Legal Blog - Moses & Rooth

Jan 19, 2022 | By Andrew Moses | Read Time: 7 minutes | Drunk Driving

First Offense DUI in Florida: What Happens Now?

Getting arrested for DUI can be a frightening time in your life. There’s a good chance you’ve never had a criminal charge before, and you’re wondering what will happen. That’s perfectly normal. The aftermath of a first-time DUI in Florida can be overwhelming. You probably have many legal questions. You might even be wondering if you have any chance to beat the charges or if you’re automatically guilty. You can rest a bit in the knowledge that you are still innocent until proven guilty and that you may have strong defenses available. The DUI defense lawyers from Moses & Rooth, Attorneys at Law, have nearly 40 combined years of criminal defense experience. We have represented nearly 7,000 clients—so the chances are high that we’ve handled cases like yours before. With our knowledge and experience, the DUI lawyers from Moses & Rooth can give you the best opportunity to beat your DUI first offense in Florida. What Happens When You Get a DUI in Florida? If the police stop you for any reason and the officer suspects you are under the influence of drugs or alcohol, then they will likely have you perform field sobriety tests. These tests are designed to provide the police with evidence that your ability to drive is impaired by alcohol or a controlled substance. The fact is that by the time the police ask you to take a field sobriety test, they already suspect that you are intoxicated. There’s little chance that taking the test is going to change the officer’s mind. On the other hand, your refusal might cause the investigating officer to think you’re trying to hide your guilt, and this may make them dig further. If yo refuse to conduct field sobriety expercies the officer will likely tell you that they will make their decision based upon the evidence that they have already obtained. Refusing to perform these exercises is not a safe harbor. What Happens After You’re Arrested? The officer will most likely conclude that you are under the influence and place you under arrest if there’s any evidence of alcohol consumption or use of controlled substances. You might have told the officer that you only had “two beers.” However, suppose the officer looked into your eyes and saw that they were glassy and bloodshot. Suppose you smelled like alcohol, slurred your speech, or fumbled trying to retrieve your license. Coupled with your driving, all of this evidence—even if there are innocent explanations—gives the officer probable cause to arrest you. Florida’s Implied Consent Law The arresting officer will bring you back to the police station and ask you to take a breathalyzer test. Under Florida’s implied consent law, every person driving on a Florida road impliedly consents to take a breathalyzer test if arrested for DUI. You can refuse; however, refusal results in an automatic suspension of your driver’s license for one year for your first offense DUI. A failed test is a 0.08% or great blood alcohol content (BAC). Before you take the breathalyzer test, the arresting officer has to read you your rights. Usually, the police record this procedure. You have a defense to the administrative suspension of your driver’s license if the officer incorrectly recites your statutory rights. Remember that you can refuse to take the breath test. Prosecutors might use that against you to say you didn’t take the breath test because you knew you were guilty. But experienced DUI defense lawyers can present evidence that you had valid reasons for refusing to take the breathalyzer that had nothing to do with alcohol consumption. The booking officer will let you have a phone call to arrange for bail. The officer must also advise you that you have a right to take a comparison test at your own expense. Asking for one could help you preserve your blood during the relevant time so that your experts can independently test it. This can be done to protect you from a potentially faulty governmental test result. What Is Florida’s DUI Law? Florida’s DUI law prohibits driving under the influence of alcohol and drugs. Additionally, Florida law prohibits having control over a vehicle (even if it’s not in motion) with a BAC of 0.08% or above. The prosecution can argue both theories of guilt to the jury. Accordingly, if you successfully argue to keep the breath test results out of evidence, the prosecution can still argue that you were under the influence by using the officer’s observations to convict you. For a First Conviction of DUI, What Is the Penalty in Florida? A first offense DUI is a misdemeanor in Florida unless someone dies or suffers a severe injury in a resultant accident. For a first offense, you could go to jail for up to six months and pay a fine between $500 and $1,000. Moreover, the court will suspend your driver’s license for 180 days up to one year. This license loss is in addition to the license loss for refusing a chemical test. There are other penalties for a first offense DUI in Florida as well. You must perform 50 hours of community service and attend drunk driving school. Lastly, you will be on probation for up to one year. However, there are exceptions to the general rule. If you have a BAC of 0.15% or higher, or you had a minor in the car while driving, then the maximum jail sentence is nine months. A person with no criminal history might get the minimum sentence, whereas a person with a lengthy record might get the maximum. You have the right to seek a hardship license from the DMV. However, you might have to install an ignition interlocking system as a condition of your hardship license. You have a short amount of time to appeal your administrative license loss. You could get your license back if the officer did not have probable cause to suspect you were driving under the influence. In addition, you can get your license back if...

Dec 20, 2021 | By Andrew Moses | Read Time: 5 minutes | Probation Violation

How Much Jail Time Could I Get for Violating My Probation?

