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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”,] Continue Reading


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

Laws need not be logical to be legal.  For example, does it make any sense that a motorcycle cop can issue a citation for failing to wear a seat belt?  What motorcycle has seat trafficbelts?   Does it make any sense to charge an 18 year old with the crime of “Possession of Alcohol By a Minor”, yet its legal for this same 18 year old to become an porn star on her 18th birthday?  Drinking a Miller Lite is illegal, but porn acting is perfectly legal.  I suppose she could act like she’s drinking beer while filming her scenes, but they’d have to fill the bottle with apple juice for the youngster.  Or, at age 18, you can join the armed forces and, potentially, kill people in defense of our country.  But, you can’t drink a beer.  Sorry, that’s a crime.  Doesn’t seem right, does it?  I think that, if you’re old enough to defend my freedom, have a beer.  I’m buying.  Anyway, let’s try to transition into the somewhat less exciting topic of driving while license suspended (DWLS).  Smooth segue, right?

Driving on a suspended license (DWLS) is a progressive disease.  It starts small, but often grows into a prison term.  Here’s the pathology:  a citizen gets caught driving without a valid license.  A cop issues a citation. But, as luck would have it, the person gets caught driving a second time without a valid license.  Then this same person gets caught driving a third time.  Once a driver has three convictions for driving on a suspended license, you have now officially caught the attention of the Department of Motor Vehicles (and that, my friends, is never a good thing).  At this stage, the DMV will issue what is called a Habitual Traffic Offender (HTO) suspension for five years.  If a driver is caught a fourth time driving on an HTO suspension–this is a felony offense, carrying up to five years prison.   Continue Reading

Does the government understand it’s own laws?  If you ask the elected officials who are drafting the laws, they supreme courtmay tell you to wait until the bill has passed to find out what’s in it.  Basically, not even the people drafting our laws understand them, and things get no better once a law has passed.   Ask three government officials a question, and you’re likely to get three different answers.  Even if you arrive at a reasonably correct answer, that law may conflict with several other laws.  For example, when We The People decided to legalize marijuana in several states, our federal government did not agree with that decision.  After all, marijuana is still a Schedule 1 narcotic under federal law. So, do you think the federal government might respect the state electorate’s decision?  Of course not.  Like some two year old throwing a tantrum, the feds harass legal marijuana retailers by threatening money laundering charges against any bank that accepts currency derived from the sale of an illegal narcotic.  If you want to legally buy weed, you’re going to have to pay in cash.  Coincidentally, this is the way weed transactions have gone down while the substance was illegal, so I guess some things never change.

The federal government is not happy with certain aspects of Florida’s criminal justice system.  Namely, they don’t like the fact that Florida permits citizens to admit to a crime–yet not be found guilty of it.  We call this a “withhold of adjudication”, and here’s how it works.  Say you have stolen a car, and you confess to such.  In court, the guilty plea sounds something like this: “Yes Your Honor, I stole that car, I plead guilty to the crime of Grand Theft Auto”.   In Florida, the judge may respond “I am not going to find you guilty of stealing the car, this court will withhold adjudication, you will not be a convicted felon”.  Unfortunately, the federal government has never approved of such technicalities, and the feds will treat this plea as a conviction.  To see how this issue was recently resolved, let’s take a look at the case of  Clarke v. United States of America, 2016 Fla. LEXIS 277 (Fla. 2016). Continue Reading

One of the cool things about criminal law is that our evidence, disputes, and analysis are open to the public. All of our disagreements at motion hearings and trials are open to the public. If an “expert” claims that XYZ is true, that expert will be subject to cross-examination, and he or she must answer the opposing side’s questions (redundant, I know). This is not true of science. What we think of as “scientific truth” is subject to the whims of those who decide what will be published and who should be awarded research money. The culture of science discourages dissent, so science typically doesn’t advance based on honest debates about the evidence, but rather, “science advances one funeral at a time” (Max Planck). Dr. Henry Bauer, Professor Emeritus of Chemistry & Science at Virginia Tech, explains that for many “scientific truths”, “there are perfectly competent and well informed scientist who disagree on the basis of good evidence with what everyone else believes, and that this evidence and the arguments offered by these dissenters is simply ignored by their supposed peers, who seek to enforce an orthodoxy instead of assessing all the evidence with an open mind.” Bauer, Henry “Dogmatism in Science and Medicine

