Author Archives: Matthew Konecky

Marijuana, Theft, Underage Drinkers finally get breaks in Broward County

Years after being behind in recognizing that many charges brought forth by the Office of the State Attorney in Broward County were a waste of taxpayer resources, a new civil citation program will be implemented throughout the county.   In this article, you can see the flawed effects of over prosecution on petty offenses.

For example, a homeless man was kept in jail for 65 days for trespassing, costing the county approximately $9,100.00, because he couldn’t afford a simple bond of $25. This is just one instance over the years of how the Office of the State Attorney has been blind in their “pursuit of justice.”   This is not one of those extreme examples of why the new civil citation program should be implemented. That example is simply a routine occurrence in the courtrooms which has been well documented by the Sun Sentinel.

A cry for help has not only been coming from the tax watchdogs, but from those having to defend these types of cases. Recently on our own blog, we discussed the attitudes on marijuana that were changing.

What this means for a Defendant?

It appears, crimes that used to result in an arrest now may result in a civil citation. This would prevent someone from being booked into jail, kept overnight, and forced to see a judge in the morning. In the alternative, they would be issued a ticket (much like a traffic ticket) in lieu of an arrest. It may also prevent the need to retain an attorney for a first offense.

For Marijuana Offenses

For marijuana offenses, a ticket to go to court may divert offenders to pay for a program and perform community service hours instead of having an arrest.   There could be a behavioral health course (aka treatment) for a violation. The benefit for the defendant is that they could keep their criminal record clean if they successfully complete the program.

There are certain requirements to be eligible to receive a citation.   In fact, No Cannabis Citation shall be issued if the violation occurred during an incident in which the adult also was charged with:

(a) any felony

(b) driving under the influence

(c) a violent crime

(d) domestic violence

Other Offenses?

It is unclear at this stage what the net effect will be for other charges such as trespass, panhandling, disorderly conduct, or petty theft. Time will tell how these offenses will be treated in lieu of a new change.

Other Counties

As stated before, Broward County has been in the dark ages with regards to handling these types of charges. However, they may have just pulled ahead of Palm Beach County, by making these charges merely a civil infraction. In Palm Beach County, these offenses are usually given a criminal citation, mandating the Defendant to go to court, while at the arraignment they may have the same type of program available to get the case dismissed. Therefore, a civil citation program in Palm Beach County could also be beneficial in cutting down the waste and needless arrests for trespass and marijuana crimes.


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Attitudes on Marijuana are changing; Will our laws follow suit?

Over the last 10 years, we have seen an increase in the number of states making medical marijuana legal. Just this past year, Florida made the jump to legalize medical marijuana in certain circumstances. We have also seen progressive states go from legalizing medical marijuana to legalizing recreational use of marijuana. While the federal government still classifies marijuana as a banned substance, it seems as if they are not enforcing this law at the state level.

Florida Laws regarding Marijuana

In 2014, the Florida Legislature passed a law that allowed a non-need euphoric strain of medical cannabis low in THC to help the terminally ill patients.   In 2016, they changed the bill to allow terminally ill patients to gain access to full THC level medical marijuana.

Who exactly qualifies for this type of treatment now?   Patients who have cancer, epilepsy, glaucoma, HIV, AIDS, Crohn’s disease, PTSD, Parkinson’s disease, ALS, multiple sclerosis, or the ambiguous “debilitating medical condition.”

County/City Level

Some counties and cities are following the trend in other states to decriminalize marijuana use. Miami-Dade County was one of the first counties to pass an ordinance that gives the option to police to give someone a ticket (civil infraction) for marijuana rather than charging them with a misdemeanor. Miami Beach passed a similar city ordinance.

While Broward County unanimously approved an ordinance like Miami-Dade County, it is well known that the Office of the State Attorney for Broward County will not enforce that County ordinance.

What about the workplace?

This brings us to a bigger issue: whether or not marijuana is legal, does an employee have a right to use marijuana even off the clock? Most companies outside of the states that have legalized marijuana still find the federal statute applicable, and they drug test employees to determine whether or not they are using illegal drugs.

As we discussed, were seeing a shift in attitude. In this article by the Palm Beach Post, AutoNation will no longer refuse to hire job applicants who test positive for marijuana. Since AutoNation is one of the largest auto dealerships in the country, you could potentially see this as a trend for more employers in the future.

What if marijuana becomes decriminalized or legal in Florida?