Probation is an alternative to incarceration. In other words, a judge will sometimes sentence you to probation instead of sentencing you to jail or prison. Probation typically involves regular meetings with a probation officer as well as compliance with certain terms of probation. If you violate probation, incarceration could be the result. What Happens If Florida Accuses You of Violating Probation: The Procedure If your probation officer thinks you’ve violated your probation, they’ll probably initiate the probation violation procedure by submitting an Affidavit of Violation of Probation to the court. This is a sworn statement by the probation officer stating that they have a reasonable belief that you violated your probation. The court will review the Affidavit and determine whether it has merit. If it does, the judge will issue a warrant for your arrest. Your Rights In a probation violation proceeding, you will face a serious diminution of the rights that you enjoy in a criminal trial, including the following: You have no right to a jury trial for probation violation. The judge will decide both your guilt or innocence and your penalty. The judge is much more likely to deny bail while you wait for your probation violation hearing—especially if your probation arose out of a felony charge. The court will use the much lower “preponderance of the evidence” standard instead of the “beyond a reasonable doubt” standard used in criminal trials. This makes it much easier to find you guilty of violating your probation. The prosecution can use hearsay evidence against you. There is no statute of limitations on a probation violation. You are not safe no matter how much time passes. You have no right to “take the fifth.” In other words, you can be compelled to answer questions at the hearing even if the answers would incriminate you. Your progress towards the end of your probation period stops while probation violation proceedings are pending. In other words, probation violation charges stop the clock on your probation period until they resolve. All of the foregoing factors make it much easier for a court to find you guilty of a probation violation than to convict you of a crime. Plea Bargaining If your probation violation consisted of the commission of a new crime, you would likely resolve your case through plea bargaining. A plea bargain can resolve both charges, the old and the new, with one plea and one sentencing. How Much Jail Time Do You Get for Violating Probation? How much jail time applies for violation of probation? The short answer is that this decision depends on a number of factors that vary from person to person. Probation violation jail time can vary from none at all to years or even decades. In the case of a felony probation violation, jail time is proportionate to the length of the possible sentence for the original charge. The more serious the underlying offense, the more likely you will face years of jail time. But prison is not the only option. If the judge finds you guilty of violating probation, they have several options to choose from for sentencing. Continuation of Probation on the Same Terms When a judge simply continues probation, they are choosing not to impose any penalties for your violation. Probation continues on the same terms as before, despite the probation violation. Such leniency does not occur all that frequently. When it happens, the only punishment is a stern lecture from the judge. Modification of Probation Modification of probation is a popular remedy for a probation violation. The judge essentially modifies the terms of probation to make them harsher penalties than the original terms. Increasing the harshness of your probationary terms serves as your punishment for the violation. The judge might require closer supervision, add terms to the probation, extend the number of community service hours, or lengthen the period of probation. First-time low-risk violation of probation If you committed a first-time, low-risk probation violation and you do not qualify as a Violent Felony Offender of Special Concern, the court must modify or continue probation. It cannot revoke your probation and send you back to jail to serve the remainder of your sentence. A court can, however, modify your probation and sentence you to up to 90 days in jail. Revocation of Probation In a worst-case scenario, the judge can revoke your probation, which means you will probably go to jail or prison. As mentioned above, a judge cannot revoke probation for minor probation violations. If your initial offense was not serious enough to warrant incarceration, you might even be able to avoid incarceration despite revocation. Revocation is the most common remedy when someone violates probation by committing a new crime. When a court revokes your probation, the judge can: Sentence you to the full incarceration period that they suspended when they placed you on probation instead; or If the court finds you to be a danger to the community, or if you qualify as a Violent Felony Offender of Special Concern, Florida allows a court to incarcerate you for the maximum period available for your underlying criminal charge. In a worst-case scenario, this could mean decades in prison. Special Case: Committing a New Crime While on Probation If Florida charges you with a new crime while you are on probation, you have two new problems. First, Florida will have to resolve the new crime either at trial or through plea bargaining. Second, the new crime will become the basis of a probation violation charge against you. In some cases, this will be enough to classify you as a Violent Felony Offender of Special Concern. In a worst-case scenario, you could end up going to jail or prison for two consecutive terms of incarceration—one for the original charge and one for the new crime that violated your probation. Defenses Some common defenses against probation violation charges include: The offense was a non-criminal traffic infraction; You were unaware of the presence of illegal drugs on your shared...

Dec 13, 2021 | By Andrew Moses | Read Time: 3 minutes | Juvenile Offenses

Explaining Florida’s Romeo and Juliet Law

Does Florida have Romeo and Juliet laws? After all, not every state does. Fortunately, Florida is one of the states that does have such a law. Imagine two high school students who commence a dating relationship. The 18-year-old female gets pregnant and DNA evidence proves that her 17-year old boyfriend is the father. The police then proceed to arrest the female, charge her with statutory rape, and ultimately require her to publicly register as a sex offender. Does this sound a bit harsh? Well, the punishment described above would be mandatory in Florida, but for two exceptions to the statutory rape law. One of these exceptions is the Florida Romeo and Juliet law. But a certain amount of background is required to understand the significance of the Florida Romeo and Juliet law, so let’s begin. The Age of Consent All US states set a legal age of consent for sexual relations. Regardless of the presence or absence of consent, all sex with anyone below this age is considered rape unless a specific exception applies. In the US, the age of consent varies from 16 to 18 depending on the state. In Florida, the age of consent is 18 subject to certain exceptions. How Florida’s Statutory Rape Law Works As stated above, in Florida it is generally illegal to have sexual relations with anyone who is under 18 years of age. However, it gets complicated because sexual intercourse is not the only prohibited act. It is illegal to engage in other types of sexual conduct upon or in the presence of anyone under 16. Even certain computer transmissions are illegal. Imagine a 15-year-old girl using her cell phone to send a topless photo of herself to her 17-year-old boyfriend. This is a crime in Florida, and the boyfriend also commits a crime if he views the image and then intentionally fails to delete it from his phone. Exception for Minors Aged 16 and 17 For minors ages 16-17, Florida allows an important exception to prosecution: a 16- or 17-year-old (male or female) can consent to have sex with someone between the ages of 16 and 23. In this situation, the older partner is not breaking the law any more than the younger partner is. This law is not the Florida Romeo and Juliet law, but it does provide important context “But Your Honor, I Had No Idea How Young She Was” The harshness of Florida’s statutory rape laws is particularly evident in its strict liability nature. Someone charged with statutory rape cannot plead lack of intent or knowledge as a defense. In other words, the claim that the defendant didn’t realize the victim was underage is no defense. It is no defense even if the younger partner appeared to be older than the age of consent, and even if the younger partner presented a convincing-looking fake ID to the defendant. Circumstances like these, however, can result in a more lenient sentence. Sex Offender Registration There are numerous sexual offenses other than statutory rape that trigger the requirement to register as a sex offender. If Florida convicts you of an offense that requires sex offender registration, you must: Register with Florida local authorities several times a year; Report to the local police every time you enter a new Florida county; Inform the police of any travel plans through other Florida counties; Update your personal information every year; Report plans to move or to travel out of state; and Comply with many other requirements. Florida Statute 943.0435 discusses this issue in more detail. Understanding the Romeo and Juliet Law in Florida The Romeo and Juliet law in Florida does not exonerate someone charged with statutory rape. An offender can still go to prison. All the Romeo and Juliet law does is allow the offender to petition the court to relieve them of the requirement to register as a sex offender. The court may grant or deny the request at its own discretion. Factors that a judge might consider include: The offender’s criminal record; Evidence of similar behavior in the past, even without a previous conviction; Whether the offender provided intoxicants to the victim; Whether the offender targeted the victim on the internet; or Whether the offender held a position of authority over the victim. A judge can consider many other factors as well. If the judge denies the request, the defendant must wait at least another 25 years before submitting a second petition. Take Action Now If you or a loved one is facing prosecution for a sexual offense, you likely have many questions and concerns. We can look at your case and help walk you through the complex laws surrounding sexual offenses, and protect your rights throughout this challenging process. Call Moses and Rooth at 407-531-8694 or contact us online for a free initial consultation. We have over 36 years of combined experience in representing criminal defendants, and we are eager to put that experience to work for you.

