Tag Archives: Identity Theft Crimes

December 21, 2011 · 10:37 pm

Possession of a controlled substance in violation of section 893.13(6)(a), Florida Statutes (2010). Is section 893.13 facially unconstitutional for the reasons expressed in Shelton v. Secretary, Department of Corrections, No. 6:07-cv-839-ORL-35, 2011 WL 3236040 (M.D. Fla. July 27, 2011).

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Possession of a controlled substance in violation of section 893.13(6)(a), Florida
Statutes (2010). Is section 893.13 facially unconstitutional for the reasons expressed in Shelton v.
Secretary, Department of Corrections, No. 6:07-cv-839-ORL-35, 2011 WL 3236040 (M.D. Fla. July 27, 2011).

The Florida 4th DCA disagrees and uphold the constitutionality of section 893.13 and conclude that section 893.101 does not create a strict liability crime. We find the reasoning of Shelton unpersuasive and decline to adopt its holding.

In Shelton, a judge of the United States District Court for the Middle District of Florida found section 893.13 to b e unconstitutional on substantive due process grounds. Shelton, 2011 WL 3236040 (M.D. Fla. July 27, 2011). The opinion concluded that section 893.101 removed all mens rea as an element from section 893.13, thereby creating a strict liability offense. Id. A s a strict liability offense, the court declared section 893.13 unconstitutional because its penalties are too severe. We first note that this court has already held that section 893.101, Florida Statutes, is constitutional. Wright v. State, 920 So. 2d 21 (Fla. 4th DCA 2005). Moreover, decisions of lower federal courts, including the facial constitutionality of a statute can be raised for the first time on direct appeal. Jean v. State, 764 So. 2d 605, 606 (Fla. 4th DCA 1999); Trushin v. State, 425 So. 2d 1126, 1129 (Fla. 1982).

Rrulings that a state statute violates the U.S. Constitution, are not binding on state courts; rather, they are persuasive, if well reasoned. State v. Dwyer, 332 So. 2d 333, 334-35 (Fla. 1976); Bradshaw v. State, 286 So. 2d 4, 6-7 (Fla. 1973), cert. denied, 417 U.S. 919 (1974). We find Shelton unpersuasive, as the decision is based on the faulty premise that section
893.101 removed all mens rea from section 893.13 offenses, such that a defendant is strictly liable for any unknowing possession or delivery. In our view, section 893.101 did not remove the guilty knowledge element from these offenses, thereby converting section 893.13 offenses into strict liability crimes. Instead, it merely abrogated the additional
“knowledge of illicit nature” element, added by the supreme court in Chicone v. State, 684 So. 2d 736 (Fla. 1996). Section 893.13 remains constitutional.

Courts are obligated to construe statutes in a manner which avoids an unconstitutional interpretation. State v. Giorgetti, 868 So. 2d 512, 518 (Fla. 2004). Interpretations of statutes as not requiring a mens rea element are disfavored, and absent clear legislative intent to dispense with scienter, courts will assume guilty knowledge is required and will
read a guilty knowledge component into a statute that is silent as to mens rea. Id. at 515-20. Although knowledge of presence is not expressly required by the text of section 893.13, such knowledge has always been required in drug possession cases. Id.; State v. Oxx, 417 So. 2d 287, 290 (Fla. 5th DCA 1982). Section 893.13 is no exception. Indeed, the standard jury instruction for possession of a controlled substance requires the jury find that “([d]efendant) had knowledge of the presence of the substance.” Fla. Std. Jury Instr. (Crim.)

In Chicone, the court recognized that “guilty knowledge” is required for a conviction under section 893.13 and that knowledge of presence must be established in a drug possession cases. Chicone, 684 So. 2d at 740-41. However, Chicone went further, creating an additional scienter requirement: Knowledge of the “illicit nature” of the substance. Id. at 744. The legislature superseded this fourth element with the enactment of section 893.101. Miller v. State, 35 So. 3d 162, 163 (Fla. 4th DCA 2010). See also Garcia v. State, 901 So. 2d 788, 791-93 (Fla. 2005)
(recognizing that “guilty knowledge” includes knowledge of presence and is an element of the offense of possession that must be proven beyond a reasonable doubt).
Lack of knowledge of the illicit nature of a substance is distinct from lack of knowledge of the presence of the substance. See Barrientos v. State, 1 So. 3d 1209, 1217 (Fla. 2d DCA 2009); De La Cruz v. State, 884 So. 2d 349, 351 n.1 (Fla. 2d DCA 2004). A defendant’s claim that he or she did not know that white powder was concealed in an item possessed is different from the claim that he or she did not know that the concealed powder was an illegal drug.

In response to the holdings in Chicone and Scott v. State, 808 So. 2d 166 (Fla. 2002), the legislature enacted section 893.101, which provides: (1) The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC94701 (Fla. 2002) and Chicone v. State, 684 So. 2d 736 (Fla. 1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent. (2) The Legislature finds that knowledge of th e illicit
nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to
the offenses of this chapter. (3) In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those cases where such
an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection. Id. (emphasis added). “The statute does two things: it makes possession of a controlled substance a general intent crime, no longer requiring the state to prove that a violator be aware that the contraband is illegal, and, second, it allows a defendant to assert lack of knowledge as an affirmative defense.” Wright, 920 So. 2d at 24 (emphasis added).

The statute does not indicate any intent to do away with all guilty knowledge or to remove knowledge of presence as a n element. A s such, “[a] defendant charged under section 893.13 can concede all the elements of the offense, i.e., possession of a specific substance and knowledge of the presence of the substance, and still be able to assert the defense that he
did not know of the illicit nature of the specific substance.” Burnette v. State, 901 So. 2d 925, 927 (Fla. 2d DCA 2005) (emphasis added). Section 893.101 recognizes that “actual or constructive possession” must be found for the presumption to apply. See also Fla. Std. Jury Instr. (Crim.) 25.7 (“[Y]ou are permitted to presume that (defendant) was
aware of the illicit nature of the controlled substance if you find that (defendant) was in actual or constructive possession of the controlled substance”) (emphasis added). The State must prove knowledge of presence in order to establish actual or constructive possession.3 Thus, the permissive presumption that a defendant knew the illicit nature of
the substance does not apply if a defendant is unaware of the presence of the substance. Section 893.13 offenses are general intent crimes and, although not expressly stated in the statute, require that the defendant voluntarily commit the proscribed act. See, e.g., Linehan v. State, 442 So. 2d 244, 246-48 (Fla. 2d DCA 1983) (describing the distinction between general and specific intent crimes). Contrary to the holding of Shelton, the statute does not punish strictly an unknowing possession or delivery.

Finally, the existence of the affirmative defense set out in section 893.101 undermines the notion that the legislature has created a strict liability crime. To this point, we agree with the reasoning set forth by the First District in its recent opinion of Flagg v. State, No. 1D11-2372, 2011 WL 4865137 (Fla. 1st DCA Oct. 14, 2011): [Shelton] misperceives the operation of the affirmative defense in section 893.101. The statute does not, as Shelton implied, require the defendant to establish his innocence by proving a lack of knowledge, see Wright, 920 So. 2d at 25 (explaining that section 893.101 “does not require the defendant to prove or disprove knowledge”); rather, the statute provides that if the defense is raised, the state has
the burden to overcome the defense by proving beyond a reasonable doubt that the defendant knew of the illicit nature of the drugs. Id.; see also Fla. Std. Jury Instr. (Crim.) 25.7 (explaining that the jury should find the defendant not guilty if they “have reasonable doubt on the question of The State is entitled to a jury instruction allowing a jury to infer knowledge of presence from actual or exclusive constructive possession. See State v. Williamson, 813 So. 2d 61, 64-65 (Fla. 2002); State v. Medlin, 273 So. 2d 394 (Fla. 1973). This inference allows the State to make a prima facie case of knowledge of presence without direct proof but does not eliminate knowledge of presence as an element that the jury must find to convict. Permissive inferences, which are also known as permissive presumptions, have repeatedly been upheld and ruled constitutional because they do not shift the burden of
proof. See County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 156-57 (1979); Walker v. State, 896 So. 2d 712, 715-20 (Fla. 2005). whether (defendant) knew of the illicit nature of the controlled substance”).

Furthermore, because lack of knowledge is not a defense to a true strict liability crime, the availability of the affirmative defense in section 893.101 undermines the essential premise in Shelton that the offenses in section 893.13 are strict liability crimes that may not be constitutionally punished as felonies. We hold that section 893.101 did not remove scienter from section 893.13 offenses and did not create an unconstitutional strict liability crime.

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Tagged as 2255 Motions, Accounting, Arson Kidnapping, Bank Fraud Crimes, Bankruptcy Fraud, burglary, Child pornography, Computer Crimes, Crimes, Crimes of Violence, Criminal Mischief, Cruelty to Animals, Domestic, Domestic Violence, Drug Charges, DWI & DUI, Embezzlement, False Statements, Federal, Federal Criminal Defense, Federal Drug Crimes, Federal Sex Crimes, Felonies, Fighting/Disorderly Conduct, Firearms Crimes, Florida Federal and State Criminal Law Practice, Forgery, Fraud Crimes, Harassment, Health Care Fraud, Homicide/Manslaughter, Identity Theft, Identity Theft Crimes, Import-Export Crimes, including pornography charges, Insurance Fraud, International Extradition, Mail Fraud Crimes, manufacturing, Money Laundering Crimes, Mortgage Fraud Crimes, No Valid DL, Oxycodone Trafficking, Perjury Crimes, Possession of Cocaine, Possession of Marijuana/Paraphernalia, RICO Crimes, Robbery, Seal or Expunge Record, Selling or, Sex crimes, Shoplifting, suspended license, Tax Evasion Crimes, Theft, Traffic violations, Vehicular Assault, Violence and Battery, Weapons charges, Wire Fraud, Wire Fraud Crimes

December 21, 2011 · 10:14 pm

Charges under Section 800.04 in Florida of both lewd or lascivious molestation and lewd or lascivious conduct violate double jeopardy

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Charges under Section 800.04 of both lewd or lascivious molestation and lewd or lascivious conduct violate
double jeopardy.

The Fifth Amendment “protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989).

