Deferred Entry of Judgment at Arraignment – is it a good idea?

Suppose you get arrested for possession of narcotics or being under the influence of narcotics. You are scared and you hire a lawyer. The lawyer makes promises to you (that he usually can’t keep) like, “Don’t worry, I’ll get your case dismissed” or “I will take care of everything.” You walk into arraignment court with the lawyer and suddenly he tells you to plead guilty and take deferred entry of judgment. The lawyer tells you that the offer won’t get any better and the cased will be dismissed in under two years.

Some of this is true and some is not. Deferred entry of judgment is a program where in the case of charges of simple possession or being under the influence, if the defendant is found suitable and is otherwise eligible for the program, he would plead guilty to the charges, and sentencing would be deferred for 18 to 24 months. During the deferment period the defendant must obey all laws, perform an approved drug education class, pay certain fees and can earn his dismissal.

So what’s so bad about this?

First, this is still a conviction for many purposes. The federal government and immigration service don’t view deferred entry of judgment as a true dismissal, rather they view it as a conviction. Technically, even under state law, when we plead guilty and are found guilty based on our plea, this is a conviction, albeit a temporary conviction.

Next, if we are eligible for DEJ, then we are eligible even after the conviction at trial. It’s true that after trial, DEJ is discretionary with the judge, bad, we can still get it. Further, when we take into account that we are talking about misdemeanor crimes, it might be worth the gamble to push the case as far as possible before settling if necessary.

Is there a search issue? Let’s run a motion to suppress evidence. Is there a lying or heavy handed cop? Let’s generally try to do everything we possibly can to try and get the case dismissed or reduced. Let’s generally make it as difficult as possible for the prosecutor to secure a conviction. Maybe we can avoid a drug conviction. Maybe I can achieve my client’s goals without pleading guilty straight up to the charged crimes. Let’s try.

Then, if after exhausting all other options we are still not able to get the case dismissed or reduced, only then do we talk about pleading guilty and taking deferred entry of judgment. This is not to say that deferred entry of judgment is a bad thing for the defendant in a criminal case.

Alexander Truluck focuses his practice as a criminal defense attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area. For more information, visit our website at http://www.criminallawyerclearwaterflorida.com
or call (727) 799-3550.

If you are pulled over for suspicion of DUI, you should not refuse to be tested . The consequences of refusing to take the test are usually worse that the consequences for taking the test and failing it.

In the spring of 2013, the United States Supreme Court just heard a DUI case from Missouri. It was called Missouri vs. McNeely and it involved a DUI suspect who did not consent to a test for blood alcohol after an arrest. Police forcibly took a blood sample from Mr. McNeely and tried to use the results of the test against the suspect in court.

Since 1966 the liberal state of California has been relying upon the case of Schmerber vs. California to say that the cops could force a blood extraction from a suspected DUI driver without their consent and without a search warrant.

History

The Schmerber case involved a suspected DUI driver who was in a traffic collision and sent to the hospital to be treated for his injuries. The cops went to the hospital to interview Schmerber and smelled alcohol on his breath. The police told the hospital staff to draw blood for evidentiary testing purposes and the hospital staff did what they were told. Mr. Schmerber did not consent to the blood test and the police did not even try to get a search warrant.

Since 1966 police in California have assumed that it was alright to force a blood draw on any DUI suspect and use it against them in court. This logic flies in the face of the additional case law that has been carved out since that time. Specifically, if you face trial on a DUI case and a refusal is proven, the prosecution is entitled a jury instruction that we call “consciousness of guilt”. It basically says that if you believe the defendant refused a test because he knew he was guilty, you can use that against him.

This, coupled with the additional punishment including jail time, increased alcohol education school and license revocation are all part of what happens to someone convicted of drunk driving and refusing a test. Logically, if we have a jury instruction to help prosecutors get the convictions and increased punishments for the refusal to take the blood test, why would it be necessary to let police force blood draws on DUI suspects? That’s what has been happening in California since 1966.

Implied Consent

In many states, we have what is called an implied consent law. Simply put, when we get a driver’s license we agree that if we are arrested for suspected driving under the influence of alcohol me MUST submit to and complete a test for blood alcohol. If we do not, we may lose our driving privilege and the refusal to submit can be used against us in court and cause increased punishment if convicted of DUI.

