Archives : Criminal Defense Attorney

Dodgers Fan Sues Owner for $50 Million

California Penal Code Sections 240 and 241 define an assault as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” You can be charged with assault even if there are no injuries to the victim. A simple assault under California Penal Code Sections 240-241 is considered a misdemeanor and carries a fine up to $1,000 and jail time up to six months. A simple battery is defined under California Penal Code Sections 242-243 as “any willful and unlawful use of force or violence upon another person.” It can be charged as either a misdemeanor or a felony with a jail sentence of up to 6 months and a fine up to $2,000.

A more serious crime of assault with a deadly weapon (not a firearm) under Penal Code Section 245 is considered a felony. You can be charged with this crime if the police believe you assaulted someone with the intent to commit bodily harm with a deadly weapon other than a firearm. If convicted, you can face up to four years in state prison and a fine up to $10,000. If you possess a firearm even if you did not use it to cause bodily harm, you can be charged with an assault with a firearm, which is also a felony. This also carries up to a four year state prison sentence and a fine up to $10,000 under California Penal Code Section 244. If the crime took place on a school ground, or the victim was a public transportation driver, or the crime was gang related, the sentencing can be elevated. If you are convicted of a felony assault, you also face a strike under the California three strikes law.

Case Example:

Documents filed on Friday September 9, 2011, by attorneys for the Los Angeles Dodger Stadium beating victim Bryan Stow in Los Angeles Superior Court estimating their client’s medical costs to be more than $50 million as a result of the beating of Stow at the Dodger Stadium parking lot after the home game victory against the San Francisco Giants on March 31, 2011. The lawsuit was filed by plaintiff Stow and his children against Dodger’s owner Frank McCourt and 13 team entities on May 24, 2011 alleging assault, battery, negligence, premises liability, negligent hiring, and intentional and negligent infliction of emotional distress. Police say that Stow was beaten because he was a Giant’s fan that had on Giant’s gear at the game. Two suspects who have been arrested and are in custody. Stow remains in a coma in a San Francisco hospital. The trial is estimated to take a week.

Defense attorneys have filed papers challenging some of the claims and requesting that the punitive damages be dismissed because the complaint does not state which 14 named defendants actions account for punitive damages. Other issues defense attorneys are challenging are the sale of alcohol at the stadium, cancellation of the half-off bear promotion after the beating, financial mismanagement by McCourt and alleged gang presence at the stadium. A hearing on the Dodger Team’s motions are set for September 30, 2011, before Judge Khan, who replaced Judge Recana as a result of the attorneys for the Dodgers request.

If you are charged with an assault and/or battery in California, you should not attempt to deal with the police directly. It is recommended that you hire a California criminal defense attorney to defend you immediately. The attorney can use defenses such as your charge does not fall within the three strikes law if you are charged with a felony assault, also argue self-defense or defense of others to get your charges reduced, obtain probation, community service or attendance of a drug or alcohol treatment program or get your case dismissed.

The need for a criminal defense attorney; Dominique Strauss-Kahn

Dominique Strauss-Kahn, the former head of the International Monetary Fund (IMF), was arrested in May 2011, for allegedly sexually assaulting a hotel housekeeper in his New York Sofitel hotel room. Strauss-Kahn pled not guilty to seven charges, including attempted rape, a conviction of which carries a 10 year prison sentence in New York. He was released from house arrest on Friday July 1, 2011, on his own recognizance. Although prosecutors made no attempt to oppose the release, they have retained his passport.

The Manhattan prosecutors acknowledge that they do have evidence to support the rape accusations made by the housekeeper that Strauss-Kahn forced her to perform oral sex. They are getting ready to make a decision whether or not they are going to drop the case against Strauss-Kahn. The housekeeper admitted to prosecutors that she lied about what the details after the alleged rape incident. She initially said she waited in the hall after the attack until after Mr.  Strauss-Kahn left his room. She then admitted that she cleaned a room nearby and then returned to clean Mr. Strauss-Kahn’s room. After that, she said she reported the incident to her supervisor.

