Pinellas County Florida Criminal Lawyer Blog

I'm sure everyone reading this has been following the arrest of the Harvard professor in Cambridge, MA, for Disorderly Conduct.  If you haven't heard about it, here's a summary from a local new cast which includes the recently released 911 tape.

What I like best about the story is Obama getting involved at all.  (Clearly, in reading this blog you've realized my political tendencies are left leaning)  We've all seen cases where the police over-react.  We've also all seen cases where the police should act and don't.  But this case could have been any one of us in any part of the country, and has been.  Cops show up at a house to "investigate" a crime.  Someone who is clearly educated about their rights says "No, you don't have the right to enter my house." or "No, I won't talk to you." or "No, you have the wrong guy."  And the cops get mad.  Whether it's job frustration or frustration that the person is smarter than them, when police get mad, they often make up some bogus charge and arrest the person.  Everyone has either seen or heard of this happening.   I LOVE that the President says the "police acted stupidly."  In this case, the man who was arrested became a national media sensation.  Unfortunately for most, when the police "act stupidly", they end up pleading guilty to the charge just to get out of jail. Maybe this will change things. 

In a follow up article, the President himself called the Cambridge police sergant on his cell phone and invited him to the White House for a meeting.  Maybe the prospect of being invited to the White House will make some cops think twice.  Maybe not.   

For those of you reading any of the entries in this blog - this is NOT LEGAL ADVICE.  It's a blog, which is defined as: "A blog (a contraction of the term weblog) is a type of website, usually maintained by an individual with regular entries of commentary  . . . " from Wikipedia.  It can also be used a a verb. 

Therefore, the entries created by this "blogger" are commentary or opinions.  I try to be as accurate with the law as possible, given that I am a lawyer.  But all criminal cases are different and the laws change rapidly. 

Yesterday, I got a nasty response to one of my blogs about seat belts.  Apparently, the person reading the blog quoted me in court and according to him (or her) "sounded like an idiot."  DON'T QUOTE MY BLOG IN COURT!!!  I didn't think I'd have to say this.  Call a reputable attorney if you have questions.  Or better yet - HIRE ONE.  It doesn't have to be me.  In fact, I can give you a list of attorney's who would be more than happy to help you if you don't like me. 

As to the specific blog the person was quoting in court - I wrote about how the police can't stop you solely for not wearing a seat belt.  Prior to June 30, 2009; the police could not make a traffic stop for the sole reason that a driver was not wearing a seat belt.  Now, thanks to Governor Crist, they can. (See Miami Herald article)  The law just changed.  Lots of laws change on a regular basis.  For example, prior to July 2008 (I think) a 3rd DWLSR (Driving While License Suspended or Revoked) was a felony.  Now, if your license was suspended for monetary reasons, such as not paying child support, or other court fees, a 3rd offense is not a felony.  (BUT DON'T TAKE THIS AS LEGAL ADVICE - CALL A LAWYER!!)

The overwhelming response to this blog is positive.  Here's an example of the kind of  things people have to say:  "The best information I have found exactly here. Keep going Thank you"

Thank you for all of your positive comments - please keep them coming. 

The next time you are considering driving after a few drinks, ask yourself if you have $10,000 to spare.  DUI's in Florida are EXPENSIVE. 

First there are court costs, which have gone up significantly in the past few years.  Then there are costs of probation, cost of DUI school, cost to have your driver's license reinstated (click here for DHSMV reinstatements), cost of the ignition interlock control device (click here for pricing), cost to maintain the device, cost to get to work because your driver's license is suspened, increased insurance premiums, costs of alcohol treatment and evaluation.  Notice I didn't include cost of an attorney.  My husband, Daniel Pawuk, who has significant DUI trial experience starts at about $2000.

Here's something to think about, I got this ad from a former client who now owns a cab service:  

A plea negotiation is an agreement an attorney makes with the prosecuting attorney rather than going to trial.  Some of the reasons prosecutors are willing to make a deal could be that their case is not very strong.  Or perhaps they feel like the sentence is much worse than the crime. Perhaps the defendant thinks he will lose at trial and rather than risk a stiff sentence after trial, he takes a lesser sentence through a plea deal.

