Fort Lauderdale Criminal Attorney Blog

December 7, 2023

Broward Criminal Defense Lawyer Explains Affirmative Defenses

By The Law Offices of Richard Ansara, P.A.

You’re likely familiar with the phrase “innocent until proven guilty” or “proof beyond a reasonable doubt.” As a Broward criminal defense lawyer can further explain, these both reference the fact that the burden of proof in Florida criminal cases is on the prosecutor. As outlined in the Fifth Amendment to the U.S. Constitution, it’s a basic civil right to be presumed innocent and to require prosecutors to meet certain standards in order to prove the defendant’s guilt.

But there is a way to still win your criminal case even if the prosecutor does meet the proof burden. It’s called an affirmative defense.

In essence, an affirmative defense doesn’t deny the act occurred, but asserts it was either justified or excusable. It does shift the burden of proof from the prosecution to the defense. But if you have the right evidence, you can obtain a favorable outcome: Acquittal or avoiding trial altogether.

Broward Criminal Defense Lawyer on How Defenses Work

At the start of a case, the most likely strategy for your Broward criminal defense lawyer will be to analyze the flaws in the prosecutor’s case. They’ll be looking for weaknesses in the factual elements the prosecutor must establish if they want to get a conviction. If they can effectively raise reasonable doubt for jurors, there’s no need for additional defense.

An affirmative defense, however, is a different approach. Rather than going after the prosecutor’s evidence, y0uor Broward criminal defense lawyer concedes the basic facts, but insists their client should still avoid conviction. In other words, “Yes, it’s true my client did this. However, there are legal grounds that justify/excuse/prevent a conviction.” At that point, the onus is on the defense team to prove the basis for an affirmative defense.

Common Affirmative Defenses in South Florida Criminal Cases

November 29, 2023

Why Fort Lauderdale Criminal Defense Lawyers Must Combat Evidence-Based Sentencing

By The Law Offices of Richard Ansara, P.A.

The notion of making “evidence-based” decisions in a criminal case sounds like an all-around positive – right? After all, detention, arrest, conviction – all of that is “evidence-based.” Police, prosecutors, judges, and jurors can’t simply rely on their own whims to reach conclusions. They must use evidence. However, as Fort Lauderdale criminal defense lawyers can explain, using “evidence-based” tools can lead to substantially skewed and unfair outcomes when applied during the sentencing phase.

The Cornell Law Review opens its 2019 research on this very topic by breaking it down like this:

“Jack and Jill went up the hill to steal a pail of water, Both were caught and sentenced to jail, But Jack came out two years later.” Why was Jack sentenced to so much more time than Jill when they both committed the same crime and have the same criminal history? Because he’s male, and statistically, men have higher recidivism rates than women. If we’re relying on evidence-based sentencing, the judge may agree that Jack is more likely to offend – and give him a harsher sentence.

This is the problem with evidence-based sentencing. It relies on a range of factors – some relevant to the crime, others totally outside the control of the defendant (up to and including immutable characteristics) – to determine likely recidivism and fair sentencing.

Evidence-based sentencing leans on large datasets to evaluate the statistical likelihood between a group trait and the rate of re-offending. But it goes beyond prior offense. Some of the factors analyzed include things like:

Age
Sex
Education
Marital status
Employment
Education
Parental convictions
Family members who were crime victims
High school grades
Chances of finding work above minimum wage
Dependence on social services
Finances
Crime statistics in their neighborhood of residence

As Fort Lauderdale criminal defense lawyers, we of course find this incredibly problematic for a number of reasons – not the least of which being from a constitutional standpoint. Plus, there’s significant doubt when it comes to the scientific validity of such methods when it comes to the accuracy of using such factors to determine one’s likeliness of re-offending. Continue reading

November 8, 2023

Could Florida Gun Possession Under Domestic Violence Restraining Order be Legalized?

By The Law Offices of Richard Ansara, P.A.

