Articles Posted in Other Offenses

fun-300x225As I may have mentioned a thousand times before, it seems like we have criminalized everything.  This new level of Big Brother strictness has really hurt our younger folks, who can get a criminal record far more easily than I could have as a kid growing up in the ’80s.

And, without boring you with my adolecent middle-class suburban shenanigans, let me admit now that–under current laws–it may have been possible to charge me and my friends with several felonies back in the day (that’s a slight exaggeration, my mom always told me I was a great kid).

The funny thing about growing up in the ’80s is that most “situations” were handled inside the school–with parents, and without police involvement.  Today, schools have actual cops on staff, on constant patrol.   And, if you have lots of people running around with hammers, it should be no surprise that they find a nail or two every now and then.

As a side note, when I became a public defender back in 1993, I was given “the Tour”.  At the juvenile stop, the assistant public defender in that division was trying to make a point to me about how her young clients end up in the criminal justice system.  She had 30+ youngsters in the courtroom, and she asked the kids to raise their hand if they had two parents at home.  One kid raised his hand.  Then, she asked for a show of hands for those living with one parent at home.  Three more kids raised their hands.  Next, she asked about those living with a grandparent, and several more hands shot up.

In our case for today, we’re heading back into that juvenile courtroom full of kids who have no idea what kind of trouble they’ve gotten themselves into.  Our case begins in a middle school classroom, where several juveniles were telling each other April Fools jokes, on, you guessed it, April Fools Day, 2019.   J.A.W. v. State, 2019 Fla.App. LEXIS 16736 (Fla. 1st DCA 2019). Continue Reading

home-florida-300x225Let’s say you’re inside your home.

Let’s say the police are pounding on your front door.

Let’s say the police are demanding entry because they have probable cause to arrest you.

Let’s say you tell the police to piss off, and that you’re not letting them in.

Let’s say the police kick down your door.

Is this legal?

Notice what I didn’t say.  I didn’t say they have a warrant.  All they have is probable cause to arrest you for something.

What we have here is the facts in the recent case of Nieves v. State.  2019 Fla.App.LEXIS 12095 (Fla. 2d DCA 2019).  Nieves’ girlfriend called the police, claiming he beat her.  The girlfriend waits outside of the hotel room for the police to arrive, the police interview her and decide they have probable cause to arrest Nieves for domestic violence battery.  So, the police knock on the hotel room door in an attempt to arrest Nieves.  Nieves talks to the police and refuses to answer the door.  The police decide to get the resort’s management involved.  The police now have a key to enter the room and arrest Nieves.

However, Nieves braced the bed against the door and as the appellate court noted, “Mr. Nieves’ ingenuity with the bed left [the police] unable to enter.  One officer started to kick through the door.  Some others removed the screen from the open window, grabbed Mr. Nieves, and pulled him through the window and out of the room.  He struggled as the police attempted to put him in handcuffs.”  id. at 3 Continue Reading

IMG_0179-e1519940395141-300x142Some of you “Dear Readers” are locals, so you’ve survived driving I-4.  For those of you visiting Orlando and driving I-4 for the first time, your passengers will be exclaiming “Did you see that?” several times per mile.  Yes, I-4 is the most dangerous road in the United States.  It’s official, Google it.  Unfortunately, I drive the most dangerous road in America at least twice a day.

It should be no surprise that America’s Most Dangerous Highway also contains its most insane drivers.  I try not to get too angry at these folks, as they’re going to need my help defending the three most common reasons for insane driving: (1) drunk driving, (2) reckless driving, or (3) a fleeing charge.   Fleeing and attempting to elude is often the most serious of these three crazy driving scenarios.  Fleeing the cops is never a good idea, as no one can “out run a dispatch radio”.

Many a rap song has advised against fleeing.  Yes, rap music contains wisdom.  I’ve verified this.  When it comes to fleeing charges, Pharrell Williams and Snoop imparted this wisdom upon the masses back in 2004: “when the pigs try to get at you, park it like it’s hot, park it like it’s hot, park it like it’s hot.”  You would think that after repeating this three times, it must be true.  Things that rhyme are more true than those that don’t, right?  If the glove doesn’t fit, you must acquit.

