HOW TO AVOID BEING INVOLVED IN A ROAD RAGE INCIDENT & WHAT TO DO WHEN IT BECOMES A CRIME

Here in Florida the summer heat can bake your parked car’s inside temperature to over 120 degrees in ten minutes. No wonder the hot cities of Florida often rank in surveys as the worst places for road rage incidents. 

The Road Runner cartoon was filled with road rage when the Coyote tried to kill the always lucky road runner.
Road Rage Coyote & Road Runner

All of us occasionally make mistakes while driving. When you see someone make a stupid driving mistake don’t rub it in their face nor even their hood. And if another driver accuses you of making a driving mistake, remember that the best rule of the road when confronted is not to let the finger pointing escalate to name calling or yelling. After all this if Florida where a retired police officer recently was accused of shooing an unarmed man at a theater for texting on his phone. 

Here are five rules to help you avoid being involved in a road rage incident where you may be arrested for an alleged criminal act no matter who is really at fault.

1. You should assume that the other driver is armed with guns, knives and other weapons and act accordingly. If you think the other driver is armed then it makes sense to stay as far from his vehicle as possible.
2. You should assume that everything you say or do is being recorded in video and audio. Not only will other vehicles will have plenty of occupants with cell phone cameras ready, there are also cameras along many roads, at intersections and along the businesses by the road.
3. You should never pull your car over to have it out with the other driver. If the other driver pulls over in hopes of fighting it out, use the opportunity to get far away. Nothing is going to be accomplished other than risking the safety of everyone in both vehicles.
4. If the other driver is using his vehicle as a weapon in an aggravated assault by driving too close to you in a threatening manner, call 911 while trying to drive to the nearest police station or other area of apparent safety.
5. As soon as an incident occurs do your best to de-escalete the situation. 

What are the possible criminal charges awaiting drivers involved in road rage? Criminal charges begin with any threat to the other driver using any weapon used during the coarse of the incident. Under Florida law the legal definition of weapon may include the vehicle itself if the car is used to threaten someone; for example, by pulling away just before a collision with the purpose of scaring the other driver which would constitute an aggravated assault. 

If a car actually does touch or strike the other car, then depending upon the damage and injury to the passengers and driver, Tampa Bay police could charge either battery or aggravated battery. Clearly a weapon fired or thrown from a moving vehicle could also result in battery or aggravated battery charges as well as throwing a deadly missile charge. If there is a collision and the driver fails to remain at the scene to render possible aid charges of hit and run will likely be filed. Further, police and prosecutors have will bring charges of vehicular homicide if a death results or murder charges if there was heat of passion or sufficient time for premeditation before the death.

The problem in many of these cases is that both drivers may be viewed by law enforcement as being at fault for allowing a bad situation to escalated into something far worse where people end up being injured. Because of the significance of the aggravated felony charges, even someone without any criminal history could find himself not only arrested but also facing a possible long term of prison if criminal charges are filed. Therefore it’s always important to avoid road rage situations that could easily escalate ruining the lives of everyone in both cars.




FEDERAL INVESTIGATORS TARGET MEDICARE FRAUD AFTER DISCLOSURES OF RAMPANT DOCTOR BILLINGS

One lucky Florida ophthalmologist managed to snare a cool $21 million from his medicare billings last year. A hundred less fortunate doctors made due by sharing $610 million from the total doctor’s billings to medicare of $600 billion. All of this information was disclosed when medicare finally opened its books on individual doctors share of medicare billings. The strategy and tactics of robust billings allow some of our lowly medicare doctors to make even more money than those fancy doctors on television. But when does robust billing become fraud worthy of an FBI investigation?


Turns out the Dr. House on television makes less money than some doctors helping the poor on medicare.
Is there a Doctor in my House?

Hidden behind the rush of these recent news stories is the fact that federal investigators will begin shifting thru the cloud of statistics in order to begin targeting individual doctors in hundreds of fraud investigations. 

Indicting doctors and other health care providers allegedly involved in health care fraud will become a high priority of the FBI and the United States Attorney’s Office not only in the Middle District of Florida but throughout the entire country. 

Medicare fraud typically arises from either over billing or from fake billings. To prove over billing or fake billing the FBI will investigate doctors for medicare fraud under Plan B in the following ways:

First,  the FBI will be look for an average mean medicare billing for each specialty.  For example, it might not be unreasonable for larger billings in specialties which require more expertise.

