Broward DUI on NYE

Broward DUI Attorney Grant Schwarz

Nothing ruins an evening, especially New Years Eve more than being arrested on charges of DUI.

Getting arrested for DUI is definitely something everyone wants to avoid in their lifetime. Florida has some of the strictest penalties for DUI’s around. As we know there is a multi-stage process that begins when you are arrested. The first is the arrest process, second is the administrative suspension process, and the third is the defense of your criminal charge in court.

But with this being the end of the 2015 holiday season and with New Years Eve upon us, we are still in a very highly traveled time of year and police are on highest alert for impaired drivers. During this time of year excessive alcohol consumption is very common and very often this leads to arrests for a multitude of charges, not just DUI. In fact, many first time offenders get caught during the holiday season due to the over vigilant police forces.

The odds of getting into a car accident are even higher during this time of year simply because there are more cars on the road visiting family and friends for the holiday season. But when the roads are full of people who have maybe had one too many, the odds of a crash are even higher. During the holidays, the number of travelers on our nation’s roads spikes. Unfortunately, increased alcohol consumption and increased cars on the road directly produce more fatalities resulting from car crashes alcohol-impaired drivers. This result is so predictable that police departments are likely to make more pre-textual stops without any real reasonable suspicion more often during this time of year than any other.

So what do you do to avoid becoming a Florida DUI statistic during the holiday season this year?

Avoid Drinking then Driving

Obviously the best way to avoid a DUI is to avoid drinking alcohol or consuming controlled substances whenever you think you may be driving soon thereafter. If there is nothing in your system, the police will have no evidence. Keep in mind that all a police officer needs to ask you to provide a breath sample is an odor of alcohol and other very vague signs of impairment. While you may be able to beat a DUI charge, you can rarely beat the ride through the court system.

If You Drink, Watch Your Intake

The legal alcohol limit in Florida is 0.08. This means that if your breath or blood alcohol content is above that number, you will be arrested and charged. Make sure you never drink on an empty stomach and keep close track on how many drinks you’ve had over whatever period of time you’ve been drinking. Keep in mind that everyone’s body is different and alcohol can affect your normal faculties more or less so than others. Know your limits. DUI doesn’t mean Drunk, it means Impaired.

Drive Extra Safely

This should go without saying anyway. While operating a vehicle on the road, you should always be driving safely and observing all traffic laws. Take extra care to stay within speed limits and obey all traffic control devices such as lights and stop signs. Stay off of your cell phone and do not text while driving. Driving while distracted will likely result in you being pulled over.

Don’t Try to Sleep it Off

DUI laws in Florida require the government prove that you were in actual physical control of the vehicle. Courts have found that if you are sleeping in the vehicle and you are in possession of the keys, you can still be charged with DUI. Crazy right?

Be Nice

Nobody likes to be stopped by police, but if you do happen to get stopped by a police officer while driving, go out of your way to be as kind and cooperative as possible. Police officers on New Years Eve are expecting the worst, so surprise them by not giving them a hard time or asking too many questions or being overly talkative. The officer wants the encounter to be over too. Don’t give him/her a reason to remember you. Take your ticket (if one is given) and drive away, call a lawyer and deal with it later.

To learn more about the DUI process please click here to read our site’s DUI information section.

If you know someone who has been arrested the best thing to do if is to contact a Fort Lauderdale Criminal Defense Attorney to look into this issue for you. 

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Disorderly Conduct Arrests in Fort Lauderdale

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Disorderly Conduct is one of those misdemeanor charges I see very frequently. However, it is very rare that I have had a client take a plea to or be found guilty of such a crime. The reason is that this particular statute is written in such a vague manner that it is very difficult for the state attorneys office to obtain a conviction.Disorderly Conduct Lawyer, Disorderly conduct Broward

In order to be convicted of Disorderly Conduct the officer must witness a person behaving in such a manner so as to corrupt the public morals, outrage the sense of public decency or affect the peace and quiet of persons who may witness them or be in the midst of a brawl or physical fight with another person in public. I have not encountered the “brawling part” of the statute as often as I have seen police officers make arrests for other reasons. The more common situation that I have encountered when defending a Disorderly Conduct charge is when a person has been arrested by law enforcement simply because the police officers making the arrest do not fully understand the law and use Disorderly Conduct as a “catch all” statue to make an arrest when no other crime seems to fit.

