Law is not black or white, it's grey



-1st degree, death penalty, 2nd degree, 3rd degree

First degree murder, death penalty in Florida, second degree murder, third degree murder 

Very few Florida criminal lawyers try murder cases.  It takes a certain type of lawyer to do capital cases.  They are cases that cause you to lose sleep.  For years.  Cases that haunt you for the rest of your life.  The pictures.  The video.  The motive.  The lies.  The truth.  The tragedy.  The pressure of defending someone who may be actually innocent is overwhelming.  They may still get convicted.  That is real pressure.

In Florida, murder is divided into degrees.  The most serious is first degree murder.  A Florida state court prosecutor may prove first degree murder in two different ways.  One is premeditated murder and the other is felony murder.  

Premeditated first degree murder 

To prove it, the state must show beyond all reasonable doubt that:

the victim is dead, the death was caused by the criminal act of the defendant and there was a premeditated killing of the victim.  

First degree murder, felony murder 

To prove it, the state must show beyond all reasonable doubt that:

The victim is dead, the death happened as a consequence of and while the defendant was engaged in a forcible felony (attempting to commit a forcible felony or acting as an accomplice suffices here) and the defendant was either the actual perpetrator OR someone else killed the victim but the defendant and the person who killed the victim were principals in the crime.  

Note that the state of Florida does not have to prove a premeditated design to kill or intent to kill with felony murder.  

Principal theory for first degree murder 

The principal theory applies here.  Generally, if the defendant helped another person to commit a crime, the defendant is on the hook for whatever happens IF the defendant had a conscious intent that the underlying criminal act be done (not the murder) and the defendant did something to help out – aid or abet, encourage, assist, etc.  For instance, if you and I go to rob a bank and you pull the trigger and shoot the clerk, I could be convicted of felony murder under the principal theory.  

Doctors charged with first degree murder by distribution, unlawful distribution of drugs

Increasingly, doctors are being charged with first degree murder for unlawful distribution of a controlled substance.  Note there is no premeditation requirement for first degree murder by distribution.  The drug must be proven to be the proximate cause of the death of the user.  Sometimes, the victims in these cases have other drugs in their system.  Sometimes, the prosecutor may have difficulty linking the pills that were actually prescribed by the doctor to the ones that actually caused the death of the victim.  

Death penalty for capital cases, Florida first degree criminal murder lawyer

How are prisoners executed in Florida for murder?

Lethal injection is (for now) a constitutional method of execution and is how people are executed in Florida.  The electric chair, “Ole Sparky” has not been used in Florida since 1999.  Allen Lee Davis was the last person to die in Florida's electric chair.  As of this writing in 2013, seventy eight people have put to death in Florida since 1979.  

Florida is the only state in America that allows a non-unanimous recommendation as to either the finding of aggravating circumstances or the recommendation of death.  The Florida Supreme court has held that Ring v. Arizona does not apply in Florida.  They are wrong.  The issue needs to be preserved in every capital case where the death penalty is sought.  Unanimity should be required for a finding of aggravating circumstances and the recommendation of death.


What kind of criminal case in Florida is NOT a death penalty case?

The state of Florida cannot seek the death penalty in every case.  The defendant has to be charged with first degree murder.  Even if the defendant is charged and convicted of raping a child and beating him senseless, that offense is not punishable by death.  At the time of the offense, if the defendant was under 18 years old, the state cannot seek the death penalty.  Also, the death penalty cannot be sought if the defendant is charged with felony murder and was a minor participant in the underlying felony and did not do any act that would have shown intent to bring about or condone a killing.  

Florida department of corrections cannot execute anyone who is mentally retarded.  That is a clear violation of the 8th amendment prohibition against cruel and unusual punishment.  

What makes a first degree murder case in Florida a death penalty case?

The state can seek the death penalty in a first degree murder case where there is evidence of at least one aggravating circumstance.  As of 2013, there are sixteen aggravating circumstances in Florida.  They are the only bases for the state to seek the death penalty.  Aggravating circumstances are statutory reasons the state attorney uses to try to justify imposing the death penalty.  Even if there is a finding of an aggravating circumstance, that does not, in and of itself, support imposition of the death penalty.  Mitigation must be taken into account.  The issue is whether the mitigation outweighs the aggravating circumstances.  

What are the aggravators in Florida that can allow the lawyers at the state attorney's office to seek the death penalty?

Committed while under sentence of imprisonment or while on probation or community control, note a withhold of adjudication is not a conviction for this aggravator.

