Criminal Defense

People often ask me: “How do I find out if a lawyer is any good?”  Or, “How do I find a really good lawyer?”  The answers are easier today than they used to be.  The traditional way to find out if a lawyer is any good is by word of mouth and that’s still really good.  Getting a recommendation on a lawyer from somebody who knows that lawyer, is great, but there are other ways.

One way you can find out if an attorney is any good is to find out if they are board certified by The Florida Bar.  Board certification recognizes an attorney’s special knowledge, skills and proficiency in a particular area of law.

Only board certified attorneys are allowed to use the terms Specialist, or Expert when referring to their legal credentials.  If an attorney is not board certified, then they’re not an expert!

People often ask me: “How do I find out if a lawyer is any good?” The answers are easier today than they used to be.  The traditional way to find out if a lawyer is any good is by word of mouth and that’s still really good.  Getting a recommendation on a lawyer from somebody who knows that lawyer, is great, but there are other ways.

One way to find out if an attorney is any good is to check out one of the independent lawyer rating services. The one that is probably the easiest to use is called AVVO.com.  You can go to AVVO and you can type in for example DUI lawyer, Fort Lauderdale, and you will see a ranking of the DUI lawyers.  The ranking is done by AVVO.  AVVO rates lawyers on a scale from 0 to 10 with 10 being the very best.

But you don’t have to just look at a lawyer’s AVVO’s rating.  You can actually read reviews that clients and others lawyers have posted online.

You can read what people in the know have to say about particular lawyers. If you want to check it out, take a look at my profile on AVVO.com.

In addition to being Board Certified in Criminal Law and having a 10.0 rating on AVVO.com, another way to find out if a lawyer is any good is to check out Martindale-Hubble. Martindale-Hubble lawyer rating service has been around for years and is very old-school. Searching through a big old directory used to be how people found lawyers. Now they have martindale.com. The very highest rating that martindale.com gives to a lawyer is AV. If you get yourself a lawyer who is AV, you’ve got a keeper! There may be some good lawyers who are not AV rated but there are no bad lawyers who are.

Another site that’s gaining a lot of attention these days is Superlawyers.com and despite the name, they really have a very sophisticated system of determining who the best lawyers are out there.
Superlawyers.com identifies and tells you who are the top five percent of lawyers in every region, in every subject matter.
So, here’s my bottom line: if you do your homework and you find yourself a lawyer who is board certified by The Florida Bar, has an AV rating from martindale.com, has a 10.0 rating on Avvo, and has been recognized by Superlawyers.com, then you’ve found yourself a great lawyer.

Florida’s new anti-texting law makes an exception for drivers to text while the car is at a red light.  The law states: “For the purposes of this paragraph, a motor vehicle that is stationary is not being operated and is not subject to the prohibition in this paragraph.” To read the statue in its entirety, please click here.

In Pennsylvania v. Mimms, 434 US 106 (1977), the U.S. Supreme Court decided that a police officer has the authority to order the driver of an automobile stopped for a traffic violation to get out of the car.

As § 943.0585(2)(f) and § 943.059(2)(e), (Fla.Stat.) require that an applicant for a Certificate of Eligibility have never secured a prior sealing or expunction of a criminal history record under current or former law, getting seal or expunge order vacated does not remove this disqualification.

The Miranda rights are:

  • You have the right to remain silent.
  • Anything you say can and will be used against you in a court of law.
  • You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you?
  • With these rights in mind, do you wish to speak to me?”

Basically, any incriminating statement made to the police in response to a question after a person is in police custody are subject to being suppressed or excluded from being introduced into evidence.

If you or someone you know needs serious DUI defense, contact attorney Robert Malove.

You can represent yourself — although it is not a good idea. “DUI” law is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues. What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field — no more than a family doctor could help with brain surgery. A qualified attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.

This varies, of course, by the reputation and experience of the lawyer and by the geographic location. As with doctors, generally, the more skilled the attorney and the larger the city, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take fewer clients, spending more hours on each.

The range of fees is huge. A general practitioner in a small community may charge only $500-1000; a DUI specialist with a national reputation may charge up to $15,000 or more, depending on the facts. In addition, the fee may vary by such other factors as:

  • Is the offense a misdemeanor or felony?
  • If prior convictions are alleged, the procedures for attacking them may add to the cost.
  • The fee may or may not include trial or appeals.
  • Administrative license suspension procedures may also be extra.
  • The lawyer may charge a comprehensive fixed fee, or he may ask for a retainer in advance — to be applied against hourly charges.
  • Costs such as expert witness fees, independent blood analysis, service of subpoenas, etc., may be extra.

