Cyber Crime Lawyer Blog

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

As a South Florida criminal defense attorney, I was disappointed to see comments from our state’s attorney general suggesting that he’d like to make professional licenses tougher to get for convicted felons. According to a Nov. 3 article from the Associated Press, Attorney General Bill McCollum, who is running for governor, objects to a law requiring Florida licensing agencies to grant licenses to former felons who had their civil rights restored and have completed a three-year waiting period. The law provides an exception for licenses directly related to the crimes. For example, someone accused of embezzlement while working as an accountant would have no right to a CPA license.

In a meeting of three Florida House of Representatives panels, McCollum said he’d like that law repealed or modified. He said he believed it tied the hands of the licensing agencies, forcing them to grant licenses to people who would not otherwise receive them. The committees are studying the issue in response to a South Florida Sun-Sentinel article detailing how the screening process failed to stop convicted felons from working as caregivers for children, the disabled and the elderly. McCollum would like the waiting period expanded to five years and to give agencies the power to revoke licenses if new information comes to light. George Sheldon, the secretary of the state Department of Children and Families, added that he’d like a requirement that candidates wait until a background check is finished before beginning to work.

I agree with Sheldon, and with the license revocation suggestion by McCollum. But as a Miami criminal defense lawyer, I have strong reservations about making it more difficult for ex-felons to obtain the tools they need to build new, law-abiding lives. The state can and should be extra careful when considering whether to grant licenses to former felons -- but for the most part, our system already has the necessary safeguards in place. As noted above, ex-convicts must have their civil rights restored before this law applies, a lengthy process requiring an application, a hearing, an investigation and sometimes letters of support from employers and community members. In addition, they are not entitled to professional licensing in areas related to their crimes. The Sun-Sentinel investigation found many people working as caregivers in violation of that rule, but the newspaper blamed inconsistent laws, incomplete background checks and failure to enforce the law for most incidents.

Like almost everyone in Florida, people who have committed crimes need to earn a living. But access to employment is especially important for people who are struggling to overcome a criminal past, because financial stress can push them into habits they’re trying to overcome. The deck is already stacked against ex-felons looking for jobs, thanks to their time away from the workforce and prejudice from prospective employers. The state of Florida should absolutely protect the vulnerable people under the supervision of state-licensed caregivers, but it shouldn’t erect more obstacles in their way unless those obstacles serve the goal of public safety. Some of the suggestions in the AP article do that -- but others would just penalize people who have already served their time. As a Fort Lauderdale criminal defense attorney, I believe society as a whole benefits when ex-offenders don’t face unreasonable barriers to employment and reintegration into society.

As a Miami-Dade child pornography possession criminal defense attorney, I have known for years that viruses can silently download child pornography, exposing the computer’s owner to life-altering criminal charges and personal consequences. That’s why I was very pleased to see an Associated Press report Nov. 9 confirming that these cases are real -- and that prosecutors aren’t always willing to listen. The AP reviewed court records and interviewed defendants, attorneys and computer forensic examiners to understand the problem. Its conclusion: Viruses that download child pornography are real, and victims can lose their jobs and friendships and even go to prison because of them.

As the article explains, these viruses are typically used by actual pedophiles to download and store child pornography on an innocent person’s computer, helping them avoid getting caught. Sometimes, they can also be used to get back at someone or play a not-very-funny prank. In either case, the computer needs to be vulnerable to the virus and left online for long periods. The viruses store the child pornography in folders that users aren’t likely to open, like the temporary cache for a Web browser. Later, co-workers, family members or investigators can find the folders -- and the computer’s owner is unpleasantly surprised with a criminal charge for possession of child pornography.

Simply claiming that a virus is responsible won’t pass muster with many investigators, because people who are guilty frequently make this claim. However, computer forensic examiners told the AP that it’s not hard to tell whether this is the truth, from data on the machine as well as tell-tale physical evidence like DVDs in the home of the accused. Unfortunately, proving this usually requires the services of a forensic investigator, which can be very expensive. Courts may pay for the investigation if the defendant cannot, but they may also choose not to.

