Tampa Bay Criminal Defense Lawyer Blog

From the Tampa Bay times website, a quick article that talks about how a woman got help and not jail for her third DUI in as many weeks...

The 18 year old woman was picked up for "driving under the influence" three times in 18 days! Kim McCarthy told the police she didn't realize smoking marijuana and driving was against the law. The judge took mercy on Ms. McCarthy and allowed her to enter into a residential treatment program followed by community control and probation.

This appears to be a big break for the woman as she was facing multiple felonies and misdemeanors. At one point she was denied bail as the judge felt she could not control her addictions.

Ms. McCarthy received her learners permit in November, 2011. That means she was not supposed to drive without a licensed adult in the vehicle with her. She chose not to follow that rule. In February of this year, she was pulled over and found with multiple zanax pills, marijuana, and an open bottle of rum. This led to a possession of controlled substance charge and her first DUI.

A few days later, she received a letter from the Department of Motor Vehicles saying her drivers license was suspended. Ms. McCarthy chose to continue driving and in March was arrested for her second DUI and possession of marijuana.

She bonded out and the next day was back driving. She rear-ended a parked car. The victims thought she looked drunk and the police agreed with them. Kimberly was now charged with a felony DUI. During her arrest, the police also found marijuana, and pipes in her van.

While it sounds like the suspect got off easy, she still has to do jail time. The judge ordered Ms. McCarthy to remain in jail until bedspace became available at her drug treatment location. She must sucessfully complete treatment and that is followed by three years probation/community control, two of those years spent on an ankle monitor.

Continue reading "Tampa woman with three DUIs in three week avoids jail" »

Lately, the Clearwater and St. Petersburg Defense Lawyers at Blake & Dorsten, P.A. have been getting several calls regarding potential clients facing a Habitual Traffic Offender Suspension Notice. And no wonder, according to the Department of Motor Vehicles, approximately 23,000 drivers throughout the State of Florida each year from 2006 have had their drivers license revoked as a Habitual Traffic Offender.

In today's society it is difficult if not impossible for citizens to conduct their ordinary course of business without access to an automobile. Let's face it; the public transportation in the Tampa Bay area is virtually non-existent. It is more important now, more than ever, to fight these Habitual Traffic Offender Notices! If you receive this notice your drivers license will be suspended for 5 years.

To add injury to insult, you will not be eligible for a hardship or Business Purpose Only License for one year. This means no driving for any reason for a full calendar year. It gets worse. If you get caught driving, you could be facing a third degree FELONY Driving While License Suspended or Revoked charge punishable up to 5 years in prison! The lawyers at Blake & Dorsten, P.A. have several strategies to attack your driving record.

Florida Statute Section 322 gives the DHSMV authority to declare an individual a Habitual Traffic Offender. Under Florida Section 322.27, The Florida Legislator adopted the laws under with the Department of Highway Safety and Motor Vehicles can suspended or revoke a Florida Driver's License: It states:

The Florida DHSMV shall revoke a driver's license of any person designated a habitual traffic offender, as set forth in section 322.264, and such driver shall not be eligible to be relicensed for a minimum of five (5) years from the date or revocation, except as provided for in Section 322.271. Any person whose Florida driver's license is revoked may, by petition to the Florida DHSMV, show cause why the driver's license should not be revoked.

Section 322.24 - Using Out of State Offenses to Suspend Florida Driver's License
The Florida DHSMV is authorized to suspend or revoke the driver's license of any Florida residence, upon receiving notice of the conviction of such person in another state of an offense therein which, if committed in Florida, would be grounds for the suspension or revocation of the driver's license.

Florida Habitual Traffic Offender Law - Section 322.264
The felony offense of driving after being designated a Habitual Traffic Offender, Section 322.34(5), Florida Statutes (2003), provides that "[a]ny person whose driver's license has been revoked pursuant to s. 322.264 (habitual traffic offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree . . . ."; A "habitual traffic offender" is defined in section 322.264, Florida Statutes, as "any person whose record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that such person has accumulated the specified number of convictions for offenses described in subsection (1) or subsection (2) within a 5-year period."
(1) Three or more convictions of any one or more of the following offenses arising out of separate acts:
(a) Voluntary or involuntary manslaughter resulting from the operation of a motor vehicle;
(b) Any violation of s. 316.193, former s. 316.1931, or former s. 860.01;
(c) Any felony in the commission of which a motor vehicle is used;
(d) Driving a motor vehicle while his or her license is suspended or revoked;
(e) Failing to stop and render aid as required under the laws of this state in the event of a motor vehicle crash resulting in the death or personal injury of another; or
(f) Driving a commercial motor vehicle while his or her privilege is disqualified.
(2) Fifteen convictions for moving traffic offenses for which points may be assigned as set forth in section 322.27, including those offenses in subsection (1).