Whatever the fee quoted, you can ask for a written agreement. And make sure you understand all the terms.

Expungements

It is really critical that an accused make absolutely sure that the charges that they plan to enter a “no contest” plea to is a crime that can be sealed or expunged.

I received a call last week from a very upset man who told me that his lawyer advised him that because he was not being “adjudicated” guilty, that he could get his case sealed and expunged after completing his probation.  This statement is generally true.  However, there are a group of offenses that cannot be sealed or expunged no matter what unless the defendant was acquitted.  Pleading “no contest” and having adjudication of guilt withheld doesn’t matter.  Unfortunately, for this individual, aggravated battery is an offense that is excluded from eligibility.

There are a few steps that need to be taken in order to get a case expunged.  First , the State Attorney needs to approve the application, then the Florida Department of Law Enforcement needs to conduct a background check to confirm eligibility.  Once FDLE approves, the Certificate of Eligibility needs to be filed with the court as an attachment to a motion for expungment.  If your attorney know what he’s doing, it shouldn’t take more than 6-9 months to have the job done.

Under Florida law, all criminal history records are open to the public unless the record is sealed or expunged.  Florida statute section 943.045(4) defines what is considered “criminal history information.” Section 943.045(4) says:

“Criminal history information” means information collected by criminal justice agencies on persons, which information consists of identifiable descriptions and notations of arrests, detentions, indictments, informations, or other formal criminal charges and the disposition thereof. The term does not include identification information, such as fingerprint records, if the information does not indicate involvement of the person in the criminal justice system.

In order for someone to meet the eligibility requirements to have a record sealed or expunged, the applicant must be able to swear under oath that he or she has never previously had a record sealed or expunged in Florida or elsewhere.   A person can only seal or expunge one arrest record in one proceeding.  More than one case can be sealed or expunged in the same proceeding if the court finds that the arrests to be directly related.

Once a criminal history record is sealed, the public will not get access to it. Certain governmental agencies have access to sealed record information in its entirety.

After a record has been expunged, those governmantal agencies that had access to a sealed record will be informed that the record has been expunged, and would no longer have access to the record without a court order.

Yes and no.   Anyone who is found guilty of DUI cannot get their record sealed or expunged.  Only qualifying cases where adjudication of guilt has been withheld are eligible to be sealed.  For example, lets say you were arrested for DUI, but the charges were reduced to Reckless Driving and adjudication of guilt was withheld, you can get the case sealed.  After 10-years, the sealed case automatically gets expunged by operation of law.  If you were found not guilty of the DUI and all of the accompanying charges, you are eligible to get the record expunged right away wihout having to wait 10-years.

DUI Defense

In 1997, the National Highway Traffic and Highway Administration (NHTSA) commissioned a study entitled “The Detection Of DWI at BACs Below 0.10.”  The objective of the study was to develop an appropriate set of behaviors that could be used by field officers to accurately identify motorists who were driving under the influence at the 0.08 level, and to determine if cues are available that predict 0.04 and 0.02 BAC levels.

The study eliminated some cues as signs of impairment finding that they might be indicators more of social class than of alcohol impairment. For example, officers believed that drivers having a flushed or red face was an indication of a high BAC in some people. However, having a flushed or red face was also a characteristic of agricultural, oil field, and other outside work. Similarly, bloodshot eyes, while associated with alcohol consumption, could also be a trait of many shift workers and people who must work more than one job, as well as those afflicted by allergies. A disheveled appearance similarly is open to subjective interpretation. To read more click here: Blood Shot eyes NHTSA 1997

Florida Statute Section 316.066(4) states:

[E]ach crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal. However, subject to the applicable rules of evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person involved in the crash if that person’s privilege against self-incrimination is not violated.

The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:

  • Turning With a Wide Radius
  • Straddling Center of Lane Marker
  • “Appearing to be Drunk”
  • Almost Striking Object or Vehicle
  • Weaving
  • Driving on Other Than Designated Highway
  • Swerving
  • Speed More Than 10 mph Below Limit
  • Stopping Without Cause in Traffic Lane
  • Following Too Closely
  • Drifting
  • Tires on Center or Lane Marker
  • Braking Erratically
  • Driving into Opposing or Crossing Traffic
  • Signalling Inconsistent with Driving Actions
  • Slow Response to Traffic Signals
  • Stopping Inappropriately (Other Than in Lane)
  • Turning Abruptly or Illegally
  • Accelerating or Decelerating Rapidly
  • Headlights Off

Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety.