Previously convicted of another capital felony or a felony involving the use or threat of violence, called the “prior violent felony” aggravator.

Knowingly created a great risk of death to many persons, called the “risk to many” aggravator.

Committed during the commission of or attempt to commit, or flight after any forcible felony.

Committed to avoid or prevent a lawful arrest or effecting an escape from custody.  Death penalty lawyers call this the “witness elimination” circumstance.  

Committed for pecuniary gain.  There may be an argument for the defendant that there is improper doubling of aggravators.  This is especially true if the defendant is charged with felony murder based on a robbery or burglary charge.

Committed to disrupt or hinder the lawful exercise of governmental function or enforcement of laws.

Especially heinous, atrocious or cruel.  Virtually every murder is heinous, atrocious or cruel.  The key word is “especially”.   

Cold, calculated and premeditated with no pretense of moral or legal justification.

Victim was a law enforcement officer engaged in his official duty.

Governmental official aggravator – the victim is an elected or appointed public official engaged in his official duties and the killing was motivated by that official capacity.

Victim is under the age of 12.  

Victim was particularly vulnerable due to advanced age or disability or the defendant had a familial or custodial authority over the victim.

Killing was committed by a street gang member.

Killing was committed by a designated sexual predator, currently or previously.  This is a fairly recent aggravator, enacted in 2005.

Protective injunction in effect at the time of the killing.  This is also a fairly recent aggravator, effective October 1, 2010.  

Who decides whether aggravating or mitigating circumstances warrant the death penalty for first degree murder in Florida?

In Florida, the jury is instructed on aggravating and mitigating circumstances and how to weigh them.  They may recommend death or life without the possibility of parole.  However, the Florida trial judge makes the final decision after the jury makes their recommendation.  

How do criminal defense lawyers fight for their first degree murder clients who are facing the death penalty?

Pretrial motions should be filed in every first degree murder case. 

They may relate to violations of 4th, 5th, 6th, 8th and 14th amendments to the United States constitution.  For instance, if there was a bad search and or bad seizure, that would fall under the 4th amendment.  The 5th amendment issues include the right to remain silent and violations of Miranda.  6th amendment issues include a violation of the right to counsel.  8th amendment bars cruel and unusual punishment and the 14th amendment includes due process claims, the right to notice and a hearing.  Also, motions in limine should be filed in every case.  A motion in limine may ask the trial judge to keep out certain information that does not rise to a constitutional level, but should not come into evidence based on the Florida evidence code or a statute.  A motion in limine may also ask the judge to admit certain evidence.

Criminal defense lawyers fight for their first degree murder clients at trial.  

Preparation for a first degree murder case typically takes one to two years.  During that time, a criminal lawyer may have to conduct over one hundred depositions, consult, hire and depose experts (ballistics, mental health, shaken baby syndrome, post traumatic stress disorder or PTSD, DNA, fingerprint experts, neuropsychologists), have investigators do independent work interviewing witnesses, taking photos, taking video, conducting background checks on all witnesses, listed and potential, etc.  If the client has the money, a focus group should be conducted in every case where the money is available.  A focus group is like a mock trial, where potential jurors tell you what they are thinking about the evidence, witnesses, videos, etc.  I have used them and the information learned from them has been invaluable.  

First degree murder lawyers file motions relating to constitutional challenges to aggravating circumstances.  

To preserve the issues for every appeal – direct, collateral, federal habeas  -the 1st degree murder lawyer has to federalize the issues.  Specifically, the murder attorney should list fourth amendment, fifth amendment, sixth amendment, eighth amendment, fourteenth amendment citations in the motions along with any state court arguments.  Ongoing challenges include moving to dismiss the indictment for failure to list aggravators, lack of unanimity for finding an aggravator, lack of unanimity for recommending death, and the judge determining the sentence, not the jury.  

First degree murder lawyers file motions relating to aggravating circumstances.  

A 1st degree murder attorney may file a motion to prevent the application of all aggravating circumstances.   

First degree murder lawyers mitigate the aggravators and prove mitigators

A criminal client's prior criminal convictions may be mitigated by the facts and circumstances surrounding the crime or crimes.  The client's life story is important.  For instance, was there a brain injury or TBI when the client was a kid?  

PET scans show brain injuries that CT scans and MRI scans simply don't show.  PET stands for positron emission tomography.  It shows regional brain function like frontal lobe activity.  A DTI scan (diffusion tensor imaging) shows white matter tract integrity, like corpus callosum.  It shows wires which connect the brain together.  They are sensitive to damage and are like cables.  QV or quantitative volumetrics shows the volume of a region like amygdala and ventricles.  We are in the infancy stage of learning about the brain, injuries to the brain and how it affects behavior.  Charlie Rose has a fascinating brain series on his PBS show.  See to view past episodes.