How can we help?
Prevention! (Avoid Conviction and Points)
The best way to avoid being a habitual traffic offender and keep your drivers license, is to avoid points and convictions. If you have received a traffic ticket, call us immediately. The Traffic Ticket Lawyers at Blake & Dorsten, P.A. can fight your ticket, possibly getting your ticket dismissed and avoiding convictions. If you accumulate 15 convictions during five year period (5), you may receive a letter from the DHSMV suspending you drivers license for 5 years. Fight your tickets as they happen, don't wait until it is too late!

If you receive notice that your drivers license is suspended, correct the problem immediately! Call the lawyer at Blake & Dorsten, P.A. to discuss a strategy to re-instate your drivers license. Three (3) convictions for DWLSR or Driving While License is Suspended or Revoked within a five year period will cause you to be a Habitual Traffic Offender. Don't wait! Re-instate your driver's license immediately.

Requesting an Administrative Review.

If you receive and HTO notice from the Florida DHSMV and you believe it is in error, you can apply for an administrative hearing to review your driving record. However, you must not delay, you have only thirty business days (30) from the date of the order to request a drivers' license review. Often times, if you feel there is an error on your record, we can petition the court to send written certification of your conviction to the DHSMV for a review under Florida Statute Section 120.057(2) to correct your record. This is often the quickest and most effective strategy to correct your record. If you still do not have relief, we can file a "writ of certiorari" an appeal the decision from the administrative review hearing.

Advance Driver Improvement (ADI)
Florida law allows you to get a hardship license to drive to and from work or any reason to carry on your ordinary course of business. Often times, you must enroll and show proof of a 12 hour traffic school course called Advance Driver Improvement or ADI to be eligible for your hardship license. If you have been declared a Habitual Traffic Offender, you may be eligible for your hardship license after one year.

Conclusion
If you have received a traffic ticket or any criminal driving offense, contact the Criminal Defense Lawyers at Blake & Dorsten P.A immediately to review your case. Keep in mind, that quickly pleading to a criminal offense at arraignment can have long lasting, devastating effects upon your driving history. Remember, it only takes three conviction of DWLSR or DUI in a 5 year period to be a Habitual Traffic Offender. If you receive a notice from Florida DHSMV regarding a HTO suspension, obtain a copy of your Florida Drivers Record and contact us immediately. There are several strategies we can employ to possibly get your drivers license re-instated. Often times we can save you thousands of dollars of increased insurance costs associated with a HTO suspension.

Continue reading "Habitual Traffic Offender? Call us immediately!" »

In our last blog, we gave some tips and information on what to expect with a DUI charge. As criminal defense lawyers, we received numerous requests on what to do or expect if one is charged with a criminal offense. In response to these requests, we have included more tips and hints in case you or a loved one is ever arrested. While our criminal law practice is based in Pinellas, these tips are relevant to ALL parts of Florida.

The following is a general description of the criminal justice system and what you can expect in the months to come. This form was created as a guide to assist you. Please remember, every case is factually and legally different from all others. As a result, some of the information on this form may not apply to you and/or your case.

General

Right now, you probably have many questions. Rest assured, that is very normal. You are not the first person, and certainly won't be the last, that has general questions about the criminal justice system.

Your criminal defense lawyer been hired to help you. You should help them by understanding and following these basic instructions.

Communication

1. You are charged with a crime. This means the police think you are guilty. You may or may not be guilty. Either way, the most important rule to follow at all times is: Never talk to anyone except your defense attorney or your attorney's staff about your case. Do not explain yourself. Do not say anything to anyone about your situation and/or case. Even if you say something perfectly innocent, there may be a way to use it against you and anyone can be used as a witness against you, even your relatives, friends and cellmates. Don't even risk taking the chance.