Dec 13, 2021 | By Andrew Moses | Read Time: 5 minutes | Probation Violation

12 FAQs About Probation in Florida

Being on probation in Florida is like walking a tightrope. One slip could be catastrophic because it could result in incarceration. It may not be as restrictive as being in prison, but make no mistake—your actions and freedoms are significantly curtailed while you are on probation. It is certainly better than being in jail or prison, but if you don’t want to eventually end up incarcerated you need to strictly adhere to your probationary rules and restrictions. If you have been sentenced to probation in Florida, or if you are seeking probation as an alternative to incarceration, there are some things you need to know. What Is Probation in Florida? How Does It Work? Probation in Florida is a form of court-ordered supervision that does not require you to remain in jail, prison, or on house arrest (in most cases). Instead, your probation involves supervision by your probation officer and includes many rules you must follow and tasks you must complete. You must be very diligent and comply with each and every condition placed upon you to maintain your probationary status and remain free. If you violate any condition, you will likely end up in jail. How Many People Are on Probation in Florida? Nearly 150,000 people are on probation in Florida. That is almost twice the number of people currently incarcerated. What’s It Like to Be on Probation? Probation typically lasts a long time in Florida. In fact, the average length of probation ranges from three to 15 years, depending on the seriousness of the offense. You can expect probation to be burdensome, expensive, and nerve-racking (since the specter of incarceration constantly looms over you). Losing your job could threaten your freedom. And even if you manage to keep your job, it might yield barely enough money to meet your offense-related financial obligations such as the cost of probationary supervision, fines, court costs, and restitution. Put simply, probation certainly beats incarceration—but it is no walk in the park. What Are the Different Types of Probation? The major forms of probation in Florida include: Standard Probation: You must obey standard terms of probation (see below) and report to your probation officer on a regular basis. Administrative Probation: Administrative probation is a more lenient form of probation that imposes standard conditions but does not require you to regularly meet with a probation officer. Drug Offender Probation: Drug offenders must typically submit to standard probationary rules, any specific conditions the judge ordered, and you must almost always complete a substance abuse program and submit to random drug tests. Sex Offender Probation: Sex offenders put on probation must also submit to standard probationary rules, complete any other conditions set out by the judge, and complete a sex offender treatment program under the supervision of a special probation officer. Community Control: “Community control” essentially means house arrest where you are incarcerated within your own home. If you are placed on community control, you will be under continuously supervised custody. We can help you convince the judge to grant you the type of probation that will be the least burdensome upon you. What Are the Typical Florida Probation Rules? Florida Statutes Section 948.03 sets forth the standard terms and conditions of probation. Although the court can add details and modify these conditions somewhat, the basic terms include: Regularly reporting to your probation officer; Allowing your probation officer to visit your home, your place of employment, and other places that you frequent; Keeping a job during your period of probation; Paying restitution to anyone you harmed by your crime; Financially supporting your dependents; Remaining within a particular area specified by the court (the state, your county, your city, etc.); Refraining from committing any new offenses—i.e., don’t break the law; Not using any controlled substances unless a doctor prescribed them to you for medical reasons; Refraining from associating with anyone involved in criminal activity, even old friends; Submitting to random drug and alcohol testing; and Not possessing or using any firearms. The court may impose additional conditions as well. What Are the Typical Florida Felony Probation Rules? Since a felony is more serious than a misdemeanor, the terms of felony probation are usually stricter and supervision is more intense than misdemeanor probation. You will probably have to visit your probation officer more frequently. The court is also more likely to require you to complete a stringent rehabilitation program (an anger management course or a drug rehabilitation program, for example). You will still have to pay fines, court costs, and restitution. The judge may impose a requirement to do community service regardless of the level of your offense, but typically, felony offenses carry a higher number of community service hours. You will also have to comply with the same restrictions as misdemeanor offenders, such as keeping a job. What Is the Difference Between Parole and Probation? Essentially, probation is a sentencing alternative to incarceration while parole is an early release from incarceration. So probation is used instead of incarceration, whereas parole happens after a period of incarceration if a parole board agrees to release you early. However, parole is almost never granted in Florida, due to legislative changes that took place in 1983. When Can I Receive Probation Instead of Incarceration? As long as you are eligible, Florida probation laws give judges the discretion to place you in jail or to put you on probation. A skilled lawyer is an invaluable asset under these circumstances. We have convinced many judges to sentence our clients to probation rather than jail time. Some serious crimes, however, do not allow for probation. Do I Have the Right to a Jury Trial for a Probation Violation? Unfortunately, no. If you violate a term of your probation you do not have the right to a jury trial to determine if you actually are in violation. Instead, the judge makes that decision. In addition, the prosecution does not have to prove your violation beyond a reasonable doubt. All they need is a “preponderance of the...

