Florida Criminal Law

Fleeing an Attempting to Elude: Dismissed

2014-05-19T12:58:00.001-05:00

People have a belief that if they are not guilty of something, then the State will just dismiss the charge. Occasionally, this is true:

However, as you can see above, this is a nolle prosequi, not a no prosecution. What does that mean?

This means that someone had to fight to get the charge voluntarily dismissed. Evidence had to be collected, analyzed, and multiple negotiations were necessary to secure this dismissal. Specific to this case, a joint review with the ASA of the dash cam evidence.

People often still try to represent themselves and wonder why their case blows up in their face, but this Okaloosa County client wisely hired counsel early on, and months later, obtained a dismissal.

Felony Plea Bargaining in Florida

2014-04-14T10:04:00.000-05:00

Many people underestimate the value of a skilled criminal defense lawyer when it comes to negotiating a felony plea bargain. Specifically, a plea bargain is the process by which the State and the defense hammer out an agreement to be ratified by a presiding judge for sentencing.

Felony sentencing is much trickier than misdemeanor sentencing because felonies invoke the Florida Punishment Code.

Under the FPC, points are assessed for a variety of factors, and a total point number is very important: above 44 points, and a sentence must be a prison sentence unless a lawful downward departure is demonstrated.

Finding downward departure grounds is time consuming, difficult, yet can make all of the difference in the world between going to prison or getting community supervision.

Okaloosa County's Mental Health Court

2014-04-11T09:43:00.003-05:00

Okaloosa County has a unique diversion program: Mental Health Court.

Mental Health Court addresses a very serious and expensive problem: what do we do with people who have chronic mental health conditions and find themselves getting arrested because they cannot control their behavior?

The normal answer, lock them up in jail or send them for years to state prison, is increasing looked upon as a last resort. Frankly, a growing consensus is leaning towards a more damning indictment - stupid.

The target population is not deterred by incarceration. Probation equals violation. Jail becomes a revolving door. Here is a common example:

John Doe is arrested for trespass at a liquor store after he refuses to leave. Drunk and obnoxious, he is taken to jail and processed. Since he cannot make bond, he stays. Worse, he has to be kept in special housing because he is a management problem, requires expensive medical care including mental health medication, and he will ultimately be sentenced to time already served. He will be medically stable for a short time, but this is temporary. He will be penniless when he is released, run out of medication, and within a few weeks or months, get arrested again.

A normal inmate will cost around fifty dollars ($50) each and every day in jail. (Please spare me the 'make them pay' nonsense - stupid is not the new smart). However, John Doe will cost almost twice that amount and will be arrested twenty to thirty times in his lifetime.

Florida's Mental Health Court is a step in the right direction, however, there is little funding for proper diagnosis and virtually no funding to study the program's effectiveness. Brain imaging based diagnostics would be the most cost effective way to solve this problem, yet once again the powers that be prefer penny wise and pound foolish: the money for a proper diagnosis is never provided and another bandaid measure is the law of the State.

Diversion programs in Florida: How they are abused

2014-03-24T08:26:00.004-06:00

Florida has many forms of "diversion programs" or "specialty courts" where the key selling point in the complete and total dismissal of all criminal charges. Sounds awesome, right?

There is a catch.

First, this selling point usually fools people into thinking that they do not need legal counsel. After all, they reason, why not save on legal fees? They have messed up, so they reason, saving on legal fees is seen as a form of damage control.

Second, charges get dismissed: isn't that a great outcome? So, people often try to DIY, and:

make incriminating statements to law enforcement in the field prior to or just after the arrest
make incriminating statements to government officials
are unable to understand why they have so many burdensome requirements
are frustrated by the intense level of government ~~snooping~~ supervision which seems worse than probation
find out that they have to wait months and months for the ever elusive dismissal
find out how easy it is for that dismissal to evaporate upon the slightest reason - being $5 short on a payment, late for a single minute, miss an appointment because the car breaks down, etc.
Having entered a plea of guilty or no contest in order to get the dismissal, discover that the slightest mistake results in a jail or even a prison sentence
learn they still have criminal history and often do not find out until months or even years later
discover they actually had legal defenses that would have beaten the case or worse . . .
learn that the whole process would have been less burdensome, easier, quicker and result in zero criminal history if they had hired a skilled criminal defense lawyer.

These are just some of the problems that go with 1) the carrot of a charge dismissal, and; 2) the reality instead of the illusion.

A good rule of thumb for when to hire a criminal defense lawyer is simple: is any aspect of the potential penalty a jail or prison sentence? If the answer is yes, then hiring a criminal defense attorney is a no brainer. A skilled criminal defense lawyer can help you navigate the mine field of Florida criminal law and negotiate for the best terms for settlement, especially if a diversion program may be on the table.

