a teenaged couple to be criminally prosecuted over the protests of the “victim,” the legal system throws kids into jail for doing the same things their friends are doing legally. These young men are accused of lewd battery, which is the same crime charged against defendants who force people under 16 into prostitution. If convicted, they face up to 15 years in prison, and Arce could face double that time if also convicted of lewd molestation. The State’s Attorney’s office is right that they could also be registered as sex offenders, although Florida’s “Romeo and Juliet” law would allow them to petition for removal.

Continue reading "High Schoolers Criminally Charged for Consensual Making Out With Younger Girls" »

Our West Palm Beach assault criminal defense attorneys were very interested to read last week about the criminal allegations against a Pittsburgh Steelers receiver. The Pittsburgh Post-Gazette reported March 31 that Orlando police will not file charges against Santonio Holmes for an alleged attack on Anshonae Mills. Mills is a 21-year-old college student who sued Holmes in March, alleging that he threw a glass at her. Her lawsuit also names the owner of the Orlando nightclub Rain, where the incident happened, for failing to protect her. The lawsuit claims Holmes offered to pay Mills to keep quiet and pressured her, along with club security officers, not to file charges.

Holmes denies all of the claims made by Mills. In fact, they gave conflicting stories on the night of the March 7 incident. Holmes and Mills argued over a seat at the VIP lounge of the nightclub. Holmes said he stepped away and found his seat occupied by Mills, who refused to give it up, grabbed his wrist and used a racial slur. He says another woman threw the glass at Mills, while Mills says Holmes himself threw the glass. The police report and the lawsuit both say the glass cut Mills on her cheek, below her eye. The police report further says that when the officer said he would file charges against Holmes, Mills asked to speak to him alone, smiled and rubbed his face before returning and giving a handwritten statement declining to file charges.

As Fort Lauderdale battery criminal defense lawyers, we believe it’s important that the Orlando police have declined to pursue any criminal charges in this incident. When officers drop a case, typically, it’s because they believe they don’t have enough evidence to get a conviction in court. The standard of proof is higher in criminal cases than it is in civil cases; “beyond a reasonable doubt” rather than “a preponderance of the evidence.” That’s important because a wrongful criminal conviction might send someone to prison. However, it means that people who aren’t satisfied with the criminal justice system have an opportunity to try again through a lawsuit. In this case, we suspect that law enforcement has good reason for not pursuing the criminal case. When the civil case goes before a jury, the attorneys for Holmes will undoubtedly make a note of that decision.

Continue reading "Orlando Police Decline to File Charges Against Steelers Player Being Sued for Assault" »

As Miami-Dade drunk driving criminal defense attorneys, we were disappointed to read about the DUI arrest of Miami Dolphins running back Ronnie Brown. Brown, a native of Georgia, was arrested in that state March 20. The South Florida Sun-Sentinel reported March 25 that the Associated Press had a police report saying Brown’s blood-alcohol content tested at 0.158, using a breath test administered by a police officer in Marietta, Georgia. Brown, 28, was in town to attend an anniversary dinner for his parents. He has no previous arrest record, and the legal problems stemming from the arrest were not expected to stop him from playing in the NFL’s next season, or even in the offseason voluntary training that was slated to begin March 22.

According to the Miami Herald, Brown was stopped at 4:29 a.m. on March 20 for making a lane change without signaling. He and a cousin were reportedly coming home from an after-hours club. The newer Sun-Sentinel report said the officer observed Brown’s car drifting into oncoming traffic two times, one of which could have caused a crash. The officer also reported that Brown was driving at 50 to 60 mph in a 35-mph zone. Brown performed poorly on field sobriety tests and showed signs of intoxication, the officer said. Brown told the officer that he’d had foot surgery six weeks ago -- actually in November -- but had gone running the day before. The 0.158 BAC was the lower of the two readings he gave.

The report said Brown was upset about the arrest and had hired an attorney to help. As Fort Lauderdale DUI criminal defense lawyers, we think that was a very good idea. Although there is a BAC reading in this case, the other evidence in the case is weak. Despite their widespread use, field sobriety tests aren’t very reliable. Studies have shown that they can be difficult even for sober people, and when tests are considered accurate, they must still be administered properly. Similarly, the officer’s observation that Brown seemed intoxicated cannot be considered hard evidence because it is a subjective observation. The BAC test is indeed hard evidence, but the prosecution may not be able to use it if it’s tainted by poor handling or administration, or if the original traffic stop was not lawful. In short, there are many possible defenses open to an experienced attorney in a case like this.

Continue reading "Police Say Dolphins Player Arrested for Drunk Driving Had BAC Twice Legal Limit" »

One teenager is charged with attempted first-degree murder and another is charged as an accessory in the brutal beating of a third teen in Deerfield Beach, the Miami Herald reported March 22. Our Miami murder criminal defense lawyers were disturbed to read about the case of Wayne Treacy, 15, and Kayla Manson, 13, who are both facing serious criminal charges in the beating of 15-year-old Josie Lou Ratley. Ratley is hospitalized in critical condition, has had parts of her skull removed and is in a medically induced coma after Treacy allegedly kicked her in the head at least seven times. Manson is being charged as an accessory for pointing Ratley out to Treacy in a crowd of middle school kids waiting for buses.

The dispute started over text message. Treacy was dating Manson, who was a friend of Ratley. Treacy was not in school the day of the beating, but texted Ratley in order to reach Manson, who didn’t have a phone. The two traded messages back and forth until Ratley said something about Treacy’s older brother, who had committed suicide last year. Treacy’s public defender said Treacy was the one who found his brother hanging from a tree. According to Broward sheriff’s deputies, Treacy got angry, put on steel-toed boots and bicycled to the school. He texted several people that he was going to kill Ratley. When he arrived, he tried to attack another person until Manson stopped him and pointed out Ratley waiting for the bus. He rushed over and knocked her over, banging her head into the concrete or his shoes at least 12 times. A teacher broke it up, and Ratley was airlifted to the hospital.

As Fort Lauderdale murder criminal defense attorneys, we'd like to discuss the extremely serious charges in this case. The article says Treacy may be charged as an adult with attempted first-degree murder, and Manson as an accessory to that crime. Based on our extensive experience with those offenses, if we were their attorneys, we would start by advocating strongly to keep both of them in the juvenile justice system. By staying out of adult court, the two can avoid facing penalties of up to life in prison if they are convicted. If Treacy were tried as an adult anyway, we would still move to have him treated as a Youthful Offender. This status allows the court to hand down a sentence less severe than the adult penalties for attempted first-degree murder. In the past, we've been successful with this approach, which involves complex research and a clear understanding of the juvenile and adult justice systems.

Continue reading "Deerfield Beach Teens Charged With Attempted Murder in Girl’s Beating" »

The Fort Lauderdale DUI defense attorneys at Balliro are proud to announce that we are a sponsor of the annual Swamp Stomp Miami. Held on Virginia Key, the concert is an eclectic collection of some of South Florida's finest bands. Just like with our previous concert sponsorship, we believe it's important for concert-goers to have a great time -- but avoid drinking and driving.