Miami Criminal Attorney Blog

People, police included, make up their minds fast, like traffic through Miami. Once they decide that a particular client is a target of the investigation, it is an uphill battle for a lawyer to shake that belief. This is particularly true in a white collar case where the evidence consists so much more of flat paper and less of people with depth, personality and degrees of guilt or innocence. Investigators that have found a theory supported by the evidence are unlikely to have that belief shaken by protestations of innocence.

A polygraph is one thing that can make a dent. Now, it is certainly true that the polygraphs are inadmissible. It is also true that the test itself can be manipulated. They are subject to human error and human interpretation. For this reason it is critical to use an examiner that has an excellent reputation known to the police. There's nothing worse than presenting a polygraph taken by someone who the police think is a hired gun. However, if a suspect subjects himself to a polygraph examiner who is believed to be unbiased and comes through with flying colors then the attorney has a real opportunity to make progress.

First a client's willingness to take a polygraph speaks volumes about their sincerity. Second the results of that polygraph give the investigative officer something solid, some piece of paper to set against the other paper evidence. At that moment, and sometimes for the first time, the investigator has a reason to look for another theory. An attorney worth anything at all, had better have a compelling alternate theory at the ready.

Florida Courts have never determined that a polygraph is sufficiently accurate to be admissible. However, according to the Florida Supreme Court in Delap v. State, if both parties waive their objections to the test it can be admitted. So, if you have a client who is very confident that they will pass a polygraph. And by that I mean one that has already taken and passed a polygraph, you may seek a deal with the prosecutor that says the client will take a polygraph with an examiner that both attorneys agree upon and whatever the results are, you will agree to their admissibility.

This is strong evidence that not only the suspect, but the attorney really believes that the accused is innocence. Even the most hardened prosecutor has to take a step back and reconsider whether they have the right suspect. This might not only help you win the case, but prevent charges from ever being filed in the first place.

Miami Florida is fortunate to have some of the most sophisticated computer crimes lawyers and law enforcement personnel in the country. The US Attorney, State Prosecutor, FBI, Secret Service, Miami-Dade Police Department and City of Miami Police Department all have specialized units and personal dedicated to investigating and prosecuting Digital Crimes. So why is it that so many of South Florida Crimes seem to be limited to solicitation and e-bay fraud instead of intrusion, hacking, theft of service or the spreading of malicious code.

The answer is simple: corporate victims of computer criminals are often concerned with the PR ramifications of letting the public know about an investigation. I say an investigation not a prosecution. A prosecution shows the corporate victim after they catch the intruder taking affirmative steps to punish the person who dared test their security. An investigation on the other hand is much more nebulous.

During an investigation, no one knows who the perpetrator was. More questions than answers are presented. Not only is the company's security called into question: there is tremendous speculation as to who the intruder is and how they gained access. Were they an employee? Were they a competitor? Is this the first in a series of attacks? Most corporate victims do not want the distraction of having to answer these questions, let alone deal with the fear the unknown answers can cause among their clients and employees.

For this reason it is critical to have an understanding with the investigating agency that the existence of the investigation and the name of the victim will be kept secret until an arrest is made. The members of the Miami Electronic Crimes Task Force have repeatedly professed their commitment to maintaining media silence during the investigation of computer crimes. This makes good public relations sense and follows sound investigative policies.

It is critical that the victim, either directly or thorough their attorney, communicate that desire, not only to the investigating officer, but to the individuals responsible for speaking to the media. In this way, the corporation can control what kind of press release is made and when. By doing so, they can announce that they have captured the perpetrator and make the release a celebration of their responsiveness rather than a roast of their security.

In Miami, and the rest of Florida, if you get arrested for DUI and are given a breathalyzer test, you have the right to a second breath test from an independent source. The Florida Legislature has granted each driver the Statutory right to this independent breath test. All you have to do is ask, and pay, for it. One might ask, why bother? If it's that simple, why would the second test be any different from the first? There are two good answers to this. First, if you are refused the opportunity to a breath test you may win the case. Second, if you do get the second test, by the time you get there, your blood alcohol level might have decreased to a level below the legal limit.

Now that we know that we have the right to a second, independent breath test, how do we go about securing such a test? Picture this: you're in a police station at 3:00 am. You've just taken a breath test and you are over the legal limit. At this time you demand an independent breath test. The police have to give you access to a phone and a phone book. The rest is up to you.

It might surprise you how many people have made this simple request, "I'd like an independent breath test" and have not been provided a phone or a phone book. The failure of the police to give you those two things is sufficient to suppress the breath test they took. Once that scientific evidence is out, the question of impairment is one of opinion.

On the other hand, if we give the officers and troopers of Miami and South Florida the benefit of the doubt and presume that they do offer the accused a phone book and a phone. The accused then calls a toxicologist who does independent breath alcohol tests. By the time you get to the toxicologist or he gets to you, there is a great likelihood that your breath alcohol level will be lower.

Breath alcohol levels fluctuate in a curve. It goes up sharply over a half hour or so and then tapers off in the succeeding hours. Some have commented that you can "race a shot home." This statement is based on the theory if you drink a lot and then race home, you might not be drunk until you get there. (Not recommended.) This is the only time I see the independent test having the potential to hurt a defendant (if their breath alcohol level was still on the way up). However, it would have to be very close in time to the last drink. Given my experience with DUI arrests in South Florida, I think it very unlikely that anyone would have a rising breath alcohol level after they were given a breath test by an officer.

This is because the process of arrest takes a long time. By the time you leave the bar/party/dinner and get pulled over, get driven to the station, get processed and get the breath test it could be two or three hours later. Chances are that you blood alcohol level is on its way down by then. By the time you're given a phone and meet with the toxicologist, it might be another few hours. By that time, your breath alcohol level of a .09 might be a .04. That could be the difference between a DUI conviction and a handshake on the way out of court.