Tampa Bay Criminal Defense Lawyer Blog

May 18, 2012

Tampa Bay teacher accused of drug trafficking

An article in today’s Tampa Bay Times talks about a former Tampa teacher who has been arrested for drug trafficking after he was accused of stealing over 9000 hydrocodone and 7000 alprazolam pills!

The man worked as a technician for CVS pharmacy and took these pills over a period of just over two months. Previously, he had been a teacher at a Lutz high school but the principal has already stated that the man would not be coming back to teach.

This article brings up two important considerations: 1. How this current “pill scourge” can trap anyone and 2. the role of sentencing guidelines for trafficking amounts of illegal drugs.

1. Drug addiction may be more common then you can imagine: As a criminal defense lawyer, I get to see the real cost and face of drug addiction everyday. The common myth is that most drug addicts were always poor, uneducated and from the proverbial “wrong side of the tracks”. In reality, drug addiction can and does strike rich, poor, unemployed, doctors, lawyers, teachers and all professions.

The state of Florida has spent millions of dollars studying the patterns of drug addiction. The most important trend they found was that drug use/addiction has been starting at a younger age. These stats found prescription drugs in particular were being abused at a much earlier rate then just a few years before. This early experimentation that often turns to abuse is what many experts believe is causing the rapid increases in pill addicition.2. Sentencing guidelines for trafficking and the “war on drugs”…what you need to know.

When most people think of drug trafficking, they often imagine a drug kingpin such as “Scarface” or a heavily organized empire selling illegal narcotics. In reality, a person can be charged with drug trafficking not just on a sale but by merely possessing a controlled substance in a sufficient amount to trigger the trafficking charge! With certain drugs, it does not take much at all to be charged with drug trafficking. Florida statute 893.135 goes into great detail about the weights and punishment that may result from its violation.

In particular section (c) shows how few pills it actually takes before the “minimum mandatory” prison time and large fines become reality. This section reads as follows:

(c)1. Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of any morphine, opium, oxycodone, hydrocodone, hydromorphone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin, as described in s. 893.03(1)(b), (2)(a), (3)(c)3., or (3)(c)4., or 4 grams or more of any mixture containing any such substance, but less than 30 kilograms of such substance or mixture, commits a felony of the first degree, which felony shall be known as “trafficking in illegal drugs,” punishable as provided in s. 775.082, s. 775.083, or s. 775.084. If the quantity involved:

a. Is 4 grams or more, but less than 14 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 3 years, and the defendant shall be ordered to pay a fine of $50,000.

b. Is 14 grams or more, but less than 28 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 years, and the defendant shall be ordered to pay a fine of $100,000.

c. Is 28 grams or more, but less than 30 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 calendar years and pay a fine of $500,000.

In reality four gram’s weight worth of these drugs are not much. This is the weight of 5-6 pills, a weight that could put a person in prison for three years and give them a $50,000 fine! Another important point is that this weight is not just the drug itself, but any fillers it is combined with such as aspirin or mixers! For instance, if a person is caught with 6 MG of oxycodone pills they could be charged with drug trafficking. In reality, the actual amount of oxycodone that would be possessed would probably be well under a gram, the rest would be a combination of fillers and mixers.

Coming up, another blog post will go into more detail about drug trafficking sentences and possible ways to avoid or lessen these “minimum mandatory” sentences.
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May 17, 2012

A Pinellas County pill mill doctor faces the music

by Blake & Dorsten, P.A.

A recent article in the Tampa Bay Times discusses pill mills and the abuse of prescription drugs .

The man, Dr. Sanjeev Grover, was accused of selling prescriptions and pain pills illegally. What finally trapped the “good doctor” was that he sold over 5000 pills to an undercover DEA officer in exchange for $10,000.

Last October, reality finally caught up with Dr. Grover when the DEA arrested him along with several other Tampa area doctors, dealing in prescriptions or pain pills. The result? The doctor has already lost his medical license and can face up to 20 years in federal prison after he pled last March to federal charges of distributing oxycodone.

According to the suspect, his crimes could be boiled down into one word…greed.

During an interview with a local newspaper, the man told the reporter how he ended on his path to ruin. After being raised in India, he moved to the United States and went to medical school. He eventually became a professor at the West Virginia school of medicine. After deciding he needed to spend more time with his family, they moved to Florida in 2004 where he took over a pediatric practice and was hit by reality.

