Criminal Law

Drug Trafficking Mandatory Minimums

150 150 Joel Leppard

When it comes to drug trafficking charges, a person does not have to actually sell a drug in order to break Florida’s drug trafficking laws. Different drugs carry a different minimum mandatory prison sentence based on the weight of the drug. For example, possession of 1 gram or more of LSD can result in a >1 but less than 5 gram Trafficking in LSD charge.

Minimum mandatory prison sentences do not usually receive “gain time,” or a reduction in prison time for inmates who display satisfactory behavior , educational attainment or participate in other incentive programs. Click here for more information on types of gain time.  Cases involving drug trafficking charges, however, are entitled to gain time. This is because the court in Mastay v. McDonough, Florida Department of Corrections, 928 So. 2d 512 (Fla. 1st DCA 2006)held that drug trafficking charges are eligible for gain time, just  not discretionary release.

Drug trafficking offenses are taken very seriously, with mandatory minimum sentences that range from 3 years to 25 years in prison. If you are arrested for trafficking, it is crucial to contact an experienced Orlando criminal defense attorney to represent and defend you in court.

The chart below shows the minimum mandatory sentences for trafficking in various drugs:

Offense
(Knowingly sells, purchases, manufactures, delivers, or brings into
the state, or who is knowingly in actual
or constructive possession of:*)
Drug AmountMandatory Minimum Sentence & Fine
Cocaine28 - 200 grams

200 - 400 grams

400 grams – 150
kilograms
3 years, $50,000 fine

7 years, $100,000 fine

15 years, $250,000 fine
Marijuana25 - 2000 lbs or 300 - 2000 plants

2000 - 10,000 lbs or 2000 - 10,000 plants

10,000+ lbs. or 10,000
plants
3 years, $25,000 fine

7 years, $50,000 fine

15 years, $200,000 fine
GBL1-5 kilograms

5-10 kilograms

10+ kilograms
3 years, $50,000 fine

7 years, $100,000 fine

15 years, $250,000 fine
Phencyclidine28 - 200 grams

200 - 400 grams

400+ grams
3 years, $50,000 fine

7 years, $100,000 fine

15 years, $250,000 fine
Methaqualone200 grams – 5 kilograms

5 - 25 kilograms

25+ kilograms
3 years, $50,000 fine

7 years, $100,000 fine

15 years, $250,000 fine
Amphetamine or methamphetamine14 – 28 grams

28 – 200 grams

200+ grams
3 years, $50,000 fine

7 years, $100,000 fine

15 years, $250,000 fine
Flunitrazepam4 – 14 grams

14 – 28 grams

28 grams – 30 kilograms
3 years, $50,000 fine

7 years, $100,000 fine

25 years, $500,000 fine
GHB1 - 5 kilograms

5 - 10 kilograms

10+ kilograms
3 years, $50,000 fine

7 years, $100,000 fine

15 years, $250,000 fine
Morphine, opium, oxycodone,
hydrocodone, hydromorphone, or any
salt, derivative, isomer, or salt of an
isomer, including heroin
7 - 14 grams

14 - 25 grams

25 - 100 grams

100 grams - 30 kilograms

30+ kilograms
3 years, $50,000 fine

7 years, $100,000 fine

15 years, $500,000 fine

25 years, $750,000 fine

life imprisonment without parole
LSD1- 5 grams

5 - 7 grams

7+ grams
3 years, $50,000 fine

7 years, $100,000 fine

15 years, $500,000 fine
Phenethylamines10 – 200 grams

200 - 400 grams

400+ grams
3 years, $50,000 fine

7 years, $100,000 fine

15 years, $250,000 fine
1,4-Butandediol1 - 5 kilograms

5 – 10 kilograms

10+ kilograms
3 years, $50,000 fine

7 years, $100,000 fine

15 years, $500,000 fine

Possible Penalties and Defenses for Driving With a Suspended License

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In Florida, a driver’s license may be suspended for a variety of reasons, including, but not limited to:
• Failure to pay a traffic fine.
• Failure to pay child support.
• Failure to maintain insurance.
• Reckless driving.
• Driving Under the Influence (DUI).
• Accumulation of traffic points.

A person who is caught driving with a suspended license may face serious consequences. A person driving under a suspended license with knowledge of the suspension can be charged with a criminal offense. Under Section 322.34, Florida Statutes, a first offense for driving with a suspended license (with knowledge of it being suspended, canceled or revoked) can result in 60 days jail and a fine of up to $500.00.

