Recent Blog Posts

Have you been charged with DUI, do you suffer from any medical or mental health conditions?

Soler Slack Law — Wed, 15 May 2013 19:52:00 GMT

If you have been charged with DUI, be sure to tell your criminal defense attorney if you currently suffer, or have suffered in the past, from any medical or mental health conditions. Certain conditions can definitely have an impact on your ability to successfully or adequately perform field sobriety exercises (FST's) and other DUI related tests.

The DUI attorneys at our law firm have seen countless videos where, prior to requesting a person to perform FST's, the police officer did not ask the person if they suffer, or have suffered, from any medical conditions. The officer then notated all of the various ways that the person swayed or stumbled through the FST's and then arrested the person, took him or her to jail, and charged him or her with DUI. It later came out through discussions with these people that they suffered from medical and or mental health conditions that can majorly affect performance on roadside FST's.

Obviously, if the accused person has suffered or is currently suffering from a condition affecting the back or legs this can affect the performance on the FST's, as their gait may be affected. There are other conditions that can also affect performance. For instance, "nystagmus" is the test where an officer will hold a pen or light in front of a person's face and waive it back and forth. This is allegedly to observe the jerking of the eyes. A tremendous amount of natural—and perfectly legal—chemicals and conditions can cause nystagmus.

Regarding the breath test machine, it is commonly known that if a person has diabetes or hypoglycemia, this can affect the validity of a breath test and cause false blood alcohol content readings. Heart burn and acid reflux can also cause false readings. Even a low carbohydrate diet can affect the validity of the breath test machine.

The criminal defense and DUI attorneys at Soler and Slack, P.A. have both prosecuted and defended hundreds of people charged with DUI. Please call us with any questions that you may have and to schedule a free case evaluation.

What is discovery in a criminal case?

Soler Slack Law — Fri, 10 May 2013 19:09:00 GMT

The "discovery process" in a criminal case is the process whereby the defendant demands, and the state turns over, all evidence that the state has in its possession that it plans on using against the defendant. The state is not allowed to hide evidence and later surprise the defendant with it at trial. Discovery allows the defendant to learn, or discover, what the case is all about. In addition, the state also has an obligation to turn over all exculpatory evidence—that is, any evidence tending to show that the defendant is not guilty of the crime charged.

How does criminal defense discovery work in Sarasota County?

The purpose of discovery in a criminal case is to prevent surprise and to facilitate a truthful fact-finding process. In Sarasota County, after the defendant demands discovery, the state will (usually in about 15-30 days) turn over a document containing all witnesses (generally the people the police officer brings to the state's attention that observed or have information regarding the crime at issue). This document also contains a checklist of all the evidence that the state has in its possession. For instance, if the state has in its possession any pictures, video, fingerprints, witness statements, etc. , it should be listed in this document.

After reviewing this initial discovery, the defendant will know more about the case that the state has against him or her. The defendant's attorney may then schedule depositions where category A witnesses (usually witnesses who observed the alleged crime) can be questioned under oath. Depositions are also a part of discovery. After depositions are concluded, the defendant will know exactly what the witnesses observed and are likely to testify to in the event that the case goes to trial or to a motion to suppress or dismiss hearing.

How Soler and Slack, P.A. can help you

After we receive discovery, the lawyers of Soler & Slack, P.A. will schedule a time to meet with you and review this discovery. We will then discuss with you the best course of action to take. Sometimes this will be to file motions to dismiss or suppress the evidence or the entire case. Other times the best course to take will be to negotiate a better plea offer. And of course, the defendant will always have the option to continue the case to trial.

Please call our attorneys at (941) 444-5128 with all questions and to schedule a free case evaluation.

Can I be convicted of DUI simply because I have an illegal drug or a controlled substance in my blood or urine?

Soler Slack Law — Thu, 09 May 2013 17:00:00 GMT

In order to convict you of driving under the influence (DUI), the state of Florida must prove beyond a reasonable doubt that you were operating a motor vehicle while under the influence of alcohol or a controlled substance to the extent that your normal faculties were impaired.

Florida case law indicates that simply having alcohol, an illegal drug (like cocaine, oxy, or marijuana), or a controlled substance in your blood or urine is not enough to convict you for DUI—the prosecutor must be able to prove that the alcohol, illegal drug, or controlled substance impaired your normal faculties. According to Florida Statutes, normal faculties include, but are not limited to, "the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and, in general, normally perform the many mental and physical acts of daily life."