His large overhead and stiff competition resulted in his practice going under and his family losing his home in 2008. He did not know what he was going to do until a fellow medical professional offered him a job at a local pain clinic. Expecting a legitimate medical practice, what he found shocked him.

Patients from all over the country and state. Nonspecific complaints, such as a “sore neck” or “sore back”. Constant begging for oxycodone or other prescription drugs. By the time the doctor realized he was working at a so called “pill mill”, it was too late. Making easy money of $5,000 or more per week proved too hard to resist.

In December 2010, Dr. Grover learned about a new pill mill in Palm Harbor. He began to work there, unaware that the feds were watching this business closely. The clinic was finally shut down in January, in part due to Dr. Grover’s actions.
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May 9, 2012

Clearwater, Florida: 20 most commonly asked questions regarding sealing and expunging criminal record. By Rex Blake, Esq.

by Blake & Dorsten, P.A.

At Blake & Dorsten, P.A. many of our clients have questions regarding the sealing or expunging of their criminal records. Generally speaking, if you have received a “withhold of adjudication” or have had your case dropped including a not guilty verdict of trial, you may be eligible to seal or expunge your criminal record. It is important to consider sealing/expunging the record because future employers may do a back ground search on you to determine your history. By sealing or expunging your record, you can testify under oath that the arrest never occurred.

Florida Statutes section 943.0585 and Florida Statute Section 943.059, set forth the criteria that must be met in order to be eligible to have an adult criminal history record sealed or expunged. In addition, these statutes also state that in order to have a criminal history record sealed or expunged within the State of Florida, an individual must first make application to the FDLE for a Certificate of Eligibility. Please note that the issuance of a Certificate of Eligibility does not mean that your criminal history record will be ordered sealed or expunged. It merely indicates that you are statutorily eligible for the type of relief that is being requested. The criminal history record of a minor may also be eligible for other forms of expunction, I address this issue below:

After speaking with clients throughout the years as a Clearwater and St. Petersburg Criminal Defense attorney, I have complied the 20 most frequently asked questions our clients have regarding their sealing/expunging their criminal record.

1. How do I get my records sealed or expunged?
The lawyers at Blake & Dorsten, P.A. have handled hundreds of sealing and expungment applications. A free consultation with them can assist you with the process. The FDLE provides applications for Certification of Eligibility to the Clerk of Courts in all sixty-seven (67) counties throughout the State of Florida. The lawyers at Blake & Dorsten, P.A. have the applications prepared and ready to file for you.
A. Section A of the application must be completed and signed in the presence of a notary public.

B. The applicant must be fingerprinted by authorized law enforcement personnel or a criminal justice agency. The fingerprint card must include the applicant’s name, race, sex, date of birth, social security number, and signature, prior to submission to FDLE.

C. The applicant must provide a certified disposition of the case that he/she is applying to have sealed or expunged.

D. A NONREFUNDABLE money order or cashier’s check for $75.00 made payable to the FDLE must accompany the application.

E. If you are requesting an expunction of a criminal history record, the State Attorney or Statewide Prosecutor with jurisdiction over your case must complete Section B of the application. (If not completed, the application will be processed as a sealing of your criminal history record).

F. A NONREFUNDABLE money order or cashier’s check for approximately $65.00 must also be paid to the clerk of the court in the competent jurisdiction. The price various depending on the charge and the situation.

Once FDLE has issued the Certificate of Eligibility to seal or expunge a criminal history record, the next step is to file a petition for relief, along with the Certificate of Eligibility and the required affidavit, in the court in the county of the arrest. The issuance of the Certificate of Eligibility is not the final step in the Sealing/Expunction process, nor does it guarantee that a criminal history record will be sealed or expunged. The final decision to Seal/Expunge your criminal history is placed by law in the sound discretion of the court.

2. Why do I have a criminal history record when the charges against me were dropped/dismissed?
The Florida Legislature has determined that Florida criminal history records are public unless the record is sealed or expunged. See Florida Statute Section 943.053(3), which provides for public access to criminal history records. The term “criminal history information” is defined, tracking the federal definition, at Section 943.045(4), Florida Statutes. A criminal history record is created when a person is arrested and fingerprinted, and includes the disposition of that arrest, whether it is a conviction, acquittal, dismissal of charges before trial, or other disposition.