What Has Changed?

In the McNeely case, Mr. McNeely was pulled over for a traffic stop and arrested for DUI. He refused to submit to any chemical test for blood alcohol. The arresting officer took McNeely to a hospital and requested a blood draw even though the suspect failed to give his consent. The officer made no attempt to obtain a search before the blood draw.

In court McNeely’s attorney moved to suppress the evidence of the blood draw based upon the belief that it was taken through an illegal seizure. The trial court agreed and kept the evidence out of court. Apparently the United States Supreme Court agreed with the Missouri trial judge. They stated that as a general rule any warrantless search is invalid. There are limited circumstances in which searches and seizures may be conducted without a warrant.

Practical Application of the New Law

In certain places where forced blood draws are the norm, I would expect law enforcement would start doing a lot fewer forced blood draws. However, I think we will see police trying harder to justify their actions. For example, DUI cases are often late at night or early in the morning and on weekends. It is a lot harder to get a search warrant signed at 3:00 a.m. on a Saturday than it is at 2:00 p.m. on a Tuesday. Likewise, if a defendant is released from custody, i.e. makes bail or is cited out, law enforcement may actually lose their evidence of blood alcohol if a blood sample is not taken in a hurry.

If you are arrested for DUI, always refuse to take the preliminary alcohol screening or the hand-held field test at the side of the road and exercise your option for a blood test. Doing this often makes the police investigation much more difficult for them. The reason is because when we blow in breathalyzer machine it returns a result of .08 or above it helps police justify their arrests and their reports. If we don’t give them the actual numbers to work with it often gives police a much harder time in writing reports particularly regarding topics like field sobriety test results and objective symptoms of intoxication. This often provides inroads to attack the prosecution’s case, win at trial and generally get better settlement results for clients.

Alexander Truluck focuses his practice as a criminal defense attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at http://www.criminallawyerclearwaterflorida.com
or call (727) 799-3550.

According to the Pinellas County Sheriff’s office:

refer Lenny Ignelzi/Associated Press

Can an attorney really get your traffic ticket dismissed? If there are errors on the ticket, it gets dismissed. If there are no mistakes, then it’s not going to be dismissed, but they still might get out of the points and the school and get a reduced fine, like a reward for a good record.”

But do traffic lawyers deliver the goods?

“Can they get the tickets dismissed? Yes, because they know the technicalities,” says Brenda Di Ioia, chief traffic magistrate for Broward County Courts in Fort Lauderdale, Florida.

“They also know which ones they can’t get dismissed,” she adds. “When the ticket is perfect, nobody is going to be able to do anything for you, so they plea (bargain) those. The attorneys are great if you don’t have time to go to court or if your driving record isn’t great.”

So how do they do it? How can they afford to do it?

We’ll ask a couple of them. But first, the realities of traffic court.

You probably aren’t aware of it, but when you receive a moving violation, you enter the complex machinery of your local municipal or county traffic court, where negotiation is more the rule than the exception.

It has been been estimated that a large percentage of people driving a car on Saturday night might be driving with a blood alcohol content over the legal limit. Suppose you have had a few glasses of wine at a restaurant and then drive home. Suppose a police officer pulls you over for a traffic offense and detects an odor of alcohol. The officer might ask you to step out of the car and give you  a field coordination test. If the officer determines that you may be intoxicated, you will be taken to the precinct for further testing. Once at the precinct, the officer determines if your blood alcohol content (“BAC” for short) is over the legal limit. You will then be placed under arrest and is charged with drunk driving. How did the police determine the blood alcohol content of the driver? How can you know the result was accurate?

There are usually two ways to determine the blood alcohol content of a person. The more accurate way is to physically take out the person’s blood and send it to a lab. The more common way, however, is to give them a breath test.

There are ways to try to compute your blood alcohol levels based on a number of factors. Source: Computing a BAC Estimate. Driving under the Influence October 1992. U.S. Department of Transportation

This BAC calculator can only estimate your blood alcohol levels. Metabolism, body fat percentage and medication are other factors that can affect the rate of absorption by the body, and these are not considered in this calculation.