Over 120+ Florida Criminal Law Educational Videos

2014-03-23T08:31:00.003-06:00

Many years ago, I began spending time in front of the camera producing educational videos about Florida Criminal Law. Now, many years later, it gives me great pride to announce that we have over 120+ educational videos on our Youtube Channel and will have over 500+ by the end of the year.

I've always enjoyed shooting film on various different aspects of my profession, but now with the assistance of Lisa Northern Photography, more video is being produced than ever before. Entire series are in the works, and I could not produce this much material without LNP's assistance.

So, here is the introduction to the Cobb Law Firm channel. Hope you enjoy.

Walton County, Florida, Pretrial Diversion

2014-03-21T10:08:00.002-06:00

Pretrial diversion is a hot topic, and one that is often more abused than the lay person realizes. Why? when people think they have a poor case, or if they feel remorse because they are in fact, guilty, they often begin to feel a series of emotions that cloud their thinking.

For example, we have all heard the famous phrasing of the Miranda Warning, yet people still talk to the police, spill their guts, and have their words used against them - whether they are guilty or not. Likewise, with Pretrial Diversion, people ~~ration of lies~~ rationalize that they will "save money" by handling their case by themselves - and this is where the legal system pulls a fast one:

they are offered pretrial diversion when they have a stronger case than they realize. Instead of an outright dismissal, charge reduction, or charge substitution, the person takes an unfavorable deal out of ignorance.
they lack the negotiating skill to handle negotiating terms of pretrial diversion like a skilled criminal defense lawyer. Thus the State Attorney's Office takes advantage of the person's lack of knowledge and puts burdensome terms in the pretrial diversion agreement, terms no lawyer would recommend blind acceptance to.
their pretrial diversion is supervised when they could have obtained an unsupervised Deferred Prosecution Agreement

For each of these things, one thing is common: the lack of a skilled criminal defense lawyer negotiating on a defendant's behalf.

Settlement negotiations are one of the most important things criminal defense lawyers do to help people when they find themselves at the wrong place, at the wrong time, and accused of being on the wrong side of the law.

How the CJS manipulates Complaining Witnesses after a Domestic Violence Arrest

2014-03-20T12:03:00.000-06:00

When someone has been arrested for a domestic violence charge, one of the key areas for legal guidance concerns what to do about a Florida no contact order. As you read this entry and watch the video below, here is your fact pattern: Complaining Witness and Defendant are drinking, have an argument, and 911 is called. The police respond, separate the parties, and start interrogating. The woman is crying, the man refuses to talk, so he goes to jail. She is devastated, and begs the police not to take him to jail.

I could make a more interesting fact pattern, but the one shared above is one that is a daily occurrence - not "frequent," daily.

No contact orders are usually imposed as a condition of bond at first appearance. This is obviously problematic, since a) a criminal defendant is presumed innocent, yet b) he or she is kicked out of their residence after spending a night or two in jail. Since this article is designed for practical advice, I'll spare you the gender politics that led us to this highly biased and unnecessary knee jerk reaction that poisons every case. However, be advised that no contact orders are automatically imposed in every case unless the complaining witness shows up at first appearance begging for the defendant to be allowed to return home, or the defendant is somehow able to obtain legal counsel.

Usually, no contact orders are lifted at a separate hearing due to the absence of legal counsel. They are then transformed into "No Violence Contact" orders while the case is pending. This allows the parties to have nonviolent contact, and the defendant usually can then return home.

If you think the system is rigged, this area of criminal law virtually proves it: the system is set up for no contact orders as the default in every domestic violence case. Worse, the Complaining Witness is often given bad advice in order to help convict the defendant.

For example, in many cases, the Complainant is told to "go to the State Attorney's Office and ask to have it lifted" or to go there and "ask to have the charges dropped." This has the appearance of being helpful, but exposes the Complainant to outright manipulation: many are told that if they lied, that perjury is a felony. However, they are also told that if they recant, they have filed a false police report and will go to jail immediately - how do you think this impacts their statements? Worse, many are sent to "victims" propaganda classes as a condition of their request for a change in bond conditions to even be considered.

In other words, the criminal justice system is set up to manipulate to purported victims of domestic violence in the same manner that their "counseling and empowerment" classes warn about. Therefore, the best way to handle this situation is with an experienced criminal defense lawyer, preferably one who is certified as an expert in the field.

The Five Biggest mistakes people make when charged with Domestic Violence in Florida

2014-03-18T16:38:00.001-06:00

The number of mistakes someone can make when they have been charged with domestic violence is actually unlimited. However, this short video discusses the five biggest ones.

Note: this video pertains to domestic violence assault, battery, domestic violence by strangulation, aggravated assault and aggravated battery. Sexual offenses within the domestic violence construct have not been addressed.