3. Should I obtain a copy of my criminal history record prior to applying for a Certificate of Eligibility?
Under Florida and federal law, an individual has the right to request a copy of his or her criminal history record for purposes of review, to ensure that it is both accurate and complete. This process is known as a Personal Review. The requestor may examine the record obtained through Personal Review for accuracy and to challenge any information contained within the criminal history record that the record subject believes is inaccurate or incomplete. No charge is assessed by FDLE for this service. See Florida Statutes Section, 943.056. A Personal Review allows an individual to determine which, if any, date(s) of arrest the applicant will be eligible to have sealed or expunged. However, obtaining a personal review is not a prerequisite to applying for a certificate of eligibility to seal or expunge a criminal history record. The lawyers at Blake & Dorsten, P.A. often have records to the clerk records and criminal history. We can advise you of your past record and whether you would be eligible for a sealing or an expungement.
4. What is the difference between having a criminal history record sealed vs. expunged?
When a criminal history record is sealed, the public will not have access to it. Certain governmental or related entities, primarily those listed in s. 943.059(4)(a), Florida Statutes, have access to sealed record information in its entirety.
When a record has been expunged, those entities which would have access to a sealed record will be informed that the subject of the record has had a record expunged, but would not have access to the record itself without a court order. All they would receive is a caveat statement indicating that “Criminal Information has been Expunged from this Record”.

5. When is my criminal history record sealed or expunged?
Once an order has been issued by the court of competent jurisdiction to seal or expunge your criminal history record and a certified copy of this order has been received by the FDLE, it will be complied with in accordance with state statutes. In Pinellas County, Florida, the chief Judge will sign the order sealing or expunging your recod.

6. How many dates of arrest can I have sealed or expunged?
The eligibility criteria for an applicant to have a record sealed or expunged include the requirement that the applicant be able to attest that he or she has never previously had a record sealed or expunged in Florida or in another jurisdiction. This means, in effect, that a person may only seal or expunge one arrest record in one proceeding. More than one record may be sealed or expunged in the same proceeding if the court, in its sole discretion, finds the arrests to be directly related.

A record that is initially ineligible for expunction (e.g., where adjudication is withheld) may become eligible after it has been sealed for 10 years. However, a person may not seal or expunge one arrest record and then, later and in a different proceeding, ask to have a different arrest record sealed or expunged. An expunction or sealing which occurs automatically or by operation of law, without any action on the part of the record subject, is not considered a prior expunction or sealing for this purpose. By law, s. 943.0582(8), Florida Statutes, a juvenile diversion expunge does not prevent the record subject from seeking a judicial expunction or sealing under s. 943.0585 or s. 943.059, Florida Statutes.
7. What charges may not be sealed?
A list of charges that may not be sealed when adjudication is withheld is included with the application package, and is also enumerated in s. 943.059, Florida Statutes. (The same listing is found in s. 943.0585, because the specified offenses may not be expunged either.) In addition, if a person has been adjudicated guilty of any criminal offense in any jurisdiction (or adjudicated delinquent for any felony or for certain specified misdemeanors), whether or not related to the charge(s) that the person is applying for, the record is ineligible for sealing and the application will be denied.

8. What charges may be expunged?
The same eligibility requirements which apply to sealing also apply to expunction, with certain additional requirements. Any charge, which resulted in a withholding of adjudication or in an acquittal (not guilty verdict) after trial, may not be expunged unless and until it has first been sealed for at least 10 years. See s. 943.0585(2)(h), Florida Statutes. A charge which was dismissed before trial (e.g., no information, nolle prosequi, no bill, etc.) may be expunged immediately provided all charges related to the arrest were so disposed of, and the record is otherwise eligible.

9. Can I appeal the denial of my application for a Certificate of Eligibility to seal or expunge my criminal history record?If you believe that the denial of your application for Certification of Eligibility is in error, you may ask that the denial be reviewed. If the denial is based on information in your criminal history record that is believed to be in error or incomplete, the procedure for reviewing and correcting that record is given in Rule 11C-8.001, Florida Administrative Code. If you agree that the criminal history information is correct, but believe that the law has been incorrectly applied or interpreted in your case, you may appeal the decision of the FDLE. The appeal of a denial is to be handled within the court of competent jurisdiction.

