Latest Criminal Defense Case Results

Lawmakers Challenge Burden Of Proof In Red Light Camera Laws

Red Light Camera’s are becoming increasingly more common in many cities and municipalities and provide a new source of much needed revenue and are touted as increasing safety. However if cited with a red light ticket, the current law places the burden of proof on the driver and not the government but proposed changes may switch the burden of proof as reported in the story by Fox 13.

State lawmakers could make it much easier to challenge citations from red light cameras. A new bill advancing through the Florida Senate would switch the burden of proof.

If passed, law enforcement would have to prove the driver is guilty. It would also require the state to verify the accuracy of the video. Traffic defense attorneys strongly support the new bill, which unanimously passed today in the Senate Transportation Committee.

“It would bring these red light camera tickets in line with every other ticket,” said traffic law defense attorney Keith Warshofsky. “It would just make it fairer for everybody. They would all be treated equally.”

Warchofsky said most red light camera citations are not currently challenged in court. He said the best chance of currently getting a case dismissed (in Tampa Bay) is for a cited driver to demonstrate he/she was not driving the car when it was flagged by the camera. He said a driver also has a better chance of getting a case dismissed if he/she was driving a rental car.

If you have been cited with a red light violation contact the Mastrogiovanni Law Firm for a free no obligation consultation concerning your rights.

Miami-Dade judge dismisses dozens of drug charges

Miami-Dade Circuit Judge Milton Hirsch dismissed dozens of illegal drug cases over what he says is a flaw in the state drug law, however no defendants walked out of jail.Related

Miami-Dade Circuit Judge Milton Hirsch echoed the ruling of a federal judge and tossed drug cases against 39 defendants Wednesday, saying he feels a section of Florida’s drug law is illegal.At issue is a 2002 change in the state law where legislators said authorities no longer had to prove that accused drug dealers had “knowledge” that they carried illegal drugs, but defendants still could use that defense at trial.

Three weeks ago, U.S. District Judge Mary Scriven ruled that the state’s drug law was “draconian” because it does not differentiate between a true drug dealer and a person who is inadvertently carrying drugs without realizing it .Scriven’s ruling in an Osceola County case has sparked hundreds of requests around the state from defendants saying they didn’t know they had drugs on them.Though Hirsch’s ruling agreed with Scriven, no one went free Wednesday.He placed a one-week stay on his order to give prosecutors time to appeal. Florida Attorney General Pam Bondi issued a statement later Wednesday saying her office would appeal. She already has in the Osceola County case of Shelton v. Department of Corrections.

In his decision, Hirsch said he was bothered by the possibility that a person who accidentally carried drugs for another person could be charged with a crime. The ability to bring up the issue once the case reaches trial was not enough, he wrote in an opinion.“It reaches beyond those who willfully do wrong, beyond those who negligently do wrong, beyond those who carelessly do wrong and includes within its wingspan those who meant no wrong,” Hirsch wrote. “As the Shelton court rightly notes, the simple acts of possession are part of daily life.”Bondi promised a vigorous fight.“This decision is flawed and it unduly hinders prosecutors’ efforts to keep criminals off our streets,” she said.Her comments mirrored those of Miami-Dade police Maj. Charles Nanney, of the narcotics bureau, who later said the ruling made it harder for officers to do their jobs.“It’s encouraging drug use,” Nanney said.Hirsch acknowledged that the vast majority of people whose charges he was dismissing may have been fully aware that they carried illegal drugs. But that was no reason to ignore what he saw as disregard for civil liberties.

via Calling law flawed, Miami-Dade judge dismisses dozens of drug charges – Florida – MiamiHerald.com.

Florida’s DUI Law Challenged as Unconstitutional

Last Month a Judge in Sarasota County ruled that a breath test machine was unreliable and excluded the results of an unknown number of breath tests, forcing prosecutors to rely on other evidence of impairment to attempt to prove these cases. This development stemmed from breath volumes provided by defendants that in some cases were medically impossible to produce, as reported in the following article.

Additionally, in Collier County Florida’s DUI law is being challenged as Unconstitutional. The argument stems from a Defendants inability to exercise their 6th Amendment right to confront the accuser, namely the Intoxilyzer 8000 by CMI Inc., the only instrument currently approved by the Florida Department of Law Enforcement to measure breath samples after an arrest.