Because double jeopardy issues involve purely legal determinations, the standard of review is de novo. See Trotter v. State, 825 So. 2d 362, 365 (Fla. 2002). Sections 800.04(5)(a) and 800.04(6)(a) for conduct against the same victim during the same episode are duplicative and violate double jeopardy. Section 800.04, Florida Statutes, defines various lewd or lascivious offenses under Florida law. Subsection (5)(a) defines lewd or lascivious molestation, providing in pertinent part as follows: “A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.” § 800.04(5)(a), Fla. Stat. (2004).2 Subsection (6)(a) defines lewd or lascivious conduct, providing that a person who “[i]ntentionally touches a person under 16 years of age in a lewd or lascivious manner … commits lewd or lascivious conduct.” § 800.04(6)(a), Fla. Stat. (2004). State v. Paul, 934 So. 2d 1167 (Fla. 2006), receded from in part by Valdes v. State, 3 So. 3d 1067 (Fla. 2009). In Paul, the defendant had touched the victim in the genital area over the clothing and kissed the victim on the neck while in the living room. For the episode in the living room, the defendant was convicted of lewd and lascivious molestation under section 800.04(5)(a) for touching
the victim’s genitals, and lewd and lascivious conduct under section 800.04(6)(a) for kissing the neck.

In Gordon v. State, as cited in Paul, our supreme court explained: “The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’” 780 So. 2d 17, 19 (Fla. 2001), receded from in part by
Valdes (quoting M.P. v. State, 682 So. 2d 79, 81 (Fla. 1996)). If there is no clear “legislative intent to authorize separate punishments for two crimes” then a court employs the use of the Blockburger3 test “to determine whether separate offenses exist.” Id. at 19-20. Finding no clear statement of legislative intent in its review of section 800.04, the
Paul court applied the codified Blockburger analysis set forth in section 775.021. Paul, 934 So. 2d at 1172. Noting that the Blockburger test applies to crimes occurring in only
one criminal transaction or episode, the Paul court explained that the first step is to review whether there was one criminal episode or multiple episodes. Id. In determining whether offenses occurred during a single criminal episode, courts must “look to whether there are multiple victims, whether the offenses occurred in multiple locations, and whether
there has been a temporal break between offenses.” Id. at 1172-73 (citation and internal quotations omitted).

A court must then “apply the Blockburger test to each criminal episode to determine whether multiple punishments are authorized.” Id. at 1173. The Blockburger “same elements” test “prohibits courts from imposing multiple convictions for an act or acts which occur in one criminal episode if each offense does not contain at least one element distinct from the other offenses.” Id. at 1172. Under the “same elements” test, each offense is considered separate “‘if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.’” Id. at 1173 (quoting § 775.021(4)(a), Fla. Stat. (2005)) (emphasis in Paul).

In reference to offenses under sections 800.04(5)(a) and (6)(a), the Paul court explained: In comparing the elements of sections 800.04(5)(a) and 800.04(6)(a), we hold the same elements test will not permit multiple convictions. Specifically, section 800.04(6)(a)(1) defines “lewd or lascivious conduct” as a n y intentional touching of “a person under 16 years of age in a lewd or lascivious manner,” while section 800.04(5)(a) defines “lewd or or lascivious molestation” as the intentional touching “in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator.” § 800.04, Fla. Stat. (1999).

Any violation of subsection (5)(a), which prohibits the lewd touching of particular body parts of a person under sixteen years of age, will also violate subsection (6)(a), which simply prohibits any lewd touching of a person under sixteen years of age. Thus, one cannot say “each offense has an element that the other does not.” While subsection (5)(a) has an element that subsection (6)(a) does not, the converse is not true – that (6)(a)(1) has an element (5)(a) does not. Therefore, dual convictions and punishments are not permitted for these violations. Id. at 1173-74 (emphasis in original). The court concluded that Paul could not be convicted of both a violation of section 800.04(5)(a) and section 800.04(6)(a)(1) for the two acts in the living room.

You cannot be convicted of both when the two charges arose out of one criminal episode, and both acts were performed on one victim in the same location and with practically no temporal separation. S e e Paul. Furthermore, the “same elements” test establishes that both section 800.04(5)(a) and section 800.04(6)(a) are for conduct in the same criminal episode. Id. at 1173-74. Therefore, his conviction and sentences for both crimes violates double jeopardy.

When dual convictions of the same degree are found to violate double jeopardy, the proper remedy is to “vacate the conviction and sentence on one of those counts.” Binns v. State, 979 So. 2d 439, 442 (Fla. 4th DCA 2008).

At the Law Office of Edward J. Chandler, P.A., our clients come first. Every client is treated with courtesy and is guaranteed effective representation. Our experience and integrity have earned us a reputation as one of Florida’s premier legal firms.

Attorney Chandler knows the system. He knows how to win jury trials. He prides himself on getting a just result for his clients. He believes you deserve a fair outcome. His consistent track record of uncompromising ethics instills confidence and trust.

Since 1991, attorney Edward J. Chandler, Esq. is dedicated to achieving the best outcome for every client. With the Law Office of Edward J. Chandler, P.A. on your side, you will come out on top.

Aggressive and Effective Legal Representation for Divorce, Child Custody and Federal and State Criminal Defense!

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AGGRESSIVE EXPERIENCED CRIMINAL DEFENSE

Edward J. Chandler, Esq. is a dedicated legal professional well-versed in criminal law since 1991 in the State of Florida and Federal court. He brings his legal experience to the table to fight for you. This gives the Law Office of Edward J. Chandler, P.A. an edge when dealing with complex legal matters.

Whether you are looking at 6 months in the county jail or life in prison, you need an experienced trial attorney on your side.

Don’t waste your money on an attorney without
the experience or the courage required to help you get the results you need and deserve for your case. Ask the other guys about how much experience they really have, then give attorney Edward J. Chandler a call
at 954-788-1355. Edward J. Chandler, Esq. has 20 years experience as a trial attorney and will tell you the truth about what he can (or can not) do to help you.

His goal is to represent his clients, as he would want to be represented, always putting their interests first and diligently working to fully understand and serve their needs. In short, to do whatever it takes for the successful resolution of their cases.

In criminal cases my fees are based on the seriousness of the charges (felony or misdemeanor, prior offenses, etc), where the case stands, and the amount of work and court dates we anticipate. For experience and sound legal counsel, call the professionals at The Law Office of Edward J. Chandler, P.A. today!

Edward J. Chandler, Esq.has been practicing criminal law in Florida since 1991.

No single element is more crucial in creating a successful relationship between a client and a law firm than the quality of the service performed by the professionals involved. “Quality,” of course, is expressed by key characteristics such as knowledge, skill, experience and dedication. In that sense, it is an intangible. An expression of quality is strategic problem solving which takes the form of expert legal counsel and, when necessary, aggressive court action.

The Law Office of Edward J. Chandler, P.A. offers free initial consultations.
He represents those under investigation or arrested for Federal and State crimes and will take your case to trial if necessary.He will file necessary pre-trial motions such as a motion to suppress a search, evidence or statements made in violation of your constitutional rights, and can file a motion to dismiss the charges.

FEES:

In criminal cases my fees are based on the seriousness of the charges (felony or misdemeanor, prior offenses, etc), where the case stands, and the amount of work and court dates we anticipate.I usually charge flat fees, so you won’t have any surprises.
I will take credit cards if that makes it easier for you.
If you have special circumstances or needs, a payment plan is possible.
I work in courts in Broward County, Dade County and Palm Beach County. Fort Lauderdale, Miami and West Palm Beach.

FEDERAL CRIMINAL DEFENSE:Facing federal charges is a stressful experiences, even with one of the best Federal Criminal Defense Attorneys in Florida at your side.

By the time you realize that you are the target of federal criminal investigation, the government has already built a strong case against you. The Feds and its criminal investigative agencies, DEA, FBI, Homeland Security, and the Treasury Department, have almost unlimited material and human resources to prosecute their cases. Federal prosecutors obtain conviction in more than 95 percent of federal criminal trials!

The U.S. sentencing guidelines, although not mandatory anymore since Booker, are still used in the sentencing process and the guidelines are harsh. The federal criminal justice system does not usually provide for parole. In most cases, convicted individuals will serve most of their sentences except the last six months in a half way house.. All these issues make defending against federal charges more complex.

I can help and as your attorney who may impact the government’s case by various strategic and legal procedural methods to gain an advantage possibly in a motion for suppression of evidence, and possibly a case dismissal, reduction of charges, or a favorable plea bargain.

I am prepared to take it all the way to trial if necessary.

Your chances of a successful outcome of your case depends on how soon I get involved as your lawyer. You should be represented as soon as you discover that you are under investigation, or as soon as possible after your arrest. If you are a target of grand jury inquiries or federal investigation, I can help. I can handle all federal criminal charges including:

* Federal Drug Crimes
* Firearms Crimes
* Bank Fraud Crimes
* Wire Fraud Crimes
* Accounting Fraud Crimes
* Bankruptcy Fraud
* Embezzlement
* Forgery
* Tax Evasion Crimes
* Insurance Fraud
* Money Laundering Crimes
* Mortgage Fraud Crimes
* Identity Theft Crimes
* Health Care Fraud Crimes
* Mail Fraud Crimes
* False Statements
* Perjury Crimes
* Computer Crimes
* International Extradition
* Federal Sex Crimes, including pornography charges
* Federal Import-Export Crimes
* RICO Crimes

Florida Federal and State Criminal Law Practice
Drug Charges
DWI & DUI
Sex crimes
Felonies
Seal or Expunge Record
Federal Criminal Defense
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DWI & DUI
Burglary
Robbery
Domestic Violence
Child pornography
Possession of Cocaine
Oxycodone Trafficking
Selling or manufacturing
Wire Fraud

Crimes of Violence
Theft
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Forgery
Identity Theft

Vehicular Assault
Homicide/Manslaughter
Criminal Mischief
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Kidnapping
- Traffic violations
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- Domestic Violence and Battery
- Shoplifting
- Harassment
- Fighting/Disorderly Conduct
- Cruelty to Animals
- Possession of Marijuana/Paraphernalia.
- Weapons charges
- Child Pornography

Choosing The Best Criminal Attorney For Your CaseAnyone facing an allegation that they have violated state or federal law needs a strong and knowledgeable criminal defense attorney they can respect and trust. Money, jailtime, and even someone’s life may be on the line and a criminal lawyer has to be trusted to fight hard for his client’s best interests.