The U.S. Supreme Court is poised to decide whether to uphold a federal law that prohibits individuals subject to a domestic violence restraining order from possessing firearms.

The case is U.S. v. Rahimi, and it involves a Texas man accused of striking his girlfriend during an argument and later threatening to shoot her.

As Fort Lauderdale criminal defense lawyers who have represented defendants in matters of domestic violence, domestic violence restraining orders, and unlawful firearm possession, we’ve been watching the case closely. Although it comes down to federal law (18 U.S.C. §922(g)(8)) and we primarily handle state-level cases, there could certainly be some ripple effects if the justices err on the side of the right to bear arms.

Despite the conservative bend on the bench and the fact that justices expanded gun rights last year, many legal scholars are concluding it unlikely justices will go against the grain on this federal law in the Rahimi case. A federal appellate court in that matter struck down a 1994 federal ban on firearms for those under court order to stay away from their partners or spouses.

Whatever they decide, it could have implications for lots of other cases – including a pending matter involving President Joe Biden’s son, Hunter Biden. The younger Biden is facing criminal charges for purchasing a firearm while addicted to drugs, something that is also prohibited under federal law, though less commonly enforced as the domestic violence restraining order restriction.

As noted during the SCOTUS oral arguments, the existing federal background check system has blocked some 75,000 gun sales to those subject to domestic violence protection orders over the last 25 years.

What the Federal Law Says

The federal law says it’s unlawful for a person who has a protection order (a Florida judgment of injunction for protection of domestic violence meets this definition) in effect to possess guns or ammunition, to ship or transport guns or ammunition interstate, to receive any that have been so shipped or transported, or to have any that have been seized returned to them. The respondent in that case must be identified as an “intimate partner” (spouse, ex-spouse, co-parent, or person who lives/has lived together with victim). There are exemptions for police and active military members who who are required to possess service firearms as part of their job.

If a person is convicted of a domestic violence offense, they are permanently disqualified from possessing a gun or ammunition – and there’s no official use exemption in that case. Even if the case is expunged, the court can still retain that firearm prohibition.

Violate the federal firearm law on this, and you’re facing up to 10 years in federal prison and/or a $250,000 fine.

However, as our Fort Lauderdale defense attorneys can explain, even the repeal of the federal law wouldn’t necessarily mean these prohibitions would magically disappear. That’s because we still have state firearm restrictions for domestic violence injunctions with which to contend.

Florida Firearm Possession Rules for Subjects of Domestic Violence Injunction Continue reading

October 25, 2023

To Testify or Not to Testify? Fort Lauderdale Criminal Defense Lawyer Weighs In

By The Law Offices of Richard Ansara, P.A.

One of the thorniest issues for any Fort Lauderdale criminal defense lawyer and client is whether the defendant should take the stand and testify in their own defense.

Although we understand the general inclination of our clients to “have their day in court,” clearing your name isn’t nearly as simple as courtroom TV dramas might suggest. It’s true that a defendant’s testimony can make or break a case. But that also means any defendant who takes the stand in their own Florida criminal trial is also taking some enormous risks. Sometimes it’s necessary, but it’s never a judgment call that should be made flippantly.

It’s important to point out that few criminal cases in Florida ever make it to the trial phase. The vast majority are either dismissed or settled with plea agreements, typically on reduced charges. Having a skilled defense attorney might increase the odds that your charges will be dropped early on, but it could also boost the chances of a trial. That’s because with a knowledgeable advocate,. you’re far less likely to settle in cases where there is weak or minimal evidence against you.

Y0u Aren’t Required to Testify in Your Criminal Case

While the court system has ways of compelling testimony from other witnesses in your case, the Fifth Amendment to the U.S. Constitution essentially prohibits an inquisition. You are protected against being compelled in any case to be a witness against yourself.

That same protection is outlined in Section 9 of the Florida Constitution, where it states that “No person shall be… compelled in any criminal matter to be a witness against oneself.” Prosecutors can’t use this fact against you for declining to do so, and you can’t be penalized for it.