Despite the fact that many Floridians are now allowed to use marijuana to treat medical issues, it still does not prevent them from being held accountable for the actions upon their use. Even if you have a prescription for medical marijuana, or you live in an area where it is decriminalized, you still cannot operate a vehicle under the influence of marijuana.


Will the Judge Throw my case out at arraignment?

A common misconception I hear from potential clients is that a judge will look at their case at the arraignment and just “throw it out” based on their specific situation. This is simply not the case. In fact, the only way a judge can throw out a case (specifically a criminal case, not a civil traffic infraction) is under a few limited circumstances.
First, we must understand what happens at an arraignment. The arraignment date is set after an arrest, and it is for the State to announce which charges they are filing. Under the Florida rules of criminal procedure 3.160, “The arraignment shall be conducted in open court or by audiovisual device in the discretion of the court and shall consist of the judge or clerk or prosecuting attorney reading the indictment or information on which the defendant will be tried to the defendant or stating orally to the defendant the substance of the charge or charges and calling on the defendant to plead thereto.”
Simply put, at arraignment, the State will read the charges and the defendant will plead guilty or not guilty. The judge certainly won’t look at the evidence to determine if the state has enough to move forward. This was done at first appearance.
Won’t the Judge Look at the Facts of my Case?
In reality, unless there is an evidentiary issue, the judge really won’t look at the facts of your case until the time of trial. You must think of a judge as an umpire in baseball. He or She is only looking to call “balls” and “strikes.” In other words, until the judge is asked to make a ruling on the discovery, or evidentiary issue, he or she won’t have any involvement in your case other than to move it along.
Why do people have their cases dismissed or thrown out?
If you’re still reading this, you may be confused. Many people have their cases dismissed during the pretrial phase. That dismissal may not necessarily be from a judge, rather it’s a Nolle Prosse (State’s Dismissal).
There are certain instances when a judge can throw out a case.
Under Florida Rules of Criminal Procedure 3,190(c) there are four different reasons the judge can throw out a case pretrial.
(1) The defendant is charged with an offense for which the defendant has been pardoned.
(2) The defendant is charged with an offense for which the defendant previously has been placed in jeopardy.
(3) The defendant is charged with an offense for which the defendant previously has been granted immunity.
(4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant. The facts on which the motion is based should be alleged specifically and the motion sworn to.
Specifically, the most common reason for a judge to throw out a case is under subsection 4. A person who is unrepresented by counsel rarely has the insight to file a motion properly under this rule. So, when someone is suggesting they go to court without a lawyer to see if the judge will throw the case out they are operating under false pretenses. As Abraham Lincoln said it best, “He who represents himself has a fool for a client.”

Why Theft Crimes are not always Petty

One of the most common crimes people see on a regular basis is theft. We all know someone who has shoplifted as a teenager. Heck, even celebrities get caught up in the act. Or, if you’ve worked in retail, it’s almost a daily occurrence. Even if you don’t work in retail, we all know the impact shoplifting has when we go to the mall because clothing items have sensors attached, and big retailers have security guards at every pass-through point.

Even by its statutory name Petit Theft, aka “Petty Theft,” the name makes it sound insignificant. However, the reality is that a charge of petty theft is not insignificant; it can actually have a lasting effect on your life if you are convicted.

Criminal Impacts

While the lowest form of Petit Theft is a second-degree misdemeanor, theft charges can reach a first-degree felony. And, while “a person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently,” it doesn’t take much to make a Petit Theft into a Grand Theft.   Any property taken in excess of $300.00 is considered Grand Theft – a 3rd degree felony.

After a second charge of petty theft, the defendant could be facing a felony theft charge as the penalties get enhanced for each conviction.   In addition to criminal enhancements, trespass warnings are often issued preventing the defendant from ever returning to that store. Upon return after a trespass warning, an additional crime of trespass could be filed.

Civil Issues

Not only does petty theft incur criminal charges, there is a significant likelihood that the retail store will seek a civil attorney to pursue civil charges as well. Under Florida’s civil theft statute, a retailer can get three times the value of the merchandise taken or a minimum of $200.00.  They are still entitled to that money even if the merchandise is recovered. What’s even more significant, is that the statute provides the prevailing party attorney’s fees. This means that the $10 knickknack taken at Claire’s boutique could end up being a several thousands of dollars civil judgment along with any criminal sanction.

On top of the potential civil court case, your arrest may be something that you have to disclose in the future to a potential employer. Since theft is a crime of moral turpitude, it may be a reason for an employer not to hire you, or to fire you.