Edward Chandler is dedicated to helping people who are facing criminal authorities in arrests, allegations, investigations, trials, or appeals. He is a criminal defense lawyer who wants what is best for each client, and works hard to find a resolution that will most likely help his client to erase the past and begin a new future. Time and again, he has gained dismissals, acquittals and reductions for his clients.

Before deciding on the right criminal defense lawyer for your case, you should talk with the attorney and get a feel for how you will work together. There’s no bond like that between a criminal defense lawyer and his client, and deciding who to hire as your criminal defense attorney may be the most important decision of your life.

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December 21, 2011 · 10:13 pm

Probable Cause for issuance of Search Warrant in Florida

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Probable Cause for issuance of Search Warrant in Florida

Where the issuance of a search warrant based upon a probable cause affidavit is at issue, the reviewing court is required to give “great deference” to the magistrate’s probable cause determination. State v. Abbey, 28 So. 3d 208, 210 (Fla. 4th DCA 2010) (quoting State v. Rabb, 920 So. 2d 1175, 1180 (Fla. 4th DCA 2006) (other internal quotation
marks omitted)). The “duty of reviewing courts is simply to ensure that the magistrate had a substantial basis for . . . concluding that probable cause existed.” Rabb, 920 So. 2d at 1180 (internal quotation marks and alterations omitted).

The magistrate’s duty “is simply to make a practical, common-sense decision, whether, given all the circumstances set forth [within the four corners of] the affidavit before him . . . there is a fair probability that . . . evidence of a crime will be found in a particular place.” Id. at 1180 (quoting DeLaPaz v. State, 453 So. 2d 445, 446 (Fla. 4th DCA 1984)); see also Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002) (to determine whether probable cause exists, the court must make a judgment based on the totality of the circumstances).

Good Faith Exception. Garcia v. State, 872 So. 2d 326, 330 (Fla. 2d DCA 2004), held that, where there is a lack of facts, a real paucity of facts, a very weak
case, the law is well established that where “the supporting affidavit fails to establish probable cause to justify a search, Florida courts refuse to apply the good faith exception.” When an affidavit for a search warrant is so lacking in indicia of probable cause “as to render an official’s belief in its existence entirely unreasonable,” the good faith exception is not
applicable. Dyess v. State, 988 So. 2d 146, 149 (Fla. 1st DCA 2008) (quoting Montgomery v. State, 584 So. 2d 65, 68 (Fla. 1st DCA 1991)). The good faith exception does not apply where the affidavit is so lacking in probable cause and fails to establish a nexus between the objects of the search and the residence to be searched. Gonzalez v. State, 38 So. 3d 226, 230 (Fla. 2d DCA 2010); Garcia, 872 So. 2d at 330. Although a magistrate’s probable cause determination is entitled to “great deference” when based upon a probable cause affidavit, the court
should not defer if there is no substantial basis for concluding that probable cause existed. Rabb, 920 So. 2d at 1180-81. As stated in Polk v. Williams, 565 So. 2d 1387 (Fla. 5th DCA 1990): Probable cause is a practical common-sense question. Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 543 (1983). It is the probability of criminal
activity, and not a prima facie showing of such activity which is the standard of probable cause. Spinelli v. U.S., 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). The
determination of probable cause involves factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Brinegar v.
U.S., 338 U.S. 160, 176, 69 S. Ct. 1302, 1311, 93 L. Ed. 1879, 1891 (1949).

“As long as the magistrate had a substantial basis for concluding that search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Illinois v. Gates, 462 U.S. at 236, 193 S. Ct. at 2331, 76 L. Ed. 2d at 547. Polk, 565 So. 2d at 1391. See also Pagan, 830 So. 2d at 806.

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December 21, 2011 · 3:58 pm

KNOW YOUR RIGHTS!

KNOW YOUR RIGHTS!

Aggressive and Effective Legal Representation for Divorce, Child Custody and Federal and State Criminal Defense!

Serving Broward, Dade and Palm Beach Counties

“Since 1991 – When Experience Counts”

“FULL SERVICE LAW FIRM”

Payment Plans Available

FREE INITIAL CONSULTATION

Law Office

Edward J. Chandler, P.A.

708 East Atlantic Blvd.

Pompano Beach, Fl 33060

Tel: (954) 788-1355
Fax (954) 788-1357

ejcflalaw@gmail.com

When your future is on the line…Call the Law Offices of Edward J. Chandler, P.A. at (954) 788-1355 24/7 immediately! Your phone consultation is free and completely confidential.

My goal is to represent my clients as I would want to be represented, always putting their interests first, diligently working to fully understand and serve the clients’ needs. In short, to do whatever it takes for the successful resolution of the
clients’ causes.
If you are being investigated or charged with a Federal or State criminal offense, you need to seek the advice of Edward J. Chandler, Esq., an experienced Florida Federal and State criminal defense attorney since 1991! Right now, you may be filled with fear, confusion, embarrassment, and anger. You probably have a thousand questions and want to know your rights and how to proceed. With your future as stake, you need to think smart and speak with an experienced Florida criminal defense lawyer as soon as possible.

Since a criminal conviction may affect your future, your reputation and your chances of getting a job, it is critical that you seek out an experienced Florida criminal defense attorney such as Edward J, Chandler, as soon as you are being investigated or charged with a Federal or State criminal offense. The right Florida criminal defense lawyer can evaluate your case, determine legal strategies, and defend you in court, increasing your likelihood of staying out of jail and protecting your future.

Given the complexity of criminal defense in Florida, it is important that you choose a Florida criminal defense lawyer that knows the Federal and State systems, and who combines experience with a track record, and who has a thorough understanding and familiarity with the law, the prosecutors and the local courts. If you have been accused of a crime, your time to get the right experienced Federal or State criminal defense attorney is limited. Regardless of whether you are innocent or guilty, you deserve aggressive, experienced legal representation.

Violating the laws in Florida can result in harsh punishments, such as incarceration and fines. However, being charged with a Federal or State criminal offense does not have to devastate your entire life. Edward J. Chandler, Esq, is here to ensure that you get your life back, your peace of mind and your freedom. “I employ an aggressive defense, often convincing the prosecution to reduce the charges against you or, in some cases, dismissing them. My sole priority is to achieve a resolution that you can live with.”

Attorney Edward J. Chandler has successfully represented numerous clients charged with criminal offenses throughout the State of Florida. Edward J. Chandler prides himself on aggressive representation with a personal touch. Armed with Federal and State legal knowledge and experience, he can build a winning defense. Edward J. Chandler, Esq. is accustomed to taking on the criminal justice system and achieving the best results for his clients. In addition to personally handling your case from investigation, arrest, bond hearing, arraignment, discovery and through jury trial, Edward J. Chandler, Esq. will be available to you during every step of the criminal procedure. Edward J. Chandler guarantees that you and your case will receive his undivided attention.

When your future is on the line…Call the Law Offices of Edward J. Chandler, P.A. at (954) 788-1355 24/7 immediately! Your phone consultation is free and completely confidential.

Professional Organizations:

* Florida Bar since 1991
* Broward County Bar Association
* Association of Trial Lawyers of America -ATLA
* Federal Bar
* Federal Court -Southern and Middle Districts of Florida
* Supreme Court of United States
* 4th District Court of Appeals
* 11th Circuit Court of Appeals
* United States Tax Court

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Filed under Attorney, Broward County, Criminal defense, Florida law, Law, Lawyer, Uncategorized

December 21, 2011 · 1:45 am

UNITED STATES SENTENCING COMMISSION GUIDELINES

Welcome to the

Law Offices

Edward J. Chandler, P.A.

708 East Atlantic Boulevard Telephone: (954) 788-1355
Pompano Beach, Fl 33060 Facsimile: (954) 788-1357
Call Today! 24/7 “FROM ARREST TO TRIAL “
UNITED STATES SENTENCING COMMISSION GUIDELINES MANUAL
TABLE OF CONTENTS
Page
CHAPTER ONE – Authority and General Application Principles . .. . . . . . . 1