The problem with this behavior by police is that people will be arrested for completely lawful behavior. I recently had a client arrested for Disorderly Conduct and Resisting Arrest Without Violence in Fort Lauderdale after asking a police officer a few questions while the officer was “tending” to an injured person on the street. In a situation like that, I would have recommended that my client steer clear of the police officers entirely and leave the police alone to their business. However, I was not there at the time of the arrest to give such advice. Whenever an officer or officers appear to be in the middle of an investigation, arresting someone or are even sitting around doing nothing, the best thing you can do is LEAVE THEM ALONE. Most likely, nothing good will come to you by approaching a police officer, unless you are in need of protection or have just been a victim of crime. Even then, it is good practice to be wary of what information you provide police officers.

Sure, the law permits you to ask a police officer where they are taking someone who is being arrested, or even to ask why the person is being arrested. However, most times when people approach a busy officer, that person will end up getting arrested for “obstruction”.

Cases involving Disorderly Conduct or Breaches of the Peace sometimes involve some type of physical component like fighting.   Other times, arrests for Disorderly Conduct or Breach of the Peace involve only verbal incidents. What does this mean? For example: What would happen ifDisorderly conduct Attorney you started chanting “F@#k the Police!” when you see a group of officers standing around? First, the officer will likely order you to stop and leave the area. But what if you refuse? You will likely be arrested. But it does not end there. Consider the case of State v. Saunders 339 So.2d 641 in a Florida Supreme Court decision, the court dealt with the issue of speech as the basis for a Disorderly Conduct charge. The court decided that no words besides “fighting words” would be used as the basis for a Disorderly Conduct charge:

“In light of these circumstances, we now limit the application of Section 877.03 so that it will hereafter only apply either to words which by their very utterance inflict injury or tend to incite an immediate breach of the peace or to words known to be false, reporting some physical harm in circumstances where such a report creates a clear and present danger of bodily harm to others. We construe the statue so that no words except fighting words or words like shouting of ‘fire’ in a crowded theater fall within this proscription, in order to avoid the constitutional problem of over breadth and the danger that a citizen will be punished as a criminal for exercising his right of free speech.”

Back to the example: If you shout F the police, the Court would have to consider what else you did along with the shouting. Disorderly conduct charges will likely be dismissed or found not guilty wherever the defendant creates an annoyance, uses profanity, causes a crowd to gather, or displays a general bad attitude. Verbal conduct alone is rarely found to be the only basis for a conviction of Disorderly Conduct. If it’s just you on the street and nobody seems to care what you’re doing and its only the police that get annoyed by you shouting “F You” to them, then there’s very little likelihood that you’ll get charged and convicted of Disorderly Conduct.

If you know someone who has been arrested and you want to know what has happened to them, or what may happen next, there are many places you can check for information. One good place to check would be at the police station in a calm manner to speak with either the arresting officer, or their supervisor to find out what the arrest was for and what the next steps are in the process. The best thing to do if someone you know has been arrested is to contact a Fort Lauderdale Criminal Defense Attorney to look into this issue for you.Criminal Defense Lawyer

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DUI Checkpoints on Thanksgiving

Fort Lauderdale DUI Defense Attorney Grant Schwarz Explains how checkpoints can stop your holiday fun in its tracks.

happy thanksgiving from Criminal Defense Attorney Grant SchwarzConcerts, festivals and holidays, especially holidays which involve a fair amount of drinking; like Thanksgiving and Christmas are among the most popular times the local police decide to set up DUI checkpoint stops throughout the South Florida Area. In my career I have handled dozens of cases involving DUI checkpoints. These arrests are very common in South Florida and it is important for you to know how to properly handle yourself if you are stopped at a DUI checkpoint in Miami, Fort Lauderdale and Palm Beach counties.

Pumpkin Pie Shots.  Call Grant Schwarz for recipe

Pumpkin Pie Shots. Call Grant Schwarz for recipe

For those who don’t know what a DUI checkpoint is; a DUI checkpoint is also sometimes referred to as a Sobriety Point. There are three distinct phases in the DUI Checkpoint. The first is the “Funnel”. The funnel is a term used to describe the way officer’s use using traffic cones and other traffic control devices to narrow lanes of traffic down to one lane. Once a vehicle enters the funnel, cars are counted by the police officers monitoring the checkpoint.   There will be a pre-determined method set up in the Operation Plan to select which vehicles will be stopped and interviewed by police. Depending on the flow of traffic, officers will select every other car to interview the driver if traffic is slow, or at bigger intervals if traffic has backed up.   Once a vehicle has been selected, the officer will speak with the driver and ask some basic questions about where they are coming from or going, also will ask if the driver has consumed any alcohol that evening.