Prosecutors informed Mr. Strauss-Kahn’s attorney’s by letter that the housekeeper made up the charges with the help of a male who gave her a cassette recording that she memorized. She also admitted that she had never been a victim of gang rape in Guinea. In addition, she admitted to falsifying her income in order to qualify for housing and declaring a friend’s child and her own child as dependents on tax returns to get an increased amount on her tax refund.  Prosecutors have informed the Judge that the credibility of the housekeeper has been compromised as a result of her history of lying, and that it will be difficult to get a jury to believe her even if she is telling the truth about the rape.

Mr. Thompson, the attorney for the housekeeper, admits that she lied, but he insists that she was attacked and her testimony of the incident has not changed. He explained the fact that she cleaned a room after the incident occurred because she was confused and upset about what happened to her. Mr. Strauss-Kahn has maintained he is innocent of any wrongdoing. Prior to this incident, Strauss-Kahn was viewed as the top contender for the French Presidential race next year. Strauss-Kahn recently said: “media speculation that he might run is simply absurd.” Meanwhile, the only two people who really know what happened in that hotel room are Mr. Strauss-Kahn and the housekeeper.

If you have been arrested for attempted rape, this is a very serious offense. You should hire a criminal defense attorney immediately to represent you. Depending on the evidence the prosecutor has and the circumstances of the case, your attorney can argue that the sex was consensual, or that there was insufficient evidence or mistaken identity to get the charges dismissed against you.

Know Your Money

Under California Penal Code Sections 470 through 483.5, forgery is the act of knowingly and intentionally creating false documents and using them as genuine documents. Forgery involves signing someone else’s name or using a non-existent name, forging another person’s handwriting, altering, falsifying or counterfeiting documents or writing a bad check. Documents that are usually forged are checks and financial documents, wills, court judgments, medical records, driver’s licenses and lottery tickets. Forgery can be either a misdemeanor or felony in California depending on the amount that was stolen and prior convictions. Counterfeiting (other than money) is a felony and carries a two to four year California state prison sentence.

The crime of counterfeiting money including gold and silver coins and bill and passing them as genuine or making or owning counterfeiting equipment is treated as a separate federal felony offense under Title 18, Section 471 of the U.S. Code. The Secret Service or the FBI would be in charge of investigating the crime.

Penalties

If you are convicted of a misdemeanor forgery, you face a one year county jail sentence and a fine up to $1,000. For a felony forgery conviction, you face a California state prison sentence of 16 months to three years. For prior felony convictions and either one or two prior strikes, your sentence will be much stiffer under the California Three Strikes Law. You may also face fines up to $10,000 for a felony forgery conviction and have to pay restitution to the victims as well as participate in a community service or labor program. Counterfeiting (other than money) is a California felony and carries a two to four year California state prison sentence. If you are arrested for writing bad checks, you may be eligible to participate in the California bad check diversion program and be required to make restitution to the victim in lieu of charges being filed against you.

Counterfeiting money under Title 18, Section 471 of the U.S. code is a felony and is punishable by a fine or imprisonment up to 15 years, or both.  Forging, altering, or trafficking in U.S. government checks or bonds or other obligations is a crime under Title 18, Section 510 of the U.S. Code. You may face fines or imprisonment of up to 10 years or both.

Case Example  

Michelle Patton 34 and Timothy Briggs 31 were arrested on Thursday June 9, 2011, by Auburn Police. Ms. Patton was charged with suspicion of forgery, identity theft, being under the influence of narcotics and possession of narcotics paraphernalia. Briggs was arrested on suspicion of being under the influence and possession of a controlled substance. At the time of the arrest, Auburn police and the California state parole officers were conducting a parole search regarding Ms. Patton at an Auburn residence on Easy Way. California state parole offers entered the residence and detained both Ms. Patton and her friend Mr. Brigs. Parole officers and Auburn police found narcotics paraphernalia, items of identification that did not belong to Ms. Patton and forged money orders. One of the detectives recognized the forged money orders from an earlier case that had been investigated this year. The detective also noticed that Ms. Patton was showing symptoms of being under the influence of methamphetamine. Patton and Briggs are being held at the Placer County Jail.

If you are arrested for forgery or counterfeiting in California, you should hire a criminal defense attorney to defend you. The attorney can argue defenses such as lack of intent and that the alleged counterfeit or forged documents would not defraud anyone out of their rights even if they were accepted as genuine documents to get the case dismissed. The attorney may also be able to get your charges reduced to a lesser crime, or you may also be able to participate in the California bad check writing program in lieu of charges being filed against you or obtain community service or probation.