Part A-Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 1
Part B-General Application Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CHAPTER TWO – Offense Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Part A-Offenses Against the Person . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
1. Homicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    . . 45
2. Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     . . 48
3. Criminal Sexual Abuse and Offenses Related to
Registration as a Sex Offender . . . . . . . .                                                   54
4. Kidnapping, Abduction, or Unlawful Restraint . . . . . . . . . . . . . . . . .    . 67
5. Air Piracy and Offenses Against Mass Transportation Systems . . . . . . . 70
6. Threatening or Harassing Communications,
Hoaxes, Stalking, and Domestic Violence . .                                              . 72
Part B-Basic Economic Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
1. Theft, Embezzlement, Receipt of Stolen Property, Property Destruction, and
Offenses Involving Fraud or Deceit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
2. Burglary and Trespass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 104
3. Robbery, Extortion, and Blackmail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .107
4. Commercial Bribery and Kickbacks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
5. Counterfeiting and Infringement of Copyright or Trademark . . . . . . . . . . . . . . 117
6. Motor Vehicle Identification Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .122
Part C-Offenses Involving Public Officials and Violations
of Federal Election Campaign Laws . .                                                                 124
Part D-Offenses Involving Drugs And Narco-Terrorism . . . . . . . . . . . . . . . . . . . . . 125
1. Unlawful Manufacturing, Importing, Exporting, Trafficking, or Possession;
Continuing Criminal Enterprise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
2. Unlawful Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 181
3. Regulatory Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Part E-Offenses Involving Criminal Enterprises and Racketeering . . . . . . . . . . . . . 185
1. Racketeering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
2. Extortionate Extension of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
3. Gambling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 189
4. Trafficking in Contraband Cigarettes and Smokeless Tobacco . . . . . . . . . . . . 190
5. Labor Racketeering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
Part F-[Deleted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
Part G-Offenses Involving Commercial Sex Acts, Sexual Exploitation of Minors,
and Obscenity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
1. Promoting A Commercial Sex Act or Prohibited Sexual Conduct . . . . . . . . . 196
2. Sexual Exploitation of a Minor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 203
3. Obscenity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Part H-Offenses Involving Individual Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
1. Civil Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
2. Political Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
3. Privacy and Eavesdropping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 220
4. Peonage, Involuntary Servitude, and Slave Trade . . . . . . . . . . . . . . . . . . . . . . . . . 222
Part J-Offenses Involving the Administration of Justice . . . . . . . . . . . . . . . . . . . . . . . 225
Part K-Offenses Involving Public Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
1. Explosives and Arson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234
2. Firearms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
3. Mailing Injurious Articles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
Part L-Offenses Involving Immigration, Naturalization, and Passports . . . . . . . . . . . . . 255
1. Immigration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
2. Naturalization and Passports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 261
Part M-Offenses Involving National Defense and Weapons of Mass Destruction . . . . . 266
1. Treason . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
2. Sabotage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
3. Espionage and Related Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267
4. Evasion of Military Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272
5. Prohibited Financial Transactions and Exports, and Providing Material Support
to Designated Foreign Terrorist Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272
6. Nuclear, Biological, and Chemical Weapons and Materials, and Other Weapons
of Mass Destruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 276
Part N-Offenses Involving Food, Drugs, Agricultural Products, and Odometer Laws . 280
1. Tampering with Consumer Products . . . . . . . . . . . . .. . . . . . 280
2. Food, Drugs, and Agricultural Products . . . . .. . . . . . . . . . . . . 282
3. Odometer Laws and Regulations . . . . . . . . . . . . . . . . . . . . . 283
Part O-[Not Used]
Part P-Offenses Involving Prisons and Correctional Facilities .. . 284
Part Q-Offenses Involving the Environment . . . . . . . . . . . . . . . 288
1. Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
2. Conservation and Wildlife . . . . . . . . . . . . . . . . . . . . . . . . .. . 295
Part R-Antitrust Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
Part S-Money Laundering and Monetary Transaction Reporting .. . . 302
Part T-Offenses Involving Taxation . . . . . . . . . . . . . . . . . . . . . . . . 308
1. Income Taxes, Employment Taxes, Estate Taxes, Gift Taxes,
and Excise Taxes (Other Than Alcohol, Tobacco, and Customs Taxes) . 308
2. Alcohol and Tobacco Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
3. Customs Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
4. Tax Table . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
Part U-[Not Used]
Part V-[Not Used]
Part W-[Not Used]
Part X-Other Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 321
1. Conspiracies, Attempts, Solicitations . . . . . . . . . . . . . . . . . . . . . 321
2. Aiding and Abetting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .324
3. Accessory After the Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
4. Misprision of Felony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 326
5. All Other Felony Offenses and Class A Misdemeanors . . . . . . . . 326
6. Offenses Involving Use of a Minor in a Crime of Violence . . . . . . 328
7. Offenses Involving Border Tunnels . . . . . . . . . . . . . . . . . . . . . . . 329
Part Y-[Not Used]Part Z-[Not Used]
CHAPTER THREE – Adjustments . . . . . . . . . . . . . . . . . . . . . . . . 330
Part A-Victim-Related Adjustments . .. . . . . . . . . . . . . . . . . . . . . . 330
Part B-Role in the Offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
Part C-Obstruction and Related Adjustments . . . . . . . . . . . . . . . . 343
Part D-Multiple Counts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
Part E-Acceptance of Responsibility . . . . . . .. . . . . . . . . . . . . . . . . 361
CHAPTER FOUR – Criminal History and Criminal Livelihood . . . 364
Part A-Criminal History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364
Part B-Career Offenders and Criminal Livelihood . . . . . . . . . . . . 380
CHAPTER FIVE – Determining the Sentence . . . . . . . . . . . . . .. . 391
Part A-Sentencing Table . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392
Part B-Probation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 394
Part C-Imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 403
Part D-Supervised Release . . . . . . . . . . . . . . . . . . . . . . . . . . . 409
Part E-Restitution, Fines, Assessments, Forfeitures . . . . . . . . . .. 418
Part F-Sentencing Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426
Part G-Implementing the Total Sentence of Imprisonment . . . . . 432
Part H-Specific Offender Characteristics . . . . . . . . . . . . . . . . . 440
Part I-[Not Used]
Part J-Relief From Disability . . . . . . . . . . . . . . . . . . . . . . . . . . 445
Part K-Departures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446
1. Substantial Assistance to Authorities . . . . . . . . . . . . . . . . . . 446
2. Other Grounds for Departure . . . . . . . . . . . . . . . . . . . . . . . 447
3. Early Disposition Programs . . . . . . . . . . . . . . . . . . . . . . . . . 464
CHAPTER SIX – Sentencing Procedures, Plea
Agreements, and Crime Victims’ Rights . . . . 465
Part A-Sentencing Procedures . . . . . . . . . . . . . . . . . . . . . . . 465
Part B-Plea Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 469
CHAPTER SEVEN – Violations of Probation and Supervised Release . . . 474
Part A-Introduction to Chapter Seven . . . . . . . . . . . . . . . . . . 474
1. Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474
2. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474
3. Resolution of Major Issues . . . . . . . . . . . . . . . . . . . . . . . . 475
4. The Basic Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . .477
5. A Concluding Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 477
Part B-Probation and Supervised Release Violations . . . . . . . . 479
CHAPTER EIGHT – Sentencing of Organizations . . . . . . . . . . 487
Part A-General Application Principles . . . . . . . . . . . . . . . . . .. . 488
Part B-Remedying Harm from Criminal Conduct, and Effective Compliance
and Ethics Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492
1. Remedying Harm from Criminal Conduct . . . . . . . . . . . . . . . . 492
2. Effective Compliance and Ethics Program . . . . . . . . . . . . . . . 495
Part C-Fines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501
1. Determining the Fine – Criminal Purpose Organizations . . . .. 501
2. Determining the Fine – Other Organizations . . . . . . . . . . . . . 501
3. Implementing the Sentence of a Fine . . . . . . . . . . . . . . . . . 517
4. Departures from the Guideline Fine Range . . . . . . . . . . . . .520
Part D-Organizational Probation . . . . . . . . . . . . . . . . . . . .. 524
Part E-Special Assessments, Forfeitures, and Costs . . . . . . 529
Part F-Violations of Probation – Organizations . . . . . . . . . . 531
APPENDIX A – Statutory Index . . . . . . . . . . . . . . . . . . . 532
APPENDIX B – Selected Sentencing Statutes . . . . . . . .. 555
INDEX TO GUIDELINES MANUAL . . . . . . . . . . . . . .662
SUPPLEMENTARY VOLUMES
APPENDIX C (Volume I) – Amendments to the Guidelines Manual . . . . . . . . . . . . . . . . . . . . . 1
(effective November 1, 1997, and earlier)
APPENDIX C (Volume II) – Amendments to the Guidelines Manual . . . . . . . . . . . . . . . . . . . . 1
(effective November 1, 1998, through November 5, 2003)
SUPPLEMENT to APPENDIX C – Amendments to the Guidelines Manual . . . . . . . . . . . 1
(effective November 1, 2004, through November 1, 2007)

Welcome to the Law Offices of Edward J. Chandler, P.A.

The Law Offices of Edward J. Chandler, P.A. is a full service law firm providing aggressive representation to clients in the areas of Family law, Personal Injury, Criminal Defense, Real Estate, Foreclosure Defense, Mortgage Loan Modification, Short Sales, Deed in Lieu of Foreclosure, Commercial Litigation, Business, Unfair Competition, Fraud, Personal Injury, and Criminal Defense.

Biography of Edward J. Chandler, Esq.

Mr. Chandler is licensed to practice law in both Florida and Wisconsin, and is a member of the Supreme Court of the State of Florida, the United States District Court for the Southern District and Northern District of Florida, 4th District Court of Appeals, 11th Circuit Court of Appeals, U.S. Tax Court, and the Supreme Court of the United States.

Mr. Chandler received his undergraduate degree from the University of Miami and his law degree from St. Thomas University School of Law, where he was a marshall in the Phi Alpha Delta Law Fraternity.

Mr. Chandler lives in South Florida. His practice has expanded to include such areas as criminal law, Federal Criminal Defense, personal injury, family law, business law, commercial litigation and real estate.

Federal Criminal Defense
Business Law
Family Law
Constitutional Law
Criminal Matters
Commercial Litigation
Debt Negotiation
Family Law
Personal Injury
Real Estate
Technology Law
Wills, Trusts, Estates
Criminal Representation
Foreclosure Defense
Mortgage Loan Modification
Business & Civil Litigation.

If for some reason we cannot assist you in any legal matter, we will refer you to a trusted colleague who may be able to help you.

The history of the Federal Sentencing Guidelines

Federal sentencing guidelines were established by Congress in 1987 to create uniform sentences for similar crimes across the country. Unlike mandatory minimum sentencing laws which can eliminate judicial discretion, the guidelines require a sentencing judge to consider various facts about the specific crime and defendant to justify a sentence within the guidelines. Judicial consideration of these facts lead to a “guideline range,” for example: 18 to 24 months. Mandatory minimums are “one-size-fits-all,” but the guidelines allow for upward or downward departures in unusual cases.Unfortunately, mandatory sentencing laws supersede or “trump” the sentencing guidelines, so judges first must determine if a defendant has been convicted of a crime which triggers a mandatory minimum penalty. If so, the mandatory minimum sentence must be imposed regardless of the sentencing guidelines recommendation. Current federal sentencing guideline tables can be found at the U.S. Sentencing Commission’s website.

There are only two ways to avoid a mandatory minimum sentence. First, a defendant can provide “substantial assistance” to the government by turning in other defendants. Second, a defendant in a drug case only can qualify as a “safety valve” defendant. Congress created the “safety valve” in 1994 to address excessive sentences for nonviolent drug offenders. Congress created the “safety valve” in 1994 to address excessive sentences for nonviolent drug offenders. It is very difficult to qualify as a “safety valve” defendant, and thousands of nonviolent drug defendants are still sent to prison for decades under mandatory minimum sentencing laws. But a low-level, nonviolent offender who qualifies for the “safety valve” can be sentenced at the judge’s discretion under the sentencing guidelines instead of mandatory minimum laws. You qualify for a “safety valve” only if your “criminal history category” is a Category I under the sentencing guidelines, you did not threaten violence or possess a gun, your offense did not result in death or serious bodily injury; you were not a leader in the offense; and you agree to provide the prosecutor with all the information and evidence you have concerning the offense and related offenses.