2. If you are innocent. Feel confident it will come out that way. You cannot talk your way out of being charged with a crime so don't say anything to anybody about the case. Somebody thinks you are guilty and anything you say might complicate the job of establishing your innocence.

3. You may be guilty. Even if you feel you've done something wrong, don't be discouraged. You may be guilty of a less serious offense than the one you were arrested for or are currently charged with. Even if you are proven guilty, your attorney can still help you get the best sentence available - whether probation, a short jail sentence or otherwise.

What you need to do to help yourself

1. Tell your Pinellas criminal defense attorney the whole story. You must be completely honest with your attorney. Our job is to help you and we are not allowed to tell anybody what you have told us except to help you. If you lie to your lawyer, they may take action on your behalf which will be impossible to correct when the truth comes out. If you have already told us something that is not true, do not be afraid to tell us the truth now. We will not be angry at you. We need to know the whole truth so we can represent your best interests without being surprised later on after it's too late to change our strategy.

2. Behave yourself. Between your arrest and your trial and/or sentencing you must stay out of trouble. The last thing you need is to go to trial with another problem hanging over your head. Do not go and talk to potential witnesses. Do not try to justify yourself to anyone. Your friends don't need to hear it and people who think you are guilty won't believe it. The only person you should communicate with about your case is your attorney.

3. If you are in custody/jail. Be aware that telephone calls are monitored by law enforcement. Be aware that your in-coming and outgoing mail may be opened and read. Mail to and from your attorney will not be read if you write "Attorney Client Legal Mail" on the envelope. Be aware that you may have to get prior approval before your family will be allowed to visit you. If you want family members to visit, talk to the jail personnel about getting them on your approved list of visitors and/or telephone numbers you are allowed to call. Be aware that in order to purchase things in the commissary or make long distance telephone calls, you must have money deposited into your account with the jail.

Terms you need to know

1. "Arraignment" The arraignment is really just an administrative hearing where you will be formally charged with a crime and asked to respond by pleading guilty, not guilty or no contest. In almost all situations, criminal attorneys prefer that their clients plead not guilty at the arraignment because the plea can always be changed later depending on what the attorney discovers during his or her investigation.

2. "Arrest" When the police detain a person in any way that makes it clear that they are not free to leave. Before the police can ask you any questions about your involvement in or knowledge of a crime, they must read you your "Miranda warnings" and tell you that you have the right to remain silent and that you have the right to speak with an attorney before you answer any questions.

3. "Bail" Bail is money that is given to the Court to hold while your case is pending to guarantee that you will show up to court when you are required to do so. You are allowed to post bail while your case is pending except in cases of first degree murder and violations of probation. The amount of bail usually depends on the local bail schedule which is based on the seriousness of the crime you are charged with, any prior criminal record you may have and any prior instances in which you may have previously failed to appear in court. The judge may lower the bail amount if your attorney shows that you are unlikely to run (for example, that you have strong ties to the community by way of a steady job, local family, etc.). You may not get all of your bail money back at the end of your case as the courts are frequently using that money to apply to any fines and/or costs associated with your case.

4. "Bail Bond" Money that is given to the court by a "bondsman" to guarantee that you will show up to court when you are supposed to. A bondsman is a person who charges a fee (usually 10% or 15%) for posting the bond. If you do not appear in court when you are supposed to, the bondsman may lose his or her money or property. Usually, the bondsman will look for you and bring you back to court, forcefully if necessary, in order to get their money back.

5. "Charge" A formal accusation of criminal activity. The prosecutor decides on the charges after reviewing police reports, witness statements and any other evidence of wrongdoing. Formal charges are announced at the Arraignment.

6. "Plea" The defendant's formal answers to criminal charges. There are three options: guilty, not guilty and no contest.

7. "Plea Bargain" A negotiation between your attorney and the prosecutor. The defendant usually pleads guilty to a lesser crime and/or fewer charges in exchange for a guaranteed sentence that is shorter than what you would get if you were convicted at trial.

The process -- what happens next?

1. "Arrest" If you were arrested, this means that the police took you into custody and think you are guilty of a crime. Before the police are allowed to ask you any questions about any crime they think you might be involved in or have knowledge of, they are required to read you your "Miranda warnings."

