Tampa Bay Criminal Defense Lawyer Blog

Recently the Florida Legislators enacted new legislation prohibiting someone from cutting off the airways of another or strangling them. It is a felony charge carrying a maximum penalty of five years in Florida State Prison if a person knowingly and intentionally, against the will of another, impedes the normal breathing or circulation of blood of a family or household member or a person whom he or she is dating. This is a very serious charge and it often charged by Florida State Attorney Office if there is any allegation of a battery around the neck and face area. Additionally, prosecutors take a very aggressive approach to prosecuting these types of crimes. Even if the victim does not wish to prosecute or go forward with the charge, the State Attorney's Office will often move forward if there is a witness of a 911 call. However, there are many defenses to these allegations and an experienced trial attorneys at Blake & Dorsten, P.A. can successfully navigate you through the process.

Under Florida Statute 784.041 that took effective October 1, 2007, (2)(a) a person commits domestic battery by strangulation if a person chokes or causes great bodily harm by applying pressure on the throat or neck of another person or by blocking the nose or mouth of another person. In plain language, if a person intentionally tries to keep a person from breathing , and they are in a relationship, that person is at risk for prosecution.

Each accusation is different and can be defendant in many ways, however, there are some important key elements that must be proven beyond every reasonable doubt by every Florida Prosecutor. A person accused of this crime must be in a "Dating Relationship" or by a "Family or household member" The Florida Legislator defines dating relationship as a continuing and significant relationship of a romantic or intimate nature. The Florida Legislator defines family or household member as a spouse, former spouse, persons related by blood or marriage, persons who are presently residing together as a family, or have children in common. Under Florida Statute 741.28(3) to be eligible for a family or household member you must be currently or in the past lived together in the same single dwelling unit. Therefore, for example, if you get into a fight with your neighbor and allegedly choke him or her, this statute would not apply to you and be a legitimate defense to your charge. Additionally, if you are accused of chocking a close friend but have never lived together, that would be a valid defense to the charge of domestic battery by strangulation. If a person accidently chokes a person in the fog and confusion of the situation, that would be a valid defense to an accusation of domestic battery by strangulation. Certainly, if an individual agrees or consents to be choked, no crime has accused and is a defense to this charge.
In addition to all the situations above, often times persons find themselves arrested for a Domestic Battery by Strangulation when they were merely acting in self-defense. If you were not the primary aggressor and were defending yourself against an attack, this could be a valid defense to your charge.

These are examples of just some of the possible defenses to domestic battery by strangulation. If you or a loved one is accused of this crime, you need to sit down with an experienced criminal trial attorney who specializes in this area of the law

The lawyers at Blake & Dorsten, P.A. were former prosecutors specializing in domestic violence. They have encountered thousands of these types of crimes. They use their knowledge prosecuting these types of crimes to get the best possible result in every accusation. Call now for a free consultation. Don't wait, the earlier the lawyers can defend you, the better your chances of success against false accusations.

An article from an Orlando paper dealt with a man arrested and charged with child abuse. The man, Johnny Nguyen, was arrested by police when he put his five year old daughter in his car trunk for over one minute. A witness yelled at Mr. Nguyen to stop and called 911. The Defendant claimed he was punishing her daughter for misbehaving in church. Is this child abuse? The answer in Florida is a resounding...maybe?

Florida, like the rest of the union, has certain built in exceptions for parental discipline over children. If a stranger hits a child, he may be arrested for child abuse or battery but a parent is permitted the lawful exercise of corporal punishment. Generally, Florida case law spells out what is considered "lawful" with a few examples below...

In State v. Figarola, 788 So.2d 1109 (Fla. 3d DCA 2001), the defendant was charged with felony child abuse for hitting his son multiple times in the face when the boy would not eat dinner. This caused the boy to have a split lip. The court ruled that the facts did not show "that the parent's behavior was so excessive or unreasonable and beyond the scope of parental discipline to constitute child abuse." Id. at 1011.

Another case with a similar outcome is Wilson v. State, 744 So.2d 1237 (Fla. 1st DCA 1999). In Wilson, the defendant was accussed of slapping her six year old son in the face once with an open palm in response to him ignoring her requests to behave. The slap resulted in a red mark on his face but no permanent injuries or medical treatment. Here the Court ruled that these facts constituted not child abuse but permissible discipline.

As Clearwater criminal lawyers, and former prosecutors, we have handled hundreds of child abuse cases. Many times, the person being charged is not a parent, rather a school teacher or another authority figure. The State of Florida has walked a thin line to both protect the children while upholding the rights of certain individuals to discipline appropriately.

In State v. Lanier, 979 So.2d 365 (Fla. 4th DCA 2008), the defendant, an elementary school teacher was arrested for child abuse. He was accused of stomping on a four year old's foot after the child had stomped on another student. In this case the Court determined that the defendant's actions were permissible and did not amount to an "act that could...'reasonably be expected' to cause physical injury." Id. at 368.

Finally, in King v. State, 903 So.2d 954 (Fla. 2d DCA 2005) the defendant, an administrator at a Christian academy, was charged with felony child abuse. The defendant allegedly spanked an eight year old child with a paddle two times, leaving large welts and bruises on her buttocks. This was done because the child was being punished for lying and cheating. The defendant did have a signed permission slip allowing corporal punishment at this school and the Court concluded that the spanking alone did NOT constitute felony child abuse.

What does this mean for Mr. Nguyen? His criminal defense lawyer may try and argue permissible corporal punishment. That may depend on several unkown factors at this time such as the weather, the defendant's past history and what if any injuries did his daughter receive?