Ned Solon of Casper, Wyoming says that was the case for him. He said he never downloaded the child pornography found in a folder for a file-sharing program on his computer, and the computer defense forensics expert suspects he’s right. However, she never got to finish the job because of a payment dispute. Solon is appealing from prison, where he is serving a six-year sentence.

By contrast, Michael Fiola of Massachusetts was able to prove that a virus downloaded child pornography onto his work computer. But before he could do that, he was fired from his job for the state, had his tires slashed, received death threats and lost friends. To pay for his six-figure defense, Fiola and his wife spent their savings, took out a second mortgage and sold their car. At trial, experts showed that his computer was downloading child pornography at a rate too fast for any human being, at times when Fiola was not at home or work. Nearly a year later, the charges against him were dropped -- but the Fiolas say their physical and financial health suffered. They would like to sue the state, but cannot find an attorney willing to take the case for the small amount of money that Massachusetts law allows them to recover.

In my practice as a South Florida child pornography possession criminal defense lawyer, I see sad stories like these more often than I would like. In many cases, prosecutors haven’t quite caught up with the state of the art in networking technology, which allows child pornography fans to stay one step ahead. When they find child pornography, they don’t always do the painstaking work necessary to rule out viruses and other explanations for the pornography. The result can actually ruin innocent people’s lives, even if they are acquitted or charges are dropped. Merely the accusation of child pornography possession is enough to cause the loss of a job, a spouse, child custody, friendships and professional licenses and a good reputation in the community.

Stories like these are why I use computer forensics experts whenever appropriate, as a Fort Lauderdale possession of child pornography defense attorney. With computers, things are not always what they seem on the surface, and simply having these materials on a computer is not iron-clad proof of a child pornography possession charge. But prosecutors who are understandably eager to find and stop the perpetrator may not stop to consider that -- or they may genuinely not realize that an investigation could change the story. With the defendant’s freedom and future at stake, it is essential that prosecutors and police agencies give virus defenses fair consideration -- and that defendants do whatever they can to prove those defenses.

As a criminal defense attorney and a South Florida cyber crime criminal defense lawyer, I understand that there’s a fine line between a tool and its uses. That’s why I was disappointed to see a post on Wired’s Threat Level blog Nov. 2 about a man from Oregon who was criminally charged for selling “uncapped” cable modems and software that helps customers use those modems. Ryan Harris is accused by federal prosecutors of conspiracy and aiding and abetting wire fraud and computer intrusion. As Wired notes, however, he is not accused of directly breaking the law -- just of helping customers and Internet users to do so.

“Uncapping” cable modems means removing the limitations on maximum data speed that come with the modems, as well as other default settings. Brand-new cable modems typically limit upload and download speeds, but technically savvy owners can change the configurations to achieve much faster speeds. By itself, this is perfectly legal -- after all, the modem is the user’s own property. However, Internet service providers don’t like it because a large number of bandwidth hogs can disrupt their networks and undermine the market for faster, “premium” plans. They typically ban users they catch with uncapped modems. In addition, a user with an uncapped modem can use the modem to steal Internet service by spoofing a paying neighbor’s hardware address. Harris, who goes by DerEngel, is part of a band of cable modem hackers at TCNiSO.net, which sells uncapped modems, uncapping software and his book Hacking the Cable Modem.

According to Wired, Harris has made it clear that he and his colleagues do not condone using their work to steal from ISPs. Nonetheless, that is the accusation federal prosecutors made when they indicted him and TCNiSO Aug. 19 (with help from a grand jury). He is accused of knowingly helping at least one unindicted co-conspirator steal Internet services. By selling their hardware and software and providing support, the indictment said, Harris, TCNiSO and two unnamed employees conspired to help a customer steal Internet service. They are also accused of aiding and abetting the alleged co-conspirator, a teenager from Massachusetts known online as DShocker. DShocker pleaded guilty last year to hacking-related offenses, Wired said, but prosecutors don’t allege that Harris was involved in those offenses -- just that he sold DShocker hardware and software. The indictment also mentions that Harris and his company sold modems and a copy of his book to an undercover FBI agent.

