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Vehicular Manslaughter Penalties In Broward County, FL

According to Florida Highway Safety and Motor Vehicles, more than 1.5 million licensed drivers in Broward County. Unfortunately, these many drivers increase the risk of vehicular accidents. Furthermore, getting a driver’s license isn’t enough to prevent fatal accidents. The latest data indicates there were 243 fatal vehicular accidents in Broward County in 2019. There’s freedom…
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Conor McGregor Arrested for Robbery in Miami

Conor McGregor, mixed martial arts super star, was arrested Monday morning for demolishing a fan’s phone. At around 5 a.m., McGregor was leaving the Fontainebleau Miami Beach Hotel when he was met by a fan attempting to take a photo of the former UFC Featherweight and Lightweight Champion. McGregor apparently was not interested in a…
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Major Win for Meltzer & Bell, P.A. in Fort Lauderdale Hit and Run Case

(Photo Credit: Rafael Olmeda for South Florida Sun Sentinel) Meltzer and Bell, P.A. had the tough task of defending a young art student and tattoo artist with no prior criminal history, Tyler Kersting. The charges arose from a traffic violation that left one of his passengers paralyzed and with life changing brain injuries. Mr. Kersting,…
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Lawrence Meltzer and Steven Bell Commit to the National Association of Criminal Defense Lawyers

It is an honor to announce that Lawrence Meltzer and Steven Bell have committed to being Life Members of the National Association of Criminal Defense Lawyers (NACDL). Founded in 1958 the NACDL prides itself on protecting the rights of Americans. The NACDL believes in a fair and just judicial system that caters to every economic…
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Meltzer & Bell P.A. Wins the 2017 Law Firm 500 Award

Law Firm 500 is organization that celebrates the fastest growing law firms in the United States. The year 2017 marks the second annual Law Firm 500 Conference and Gala, where Law Firm 500 celebrated the fastest growing law firms in the country. The law firms were evaluated and ranked in order based on gross revenues…
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FHP Releases Sketch of Suspected Hit and Run Driver

WFLX-TV reported on October 13 that the Florida Highway Patrol (FHP) released a sketch of a person who could have been involved in a fatal hit and run crash in Boca Raton on Labor Day weekend. The FHP told WFLX that a Chrysler 200 changed lanes and struck a motorcycle driven, causing its 36-year-old driver…
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Teen Suspected in Carjacking Charged as Adult

The Palm Beach Post reported on September 29 that the West Palm Beach Police Department said a 17-year-old was being charged as an adult in a reported September 4 carjacking near Good Samaritan Medical Center. The teenager was transferred to the Palm Beach County Jail on September 27 following his September 5 arrest on allegations…
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Polk County Sheriff Threatens to Jail Evacuees with Warrants

On August 26, the United States National Hurricane Center (NHC) began monitoring a tropical wave over the western coast of Africa that moved off the coast of the continent and organized significantly over the next few days. The NHC classified the disturbance as Tropical Storm Irma on August 30 before Irma strengthened to a Category…
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Is a Second DUI a Felony? Everything You Need to Know

If you’ve been arrested in Florida for a second DUI, you’re probably wondering whether it will be treated as a misdemeanor or felony. Well, to get you started, here’s what a second DUI is defined as under Florida Statute 316.193(1) and (2)(a): A second DUI occurs when a person; Has actual physical control or drives…
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What to Do In case of Multiple DUI Charges?

Driving under the influence is a grievous offense in the United States. The offense attracts possible imprisonment, penalties and license suspension. For example, in Florida State, a 4th or subsequent conviction is treated as a third-degree felony. It attracts a fine of up to $5000, 5 years jail term, and vehicle immobilization for 90 days….
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Get the Best Vehicular Manslaughter Lawyer in Palm Beach County, FL

According to the CDC, auto deaths are the leading cause of preventable death in the U.S. If you or your loved one has been arrested for vehicular manslaughter in Palm Beach County, FL, it’s in your best interest to get a seasoned lawyer as soon as possible. This will give them enough time to analyze…
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Understanding Felony Sex Crime Charges in West Palm Beach, Florida

Sex crime allegations are taken very seriously in West Palm Beach, and in addition to facing social stigma, you also risk harsh criminal penalties. Such offenses lead to hefty crimes, incarceration, and long-lasting impacts such as being registered on the sex offenders registry. Most sex crime cases go to trial because they are usually associated…
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Charges for Manufacturing a Controlled Substance Illegally in Florida

If you’re facing charges for manufacturing a controlled substance in Florida, your fate depends on the ability of your defense attorneys to fight the charges. The magnitude of the offense also determines the outcome to a great extent. Generally, unauthorized manufacturing of controlled substances is a criminal offense in Florida, attracting harsh sentences and fines….
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A Rape Defense Lawyer’s Advice for Handling False Rape Allegations

Rape charges are traumatic. If the charges are not defended effectively, the defendant can suffer jail terms and wind up in a sex registry. If false allegations are not dismissed quickly, they may have devastating effects on the accused’s family and career life. Think of Kobe Bryant. Talk of his death in the plane crash…
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Driving While License Suspended Charges in Florida

The state of Florida has some of the busiest roads and highways. The transport sector contributes a significant portion of state revenue. Millions of vehicles pass through Florida’s roadways daily. For most Florida residents, a car is necessary, and it’s impossible to move from point A to point B without one. Whether it’s running errands,…
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What is the Statute of Limitations on Rape in Florida?

Have you or your loved one been accused of rape or any other sexually motivated crime? If so, read on to learn about the ramifications, challenges, and defenses as it pertains to rape charges in Florida. Rape accusations can be one of the most challenging things to deal with and live with, especially if you…
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Accessory to Murder or Accomplice: What’s the Difference?

You may have heard about the terms accomplice and accessory to murder and wondered if they mean the same thing. The two terms stand for different types of crimes. They are connected to helping a principal offender but in different ways. Let us explore them to help you understand who an accomplice is and who…
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How Much Jail Time for Drug Trafficking?

Due to the detrimental health and social effects of drugs and controlled substances, you may face harsh penalties if you are involved in such a case. Though there are various drug-related charges one may face, drug trafficking is the most serious one. Although it’s a serious offense, drug trafficking is arguably the most misunderstood crimes….
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How to Beat a Drug Trafficking Charge

When you’re accused of drug trafficking in West Palm Beach, Florida, you may feel the need to speak up for yourself and try to arrive at a resolution without thinking of hiring an attorney. While you’re rightfully worried about the situation’s outcome, you must take the necessary steps to ensure a better result in the…
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Is Shoplifting the Same as Petty Theft?

