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Broward County Restraining Order

Broward County Restraining Order

Broward County Restraining Order

How to Get a Restraining Order in Broward County

I wrote about Florida restraining orders in general in 2016.  Click on this link to read the prior post: How to get a restraining order in Florida.  This article is titled Broward County Restraining Order.  It focuses on the specific steps needed to obtain a restraining order in Broward County.  It includes the locations and some general instructions.

Disclaimer

I would like to initially state that I have and continue to represent both Petitioners and Respondents in restraining order proceedings.  I am a criminal defense attorney so I typically defend individuals in restraining order hearings.  Any honest attorney will tell you that the majority of injunctions filed are either gross exaggerations or outright fabrications.  There are very few things that irritate me more than bogus restraining orders.  That is putting it mildly.  So, while I am giving instructions on how to proceed in order to obtain an injunction in Broward County, I hope this reaches somebody who really needs it as opposed to somebody who is going to use it as a tactical advantage in a divorce and/or custody proceeding.

Just a quick review of the basics to start.  There are five (5) different types of restraining orders available in Florida.  The relationship between the parties determines the proper injunction.  The individual requesting the restraining order is the petitioner.  The individual accused of the alleged misconduct is the respondent.  The following are the types of restraining orders available:

  1. Domestic Violence Restraining Order;
  2. Dating Violence Restraining Order;
  3. Repeat Violence Restraining Order;
  4. Stalking Restraining Order or Harassment;
  5. Sexual Violence Restraining Order.

Florida Restraining Order Requirements

As previously stated, I last time I wrote about restraining orders was in 2016.  An updated Domestic Violence Benchbook was published in 2017.  The benchbook is a good place to look for case law updates.  It also contains a variety of checklists, flowcharts, and worksheets.  You can use those to make sure that your work is thorough and accurate.

Domestic Violence Bench Book containing Florida restraining order requirements link: 2017 DV Benchbook

Broward County Restraining Order Procedure

The procedure for how to get a restraining order is fairly simple.  The petitioner goes to the domestic violence intake unit at the courthouse.  He or she completes the paperwork provided by the clerk of courts.  A judge reviews the petition and the supporting documents.  The court is permitted to enter an “ex-parte” temporary restraining order if the petition is legally sufficient.  What does this mean?  Legally sufficient means, based on the allegations as written, the court finds that there is an immediate and present danger if an injunction is not granted.  This means that the court can enter a temporary injunction without notice to the accused.  The injunction is granted based only on the allegations contained in the petition.  No proof and no hearing are required for the temporary injunction.

Broward County Restraining Order | Where do I File?

You can file for a restraining order at two locations in Broward County.  The main courthouse in Fort Lauderdale and the West Regional Courthouse in Plantation.  The addresses are as follows:

Main courthouse: 201 SE 6th St., Room # 02140, Fort Lauderdale, FL 33301.

The hours of operation are Monday to Friday from 8:30 am to 7:00 pm, but all filings must be completed before 5:00 pm.

West Regional Courthouse: 100 N. Pine Island Dr., Plantation, FL 33324

The hours of operation are Monday to Friday from 8:00 am to 4:30 pm, but all filings must be completed by 2:00 pm.

Hearing

The court will always set a hearing if a temporary injunction is granted.  Likewise, the court will usually set a hearing if the temporary injunction is denied.  The initial hearing is required to be set within 15 days of the initial order granting or denying the ex-parte petition.  The final hearings are held in the domestic violence division at the main courthouse in downtown Fort Lauderdale.

The final hearing is a trial by judge.  The Rules of Evidence apply.  Which bring us to the last point.

Restraining Order Attorney

If the restraining order proceeding is important to you, hire an attorney.  You are much more likely to obtain a good result.  You don’t want to lose your case because you don’t know how to properly enter an item or statement into evidence.

Fort Lauderdale criminal attorney, Michael Dye, has experience prosecuting and defending civil domestic violence restraining orders and other injunctions.  For additional information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525

You Have the Right to Remain Silent

You Have the Right to Remain Silent

You Have the Right to Remain Silent Fool!