A person driving under a suspended license without knowledge of the suspension can receive a civil citation, where they must pay a fine.

Driving with a suspended license—either with or without knowledge—also counts as one of the “Three Strikes” toward being labeled a “Habitual Traffic Offender.” If an individual receives three convictions within five years for, among others charges: Driving with License Suspended (even if you are not arrested) Driving Under the Influence (DUI), Fleeing and Eluding that individual will be labeled a “Habitual Traffic Offender” and lose their license for five years. If charged with a subsequent Driving with License Suspended offense while a Habitual Traffic Offender, this offense is a Third Degree Felony punishable by up to 5 years in prison, 5 years probation and a $5,000 fine.

Contact an Orlando experienced criminal defense attorney for a free consultation if you have been accused of driving on a suspended, canceled, or revoked license. You may be able to contest the charge or minimize penalties.

Some possible defenses include:

• Challenging the validity of the traffic stop.
• The accused was not aware that his license was suspended (in which case, under Florida law, the charge must be reduced to a non-criminal traffic violation).
• The accused’s Florida driver’s license had been reinstated or adequate reason existed to believe it had been reinstated.

Frequently Asked Questions After an Arrest

150 150 Joel Leppard

ARREST_2540291b

1. What rights do I have?

Whether you are an adult citizen or non-citizen, you have certain constitutional rights after you are arrested. Before the law enforcement officer questions you after an arrest, he or she should tell you that:

  • You have the right to remain silent.
  • Anything you say may be used against you.
  • You have a right to have a lawyer present while you are questioned.
  • If you cannot afford a lawyer, one will be appointed for you.

These are your Miranda rights, guaranteed by the U.S. Constitution. If you are not given these warnings, your lawyer can ask that any statements you made to the police not be used against you in court.

You also have a right to know the crime or crimes with which you have been charged and the identity of the police officers who are dealing with you.  Not every officer is forthcoming about this information, even though is your right by statute. You also have the right to communicate by telephone with your attorney, family, friends, or bondsperson as soon after you are brought into the police station as practicable. The police are allowed to complete their booking procedures before letting you use the telephone.

At this point, you should probably consider whether to use a local lawyer. For example, if you’re based in LA, then consider an injury lawyer in Los Angeles, especially if you were injured as part of the arrest and you feel as if the injury was unwarranted. You should bear in mind that things might be different in other states though so you should consider looking at other law firms such as https://www.nehoralaw.com/santa-ana-personal-injury-lawyers/.

2. If my Miranda Rights weren’t read, does this mean my charges will be dropped?

This is one of the most common questions I receive in my law practice.  Many people think that simply because the police failed to read them their rights, that the case is going to be automatically be thrown out. This is not true. Typically, the only thing that would happen if the rights were not read is that anything that said in response to police questioning after an arrest could not be used against you in your case.

Very frequently, officers have gathered all the information that they need PRIOR to the arrest and will not question suspects after their arrest and, thus, Miranda never needs to be read.    When the police have questioned you without reading your rights and, for example, you made a statement, that statement would not be able to be used in the case against you.  In most situations, it is best to not answer questions without having an attorney present.  If you ask to speak with an attorney, an officer must immediately cease questioning you.

Another common situation is where a suspect voluntarily provides information to the police that is not in response to a question.  In this situation, Miranda would typically not apply.  Miranda is a complicated area of the law with lots of rules and exceptions.  It’s best to consult with an experienced defense attorney to determine if your Miranda rights were violated in your situation.

3. What happens at an Initial Appearance?

Within 48 hours of your arrest, a judge will hold a preliminary hearing to decide whether there is “probable cause for your arrest” or enough evidence to support the charge against you. If the judge finds that there is “probable cause” for the charges — enough evidence that a reasonable person could be convinced that you committed the crime – then the judge will set the terms of your release.  The terms of release normally include a monetary bond set by the judge at the initial appearance and can also include other restrictions like checking in with a Pre-Trial Release Officer, not using or possessing weapons or not having any contact with the alleged victims of the case.

4. What is bail and how is it set?

The amount of bail bond – money or other security deposited with the court to insure that you will appear.  When setting the terms of your release, the judge will consider the seriousness of the offense with which you are charged, any prior failures to appear in court (even for traffic tickets), any previous criminal record, your ties and connections to the community, as well as the probability that you’ll appear in court.  Florida law provides that for most cases bond should be set in at reasonable amount that is attainable by the defendant. You have the right to get yourself a bail bond person such as 1st choice bail bonds if you feel that this would benefit you. In reality, oftentimes a judge may set bond at an amount too high for a defendant to afford.  A criminal defense attorney can file a motion with the court asking the judge to reduce the bond and/or modify the conditions of release (such as not having any contact with the victim).