While shoplifting and petty theft might seem similar from the outlook, they are technically regarded as dissimilar charges under Florida criminal law. Despite being treated as minor crimes, these offenses usually carry significant penalties upon conviction. The Florida Legislature has put punitive measures on petty thieves and shoplifters, especially if it is a repeat action….
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What to Do If You’re Charged With a Serious Crime

It can be very scary to be charged with a serious crime in Florida. You’re worried about what this means. Will you have to serve time behind bars? Do you need to pay expensive fines? Will you have to go on probation? Will your life ever be the same?   Though you’re worried right now…
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Hit-and-Run Charges in the State of Florida

When a driver hits a person with their car or hits a vehicle or object and then flees the scene of the accident, they’re committing what’s called a hit and run. In these situations, drivers are supposed to get out of their car, exchange information with the pedestrian or other driver they hit, or leave…
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Drug Possession Laws in Florida

Some states have recently rolled back their drug possession charges and legalized certain drugs. For instance, Oregon became the first state to decriminalize drug possession for personal use in November of 2020, and cannabis is fully legal for medical and recreational use in many states including California, Colorado, Maine, Nevada, and Washington.   Florida, however,…
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Larceny in Florida

If someone is accused of or charged with committing larceny in Florida, they may be worried about the consequences. They might also be confused about what larceny is and how it differs from similar crimes.   By determining exactly what larceny in Florida entails and what could happen to someone who is found guilty of…
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How Long Is Your Car Impounded for a DUI in Florida?

When you drive under the influence in Florida, you could face many consequences including time in jail and hefty fines. It’s also possible that you’ll lose your car when law enforcement impounds it.   If you got pulled over for a DUI, you may now be having a tough time because you lost access to…
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If I Plan on Pleading Guilty, Do I Still Need a Criminal Lawyer?

Whether or not you committed a crime, you may want to plead guilty for a number of reasons. You think that if you plead guilty, it could help your case and you may be able to get your charges reduced. Perhaps you believe that other charges may be dropped if you just said that you…
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How Long Does a Felony Stay on Your Record in Florida?

You’ve just found out that you’re being charged with a felony, and you’re worried about what it means for your life going forward. You definitely don’t want to go to prison, have to pay fines, go on parole, or attend court-ordered classes.   If you lose your case and are formally charged with a felony,…
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How Long Does a DUI Stay on Your Record in Florida?

Getting hit with a DUI, or driving under the influence, charge can be incredibly devastating. If you have a DUI on your record, you could potentially go to jail, have to pay fines, get your license suspended, and get points on your license. If you’re a repeat offender, the consequences could be even worse.  …
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What Is a Minimum Sentence for a 3rd Degree Felony in Florida?

Being charged with a crime is incredibly stressful. You’re worried about the third degree felony charges you’re facing and don’t know what to do or who to turn to at this point.   So many questions are racing through your head. What happens when you’re charged with a third degree felony in Florida? Are you…
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Is a DUI a Felony in Florida?

If you’ve been arrested for driving under the influence in the Sunshine State, one of your first questions may be, “Is a DUI a felony in Florida?” The short answer is “sometimes.” To fully answer that question, it’s important to understand the larger picture of Florida DUI law.   Defining Driving Under the Influence of…
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How to Pick a DUI Lawyer

If you’ve been charged with driving under the influence in Florida, you know that you need the assistance of a DUI lawyer, but you may not know how to go about selecting one. When considering how to pick a DUI lawyer, you may not feel comfortable asking friends, coworkers, and acquaintances for referrals. That’s understandable….
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Is Domestic Violence a Felony in Florida?

If you’re facing domestic violence charges, you may be asking yourself, “Is domestic violence a felony in Florida?” The short answer is that there are times when domestic violence is a felony in Florida and other times when it is not. Before taking a deep dive into Florida felony domestic violence charges, it’s important to…
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New Mask Rule Passed in Palm Beach County & What That Means

On January 22nd, Palm Beach County commissioners voted 7-0 requiring masks to be worn in public indoor spaces or outdoor spaces where social distancing isn’t possible. The commissioners passed the ordinance despite the unrelenting crowd of constituents without masks. The vote was met with outrage as people hurled insults, threats and claimed the board had…
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Supreme Court Rules that All Serious Crimes Require a Unanimous Jury Verdict

The U.S. Constitution’s Sixth Amendment promises every American citizen the right to an impartial trial. When it comes to serious crimes, many would assume that a unanimous jury decision would make a trial impartial. Although this is true for 48 states, in the U.S. there are two states, Louisiana and Oregon, who permit non-unanimous verdicts…
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New Hemp Law Limits ‘Sniff and Search’ Arrests

  The prohibition against cannabis is quickly eroding in the United States to the point that law enforcement agencies are now having problems arresting people for marijuana crimes. While marijuana remains illegal at the federal level, hemp has been recently legalized across the country which makes Palm Beach’s police’s strategy of making ‘sniff and search’…
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Judge’s Ruling Could Affect Patient Brokering Cases

Patient brokering at drug treatment centers has become an ongoing issue in the state of Florida. Investigations led by several news outlets have uncovered the real crooked nature of these centers such as the practices at Whole Life Recovery. This has led to numerous legislative attempts to deter large patient-brokering operations, which is a type…
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Florida May Pass Stricter Distracted Driving Laws

Cellphones and other electronic devices have become a staple in our daily lives. The majority of the time these instruments help us navigate the world around us. However, many people use their electronic devices recklessly while they’re driving. This has become a dangerous growing trend for the state of Florida. The Florida Highway Safety and…
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Florida May Lift Ban on Smokable Medical Marijuana

In 2016, Amendment 2 or the Florida Medical Marijuana Legalization Initiative was approved into law by voters. The legislation allows Floridians to use medicinal cannabis for certain conditions such as glaucoma, epilepsy and human immunodeficiency virus (HIV). Although Amendment 2 legalized medical marijuana, it still doesn’t allow patients to smoke it. Currently, Florida law only…
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What We Know About the Robert Kraft Prostitution Scandal

Robert Kraft along with 300 other people have arrest warrants issued for them for soliciting prostitution in Florida’s Treasure Coast. Florida police in multiple counties conducted coordinated sting operations to arrest men who visited massage parlors for illicit sexual services. Kraft was arrested in Jupiter, in Palm Beach County, an area known for its affluent…
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Lawrence Meltzer and Steven Bell Commit to the National Association of Criminal Defense Lawyers

It is an honor to announce that Lawrence Meltzer and Steven Bell have committed to being Life Members of the National Association of Criminal Defense Lawyers (NACDL). Founded in 1958 the NACDL prides itself on protecting the rights of Americans. The NACDL believes in a fair and just judicial system that caters to every economic…
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Meltzer & Bell P.A. Wins the 2017 Law Firm 500 Award

Law Firm 500 is organization that celebrates the fastest growing law firms in the United States. The year 2017 marks the second annual Law Firm 500 Conference and Gala, where Law Firm 500 celebrated the fastest growing law firms in the country. The law firms were evaluated and ranked in order based on gross revenues…
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Drug Monitoring Program Expands throughout U.S. to Thwart Doctor Shopping

Prescription fraud, commonly known as doctor shopping, is a huge problem throughout the United States, including Florida. In 2009 the Federal Centers for Disease Control labeled Florida as the epicenter of prescription drug abuse epidemic.