YOU HAVE THE RIGHT TO REMAIN SILENT | USE IT

Most people view the fifth amendment as a shelter or haven for individuals who have committed a crime. Invoking your right to remain silent is typically viewed as an admission to criminal conduct. After all, if you have nothing to hide in you have nothing to worry about speaking to the police. Right? You couldn’t be more wrong.

10 REASONS TO NEVER SPEAK TO THE POLICE

  1. If the police already have enough evidence to arrest you, they are going to arrest you no matter what you say. If they don’t have enough evidence, you will probably provide them with enough evidence to arrest you………. even if you are innocent.
  2. There is a reason the United States Supreme Court makes police officers warn you that you have a right to remain silent before they ask you questions. It is because speaking to the police is a bad idea nearly 100% of the time………….. even if you are innocent.
  3. The prosecution cannot introduce evidence at a trial concerning you exercising your right to remain silent. The prosecution will cherry pick your worst statements out of context and use them against you in court.
  4. There is no way it can help. I have seen thousands of people talk their way into getting arrested. I have seen one (1) client give a statement and not end up arrested.
  5. If you are guilty, or innocent, you may admit guilt with no benefit in return. If you admit guilt up front, you lose the ability to negotiate a more favorable plea.
  6. Even if you are innocent and only tell the truth, you will always give the police some information that can be used to arrest and convict you.
  7. Even if you are innocent, only tell the truth and say nothing incriminating, there is still a chance that you will be convicted if the police officers do not recall your statements with 100% accuracy.
  8. Even if you are innocent, only tell the truth and say nothing incriminating, there is still a chance that you will be convicted if the police officers do not recall their questions with 100% accuracy.
  9. Even if you are innocent, only tell the truth, say nothing incriminating and your statement is transcribed, audio or video recorded, you can still be convicted if the police have any evidence that any of the statements you made are false. Even the little white lies.
  10. There are over 10,000 pages of federal criminal statutes and thousands of pages of state statutes. There are in an infinite number of factual scenarios where speaking to the police freely might implicate you in some sort of crime that you did not even know existed.

After all that, remember, you have the right to remain silent.  Exercise that right.

WHY WAS THE FIFTH AMENDMENT CREATED?

The Fifth Amendment was created to protect the innocent, not the guilty. You don’t have to take my word for it, you can take the word of Justice Frankfurter, former associate justice United States Supreme Court. “Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.” Ullmann v. United States, 350 U.S. 422, 426(1956). “The Fifth Amendment’s basic function[s] … is to protect innocent men … who otherwise might be ensnared by ambiguous circumstances. ” See Ohio v. Reiner, 532 U.S. 17, 20(2001).

You Have the right to remain silent. Use it. Refuse to speak with the police without an attorney present. I was admitted to the Florida Bar in 2004. Over the length of my career, I have personally had one (1) client that I allowed to speak to the police during the investigation stage.  A colleague of mine has also allowed (1) client to speak to law enforcement during the investigation stage. Our 2 cases are the only 2 that I am aware of where speaking to law enforcement prior to the filing of charges helped the situation. Those were once in a career cases. I know that I’ll never see another like it.

SOURCES

Please note that I stumbled across this topic while doing legal research for a case. I saw a YouTube video by Regent University Law Professor James Duane which is posted above. It was very informative and I would like to generally site to his video as my source for much of the above information contained herein. Although it has always been my opinion, and almost every criminal defense attorney’s position, that you have a right to remain silent and you should use it.

For additional information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525

 

Marijuana DUI | Florida Law

Marijuana DUI Blood Test

Marijuana DUI Blood Test

Marijuana DUI | Amendment 2

In November 2016, the citizens of Florida passed Amendment 2.  Amendment 2 legalizes possession and use of marijuana for individuals who have been diagnosed with certain debilitating illnesses. It is common sense that marijuana use will increase given the passage of Amendment 2.  Anticipating an increase in the use of marijuana, both recreationally and out of medical necessity, law enforcement must find a way to accurately test for impairment by marijuana to enforce the state’s impaired driving laws.