Dec 13, 2021 | By Andrew Moses | Read Time: 4 minutes | Drug Charges

Florida Drug Possession Penalties and Laws

Florida drug possession penalties are notoriously strict. If you are facing Florida drug charges, you can expect prosecutors to aggressively pursue a conviction or a brutal plea bargain. If a Florida court convicts you, don’t be surprised if the judge imposes the maximum sentence. Consequently, it’s never in your best interests to even think about trying to defend yourself without the aid of an experienced Florida drug lawyer. Florida Drug Possession Laws: The Five Controlled Dangerous Substances (CDS) Schedules Florida, like the federal government, has divided illegal drugs into five classifications, known as schedules: Schedule I includes the “hardest” drugs: heroin, LSD, etc., for which there is no known medical use. Schedule II includes hard drugs for which there is some medical use: cocaine, opium, etc. Schedule III includes drugs with an established medical use but significant potential for addiction, such as anabolic steroids. Schedule IV includes drugs with established medical uses and a moderate to low potential for addiction, such as Valium. Schedule V includes substances with a low potential for abuse and well-established medical uses, such as medications with limited quantities of codeine. New substances are frequently added to these schedules. Florida Drug Laws and Penalties: Categories of Drug Crimes Florida has divided drug crimes into four separate categories, in ascending order of seriousness: Possession or use of paraphernalia, such as bongs, needles, rolling papers., etc., but only if these articles are being used in conjunction with illegal drugs. Possession of a small amount of an illegal drug for personal use only. Possession with intent to deliver, sell, or distribute. For this charge to be appropriate, the police need evidence of your intent to sell, such as a scale and baggies — possession alone is not enough. Drug trafficking charges apply if you possess an excessive amount of drugs. If the police catch you with a large enough quantity of illegal drugs, they could charge you with this level offense without any further evidence of your intent. Although trafficking requires more than simple possession, it is mere possession of a large amount of drugs that raises the inference of trafficking. Florida Drug Possession Penalties The exact penalties for every schedule of drug across all four offense categories are too extensive to list here. Below, however, are some examples: First-degree felony possession of more than 10 grams of heroin (Schedule I): Up to 30 years in prison and a $10,000 fine. Third-degree felony possession of CDS drugs listed in Schedules II through V (without a valid prescription), unless an exception applies: Up to five years in prison and a $5,000 fine. First-degree misdemeanor possession of up to 20 grams of marijuana: Up to a year in jail and a fine of $1,000. Possession of more than $10,000 pounds of marijuana: Up to 30 years in prison and a fine of up to $200,000. Conviction of a third or subsequent first-degree felony, whether or not drug-related, can result in life imprisonment. Weight The seriousness of your offense depends largely on the weight of the drugs you were caught with. The prosecution is allowed to count the combined weight of the substance that they seized from you, even if the substance was an illegal substance mixed with a legal substance. Suppose, for example, that the police caught you with four grams of cocaine that someone cut with seven grams of a legal substance, for a total of 11 grams. Suppose further that the police caught your friend with 11 grams of pure cocaine hydrochloride. The police could charge both of you with possession of 11 grams of cocaine each. Common Defenses There are numerous defenses that you could possibly use against drug possession charges, including the following four: Claiming the drugs belong to someone else; Illegal search and seizure; Entrapment; and Claiming that the substance is not actually an illegal drug. These are not the only possible defenses, but they are among the most popular and frequently used strategies. Claiming the Drugs Belong to Someone Else If the police found drugs in your possession (your suitcase, for example), it will be up to you to prove that the drugs belonged to someone else and that you didn’t know what they were. Perhaps CCTV footage showing someone slipping a package into your bag at the airport exists. This might be enough to establish such a defense. Then again, perhaps not. It all depends on exactly what that footage shows. Illegal Search and Seizure Suppose, for example, that the police searched your home without a search warrant when no exception to the warrant requirement existed. In this case, you could suppress the use of the drugs as evidence against you. With no evidence, the prosecutor will almost certainly drop the charges. Entrapment The entrapment defense applies if the police deliberately enticed you into committing a drug crime just so they could arrest you for it. For this defense to work, you cannot be the type of person who was already inclined to commit the offense. The Substance Is Not an Illegal Drug Gray-market chemists are creating new drugs faster than legislatures can write laws prohibiting them. If the substance the police caught you with is one of these, you will probably walk free. Time Is Against You Criminal prosecutions move quickly. If Florida has charged you with a drug crime, you will have to do the same. The criminal defense attorneys at Moses and Rooth have over 35 years of combined experience in representing defendants charged with drug crimes. Some of our lawyers used to work as prosecutors. This fact is particularly valuable when it comes to understanding how the other side thinks. Call us at (407) 439-1762 or contact us online for a risk-free consultation.

Dec 13, 2021 | By Andrew Moses | Read Time: 4 minutes | Domestic Violence

How Serious Is a Domestic Violence Charge for a First-Time Offender?