If you or someone you know needs serious DUI defense, contact attorney Robert Malove.

You are not required to answer potentially incriminating questions. A polite “I would like to speak with an attorney before I answer any questions” is a good reply. On the other hand, admitting that you had one or two beers is not incriminating: it is not sufficient to cause intoxication — and it may explain the odor of alcohol on the breath.

If you or someone you know needs serious DUI defensecontact attorney Robert Malove.

In Florida, there is no right to speak to an attorney until after you have submitted to blood or breath testing at the station (or have refused to do so).

If you or someone you know needs serious DUI defense, contact attorney Robert Malove.

The traditional symptoms of intoxication taught at the police academies are:

  • Flushed face
  • Red, watery, glassy and/or bloodshot eyes
  • Odor of alcohol on breath
  • Slurred speech
  • Fumbling with wallet trying to get license
  • Failure to comprehend the officer’s questions
  • Staggering when exiting vehicle
  • Swaying/instability on feet
  • Leaning on car for support
  • Combative, argumentative, jovial or other “inappropriate” attitude
  • Soiled, rumpled, disorderly clothing
  • Stumbling while walking
  • Disorientation as to time and place
  • Inability to follow directions

There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests.

Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitably “fails”. Thus, in most cases a polite refusal may be appropriate.

Recently, many states have begun following the federally-approved (National Highway Traffic Safety Administration) “standardized” field sobriety tests. These consist of a battery of three tests:

  • Heel-to-Toe (also referred to as “walk-and-turn”)
  • One-Leg Stand
  • Horizontal Gaze Nystagmus

All other field sobriety tests are disapproved. And unlike non-standardized tests, in which the officer subjectively decides whether the suspect passes or fails, the SFSTs are scored objectively — that is, a numerical score is assigned according to specific errors, or “clues”.

This is the “horizontal gaze nystagmus” test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk (“nystagmus” is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye’s tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer’s ability to recognize nystagmus and estimate the angle of onset. Because of this and the fact that the test is not accepted by the medical community, it is not admissible in many states; it is, however, admissible in Florida, but is vulnerable to attack.

The adverse consequences to refusing to submit to a breath or blood test (or urine if neither is available or if drugs are suspected) are:

  • A driver’s license will be suspended for a minimum of one year rather than for a minimum of six months for blowing over the legal limit; if this is a second or subsequent refusal, the suspension is for eighteen months. A driver who refuses to submit to a breath test cannot obtain a hardship license that authorizes driving for business purposes until after 90-days without any permit expires.
  • A refusal, if alleged, is a first degree misdemeanor. See § 316.1939, Fla.Stat., Refusal to submit to testing; penalties.
  • The fact of refusing can be introduced into evidence at trial as evidence of “consciousness of guilt”. Of course, the defense is free to offer other reasons for the refusal, such as fear of needles or inability to blow into the machine hard enough.

Thus, the decision is one of weighing the likelihood of an potentially incriminating blood-alcohol result versus the consequences of refusing.

In Florida, someone who is arrested for DUI can be requested to submit to a breath or urine test. A person arrested may be asked to submit to blood test where death or serious bodily injury is involved and reasonable force may be used in order to obtain the blood sample.

Additionally, §316.1932 (1)(c) , Fla.Stat., states:

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, deemed to have given his or her consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the purpose of determining the presence of chemical substances or controlled substances as provided in this section if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible.

Also, §316.1932 (1)(c) , Fla.Stat., states:

The person tested may, at his or her own expense, have a physician, registered nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, or other person of his or her own choosing administer an independent test in addition to the test administered at the direction of the law enforcement officer for the purpose of determining the amount of alcohol in the person’s blood or breath or the presence of chemical substances or controlled substances at the time alleged, as shown by chemical analysis of his or her blood or urine, or by chemical or physical test of his or her breath. The failure or inability to obtain an independent test by a person does not preclude the admissibility in evidence of the test taken at the direction of the law enforcement officer. The law enforcement officer shall not interfere with the person’s opportunity to obtain the independent test and shall provide the person with timely telephone access to secure the test, but the burden is on the person to arrange and secure the test at the person’s own expense. Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate is urinalysis.