I just got arrested on a DUI – what’s next?

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Driving under the influence (DUI) is defined as operating a motor vehicle while impaired with a blood alcohol content (BAC) of 0.08% or higher, a chemical substance, or a controlled substance after taking an alcohol test. Those under 21 years old can be charged with a DUI if their BAC is 0.02% or over and commercial drivers can be charged if their BAC is 0.04% or over.

After you are charged with a DUI, you may feel confused, upset and fearful. It is very important to consult with an experienced criminal defense attorney to help you receive the best possible outcome in your case. This is also heavily dependent on where you reside. For example, if you reside in Tampa, then you’ll need to choose a DUI attorney in tampa who can deal with your case while understanding the local State and City laws.

Things to consider after getting out of jail for DUI….

License Suspension

Keep in mind that in every DUI in Florida, there are two separate cases that flow from the same offense. In addition to criminal penalties and charges, you will also have a separate civil case filed against you with the Department of Highway Safety and Motor Vehicles.

You have 10 days from the date of arrest to do one of two things. First, you or your attorney can request an Administrative Hearing (formal or informal) in order to determine if the officer had probable cause to arrest you for a DUI. The second option is to forfeit your right to a review hearing in exchange for having a Business Purpose Only (BPO) license issued immediately. This option only applies if you have never had a prior DUI administrative suspension or DUI conviction. You must enroll in DUI School and show proof to DHSMV in order to obtain your BPO license. Failure to request either option within 10 days of your arrest will result in you losing your right to challenge the suspension.

What is an Arraignment on a DUI?

At an arraignment the judge court will inform you of the charges against you and give you the opportunity to plead guilty, no contest or not guilty. A guilty plea or no contest plea will place you at the mercy of the court and the judge find you guilty and will sentence you right then and there in the courtroom–the judge could even send you to jail. There is normally no advantage to entering a guilty or no contest plea at arraignment, especially if you haven’t spoken with an attorney yet to examine the possible weaknesses in the prosecutor’s case. If you miss your court date, hiring an attorney can be a crucial move. An attorney can get sometimes negotiate away a failure to appear and get a suspension of your license cleared. Furthermore, if you hire a DUI attorney, he can waive your appearance at your arraignment and Pre-Trial Conference court dates so that you do not have to attend if you do not want to.

Trying to resolve your case without an experienced DUI attorney is generally not a good idea. Before entering a plea, at a minimum, you and your attorney should review all of the police report, watch the roadside video (if available) as well as the video taken at the breath center to determine the strength of your case.

Is jail time mandatory if I am convicted of a DUI?

No. Not for the first conviction. However, for a second conviction within five (5) years of a prior conviction, a minimum imprisonment term of ten (10) days is required. For a third conviction within ten (10) years of a prior conviction, a minimum imprisonment term of thirty (30) days is required by law.

Can my charges be reduced?

Sometimes, a skilled DUI attorney can get a DUI “reduced” to the charge of reckless driving (alcohol related). This is not actually a reduction of charges; rather, it is an amendment. DUI in Florida carries with it a mandatory minimum penalty which requires an adjudication of guilt. If someone has been adjudicated guilty, it means they have been convicted. When someone enters a plea of no contest to reckless driving, Florida Law does not require the judge to adjudicate that person guilty; rather, the judge may withhold the adjudication which means that person has not been “convicted”. Moreover, unlike a DUI conviction, the disposition of a reckless driving charge usually does not increase ones insurance rates, does not carry a mandatory driver’s license revocation with it, and it can be sealed at a later date in many cases. A judge is not authorized to “reduce” a DUI charge to reckless driving. This can only be achieved through plea negotiations with the prosecutor. An experienced DUI attorney can use knowledge of the law, effective use of motions and artful plea negotiations to attain a “reckless driving” plea offer for his client.