Second, the FBI will look for an average mean in medicare billing for each part of the country segregating the billings based on the costs and history of billings in every location. 

Third, the FBI will target doctors and hospitals that have billed medicare for more than the average mean of specialty and location.

Fourth, the FBI will look for disgruntled employees and former employees to gain insight as to whether there was a criminal conspiracy to over-bill medicare. Employees will be given two significant incentives of not being indicted laced with the possibility of whistle blower status with financial reward. Employees who fail to co-operate by remaining faithful to the hospital or doctor may find themselves indicted as part of a criminal conspiracy to defraud medicare.

Fifth, the FBI will gain access to business records by utilizing search warrants for criminal conduct. This can temporarily shut down the doctor’s office inducing enough immediate financial hardship to scare the doctor into co-oporating with the Government.

With the Government focused on lowering health care costs, it’s clear that it will soon declare war on doctors who may have robustly billed medicare. The ultimate objective of the Government will be the arrest, conviction and imprisonment of imminent doctors to deter others from who received payments from Medicare under Part B. 

Doctors who are under investigation may not receive target letters informing them of the fact. In fact in most medicare fraud investigations a target letter is only sent after a completed investigation as a prelude to a possible negotiation with the doctor to avoid a grand jury indictment by allowing him or her to plead guilty in federal court to a significant federal crime.  Any doctor who believes he or she may be a target of a federal investigation concerning medicare billing should secure immediate help from a knowledgeable federal criminal defense lawyer to avert federal indictment and prosecution.

HOW FLORIDA’S YOUTHFUL OFFENDER ACT HELPS JUVENILES AVOID HARSH DRUG SENTENCES

The trend of current criminal law acknowledges that whenever possible children charged with crime should not be treated as adults. The Florida Bar has been pushing for judges rather than prosecutors to determine when a child should be treated as an adult.


Our Gang members sitting with their dog. Let children be children. This is how Florida  law can forgive childhood mistakes and avoid minimum mandatory sentences in Tampa Bay Florida.
Free Our Gang from Prison

In Florida, juveniles whom prosecutors have charged as adults or young adults up to the age of twenty-two may be granted Youthful Offender status for a second chance. This may happen even over the objection of the State Attorney’s Office if a judge can be persuaded with effective arguments to make a finding that a child  or young adult qualifies under the statute. 

A young person who pleads guilty under the Youthful Offender Statute may preempt the application of draconian sentencing laws in the following ways:

First, any harsh drug minimum mandatory sentences that would normally be triggered by conviction of a significant drug offense may be avoided. For example, in drug trafficking cases for drugs such as marijuana, heroin, cocaine, methamphetamine or oxycodone the outrageous long term sentences typically of three, ten, fifteen and twenty-five years of prison may be avoided. 

Second, a young person charged with various firearm counts may be able to avoid specified minimum mandatory sentencing which a judge would otherwise not be able to sentence below. For example, in a case of possession of a sawed-off shotgun, a young defendant could avoid a minimum mandatory sentence of three years on the firearm count. 

Third, in cases of sexual battery, lewd and lascivious conduct or sexual assault, mandatory sex offender probation conditions can be avoided under the Youthful Offender statute. Many times young people are charged as adults even when the actual sexual conduct was consensual. For example, when a High School senior has consensual sexual relations with a freshman whose age falls just shy of recently amended Florida Romeo and Juliet statutes. Also, in a recent article Richard Sanders makes a compelling argument that imposing mandatory sex offender probation conditions is not required under the Youthful Offender Statute despite some poorly reasoned case law to the contrary.

Finally, the large fines typically imposed in significant criminal cases can also be avoided under the Florida Youthful Offender Statute if the presiding judge is persuaded that the young offender neither has the means nor ability to pay or that a fine would be detrimental to becoming a productive citizen in the future.


Young people perceive the passage of time differently than adults and imposing any jail on a young person is a much harsher punishment in actual deprivation than a similar punishment to an adult. Further, as psychiatrists have long noted and as the U.S. Supreme Court has recently come to realize, the brain functioning properties of children may them more likely to do foolish things, to not think thru things as an adult would and to not be as responsible as an adult might be.