Someone asked me if there was one mistake that was the biggest of all of them, and I was hard pressed for an answer. After thinking about it, I've concluded that denial would have to rank as number one. Here is why:

In every type of criminal case, people often are so terrified, so out of their element, that they try to "talk their way out of the ride" to jail. Instead, they go to jail and begin making mistake after mistake. Thus Denial is the biggest mistake of them all.

As you watch the video, think about each one carefully, and you'll probably come to the same conclusion. If not, by all means, let me know, and let me know why.

Locals Against Party Down South: economic damage and hate campaigns

2014-03-16T15:27:00.000-06:00

Recently, a couple of the easily offended crowd started a Facebook hate campaign, "Locals Against Party Down South" (LAPDS) and a Facebook friend asked me to join.

I declined, commented as to why (actually thinking about the blow back), and was ultimately blocked.

In a nutshell, PDS is a stupid reality show about drunken debauchery. The producers floated a trial balloon about filming along the Gulf Coast. The easily offended, spurred on by those who believe in acting first and thinking second, rallied around a message of "we don't like you, and you are not welcome here." 11,400+ of my friends and neighbors along the Gulf Coast joined the hate campaign, the show decided to film elsewhere and the numerous LAPDS bible thumpers whooped in joy.

Naturally, as with any hate campaign, there was denial that this was . . . a hate campaign. Yet comments on the LAPDS page were virulent, mean, threatening, hostile, bullying and quite a number had bizarre, angry biblical references. After all, they must reason, God has plenty of time to join a hate campaign and nothing better to do.

Unfortunately, Stupid is not the new Smart. Hate begets hate. And just as I predicted in numerous comments before I was blocked by the easily offended, the seeds of economic destruction didn't take very long to show up: Walton County went to war against Spring Breakers as shown here within days after the successful social media hate campaign. One of our most vital industries is tourism: the local and even regional money supply increases with every dollar spent by a tourist, rather than simply recycling dollars already in the area.

You would think this was a novel concept, that increasing the number of dollars circulating in a region would have a positive impact on jobs, wages and local wealth of our citizens. It isn't. But for many in this region, Stupid = Smart.

Is possessing alcohol under the age of twenty-one (21) against the law? Certainly. Take their beer and issue a Criminal Summons; take them to jail only if they are a real (as opposed to an imagined) nuisance. Better yet, lower the drinking age to eighteen (18) - like it was when most of the finger wagging church ladies of LAPDS were that age. But these common sense approaches are actually smart solutions. Therein lies the problem. Common sense - engaging in the hard labor of actually thinking - is highly uncommon. Most would rather create a toxic environment of hate and intolerance.

Thus here's the problem with Stupid being the new Smart, with the new hate Spring Breakers, anti-tourism campaign:

The people being targeted, college students who are eighteen (18) to twenty (20), are going to become the most educated in our society - university graduates.
They will have more disposable income than every other demographic in the years to come, for years to come.
They will want to take their families on vacation to amazing places, often where they had a wonderful experience . . . while in college.
Odds that hundreds, if not thousands of the exact tourists we will be fighting other areas to have in the next ten (10) to thirty (30) years will say to themselves, anywhere but northwest Florida? 100%

So, not only did LAPDS succeed in preventing a television show from coming to an area, they gave a green light (actually, a virtual command) to politicians to use overly aggressive tactics which will damage our tourism industry for a generation to come.The Walton County Sheriff's Office Zero Tolerance (read Zero Intelligence) campaign will cost the local region millions of dollars over the next three decades.

Stupid is still Stupid. The Sheriff's Office still had to back off and give many people a criminal summons (as opposed to taking them to jail) anyway - it was too expensive to keep up the pace of looking to throw as many people in jail as possible.

Worse, this is costing local taxpayers a ton of money in order to lose money for years and years.

The news gets worse: you are a business owner thinking of relocating to what is perceived as an intolerant area of the country. Think your best talent will be thrilled about relocating to the panhandle with their domestic partner? Not at all. Neither will your shareholders. So, the hate campaign costs this area in future economic development. The damage is incalculable.

And still worse: Memorial Day is right around the corner. The LGBTQ community comes to the Emerald Coast every year, and every year a group of religiously obsessed crybabies publicly complains about all of the "unwanted" queer folk coming to town. Thus the next Locals Against, social media hate campaign is probably underway as I type these words. If the area loses the Pride weekend to another more tolerant area, it is richly deserved. And an utter catastrophe for those businesses and employees who make substantial income form these free spending visitors to our area.

I am reminded of a poem about how a horseshoe, a rider, a skirmish, a battle and ultimately a war were lost, all for the want of a horseshoe nail. Locals Against Party Down South was far more than a mere nail. LAPDS was a full blown war. 11,400+ of my friends and neighbors acted before they thought. They were quick to anger and slow to think, quick to judge yet slow to analyze the reasonably foreseeable consequence of stupid behavior.

