Cyber Crime Lawyer Blog

As a Fort Lauderdale child pornography possession defense attorney, I wrote last year about a Connecticut court’s decision to award financial restitution to a young woman who had been a child victim of child pornographers. This is an established practice in prosecutions of the people who make the child pornography. However, the Connecticut case was the first that I had heard of in which a court ordered restitution from a defendant who was accused of downloading and distributing the objectionable materials, and had no contact at all with the young woman. At the time, the Connecticut Law Tribune reported that the case may have set a precedent for similar restitution orders.

That may have come true, at least according to a Feb. 8 article from the Associated Press. That article noted the Connecticut ruling, but said hundreds more requests for restitution have been filed nationwide since then. Many, but not all, of them are from the same young woman involved in the Connecticut case, identified here as Amy. Amy was eight or nine when her uncle abused her and took pictures. He’s in prison now, but the pictures are widely available online. Amy and other victims claim in court papers that they’re re-victimized every time a new person downloads one of “their” pictures. They find out about the prosecutions through the National Crime Victim Rights Center, which was created by federal law to notify victims about criminal trials. Amy’s attorney said he requests $3.4 million in each case, but doesn’t expect to receive nearly that much.

According to the AP, courts have been mixed in their response to these requests. Some have denied restitution, but at least two courts in Florida have awarded restitution of more than $3.2 million. Several others have awarded much smaller amounts, as symbolic penalties or because defendants have a limited ability to pay. In one Minnesota case, the judge asked prosecutors why they didn’t request restitution for Amy. Restitution cases are on appeal, but the Fifth U.S. Circuit Court of Appeals, the federal appeals court for Texas, Louisiana and Mississippi, has already ruled on the practice. That court said restitution can be denied if the prosecution can’t show how much harm the defendant caused, but that ruling included a sharp dissent.

As a South Florida child pornography possession criminal defense attorney, I think the requests for restitution are understandable, but legally weak. Under the law, restitution can be ordered only for exploitation of a child. Victims claiming restitution say they are exploited with each new download, but they can mean it only in the abstract, because a download is an act that happens without harming them, and in fact without their involvement. Furthermore, the goal of restitution is to keep criminals from making a financial profit from wrongful acts. Profit is a clear part of the crime of making child pornography, but it’s hard to show a financial profit from mere possession. Thus, I believe the restitution requests are inappropriate in child pornography possession cases.

At least one expert in the article suggested that restitution requests for child pornography victims belong in the civil courts -- that is, victims should sue rather than request money through a criminal case. This may be a sensible compromise, because civil courts are better suited to work out the complicated question of when child pornography exploits a child. In a criminal case, the court’s job is to determine whether the defendant is guilty beyond a reasonable doubt -- not to determine financial payments. But whether such cases are moved to the civil courts is ultimately up to the federal appeals courts, and probably the U.S. Supreme Court. As a Miami-Dade child pornography possession defense attorney, I hope those courts think seriously about the purpose of the restitution law and the difficulties of clarifying it in criminal courts.

As a Miami cyber crime criminal defense attorney, I was paying attention in 2003 when Pete Townshend, guitarist for legendary rock band The Who and a British citizen, was detained in that country for looking at child pornography. Townshend told British police that he had paid for access to a child pornography site to research his own autobiography and a campaign against child pornography. He was never charged with a crime, but British law enforcement put him on their sex offender registry for five years. That five-year period is now over, but at least one Florida group that opposes child pornography isn’t satisfied. ABC News reported Jan. 29 that Protect Our Children, a nonprofit from Brevard County, has mailed hundreds of postcards in Miami Gardens and around SunLife Stadium, warning nearby families that Townshend will be in the area Feb. 7.

The postcards, in English and Spanish, say Townshend will be “at large” in Miami when his band performs at the halftime show of Super Bowl XLIV. They say only that he was registered as a sex offender at home “for an offense related to child pornography.” According to ABC, Protect Our Children and another group, Child AbuseWatch, protested the NFL’s choice of The Who as Super Bowl halftime performers because of Townshend’s past conviction. The NFL told ABC that Child AbuseWatch was the only protester to write to the network, and that it had no qualms about the appropriateness of The Who’s performance. Similarly, NBC Miami reported Jan. 28 that Protect Our Children was unsuccessful in its attempts to convince the federal government to keep Townshend out of the country.