This is when the officer will make a determination whether the driver is potentially impaired by alcohol. This is the precise time that you need to take control of the situation and handle yourself properly. You should never try to drive away when the officer is trying to speak with you. Driving away could result in additional charges like Resisting an Officer or Fleeing/Eluding. Understand that DUI Checkpoints are a perfectly legal way for police officers to stop your car as long as they have followed the proper procedures in setting the checkpoint up. Understand that there is very little you can do while on scene with police officers to prevent being arrested, so do not make matters worse by trying to run away.

A big clear sign will be at the front of the funnel.

A big clear sign will be at the front of the funnel.

“Even a fish would not get caught if they kept their mouth shut”. This is something that I tell all of my clients. Do not answer questions the officer has not asked you, and do not volunteer information that has not been requested. Do not open your mouth needlessly because everything you say is potentially being recorded and will absolutely be used against you in court. The less you say, the better. Be polite and speak with a normal even tone and do not argue with the officer. You will not be able to talk your way out of an arrest. Arguing with an officer will almost always result in additional charges, or at the very least being labeled as “Belligerent” in the arrest report. Judges, prosecutors and juries do not look kindly upon the Belligerent arrestee.

If you or someone you know has been caught up in a DUI Checkpoint over the holiday weekend, please call the DUI Defense Attorneys at Dell & Schaefer.  Florida licensed attorneys are available 24 hours a day (Yes, even Thanksgiving or Black Friday) to answer questions regarding DUI or any other type of traffic, misdemeanor or felony charge.  Call 1-800-403-3887  for a free case evaluation.  Remember, even fish would not get caught if they kept their mouth shut. 

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Diversion Programs in Florida Criminal Cases

Broward Misdemeanor and Felony Diversion Program Attorney.  

Never accept a “deal” without hiring a lawyer first.

When I was a prosecutor, I used to think that I was doing defendants the biggest favor in the world when I would offer a misdemeanor diversion program, often called MDP or PTI (Pre Trial Intervention) in some jurisdictions. I used to say “This is an amazing deal. What a gift I am givingDiversion Program Attorney you” and I honestly believed it at the time. Now that I have been practicing Criminal Defense work for years I realize that MDP/PTI is not always as cracked up as people make it. This is especially true when a criminal defendant goes to court and accepts the program without first consulting with a criminal defense attorney. Oftentimes defendants are railroaded into accepting a program offer even when it’s against their interest.

Many times the railroading begins at the scene of the arrest. I can tell you that dozens if not hundreds of my clients tell me that they are already told about the diversion programs and other court programs the moment the officer gives them the ticket or places them under arrest. It’s like the police officer planting a seed in the and convincing the very person they are arresting that they are somehow doing a favor. Really, the information being provided to the arrestee is to keep them calm and confused while being railroaded.

The next step is the court appearance which occurs some weeks after the contact with police. At this point, the defendants have in their head that the program is good and that they will get their case dismissed, no harm no foul. “The police told me that I can do a program to get my case dismissed. I want to do that, it’s the best thing for me.”. Not usually.

What the defendants are not being told is that the court programs have strict rules and can cost hundreds of dollars. That diversion program usually begins with an application to the state attorneys office and then there is an approval process. During this process the defendant could be required to appear in court a few times, missing work or school. Then if the person is permitted to enter the program, they are hit with hundreds of dollars in fees and costs which
Cost Benefit nobody took the time to explain to them. Many times, after finally being explained the entire process, defendants realize that it might be too expensive or time consuming for them. Most people who are arrested are ordinary working people with families and tremendous financial pressures. Entering into a diversion program may seem like a good idea but it doesn’t always work out for the best. At the point when that decision is made, there is often a lot of time wasted and some rights waived. The rights to discovery and the right to a speedy trial come to mind immediately.

Through the years, I have received calls from people charged with crimes in misdemeanor and felony court who after an entire application process are then rejected from the program. These rejections come because of any number of reasons. The reasons are most commonly prior arrest or convictions for other offenses or because of “victim disapproval”.

Before even attempting to enter a diversion program in felony or misdemeanor court, you really need to contact an attorney to determine whether the program is your best option. We don’t want you to lose out on a potential defense because the state attorney is dangling a “generous” offer in front of your face. There have been many situations in my career where I have made and have been made an offer of diversion when the case is weak and would likely result in a not guilty verdict at trial.

