DUI

 

A conviction for Driving Under the Influence can have lifelong consequences, both personally and professionally.  Under Florida law, there is a wide range of possible penalties for DUI, including: imprisonment, fines, probation, vehicle impoundment, DUI school, and suspension of your license, to name a few. In fact, there are certain minimum penalties that the Court must impose if you're convicted. If you've been arrested for DUI, here are some things you should know.

 

Minimum Penalties for DUI Conviction

If you’re convicted of DUI (1st Offense), the Court is required to impose the following sanctions: Up to 6 months in jail; 1 year probation (combined with imprisonment); $250 to $500 fine; 6 months to 1 year license suspension; community service (at least 50 hours); substance abuse course (DUI school); and vehicle impoundment for 10 days. If you’ve previously been convicted of DUI, the penalties increase significantly depending on how many times you were convicted, and when those convictions occurred. 

 

Aggravating Factors (Enhancements)

In certain scenarios, the penalties for a DUI conviction will be enhanced. For example, if your blood alcohol level was .15% or higher, there was a minor in the vehicle at the time of your arrest, or there was an accident involving bodily injury or property damage, then the Court is required to impose enhanced penalties. 

 

You can get a DUI with a BAL under 0.08%. 

In Florida you can be convicted of DUI if you are caught driving with a blood alcohol level (BAL) of 0.08% or more. However, what you may not realize is that under Florida law, you can also be convicted of DUI if you drive under the influence of any amount of alcohol or drugs and your normal faculties are impaired. This means, it is possible to get a DUI, even if you are below the 0.08% legal limit. This is especially true in DUI's involving drugs, because often times your blood alcohol level will actually be lower than the legal limit. Usually, in cases involving drugs, the prosecutor will rely on blood or urine tests in order to prove their case. If the police failed to properly collect this evidence, we may be able to have the evidence thrown out, which could result in your charges being dismissed. 

 

You can get a DUI without driving.

Under Florida law, you can get a DUI if you are under the influence of alcohol, drugs, or a chemical substance to the extent your normal faculties are impaired, and you have “actual physical control” of a vehicle. What does this mean? Think of the scenario where you leave a bar, and fall asleep behind the wheel of your car in the parking lot. In this scenario, you could be arrested for DUI because you were in “actual physical control” of the vehicle. Unfortunately, it doesn’t matter that you had no intention of driving anywhere. 

 

If you refuse a chemical test, your license will be suspended automatically. 

Florida, much like other states, has enacted an implied consent law, which means that once you receive a Florida license, you agree to consent to a chemical test when a law enforcement officer asks you to take one (take a look at the bottom of your license). If you are asked to take a chemical test during a DUI stop and you refuse, your driver’s license will be automatically suspended for twelve months by the Department of Motor Vehicles. 

While the penalties for DUI are severe, there are also many defenses to a DUI charge. For example, if the police failed to collect evidence properly, the Court may throw the evidence out in a suppression hearing. If evidence is suppressed, it is possible that your case will be dismissed completely.  

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BUI

 

Southwest Florida is a boater’s paradise. Our inlets, bays, rivers, and access to the Gulf of Mexico, provide unlimited recreation for boaters and anglers. Indeed, many people move to Southwest Florida for this very reason. Unfortunately, when alcohol is involved, a beautiful day on the water can quickly lead to an arrest for Boating Under the Influence. Much like DUI, the penalties for BUI (even a first conviction), are severe.  Before you drop your boat in the water for the day, there are some important things that you must know in order to avoid an arrest for BUI. 

 

Consumption versus Impairment

The elements of a BUI are similar to a DUI. However, there are significant differences between operating a motor vehicle and operating a vessel (BUI applies to all vessels – not just boats). One of the main differences is that the open container law only applies to motor vehicles. What this means is that a passenger on board a vessel can consumer alcohol. However, this is not a license to operate a boat after you’ve been drinking. Much like a DUI, if the vessel’s operator has a blood alcohol level of .08% or higher, the operator can be arrested for BUI. Additionally, even if your BAC is under the legal limit, you can still be arrested for BUI if your normal faculties are impaired while operating the vessel. Much like a DUI, you can be arrested for BUI if you are in “actual physical control” of the vessel. What this means is that you don’t have to be actually driving the vessel in order to be arrested for BUI. 