Worst of all, the proponents of LAPDS and their blind followers engaged in stupid behavior exceeding that of the cast of low class television reality show. Everyone along the entire Gulf Coast will pay an economic price thanks to the pseudo-morality of the easily offended.

We have seen hate campaigns fuel hysteria before. Today, it is the scourge of underage drinking. A harsh law enforcement crackdown like this, against an entire group of people solely based upon their age, education and presence, is precisely what happens when hate campaigns poison social discourse and create the very breakdown in social order. And I fully expect to see this ugliness displayed against the LGBTQ community in just a few weeks.

Let us hope the hate campaign fails to ignite an aggressive law enforcement attack on another community.

Florida Domestic Violence Charge Defenses: Accident

2014-03-15T09:52:00.000-06:00

There are some defenses that seem so obvious that the mere stating of them seems obvious to the point of explaining how to breathe. Accident is one of those defenses, yet it is a mistake to assume the patently obvious is patently obvious in the mine field of Florida criminal law.

The reason is simple: jury instructions. Jury instructions are a political football and domestic violence charges are a hot button issue. For this reason, it is a good thing that this defense is recognized: gender politics have thrown this defense into question.

Example: a young man is in a crowded beach bar and bumps a woman's breast with his elbow. Drunkenly enraged, she then has the bouncer grab the man for off duty police officer working at the bar. She claims he pinched her breast. At high, drunken volume.

So, the report reads as follows:

"Suspect was contacted and asked to give a statement. At no time was he under arrest. Suspect admitted "possibly bumping the woman's breast" and appeared nervous. Witnesses Jane X and Jane Y each gave statements that the suspect was standing next to the victim, apparently leering at numerous women in the club, and left rapidly after their friend was inappropriately touched upon the breast. Upon finding probable cause, the suspect was taken into custody."

Translation: This guy was arrested, taken to jail, and at the very minimum charged with a non-domestic battery for bumping a drunk woman's breast on accident. His statement was used against him, and note how the report was written to make the entire incident far more sinister than it was.

Now, imagine these domestic scenarios:

"throw me the lighter" becomes "threw the lighter at the victim"
slamming the door, as you partner unknowingly walks into it turns into "slammed the door on the victim's arm/foot/face"
arguing while both of you are talking with your hands turn into "slapped the victim's hand"

Fortunately, there is the defense of accidental contact. Unfortunately, it usually comes down to a swearing match. However, when skillfully used, it may result in a voluntary dismissal, but only after a lot of legal work and education of the prosecutor.

Florida Domestic Violence Defenses: Mutual Combat

2014-03-12T07:11:00.000-06:00

This is one of my favorite defenses to discuss, and it is rarely handled correctly.

First, we've already discussed Florida's "Primary Aggressor" law which means that if law enforcement is called on a domestic, someone is usually going to jail. However, this leads to a second point which is often poorly understood and not effectively taught in law enforcement seminars. Or there is a policy decision (read politics) to lock one of them up and let the court system sort it out. Either way, someone who engaged in lawful conduct - mutual combat - is arrested and now needs a criminal defense attorney licensed in Florida.

Mutual combat assumes both parties are engaged in wrongful behavior. This differs from self defense because someone engaged in self defense is, by the very nature of self defense, not guilty of the charge because they are the actual victim who is not required by law to suffer a battery.

In the domestic violence context, what often happens is that one party will make a statement such as "the other person hit/pushed/slapped/bruised/grabbed me" and leaves out the part about their mutual combat with that person. Legally, if two people want to fight each other - without causing serious injury - it is lawful. In other words, both parties decided to give consent to engage in a) intentional touching, that was b) harmful or offensive.

This type of defense may be a trial defense or in some fact patterns, actually subject to a motion to dismiss.

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Florida Domestic Violence Defenses: Consent

2014-03-11T12:13:00.000-06:00

Everyone understands the basic concept of self defense to an assault, a battery or any form of domestic violence. But . . . consent?

Yes, consent is a defense to many (but not all) forms of assault, battery and domestic violence. Here are some caveats:

Will work for misdemeanor charges, such as battery, domestic violence
Will not work for felony charges such as aggravated battery, domestic violence

For example, let's say a couple has had a few drinks at a party and starts arguing. During the argument, one party spreads their hands wide and says "take your best shot." The best shot does not rise to the level of an aggravated battery with great bodily harm, but does result in the ~~braggart~~ complainant getting hit in the stomach and dropped to the floor breathless.

As the party attendees commence to howling in laughter, and the complainant begins hurting more from the wound to the pride, 911 gets called and the happy occasion of spontaneous entertainment during sobriety challenged festivities ends when the police arrive.

Although ~~winner~~ initiator of the fight gets a free ride to jail and is ultimately charged with domestic violence, battery, when it goes through the ~~wringer~~ legal process and comes up for trial, the defense of consent will prevail.