The Federal Sentencing Guidelines were created by the United States Sentencing Commission in the 1990’s. They purported to be a statistical compilation of sentences imposed in the federal courts throughout the nation for a given crime and where given sentencing factors were present. The purpose was to establish a degree of uniformity in sentences throughout the nation.

The Sentencing Guidelines were binding on the federal judges until 2006 when the United States Supreme Court declared that the guidelines were unconstitutional. The Supreme Court declared that the guidelines were advisory and not mandatory on the judges.

How calculate a federal sentence:

You must determine the offense conduct:
Chapter two of the guidelines sets forth the “base offense level” for the crime with which you are convicted.

You must determine the Offense related adjustments
In Chapter Three you will see a number of offense-related adjustments.

“Acceptance of responsibility” §3E1.1. Acceptance of Responsibility provides a reduction of two or three points (depending on your base offense level)

You must determine the Criminal history category
They will assess one to three criminal history point (which is different than a guideline point) for each prior conviction depending upon the length of the conviction. You then consult the criminal history table. It provides as follows:

Catetory Points

I (0 or 1)

II (2 or 3)

III (4, 5, 6)

IV (7, 8, 9)

V (10, 11, 12)

VI (13 or more)

You must determine number of months and dusted offense level from The sentencing table range;

On Page 392 the “adusted offense level” is found by adding or substracting the offense-related adjustments to the base offense level. Then determine the criminal history category. Using the table you will then be able to determine your sentencing guideline range.                                           KNOW YOUR RIGHTS!

         My goal is to represent my clients as I would want to be represented, always putting their interests first, diligently working to fully understand and serve the clients’ needs. In short, to do whatever it takes for the successful resolution of the
clients’ causes.
         If you are being investigated or charged with a Federal or State criminal offense, you need to seek the advice of Edward J. Chandler, Esq., an experienced Florida Federal and State criminal defense attorney since 1991! Right now, you may be filled with fear, confusion, embarrassment, and anger. You probably have a thousand questions and want to know your rights and how to proceed. With your future as stake, you need to think smart and speak with an experienced Florida criminal defense lawyer as soon as possible.

When your future is on the line…Call the Law Offices of Edward J. Chandler, P.A. at (954) 788-1355 24/7 immediately! Your phone consultation is free and completely confidential.

Professional Organizations:

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Filed under Attorney, Broward County, Criminal defense, Florida law, Law, Lawyer, Uncategorized

December 21, 2011 · 1:43 am

What does the judge consider when imposing a Federal Sentence?

Welcome to the

Law Offices
of
Edward J. Chandler, P.A.708 East Atlantic Boulevard Telephone: (954) 788-1355
Pompano Beach, Fl 33060 Facsimile: (954) 788-1357

Call Today! 24/7 “FROM ARREST TO TRIAL “

The sentencing judge must consider all “relevant conduct” for certain offenses, mostly drug, theft, and fraud offenses where the “offense level” is based on quantity. “Relevant conduct” is any conduct that has a common scheme or plan, including charges that were dismissed as part of a plea agreement. For this reason, plea agreements are often less beneficial than they first seem. The government still has to prove that you actually committed the crime dismissed in a prior plea agreement.

When a jury finds you “not guilty,” they have only determined that the prosecution has not met its burden of proving you guilty of all elements of the crime beyond a reasonable doubt. The jury has not made the determination that you did not commit the crime. In a subsequent case a sentencing judge need only determine whether it is more likely than not that you engaged in the conduct previously charged against you.

Since it seems terribly unfair and is disrespectful of a jury’s verdict, some judges in some cases refuse to consider charges for which a person was found not guilty.

                                           KNOW YOUR RIGHTS!

         My goal is to represent my clients as I would want to be represented, always putting their interests first, diligently working to fully understand and serve the clients’ needs. In short, to do whatever it takes for the successful resolution of the
clients’ causes.
         If you are being investigated or charged with a Federal or State criminal offense, you need to seek the advice of Edward J. Chandler, Esq., an experienced Florida Federal and State criminal defense attorney since 1991! Right now, you may be filled with fear, confusion, embarrassment, and anger. You probably have a thousand questions and want to know your rights and how to proceed. With your future as stake, you need to think smart and speak with an experienced Florida criminal defense lawyer as soon as possible.

When your future is on the line…Call the Law Offices of Edward J. Chandler, P.A. at (954) 788-1355 24/7 immediately! Your phone consultation is free and completely confidential.

Professional Organizations:

Leave a comment

Filed under Attorney, Broward County, Criminal defense, Florida law, Law, Lawyer, Uncategorized

December 21, 2011 · 1:42 am

How Much of a Federal Sentence must be Served?

Welcome to the

Law Offices
of
Edward J. Chandler, P.A.708 East Atlantic Boulevard Telephone: (954) 788-1355
Pompano Beach, Fl 33060 Facsimile: (954) 788-1357

Call Today! 24/7

“FROM ARREST TO TRIAL “

How Much of a Federal Sentence must be Served?

You will serve almost all of your sentence. There is no such thing as parole in the federal system for all crimes committed after November 1, 1987. If your sentence is longer than one year, you might qualify for a small reduction for “good time” which is earned at the rate of 54 days for every year of the sentence. Although the statute that governs good conduct time, 18 U.S.C. § 3624(b), states that prisoners may earn up to 54 days per year, the Bureau of Prisons (BOP) awards a maximum of 47 days for each year of the sentence imposed.

In addition, you may spend the last 10 % of your sentence, up to 6 months, in a community corrections center, or “half-way house.” The recently passed Second Chance Act requires the BOP to issue regulations allowing prisoners to be placed in community corrections centers for up to twelve months, but the BOP has not yet issued such regulations. Not all inmates are eligible for half-way house. For example, those with immigration or other types of detainers are ineligible, as are sex offenders.

Time calculation is complicated. You will generally receive credit for every day you spend in “official detention” after the offense for which you were convicted as long as those days were not credited toward another sentence. Unfortunately, the definition of “official detention” is not always clear. For example, time in a halfway house or in home confinement is not counted. The basic rule is in section 3585(b) of title 18 of the United States Code, but this is an important issue to discuss with your defense attorney because it is so complicated. In some instances, an attorney may be able to persuade a court to adjust the federal sentence to account for any potential discrepancies between the credits that the Bureau of Prisons will count, on the one hand, and the time the judge thinks should count on the other.

If you were in state custody and were brought into federal custody pursuant to a “writ of habeas corpus ad prosequendum,” the federal Bureau of Prisons (BOP) will generally only give you credits against your federal sentence if you did not receive state custody credits. But if you were in state custody and the state dropped charges in favor of a federal prosecution, you will probably receive credits against your federal sentence even for the time you spent in state custody before the federal charges were filed as long as that time in custody occurred after the offense for which you were convicted federally and as long as you did not receive credit in the state against another state sentence.

Time spent in immigration custody may or may not be considered “official detention.” It is important to discuss this issue with your individual attorney so he or she may attempt to work out a resolution that will result in the time being credited.

The initial appearance in magistrate court is not, ultimately, determinative of how your time is counted. What is important is the question whether you were in “official detention.”

Usually you will get credit for all of the time you have been in custody while facing a federal charge. There is an exception when you are serving another sentence either in state or federal prison. For example, if you were in state custody and were brought into federal custody pursuant to a “writ of habeas corpus ad prosequendum,” then the federal Bureau of Prisons (BOP) will generally only give you credits against your federal sentence if you did not receive state custody credits. But if you were in state custody and the state dropped charges in favor of a federal prosecution, you will probably receive credits against your federal sentence even for the time you spent in state custody before the federal charges were filed as long as that time in custody occurred after the offense for which you were convicted federally and you did not receive credit in the state against another state sentence. Because this issue is so complicated, it is important to discuss any possible credits issues with your attorney before you are sentenced.

In some instances, an attorney may be able to persuade a court to adjust the federal sentence to account for any potential discrepancies between the credits that the Bureau of Prisons will count, on the one hand, and the time the judge thinks should count on the other.

Law Offices
of
Edward J. Chandler, P.A.708 East Atlantic Boulevard Telephone: (954) 788-1355

Pompano Beach, Fl 33060 Facsimile: (954) 788-1357
Call Today! 24/7

“FROM ARREST TO TRIAL “

KNOW YOUR RIGHTS!

My goal is to represent my clients as I would want to be represented, always putting their interests first, diligently working to fully understand and serve the clients’ needs. In short, to do whatever it takes for the successful resolution of the
clients’ causes.

If you are being investigated or charged with a Federal or State criminal offense, you need to seek the advice of Edward J. Chandler, Esq., an experienced Florida Federal and State criminal defense attorney since 1991! Right now, you may be filled with fear, confusion, embarrassment, and anger. You probably have a thousand questions and want to know your rights and how to proceed. With your future as stake, you need to think smart and speak with an experienced Florida criminal defense lawyer as soon as possible.Since a criminal conviction may affect your future, your reputation and your chances of getting a job, it is critical that you seek out an experienced Florida criminal defense attorney such as Edward J, Chandler, as soon as you are being investigated or charged with a Federal or State criminal offense. The right Florida criminal defense lawyer can evaluate your case, determine legal strategies, and defend you in court, increasing your likelihood of staying out of jail and protecting your future.

When your future is on the line…Call the Law Offices of Edward J. Chandler, P.A. at (954) 788-1355 24/7 immediately! Your phone consultation is free and completely confidential.

Professional Organizations:

   * Florida Bar since 1991
    * Broward County Bar Association
    * Association of Trial Lawyers of America -ATLA
    * Federal Bar
    * Federal Court -Southern and Middle Districts of Florida
    * Supreme Court of United States
    * 4th District Court of Appeals
    * 11th Circuit Court of Appeals
    * United States Tax Court

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December 21, 2011 · 1:41 am

CRIMINAL PROCEDURE IN THE UNITED STATES

Welcome to the …….

