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Can Intoxication Be a Defense?

In criminal law, historically a defense based on intoxication, in which the defendant claims diminished liability for their actions due to the consumption of alcohol or drugs, depended upon on whether the intoxication was voluntary or involuntary.

Can Intoxication Be a Defense? DUI Drunk Driving Attorney TampaIn Florida, if a defendant voluntarily consumes alcohol or drugs, commits a criminal act, then he or she may not rely on the effects of the substance as a defense. This is pretty straightforward. Through a 1999 Florida statute, the defense of voluntary intoxication, to show that a defendant lacked the specific intent to commit a crime, or was insane at the time of offense, was abolished.

Additionally, the statute also abolished the legal defense of involuntary intoxication. Prior to 1999, involuntary intoxication was a legitimate defense to drunk driving if explanatory circumstances could show that the intoxication was by accident or mistake. The statute, however, contains an important exception. If the defendant was accidentally under the influence of a (valid) prescription medication because he or she did not anticipate the effects of the drug (taken in a lawful manner). If the defendant was arrested, he or she might be able to claim involuntary intoxication.

If you are charged now, or in the future, with a misdemeanor or felony DUI in the Tampa–St. Petersburg–Port Richey-Hernando area, prevailing with a defense of involuntary intoxication is doubtful. But, the knowledgeable attorneys at Bauer, Crider, and Parry, may have a better legal strategy specific to your case. When your freedom and property are at stake, you need an experienced DUI attorney who will scrutinize every aspect of the alleged crime, craft an effective and aggressive defense, and expertly defend your rights before the court. There is never a charge for initial consultations. Call today.

Tampa DUI Podcast #6 Part 3

Arrested For A DUI in Tampa and Need a Lawyer

So that kind of leads us into the next area which is the breath test area. The breath test aspect of a DUI is something that comes after you’ve been arrested, and a person is asked to provide a sample into a breath test instrument. The breath test instrument is, they’ll usually be sitting right in front of the instrument around this time and the instrument can only be operated by breath test operators. People who are certified to actually use this instrument. Done at the jail. So it may not always be the officer who arrested you. Sometimes it is and sometimes it isn’t. And if the person refuses to submit to the breath test, the officer is going to read that person what’s called implied consent. Implied consent is a warning that basically has been provided by law to indicate the person that if they refuse to submit to a breath test, their refusal could result in a suspension of their driver’s license up to six months for the first time – I’m sorry, up to a year for the first time suspension and up to 18 months for a second refusal to submit to a breath test. So they have to read to this person that implied consent. If they don’t read them that implied consent, later on there’s things that we can do to get that person their license back if the officer takes it. The other thing that’s important to know, is if a person has been arrested before for a DUI, and they’ve refused a breath test previously on a previous arrest, a refusal to submit to a breath test is actually a crime. It’s actually something that you – it’s a first degree misdemeanor that you can actually spend time in jail for if you refuse to submit to a second breath test.

 

B: If you’ve had a previous DUI?

M: Correct, absolutely correct. And again, they have to be informed. That person would have to be informed that a refusal to submit to a test if they have a previous refusal is a crime. They have to be informed of that as well. And those are things that sometimes you get to pick up. I get to evaluate when the person is being asked to submit to a breath test. A lot of times there’s a video of that and I get to see the video. I get to see how the question was asked. I get to see if the officer asked everything he was supposed to ask. If the person agrees to submit to a breath test, they’re going to provide two samples. What it is is you blow into this – it doesn’t look like anything from the future, it looks like a little box sitting on  a table and it has this tube that has a detachable part that they can replace for other people to blow into it. And you blow into this tube and it’s designed to get what they call deep lung air so they want you to exhale into this instrument for a prolonged period of time until you blow all of the air out. You have to provide two breath samples. And the reason you have to provide two breath samples is they want to make sure the instrument doesn’t have a wildly different result for the two blows. If you provide two samples, the samples must be within .02 of each other. If they’re not within .02 of each other, that person has to provide an additional sample. Before you provide a breath test, the officer is supposed to be observing you for twenty minutes, at least. He’s supposed to observe you for twenty minutes to make sure you don’t do things like burp, regurgitate, hiccup – things that might cause some deep lung air or something like in the pit of your stomach to come up, because that may have an impact on the accuracy of the result. They don’t want mouth alcohol. Mouth alcohol could throw the instrument off. The instrument is supposed to be designed to detect for mouth alcohol, but they try to avoid any kind of problems by making sure you don’t have any of these moments where you might – for instance, if you burp. If you burp,  you’re releasing things from your stomach and it tends to go into your mouth and it’ll throw – it’ll provide a different sample, potentially than what your breath sample actually is.

B: When do they do that? Or how do they document the twenty minutes?

M: That’s interesting. That’s actually a subject of litigation sometimes for a defense attorney. The officer documents when the twenty minute observation period begins. The best time to do it, the most legitimate time to do it I would say is when the officer takes you back to the jail and he has you sitting kind of in front of him and he’s maybe going over some paper work with the arrest or something like that. That would be the best time, before you provide a sample. I have seen instances where officers try to consider the 20 minute observation period the period that the person is taken into custody and he’s sitting in the back of the patrol car as he’s driving to the jail. The reason why I think that might be a problem is I’m sure officers are observant and I’m sure that they are skilled in what they do, I don’t believe you can have a very accurate observation of a person to see whether they burp, hiccup, or anything unusual prior to a breath test if they are sitting in the back of a police cruiser and you’re sitting in the car driving it. I just don’t think that provides you a very accurate twenty minute observation. I have seen lately that they start to do it at the jail, but it used to be for a long time I’ve seen them starting the observation period when the person was taken into custody. And that has caused a lot of cases to where you try to get the breath test results suppressed. You explain to the court that there’s a certain procedure designed that these instruments that are finely tuned and the process has to work a certain way in order for us to have any faith in the outcome of these results. And if the officers don’t observe that twenty minute observation period, we ask the breath test to be suppressed and of course, if you suppress the breath test you might again inch further towards reasonable doubt.

B: So after the eight hour holding period, that’s when they’ll allow a phone call or allow you to leave?

M: They’ll allow a phone call if – it depends on where you are – if you’re actually in a jail cell it might be more difficult. When they arrest you depending – every agency’s a little different, but usually they’ll have you in kind of a holding area. And there’s usually one phone available so you can kind of make a call when you can get to it, but it just depends on when you can get to the phone. But when the person, if it’s a person’s first time DUI in areas like Clearwater, Pasco County, Hillsbourgh County, or Hernando County, you might see that person released on his own recognizance for a first time DUI or maybe a bond of $250. And at that time when they bond out they really need to start thinking about what they’re going to do about a lawyer. The reason why is because in the state of Florida you have ten days – when you get arrested for a DUI – whether you refuse a breath test or you submit to a breath test and you blow above a .08 the officer will take your license from you. And when he takes your license from you he issues you a DUI citation and that DUI citation is good for ten days to get your affairs in order. And after that ten days, your license is suspended. In the state of Florida, within that ten days, if you either sign up for DUI school and go to the DMV within those ten days and tell them that you’ll waive any formal review hearing, which is an administrative hearing of your suspension, the DMV will issue you a hardship license which will last you throughout the DUI case. Some people want to challenge the stop, and I think there are some circumstances where I think it’s a good idea to actually have a hearing at the DMV. In that instance, you wouldn’t waive the formal review hearing, but you’d say, “I want a formal review hearing. I want to have an administrative hearing on whether or not you can take my license.” The DMV taking your license is separate and apart from the criminal court suspending your license. Those are two different moments that happen at two different points in time. The DMV is administrative. They say if you want to drive on our highways, you have to take our breath test. If you don’t, we’ll consider that a violation and we’ll take your license. So you’re entitled to challenge that. I’ve had hearings at the DMV where we challenge whether or not the instrument was properly calibrated and maybe the level that they say is not a level that you can have any faith in. Or maybe they say the person was advised of implied consent but maybe he wasn’t. In those instances, the person, if you win the hearing would get their full license back. It would be unfettered, there wouldn’t be anything for work or business. It would be for whatever you want. You can drive. The downside to having a formal review hearing is that if you elect to have that hearing at the DMV, if you lose you have to go through what’s called a hard suspension period before you can get yourself a hardship license. So if there was a refusal for instance, and we went through  a formal review hearing and we tried to beat the suspension, but the facts were that we couldn’t, and the DMV affirmed the suspension, the DMV would then say that the person could not drive for 90 days. And after that 90 days, if that person signed up for DUI school, that person could get a hardship license. If it’s  a breath test above a .08 and you lost that formal review hearing, the DMV would say, “that person cannot drive for any purpose whatsoever for 30 days.”  So, in my experience, it’s always been the best idea to waive the hearing because you get very little. You could win the hearing – great, you have a license without restriction. But you could lose so much. I mean, there’s a lot of folks who if you told them they couldn’t drive for 90 days whatsoever, they wouldn’t know how to operate. They wouldn’t know how to get to work.

