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Assault and Battery | What is the Difference?

Assault and Battery

Assault and Battery

Assault & Battery is a Matter of Do or Do Not

The words assault and battery are often incorrectly used together to describe one criminal charge. For example, an individual on a television show might be arrested for “assault and battery.” In reality, assault is a criminal charge and battery is another. You cannot be convicted of assault and battery under Florida Law because the assault merges into the battery. You need to understand the common law definitions of both words in order to understand how an assault can “merge” into a battery.

What is Common Law?

According to the Miriam – Webster online dictionary, the simple definition of the phrase common law is “the laws that developed from English court decisions and customs and that form the basis of laws in the U.S.” A simplistic, yet very accurate, way to view common law is as the laws that the United States inherited from England.  So common law in the various states consists of the laws established by the English legal system until July 4, 1776.  The common law did not have published statutes and rules, but rather relied almost exclusively on custom and prior judicial decisions.

Louisiana is the only state that does not use English Common Law.  The United States purchased the land, including what is now known as the State of Louisiana, from France in 1803.  Not surprisingly, this real estate deal is known as the “Louisiana Purchase.” Louisiana adopted the Napoleonic Code as the basis for its law in 1812 due to its history as a French colony.  If you are an attorney and you ever run across a Louisiana state court decision while researching, just ignore it.

Common Law Definition of Battery

The common law definition of battery is “an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching.”

Common Law Definition of Assault

Black’s Law Dictionary defines assault at common law as “the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact.” Since we know that battery is a harmful of offensive touching without the consent of the individual, an alternative definition for assault at common law is the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery.

Assault Merges into Battery

There is no such crime as “attempted battery.”  An attempt to commit a battery is an assault.  Likewise, battery is a successful assault depending on your point of view.  You can be charged with assault and you can be charged with battery, but not assault and battery.

For example, if you 1) throw a punch at somebody; 2) without lawful justification; 3) he or she sees you throw the punch; 4) he or she believes that the punch may connect; 5) but you miss, that is an assault under Florida Law.  If you 1) throw a punch at somebody; 2) without lawful justification and 3) you hit the person causing “harmful or offensive”contact, that is a battery under Florida Law regardless of whether the individual saw it coming.

Here is an easy way to look at it, Master Yoda told young Luke Skywalker “Do or do not……..there is no try.”  So if you DO hit somebody, it is battery.  If you DO NOT hit somebody, it is assault.

Florida Statute 784.03 | Florida Statute 784.011

Florida maintains the common law definitions for both battery and assault.  The Florida Statute defining battery is 784.03.  The Florida Statute defining assault is 784.011.  As you might imagine, punching somebody is a more serious offense that trying to punch somebody.  Accordingly, a first conviction for battery is a first degree misdemeanor.  A first conviction for assault is a second degree misdemeanor.  However, a second conviction for a battery is a third degree felony punishable by up to five years in prison.

Aggravated Assault | Aggravated Battery

Aggravated assault and aggravated battery are enhanced criminal offenses due to the circumstances surrounding the offense.  Aggravated assault is defined in Florida Statute 784.021.  Aggravated battery is defined in Florida Statute 784.045.  The “aggravating” factor is typically the use of a weapon.  For example, let’s say that you and your roommate are having an argument.  If you throw a punch at your roommate and miss, that is an assault.  If you swing a baseball bat at your roommate and miss, that is aggravated assault and, consequently, a felony.

Domestic Violence

A domestic violence criminal charge arises out of the same underlying statute.  Florida law does not attempt to distinguish victims by their relationships to the defendant.  However, most, if not all, Judicial Circuits administratively segregate cases involving domestic violence.  Domestic violence cases are typically conducted in their own separate courtrooms due to the unique issues that are often present in domestic violence cases.

Certain states do distinguish domestic violence cases from other violent crimes by statute.  For example, in North Carolina, Statute 14-33(d) states that an “assault”(modified common law definition to include battery), committed by a individual in a personal relationship with the victim, while in the presence of a minor is an A1 Misdemeanor as opposed to a Class 1 Misdemeanor.

Ft. Lauderdale criminal attorney, Michael Dye, has extensive experience handling assault charges, battery charges and domestic violence cases in both county and circuit court.  For more information concerning possession of marijuana and other drug charges, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

Additional help for this post came from Palm Beach Domestic Violence Defense Attorney Matthew Konecky, Esq. and

Raleigh Domestic Violence Attorney Jane Weatherly, Esq.