The criminal court system is far more intellectually honest than much of the scientific community. Criminal justice issues are subject to cross examination in a public forum, now, try getting a scientist to defend their views in a public and most will only show up if the opposition still believes the earth is flat. In criminal law, when several judges disagree, sometimes the Supreme Court will step in to resolve the dispute, and the entire process is open to the public. Every piece of evidence, every appellate brief, every oral argument. So today, we’re going to examine one of many disagreements percolating in Florida’s criminal courts regarding the popular criminal charge of driving while license suspended or revoked (DWLS).

At first glance, an arrest for driving while license suspended implies that the citizen at one time possessed a valid driver’s license that has since been suspended or revoked. But many folks in Florida have never had a driver’s license to begin with, and yet they still end up getting arrested for driving on their suspended (nonexistent) license. Should a person who has never had a license be convicted of driving on a suspended license? Florida courts disagree on this issue, so let’s begin the analysis with a (bad) case out of the Second District Court of Appeals, Carroll v. State, 761 So. 2d 417 (Fla. 2nd DCA 2000).
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stop sign driving.jpgViolations of probation can be difficult to prove, and this is especially true of VOP’s based upon a new arrest. An arrest is certainly enough to have a judge sign a No Bond VOP warrant, but the State will have to present more evidence than just a new arrest to sustain a VOP conviction. In summary: yes, you will be arrested for violating your probation based upon a new arrest–but no, the arrest alone is not enough to convict. To see how this plays out in real life, let’s take a look at Prater v. State, 2014 WL 2968842 (Fla. 5th DCA 2014).

BACKGROUND INFO: Prater was placed on probation after entering a plea to aggravated battery with a deadly weapon, and aggravated assault. He received 15 years of probation. Yes, I said fifteen. We all know that the Pope himself cannot successfully complete 15 years of probation. Some judges are well aware of this statistical fact, and impose long terms of probation for just that reason. One Orange County judge affectionately refers to probation as an “Early DOC Entry Program”, designed for those defendants that are not willing to take prison up front–just give them enough rope to hang themselves, and you can give them prison on the violation. Naturally, I don’t agree with giving clients sentences that they cannot handle; but then again, what I want doesn’t matter much. If a client wants something I know they can’t handle, I’ll try to negotiate comfortable options (jail?), but that’s all I can do. Too many lawyers out there think the clients work for them. Obviously, that’s not the case. I work for defendants. They tell me what to do, and I have to follow their lead even when my violation-radar is telling me that a probation plea is a bad idea. Anyway.
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running model.jpgNobody likes to be bossed around, but plenty of people enjoy being bossy. Most of these bossy folks work for the government. The good thing about bossy people is that you don’t necessarily have to listen to them. Sure, you may be fired if the person bossing you around is your supervisor at work. Or, you may die of a rare disease if you don’t listen to a doctor ordering you to undergo some medical procedure. But, it is a tad odd that a kid that just graduated from a couple of months at a police academy can order you around–or you’re going to jail. Law enforcement is one of the few professions in which their commands will land you in jail if you don’t obey. Technically, this disobedience is called resisting an officer without violence. What an awesome power, right? Do as I say, or go to jail. Um, do you think this power gets abused? Well, what government power doesn’t get abused?

So, it’s a crime to disobey an officer’s legal commands. I’ve seen resisting charges simply because a citizen doesn’t respond fast enough to an officer’s commands. Don’t exit the car fast enough–arrested for resisting. Don’t get off the phone fast enough when an officer wants to talk to you–going to jail for resisting. Don’t feel like sticking around and talking to the police–you better start feeling like it, or you may be heading to jail. A “resisting” charge transforms a minor delay into a criminal act. Now, there are all sorts of defenses to a resisting charge, and more often than not, this charge is heaped on top of bogus charges just to make sure something sticks. When I see a resisting an officer without violence charge, I know bogosity is lurking nearby.