LA Women Pleads Guilty to $6,268,899 in Medicare Fraud

Medicare fraud is a serious federal crime. Medicare fraud crimes occurring in California are investigated by the Medicare Fraud Strike Task Force, part of the Health Care Fraud Prevention & Enforcement Action Team (HEAT), which is a joint Department of Justice-HHS effort consisting of federal, state and local investigators.You can stiff face fines, jail time, restitution to victims and insurance companies and loss of your professional healthcare license for committing Medicare fraud.

Acts of Medicare fraud include submitting bills for services that were never performed or submitting other fraudulent cost reports, billing more than once for the same services, falsely certifying or giving false information, ordering unnecessary tests (42 U.S.C. §1347, Social Security Act: 42 U.S.C. § 1320a-7b(a), 42. U.S.C. § 1320a-7a(a)(1)(A) and (B)), kickbacks or self referrals (42 U.S.C. § 1320a-7b(b), 42 U.S.C. § 1320a-7a(a)(7), 42 U.S.C. § 1395nn or the physician self-referral/”Stark” law under 42 U.S.C. § 1395nn(g)(3)). Medicare fraud can be committed by healthcare professionals such as doctors, dentists, chiropractors, physical and occupational therapists, psychologists, psychiatrists, hospitals, clinics, nursing homes, assisted living facilities, HMO’s, medical equipment companies and home health care providers.

Penalties:

Under the Health Insurance Portability Act Health, 42 U.S.C. §1347, anyone who knowingly or willingly defrauds any healthcare benefit program faces a fine or imprisonment for not more than 10 years or both. If bodily injury results because of the fraud, imprisonment may be up to 20 years. If death results because of the fraud, the imprisonment may be any term of years or for life.  For making false statements under the Social Security Act, 42 U.S.C. §1320a-7b(a) through (h), you face a fine of not more than $25,000 or imprisonment of not more than 5 years or both per offense.

Sample Case

Carolyn Ann Vasquez, age 46, of Los Angeles plead guilty on March 28, 2011, before  U.S. District Judge Terry J. Hatter Jr. in the Central District of California to using fraudulent medical clinics and stolen physician identities to defraud Medicare of approximately $6,268,899 from 2007 to 2008.  Ms. Vasquez instructed her co-conspirators to submit false claims to Medicare for reimbursement for services that were never performed by physicians and for power wheelchairs, medical equipment and diagnostic tests that the physicians did not order or prescribe. Vasquez admitted that she had instructed a physician assistant working at one of the fraudulent medical clinics to use clinic/physician prescription pads to write fraudulent prescriptions and order medical services for diagnostic tests, power wheelchairs and other medical equipment in a physician’s name who Vasquez knew did not work at the clinic. A sentencing hearing is scheduled for July 11, 2011. Vasquez could face a maximum 10 years in prison and a $250,000 fine.

The case was brought by the Medicare Fraud Strike Task Force, part of the Health Care Fraud Prevention & Enforcement Action Team (HEAT), which is a joint effort between the Department of Justice and HHS. The case is also being investigated by the FBI.

If you are arrested or accused of Medicare fraud, you should hire a California Medicare fraud attorney to defend you. The attorney may be able to raise the defenses of mistake, misunderstanding, that you are a victim and you may be able to testify against those who committed the fraud, or argue illegal evidence or violation of civil rights to get your case dismissed or charges reduced to a lesser offense and/or penalties.

Lindsay Lohan Charged With Felony Grand Theft

Under California Penal Code Section 487, grand theft is defined as “the unlawful taking of another’s property” valued above $950. Property valued under $950.00 is considered a petty theft under Penal Code 484. California grand theft can be carried out by larceny (taking of another’s property) which occurs most often in shoplifting cases, embezzlement (unlawful taking of something entrusted to you), which occurs most often in an employment situation, tricking or deceiving someone to turn over their property without ownership rights or making false representations to defraud someone out of either the possession of their property or their ownership of the property. A California grand conviction theft carries up to three years in a California state prison. A petty theft conviction carries a fine up to $1,000 or up to six month’s jail time in a county jail or both.