For those of you who panic and flee the cops, how can you beat the rap? (bad pun, I know)

Today’s real life example of an aggravated fleeing charge comes to us in Canidate v. State, 2018 Fla. App. LEXIS 2268 (Fla. 4th DCA 2018).   To give you an idea of how serious a fleeing and attempting to elude charge really is, Canidate lost his jury trial and was sentenced to five years in prison.  Here’s what happened: Continue Reading

fostex-8-track-e1516227725568-225x300I’ve been recording bands and artists since my high school days, but I sold my recording studio back in 2010.  Recently, I was going through a box of wires (junk) and I stumbled across some old ADAT tapes, and reel to reel tapes.

Now, there’s something you should know about these tapes.  You cannot play them in an ordinary reel t0 reel machine, because these tapes were made especially for use with my old 8-track Fostex recorder.  Same goes for the ADAT tapes.  These tapes are, technically, VCR tapes, but they don’t work in a VCR, they only play on an Alesis ADAT multitrack machine.  I got a little sentimental when I ran across these old band recordings, but I just don’t have the equipment to play these tapes.

These band memories captured on ADAT and Fostex are lost forever.  Maybe forever is slightly dramatic, given the fact that I can pay a ridiculous ransom to some “vintage collector” and maybe, just maybe, these old units will work.  But, you get the point.  Technology has changed so much during my lifetime that I can’t even play the memories I once made.

This whole train of thought came from an interesting article by Robby Berman, Is There Going to Be a Big Hole in History Where the 21st Century Was?   His point is pretty simple.  At some point in the future, your kids will reach “an age when they want to know who their parents were, what they thought, and what they felt.  One day the kids will come across a trunkful of these intimate messages on USB thumb drives, hard drives, or solid-state drives–and have no way to read them.  The same will be true for the thousands of digital childhood photos we’ve been taking, and which they’ll be desperate to see.  Absent a trip to a hardware archivist or local museum, all this silicon might just as well return to its original form–sand–for all the good it will do.  Experts are concerned that this time, now, in the 21st century, may well be the future’s ‘digital dark age,’ with nothing ultimately left behind to tell our story for future generations.” [Berman’s article accessed 1/17/18] Continue Reading

pouch-300x225Big charges make the news.  Defense attorneys love big cases because their egos enjoy coverage on the evening news.  Heck, lawyer egos even enjoy the bought-and- paid-for attention manufactured from incessant TV ads and billboards.  And, if you know nothing about attorneys, please know that they have quite the egos.

The ego stroking options are endless for attorneys, big cases aren’t the only way to go.  When I first started defending criminal accusations back in 1993, all the new lawyers at the public defender’s office bragged endlessly about their jury trials, even to the point of chest pounding the likes of which you haven’t seen since the intro to 2001: A Space Odyssey (One of the best movie intros ever? Certainly makes the Top Ten List).  At my old PD office, when an attorney was about to begin a trial, a loud ego blast (email) would go out office wide, saying something like “picking 6, someone please cover my office conferences”.  No, this attorney never had anything to cover, but at least the whole office knew what a “fighter” he/she was.

A particularly annoying fad of late is the rash of attorneys who write “books”.   I don’t consider these books to be real “books”,  that’s why I’m using air-quotes.  Unfortunately, books are now like a business card, a marketing tool, rather than something that can add value to folks lives.  Call me old fashioned, but I say write a good book or don’t bother.

And, this brings us to an important question someone smarter than I formulated: Am I saying this because I want to sound smarter than everyone or am I saying this because it needs to be said?  Continue Reading

IMG_4561-300x225Storytelling is important.  There are books out there that claim to teach storytelling, but its more of an art than a science, so I’m not super confident much can be learned from a book.  The most common example of this is learning how to swim.  Sure, you can read a book that will “teach” you how to swim–but if you’ve never been in the water–that book knowledge may not be a safe way to go.  I’m just saying.