So if you don’t want to testify, you are under zero obligation to do so. And there may be very good reasons your Fort Lauderdale defense lawyer might agree with that’s the best course of action.

What Do Fort Lauderdale Defense Lawyers Typically Advise?

October 2, 2023

Can I Really Get a Fort Lauderdale DUI on a Golf Cart?

By The Law Offices of Richard Ansara, P.A.

Golf carts are a way of life in some Florida communities. They’re easy-to-operate, low-speed, agile, and perfect for traversing short distances when the weather is good. That said, it is absolutely possible for someone to get a Fort Lauderdale DUI on a golf cart if they are operating one while intoxicated. What’s more, Florida has become increasingly strict on golf cart operators in recent years, going so far as to raise the minimum age and license requirements in a law that just went into effect.

As our Fort Lauderdale DUI defense lawyers can explain, driving a golf cart under the influence of alcohol or other intoxicating substances is just as illegal as if you were driving a car. F.S. 316.193 indicates that drivers shouldn’t operate “a vehicle” while under the influence of alcohol or drugs. In another statute, F.S. 316.003(108), a “vehicle” is defined as every device in, upon, or by which a person or property can be transported or drawn upon a highway. That’s a broad definition, and it can include not just golf carts, but ATVs, bicycles, mopeds, and even riding lawn mowers.

In F.S. 320.01(22), golf carts are defined as a motor vehicle designed & manufactured for operation on golf courses and/or for sporting and recreational purposes. They aren’t typically made to go faster than 20 mph, and owners aren’t statutorily required to carry personal injury protection insurance or bodily injury liability insurance. Florida law limits golf cart operation to roads with a posted speed of 30 mph or less, though local government entities can pass more restrictive rules. Operators have to comply with whichever rule is more strict.

Just recently in South Florida, a 20-year-old was arrested by authorities in Monroe County for allegedly driving a stolen golf cart while intoxicated down the U.S. 1 highway. (The only time golf carts can be operated on part of the state highway system, per Florida law, is either it’s been designated by the DOT or local government as safe OR if to cross a portion that intersects with a county or city road or trailer park/golf course subdivision that allows golf carts.)

A new law was passed just this year to tighten the rules on golf cart operation. Continue reading

September 15, 2023

Arrested for a Fatal Car Accident in Fort Lauderdale? Here’s What You May Be Facing.

By The Law Offices of Richard Ansara, P.A.

If you’re a driver who survives a deadly crash when others didn’t, it’s a unique kind of nightmare. Of course you didn’t intend harm. Maybe it wasn’t even wholly your fault. Nonetheless, lives were changed irrevocably – your own included. That is especially true if you’re arrested in connection with a fatal car accident in Fort Lauderdale.

Just because a fatal crash occurs (as they do roughly 3,500 times a year in Florida, according to the FLHSMV), it does not necessarily mean the driver(s) will face criminal charges. You might only face a traffic citation.

Criminal traffic charges are typically only filed when there is evidence of willful/wanton recklessness. Not mere carelessness, but reckless driving in a manner likely to cause great bodily harm or death. That can include street racing, being drunk/under the influence, fleeing a law enforcement officer, greatly excessive speeding (significant enough to be considered reckless), or engaging in acts of road rage (weaving through traffic, aggressively cutting people off, etc.).

The other primary catalyst for criminal charges filed in fatal Florida traffic accidents is a driver leaving the scene of an accident, better known as hit-and-run.

As a Fort Lauderdale criminal defense lawyer can explain, charges might not be filed immediately after the collision. It’s going to take time for investigators to piece together what they think happened. Some arrests don’t happen until months after the fact. It’s a really good idea if you were a driver in a fatal Broward crash to seek immediate legal counsel from a criminal defense lawyer – even if you aren’t sure whether you did anything wrong. This will help ensure your rights are protected and that you don’t speak out of turn in a way that could threaten your freedom or your future.