Nationwide, the prescription drug abuse epidemic has been attributed to lack of prescription monitoring programs and medical personnel oversight. In 2011 Florida enacted the E-FORSE (Electronic-Florida Online Reporting of Controlled Substance Evaluation) program. The program is designed to prevent over prescribing of drugs and doctor shopping.

While reported drug overdoses have declined in Florida, many have criticized the effectiveness of the program citing doctors do not consistently use the program and the program does not have national reach.

In April of 2016, New Jersey legislators announced that the state would expand its prescription drug monitoring program, part of a mass effort to cease out-of-state doctor shopping and prescription drug abuse.  New Jersey joins 7 other states, including South Carolina, New York, Minnesota, Rhode Island, Virginia, Connecticut, and Delaware in this effort.

Under this monitoring program, New Jersey doctors would be able to see a patient’s prescription history within the state and any prescriptions written by other doctors in 7 states. Although Florida does not participate in this interstate monitoring program, Florida criminalizes doctor shopping and could possible join this effort.

What is Doctor Shopping?

Doctor Shopping is the practice, or habit of visiting multiple doctors to obtain multiple prescriptions for otherwise illegal drugs. Typically, it’s common practice for drug addicts and suppliers of drug addicts.

A doctor shopper will normally visit multiple health care clinics as a “new patient” or “visiting from out of town” and will exaggerate medical problems in order to obtain prescription medications.

Florida Stat. § 893.13(7)(a), (8), and (9) are the doctor shopping laws that makes it a felony offense to withhold information from a practitioner from who the person seeks to obtain a controlled substance or prescription for a controlled substance when the individual making the request has received a controlled substance or prescription from another practitioner within the previous 30 days.

Prescriptions Drugs Statistics

According to DEA statistics in 2010, the state had over 900 unregulated pain management clinics. Data also showed that these clinics employed 90 of the top 100 oxycodone dispensing physicians in the country.

Of the top 50 oxycodone dispensing clinics in the U.S., 49 were located in Florida and were selling more than 1 million oxycodone pills a month.

Before E-FORSE was implemented by the Florida legislature, it was projected from state medical examiners documents that about 10 individuals each day died of prescription drug overdose, primarily due to oxycodone.

Doctor Shopping Penalties

  • Misdemeanor or felony conviction
  • Up to 1 year in jail or 3 years in prison
  • Up to $20,000 in fines
  • 1-5 years’ probation
  • Community service, an amount determined by the court

Who can be charged?

  1. Any patient who attempts to obtain and/or obtains prescription of a controlled substance through fraud;
  2. Any medical professional who makes a false statement in any prescription, order, report or record;
  3. Anyone who falsely assumes the title of, or represents himself to be a pharmacist, physician, dentist, veterinarian, registered nurse, physician’s assistant; or
  4.  Any person other authorized person and anyone who affixes any false or forged label to a package or receptacle containing controlled substances.

Conclusion

The attorneys of Meltzer & Bell, P.A. are experienced criminal defense attorneys based in West Palm Beach, Florida. The team of attorneys at Meltzer & Bell, P.A. defend individuals facing any drug crime, including prescription fraud, drug possession, drug trafficking, drug distribution, and marijuana possession.

Former prosecutor, Lawrence M. Meltzer, and former public defender, Steven K. Bell, possess the knowledge and skill to build the strongest defense on your behalf.  Meltzer & Bell, P.A. diligently defends individuals throughout Palm Beach County, including West Palm Beach, Palm Beach, Boca Raton, Palm Beach Gardens, Jupiter, Delray Beach, and surrounding areas.

Contact the Palm Beach Doctor Shopping Defense Attorneys of Meltzer & Bell, P.A. for a confidential review of your case at (561) 283-3259. The partners of Meltzer & Bell, P.A. are available 24 hours a day/7 days a week.

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Kansas Supreme Court Rules DUI Tests Unconstitutional

U.S. Supreme Court will consider similar cases, but will the Kansas decision affect Florida?

Isn’t a person who is suspected of drunk driving entitled to the same rights related to police searches as anyone else? In many states, the answer is NO.

Ordinarily, the police need a warrant in order to conduct a search, but not during a DUI stop. The concept of “implied consent” allows the police to cross that line and conduct a warrantless search, including a breath or blood test of a DUI suspect to determine if the driver is impaired. Refuse the test and your license is suspended. No exceptions.

Thirteen states make it a crime to refuse a DUI test.

Kansas Draws the Line

The State of Kansas drew a firm line on Feb. 26, 2016, when the Kansas Supreme Court, in a 6-1 opinion authored by the Hon. Justice Marla J. Luckert, declared that mandatory DUI tests are “facially unconstitutional,” meaning unconstitutional in all circumstances, not just in the particular case of State of Kansas v. Darwin Estol Wycoff.

In Wycoff, the Kansas Supreme Court cited both the Fourth and Fourteenth Amendments to the U.S. Constitution and Section 15 of the Kansas Constitution Bill of Rights, concluding: “An individual has a right … to withdraw consent to a search. … Punishing an individual for exercising that right with criminal penalties, as the State has chosen to do … is facially unconstitutional.”

Wycoff was arrested for DUI and other related charges in December 2012 in Salina, Kansas. He refused to submit to a field sobriety test and also refused a DUI breath test after he was transported to jail. He was charged with DUI, refusing to submit to an evidentiary test as mandated under Kansas law (K.S.A. 2014 Supp. 8-1025), and other offenses.

Wycoff moved to suppress the evidence, claiming § 8-1025 was unconstitutional because it violated the Fourth Amendment prohibition against unreasonable searches, the Fifth Amendment right against self-incrimination, and due process rights guaranteed by the Fourteenth Amendment. After rejecting most of Wycoff’s claims, a district court concluded that § 8-1025, which criminalized his test refusal, imposed an unconstitutional condition on his privilege to drive.