B: They’d lose their job, yeah, so the recommendation after you get out of jail is really pretty much immediately call an experienced criminal defense attorney like the partners there at Bauer, Crider, and Parry.

M: Absolutely.

B: Then you can get that ten day process started.

M:Correct, cause we can get you in contact with the DUI school that you need to get in contact with to sign up for and then we can get you in contact with where you need to go to get your license. And listen, doing DUI school isn’t saying, “I’m guilty of the DUI.” That’s unfortunately a requirement to get your license that the state of Florida has. I want everyone to know when they come in to hire a lawyer for a DUI, it is not something where we say,  “how do we just roll over and get this thing done so that it doesn’t hurt?” We want to fight these things and we always start off with an idea of “how do we beat this?” Obviously, as you look at the case, and you fight with the case, and you get experience with looking at it, the lawyer can get that person advice on what the best plan of action is. But it’s always gonna be in the very beginning “how do we get this thing beat?”

B: So, at Bauer, Crider & Parry somebody calls your firm – they’ve been arrested for a DUI – do they speak to a paralegal or do they actually talk to one of the attorneys?

M:It’s been my – obviously the paralegal is going to answer the phone – but it’s been my experience that folks who go through this process and have been arrested are scared. Their whole life is kind of spinning around a little bit and they want to talk to somebody who can give them some comfort in knowing what there is to expect. So because of that, we have everyone talk to a lawyer. Sometimes they have to leave a message and the lawyer calls them back. But when you’re talking about your case and giving information, you’re talking to a lawyer.

B: Great. And name the lawyers at your firm real quick for me.

M:We have Robert Bauer. We have Ronnie Crider. We have Curtis Crider, David Parry, and yours truly, Michael Kenny.

B: Mike, anything else?

M: No sir.

Tampa Drunk Driving Criminal Defense Lawyers Podcast #5 Part 2

Tampa Drunk Driving Criminal Defense Lawyers

B: So let’s go down the no path and then let’s go down the yes path. So if you are impaired and you say no what’s the next steps that the officer would make?

M: A lot of times the officer will try to convince you that doing the field exercises is in your best interest. The officer will typically say, “well, listen, that’s within your right to say no to the field sobriety exercises but I want you to understand that if you say no I’ll have to base my decision on everything that I’ve seen so far rather than give you an opportunity to allay my concerns that you’re driving under the influence.” It’s almost like, “I’m gonna give you the opportunity to prove that you’re not DUI”, which by the way is not even how our system works. But what the officer is saying is, “I pulled you over. I’ve got some suspicion that you’re impaired and you’re going to refuse this test so I’m taking you to jail.” That’s basically what he’s saying.

 

B: OK and so they hand cuff you and put you in the back of the car, read you your rights, correct?

M: Yes and the miranda warnings come at different times but you get handcuffed and taken back to the jail. At that point, when you’re handcuffed, there’s another step that’s the breath test step. The officer would ask if you’d be willing to submit to a breath test because even though you refused the field sobriety, believe it or not there are some folks who refuse the field sobriety and say yes to the breath test and there are some folks that say no to the breath test and yes to the field sobriety. I’m not ever sure I understand why it’s either no or yes I don’t know why you’d break it up but that would be a separate set and there would be questions that the officers going to ask you questions and read you your miranda warnings and document where you’re coming from and how much you had to eat that day, what you had to drink if you had anything to drink at all, if you feel like you’re under the influence of an alcoholic beverage. Those are kind of the standard DUI questions.

16:58 B: At the point that they get arrested, and they are taken back to the jail, when do you recommend that they contact you?

M: It would be great to be contacted the moment it happens, but there’s obviously some impediments to that. When they handcuff the person and put him in the back of the car, he’s not calling anybody. And he probably is going to go back to the jail and he’ll be sort of in a holding area, in the state of Florida, they hold folks for 8 hrs at a minimum before they get any type of bond. And they’re usually sitting in a holding area and they don’t, you know maybe they get to make a phone call, they probably call their family first to let them know where they are. I would say the following day would probably be the best time to call. When you get out of jail and you’ve kind of had some time to rest because you probably had a miserable night.  You’ve had some time to rest and get some clear headedness about you. Start thinking about what you’re gonna do about this case.

B: OK so you say if you say no to the field sobriety test, more than likely if you are impaired, they’re going to take you in and then they’re going to ask you if you’d take a…if you want to submit to a breath test, and that’s their choice whether they say yes or no.

M: It is, the driver has the choice. They can’t force it on you. In the state of Florida, they have a thing called an implied consent, meaning if you drive on the highways of the state, you’re implied to have consented to all of it. The field sobriety test is required by law, so if you refuse the breath test (the breath test only) the DMV, the officer will take your license for a year and the DMV will basically suspend your license for one year. Then there’s ways around that and we’ll get to that. That’s kind of after the arrest portion.

18:50 M: So, the refusal of the breath test is completely up to the person getting arrested, but again, there are some consequences that that person would need to be aware of and the officers inform them to a degree about those consequences. But, getting back to assuming the person agrees to submit to the field sobriety exercises, in every circumstance I’ve ever seen in a DUI case, it always starts off with the first one being HGN. HGN is a standardized field sobriety exercise called horizontal gaze nystagmus. That’s something that folks may have seen, whether they watched the tv show Cops, or they’ve seen any kind of show, there’s this test where the officer is standing in front of the suspect and he’s holding up either a pen or a lighted pen. And he kind of stands right in front of the person and moves the pen in front of the individual’s face. And he moves it from left to right. The person has to look directly at the pen, not move his or her head, and just kind of move his eyes to follow the pen. That test is actually almost a medical test. It’s designed to detect the involuntary shakes that your eyes get. I’m going to describe it as shakes. These involuntary movements that your eyes get when a person consumes alcohol. It’s really actually a very good and accurate test if it’s performed appropriately. My concern is some of these officers who are performing the test really don’t know how to perform the test and they really don’t know what it is they’re looking for specifically. You know, you get kind of this crash course in DUI detection I’m sure in the academy and maybe some more when you’re working but I think that this test which is designed for medical professionals may not always be as well performed when it’s performed by law enforcement officers.

B: And if it’s late at night, it’s dark, they’re more than likely putting a flashlight in their eyes as well.