This defense is related to mutual combat (which presumes both parties are at fault), but is unique in that it is as if the case law is really saying, "Hey! Idiot! Don't ask for someone to take their best shot and then complain when they did!" However, in the case of aggravated battery, the law also basically says "no, you can't break someone's jaw or cut their arm off - that's not allowed."

This last one actually happened in a case I handled eons ago: my client instigated a second fight after the first one resulted in his friend getting beaten to the ground in the parking lot. During the fight, which occurred three weeks after getting out of prison, he cut the other person's arm so badly, it had to amputated. His defense? The guy asked for it: consent.

Yet this defense was of no avail, and he was sentenced to eight (8) years in prison (the State originally wanted fifteen (15), but we worked out a deal.

So, yes, consent is a defense to battery and assault, in both domestic and non-domestic scenarios. However, if given the option to take your best shot, your best bet is to decline.

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MIP Scam? Spring breakers charged with Minor in Possession of Alcohol

2014-03-10T10:48:00.002-06:00

Recently, the State of Florida came up with an amazing legal scam with Minor in Possession (MIP) charges. The scam works like this:

First, everyone in America knows that the federal government forced the states to raise the legal drinking age to twenty-one (21). Minor in Possession is now a crime nationwide. Everyone knows that this law is utterly ridiculous, and the government has turned into a way to win elections.

Second, the scam starts with the police arresting minors in possession of alcohol, but issuing a criminal summons. On the back of the criminal summons is a waiver of rights and a fine.

This next part is brilliant:

If the Minor gets the criminal summons notarized and pays the fine, they don't have to go to court. Since most live out of state and come hundreds of miles for Spring Break, a court appearance would cause problems in school and parents would be likely to find out.
If the minor contacts a lawyer, the legal fee is higher than the fine. So, most minors in possession of alcohol just pay the ticket and chalk it up to experience and laugh it off.

The State Attorney in Florida is a politician. Since the case is a crime, the plea of guilty or no contest is counted as a "win." When the election cycle rolls around, these cases make the elected State Attorneys look like they are the best lawyers on Earth, and that they win most of their cases. They conveniently leave out the fact that all of these "wins" are not courtroom victories in trial. They go on to argue that they "tough on crime," using these "statistics" to prove their point.

But what about the students? They have been scammed:

Most don't realize that they have been arrested because they were not taken to jail.
Most don't realize that they now have criminal history that will show up on background checks.
Most do not realize that they cannot get their record expunged for at least ten (10) years.

Most victims of the MIP scam look at the cost of hiring a lawyer (usually around $1,500 - 2,500, depending on the jurisdiction), and falsely conclude they can save money, avoid having to explain why they have to come back for court, and just "pay the ticket" rather than have their parents find out.

Then they wonder why they cannot get into grad school. They are puzzled by all of the alcohol and drug use questions during a job interview. They can't figure out why they cannot get a job.

The truth? They have a criminal history of substance abuse and thus no one will touch them. When they finally find out, the damage has been done and they have to wait ten (10) years for a record seal before they can get their record expunged.

Needless to say, they aren't happy when they call and find this out the hard way. The State of Florida has scammed them.

You will never get the best deal handling a criminal case by yourself. Ignorance is not bliss, it is painful. The smartest thing to do is to hire a criminal defense attorney in order to prevent this scam from damaging your future.

Florida Domestic Violence Defenses: Did Not Happen

2014-02-26T18:24:00.000-06:00

The most common variant of a defense that a domestic violence allegation did not happen is precisely that: nothing illegal happened.

This is a very clear defense in its purest form - the two elements of battery, intentional touching or striking that was harmful or offensive, simply did not occur. Either there was a mistake or someone lied or both.

However, many cases are not so simple. As discussed in the video below, parts of the allegations may be admitted while others are denied. Some cases are felonies, some defenses may affect other defenses or even eliminate them.

One thing is very consistent: Many are being pushed into "counseling" classes that may last for over six (6) months when they never broke the law. Worse, these classes are a prime example of the 80/20 Rule: they will help 20% of the participants and will fail 80% of the time.

You read that right - domestic violence classes have a failure rate that often exceeds 80%.

Why? Two reasons.

1) Many of the class participants should not even be there in the first place. They foolishly tried to handle the case on their own, and found themselves imprisoned in worthless rehabilitation classes for "domestic abusers" when they never committed any act of domestic violence. Of course, they are blamed for their reluctance to admit to abuse that never occurred.

2) As I have pointed out repeatedly in other posts, such as here, an accurate diagnosis is required in order for treatment to be effective. Where the diagnostic model consists of "what's your charge?" followed by the conclusion "You need domestic violence counseling!", we have a problem. Treatment is only as effective as the diagnosis. Yet Florida has the usual, feel good, one size fits all approach. Thus if a woman or a man commits an act of domestic violence and really need treatment, they get a political solution to a medical problem.