10. If I receive a full pardon can I have my criminal history record sealed or expunged?
Unless the pardon indicates on its face that it entitles the record subject to seal or expunge his or her criminal history record, the granting of a full pardon does not remove any condition of ineligibility for sealing or expunging a criminal history record imposed by the disposition of the pardoned offense. See R.J.L. v. State, 887 So.2d 1268 (Fla. 2004).

11. If I receive clemency, will my record be automatically expunged?
No. Neither a full pardon, nor any other type of clemency, will automatically expunge or facilitate the expungement of your criminal record. You should contact the lawyers at Blake & Dorsten, P.A. for more information on the expungement or sealing of records after a person has received clemency.

12. If I have my civil rights restored, will my criminal history record disappear?
No. In order to have your civil rights restored you had to have been convicted (adjudicated guilty) of a felony that was the basis for your loss of civil rights. Persons who have been convicted (adjudicated guilty) of a felony are not eligible for a seal or expunge of their criminal history under Florida law, regardless of whether their civil rights have been restored.

13. Do I have to apply for a Certificate of Eligibility to have my juvenile criminal history record sealed or expunged?The following considerations are relevant to the decision whether to seek the judicial sealing or expunction of a juvenile criminal history record. Prior to October 1, 1994, juvenile arrest records were not maintained by FDLE in the criminal history record system. Juvenile arrests for felonies prior to October 1, 1994, and juvenile arrests for misdemeanors prior to July 1, 1996, are not available to the general public unless the juvenile was treated as an adult. Juvenile records are subject to an abbreviated retention schedule, if certain qualifications are met, which results in the automatic expunction of the record after a specified period, under s. 943.0515, Florida Statutes. Juvenile defendants who successfully complete a qualified diversion program, as set out in s. 943.0582, Florida Statutes, may be eligible for expunction of their record as the term is defined therein. If a person wishes to pursue the judicial sealing or expunction of his or her juvenile record, the eligibility criteria and procedure, which are similar to those for adults, are found in s. 943.059 and s. 943.0585, Florida Statutes.

14. If I have a criminal history record sealed or expunged in another state or jurisdiction, am I still eligible to have a criminal history record sealed or expunged within the State of Florida?If the other record were sealed or expunged by operation of law (administratively or automatically, without intervention or action by the subject of the record), then the out-of-state sealing or expunction would not prevent you from being eligible to have a record in Florida sealed or expunged. However, if the record was sealed or expunged because you petitioned to have it done by a court order, or otherwise actively sought the sealing or expunction, then you would not be eligible to have another record sealed or expunged.

15. How long does it typically take to receive a response from my application for a Certificate of Eligibility?
The current processing time will take at least (30) working days or less from the date the application is received, processed, and mailed back to the customer. However, it then must go to the clerk of court and the Judge in the competent jurisdiction. This can easily take another (30) working days or longer to process the application. We often tell our clients that it will take six to nine months from the beginning to the end of the process.

16. If I had a criminal history record sealed or expunged, and then had it vacated, could I apply to have a new date of arrest sealed or expunged?As s. 943.0585(2)(f) and s. 943.059(2)(e), Florida Statutes require that an applicant have never secured a prior sealing or expunction of a criminal history record under current or former law, having an earlier seal or expunge order vacated does not remove this disqualification.

17. Will FDLE notify the agencies involved with my case that the record has been sealed or expunged?
If the record is eligible and the court grants relief, FDLE will comply with the certified court order and seal or expunge the appropriate criminal history record. Once FDLE seals or expunges the criminal history record, a notification letter will be sent by FDLE to the arresting agency or agencies involved with your case. The notification letter is to inform the agencies that FDLE has received and has complied with the order in accordance with the seal or expunge statutes.

18. What type of background check is conducted by FDLE to determine my eligibility to have a criminal history record sealed or expunged?FDLE conducts criminal history record checks in Florida through the Florida Crime Information Center (FCIC), national record checks through the National Crime Information Center (NCIC), local Court databases, and driving history checks through the Florida Department of Highway Safety and Motor Vehicles (DHSMV). These databases are utilized to determine the eligibility of an individual to have a criminal history record sealed or expunged.