Blood alcohol content (BAC) or blood alcohol level is the concentration of alcohol in the bloodstream. It is usually measured as mass per volume. For example, a BAC of 0.04% means 0.4% (permille) or 0.04 grams of alcohol per 100 grams of individual’s blood. Use the HealthStatus BAC Calculator for informational purposes only, and not to drink and drive or drink and work.

Every state in the U.S. has a legal Blood Alchohol (BAC) limit of 0.08% per se. Most states also have lower legal BAC limits for young and inexperienced drivers, professional drivers and commercial drivers. Sentences for drunk driving include imprisonment, large fines, lengthy drivers license suspension and/or revocation, house arrest, community service, DUI schools, alcohol treatment programs, vehicle forfeiture and ignition interlock restrictions.

Important Note: There is no blood alcohol calculator that is 100% accurate because of the number of factors that come into play regarding the consumption and reduction (burnoff) rates of different people. Factors include the sex (male/female) of the drinker, differing metabolism rates, various health issues and the combination of medications that might be taken, drinking frequency, amount of food in the stomach and small intestine and when it was eaten, elapsed time, and others. The best that can be done is a rough estimation of the BAC level based on known inputs.

If the police department has calculated your BAC using a breath test, the results may be challenged based upon the methods used. However, only an experienced criminal defense attorney should be consulted who is familiar with the equipment and methods used in your area.

Alexander Truluck focuses his practice as a criminal defense attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at http://www.criminallawyerclearwaterflorida.com
or call (727) 799-3550.

Many people think that possessing a small amount of marijuana is “no big deal” these days. What do you think about loosing your drivers license for 2 years? Is that a big deal?

The penalties available for a marijuana possession charge will depend on the amount of cannabis at issue. Where a defendant is found in possession of less than 20 grams, the offense is classified as a first degree misdemeanor, with penalties of up to one year in jail or one year probation, and a $1,000 fine.

A conviction for misdemeanor marijuana possession will result in a two-year driver’s license revocation, in addition to a likely term of probation. If a probationary sentence is imposed, the defendant will be subjected to intrusive random drug testing and be responsible for paying costs of supervision, court costs, fines, costs of prosecution, and completing all other terms and conditions imposed by the court. A failure to complete any one of these conditions, or a failed drug test, or a missed drug test, will result in a violation of your probation, the issuance of a warrant for your arrest, and a likely jail sentence.

Other penalties for possession of marijuana in Florida include the following:

• Mandatory driver’s license revocation (upon conviction);
• Ineligibility for some government employment;
• Ineligibility for Bright Futures Scholarships and other forms of State financial aid;
• Interference with State licensing, permitting, and certifications without completion of an approved drug treatment program;
• Ineligibility for public housing;
• Interference with employment prospects and college applications;
• Damage to reputation.

Defense against Marijuana Possession

Although the facts of every case will differ, cannabis possession is a highly defendable criminal charge.

The first angle of attack in a marijuana possession case is to challenge the legality of the search, detention, or traffic stop that led to the arrest or Notice to Appear. If appropriate in the case, this is done through the filing of a Motion to Suppress Evidence. A Motion to Suppress is a legal challenge to the constitutional validity of a law enforcement officer’s actions. Where police act unlawfully, any evidence they derive as the “fruit” of their illegal actions will be excluded from evidence under the Fourth Amendment “exclusionary rule.”

Thus, if a Motion to Suppress is granted, this may deprive the State of Florida of critical evidence (including the cannabis itself) needed to prove the case. Without the required evidence, the case will be dismissed, dropped, or the defendant acquitted.

To be safer, don’t be in possession of Marijuana. However, if you do get arrested, call Alex Truluck. Alexander Truluck focuses his practice as a criminal defense attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at http://www.criminallawyerclearwaterflorida.com
or call (727) 799-3550.

Lots of lawyers take payment plans.

In any event, you get arrested for DUI, usually because you were in a fight with your significant other, had a bad day at work, or recently got some other type of bad news in your life. Then, to add insult to injury, you get arrested and now you need to come up with a large bunch of money that you don’t have in order to hire a decent lawyer. What to do? Throw yourself on the mercy of the court?..Never. Hire some hack for $995 who looks like he just slept in his only suit? Never. Call a real lawyer and discuss your options.

So here is the question: Do good DUI lawyers take payment plans? The answer, like so many in my business, is: “It depends”.