Law Offices
of
Edward J. Chandler, P.A.
708 East Atlantic Boulevard Telephone: (954) 788-1355
Pompano Beach, Fl 33060 Facsimile: (954) 788-1357Call Today! 24/7

Criminal Procedure

Florida Criminal Lawyer Edward J. Chandler, Esq.

Phone (954) 788-1355

CRIMINAL PROCEDURE IN THE UNITED STATES

A history Lesson:

The English colonists who came to North America in the 17th century brought their legal traditions with them. After the American Revolution (1775-1783), the English common law-including the adversarial approach to criminal procedure-remained as the basis of law in the United States.

The United States has a federal system, meaning that power is divided between a central authority and many state or local authorities. Thus, there are 51 different sets of criminal procedural law in the United States-that of the federal government and one for each of the 50 states. In addition, separate criminal procedures exist for military courts and for federal territories. The procedures adopted by each state and the federal government vary. However, the shared heritage of the English common law provides significant similarities in the basic structure of the process. Furthermore, the Constitution of the United States imposes some limitations on the states in formulating their criminal procedure.

Federal Criminal Procedure

A person prosecuted in the federal courts on a charge of violating a federal criminal law is subject to federal criminal procedure. Federal procedure is governed, first of all, by certain provisions of the U.S. Constitution, especially those contained in the Bill of Rights (the first ten amendments to the Constitution). The Constitution guarantees certain procedural rights that the government must afford a federal criminal defendant, unless the defendant knowingly and voluntarily waives (surrenders) these rights (see Constitution of the United States: Rights of the Accused).

THE FOURTH AMENDMENT:

The Fourth Amendment protects citizens from unreasonable searches and seizures and describes how law enforcement officials can obtain warrants (court orders permitting a search or arrest). The Fifth Amendment protects individuals accused of crimes from having to testify against themselves and from being tried more than once for the same offense. It also requires that any criminal charges result from the proceedings of a grand jury-a body of citizens convened to determine whether sufficient evidence exists to have a trial. Finally, the Fifth Amendment requires that government procedures adhere to due process of law, which means basic standards of fairness and equity. Under the Sixth Amendment, a defendant is guaranteed a speedy and public jury trial during which the defendant will get notice of the charges he or she faces and may call witnesses and face his or her accusers. The Sixth Amendment also guarantees that the trial will take place in the district where the alleged crime was committed and that the defendant will have the assistance of legal counsel. The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishments.

These constitutional guarantees provide a starting point for federal criminal procedure. The Federal Rules of Criminal Procedure, issued by the Supreme Court of the United States and enacted by the Congress of the United States in 1945, supplement the constitutional guarantees. The rules contain detailed provisions relating to the pretrial, trial, and appeal stages of federal prosecutions. Other details of federal criminal procedure are covered in federal statutes enacted by the U.S. Congress. Finally, a substantial part of the law of federal criminal procedure is found in the reported decisions of the federal courts.

State Criminal Procedure

A person prosecuted in the courts of a particular state on a charge of violating the criminal laws of that state is subject to state criminal procedure. State criminal procedure is found in the constitution, statutes, rules, and judicial decisions of that state. Furthermore, portions of the U.S. Constitution are applicable to state criminal defendants.
State constitutions generally guarantee a state criminal defendant most of the same rights that a federal defendant is provided by the Bill of Rights. Some states have provisions that vary from federal constitutional requirements. For example, in a number of states criminal charges need not result from the proceedings of a grand jury. Instead, a judge determines whether or not the accused person should be tried after reviewing the evidence during a preliminary hearing. States may provide greater rights for criminal defendants than the U.S. Constitution guarantees.

The Supreme Court of the United States has required states to provide to criminal defendants most of the procedural guarantees in the U.S. Constitution. For example, states must recognize the Fifth Amendment right to avoid self-incrimination. In addition to these specific rights, the states are required by the U.S. Constitution to guarantee due process. The 14th Amendment, passed after the American Civil War (1861-1865), reads in part, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Like the 5th Amendment, which applies to federal criminal procedure, the 14th Amendment requires the states to maintain certain minimum standards of fundamental fairness in their laws concerning criminal procedure. For instance, prosecutors may not systematically exclude members of a particular race or gender from a jury. State convictions that result from proceedings that violate the minimum standards required by the 14th Amendment can be set aside by the federal courts through the process of appeal if the state courts themselves do not do so first.

JURISDICTION For a criminal conviction to be valid, both the sovereign power (the state or federal government) and the specific court that tries the accused must have jurisdiction (authority) over the crime charged. Jurisdiction refers to a court’s authority to hear and decide a case. The jurisdiction of state courts is restricted by the geographical boundaries of the state. Jurisdiction is also limited by the type or subject matter of a case. For example, a family court with jurisdiction over child custody and placement cannot try a murder case.

According to the laws of some states, a crime is committed in only one place and only the sovereign that controls that place has the power to try the accused for the wrongdoing. Therefore, if a woman standing in one state shoots and kills a man who is just over the state line in another state, the murder is committed in the state where the lethal bullet hit the victim. Only the state where the victim was injured has jurisdiction to try the woman. However, some states have enacted statutes conferring jurisdiction on the state where the crime was partly committed.

Because in many instances only the state where the crime was committed may prosecute the accused, laws have been enacted providing a process for acquiring custody of individuals accused of committing a crime in one state who then flee to another state or country. The U.S. Constitution provides for interstate extradition-that is, each state must surrender people who flee to that state upon a request by another state in which the person is accused of committing a crime. Many countries have adopted treaties that specify how suspected criminals who flee from one country to another can be returned to the country from which they fled.

About the Courts of Appeals

Courts of Appeals, formerly Circuit Courts of Appeals, in the federal judiciary system of the United States, courts created by Congress in 1891 to relieve the Supreme Court of its great burden of work and thus to give speedier justice to litigants. These courts make decisions on appeals from lower federal courts subject to review in the U.S. Supreme Court. In practice, however, the Supreme Court reviews only a few cases-usually those that involve a novel constitutional question or an interpretation of federal statutory law when there is a conflict among the various courts of appeals. The Supreme Court rules on the law and then returns the case to the appeals court for disposition on the basis of that ruling. Cases involving the constitutionality of legislation or the interpretation of treaties between the U.S. and other governments need not pass through the courts of appeals; they may be appealed directly from the lower courts to the Supreme Court.

A court of appeals functions in the District of Columbia and in each of the 11 federal judicial circuits. In addition, a court of appeals for the federal circuit was created in 1982 to review certain cases involving copyright, tax, patent, and federal employment law, as well as claims against the U.S. for money damages. Each court consists of at least three judges appointed for life by the president and approved by the Senate.

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A “crime” is any act or omission (of an act) in violation of a public law forbidding or commanding it. Crimes include both felonies (more serious offenses — like murder or rape) and misdemeanors (like petty theft, or jaywalking). No act is a crime if it has not been previously established as such either by statute or common law.

Historically, most crimes have been established by state law, with laws varying significantly state to state. There is, however, a Model Penal Code (MPC) which serves as a good starting place to gain an understanding of the basic structure of criminal liability.

In recent years the list of Federal crimes has grown.

All statutes describing criminal behavior can be broken down into its various elements. Most crimes (with the exception of strict-liability crimes) consist of two elements: an act, or “actus reus” and a mental state, or “mens rea.” Prosecutors have to prove each and every element of the crime to yield a conviction.

If you have any questions about the information provided above, please contact us.

Florida Criminal Lawyer Edward J. Chandler, Esq.
If You Have Been Arrested for a Crime or are being Investigated for A Suspected Criminal Action, you need legal advice and the assistance of an Experienced Criminal Defense Lawyer. Call the Law Offices of Edward J. Chandler, P.A. to begin protecting your rights TODAY….

Phone (954) 788-1355

PURPOSE OF CRIMINAL LAW

Criminal law seeks to protect the public from harm by inflicting punishment upon those who have already done harm and by threatening with punishment those who are tempted to do harm. The harm that criminal law aims to prevent varies. It may be physical harm, death, or bodily injury to human beings; the loss of or damage to property; sexual immorality; danger to the government; disturbance of the public peace and order; or injury to the public health. Conduct that threatens to cause, but has not yet caused, a harmful result may be enough to constitute a crime. Thus, criminal law often strives to avoid harm by forbidding conduct that may lead to harmful results.

One purpose of both civil law and criminal law in the common law system is to respond to harmful acts committed by individuals. However, each type of law provides different responses. A person who is injured by the action of another may bring a civil lawsuit against the person who caused the harm. If the victim prevails, the civil law generally provides that the person who caused the injury must pay money damages to compensate for the harm suffered. A person who acts in a way that is considered harmful to society in general may be prosecuted by the government in a criminal case. If the individual is convicted (found guilty) of the crime, he or she will be punished under criminal law by either a fine, imprisonment, or death. In some cases, a person’s wrongful and harmful act can invoke both criminal and civil law responses.

THEORIES OF CRIMINAL PUNISHMENT

Various theories have been advanced to justify or explain the goals of criminal punishment, including retribution, deterrence, restraint (or incapacitation), rehabilitation, and restoration. Sometimes punishment advances more than one of these goals. At other times, a punishment may promote one goal and conflict with another.

Retribution: The theory of retribution holds that punishment is imposed on the blameworthy party in order for society to vent its anger toward and exact vengeance upon the criminal. Supporters of this theory look upon punishment not as a tool to deter future crime but as a device for ensuring that offenders pay for past misconduct.

Deterrence: Those who support the deterrence theory believe that if punishment is imposed upon a person who has committed a crime, the pain inflicted will dissuade the offender (and others) from repeating the crime. When the theory refers to the specific offender who committed the crime, it is known as special deterrence. General deterrence describes the effect that punishment has when it serves as a public example or threat that deters people other than the initial offender from committing similar crimes.

Restraint: Some believe that the goal of punishment is restraint. If a criminal is confined, executed, or otherwise incapacitated, such punishment will deny the criminal the ability or opportunity to commit further crimes that harm society.