Not surprisingly, Harris told Wired that he intends to plead not guilty. As a Fort Lauderdale cyber crime criminal defense attorney, I wish him luck. Judging by the indictment, all of the accusations against Harris have to do with other people’s actions -- he is accused of conspiracy and aiding and abetting. By contrast, the actions attributed only to Harris by the indictment -- selling some modems and a book -- are all legal. As he noted in the post, hacked cable modems have legitimate uses. And even if those legitimate uses aren’t what attracts users -- and Harris knew it -- it does not automatically follow that hacking and selling cable modems is itself a crime. After all, auto manufacturers aren’t criminally charged every time someone drives drunk in Florida, nor are firearms manufacturers charged when someone commits a weapons crime.

As a former prosecutor, I understand that prosecutors want to stamp out crime -- and theft of services is a crime. But as a Miami cyber crime criminal defense attorney, I believe it’s essential to distinguish between a tool itself and its uses. The law puts responsibility on the person who uses a tool to commit a crime-- not the person who provides that tool. To protect our freedom, we must continue to observe that distinction.

As you may be able to see from this blog, I keep a close eye on issues related to sex offender residency requirements, as part of my work as a Fort Lauderdale sex offender criminal defense attorney. The state of Florida requires registered sex offenders to live more than 1,000 feet away from schools and other places where children gather. In Miami-Dade and Broward County, that restricted is extended to 2,500 feet. Thanks to the colony of homeless offenders living under the Julia Tuttle Causeway colony, and the lawsuits surrounding it, the issue is getting some welcome attention here in South Florida. Most recently, on Oct. 29, the South Florida Sun-Sentinel ran a piece that shows just how desperate the restrictive laws in Broward County have made some offenders: At least two have asked for more jail time because they cannot find places to live.

The article focused on Raphael Marquez, 38, who served seven years in prison for sexual battery on a minor. Marquez was scheduled to be released in June, but requested and received more jail time instead of house arrest. He was again scheduled to be released last week to serve 18 years of probation -- but asked a Broward County judge for yet more prison time rather than the probation. The public defender representing Marquez said he has no family and no residence in Florida, which he cannot leave during probation; he expected to be homeless after his release. Because of the residency restrictions in Broward County and its cities, the closest facilities for homeless sex offenders are in Pahokee and Fort Myers, both far to the north -- and with no job, he can’t afford to pay deposits at those. The judge said he had no authority to imprison Marquez, but said he was disturbed to essentially throw someone onto the streets.

The failed request by Marquez shortly followed a request the week before from registered sex offender Cory Lewis. Lewis has a home in Fort Lauderdale, but cannot live there because of residency restrictions. He asked for more prison time in lieu of house arrest, but the judge refused and gave him 90 days to find a new home. That time extension is important for people on probation, because one offense, including a residency violation, means even more legal trouble. The judge in the Marquez case was critical of the residency requirement, reportedly saying that “The Legislature has got to realize we're digging ourselves into a hole and it's only going to get deeper, and deeper, and deeper.”

As a South Florida sex offender registration defense lawyer, I agree completely. State and local legislators have created a situation that forces offenders into homelessness even when officials have not actually told them to live under a bridge, as reportedly happened with the Julia Tuttle Causeway colony. As the public defender for Marquez pointed out, the situation is inhumane to offenders and unsafe for the public, because it’s much harder to keep track of offenders like Marquez when they have no permanent address. In fact, because keeping tabs on offenders is the entire point of registration requirements, residency restrictions that push offenders into homelessness actually undermine them.

As a Miami sex offender residency violation defense attorney, I understand that nobody wants offenders near children. But when a law doesn’t protect the public and raises serious questions about offenders’ rights, it’s time to reconsider that law. Forcing people by circumstance into homelessness is not just an inhumane situation; it can also create difficulties for offenders who are trying to get jobs and take other steps toward a better life. No matter how you feel about residency requirements, it’s easy to agree that that’s a goal worth supporting.