M: Yeah, usually the stimulus, they call it, the pen or whatever it is usually is going to be one of those lighted pens. What’ll happen is the officer is going to determine whether he sees what they call the nystagmus. And if he sees it, he’s gonna have a pretty good indication there that he’s got something. The unique thing about the HGN test is it’s really not something that a juror can see. You know, if you’re talking about trying a case, what you see is a cop standing in front of a suspect and you see him moving a pen from side to side but you really don’t see anything else, because the camera is never really so close to  person’s eyeballs where you see these shakes. So, although it may have and I think it’s probably one of the more reliable exercises that they do, it may be very difficult for the lay person to even appreciate the significance of it. And it may, quite frankly, have an impact on whether or not anyone even believes it’s enough to be found guilty of driving under the influence. So the actual definition of a nystagmus is “an involuntary jerking of the eyeballs” so you’re not going to be able to see that on video as you’re sitting in the jury box. And the other unique thing about it in the state of Florida, at least in this district, in Tampa, Pinellas, and Pasco Counties it’s really only admissible if the officer who performed the test is a drug recognition expert. That means, that officer has special training to detect drug impairment and other things and drug impairment including alcohol, to be able to talk about what the test actually shows, what it represents. Some officers are qualified because they can explain the test and explain what it’s for, but there are so many officers who do this test who really don’t know what it is that it’s actually doing and they can’t even testify about it in a court of law.

B: So as an experience criminal defense attorney, that’s one of the things that you look at is who demonstrated that test, and are they certified?

M: Absolutely, because the bottom line is if they’re going to put you through let’s say 3 tests, I can start to knock tests out and keep that from the jury, and I knock it out because I think it might be misleading. I think you’re inching your way to reasonable doubt.

B: Ok so that’s the first test normally.

M: Right and the walk and turn is the next test. The walk and turn is a test where the suspect – it’s called a divided attention task – so it asks the suspect to divide between mental tasks and physical tasks. The mental tasks include comprehension of verbal instructions, processing of information, and memory recall. Memory recall because the officer basically gives you these instructions one time, shows you how the test is performed, and then tells you “go ahead and perform the test”. So you can imagine, a person who gets pulled over and is nervous as heck because they just got pulled over by a law enforcement officer, nervous that he’s asked to run through a battery of tests, then shown a test for one time and one time only and then asked do it. This person knows every step he makes is going to be crucial, but I think nerves sometimes play an impact on abilities or a person’s ability to recall the instructions. Because I see that a lot.  I see them not recalling exactly what the officer told them. Because your mind is probably spinning at that precise moment.

B: Yeah, you’re scared. You’re afraid you might be going to jail, so it’s

M: Yeah, it can be nerve-wracking for anybody. Anybody, whether you’ve had nothing to drink or a bunch to drink. So the walk and turn essentially is the officer finds an area on the road that he believes is as level as can be and you walk 9 steps, heal to toe, in one direction and then the officer would ask you to pivot and walk 9 steps heal to toe back. And there’s two major points about this walk and turn test that causes some problems for some folks doing it. At the very beginning of the test, the officer is going to ask a person to take his right foot and put it in front of his left foot and hold that position. The officer is going to have that person have his heal to toe position and kind of hold that position while the officer is explaining the instructions. During that time is where you see a lot of difficulty with folks standing up. It’s an unusual position to be standing in, quite frankly, 25:48it’s not something that you would normally do. In a resting position you wouldn’t stand heal to toe like that and you find people have a hard time keeping that position.  And then after the officer explains the instructions and the person is asked to walk 9 steps heal to toe, although it’s called a heal to toe test, the instruction does allow a little bit of space between your steps because you don’t want to be stepping on your feet basically and you have to account for some bigger shoes sometimes. And then you can pivot, and the pivot is – he’ll kind of explain what the pivot looks like –  and you’ll pivot and walk 9 steps back. And the officer is looking for a lot things; your ability to remember the instructions, whether or not you walk off the line, whether or not you walk heal to toe, whether or not you sway or fall or use your arms for balance. So it’s a whole number of things and it’s aa difficult test for someone who’s quite frankly been impaired, let alone, I’ll be honest, it’s a difficult test probably for someone who’s never done it whether you’ve had nothing to drink. After that, and usually the final test, is the one leg stand. The one leg stand is where the person is told to hold one leg off the ground and keep their hands at their sides and keep the one leg off the ground for 30 seconds. They can pick whichever leg they want to use. The officer obviously in that point is detecting whether or not they follow instructions, whether or not they sway, whether or not they put their leg down, how many times they put their leg down. And again, at that point, if the officer believes he has seen enough to believe that the person is under the influence, he would take the person into custody and at that point transport him back to the jail.

B: 30 seconds, that’s actually kind of even physically hard too for some people, correct?

M: Right, and that’s the amazing thing about these field sobriety exercises. The exercises are designed, obviously to catch impairment in folks, but they’re also difficult tasks for some folks who have some issues. People who are overweight tend to have a much harder time performing that one leg stand that you’re talking about. People who are elderly, over a certain age, have a much more difficult time performing those exercises, because their balance tends to be impaired a little bit. As you age, your balance gets a little bit different. People who are injured, you know, someone who has a leg injury or maybe an old hip injury or maybe a back injury and standing on one leg may cause some pain, all of those folks are gonna be folks who are gonna perform differently than say this perfect athlete. And the actual field sobriety test asks the officer to take those things into account, before anyone takes  a test, whether it be the HGN or anything, the officer asks the person whether or not they are sick or injured? What injuries they have? They try to document it. But it really doesn’t take into account, there’s a certain weight limit. There’s a certain, I don’t want to say weight limit, but once you’re I believe it’s 50 pounds over, I gotta correct that, but once you’re overweight by a certain amount, you’re gonna have a significant impact on your ability to perform these tests properly. And the officers don’t always take that into account, to be quite honest with you, and I’m sure a lot of them don’t even know that there’s kind of a weight standard. I’m sure they don’t even know there’s an age standard for what they’re supposed to look for when people are going through these tests.

29:18 B: So the standardized tests, those are the three main ones that the state of Florida does, correct? Is there any other ones that they do or is it just those three?

M: There are two more. There’s the Romberg Alphabet Test, which is where a person is asked to recite the alphabet without singing it. Without rhyming it or trying to do anything like that. They just say A B C D. And then the other test is the finger to nose test, which you may have seen before on any kind of television series, or television show. Where the person is asked to point their arm out and the officer will tell them which arm to place on the tip of their nose, and they’re graded. Those two are used less frequently, only because the officer a lot of times feels like his determination can be made with the first three tests that are performed.

B: But they could do all five?

M: The person could be asked to do all five, yes. So, at this point, let’s assume that someone’s gone through these tests, the officer determines that there’s probable cause to arrest the individual for driving under the influence. At this point, the person is placed in the handcuffs and it’s only at that point where the officer requests them to submit to a breath test. This is the most unknown thing about DUI’s in Florida is that you have to be arrested first before the officer is allowed to ask you to submit to a breath test. And the reason why that’s, I think the reason why that’s interesting is because if this person gets arrested and gets taken back to the jail and submits a breath test and the breath test is 000 – meaning there’s no alcohol in this person’s system whatsoever, that person is still gonna spend the night in jail, and still gonna have a DUI charge, because he’s been arrested. Once the arrest happens, that’s it. There isn’t anything you can do to get yourself out of jail from that point. So I almost wonder the point in providing samples, because you’re done. You’re arrested, you’re going to jail, and unless someone feels that they are certain that if they blew into that instrument it would show that they weren’t drinking and they could use that later to help in a trial. But it really is that once you’re arrested, you’re spending the night in jail.

B: So sometimes I would think, can you skip all these tests and give me the breathalyzer, they can’t do that because you have to be arrested first.

M: Yes, so you could say, “I want to skip the field sobriety exercise,” but that means that you’re gonna get cuffed, go to jail, and provide a sample at the jail.

B: So you’re basically refusing the field sobriety test and sending yourself to be arrested.

M:Right and there isn’t any providing a breath test to get out of being arrested. That doesn’t exist in Florida. So the bottom line is, if you find yourself sitting in front of an intoxilyzer, you are arrested and after you provide that sample, you are going to spend the night in jail. No matter what the sample is.