Is the client borderline retarded?  What is his IQ?  There are other factors like what was his childhood like?  His family, education, prior noted mental health issues, etc.  Mitigating the aggravators may turn a death sentence to a life sentence.

What are mitigating circumstances for a death penalty case in Florida?

Unlike aggravating circumstances, mitigating circumstances are only limited by the criminal defense lawyer's imagination.  Mitigators can be just about anything.  A mitigating circumstance is anything shown by believable evidence that in fairness or in the totality of the defendant's life or character, extenuates or reduces the degree of moral culpability for the crime committed or that reasonably serves as a basis for imposing a sentence less than death.

Who has to prove a mitigating circumstance and what is the burden of proof?

The defendant through his 1st degree murder lawyer have to prove the mitigating circumstance by the greater weight of the evidence.  Note this is considerably less than the burden of proof typically associated with criminal cases, beyond a reasonable doubt.  The greater weight of the evidence means that it is more likely than not.  

Although mitigating circumstances are not limited, there are Florida statutory mitigating circumstances:

No significant history of prior criminal activity.

Capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.

Victim was a participant or consented to the act.

Defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.

Duress/substantial domination – The defendant acted under extreme duress or under the substantial domination of another person.

Defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.  

Defendant's age at the time of the crime.

The existence of any other factors in the defendant's background, life or the circumstances of the offense that would mitigate against imposition of the death penalty.  This last statutory mitigator is the catch all.  A special jury instruction should be requested by the first degree murder lawyer for the jury to specifically consider the mitigating factors.  


-DUI manslaughter

Florida DUI manslaughter lawyer, West Palm Beach, FL

Defenses – How can I win a DUI manslaughter charge in Florida?

Can the government prove that you were driving or in actual physical control  of a vehicle?

If the government cannot prove you are driving or an actual physical control of a vehicle, you can be found not guilty of DUI manslaughter.  Sometimes clients say – I spoke with the police. I did so on scene. I told them I was driving. They never saw me driving or saw me behind the wheel.  If your statements are the only evidence of you driving or in actual physical control of a vehicle, that may be a valid defense to DUI manslaughter based on Florida's accident report privilege.  

Were Miranda rights read to you?

Police do not have to read you your Miranda rights.  Ever.  This is perhaps one of the most misunderstood areas in criminal law today.   However, if they don't read you your Miranda rights, your statements may not be admissible in evidence.   For purposes of the accident report privilege, any statements you make during the accident portion of the investigation are not admissible in any civil or criminal proceeding.   That means any questions that you answered before Miranda was read, understood and knowingly intelligently and voluntarily waived by you will not be admissible at trial. If the government only has evidence of your driving or actual physical control of the vehicle from your own statements, that may be a valid defense to DUI manslaughter charges in Florida.

Will the blood alcohol level be admissible at trial?  Can the blood results be thrown out before trial?

A motion to suppress the blood alcohol results should be filed in every single DUI manslaughter case where there is an issue.  If the motion to suppress the blood alcohol results is granted, the blood results are thrown out. If the blood results are thrown out, it's very difficult for the government to go forward on a DUI manslaughter charge.  Sometimes, the government will offer a misdemeanor simple DUI or even drop all charges if the blood results are suppressed.  The fancy Latin word for dropping the case is“nolle prosse”.  If the defendant is successful on the motion to suppress the blood results, it usually means he doesn't have to go to trial.  If the defendant  does not have to go to trial, he doesn't have to spend several thousand dollars on expert witnesses for retrograde extrapolation and accident reconstruction.

What was your blood alcohol or blood drug level at the time of the accident?   

Note that I did not say what was your breath alcohol level at the time of the accident?  In almost all DUI manslaughter cases, blood is taken. It's very rare that you see a breath alcohol level on a DUI manslaughter case in Florida.   Why is that?  Because if someone dies in a car accident, the police can forcibly take your blood if they suspect you are impaired by alcohol and/or drugs.

Determining what your blood alcohol level or blood drug level was at the time of the accident may require retrograde extrapolation.  The defendant may need to hire an expert to say what the blood-alcohol level was at the time of the accident. The blood is always drawn later.   As time passes, the blood alcohol level may be going up or going down. One of the factors is when the defendant had the last drink.