Under Chapter 958 of the Florida Statutes the Court merely needs to make a finding that a qualifying defendant would benefit from a set of sanctions which are likely to improve his or her “… chances of correction and successful return to the community.” This, of course, should be the aim of every judge in every criminal case. Yet too often our best judges have their decision making tied by legal restrictions and are kept from doing their most important job, which is constructing a sentence that punishes as little as possible while still deterring crime. The goal of a good judge is to sentence is such a way that a defendant does not become a ward of the state, but instead becomes a productive, law-abiding citizen.


JUSTICE DEPARTMENT LOWERS SENTENCES IN FEDERAL DRUG CASES IN THE MIDDLE DISTRICT OF FLORIDA

To my surprise in a recent drug sentencing in the Middle District of Florida the Tampa federal Judge reduced the offense level by two based on Attorney General Holder’s recent comments about the need to reduce the amount of prison time in federal sentencing. Though reluctant, there was no objection on the record from the Government. 

Under the Justice Department even law enforcement in Tampa Bay could serve less time for unlawful acts.
Avoiding Jail is Justice’s Goal


For the most part the federal judges and prosecutors in the Middle District of Florida have shown very little inclination to give downward levels at sentencing on what the Federal Sentencing Commission or Congress may do in the future. Yet 

My client was charged with possessing a significant amount of steroids and marijuana found incident to a search warrant. After reviewing discovery and discussing possible defenses, he acknowledged his guilt and accepted responsibility for his actions upon signing a plea agreement. The plea agreement noted that the Government would have no objection to a sentence being given in the low end of the guideline range. 

Yet because of the large quantity of steroids and marijuana as well as a significant prior record the expected federal guideline range appeared to be well within in zone D with a likelihood of at least 12 to 18 months in prison. 

The following facts provided the judge better options under the federal guideline range to allow my client to receive a time served disposition at sentencing.


First, my client’s successful and timely proffer resulted in the Government filing of a 5K motion for substantial assistance. Some times the Government fails to file the motion despite what I believe is excellent cooperation. Here my client never stopped cooperating from the moment of his initial arrest. The assistant U.S. Attorney asked for a two level reduction in sentencing. The Court granted a three level reduction upon hearing testimony from the Government agent about the extraordinary cooperation of my client.

Second, based on Attorney General Holder’s speech the night before the sentencing the Court entertained a motion to reduce the sentence by two additional levels due to the likelihood of future federal Congressional action or action taken by the Federal Sentencing Commission at the behest of the Justice Department. However, the Defendant was asked on the record by the judge to agree that he would not ask for another two level reduction if Congress passed such a law though he could ask for a further reduction if Congress passed a law with more than a two level reduction.

Third, we established that on his own volition my client had enrolled in a halfway house while being free on a signature bond while awaiting trial or plea. We asked the Judge to consider the time in the halfway house as 157 days of time served in jail while awaiting sentencing.

The three level reduction for a successful 5k proffer combined with the two level reduction for the Justice Department’s future legislative goals were sufficient to bring my client from sentencing zone D to sentencing zone B. In zone B the judge has much more discretion to give a fair sentence. The judge gave credit for the time served by my client in the halfway house. Ultimately the judge sentenced by client to time served.

Although things went fine for my client in his case, the Justice Department should act quickly to push the necessary changes thru Congress with help from the Federal Sentencing Commission so that every defendant will have sentencing parity no matter where in the country their drug indictments originated. The goal must be to limit over-incarceration in nonviolent federal drug cases by giving federal judges more sentencing discretion.

WHAT’S THE ACTUAL VALUE OF HULK HOGAN’S $5,500 SHOES, RESIZED FOR A FLORIDA GRAND THEFT CASE?

It was revealed today that a $5,000 pair of shoes signed by local celebrity Hulk Hogan was stolen from his fancy beach store. It was also revealed that during the theft, possibly in a ruse to divert attention, a statue of Hulk Hogan was shattered to pieces. Oh, these are desperate times in Tampa Bay, Florida, yet of one thing we may be certain, Hulk Hogan was not in the store at the time otherwise the perpetrator would have been bagged and body slammed.