 

Contact the Bauer, Crider and Parry lawyers today.

Tampa DUI Attorneys Podcast #4 Part 1

Tampa DUI Attorneys

Brad: You are listening to the Bauer, Crider, Parry Podcast. Bauer, Crider, Parry is criminal defense attorneys in Tampa, FL. Bauer, Crider and Parry are effective Tampa DUI Attorneys and e are speaking to Mike Kenny. Good morning, Mike.

Mike: Morning, how are you?

B: I’m doing well. Let’s kind of jump in this morning.  We are going to be talking about just the DUI process, correct?

M: Yes.

B: Well, tell us a little bit about some things that we need to know about DUI’s.

M: Well, sure, it’s actually there’s separate steps along the way on in a DUI investigation. You have the stop part of an investigation where an officer actually has contact with the person driving a car. And there’s a lot of things that happen there during the stop that are very important.  And definitely very important from a criminal defense perspective. And after you have the stop, you have this investigation phase where the officer makes contact with the driver of the vehicle and maybe the officer feels that he picks up some clues of impairment.  And then they switch over to the actual performance of field sobriety exercises if the person agrees, and finally there’s an arrest, and after the arrest, believe it or not is when the breath test occurs. So it’s a very interesting process. I think a lot of people don’t know about it. As much as they may believe that they know about it, there’s a lot of things that have to happen in a certain matter. So, the stop phase, the first phase, the most important phase, when it comes to that officer having contact with you is the reason why the officer pulls the driver over. There’s really a couple of reasons why someone would get pulled over in a DUI investigation. The first one could be a completely benign reason; speeding, running a stop sign, something that isn’t necessarily related to a DUI in and of itself.  Plenty of folks, I’m sure everyone can raise their hands, get speeding tickets and it has nothing to do with drinking. So those are probable cause type stops.  Where the officer has actually determined there’s probable cause to pull a person over because they’ve committed a civil traffic violation. Then there’s another set of stops, and these are reasonable suspicion stops. So it’s not probable cause that a crime has been committed but it’s reasonable suspicion to the officer that there may be something wrong with the driver. Either the driver is sick, injured, or impaired or that there may be something wrong with the vehicle. So the reasonable suspicion stops are the ones that I get kind of more interested in when a client comes in and starts talking about the basis for the stop. Cause quite frankly, there’s a certain set of things that an officer has to demonstrate in order to seize you. In order to stop your freedom of movement. And if the officer is unable to demonstrate that, that could make the entire case, essentially the entire case be suppressed, all the evidence after. So, in a reasonable suspicion stop, an officer might testify or might document in his police report rather, that he observed a car weaving within its lane a few times and based upon that weaving he made a determination to activate his overhead lights and initiate a traffic stop. Now, in the area that I practice, which is Clearwater, and Pasco Counties and Hillsborough Counties, that area is controlled by the second district court of appeal. The second district court of appeal is an appellant court that has issued a lot of rulings on what an officer needs to observe in order to have enough of a basis to initiate a traffic stop in those types of situations. In those situations, the officer would have to testify that he observed the driving for a period of time, and he would have to testify that there was something about that driving that caused this officer, based upon his training and experience, to believe for instance that the person was impaired. A lot of times in police reports that I get that I see the officers say that the vehicle weaved within its lane. Sometimes they even say how many times, often times they don’t. My experience has been that a slight weave within your lane certainly is not enough in and of itself for an officer to pull you over. And that’s important, because if an officer pulls you over for something that there certainly is not enough evidence established to show that he had reasonable suspicion, everything that happens after that stop, whether or not the person does miserably on field sobriety exercises, or has a very high breath test, all of that evidence gets suppressed. And the kind of the rule of thumb is that it’s got to be longer than one second, longer than that one weave. And you ask the question why? Why does it have to be more than one weave? And the rule is simple. Nobody drives their car on the road or highways perfectly straight. Everybody has some movement within that lane. The statute is almost designed to take into account that people don’t drive perfectly straight.

5:17 B: Is there a certain specific period of time that the second district

M: Yeah, well the courts are really careful not to give a bright line rule. They’re really careful not to say, “If you hit 8 minutes of following someone and you see this many weaves, it’s enough.” So the courts really like to talk about the totality of the circumstances, and that’s one of those things you have to have a gut feeling when you look at it as a defense attorney when you read it and you also have to do some research and find similar cases and similar situations. So they don’t talk about time so much, but obviously the longer is always better. When I say longer is better, longer is better from a law enforcement standard scenario to have enough to provide to the court as a basis to pull somebody over. One weave within a very short period of time, if you’re talking seconds, I don’t think is going to be enough. Obviously it depends upon your judge and who’s hearing the evidence too. But what you typically see in cases that have been upheld is that the officer would pace that person for a period of time, whether it be  a half a mile or longer, and be able to document certain things that would cause him concern that there’s something wrong with the driver. It doesn’t necessarily mean that he’s got to be under the influence but there’s got to be something about this driving is unusual enough to cause a concern for the safety of the driver or other people on the road. And again, one weave within the lane quite won’t do it. Someone, you know, adjusts the radio for a second, you might have a movement. Someone opens the glove compartment for whatever reason, you might have a shift in the vehicle and courts take that into account. There’s an actual statute called failure to maintain a single lane which is a civil traffic infraction. And the way these cases came to be in evaluating this reasonable suspicion to pull a person over is because a failure to maintain a single lane statute which often is the citation given to a driver who is arrested for a DUI is only applicable, you can only be issued that citation if the driving pattern of the person affects other traffic. So that is to say, if it’s three o’clock in the morning and a person tends to be swerving and weaving all over the road, but there’s no other traffic impacted by that, that person cannot be issued a civil infraction.  And why does that make a difference? Well, it makes a difference because if an officer pulls a person over for weaving on a road and swerving on a road and there’s no other traffic impacted by it, the officer would not be able to testify that he pulled a person over for probable cause and issued a citation for a traffic violation, because he wouldn’t be able to issue him one. He’d have to go under that second set of circumstances of the reasonable suspicion for a stop and that case is more involved. The officer has to provide facts that would cause a court to believe that there was reasonable suspicion that there was something about the operation of the vehicle that caused the officer to have a concern that he was sick, injured, impaired, or under the influence. So those are very important factors. When you talk to a defense attorney about a DUI, you come into our office in Clearwater and say, “Hey, listen, I just got arrested for a DUI.” And one of the first questions I’m gonna ask is. “Why’d you get pulled over?” because it really has an impact on how the case gets evaluated from the beginning, from the very first moment you have contact with law enforcement, you want your lawyer to know all about that and be able to investigate every avenue he can to defend you and to help.

B: And is that issued in the ticket or is that just a verbal between the person and the police officer that pulled him over?

M: Where we practice, the officers when they arrest people or a DUI, they fill out what’s called a probable cause affidavit. And a probable cause affidavit is what the officer fills out for the judge to determine if it’s probable cause that a crime was committed to hold them in custody or issue a bond of some type. So 99% of the time those probable cause affidavits provide a short basis for the stop. They usually say, we were patrolling the area on Drew Street and the affiant had the occasion to observe a vehicle swerving in its lane. Your affiant followed the vehicle for this far and then conducted a traffic stop. It would be something like that and then they get into the facts of why the individual may have been arrested for
9:54 B: Okay, and once they get stopped, you mentioned there’s clues of impairment.