 

Safety Checks

Unlike a DUI, where an officer must have a reasonable suspicion that you’ve committed a traffic infraction in order to stop your vehicle, law enforcement (or the Coast Guard depending on where you are boating) can board your vessel merely for the purpose of enforcing registration, safety, and fishing laws. If, during one of these checks, the officer observes that the operator is impaired, the officer will begin conducting a BUI investigation.  If your blood alcohol level is above .08% or your normal faculties are impaired, you can be arrested for BUI. 

 

Possible Penalties

Much like a DUI, penalties for BUI vary depending on the circumstances, including prior convictions, injuries, property damage, and other aggravating circumstances. Generally, if you’re convicted of BUI (first offense), you can expect probation, possible jail time, fines of $500-$1000, community service, and a ten day vessel impoundment. If you have a prior conviction for BUI, the penalties drastically increase, including minimum jail sentences. 

 

Refusal to Perform Tests for Blood Alcohol Content

Much like a motor vehicle, when you operate a vessel on Florida waters, you are consenting to be tested for the presence of alcohol, drugs, or other intoxicants, when requested by a law enforcement officer. If you fail to perform such tests when requested to do so, you can be fined $500 (for a first refusal). If you’ve previously refused such a test, a subsequent refusal is a first-degree misdemeanor, punishable by up to one year in jail. 

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Violent Crimes

 

If you’ve been arrested for a violent crime, you can expect that your case will be prosecuted aggressively. This is especially true if your charge involves the use or possession of a weapon or firearm. Depending on the nature of the charge, injuries to the victim, and your prior criminal history, you could be facing a significant prison sentence if you’re convicted. Additionally, if you’ve caused injury to another person, the prosecutor will seek restitution on behalf of the victim, which can be reduced to a civil judgment against you. 

 

As a former prosecutor, Mr. Marcus specialized in the prosecution of violent crimes. From homicide to misdemeanor assault, Mr. Marcus has the experience to aggressively fight on your behalf.  

 

• Assault

• Battery

• Felony Battery

• Battery on a Law Enforcement Officer

• Resisting an Officer With Violence

• Aggravated Assault

• Aggravated Battery

• Robbery

• Kidnapping 

• Homicide 

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Drug Charges

 

In Florida, drug charges can range from misdemeanor possession to first-degree felonies. The potential consequences vary depending on the substance involved, amount, and whether there was an intent to sell or distribute. Regardless of the charge, there are serious consequences for all drug charges, including possible jail or prison time, probation, fines, and a driver’s license suspension, just to name a few. 

 

Often times, your defense will depend on whether the police followed the law in gathering evidence. For example, if your vehicle was unlawfully stopped, you may be able to suppress (throw out) any evidence found as a result of that stop. As a former prosecutor, Mr. Marcus has extensive experience handling drug cases, including motions to suppress. 

 

Possession

The term “possession” can actually be misleading. That’s because under Florida law, you don’t have to actually possess the controlled substance in order to be convicted. We all understand that if an officer finds drugs on your person (in your pocket), the officer can arrest you for possession. However, Florida law also allows the officer to arrest you if there’s “constructive possession” of a controlled substance. The term “constructive possession” means that you were aware the substance was present, the substance was in your control, and you knew the substance was illegal (think about the scenario where you are a passenger in a car, and drugs are found while the officer is searching the car). 

 

The penalties for possession depend on the type of substance, as well as the amount. For example, possession of marijuana under 20 grams is a first-degree misdemeanor. Possible penalties include up to one year in jail, probation, fines, and a mandatory license suspension. Possession of marijuana over 20 grams is a third-degree felony, punishable by up to five years in prison, probation, fines, and a mandatory license suspension. 