Charlie Chaplin's shoes were so valuable he ate them, how would the Clearwater Police Department value his shoes?
Charlie Chaplin eats his Shoe

If the culprits are captured and charged, what is a fair way to assess the value of the stolen shoes? In Florida a third degree grand theft charge can be levied for any object valued at $300 or more, if less than $300, then the appropriate charge would be a misdemeanor petit theft. What if something of even greater value had been taken from the store such as Hulk Hogan’s bandanna rather than just an old pair of his signed shoes? If the value of the bandanna was more than $20,000 then the theft would be assessed as a grand theft second degree felony. 

The higher the offense charged the more likely it is that jail will be ordered as punishment. And as you can see by how the charges are defined, it is the value of the property stolen that often dictates whether a case is resolved with or without prison time in Tampa Bay Florida.

Yet the fact that Hulk Hogan’s beach store sells his signed shoes for $5,500 doesn’t necessarily mean they have an assessable value of $5,500. In fact, the thief may have thought the value so absurd that the shoes were taken as a joke. Value is more than what a victim says it is. The investigating officers and the Pinellas State Attorney’s Office should look to find a reasonable actual value. One way to do that would be to make inquiry’s from the store as to how many pairs of signed shoes have been sold and if so, for how much. In far too many grand theft cases law enforcement fails to make a complete investigate of value, because their focus is on solving the crime. Also, officers or prosecutors will add further charges such as scheme to defraud in an effort to force defendant’s to plead guilty. 

But what about the possible criminal mischief charge against the thief for that shattered statue of Hulk Hogan? Like theft charges, criminal mischief charges are based on value, but with criminal mischief it is based on the actual value of the object destroyed or the value to repair an object. Making a calculation of actual value is arguable and problematic. Is it merely replacement value or is it something more, say the value of the statue to the Tampa Bay community – priceless or valueless? And if the statue of Hogan is repairable there’d still need to be an assessment of any value lost after the repair compared to the value before the destruction.

Recently in Miami, Florida a museum’s pottery piece on loan from China was intentionally destroyed by an art protestor. Upon the vandal’s arrest the investigating officer was unable to ferret out from the museum staff what the actual value of the pottery actually was, so he simply wrote one million dollars in his police report causing sensational international press reports. The actual value turned out to be assessed for much less, but the potter in China must be smiling.

As you can see in grand theft cases as well as criminal mischief cases value is often an elastic notion. It’s important that a lawyer be prepared to exploit value weaknesses with expert testimony  in order to have a felony or misdemeanor charge reduced or dismissed based on actual value.


PINELLAS SHERIFF FINALLY CHANGES RULES FOR HIGH SPEED CAR CHASES AFTER MULTIPLE CAR CRASHES

Police car chases should commence only when the risk of harm from the chase is less than the threat of harm from the underlying alleged crime. Common sense has finally prevailed upon the Pinellas County Sheriff’s Office to abandon it’s outdated dangerous vehicle pursuit policies by permitting police chases only when the chases are being used to prevent imminent violent criminal conduct.

Tampa Bay Depuites in Pinellas county will no longer be able to give chase to nonviolent offenders as Deputy Five & Sheriff Andy Taylor amight have done on his motorcycle.
Dep. Fife In Hot Persuit

The new policy allows deputies to pursue vehicles if and only if the following criteria is met:

1. The suspect must have committed a forcible felony.
2. The forcible felony must be categorized as one that actually endangers the public such as an armed robbery, sexual battery, attempted murder or murder.
3. There must be imminent or continuous threat to the public.

Part of the problem with the old rules was that even an infraction such as running a red light could trigger a very dangerous high speed chase if an officer believed that the there was any danger to the public. This led to highly threatening situations caused by the police chase itself. And while citizen’s lives were risked from mere traffic infractions that resulted in car pursuits, many officers were not even giving traffic tickets to officers who violated traffic laws.

Parsing thru the new rules, the goal is to forbid officers from engaging in high speed chases unless there’s an immediate and very real threat to the public. Following this criteria brings some interesting changes to actual police conduct. Bad driving alone will no longer be sufficient cause to give chase unless the driving itself of great public danger. Also, there will be no high speed vehicle pursuits for nonviolent crimes such as grand theft or stealing an officer’s hat under the new rules. 