Regardless of whether Townshend deserved to be on the sex offender list, it seems to me that the anti-child-abuse groups are focusing their attention on the wrong target. For one thing, as a West Palm Beach cyber crime criminal defense lawyer, I know Florida law does not consider Townshend a sex offender for registration or residency purposes, because his time on the sex offender registry has expired. For another, Townshend got in trouble for looking at child pornography, not for molesting children. While looking at child pornography is correctly condemned for creating demand for the materials, it’s not the same crime. And unfortunately, statistics show that the vast majority of adults who abuse children sexually are family members or other trusted adults -- not random strangers children meet on the street.

The stated motivation behind the Townshend postcards -- protecting children -- is worthy. But as a Fort Lauderdale cyber crime criminal defense attorney, I wonder whether the reaction is completely reasonable. Townshend has served his time on a sex offender registry and undergone an extensive investigation by Scotland Yard, which declined to charge him with a crime. His home country seems to believe he is no longer a threat, and the evidence that he ever was a threat is weak. It’s easy to target celebrities whose legal trouble has attracted lots of media attention, but much harder to find information on the everyday people who may commit far more serious crimes. Targeting people like Townshend may help anti-child-molestation groups drum up a lot of media coverage, but it punishes them further without doing much to actually protect children.

Because I am a Miami sex offender registration defense attorney, I have kept an eye on the local scandal involving sex offenders who live under the Julia Tuttle Causeway Bridge. The colony made the news a few years ago when it came out that sex offenders faced residency restrictions so severe that they actually couldn’t find anyplace else in the county where they could legally live. In fact, an investigation by New Times Miami found that the Florida Department of Corrections was ordering recently released inmates to live there, and some even have the address on their driver’s license. According to a Jan. 21 article in the Miami Herald, Miami-Dade County Commissioners have finally taken steps to address the problem by making new rules about residency.

The county’s new law is intended to stop confusion about the patchwork of city ordinances by superseding them. Under the new law, offenders still may not live within 2500 feet of schools. However, it also adopts the state’s lighter 1,000-foot residency restriction for all other places where children congregate, such as parks and day-care centers. This lifts harsher restrictions on those areas imposed by many cities. The county also added a 300-foot “child safety zone” in those areas, in which sex offenders may not loiter. The hope is that this will create more areas where offenders can find indoor housing. The ACLU of Florida, which has sued the city over the Tuttle Bridge colony in the past, said the new law was a step in the right direction, but still a half measure that doesn’t fully address the problem.

I agree. The easing of the 2500-foot restriction in many cities may help open up more housing, and that’s a good thing. But the new law leaves residency restrictions intact, and even adds a no-loitering restriction, despite no evidence that residency restrictions work. Police and Fort Lauderdale sex offender registration criminal defense lawyers like me know that most child sex crimes are perpetrated by someone the victim knows; that around half of perpetrators are relatives; and that the vast majority had never been arrested for anything before the molestation began. Furthermore, virtually forcing sex offenders to be homeless makes police’s job harder by making it harder to find those offenders.

Practical arguments aside, sex offender residency requirements also create a legal and ethical problem by re-penalizing people who have already done their time. This is against the spirit of our justice system, though perhaps not the letter, and creates real obstacles for ex-offenders who are trying to move on. Under the onus of sex offender residency and registration requirements, offenders have a hard time getting an address, getting a job and building law-abiding lives. And as far as I know, our society does not impose this kind of post-prison penalty for any other crime. As a West Palm Beach sex offender residency defense attorney, I wonder if the real motivation behind these laws is vengeance rather than protection of children.

Though my work as a Miami cyber crime criminal defense attorney, I’ve encountered numerous cases involving “sexting.” In far too many of these cases, prosecutors and school officials overreact and teenagers end up criminally charged with producing and sending child pornography, even in cases where they photographed themselves and were never in danger of exploitation. Now, according to the National Law Journal, the first sexting case has hit a federal appeals court. The Third U.S. Circuit Court of Appeals is considering whether prosecutors can bring child pornography charges against three teenagers whose pictures were found by school authorities in a “sexting” bust.

The case involves two pictures. One was of two girls, 12 at the time, who were photographed wearing training bras. The other was of a 16-year-old coming out of the shower topless, with a towel wrapped around her waist. They were among 16 kids who faced child pornography charges when their mid-Pennsylvania school district uncovered widespread sexting in 2008. The district attorney said he would file child pornography charges against them if they didn’t take a class about avoiding sexual predators, then write an essay about why sexting was wrong. Most of the students agreed, but the three plaintiffs did not. In their federal lawsuit, Miller v. Skumanick, the three girls argued that the photos were not child pornography, which makes them protected speech under the First Amendment and not appropriate for prosecution.