Finally, not to harp on the oft stated and blisteringly obvious, but a large part of the problem is Florida's "somebody is going to jail when the police are called on a domestic" law (determination of the "primary aggressor" by statutory requirement). As a result, mistakes are made in the field, and people are going to jail for crimes they did not commit. Yelling during an argument is turned into an assault by the legal process, despite the fact no actual assault occurred. In the same manner, snatching the keys to your own vehicle becomes a battery. When neither an assault nor a battery occurred.

Florida Domestic Violence Defenses: Witness will not show

2014-02-26T08:49:00.001-06:00

The first defense in this series on Florida Domestic Violence Defenses is that the witness will not show up to court. Usually, but not always, this refers to the Complaining Witness (the State will often call this witness "the victim," which is not permissible in front of a jury).

Unfortunately, over the last two and a half decades, I have seen more unrepresented defendants blow their cases with this defense than all other defenses combined.

Although fraught with danger, many people delay hiring a skilled Florida criminal defense lawyer because they have a fantasy belief (usually the product of wishful thinking plus inexperience) about how the criminal justice system works. They sincerely believe either 1) the Complaining Witness can just decide not to testify or, 2) that the Complaining Witness has the power to unilaterally drop a domestic violence charge.

Here is what really happens: the State will subpoena the Complaining Witness and offer to put them behind bars if they refuse to testify. Since judges tend to take a dim view of witnesses blowing off a subpoena, the threat is real: people do go to jail for refusing to show up to court to testify.

The Complaining Witness does not have the power to drop the domestic violence charges. Only the State can file criminal charges and only the State can drop criminal charges. But by the time most unrepresented defendants fully appreciate this rigging of the system, their plea bargain (which is never the best one available - they have no lawyer, so no realistic threat of trial) is revoked. Now they face a lifetime of legal harassment for having a domestic on their record or a lifetime of harassment and jail time.

The mechanism to compel testimony against someone's will is usually a Motion for an Order to Show Cause (why the witness should not be held in contempt of court). This motion is routinely granted when a witness does not show up for a domestic violence trial. If found to be in contempt of court, the witness will be punished in some manner. This threat is how the Complaining Witness is coerced into testifying against their will.

Key point: the witness will be told not to commit perjury (a felony), but also will be told that if they change their story (often admitting the truth about what really happened), they will go to jail on the spot for Filing a False Police Report. Although very few Complaining Witnesses are ever charged, the threat produces the desired result: coerced testimony. The unrepresented defendant usually finds this out at the last moment, and a plea of guilty or no contest is crushed out of them by a prosecutor who knows how to work the system.

Final Note: this defense will work, but don't screw up your case and then call a lawyer - by then it is too late. Problems do not get better with time. Act quickly, and avoid the land mines in the legal minefield of criminal law.

Florida Domestic Violence Defenses: Definitions

2014-02-25T07:51:00.001-06:00

Definitions are extremely important. How things are defined can determine how a case result is obtained - or not. Therefore, a quick video primer on Florida Domestic Violence Law definitions is extremely important.

Note: Florida Criminal Law contains numerous definitions and to cover all of them would take an eternity. So, only the basics are covered here.

One of my favorite examples definitional disaster involves "assault and battery" since the phrase is commonly misused, and gives the impression that they are one and the same. However, assault is not a battery and a battery is not an assault. The penalties alone are strikingly different, even in the context of a criminal misdemeanor: assault can result in sixty (60) days in jail; battery, up to a year. The simplest way to describe the difference is to liken assault with a swing and a miss, and battery as a swing that hits. This is grossly oversimplified, but gives a good mental visual of the difference between the two.

Florida Domestic Violence Defenses: Introduction

2014-02-24T12:56:00.001-06:00

This is the first in a series of videos discussing common domestic violence defenses in Florida. This is not an exclusive list by any means. There are many defenses that aren't covered, but this gives an idea of how criminal defense lawyers handle such cases.

The basics of defending assault and battery are covered, but sexual offenses in the domestic context will be dealt with in another series.

Domestic Violence Trial: Dismissed

2014-02-15T20:25:00.001-06:00

No court on Monday. No jury selection, no battery trial. Why? A prosecutor did the right thing. After far more months of effort than it should have required:

Full case number, personal identification information and fact pattern redacted. Here is the problem with Florida criminal law.

This domestic violence case should have never been charged. However, it really isn't the police officer's fault: they are required by statute to determine a "primary aggressor" and then somebody is going to jail. That's the law in Florida. If the police are called on a domestic, someone goes to jail.

And when it was investigated, guess what we learned: "the witness did not observe the events that occurred within the premises."

Also - this is omitted from the Nolle Prosequi - there was no "victim" in the case, thus no desire to testify.

The State really tried to crush a Pre-Trial Diversion out of my client. This is now a common practice of how bad cases are handled by the government - a diversion offer where there should be an unconditional dismissal. We had to fight for this result.