Marijuana DUI Urine Testing | The Current Test

In Florida, it is nearly impossible for the state to get a conviction for DUI under a marijuana impairment theory.  The state is typically limited to urine testing for drug impairment.  A urinalysis alone cannot determine if an individual is impaired.  Impairment by drugs is more accurately measured with a blood test.  However, Florida law restricts an officer’s ability to obtain a blood test in a DUI case. A DUI conviction can result in serious penalties. A first time DUI is almost always a misdemeanor, but there are situations where the state will pursue felony charges.

Florida House Bill 237 | Marijuana DUI Blood Test

Florida House Bill 237 was introduced into the Florida House of Representatives by Representative Brandes on January 12, 2017. The purpose of the bill is to amend Florida Statute 316.193 by establishing a quantitative threshold of an active marijuana metabolite which, if established, would prove the crime of driving under the influence.  This is like the .08 quantitative threshold for breathalyzer tests.

The specific amendment adds a subsection (d) to Florida Statute 316.193 (1). The proposed amendment reads as follows:

“A person commits the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:

(1) (d) the person has a blood level of 9 nanograms or more of delta 9 tetrahydrocannabinol per milliliter of blood, as shown by an analysis of the person’s blood.”

DUI Blood Test|Typically Illegal

A police officer can request a breath or urine test to determine the presence of alcohol or a controlled substance when an individual has been arrested for driving under the influence. However, a police officer is not able to request a blood test in every instance. Florida law restricts a police officer’s ability to obtain a blood sample for testing in the vast majority of DUI cases.  There are two exceptions that permit a police officer to obtain a warrantless blood draw from a suspect.  Those exceptions are:

  • Florida Statute 316.1932(1)(c) – “There is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible” and

 

  • Florida Statute 316.1933(1)(a) – “If a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being, a law enforcement officer shall require the person driving or in actual physical control of the motor vehicle to submit to a test of the person’s blood for the purpose of determining the alcoholic content thereof or the presence of chemical substances as set forth in s. 877.111 or any substance controlled under chapter 893. The law enforcement officer may use reasonable force if necessary to require such person to submit to the administration of the blood test. The blood test shall be performed in a reasonable manner. Notwithstanding s. 316.1932, the testing required by this paragraph need not be incidental to a lawful arrest of the person.”

 

It is important to note that an individual can refuse a test under the circumstances set forth in Florida Statute 316.1932(1)(c). However, a police officer is required to perform a blood draw under the circumstances set forth in Florida Statute 316.1933(1)(a).  Under the latter, the officer is permitted to use force to obtain the blood sample.

The proposed amendment to the DUI statute contained in Florida House Bill 237 is ineffective and will have no or minimal impact in DUI prosecutions.  When an officer suspects drug use in a DUI case, the implied consent statute permits the officer to request a urine test to determine the presence of a controlled substance.  However, the proposed amendment specifically states that a blood sample is required. There are no legal means for an officer to collect a blood sample in the overwhelming majority of cases today.  House Bill 237 does not provide any additional legal means for an officer to obtain a blood sample and is, therefore, essentially useless.

For additional information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525

Aggressive Criminal Lawyer or Intelligent Criminal Lawyer

Aggressive Criminal Lawyer

Aggressive Criminal Lawyer and Street Certified Bad Ass*

Searching for an Aggressive Criminal Lawyer

A Google search for “aggressive criminal lawyer” returns 9,780,000 results.  A Google search for “intelligent criminal lawyer” returns 651,000 results. Clearly, people associate the term “aggressive” with “good.”  Let’s rephrase that.  People confuse the term “good criminal lawyer” with “aggressive criminal lawyer.”  The two are not always the same.  Take a moment to think about this.  Would you rather have an aggressive criminal defense attorney or an intelligent criminal defense attorney? An intelligent criminal defense attorney knows when to be aggressive and also knows when to lay off.  An aggressive criminal defense attorney who is not intelligent is just a jerk.

