Cases throughout Florida may end up coming unraveled if judges take note of what courts in Miami and Manatee County have done recently with drug cases that have been ruled unconstitutional, the Sarasota Herald-Tribune reports.

Cases of drug possession and drug sales may be dropped after Judge Mary Scriven, of the U.S. Middle District of Florida, ruled that Florida’s drug possession statute is unconstitutional because it lacks the element of intent — opponents argue that violates due process because it puts the legal burden on the defendant. Three circuit court judges have now asked the Florida Supreme Court to address the constitutionality question of Florida Statutes Section 893.13.

A Fort Lauderdale criminal defense attorney who is familiar with recent case law can often use evolving law to a client’s advantage. These precedent setting cases typically start at the trial-court level when a defendant and experienced lawyer see a legal issue that permits them to fight the charges.

In this case, the federal judge used a three-part test from the U.S. Supreme Court to analyze the statute: Whether the penalty imposed was slight, whether conviction resulted in substantial stigma, and whether the law regulates substantially dangerous or deleterious conduct. Clearly, a conviction of drug possession or drug trafficking fails this test.

The concept is simple: As the law stands, a UPS driver or U.S. Postal Service mail carrier could technically be charged with possession of prescription drugs if they are unknowingly delivering medicine to someone who doesn’t have a prescription. Obviously, that isn’t the intent of the law.

Thousands of drug cases swing in the balance as judges face the unconstitutionality of the law that currently guides them. Miami-Dade Circuit Judge Milton Hirsch has already cited the ruling in declaring the state law unconstitutional and dismissing 39 drug possession cases. In Manatee County, a judge recently dismissed charges against 42 defendants.

The Manatee judge wrote that there are many examples of a person being charged with possession of drugs, such as a roommate who has no knowledge that someone else has illegal drugs in the house. Lawmakers eliminated the intent part of the law in 2002.

Judges in other areas of the state are expected to take up the issue in the coming weeks as knowledgeable defense lawyers in Fort Lauderdale, Fort Myers use the ruling in the defense of clients facing drug charges in Florida. Meanwhile, the 2nd district court of appeal in Lakeland, Florida has sent a certified question to the Florida Supreme Court to ask the Court get involved and rule on the issue.

If you are in need of a defense lawyer, feel free to call our office to address any concerns you may have at 954.524.2424 in Fort Lauderdale or our Fort Myers office at 239.277.0005. The Garvin Law Firm has two locations to best serve the needs out clients throughout South and Southwest Florida.

Sound too good to be true? Well it probably is…We’ve all heard the catchy jingles on our favorite radio stations announcing that after a car accident, we may be entitled to $10,000 in lost wages and benefits. DJ’s and “attorney spokesmen” encourage us to call one of these hot-lines from the scene of the accident—but is what they’re selling us for real?

The long and short answer is: Yes and No (answered like a true lawyer…I know.), but we realize, you probably already knew that. Many people, especially in South Florida, come to personal injury attorneys after even a minimal car accident looking for the $10,000 check that they’ve been hearing about on the radio or billboards.
What all these advertisements are referring to is your PIP (or Personal Injury Protection) Insurance, also referred to as No Fault Insurance. This insurance, which has long been the center of fierce debate in Florida, is the only type of mandatory auto insurance that Floridians are required to purchase. You may have even heard about this insurance from news reports of fraud, staged accidents, and Florida lawmakers constantly trying to regulate it in one direction or another.

According to this article on My Fox Tampa Bay, “Florida leads the nation in questionable insurance claims, which leads to you to paying more for car insurance.” And although an insurance coverage reform bill was presented in early May 2011, it was voted down by the Florida House Subcommittee on Health Care and Human Services.

So what about my 10 grand and what is all this talk about PIP Insurance? The state of Florida is known as a “no fault” state for automobile accidents. This means if you are in an auto accident in Florida, regardless of who is at fault for the collision, you first look to your own automobile insurer to pay a portion (up to $10,000) of your medical expenses and wage loss under your PIP (Personal Injury Protection) coverage for any injuries you received in the accident. This coverage protects you against losses you sustain as a result of personal injuries from an automobile accident and pays 80% of reasonable, necessary, and related medical expenses, as well as, 60% of your gross wage loss resulting from your accident-related injuries and mileage costs for transportation to and from doctor appointments.

The only way you can become eligible for any direct PIP cash is if your doctor states that you are unable to work, and even then, you will only get 60% of your lost wages. If you can’t work, that means that you are probably really hurt and will need this PIP money to help pay your medical bills

After the $10K is exhausted,you may have the right to recover your damages from the other driver. If the negligent driver has insurance you can recover your medical expenses and lost wages and, if you meet the threshold requirements of Florida Statute 627.737 which include a permanent injury, significant scarring or death, you can pursue a claim for your pain and suffering.