19. Why is the Florida Department of Highway Safety and Motor Vehicles checked to determine my eligibility to have my criminal history record sealed or expunged?A criminal offense such as DUI, Driving While License Suspended/canceled/revoked, or reckless driving may appear in the DHSMV database even though it may not be entered in the criminal history record system maintained by FDLE. Although non-criminal traffic offenses (such as careless driving) have no affect on eligibility to seal or expunge a criminal history record, an adjudication of guilty for any criminal offense renders the record ineligible for either form of relief.

20. Who should receive a copy of the order to seal or expunge a criminal history record?
If the record is eligible and the court grants relief, the Clerk of the Court by statute is responsible to certify a copy of the court order to the State Attorney’s Office or the Statewide Prosecutors Office and the arresting agency or agencies. The arresting agency is then responsible for sending a certified copy of the court order to all agencies that are known to have received the criminal history information. In addition to FDLE, these agencies may include the Department of Corrections, Teen Courts, and Department of Juvenile Justice.
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May 4, 2012

Florida Drug Offender Probation: What you need to know BEFORE agreeing to the terms.

by Blake & Dorsten, P.A.

Many Florida residences are often accused of crimes involving the illegal possession of controlled substances defined under Florida Statute section 893.13. Often people accused of these crimes are first time offenders or have often score non-state prison under the sentencing guidelines. Citizens scoring non-state prison are eligible for a term of probation that includes supervision by the Department of Corrections. A term of probation is often a very appealing offer from the State Attorney’s Office because in can used in place of jail or a prison offer or insure that the client is not a convicted felon. However, many people are placed on drug offender probation for drug offenses without knowing the strict conditions imposed during the super vision period. Additionally, people do not fully understand the ramifications of violating drug offender probation. It is essential that people placed on probation understand the requirement and the consequences of the supervision BEFORE he or she agrees to go on probation.

Drug offender probation is defined in Florida statute section 948.20. If it appears to the court upon hearing that the defendant is a chronic substance abuser whose criminal conduct is a violation of Florida statute section 893.13(2)(a) or (6)(a), the court may either adjudge the defendant guilty or stay and withhold the adjudication of guilt; and, in, either case it may stay and withhold the imposition of a sentence and place a defendant on drug offender probation. This allows people accused of drug crimes to plea to the charge and not be a convicted felon. However, strict requirements must be followed. Under Florida Statute 948.20(1) drug offender status shall include surveillance AND random drug testing.

What does this mean? If you agree to a term of probation, the probation officer will have the opportunity to search your house at any time without first obtaining a warrant from a Judge. This means at any time for any reason, your probation office can show up to search for any illegal items. You have essentially waived your rights to unlawful search and seizure afforded by the constitution. Second, under Florida Statutes you are REQUIRED to be randomly drug tested. You can expect to check into a website on a daily basis and if your number is called you must provide a sample of your urine. Failure to do so in a timely manner may violate your probation.

Additional conditions of drug offender probation may include a curfew from 10pm to 6am. Probationers may not leave the county without permission of his or her probation officer. Client’s placed on probation must pay $55 per month in costs of supervision. All financial requirement including fines and court costs MUST be paid by the end of the term. Failure to do so may result in a violation of probation warrant.Any violation of these terms of conditions will lead to a violation of probation warrant issued for your arrest. Once the warrant is issued, you will be entitled to a bond and will be held in custody on a zero bond status. This means no matter how much money you may have you are not eligible to be bonded from jail. You may be plucked from your home or car and be sitting in the jail for days or weeks before a Judge agrees to give you a bond. In many cases, if you violate your probation you may do more jail time than originally offered for your sentence.

Before you decide to take a probation sentence, be familiar with the terms and requirements BEFORE you agree to take the deal. In many cases, people serve longer jail sentences on a violation of probation than the jail offer on their original charge. Agreeing to be placed on probation can be a wise decision. It may keep you from being a convicted felon and could keep you out of jail. However, be aware of the strict conditions imposed on probation. Understand that any violation of probation can land you in jail without the possibility of bonding out. It is important to realize that people often serve longer jail sentences for a violation of probation charge than on the offer on the original underlying drug charge. If adjudication was withheld, an admission of the violation of probation will erase all the hard work and effort to keep from being a convicted felon.
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May 2, 2012

Pinellas County jail visitation ends in arrest after visitor “lets it all hang out”

by Blake & Dorsten, P.A.