For example, let’s take a look at Perez v. State, 138 So. 3d 1098 (1st DCA 2014). Perez was found guilty of resisting an officer without violence (among other things). Law enforcement believed that evidence of a burglary may have been located at a certain house, so the officers decided to conduct a “knock and talk” on the home, a procedure in which the cops simply knock on a front door, and hope that the occupants will speak to them. In this case, when the police rolled up, Perez and another individual headed out the back door. The cops ran toward him, and Perez decided to stop in the yard (the other guy jumped the fence and got a little further away). Perez was found guilty of not obeying law enforcement’s command to stop running. Was this really a crime? Well, let’s take a look.
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crowbar.jpgMany folks live with a constant fear of police abuse. From what I’ve seen over the years, that fear is completely understandable, depending upon location, and economic standings. And, there are several different ways law enforcement abuse we citizens. Some ways are subtle, like the “I smell the odor of cannabis, so I’m going to search your car” routine. This has never happened to my white 98 year old grandpa, but it does happen to my teenage black clients. Now, part of this may be due to the fact that my grandpa doesn’t smoke weed (that I know of). And also, it is shocking (even to me) that my grandfather is still driving at his age (but the DMV renewed his license through age 103–so go figure). Aside from the “I smell weed” searches, I also see plenty of abuse via loitering and prowling arrests. Most judges are fairly suspicious of loitering cases, and they have good reason for such concern. One appeals court put it this way:

Because of its potential for abuse, the loitering and prowling statute must be applied with special care. It cannot be emphasized enough that the loitering and prowling statute is not to be used as a “catchall” provision whereby police may arrest citizens where there is no other basis which would justify their detention. Instead, the proper application of this statute requires a delicate balancing between the protection of the rights of individuals and the protection of individual citizens from imminent criminal danger to their persons or property.” Mills v. State, 58 So. 3d 936, 939 (Fla. 2d DCA 2011).

So, armed with a bit of healthy skepticism, let’s take a look at a recent loitering and prowling case of C.C. v. State. 137 So. 3d 466 (Fla. 4th DCA 2014).
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kids.jpgIf you’ve lived on Mother Earth long enough, you’ve encountered a smart-assed kid that (a) has no respect for authority, and (b) knows his rights. So, how do police officers respond to someone that tells them they “know their rights?” As a general rule, and I think you can find this in the FDLE Field Training Manual–most officers reach for their handcuffs and billy-club, though not necessarily in that order. I’m just saying.

In the case of G.T. v. State, a juvenile appealed her conviction for resisting an officer without violence. 120 So. 3d 141 (Fla. 4th DCA 2013) This incident began as most juvenile cases do, with a call from a neighbor complaining of a “disturbance of juveniles drinking and smoking.” It shouldn’t surprise you that juveniles do not understand the concept of “being quiet”, and such immaturity provides a constant revenue stream for Crime Inc., so nobody seems to mind. Anyway, the police arrive at the apartment complex and see six teenagers hanging out, one is holding an empty “Bacardi Silver” bottle. Some alcohol connoisseurs may argue that this–in and of itself–is grounds to at least harass these teens, but you cannot pass judgment on teenage drink selections, as it is often a question only of what they can steal from their parents. So, blame the parents for poor taste. Once the officer detained the kids he noticed that several of the teens were drunk, because they had red, glossy eyes and slurred speech. The officer started things off by asking for their names, birthdays, and parental contact information .
All the teenagers played along with the name game, except G.T., she refused to give any information because she “knows her rights.” Now, we all know somebody that “knows their rights”–and that’s OK so long as they actually know what they’re talking about (but that’s kind of rare, unfortunately). As you might expect, and as my informal studies have shown, the police are not too fond of folks that “know their rights”. Most people that “know their rights” get themselves arrested, and, depending on how much they know, the police may even provide a complimentary beat down. G.T. knew just enough about her rights to get herself arrested for resisting an officer without violence and disorderly intoxication. So, was G.T. right? Was she legally entitled to refuse to give her name and information to the police? Did she really know her rights?
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