Before the Third Circuit, the girls’ attorney, Witold Walczak of the ACLU, argued that the photos were far too tame to be considered pornography. That meant the prosecutor lacked probable cause to charge them. He also argued that child pornography laws were not meant to apply to teenagers who photograph themselves. The attorney representing the district attorney argued that the law was intended to protect kids from their own bad decisions, and from sexual predators attracted to naked pictures. The NLJ reported that the Third Circuit gave that argument a tough reception, with one judge suggesting that the class was “a particular government official’s views of what it means to be a girl in today’s society[.]”

As a Fort Lauderdale child pornography possession defense lawyer, I hope the Third Circuit’s ruling sets a precedent for sensible behavior by prosecutors and school officials. It is not a good idea for teenagers to send each other naked pictures, but criminal prosecution takes that bad situation and makes it much worse. As the ACLU attorney pointed out, child pornography laws are intended to protect kids from adults who exploit them. That concern doesn’t apply to pictures kids take voluntarily, especially self-portraits or pictures taken by peer group members. Prosecuting them for this behavior doesn’t protect them so much as it produces lifelong negative consequences for a youthful mistake.

This is not idle speculation. As a South Florida child pornography possession criminal defense attorney, I have written on this blog several times about kids who face prison time and sex offender status for sexting. They include a young man here in Florida who was kicked out of college and has trouble finding work because of a child pornography conviction related to sexting. I hope the Pennsylvania case paves the way for jurisdictions around the country to take a less life-altering approach.

As a Miami cybercrime criminal defense lawyer, I frequently defend people who are charge with possession of child pornography. In most cases, the evidence against my clients comes from images law enforcement found stored in special folders on their computers, or sometimes on other electronic devices or in their homes. However, every now and then, a defendant comes along who is accused of possessing images stored only in a “temp” or “cache” folder, where recently viewed files are stored until they are purged some time later. This is despite the fact that Florida and federal child pornography statutes require that the defendant “knowingly” possess the material. Can this type of unintentional “possession” be considered a crime?

On the federal level, the answer seems to be yes. At least three federal appeals courts have addressed the issue. In United States v. Romm, 455 F.3d 990 (9th Cir. 2006) and United States v. Bass, 411 F.3d 1198 (10th Cir. 2005), the Ninth and Tenth Circuits both ruled that defendants’ knowledge that the temporary cache existed, and attempts to erase the temporary files, was enough to show “knowing” possession. The Eleventh Circuit, which does include Florida, has indicated that it agrees. In United States v. Kain, No. 08-3396 (11th Cir. 2009), the court arguably took it even further. It wrote, “A computer user who intentionally accesses child pornography images on a web site gains actual control over the images, just as a person who intentionally browses child pornography in a print magazine ‘knowingly possesses’ those images, even if he later puts the magazine down without purchasing it.”

In Florida state courts, the answer may not be as clear. In a 2006 case, Strouse v. State WL 436028 (4th DCA, 2006), the Fourth District Court of Appeal found that merely viewing child pornography is not enough to establish knowing possession of the images, even if the images are cached in a temporary folder. However, it said, when defendants try to delete or manipulate the files, this can help prove knowing possession. After that ruling, the Florida Department of Law Enforcement cautioned its officers against basing an entire case on temporary files. However, officers finding temporary files are unlikely to stop looking for stronger evidence elsewhere on the computer.

This state of affairs creates a sticky situation for Floridians whose computers may have been used to view child pornography, or may have been compromised by a virus. Unfortunately, even though our legal system promises that every defendant is presumed innocent until proven guilty, the reality is that child pornography possession defendants need a good Fort Lauderdale child pornography criminal defense attorney, as quickly as possible. In Florida state courts, defendants may be able to challenge cases based only on the existence temporary files that the defendant has not tried to manipulate. But in federal courts, district judges following the Eleventh Circuit’s instruction would be forced to treat mere viewing of files as possession, even though the user may have arrived at the site by accident and left quickly. Fortunately, as an experienced West Palm Beach child pornography possession attorney I can often find other avenues of defense for clients.