This is the supposed reason that officers request one to perform field sobriety exercises on the side of the road when an officer suspects that on is driving under the influence. The field sobriety exercises are supposedly designed to test one's normal faculties.

We have written a tremendous amount of valuable information about DUI's on the Soler & Slack, P.A. website and blog. Please click here to access that content and feel free to call us if you have any questions or would like to schedule a free case evaluation.

Will my juvenile conviction count against me for my new arrest?

Soler Slack Law — Wed, 08 May 2013 14:11:00 GMT

There are a lot of misconceptions about how juvenile charges work and how they effect charges later on in life. Most people view juvenile charges and convictions as being not very serious. However, juvenile convictions can have a large impact if one gets into trouble as an adult.

Prosecutors will have access to all your criminal history when they are determing what an appropriate plea offer would be. The criminal history includes convictions, arrests without a conviction, out-of-state charges, and juvenile charges. The outcome, type, and number of charges will be weighed along with the facts to make a plea offer. Juvenile convictions are used in this determination as if they were committed by an adult.

There are limits, however, set out by the Florida legislature on the use of juvenile priors for felony scoresheets. A scoresheet is something a prosecutor uses to calculate a potential felony sentence. Under Florida law, juvenile priors can only be used on a scoresheet if they occurred within the last 5 years (10 years if it was a sex crime). For example, if a person committed a burglary when he was 16 and then committed a grand theft when he was 20, then the burglary will be scored on the scoresheet as a prior when determining the guidelines for the grand theft charge. As far as points go, a scoresheet does not give different points for juvenile crimes, they are scored the same as those committed by an adult. This can be significant because juvenile priors can be the reason a scoresheet determines a person should go to prison.

Florida Ban on Texting While Driving Law (SB 52) 316.305

Soler Slack Law — Wed, 01 May 2013 18:31:00 GMT

The Florida House has passed bill SB52 banning text messaging while driving, more specifically prohibiting operating a motor vehicle while using a "wireless communications device". A "wireless communications device" is defined as "any handheld device used or capable of being used in a handheld manner, that is designed or intended to receive or transmit text…." This definition would include most phones, tablets, and laptops.

It is very important to note that the language of the bill does not require that you be actively typing into the device, but also includes, "… reading data in such a device for the purpose of nonvoice interpersonal communication…." (Italics added) Apparently, if you glance down at the screen of your phone or tablet and "read the device" while driving then you are in violation of the law.

There is no doubt that texting while driving is not a good idea, and can potentially be fatal. However, the question becomes do we really need another law on the books in Florida when there are already Florida laws in place that can be used to combat texting while driving? For instance, one can be cited or charged with careless driving or reckless driving. Nevertheless, Governor Scott is expected to sign the bill so it will likely be another law Floridians must contend with.

When referring to a criminal sentence, what does consecutive, concurrent, and coterminous mean?

Soler Slack Law — Thu, 25 Apr 2013 20:47:00 GMT

Example of a Concurrent Sentence

Concurrent means the sentences are running together at the same time. Let's say that a defendant is charged with two different crimes, for instance driving on a suspended license (DWLS) and driving under the influence (DUI). When the defendant is sentenced, if the judge orders the DUI sentence to run concurrent with the DWLS sentence, both sentences will run at the same time.

The below diagram shows a concurrent sentence where a defendant has been sentenced to 4 months county jail on a DUI and 2 months county jail on a DWLS. The sentences both run concurrent (together), at month 2 the DWLS sentence is complete, at month 4 the DUI sentence is complete. The defendant will serve a total of 4 months.

Month 1 Month 2 Month 3 Month 4 Month 5 Month 6

DUI:--------------------------

DWLS:---------

Example of a Consecutive Sentence

Consecutive means one sentence will follow after another. For instance, if the judge orders the defendant to serve consecutive sentences, the person will have to complete one sentence first before beginning to serve the other sentence.

Month 1 Month 2 Month 3 Month 4 Month 5 Month 6

DUI:-------------------------DWLS:-----------

Example of a Coterminous Sentence

Coterminous means that a sentence will end at the same time as another. For this example let's assume that the person is currently serving a 6 month sentence for a DUI and 2 months before he is released he is sentenced to serve 3 months for a probation violation, the sentence to run coterminous to his DUI sentence. This means that at the conclusion of his DUI sentence, he will be released.

Month 1 Month 2 Month 3 Month 4 Month 5 Month 6

DUI:-----------------------------------------

>>>>>>>>>>>>>>>>>>>>>>DWLS----------

What is jury nullification?