Domestic violence is a serious charge that carries a social stigma that few other offenses do. Even if you are convicted on a first-time domestic violence charge, the consequences could follow you for the rest of your life. Common penalties for domestic violence include incarceration, fines, probation, community service, and compulsory counseling. What Is Domestic Violence in Florida? In Florida, the term “domestic violence” is an umbrella term that does not refer to a single offense. Instead, it refers to a category of related offenses. According to Florida’s definition of domestic violence, some of these offenses include: Assault & battery, Sexual assault, Stalking, Kidnapping, False imprisonment, Sexual battery, and Any other offense resulting in injury or death. To qualify as domestic violence, the crime must be committed by one family or household member against another family or household member. Pre-Trial Issues The risk of a domestic violence conviction is one problem. In addition, you will have several concerns to deal with before a trial even occurs (if it ever does). Bail The standard bail bond is $500, but that can vary depending on your criminal history and other factors the judge may consider. With a skilled lawyer, however, you might obtain a Release on Recognizance (ROR) which wouldn’t require you to pay any money. The “No Contact” Order Once you are charged with domestic violence, the court will automatically issue a “no contact” order that prevents you from contacting your accuser in any way. This could represent a huge problem. For example, suppose that the accuser is your spouse. Your spouse may want to contact you regarding important custody or financial issues that arose because of your domestic violence charge. But speaking with them can violate the no contact order. We can help you resolve such difficulties by petitioning the court to modify the order for the sake of you and your accuser. Meanwhile, you are going to need to strictly observe the no contact order. Even a slight deviation could result in serious negative consequences — regardless of the validity of the reason. A violation could also jeopardize your defense. The no contact order might expire once your charges are resolved. Counseling For a first-time offense of domestic violence, seeking counseling on your own is one way to soften the prosecutor. In response, the prosecutor might offer a favorable plea bargain or even drop first-time domestic violence charges. Seeking counseling is a move that should be made, if at all, soon after the prosecutor charges you with domestic violence. Plea Bargaining Your lawyer may be able to negotiate a favorable plea bargain for you. The prosecutor can make the plea bargain favorable in a number of ways. They can offer you a light sentence in exchange for taking classes, for instance. They can even agree to let you plea to a lesser charge without the domestic violence enhancement if they feel the facts warrant such diversion. Prosecutors often agree to a plea bargain to save the time and expense of a trial, or as a reflection of an evidentiary weakness in their case against you. The Domestic Violence Diversion Program The prosecutor might offer you a plea bargain in which you avoid incarceration and a permanent criminal record in favor of completion of the Domestic Violence Diversion Program. The advantage of this program is that if you complete it within the allotted time, Florida will dismiss the charges against you. For some defendants, completing the Diversion Program might be the best option. It is not likely to be the best option, however, if you are innocent, or if the prosecutor lacks the evidence to convict you of domestic violence. The disadvantages of accepting such a plea deal may include: The program is expensive and time-consuming; Some professionals, such as teachers, must still notify their professional associations of their participation in a diversion program; and Florida can reject your application to participate in the diversion program. In this case you will end up right back where you started. Seeking an acquittal might be the better option under certain circumstances. Your lawyer can assess your chances of winning at trial and advise you as to the best course of action. Penalties for First-Offense Domestic Violence The penalties for domestic violence vary depending on the type of offense committed, the underlying circumstances, and your criminal history. The prosecutor can charge you with either a misdemeanor or a felony. In the typical scenario, the prosecutor charges a first-time domestic violence offender with first-degree misdemeanor battery. Conviction of first-degree misdemeanor battery carries a sentence of: Up to one year of jail time (with a minimum period of incarceration of 10 days if you intentionally injured the victim); A $500 fine; and Participation in a 26-week course called the “Batterers Intervention Program.” If the prosecutor charges you with a felony, you could face up to five years in prison. Your sentence could increase if your accuser already had a restraining order or an injunction issued against you. Federal Charges The federal government might charge you with domestic violence if multi-state activity was involved. This might happen, for example, if you lock someone in your car and carry them across a state line. Act Decisively The Florida criminal defense attorneys at Moses and Rooth have worked as prosecutors. That means we understand how prosecutors think and how they are likely to react. There is very little that can happen in a criminal prosecution that would surprise us. We’ve seen it all before. Telephone us at (407) 439-1762 or contact us online for a risk free consultation.