Case Example:

Actress Lindsay Lohan was charged with felony grand theft on Wednesday February 9, 2011 for allegedly stealing a $2,500 necklace from a Venice jewelry store on January 22, 2011. Surveillance video at the jewelry store showed her wearing the necklace while at the store, and photos taken a week later show her wearing a similar necklace. The necklace was returned to a police station before investigators arrived to search her home in Venice, CA. If found guilty, should could face up to three years in state prison and in violation of her current probation terms. She was recently released from three months of mandatory rehab treatment because she had failed a drug test while on probation for her 2007 drug and alcohol DUI conviction.

Lohan plead not guilty to felony grand theft charges through her attorney Shawn Chapman Holley. Lohan claims the necklace was on loan to her. Judge Schwartz set bail at $40,000. He told Lohan that it appeared she had violated her 2007 DUI probation, and warned her that if she violated the law while out on bail, he would have her arrested and held. Judge Schwartz also ordered Lohan not to have any contact with the jewelry store that reported the missing necklace after someone had sent flowers to the store on behalf of Lohan. On March 10, 2011, Lohan turned down a plea agreement offered by Los Angeles prosecutors that would have meant a guaranteed jail sentence. She will return to court in April 2011 for a preliminary hearing.

If you have been arrested for a felony grand theft/shop lifting or petty theft in California, you should hire a California criminal defense attorney. A conviction is generally based upon the store’s video camera evidence. The attorney may be able to get the charges reduced to a misdemeanor petty theft, trespass, an infraction or get the case dismissed for lack of evidence or witnesses, or get you probation or community service.

Was Mel Gibson a Victim of Extortion?

Under California Penal Code Sections 518 to 527, the crime of extortion involves “obtaining of property from another, with his consent, or the obtaining of an official act of a public officer,  induced by a wrongful use of force or fear, or under color of official right”. Threats do not need to be physical. Extortion is both a California criminal offense and a federal offense of blackmail under 18 U.S.C. Section 873 when it involves interstate commerce, the use of a computer, telephone or if threats occur on federal property. Extortion is generally charged as a felony. You may face fines not exceeding $10,000 and imprisonment up to four years for an extortion conviction.

Case Example

The Los Angeles County Sheriff’s department detectives have been investigating whether actor Mel Gibson was a victim of extortion and have presented their results to the Los Angeles District Attorney’s office on February 16, 2011.  Officials have been investigating Gibson’s claims that his ex-girlfriend, Oksana Grigorieva, allegedly extorted $10 million from Gibson in exchange for not releasing some embarrassing voicemails of Gibson terrorizing her. There was also a report that Ms. Grigorieva may have texted Gibson about her intentions. Gibson and Grigorieva had been in a bitter child custody battle over their two-year-old daughter, which was settled in May 2010. Gibson and Grigorieva signed a child custody settlement agreement whereby Gibson gave her child support, a house and joint custody of their daughter Lucia in exchange for her not releasing the tapes. He claims she reneged on the deal when the tapes appeared on the Internet. After the tapes were released, he claimed she was involved in extortion against him. She has consistently denied any wrongdoing. The case is separate from the allegations she has claimed against Gibson for domestic violence. The District Attorney’s office has been reviewing the extortion case since August 2010, and no formal charges have been filed against Grigorieva.

If you are under suspicion for extortion or have been arrested for extortion in California, you should hire a California criminal defense attorney immediately to defend you. You cannot be convicted of extortion if property or money was given to you, and there were no threats or force or fear. The attorney can argue lack of sufficient evidence or misunderstanding to get the charges dismissed. The prosecutor would not be able to prove that you committed the crime beyond reasonable doubt without proof of fear and threats.

How Can a California Criminal Defense Attorney Help Me With My Drug Possession Case?

If you possess codeine without a valid prescription, or intend to sell or transport or move codeine, you are committing a codeine drug offense crime Under California Health and Safety Code Sections 11350, 11351 and 11352. It is also illegal to possess other controlled substances such as cocaine, opiates and opiate derivatives, heroin, peyote, gamma-hydroxybutyric acid (“GHB”) under California Health and Safety Code Section 11350. You face jail time and fines up to $20,000 if you are convicted of any codeine related drug offenses. If eligible, you may be able to participate in the California drug diversion program if you are charged with possession of codeine under Health and Safety Code Section 11350 or Health and Safety Code Section 11550, instead of serving time in a state prison. After successfully completing the program, you would qualify to have your drug charges dismissed.