Soler Slack Law — Tue, 23 Apr 2013 19:07:00 GMT

The result of a jury trial is called a verdict. The main two verdicts are guilty or not guilty. These are what are commonly seen in tv, movies, and books dealing with the criminal justice system. However, there is a third option referred to as jury nullification.

It is the providence of the jury to determine fact and the providence of the judge to determine law. At the end of a trial, after both sides have presented evidence and argument, the judge instructs the jury on what the law is for that particular case. The judge then instructs the jurors to go back and deliberate to determine if the State has proved its case beyond a reasonable doubt. What happens in the jury room is confidential and unknown to all those in the courtroom anxiously awaiting the result. So what happens if the jurors agree that the person committed a crime, but does not believe the defendant's actions should be illegal? Or there are many mitigating factors or legitimate reasons for the commission of the crime? Does the jury have to find him guilty anyway?

The simple answer is no, the jury can find the defendant not guilty. When the evidence proves the defendant committed the charged crime beyond a reasonable doubt, but a jury finds him not guilty anyway, this is jury nullification. A judge will not instruct the jurors about, and neither party can mention or request, jury nullification because judges and lawyers want juries to reach a "just" verdict in a case. But it can and does happen everyday and most of the time there is nothing a judge or lawyer can do about it.

What is the difference between drug offender probation and regular probation?

Soler Slack Law — Thu, 18 Apr 2013 18:37:00 GMT

While the terms of probation can vary from area to area, there are some specialzed probation programs that will be given in some cases. One of the more popular types of probation in Sarasota and Manatee counties is drug offender probation. Drug offender probation is only given in felony cases.

Drug offender probation can be recommended with many different charges. Most commonly it is handed out with some charge related to a controlled substance (possession, sale, intent to sell, etc.) However, drug offender probation can also be recommended in cases such as theft, dealing in stolen property, and other crimes where there is an indication the underlying cause for the crime is a drug addiction.

Drug offender probation is similar to regular probation in length, community service, etc. but has some unique requirements that attempt to address a probationer's addiction. The major component of this probation is the mandatory random urinalysis. This is used to ensure the probationer stays clean and helps to monitor addiction progress. Also, many times a curfew will be required. Depending on the level of addiction, counseling and narcotics anonymous meetings may be ordered as well.

Arrested in Sarasota or Manatee for underage drinking as part of Operation Dry Spring?

Soler Slack Law — Thu, 11 Apr 2013 19:33:00 GMT

Recently, a statewide initiative to curb underage drinking took place in Sarasota and Manatee counties. Known as Operation Dry Spring, the initiative focused on underage drinkers out for spring break celebrations.

Though law enforcement may be trying to curb the repercussions of underage drinking, these charges can ultimately have serious and permanent consequences for the one arrested. Underage drinking in Florida is a criminal misdemeanor. If an arrest was made and a conviction received, then it may be necessary to disclose this on various documents such as job and college applications. A criminal conviction ultimately has the potential to prevent someone from going to college or getting a job.

If you have been arrested and/or charged with underage drinking, then please do not hesitate to call our attorneys at (941) 444-5128 to schedule a free consultation. In some cases we may be able to get the charges dropped. Also, it may be possible to resolve the charges without you ever having to step foot in a court room.

You can find the news article in the Sarasota Herald Tribune regarding Operation Dry Spring here.

Can I challenge a stop and search if I was the passenger in a car?

Soler Slack Law — Thu, 11 Apr 2013 18:43:00 GMT

Florida law is tricky when it comes to challenging a search of a vehicle. This is especially true when the passenger of a vehicle wants to challenge a stop. Not only does a passenger have to show that the search and seizure was unlawful, the passenger must also have standing to challenge the stop. There a few different scenarios that will better illustrate the nuances of this search and seizure law.

First Scenario: You are the passenger in a vehicle that is lawfully stopped, that is the cops stop the car for a valid, legal reason. You will likely not have standing to challenge the stop and subsequent search of the vehicle. This is based on the theory that since the vehicle is not yours, then you have no reasonable expectation of privacy to challenge the search of the vehicle. If some incriminating evidence is found, it is unlikely that it will be suppressed.

Second Scenario: You are the passenger of a vehicle that is unlawfully stopped. For one reason or another, a cop stopped the vehicle for a reason that is not recognized as a valid, legal stop under statute or case law. In this case, you will have standing to challenge the stop itself. As opposed to the first scenario, in this case you are being seized unlawfully and can challenge the unlawful seizure and any subsequent search.