The State appealed to the Kansas Supreme Court after dropping the other charges. But the Supreme Court sided with the Constitution and Wycoff was acquitted.

DUI tests, the Kansas Supreme Court concluded, are searches.

A search is unreasonable if it is conducted without a warrant and any evidence gathered in such a search must be excluded. No longer will a person be punished in Kansas for exercising his or her right to be free from unreasonable searches and seizures when suspected of DUI. Furthermore, implied consent is not irrevocable, the Court decreed. In addition, the Court maintained that the State’s interest in battling drunk driving does not trump the Bill of Rights.

U.S. Supreme Court Will Have the Final Word

Although the Wycoff decision only applies to Kansas, it may have far-reaching implications. Kansas may appeal the state Supreme Court decision to the U.S. Supreme Court, which has already agreed to decide whether a blood or breath test for drunk driving can be conducted without a search warrant and whether, if there is no warrant, a person can be charged with a crime for refusing to submit to a DUI test.

The U.S. Supreme Court indicated in December 2015 that it would rule before the end of its current session on three cases involving DUI tests, two from North Dakota (Birchfield v. North Dakota and Beylund v. Levy) and one from Minnesota (Bernard v. Minnesota), that involve the legality of DUI tests. The cases differ in that in one, a person declined a DUI blood test, and in another, a person refused to submit to a DUI breath test.

In the third case, a person was convicted of DUI after refusing field sobriety testing before being taken to a hospital for a blood test against his wishes. The U.S. Supreme Court will be reviewing that person’s punishment for refusing the DUI tests — a two-year driver’s license suspension — instead of the jail time and fine he received for the DUI conviction, according the U.S. Supreme Court blog.

The three cases are scheduled to be consolidated and heard together in a one-hour argument, but as of Feb. 29, 2016, they had not been placed on the court docket. The Kansas prosecutor who initially prosecuted Wycoff indicated in a news report that he hoped Wycoff could be added to the existing three cases that will come before the U.S. Supreme Court, although that has not yet occurred. The Supreme Court’s final decision will apply nationwide.

Opponents are lined up for this battle, with prosecutors and anti-drunk driving advocates such as Mothers Against Drunk Driving (MADD) on one side and criminal defense attorneys, civil libertarians and citizens rights groups such as the American Civil Liberties Union (ACLU) on the other side. A final decision by the U.S. Supreme Court may not come until sometime in mid-2016.

Impact of Wycoff in Florida

The issues raised by Wycoff and the DUI test refusal cases in North Dakota and Minnesota may have an impact in Florida, although much hinges on the upcoming U.S. Supreme Court decision in the North Dakota and Minnesota cases.

Implied Consent in Florida

A driver may refuse to submit to a chemical test for alcohol or drugs, but under Florida’s “implied consent” law (Florida Statutes, Chapter 316, § 316.1932), a DUI test refusal results in an automatic driver’s license suspension.

“Implied consent” means that when a person obtains a driver’s license, he or she gives consent to provide a breath, blood, or urine sample when properly requested by a law enforcement officer. Refusal of a DUI test results in an automatic driver’s license suspension.

In Florida, the suspension is one year for a first DUI involving a refusal to submit to testing. The administrative suspension can increase to 18 months for a second or subsequent refusal to submit to testing.

Clearly, Florida’s law is quite similar to the one that was struck down last week in Kansas and the laws that are being challenged in North Dakota and Minnesota.

Attorney for DUI Tests and Implied Consent in West Palm Beach, Florida

The DUI and criminal defense attorneys at Meltzer & Bell, P.A., in West Palm Beach, FL, represent clients throughout Broward County and the surrounding areas. Our experienced lawyers have often represented clients who were charged with refusal to undergo a DUI test or a violation of Florida’s implied consent law. We closely monitor the evolving DUI laws in Florida and across the country and we believe the recent Kansas ruling may have a nationwide impact.

If you were arrested for DUI or charged with refusal to submit to a DUI test, contact the knowledgeable attorneys at Meltzer & Bell, P.A. today to schedule a free, confidential appointment with one of our attorneys. Your driving privileges and your freedom deserve qualified, competent legal representation. Call us in West Palm Beach today at (561) 515-5834.

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Consequences of a Second Refusal to Submit to Testing after a Florida DUI Arrest

Florida’s implied consent statute creates a legal fiction that anyone who obtains a Florida driver’s license or drives on the roads of this state will “consents” to a lawfully requested blood, breath, or urine test when an officer has probable cause of DUI.

Despite this legal fiction, when a person is actually arrested for DUI, he or she might decide to refuse to submit to the breath, blood or urine test. Recent statistics in Florida show that more than 40% of DUI cases result in the arresting officer finding that the suspect refused a chemical test.

Florida law already provides for harsh penalties when a person refuses a lawful test including an immediate 18 month license suspension with no possibility of a hardship license.

Additionally, at the trial, the fact that the defendant refused testing even knowing that it would result in an immediate administrative license suspension is admissible at trial.

Furthermore, the prosecutor generally gets to argue during the DUI trial that the defendant refused to test because he knew that if he submitted the results would indicate guilt (often called “consciousness of guilt argument”).

But then the Florida legislature went one step further by making the second refusal a separate and independent crime. A second refusal can be charged as a first degree misdemeanor, punishable by up to 12 months in jail and a $1,000 fine. Therefore, if your driver’s license was previously suspended for failing to submit to a lawful test (the administrative suspension) even if you were not convicted of the DUI, then if you refuse a second time the prosecutor can charge you with:

  1. the DUI where the refusal to submit to a breath, urine, or blood test is admissible as evidence in DUI criminal proceedings; and
  2. a separate and independent offense called the “Second DUI Refusal” under Section 316.1939.

Section 316.1939 Makes a Second DUI Refusal a Separate Crime

Section 316.1939, Florida Statutes (2013) states that a first degree misdemeanor is committed when:

  1. the arresting officer has probable cause to believe the suspect was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages;
  2. after being placed under lawful arrest for DUI, the suspect is informed of the license suspension provisions of the implied consent statute;
  3. after being so informed, the suspect refuses to submit to a lawfully requested chemical test of his blood, breath or urine; and
  4. the person has suffered a license suspension for previously refusing a chemical or physical test of his or her breath, blood or urine.

Is Section 316.1939 Unconstitutional After Missouri v. McNeely?