The article explains that DUI Expert Thomas Workman hired in the Venice cases to analyze the state’s data on Florida’s 400 breath test machines said, “We don’t allow secret science in any area of the law except for DUI prosecutions.”

In DUI cases, defendants face penalties including loss of drivers licenses, fines, probation and jail time. Refusing to take a breath test results in a license suspension. “I really don’t think it’s too much to ask for this information. I can’t think of any good reason why this stuff should be a secret,” Workman said.

Analyzing the Florida Department of Law Enforcement’s data on the machines, Workman said he found 40 percent of them were not properly calibrated when agency inspectors checked them after the problems surfaced in January. The problem was measuring the amount of air blown into them by DUI suspects. An average person has a lung capacity of less than 5 liters. More than 1.1 liters is needed for the machine to properly analyze air to determine the amount of alcohol in a person’s body, Workman said.

However, the Intoxilyzer in the Venice jail recorded more than 12 liters for one DUI defendant, Workman said. “That’s just not possible,” he said. A machine analyzed at the Collier County Jail recorded more than 11 liters for a woman charged with DUI in June 2010, said Robert Harrison, the Sarasota attorney who hired Workman.

However, this went unnoticed by the woman and her attorney. She pleaded no contest, was fined and put on probation. That machine in Collier was recalibrated in June.

The machines in the Collier jail are routinely inspected by the state and the manufacturer, said sheriff’s spokeswoman Michelle Batten. “Each time they are challenged by a DUI defense team, we are and have always been ruled to be in compliance,” she said.

Officials for Intoxilyzer manufacturer CMI Inc. could not be reached for comment.
However, “we stand by the integrity of these instruments,” said FDLE spokeswoman Heather Smith. She said two measurements are always taken to ensure accurate results.

The amount of air, Smith said, doesn’t affect the results as long as at least 1.1 liters are recorded to get an accurate measurement. But she said FDLE is recalibrating the machines as a quality control measure.

The fate of Florida’s DUI law will likely be litigated to the Florida Supreme Court to determine if it’s Unconstitutional and this may take years. Until then Defense Attorneys will continue to challenge the Intoxilyzer 8000 and its results. If you or your family member have been arrested of DUI, contact our office, the Mastrogiovanni Law Firm for a consultation concerning your rights and how we can help you with your case.

About the author: Michael L. Mastrogiovanni is a partner at the Mastrogiovanni Law Firm and practices in greater Tampa Bay Area. He has handled numerous DUI cases and trials and is available to speak with you. Ask to speak with Michael for a free consultation concerning your rights and what can be done for you.

Uninsured Motorist Coverage: Why You Need It

Florida ranks among the top five states that have the highest percentage of uninsured motorists on our roads. Recent studies by the Insurance Research Council indicate 24% of Floridians fail to carry insurance coverage.You might asking yourself how this staggeringly high number impacts you? You are one of the responsible drivers who looks twice before changing lanes, you keep your hands firmly planted at 10:00 and 2:00 and understand that a yellow light means caution. The problem is these same principles are not shared by all drivers and if you or your family members are involved in a collision with any one of the 24% of uninsured motorists, you are responsible for any unpaid medical bills and will have no recourse for lost wages, loss of function or permanent injuries. Electing uninsured motorist coverage on your insurance policy can prevent this from occurring.

Florida requires that all licensed drivers carry coverage to protect property damage and their own personal injuries with the minimum legal limits set at $10,000 in personal injury protection and $10,000 in property damage liability. However, the law does not require licensed drivers to carry coverage for injuries caused to others.

This means if you and your occupants suffer injuries from an accident involving an uninsured or underinsured motorist, your own uninsured motorist coverage is available to you and the occupants of your vehicle.

When compared to the rising costs of medical care and treatment, the costs of electing to carry uninsured motorist coverage on your policy is minimal. Consider that the average cost of being transported by helicopter if you or one of your occupants is seriously injured in a collision will often exceed the minimum $10,000 in coverage many drivers elect. Unsure if you elected this coverage? Contact your insurance carrier or check your policy declarations page to make sure you elected this optional yet important coverage.

