Monday, April 29, 2013

Can I Plead Not Guilty Because of Being High?

Substance abuse and how it may function in a criminal case in Florida


George was hanging around with his friends and got a little loaded.  Actually, George was completely out of it.  He barely remembers his friends suggesting that they break into the bike shop and steal a couple of $5000 bikes.  But the cameras have his picture, there’s no doubt about it, and now he’s busted.  He thinks he should be able to use the excuse of being intoxicated, and therefore be acquitted for not having the necessary intent to make his conduct a crime.

Unfortunately for George, the general rule in Florida is that you cannot use the defense of voluntary intoxication, more specifically, that you went out and got high on a certain substance before committing a crime, and therefore you are not guilty.  That's just never going to work.

Must Show a Pattern of Substance Abuse Not Previously Treated



On the other hand, a pattern of substance abuse in a person's history is another issue. If you have been charged with criminal and/or drug offenses, been convicted, and even been incarcerated, but you have never received treatment for your problem in the past, you can actually use Florida Statute 948 to potentially reduce your sentence or obtain an alternative sentence.

Florida Statute Section 948 allows substance abusers who have been in trouble with the law before but have never received treatment for their problem, to obtain that treatment over the course of a term of probationary supervision.  This allows an eligible defendant to take part in a drug program as a special condition of probation, rather than serve a prison sentence that the state would otherwise call for.  This is decided on a case by case basis, and a motion would have to be filed and argued to be considered by the court.

Perhaps most importantly, this can't be a frivolous motion, because typically if a motion for alternative sentence is filed, a person has to plea open to the court.  Well what does that mean?

There are actually three things that can happen in a criminal case in terms of a resolution if the case is not otherwise subject to dismissal.
    1.    A trial by jury or a bench trial (Judge).
    2.    A negotiated resolution with the state, where you are accepting the State’s offer.
    3.    An open plea to the court.



Never Consider an Open Plea to the Court Without the Opinion of a Criminal Attorney


An open plea to the court basically says, “I don't want to go to trial, but I don't want what the state's offering either. So I'm asking you, judge, to sentence me as you see fit.”  Obviously, a person does this under proper conditions and advice from an attorney, because they are seeking to obtain a lesser sentence than the state is willing to offer.

In order to enter an open plea before the court, however, a judge is going to ask you and make sure you understand that you could be sentenced to the maximum sentence allowable by law.  The sitting judge will often say that he or she does not know what the sentence will be yet.  Only after hearing all the evidence and mitigating circumstances from your attorney will they make a determination of whether you qualify, and how they will ultimately sentence you.

A person that wants to obtain an alternative sentence must show that there is a pattern of substance abuse, and that they are amenable to treatment.   A Defendant must also have a tolerance for risk, understanding that he or she could go before the court and possibly receive a sentence far worse than what the state is offering, even the maximum sentence, in order to possibly receive leniency from the court.

Now obviously a defendant ideally make this decision after long talks with an attorney who is experienced in handling drug-related offenses in order to determine if they are a good candidate for this approach   Although the resolution of a drug program rather than prison is indeed advantageous, a person could in fact end up with more prison than the state was even recommending.  




At the Law Offices of Eric A. Kay, P.A. we are experienced in matters dealing with open pleas and related matters.  If you have been arrested for any crime, or you believe you are about to be arrested, detained, or questioned, call our offices immediately to discuss your rights. 
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