Dec 6, 2021 | By Jay Rooth | Read Time: 6 minutes | DUI

DUI Manslaughter in Florida

Accidents and mistakes are normal parts of life, but some are certainly a bigger deal than others. If you found yourself driving intoxicated, that is already enough cause for serious concern. If you caused a fatal accident while driving under the influence of drugs or alcohol, you may be faced with the charge of DUI manslaughter in Florida. This is a serious charge that you should not try to face without the assistance of a skilled attorney. What Is DUI Manslaughter in Florida? The crime of DUI manslaughter in Florida is defined under Florida Statute 316.193(1) and (3)(c)(3) and includes three critical elements: A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and: The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired; The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath. Who, by reason of such operation, causes or contributes to causing the death of any human being or unborn child commits DUI manslaughter. All these elements must be present for the plaintiff to bring a legal cause of action for DUI manslaughter in Florida. It is important to note that actual physical control means that the driver is physically in or on the vehicle and has the capability of operating the vehicle even if they are not operating it at the time. For example, if the vehicle is stopped at an inappropriate place due to the driver’s inability to make the correct decision, they are still responsible for injuries caused. Penalties for DUI Manslaughter in Florida It should be clear that DUI manslaughter is a crime and comes with a second-degree felony charge. It is a Level 8 offense under the Florida Criminal Punishment Code. This defines the severity of the crime in the state. A DUI manslaughter sentence in Florida could include: Up to fifteen years in prison, Up to fifteen years of probation, Permanent driver’s license revocation, Up to $10,000 in fines, Impoundment of the driver’s vehicle, Completion of a DUI Substance Abuse Course, Community service, and Completion of a psychosocial evaluation and substance abuse treatment. The mandatory minimum sentence for DUI manslaughter in Florida is 124 months and 15 days in prison in addition to the above penalties. Florida Statute 316.193(3)(c)(3) caps downward departure (a judge implementing a lesser sentence at their discretion) for DUI manslaughter to a minimum term of four years in prison. If you left the scene of the DUI accident for whatever reason without giving your information to people involved such as the survivors, witnesses, or law enforcement, or completely failed to stop and address the situation, you may face a first-degree felony. The severity of sentencing increases to up to 30 years in prison and $10,000 in fines. Florida DUI Manslaughter Sentencing Guidelines The Florida Department of Corrections has created a scoresheet preparation manual. The points determine the penalties and take into account previous history. Florida DUI manslaughter sentencing guidelines state that a Level 8 offense amounts to 74 points using this system. Victim injury points are 120 per victim. Prior criminal activity, legal status violations, and other mitigating circumstances can add points. These could include fleeing law enforcement, failure to appear at court, diversion, pretrial intervention, and more. The minimum length of the prison sentence is calculated by subtracting 28 from the total number of points, then multiplying that number by .75. This is the number of months that must be served in prison unless the judge imposes a downward departure sentence. In a standard case with one death, according to Florida DUI manslaughter sentencing guidelines, the math would look like this: 74 + 120 – 28 = 166 x .75 = 124.5 months. In this case, the minimum sentencing for DUI manslaughter would apply. Defenses for Florida DUI Manslaughter If you find yourself facing a charge for DUI manslaughter in Florida, all is not lost. You may have any number of defenses. Some of these may help completely remove the charge. Others may lessen the severity of your sentence. Each case is unique depending on the circumstances of the collision. It is important to seek counsel from an experienced Florida defense attorney who understands the details of DUI manslaughter in Florida and the gravity of felony charges. Here are a few examples of defenses that may or may not apply. Establishing Intoxication This is a big one. There is a lot that could go wrong in establishing and maintaining evidence of intoxication. The breathalyzer machines used by law enforcement have flaws from time to time. Failure to properly use or maintain the machine could result in inaccurate readings. Any variance outside of specific operating procedures could cause the results to be thrown out. In certain circumstances, Florida law enforcement officers have the option to issue field sobriety tests to determine whether someone is impaired. These tests are subjective given that the officer is generally not aware of the driver’s normal level of coordination and balance. An injury or disability would make these tests unreliable. There may also be an argument that the officer was not qualified to perform the tests. Unreliable tests are not admissible in court. Improper Police Protocol There is a very specific protocol that must be followed whenever the police arrest an individual. Any deviation from this protocol is a violation of rights. This starts with ensuring you are read and understand your Miranda rights. Police have a duty to file reports correctly, handle all evidence and documentation in a way that completes a proper chain of custody, and provide you with...

Aug 30, 2021 | By Andrew Moses | Read Time: 4 minutes | Drug Charges

DUIs and Marijuana in Florida

Being arrested for driving under the influence (DUI) of marijuana can be frustrating. Attitudes about marijuana are changing across the country. But in Florida, cannabis is still illegal for recreational use. Medical marijuana is legal, but you are still not allowed to drive while high. You can get a DUI for weed, even if you have a prescription to use it. But don’t assume an arrest equals a conviction. At Moses & Rooth Attorneys at Law, we’re here to fight for you and your freedom. Whether you or a loved one is facing DUI marijuana charges, give us a call at 407-720-8507 to set up a free, confidential consultation. Can You Get a DUI for Being High? Yes, you can be convicted of a drug DUI if you are caught driving while high. Florida’s driving under the influence law, Florida Statutes section 316.193, says you can be punished for driving or being in actual physical control of a vehicle while under the influence of any chemical or controlled substance that’s impaired your normal faculties. While you may have thought you could only get a DUI for having a blood alcohol level of 0.08% or higher, the truth is that you can get a DUI for being intoxicated by alcohol, drugs, or a combination of both. All a prosecutor has to do is prove: You were impaired because of a substance, and You were driving or in control of a vehicle. Call our Orlando DUI defense attorneys as soon after an arrest as you can. There are ways to defend yourself, but you shouldn’t go down this road alone. How Can a Police Officer Detect Marijuana? A police officer can pull you over if they have a reasonable suspicion that you’re committing a crime. For example, they might see you commit a traffic violation like rolling through a stop sign or speeding. They might suspect impaired driving if they see you driving erratically, such as randomly slowing down and speeding up, crossing lane lines, or weaving in and out of traffic without using your signals. Another possibility is that the officer witnessed you or a passenger smoke something that looked like a joint or pipe. Once the officer’s pulled you over, they’ll observe several things: Whether they smell cannabis; Your appearance, including whether your eyes are red or bloodshot, and Whether your speech appears delayed or slurred when you answer their questions. Call a defense attorney right away if you believe the officer didn’t have any reason to suspect that you were high. Chemical Testing and Implied Consent in Florida If the officer notices signs of intoxication, they may ask you to blow into a roadside breath test or get out of the vehicle to perform field sobriety tests. You are not legally obligated to do any of these things. You can politely decline to take a roadside breath test or perform any field sobriety tests. However, that won’t stop an officer from arresting you. If the officer arrests you for a marijuana DUI, they can ask you to submit to a urine or blood test. Under Florida Statutes §316.1932, Florida’s implied consent law, by accepting the terms of your driver’s license you’ve already agreed to submit to chemical testing if the police arrest you for a DUI. If you refuse to take a urine or blood test, you can face civil and criminal consequences. A refusal causes a one-year driver’s license suspension, and a second refusal leads to an 18-month suspension. A prosecutor also can charge you with a first-degree misdemeanor, which is punishable by up to one year in jail. What Are the Penalties for Driving Under the Influence of Marijuana? The potential punishment depends on whether you’ve been convicted of one or more DUIs before. It doesn’t matter whether you’re facing a DUI based on alcohol, marijuana, or other drugs. First DUI (Misdemeanor) Penalties Up to six months in jail; Fines between $500 and $1,000; License suspension between six months and one year; 50 hours of community service (or a buyout option); and 10-day vehicle impoundment. Second DUI (Misdemeanor) Penalties Up to nine months in jail; Fines between $1,000 and $2,000; Ignition interlock device; License suspension between 180 days and one year; One year of probation; A psychosocial evaluation; 50 hours of community service (or a buyout option); and 10-day vehicle impoundment. Third DUI (Misdemeanor or Felony) Penalties Up to one year in jail (Up to five years for a felony); Fines between $2,000 and $5,000; Ignition interlock device; One-year license suspension (Up to 10 years for a felony); One year of probation; and A psychosocial evaluation; 50 hours of community service (or a buyout option); and 90-day vehicle impoundment. Fourth DUI (Felony) Penalties Up to five years in prison; Fines up to $5,000; Permanent license revocation; 50 hours of community service (or a buyout option); and 90-day vehicle impoundment. Whether this is your first DUI or you’ve had multiple DUI offenses, you should have an experienced criminal defense attorney represent you. You deserve a vigorous defense to pursue a dismissal, acquittal, or lenient sentence. Defending Against a Florida Marijuana DUI There are several possible DUI defenses, including arguing: The officer didn’t have a valid reason to perform the traffic stop; The officer conducted an illegal search and seizure; The prosecutor lacks sufficient evidence to prove you were impaired, including chemical test results; You have a valid prescription for medical marijuana use and were not impaired at the time; Despite a chemical test showing trace amounts of THC, the prosecutor lacks evidence of impairment; or The prosecutor can’t prove you were in control of a vehicle at the time. We encourage you to call an Orlando DUI defense lawyer to talk about your options. Call Moses & Rooth Attorneys at Law Today If you were recently arrested for a marijuana DUI in Orlando or Orange County, FL, let us handle your DUI case. We bring years of trial experience to the table. And because we believe representation should...