DIVERSION PROGRAMS ARE NOT ALWAYS FOR EVERYONEfelony diversion programs

The Diversion Programs offered by the State Attorneys Offices throughout Florida are not always for everyone. Sure it sounds great, pay some money and maybe do some community service hours and the case will be dismissed. Great Right? What if you are totally innocent of the charge? What if the police broke the law when searching you? What if the police pulled you over illegally? What if the evidence against you just isn’t strong enough for a conviction? Should you be forced or coerced into accepting the “gift” of a diversion program? Another thing that police and prosecutors don’t always tell you is that in order to enter the program, you almost always have to write a statement confessing to the crime you are charged with. Still think diversion is a gift?

Of course there are consequences for anyone facing any criminal charge. However, if you are a licensed professional like a doctor, lawyer, public accountant, nurse or other professional licensed by the state of Florida, you could face serious consequences as a result of your case. These consequences could still affect your license after entering and completing a diversion program because some employers or licensing entities consider it an admission of guilt. Sometimes these programs require that you give consent to contact your place of employment to confirm you are currently working. These and other issues are very important considerations before you decide to enter a diversion program without first retaining an attorney to ensure that it’s the best possible outcome for you.

The Office of Dell & Schaefer has been representing criminal defense clients since 1979. Lead Attorney Grant Schwarz is rated as a Top 100 Trial Lawyer by National Trial Lawyers, and ready to represent you and start fighting to defend your rights today. Contact the office of Dell & Schaefer if you or someone you know has been charged with an offense and is considering a diversion program as a potential resolution for the case.

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Prostitution Cases in Florida

Throughout South Florida and even the rest of the state, police departments are coming down hard on cases involving the solicitation of prostitution as well as other acts listed under the prostitution statute. Prostitution is defined as selling ones body for money in the form of sexualBroward Prostitution Lawyer acts. While this type of transaction (money for sex) has been around for thousands of years, and is even legal in some jurisdictions, it is still illegal in Florida and can be punished quite harshly.

The most common way police departments go about targeting individuals participating in this type of illegal behavior is through elaborate (or sometimes very simple) sting operations.

In my experience as an attorney, most of these stings happen in the same areas over and over again. The police are really not that creative when it comes to these scenarios. For example, I have been practicing criminal law since 2007 and I have personally seen over 100 prostitution cases in the city of Hallandale Beach. The police department will take a plainclothes female officer and plant her right on the corner of Pembroke road and Federal Highway. The story basically writes itself and every single police report written that night will read exactly the same. “Officer so and so was acting in an undercover capacity. Defendant approached and requested the officer perform a sexual act in exchange for money.” That’s it!

The officers will rarely write anything more than that. And they don’t have to in order to Hallandale Beach Criminal Defense Attorneyopen a case. Most times the police will write Notice to Appear forms and give the poor defendant a court date some time in the future. Usually at this point the defendant calls my office and I explain how police have been running that game for years only now they have an even bigger incentive to trap unsuspecting people. The state of Florida has instituted a statutory fine of $5,000.00 for any defendant accused of soliciting a prostitute. That is $5,000.00 that the defendant must pay the state if he/she is convicted of soliciting prostitution.

Fortunately, there are usually defenses to this crime and there are usually issues with the way police collect evidence. There are often no photographs, video or audio recordings of the alleged “solicitation”. Additionally, the police officer will likely open 30 or more cases in a single night, and they will run that sting several times a year. This results in hundreds of arrests using the same officer. With no video or other evidence and a very vague police report, it is difficult for the police officer to say with much credibility that they remember the exact conversation they had with the defendant. The police officers usually count on the defendant taking a plea or participating in a Misdemeanor Diversion Program of some sort.

If this is your first time being arrested or cited with solicitation of prostitution, then you are in luck. Most counties offer diversion programs which only require attending a course about the dangers of participating in the type of behavior that got you arrested in the first place. The programs also require that you submit to an STD test. The results are kept confidential to you; you would only need to show proof that you took the test. Once those requirements are complete, the case could potentially be dismissed and your record later expunged. Many counties allow you to do this and avoid the mandatory $5,000.00 fine. Sounds good right? I saidFines for Prostitution many, not all. Broward County Prostitution cases require the payment of this heavy fine even if the defendant is participating in the misdemeanor diversion program. Not so good.

Having practiced criminal law my entire career and handled thousands of cases involving prostitution, I can understand the frustration and anxiety that comes with these types of charges. Many of my clients have said that they believe they probably should have known the person they were speaking to was a police officer and are more upset at the social stigma attached to the arrest and are embarrassed in front of friends and family.

Of course it’s difficult when facing any criminal charge, not just prostitution. And no matter what evidence you think the police have against you there is no substitute for hiring a criminal defense attorney to make sure that you were treated fairly by the police and to make sure that your rights are protected under the law.