About the author: Michael L. Mastrogiovanni is a partner at the Mastrogiovanni Law Firm and practices in greater Tampa Bay Area. If you or your family members have been injured in any type of accident involving an automobile, contact our office today for a free consultation regarding your rights and what we can do to help you. You pay no fees or costs unless we are successful in resolving your claim.

Disability Applications On The Rise

Amid the economic uncertainty faced by many combined with the aging Baby Boom Generation, many Americans have turned to the Federal Government for assistance and applied for Social Security Disability and Supplemental Security Income benefits. Recent statistics indicate that applications for benefits have increased by nearly 50% over the past decade. This surge in disability applications has created an even larger backlog of cases with reports of applicants waiting 2 years or more for a decision. More on this article can be accessed here.

There are many strategies that can be used to expedite the process of being approved for Social Security Disability (SSD) and Supplemental Security Income (SSI) benefits, many applicants are wisely turning to lawyers for assistance. Most lawyers will accept both SSD and SSI cases on a contingency fee basis so the lawyer is not paid a fee unless the client is approved for benefits and receives a financial back-award. The amount of a financial back-award is based upon the date disability began or the onset date. An experienced lawyer will look for the earliest possible onset date in an effort to provide the client with the largest back-award available.

Many lawyers will pay for the client’s medical records that have not been requested by the Social Security Administration (SSA). At the initial levels of a disability or SSI case, medical records are requested by the SSA, but if the case progresses to a hearing the burden shifts to the applicant to provide the most up-to-date records. Many experienced lawyers agree to pay for the medical records throughout a case so they can review them with the client and correct any problems or inconsistencies that often occur when dealing with a doctor’s translated or illegible notes.

Anyone searching for a lawyer or law firm to handle a Social Security Disability or Supplemental Security Income case should create a simple checklist of questions to ask the lawyer that will handle the case. Here are several important questions that should be asked by anyone searching for a lawyer:

 

  1. Will my case be handled by a lawyer or is it done by a qualified representative / advocate?
  2. What is the lawyer’s name who will handle my disability case and how many cases have they handled?
  3. Do I have to pay any fees or costs if I am unsuccessful and do not receive benefits?
  4. Do I have to pay for and provide my own medical records at any point in my case?
  5. Can the law firm switch my case to other lawyers in the firm whenever they choose and without my permission?
  6. Does the lawyer work with medical professionals who can provide an independent medical exam and who pays for this?

If any of these questions are answered in the negative (“NO”), are simply avoided and not clearly answered, then the applicant should consider looking elsewhere.

In my opinion, the most important of these questions is if a lawyer will handle your case. Unfortunately, the Social Security Administration has provided a loophole that permits practically anyone who fills out the application, regardless of experience or education, to be given the title of “qualified representative” or “advocate.”

These “qualified representatives” or “advocates” can then advertise themselves in print, television and elsewhere and claim to be an “expert” or “specialist” in SSD and SSI cases. When, in reality, many of these folks have never seen the inside of a courtroom, argued to a judge or would understand the medical terminology required in competently dealing with these types of cases.

Conversely, a lawyer might have been practicing in this field for decades yet is not allowed to call themselves a specialist or expert because the state bar prohibits it.

I would suggest that you ask your “qualified representative” or “advocate” what they plan on doing if your case must be appealed to a federal court because the judge in your case did not follow the law?  Your lawyer will understand the term Caveat Emptor (it means buyer beware) and you should too.

These questions are just an example of some of the important topics that can be asked by anyone searching for a lawyer to handle their Social Security Disability or Supplemental Security Income case but should not be relied upon exclusively. Questions should be determined on a case-by-case basis and will vary depending on the type of benefit sought, the age and work history of the applicant and the disabling conditions.

 

About the author: Michael L. Mastrogiovanni is a partner at the Mastrogiovanni Law Firm and practices in greater Tampa Bay Area. He represents claimants in Social Security Disability and Supplemental Security Income cases and has helped clients as young as 4 years of age and as old as 65 years of age obtain benefits and back-awards.