In State v. Nichell, 21 Fla. L. Weekly Supp. 933a (May 22, 2014), the Honorable Belle B. Schumann, County Court Judge for the 7th Judicial Circuit in and for Volusia County considered whether this statute was unconstitutional on its face and as applied after the recent U.S. Supreme Court decision in Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552 (2013).

Although the DUI defense attorneys at Meltzer & Bell, P.A., in West Palm Beach in Palm Beach County, were not involved in the case, we recognize the important role that these orders in county court cases throughout the State of Florida have on our pending cases. We strive to stay current on recent changes in the law that impact DUI defense.

The issue decided in Nichell was whether the prior refusal statute in Section 316.1939, is unconstitutional on its face and as applied to the facts in that case because it violates the exercise of the constitutional right to be free from unreasonable search and seizures, specifically, the constitutional right to refuse to consent to a warrantless search.

The Court struggled with the different between “actual voluntary consent” as an exception to the warrant requirements of the 4th Amendment and Florida’s “implied consent” created by the Florida Legislature. The Court reasoned:

“The consent granted by the implied consent statute must be equated with Fourth Amendment consent since a breath, blood or urine test is a search without a warrant. If it is Fourth Amendment consent, then under prevailing law, it can be withdrawn without penalty. This presents a logical conundrum, particularly considering the long standing existence of the implied consent statute.

It may be that the answer lies in the recognition that in this context, the reasonable expectation of privacy while driving a vehicle is less and constitutional rights are less protected when people engage in this activity. For instance, there is no Fifth Amendment right against self-incrimination because compelling a breath, blood or urine test “is not an interrogation of constitutional proportions.” State v. Busciglio, 976 So. 2d 15 (Fla. 2d DCA) rev. denied, 992 So. 2d 819 (Fla. 2008).

Likewise, there is no Sixth Amendment right to confer with counsel prior to submitting to a test, either at the roadside or at the station. Id. (citation omitted). Perhaps, as Judge David Foxman suggests in an order on this issue entered this date, the implied consent statute must be recognized as its own exception to the warrant requirement, but if so, that must be done by judges not sitting in county court. State v. Caporuscio, et al., Case No. 2013-318342MMDB.”

The court ultimately denied the criminal defense attorneys’ motion to dismiss charge of refusing to submit to lawful chemical or physical test of breath, blood, or urine after having driving privilege previously suspended for a prior refusal. The court found that Florida’s implied consent statute provides “consent to search” as an exception to Fourth Amendment warrant requirement.

Therefore, the Court found that Section 316.1939 is not unconstitutional on its face or as applied to defendant because it criminalizes the exercise of right to refuse to consent to a blood, breath, or urine test. The Court certified the following question:

IF THE IMPLIED CONSENT STATUTE PROVIDES CONSENT TO SEARCH AS AN EXCEPTION TO THE FOURTH AMENDMENT WARRANT REQUIREMENT, THEN CAN THAT CONSENT BE WITHDRAWN BY REFUSAL TO SUBMIT TO AN OTHERWISE LAWFUL TEST OF BREATH, BLOOD OR URINE AND CAN THE SECOND SUCH REFUSAL BE A CRIMINAL OFFENSE?

Finding an Attorney for the Second DUI Refusal in West Palm Beach, FL

Only time will tell whether the Florida Supreme Court will find that Section 316.1939, which criminalizes a second refusal to submit to testing after a DUI arrest, is unconstitutional.

If your DUI case in West Palm Beach or Palm Beach County involves a refusal to submit to testing, a charged for a second refusal under Section 316.1939, or a warrantless breath blood or urine test taken without free and voluntary consent, then contact a criminal defense attorney at Meltzer & Bell, P.A., with offices at 601 N Dixie Hwy, Suite B, West Palm Beach, FL, 33401.

The DUI defense attorneys at Meltzer & Bell, P.A., represent clients charged in DUI refusal cases, both felonies and misdemeanors, throughout West Palm Beach and Palm Beach County, FL. Call 561-283-3259 today for a free consultation to discuss your case. Read more finding a criminal defense attorney for a second DUI refusal in West Palm Beach, FL.

We represent clients charged with DUI throughout all of the courthouses in Palm Beach County including the Main Court in West Palm Beach , the North County Courthouse in Palm Beach Gardens , the South County Courthouse in Delray Beach , and the West County Courthouse in Belle Glade.

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Phil Mickelson Reportedly Tied to Money Laundering And Illegal Gambling, Per ESPN Reports

ESPN.com is reporting that nearly $3 million transferred from golfer Phil Mickelson to an intermediary was part of “an illegal gambling operation which accepted and placed bets on sporting events,” according to two sources and court documents obtained by Outside the Lines.

Mickelson, a five-time major winner and one of the PGA Tour’s wealthiest and most popular players, has not been charged with a crime and is not under federal investigation. But a 56-year-old former sports gambling handicapper, acting as a conduit for an offshore gambling operation, pleaded guilty last week to laundering approximately $2.75 million of money that two sources told Outside the Lines belonged to Mickelson.

Gregory Silveira of La Quinta plead guilty to three counts of money laundering of funds from an unnamed “gambling client” of his between February 2010 and February 2013. Sources familiar with the case said Mickelson, who was not named in court documents, is the unnamed “gambling client.” Silveira is scheduled to be sentenced Oct. 5 before U.S. District Court Judge Virginia A. Phillips and faces up to 60 years in prison, though the sentence will likely be far shorter.

Mickelson could not be reached for comment. His longtime personal attorney, Glenn Cohen, declined to comment, saying another attorney — whom he would not name — assisted Mickelson in the matter.

Silveira could not be reached for comment directly and his attorney declined to comment.

According to court documents, in March 2010, Silveira — a participant in “an illegal gambling operation which accepted and placed bets on sporting events” — accepted a wire transfer of $2.75 million, which he knew was part of “illegal sports betting.”

The money, according to the documents, came from a “gambling client” and had been transferred into Silveira’s Wells Fargo Bank account. Three days later, Silveira transferred $2.475 million and then $275,000 into another of his Wells Fargo accounts. The next day, Silveira transferred the $2.475 million to another account he controlled at JPMorgan Chase Bank.

The three transactions constitute the money laundering charges: “At the time, defendant initiated these three transfers with the intent to promote the carrying on of an illegal gambling operation,” according to the plea agreement, which was signed May 1.

Typical of money laundering cases, the nearly $3 million is loosely described as “proceeds” in court documents, though that doesn’t necessarily mean in this case gambling winnings or losings. “Proceeds” also could refer to money simply being moved into an offshore gambling account. Federal officials declined to clarify or provide details.

Court documents do not indicate what triggered the investigation or its scope.