I must get 3-4 calls per week from people who want to withdraw their pleas because they don't like the deal they got.  First of all, you only have 10 days to withdraw your plea. Secondly, there are VERY SPECIFIC grounds for allowing withdrawal of pleas.  One of the biggest is that you were not properly counseled about your rights or the terms of the agreement and that you did not understand.  When a person pleas either guilty or no contest in court, the judge reads them a plea colloquy.

This is when the judge says:

"Are you entering this plea freely and voluntarily?"

 "Has promised you anything in return for this plea?"

"Are you under the influence of any drugs or alcohol?" 

 "Is anyone forcing you to enter this plea?" 

This list goes on.  Inevitably people always answer yes to these questions even if they really don't understand what's happening.  Many people who take plea deals do not understand exactly what they are agreeing to.  But this is the time for them to say  "Wait, what exactly are you saying?",  if they don't understand - it's too late to do it later. 

Today's HernandoTimes had an article about exactly this.  A girl pled to murder, and then realized she probably had some defenses for trial.  Her attorney filed the Motion to Withdraw her Plea within the 10 days.  But Judge Rushing denied it. 

"I do believe she was properly advised by her counsel," Rushing said. "There was really no pressure on her that I could see. ... I think it's a case of second thoughts or buyer's remorse."

According to the article, the young woman, who had no prior experience with the law, did not understand that she was facing 30 years in prison.  People sitting in jail get scared and will often pled to anything just to get out.  My advice - don't do it.  Call a competent criminal defense attorney who can advise you of your rights and the shortfalls in your case. 

Last Wednesday the Treasure Island police arrested a woman for domestic battery.  That's not the strangest part, because plenty of women are arrested for domestic battery, whether they are the agressor or not. 

This woman was arrested for "poking" her live in boyfriend with a sex toy.   According to the St. Petersburg Times article from Saturday, July 11, 2009; there was no allegation of injury or real threat of violence.  I guess, technically speaking, "poking" is a battery, which is any unwanted touching. But was this touching unwanted?  With a sex toy? 

Apparently, he was the one who called the police.  And they arrested her.  Must of have been a slow night in the Treasure Island Police Department.  If this arrest isn't a cry for why that agency needs to be consolidated into Pinellas County Sheriff's Office, I'm not sure what is.

What this arrest shows is how "seriously" the police take domestic battery complaints.  Especially if someone is drunk.  In most instances, if the police are called to a domestic battery incident, someone gets arrested.   Especially if someone is drunk. So unless you are the victim of a crime or in fear for you safety, don't call the police.  Their job isn't to monitor your sex life.

Today I was on the Florida Department of Highway Safety and Motor Vehicles website and saw this press release:

FHP conducted a statewide traffic enforcement initiative over the holiday weekend deemed "Operation CARE" wherein they made the following arrests:

4,548 speeding tickets
1,298 seat belt violations
98 DUI's

I'm not going to talk about the costs on a DUI which are in the thousands, but I just wanted to see if anyone was paying attention to the amount of revenue taken in by the State this weekend. What budget crisis?

Here are the basic State costs of any traffic violation: (there may be more)
• $1.00 for the Child Welfare Training Trust Fund
• $1.00 for the Juvenile Justice Training Trust Fund
• $5.00 for the Circuit's Driver Education Program
• $12.50 administrative fee
• $10.00 assessment fee

So we're at $19.50 before any of the actual fines of the ticket.

A seat belt ticket is $30

A speeding ticket is:
• 6-9mph over the limit:      $25
• 10-14mph                       $100
• 15-19mph                       $125
• 20-29mph                       $150
• 30 and above                  $250
2008->Ch0318->Section%2018#0318.18">Florida Statute 318.18

Let's assume that on average the speeding ticket FHP issued this weekend was for 15-19 mph over the limit which is a $125 ticket plus the $19.50 = $144.50

Multiply $144.50 x 4548 = $657,186.00.