No. After making an arrest, the police are supposed to read the person their Miranda rights making arrest asking any questions. Often, however, they do not. If the police interrogate someone they arrest without giving them their Miranda warnings, the consequence is that the prosecution cannot use any of the answers to the questions asked by the police.

The U.S. Supreme Court has stated:

  • The person in custody must, prior to interrogation, be clearly informed that they have the right to remain silent, and that anything the person says will be used against that person in court;
  • The person must be clearly informed that they have the right to talk to an attorney and to have that attorney present during questioning;
  • and that, if they cannot affor to hire an attorney, one will be provided to represent them.

The traditional offense is “driving under the influence of alcohol” (DUI). In recent years, however, 48 states have also enacted a second, so-called “per se” offense: driving with an unlawful blood-alcohol level (DUBAL), .08% or more. In Florida, there is a rebuttable presumption that a driver is guilty of DUI when the breath test result is above .08%.

Someone who refuses to submit to testing can be charged with the crime of refusal to submit to testing.

Agreed, it is blatantly unfair. But the law in Florida provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood or urine test, if the officer reasonably believes the result will be above the limit) or the individual refuses to take a chemical test.

WARNING: Be aware of a 10-day deadline for calling the Florida DMV to request a hearing on the suspension and to get an extension of the temporary license.

The internet offers you a lot of information. The problem is: how do you separate the important information from all the hype and B.S.?

Before you speak to ANY lawyer about your case, get the FREE Consumer Guide, How to Choose a DUI Lawyer in Florida.

How to Choose a DUI Lawyer in Florida arms you with the 10 Questions you must ask to have the best chance of winning your case.

Don’t hire Robert Malove or ANY lawyer until you get straight answers to these questions.  You need to find out:

  • Who is going to be my lawyer at trial?
  • What is his/her qualifications?
  • Are they AV rated?
  • Are they Board Certified in Criminal Trial Law?

Another way to find a good DUI lawyer is by reputation.

An excellent indication of a DUI attorney’s quality and experience is membership in the National College for DUI Defense. Completion of that organization’s intensive three-day seminar presented at Harvard Law School every year is another clear sign of expertise. Robert Malove is both a graduate and Founding Member of the National College for DUI Defense.

When you meet with the attorney, make sure of three things:

  • He has extensive experience in DUI litigation;
  • He has a reputation for going to trial in appropriate cases, rather than just letting his clients plead guilty without putting up much of a fight
  • The financial terms of representation are clear.

Attorney Robert Malove has received national recognition for his achievements as a criminal defense trial law specialist. He is a former Training Attorney at the Public Defender’s Office in Miami who has earned the highest rating a lawyer can achieve for legal ability and ethics from Martindale-Hubble .

Fill out the order form to the right and hit the FREE INSTANT ACCESS button. You will INSTANTLY receive your e-copy of the Consumer Guide, “How to Choose a DUI Lawyer in Florida

CAUTION: Beware of lawyers claiming to be experts in the field who simply refer you to other “top DUI lawyers” who then split the fee.

This is covered on this page.

Florida law increases the punishment in DUI cases if certain facts exist. The most common of these is an earlier conviction for the same or a similar offense within seven years of the current offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:

  • A child was in the car at the time.
  • The breath alcohol (BrAC) or blood alcohol concentration (BAC) was over .15%.
  • There was property damage or injury.
  • The defendant was under 21 (“zero tolerance” laws commonly require a much lower blood-alcohol level and impose longer license suspensions).

The existence of any personal injury caused by someone who is DUI elevates the offense to a felony. A death can trigger DUI Manslaughter murder charges.

A driver is presumed to be DUI with a breath alcohol (BrAC) test result in excess of .08%.  Sometimes a driver’s breath test result is over a .08 at the time of DRIVING — not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual’s BAC may continue to rise for some time after he is stopped and arrested.

Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .08%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been below .08%. In other words, the test result shows a blood-alcohol concentration above the legal limit — but his actual BAC AT THE TIME OF DRIVING was below.

“Mouth alcohol” refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic “reflux” condition from gastric distress such as GERD or a hiatal hernia can cause elevated BAC readings.

Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:

  • Driving Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle.
  • Probable cause. Evidence will be suppressed if the officer did not have legal cause to(a) stop, (b) detain and (c) arrest. Sobriety roadblocks present particularly complex issues.
  • Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
  • Implied consent warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, in some states (including California) this may affect admissibility of the test results — as well as the license suspension imposed by the motor vehicle department.
  • “Under the influence”. The officer’s observations and opinions as to intoxication can be questioned — the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as “failing”. Too, witnesses can testify that you appeared to be sober.
  • Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath or urine testing. “Non-specific” analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state’s expert witness and/or the defense can hire its own forensic chemist.
  • Testing during the absorptive phase. The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking “one for the road” can cause inaccurate test results.
  • Retrograde extrapolation. This refers to the requirement that the BAC be “related back” in time from the test to the driving (see question #17). Again, a number of complex physiological problems are involved here.
  • Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.
  • license suspension hearings. a number of issues can be raised in the context of an administrative hearing before the state’s department of motor vehicles.

People ask me questions all the time about their DUI case. People want to know where they can get some answers.  That’s exactly why I wrote my FREE Consumer Guide, How to Choose a DUI Lawyer in Florida.

Getting arrested for DUI is very traumatic. A lot of things are at stake: your driver’s license, not to mention your freedom!  You’re in trouble and you need to do whatever you can to get out of the situation.

Here are some basic things that you need to know:

If you took the breath test and blew a .08 BrAC or higher or if refused to submit to the test, your license was suspended.
The DHSMV could keep your driver’s license for up to 18 months BEFORE YOU GO TO COURT.

If you want to get your license back you only have 10 days to file an application with the DHSMV to request a hearing.

WARNING: If you don’t request a hearing at the DHSMV, your license could be suspended up to 18 months! Waiting to hire a lawyer could severly undermine your case.

DON’T GET STUNG BY THE 10-DAY RULE!

The Department of Highway Safety and Motor Vehicles strictly enforces the Florida Implied Consent Law. You need to take quick action!

Depending upon where you were arrested, you may be due in court and have to appear before the judge in just a short few weeks!  You need to take action!

I know that there is alot of information on the internet.  The problem is how to tell the critical information from all the hype and B.S.?

How to Choose a DUI Lawyer in Florida arms you with the Ten Questions you must ask to have the best chance of winning your case.

Don’t hire me or ANY lawyer until you get straight answers to these questions, including:

  • Who is going to be my lawyer at trial?
  • What is his/her qualifications?
  • Are they AV rated?
  • Are they Board Certified in Criminal Trial Law?

Don’t let getting arrested for DUI cost you your job, tarnish your reputation, negatively effect your family, and make you to suffer a loss of freedom.

Fill out the order form to the right and hit the FREE INSTANT ACCESS button. Your e-copy of my Consumer Guide, How to Choose a DUI Lawyer in Florida will be immediately sent to you.

If you have any more questions afterwards, by all means, please call me!

Thank you,

Robert

Domestic Violence

The petitioner must be a victim of domestic violence or in imminent danger of becoming a victim of domestic violence.  §741.30(1)(a), Florida Statutes.

Domestic violence includes:

  • assault
  • aggravated assault
  • battery
  • aggravated battery
  • sexual assault
  • sexual battery
  • stalking
  • aggravated stalking
  • kidnapping
  • false imprisonment
  • or any other criminal offense resulting in physical injury or death to one family or household member by another family or household member. §741.28(2), Florida Statutes.

Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he
or she is in imminent danger of becoming a victim of domestic violence. §741.30(6)(b), Florida Statutes.

In determining whether petitioner has “reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence”, the court must consider all relevant factors alleged in the petition for injunction for protection against domestic violence, including, but not limited to:

  • The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse.
  • Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner.
  • Whether the respondent has threatened to conceal, kidnap, or harm the petitioner’s child or children.
  • Whether the respondent has used, or has threatened to use, against the petitioner any weapons such as guns or knives.
  • Whether the respondent has intentionally injured or killed a family pet. hether the respondent has physically restrained the petitioner from leaving the home orcalling law enforcement.
  • Whether the respondent has a criminal history involving violence or the threat of violence.  The existence of a verifiable order of protection issued previously or from another jurisdiction.
  • Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communication equipment, clothing, or other items belonging to the petitioner.

If you or someone you know has been accused of committing a domestic violence crime or has been served with an injunction for protection against domestic violence, call attorney Robert Malove.

Domestic violence cases have special rules.  Courts want to take special precautions to make sure that tempers calm, and hostilities subside.

I have written a Legal Guide about How to Post a Bail Bond After a Domestic Violence Arrest that you can get from AVVO.com.  According to Florida Statute 741.2901(3)  [w]hen a defendant is arrested for an act of domestic violence, the defendant shall be held in custody until brought before the court for admittance to bail in accordance with chapter 903.