Although the final plea agreement reached between Silveira and the U.S. Department of Justice does not name the “gambling client,” an initial plea agreement signed last month by Silveira and his attorney, James D. Henderson Sr., contained a reference to the “money laundering of funds from P.M.”

After Outside the Lines inquired about Mickelson’s potential role in the case, the U.S. Attorney’s Office on June 17 filed a motion to have the original plea agreement stricken. The next day, it filed an amended version minus any reference to “P.M.”

It is standard Department of Justice policy for documents not to mention third parties who are not criminally charged. Henderson, a high-powered Los Angeles attorney whose gambling-related clients have included offshore sportsbook pioneer Ron “Cigar” Sacco, told Outside the Lines he didn’t “know anything about ‘P.M.’” and declined to comment further, citing a nearly four-decade practice of not talking to the media about cases.

Two sources, though, told Outside the Lines that the client was Mickelson.

Mickelson has earned more than $77 million over his three decades on the PGA Tour and also has lucrative endorsement deals with Callaway, Barclays, KPMG, Exxon Mobil, Rolex and Amgen that collectively pay him more than $40 million annually, according to Forbes.

The left-handed golfer is known for rarely shying away from a money match, and his affinity for sports gambling is no secret, either.  Mickelson has won large sums betting on major sporting events like the Super Bowl; three Las Vegas gaming sources told Outside the Lines that Mickelson still bets on sports in Vegas.

Ty Votaw, executive vice president of the PGA Tour, declined to comment on the Silveira matter and the Tour’s gambling policies.

Should you be the target of a federal investigation, please call Meltzer & Bell for a free consultation. There is no-cost until you decide to hire our firm. Let us give you some assistance and peace of mind before you meet with law enforcement personnel.

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Baseball’s Latest Drama Likely To Resolve With Indictments, Not Suspensions

Make no mistake about it. This will go down as the biggest scandal to hit professional sports since the Black Sox Scandal and the throwing of the 1919 World Series.

Major League Baseball is not going to summon a Ted Wells-like figure to come out with a blue-ribbon fact finding report and issue suspensions and sanctions against the St. Louis Cardinals and members of their front office that might be found to have culpability in this situation.

People are going to go to prison.

When the Federal Bureau of Investigation gets involved, and then makes it public, they are advertising the fact that a Grand Jury will soon be convening and that indictments will be handed down. Once the indictments are handed down, the Department of Justice will begin to prosecute those individuals that they believe are guilty of committing these crimes. You will then see the accused scurry to make deals, turn on each other and fight for their freedom.

There are two types of defendants in Federal actions. Those that cooperate with the feds and those that wish that they cooperated with the feds. The feds give out long prison sentences like candy on Halloween.

According to The New York Times, law enforcement officials believe the hacking was executed by vengeful front-office employees for the Cardinals, hoping to wreak havoc on the work of Jeff Luhnow, the Astros’ general manager, who had been a successful and polarizing executive with the Cardinals until 2011.

Believing that the Astros’ network had been compromised by a rogue hacker, Major League Baseball notified the F.B.I., and the authorities in Houston opened an investigation. Agents soon found that the Astros’ network had been entered from a computer at a home that some Cardinals employees had lived in. The agents then turned their attention to the team’s front office.

“The F.B.I. aggressively investigates all potential threats to public- and private-sector systems,” an F.B.I. spokeswoman said to the Times. “Once our investigations are complete, we pursue all appropriate avenues to hold accountable those who pose a threat in cyberspace.”

This is bigger than Deflategate and this is bigger than Bullygate. Ted Wells cannot fix this and he cannot issue a 200-page report to make a recommendation to anyone that will sweep this under the rug. He cannot get with Rob Manfred and make this go away. Once the Department of Justice and the Federal Alphabets get involved and sink their teeth into something, they are like rabid dogs. They do not let go until all of the life is gone and they get what they need to satiate their appetite and see that justice has been done.

Attorney General Loretta Lynch will play the greater role of Ted Wells and she will be armed with a team full of federal prosecutors who will come equipped with subpoenas; they will get to the bottom of this. When they do, people will end up in prison, not with multiple-game suspensions.

This was bound to happen sooner or later. Front office personnel move from team to team and passwords do not get changed as often as they need to be, and teams apparently do not do a good enough job protecting their intellectual property. It is not like the Cardinals used sophisticated equipment. Former employees had passwords and used them surreptitiously and without the consent of their former employer. The Astros trusted that they would have honor and they simply did not.

Is there no honor in baseball any more? Tom Hanks said that there was no crying, but is there also no honor?

Major League Baseball “has been aware of and has fully cooperated with the federal investigation into the illegal breach of the Astros’ baseball operations database,” a spokesman for Commissioner Rob Manfred said in a written statement.

According to the Times, the Cardinals personnel under investigation have not been put on leave, suspended or fired. The commissioner’s office will probably wait until the conclusion of the government’s investigation to determine whether to take disciplinary action against the employees or the team.

If they were smart, they would use this time to lawyer up, get their affairs in order and prepare for a short prison term. There is no way that they do not see the inside of the Bureau of Prisons. They also might want to get their resume together, as they will never work in baseball again, unless it is mowing the grass or getting the field ready for play.

The case is a rare mark of ignominy for the Cardinals, one of the sport’s most revered and popular organizations. The team has the best record in the Majors this season (43-21), regularly commands outsize television ratings and has reached the National League Championship Series nine times since 2000. The Cardinals, who last won the World Series in 2011, have 11 titles overall, second only to the Yankees.

From 1994 to 2012, the Astros and the Cardinals were division rivals in the N.L. Central. For a part of that time, Luhnow was a Cardinals executive, primarily handling scouting and player development. One of many innovative thinkers drawn to the sport by the statistics-based “Moneyball” phenomenon, he was credited with building baseball’s best minor league system, and with drafting several players who would become linchpins of that 2011 Cardinals team.

The Astros then hired Mr. Luhnow as general manager in December 2011, just before they morphed into the American League, and he quickly began applying his unconventional approach to running a baseball team. In an exploration of the team’s radical transformation, Bloomberg Business dubbed it “a project unlike anything baseball has seen before.”

Under Luhnow’s direction, the Astros have accomplished a striking turnaround; they are in first place in the American League West division. But in 2013, before their revival at the Major League level, their internal deliberations about statistics and players were compromised, the law enforcement officials said.

The intrusion did not appear to be sophisticated, the law enforcement officials said. When Mr. Luhnow was with the Cardinals, the team built a computer network, called Redbird, to house all of its baseball operations information — including scouting reports and player information. After he left to join the Astros, and took some front-office personnel with him from the Cardinals, Houston created a similar program known as Ground Control.

