Archive for June 2016

Can you spot improper police conduct?

June 29, 2016

rights

I often hear of people responding to the police with, “I know my rights.” Do you think you know when the police are acting improperly?  Take this quick quiz found on the PBS webpage for their excellent program Frontline. The factual scenarios are from actual cases decided by the Supreme Court.

When you are done, post your score in a reply.

If you or someone you know believe you were stopped improperly by the police, call Fort Lauderdale Criminal Attorney.

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Fort Lauderdale DUI Checkpoint Friday, July 1st

June 28, 2016

dui checkpoint

DUI CHECKPOINT

10 p.m. Friday, July 1st to 2 a.m. Saturday, July 2nd

900 N.W. 31 Ave., Fort Lauderdale 33311
If you choose to drive in the area around the checkpoint, you run the risk of being caught up in it. Be smart about your actions. First, have your driver license, registration and insurance card in an easily accessible place. You don’t want to be rummaging through your car trying to find these items. Second, if you have been drinking, say as little as possible. From the moment the officer sees you, everything, and I mean, EVERYTHING, the officer believes is a sign of impairment will be noted and used against you – your driving pattern; how you look (flushed face; red bloodshot watery eyes); do you smell of alcohol; your speech; were you unable to find your documents; how you answered questions; your balance; your demeanor; etc.

In a typical checkpoint, the officers will make contact with you while you are in your car. If you admit to drinking or if the officer notices that you smell of alcohol or that your eyes are bloodshot and glassy or that your speech is slurred or that your face is flushed, you will probably be requested to step out of your car and take the roadside exercises.  If you refuse to take the roadside sobriety tests, the officer is in the difficult position of deciding whether to arrest you based on the evidence gathered up to that point (i.e. driving patter, speech, balance, physical signs) or whether to let you go.

If you smell of alcohol and show any of the other signs of being impaired by alcohol, you will more likely than not be arrested if you don’t take the roadside sobriety exercises. However, these exercises can sometimes be difficult to perform for people who have not had anything to drink.  If you choose to do the roadside exercises, you should definitely let the officer know about  physical or mental problems that might impact how you perform the exercises.

Roadside sobriety exercises are routinely videotaped. The exercises will most certainly be videotaped at a checkpoint. Any video of your performance on the exercises is critical evidence affecting your case. If you look good while performing the exercises on video and later refuse the breath test,  you charge could be potentially reduced.  On the other hand, the expression: “a picture is worth a thousand words” is more true in a DUI case.  I believe jurors weigh a person’s performance on video to be critical especially if the breath test was refused.

Your performance of the exercises will be used against you. If you refuse to take the exercise, your refusal will be used against you. If you have been drinking, you will probably not perform the exercises well and your performance will be used against you.

If you or someone you know gets arrested for DUI – call Fort Lauderdale Criminal DUI Attorney Gary Cole at 954-462-4600.

This website includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You and I have not entered into an attorney/client relationship, and I am not responsible for your legal rights. The only way for us to be in an attorney/client relationship is if you have signed a written retainer agreement with my law firm.

Supreme Court upholds domestic violence gun ban

June 27, 2016

domestic-gun-violence-cropped

The Supreme Court today ruled that people convicted of misdemeanor domestic violence crimes may not possess firearms under federal law. 18 U.S.C. § 922(g)(9) states that it is unlawful for anyone who has been convicted in any court of a misdemeanor crime of domestic violence to:

“ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce”
The cruxt of the argument was that the law should not punish reckless acts (such as in the heat of the moment) as opposed to intentional acts. This argument was rejected by the court in a 6-2 opinion. Justice Kagan, writing for the majority, stated that there is no constitutional exception for reckless or unintentionl violence when it comes to violent offenders and gun ownership. In his dissent, Justice Thomas stated, with regards to second amendment rights, the the Supreme Court “treat[s] no other constitutional right so cavalierly.”

Fort Lauderdale Criminal Lawyer Gary Cole

1st Rule of lawyering – don’t talk about your clients

June 27, 2016

DON'T TALK

When texted by a reporter asking for a comment, one of Johnny Manziel’s attorneys inadvertently responded with a text message that suggested Manziel’s legal team was seeking a plea deal in his domestic violence case. The lawyer also indicated that he had a receipt that showed Manziel may have bought drug paraphernalia in the hours following his involvement in a hit and run car crash. According to the attorney, the text message was meant for another attorney. Well, that attorney has now withdrawn from the case.

