Tag Archives: criminal defense

New Volusia County Marijuana Law

According to local news Volusia County recently decriminalized marijuana. The only problem is it appears that possession of marijuana is still a crime based on the new law. The only difference is that you can admit guilt and pay a fine instead of going to court and challenging the evidence against you. The ordinance is not even in effect yet but it appears that under section 1-7 marijuana possession would remain a misdemeanor. It would be a second degree misdemeanor instead of a first degree misdemeanor but some of the collateral consequences of a marijuana possession could still apply.

For some people with extensive criminal history this is probably a better option but for many people with limited criminal history it might not be better. They could likely get the charge dropped after completing a diversion or get the marijuana case amended to a charge with less collateral consequences like drug paraphernalia.

A paraphernalia case does not have the collateral consequences but would still create a public record of an admission to a crime. If you are on probation paying one of these “tickets” will definitely violate you. The county likes to call them tickets to make people feel like they forgot to buckle their seatbelt and can just pay a fine and forget about it. Many of these beach tickets are actually misdemeanor criminal charges disguised as a ticket.

The government doesn’t have the resources to prosecute all the crimes they are creating so they have now resorted to trying to trick people to admitting to a crime. It’s perfect for them because they get the money without the work. It’s only bad for you because you get the criminal record. These payable misdemeanors are usually resolved with a withhold of adjudication by paying the fine but that requires a lengthy (record sealing) process to get off your record. Many people will say that a withhold doesn’t give you a record but the benefit of a withhold of adjudication has eroded over time. It is still far better than a conviction but if you are in a competitive field you might not want an admission to a misdemeanor on your record.

The Problem

The Federal government does not always recognize a state’s withhold of adjudication. This can become a problem with financial aid. If adjudication is withheld the accused can seal their record but this can take up to 12 months. An individual can only seal 1 record in Florida and other states might not recognize Florida’s withhold. If this happens with a misdemeanor marijuana case than the accused could have problems with federal financial aid. Paying a marijuana ticket is an admission of guilt with adjudication being withheld. That admission is a public record and could cause problems for the accused.

It appears that based on the new ordinance marijuana around Daytona Beach “The Atlantic Ocean Beach” and in unincorporated Volusia County would be a second degree misdemeanor. I get this out of section 1-7 of the Volusia County ordinances. This has less serious maximum penalties than Florida’s typical 1st degree misdemeanor charge. The problem is it is still a crime and it appears the county is trying to trick people into admitting to a crime that could have serious collateral consequences. For someone with an extensive criminal record paying the fine might be a good deal if they are not on probation but it is unlikely that police would give them that option. First or second time offenders that would be eligible for diversion or could have the charge amended to something with less collateral consequences might actually come out worse by paying the fine. Here’s the cases with the federal government or other states not recognizing a withhold. These are felonies but the same logic could be applied to misdemeanors.

We affirm the district court’s ruling that one who pleads guilty in a Florida state court and has imposition of sentence withheld, may nevertheless be held to have been “convicted” for purposes of applying federal criminal statutes which punish certain conduct following conviction of a felony. United States v. Orellanes, 809 F.2d 1526 (11th Cir. 1987). State v. Heath, 279 P.3d 458 (Wash. Ct. App. 2012) (treating withholding of adjudication as a conviction for purposes of Washington law); Kasckarow v. Board of Examiners of Sex Offenders of State, 936 N.Y.S.2d 498 (N.Y. Sup. Ct. 2011) (withhold a conviction for purposes of New York sex offender registration law).

The New Law

AN ORDINANCE OF THE COUNTY COUNCIL OF VOLUSIA COUNTY, FLORIDA, AMENDING THE CODE OF ORDINANCES OF THE COUNTY OF VOLUSIA BY AMENDING CHAPTER 78 OFFENSES AND MISCELLANEOUS PROVISIONS BY CREATING SECTION 78-3 TO PROHIBIT POSSESSION OF CANNABIS AND DRUG PARAPHERNALIA IN UNINCORPORATED COUNTY; BY AMENDING CHAPTER 20 BEACH CODE, ARTICLE IV CONDUCT, TO CREATE SECTION 20-128 PROHIBITING POSSESSION OF CANNABIS AND DRUG PARAPHERNALIA ON THE ATLANTIC OCEAN BEACH; PROVIDING FOR SEVERABILITY; BY PROVIDING FOR CONFLICTING ORDINANCES; AUTHORIZING INCLUSION IN CODE; AND PROVIDING FOR AN EFFECTIVE DATE
SECTION I: Chapter 78 of the Code of Ordinances, County of Volusia is amended to read as follows: Section 78-3. Possession of Cannabis and Drug Paraphernalia.