If these rules are followed in Tampa Bay the number of active police pursuits should decline. But so far other police agencies have not made effective changes to their agency’s police policies. For example, the St. Petersburg Police Department pursuit policies have endangered lives even when the underlying felony is not violent. All of the Tampa Bay agencies should adjust their pursuit policies so that only suspects who are believed to have committed violent acts are pursued in high speed chases. For leading by example the Pinellas County Sheriff should be commended.

COPS SHOULD STOP OBTAINING FALSE CONFESSIONS WITH LIES & FALSE INFORMATION IN INTERROGATIONS

Across American police officers routinely lie during interrogations  in order to bully suspects into making damning admissions. The sordid goal is not to find the truth, but to find further evidence to guilt. 

Officers should not fabricated evidence to gain confessions...Pinocchio in the spotlight for telling lies, should not become an interrogator.
Officer Pinocchio lies to suspects.

For example, officers may lie about forensic evidence, asking why fingerprints match the suspect even when no fingerprint evidence exists. 
Officers may indicate that a nonexistent eye witness identifies the defendant or that a co-defendant admits everything and implicates the defendant. This use of false information to ensnare defendants is perfectly legal in most of the United States, yet it is also known to be one of the causes for the high incidence of false confessions.


In many other countries lying to a suspect would be viewed as police misconduct. And when viewed in it’s entirety it’s not much different than the evidence used in Soviet show trials or what might be expected from totalitarian regimes bent on maintaining power. 

In England, the birthplace of our common law, the government has restricted officers from using false information to lure confessions. The focus of British law enforcement investigations is to find the truth, not to merely obtain a confession. The British found that lying to defendants merely increased the chances of a false confession. 

Instead of lying about facts or playing good cop/bad cop as American interrogators are prone to do, British interrogations seek to find out from the suspect what happened. As the suspect tells the story the officers look for any inconsistencies. If there are inconsistencies, then the interrogation moves forward in an effort to find truth rather than merely find more evidence to convict. Evidence in British criminal cases is gathered and deployed to find the truth of what occurred rather than basing an investigation upon preconceived notions of guilt.

It’s about more than a suspect or target of an investigation merely trying to avoid arrest and prosecution. As a defense attorney and former prosecutor in Tampa Bay, Florida I’ve witnessed many officers freely admit under oath to lying to suspects in an effort to snare a fast confession. One wonders why any juror or judge would believe anything any officer might say after make such a damning admission. Yet what a lying officer is really saying is he’s willing to lie to subvert the legal system. Any police officer willing to lie should find another job instead of bending the framework of truth in the criminal justice system.

HOW DAY LIGHT SAVINGS TIME ACTUALLY REDUCES VIOLENT CRIME

That hour you lost in sleep last night might just be worth it, because a study establishes that the extra hour of daylight results in a reduction in violent crime. In fact the crime reduction during that hour of light rather than darkness is significant especially for major violent crimes such as robbery, murder and rape.



Haold Lloyd dangles from a clock high above a street stopping time itself even as daylight savings time fights crime by making criminals less likely to act.
Harold Lloyd Fights Daylight Savings Time

For example, during that well lit extra hour of sunshine there’s a reduction in robbery by 51%, murder by 48% and sexual battery by 56%. Could it be that just like us, criminals miss the extra hour of sleep and so slough off their important work habits during during that lonely hour? No, say our hard-hearted scientist, it’s simply that criminals are more likely to do their work at night while cloaked in darkness.

According to the study Under the Cover of Darkness: Using Daylight Savings Time to measure how ambient light influences criminal behavior, which ferreted out other variables, it is the light itself that reduces the crime rate. Light increases the likelihood of being caught thereby increasing the expected cost of the crime. The study further shows that Daylight Savings saves over half a billion dollars a year in social costs due to reduced crime. And it suggests that it would be a wise investment to improve night time lighting with more street lights.

Since Florida is known as the Sunshine State one would think crime would not even exist here in Tampa Bay. Nor would one readily believe that beach blanket crime could occur on our sunny beaches during tourist season, yet it does and in broad daylight too. Perhaps the problem is that the street lights are turned off during the day.

Anyway, soon we’ll recover our lost sleep. Till then my recommendation for our somnolent Congress is to take that hour away on Monday rather than ruining the weekends by stealing the hour on Sunday. Perhaps the findings of another crime study finding that more iphone muggings occur on Mondays than any other day of the week will help our cause. By reducing the number of hours on Monday crime would be reduced as well.