DUI PENALTIES

Unlike the penalties for most other misdemeanors, the minimum statutory penalties for a DUI conviction in Florida can be very severe and involve various types of punishment, including, but not limited to any of the following:

MINIMUM AND MAXIMUM DUI PENALTIES IN FLORIDA

1x Conviction:

Minimum Penalty Maximum Penalty Comments
Jail None Six Months – Max. Nine months if .15 or above, or minor in vehicle- Max. Year if crash
Probation Early Termination One Year
Driver’s License Suspension Six Months One Year
Community Service Fifty Hours Discretionary
Impoundment Ten Days Thirty Days
Ignition Interlock None Six Months – Required if .15 or above, or minor n vehicle
DUI Counterattack Class Required
Victim Impact Panel Required
Fine $500 $1,000 – $1,000-$2,000 if .15 or above, or minor in vehicle

2x Conviction within 5 Years of Previous DUI Conviction:

Minimum Penalty Maximum Penalty Comments
Jail Ten Days Nine Months – Max. Twelve months if .15 or above, or minor in vehicle
Probation Early Termination One Year
Driver’s License Suspension Five Years
Community Service None None
Impoundment Thirty Days
Ignition Interlock One Year – Two Years if .15 or above, or minor n vehicle
DUI Counterattack Class Required
Victim Impact Panel Required
Fine $1,000 $2,000 – $2,000-$4,000 if .15 or above, or minor in vehicle

2x Conviction with Previous DUI Conviction Outside of 5 Years:

Minimum Penalty Maximum Penalty Comments
Jail None Nine Months – Max. Year if .15 or above, or minor in vehicle
Probation Early Termination One Year
Driver’s License Suspension Six Months One Year
Community Service None None
Impoundment Ten Days Thirty Days
Ignition Interlock Year – Two Years if .15 or above, or minor n vehicle
DUI Counterattack Class Required
Victim Impact Panel Required
Fine $1,000 $2,000 – $2,000-$4,000 if .15 or above, or minor in vehicle

3x Conviction within 10 Years of Previous DUI Conviction:

Minimum Penalty Maximum Penalty Comments
Jail Thirty Days 5 years – If upgraded to felony then Max. Five Years Prison
Probation Early Termination 5 years – If upgraded to felony then Max. Five Years Five Years Probation
Driver’s License Suspension Ten Years – eligibility for hardship driver’s license after 2 years
Community Service None None
Impoundment Ninety Days
Ignition Interlock Two Years
DUI Counterattack Class Required
Victim Impact Panel Required
Fine $2,000 $5,000 – $4,000-$5,000 if .15 or above, or minor in vehicle

3x Conviction with Previous DUI Conviction Outside of 10 Years:

Minimum Penalty Maximum Penalty Comments
Jail None Year
Probation Early Termination One Year
Driver’s License Suspension Six Months One Year
Community Service None None
Impoundment Ten Days Thirty Days
Ignition Interlock Two Years
DUI Counterattack Class Required
Victim Impact Panel Required
Fine $2,000 $5,000 – $4,000-$5,000 if .15 or above, or minor in vehicle

4x Conviction of DUI or more:

Minimum Penalty Maximum Penalty Comments
Jail None Year – If upgraded to felony then Max. Five Years Prison
Probation Early Termination One Year – If upgraded to felony then Max. Five Years Five Years Probation
Driver’s License Suspension Lifetime Revocation
Community Service None None
Impoundment None None
Ignition Interlock None None
DUI Counterattack Class Required
Victim Impact Panel Required
Fine $2,000 $5,000

New law makes traffic ticket quotas illegal in Florida

150 150 Joel Leppard

florida-flashing-headlights-speed-trap-free-speech1

It is not uncommon to see police officers implementing speed traps in areas where the speed limit drops drastically within short distances. Sometimes, officers feel the need to implement these speed traps in order to meet monthly traffic ticket quotas.

Fortunately for motorists, Gov. Rick Scott signed a law this week that forbids local governments from having ticket quotas. The law will take effect on July 1 and requires law enforcement to submit reports to the Legislature if their traffic ticket revenues cover more than one third of the costs of operating their agencies. They may also be audited and face investigation by the state attorney general.

Supporters of the law believe that it will ensure transparency in government and prevent the exploitation of motorists.

To learn more, read the full article on: http://www.wesh.com/news/new-law-makes-traffic-ticket-quotas-illegal-in-florida/33089614

New York state settles landmark suit over public defenders

150 150 Joel Leppard

Apparently, the reperesentation by public defenders is so bad in NY that the state settled  a lawsuit claiming its public defense system is underfunded and violates indigent’s rights to effective counsel.

Under the agreement, New York must spend $4 million in the next two years to “increase attorney communications with poor criminal defendants, promote the use of investigators and experts, and improve the qualifications, training and supervision of lawyers representing indigent defendants.”

Newsweek article here: http://www.newsweek.com/new-york-tktk-landmark-public-defense-case-278889

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