Criminal vs. Civil Traffic Crash Cases

Fatal crashes sometimes result in two separate judicial proceedings: One civil, one criminal.

In the civil justice proceedings, the question will be whether the defendant driver was negligent, meaning they failed in their duty to use reasonable care in operating the vehicle, resulting in the death of another person. Such cases are filed by the decedent’s surviving loved ones or their estate. If negligence is proven by a preponderance of the evidence, the defendant may be financially responsible to pay money to the survivors/estate.

In the criminal justice proceedings, the question will be whether there is proof beyond a reasonable doubt that the defendant driver violated state law, and thus deserves to be punished according to the state’s criminal code.

The proof burden for criminal cases is far higher than for civil cases. That’s the reason a person might not face criminal charges, but could still be found liable in civil court.

Recent Broward Fatal Crash Criminal Cases

Recently, a number of fatal crashes in Broward County have made headlines. Among them:

A 42-year-old arrested for two counts of reckless driving and one count of vehicular homicide in Fort Lauderdale after the crash death of a motorcyclist.
A 20-year-old arrested for two counts of vehicular homicide, multiple counts of reckless driving, and numerous drug charges following a fatal Tamarac rollover crash that killed two women and injured five other people.
A 16-year-old unlicensed teen driver and his father arrested for reckless driving and vehicular homicide for the death of a pregnant ICU nurse and critical injury to her 8-year-old son in Miramar. The teen was allegedly under the influence of marijuana and driving 113-miles-per-hour in a 45 mph zone. The teen’s father wasn’t in the vehicle at the time, but his criminal charges stem from the fact that he provided his unlicensed teen with a vehicle.

Penalties for Fatal Crash Criminal Charges in Florida

September 5, 2023

Fort Lauderdale Defense Lawyer Explains Florida Criminal Law Scoresheet

By The Law Offices of Richard Ansara, P.A.

Every state has its own way of determining what’s a fair prison sentence for those convicted of felony offenses. As a Fort Lauderdale criminal defense lawyer can explain, Florida uses the score sheet established in the Criminal Punishment Code (CPC). It’s used for ascertaining prison terms for those convicted of all felonies except capital offenses.

If you’re arrested for a felony in Broward County, it’s imperative you speak to an experienced defense attorney who can help explain to you how the Florida criminal law scoresheet works. Doing so will give you a good idea of exactly how much time you may be facing.

Some may wonder, “Why not simply look up the statute and corresponding penalty?” That may be simple enough for those with internet access and the exact Florida criminal statute(s) applicable in their case. However, most criminal penalties have a broad range – and it’s not always clear where you might fall on that spectrum.

As noted in F.S. 775.08, felonies are criminal offenses punishable by the laws of the state that are punishable by imprisonment in a state penitentiary (as opposed to a county jail) or death (in the case of capital felonies). The maximum penalty one can face for a misdemeanor is one year in a county jail. For most felony convictions, the minimum you’ll serve is one year + one day. However, under the criminal scoring system, it’s possible that someone convicted of a felony who scores fewer than 44 points may receive an alternative sentence, such as probation.

There are altogether five (5) degrees of felonies in Florida:

3rd-degree felony – Maximum 5 years in prison
2nd-degree felony – Maximum 15 years in prison
1st-degree felony – Maximum 30 years in prison
Life felony – Maximum Life in prison
Capital felony – Maximum Life in prison OR Death penalty

(Such maximum penalties may be enhanced under Florida’s 10-20-Life law, codified in F.S. 775.087, which requires a minimum sentence of 10, 20, or 25 years-to-life for the commission of certain felonies involving firearms.)

Factors Weighed in Florida Felony Sentences

August 15, 2023

Defense Strategies in Fort Lauderdale Domestic Violence by Strangulation Cases

By The Law Offices of Richard Ansara, P.A.