Once we go to court for a misdemeanor, we have about 90 days until the judges start getting itchy about the age of the cases. This means we have three months to spread out the remaining payments. Thus, if the fee for a DUI case is $3,500, the attorney could accept $1,500 as a down payment and the remaining $2,000 over the next 90 days or a little over $500 per month. In many states, the first court date is not for two months. That gives us a lot of time to work out a payment plan.

But some lawyers say they won’t take payments? True, some lawyers do say that they won’t take payments. Some lawyers lie and some lawyers may be too busy or too set in their ways to work with potential clients. I say that maybe those are not the lawyers for you. Look back at my past blog articles and you will see some very consistent advice: Meet with the lawyer you are thinking of hiring – not his assistant, sales rep, paralegal or otherwise; Make sure the lawyer you are thinking of hiring practices criminal and DUI defense every day and is familiar with the you particular courthouse; and finally, make sure you feel comfortable with the lawyer. This includes the fee arrangements.

Some lawyers try to intimidate you or embarrass you or otherwise make you feel inferior when they are sitting in the lawyer’s office. If a lawyer uses a line like: “You don’t have enough money to hire me”, or “How much do you have to pay me?”, you might be in the wrong place, talking to the wrong lawyer. Every lawyer should have an idea of the fee he or she is looking to get on a particular case. It’s true that fees vary from lawyer to lawyer, but legal fees shouldn’t vary from client to client based upon the client’s ability to pay the fee.

For a confidential consultation with competent DUI and criminal defense attorney call Alex Truluck. Alexander Truluck focuses his practice as a criminal defense attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at http://www.criminallawyerclearwaterflorida.com
or call (727) 799-3550.

If you are pulled over by the police and they request to take a breathalizer test, should you consent? (breathalizer tests are given using breath machines police use during drunk driving criminal investigations). Should you blow into the machine? (Police and prosecutors call it an “instrument” and not a “machine” because machines make mistakes).

YOU WON’T BE RELEASED
In making your decision, you must understand a few key facts. First, the officer definitely believes you are impaired. That’s why he arrested you. He’s even going to swear to it under the penalties of perjury in the arrest report. Furthermore, regardless of what your breath reading is, he’s not going to release you. Yes, you read correctly. Even if you blow under the legal limit, the officer will not give you back your freedom. The protocol in most departments in Florida and around the U.S. is to then request a urine sample. Most officers believe they can’t be wrong. They couldn’t possibly have made a mistake. You definitely must be impaired, regardless of what that breath reading shows. Therefore, it must be drugs! So, they will request a urine sample from you, which will detect even that hit of marijuana, you took three weeks ago.

LICENSE SUSPENSION
Another fact is that if you refuse to blow, the Department of Motor Vehicles will suspend your driving privileges for one year or up to 18 months if you’ve refused to give a sample previously. Additionally, if you’ve refused before, law enforcement can now charge you with an additional criminal offense.

REFUSAL USED IN COURT
One other aspect to consider is that your failure to blow into the machine can and will be used against you in court during your DUI prosecution. Prosecutors today, still passionately argue the a refusal to blow shows consciousness of guilt! He/she knew he/she was impaired and that’s why he/she refused to blow.” That can be very compelling evidence against you. On the other hand, equally, if not even more compelling evidence against you, would be a breath reading showing that you’re over the legal limit.

FINALLY, THE ANSWER
So what’s the answer? Here it is, “It depends.” If you’ve only had one drink (not the size of a fish bowl), that contains about one shot of alcohol, you should be fine. Two drinks? Maybe, depending on your size and how much you’ve had to eat, and when you drank them. Anything more, I’d be concerned.

While there’s no study that I’m aware of, I believe that drunk driving cases without a reading are won a lot more often than those with a reading over the limit. Jurors can accept many of the reasons why someone chooses not to blow, other than being impaired. For example, some don’t blow because cops refuse them the opportunity to speak to their lawyers first to determine what they should do. Many of my clients are afraid and don’t trust the breath machines. They simply want some guidance before making the decision. Absent the ability to speak to an attorney, many will choose not to cooperate any further, even if that means the officer will consider their actions a “refusal.”