The insurance laws of the State of Florida are complicated and if your claim is not pursued correctly most insurance companies will deny (or offer a very small amount to settle) your claim. According to this investigation by Anderson Cooper and CNN; Insurance companies actually spend billions each year denying claims. To make sure that you recover all of your damages you should hire an attorney with significant experience in the field.

If you have any questions regarding Personal Injury Protection Insurance, or have recently been injured in a car accident, feel free to call our office to address any concerns you may have at 954.524.2424 in Fort Lauderdale or our Fort Myers office at 239.277.0005.

For the most of us, the possibility of getting a DUI increases during the holidays.

The holidays are a time when we attempt to leave work at work and spend some quality time with the ones we love. The holidays also include parties and a drink or two with old friends.

In this post I wanted to pass on a few tips from the trenches during my experience as a prosecutor and now Florida DUI Defense Lawyer.

Tip 1. Don’t drink! Ok, this is an easy one but I felt obligated to include it in the post. Driving after you’ve had too many will not only cost you a lot of money but it could cost you your job and possibly your life, or the life of another.

Tip 2. If you insist on drinking alcohol, be smart about it.  Eat enough food to have a full stomach and watch those drinks. For a 120 pound female 3 beers/shots/glasses of wine in an hour and your right at .08 (Florida’s legal limit).Take a look at this link for a blood alcohol calculator and figure out your limit.

Tip 3. Make sure your vehicle is in good working order, your driver’s license is valid, and your registration is current. An expired tag or a bad tail light is a sure-fire way to get pulled over and peppered with questions from a law enforcement officer. If you live in Florida, you can quickly check the status of your driver’s license at the Florida Department of Highway Safety and Motor Vehicles website.

Tip 4. Obey every traffic law to the “T”. This means: no rolling stops, signaling every time you switch lanes, and keeping it between the lines.

Tip 5. If you decide to “sleep it off” in your car, make sure that the car is not running and the keys are nowhere near the ignition. I know it’s cold and the heat would feel so nice but don’t risk it. In Florida, a person can be prosecuted for DUI if they are in “actual physical control” of the vehicle; this has been interpreted to mean the ability to control use and non-use (aka. drive the vehicle if you wanted to). Throw those keys in the bushes!

Tip 6. If you do get pulled over, make sure that you have your driver’s license, insurance, and registration ready to hand to the officer. Fumbling and searching for this information is the first thing the officer will write in the police report.

Tip 7. Check the local paper and watch the news for any mention of a planned checkpoint stop. Not only will this add time to your commute but who wants to stand on one leg , touch your nose, or walk a straight line if it can be easily avoided.

Tip 8. Stay off your cell phone and leave the radio where it is; it doesn’t matter if you hate “Grandma got runned over by a reindeer”; Just let it play. You need to be focused on your driving; too many people die each year from Texting and Driving alone, add alcohol to into the mix and the results are incredibly deadly.

Not only will having a designated driver keep you from getting a DUI but it just might save a life . Impaired driving could not only ruin your life but it could ruin (or even end) the life of another.

I hope everyone has an amazing: Christmas, Chanukah, Kwanza, and any other holiday I forgot. In the event that your holiday season takes a turn for the worse, the Garvin Law Firm is here and ready to act in court on your behalf; we can help pick up the pieces and get things back on track; whether your facing a Criminal Arrest or injured an Auto Accident.

As of September 8, running a red light at some Broward County intersections will be captured on camera, and subject to a $158 fine.

In May, Gov. Charlie Crist signed HB 325 into law, authorizing local governments to use the cameras as enforcement devices, setting statewide standards and traffic fines for them.

The vehicle owner will receive a citation in the mail, but won’t be issued a traffic violation, so no license points; the owner can appeal the fine. The driver won’t be ticketed for rolling stops, or slowing down and approaching the intersection with caution. Drivers should note, though, that cities have 30 days to send the violations, so you could rack up multiple offenses that all arrive in the mail a month later.

The city of Fort Lauderdale has approved cameras in 10 locations and so far installed six.

Some Broward cities, including Pembroke Pines and Hallandale Beach, have been using cameras, and now must comply with the new state standards. That’s a plus – before the bill’s enactment, cities could fine anyone who didn’t come to a full stop before turning at an intersection with a camera.

Pines Mayor Frank Ortis, a big fan of the cameras, said that since one was installed at 129^th Avenue and Pines Boulevard in 2008, there’s been a dramatic change in the incidence of red-light runners.

“My whole goal was to save lives,” Ortis said.

In fact, the bill’s proponents urged its passage as a life-saving measure. It is named the Mark Wandall Traffic Safety Act for a Bradenton man killed in 2003 by a driver who ran a red light. Wandall’s wife, Melissa, has been pressing for the bill ever since.

“This bill will curb the behavior of red-light running,” she told the Sun-Sentinel in an interview after the bill was passed in April. “That’s what this is about, reducing crashes and fatalities at intersections.”

Using covers, tints, or any other tricks to obscure your license plate could get you in even more trouble than running a light; Florida law requires that your entire plate be visible, and use of covers is illegal on roadways.