Did the defendant cause or contribute to the accident?

Looking at and analyzing the accident scene is of the utmost importance.   Looking at an analyzing the vehicles in the accident is also important.  If causation is an issue, the defense may need to hire an accident reconstruction expert.   The government will have expert witnesses to prosecute the defendant.   The defense will have to prepare longer and harder than the State.  Also, the defense needs to have better experts than the state to have a fighting chance to win the DUI manslaughter case.

Causation – what if I didn't cause or contribute to the accident that killed the victim?

The defendant's operation the vehicle does not need to be the only cause of the DUI manslaughter. If there's any deviation of a lack of care on the part of a driver under the influence to which the fatal accident can be attributed to, that can be enough to convict.  That last statement comes directly from the Florida Supreme Court case of Magaw v. State.   The government must prove that the defendant's operation of the vehicle caused or contributed to the cause of the victim's death.  That is not to say the defense cannot present evidence to showing someone or something else caused the death.  Also, the defense may request what's called an “intervening cause” jury instruction.  As discussed above, the defense may, through lay witnesses, expert witnesses, photographs, video, investigation, show that someone else or something else caused the accident and the defendant did not contribute to the accident in anyway.  

What does the government have to prove to get a DUI manslaughter conviction in Florida?

The State must prove the defendant drove or was in actual physical control of a vehicle, and while driving or in actual physical control of the vehicle, the defendant was under the influence of alcohol and/or drugs to the extent that his normal faculties were impaired or the defendant had a blood or breath alcohol level of 0.08 or higher. Last, as a result, the defendant caused or contributed to the cause of the death of the victim.

How much prison time is a defendant facing for DUI manslaughter?

DUI manslaughter charges are the most serious DUI charges. Generally, if convicted, the defendant is facing up to 15 years in prison. Sometimes a person may fail to render aid at the scene as required by Florida law. If the defendant knew or should have known that there was an accident but they fail to give information or render aid, it's a first-degree felony. The maximum penalty for a first degree felony is 30 years in prison.  

Additionally, there is a minimum mandatory prison sentence of four years upon conviction for DUI manslaughter in Florida.  Typically, prison sentences far exceed the four year minimum mandatory. That is, in part, because of the criminal punishment code sentencing guidelines system we have in Florida.  There are mandatory victim injury points which adds to the score sheet. There's also a mandatory permanent drivers license revocation upon conviction for DUI manslaughter in Florida.

Depending on the defendant's prior record, the guideline range for DUI manslaughter in Florida will typically be somewhere in the neighborhood of 10 to 13 years Florida state prison.

What about lesser included offenses?

DUI with serious bodily injury and regular simple DUI are what's called necessarily lesser included offenses.  The judge must instruct the jury on the elements of these lessers.  Vehicular homicide is not a necessarily included lesser.  However, it is a lesser included offense if the information or indictment alleges that the defendant operated a vehicle in a reckless manner likely to cause death or great bodily injury to another.  Generally, if a defendant is convicted of a lesser included offense, he or she would not be facing as much prison time. 

DUI manslaughter charges are difficult cases

There are no winners in DUI manslaughter cases.   Often times, the defendant is someone with no prior record. Sometimes, they may be very young. They're facing many years in prison. Whatever prison time they end up doing, the families of the victims still grieve. Their loved one(s) never comes back.   The families of the defendant grieve too.  Their loved one may go away to prison for 15 years or longer if he failed to render aid.

Other consequences of a DUI manslaughter conviction in Florida

Plan on getting sued for wrongful death if you're arrested and charged with DUI manslaughter in Florida.  Being a convicted felon, you have no right to own or possess a firearm, vote, or run for public office, among other things. It will likely affect your reputation and career opportunities for the rest of your life.  A felony conviction may also affect your family.

How long until they arrest me for DUI manslaughter in Florida?

It takes time for the blood results to come back.  You probably spent the night at the hospital and were released.  Not so fast.  Police may not get the blood-alcohol and/or blood-drug results for weeks or even months.  The police also have to file paperwork with a judge before they get your medical records.  The defendant has a right to notice and a hearing regarding the seizure of his medical records.  If the police don't follow proper procedure in getting your medical records, that may be another possible defense to get the blood-alcohol or blood-drug results thrown out.  In general, it may take days, weeks or even months before you get arrested in Florida for DUI manslaughter charges.  You should lawyer up before you get arrested.  

For more info about DUI manslaughter charges in Florida, you can order my book “Avoiding or Surviving a Florida DUI” on





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