Decriminalization of Marijuana | Broward County

Decriminalization of Marijuana

Decriminalization of Marijuana in Broward               County, Florida

On November 10, 2015, the Broward County Commissioners passed ordinance number 2015-45. The recently passed ordinance gives police officers in Broward County the discretion to issue a civil citation in lieu of a misdemeanor criminal charge for possession of less than 20 grams of marijuana. Despite the language used to describe it, this ordinance is does not constitute decriminalization or the legalization of marijuana.

Is this Legalization of Marijuana?

No. Possession of less than 20 grams of marijuana is still illegal pursuant to Florida Statute 893.13 People are still getting arrested for misdemeanor possession of marijuana in Broward County every day.  A state criminal statute is superior to a municipal ordinance. The Broward County Commission does not have the legal authority to, and did not attempt to, invalidate Florida statute 893.13.

The Broward County ordinance does not “decriminalize” possession of marijuana.  Possession of any amount of marijuana is still illegal under federal and state law.  The recently passed ordinance does provide a discretionary noncriminal means of enforcement.  Police officers have always had broad discretion when making an arrest decision for misdemeanor possession of marijuana. The officer now has the option to charge misdemeanor possession of marijuana civilly as opposed to criminally.  Prior to the effective date of November 17, 2015, a police officer in Broward County had the following options when making an arrest decision for misdemeanor possession of marijuana:

  • Make a formal arrest and take the suspect to jail;
  • Issue a Notice to Appear for a misdemeanor criminal offense;
  • Confiscate the marijuana and take no further action.

Now that the ordinance is effective, a police officer in the exact same situation has a fourth option:

  • Make a formal arrest and take the suspect to jail;
  • Issue a Notice to Appear for a misdemeanor criminal offense;
  • Issue a civil citation for a violation of the Broward County Code;
  • Confiscate the marijuana and take no further action.

Not Decriminalization Not Legalization

In reality, nothing has changed. When someone is arrested for possession of marijuana, it is usually not the only criminal charge. Marijuana charges typically come in two’s. Possession of marijuana and possession of drug paraphernalia.  Somewhere back in time an unknown police officer came up with the idea that the plastic bag holding your marijuana could be charged as drug paraphernalia.  The Broward County ordinance does not address possession of drug paraphernalia. However, since possession of drug paraphernalia is a misdemeanor, the police officer has the discretion to simply not charge you at all.  The probability that you will be charged criminally for both possession of marijuana and possession of drug paraphernalia has a strong correlation to how big of a jerk you are to the police officer.

Odor of Marijuana | Automobile Exception

The outright legalization of marijuana would significantly curtail police action. The police regularly use the odor of marijuana as a basis to search a vehicle without a warrant.  That is known as the “automobile exception.”  The Broward County municipal ordinance does not overrule the automobile exception to the warrant requirement.  The police are still legally allowed to search your vehicle if they smell marijuana coming from the inside of the vehicle.

Below is a copy of the ordiance number 2015-45.  Visit https://www.municode.com for the complete Broward County Code.

Download (PDF, 2.61MB)

Broward County criminal defense attorney, Michael Dye, has extensive experience handling misdemeanor and felony violations of probation.  For more information concerning possession of marijuana and other drug charges, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

Violation of Probation

Violation of Probation

Florida Criminal Law

What Happens if I Violate Probation?

Violation of probation proceedings are expedited.  Nevertheless, there are several Car Accident to a violation of probation proceeding. The proceedings typically go in the following order:

1) Charges & Report;
2) Custody and Terms of Release;
3) Discovery;
4) Hearing and Disposition.

What is a Violation of Probation?

If you were placed on probation, the sentencing court gave you a set of rules. Those rules are the terms of probation. There are certain standard rules, but the Trusted Wills Oxford can customize the terms for your particular case.  You do not have to break the law to violate probation. All you have to do is break the rules. For example, the terms of probation for your case might give you a curfew of 10 o’clock. It is not illegal to be out past 10 PM, but it would be a violation of your probation.

I. Charges & Report

Affidavit of Violation of Probation

Your probation officer will file an affidavit of violation of probation if he has probable cause to believe that you violated the terms of your probation. If this is a felony violation of probation, the affidavit is called the “Florida Department of Correction Affidavit of Violation of Probation.”  The affidavit will contain the allegations stating how you violated the terms of probation. The affidavit will typically be filed with the same judge that presided over the original sentencing.

Violations of probation are either technical or substantial.