Rehabilitation: Another possible goal of criminal punishment is rehabilitation of the offender. Supporters of rehabilitation seek to prevent crime by providing offenders with the education and treatment necessary to eliminate criminal tendencies, as well as the skills to become productive members of society.

Restoration: The theory of restoration takes a victim-oriented approach to crime that emphasizes restitution (compensation) for victims. Rather than focus on the punishment of criminals, supporters of this theory advocate restoring the victim and creating constructive roles for victims in the criminal justice process. For example, relatives of a murder victim may be encouraged to testify about the impact of the death when the murderer is sentenced by the court. Promoters of this theory believe that such victim involvement in the process helps repair the harm caused by crime and facilitates community reconciliation.

Conflicts Among Goals: The various justifications for criminal punishment are not mutually exclusive. A particular punishment may advance several goals at the same time. A term of imprisonment, for example, may serve to incapacitate the offender, deter others in society from committing similar acts, and, at the same time, provide an opportunity for rehabilitative treatment for the offender. On the other hand, the goals of punishment may at times conflict. The retributive and deterrence theories call for the infliction of unpleasant experiences upon the criminal, including harsh prison treatment; but the prison environment may not be conducive to, or may even defeat, rehabilitation.

No one theory of punishment addresses all the goals of criminal law. A combination of theories and goals plays a part in the thinking of the legislators who establish the ranges of punishment for various crimes, the judges and jurors who sentence offenders within these ranges, and the parole authorities who have the power to release certain prisoners.

CLASSIFICATION OF CRIMES

Crimes are classified in many different ways: common law crimes versus statutory crimes, and crimes that are mala in se (evil in themselves) versus those that are mala prohibita (criminal only because the law says so). An important classification is the division of crimes into felonies or misdemeanors. This distinction is based on the severity of the crime and is rooted in common law.

In many jurisdictions in the United States, felonies are crimes punishable by death or imprisonment in a state prison or penitentiary and misdemeanors are those punishable by fine or imprisonment in a local jail. (The term jurisdiction refers to the authority of a political entity, such as a state or a county, or the territory over which that authority is exercised.) In other jurisdictions, crimes punishable by imprisonment for one year or more are felonies, and those punishable by fine or imprisonment for less than one year are misdemeanors. Since each jurisdiction determines the penalties for offenses it defines, a misdemeanor in one jurisdiction may constitute a felony in another. Some jurisdictions have an additional classification for petty offenses, also called infractions, which are usually punishable by a small fine.

Phone (954) 788-1355

posted by Edward J. Chandler, Esq. at 10:40 AM 0 comments
Friday, August 05, 2005
Florida Criminal Lawyer Edward J. Chandler, Esq.
If You Have Been Arrested for a Crime or are being Investigated for A Suspected Criminal Action, you need legal advice and the assistance of an Experienced Criminal Defense Lawyer. Call the Law Offices of Edward J. Chandler, P.A. to begin protecting your rights TODAY….

Phone (954) 788-1355

Criminal Law

Welcome to my law firm. I am attorney Edward J. Chandler, Esq. The focus of my practice in Broward County Florida is Criminal Law. I represent defendants charged with either Federal or State crimes.

If you want to know about your rights and options call me for a free consultation. Call attorney Edward J. Chandler, Esq., at
Tel. (954) 788-1355

EDWARD J. CHANDLER, ESQ. represents clients in State and Federal criminal defense cases in the following areas:

Federal Criminal Trials

State Felony Trials

Drug Trafficking Cases

Conspiracy Cases

RICO Cases

Health Care Fraud

Bank Fraud

Money Laundering

Security Violations

IRS Violations

White Collar Crime

Asset Forfeiture

Grand Jury Representation

Business Fraud and Theft

Battery

DUI

Grand Theft

Battery on a LEO

Burglary
Attorney Chandler also represents individuals charged with criminal offenses including:

DUI Driving under the influence
# BUI Boating under the influence
# Traffic Cases Driving with Suspended License
# Drug Cases prescription drugs, marijuana, cocaine
# Felonies and Misdemeanors
# Juvenile Delinquency Cases
# VOP’s Violations of Probation

If You Have Been Arrested for a Crime or are being Investigated for A Suspected Criminal Action, you need legal advice and the assistance of an Experienced Criminal Defense Lawyer.

Call the Law Offices of Edward J. Chandler, P.A. to begin protecting your rights TODAY….

Phone (954) 788-1355

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December 21, 2011 · 1:39 am

DUI- Driving Under the Influence Defense

Welcome to the …….

Law Offices
of
Edward J. Chandler, P.A.
708 East Atlantic Boulevard Telephone: (954) 788-1355
Pompano Beach, Fl 33060 Facsimile: (954) 788-1357

Call Today! 24/7

Defending a DUI in Florida

Law enforcement officers (“LEOS”) are notorious for stopping a vehicle on a “hunch” that the driver has been drinking. Once stopped, the tools used by LEOS to evaluate a driver’s possible impairment are crude and inaccurate. Many LEOS making DUI arrests have limited or no experience in evaluating the effects of alcohol on the body. In turn the machines relied upon by LEOS to test your breath, blood, or urine for alcohol are subject to error. Additionally, these machines are tightly regulated and often are not properly maintained.

Before a trial is ever held, a DUI can be challenged on constitutional, legal, or administrative grounds. A successful challenge can result in key prosecutorial evidence being thrown out by the State. The primary areas for challenging a DUI are:

* The Stop * Field Sobriety Tests * The Breathalyzer (Blood Alcohol Measurement Tests) * Your Statements

So what does all of this mean? Simply put, the State needs all of their evidence to prevent a Court from dismissing the case due to lack of evidence or in order to present a strong case to a jury. If I challenge one link in the State’s case that results in evidence being thrown out (suppressed), the State may be prohibited from proceeding or forced to negotiate a deal to a lesser charge. In DUI defense, winning one battle can result in winning the war!
Challenging The Stop

The law is very clear that a law enforcement officer may only stop you for one of two reasons: (1) If the LEO has a reasonable suspicion that your are committing a traffic infraction, or (2) if the LEO has probable cause that you are committing a crime. However, many times it can be shown that the officer was mistaken in his reason for stopping you. If this is proven, all of the evidence in your case will be thrown out and the State will be forced to dismiss your case.

A rather simple example would be if an officer stopped you for an expired license plate and subsequently arrested you for being under the influence. If I can prove that your motor vehicle license was not expired and that the officer was therefore mistaken, the Judge will find that the officer made an illegal stop and throw out all of the evidence against you.

Challenging Field Sobriety Test

In most DUI cases, law enforcement will administer Field Sobriety Tests to determine if you should be arrested. The officer’s interpretation of these tests can be challenged or suppressed based on many factors. Does the officer know what your true balance and coordination is? Do you have any physical disabilities like a bad back or bad knees? Physical disabilities or injuries may affect your ability to perform the test, thereby making them unreliable and inadmissible. Is the officer qualified to perform the specific Field Sobriety Test? Some Field Sobriety tests, such as the HGN test (eyes following pen test), may only be performed and testified abut by certified alcohol recognition experts. Other tests, such as the reverse alphabet test are not deemed reliable by the courts.
Beating the Breathalyzer

As previously mentioned, the machines used by law enforcement are tightly regulated and subject to strict maintenance requirements to be deemed reliable. Additionally, the testing itself must be done in a very specific manner. The failure to either properly maintain the machines, or to conduct the tests in accordance with the standard testing procedures, can result in the breath test being thrown out altogether, no matter how high your test came back.

Did the officer observe you for a period of 20 minutes prior to taking the breath test? Did the officer tell you to “keep blowing” during the breath test? Did the officer calibrate the machine properly prior to beginning testing? Did the officer read you Florida’s Implied Consent Law or did the officer incorrectly state the implied consent law to you? The failure of an officer to do any of these simple steps, or possibly other steps not mentioned, may result in the breath test results being thrown out.

Throwing Your Statements Out

One of the most well known Miranda Warnings states: “Anything you say can be used against you in a court of law.” However, contrary to popular belief, an officer does not have to immediately read you your rights when stopping you for a traffic infraction. Upon initially being stopped, an officer is free to ask you common questions such as where are you coming from, where are you going, have you had anything to drink. Therefore it is important you watch what you say, especially if you have been drinking.

Nevertheless, if you do say something incriminating to law enforcement, I may still be able to suppress your incriminating statements. Generally, statements are challenged for either being obtained without informing a suspect of their right to remain silent or because the statements were made under Florida’s accident report privilege.

Your Right to Remain Silent

An officer only has to read you your rights when you are under arrest, or if you are no longer free to leave. Once an officer reads you your rights you should politely decline to speak with him any further and request an attorney.
A common problem that arises in DUI arrests is when it is clear that you are no longer free to leave, the officer never reads you your rights, and continues to question you about your activities prior to being stopped. This practice is illegal and any incriminating statements gained by an officer during this time can be thrown out by a judge.

Florida’s Accident Report Privilege

Many times, persons involved in an automobile accident are later accused of DUI. And in Florida, persons involved in an automobile accident are required by law to report the accident to authorities, raising the possibility that a person suspected of DUI may make incriminating statements to law enforcement regarding the accident. Fortunately, Florida law prohibits most statements given to law enforcement by drivers, owners, or occupants regarding an automobile accident from being used in a later civil or criminal trial. This is known as Florida’s Accident Report Privilege and the purpose of the privilege is to encourage witnesses to cooperate with law enforcement in the investigation of automobile accidents.

However, the Accident Report Privilege is not absolute and there is one major exception. If a law enforcement officer suspects that you are were driving under the influence, or committed another crime related to the crash, he may “switch hats” and inform you that he is no longer conducting a crash or accident investigation and that he is now beginning a criminal investigation related to the accident. To continue questioning you, the officer must then read you your rights if he wishes to continue. At this point you should decline to answer anymore questions and request a lawyer.
Many times the officer fails to state that he is “switching hats” and read you your rights. If an officer fails to properly “switch hats” or to read you your rights, any statements you make to the officer may be suppressed as being privileged under Florida’s Accident Report Privilege.
Be Careful with Spontaneous Statements

The biggest exception to your right to remain silent and the Accident Report Privilege occurs when you make a spontaneous statements. A spontaneous statement is one that is volunteered without being asked a question. Any spontaneous statements you make before or after being read your rights can be used against you, regardless if other statements are thrown out due to illegal police misconduct or the accident report privilege.