As a Fort Lauderdale child pornography criminal defense attorney, I was interested to see what may be the first large child pornography arrest in Florida of 2010. According to a Jan. 4 article in the Orlando Sentinel, Lake County authorities arrested a Walt Disney World employee Dec. 24 for possession of child pornography. James Treanor, 32, was charged with 200 counts of the crime, for possessing more than 5,000 images and 75 movies involving minors in sexual situations, many of whom reportedly appeared to be under the age of 12. Treanor told authorities that he had more, but deleted it because a friend planned to stay with him over the holidays. He is jailed with bail set at $10,000 per felony violation, which could be as much as $2 million if all of the counts are felony counts.

The newspaper said Treanor had a public defender, although that person was not reached before the article was published. I hope this attorney is prepared for a battle, because Treanor is facing serious penalties if this article is correct. Each image in the defendant’s possession can create a separate criminal count, which is likely why Treanor is charged with 200 separate counts of child pornography possession. Each of these carries up to five years in prison, which means he could be sentenced to as much as 1,000 years in prison -- effectively a life sentence. Judges have some discretion in sentencing, but public opinion is not kind to people accused of this crime. This may be especially true because he worked at Disney World, and presumably had contact with children.

One of the most difficult parts of my job as a West Palm Beach child pornography possession lawyer is to fight a premature conviction in “the court of public opinion.” Long before they get to a court of law, clients who are accused of child pornography possession and related crimes face serious, sometimes permanent consequences in other parts of their lives. This can include separation from a spouse, the loss of a job, loss of friendships and even physical attacks or intimidation. Even if the client is later found not guilty, it’s generally too late to reverse most of this damage. These attitudes can also bleed into the officially neutral justice system, which is why judges frequently have no flexibility in sentencing; defendants face lifelong sex-offender registration and residency requirements; and jurors and investigators can sometimes be prejudiced.

Of course, some people accused of child pornography possession are guilty. The goal of our justice system is to determine who is guilty and who is not, and even those accused of unsavory crimes are entitled to a fair trial. Another part of my job as a Miami child pornography possession criminal defense lawyer is to ensure that my clients get that fair trial, as far as that is possible. In some cases, that means excluding people or evidence that could prejudice the jury; in other cases, it means a full computer forensic search to find evidence that might exonerate my client entirely. Even when the system produces borderline absurd results, like a 1,000-year maximum sentence, I will fight to get my clients the fairest possible day in court.

As a Fort Lauderdale drunk driving criminal defense attorney, I was not at all surprised by a recent article in the Daytona Beach News-Journal. The newspaper is in the middle of a three-part series on drunk driving in Volusia County, focusing on cases where prosecutors brought only one DUI charge, typically against a first offender. Its first part, published Dec. 27, looks at how prosecutors decide to drop, reduce or pursue DUI charges. Its unsurprising conclusion: Defendants with private attorneys are more than twice as likely as those with public defenders to win dropped or reduced charges, which means they never get a first drunk driving conviction on their records.

The article goes into detail about why defendants with private representation tend to do better than those with public defenders. According to the News-Journal, public defenders often aren’t even assigned to a DUI case until the defendant makes a decision about how to plead. They also have heavy caseloads -- 300 to 400 cases each, the newspaper said. By contrast, private attorneys can get involved as soon as the defendant calls, and their caseloads are typically closer to 50 cases at a time. They also have specialized DUI defense experience, giving them a better chance of finding flaws in the cases against their clients. Other factors making dropped charges more likely include mistakes by the arresting officer, flawed evidence and videotapes of the arrest that don’t show obvious intoxication. And the article noted that public defenders cannot represent clients at the DHSMV hearing, as private attorneys can and do.

I use these defenses almost routinely in my work as a Miami-Dade DUI defense lawyer. As the article notes, one mistake by an officer can mean throwing out the evidence created by that mistake. For example, one woman in the article was told that she had to submit to field sobriety tests, which is simply not true in Florida. Her lawyer filed to suppress the resulting evidence, which ultimately allowed her to plead guilty to reckless driving. A conviction for reckless driving still carries probation and alcohol classes -- but it keeps a DUI off your record. That means there won’t be a first conviction on your record in the event of another DUI charge -- though the article says 90% don’t re-offend.