It is also illegal and considered a misdemeanor crime if convicted for driving under the influence of codeine under Vehicle Code Section 23152a. Illegal immigrants, who are convicted of any California codeine offense, are subject to removal and deportation under U.S. Code 1227.

Penalties and Fines for Possession of Codeine Under Sections 11350 and 11550

If you are found guilty of violating California’s personal possession of codeine law under Code Section 11350, which includes possessing codeine without a valid prescription, possessing someone else’s codeine, or having codeine prescriptions which obtained from multiple California doctors without their knowledge above each prescription or possess more than the prescribed amount, you could receive 16 months to three years in the California state prison and a maximum fine of up to $20,000.

Under Section 11550 of the Health and Safety Code, if you are convicted of a misdemeanor for being under the influence of codeine or codeine mixed with another medication including Tylenol or cough syrup, you face possible jail time as well.

You may be eligible to participate in the California drug diversion program instead if you are convicted under Sections 11350 or 11550.

Penalties and Fines for Intending to Sell or Transport Codeine under Sections 11351 and 11352

If prosecutors prove you possessed or purchased codeine with the intent to sell it instead of your own personal use, this is considered a more serious crime under Section 11351, you face two to four years jail time in a California state prison and fines up to $20,000. Under Section 11352, transporting, selling or moving codeine is the most serious codeine crime. If convicted, you face three to five years jail time in a California state prison and fines up to $20,000. You are not eligible for the drug diversion program for convictions under Sections 11351 or 11352.

Case Example:

A Hanford police investigation, with the help of an undercover law enforcement agent disguised as a high school student, resulted in the arrests of 10 high school students ages 6 to 18 on Wednesday January 12, 2011. Charges against students range from for possession of a controlled substance for sale, conspiracy, accessory to a crime and, for some, membership in a street gang. Nine students were arrested on the Hanford West High School Campus, and one student was arrested at Hanford High campus. Police Chief Carlos Mestas of the Hanford Police Department said the use of the undercover police officer, who registered in November as a 16 year old high school student and starting attending classes at the high school, helped solve a big obstacle for police, which is getting juveniles to talk to adults about who is dealing drugs. The investigation resulted from complaints by parents and school officials in October 2010 of high school students selling drugs to other students. The undercover officer bought drugs 13 times from 10 people on and off campus, including drugs such as  marijuana, Ecstasy, Vicodin, methamphetamine, codeine and other prescription drugs.  According to Chief Mestas, prescription drug use by juveniles is a growing problem.  He urged parents to check their prescription drug bottles for pilfering. He believes that their recent police bust is a good deterrent for students to stop selling and using drugs on campus.

If you have been charged with a California codeine drug related offense, you should contact a California criminal defense attorney immediately to defend you. The attorney may be able to get your charges reduced or dismissed by raising defenses such as mistaken identity because the codeine belonged to another person, illegal search and seizure by police or other illegal police conduct at the time of the arrest. The attorney may be able to get your into a drug diversion program under Proposition 36 or other alternative California sentencing programs or you get you probation.

How a California Criminal Attorney is Able to Help You.

California Penal Code Sections 548-551 make it a crime for anyone to willfully injure, destroy, secrete, abandon, or dispose of property insured against loss, damage from theft, embezzlement or casualty (excluding fire, which is not included under the definition of casualty in this regard) with the sole intent to defraud the insurer, whether the property belongs to you or another person. You can be charged with a misdemeanor or a felony depending on the circumstances of the insurance fraud crime and the amount of money involved.

It is illegal to aid, abet, solicit or conspire with anyone to commit the following acts which constitute insurance fraud under California Penal Code Sections 548-551:

·    Knowingly presenting a false or fraudulent insurance claim for payment for
loss of injury.
·    Knowingly presenting multiple claims for the same loss or injury to more
than one insurance company with the intent to defraud them.
·    Knowingly participate in a vehicular accident with the intent to present a false claim.
·    Knowingly present a false or fraudulent claim for payments for loss
for theft, destruction, damage or conversion of any vehicle or vehicle part or the contents of a motor vehicle.
·    Knowingly make a false or fraudulent claim for a health care benefit or
payment including worker’s compensation health benefits.
·    Knowingly presenting any false or misleading statements to an insurance
company or to fail to disclose an occurrence or event
·    Intentionally burning property (act of arson) to collect an insurance payment
or assist the owner of the property to collect a payment from their insurance company.