CALL ATTORNEY CHANDLER TODAY (954) 788-1355

DUI Drivers License Suspensions in Florida

As a result of your DUI arrest, your Driver License is subject to two separate suspensions and it is important that you know the difference between each type of suspension. * The first is known as an Administrative Suspension. * The second is known as a Criminal Suspension.

Most importantly, it is imperative that you are aware of Florida’s Ten Day Rule regarding your right to fight the Administrative Suspension. Administrative Suspension

The first Driver License suspension you are subject to is known as an Administrative Suspension. This suspension is imposed if, after your DUI arrest, you either

1. Refused to submit to a breath, urine or blood test, or

2. Submitted to a breath, urine or blood test and your blood alcohol level was found to be .08 or higher.

If you refused to submit to a BAC/BAL test, or if your BAC/BAL was over .08 your Driver License will be suspended for either 6 months, 1 year, or 18 months from the date of your arrest. If your license if suspended for either reason, you will be issued a temporary driving permit that expires at midnight on the 10th day following the date of your arrest.

Florida’s Ten Day Rule You only have 10 days from the date of your arrest to request a formal review hearing with the Department of Motor Vehicles to contest the Administrative License Suspension and attempt to get your license back. If you fail to request the hearing with the 10-day period, your license will be suspended for either 6 months, 1 year, or 18 months depending on the circumstances. It is important to contact me within the 10-day period.

If a formal review hearing is requested within the mandatory 10 days of your arrest, you will be issued a temporary license that is good until seven days after the hearing. The hearing will be set approximately 30 days after your arrest. At midnight of the 7th day after the hearing, however, until we either receive notice that we won, or if the suspension is upheld, your license is suspended. Otherwise, you only have 10 days to drive after you are arrested using your citation as a driving permit.

Obtaining a Hardship Driver License

If attorney Chandler is unable to successfully challenge the administrative suspension, you may still be eligible for a hardship license. To be eligible for a hardship license you must: (1) enroll in a DUI School, (2) serve the first 90 days of your one year of the administrative suspension, and (3) provide proof of enrollment in a DUI school to your local DHSMV Administrative Review Office. The review office will then process your hardship license application. If the review office gives you approval to reinstate your license early for hardship purposes, you must then present this approval to your local driver license office. Finally, you must complete the DUI school within 90 days of being given the hardship license. Failure to complete the DUI school will result in cancellation of your hardship license until the DUI school is completed.

At the time of your license reinstatement you must take the required examination, and pay an administrative fee and a reinstatement fee and any license fee required. Additionally, proof of liability insurance on the arrest date, proof of current liability coverage, and a reinstatement fee will be required.

Criminal Suspension

As previously mentioned, there are two suspensions involved with a DUI charge, the administrative suspension and the Criminal Suspension. Unfortunately, if you are eventually convicted of DUI, another mandatory 6 or 12 month suspension begins on the date of conviction and the judge will suspend your hardship license.

Therefore, if there is a strong possibility of a DUI conviction, it may not be worthwhile get your hardship license until the Criminal Suspension has been imposed. Otherwise, you would then have to pay another fee to reinstate your hardship license. However, you would not be required to re-enroll in the DUI school. Nevertheless, if you eventually beat the DUI, your license will not be suspended a second time and you will only have to complete the administrative suspension.

Criminal Suspension Periods

Depending on the degree of DUI you are charged with, the following criminal suspension periods would be imposed if eventually convicted. After that are the eligibility requirements for a hardship license if your were to experience a Criminal Suspension.

1. First Conviction: Minimum 180 days revocation, maximum 1 year.

2. Second Conviction Within 5 Years: Minimum 5 years revocation. May be eligible for hardship reinstatement after 1 year. Other 2nd offenders same as “A” above.

3. Third Conviction Within 10 Years: Minimum 10 years revocation. May be eligible for hardship reinstatement after 2 years. Other 3rd offenders same as “A” above; one conviction more than 10 years prior and one within 5 years, same as “B” above.

4. Fourth Conviction, Regardless of When Prior Convictions Occurred) and Murder with Motor Vehicle: Mandatory permanent revocation. No hardship reinstatement.

5. DUI Manslaughter: Mandatory permanent revocation. If no prior DUI related convictions, may be eligible for hardship reinstatement after 5 years.

6. Manslaughter, DUI Serious Bodily Injury, or Vehicular Homicide Convictions: Minimum 3 year revocation. DUI Serious Bodily Injury having prior DUI conviction is same as “B-D” above.

Eligibility for Hardship License

Depending on the degree of DUI you were convicted of, the following requirements must be met in order to be eligible for a hardship license following a criminal suspension.

* First Conviction: Must complete DUI school, apply to department for hearing for possible hardship reinstatement. Mandatory ignition interlock device for six months for BAL of .20 or higher, effective 07/03.

* Second Convictions (or more): No hardship license except as provided below. Mandatory ignition interlock device for one year, effective 07/03.

* Second Conviction Within 5 Years: (5 Year Revocation) May apply for hardship reinstatement hearing after one year. Must complete DUI school and remain in the DUI supervision program for the remainder of the revocation period (failure to report for counseling or treatment shall result in cancellation of the hardship license). Applicant may not have consumed any alcoholic beverage or controlled substance or driven a motor vehicle for 12 months prior to reinstatement.

* Third Conviction Within 10 Years: (10 Year Revocation) May apply for hardship reinstatement hearing after two years. Must complete DUI school and remain in the DUI supervision program for the remainder of the revocation period (failure to report for counseling or treatment shall result in the cancellation of the hardship license). Applicant may not have consumed any alcoholic beverage or controlled substance or driven a motor vehicle for 12 months prior to reinstatement. Mandatory ignition interlock device for two years, effective 07/03.

* DUI Manslaughter With No Prior DUI Related Conviction: (Permanent Revocation): May be eligible for hardship reinstatement after 5 years have expired from date of revocation or expired from date of term of incarceration provided the following requirements have been met: (1) Has not been arrested for a drug-related offense for at least 5 years prior to the hearing; (2) Has not driven a motor vehicle without a license for at least 5 years prior to the hearing; (3) Has been alcohol and drug-free for at least 5 years prior to the hearing; and (4) Must complete a DUI school and must be supervised under the DUI program for the remainder of the revocation period (failure to report for counseling or treatment shall result in cancellation of the hardship license).

* Manslaughter, DUI Serious Bodily Injury, or Vehicular Homicide Convictions: (3 Year Revocation): May immediately apply for hardship reinstatement hearing. Must complete DUI school or advanced driver improvement course.

The specific and most current DUI penalties may be found in Section 316.193, Florida Statutes.

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December 21, 2011 · 1:36 am

Depositions- Rule 15 Federal Rules of Criminal Procedure!

Call attorney Edward J. Chandler, Esq. at (954) 788-1355.

LAW OFFICE OF EDWARD J. CHANDLER, P.A.
708 E. Atlantic Blvd.
Pompano Beach Fl 33060
Tel: (954) 788-1355

If you have been arrested in Florida, you need to contact attorney Edward J. Chandler, Esq., for a consultation.

Depositions- Rule 15 Federal Rules of Criminal Procedure

ARRAIGNMENT AND PREPARATION FOR TRIAL

Rule 15. Depositions

(a) When Taken.

(1) In General.

A party may move that a prospective witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional circumstances and in the interest of justice. If the court orders the deposition to be taken, it may also require the deponent to produce at the deposition any designated material that is not privileged, including any book, paper, document, record, recording, or data.

(2) Detained Material Witness.

A witness who is detained under 18 U.S.C. § 3144 may request to be deposed by filing a written motion and giving notice to the parties. The court may then order that the deposition be taken and may discharge the witness after the witness has signed under oath the deposition transcript.

(b) Notice.

(1) In General.

A party seeking to take a deposition must give every other party reasonable written notice of the deposition’s date and location. The notice must state the name and address of each deponent. If requested by a party receiving the notice, the court may, for good cause, change the deposition’s date or location.

(2) To the Custodial Officer.

A party seeking to take the deposition must also notify the officer who has custody of the defendant of the scheduled date and location.

(1) Defendant in Custody.

The officer who has custody of the defendant must produce the defendant at the deposition and keep the defendant in the witness’s presence during the examination, unless the defendant:

(A) waives in writing the right to be present; or

(B) persists in disruptive conduct justifying exclusion after being warned by the court that disruptive conduct will result in the defendant’s exclusion.

(2) Defendant Not in Custody.

A defendant who is not in custody has the right upon request to be present at the deposition, subject to any conditions imposed by the court. If the government tenders the defendant’s expenses as provided in Rule 15(d) but the defendant still fails to appear, the defendant — absent good cause — waives both the right to appear and any objection to the taking and use of the deposition based on that right.

(d) Expenses.

If the deposition was requested by the government, the court may — or if the defendant is unable to bear the deposition expenses, the court must — order the government to pay:

(1) any reasonable travel and subsistence expenses of the defendant and the defendant’s attorney to attend the deposition; and

(2) the costs of the deposition transcript.

(e) Manner of Taking.

Unless these rules or a court order provides otherwise, a deposition must be taken and filed in the same manner as a deposition in a civil action, except that:

(1) A defendant may not be deposed without that defendant’s consent.

(2) The scope and manner of the deposition examination and cross-examination must be the same as would be allowed during trial.

(3) The government must provide to the defendant or the defendant’s attorney, for use at the deposition, any statement of the deponent in the government’s possession to which the defendant would be entitled at trial.

(f) Use as Evidence.

A party may use all or part of a deposition as provided by the Federal Rules of Evidence.

(g) Objections.

A party objecting to deposition testimony or evidence must state the grounds for the objection during the deposition.

(h) Depositions by Agreement Permitted.

The parties may by agreement take and use a deposition with the court’s consent.

Call attorney Edward J. Chandler, Esq. at (954) 788-1355.

LAW OFFICE OF EDWARD J. CHANDLER, P.A.
708 E. Atlantic Blvd.
Pompano Beach Fl 33060
Tel: (954) 788-1355

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