(a) Prohibitions. It shall be unlawful for any person to possess 20 grams or less of cannabis as defined in F.S §893.02(3). or its successor. or drug paraphernalia as defined_.in.F.S .. §893.145, or its successor.

(b) Jurisdiction. This section shall be applicable only within the unincorporated areas of the county and_ as provided in Chapter 20 of this code.

( c) Penalty. Violations of this section are punishable as provided in section 1-7.

SECTION II: Chapter 20, article IV, section 20-128, of the Code of Ordinances, County of Volusia is amended to read as follows: Ordinance 2016-06 Page 1 of 2 Section 20-128. Possession of Cannabis and Cannabis Paraphernalia. It shall be unlawful for any_ person_ to _possess 20 grams or less of cannabis as_ defined_ in F .S §893.02(3), or its successor, or drug paraphernalia as defined in F.S. §893.145, or its successor. SECTION III: AUTHORIZING INCLUSION IN CODE – The provisions of this ordinance shall be included and incorporated into the Code of Ordinances of the County of Volusia, a.S additions or amendments thereto, and shall be appropriately renumbered to conform to the uniform numbering system of the code. SECTION IV: SEVERABILITY – Should any word, phrase, sentence, subsection or section be held by a court of competent jurisdiction to be illegal, void, unenforceable, or unconstitutional, then that word, phrase, sentence, subsection or section so held shall be severed from this ordinance and all other words, phrases, sentences, subsections, or sections shall remain in full force and effect. SECTION V: CONFLICTING ORDINANCES – All ordinances, or part thereof, in conflict herewith are, to the extent of such conflict, repealed.
SECTION VI: EFFECTIVE DATE-This Ordinance shall take effect April 1, 2016. ADOPTED BY THE COUNTY COUNCIL OF VOLUSIA COUNTY, FLORIDA, IN OPEN MEETING DULY ASSEMBLED IN THE COUNTY COUNCIL CHAMBERS AT THE THOMAS C. KELLY ADMINISTRATION CENTER, 123 WEST INDIANA AVENUE, DELAND, FLORIDA, THIS 3RD DAY OF MARCH A.D., 2016.

Sec. 1-7. – General penalty; continuing violations.

In this section, the phrase “violation of this Code” means any of the following:

(1) Doing an act that is prohibited or made or declared unlawful, an offense or a misdemeanor by ordinance or by rule or regulation authorized by ordinance.

(2) Failure to perform an act that is required to be performed by ordinance or by rule or regulation authorized by ordinance.

(3) Failure to perform an act if the failure is declared a misdemeanor or an offense or unlawful by ordinance or by rule or regulation authorized by ordinance.

(b) In this section, the phrase “violation of this Code” does not include the failure of a county officer or county employee to perform an official duty unless the context requires otherwise.

(c) Except as otherwise provided, a person convicted of a violation of this Code shall be punished by a fine not exceeding $500.00, by imprisonment in the county jail for a term not exceeding 60 days, or by both such fine and imprisonment. For violations of this Code that are continuous with respect to time, each day the violation continues is a separate offense in the absence of provisions to the contrary.

(d) The imposition of a penalty does not prevent revocation or suspension of a license, permit or franchise, the imposition of civil penalties or other administrative actions.

(e) Violations of this Code may be abated by injunctive or other equitable or civil relief, and no bond shall be required, nor proof of intent or scienter. The imposition of a penalty does not prevent equitable relief. Violations of this Code are also subject to remedies prescribed in article VII of chapter 2.

(f) In any litigation commenced by the county to enforce the provisions or to enjoin a violation of this Code, the county shall be entitled to reasonable attorney’s fees incurred in such litigation. For the purpose of this Code, a reasonable attorney’s fee shall not be limited to the actual salary paid to an attorney employed by the county, but shall be computed in the manner otherwise applicable under law.