Yet at the end of the day, because we were absolutely ready for trial, for the second time in two weeks, a false domestic violence charge was dismissed. When confronted with the facts, the State Attorney agreed to do the right thing on a charge they prosecute seriously.

Ratings of Florida Criminal Defense Lawyers

2014-02-14T20:32:00.000-06:00

Although I touched on the rating of a criminal defense lawyer yesterday, it's time to really clear the air about a few things. My opinion on this subject is the result of years of reflecting upon the subject and from my experience as a practicing criminal defense attorney who runs a law firm.

There is entirely too much marketing spam which confuses the public, in my opinion. These rating systems are really about selling advertising for the rating service and is all about marketing for the DUI or criminal defense lawyer or law firm.

For example, at the time of this writing, I have a perfect "10" AVVO rating, but so what? Does the lawyer rating system used by AVVO have an exam requirement? No. Does their lawyer rating system have a trial requirement? No. A chance to buy online advertising? You bet. Even better, their "online lawyer reviews" can be gamed.

How about Thompson-Reuters "Superlawyers" lawyer rating system? No exam, no trial requirement but a chance for the lawyer or law firm to . . . buy advertising!

Finally, the venerable Martindale-Hubble lawyer rating system: Again, no requirement that a DUI or criminal defense lawyer has any actual trial experience and no exam. However, "Lawyer ratings raise your firm’s standing in the legal community while boosting your legal networking potential" according to their website, and of course you can advertise with their company to . . . promote the rating they gave you!

None of these ratings for Florida DUI and criminal defense attorneys compares to the Florida Bar's Board Certification program. Becoming a certified lawyer is extremely hard. As it should be.

When hiring a lawyer, consumers deserve more than marketing spam and gamed online lawyer reviews. The cost of advertising on the web for these essentially useless DUI & Criminal defense lawyer rating systems is passed on to you, the consumer of legal services.

What is a Florida Criminal Law Specialist (expert)?

2014-02-13T10:38:00.001-06:00

The legal terms "specialist" and "expert" are very precise in Florida. Unlike pseudo-rating services that purport to give unbiased information about a criminal defense lawyer's qualifications and experience, Florida's Board Certification program is the only rating of a criminal law attorney that really matters. Here's why:

1) Actual trial experience involving serious and complex cases is required. Pseudo-rating services do not require actual courtroom experience.

2) Peer review has a second component under the Florida Board Certification program: people in your field who may not like you get a chance to give their input. This alone is a tough hurdle.

3) A lawyer cannot pay their way or game the lawyer rating system with Board Certification. Board Certification is real, not some marketing slogan.

4) The criminal law certification exam makes the Bar Exam look like kindergarten. It is extremely hard and one of the reasons so few Florida criminal defense lawyers are certified in criminal law.

People often ask me what I specialize in as a lawyer. The answer is very precise: I am a Florida Bar Board Certified Specialist in criminal trial law. If you or someone you love needs a criminal defense attorney, just ask "Are you certified by the Florida Bar as a specialist in criminal law? The answer is either a "yes" or the story as to why they are not.

Arrested on vacation in Florida?

2014-02-12T08:24:00.000-06:00

In an earlier post, I referenced being arrested in Destin, FL, while on vacation. However, getting arrested anywhere in the state is just awful. We can help if you or your loved one has experienced this vacation destroying event. Here is a short video about being arrested on vacation in Florida. We can help in any and all of Florida's sixty-seven (67) counties:

Traditional Criminal Defense Plus Crime & Treatment

2014-02-03T12:20:00.001-06:00

Occasionally, I get to do something with Florida Criminal Law that brings me total joy: filming for one of my video projects.

My mother was an educator so it must come from her. In a little over an hour, I will begin filming the most detailed explanation of Crime & Treatment ever recorded.

As many of you know, this journey actually began in 1991 when I began using Diagnostic Evaluations in a rather nontraditional manner. Back in the day, the only time someone was evaluated was if 1) the lawyer couldn't even hold a rational conversation with someone because they were so mentally ill that they were incompetent, or; 2) the person was in the category often described as "I think I am Jesus."

However, it became apparent to me very early on that many people were sane, but simply unable to make good decisions despite knowing about the damaging life consequences of their behavior. Most of my colleagues, the prosecutors, the courts, probation and others simply dismissed people who repeatedly get into trouble, violate probation, etc. with labels.

"Loser" was a common label, and along with all of the others, there was this complete belief system filled with preachy judgment, and to put it bluntly, cruelty. I cannot tell you the number of times someone would use intensely judgmental language about criminal behavior, yet when questioned about their beliefs and conclusions, this person would sometimes get angry when the logical flaws in their thinking were laid bare.

They not only did not "get it," they didn't want to. They were so invested in believing nonsense, that they could not even conceive that their conclusions and beliefs were not accurate. Thus the educational process began.