I owned a record studio for many years, and storytelling can make or break a recording artist.  Much like psychologists who love to study twins separated at birth, we studio geeks love to study the course of the same story told by different singers.  One classic example of this is a song Otis Redding wrote and recorded in 1965, “Respect.”  The song did well on the soul charts, but when Aretha Franklin sang Otis’ song in 1967, she told a different story with the same lyrics.  She made history with this song, really.  Same lyrics as Otis.   Absolutely owned it.  The same effect was not had when Phil Collins covered The Supremes’ classic “You Can’t Hurry Love”.  Diana Ross’ vocals are  classic on that track, and Phil Collins didn’t come close to wrestling ownership away from The Supremes.

Do you think that cops get tired of hearing everyone’s story?

The problem is, everyone thinks they can talk their way out of a criminal charge.  This is America, and even though folks have the right to have an attorney present, not everyone exercises this right.  Yes, this is a bad idea on many levels.  Remember, there is an art to storytelling, and even true stories come out sounding fishy once the police get done misquoting you.  But, every now and then the right story will get a case dismissed.  Sure, I’m spoiling the ending, but it will be an interesting ride. Continue Reading

math-300x195* * PLEASE NOTE: YES, I’M PRETTY GRACIOUS TO GIVE OUT FREE LEGAL SECRETS, BUT I DON’T HANDLE CHILD SUPPORT SUSPENSIONS. PLEASE CALL A DIVORCE OR FAMILY LAW ATTORNEY  THANKS* *

Tech people are a pretty cocky bunch.  Most tech believers will tell you that all of human “progress” has come via technology.  Obviously, they’re not focusing on our more deadly weapons or better ways to destroy the environment, they’re bragging about the most basic technologies–like how to start a fire.  After all, if we were still trying to figure out how to start a fire, you wouldn’t be reading this right now, and we would all be eating the original paleo diet.

Often, new technologies mean job losses to someone, somewhere.  When elevators were first invented, nobody trusted these machines to magically transport them to another floor.  So, a human being was employed full time to operate the elevator.  Eventually, the “Elevator Operators Union” (it still exists) lost 17,000 jobs with the advent of automatic elevators.  And, who can forget the autoworkers losing their jobs to bright yellow robots who could build cars smarter, better, faster?

It’s not fair to single out the robots, or the invention of automatic elevators.  For example,  9,000 Blockbuster Video locations shut their doors once the internet started delivering movies.  Nobody that I know of has ever stood up for the Blockbuster store clerks that are now unemployed.

Technology seems to be bored with wrecking blue collar jobs in manufacturing.  Rumor has it technology is also after my job.  Yes, good old fashioned white collar attorney jobs.  I had a fairly wealthy friend recently do his will from forms purchased over the internet (LegalZoom, I think).  Ten years ago, he would have hired an attorney at 10 times the price.  And, hey, let’s not forget all the accountants that have lost a job to TurboTax. Continue Reading

question-mark-231x300For several weeks now, my left index finger has been twitching.  Out of the clear blue, twitching.

I did what most people do, asked Google “why is my finger twitching?”

Now, there’s plenty of problems with online medical diagnosis, but the main problem is my brain.  It seems to be wired to click only on the articles that have the most severe diagnosis.  As my eye scans Page One of this Google search, I only see articles where finger twitching is the first sign of a deadly brain tumor.  I’m immediately drawn to the worst case scenario.  I can’t help myself.

But, was I asking Google the right question?  No.

I have a Juris Doctorate degree, but zero medical background–so the medical questions I’m asking Google are not going to help me.  To get to the right answers, I’ll go see my doctor and he’ll ask me the right questions.  I don’t know the right questions to ask.  I do know that when your doctor asks you series of seemingly unrelated questions–there’s a method to their madness.  These odd doctor questions have a purpose, and we all must suffer through them eventually.

The great Tony Robbins reasons that “quality questions create a quality life.  Successful people ask better questions, and as a result, they get better answers.”  I see his point.  Any 6th grader can “get answers”  just by asking Google.  Getting answers isn’t the point.  The point is, are you asking the right questions?  Does anyone ever admit that they’re asking the wrong questions?  Most people don’t ask the right questions, especially when it comes to legal stuff.  I’m not offended by that, as it is my job to ask the right questions.