Third Scenario: You are the passenger of a vehicle that is lawfully stopped. The cops search the interior of the car and also your purse, backpack, bag, etc. In this case, you will not be able to challenge the search of the vehicle, but you may be able to challenge the search of your personal belongings. The search of the vehicle cannot be challenged because it is similar to the first scenario above. However, the law recognizes that there may be a privacy interest in an individual's belongings. The interest belongs to that individual only and therefore the individual will have standing to challenge a search of those belongings. So, for example, if the cops searches the vehicle and find drugs under your seat and searches your bag sitting on the back seat and finds drugs in the bag, the search of your bag could be challenged but it is unlikely the drugs found under the car's seat could be challenged.

This area of law is quite complicated and fact-specific. If you have questions please give us a call at (941) 444-5128 to discuss your situation and to set up a free consultation.

When the police officer or detective spoke to you, did he or she promise you help or leniency if you cooperated and answered questions?

Soler Slack Law — Mon, 08 Apr 2013 17:28:00 GMT

A confession or admission must be freely and voluntarily given. There should be no coercion through scaring a person or offering them hope or help. Admissions attained by police through direct or even implied promises of help or leniency may be involuntary and subject to suppression.

In determining whether a confession was freely and voluntarily given, the judge will consider the "totality of the circumstances" surrounding the confession. This means that the judge will consider the various facts and circumstances surrounding the confession and judge each case on its own unique facts.

A police officer stating that he or she can help an accused, offering to speak to the prosecutor on the accused person's behalf, or implying that the accused will be dealt with leniently if they cooperate, may render any subsequent admission or confession involuntary.

To speak with an attorney for a free case evaluation call (941) 444-5128.

What's the difference between PTI (pre-trial intervention) and Probation?

Soler Slack Law — Wed, 03 Apr 2013 15:01:00 GMT

Many people become confused about the difference between probation and pre-trial intervention (PTI). Both are "resolutions" to a criminal case. While there are some similarities, there are some major differences that you should be aware of.

While both PTI and probation are supervised by either local county probation or Florida Department of Corrections, depending on whether your charge is a misdemeanor or felony respectively, probation is the more severe punishment. When you are put on probation it means you were either adjudicated or had adjudication withheld and the charge will remain on your record. A term of probation can be anywhere from six months for a second degree misdemeanor to a life probation for life felonies. The punishment for violating probation is also more severe. Violating probation can result in a period of incarceration in the county jail or a lengthy one in prison.

By comparison, a PTI agreement can be much less strenuous and has a major advantage if completed. Probation officers will still be supervising you while on PTI, but you are not officially on "probation". The period of PTI can vary with the charge, but is generally considerably shorter than a period of probation. PTI also generally has less strenuous requirements as compared to probation. If you violate your PTI agreement somehow, you will likely not get thrown back into jail immediately. Your PTI officer will most likely send the state attorney a form stating why you violated and the state attorney will then issue a summons requiring you to come back to court and deal with the criminal charge as you would have before. The result of completing PTI successfully is that your charge gets completely dropped by the state attorney.

The police officer is lying: I never gave consent to search

Soler Slack Law — Mon, 25 Mar 2013 19:52:00 GMT

It is becoming increasingly common to read police reports where evidence of drugs was allegedly found after a "consensual" search only to speak to the defendant who is adamant that he or she never gave the police officer consent to search. This is becoming common to the point that there is a judicially recognized phrase to define it; it is referred to as: "consent to search under objectively questionable circumstances."

If this has happened to you, do not give up all hope. Though it can be difficult to convince the judge that you are the one he or she should believe and not the police officer, it may not be impossible. This is because police officers often only know the law to a certain degree. They will think that they are saying and writing the "right" things to convict a person, but will overlook many details that, if accurately and properly presented to the judge, will indicate that any supposed consent to search was in fact not freely and voluntarily given.

There is a tremendous amount of case law detailing specific facts and circumstances that indicate when a search is consensual and when it is not. Whether a search was consensual or not turns on much more than the allegations of the police officer—various factors such as the amount of officers present, their specific words and actions, and where the officers were positioned are just a few variables that will affect whether a search was truly consensual or not.

The art and science of the criminal defense attorney involves discovering the necessary facts, presenting them to the judge in the proper fashion, and arguing the relevant case law. If you would like to meet with one of our criminal defense attorneys for a free case evaluation, call (941) 444-5128.

For an excellent article/comentary on this issue, see this post on staugustine.com entitled, "A Look at a Recent Court Case Concerning Officer Testimony."

I can't afford my probation fees and costs, what can I do?