If found guilty of any of these offenses and the claim amount is more than $950.00, you face imprisonment in the county jail not to exceed one year and a fine not extending $10,000, or imprisonment in the state prison for two to five years and a fine not to exceed $50,000 fine, or double the amount of the fraud, whichever is greater. For a claim amount under $950.00, you face imprison in the county jail not to exceed six months and a fine of $1,000.  You may also have to pay restitution in an amount determined by the court for medical evaluations or treatment services. If you have been previously convicted under the California insurance statute of insurance fraud, you will not be eligible for probation or a suspended sentence. You may receive an enhanced sentence ranging from two years to five years sentence for each prior conviction. A subsequent conviction is punishable by imprisonment in a California state prison and a fine of $50,000. Fines are doubled if the fraud involves an automobile claim.

Case Example:

Jeweler Lior Bitton, 36 of Los Angeles, owner of Pacific Diamonds and Gems jewelry store located in Westminster, CA was arrested for fraudulently collecting over $99,000 from his insurance company after filing a false claim to his insurance company reporting that a 4.21 carat diamond had been stolen when one of his employees had been robbed of 20 diamonds. Meanwhile, in September of 2009, Bitton had registered the same diamond with the GIA (Gemological Institute of America). The unique properties of the diamond act as a fingerprint in which to identify the stone. In March 2010, Bitton went to Israel and met with a diamond wholesaler. The wholesaler presented the diamond to the GIA. The GIA identified the diamond as the same diamond that Bitton had registered with them previously. He was arrested by Westminster Police and charged with one felony count of insurance fraud. He faces a maximum five year prison sentence in state prison if convicted. The Westminster police recovered the diamond and have it in their custody.

If you are charged with insurance fraud in California and you are convicted, you would not be able to obtain insurance in the future or you may not be able to find employment. It is recommended you hire an experienced California criminal defense attorney to defend you. The attorney will review all the evidence to make sure that the prosecutors have a case against you. The attorney may be able to get you a reduced sentence and penalties or get the charges dismissed based on lack of evidence or other defenses such as you were unaware of the fraudulent activity of another person.

Common Drug Offenses in Florida

Common drug offenses in Florida involve marijuana. Florida has the harshest marijuana laws in the nation. If you are arrested and convicted of drug offenses for possession, sale, cultivation or distribution of marijuana, you could face jail time, fines and penalties depending on the amount of marijuana in your possession and whether you were intending to sell, distribute or cultivate it. The most serious offense is the sale, delivery or cultivation of more than 25 lbs, which is considered trafficking and carries a mandatory minimum sentence of 3 years to 25 years and fines of $25,000 to $200,000. A conviction for any marijuana offense means an automatic suspension of your driver’s license up to two years.

Florida Statute XLVI, Chapter 893

For possession only of marijuana (cannabis) in Florida, you face the following penalties and fines:

·    20 grams or less misdemeanor, 1 year jail, $1,000 fine
·    More than 20 grams is a felony, five years jail, $5000 fine
·    25 or more plants (formerly 300 plants) now a felony, 15 years jail 10,000 fine
·    Any conviction causes a driver license suspension of 6 months to two years.
For the sale, cultivation or distribution of marijuana in Florida, you face the following penalties and fines:
·    20 grams or less, misdemeanor 1 year, jail $1,000 fine
·    25 lbs or less, felony, 5 years, $5,000 fine
·    More than 25 lbs to 200 lbs or 2000 plants, felony and considered trafficking, mandatory minimum sentence 3 years, $25,000 fine. Under Florida law, sale delivery or cultivation of more than 25 lbs is considered trafficking.
·    2,000 to 10,000 lbs or 10,000 plants, felony, mandatory minimum prison sentence 7 years, $50,000 fine
·    10,000 lbs or 10,000 plants or more plants, felony, mandatory minimum 15 years, $200,000 fine.
·    Under Section 893.1351, if you are arrested for leasing a residence with the intent of using it as a  “grow house” you are facing a second degree felony, with 15 years jail time and a $10,000 fine. Anyone caught operating a “grow house” where a minor is present faces a first degree felony and a 30 year jail sentence.
Other Penalties

If you are arrested within 1,000 feet of school, college or park with possession of 25 or more plants it is considered evidence of intention to sell or distribute, and it is a second degree felony which carries a maximum 15 years in jail and a 10,000 fine. Possession of drug paraphernalia is considered a misdemeanor, with a sentence of up to one year in jail and a fine up to $1,000.