Today, society still has quite a few moments where getting it is elusive, but today I get to spend a couple of hours out of my busy day educating people about the key role of brain health when it comes to solving the problem of crime, one person at a time.

Chronic stress, economics, crime and social order

2014-01-31T10:45:00.000-06:00

Many of the cases I handle as a criminal defense lawyer in Florida are rooted in chronic stress. Consider:

a couple has chronic stress related to money, and they fight and argue until a real or fabricated case of domestic violence erupts
someone making over $20/hour in 2007 goes through a long period of unemployment, and by 2014, is barely employed and making less than half of what they made seven years ago. They begin drinking heavily and ultimately get charged with DUI.
broke his entire adult life, a desperate twenty-five year old male robs a convenience store.
a teenager watches his parents lose their jobs, their home, and barely survive on the margins, living minimum wage paycheck to paycheck, desperately poor and with no hope for a better tomorrow. Sinking into depression and anxiety, a gun is taken to school and, you can figure out the rest.

This is America today.

There is a mass homicide such as the shootings at Sandy Hook roughly every two weeks. As awful as such events are, isn't there are part of you that doesn't get surprised by this?

Moralists are quick to prescribe nonsensical quick fixes with one line sentences of pithy rhetoric, usually some form of childish black and white thinking which does little more than display a profound level of ignorance about the human condition.

Reality can be brutal: people without hope are dangerous. When their brains are scanned and the images are compared with healthy, normal range brain images, people who have been under chronic stress have negative changes to both the physical structure and operational parameters of their most important organ in the human body. The organ that controls human behavior. Or not.

When PTSD is factored in, the result can be terrifying. When all forms of mental illness are factored in, as a society, we have to confront uncomfortable truths:

1) The people who are completely insane (what I loosely and unscientifically refer to as the "I think I am Jesus" category) they are not the problem. When someone is babbling nonsense claiming to be the messiah, discerning mental illness requires little skill simply because it is so obvious. And they are not the biggest threat. The ones that fly under the radar and appear to be somewhat normal, yet eccentric are extremely dangerous. Punishment does not deter them. Think of the Boston Bomber suspect who made headlines (again) today with the announcement the government is seeking the death penalty. How well did that threat of punishment work?

2) We are our brotherss (and our sisters') keeper. Unless we embrace and support a total breakdown of social order, mass homicides, bombings, Santa Slayers and a whole host of simply awful social ramifications.

Fortunately, we can solve these seemingly intractable problems with an investment in our people, despite the unpopularity of talking about income inequality and the fact that crime is a medical problem. It has been reported that 400 Americans have a level of wealth equal to the lower 150 million in our country, and worldwide, that 85 people have half of the world's wealth. Quick point: when was the last time you heard about a billionaire losing it and committing a mass homicide? How about a robbery?

You haven't. It doesn't happen.

In America, when half of the country has no realistic way to compete for a bigger slice of the economic pie, and the slice they have is getting smaller, it is easy to foresee that more mental breakdowns will occur.

Along with Greece, Spain, Ukraine and a host of other nations, Britain had a complete mental breakdown due to the chronic stress of economic anxiety in 2011: do we want that to happen here?

Decidedly not. Preachy moralisms are no answer. We either care for our brothers and sisters with our economic, social, criminal, medical, and taxation policies or we live with the consequences of our continuing failure to do so.

Florida Assault Law as explained by this criminal defense attorney

2014-01-29T17:18:00.001-06:00

Occasionally, I take the suit off. On this day, the video was produced with Lisa Northern Photography from Atlanta.
Florida Assault Law is often confused with the law of Florida regarding battery. This is why you often hear people speak of "assault and battery" as if they are the same thing.

Either an assault or a battery can be a form of domestic violence, and come in many different permutations. And they are extremely common because Florida law practically insures that if the police are called on a domestic, somebody is going to jail. My jury selection Monday? Allegations of domestic violence as noted in my prior post.

Florida Criminal Law Explained in 39 Seconds

2014-01-28T07:39:00.001-06:00

Florida Criminal Law is a television show I've hosted for years. This clip is all of 39 seconds, and it is probably the only time in my career where the entire criminal law legal procedure has been explained so briefly.
Many people do not realize how the criminal justice system will pull one over on them, especially when it comes to criminal misdemeanors and criminal traffic offenses. The government hopes people will show up, plead out on their first court date (usually arraignment, but sometimes called "Plea Day" in some counties), and get sentenced on the spot.

The result is that people think they are saving money on legal fees (reasoning that they are guilty, so this is a way to cut their losses), and end up with criminal history, miss out on legal defenses and never get the best deal possible. A criminal defense attorney in Florida will be able to help you get the best possible plea bargain if you wish to settle your case.

This short video clip shows the procedure when a criminal case is handled correctly.