Aventura was the first South Florida city to install intersection cameras, in 2008. In Broward, they’ve been approved in Hollywood, Davie, Coral Springs and, most recently, Plantation. Margate and Tamarac are also considering them.

Despite all this enthusiasm for the new law, the motive being purely about public safety has been questioned. In a recent editorial, Miami Herald columnist Daniel Shoer Roth expressed skepticism, pointing how expensive it is to appeal a ticket and nearly impossible to win, discouraging challenges.  He agreed with others who believe the real motive is an easy revenue source.

The roadblocks to fighting a camera-issued citation have not prevented challenges to the law’s constitutionality, although Crist has expressed confidence the state is on solid legal ground. Stay tuned.

The Garvin Law Firm in proud to announce that Leland E. Garvin has recently been named by Florida Super Lawyers magazine as one of the Top Young Lawyers in Florida for 2010. Only2.5 percent of the lawyers in the state are selected by Super Lawyers for this list.

Each year lawyers are asked to nominate the best attorneys who are 40 or under, or who have been practicing for 10 years or less. They are instructed to nominate lawyers they have personally observed in action — whether as opposing counsel or co-counsel, or through other firsthand courtroom observation.

After these nominations are submitted, the research team at Super Lawyers undertakes an independent evaluation of candidates by the attorney-led research staff along with a good-standing and disciplinary check with the Florida Bar.

Leland is a former State Prosecutor, who practices in Criminal Defense and Personal Injury Law from his office in Fort Lauderdale, Florida. Recently he was also Selected as “one of the best up and coming attorneys”  in the state of Florida by Florida Trend Magazine.

-Leland can be reached by dialing (954) 524-2424 or via email at: lgarvin@garvinlegal.com.

In courtrooms around the state, it has long been the practice that juveniles were to be shackled by the wrists and ankles with belly chains, chained to furniture or chained to each other when they were brought to appear before a judge.

In this 6-1 opinion, The Florida Court stated,  that this process was “repugnant, degrading, humiliating and contrary to the primary purposes of the juvenile justice system.”

One of the primary goals of the juvenile justice system is rehabilitation and many have argued that this process actually harms the child and can have long lasting psychological consequences.

The Florida Supreme Court, suggested that the shackling may also violate the children’s due process rights as it could be seen as cruel and unusual punishment.

A Fort Lauderdale Judge once told me that juveniles had to be shackled after two juveniles escaped as they were being transported to the courtroom. He said these juveniles, who were only handcuffed to each other, ran out front of the Broward Courthouse and each decided to run on the opposite side of a palm tree only to smack heads on the other side. The judge explained that these juveniles had serious injuries and that ever sense that day all juveniles had to be shackled. I am not sure if the judge made this up or if that was really the reason why all juvenile offenders had to be shackled.

At the time I heard the judge’s story I was working as a juvenile prosecutor and believed that juvenile delinquents were treated too lightly and I figured that they were only going to get a smack on the wrist so at least the shackling process might make them think twice before committing their next crime. Once I got out of the juvenile division I learned that even the adult defendants didn’t have to be shackled and that it wasn’t  really fair that the juveniles did.

At any rate, the Florida rules of Juvenile Procedure now state that restraints are allowed only to prevent physical harm against the child or others, if they pose a flight risk, or if they have a history of disruptive behavior in court and there are no alternatives.

Many public defenders and juvenile rights advocates around the state are very pleased with this decision; what’s your take?

They’re not coming for the beaches any more, they’re coming for the Pain Management Clinics. Within the past few years it seems like these clinics have been popping up everywhere, and they’re clearly making money. If you can’t tell from the lines wrapped around the back of the clinic on a Monday morning or the ads that appear on page after page in the New Times, this is a profitable business. The worst of these drugs is Oxycodone (aka. oxy’s, oxycontin); according to DEA statistics Broward County is the number Oxycodone distribution site in the Country, dispensing 3.3 million pills in the first 6 months of this year.

Broward Sheriff’s Deputy Sgt. Lisa McElhaney states that BSO has been “talking to hundreds of thousands of individuals trafficking into the State of Florida specifically to obtain pharmaceutical drugs.”

So why do all these people travel here to South Florida? Authorities say it’s because we make it easy for them to get pills. Additionally, they say it’s perfectly legal and the State Legislature is doing nothing to regulate this epidemic. Recently channel 7′s Carmel Cafiero investigated this growing trend with a story that appeared in her segment Carmel on the Case.

One of the worst part of these drug offenses is that if a person is found in possession of more than 4 grams of Oxycontin, they will be looking right down the barrel of a 3 year minimum mandatory Florida prison sentence. These minimum mandatory prison sentences only go up from there, if someone if found simply possessing more than 14 grams of the substance then the min/man is 15 years, day for day, Florida State Prison.

The bottom line of all of this madness is that while our citizens are being shipped off to prison, pain clinics are opening up in new neighborhoods.