A humorous story posted in the Tampa Bay Times website about a jail visitor. This man was visiting his incarcerated wife over video when he decided the video visitation should be a XXX one. The man, 46, was arrested for exposing his sexual organs, a misdemeanor. This carefree husband was booked into Pinellas county jail…the same place where this exposure took place.

While this story is humorous, it brings up a broader point. What rights do visitors have in jail? That depends on if the visitor is a loved one or if he/she is the accused’s criminal defense lawyer. As a Pinellas criminal defense attorney, we are able to speak with our incarcerated clients face-to-face. Because of the attorney-client privilege, the meetings we have with clients or prospective clients can NOT be revealed, taped or recorded to ANYONE without the client’s permission. This means when we are visiting a client who is locked up, we have special areas where there is no sound or video recordings and the guards can not listen in to our conversation. This protects both the client and the legal process.

Lastly, this article is another reminder of what else NOT to do if one is incarcerated. While exposing your sexual organs is never a good idea when in jail, one must be careful to not expose any information on their case to cellmates. The jail can be a lonely place and it is common to reach out to other people locked up with you. However, if one starts giving information about their charges, these same “friends” may quickly flip on you. These “informants” may testify against you in your criminal case, hoping that their testimony may convince the state to depart from their guideline sentence. The thinking is, if an informant helps the state put away a criminal on a big crime (such as murder or a sexual assault), then the state may agree to reduce the informant’s sentence.

With that in mind, a friendly reminder that if one is ever so unfortunate as to be a “guest” in the local county jail, keep your pants up and your mouth shut!
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April 27, 2012

Tampa Bay Crime and Bonds- what you should know

by Blake & Dorsten, P.A.

A thank you for Patrick Henry, guest blogger, who wrote much of this entry. So much of being a St. Petersburg criminal defense lawyer involves not just helping clients with criminal matters. Many times a client needs a less expensive, reliable way to bond out of jail. A bondsman can definitely help in that regard. But how can a bondsman help and what is his/her role in the judicial process?

The Role of Bail and Bail Bonds Agents
The operation of the criminal justice system is foreign to most people. Courts and jails are intimidating places that instill fear and anxiety in people who are there because they are accused of committing a crime. The first questions most people who have been arrested ask their criminal defense attorney is, “How do I get out of jail?” and “How do I do it quickly?”

Bail is the process through which a person’s future appearance in court is assured by making release from custody conditioned upon the accused person depositing a sum of money, in an amount decided by the judge. The bail is forfeited if the person fails to return to court.Most jurisdictions have a bail schedule for minor offenses (such as possession of marijuana or disorderly conduct) posted at the jail or police station to allow a person to be released after posting the designated amount. This avoids the need to bring the arrested person to a courthouse to have a judge set bail.

A judge will set higher bail for offenses that are more serious (such as an aggravated battery or drug trafficking charge), or where the person under arrest has a prior criminal record. The U.S. Supreme Court has ruled that bail is not a right guaranteed under the Constitution. According to the Supreme Court, all the Constitution requires is that bail not be for an excessive amount. This leaves it solely to the discretion of the judge hearing the case to decide the amount of bail to be posted to secure a person’s release. In other words, for the truly serious crimes such as murder, no bond needs to be set at all.

If bail is set in an amount that the accused person can afford to pay, being released from custody is accomplished by depositing cash with the court. If a person does not have the money to post the bail, they will usually seek the services of an experienced bail bonds agent.

Bail bonds agents are licensed to do business in most states. For a non-refundable fee, usually set by the state as a percentage of the amount of the bail, the bail bonds agent posts a bond with the court to secure the person’s release. The bail bonds agent is responsible for the appearance of the accused person at all future court proceedings, or the bond posted by the agent is forfeited. This website has a more in-depth guide for bail bonds you can download.

To the person sitting in jail who does not have enough money to post bail, the bail bonds agent’s fee is a small price to pay to obtain freedom.
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April 18, 2012

A new Blood-alcohol content (BAC) record?

by Blake & Dorsten, P.A.