 

Possession of other controlled substances, such as cocaine or oxycodone, is a felony regardless of how much you possess. In fact, depending on the amount, a possession charge could escalate into a drug trafficking charge, which carries a minimum state prison sentence. For example, possession of 28 grams of cocaine is considered trafficking, and carries a minimum prison sentence of at least three years.  These penalties apply regardless of whether you are in actual or constructive possession of the substance. 

 

Additionally, penalties are enhanced if you possess drugs with the intent to distribute. Several factors contribute to an intent to distribute, such as individual packaging, large quantities of narcotics, and other paraphernalia such as scales and baggies.  

 

If you’ve been charged with possession (regardless of the substance), it is essential that you speak with an experienced attorney. There is no such thing as “simple possession.” Even a first-degree misdemeanor can have drastic consequences. 

 

Sale

As you might expect, the penalties for sale of a controlled substance are usually far more serious than possession. This is especially true if the controlled substance is being sold within 1,000 feet of certain locations, for example a school, church, or park. Much like possession, the potential penalties vary based on the substance involved, but can include lengthy minimum mandatory prison sentences. This means that if you’re convicted, the judge will have no choice but to send you to prison. 

 

Additionally, even if you don’t actually sell the controlled substance, you can be arrested for possession with intent to distribute. Several factors are considered in order to determine an intent to distribute. If the substance is contained in multiple individual packages, or you possess a large quantity of the substance, or have additional paraphernalia in your possession (scale, baggies, etc.), you may be arrested for possession with intent to distribute. 

 

As a former prosecutor, Mr. Marcus has extensive experience with drug cases. 

 

Trafficking

Most people understand that if they are caught with drugs, they are going to be arrested. What most people don’t know is that possession can actually lead to a drug trafficking charge. For example, if you possess 28 grams of cocaine, that is considered a trafficking weight, which is a first-degree felony, punishable by up to 30 years in prison. Depending on the substance, the trafficking weight can be even lower. For example, possession of 4 grams of an opoid (oxycodone) – without a prescription - is considered trafficking, and is a first-degree felony.

 

If you are convicted of drug trafficking, the Court is required to impose a minimum prison sentence (usually 3 years). The Court has no discretion to waive this requirement.  If you’ve been arrested for trafficking, it is essential that you speak with an experienced attorney. 

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Burglary

In Florida, a burglary is defined as an unlawful entry into a structure or conveyance with an intent to commit an offense therein. In other words, breaking into a home, building, or vehicle in order to commit a crime inside. The classic example is breaking into a home, business, or car to steal something.

 

However, burglary does not require a forcible entry. In other words, there is no requirement that you actually break something before entering. That means you can be convicted even if you don’t smash a window or force open a door. Simply entering with an intent to commit a crime inside is enough for a burglary conviction. 

 

Additionally, the intent to commit any offense is sufficient for a burglary conviction. While theft is certainly the most common, many times a person intends to commit another offense. For example, if you unlawfully enter another person’s home to assault them, you can be convicted of burglary.    

 

The penalties for burglary vary depending on whether the burglary occurred in a home, a non-residential building, or a car/vehicle. At a minimum, a burglary is a third-degree felony, punishable by up to five years in prison. A burglary of a home is a second-degree felony, punishable by up to fifteen years in prison. And, depending on the type of burglary, the penalties can increase all the way up to life in prison. 

 

As a former prosecutor, Mr. Marcus has extensive experience handling all types of burglary charges. 

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Theft

 

In Florida, a person commits theft by taking or using someone else's property while having the requisite criminal intent. Specifically, Florida law states that a person commits theft when he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: 

 

• deprive the other person of a right to the property or a benefit from the property, or

• appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

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The punishment for theft varies depending on the value of the property in question. For example, if the value is less than $100, the theft is classified as a second-degree misdemeanor, punishable by up to 60 days in jail. If the value is between $100-$300, then the theft is classified as a first-degree misdemeanor, punishable by up to 1 year in jail. If the value is over $300, then the theft is a third-degree felony, punishable by up to 5 years in prison. Theft can also be classified as a first or second-degree felony, depending on the amount in question.

