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Criminal Cases and Civil Forfeiture: Adding More Consequences to Criminal Cases.

June 5, 2012 by  
Filed under Blog, Florida Criminal Law, Florida Lawyer

Criminal Cases and Civil Forfeiture: Adding More Consequences to Criminal Cases.

If you are charged with a felony in Florida, you are facing prison time, fines, loss of driving privileges, and a permanent criminal record.  However, there is one other consequence that doesn’t immediately come to mind, civil forfeiture.  Civil forfeiture is the taking of assets by the state that are either proceeds of a crime or instrumentalities of a crime.  Most often civil forfeitures occur in federal court or state court when there are instances of trafficking in large amounts of drugs or weapons.  Examples of assets that may be taken are cash, boats, vehicles, bank accounts, homes and any other assets used as an instrumentality of a crime or are the proceeds of the crime. 

The Florida Statutes that govern civil forfeiture require a state agency (usually a police department) to follow specific rules when seizing a vehicle for civil forfeiture.  Within 5 days of the seizure a letter must be sent via certified mail to the property owners stating the vehicle has been seized for civil forfeiture and stating that the owner has 15 days to request an adversarial preliminary hearing.  An adversarial preliminary hearing is an opportunity for the respondent (the person whose assets were taken) to argue the government does not have probably cause to seize the asset. 

If the judge rules there is probable cause for the government to seize the asset, the government then has 45 days from the date of seizure to file a complaint.  The respondent will then have 20 days to answer.  A respondent has the right to a jury trial if their property is seized by a government agency.  This trial will occur in the Civil Circuit Court and has no relationship to the criminal case.  Your criminal case may be dropped or you may win in trial and the government can still move forward in your civil forfeiture case.

Recently municipalities in Palm Beach County have begun to use this process in many drug cases.  For example, if you are pulled over for any valid reason and the police have a valid reason to search your vehicle, if they find any felony amount of drugs in the vehicle, your car can be seized for civil forfeiture.  That means if the police legally find minimal amounts of cocaine for personal use in your vehicle, they may take your car!  Florida courts have upheld this type of civil forfeiture.

If your property has been seized by a government agency in conjunction with a felony arrest, you need an experienced Palm Beach County criminal defense attorney to fight for your rights in both criminal and civil court. 

If you or a loved one have been arrested or a facing civil forfeiture, please contact Winston Law, P.A. at (561) 670-9375 or susan@winstonlawpa.com for your free consultation.

Palm Beach County judge under unprecedented fire, accused of bias

June 5, 2012 by  
Filed under Blog, Florida Criminal Law, Florida Lawyer

Palm Beach County judge under unprecedented fire, accused of bias

http://www.palmbeachpost.com/news/palm-beach-county-judge-under-unprecedented-fire-accused-2358787.html

            The most interesting part of the State’s motion to recuse Judge Cohen is that all it does is allege his comments about the justice system.  In not one instance is the State able to give an example of Judge Cohen ignoring the law to follow his personal opinions.  They couldn’t give an example because Judge Cohen may have particular opinions that go against State Attorney’s Office policy but he puts aside his opinions and bases his legal decisions on the law.  Rather than blaming the presiding judge, the State Attorney’s Office needs to understand that sometimes they have a weak case, that sometimes the law is not on their side, and that sometimes a defendant does not deserve a lengthy prison sentence.

How do I file an Injunction Against Domestic Violence?

How do I file an Injunction Against Domestic Violence?

            Domestic Violence Injunctions are court orders requiring a person not to threaten, batter or harass another. An injunction can require a party to have no contact with the person filing the injunction or limited phone contact. Further, at an injunction hearing, the Court can require a party to vacate a shared home or award temporary child custody. Injunctions against violence may become necessary in my different types of relationships including marriages, families, dating relationships or friendships.

A party can file for an injunction against domestic violence if they are victims of domestic violence or are in imminent danger of becoming the victim of domestic violence.  The process is started by the Petitioner (the moving party) filing a notarized request with the local clerk’s office for a temporary injunction. This request is then reviewed by the court. If it meets the required standard, a temporary order against domestic violence will be issued. This order requires the Respondent (the person accused) to stay away from the Petitioner. The Respondent is then served with notice of a final hearing date. This temporary order lasts 15 days or until a hearing can be set by the court. At the hearing, the Petitioner must prove that he or she is a victim of domestic violence or is in imminent danger of becoming a victim of domestic violence. If the Petitioner meets this burden, the court will then enter a permanent order. This order usually requires the Respondent to stay away from the Petitioner, the Petitioner’s vehicle, home and place of business for a year. Additionally, the court can order a temporary timesharing plan, temporary spousal support and temporary child support.