If you are facing any criminal charges in Florida or simply have questions regarding any issues in criminal law, Call 800-403-3887 to speak to an experienced criminal defense attorney today, Partners are available 24 hours a day 7 days a week for a free case evaluation.

Never speak to police or go to court without first speaking with a criminal defense attorney.  Remember, even fish would not get caught if they kept their mouth shut.

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Will my felony arrest record affect me?

Fort Lauderdale Felony Defense Attorneyexpunge

An answer to this question is always, it depends. The answer depends on what you were arrested for, and what the outcome of the case was plus a host of other factors. This is why it is so important to hire a lawyer who will fight tooth and nail to get your case dismissed or to avoid a conviction on your record. Becoming a convicted felon will prevent you from ever being able to have your record sealed or expunged. The only people who can take advantage of the privilege of expunging a record are those whose cases have been completely dismissed. Others whose cases were not dismissed, but were able to achieve a result with no conviction on their record may be eligible to have their records sealed.

The only way to try and minimize people viewing your arrest and court case history is to begin a seal or expunge process. Sealing and expunging your record will prevent anyone from being able to search for your case through the clerk of courts. There are however other ways for people to look up an arrest record. For instance, a person can search through the Florida Department of Law Enforcement or even the local police station for reports and records related to another citizens name. This is why starting the sealing and expunging process is so crucial to protect your privacy. Once the court orders the record sealed or expunged several copies of the order are forwarded to the Florida Department of Law Enforcement as well as to the police station. Depending on whether the case was expunged or sealed, the records are then either destroyed or sealed to prevent searches.

Even if your case is eligible to be sealed or expunged, there is no guarantee that the record will never been found. There are of ways for people to find your record, they’re just more difficult. We live in a day and age that information is readily available to almost everyone. If you were physically arrested for your case, it is likely that your mug shot will appear in web searches under your name for years to come. There are some companies that will guarantee a complete scrub of all internet sites related to your arrest and mug shot record, but it can be extremely time consuming and expensive.

So what does a person with a felony arrest record do to make sure that their past doesn’t constantly haunt them? Unfortunately, there is no hard and fast or easy answer. The only thing you can do is to have a lawyer start defending your case immediately after you are arrested.  Attorneys are experienced and can help protect your rights and do everything possible to have your charges dismissed. Once the charges are dismissed, an experienced attorney will be able to minimize the effect of the court case and arrest. Record sealing and expunging is the most important step towards removing evidence that the case existed.

If you are facing any criminal charges in Broward County, Miami Dade County, Palm Beach County or simply have questions regarding any issues in criminal law, call 1-800-403-3887 to speak to an experienced criminal defense attorney today. Partners are available 24 hours a day 7 days a week for a free case evaluation.

Never speak to police or go to court without first speaking with a criminal defense attorney.
Remember, even fish would not get caught if they kept their mouth shut.

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How do I protect my driver license after a DUI arrest?

DUI Formal Review Hearing in Broward County, Fort Lauderdale, FL

Florida Suspended License AttorneyAfter you’ve been arrested for DUI in Fort Lauderdale and have either refused to provide a breath sample, or blew over 0.08 your driver license will be suspended immediately. The police will take away your physical driver license card and leave you with a fresh traffic ticket for a DUI. From the moment the traffic ticket is issued, you have 10 days to challenge the suspension. This process is known as the DUI Formal Review Process and it is extremely important to know about it because the police are certainly not going to help you.

I totally understand the roller coaster of emotions and events that happen after you are arrested for DUI. Exhaustion, fear, depression and anger are all very normal reactions but you can’t let them get the better of your good judgment.   I can’t begin to tell you how important it is to hire an attorney within the first few days of your arrest; your right to drive is in serious danger!

Your attorney can help you begin the process of administrative review as soon as you meet with him/her and retain their services. I have done these countless times and can explain how important it is to start this process so we can challenge the suspension and learn valuable information about your upcoming criminal case.

DMV administrative reviewsThe administrative process to remove the DUI suspension from your record is the first battle in the long war against your DUI charges in criminal court. The DUI suspension is not a criminal issue; it is administrative battle with the DMV. For most people, especially in South Florida where the public transportation is not the greatest or most efficient, the hardest consequence to deal with after being arrested is the driver’s license suspension.