What to Do

As you can see, there is nothing petty about Petit Theft. If you or a loved one has been charged with theft, first download my new book, “My loved one has been arrested. What’s Next?”. Do not ignore any demand letters from civil attorneys. Save all court notices. Contact an experienced criminal defense attorney in your area to respond to the charges. Make sure you tell them about the civil demand letter(s) so they can potentially negotiate a better resolution to the demand, saving you money in the long run.

When you Don’t Need an Accident Attorney for your case

There’s the old Lincoln adage , “he who represents himself has a fool for a client.”   I find this quote to be very meaningful. It took me four years of college and three years of law school to get my law degree, and that was just the beginning. It is not until you start practicing law that you fully understand. As they say, it takes 10,000 hours to be good at anything. So, handling your own case most of the time is a bad idea. However, there are certain times where I actually advise people that they can handle their accident case on their own. Here are a few examples:

No One was Injured

Driving down Interstate 95, you will see a plethora of attorney billboards pleading with you to let them handle your accident case, and therefore many people’s first reaction when an accident happened is – I must call a lawyer! But, what those billboards don’t tell you is that they have no interest in your case unless you are injured. The truth is that a strictly property damage case is pretty straightforward. If someone rear ends you and there is no issue of liability, you can simply make a call to the other party’s insurance and more than likely you can handle the repairs yourself. You can even bypass this headache if you call your own insurance, if you have collision coverage, and have your insurance take care of your car repairs and seek your deductible from the other person’s insurance company.

On the contrary, you might want to consult an attorney for a “pure” property damage case if you have a new car. When you have a new car or shortly thereafter, and you get into an accident, your car’s value diminishes significantly. Most insurance companies do not want to pay your diminished value claim.   Hiring an experienced attorney could help you with that.

Your bills exceed the other persons policy limits

Another time where it is conceivable to handle your own case without an attorney is when your medical bills exceed the other persons policy limits. To fully understand what I’m talking about, you should download my book, “What the Heck is my personal injury case worth?” In short, if the person who hit you is driving a “beat up” vehicle with the lowest limits of coverage, $10,000.00, and your hospital bills exceed that amount, you could make a demand for the policy limits directly from the insurance company. If there are no liability issues, they should pay your demand immediately. You wouldn’t want to get an attorney involved to take potentially a third of the policy limits because your bills are still going to exceed what is left over.

However, there are times when it may be beneficial to hire an attorney in the above circumstance. An attorney could look for other avenues to get you additional coverage. They can negotiate your bills down at the hospital. They can also take the stress and headache of you having to deal with the insurance company.

While I have provided two examples of when you may not need an attorney, you can see even with these scenarios that having an experienced attorney on your side may still be most advantageous.


Can you get a DUI on a lawn Mower? YES!

Last week a St. Lucie County man was arrested for DUI when riding on a lawnmower.   CBS 12 reported it here.   It may be hard to believe, you can get a DUI on just about anything that moves.   Everybody assumes that a DUI means car, however, there is BUI (Boating under the influence).   DUI’s are just reserved for Boats and Cars, there for any vehicle.

How do you know what qualifies as a vehicle?

Under Florida Statute 316.003 a vehicle is defined as ” [e]very device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except personal delivery devices and devices used exclusively upon stationary rails or tracks.”

That is correct “every device that” can be drawn upon a highway.   This mean virtually everything you can drive, or ride on, can be considered a vehicle. Under 316.003 a bicycle and autonomous car is considered a vehicle. We discussed the issue of autonomous cars a few months back.

Other crazy DUI

So looking at 316.193 and 316.003 here are some examples of DUI’s you never thought about.

DUI on a horse.   This woman in Polk County was arrested for DUI on a Horse.   Does a horse qualify as a vehicle? I guess so.

DUI on a bike. This person was stopped for DUI on his bicycle.

DUI on a Fork Lift?   Good Ol’ Steve Jessup got popped for DUI on a Fork Lift.

DUI on Lawnmower–   Steve Jessup at it again, he got arrested on a lawnmower too.

Ok, the last two were fun, but it really does show that you can get arrested for DUI and not be in the traditional car or boat.

EBike an alternative?

Ebike– which are electric bicycles that go no more than 20 miles an hour, do not require a license or registrations.  They are fine for those who have had their license suspended for DUI, but you still can get a DUI on an Ebike.

Stay Safe out there.