It’s never a good idea to talk badly about your clients. It’s even worse to talk badly about your “celebrity” clients. But it’s borderline negligent to send potentially incriminating information electronically without paying attention to whom you are sending the message.

Fort Lauderdale Criminal Attorney

Supreme Court rules warrant needed for DUI blood draw

June 23, 2016

dui warrant

The U.S. Supreme Court ruled today that police are allowed to conduct a warrantless breath test as a result of a DUI arrest but not a warrantless blood test. The Court had before it three cases in which the defendant either refused or did take a breath or blood test – a criminal prosecution for refusing a warrantless blood test; a criminal prosecution for refusing a warrantless breath test; and a “voluntary” blood test given when told by police that it was required. In making its decision, the Court found that taking a blood sample or undergoing a breath test is a search under the Fourth Amendment. The Court found that breath tests did not implicate any significant privacy concern as the test was not intrusive to any particular degree and was administered incidental to a person’s arrest. Searches incident to arrest are generally acceptable.

However, blood tests are significantly more intrusive because it requires piercing someone’s skin and the results could reveal more than a blood alcohol level. Therefore, whether or not a warrantless blood test is reasonable under the Fourth Amendment which protects us against unreasonable searches depends on the availability of a breath test.  The Court found that the prosecutor in each case before it did not present a valid argument as to why a blood draw given without a warrant was reasonable.

The Court also ruled that drivers may not be punished criminally for refusing to submit to a blood test based on implied consent laws. Implied consent in the DUI context means that when someone accepts the “privilege” to drive in the State of Florida, they give their consent to any sobriety test required by law.  (Look at the bottom of your Florida Driver License). The court explained that the State’s power must be limited in situations where it insists on an intrusive blood test and then criminally prosecutes someone who refuses.

If you or someone you know has questions about a DUI, contact Fort Lauderdale Criminal Lawyer Gary Cole.

This website includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal issues problems.

 

Refusing to answer questions by the police – Tell them why at the beginning

June 20, 2016

ipleadthefifth

In 2013, the Supreme Court in the case of Salinas v. Texas, 133 S.Ct. 2174 (2013), decided that the Fifth Amendment did apply to pre-arrest, pre-charge questioning of someone suspected of committing a crime. The court further stated that if someone being investigated of a crime must specifically say that they are exercising their Fifth Amendment right to remain silent. Just sitting there silently is no longer enough. Sitting there silently or answering some questions while not answering others can now be used against you as evidence of your guilt.

In the Salinas case, two people were shot and killed. The police recovered shotgun shell casings where the killings occurred. Salinas was suspected by the police of being involved and, when approached by the police, he voluntarily agreed to go with the police to the police station and answer questions.

During the questioning, Salinas was not under arrest and was free to leave, which, under the law, meant that Miranda rights were not required to be given. Salinas answered many of the officer’s questions but when asked if the shotgun shells found at the scene would match his shotgun, he stayed silent. He then went on to answer additional questions. His silence in response to the shotgun shell question was used against him at the trial in which he was convicted. The Supreme Court said this was acceptable.

So, what should you do to make sure you are protected in the face of police questioning? Fort Lauderdale Criminal Attorney Gary Cole advises that people should always refuse to answer police questions without an attorney being present. If police have enough information to arrest you, they will do it without any statement from you. If you are approached by the police, let them know that you are refusing to answer questions based on your Fifth Amendment privilege.  No additional words or needed. Many officers will try to get you to talk by saying something to the effect that if you did not do anything wrong, you should answer their questions.  Don’t fall for that trap.

Once you say the words, “I am refusing to answer questions based on my Fifth Amendment privilege”, you are under no obligation to provide any further explanation. And, once you use those words, “I am refusing to answer questions based on my Fifth Amendment privilege” ask if you are free to leave. If so, leave immediately and contact Fort Lauderdale Criminal Attorney Gary Cole.

This website is for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

 

 

Laser pointing leads to Felony

June 16, 2016

laser

A St. Petersburg Florida man was arrested after he pointed a laser pointer at a passing car. The car was an unmarked police car occupied by the St. Petersburg assistant chief of police who was temporarily blinded by the pointer.  Florida Statute 784.062 makes it a third degree felony punishable by up to five years in prison for willfully shining, pointing, or focusing the beam of a laser lighting device on someone who is driving a car, operating a vessel, or piloting an aircraft. If someone gets injured as a result of the laser pointing, the charge is upgraded to a second degree felony punishable by up to fifteen years in prison.

If you or someone you know gets arrested for using a laser pointer, call Fort Lauderdale Criminal Attorney Gary Cole at 954-462-4600.