The charge of domestic violence often conjures up images of bruises, black eyes, and broken bones. But one of the most serious Florida domestic violence offenses often leaves no marks at all.

If you are arrested for domestic violence by strangulation in Fort Lauderdale, it’s important to understand that this charge is much more serious than a typical domestic violence battery case. Florida lawmakers made the point of carving out an entirely separate statute for the offense of non-fatal choking or strangulation. Rather than being a misdemeanor punishable by up to 12 months in county jail, (as most domestic violence charges are), F.S. 784.041 makes domestic violence strangulation a third-degree felony, which is punishable by a maximum of 5 years in state prison.

It does not require proof of great bodily harm, permanent disability, or permanent disfigurement (which IS required for other domestic violence battery incidents to be charged as a felony). In 2019, a Florida district appellate court ruled in Lopez-Macaya v. State that there’s no need to prove the victim suffered actual great bodily harm – only that the defendant’s alleged actions created the risk of great bodily harm.

Despite the fact that only 50 percent of alleged strangulation victims have visible injuries and only 15 percent have injuries that can be photographed at the time police respond, officers are often quick to make an arrest on this charge if the accuser makes the allegation. That can mean you’re facing a felony despite very little evidence, but you still need to take the possibility of conviction very seriously because prosecutors aren’t likely to tread lightly. That’s because this act is singled out as a major red flag that domestic abuse has escalated to the point of a potential fatality. Continue reading

August 1, 2023

Will Waiver of Prosecution Matter in Broward Domestic Violence Case?

By The Law Offices of Richard Ansara, P.A.

Broward domestic violence cases often arise in the heat of the moment. Often by the next morning, both parties have cooled considerably and clearer heads prevail. It’s at this point the alleged victim may start looking into the possibility of signing a waiver of prosecution.

A waiver of prosecution, also sometimes called a declination of prosecution, is a sworn statement that informs the prosecutor, judge, and defense layer that they do not wish to prosecute or “press charges.”

The crux of this statement is basically two-fold:

The alleged victim formally states they do not want to press charges or cooperate with prosecutors.
The police report statements that were attributed to the alleged victim are either inaccurate or incomplete.

Sometimes, our Broward domestic violence defense lawyers are approached by the alleged victims of our clients to inquire about how they can go about getting the charges dismissed.

A few things we must outline for them at the start: Continue reading

July 15, 2023

Why Hiring a Broward Domestic Violence Defense Lawyer Early in Your Case is Key

By The Law Offices of Richard Ansara, P.A.

If you’re arrested for domestic violence in Fort Lauderdale, the very best thing you can do to minimize the impact this will have on your life is to immediately hire a Broward domestic violence defense lawyer. Even if you’re “only” facing misdemeanor assault or battery charges, the classification of this crime as one of domestic violence has a whole host of implications that can result in immediate impact and long-term consequences far outside of the realm of a “typical” crime. When you work with a skilled domestic violence defense attorney right from the start, you’re not only better prepared, you can be proactive – possibly preventing some of the most significant penalties.

Domestic violence is defined in F.S. 741.28 as any assault, battery, sexual assault/battery, stalking, kidnapping, false imprisonment, or any other criminal offense that results in the physical injury or death of one family member/household member by another family/household member. These can be married couples, ex-married couples, people related by blood or marriage, people living together as a family, people who previously lived together as a family, and people who share a child together (regardless of whether they ever lived together or were married). Domestic violence charges will not apply to those who are dating, but have no kids and never lived together (though violence between them may still result in criminal charges).

But just because you’ve been arrested doesn’t necessarily mean the case is going to be successfully prosecuted. In fact, as an experienced Broward domestic violence defense lawyer, I can tell you prosecutors often have a tough time proving these accusations beyond a reasonable doubt. But knowing how to successfully challenge their evidence is essential. Some of the ways in which a skilled domestic violence defense attorney can help right from the start: Continue reading