M: Right, so once you get stopped, once the red and blue lights go on, the officer gets to obviously get out of his vehicle and make contact with you at your vehicle. And when that happens, what’s normally the first thing that’s going to happen is the driver of the vehicle is going to roll his window down. And when the driver rolls his window down, what I see in the overwhelming majority of cases is the officer would testify or indicate that he detected the odor of an alcoholic beverage emanating from the vehicle or emanating from the person. So that’s the first clue. Drinking, in and of itself, certainly isn’t enough. But when you begin to combine drinking with some other things the officer will have some indications where he believes it’s necessary to have the driver perform field sobriety exercises. And the typical things that officers observe are the color of the face, you know flushed face, I would say in a majority cases is what you’d find. Blood shot watery eyes is something that you find very often on the DUI investigations. And slurred speech so when you combine all of those things, if the officer stops his car, gets out, walks over to the driver and then the officer observes any of those things or any number of those things, you can rest assure the officer is going to start asking questions. Like, “Where are you coming from? Have you been drinking tonight?” and at that point the officer will ask the driver of the vehicle to get out of the vehicle and then he’ll begin the actual field sobriety exercise portion of the investigation. So, in that particular moment, when the officer makes contact with the driver and sees that there are cues of impairment, at that moment the driver is going to be asked a question. He’s going to be asked whether or not he’d be willing to submit to field sobriety exercises. In the Tampa Bay area where we practice, they’re called field sobriety exercises, some people might call them tests, the second district court of appeals has had an issue with the word tests because tests mean there’s a pass or fail aspect to it and that’s something that a jury should determine. Sp in our area, they call them exercises. And there’s actually in the state of Florida many years ago, I think it was back in 1985, there was a determination that there’d been a lot of DUI incidents and they wanted to develop a standardized set of tests that people under suspicion of DUI would go through and they wanted them to be standardized because they wanted to put these tests through kind of a process to where you can realize that they’re reliable. Are they able to determine impairment?  A lot of people have things like counting backwards and the alphabet backwards which you may have seen in certain tv shows and that’s not really standardized tests and that’s really not what’s used. These tests are designed to be consistent and have consistent results. So there’s several tests but they usually go in the same exact order and they usually only make you do three. The officer has enough after doing those three. Sometimes he might have a couple of others done.

13:15 B: Before we jump into that, Mike, when you’re asked to submit to a test, what do you as an attorney recommend?

M: That’s a good question. Well, I can tell you this, if you answer, “no” the likelihood is that you’re going to get arrested right then and there and go to jail. And if you answer “yes” and you feel like you’re impaired the answer is you’re gonna get arrested and you’re gonna to go to jail. So I’m not sure that your answer is going to change your ride that night. No matter what your answer is you’re probably going to find yourself sitting in the back of a police car. So here’s the bigger question: “What do you want to be thinking about in the long run?” And if your concern is in the long run you want to be thinking about what type of evidence the prosecutor has to convict you of a DUI then you might not want to be providing a whole bunch of evidence. And when I say that, if you feel like you might be impaired it might not be a good idea to perform those field sobriety exercises, because the likelihood is they’re going to be captured on camera and the likelihood is if you think you’re going to do poorly, you probably are going to do poorly. And that will make the case that much easier for the prosecution. It’s very easy to use the law. I can use the law and if the stop is bad the stop is bad and there’s cases that kind of support that. But when you have a trial and say that the stop is good, you have a trial and you can be an amazing trial lawyer, and I think that this firm has some of the best trial lawyers in the area, but it’s really hard to get past a video where someone is falling down. So that’s something to consider.

What should I look for in hiring a criminal defense lawyer in Florida? #3 Podcast