The Florida Bong Bill

Florida’s tough laws on marijuana are further demonstrated by the latest Florida Bong Bill sponsored by regarding Representative Darryl Rouson, which was recently signed into law by Governor Crist, and went into effect July 1, 2010. The Bill bans the sale of bongs, pipes and other devices associated with smoking marijuana by stores that receive 25% or more of their annual revenues from these sales. The Bill is aimed at Florida head shop businesses. A class action lawsuit has been filed challenging the constitutionality of the law. Violators face up to one year in jail.  Tobacco shops would not be affected because the sale of these items does not reflect 25% of their annual revenues. People who want to buy marijuana drug paraphernalia can still purchase it at Florida tobacco shops or drive across state lines to make their purchases. Rouson says he has been fighting against the pipe industry, which he believes is part of the drug trade that is helping to destroy families and neighborhoods. It is Rouson’s opinion that the new law supports Florida’s public awareness of health and safety and law and order of society.

Case Example

Gainesville Police were questioning suspect 24 year old Bryant Michael Forsythe of 3707 S.W. 28th Terrace on Sunday July 11, 2010, when they found 13 oxycodone tablets on him while he was searched. Forsythe told the police he could prove the drugs were his because he had prescription information in his bag that he directed the police to search. Instead, police found his marijuana. He also directed police to search his closet after they found the marijuana. Officers did not find the prescription information or any more marijuana. Forsythe was arrested on charges of possession of a controlled substance, possession of marijuana and possession of drug paraphernalia and is being held at the Alachua County Jail.

Marijuana offenses carry stiff jail sentences and penalties in Florida. If you are arrested for a marijuana offense in Florida, you should contact a Florida criminal defense attorney. The attorney can obtain plea bargain offers for reduced charges, or diversion to a drug treatment program, probation or get the case dismissed as a result of unlawful search and seizure or insufficient evidence. The attorney may also be able to argue a “necessity defense” under Florida common law if you are using marijuana to help alleviate symptoms of your medical condition.

Texas Hate Crime

Texas Hate Crime and Felony Statutes

Forty-five states have hate crime statutes, including Texas. The FBI’s definition of a hate crime is “a criminal offense committed against a person, property or society which is motivated, in whole or in part, by the offender’s bias against a race, religion, disability, sexual orientation, or ethnicity/national origin.” The Anti-Defamation League (ADL) reported that there are 31 states that have criminalized violence based upon sexual orientation, including Texas.

Texas James Byrd Jr. Hates Crimes Act

The Texas James Byrd Jr. Hate Crimes Act was enacted into law in 2001 to classify crimes motivated by the victim’s race, religion, color, sex, disability, sexual preference, age or national origin as hate crimes. The law was enacted after the hate crime of an East Texas black man named James Byrd, Jr. who was dragged to death by three white men in a pickup truck in 1998. Two of the men involved in the crime are on death row, and the third received a life sentence.

Under Texas Penal Code Section 12.47, the sentencing for a crime involving bias or prejudice, other than a First Degree Felony or a Class A Misdemeanor, is increased to the next highest category of offense, with a minimum increased term of 180 days of confinement. Under Article 42.014 of the Texas Penal Code, the judge may also require the defendant to attend an educational program on tolerance. Chapter 12 of the Texas Penal Code provides that a Texas First Degree Felony is punishable by life imprisonment for not more than 99 years or less than 5 years and a fine not to exceed $10,000. An individual found guilty of a capital felony crime where the state seeks the death penalty is punishable by life imprisonment without parole or by death.