A story that is so scary its funny… According to an article on the website guyism, we may have a new BAC record…

The man, James Henderson, was first arrested for public intoxication when he was found passed out in a ditch. His Blood-alcohol level was an astonishing 0.552%! This is amazing as it is generally thought that death can occur when the BAC gets in the high 0.200s or 0.3. You generally fall into a coma if your BAC reaches around .400. What makes the story more interesting is that not only did this man make a full recovery but he was again arrested on a disorderly intoxication charge. That time he had a .297!

As a St. Petersburg DUI defense lawyer, I have often been asked to explain BAC and what the limits are in Florida to be convicted of a DUI. BAC (Blood-alcohol content or sometimes breath-alcohol content) is basically measured as a percentage of alcohol in a person’s blood.Generally, in Florida a .08 BAC is considered impaired. This means that 1/8 of one percent of a person’s blood is alcohol, by volume. A BAC of .15 or greater is enough to give you enhanced DUI penalties. These penalties generally consist of enhanced fines, more jail time, and a breathalyzer machine being installed in your vehicle. You might be surprised but a .08 BAC often does not equal much alcohol. A slender woman may only need 1-2 glasses of wine before she reaches that limit!

Finally, just as you can be found not guilty with a BAC of .08 or higher, you CAN be convicted of a DUI or Driving under the influence, even if your BAC is below that standard. How a DUI suspect acts, looks, performs certain tests (field sobriety exercises, a subject for another blog) and dozens of other factors along with a potential BAC goes into determing if someone was driving under the influence…
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April 3, 2012

Florida “Stand Your Ground” Law and Trayvon Martin, Part Two

by Blake & Dorsten, P.A.

In part one of this blog, we discussed the history and background of Florida’s “Stand Your Ground” law and what it means. In this section, we will be discussing both the potential charges Mr. Zimmerman, the alleged shooter, may be facing as well as if this law itself even applies…What are the possible charges that George Zimmerman faces?

As of this writing, no arrest has been made in this case. Police continue to investigate with no hint of what direction they are leaning to. The most obvious charge is murder. In Florida, murder can be of varying degrees, often depending on if the act was premeditated. If the police determined that Mr. Zimmerman acted with negligence in the killing of Mr. Martin, under Florida law, her could be charged with manslaughter. Mr. Zimmerman could possibly face federal charges if the federal government decides to get involved (possibly through a civil rights violation). Finally, it is important to remember that this is all conjuncture, no charges have been filed yet and Mr. Zimmerman is innocent until proven guilty.

Does Florida “Stand Your Ground” Law apply?

The short answer is…nobody really knows! This law prevents prosecution for murder or other criminal charges but ONLY if George Zimmerman was not the instigator. Using a hypothetical, suppose George Zimmerman repeatedly followed and harrassed Trayvon Martin or if George attacked Trayvon. Then pretend Trayvon started to fight back or retaliate against George. This law could not be used as a defense by Mr. Zimmerman because in that scenario, HE was the instigator and did not try to retreat from the situation. Contrary to many media depictions, this law is not a “get out of jail” card that you can use just because you started a fight and began to lose!

However, suppose Mr. Zimmerman was following Mr. Martin and Trayvon then began to get aggressive towards George. George then retreats but Trayvon continues to attack. If Mr. Zimmerman has a reasonable fear that he may suffer death or great bodily harm, that law may now apply.

The truth is we may never know what occurred that night. Already, there has been much inacurate media portrayals of both parties. All we can hope for is that justice will be done…
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March 28, 2012

Florida “Stand Your Ground” Law and Trayvon Martin, Part One

by Blake & Dorsten, P.A.

By now, the whole country has heard about the Trayvon Martin shooting. As of this writing, the facts are still being sorted out and the accused shooter, George Zimmerman, has yet to be arrested. However, there has been much outrage and blame directed towards Florida’s “Stand Your Ground” law. The real question remains…does this law even apply to the facts as we know them?

F.S. §776.013(3) – Florida’s “Stand Your Ground” Law
“A person who is not engaged in an unlawful activity, and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony”.

As I am a criminal defense lawyer, I have been recently asked to explain Florida’s so-called “Stand Your Ground” law. To explain how we got here, we first need to know where we have been. That takes us to Florida “BSYGL” or “Before Stand Your Ground Law…Before the 2005 passing of Florida’s “Stand Your Ground”, a person could only use non-deadly force to defend against the imminent use of unlawful non-deadly force. The only time deadly force was authorized was to defend you or another against immediate deadly force/ great bodily harm. The use of deadly force was also allowed to stop the commission of a forcible felony.