Hernando County DUI cases in dispute

Hernando County agency inspector Frances M. Greifenberger, who was in charge of maintaining the DUI breath testing instruments for the sheriff’s office resigned after security breaches occurred at the Jail facility. Greifenberger was responsible for conducting monthly inspections and certifying the instruments were in compliance so the test results could be used in evidence in all Hernando County DUI cases. However, the rules require that in order to be in compliance, these instruments must be kept in a clean, dry and secured location and only allow authorized personnel access. Florida Administrative Code, Rule 11D-8.007(1)-(2) states, “Evidentiary breath test instruments shall only be accessible to a person issued a valid permit by the Department and to persons authorized by a permit holder…(2) The instrument will be located in a secured environment which limits access to authorized persons described in subsection (1), and will be kept clean and dry.” Reportedly Greifenberger resigned because she was no longer able to certify the breath testing instruments at the jail facility were in compliance with the rules. For further details see the article in the St. Petersburg Times,50 Hernando DUI cases could be in jeopardy due to security breach.

Greifenberger stated in deposition that these security breaches only took place after the Hernando County Sheriff’s Office assumed control of the jail facility in August 2010, but it is unclear how long she was aware of the security breaches before resigning.

Similar issues have occurred in other Florida jurisdictions involving how these breath test instruments are maintained and what really occurs behind closed doors. In Hillsborough County, expert witness Stephen Daniels has reviewed hundreds of hours of video footage and uncovered many instances where law enforcement personnel violated the rules on maintenance, failure to observe defendants for the required 20 minutes before a breath sample is provided and allegations of police misconduct. See the video DUI Undo Consultants.

In response to the security breaches, the Hernando County State Attorney’s Office sent out a Brady Notice to all defendants charged with DUI and explained how these security breaches may affect the breath test results from being used in any pending DUI cases. If you have more questions about your Hernando County DUI case, contact the Mastrogiovanni Law Firm to answer any questions.

DUI Checkpoints – The balance of public safety versus an intrusion on your personal rights

Throughout the year and especially during the holidays, many law enforcement agencies in Tampa Bay set up DUI Checkpoints in an effort to enforce Florida’s law regarding operating a vehicle while being impaired or commonly known as drinking and driving. These checkpoints are essentially roadblocks that filter the flow of traffic into a single line and stop certain vehicles (i.e. every 5th or 7th vehicle) to briefly speak with the driver and check for signs of impairment.

The intrusion on a driver that displays no signs of impairment is supposed to be minimal, they remain in the vehicle and following several questions the driver is released and routed back to the road to resume their journey. However, if an officer suspects impairment, most commonly bloodshot or watery eyes, an odor of alcohol, or impairment by prescription medication or drugs, this creates reasonable suspicion that permits law enforcement to conduct a more thorough investigation. The suspected impaired driver is routed to another area, must exit the vehicle and often will be asked to complete field sobriety tasks and answer questions about medication or alcohol consumption. If the driver fails these tasks, they are placed under arrest and taken to a mobile breath testing unit located on scene.

Many critics of these DUI checkpoints argue that being stopped is an unwarranted intrusion on our 4th amendment right to be free from unreasonable searches and seizures. However, the courts disagree, the U.S. Supreme Court in Michigan Dept. of State Police v. Sitz, ruled that the minimal intrusion placed on a driver stopped at a DUI checkpoint, despite being an unwarranted search and seizure is outweighed by the State’s advancement of a legitimate interest in protecting its citizens and preventing impaired driving.

In permitting this intrusion, the courts require all DUI checkpoints have a specific set of guidelines that must be followed. These guidelines cover everything from job assignment and what number vehicle is stopped (every 7th car), to what questions are asked and the exact hours of operation. If a law enforcement agency deviates from the written guidelines for a DUI checkpoint, it does so at the risk of the evidence being suppressed and the case being dismissed.
An experienced DUI defense attorney will know what critical details to investigate when handling a DUI checkpoint case and which deviations are substantial enough to warrant evidence being suppressed. If you have been arrested following a DUI checkpoint, contact the Mastrogiovanni Law Firm today to discuss your case and what strategies we can use to defend your rights. We handle DUI cases in Pinellas, Pasco, Hernando, Hillsborough and Citrus counties.