(Ord. No. 99-28, § XIII, 11-4-99; Ord. No. 2009-20, § I, 8-20-09)

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Daytona Beach Marijuana Attorney Kevin J. Pitts


Daytona Beach DUI Under .08%

We occasionally see DUI cases in Daytona Beach and the surrounding area with a breath test results under .08%. What is a greater surprise to the individual is that they are not released from jail and are charged with DUI. It is one thing when drugs are suspected and the individual tests positive for drugs or refuses the urine test. This does not mean that the individual is impaired but it does give the State something additional to pile on in an attempt to obtain a conviction. What I am focusing on in this article is the Daytona Beach DUI case under .08% with negative urine results or no urine requested. It is important that you do not underestimate the situation if you have a breath test under .08%. You still need to talk to an experienced Daytona Beach DUI attorney. The state might still try to get a DUI conviction or at least a wet reckless. Call attorney Kevin J. Pitts at 386-451-5112 to set up a free consultation.

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Daytona Beach DUI Attorney Kevin J. Pitts

Florida has presumptions in place. When you read these presumptions it can actually be a little scary. If your breath or blood results are over .08% you are presumed impaired but result can be rebutted by other evidence. Most drivers are familiar with that rule. What most people do not know is that between .05% and .079% percent you are not presumed sober or impaired. It is good to be under .08% but under Florida law it really just means that the jury is supposed to look at the evidence and decide if you are guilty of DUI or not. What is even crazier is at .00% to .049% you are presumed to not be impaired. That is good but then comes the crazy part. The law in Florida actually says the presumption of sobriety can be rebutted. According to Florida statute if the prosecutor could convince a jury by other evidence that you are impaired by alcohol at .00% then you could theoretically be convicted of DUI. Now the reality is if you are under .08% without drugs in your system or urine refusal you have a strong case. If you have under a .05% without drugs in your system or urine refusal have an extremely strong case. If you read the statute it is theoretically possible for anybody to get a DUI but the reality is most of the state’s resources are focused on cases over .08%.

Unfortunately in Florida no breath test is low enough to force the state to automatically drop the charges. It is almost unheard of for cases under .05 to get very far. We do occasionally see overly ambitious prosecutors posturing for trial with breath tests under .08% but usually the case is resolved with a dramatic reduction or dropped before jury selection. This can be hard on clients that are visiting Daytona and get arrested on vacation. Pushing the case to trial usually requires an additional trip to Florida to get the best possible result.

316.1934(2)
(a) If there was at that time a blood-alcohol level or breath-alcohol level of 0.05 or less, it is presumed that the person was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.
(b) If there was at that time a blood-alcohol level or breath-alcohol level in excess of 0.05 but less than 0.08, that fact does not give rise to any presumption that the person was or was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired but may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.
(c) If there was at that time a blood-alcohol level or breath-alcohol level of 0.08 or higher, that fact is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Moreover, such person who has a blood-alcohol level or breath-alcohol level of 0.08 or higher is guilty of driving, or being in actual physical control of, a motor vehicle, with an unlawful blood-alcohol level or breath-alcohol level.

Seminole County Juvenile Attorney

When a child is unexpectedly arrested for an alleged crime in Lake Mary, Longwood, Winter Springs, Altamonte Springs, Oviedo, Casselberry, Sanford or the surrounding areas in Seminole County it can be scary. Your son or daughter has their entire life in front of them and you do not want them to be dragged down by a criminal record. An experienced Seminole County juvenile defense attorney can help mitigate the damage of an arrest. Your child has valuable rights and potential defenses. Seminole County also has diversion programs available to avoid a criminal record. A skilled juvenile attorney has multiple options to attempt to avoid a criminal record. If all else fails negotiation can be used to make sure that the charge can be expunged or sealed in Seminole County. The prosecutor makes the charging decision but when mitigation is presented it is not uncommon for a prosecutor to amend a charge to avoid destroying a child’s future.

Attorney Kevin J. Pitts and Kelly Johnson both have experience prosecuting and defending juvenile cases. Attorney Kevin J. Pitts started his career as a juvenile prosecutor in Daytona Beach. He moved on to handling DUI, domestic violence and other misdemeanor cases before going into private practice. Kelly Johnson is a former Seminole County prosecutor that spent time in the juvenile division before handling DUI, domestic violence and misdemeanor cases. After working for the State Attorney’s Office she went out into private practice. Our attorneys have offices in Sanford, Mount Dora and Daytona Beach. Call 407-883-6853 to talk to an experienced juvenile and criminal defense attorney.