I believe this is the strongest argument possible for hiring a South Florida DUI criminal defense lawyer like me, if you’re facing drunk driving charges. The penalties for a first intoxicated driving conviction in Florida are severe, including potential jail time, loss of your driver’s license, hundreds of dollars in fines, probation and community service. As the article notes, hiring an attorney isn’t always cheap -- but neither are the costs of all of these penalties. If losing a license means losing a job, the cost is even higher, in both dollars and financial security. And of course, the benefit of keeping a criminal conviction off your record is not always measured in dollars. An Orlando drunk driving defense attorney like me can’t promise a specific result -- but as the article showed, statistics are on our side.

As a South Florida drunk driving criminal defense attorney, I have been avoiding writing about Tiger Woods. It seemed like there was more speculation than actual evidence showing that he was under the influence when he crashed his SUV into a fire hydrant Nov. 27. But last week, new information was released showing that Woods was unlikely to face any intoxicated driving charges. According to a Dec. 7 article from the Associated Press, the FHP trooper who responded to the accident requested blood test results to see if Woods was intoxicated, but prosecutors denied the request because there was insufficient evidence. This news means that police and prosecutors simply won’t have the breath or blood test evidence necessary to bring a solid DUI case against Woods.

In Florida, you can be charged with DUI for driving while intoxicated by alcohol, prescription drugs, street drugs or some combination of those. According to the article, a witness who was likely Elin Nordegren, wife of Tiger Woods, told the trooper that Woods had been drinking, and had legal prescriptions for both Vicodin and Ambien. Both are drugs with sedative effects, and doctors say neither should be mixed with alcohol. (As I noted recently, Ambien is not on Florida’s list of substances that are illegal to take before driving, although this may change.) However, no evidence I know of suggests that Woods had actually taken the drugs that night, and the prosecutor’s office apparently decided that the evidence of alcohol intoxication was weak or nonexistent.

In fact, this Dec. 9 article from Central Florida News 13 says Woods did not even have a smell of alcohol, which would strengthen any case against him. A former Orange County DUI prosecutor interviewed in the story said he thought “the judge would laugh [prosecutors] out of the courtroom” if they tried to subpoena medical records without witnesses or stronger evidence. As a Fort Lauderdale intoxicated driving criminal defense lawyer, I’d like to add that the only reported evidence that Woods was intoxicated was the word of his wife. Reports suggest that Nordegren was angry with Woods at the time, and subsequent reports of his infidelity suggest that she may be still. This gives her a motive to lie, making her an unreliable witness. This is far from sufficient to support a case without additional breath or blood test evidence, field sobriety tests or even a trooper’s documented observations of intoxication.

To win a DUI conviction in Florida without a blood or breath test reading, prosecutors must show that the accused was “under the influence” of alcohol or certain specific drugs. This is a vague standard that’s difficult to prove, even when the evidence is stronger than the word of an angry spouse. As a Miami-Dade DUI criminal defense attorney, I routinely advise clients to plead not guilty and defend intoxicated driving cases without a breath or blood test. Even if nobody was harmed, a first charge of driving under the influence has serious consequences in Florida, including potential jail time, probation, a six-month license suspension, vehicle impoundment and hundreds of dollars in fines. This puts a criminal charge in your record, can cause serious trouble at work and will certainly cause and an immediate increase in your auto insurance rates. When you’re facing penalties that serious, it only makes sense to mount a strong defense with help from an experienced Orlando drunk driving defense lawyer.

As a South Florida tax evasion criminal defense attorney, I have been keeping track on this blog of the investigation by the U.S. Internal Revenue Service into overseas tax evasion. Through much of 2009, the IRS actively pursued the names of accountholders at Swiss bank UBS, which had acknowledged helping U.S. taxpayers hide their assets to avoid taxation. The agency claimed throughout that its investigation was just part of a larger crackdown on tax evaders with overseas financial accounts. Now, news reports show that this was likely the truth. As a Dec. 3 article from Bloomberg News reported, the IRS has filed for the names of certain taxpayers in the ongoing fraud case of R. Allen Stanford, a Texas financial mogul accused of running a $7 billion Ponzi scheme involving fraudulent certificates of deposit. He also faces an SEC lawsuit.