Hiring a Criminal Defense Lawyer in Florida

B: Good morning Mike. Tell me a little bit, what should I look for in hiring a criminal defense lawyer in Florida?
M: Well there’s a few things that I think are important when you’re trying to find the right lawyer for you. The first thing is that you’ve got to be comfortable with the lawyer. These people who find themselves involved with a criminal charge come in and talk to a lawyer and they have to share sometimes very uncomfortable unfortunate circumstances. And you want it to be someone that you’re comfortable explaining that with. You want it to be someone that you can have a conversation with, that you can have a dialogue with, because you’re basically both in this together. You’re both working together to achieve a common goal. So I think you’ve got to be comfortable with the lawyer. I think what helps that confidence is if you trust the lawyer. If you believe that the lawyer isn’t just gonna tell you whatever it is that you want to hear. A lawyer who’s gonna kinda shoot it straight, give it to you straight and tell you what certain expectations might be. And that helps in the comfort level because you begin to understand what might be out there to be expected – you know, what there is to expect. One of the first things that happens to folks when they get arrested is their world kind of just starts spinning and their mind starts wondering, “What’s gonna happen? Where am I gonna go? What’s gonna happen to my family? What’s gonna happen to me?” and this moment where you need a lawyer to kind of step in there and you have a comfort of him looking out for you and taking care of you. And you have a comfort that you can trust him kind of helps that spinning stop.
2:10 I’ll say not altogether, but it stops to a degree. Now as far as, that’s kind of a personality side of it. Then you want to move into, well who do you want to hire? You want to hire a guy who’s gonna get you the best possible result. And that’s not always easy to figure out by looking at somebody. I can assure you, it’s not easy to figure out by looking at somebody’s website. The only real factors there are to go on as far as who can get you the best possible result from what I can say would be experience and I would say skill itself. So those are two different areas. Experience is, has this lawyer handled a criminal case before? And not only has he handled a criminal case before but has he or she handled a criminal case of this nature before? Of this type? And there are lawyers who practice all types of things out there. There are lawyers who do one stop kind of shops for everything. Contract law, family law, probate law. And those are lawyers who are maybe not as experienced in maybe one particular area of criminal law. I’m not saying they can’t handle the case. I’m just saying that experience might be limited. And you want someone who when they get involved in your case is confident and comfortable in the area of law that he’s pursuing. You want the lawyer to be up to date on any recent decisions on a particular area of the law that might affect you. And that’s a lawyer who’s experienced. And then skill; you want a lawyer who has the ability that if he had to go in and fight for you, if he had to go in and fight the government and do his very best to get a jury to acquit you of a crime. You want a lawyer that you believe and that you know has that ability to do that. Meaning if it’s possible, he can get it done. One of the best indicators of a lawyer’s experience and skill I would say comes from the Florida Bar. The Florida Bar does this special program where they allow lawyers to be tested, to be evaluated, and they allow lawyers to apply to become board certified attorneys. A board certification is Florida Bar’s highest evaluation of a lawyer’s competence, and professionalism. So if a lawyer can tell you that he’s a board certified lawyer in a particular area, what that means is the Florida Bar has basically evaluated him and determined that he has what it takes to be considered an expert. No other lawyer can say he’s an expert. Even if a guy thinks he’s really good, he can’t say, “I’m an expert at DUI’s” if he’s not a board certified criminal trial lawyer. So although there are lawyers who are not board certified who are just as capable or are very capable, it’s not always easy to see. You don’t always see that when you first sit down and talk with someone. But what you can be certain of, if you sit down and talk with a lawyer who’s board certified, you can be certain that this is a lawyer who’s passed extensive training, who has tried cases, who has passed an examination that determines that he is proficient in the particular area that you’re looking to hire him in. So I’d say that’s a good indicator – if a lawyer is board certified. And finally, what you want is a lawyer who is familiar with the area. When I say the area, familiar with the jurisdiction that he’s practicing. I’ll be honest with you. I think I am a very good lawyer. I think I can try a case with the best of them and probably if I went into a courtroom against any prosecutor, I’d probably be one of the toughest ones a prosecutor faced. But I can also tell you that there is something to be said for a lawyer who is familiar with the judge, a lawyer who is familiar with the prosecutors, and how things are handled. Lawyers who aren’t familiar with the jurisdiction where they’re practicing in might be caught off guard at times by certain local rules, or certain ways things are handled, and that makes it a lot difficult. I’m not saying it’s impossible, but it makes it a lot more difficult for a lawyer to get his head around. So he’s got to work doubly hard to kind of get caught up to speed with a particular jurisdiction or location. So you could ask your lawyer, “Do you practice here regularly? Do you know the agency that you’re up against? Do you know the law enforcement officers and how things are typically handled with them? Do you have experience trying a case with this judge?” All that makes a difference and that’s why the location of the lawyer where he’s practicing and maybe where he’s gonna be defending you is an important question to ask. Whether or not he’s been there before or not. Because if he hasn’t been there before it just might be a little bit more difficult for him to defend you as effectively as he could.
8:05 B: Can you say that one more time? What kind of questions did you ask? you said, “Do you know the area? The law enforcement?”
M: Yeah, the location: Have you ever been to that courthouse before? Have you ever tried a case with this judge before? Have you had experience with these prosecutors? Do you know how they work? Do you know kind of what motivates them as far as wanting to resolve a case? Are they gung-ho on every single case? Do you know what factors concern them? Do you know the law enforcement officers? Do you know the history that certain law enforcement officers have as far as their dealings with search and seizure issues? These are questions that you want someone to go in there and you want him to use every tool necessary to defend you. It’s sort of like a doctor. You might find that a doctor is very very skilled but if you’re going to give him a whole new set of tools to use to perform the same surgeries that he’s always performed, he might have to take a minute to get his head around that. It’s sort of the same thing with defending a case. When a lawyer is going into a courthouse, there’s judges and prosecutors and law enforcement officers. They all have different personalities and they can all create a different experience, and when you kind of know what to expect, you kind of know what there is out there that’s going to occur it kind of makes it that much easier for the lawyer to stay a step ahead of the game.
B: And it makes it that much easier for the client to feel comfortable as well. So just kind of recap; #1 You said being comfortable with your attorney and being able to trust them because you’re giving very personal intimate information because you’ve been caught in something. The second one was just results, experience, and skill, correct? Making sure that you’re hiring someone that is experienced and they have the skill. I liked what you said about some attorneys are kind of a one stop we practice all law and at Bauer, Crider, & Parry you guys are criminal defense only, correct? And then you talked about getting the Florida Bar Certification where they’ve evaluated you as an expert. Did you say you had to try a certain amount of cases too in order to get into that?
M: Yes, there’s a specific criteria that you have to establish before you can be certified by the Florida Bar as an expert. And the minimum requirements are that you have to have a certain amount of cases tried before you can even apply. You have to have a certain amount of continuing legal education performed before you can even apply. You have to pass a peer review, and a peer review is lawyers and judges who have either tried a case with you or been present with you on certain matters. They explain to the bar what their impression of you is and your ability to be considered a board certified trial lawyer. And finally, you have to pass and examination. An examination is designed specifically to test your focus. Not your knowledge of criminal law in general but to show how proficient you are. Meaning, the stuff that some lawyers who are practicing criminal lawyers may not always know. You also can’t even get the certification until you’ve been practicing law for at least five years.
B: Now this is kind of a loaded question, but out of the 100,000 attorneys in the state of Florida, how many are board certified in criminal trial?
M: In criminal trial law there is under 400 out of the 100,000. It’s 385 or 387, I can’t remember the exact number, but it’s a very very small number. It’s one of those things that I would say distinguishes a lawyer, to be able to hold that very rare certification.
B: And how many do you guys have at Bauer, Crider, & Parry?
M: Out of the 5 total lawyers we have, 4 are board certified in criminal law.
B:Wow, so you guys are running a high percentage of that.
M: Yeah, I like to say probably the most experts under one roof.
B: And then lastly the last thing you said was just being familiar with the local area – the jurisdiction, just where the case is going to be tried, and you guys handle that within the firm pretty uniquely as well, right?
13:15 M:We do. We all kind of come from a certain background where we’re used to doing things. I was a prosecutor in Pasco County Florida, Pasco is a particular jurisdiction I’m very comfortable with. Pasco, Pinellas, Hillsborough, and Hernando County; those counties are all kind of very close together so you tend to have a lot of crossover between lawyers and things like that traveling to different areas and handling cases. So that’s how our firm covers those areas generally. We will occasionally travel outside. We’ll go to other counties like 13:56 Poe County and even further, but the further you get from where you generally practice is one of those things that has to be evaluated on a case by case basis.
B:Ok but you guys practice all over Florida. (we do) Alright. Anything else?
M: No sir, I think that covers it. I can tell you that it’s one of the biggest decisions a person is going to make, when he hires his lawyer. When he hires his lawyer nobody has a crystal ball and he or she doesn’t get to see what the outcome is gonna be. So a lot is based upon trust. A lot is based upon instinct when you make your decision to hire a lawyer. But I can tell you that if you kind of look for a lawyer you’re comfortable with, a lawyer that you can trust, a lawyer who you believe is skilled in the area and not afraid to try a case, and a lawyer who is comfortable in the jurisdiction where he’s practicing, you’ve at least done a thorough enough job to find out if this lawyer is capable of protecting you.

About the Bauer, Crider & Parry Firm Podcast #2

Pasco County Criminal Defense Attorneys

B: Michael you are a partner in the firm, is that correct?

M: That is correct.

B: Tell us a little about Bauer, Crider & Parry

M: Well, it’s hard for me to talk about Bauer, Crider & Parry without kind of getting a little excited about it, to be quite honest with you.  I was first introduced to that firm when I was a prosecutor. I was a prosecutor for 5 1/2 years and I met one of the partners of the firm and we tried quite a few cases together. One of the things that you learn really quickly as a prosecutor is who the good lawyers are.

B: So you were on the other side of the table.Pasco County Criminal Defense Attorneys

M: I was on the other side and you learn quickly who the good lawyers are and you begin to wonder about what makes a good lawyer and what makes it a good firm. I did some research in looking into the firm and eventually I was lucky enough to start working here. Bauer, Crider, & Perry is a firm that consists of five lawyers. We have Ronny Crider and Robert Bauer, those two gentlemen are the founding partners of the firm. Then we have Curtis Crider and David Perry. And then finally you have me, Michael Kenny.  This firm has been around since 1989. They prosecute every single type of criminal matter that is prosecutable in the state of Florida. And that is the most unique thing about it is it’s the only thing that we do. Meaning, you might go to other firms and other firms maybe do personal injury law, maybe other firms do some type of divorce law or family law. And that’s good, but what we have learned, and what these other folks have learned before I started working here is that you do one thing great in life.  if you do one thing great, then stick to what you do great, and that’s all we do.  All we do is criminal defense.  The unique thing about the firm is that each lawyer has his own pretty much area of practice.  When I say area of practice, we all cover the entire state of Florida, but there are some areas that we are more keen on practicing in.  So Curtis Crider has a good presence in a certain area of the state, David Perry has a good presence in another area, and Ronny has a presence, Robert has a presence, and I have a presence in different areas. And that helps us work together to collectively handle criminal defense for the entire state.

2:48 B:Ok So you are more geographically than actual practice area wise?

M: Sure because I mean to be quite honest with you, when you have a firm that has different office locations, you’re certainly not going to be wanting to drive or handle matters that are 10 hours away on a regular basis for two reasons.  One, it’s a costly endeavor and two, you might not be as familiar in a far off area as you might be in where you frequently travel.

B: What all locations do you have?

3:26 M: Our main office is in Clearwater, Florida.  And then we have an office Pasco County, in Port Richey. We have an office in Trinity, which is also in Pasco County, which is where I was a prosecutor. We have an office in Hillsborough County which is directly across the street from the criminal courthouse there.  And we travel to other areas as well. Brooksville is very close to where our Pasco County office is so I do a lot of work in Brooksville.

B: But you cover the entire state of Florida?

M: We do.  There are some moments where it makes sense between the client and the firm to take on a case maybe in an area that is a lot further away from where we normally would practice.  But those come on a case by case basis.  We are effective Pasco county criminal defense attorneys.  For the most part, the counties that we cover on a regular and consistent basis are Hillsborough County, Pasco County, Pinellas County, and Hernando County.

B: OK. 4:29 The website’s Floridadefense.com correct?