Lake County Injunction Hearing Attorney

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If you have an injunction hearing in Lake County you need to have a Lake County injunction attorney. If you lose an injunction hearing the ramifications can be permanent. Many injunction petitions are actually a power play by a wife/girlfriend or husband/boyfriend to get an upper hand in a break up or divorce. If the wrong person hangs an injunction on you it will become a nightmare. Occasionally an ex will not be satisfied by getting and injunction on your record and revoking your right to have firearms including hunting rifles. Thats when the nightmare begins. A simple call to the police and a sworn affidavit can result in your arrest for violation an injunction. Do not try to handle an injunction hearing on your own. The initial consultation is always free. Call (352) 735-4342 to set up a free consultation. Offices in Mount Dora, Sanford and Daytona Beach.


Daytona Beach Cocaine Possession Attorney

In Florida Cocaine is considered a Schedule 2 controlled substance. Under Section 893.13(6)(a), Florida Statutes, a person found to be in “actual” or “constructive possession” of cocaine commits a third degree felony, punishable by up to five (5) years in prison or five years of probation, and up to a $5,000 fine. A conviction for cocaine possession will furthermore lead to a one-year Florida driver’s license suspension.

Daytona Beach Cocaine Trafficking Minimum Mandatory Penalties.

  • 28 grams to 200 grams = 3 year minimum mandatory sentence.
  • 200 grams to 400 grams = 7 year minimum mandatory sentence.
  • 400 grams to 150 kilograms = 15 year minimum mandatory sentence.
  • 150+ kilograms = life sentence.

If you are accused of Daytona Beach Cocaine possession or Daytona Beach Cocaine trafficking you have defenses. Common defenses include illegal stop, illegal search, knowledge, control and joint possession defenses. Call Daytona Beach Cocaine attorney Kevin J. Pitts at 386-451-5112 to set up a free consultation.


Lake County Criminal Traffic Attorney

Lake County has a reputation for being tough on those accused of a crime. If you are accused of a Lake County criminal traffic offense you need a Lake County criminal defense attorney. In 2012 Lake County had 233 leaving the scene of a crash cases. Of those 233 cases 159 of them were adjudicated guilty of Lake County leaving the scene of an accident. An adjudication of guilt means a criminal record for life. Lake County had 84 reckless driving cases in 2012 and 36 of the reckless driving cases resulted in an adjudication of guilt for a Lake County reckless driving. Lake County had 934 DUI arrests. Of those 934 arrests 804 resulted in a guilty verdict for a Lake County DUI. Another common criminal traffic offense in Lake County is driving on a suspended license. In 2012 Lake County had 2,727 criminal suspended license cases or suspended license with knowledge cases. Of those cases 1,749 resulted in a guilty disposition for Lake County driving on a suspended license. Lake County had 851 no valid driver’s license cases. Of those 851 cases 540 resulted in a guilty verdict. Lake County also had 426 improper, expired or no valid tag cases. Of those 426 cases only 150 resulted in a guilty verdict. Just because you have been accused of a crime does not mean you will be convicted. The state must be able to prove their case beyond a reasonable doubt to obtain a conviction, Having an experienced criminal defense attorney on your side can help increase the odds that you will get out of Tavares without being convicted of a crime and make sure your rights are protected. Attorney Kevin J. Pitts handles criminal traffic offenses throughout Central Florida.


Daytona Beach Resisting Arrest Without Violence Resisting An Officer Without Violence

A Daytona Beach resisting arrest without violence charge is a catch all for police. People pick up these charges for voicing disapproval, asking questions, tensing up when being hand cuffed and occasionally for displaying poor manners. While resisting an officer without violence in Daytona Beach is a serious charge these cases can be defended. Some of the common defenses deal with free speech, the officers legal right to arrest or detain, if the accused knew that the person was a police officer, if the officer was performing a legal duty, if the conduct obstructed the officer and if the officer used excessive force. Some officers have a tendency to pile on a resisting charge to give the prosecutor more to work with. Although typically a resisting without violence charge occurs when the officer feels like the accused is giving them a hard time even the Supreme Court believes police should have thicker skin than ordinary citizens. In CITY OF HOUSTON, v. HILL. 482 U.S. 451 the court stated: Although the preservation of liberty depends in part upon the maintenance of social order, the First Amendment requires that officers and municipalities respond with restraint in the face of verbal challenges to police action, since a certain amount of expressive disorder is inevitable in a society committed to individual freedom and must be protected if that freedom would survive. If you are arrested for Daytona Beach resisting an officer without violence contact criminal defense attorney Kevin J. Pitts