            Before filing a Petition for Injunction Against Domestic Violence, you may want to consider hiring an experienced South Florida Domestic Violence lawyer.  While you can file the petition on your own, it is important to file it correctly the first time.  Each petition is reviewed by a judge who determines whether to grant a temporary injunction.  If you do not prove that you are either a victim of domestic violence or are in imminent danger of becoming the victim of domestic violence, the judge will not grant a temporary injunction.  It is important to specific when describing the violence or threats of violence.  It is also extremely important to request the proper relief at the time you file the Petition.  For example, if you need exclusive use of the marital home, child support, or spousal support, the petition is the place to request it. 

            It is also important to have the assistance of an experienced South Florida domestic violence attorney at your hearing.  If the court grants a temporary injunction and sets a hearing, the petition must prove through evidence that he/she is either a victim of domestic violence or are in imminent danger of becoming the victim of domestic violence.  An experienced West Palm Beach domestic violence lawyer can develop a strategy to prove your case and further this strategy by calling witnesses on your behalf and elicit testimony (evidence) of prior domestic violence or threats.

            If you or loved one is considering filing for an injunction against domestic violence in South Florida, please contact Winston Law, P.A. at (561) 670-9375 or susan@winstonlawpa.com.

Is my criminal record permanent? In what situations can I have it sealed or Expunged?

Is my criminal record permanent?  In what situations can I have it sealed or Expunged?

As a criminal defense attorney, I am asked on a daily basis by both current and prospective
clients if their criminal records are permanent and if I can help them seal or expunge their records.  In many cases, I can help.

Criminal records can be accessed during background checks by law enforcement, employers, schools, banks, landlords and in many other situations. Even an arrest with no charges being filed can result in an application being denied. If you qualify to seal or expunge your record, Winston Law, P.A. can help you through the process to make sure you meet all the requirements.

First let’s talk about expunging.  If a criminal record is expunged, that means it is essentially erased or destroyed.  If your record has been expunged you do not have to answer ‘yes” if an application asks you if you have ever been arrested.  Because the criminal record is essentially erased, only a handful of government agencies will be able to see the record.  Expunging is preferable to most clients, however, there are very specific instances when a record can be expunged.

According to Florida Statute § 943.0585, the person requesting a record expunction, must have never been adjudicated guilty. never been adjudicated guilty of any act stemming from the arrest pertaining to this request, never received a record expunction or seal before, and to their best knowledge or belief does not have any other petitions before the court.

If you do not qualify for expunging your record, you may qualify to seal your record.  When a record is sealed it is still maintained but access to it is only allowed by a few agencies, such as law
enforcement, the military, and governmental agencies.  Most employers, banks and landlords will not have access to a sealed criminal record.

According to Florida Statute 943.059. the person wanting their record Sealed must have never been adjudicated guilty, never been adjudicated guilty of acts stemming from this arrest, must have never had a previous record seal or expunction, and based upon the person’s knowledge or belief’s is eligible
and does not have another petition before the court.  In addition to these qualifications, there
are some crimes, even if adjudication is withheld that cannot be sealed.  These crimes are outlined in Florida Statute 907.041 and are as follows:

  1. Arson;
  2. Aggravated assault;
  3. Aggravated battery;
  4. Illegal use of explosives;
  5. Child abuse or aggravated child abuse;
  6. Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or
    disabled adult;
  7. Aircraft piracy;
  8. Kidnapping;
  9. Homicide;
  10. Manslaughter;
  11. Sexual battery;
  12. Robbery;
  13. Carjacking;
  14. Lewd, lascivious, or indecent assault or act upon or in presence of a child under the age of 16
    years;
  15. Sexual activity with a child, who is 12 years of age or older but less than 18 years of age, by
    or at solicitation of person in familial or custodial authority;
  16. Burglary of a dwelling;
  17. Stalking and aggravated stalking;
  18. Act of domestic violence as defined in s. 741.28;
  19. Home invasion robbery;
  20. Act of terrorism as defined in s. 775.30;
  21. Manufacturing any substances in violation of chapter 893; and
  22. Attempting or conspiring to commit any such crime.