The cost of a seat belt violation is $49.50 x 1,298 which equals = $64,251.00
THIS ENTRY PREVIOUSLY SAID THAT YOU COULD NOT BE STOPPED FOR ONLY A SEAT BELT VIOLATION.  AS OF JULY 1, 2009, YOU CAN BE.   

So in 3 days FHP made $721,437. Even if only half the people pay the tickets (which I'm assuming is about right since most of the people I talk to have suspended driver's licenses because they "forgot" to pay their speeding tickets) that's a heck of a lot of money for 3 days worth of work. Where does the money go?

In an article yesterday from the St. Petersburg Times, it seems that St. Petersburg mayoral candidate Deveron Gibbon's does have a clean driving record.  The paper printed it wrong in an article from Sunday's paper. 

I personally have my own issues with the Times and their lack of fact checking as well as their one sided approach to journalism.  But the July 8, 2009 article brings up a good point:  Driving records recieved from either the Clerk of Court, or the Florida Department of Highway Safety and Motor Vehicles are often incorrect or misleading.  Which causes problems for people when they apply for jobs, get background checks, or ultimately have their licenses suspended based on incorrect information. 

What should you do about it?  Check your driver's license regularly at the DHSMV website and if you think the information is wrong, call us.  We can't guarentee we can fix it, but our motto is:  "the fix it firm." 

I thought I should clarify my June 18 blog post, about the PCSO chase up US 19 allegedly after a "blue pickup" which may have been involved in a hit and run accident, where the victim was killed.

The First District Court of Appeal, recently ruled against the police in a case very similar to this. The Court quoted a Florida Supreme Court case and said that in order for the police to justify an investigatory stop, the Court would look at "[t]he totality of the circumstances . . . when determining whether an officer had a reasonable suspicion of criminal activity to justify the investigatory stop." Huffman v. State, 937 So. 2d 202, 206 (Fla. 1st DCA 2006). When assessing whether a "be-on-the-lookout" alert sufficiently justifies an investigatory stop, the court considers: "(1) the length of time and distance from the offense; (2) route of flight; (3) specificity of the description of the vehicle and its occupants; and (4) the source of the BOLO information." Hunter v. State, 660 So. 2d 244, 249 (Fla. 1995).  See Hugh Garrett King v. State, 1st DCA, July 7, 2009.

In the above case, the police recieved a BOLO (be on the lookout) for 2 men in a home invasion who were described as black, driving a grey Blazer.  Nine blocks away they stopped a green Ford Explorer driven by 2 black men, and subsequently found cocaine.  Interestingly, the police never questioned them about the home invasion after the cocaine was found.  (why bother solving two crimes one you already have one, right?)

In the Pasco case,reported in the local press, the police may have had a BOLO for a blue pickup truck.  But the crime occurred near Moog Road and US 19 and they tried to stop this guy on Ridge Road and US 19.  That's several miles away.  Having not seen the police report, I don't know how long after the first crime was committed that this stop was made.  But I do know that on a Friday night, in New Port Richey, on US 19 there are ALOT of blue pickup trucks. 

Whoever this guy is that was arrested, needs an attorney - if you know him, tell him to call me. 

Thanks to all the readers of this blog, our law practice is super busy and we need to hire some help.

I'm looking for a legal secretary, preferablly with crimnal law experience, who has compassion for people; is nice to people, reagardless of how annoying they are; super organized; has common sense; is computer literate; can find things by making phone calls; searching the internet; or whatever. Chances are, if you're reading this blog, and you have the above mentioned computer skills, you're already what we're looking for.

For now it's a part time job - 3 full days per week. But if people keep reading this blog, and we keep doing a good job for folks, it will probably be a full time job soon.

email me your resume if you're interested. The quicker I can find some help, the quicker I can get back to blogging.