 

 

Additionally, theft of certain items, for example a firearm or motor vehicle, is automatically a third-degree felony regardless of the value. There are also potential civil liabilities for theft, including license suspension, and treble damages in a civil lawsuit (plus attorney’s fees).  

 

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Firearms Offenses

 

In Florida, the right to bear arms is one of our most fundamental and sacred freedoms. However, Florida also has some of the harshest penalties in the country for crimes involving the use or possession of a firearm. Under Florida law, if you are convicted of certain offenses (see below), you are subject to the “10-20-Life” law.  

 

• murder;

• sexual battery;

• robbery;

• burglary;

• arson;

• aggravated assault;

• aggravated battery;

• kidnapping;

• escape;

• aircraft piracy;

• aggravated child abuse;

• aggravated abuse of an elderly person or disabled adult;

• unlawful throwing, placing, or discharging of a destructive device or bomb;

• carjacking;

• home-invasion robbery;

• aggravated stalking;

• trafficking of certain drugs; or

• possession of a firearm by a felon.

 

Under the 10-20-Life law, if you’re convicted of one of these offenses, and actually possess a firearm, the Court is required to impose a minimum prison sentence of 10 years (3 years for aggravated assault, possession of a firearm by a convicted felon, and burglary of a conveyance, with some exceptions). If you are convicted of one of these offenses, and discharge a firearm, the Court is required to impose a minimum prison sentence of 20 years. And, if you’re convicted of one of these offenses, discharge a firearm, and as a result cause death or great bodily harm to another person, the Court is required to impose a minimum prison sentence of 25 years to life.

 

As a former prosecutor, Mr. Marcus specialized in the prosecution of offenses involving the use or possession of a firearm. 

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Juvenile Crimes

 

One of the most terrifying calls a parent can receive is that their child has been arrested. If your child is adjudicated delinquent (the equivalent of being convicted of a crime in the adult system), the consequences can be severe, and have life long implications. If your child has been arrested, it is essential that you contact an experienced attorney to discuss your child’s case. 

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What you need to know

In Florida, a juvenile is any person that is under eighteen at the time the alleged offense was committed. With the exception of traffic offenses, all criminal offenses committed by juveniles (misdemeanor or felony) are heard by a circuit court judge specifically assigned to the juvenile division. While the crimes and elements of proof are the same, there are significant differences between the juvenile system and the adult criminal justice system. 

 

Detention Hearings – In the adult criminal justice system, a defendant will go before the judge within 24 hours of an arrest for a “first appearance hearing.” The purpose of that hearing is for the court to determine whether there is probable cause to believe the offense was committed, and to establish a pretrial bond. The purpose of the bond is to protect the community, and ensure that the defendant appears at trial. However, in the juvenile criminal justice system there are no first appearance hearings. Instead, the court conducts “detention hearings.” Much like a first appearance, these hearings occur within 24 hours of the arrest (provided your child has not already been released by the Department of Juvenile Justice). At the detention hearing, the court will determine whether there is probable cause to believe that your child committed the offense. The court will also review what is known as a detention risk assessment. Depending on the severity of the offense, and your child’s prior criminal history, the court may order that your child be held for 21 days in secure detention. If you child does not qualify for secure detention, then your child will be placed on pretrial release, with certain conditions imposed by the court. 

 

Juveniles can be Charged as Adults– In some circumstances, the law allows the prosecutor to charge your child as an adult. Those circumstances include the nature of the charge, your child’s age, and prior criminal history. If your child is charged as an adult, he or she can be subject to the same sentences as adult offenders, including incarceration in state prison.  

 

Juvenile Justice Programs – In the adult criminal justice system, offenders are sentenced to a term of probation, incarceration, or in some cases both. In the juvenile criminal justice system, an offender can be sentenced to a term of probation. However, the court does not order a term of incarceration. Rather, the court will “commit” the offender to the custody of the Department of Juvenile Justice, for an assignment to a juvenile program. These programs range in severity and duration. They can last anywhere from 6 months to several years, again depending on the charge and your child’s prior criminal history.