Cyber Crime Lawyer Blog

It’s nearly New Year’s Eve, and for Florida drivers, that means an upswing in police DUI patrols and sobriety checkpoints. According to the South Florida Sun-Sentinel, Palm Beach County and Broward County are both increasing their patrols for the holiday, and other jurisdictions in Florida are likely to do the same. As an experienced criminal attorney in Miami, I know how tragic the consequences of drinking and driving can be. If you find yourself considering driving after a few drinks this year, consider calling a cab, getting a ride with a sober buddy or taking advantage of program’s like the AAA’s Tow to Go Program.

But as a South Florida DUI defense lawyer, I also see many clients whose misconceptions about drunk driving laws and penalties got them into trouble they could easily have avoided. So for this holiday, I’d like to take a moment to clear up some of those misconceptions and remind drivers about their rights, responsibilities and potential penalties under Florida DUI law.

The first thing to know is that technically, you can refuse DUI tests -- but it may not be a good idea. There are two types of tests used by law enforcement to spot a driver under the influence: field sobriety tests and chemical tests of your blood, breath or urine. In almost all cases, the officers will administer both tests.

Field sobriety tests are the physical tests officers give on the roadside: Walking a line, finger to nose, standing on one leg and horizontal gaze nystagmus (in which you follow an object with your eye and an officer checks the angle at which your eye starts to jerk). They are not considered very accurate, and in fact, a sober person might fail for any number of innocent reasons. You have the right to refuse a field sobriety test, but keep in mind that the officers will not like it very much. The officers can arrest you anyway if they feel there’s enough evidence to support a DUI charge.

Chemical tests are a different story. All drivers on Florida roads (including those with out-of-state licenses) have given “implied consent” to blood, breath or urine tests simply by using the roads. If you’re pulled over, you generally don’t get a choice of tests. In fact, officers may ask for more than one if the results aren’t clear, and they will insist on a blood or urine test if they think you’ve used drugs. If you refuse these tests, you will be penalized for it -- a first refusal doubles the time your license will be suspended (to a year) and can be used as evidence against you in a DUI court case. A second refusal is a criminal misdemeanor.

Another common misconception has to do with the automatic driver’s license suspension. Even a first DUI in Florida draws an automatic driver’s license suspension -- unless you fight it at an administrative hearing at the DMV. You don’t get this hearing automatically! You have to request it in writing, and you must make that request within ten days of your arrest, or your opportunity to protect your driving privilege is lost. You can, and should, have an attorney represent you at this hearing. Unfortunately, the administrative hearing is completely separate from your court case, which means winning one doesn’t help you win the other. As a Fort Lauderdale criminal lawyer, I handle both the hearing and the criminal case for DUI defendants, usually as part of the same defense strategy.

The penalties for driving under the influence of alcohol or drugs in Florida are harsh, even if it’s a first offense. First DUI offenders can expect:
• Up to eight hours in jail, until the police believe they’ve sobered up.
• Their vehicles to be impounded or immobilized for ten days, under most circumstances.
• Driver’s license suspension for at least six months -- a year if they refused to take a breath, blood or urine test.
• A fine of $500 to $1,000. The fine rises to $1,000 to $2,000 if there was a minor in the vehicle or the BAC measurement was 0.15 or higher.
• Fifty hours of mandatory community service.
• Twelve hours of mandatory DUI school.
• Possible court-ordered alcohol or drug addiction treatment.
• Up to a year of probation.
• At the judge’s discretion, six to nine months in jail.
• An immediate and sharp increase in their auto insurance rates.

As you can see in the Florida statutes, these penalties increase sharply for a second or third DUI conviction, and the defendant is no longer eligible for community service or probation. In addition, a subsequent conviction requires you to have an ignition interlock device (breathalyzer) installed in your vehicle. A third conviction within 10 years, or any fourth or subsequent conviction, will be charged as a third-degree felony.

I spotted an article in today’s New York Times that I thought was sobering but relevant to my practice as a criminal defense lawyer in South Florida. Just in time for the holidays, the Times brings us a reminder of the economic troubles many Americans face this year. The article tells the story of Richard R. Johnson of Elkhart, Indiana, who faces shoplifting charges for trying to steal a $4.99 bottle of sleep medicine from a grocery store. He had actually intended to pay, but came up a dollar short.

Johnson admits his guilt and says he realizes it was a bad move, perhaps committed because he was desperate. He was laid off last year from a well-paying job building trailers, then again recently from McDonald’s. His family of four relies on his wife’s minimum-wage job at Wal-Mart, help from family and a food bank to get by.