According to Bloomberg, the IRS is interested in the names of Stanford investors who had overseas accounts between 2002 and 2008, in CDs at his Antigua-based Stanford International Bank Ltd. In a statement, the IRS claimed an unnamed taxpayer told it that statements from the Stanford bank and CD accounts did not state interest or income. Disclosing such income from overseas accounts is required under federal tax laws; failing to report it puts taxpayers at risk of criminal tax evasion charges, which carry up to five years in prison and six-figure fines. Stanford’s businesses are being managed by a court-appointed receiver because Stanford is imprisoned without bail; that receiver said he would comply with all legitimate requests. The court-appointed attorney representing Stanford investors said the anonymous disclosure suggested that Stanford “made an effort to keep CD investors from learning about the IRS reporting violations.”

Like that attorney, I hope the IRS keeps this in mind during its investigation. As I wrote during the UBS investigation, many taxpayers depend on their tax professionals and financial institutions for information about tax reporting. Someone without a financial background may genuinely not know that overseas income is taxable, especially if the bank fails to report it. Tax evasion is a serious charge, carrying up to five years in prison for each count, along with fines so high that they can even exceed the value of the account. As a Miami tax evasion criminal defense lawyer, I believe these are very serious penalties that may be disproportionate to the crime if the taxpayer genuinely didn’t realize there was a reporting requirement. And unfortunately, a tax crime investigation may literally add insult to injury for taxpayers who are already victims of Stanford’s Ponzi scheme. In fact, there may be nothing available for the IRS to take in some cases.

During the months-long UBS investigation, the IRS offered a voluntary disclosure program for taxpayers willing to come clean in exchange for substantially reduced penalties. These taxpayers would still have to pay back taxes and reduced penalties, but were not eligible for prison in most cases. This was an ideal offer for accountholders who never intended to evade their taxes, and the program saw an unprecedented flood of takers throughout 2009. That window of opportunity for UBS accountholders closed in mid-October, but the IRS offers a voluntary disclosure program year-round for people with any unreported legal income.

I offered my services as a Fort Lauderdale tax evasion defense attorney to UBS accountholders during their seven-month window. I suspect that this will remain an active practice for me in 2010, because these recent actions signal that the IRS is serious about tracking down tax evaders whenever it spots an opportunity to do so. The voluntary disclosure program is not available to people who are under investigation already, so if you may come under suspicion, it’s vital to make a move first. Admitting ignorance or wrongdoing, and paying the fines, may hurt -- but compared to the harsh consequences of a criminal conviction, voluntary disclosure seems like by far the better option.

As a Fort Lauderdale drunk driving criminal defense attorney, I was pleased to see a Nov. 28 editorial in the South Florida Sun-Sentinel pointing out major problems with sobriety checkpoints. These are the roadblocks set up by police, in which they stop every driver (or one out of every few drivers) passing that point to check for signs of intoxication. As the editorial points out, these DUI checkpoints are particularly popular around the holidays, when law enforcement expects more drunk drivers on the road. However, the editorial says, sobriety roadblocks are extremely ineffective compared to roving law enforcement patrols, in which officers simply take to the streets and actively look for drunk drivers.

According to the article, written by Sarah Longwell of the American Beverage Institute, roving patrols are both cheaper to taxpayers and better at catching drunk drivers than checkpoints. To illustrate this, it uses several examples from other states. For example, in Delaware, the 2008 holiday season saw 30 arrests at DUI checkpoints. During the same time period, roving patrols of officers arrested 276 more drivers. In fact, the article says, the Pennsylvania Department of Transportation says roving patrols are 10 times more effective than roadblocks. One reason the article gives for this is that at checkpoints, officers wait for drunk drivers to come to them, while roving patrols actively seek offenders. It also notes that once one driver knows where a checkpoint is, it isn’t hard for that driver to warn friends via cell phone or Internet. Furthermore, it notes that checkpoints can cost as much as $10,000, while roving patrols can cost as little as $300.

As a South Florida DUI defense lawyer, I would like to add that there are serious legal and philosophical problems with sobriety checkpoints as well. By design, sobriety checkpoints pull over everyone who passes, regardless of whether there’s a reasonable suspicion that the drivers pulled over are intoxicated. Under normal circumstances, any charges resulting from a stop made without probable cause would be illegal under the Fourth Amendment. The U.S. Supreme Court has ruled that the checkpoints themselves are legal, even though they violate our constitutional right to be free of unreasonable search and seizure, because of their contribution to public safety. Some defense attorneys call this the “DUI exception” to the Constitution. Several states have outlawed sobriety checkpoints, but Florida is not one of those states.