2. "Reading Your Rights" At some point the police should have told you that: 1) you have a right to remain silent; 2) that anything you say can be used against you; 3) that you have a right to speak with an attorney; and 4) that if you cannot afford an attorney one will be provided for you. It is important for your attorney to know if and when this happened.

3. "Booking" After you are taken into custody the police will take your photograph and fingerprints at the local jail and/or police department.

4. "First Appearance or Advisory Hearing" Usually, within 24 hours of your arrest you will be brought before a judge (either in person or by video). At this hearing, the prosecutor tells the court what you have been arrested for. This is not the time to discuss your case with the judge. Please remember, someone from the prosecutor's office will be present and will be taking notes and/or ordering the transcript if you make any statements about your case. Usually, the judge you see at your first appearance or advisory hearing is not the judge who will handle your case after that point. Therefore, telling your side of the story to the judge only helps the prosecutor.

5. "Indictment" This usually only applies in capital cases (i.e., first degree murder or felony murder). After your first appearance, where you'll learn what you were officially arrested for, the prosecutor will show their evidence to a grand jury. This is an entirely one-sided proceeding. Neither you nor your lawyer is allowed to participate. If the grand jury believes there is enough evidence against you, it will issue an indictment. The indictment (silent "c") is the formal charge or charges against you.

6. "Discovery" After the State files formal charges against you, you have a right to see all the evidence that the prosecutor has including questioning the State's witnesses. This process may take several months. Towards the end of the discovery period, your lawyer and the prosecutor may begin to negotiate or bargain the charges against you. This is called "plea bargaining."

7. "Trial" If your lawyer is unable to negotiate a satisfactory plea bargain with the prosecutor, you may elect to have a jury trial. In a jury trial, the prosecutor goes first and tells their whole case to the jury. Witnesses for the prosecution are called to testify and evidence against you is presented in court. After the prosecutor is finished, your lawyer will have an opportunity to tell your side of the story. Your lawyer will get the chance to question each of the prosecutor's witnesses and each item of evidence presented against you. Your lawyer may use any one of a number of different strategies to defend you during a jury trial. This will all be discussed with you in further detail, at a later date, if your case reaches that point.

8. "Sentencing" If the jury finds you guilty and/or you plea guilty or no contest to any charge(s), it is up to the judge to determine what your ultimate sentence will be. The sentencing can happen at the time you enter a guilty or no contest plea, or it can be set off for a future date where we can present witnesses or evidence on your behalf.

While by no means inclusive, we hope that these last two blog posts gave you a better understanding of the justice system.

Continue reading "What you need to know about your Pinellas criminal charge." »

As St. Petersburg DUI lawyers, we often get asked to explain what goes on if you or a loved one gets arrested for Driving Under the Influence (DUI) in Florida. Florida DUI law is a mixture of both criminal and civil actions, starting with your DMV hearing. As a courtesy to our clients and to anyone who receives a DUI in Florida, we have composed a list of tips. These tips are bits of information that may help you find the right criminal defense attorney for you!

1. On the Civil portion of your DUI case, please know that the DUI citation that you received, upon your arrest, also acts as a temporary driver's permit for 10 days from the date of the citation. You should carry it with you when you drive. Unless an Application for Formal Review of Driver License Suspension is filed within 10 days of your arrest, at the end of this 10-day period, you will suffer a "hard suspension" of your driver's license and will be unable to drive for any reason for a period of 30 days (if you performed the breathalyzer) or 90 days (if you refused the breathalyzer). At the end of this period of time, you may be eligible to apply for a hardship license which will allow you to drive for business, educational, medical and church purposes. This license can be obtained at your local DMV office. A list of phone numbers and address of your local DMV office can be obtained at www.florida.dmv.org. Please note in order to be eligible for a hardship license, you must have completed or be enrolled in DUI School prior to applying for your said license. You must take your original DUI school completion certificate and a 30-day traffic search (this must be obtained from traffic court) to the DMV office at the time you apply. Please do not attempt to drive to the DMV office. Instead, have someone take you there.