M: Correct.

B: And how long have you been with the firm, Mike?

M: I’ve been since I left the State’s Attorney’s Office in 2009, I’ve been with the firm ever since then. So we’re going on seven years almost.

B: Who was the first attorney that you met from the firm?

M: Curtis Crider

B: ok so when you left as a prosecutor you ended up somewhat interviewing with them and hitting it off with those guys, huh?

M: You got it. I was a prosecutor for 5 1/2 years and there comes a point when some prosecutors have an idea that they might want to move out of the state attorney’s office and there was really only one place that I would consider working and that was here.

B: Tell me Mike, why criminal defense? What pulls you in that direction?

M: That’s a pretty good question. You kind of learn when you’re going to law school what subjects you like, what subject matters you like, and I think I learned early on in law school that I enjoyed trails, I enjoyed trying cases. While I was in law school, I was on the trial team at Stetson University.  That’s a school that’s pretty well known for preparing litigators – the people that try cases. The one thing that gets tried, the one type of law that gets tried probably more often than any other is criminal law. Those cases are more likely to go to trial than probably any other type of law. So when I graduated law school, I became a prosecutor. The reason why I became a prosecutor is those guys are always in trial and I began to learn very quickly that for me it was a comfortable fit. I picked it up pretty well. Criminal law is something that I know generally well and I was able to succeed in trying cases.  The unique thing is that when I left, a person would ask me why did you like criminal law as a prosecutor and well, I liked it because I liked trying cases. It was an enjoyable experience. I thought I was serving the people very well. I thought I was doing what I thought was being the good guy all the time.  And it’s funny, because when you leave and you kind of get on the other side and you do criminal defense, you’re sort of like occasionally you have an eye opening experience. And the eye opening experience that I had leaving and doing criminal defense is that these people that I would see that would come in to hire me to represent them on criminal matters weren’t just names on a file. As a prosecutor you kind of see names on a file. You see names on a file, rap sheets, and police reports.  You don’t get that experience of the person.  As a defense attorney, you see this gentleman walk in and he may walk in with his wife, he may walk in with his family. But you begin to know the person and you learn very quickly that sometimes people find themselves in situations whether through faults of their own or not. We make mistakes and we try not to make these mistakes these permanent life altering mistakes. And you get a chance now as a defense attorney to help a person remove themselves from this bad life choice and you get to help them succeed as a human being.  So now I can tell you that I like criminal law because I really believe it helps the folks that come to this firm.  I believe it changes lives.

B: In working on the defense side, there’s a more personal element, like you said.

M: No doubt about it. No doubt about it.

B: I think two unique things I wanted to mention, and one is you, specifically, Mike.  You worked both sides. You were a prosecutor, right? You went up against Bauer Crider & Parry.  And now you’re on the other side. So can you maybe discuss a little bit on the difference in those two and which one you like better? I’m guessing it’s the defense side.

8:34 M:Yeah, well, I thought being a prosecutor was one of the most rewarding jobs that I ever had. So I definitely enjoyed it. The difference between the two? It’s really not different so much in the fact that the law is exactly the same. I know that any good lawyer, whether it be a prosecutor or defense lawyer, always envisions the other side’s case.  Always worries about the argument that the other side is going to present, or the objection the other side is going to make when you’re trying to get certain evidence admitted. So, I think it was very easy to make that transition from being a prosecutor to being a defense attorney. But I would say the differences that you typically experience are as a prosecutor it was very easy to wear the white hat and say, ” I’m out there saving the day.” and sometimes you overlook things. As a criminal defense attorney, it’s now a decision you make has an impact on one individual. His good name may be destroyed, his liberty being taken from him, or the ultimate penalty if we have a first degree murder case. And that sits on your shoulders, I would say, more as a defense attorney than anything sat  as a prosecutor.  As a prosecutor, if things didn’t go your way, you’d say, ” well, I’ll get him next time.” As  a defense attorney, if things don’t go the way you’d like for your client,  it has a very personal impact.

B: It’s a heavier weight.

M: Absolutely.

B: I don’t want to really pick on your competitors, but one thing that also makes you guys unique is that you say you’re trial lawyers – that you’re not afraid to go to trial.  Are there a lot of other criminal defense attorneys that never go to trial?

M: I think that, speaking from the perspective of a prosecutor, prosecutors begin to learn what lawyers are good trial lawyers, and what lawyers are willing to go bat for their client and fight.  And I think that does have an impact on how cases are prosecuted.  I think it does have an impact on how cases are resolved.  So there are some lawyers who probably don’t like to try cases as much, and don’t get me wrong, I can certainly understand how the known quantity, meaning if a prosecutor makes an offer, how that known quantity is a lot easier to get your head around than the unknown, which is what happens if you go to trial and lose. But there are defense lawyers who probably have a reputation for not trying cases as much or not wanting to try cases as much, and I believe that does have an impact on the outcome.  People learn that. People know about that. People being the ones that you’re up against. It’s important that they recognize that while you want to work with them to get the best result for your client, if things don’t tend to work out, you want them to recognize that you are still a lawyer, and that you’ll try the case.

B: I think that’s good. Do you think that sometimes it might scare the client when you tell them you’re a trial lawyer?  They’re going, “you mean we’ve got to go to trial?”

M: I think there’s a lot of folks who come in and when they speak to you and say, ” hey i just want this thing resolved. I want to put this thing behind me. I want the best result.” And you learn early on which cases are ones that are likely headed down the path of trial or not. But yeah, there are some clients that are definitely afraid of it and they should be. There are certain things about a trial that are just completely beyond your control. So that’s understandable, but our job is to recognize, when you look at a case what is the best way to handle that case? When a person hires a lawyer, they’re hiring a lawyer for two reasons; one, for him to defend them in court, but the other reason is for the advice.  A lawyer is not just an advocate, he’s an advisor and he explains what some options might be and maybe what some of the best options might be.

Pasco County Criminal Defense Lawyers

B:Alright, well anything else that you want to add?

M: Well, the unique thing about our firm is that four out of the five lawyers in our firm are board certified criminal trial lawyers. I’d say that’s unique because there’s very few criminal trial lawyers in the entire state of Florida – there’s less than 400. We’re talking 380 some odd lawyers out of nearly 100,000 total lawyers and to have four of them under one roof is I would venture to say we might be the only firm that has that. That’s a rare occurrence and to give you an idea, a board certified criminal trial lawyer are the only lawyers who can advertise themselves or introduce themselves as experts. The Florida Bar has very strict rules on how a lawyer is to describe himself and in order to be an expert in criminal trial, you have to have tried so many cases, you have to pass a peer review by both lawyers and judges. Lawyers that you may have had trials with. You have to pass a specific examination beyond just the entry bar examination. You have to possess the requisite amount of hours of continuing legal education. And you have to demonstrate your competence in the area that shows that you are an expert in the field. So it’s a rare and distinguishing trait that lawyers work very hard to attain and I’m always amazed that we’ve got four under the same roof!

B: You said 380 in Florida out of 100,000  total lawyers and then 4 out of 5 of the attorneys that are partners there at the firm are board certified. Wow, that’s great!

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Florida Defense Podcast #1 Sexting

Tampa Sexting Defense Attorney

Brad: Alright, welcome to the Bauer, Crider, and Perry criminal defense podcast. We are speaking to attorney, Mike Kenny.

Mike: Hello?

Brad: Alright, how are you doing this morning, Mike?

Mike: I’m doing really well. How are you?

B: Good. Good, well you’ve had an interesting case, um, a few weeks back, um that we want to go ahead and talk about this morning, correct?

M: Sure.

B: Tell us a little bit about that.