It contained the Astros’ “collective baseball knowledge,” according to a Bloomberg article published last year that was referenced by the Times. The program took a series of variables and weighted them “according to the values determined by the team’s statisticians, physicist, doctors, scouts and coaches,” the article said.

Investigators believe that Cardinals personnel, concerned that Luhnow had taken their idea and proprietary baseball information to the Astros, examined a master list of passwords used by Luhnow and the other officials when they worked for the Cardinals. The Cardinals employees are believed to have used those passwords to gain access to the Astros’ network, law enforcement officials said.

That tactic is often used by cybercriminals, who sell passwords from one breach on the underground market, where others buy them and test them on other websites, including banking and brokerage services. The breach on the Astros would be one of the first known instances of a corporate competitor using the tactic against a rival. It is also, security experts say, just one more reason people are advised not to use the same passwords across different sites and services.

Last year, some of the information from the Astros’ computers was posted anonymously online, according to an article posted on Deadspin. Among the details that were exposed were trade discussions that the Astros had with other teams. Luhnow was asked after the story broke whether the breach would affect how he dealt with other teams.

“Today I used a pencil and paper in all my conversations,” he said.

This story isn’t going to go away, and it’s going to end with real-world punishments. Just what those are remains to be seen.

If you are under investigation for any crime, or are the target of any federal or state probe, call the Law Offices of Meltzer & Bell for a free, no-obligation consultation. We might be able to resolve your matter, or have the charges reduced before they get to the filing stages. Rely on the experience of Lawrence M. Meltzer, Esq. and Steven Bell, Esq. to represent you diligently and zealously in any state or federal court in Florida.

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Will U.S. Supreme Court Deliver Another Landmark Decision on Racial Discrimination?

During the jury selection process, a judge may dismiss a prospective juror “for cause” if he or she believes that juror will be unable to decide the case impartially. However, both the prosecutors and the defense attorneys are also given a limited number of “peremptory challenges,” which are the right to strike certain prospective jurors without having to provide any reason for doing so.

This is a powerful right, but the United States Supreme Court has established certain precedents to make sure that peremptory challenges are not abused. One case was the 1986 landmark decision in Batson v. Kentucky, in which James Kirkland Batson, a black man, was convicted of burglary and receipt of stolen goods by an all-white jury after prosecutors struck all four potential black jurors. In a 7-2 decision, the Court ruled that the striking of prospective black jurors in this case violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The Batson decision is one that is likely to be revisited when the Supreme Court hears Timothy Tyrone Foster v. Carl Humphrey this fall. Less than one year after the Batson decision, Foster was convicted of murdering a 79-year-old widow and schoolteacher in Georgia. Foster is black and the victim was white, but notes in documents uncovered by Foster’s legal team show that prosecutors deliberately struck prospective black jurors in his case.

Ordinarily, it can be very difficult to prove that a prosecutor had racist intent in striking prospective jurors for criminal cases involving capital offenses such as violent crimes. However, some of the notes that were discovered through an open records request seem to make the prosecution’s intent remarkably clear. On four different copies of the jury list, the name of every black prospective juror was highlighted in green. The word “BLACK” was circled next to the question about race on the juror questionnaires of five black prospective jurors. Furthermore, prosecutors not only ranked each black prospective juror against the others in case “it comes down to having to pick one of the black jurors,” but created strike lists that contradict the “race-neutral” explanation provided by the prosecution for striking those jurors.

While Justice Lewis Powell wrote the majority opinion in Batson, Justice Thurgood Marshall authored a powerful concurring opinion:

I join Justice Powell’s eloquent opinion for the Court, which takes a historic step toward eliminating the shameful practice of racial discrimination in the selection of juries. I nonetheless write separately to express my views. The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.

Misuse of the peremptory challenge to exclude black jurors has become both common and flagrant.

Nearly 30 years after Batson, we are hopeful that the Roberts Court will similarly establish legal safeguards that ensure that every American—regardless of his or her race—has the right to a fair trial.

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Florida Supreme Court overturns lengthy sentences for juvenile offenders

In four separate rulings, the Florida Supreme Court handed down decisions last week that set new limits on the sentences a juvenile can face for a serious offense.

The Court ruled that a sentence so long that it “ensure(s) these offenders will be imprisoned without obtaining a meaningful opportunity to obtain future early release during their natural lives based on their demonstrated maturity and rehabilitation” is unconstitutional in Henry v. Florida. In that case, a 17-year-old was tried as an adult and convicted for three counts of sexual battery while possessing a weapon, two counts of robbery, and one count each of kidnapping, carjacking, burglary of a dwelling and possession of marijuana.

He was initially sentenced to life in prison for the sexual battery offenses, plus 60 years for the remaining offenses. However, while his appeal was ongoing in 2010, the U.S. Supreme Court decided Graham v. Florida, in which it ruled that life in prison without chance of parole violated the Eighth Amendment’s prohibition on cruel and unusual punishment when applied to juveniles convicted of offenses other than homicide.

The trial court then changed Henry’s sentences to a 30-year sentence for every charge of sexual battery. The sentences would be served concurrently, meaning at the same time. However, the 60-year sentence for the other offenses would be served consecutively, meaning after the 30-year sentences were served. This meant he would serve 90 years in prison.

The Florida Supreme Court determined that Graham meant such a sentence would also be unconstitutional. The U.S. Supreme Court decided Graham on the basis that juveniles belonged in a special category due to their lesser ability to understand the consequences of their actions, and a “greater potential for change or positive character growth than adults.” Therefore, they could not be constitutionally sentenced to a term of imprisonment that would effectively mean they spend their entire life in prison.

In Gridine v. Florida, the Court also interpreted Graham to mean that homicide meant only that an actual killing had taken place. In that case, a juvenile who was 14 years old at the time was given a 70-year sentence for attempted homicide. Prior precedent specifically said that attempted homicide was a nonhomicide offense. Under the same reasoning as in Henry, a 70-year sentence is unconstitutional.

The other two cases involved interpretation of Miller v. Alabama, a U.S. Supreme Court based on Graham. In Miller, the Court found that a law with a mandatory life sentence without a chance of parole was unconstitutional as applied to a juvenile defendant.

Falcon v. Florida regarded whether Miller applied to people convicted as juveniles already serving a life sentence. The Court ruled that the decision was retroactive. People sentenced before the decision have two years to file to have a court adjust their sentence.

Florida v. Horsley found that a juvenile whose appeal was in process when Miller was decided but whose case was decided before the Florida Legislature amended the statute was entitled to individualized consideration for a new sentence.