Continue reading "What is child abuse vs. child discipline in Florida?" »

Lately, the Florida Criminal Defense lawyers of Blake & Dorsten, P.A.have received numerous questions regarding how to restore civil rights. Generally, these questions come from people who have been convicted of one or more felony crimes. In Florida when you are ajudicated guilty (rather then receiving a withhold of ajudication) you are considered a convicted felon. You lose many of your civil rights such as the right to vote, the right to own a firearm (which even if your civil rights are granted back, you will need to wait an additional eight years from the date you have completed all conditions of your original criminal offense before becoming eligible), the right to hold public office and (maybe some good news) the right to serve on a jury.

The following is a brief overview of what the Pinellas criminal defense lawyers at Blake & Dorsten, P.A. do to attempt to restore peoples civil rights. Civil rights are restored through the Office of Executive Clemency. This Board is comprised of the Governor, Attorney General, Chief Financial Officer and the Commissioner of Agricultural and Consumer Services.

New rules of executive clemency were implemented in 2007. Convicted felons who hope to restore their civil rights now fall under three levels. In all three levels, certain rules appy. To be eligible for civil rights restoration, you must have no pending charges, your sentence must be completed and all restitution must have been paid to the victim (if any).

You are eligible under the first level if you have never commited a violent offense (such as child abuse or aggravated battery). In addition you must not be declared a habitual violent felony offender, a three time violent felony offender, a violent career criminal or a sexual predator. If you qualify, your rights are restored WITHOUT a hearing. This can still be a time consuming process however, generally taking six months to a year or more.

A Level two applicant has been convicted of a violent offense and does not qualify under level one rules. These violent offenses cover everything but murder and sex offenses. As you can imagine, the standards to restore your civil rights become more difficult. You must still qualify like level one but now you don't automatically qualify for rights restoration. If your civil rights are not restored after whats called a mid-level investigation, your attorney will need to contact the Office of Executive Clemency to request a full hearing.

As you might have guessed, a Level three applicant was convicted of murder or sexual offenses or a sexual predator. He/she will not be able to get their civil rights restored without a full investigation AND a hearing...

In conclusion, restoring your Florida Civil Rights is not easy, quick, or guaranteed. It is a long, arduous process. Having experienced criminal defense lawyers to help you through the legal minefields gives you the best chance of sucess.

Continue reading "Can you restore your civil rights?" »

Any dwindling hope that Florida drug laws (found in Florida Statute 893.13) would be found unconstitutional took a major (fatal) blow with the Adkins ruling. State of Florida v. Adkins (No.SC11-1878) dealt with the constitutionality of the Florida Comprehensive Drug Abuse Prevention and Control Act. This act provides that knowledge of the illicit nature of a controlled substance is not an element of any offenses under the chapter but that the lack of such knowledge is an affirmative defense.

A court in the 12th circuit ruled it was unconstitutional and began dismissing drug charges such as possession of cocaine or trafficking in oxycodone.

Here in Pinellas County, many St. Petersburg criminal defense lawyers filed what has become known as a Sheldon motion, named after the case. Sheldon, 6:07-cv-00839-MSS-KRS, was a federal case from the middle district court. Sheldon had appealed his earlier drug conviction and argued the changes Florida made to Statute 893.13 in May of 2002 made the statute unconstitutional. By making this change, Florida became the ONLY state in the country to eliminate mens rea, or intent, for drug charges! The court ruled in favor of Mr. Sheldon and these Sheldon motions to dismiss became rather common in the Pinellas and Hillsborough criminal courthouses.

After the middle district case ruling and the subsequent Sheldon motions,
there was a brief time when the courts were not sure how to rule. A few drug cases in Manatee county were dismissed but no Sheldon motions were granted in Pinellas or Hillsborough counties. With this most recent ruling, it appears the Supreme Court in Florida has spoken.

Continue reading "Florida drug laws are ruled constitutional" »

Another year, another rash of arrests for the Tampa Bay Bucs. According to an article in today's Tampa Bay Times, free agent Eric Wright was arrested in California on suspicion of DUI.

We have previously blogged often about the troubles and arrests of the Buccaneer's players and their apparent goal of giving the Cincinnati Bengals and Oakland Raiders a run for the title of most arrests per NFL franchise. It is still disappointing to see that the team has yet to learn from their past.

According to police reports, Eric Wright, who recently signed a 37 million dollar contract with the team, was arrested on suspicion on felony DUI (with serious bodily injury) after an accident in downtown Los Angeles.

Accordin to the LAPD, officers responded to an auto accident after midnight. They determined that Eric Wright's Mercedes XLS sports coupe had rear-ended a Chevy Silverado. The football player admitted to both driving the vehicle and drinking at a friends house earlier. He refused the breathalyzer (it is not known if this is his second refusal and therefore a criminal charge). He was charged with a felony DUI because the other driver had an injury.

Eric Wright posted $100,000 in bail and was released soon after. His scheduled court appearance is a mere three days before the Buccaneer's have their training camp!

Unfortunately, this is not the first time that Eric Wright has faced legal problems. While a student at the University of Southern California in 2005, he was accused of sexual assault. While there was noever enough evidence to charge him, that assault investigation led to the police discovering him in possession of 136 Ecstasy pills.

At the time of this entry, it was not known if Eric Wright had hired a DUI lawyer or if he was being sued by an auto accident attorney. Based on Eric Wright's new 37 million dollar contract, we believe that it is only a matter of time before a lawsuit is filed against him.

Continue reading "Tampa Bay Buccaneer arrested for a suspected DUI" »