As a general rule, Tony Robbins suggests “starting every day by asking yourself these 3 questions:

(1) What is something I can do for someone else today?

(2) What is something I can do to add value to the world today?

(3) What is something that I have to offer other people?”

[Also, Tony would probably have you figure out what limiting questions you’re subconsciously asking yourself, like, “Am I good enough?  Why am I not good enough?” See “Ask Better Questions”,  www.tonyrobbins.com/masterpiece/ask-better-questions/] Continue Reading

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Some folks would say that successful negotiations involve “getting to YES.”  I disagree, because too many people say “yes” but don’t really mean it.  We’ve all encountered that dinner time telemarketer that says “You want to stop the suffering of abused children, don’t you?”  Yes.  Of course I do.  But, my “yes” doesn’t mean I’m going to open my wallet.  I’m saying “yes” to get them off the phone.

A better strategy is to get people saying “no” early, because “no” is a far more comfortable word.  An entire book has been written about the nuances of yes vs. no, (and its a great book), called  “Never Split the Difference,” by Chris Voss & Tahl Raz.  Their book explains negotiating techniques that request ‘no’ responses, rather than ‘yes’ responses.   Negotiation techniques can play into every aspect of life (obvious, I know, you’re really learning something today).  One example found in the book involves fundraising, and how the standard phone scripts for these campaigns can raise more money–depending upon whether the scripts are rigged for ‘yes’ responses versus ‘no’ responses.   Yes, these telemarketers are just reading stuff from their computer screen, written by so-called negotiation experts.  Studies have shown, believe it or not, that scripts which prompt a ‘no’ response yield far greater donations.  An example from the book goes something like this:

Fund-Raiser: Do you think we need change a change in the White House this November?”  Response: “Yes, I do.”  “Fund-Raiser: Can you give me your credit card number so you can be part of that change?” (example of a “yes” based script)

Fund-Raiser: Are you going to sit and watch them take the White House in November?”  Response: “No, I’m not.”  “Fund-Raiser: If you want to do something today to make sure that doesn’t happen, can you give to our committee to fight for you?” (example of a “no” based script)

As a side note, and barely related to the “Yes & No” mentioned above, I should tell you about how Derek Sivers feels about saying “Yes” to anything.  (Isn’t this our second side note?  When are we going to read about driving on a suspended license?)  Derek recommends never saying yes to anything.  Never.  If you’re going to say yes, it had better be a “HELL YES!!”.  The original version of this decision making model involves a more vulgar F-word–but the point is–you should be saying “No” most of the time, unless you’re really enthused.  I find this advice great for a guy like me, whose done criminal defense for 24 years (oh, my web people love these types of sentences).  But, when I was just starting my career, I said “yes” to many things, just to get my feet wet.  Now that I’m a bit older, I admit that there’s a certain power to saying “no”.  Fortunately, I am in a position to say “no” frequently.  Anyway. Continue Reading

car-crash-300x225There’s an old saying that you never really learn to swear until you learn to drive.

Today, we’re going to discuss bad driving.  Yes, all of you “readers” are perfect drivers, I’m not talking about you.  Its everyone else I’m concerned about (kinda sounds like the school principals that assure the parents all of their kids are above average…).  After witnessing some horrible driving, it is sometimes the job of our court system to decide who should be found guilty of a simple citation called “careless driving”, and who has committed a criminal offense known as “reckless driving”.  A careless driving citation gets you a ticket & fine–but reckless driving often involves handcuffs, an arrest, and a trip to the jail house.

In the recent case of Smith v. State, an appellate court wrestled with this very issue. 2017 Fla. App. LEXIS 6531 (Fla. 2nd DCA 2017).  Smith was driving one evening before sundown, in clear weather conditions.  He was not speeding, and his headlights were on.  Suddenly, he lost control of car by swerving to his right, onto the sidewalk, eventually hitting a bicyclist.  Unfortunately, this accident caused serious bodily injury to the bicyclist.   Continue Reading