As a Miami drunk driving defense attorney, I am uncomfortable with the “DUI exception” to the Constitution. I understand the importance of taking drunk drivers off the streets -- but I do not believe that goal should be attained at the expense of our civil rights. And if the facts presented by this article are true, law enforcement may not even be finding intoxicated drivers in the most financially efficient or practical manner. In my criminal practice, I’ve certainly met people who were not intoxicated enough to be pulled over by a passing cop, but who were nabbed at a roadblock by officers who took their nervousness as an admission of guilt. Sobriety roadblocks implicitly accuse everyone who passes by of being a criminal until they prove otherwise, which is offensive, mildly absurd and even a bit of a threat. If they also don’t work well, we should focus government resources on something better.

As a Fort Lauderdale drunk driving defense attorney, I was interested to see a recent news report about a DUI from combining alcohol and prescription sleep aid Ambien. According to a Nov. 19 article from WPEC (CBS 12), Palm Beach County Deputy Christopher Grube was acquitted of driving while intoxicated during his off-duty hours. Grube was driving his patrol car in early February when he lost control on an expressway, skidding into a tree in the median. Grube failed field sobriety tests at the scene, a process that was caught on the dashboard camera of his police vehicle. Nonetheless, a West Palm Beach jury acquitted him last week. He is still on paid leave from his job, pending results of an internal investigation.

Grube admitted to having had “a couple” of drinks hours before his crash, and his Palm Beach County DUI lawyer said he was clearly impaired. However, he said, the real cause of the intoxication was the prescription drug Ambien (zolpidem), a newer prescription sleep aid. Grube intended to take a different drug, he said, but mistakenly mixed the Ambien with alcohol, accidentally causing severe intoxication. It’s well-documented that Ambien can cause patients to get up, move around their homes and even drive while asleep, the defense attorney said, even when not mixed with alcohol. Mixing the two can actually increase the drug’s effects. Ambien is not a controlled substance in Florida -- but even if it is, the attorney argued, Grube never intended to take it before driving.

I believe this is a good example of why people charged with a DUI should never plead guilty without at least speaking to an experienced South Florida DUI criminal defense lawyer. Even in a case like this, where the evidence of intoxication is clear and undisputed, prosecutors still must prove their cases. To convict someone of intoxicated driving in Florida, prosecutors must show that the accused had physical control of a vehicle, and:

• has a blood-alcohol concentration of 0.08 or greater, tested by breath or blood;
  
• is under the influence of alcohol; OR
  
• is under the influence of substances listed in the Florida codes, including prescription drugs as well as street drugs and solvents, and is affected to the extent that his or her normal faculties are impaired.

Presumably, Grube either did not have a 0.08 BAC or refused to provide a sample, making it more difficult for prosecutors to convict him of alcohol intoxication. This would have left prosecutors only with a DUI-drugs charge -- and that charge apparently failed. Grube’s attorney is right that Ambien has a history of causing sleepwalking and even sleep driving, which has generated DUI charges against patients in other states, As a Miami-Dade DUI defense attorney, I support a full review of whether Ambien should be on Florida’s list of controlled substances. However, until the Florida government makes such a change, drivers cannot be convicted for driving under the influence of Ambien. And as the article notes, that may be especially true when the driver never intended to take the Ambien, and thus become intoxicated, in the first place. Conduct that is not illegal should never lead to a criminal conviction, no matter how socially or politically unpopular it may be.

I have written here about the IRS voluntary disclosure program several times in the past. As a Miami-Dade tax evasion criminal defense attorney, I was extremely interested in the opportunity it offered taxpayers to avoid harsh penalties from the IRS crackdown on taxpayers who, through innocent mistakes or deceit, failed to declare their income from overseas bank accounts. The voluntary disclosure program ended Oct. 15, and according to the Associated Press, it helped more than 14,700 U.S. taxpayers clear their tax accounts without risk of criminal prosecution. The article also says that Swiss bank UBS is ready to disclose the first of the 4,450 names of American tax scofflaws as part of a settlement in related litigation. That includes 400 names to be disclosed by the end of this week -- meaning that 400 taxpayers will need experienced South Florida tax evasion criminal defense attorneys very soon. If you're one of them -- or you have another reason to be concerned about tax evasion prosecution -- don't hesitate to contact my office online or call 1-866-ARRESTED toll-free from anywhere in Florida for a free consultation.

For more information, you can read the AP article in the Miami Herald: IRS settles with 14,700 over foreign accounts