SUSPENSIONS CAN BE CHALLENGED
It is possible to  be very successful in challenging the license suspensions that get issued by the Department of Motor Vehicles for failures to blow. The suspension isn’t a definite. There are many ways to successfully challenge that suspension at a hearing conducted at the Department of Motor Vehicles.

CONCLUSION
In conclusion, “Don’t drink and drive if you’re impaired.” However, if you make that poor choice and you know you are impaired, your chances of prevailing in the criminal arena are greater without a breath reading showing that you are over the legal limit.

Alexander Truluck focuses his practice as a criminal defense attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area. For more information, visit our website at http://www.criminallawyerclearwaterflorida.com
or call (727) 799-3550.

Obviously everyone would like to have a clean slate – their record cleaned. Expungement is the process of having any convictions or arrests removed from public records in order to clean up your record, thereby eliminating unwanted negative information that can impact your life. Although an expungement will not remove the criminal history from law enforcement data bases, any public records would no longer show certain records if properly expunged. There is certain criterion that must be met in order to qualify, so it is important for you to contact an attorney so that we may provide you with the proper legal advice regarding your specific situation.

When someone has met all probation criteria and obeyed all court orders, and has no new criminal offenses in the past ten years, they likely may qualify for an expungement. Obtaining an expungement provides the individual with the opportunity to eliminate the negative effects of having certain convictions appear on their record, which can impact you in the following ways:

• Employment opportunities
• Educational possibilities
• Housing options
• Immigration status
• Loan applications
• Insurance rates

It is not until after a conviction that someone realizes the long lasting effects that can remain years after you have served your time, met your probation or paid your fines. A DUI on your record can severely affect your job opportunities in addition to increasing your insurance rates. If you are an immigrant, a conviction of certain types of charges could risk your ability to remain legally in the country. And most any type of conviction will make it difficult to obtain housing and jobs, when someone becomes aware of your record.

You can count on Alexander Truluck to provide you with the best advice on how to go about petitioning the court for an expungement. With the correct and accurate presentation, your chances of an expungement can increase markedly. This service is very cost effective for the benefit it provides.

Don’t let your past haunt you for years to come, find out whether you qualify for an expungement. We are available to serve you throughout not just the Tampa Bay area but all of Florida.

We can expunge many felonies as well as misdemeanors. We can reduce many felony convictions to misdemeanors and we may even be able to help if you have been sentenced to state prison. This process is called a Certificate of Rehabilitation and is like a pardon. Obtaining a certificate of rehabilitation requires adhering to strict rules, but a competent lawyer can help you achieve this.

We have also been successful in erasing arrest records. That’s right, if you were arrested and no charges were filed, it is possible to have your arrest record changed. Most lawyers don’t know how to do this or care to take the time. Call a lawyer who can help save your reputation.

The reason why we like clearing people’s records is because it usually means that they have been leading successful, productive lives and it gives us great satisfaction to see this.

Alexander Truluck focuses his practice as a criminal defense attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at http://www.criminallawyerclearwaterflorida.com
or call (727) 799-3550.

It is not a good idea to evade police even if you don’t have a drivers license or have been drinking.

Many people offer excuses when I being arrested for evading law enforcement. Why didn’t you stop? They may say that they were scared because their license was suspended or they were scared because they had been drinking.

None of these answers justify evading police. Evading law enforcement as a felony carries a mandatory minimum 180 days in county jail and up to three years in prison. This is assuming nobody gets injured or killed in the pursuit. By contrast, even a third offense DUI only carries a mandatory minimum of 120 days. Driving on a suspended license with no priors does not require mandatory jail and with priors is usually 30 days or less.

So, even if you think you may be over the legal limit for alcohol consumption and even if your privilege to drive is suspended, if you see those flashing lights behind you or you hear that siren and see the cops, pull to the right and stop as soon as possible. You will be much better off in the long run than if you try to evade the police.

If you or someone you know has been arrested for evading police, DUI, driving on a suspended license or any other criminal charge call a lawyer with the ability and experience to get the job done right.

Alexander Truluck focuses his practice as a criminal defense attorney in Clearwater, Palm Harbor, Largo, Dunedin and the Tampa Bay area.

For more information, visit our website at http://www.criminallawyerclearwaterflorida.com
or call (727) 799-3550.