M: Well, in Florida there’s this statute called a sexting statute, or the texting statute, and that statute was enacted, I’m sure when I say the word “sexting” everyone probably has an image or an idea of what we are talking about. But that statute was particularly put into place because of this, I guess ostensibly there was a lot of concern about young folks sending pictures that obviously would quite frankly end up being very regrettable pictures in the future. You know, pictures of nudity to other young people, and in certain cases they get exploited and lives get turned upside down. So, before the sexting statute was enacted, and that was around 2011,  the only crimes that would capture that type of act, which is taking a picture, a sexually related picture, or a nude sexual picture and send it to another individual, the only charge available would be an exposure of sexual organs charge or a lewd or lascivious exhibition charges, and those charges can be life changing. If someone is charged with a lewd or lascivious exhibition, it’s a felony, and it’s something that might require a person to spend the rest of their life being marked as someone with a sex offense, and that’s just not something that folks want in this world, especially when we’re talking about teenagers.  So the Florida Legislature, in an effort to try to circumvent that unfortunate result decided to make a law applicable to teens only, or teens or minors only and the idea was that anyone that was caught sending a sext message, which is a message of a sexually provocative nature, or sexually related nature to another individual, and if it is a juvenile, for a first time offense, it would almost be like a noncriminal event.  You would pay a fine and have to do some community service.  So the intent was, I would say the intent was good. The intent was not to ruin the lives of kids who probably don’t always have the benefit of thinking ahead. And it was a laudable attempt. But what happened was, when they wrote the statute, what wasn’t considered was where they were going to be able to prosecute those types of cases.  So in the state of Florida, juvenile cases only have two places they can be prosecuted.  There’s two types of courts. There’s the circuit court, and the circuit court is the top trial court in the state of Florida. Then you have the county court, and that’s kind of the lower trial court in the state of Florida.  For all juvenile crimes, the only jurisdiction, no matter what the crime is whether felony or a misdemeanor, is circuit court that would actually be in juvenile court. And those cases actually start off in ray or 3:41 in the interest of and it has the child’s name and all that stuff is confidential.  County court is the only other court where there is a jurisdiction on a juvenile charge, but that’s involving traffic violations only.  So, for instance, if a sixteen year old is driving and he’s speeding and he gets a ticket and he wants to contest that ticket, he would contest that ticket in county court like any other adult would contest their ticket. That’s the only time a juvenile can be in county court is if he’s dealing with a traffic offense, whether it be a civil infraction, or even a DUI charge, a criminal traffic charge.

4:20 So the way this statute was written, however, it expressly tells you that a sexting first offense is not a crime.  So if it’s not a crime, the problem is the circuit court, which handles all juvenile criminal matters cannot prosecute the case because it’s not a criminal act.  If it’s not a criminal act then the circuit court does not have jurisdiction. The other issue that comes up is the only other case it can be prosecuted in is county court, and because it is not a traffic offense, the county court does not have any jurisdiction.  And it’s just the weird thing about cases in general, a court has to be granted jurisdiction by the state in order to have jurisdiction to enforce the law. And in this particular instance, although it was a well intended statute, the way it was written made it impossible to enforce. 5:21 So what I had in my particular case, a young girl was involved in a sexting charge and she received a notice to appear in county court and it was prosecuted almost as if it was like a county ordinance violation. I filed a motion to dismiss with the county court  judge explaining what the jurisdiction is of the county court and this jurisdiction is of circuit court, and how this sexting offense doesn’t qualify for either.  The judge agreed and she dismissed the charge.

5:56 B: I’ve got kind of a quick question on the sexting.  Is there a difference on if it’s text only or image only?

M: It doesn’t differentiate between a text or an image.  …The statute basically says sexting occurs is when someone shares nude or sexually explicit images with others through the use of cell phones, the internet, or any other device capable of transferring data.  It’s always going to be an image but there might be some statements along with that or something that makes it sexually explicit.

B: And it doesn’t have to be just a text message, it could be social media, email?

M: Correct. In this particular instance that I was involved in, I don’t want to get into the details too much, but it actually involved the internet.

B: So the first offense is not a crime?

M: The first offense is not a crime.

B: The second one is?

M: The second one would be. And again, it’s designed and is prosecuted not the same way as the serious felony of exposure of sexual organ charge or lewd or lascivious exhibition.  It’s a little bit less serious and obviously the intent behind that is to not throw a bunch of kids in this monicker of being sexual offenders.  That was the purpose behind the statute.

7:38 B: And just to be clear, a minor is 18 or under correct?  Or under 18?

M:  Under 18.

B: Well, good. Anything else on that, Mike?

M: No, I think that the, quite frankly it was almost unfortunate. As a lawyer, you have a duty to represent your client and protect your client no matter what.  So, when you do the research and say, “well, that was a good intent and I appreciate where the legislature is coming from, but I’ve got to protect my client and there’s just no jurisdiction to prosecute so it was dismissed. The unfortunate outcome of that is that leaves law enforcement with no other tools but the old tools that they had that this statute was enacted to prevent or go around. So it’s kind of unfortunate and I’m hoping the legislature takes some effort to amend that statute to make it at least enforceable so we don’t have 15 and 16 year olds who make some silly mistakes in their lives being prosecuted as sexual offenders.

B: Right, for the rest of their lives, right?

M: There are certain things that can happen that even though it’s a juvenile crime, unfortunately.

 

Florida’s Drug Courts

If you were recently arrested as a first-time offender on a drug charge, you may be able to avoid a felony conviction through Pretrial Intervention Drug Court. Drug court is a form of rehabilitation instead of punishment. You complete the program’s courses and probation in exchange for not receiving a felony conviction – an invaluable asset in anyone’s productive life.

In order to be eligible for adult drug court, you must meet the following requirements: be at least 18, be new to Drug Court, admit your drug problem and desire to complete the treatment, and pass a criminal background check free of prior felonies. The program includes about two months of initial treatment, including 18 months of supervision.

If you have been arrested for drugs and meet the requirements above, don’t let a felony record ruin your life. The attorneys at Bauer, Crider, and Parry, are here to defend your fundamental interests during this difficult and precarious time. We will aggressively and effectively handle every aspect of your criminal defense. Bauer, Crider, and Parry, have provided Floridians with over 30 years of strong criminal defense, stronger results, and over 130 combined years of legal experience.

Drug court programs: http://www.fljud13.org/CourtPrograms/DrugCourtPrograms.aspx

Florida’s Open Container Laws

Most states have open container laws which make it illegal to have an open container of alcohol anywhere in the passenger compartment of your vehicle. If you are the driver, and your passengers are consuming alcohol, even if you are not, you can be cited under an open container law.

If you are driving in Alaska, Connecticut, Delaware, Missouri, Mississippi, Rhode Island, Tennessee, Virginia, or Wyoming, it is not illegal for your passengers to drink freely from open containers of alcohol. If you live in Florida, however, it is considered a noncriminal (i.e. civil) moving traffic violation. You can be fined and have points assessed on your license. Your passenger can also be cited, and it is likely that the law enforcement officer will initiate a DUI investigation of the driver. Even an empty beer can be considered an open container, therefore, it is best not to allow open containers, bottles with broken seals, or “to-go cups”, in the passenger area. Place them in the trunk, locked glove compartment, or trash before driving.

In the City of Tampa, and in many other counties and municipalities, the possession of open containers of alcohol on the streets, sidewalks, parking lots and beaches is regulated. If a law enforcement officer sees someone in possession of an open container in an area where such possession is prohibited, then the law enforcement officer might cite you for the offense.

If you have been cited or arrested for any alcohol-related offense in Hilllsborough, Pinellas, Pasco, or Hernando County, make sure to contact our experienced and knowledgeable defense attorneys at the Law Offices of Bauer, Crider, and Parry. With a knowledgeable Tampa criminal defense lawyer, like one from Bauer Crider & Parry, by your side to deal with the charges, your have a vital ally by your side to navigate the legal morass.

Tampa Criminal Defense Lawyer Podcast

Coming soon