Florida Governor Charlie Crist has signed a new bill into law  (SB 2276) requiring people "arrested" for felony offenses to provide a DNA samples to be placed into a statewide database. Prior to this enactment, only those citizens "convicted" of specific felony offense were required to provide DNA. Just so you know, the State keeps the DNA in a database to be used, possible against you, in future crimes. Or to be used in unsolved crimes.

Think this is an intrusion on your privacy? Wondering what happened to "innocent until proven guilty"? Me too. Apparently, if you are found innocent, AFTER YOU ARE ARRESTED, you can go through a petition process to have your DNA removed.  Sound counter - American?

The real problem however is a legal one. In 1966 the U.S. Supreme Court decided the case of Schmerber v. California, 384 U.S. 787 (1966). This case essentially discussed whether it was an unlawful violation of an arrested citizen's 4th Amendment rights to be free from unreasonable search and seizure, if a police officer took a blood sample from them after a DUI accident. A major factor the Supreme Court considered was the fact that during the time it would take to obtain a warrant to get the blood, evidence would be destroyed (i.e. the alcohol level in the blood after the accident). However, the Supreme Court also noted that searches after arrest, though reasonable for weapons and officer safety, have little applicability to searches "involving intrusions beyond the body's surface". Think about the recent US Supreme Court case where they said searching a girl's underwear at school was an unnecessary intrusion.

The major issue here is this: when a citizen has simply been "arrested", should they legally lose the same rights that a "convicted" person has lost? In L.S. v. State, (Fla. App. 2001), the First District Court of Appeals concluded that it was not unreasonable to demand a DNA sample from a convicted felon. Two major points of rationale were that the search was minimally intrusive to a person who has a lesser expectation of privacy since they are a convicted felon, and, that from a 14th Amendment Equal Protection perspective, a convict has a lesser expectation of privacy, therefore, a rational basis test (as opposed to strict scrutiny) is appropriate. (i.e., does the law bear a rational relationship to the State's legitimate interest in collecting the sample for law enforcement's future needs). (For a more in depth answer to what the heck the "rational basis test" or the "strict scrutiny" standards are, call me or go to law school. I happen to be one of the few who loves Constitutional Law)

Arrested citizens should be innocent until proven guilty. They have the right to be free from unreasonable searches and seizures under the 4th Amendment, especially if the crime they are being investigated for bears no relationship to the police officer's need for a DNA sample to solve the current crime. My suggestion? Call your representatives and VOTE - or for those of you who no longer have that right - call us and we'll tell you how to get your civil rights reinstated.

This is a question that comes up time and time again and every legal answer seems to be a little different and the reason for that is every circumstance is different. Once again, it depends.

The police only have the right to enter your house when:

1. You give them consent to enter, or someone else with authority gives them consent.

2. There are "exigent circumstances" which gives them probable cause to believe that a crime is being or has been committed inside of the house.

3. They have a warrant.

Numbers 1 and 3 should be self explanatory. However, #2, is where the law gets tricky. Every situation is different.

Let me give you an example of #2. Let's say someone calls the police and says there's a runaway child inside of a house. The police go to the house and no one answers. The police see people peeking out of the windows, and hear movement inside of the house. So clearly, they have a reasonable suspicion that someone is in the house and can go inside.

Why don't they need a warrant? Because there are "exigent circumstances" that a crime is being committed and they have "probable cause" because a (hopefully) reliable source called the police and told them the child was in the house. It takes time to get a warrant. Contrary to what you may see on TV, judges and state attorney's aren't hanging out in their offices after hours waiting for some great crime to be solved. Because of this, the law allows the police to make the decision as to whether or not they believe there are "exigent circumstances" to enter a house.

DISCLAIMER: THIS IS NOT LEGAL ADVICE, MERELY A VERY BASIC SUMMARY OF THE LAW - ALL FACTS OF CASES ARE DIFFERENT. CONTACT AT CRIMINAL ATTORNEY IF YOU BELIEVE THE POLICE DID NOT HAVE THE RIGHT TO ENTER YOUR HOME.

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