Aug 30, 2021 | By Andrew Moses | Read Time: 4 minutes | Drug Charges

How to Beat a Simple Possession Charge in Florida

If you or a loved one were recently arrested for possessing a small amount of drugs, call Moses & Rooth’s Orlando drug lawyers right away. We’ll explain the law, the potential sentence, and how to beat a drug charge. Never assume you have to plead guilty for simple possession in Florida. You can fight. What Is Simple Possession? In Florida, a possession charge means you had control over or access to drugs, but you didn’t manufacture, sell, or distribute them. Simple possession refers to a small amount of drugs for personal use. Legally, you can possess drugs in two ways: actual or constructive possession. Actual possession means the drugs were on your person, like in your pocket, bookbag, or purse. Constructive possession means you had access to them, but they weren’t on your person. Instead, they’re usually in a vehicle or residence. What to Expect from a Simple Possession Charge Drug possession is either a misdemeanor or a first, second, or third-degree felony. Possession of up to 20 grams of marijuana, some Schedule V drugs, or drug paraphernalia is a first-degree misdemeanor. You face up to one year in jail and fines up to $1,000. Everything else is usually a felony. For example, it’s a third-degree felony for possession of Schedule IV and III drugs. More specifically, possession of fewer than 28 grams of cocaine, 4 grams of heroin, 1 gram of LSD, 14 grams of meth, or 10 grams of MDMA are all third-degree felonies. You face a sentence of up to five years in prison and fines up to $5,000. Possession of more than 10 grams of a Schedule I drug, like heroin, is a first-degree felony. The sentence is up to 30 years in prison and fines up to $10,000. Talk with a drug crime defense lawyer right away about the level of the charge and potential sentence. Florida sentencing laws are complicated. The penalties can add up quickly, and you face a host of collateral consequences in addition to jail time and fines. You may have to deal with probation, a driver’s license suspension, loss of federal financial aid for school, difficulty getting a job, and more. How Do I Beat a Drug Possession Charge? Stay Silent The first step in beating a simple possession charge is knowing your rights. After your arrest, you have the right to remain silent and to get a lawyer. The police should tell you this as they read your Miranda Rights to you. The only thing you should say to the police is, “I’m invoking my right to remain silent, and I want a lawyer.” After that, don’t say anything else. The police may try a number of different tactics to get you to talk and effectively waive your right to talk to your lawyer first. Don’t let them. You do not have to be rude. Just assert your right to remain silent until you speak with your lawyer. Don’t answer any questions and never admit you possessed any drugs or knew about the drugs in a vehicle or home. Hire a Florida Criminal Defense Lawyer A defense attorney makes sure you understand the law and your rights. You’ll tell your lawyer the story of what happened. Where you were, what you were doing, and who you were with. It’s important to be honest about everything. Your attorney needs to know what happened to build you the best defense possible. Ways to Avoid a Drug Possession Conviction Sometimes the best way to handle a drug charge is to pursue an alternative route and not fight in court. Pretrial Intervention Programs A pretrial intervention program isn’t a defense but can be a good option to avoid a conviction. You may be eligible for a pretrial intervention program with a misdemeanor or third-degree felony charge. Once you complete certain requirements during probation, the court dismisses the charge. You usually need no or a limited criminal history to be eligible. Pretrial Diversion Programs Florida offers a three-tiered drug diversion program. Level One: Applies to defendants charged with possession of a misdemeanor amount of marijuana or possession of drug paraphernalia. Level Two: Applies to defendants with no criminal history or minor criminal history charged with: Simple possession of illegal narcotics (heroin, cocaine, felony cannabis, and fentanyl, and others); Possession of marijuana with intent to sell; Purchase of illegal narcotics; Obtaining or attempting to obtain illegal narcotics by fraud; and Possession of a controlled substance without prescription. Level Three: Can be offered to defendants charged with most misdemeanors, misdemeanor DUI, third-degree felony charges, and some second-degree felony charges. How to Beat a Simple Possession Charge in Court There are several defenses your attorney can put forth to demand a dismissal, win an acquittal at trial, or pursue a lenient sentence. No Drugs: Officers often arrest people based on suspicion of possession of a drug, but it turns out the substance wasn’t anything illegal. There are also times when the officer claims you possessed drugs, but there are no controlled substances in evidence. Lack of Possession: You may be able to show that you were unaware of the drugs and didn’t have actual or constructive possession of them. It might be that the prosecutor has no way to prove the drugs belonged to you if they were found in someone else’s bag, a car that other people use or occupied, or a shared apartment. Lack of Knowledge: You may not have known that an item in your possession contained drugs. For example, if a friend left their gym bag at your home that was later discovered to possess drugs. You may not have even opened it or known what it contained. Medical Marijuana Use: You may be able to prove you have a prescription for marijuana use. Illegal Search and Seizure: The Fourth Amendment of the U.S. Constitution protects you from unreasonable searches and seizures. If the officers violated your rights by performing a search without probable cause, a warrant, or your consent, then the evidence...

