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Are you being investigated, or have you been arrested for child abuse for spanking or similarly  disciplining your child in Florida?  If so, you may be able to use Florida’s child discipline defense to get the investigation terminated or your charges reduced or dropped.  Whether the defense applies to your particular situation will depend upon both the manner in which, and why, you disciplined our child.

In child abuse cases involving knowingly or willfully abusing a child without causing great bodily harm, permanent disability, or permanent disfigurement, the crime can be charged as a third degree felony, punishable by up to five years and a $1,000 fine.

Florida Statute section 827.03 (b) requires the State must prove the following elements beyond a reasonable doubt to charge you with the crime of child abuse. First, the alleged victim must be under the age of 18.  Secondly, the prosecutor must prove you did one of the following acts:

  1. intentionally inflicted physical or mental injury upon the alleged victim;
  2. committed an intentional act that could reasonably be expected to result in physical or mental injury to the alleged victim; or
  3. actively encouraged another person to commit an act that resulted in or could reasonably have been expected to result in physical or mental injury to the victim.

Many people are familiar with the biblical admonition that sparing the rod spoils the child.  And, following that advice, many parents spank their children as a form of punishment and discipline.  Depending on the circumstances, however, spanking your child can put you at risk of being investigated for child abuse. Continue reading

If you have an iPhone, you may soon be subjected to warrantless searches of your photo libraries by Apple.  And, if Apple finds any child pornography on your phone, you’ll most likely end up being arrested and prosecuted.  This article explains more about this privacy intrusion and how you may end up with criminal charges from a search of your phone’s images by Apple.

As Apple’s own privacy policy notes, “[p]rivacy is a fundamental human right.” Apple’s privacy policy further states “[y]our devices are important to so many parts of your life. What you share from those experiences, and whom you share it with, should be up to you. We design Apple products to protect your privacy and give you control over your information.” Apple’s new scanning technology, however, appears inconsistent with this policy.

According to a recent article in the New York Times, Apple last week announced it plans to introduce new tools that will allow it to scan iPhones for images related to the sexual abuse and exploitation of children. Apple is promoting these innovations as part of a child safety initiative. Continue reading

Were you arrested after the police discovered drugs, an illegal firearm and/or other contraband while checking on your safety while you were in your car?  If you were, a recent case from the First District Court of Appeals shows how you may be able to have your case dropped.

In Taylor v. State, Escambia County Sheriff’s Deputy David Ramires responded to a call at 4:30 a.m. about a man sleeping in a vehicle with a knife on his lap. Upon arriving at the reported location, Deputy Ramires observed Mr. Taylor was indeed sleeping in the driver’s seat of a vehicle with a “fairly large knife” on his lap.

Taylor’s car was legally parked, it was not running, and no one else was in the vehicle. Deputy Ramires did not smell alcohol. The surrounding area was not a high crime area. Continue reading

Were you arrested based on items found pursuant to a search warrant?  Is so, the recent case of Hill v. State shows how your lawyer may be able to obtain and then review the affidavit underlying the warrant for errors and constitutional infirmities.  If such defects exist, your lawyer may be able to invalidate your warrant and have your case dismissed.

In Hill, the police obtained a warrant to search Hill’s former girlfriend’s residence where she lived with their children. Hill frequently stayed at the residence. The judge later sealed the affidavit that was submitted to get the warrant issued.

Law enforcement subsequently executed the warrant at the residence. Hill was present. The search yielded large quantities of cannabis and cocaine, drug paraphernalia, two loaded firearms, and $3,800 in cash. Continue reading

Were you arrested for possessing a firearm, drugs or other contraband found by dog sniff during a routine traffic stop?  If you so, you may have grounds to have all the evidence found by the State thrown out and your case dismissed.  A recent case shows how that can occur.

In Flowers v. State, Timothy Flowers was a passenger in a vehicle pulled over by Officer Josh Carswell for failure to come to a complete stop at a red light before making a right turn. The stop occurred at 10:15 p.m. While Officer Carswell was collecting the information he needed to write Flowers a citation, the K-9 unit arrived.  A dog from the unit subsequently alerted to the vehicle.

The dog sniff was completed within twelve minutes of the initial stop. During that time, while Officer Carswell was preparing Flowers’ traffic citation, Carswell learned Flowers was a convicted felon. A subsequent search of the vehicle based on the dog’s interest revealed a pistol and marijuana. Before he was read his Miranda rights, Flowers spontaneously uttered “all that shit in there is mine.” Flowers was then arrested and taken into custody. Continue reading

Were you arrested after the police discovered contraband while checking on your safety?  If so, you may have a basis to have your case dropped.  A case from the First District Court of Appeals shows how this can happen.