While these are positive developments that reflect some leniency for juveniles, there should be no mistake that Florida has harsh laws for young people accused of crimes. Parents of children facing charges should contact an aggressive West Palm Beach juvenile defense lawyer to protect their child’s future.

Resources:

Henry v. Florida

Gridine v. Florida

Falcon v. Florida

Horsley v. Florida

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Florida Legislators Focus on Texting, Cell Phone Use While Driving for Upcoming Session

At least three bills have been prefiled for the upcoming session of the Florida Legislature that pertain to the use of mobile devices while operating a motor vehicle, indicating that the Legislature, or at least some factions, are interested in making the penalties for offenses surrounding distracted driving more severe.

Current law prohibits using any handheld device to read or transmit text or character-based communications while operating a motor vehicle. The offense is a nonmoving violation, punishable with a fine. For a second offense, it is punishable as a movable violation with three points assigned to the offender’s driving license.

However, texting while driving is only a secondary offense. This means that police officers in Palm Beach County or Broward County will not pull you over for the offense of texting of driving by itself – if an officer sees you texting and driving, he or she will not pull you over. However, if you are pulled over for another offense, like speeding, running a stop sign or an illegal lane change, and the officer suspects you are texting and driving, he or she may give you a citation.

One of the bills that was been filed would change that. Senate Bill 246, from Senator Maria Lorts Sachs of Delray Beach, would remove the requirement that the offense only be a secondary offense. This would allow police to pull a driver over if they allege he or she was driving and texting or driving and emailing, rather than merely citing the driver if he or she is pulled over for another offense. The bill would also increase the penalties for driving while texting in a school zone, doubling the fines a person could receive for the offense.

The other two bills target safety of minors surrounding distracted driving, but in very different ways. Senate Bill 492, from Senator Geri Thompson, would make it a nonmoving offense for a driver to operate a mobile device to send or read any type of text, email or instant message in a posted school zone or designated school crossing.

Senate Bill 460, from Senator Anitere Flores of Miami-Dade County, prohibits the use of any mobile communications device for any purpose – including texting, emailing, instant messaging and having voice calls – by a person younger than 18 while driving, handheld or not.

It’s not clear whether any of these bills would pass. They must be passed by a majority in both the House of Representatives and the Senate, and signed by the governor. However, it is clear some lawmakers are seeking to crack down on cell phone use while driving.

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Medical Marijuana Proponents to Give It Another Shot

Last month’s defeat of an initiative to allow medical marijuana was a devastating blow to efforts for more sensible policy on drugs in Florida. Amendment 2 came just over 140,000 votes short of hitting the necessary 60 percent, out of more than 5 million votes cast. The loss was the only one in the nation for initiatives and referenda for human marijuana. Legalization measures passed in Oregon, Alaska and the District of Columbia, and a medical cannabis measure passed in Guam.

However, the fight is not over in Florida. United for Care, the leading group behind the 2014 effort, has already started raising funds for a new campaign, which could come as early as 2016. The group says that wealthy trial lawyer John Morgan, who provided key financial support, is against committed to assist with the 2016 effort.

According to the Tampa Bay Times, the group has learned lessons from the 2014 campaign that it can apply to the next round. For instance, the next campaign will stress that minors cannot obtain medical marijuana without a parent’s consent and that the measure is intended for those with debilitating illnesses.

A ballot measure in 2016 may have a much greater chance of passage. More people vote in presidential years, and the electorate tends to be younger, which are both favorable conditions for marijuana policy.

However, the group says they will not pursue a ballot initiative if they are able to get a good bill through the Legislature in 2015.

Medical marijuana legalization would provide a huge relief to those in Florida using cannabis now to manage pain, seizures or other conditions alleviated by marijuana use. Right now, many are committing felonies. There is no defense provided in the law for those who only possess marijuana for legitimate medical purposes, even if they obtained it in a state where it is legal.

Florida has some of the strictest laws in the nation regarding cannabis possession. A small amount — 20 grams or less — is a Class A misdemeanor. This is still a very serious charge, and conviction can result in up to a year in jail and a fine up to $1,000. Any more in a felony. Conviction will not only mean possible prison time and major fines, it will keep you from helping medical marijuana become legal — in Florida, felons permanently lose the right to vote.

Those using medical marijuana in Palm Beach County now can have hope for the future. But if arrested now, they should call a West Palm Beach marijuana defense lawyer to talk about their options. No criminal case is hopeless, and we will fight on your behalf to get charges reduced or dismissed.

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PROPOSED DUI LEGISLATION-HB-299: VOTE NO!

In an society of social networking, media events, marketing opportunities, social media events and events which are purposely structured to occur at night and occur with cocktails and food, it is natural and obvious that professionals and the like will attend these events, have something to drink and ultimately possibly operate a motor vehicle. It is inevitable that DUI arrests will always continue to be made and will continue to occur at a high rate in the State of Florida due to the police agencies continued effort to combat drunk driving.

Under the current state of the law, when an accused is charged with DUI and alleged to have given a breath or blood over a .08, a jury may presume that the person’s normal faculties were impaired. However, that evidence may be rebutted by other evidence.  This means that evidence can be offered through cross examination or through direct evidence that the defendant’s breath or blood alcohol level was not above a .08 “at the time they were” or “while” driving.

This has been commonly referred to by lawyers as the “time of driving” defense to breath and blood cases.  However, House Bill 299 is proposed and is an outright disaster the constitutional rights of the accused in DUI cases.

The bill proposes that a jury may find that a defendant is guilty of DUI if they find that they had a breath or blood alcohol “any time” after they were driving and after drinking.  There is no rebuttable presumption.  This effectively would mean that an accused can be found guilty of DUI without the ability to offer evidence challenging these results.  Anytime after drinking?  This proposal ignores the fact that alcohol, scientifically is proven to not fully absorb in the human body for potential up to 90 minutes after the final drink.

Should a defendant not have the right to challenge the State’s evidence?  Why don’t we just allow the State of Florida to just file the information and that evidence shall be sufficient to find the defendant guilty?  This bill should not be passed and is overbroad, vague and contrary to all due process principles in our constitution allow the defendant the right to a fair trial in front of a jury of his or her peers.

This bill should not be passed.  Meltzer & Bell, P.A. does not support this bill.  Visit us at www.thetrafficstop.com to read about how we help those accused of DUI and traffic violations.  We are strongly opposed to this bill and hope that those who read it will feel the same way as it eliminates an accused’s right to raise one of the most important issues in a breath or blood case.

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