2. If you have retained a DUI defense lawyer to represent you on your DUI charge within 10 days of receiving your citation, they should request a "formal review hearing" before a hearing officer of the Department of Motor Vehicles. In most cases, it is not necessary for the client to attend the formal review hearing. This hearing will take place approximately 30 days after your arrest. You will receive a temporary driving permit, which becomes effective upon expiration of the 10-day permit issued at the time of your arrest, which will allow you to continue to drive until 12 days after the day of the formal review hearing. This temporary permit is restricted (like a hardship license). You may only drive for business, educational, medical, or church/religious purposes. At the formal review hearing, the following items will be considered:

a. Whether the arresting law enforcement officer had probable cause to believe that you were driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances;
b. Whether you were lawfully arrested and charged with a violation of section 316.193, Florida Statutes;
c. Whether you had an unlawful alcohol level of .08 or higher; and
d. Whether you refused to submit to a blood, breath or urine test after being asked to take the test by a law enforcement or correctional officer.

3. If your attorney is successful in convincing the hearing officer to invalidate the suspension, your license will be reinstated and you will be able to obtain a duplicate driver's license at no charge.

If your DUI attorney is unsuccessful, you will suffer a "hard suspension" of your license as outlined in number 1 above and it will be effective upon the expiration of your temporary driving permit.

The outcome of the formal review hearing has no bearing on your DUI case which will take place in criminal court. Make sure to ask your defense lawyer if he or she plans on attending and participating in this administrative review hearing!

4. On the Criminal side of your DUI case, your criminal defense attorney should file with the court having jurisdiction over your case the following documents: a Notice of Appearance, a Written Plea of Not Guilty, a Demand for Discovery, and if necessary a Demand for a Jury Trial. Your case will be set for an Arraignment; however, by the virtue of your lawyer having filed the above-mentioned pleadings, it will not be necessary for anyone to be present at the arraignment. Your case will then be set for a pre-trial hearing approximately 30 days after the arraignment date. Unless you are told otherwise, you must appear in person at all pre-trial hearings. Your failure to appear will result in a warrant being issued for your arrest. You will receive a notice of the pre-trial hearing in the mail from the Clerk of Court. When you appear in court, you should wear the type of clothing you would wear if you were going to church. Remember: the Judge has the ability and power to sentence you to JAIL on your DUI.

5. If a videotape of your field sobriety exercises exists, your attorney should obtain a copy of the videotape and will notify you when it arrives so that you can schedule a time to come to his or her office to review it.

6. Your DUI lawyer should also contact you when the discovery (police reports, witness statements, DUI packet, etc.) is received from the State Attorney's Office and you will need to schedule an appointment to review it with him or her.

7. There are many things the Court may require of you. These things will vary depending on the facts of your case and whether or not you submitted to, or refused, the breathalyzer and the number of prior DUI convictions you already have. These things may include: completion of DUI School or Multiple Offender DUI School, performing community service hours, attending a Victim Impact Panel, Fines and Court Costs, and Impoundment of your vehicle.

8. You should register for DUI School as soon as possible. The course is offered through the Suncoast Safety Council. There information can be found at www.safety.org.

9. If you are convicted of a DUI, any license you hold will be surrendered and you will suffer a revocation of your license for a period of time depending upon whether or not you submitted to, or refused, the breathalyzer and the number of prior DUI convictions that you have. You may be eligible to obtain a hardship license which will allow you restricted driving during the revocation period (see number 1 above).

10. If you are ultimately convicted of a DUI in Florida, the Court may order that your vehicle be impounded for at least ten (10) days. (This impoundment means that your vehicle may not be driven by anyone during that period of time. It will not be removed from your property). A law enforcement officer should contact you to provide you with advance notice of the date the impound period begins and he/she will come to your residence to make note of the odometer reading. Additionally, many counties in our state now allow private companies to "impound" your vehicle (usually by putting an anti-theft device on your steering wheel). This is usually done for a low cost and can be convenient, as you get to decide what days you choose to impound your vehicle.

11. If you received any additional traffic tickets at the time you were stopped for DUI (i.e., speeding, careless driving, seat belt violation, etc.), make sure your chosen attorney also be handles those charges for you. Do not pay any of the fines which are due for these tickets unless and until your lawyer (or the Court) direct you to do so.

12. Finally, let your Florida criminal defense lawyer know if you receive anything from the Court. Be sure to advise them immediately of any changes in your address or phone number. Prior to any pre-trial hearing, make sure to let them know your status as far as completion of DUI School, alcohol counseling sessions, etc.

Continue reading "What you need to know about your Florida DUI" »