If you are interested in sealing or expunging your record a skilled criminal defense attorney can evaluate your record and determine whether you qualify under Florida Statute.  If you have been charged with a crime and are worried that you may have a permanent criminal record, a skilled defense attorney can fight for a positive outcome in your case that will allow you to later seal or expunge your record.

For more information please contact Winston Law, P.A. at (561) 670-9375 or susan@winstonlawpa.com.

What are my Miranda rights? How do they work?

May 10, 2012 by  
Filed under Blog, Florida Criminal Law

What are my Miranda rights? How do they work?

          As a criminal defense attorney, one of the most frequently asked questions I am asked is, the police did not read me my Miranda rights can my case be dropped?  In order to answer that
question, it is important to first explain the Miranda rights and where they came from.

Miranda rights were created in 1966 and came from a United States Supreme Court case, Miranda v. Arizona.  Several years earlier, in 1963, Ernest Miranda was arrested based on evidence linking him to the kidnapping and rape.  After two hours of interrogation by police officers, Miranda signed a confession to the rape charge. At no time was Miranda told of his right to counsel, and he was not advised of his right to remain silent or that his statements would be used against him during the interrogation before being presented with the form on which he was asked to write out the confession he had already given orally. At trial, when prosecutors offered Miranda’s written confession as evidence, his court-appointed lawyer, Alvin Moore, objected that because of these facts, the confession was not truly voluntary and should be excluded. Moore’s objection was overruled and based on this confession and other evidence, Miranda was convicted of rape and kidnapping and
sentenced to 20 to 30 years imprisonment on each charge. Moore filed Miranda’s appeal to the Arizona Supreme Court claiming that Miranda’s confession was not fully voluntary and should not have been admitted into the court proceedings. From the Arizona Supreme Court the case was sent to the United States Supreme Court and consolidated with several others having similar issues.

The United States Supreme Court debated the following question: Does the police practice of interrogating individuals without notifying them of their right to counsel and their protection against
self-incrimination violate the Fifth Amendment?  The Court answered that question by stating that no
confession could be admissible under the Fifth Amendment self-incrimination clause and Sixth Amendment right to an attorney unless the suspect, before interrogation, is clearly informed that he/she has the right to remain silent, and that anything he/she says will be used against them in court; he/she must be clearly informed that he/she has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he/she cannot afford a lawyer, a lawyer will be
appointed to represent him/her.

The key to understanding Miranda rights to understand the term “custodial interrogation.” Since the Miranda decision, Florida Courts and the United States Supreme Court have been working to define and explain the term.  It is important for people to understand that Miranda rights only have to be read when a suspect is in custody and being interrogated.

What does in custody mean?  The courts have determined it to mean “not free to leave.” If you are under arrest, handcuffed, in a police car, told to stay in one place and not to leave these situations
constitute not being free to leave.  Unfortunately, there are many situations that the law considers
consensual encounters with the police, in which the person involved in the encounter could leave but does not feel comfortable enough to exercise that right.  For example, when a police officer approaches you on the street and asks you questions.  Florida courts have determined in that situation that the person is free to leave and therefore not in custody for the purposes of Miranda warnings.  A knowledgeable and skilled criminal defense attorney can evaluate each individual set of circumstances to determine whether there is a legal argument that the average citizen would feel he/she was not free to leave.

Florida Courts and the Supreme Court have also tried to define the term interrogation
as it relates to Miranda rights.  An interrogation does not include questions such as your name, contact information or background information that does not directly relate to the suspected
crime.  Police can get into these questions without reading you Miranda.  Police could also ask you questions that could be considered interrogation, without reading your Miranda warnings, if you are not in custody.

Even if your Miranda rights have been violated, meaning you were in custody and
interrogated without being read the warnings, your case may not be dropped completely.  The first step for a criminal defense attorney to determine whether your Miranda rights have been violated is to determine whether you made a self-incriminating statements.  If you have not made any statements that incriminate yourself, there can be no challenge under Miranda.  The next step is to determine whether you were in custody at the time you made the incriminating statements.  If there is an argument that you were in custody at the time the statements were made, your attorney can file a Motion to Suppress.  A Motion to Suppress requests that the judge order the self-incriminating statements be kept out of evidence because the statements were collected in violation of Miranda.  If you win the Motion to Suppress and the self-incriminating statements are kept out of evidence at trial, it is still possible for the government to move forward with your case.  This will depend on what other forms of evidence the government has against you.  If the government feels it does not have enough evidence to prove its case without your statements, they will likely drop the case.  If there is enough evidence to move forward, the government will move forward in prosecuting the case, without the self-incriminating statements.