Aggressive Marketing

Why do so many criminal defense attorneys call themselves aggressive?  It all comes down to money. Law firms are businesses.  Attorneys who run the law firms are businessmen.  Businessmen want to make money.  Businesses advertise using the keywords that people search.  More clicks, more clients. More clients, more money.

This post is a pretty good example.  The keyword, or phrase, I choose is “aggressive criminal lawyer.” I did not choose “intelligent criminal lawyer” because the word aggressive will get more clicks.   That is also why I repeat the phrase “aggressive criminal lawyer.”  The search engines will see this post as relevant to “aggressive criminal lawyer” and I will get more clicks.  However, while you are here, I figure I should tell you the truth.

Why People Want an Aggressive Lawyer

I’ve tried a lot of cases.  However, the majority of my cases do not go to trial.  It is that way for every criminal defense attorney. In the cases that go to trial, it is likely my client’s first and last trial experience.  Most of my clients have never seen a criminal trial outside of watching a 20-minute murder trial on Law & Order.  A lot of people form their opinions based on a fictional television show.

The media typical portrays effective criminal defense attorneys in a negative light.  The characters are rude, condescending, abrasive and otherwise jerks.  People have been taught that this is effective.  They want and even expect to see an attorney verbally pound on a state’s witness.  They think that an aggressive criminal lawyer will verbally beat on a witness until they get a “Perry Mason Moment.”  A “Perry Mason Moment” is when the defense attorney gives such a horrific verbal beatdown that the witness breaks down and confesses that he is the real culprit rather than continuing with the mental torment of the questioning.  It seems pretty cool on TV, but it doesn’t work.

How to Lose a Criminal Trial

The easiest way to lose a criminal trial is to make the jury hate you. The easiest way to make a jury hate you is to unnecessarily “beat up” on witnesses. You want the jury to see me as the most reasonable person in the room.

Some people are going to want an aggressive criminal lawyer no matter what I say.  I’ll give you the good news first.  There are plenty of attorneys who will give you what you want.  Now the bad news. Some of the worst cross-examinations I have ever witnessed ended with the client telling his lawyer “great job!”  Usually, the client heard the word “guilty” at the end of the trial.  Why did the client say “great job?”  Because the attorney was aggressive.  That is the same reason he was found guilty.  The jury hated the attorney because he was aggressive.  He was rude, condescending, abrasive, demeaning, belittling, sarcastic and otherwise a jerk.

Aggressive, Persuasive and Effective

There is a difference between aggressive and effective.  Persuasive is effective, aggressive is not.  An intelligent attorney knows the difference. Just because an attorney is not aggressive, in the traditional sense, doesn’t mean that he or she is going to roll over and play dead.    A persuasive attorney will win more cases than an aggressive attorney.

I am not alone in my thoughts.  While doing some research for this post, I came across a blog called Defending People.  We seem to have a similar opinion concerning the phrase “aggressive criminal lawyer.”   It is better for advertising than the courtroom.

Changing Your Approach

Any attorney who is looking to improve their cross-examination skills needs to read MacCarthy on Cross-Examination.  The author, Terence MacCarthy, teaches a simple, extremely effective method of cross-examination that can be used in any type of case and on any type of witness.  Mr. MacCarthy is widely regarded as one of the foremost experts on cross-examination and his book explains exactly why aggressive fails and persuasive wins.

Fort Lauderdale criminal attorney, Michael Dye, likes to think of himself as a reasonable and persuasive attorney.  Please note that his ex-wife’s opinion may differ.  Mr. Dye represents individuals charged with criminal offenses ranging from DUI to murder. For additional information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525.

* Credit for Picture: Miami Criminal Attorney Michael A. Haber, Esq.