According to the article, retailers are seeing a sharp increase in shoplifting -- 10% to 20% higher than normal, according to police departments. That may be a low figure, in fact, because stores often choose to handle smaller thefts on their own. While many people arrested for shoplifting are people who made bad decisions under stress, like Johnson, the article says many other shoplifters are part of organized shoplifting rings. These organized crime rings have moved online, where they can do millions of dollars in business. Experts quoted in the article say that it’s these rings, rather than individuals like Johnson, who pose a serious threat to retailers.

Johnson told the New York Times he was surprised that the grocery store would bother prosecuting such a small theft. The store says its policy is to prosecute all theft, and of course, it has every right to do so. Shoplifting is a crime -- and like Johnson, many of the theft clients I’ve represented know that they did something wrong and regret it. As a Miami-Dade criminal defense attorney, I have had great success getting my clients favorable results.

The holidays are a time for forgiveness. With the economy in an acknowledged recession and thousands of families across the U.S. struggling to make ends meet, it seems almost Scrooge-like to prosecute someone like Johnson to the fullest extent of the law. The penalties for second-degree petty theft (the charge for shoplifting goods worth less than $100) in Florida include steep fines and up to 60 days in jail, which could add up to a serious burden for someone desperate enough to steal $5 worth of merchandise. If organized crime poses a much more serious threat, as the article says, perhaps retailers should focus their efforts there instead.

For the past week or two, a hot topic in news outlets around the U.S. has been “sexting” -- a practice among teenagers of sending naked or near-naked pictures of themselves via text message to friends, boyfriends and girlfriends. ABC News reports that many teens then forward the pictures to friends or post them online, where they can spread quickly. The On Parenting blog at the Washington Post says that 22% of girls and 18% of boys reported having sent these pictures electronically.

As you might imagine, this can have profoundly negative consequences for the teens’ social lives -- but in some cases, it’s worse. A few teenagers around the country have actually been charged with making or possessing child pornography because of these pictures. In Wisconsin, a 17-year-old boy was charged with possession after posting naked pictures of his 16-year-old ex-girlfriend on the Web. Four middle-schoolers in Alabama were arrested for exchanging photos. And in New York, a 16-year-old is facing prison for soliciting and sending pictures of his 15-year-old girlfriend to friends.

As a cyber crimes defense attorney in South Florida, I do not believe that our child pornography laws were designed for these situations. The teens usually take their own pictures and voluntarily share them, which makes it difficult to see it as the kind of exploitation of children that Florida child pornography statutes were intended to punish. In fact, under Florida state law, actual sexual activity between young adults ages 16 to 21 is not criminalized under “normal sex offender rules” -- but “sexting” may still be. (As far as I know, Florida has not yet seen this type of prosecution.)

Sending pictures to a third party without the subject’s consent may be another matter. This is certainly unkind, and courts or lawmakers may decide that it’s a criminal activity as well. However, a conviction for possession of child pornography in Florida draws up to five years in prison for each picture or video, plus a lifelong requirement to register as a sex offender. This seems like an overly harsh punishment for a crime that at least started out consensual.

Miami Criminal Defense Attorney, the saga continues...to carry or not to carry?

More on Athletes and Firearms.

Even though I’m a Florida criminal defense lawyer, a court ruling from Australia caught my eye this week because it addresses an issue that’s becoming very important in my Florida cyber crimes defense practice. Australia’s Supreme Court ruled on Monday that a man was properly convicted for possession of child pornography because he had sexually explicit images of cartoon children on his computer. In fact, these were images of characters from the television show The Simpsons (knockoffs, not official or authorized images), including the family’s three children.

As the New York Times reported, the case turned on the question of whether the cartoon characters could be considered people under the law. The defendant argued that they shouldn’t be considered people because they “plainly and deliberately” did not look like natural humans. Justice Michael Adams of the court agreed that the characters were not strict reproductions of people, but ruled that even images that are not strictly faithful to the human body may be considered persons under the law. Noting that owning these images would be a serious crime if they were photos, the justice said that the lower court was right to rule that fictional or imaginary characters qualify as people for purposes of the child pornography law.

If you think this couldn’t happen in freedom-loving America, I’m sorry to say that you’re not entirely right. As the NY Times link above mentions, an Iowa man is currently being prosecuted for possessing sexually explicit manga (Japanese comic books); the government does not allege that the images were produced using real children or that he owns any photos or videos. And the U.S. Supreme Court ruled this past May that defendants may be prosecuted for soliciting or offering child pornography even if the material is computer-generated, digitally altered from legal pornography or nonexistent. That is, merely offering or asking for this material is now a crime.