What is a technical violation of probation?  Breaking the rules.  Examples would include a positive drug test, failure to pay costs of supervision or any failure to abide by the rules.

What is a substantial violation of probation? A new criminal charge.

Violation of Probation Report

Your probation officer will also file a report with the affidavit of violation. The report can request that the court issue a warrant for your arrest or that the court issue a notice to appear. The violation report will also contain significant information such as any statement that you made regarding the alleged violation.  The violation report will also contain your history of supervision, the facts and circumstances surrounding the underlying case. Most importantly, the report contains the probation officer’s recommendation concerning the disposition of your case.

II. Custody and Terms of Release

The violation report filed by your probation officer will request that a warrant be issued for your arrest or that you be given a notice to appear.  The judge will typically issue a “no bond” warrant if a warrant is requested.  It is not uncommon for defendants to stay in jail for two(2) or three(3) months waiting for their violation of probation hearing.  Quite often the fear of having no bond drives individuals to abscond or hide in order to avoid going to jail. This just makes the problem worse.  Contacting a private attorney immediately is your best option as there are ways to minimize or eliminate the amount of time you spend in jail waiting for your final hearing.

III.  Discovery

Discovery is typically limited in violation of probation cases.  More often than not your attorney will have most of what they need to know based after reading the violation report.  If the violation is a technical violation of probation, i.e., breaking the rules, then there is typically no need for extensive discovery.  If the violation is a substantial violation, i.e., a new criminal charge, your attorney will get the discovery in the new case.

IV. Hearing & Disposition

In a violation of probation proceeding, you do not enter a plea of guilty or not guilty. Rather, you either admit responsibility or deny responsibility. If you deny responsibility, there is a hearing. A violation of probation hearing is heard by a judge. You do not have a right to a jury trial. The rules of evidence are relaxed. Hearsay is generally permitted. Also, the burden of proof is lower.  The state does not have to prove the violation “beyond a reasonable doubt,” rather, the state must present evidence “sufficient to satisfy the conscious of the court.” That is a long way of saying “by the preponderance of the evidence.” If the state meets the burden of proof the judge will find you responsible for the violation of probation.

Sentencing

The judge has three options when faced with a violation of probation. The judge can revoke probation and sentence you to any sentence which could have been legally imposed on the original criminal charges.  For example, if you are on probation for a third degree felony, the judge can sentence you to five(5) years for a violation of probation. The judge can modify the terms of probation.   The court can add conditions such as drug rehab, counseling or an ankle monitor.  Alternatively, the judge can reinstate your probation on the exact same terms as before.

Getting a private attorney involved early can have a substantial impact on the disposition of your probation case.  Typically, a private attorney can talk to the probation officer, prosecutor and set the hearing on a calendar quickly to get a resolution.  Additionally, a private attorney can file a motion for an in court surrender and/or get a bond hearing quickly.  The advantage of hiring a private attorney over a public defender is that a private attorney can get to work on your case before you are charged with a probation violation.  A public defender can only be appointed and get to work once you have been charged.  It is a matter of being proactive vs reactive.

In addition to the procedural aspects, a private attorney can help you gather the documents and/or evidence necessary to establish your defense in the event that you proceed to a final violation of probation hearing. It is much easier to obtain evidence before you go into custody.

Fort Lauderdale criminal defense attorney, Michael Dye, has extensive experience handling misdemeanor and felony violations of probation.  For more information concerning probation violation proceedings, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

How Can I Drop Domestic Violence Charges?

How Can I Drop Domestic Violence Charges?

Can I Drop Domestic Violence Charges?

Domestic Violence Charges

This question typically comes up in one of two ways. First, the victim of domestic violence will call to speak with an attorney and say that he or she does not want to press charges. Second, the defendant will call and tell the attorney that his or her significant other does not want to prosecute the case.

It is easy to get jaded after hearing these questions time after time and the individual speaking to you once an explanation for every answer you provide. A domestic violence attorney needs to remember that this is probably the most traumatic incident in that person’s life. Whether you are handling criminal domestic violence charges or civil domestic violence injunctions, these cases require a lot of patience and compassion.

Criminal Domestic Violence | Who it the Victim

The answer that people do not want to hear is that the victim or the alleged victim cannot drop criminal domestic violence charges.  There is hope.  Just keep reading. The reason why is because the “person victim” is not the “legal victim.” In criminal domestic violence cases, the victim is the State of Florida. Hypothetically, let’s assume that the defendant’s name is John Smith. A criminal domestic violence case would be titled “The State of Florida vs. John Smith.” The State of Florida is the party to the case. The “person victim” who suffered or allegedly suffered the abuse is merely a witness.