A previous law, the so-called “Castle Doctrine” provided that a person had no duty to retreat prior to using deadly force against an intruder only if you were in one’s home or workplace. You would still need a reasonable belief that deadly force was necessary to defend against great bodily harm, deadly force, or the commission of a forcible felony (such as a robbery or sexual assault). Unlike the later “Stand Your Ground” law, you had a “duty to retreat” prior to using deadly force.

Florida ” ASYGL” or “After Stand Your Ground Law”

This “Stand Your Ground” Law introduced two (2) presumptions that would favor a criminal defendant who is making a self-defense claim:

1.The presumption that the defendant had a reasonable fear that deadly force was necessary; and 2.The presumption that the intruder intended to commit an unlawful act involving force or violence.

These two presumptions protect the defendant from both civil and criminal prosecution for any unlawful use of deadly or non-deadly force in self-defense. Additionally, the defendant/gun owner has no duty to retreat, regardless of where he is attacked, as long as he is in a location he is lawfully entitled to be when the danger occurs.

Florida’s “Stand Your Ground” Law acts as a “presumption of innocence” from prosecution, as opposed to an affirmative defense that you would need to assert in Trial (after being arrested and charged by the State of Florida).

So the question remains…Is this “Stand Your Ground” law in any way responsible or encouraged the killing of Trayvon Martin? Part Two of this blog will talk about both the potential crimes that the shooter may be charged with as well as if this law applies…
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March 16, 2012

Florida Hate Crimes: Are they a step forward or a step back?

by Blake & Dorsten, P.A.

A former Rutgers student, after jury trial, has been convicted of anti-gay hate crimes related to invasion of privacy, tampering with evidence and a host of other related crimes. The ex-student faces 10 years in prison based upon his conviction as reported by the LA Times.

The Florida Legislator has deemed many violent crimes specifically targeting a class of individuals as hate crimes. Hate crimes are defines Federally under the 1968 Civil Rights Act, 18 U.S.C. § 245, which establishes a number of criminal penalties for the use of force or intimidation to prevent the free exercise of civil rights on the basis of race, color, religion or national origin. The Act provides penalties for whoever, “by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with” another (1) “because of” that person’s “race, color, religion or national origin. Florida statutes mirror the Federal law: if a crime is deemed as a “hate crime” prosecutors can seek enhanced penalties against the person accused of such acts.

This brings up many important questions regarding race and sexual orientation in the modern era? Aren’t all crimes of violence in one way another motivated by an evil intent? In a modern society, should we still inquire about someone sexual orientation or skin color? Do certain members of society need “extra” protection under the law? Are we imposing reverse discrimination to those individuals not in a protected class?

Let’s take a closer look at the concept of hate crimes. For example, if two persons of the same race get into a fight and one commits a battery on the other, presumably there is no “hate crime” and the person who allegedly committed the battery would not be subject to enhanced penalties. However, if we alter the hypothetical and the victim of the battery is in a protected class being gay or African American then the same accused could potentially receive a harsher penalty. Is this fair? Presumably both individuals are in a fight and both individual presumably “hate” each other at that moment. Should one individual receive a harsher penalty based upon his or her skin color?

On the other hand, I think society would agree that committing a crime or discriminating toward an individual based upon their race, color, religion, sexual orientation, or nation origin is egregious. Due to the current laws on the books, Legislators feel that those members in the protected class need protection. An important question however is how long does a specific class need “protection”? At what point to we become a color blind society and every individual is treated the same regardless of race and sexual orientation? All these questions are something to think about and society along with the Florida Legislator need to be able to adapt to the changing times of society. Many classes that needed protection in the past may be more mainstream and no longer need or desire the extra protection. The more individuals that are treated differently than others the greater the potential for discrimination.

Hate crimes are based upon America’s history of past injustices. At what point are those injustices rectified and America can treat all citizens equally? Only time will answer all the questions. As for now, individuals targeting protected classes to bully or intimidate them, like the former Rutgers student, will face enhanced penalties for their actions. Everyone can agree targeting someone because they are different than the majority is egregious. The only question is, at what point do we determine that all crimes against our citizens are equally egregious?
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