FLORIDA MISCONDUCT: LARGO COPS FAIL TO OBTAIN SEARCH WARRANTS BEFORE BREAKING INTO HOMES

The Largo Police Department grudgingly apologized for breaking into a home that officers falsely believed was occupied by vagrants. The officers busted down the front door and confronted the law abiding occupants with weapons to investigate the heinous crime of a possible trespassing charge. 

Tampa Bay officers breaking down doors without search warrants could lead to someone being shot or killed, so officers should always obtain a warrant unless exigent circumstances apply.
Damn, forgot the Search Warrant again!

It’s very lucky for everyone involved that on one was shot, because  the manner in which the officers gained entry was closer to a home invasion than to what one would expect from qualified police officers. Under Florida’s stand your ground law those within the house would clearly have a right to defend themselves from what they believed to be a home invasion. If there had been a shooting, how would the police have explained their obvious disregard of the law and sheer laziness in not first securing a search warrant on the house? 

Also, since anyone in Florida can resist an unlawful arrest in Florida as long as no force or violence is used, there would be incentive on the part of the police officers to find a reason or excuse to be there by looking for any unlawful acts. That’s why properly prepared search warrants actually help the police by solidifying the reason they need to go into a home and delineating before a judge or magistrate the evidence of unlawful misconduct the police possess.

Despite an apology to the men living in the home, the Police Department made it clear that it believed it did not really need a search warrant under the circumstances because of the exigent circumstances exception for search warrants. The fact is that investigation of a possible trespass with no other information nor suspicion of wrong doing nor immediate necessity for officer or citizen safety is legally insufficient. If the the leaders of the Largo Police Department don’t understand criminal law, how can the investigating officers be expected to carry out their obligations under the law?

But the police do know what the law entails, they just don’t want the aggravation that comes with respecting search warrant requirements. The truth is that in Tampa Bay, Florida many police departments have made a mockery of the fourth amendment search warrant requirements by using inappropriate tactics such as secret videos, while other officers have committed crimes without being prosecuted. If the police officers knew they should have obtained a search warrant then they were committing at least a trespass and possibly a burglary.

The Largo Police Department routinely and habitually violates the rights of it’s citizens. Those in a leadership position should be punished or new leaders found who will obey our constitution even if they don’t believe in it. 

COUNTRY CLUB GOLF BETS BECOME FOCUS OF CRIMINAL INVESTIGATION

Is golf a game of skill or a game of chance? Having played too many rounds of golf I grudgingly admit that skill may be involved. And if on the witness stand, hand trembling on Bible, I would admit to losing more on the golf course from errant unfound golf balls blitzing into water holes, trees, berms, bushes, golf carts and on one occasion an unfortunate man’s head, than I’ve ever lost thru miscalculating my bets. Most golfers would probably agree.

Golfers have a long tormented tradition of making and taking bets while playing. In fact the reason there are handicaps is to facilitate fair bets between players of differing skills.

Golfers should not be prosecuted for making bets while playing because the stakes are small and the tradition of golf embraces bets.
Into the Trap



Florida on the other hand has a long tradition of making private acts of sportsmanship criminal. For example, a few years ago in Clearwater, Florida a friendly small stake poker game being played by retirees was raided by the police. The Poker Five became a nation symbol of Florida’s law enforcement’s absurd priorities and abuse of criminal law. 


The Florida legislature responded by making a specific exception to the gambling laws for poker games with small incremental betting, since poker is after all a game of skill, unless you’ve just won the pot from me, then poker is damned ugly game of chance which should be outlawed. Yet despite that law found at Florida Statutes 849, the Largo Police Department recently folded a Texas Hold’em Poker game by arresting folks who were playing for prizes.


So why are Tampa Bay, Florida police officers wasting their time investigating a Tarpon Springs golf course? The Tarpon Springs police department says their investigation of a possible ‘gambling house’ is necessary and proper under Florida law. 

The truth is they clearly need to refocus their investigations on actual violations of Florida law. At least they haven’t arrested anyone yet. The prosecutors at the State Attorney’s Office should immediately shut down this investigation and let these duffers play.