Domestic Violence Injunctions | Who is the Victim

Civil domestic violence cases are different. In a civil domestic violence case the victim or alleged victim goes to the courthouse and files a Petition for Protection against Domestic Violence. Again, let’s use John Smith as the alleged perpetrator and his wife Jane Smith as the alleged victim. Jane Smith would file the petition and the case would be titled “Jane Smith vs. John Smith.” Jane Smith would be what is called “The Petitioner” in this hypothetical case and John Smith would be called “The Respondent.” The Petitioner is the individual who is requesting a domestic violence restraining order. Notice how the first party in the criminal domestic violence case is “The State of Florida” while the first party in the civil case is the individual “Jane Smith.” Jane is not just a witness in the civil case, Jane is a party to the civil case. Jane can voluntarily dismiss the civil case at any time because she is the prosecuting party. The Office of the State Attorney decides whether to prosecute in the criminal case.

Frequently Asked Questions Concerning Domestic Violence Charges

Attorneys who defend domestic violence cases hear a lot of the same questions repeated in various forms. Chances are that your idea is not something we haven’t heard before, so ask before you do. Some of the more common questions are:

  • Will the state drop charges if I write a letter to the state attorney?
  • Will the state drop charges if I say it never happened?
  • What will happen if I don’t(or the other party doesn’t) show up for court?
  • What if I just refuse to cooperate?
  • Can’t I just tell the judge that I don’t want to prosecute?

The Answers

Understanding that there are no guarantees either way, I will address these one by one.

  • The state will probably not drop the charges because you write a letter saying that you do not want to prosecute. This has the potential to do much more harm than good.  It could help the state’s case if it is not worded correctly.  If the letter indicates that you have had contact with the defendant, that could lead to additional charges or the defendant’s bond being revoked.  This is an all around bad idea.
  • If you say it never happened, the outcome depends on your initial statement. Pursuant to Florida Statute 117.10, police officers are allowed to administer oaths. So the statement that you made to the police officer in the beginning of this case was probably under penalty of perjury. Even if you aren’t subject to a perjury charge, you can still be charged with making a false report.  You may expose yourself to significant criminal liability by retracting your statement.
  • You are legally required to show up for court if you have been subpoenaed. You may expose yourself to criminal liability if you do not show up for court after being subpoenaed. Furthermore, the court can issue what is called a writ of bodily attachment and have a police officer go pick you up………….. in handcuffs……………. and you might be required to stay in jail for the remainder of the proceedings in order to assure your appearance. Does this happen? Yes. Does it happen frequently? It depends on the jurisdiction, the policies at the state attorney’s office, circumstances surrounding the case and ultimately the individual prosecutor. Furthermore, it is a violation of the rules of professional ethics for any attorney to advise you not to show up after you have been subpoenaed.
  • There are other ways the state can obtain a conviction if you refuse to cooperate or simply do not show up. Under certain circumstances tapes of 911 telephone calls can be introduced to prove an individual’s guilt even if the witness does not appear. Many times there are other witnesses who can testify to the facts.
  • You may want to speak with the judge directly, but the judge is not allowed to discuss the case with out the state attorney and the defense attorney being present. In the event you do get to speak to the judge, you could put yourself or the defendant in a much worse situation. Additionally, judges are very suspect of individuals who suddenly get amnesia or say that it was all “a big misunderstanding.”

How can I Drop Domestic Violence Charges?

If you want to have criminal domestic violence charges dropped, the victim(aka the witness) should have his or her own attorney separate from the defendant’s attorney. Any appearance of impropriety is alleviated by both parties having separate attorneys. The attorneys can work together to lift the criminal no contact order and/or prepare an affidavit of nonprosecution specific to the case. While there are no guarantees, hiring separate attorneys has proven to have the highest rate of success and getting domestic violence charges dropped or dismissed.

For more information on how to get domestic violence charges dismissed, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

DUI Manslaughter Defense

DUI Manslaughter Defense

Analysis of Postmortem Specimens

Strict Liability vs Causation

Florida had a strict liability DUI manslaughter statute until 1986.  All the state needed to prove was that the defendant was driving while impaired, was involved in a car accident and somebody died as a result of the car accident. It did not matter if the defendant was at fault for the accident. The legislature amended the DUI manslaughter statute in 1986 to include the element of causation.