Fortunately, that court has also ruled that simple possession of material not produced using actual children remains legal. That may sound like a fine distinction, but it’s very important to my clients and to me, as a Miami cyber crimes attorney. Child pornography is not covered by free speech laws, the way adults-only pornography is, because children (and their parents) can’t legally consent to making it. That means that genuine child pornography is always produced by criminal activity. Drawings and computer-generated images that seem to be child pornography -- but aren’t -- may be disturbing or unpopular, but they don’t have this problem.

Miami Criminal Defense Lawyer asks, is your computer safe? Do you have your passwords written under your desk blotter or in your rolodex? Even if you are good at hiding your password, technology today makes it very easy for someone who knows what they are doing to crack your codes. What does that mean for you as a user?

If someone gains access to your computer for even a minute, they can turn your computer into a host computer and source all their activities through your machine, insulating them from police detection. So when the authorities come a knocking, and eventually they will, you will look like the culprit. What agencies and users are starting to do is incorporate some of the changes recommended by a panel - Panel Offers Ways to Bolster Cyberspace Security. One security system is similar to a USB device that gives out scrambled codes every time the user seeks to log in, thus giving the user a new password each time.

There are a variety of ways to protect yourself, but the simplest way is making sure you don’t leave the front door open. For more information on cyber crime prevention or advice if you are facing cyber crime charges in the United States, please contact David Seltzer, Miami Criminal Defense Lawyer Miami Cyber Crime Defense Attorney today for a free consultation 24/7.

The Santa Rosa Press-Gazette reported Dec. 2 that an Air Force serviceman was arrested for possession of child pornography. According to the article, the Cyber Crime Unit in Florida Attorney General Bill McCollum’s office found pornographic images of children online and traced them back to the man’s computer. In April, law enforcement seized the computer and an external hard drive, on which a forensic analyst found multiple images and videos alleged to be child pornography. The man is charged with 15 counts of possession of child pornography and one count of promoting the sexual performance of a child, carrying a total of 255 years in prison.

Unfortunately, the article doesn’t go into details about the images and how they were produced. But as a criminal defense attorney specializing in cyber crimes, I can see many possible defenses for this man, just from the few facts presented. For one thing, evidence that something was sent from a person’s computer is not evidence that it was sent by that person. You may not realize it, but viruses and “malware” can and regularly do quietly install themselves on vulnerable computers, which allows them to send and receive all kinds of things without the owner’s knowledge or permission. That was the case for a Massachusetts state worker I wrote about back in June. Of course, another human could also have used the machine.

Either way, once this stuff is on your computer, it can be automatically transferred to an external hard drive or other storage medium by backup software, thus giving law enforcement “evidence” that you collect it. There are many technical pitfalls like this when it comes to tracing electronic evidence. Others include easy-to-fake timestamps, “spoofed” identifying information and lack of accountability for Internet users and companies overseas. If an alleged solicitation was accomplished through Internet servers in another state, you can be charged with a federal crime, even if everyone involved lives in Florida. If you’re charged with this kind of crime, it is essential to find a lawyer experienced in cyber crimes defense, who understands where to look for these small but potentially exonerating details.

Finally, I’d like to point out that the man in this case is being charged under a relatively new Florida law: The Cyber Crimes Against Children Act of 2007. Among other things, this law doubled the penalty for promoting or distributing certain images of a child, which may explain the lengthy potential prison sentence. Whatever the outcome, I hope justice is served.

As a Miami Dade Criminal Defense Lawyer pondering Plaxico Buress’ latest off the field saga, I guess the real question that sports fans have to ask one another is why do people who have it all feel the need to do stupid things? Just a thought, but if I was making $206,000.00 a week playing football, carrying concealed weapon into a night club and shooting myself would not be at the top of the list of things a Fort Lauderdale Criminal Defense Attorney would consider to be a fun night out.

Under Florida law, carrying a concealed firearm is third (3) degree felony punishable by up to five (5) years in prison. However, that being said, discharging a firearm in public carries an additional penalty of up to a year in jail. Under Florida law, if the individual is not a convicted felon, there are no minimum mandatory sentences, unlike New York. The long and short of it is, Plaxico Buress, next time you are stupid and want to lose $824,000.00 do it in a state where the penalties aren’t so harsh.

See Giants' Pierce to testify for grand jury.