The Matthew Shepard and James Byrd, Jr. Hates Crimes Prevent Act

In October of 2009, President Obama signed into law the The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (a.k.a.“Matthew Shepard Act”) as a rider to the National Defense Authorization Act for 2010 (H.R. 2647) to include crimes which are motivated by a victim’s “actual or perceived gender, sexual orientation, gender identity or disability” in response to the hate crime murders of Matthew Shepard and James Byrd, Jr. This law is a supplement to the 1969 Federal Hate Crimes Act. The Shepard hate crime occurred in October 1998 when Aaron McKinney and Russell Henderson took Matthew Shepard,  a 21 year old political science student at the University of Wyoming, to a remote area east of Laramie, Wyoming where they tied him to a split-rail fence, assaulted him severely and left him to die in the cold evening temperatures. He was found 18 hours later by a bicyclist and died five days later of head injuries in a hospital in Colorado. His crime was classified as a sexually oriented hate crime. Both murderers were given life in prison sentences.

It should be noted that a different version of the case later was later reported on an ABC 20/20 episode in 2004 by reporter Elizabeth Vargas who reported that the crime was over a robbery by drug users who needed money for methamphetamine. The 20/20 show reported that both Shepherd and the two perpetrators were allegedly heavy methamphetamine users, and that Shepherd’s lifestyle caused him to visit places where he met the killers. In fact, according to the show, one of the killers used the defense at his trial to get a reduced sentence that Shepherd tried to proposition him at a bar and that he was not emotionally in control at the time of the murder. The defense failed. Whether the crime was a hate crime or a robbery, it was a terrible crime and it prompted lawmakers to enact the new federal law to recognize that crimes involving gender, sexual orientation and gender identity are hate crimes.

FBI Investigation of Texas Hate Crime

Currently, the FBI is investigating a Texas crime, which falls under the new Matthew Shepard Act regarding the kidnap and sexual assault of an 18-year-old high school student on December 6, 2009 by two suspects outside the Boathouse Bar and Restaurant Terlingua near Big Bend National Park and the Texas-Mexico border. The suspects kidnapped the victim and took him to a remote location, then burned his car and repeatedly sexually assaulted him. The victim was able to escape on foot across three miles of desert terrain where a Brewster County Sheriff’s Deputy found him. The victim is recovering at an undisclosed location. The FBI’s investigation could lead to federal hate crime charges being filed by the U.S. Attorney’s Office. The FBI believes the attack was an anti-Gay hate crime based upon statements from eye witnesses regarding events that occurred at the bar prior to the incident. However, it is unclear whether the victim is in fact gay. The FBI spokesperson emphasized that the FBI will be focusing their investigation on the kidnapping and sexual assault aspect of the case and making recommendations to the U.S Attorney’s Office. It is up to the U.S. Attorney’s Office as to whether they will prosecute the crime under the new federal law.

With regard to the prosecution of the crime by the State of Texas, the two suspects, 46 year old Daniel Martinez and 27 year old Kristopher Buchanan were arrested and indicted by the Texas grand jury with charges of aggravated sexual assault, aggravated kidnapping, aggravated robbery and arson. Bond has been set at $275,000 each. Suspect Buchanan is also being held on two outstanding felony warrants from two other Texas counties. Martinez also has prior arrests and convictions. Since Texas does not have a penalty enhancement under the 2001 James Byrd Jr. Hates Crimes Act for these charges, the Texas district attorney is not prosecuting the case as a hate crime.

Hire a Texas Criminal Defense Attorney

If you commit a crime involving bias or prejudice under the Texas James Byrd Jr. Hate Crimes Act or are charged with a First Degree Felony, capital punishment crime or Class A misdemeanor in Texas, you should hire a Texas criminal defense attorney to defend you. Article 27.02 of the Texas Penal Code gives the defendant the following options to plea guilty, not guilty, nolo contendere (which has the same affect as a guilty plea, except the plea cannot be used against the defendant in a civil lawsuit), applying for probation and electing to have the jury impose the punishment instead of the judge if the defendant is found guilty.

While you may not be charged with a hate crime under Texas law for committing a First Degree Felony or Class A Misdemeanor, you still may face the maximum sentence of life in prison or the death penalty for a capital punishment crime. You could also be charged and convicted under the new federal Matthew Shepard Act with a hate crime and prosecuted by the U.S. Attorney’s Office. Your attorney understands the Texas hate crime statutes and felony laws and the Federal Hate Crime Act and laws and may be able to argue legal defenses such as aggravated battery and
lesser charges such as mistaken identity, self defense and false accusations to get the charges reduced or the case dismissed.