Aug 13, 2021 | By Andrew Moses | Read Time: 4 minutes | Domestic Violence

Is Domestic Violence a Felony in Florida?

If you are arrested for domestic violence in Florida, we understand that you face a range of fears and uncertainties. Along with all these challenges, by its nature and definition, facing a charge of domestic violence means personal relationship upheavals. You also have significant legal issues at hand, and your immediate question may be, Is domestic violence a felony? This situation is a lot to process, and the lawyers at Moses & Rooth are here to assist regarding your immediate and ongoing legal needs. When Do the Police Charge Someone with Domestic Violence? Florida general statutes address at length the laws related to domestic violence. Domestic violence charges are affected by three primary circumstances: the specific type of act involved, whether someone suffered an injury, and the relationship between the actor and the victim. In determining whether you will be charged with domestic violence, the police therefore have to put together several puzzle pieces. Type of Act The first step for police is to determine what type of crime allegedly occurred. A number of different actions can be subject to domestic violence charges, including: Assault or battery, Aggravated assault or battery, Sexual assault, Sexual battery, Stalking, Aggravated stalking, Kidnapping, or False imprisonment. Although this list includes most types of domestic violence, additional criminal offenses may fall into this category as well. Injury The next step for law enforcement is to determine whether the act resulted in physical injury or death. The police have a lot of discretion in determining whether something constitutes an injury. Relationship The final step is investigating the relationship of the parties involved. To support a domestic violence charge, the person charged must have committed the violent act against a family or household member. Suppose a person committed one of the acts in step one (assault, kidnapping, etc.) against another family or household member and there was a resulting injury to the victim. In that case, the police will likely issue a charge of domestic violence—the puzzle pieces (an act, an injury, and a familial relationship) are all present. How Does the Law Define Family Members? In Florida, our statutes define family or household members as any of the following: Persons related by blood or marriage; Current or former spouses; Persons who currently reside or formerly resided together as a family; or Parents (married or not) who have a child in common. Parents who have a child in common need not have ever lived together to be considered family or household members. However, for all other relationships, the parties involved must currently or previously have lived together for the domestic violence law to consider them a family or household member. What Is an Example of Domestic Violence? Domestic violence envelops a wide array of acts and situations. The most common charges include actions such as pushing, restraining, slapping/punching, kicking, and scratching. Here is an example. A parent and their 19-year-old adult child are residing in the same home. They get into a yelling argument. The parent punches the 19-year-old and breaks their jaw. This circumstance is domestic violence because: The parent committed the crime of battery when they punched the 19-year-old; The parent injured the 19-year-old when they broke their jaw; and The 19-year-old is a family member of the parent. This example is very basic. However, many domestic violence charges are complicated. If you have been charged with domestic violence or fear that the law may charge you, you need legal representation by Moses & Rooth. Our attorneys will hear your story, investigate the facts further, and then mount a vigorous defense. Domestic Violence Felony: Florida Law Each domestic violence case is different. Thus, answering the question, Is domestic violence a felony or a misdemeanor? in a given situation can be complicated. The judicial system will determine the level based on myriad factors, including: The injury to the victim; The type of contact the offender leveled against the victim; Whether the victim was a minor; Whether the law has charged the offender before; and The totality of the circumstances of the situation. Regardless of the final charge, domestic violence is severe, and a conviction can be life-altering. Let an attorney work with you to defend you and try and get your charges dismissed or reduced. Domestic Violence Punishment A person charged with domestic violence will face sentencing by a judge if they are convicted or plead guilty. The law provides that sentencing may include: A mandatory period of incarceration, An additional period of incarceration, Probation, Placement in community control (house arrest, halfway house, etc.), Completing a batterers’ intervention program, and Attending mandatory counseling. The bottom line is that if the court convicts you of domestic violence, you will face consequences and have a criminal record. The punishments can cost you your job, impact your ability to own a firearm, affect custody of your children, and require you to stay away from the victim and perhaps other family members. Moses & Rooth: Experienced Criminal Defense Attorneys If law enforcement has charged or may charge you with domestic violence, contacting Moses & Rooth, Attorneys at Law, in Orlando, Florida, should be your first act. Andrew Moses and Jay Rooth are owners and partner attorneys in the firm. Their clients speak of their dedication and legal excellence. The criminal defense attorneys of Moses and Rooth have extensive trial experience and in-depth knowledge of the federal and state criminal justice systems. We will put you at ease and never judge those charged with domestic violence. Contact Moses & Rooth when you need legal assistance. We offer a free consultation as well as ongoing affordable service.