Adjudication Withheld | Collateral Consequences

Adjudication Withheld

Adjudication Withheld

Florida Statute 948.01 gives the trial court discretion to “withhold adjudication” after imposition of a sentence of probation in felony cases.  You are supposedly spared the collateral consequences of a criminal conviction if adjudication is withheld.  There are several benefits to having adjudication withheld.  You can say that you have never been convicted of a crime on employment applications. Your keep your civil rights.  You are eligible to have your record sealed after you complete probation and pay all court costs and fines.  Having adjudication withheld would appear to be a “get out of jail free” card or a “free pass.”  However, a withhold of adjudication is not without collateral consequences.  Don’t let the following talk you out of accepting a withhold of adjudication.  Talk to your lawyer about the decision.  A withhold is almost always better than an outright conviction.

Adjudication Withheld -When You Can’t

The Florida Legislature has been slowly eating away at the offenses that qualify for a withhold of adjudication.  Adjudication cannot be withheld for a First Degree Felony.  Adjudication cannot be withheld in Second Degree Felonies unless one of the two following conditions is met:

  1. The prosecutor must file a written motion with the court requesting that adjudication be withheld; or
  2. The court makes written findings of fact that the facts and circumstances of the case warrant a withhold of adjudication.  In making this finding, the court is required to look to the criteria found in Florida Statute 921.0026.

Third degree felonies are typically eligible to have adjudication withheld.  However, if you have had adjudication withheld on two prior felony offenses, you are not eligible to get a withhold of adjudication.

The court is prohibited from withholding adjudication in certain criminal offenses.  You are not eligible to receive a withhold for the following offenses:

  • Florida Statute 784.07 – Assault or Battery of a Law Enforcement Officers, Firefighters, Emergency Medical Care Providers, Public Transit Employees or Agents, or Other Specified Officers;
  • Florida Statute 316.1935 – Fleeing or Attempting to Elude a Law Enforcement Officer; Aggravated Fleeing or Eluding;
  • Florida Statute 316.193 – Any criminal offense involving a violation of Florida’s Driving Under the Influence Statute.

This is not a complete list of specific exclusions. These are the statutes that I know off the top of my head.

Adjudication Withheld – When it Doesn’t Count

Sentencing Enhancements:

Although Florida Law authorizes a Judge to withhold adjudication in his/her own discretion, the Florida Legislature also instructs the court to disregard a withheld adjudication and treat it as a prior conviction for certain crimes.  A prior withhold for a driving while license suspended will be treated as a conviction in future driving while license suspended cases.  The same is true with a withhold in petit theft cases.

Federal Law:

Federal Law does not recognize a withheld adjudication.  There is no comparable provision under Federal Law.  If you received a withhold of adjudication in a felony case under Florida Law, you are a convicted felon under Federal Law.  While Florida Law permits an individual to own a firearm if adjudication is withheld, Federal Law does not.  So you can be charged federally for convicted felon in possession of a firearm notwithstanding the withhold.

The same is true with immigration.  Criminal convictions can have severe immigration consequences.  A withhold on a crime of “moral turpitude” can still result in deportation since Federal Law does not recognize a withheld adjudication.

Foreign Countries:

Foreign countries do not have to and, in my experience, typically treat a withheld adjudication as a criminal conviction.  Countries can and do refuse to grant tourist visas to individuals convicted of certain criminal offenses.  You can typically come and go as you please at the Mexican Border.  I don’t even remember somebody checking my ID most times that I went across the Mexican Border.  However, Canada is a bit different, meaning that they, sometimes, actually check your background.  People are regularly denied admission to Canada for misdemeanor convictions.  Canada may or may not honor the withhold.  If you have a withhold, it would be good idea would be to check to make sure you are admissible before you travel to a foreign county.

Ft. Lauderdale criminal attorney, Michael Dye, handles cases with complex sentencing issues.  Mr. Dye has been able to obtain favorable sentences for clients including downward departures, alternative sentences and numerous withheld adjudications.  For additional information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525.