Fort Lauderdale DUI Defense Attorney

Once we start the process of administrative review, you will receive a certificate in the mail, which serves as your permit to drive for a period of approximately 40 days. This permit gives you the ability to drive for “business purposes”. Business purposes includes work, school, church, doctor and to get food at the supermarket. There is no leisurely driving or going to the movies or Disneyland while driving on a temporary business purposes permit. During this 40 day period, your DUI attorney can set a hearing at the DMV and subpoena the arresting officers to come and give testimony. This hearing is known as an administrative hearing and your attorney is able to essentially cross examine and depose the arresting officer and gather valuable information about the circumstances of your traffic stop, investigation and arrest. Very often we learn information that was not written in any police report, which we can use later on during the criminal DUI case.

When the administrative hearing happens, we fight every single aspect of the investigation from start to finish and are always looking for ways to help the future DUI case. Depending on what we find out during the administrative hearing, we could even potentially get the DUI case thrown out before it gets to court. There are several ways to win the administrative review hearing; some of these ways are technicalities while others are based on legal issues. If the officer fails to appear at the hearing, the case will be dismissed for lack of officer participation. The police officer that arrested you has to prove to the DMV hearing officer all the elements of DUI in order to show that there was probable cause to arrest you and request a breath sample. If the officer is unable to prove that you were driving, then the suspension must be dismissed. The same goes for the reasons the officer gives for their initial contact with you. If the officer cannot prove a legal basis for stopping your car, then the arrest is unlawful and the suspension must be lifted. There are other reasons including the officers failure to follow proper protocols while administering the breath test or by assigning your case as a “Refusal” to submit to breath test when you actually did submit but for some reason could not comply with the breath volume requirement. There are several other ways for us to win the administrative hearing and get your license back. Call today to find out more.top_dui

If we win the administrative hearing, you get your driver license back and can drive as much or as little as you want without any restriction.   The information gathered at these hearings gives us a tremendous advantage moving forward with the criminal DUI process. It usually takes months before we can speak to an arresting officer through the discovery process that is if the Court will even permit us to take the deposition of the arresting officer. We are noticing more and more often that courts are reluctant to grant permission to take depositions on DUI cases. This is why going through with a DUI administrative hearing is so important.

Contact the Hollywood Florida DUI Attorneys at Dell & Schaefer to discuss your case today. Attorney Grant Schwarz provides free, confidential initial case evaluations so that you can feel confident that you are hiring the best DUI Attorney to represent you. Call 1-800-403-3887 today to schedule a phone or in person consultation.

We defend DUI cases in Hollywood and Fort Lauderdale, as well as all throughout Broward County, Miami Dade County, Palm Beach County and statewide Florida.

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I blew under the legal limit, why am I being charged with DUI?

Fort Lauderdale DUI attorney Grant Schwarz:

Whether you had 1 drink with dinner or 10 drinks on an empty stomach, if you are pulled over by a police and you have the odor of alcohol on your breath the odds are stacked against youroadside tests that the officer will initiate a DUI investigation. Depending on how you handle yourself, and most importantly the officer’s experience, you could end up getting arrested for DUI.

Should you be arrested for DUI, you must always remember to maintain your calm no matter what the officers says or does. We don’t want you ending up with more charges from an overzealous police officer. So what happens when you are faced with the dreaded Intoxilyzer 8000?  Florida law requires that anyone who holds a driver license submit to a lawful test of his or her breath to determine its alcohol content. While the police officer cannot force you to blow into the machine, there are consequences for refusing. The consequences and procedures following a refusal to submit to a breath test will need to be the subject of another blog post. Today we will be discussing what happens when you do blow, and the result is either 0.00 or below 0.08, Florida’s legal limit.

At a 0.08 breath alcohol level or above, you are presumed to be intoxicated. But what will happen when the reading is below the legal limit? Florida Statute 316.1934 gives us the answerhqdefault as to what happens. If breath test results show a breath-alcohol level of 0.05 or less, the law presumes that you are not under the influence of alcoholic beverages to the extent that your normal faculties are impaired.. Without more evidence showing that you are under the influence of some other substance, either a controlled or unlawful chemical substance as stated under Florida Statute 877.111, there should be no charges for DUI.

The statute goes on to explain what happens when the result is above 0.05 but less than 0.08. If this is the case, the law still does not presume that you were or were not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. However, the fact that you provided the breath sample, which showed the presence of alcohol, can still be used against you in a DUI case and will need to be considered with any other evidence gathered by the police officers to determine whether you were under the influence of alcoholic beverages to the extent that your normal faculties were impaired. This evidence could be in the form of a video or audio recording, witness testimony, police officer testimony, any admission by you that you had consumed other substances at that time.