Soler Slack Law — Fri, 22 Mar 2013 17:17:00 GMT

When being sentenced by a judge in a criminal case, often fines and fees are the last things on a defendant's mind. However, these monetary matters can cause potential problems later on down the road when it comes to successfully completeing probation and sometimes even beyond the conclusion of probation.

Many probation offices, state or county, in Florida will have implemented a sliding scale (adjusting costs of supervision with the ability to pay) as to the costs of probation. Upon request, a judge may also waive the cost of probation or allow for probation to do so. Trying to get this done up front (when you plea or are sentenced) is the best way to address this.

However, even if probation costs are waived, under Florida law, court costs and other statutorily mandated fines may not be waived (such as the fines for DUI or Domestic Battery charges). The problem becomes that if one does not pay these, one may find oneself in violation of probation. So what can be done to avoid this and take care of money issues?

One possible solution is to request that the judge allow you to do community service work in lieu of the costs. This is done under probation's supervision during the period of probation announced during sentencing. Generally, in Florida, the exchange rate is one hour equals $10 (e.g., a $500 fine will be 50 community service hours). Be aware, though, that if you ask a judge to convert money to community service hours, and then you do not complete the community service hours, you may very well be facing jail time. Please see our prior blog post on the issue of: "Can I violate probation for not paying fines and fees?"

Another possible solution to monetary sanctions is to allow the judge to put them to a judgment. This approach basically "wipes the slate clean" as far as the criminal case is concerned. There is a downside however: the debt never really gets wiped clean as you will have a civil judgment outstanding that will effect your credit until it is paid off. Also, if there is a judgment for outstanding court costs, the Department of Motor Vehicles will suspend a person's driver's license until the judgment is paid.

Please do not rely on this information to make legal decisions in your case. Please call our attorneys with any questions and/or to set up a free case evaluation.

The police officer lied about the reason for stopping my car and I was charged with a crime, what can I do?

Soler Slack Law — Tue, 19 Mar 2013 16:43:00 GMT

There have been several articles in the Sarasota Herald Tribune recently regarding police officers who apparantly lied about the reason that they stopped a vehicle. A police officer cannot stop your car for any reason or no reason at all--the cop must have a VALID LEGAL reason to stop you. For instance, "the driver looked suspicious" is not enough for a legal stop. What if a police officer intends to stop someone but has no valid legal reason to make a stop. Well, unfortunately, sometimes they will make one up! Common police traffic stop fabrications include driving without a seat belt, not using lights while driving a bike at night, and driving with too dark window tint (believe it or not, this stop often occurs at night)!

So what can be done it the police make up a reason for a stop and you are later charged with a crime. If the police officer is intent on fabricating the reason for a stop, catching the officer in the fabrication and purjury can be very difficult. It is not a lost cause, though, keep in mind the following issues so you can be prepared if you are ever presented with a lying cop:

Witnesses can be very important to your case. Be sure to talk to everyone who may have witnessed the illegal stop and write down a summary of what they saw as well as their name, address, and phone number. The witnesses can later be called during a motion to suppress hearing to testify to what really took place. Often when police are intent on fabrication and obfuscation they will NOT take down the names off all the witnesses present.

Depositions can often be taken of the officer—in all felony cases (and some misdemeanor cases—especially if the state is seeking jail time) the judge will allow the defense attorney to question the police officers involved with the case under oath. It is very important that your attorney know ALL the facts of your case prior to going into deposition. Armed with a multitude of facts your attorney can ask very detailed and specific questions which may make it very difficult for the officers to fabricate or weasel out of questions. Immediately after the event, call your criminal defense attorney AND write down a VERY DETAILED summary of events.

Was the stop recorded? Obviously the police officer will usually not video record his or her illegal stop (however, we have actually seen it happen a few times!). Although the cop will not likely have video, it is possible that a surrounding business security camera, or even traffic camera, may have recorded the stop. These can be obtained by court order (subpoena) or sometimes just by politely asking the camera owner.

Did the officer lie in other areas of the police report or criminal case? If your criminal lawyer can uncover other areas where the officer lied, and these can be shown to the judge (or in some cases the prosecutor) it may be possible to impeach him or her (show that the officer's credibility is at issue). If you can prove that the cop lied in one place, the judge may very well choose not to believe the officer in other areas—especially if you have corroborating evidence.

Don't give up all hope if the police officer has lied in your case--We may be able to help you! Call our attorneys at (941) 444-5128 for a free case evaluation.

Here is an interesting article from the new York Times entitled, "Why police lie under oath."