In State v. Brumelow, 289 So.3d 955 (Fla. 1st DCA 2019), an officer responding to a 911 call arrived at a bank parking lot around 10:20 a.m. on a Saturday morning.  He observed a male in the driver’s seat and a female in the passenger seat of a running car.  Both occupants appeared to be sleeping.

The officer knocked on the driver’s side window several times.  The male, Michael Jason Brumelow, was awakened and began talking with the officer.  The officer then asked Brumelow to wake up the female in the passenger seat.  Brumelow was unable to do so. Continue reading

Have you engaged in conduct totally out of character that led to your criminal charges?  Did you take acetaminophen prior to or near the time of the incident leading to your arrest?  If so, you may have a defense and /or mitigating circumstances to raise in your case to get your case dropped or your charges reduced.

Paracetamol, also known as acetaminophen, is a widely used drug used primarily to treat fever and mild to moderate pain.  It is generically available in the United States under the trade names Tylenol and Panadol.  It is also present in Acet, Excedrin, Triaminic and possibly other medications. Despite its wide use, recent scientific studies have indicated acetaminophen may cause or contribute to certain criminal behaviors, especially those crimes involving violence or aggression.

The first study, reported in the publication Social Cognitive and Affective Neuroscience in September 2016, examined the effects of acetaminophen on empathy.  There, researchers from the National Institutes of Health and The Ohio State University studied the effects of acetaminophen on empathy in undergraduate students.  Empathy is the ability to recognize, process and respond to others’ emotional states.  Empathic functions have been linked with numerous cognitive and affective processes. Importantly, impaired empathy has been linked to aggression and criminal behavior in society. Continue reading

People often ask what they should say to police officers who want to speak with them.    Other than simply confirming your identity, don’t talk with the police or any other law enforcement officers conducting an investigation without first speaking with a lawyer.

It may come as a shock, but the police can and will lie to you.  I don’t say that to disparage the police.  They certainly perform a vital function in our society and I’m personally grateful for most of what they do.

But, unlike in England and many other countries, the police in the United States are permitted to lie to you about many things when conducting an investigation.  I’ve had cases where the police have lied to my clients and then the clients unfortunately commented on, or tried to explain, the lie.  In those situations, many of those clients have made their case much more difficult to defend. In other cases, my clients made statements that seemed innocuous to them, but later proved to damage their case.  Under most circumstances it is therefore highly inadvisable to talk with the police for the following reasons.

You may have heard you can win your case if the evidence against you was obtained based on an invalid search warrant.  But, as a recent case demonstrates, that’s not always true.

In State v. Smith, Mr. Smith was charged with multiple drug offenses and possession of a firearm by a convicted felon. The evidence was acquired from a search of Smith’s property pursuant to a warrant based on his former girlfriend’s allegations he possessed illegal drugs and firearms.

Smith subsequently filed a motion to suppress challenging the sufficiency of the search warrant affidavit. The same judge who had approved the warrant concluded she should not have signed the warrant in the first place. The judge reasoned because the affiant was a disgruntled ex-girlfriend, independent corroborating evidence was required to establish probable cause.  The judge also rejected the State’s alternative argument the good-faith exception to the exclusionary rule rendered the evidence admissible even if the search warrant lacked probable cause.  Smith’s motion to suppress was granted, meaning the State would not be able to use the evidence obtained during the search of his home and would therefore have to drop his case.  The State then appealed. Continue reading

Have you been arrested for driving under the influence (DUI) in Florida even though your breath alcohol content (BAC) was less than 0.08?  If so, you’re probably wondering how you could still be arrested, given the “legal limit” of 0.08.  The answer is below.

Under Florida law, the State has to prove one of two things in your case to convict you of DUI.  First, the State must prove that while you were driving or in actual physical control of a vehicle you were under the influence of alcohol or drugs to the extent your “normal faculties” were impaired.  Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

Alternatively, to convict you of DUI the State must prove while you were driving or in actual physical control of a vehicle you had a breath alcohol level of 0.08 or higher. A BAC of 0.08 or higher results in a conclusive presumption you were under the influence of alcohol to the extent your normal faculties were impaired.  That is the primary reason most attorneys recommend not consenting to a breath test if there is any question about your BAC.

So if you blew less than 0.08, how can you still be subject to a charge of DUI?  It’s because of certain presumptions about BAC ranges and how juries can consider other evidence of impairment in addition to your BAC.  Continue reading

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