The Office of Dell & Schaefer has been representing criminal defense clients since 1979. Lead Attorney Grant Schwarz is rated as a Top 100 Trial Lawyer by National Trial Lawyers, and ready to represent you and start fighting to defend your rights today. Contact the office of Dell & Schaefer if you or someone you know has been charged with a Florida DUI Offense.

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Can my probation be violated for being arrested?

Fort Lauderdale Criminal Defense Attorney Grant Schwarz.

Oftentimes, getting a probation sentence on a criminal case is considered a victory. This is especially true on more serious crimes and felonies and in most circumstances I would agree however with probation there is always the potential for violating. Violations of probation occuProbation-Violation-Lawyer-Lawsuit-Attorneyr in two situations: Technical and New Law. Examples of technical violations include missing an appointment with your probation officer, failing to make payments of restitution, not completing community service hours and/or failing a drug test. This is by no means a complete list of potential technical violations, but you get the idea; anything short of getting arrested for a new crime is considered “technical”. That leaves, new law violations and you probably guessed it; getting arrested for a new crime while you are on probation will result in a new law violation.

With either a technical violation or a new law violation, a warrant will be issued by the court and you will be taken into custody and usually held without bond until the violation is able to be resolved. Many times, technical violations can be worked out with reinstatements. Other times, new law violations require a trial. These violations of probation trials are known as “Final Hearings”.  Final hearings are bench trials which means that the judge hears all the evidence and makes a decision at the end, there are no juries.iStockPhoto SLC Minilypse-Judicial Court

At a final hearing, the state attorney is required to present evidence of the violation just like in a trial to prove you guilty of a crime. Proving a violation of probation can actually be pretty difficult for the state, especially when the violation is based on a new law arrest. It is not enough for the state to prove that you were arrested; they need to actually prove the crime.

This can work out very well for you if the arrest was in another county, or even another state where the prosecutor must work extra hard to get witnesses to fly in and testify against you. While the fact that you were arrested might have been good enough to bring you into court on a violation, without the actual evidence of the new offense, the state has no case. Some prosecutors don’t even realize this and lose violation of probation hearings because they cant prove the violation according to the requirements of law.   You don’t really need to have an arrest in another state or county stump the state while they’re trying to convict you of violating your probation, the out of state is just an example.

Situation going from bad to worse:

fish-2It is very easy to make your situation go from bad to worse.  It is never a good thing to be facing a violation of probation for a new law offense.  Don’t make matters worse by adding more violations on top of everything by not thinking carefully about your words and actions.  The important thing to remember in any criminal case, whether its a VOP or a new case, is to make sure you keep your cool and keep your mouth shut. Remember that even a fish would not get caught if he kept his mouth shut.

Do not ruin your defenses against the new law arrest by making the dumb mistake of creating a new technical violation, which is easy for the state to prove and here is why.  Technical violations are often proved by only using the probation officers testimony.    Standard probation terms include a condition that you must remain crime free, we understand this. But what some people do not realize is that you need to report to your probation officer if you have had any contact with law enforcement. If you had contact with law enforcement by getting arrested on even a bogus charge, but do not report it to your probation officer, you have just committed a technical violation. Even if the new charge is completely dropped, the failure to report it to the officer will result in a technical violation, a warrant being issued and you will be taken in and held without bond until the violation is resolved.

It is important to keep your mouth shut when it comes to any new law violations. Since you are facing a brand new criminal charge, you still have the right to remain silent. Use it! If you say anything to your probation officer about the new charge, by for example admitting everything, you have just sunk your potential chance at defending the new case and beating the violation.

If you or someone you know are currently facing a violation of probation or think one is coming down the line soon, please contact Fort Lauderdale Criminal Defense Lawyer Grant Schwarz for a free consultation.Criminal Defense Lawyer

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DUI for Weed: Can I get a DUI after smoking marijuana?

Fort Lauderdale Criminal Defense Attorney Grant Schwarz explains how yes, and how no.

So what’s the deal with marijuana and DUI’s? How come we don’t see them very often? Well, mostly because there aren’t any recognized roadside tests to determine impairment based onThe_Best_Advice_Weve_Ever_Heard_About_Medical_Cannabis
consumption of THC. Another reason is because the chemicals in marijuana will remain in your body long after the effects of the chemicals wear off. If you smoked last week, the high will likely wear off within a few hours.  However, the weed will still show up in your urine if you are tested today long after the effects are gone.  This can create a problem.