Every case is different.  That is why it is important to have a skilled, knowledge and experienced criminal defense attorney fighting for your rights.  If you or a loved one have been arrested or charged with a crime please contact Winston Law, P.A. at (561) 670-9375 or susan@winstonlawpa.com.

What should I do if I am pulled over for DUI?

What should I do if I am pulled over for DUI?

Most of us have learned that drinking and driving is dangerous.  We
take great care to make safe decisions when we are drinking.  Unfortunately, decision making combined with alcohol can lead to unsafe choices.  If you have been drinking and make the choice to drive, it is important to understand your rights.

In Florida it is not illegal to drink and drive.  It is however, illegal to drive while your normal faculties are impaired or with a blood or breath alcohol level of .08 or higher.  For each person the amount of alcohol consumption to reach this standard will differ.  If you have been drinking and
are driving the following information is extremely important and may help you to avoid a conviction for DUI.

A police officer can begin a DUI investigation if they have reasonable suspicion that you are driving impaired or with a blood or breath alcohol level of .08 or higher.  Often police look for certain signals including; swerving while driving and traffic infractions.  Police are also on higher alert for DUI at night, on the weekends and in locations where people are likely to drink.  Once pulled over, police look for other signs of impairment including, bloodshot or glassy eyes, the odor of alcohol, slurred speech, swaying, etc.    If you are stopped for DUI it is extremely important to be respectful of the police officer.  Be polite, roll down your window just enough to interact with the officer, retrieve your driver’s license without fumbling or shaking. If a police officer has reasonable suspicion to
believe imparied they will begin a DUI investigation.

This investigation begins with roadside tasks.  These tasks include the finger to nose test, walk and turn, the one legged stand, and the horizontal gaze nystagmus.  The police will use these tasks to assess your level of impairment. Your performance on each task may be recorded.  Regardless, each and every mistake you make during these tasks will be used against you.  That is why the best approach is to not perform any of these tasks.  Do not be rude or disrespectful but simply decline to submit to the roadside tasks.  If you do choose to perform the roadside tasks be sure to explain any injuries you may have that could affect your balance.  Try to keep your speaking to a minimum.

After the roadside tasks, the police will likely transport you to the Breath Alcohol Testing (BAT) Center to have you submit to a breath test.  While in the police vehicle remember to remain quiet, be still, and do not fall asleep.  Once at the BAT Center you will be watched for 20 minutes and several questions will be asked of you.  You have the right not to incriminate yourself.  Do not answer questions regarding how much you’ve had to drink, what you’ve eaten, or how long you’ve
been awake.  It’s safest not to answer questions beyond your name and contact information.

Upon completion of the 20 minute observation period, you will be asked to take a breath test to determine your breath alcohol level.  A breathalyzer test measures the driver’s breath alcohol content (BAC) by taking a breath sample and measuring the breath alcohol content per liter of breath. The breathalyzer is a machine that is subject to malfunctions, improper calibrations and incorrect readings.  If you refuse to submit to the breath test, the police will read you the “implied consent” law which explains that failure to submit to the breathalyzer will subject you to a one year driver’s license
suspension (it is also important to note that if you have refused a breath test in the past, a second refusal is a misdemeanor and punishable by up to a year in the county jail).  At this point you
have a decision to make: take the test and possibly incriminate yourself or refuse and lose your driver’s license for a year.

When considering this decision, understand that if your breath test results in a breath alcohol level of .08 or higher your driver’s license will be suspended for 6 months and your defense attorney will have a significantly harder time arguing your innocence to a jury. Your best approach is to politely refuse to submit to the breathalyzer test. At this point, whether you refuse or your
breath alcohol level is .08 or higher, you will be arrested for DUI.  Depending on your criminal history you will be released or given a bond the next day.

The most important thing to remember if you are under investigation or have been
arrested for DUI is that you have the right against self-incrimination.  Do not help the police build a case against you.  Instead, remain quiet, keep still and give them as little evidence to you against you as possible.

If you are arrested for DUI, it is important to hire an experienced criminal defense attorney as soon as possible.  If you or a loved one have been arrested for DUI or would like more information, please contact Winston Law, P.A. at (561) 670-9375 or susan@winstonlawpa.com

Welcome to the new Winston Law, P.A. website!

Welcome to the new Winston Law, P.A. website! Winston Law Firm in Palm Beach County Florida for criminal defense, family law, and estate planning services in South Florida.