In determining bail, the court shall consider the safety of the victim, the victim’s children, and any other person who may be in danger if the defendant is released.

If you or someone you know has been arrested for domestic violence, it is important to be represented by someone with years of experience in defending these types of cases.  In 1994, as an Assistant Public Defender Robert Malove was assigned to the first ever criminal division dedicated exclusively to handling domestic violence cases.  Please contact us to discuss your situatiuon confidentially.

This is a common occurrance and there is a way for you to get your things without violating the judge’s order to stay away.  By placing a phone call to the police and explain the situation to them, arrangements can be made for a police officer to accompany you to your former residence to gather your belongings.

With emotions running high, domestic violence cases can quickly spin out of control.  The best advice I can give you is if you or someone you know needs serious domestic violence defense call me.

Even though the judge dismissed the injunction temporary for protection against domestic violence, you can only have contact if there is no other “stay away” order in effect as a condition of your pre-trial release.  So, if there is not a “stay away” order as part of your pre-trial release, then having contact is ok.  If a “stay away” order remains in effect as condition of bond, the dismissal of the injunction does not authorize you to have contact.

For more information about conditions of pre-trial release in Domestic Violence cases, read my Legal Guide about How to Post a Bail Bond After a Domestic Violence Arrest that you can download for free from AVVO.com.

If you have any questions, please call me. I am here to help you,

Medicare / Health-care Fraud Defense

Under this statute, a primary element that must be proven is the intent to defraud a health care benefit program. If someone accused of Medicare fraud lacks the specific intent to defraud a federaly funded health care benefit program, the government may not be able to demonstrate the commission of a crime.

Antikickback Statute (AKS) – One of the more common defense to medicare fraud charges under the Antikickback Statute, 42 U.S. Code § 1320a–7b, requires proving that the alleged unlawful business transaction was not prohibited under the “safe harbor” provisions of the statute. The safe harbor provisions of the Antikickback Statute protect certain types of transactions such as investments, referral of certain services, relationships between providers of healthcare services, arrangements between healthcare service providers and health insurance plans, and the character of the relationship between providers and suppliers.

Federal Criminal Defense

After arrest, the first time you are brought to court is called the Initial Appearance. You will generally be accompanied by federal marshals and appear before a federal magistrate. This is supposed to occur within 48-hours of your arrest and is usually quite brief. The magistrate will preside over the first two or three court appearances before you appear before the federal district court judge who is assigned to your case.

At the Initial Appearance, you will be informed of the offenses with which you have been charged, your constitutional rights (e.g., the right to counsel; the right to remain silent), and you’ll be asked if you can afford counsel. Anyone who cannot afford to hire an attorney will be required to fill out a financial affidavit that will be reviewed by the magistrate. If that person qualifies, a federal public defender will be appointed.  Financial affidavits must be truthful and complete and are subject under penalty of perjury.

You will also be informed of the “statutory maximum” sentence, which is the most jail time you can receive if found guilty of the charge that’s been filed against you.  In addition, the federal magistrate will ask the prosecutor if they wish to “move for detention,” which is a fairly common occurrence in federal court. In other words, this means: does the government want you to be detained or held in custody until your case is over. If they do, you will have the right to a detention hearing. If they don’t, you will be released on bond until your arraignment.

General

Parole is a supervised release from jail after the offender already completed part of their sentence. The defendant must not use drugs/ alcohol or have contact with victims of the crime. They are assigned parole officers who often make suprise visits to ensure they are not violating.

Probation is a criminal sentence in which the defendant avoids time behind bars by completing mandated requirements. Usually tge offender must regularly check in with his or her probation officer and perform any other activities, such as rehabiliation programs or drug tests.

If an offender violates parole they must finish the rest of their sentence in jail however if an offender violates probation he or she will be sent to court to be resentenced.

After a DUI conviction a court ordered suspension may call for a business purpose only restriction. This means that you can only drive if it is neccessary to mainitain your livelihood. For example, on the job driving, driving to and from work, or driving for educational or medical purposes are permitted. Violating these restrtictions is a  second degree misdemeanor and you can be sentenced up to 60 days in jail. Violating will also lead to a revocation of the restricted license for the remainder of the driver’s orginial suspension or revocation term. Although certain activities such as driving to your attorneys office or driving your children to school are “neccesary to maintain livilhood” they are not expressly stated under Section 322.271, Florida Statues.