Most people know that traces of THC, the illegal ingredient in marijuana stays in your body for way longer than most other drugs. For example, cocaine will usually leave your system through urination after about 72 hours. Heroin can stay in the system of a heavy user for up to one week. The same type of body elimination occurs for most prescription painkillers like vicodin and percoset or other controlled substances like alprazolam (Xanax) or diazepam (valium), all of which are illegal to possess without a valid prescription.

So if there are no roadside tests for DUI based on marijuana, a breathalyzer will not register for consumption of marijuana, and everyone knows that weed stays in your system for weeks or longer, how could anyone be charged with DUI based on weed? I will tell you.

DUI law provides that the state of Florida can charge you with driving while your ability is impaired either by Alcohol; a chemical substance listed under chapter 877.111 or any controlled roadside testssubstance under chapter 893 Florida Statutes. Chapter 893 is where all of the illegal drugs are listed: Cocaine, heroin, MDMA, Crystal Meth and even Marijuana or Cannabis as its called in the statute book.

Ordinarily, if you are stopped by a police officer and you have recently smoked marijuana, aside from the distinctive and pungent smell of the smoke; you may exhibit some signs of “impairment” such as bloodshot eyes, dilated pupils or even a slow or slurred speech pattern in addition to laughing and increased appetite. The problem for the police to be able to pin these symptoms on illegal drugs use, the officer must be certified as a Drug Recognition Expert or DRE. There are not many DRE’s because it takes a significant amount of training and schooling to become certified, most officers do not care to take the extra time and work to achieve this level of certification. Good for us, bad for the police trying to arrest you for DUI based on cannabis use.

So in the standard type of DUI investigation, you might be able to avoid being arrested. But what if you were involved in a crash and someone was injured, even if the crash is not your fault?  Florida law provides that there are mandatory blood draws on cases involving serious bodily injury. If you are involved in a crash, and the police draw blood, which shows the presence of marijuana, you might be looking at potential charges of DUI.

The blood would however need to be analyzed closely. THC enters the body and is immediately broken down by your system into several other chemicals. These other chemicals are called “Metabolites” because your body metabolizes the chemicals, changing their structure while moving around in your bloodstream. Some of the metabolites that show up in the drug tests are known as Active Metabolites and some are called Inactive. Active meaning that the body is still breaking it down and that you are potentially still under the influence of the psychoactive properties of the chemical, the “High”.

The active cannabis metabolite is known as 11-Hydroxy-THC. The chemicals are then further broken down into what is called 11-COOH-THC which is is not psychoactive, but will stay in
the body of a marijuana user for several days or even weeks. This is the main metabolite tested for when blood or urine testing for cannabis use. More sophisticated tests are able to Actual THC Molecule for you science loversdistinguish between 11-OH-THC and 11-COOH-THC, which can help determine how recently cannabis was consumed. If the tests show that only 11-COOH-THC is present then the conclusion is that the marijuana was consumed too long ago for there to be any lasting high or impairment present. However, if both 11-OH-THC and 11-COOH-THC are present then the cannabis was consumed more recently and motor impairment may still be present.

The other type of scenario where an officer may be able to charge you with DUI is if you are arrested for suspicion of DUI, and then agree to submit to a breath test. If you have not consumed any alcohol, or if you have consumed a small amount of alcohol the results on the breath test will either read very low or even 0.0. If breath tests show up very low and officers believe you to be under the influence of chemical or controlled substances, an officer can request a urine sample. If you submit, and traces of cannabis metabolites show up you could be looking at a charge of DUI. If you refuse, you could still be looking at a DUI charge, but without either the testimony of a DRE or a urine test to confirm the officer’s suspicion, there will be very little evidence of actual impairment or even of any drug use at all.  This would also be a good time to remember not to speak to the police about any recent drug use,  see article about Talking to the Police.

Of course we are discussing hypothetical scenarios and no article or blog post could possibly encompass every minute detail of an encounter with police, a better course of action on your part is to avoid smoking marijuana in the car, and avoid driving after recently smoking. Police officers are constantly on the prowl for reasons to make an arrest, its almost like a sport. If you are driving and you smell like marijuana you can expect at a minimum that you will be detained for an extended period of time, while your vehicle is searched and potentially arrestdamaged by a drug sniffing dog or by the officers tearing apart your cars interior. The best defense against having an issue with the police is if you’re going to smoke, do it at home where you are safe and given the highest level of protection from the prying eyes of the government our constitution has to offer.

For any charges related to Possession of Cannabis or any drug as well as DUI in Broward Miami or Palm Beach, call Criminal Defense Attorney Grant Schwarz for a free consultation 24 hours a day.  Fill out this contact form to receive a confidential consultation.

Criminal Defense Lawyer

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