Constitutional Issue with Strict Liability

The problem with the strict liability DUI manslaughter statute, in my opinion, was that the criminal culpability for a misdemeanor DUI and the criminal culpability for a DUI manslaughter was equal. A good argument could be made that the strictly at liability DUI manslaughter statute violated the 8th Amendment of the United States Constitution as a cruel and unusual punishment. The current DUI manslaughter statute requires the state to prove the following: 1) driving under the influence; 2) an accident resulting in death and 3) and that the defendant was somehow at fault for the accident. The causation element must be proved independent of impairment.

Not My Fault Defense

Defending DUI manslaughter cases is difficult under any circumstances. It is human nature to look for somebody to blame when somebody dies before their time.  It is also human nature to not speak ill of the dead.  However, a legally viable defense to DUI manslaughter is that the decedent was at fault for the accident even though the defendant was driving drunk. The defendant would be guilty of DUI, but not DUI manslaughter in that scenario. The “not my fault defense” is a particularly difficult proposition to sell to a jury. In essence, you are saying to the jury “Yes, my client was driving drunk. Yes, my client was involved in a fatal car accident. However, the car accident was the dead guy’s fault.”

Theory vs. Reality

Nobody ever gets screwed by the law in a bar exam essay question.  However, this is not a law school exam question. Defense attorneys need to stop thinking about legal theory and focus on where the rubber meets the road.  Technically, the defense bears no burden of proof, but if this is your defense, you are going to need to show some solid evidence.  The jury is looking to blame somebody and there is a good chance that it is going to be the defendant.  Personally, I wouldn’t want to use this defense if it did not have a strong factual basis.  The risk of alienating the judge and jury by blaming the victim without any serious basis is too great.

Where to Find the Evidence

The autopsy report from the County Medical Examiner’s Office is a valuable source of information for the defense. Please note that the Medical Examiner’s Office may be called something different in another state.  Biological specimens, such as blood and urine, are preserved during the course of an autopsy. Toxicology testing is performed on the specimens. The results of the toxicology tests may show that the was under the influence of some sort of drug or alcohol at the time of the accident.

It should be relatively easy to establish whether the decedent was under the influence of a drug at the time of the accident. The postmortem blood sample will identify the drugs in his or her system at the time of death. Postmortem quantitative analysis of controlled substances in a decedent’s blood is another topic for another time. The biggest problem that defense attorneys run into when trying to evaluate the culpability of the decedent is the quantitative analysis of ethyl alcohol in the decedent’s blood.

No matter what methods are used, using the BAC at the time of autopsy in order to determine the decedent’s impairment at the time of the accident is an educated guess at best and gross speculation at worst.  The reason for the uncertainty is because alcohol can be produced or destroyed in between the time of death in the time of the autopsy. Autolysis is defined as the self digestion or destruction of an organism’s own cells through the action of its own enzymes. This begins to occur within hours of an individual’s death and his present throughout the vast majority of the vascular system within hours. The result is an environment which supports the endogenous production of alcohol. Multiple environmental factors contribute in determining if endogenous alcohol is produced or the extent of the endogenous production. The two most significant are typically time and temperature.

Postmortem BAC Testing is Never Ideal

We obviously want the BAC to be as accurate as possible. In an ideal world we would like to have a blood sample taken from the decedent as soon as possible after the accident and a second blood sample taken 45 minutes to an hour after the first blood sample with both being prior to death. If that is the case, we would probably not need to use the postmortem sample.

If possible, the first thing that the defense attorney should do is check the decedents medical records in order to determine if a BAC screen was ordered by a doctor at the hospital. You may have to request a subpoena duces tecum if the medical evidence from the hospital is not provided in discovery.  Sometimes individuals die on the scene or on their way to the hospital so this is not always available. If there is no antemortem sample, the defense attorney has to be able to assess the reliability of the autopsy sample.

Additional Reading

Postmortem analysis of biological specimens for ethyl alcohol is very complicated.  Try as I might, I cannot say it any better than it is said on this website: BAC Analysis in Postmortem Specimens. Another good website for forensic science in general is The Truth About Forensic Science

Remember that it is the State’s burden to prove that the defendant was at fault for the accident. If you can put on strong evidence that the decedent was impaired it is up to the State to rebut that.  There are simply too many variables for the toxicologist to credibly testify as to a definitive state of impairment at the time of the accident.

For more 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 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286