Maybe. I don’t know and I need more information. Not the answer most people want to hear. Here is why I say that. I routinely look for these types of things but Florida rule of criminal procedure 3.992 sub paragraph b specifies that problems such as ADHD are justifiable grounds for a reduction or what we call a mitigated sentence. However, most lawyers do not spend enough time studying psychiatry and psychology in my view. As a result, this one of 14 statutorily recognized departure grounds is not used nearly as often as it should be. When I run into a case that has serious consequences and we need a judge to know about that person’s mental health condition, instead of having a battle of experts where one expert says yes he has a medical condition and your son’s ADHD is a medical condition.
The Second Expert
You then have a second expert for the state who says Oh no! That’s not a problem at all. This person is perfectly fine. Your son doesn’t have any problems except bad character. This battle of the experts can be completely eliminated by using brain imaging and brain imaging should be mainstream within the next few years. I consider it mainstream now but then my firm was one of the first firms in the country to use SPECT brain imaging as part of a defense strategy that was profiled in Kevin Davis’ book The Brain Defense that came out in February 2017. Since I’ve done this since 2005 I know that this is the most effective way to have a judge take it into consideration. In fact, it is so powerful that I often use it in negotiations with the office of the state attorney directly. We have a lot of cases where people have brain problems and were able to establish the departure grounds before it ever got in front of a judge.
After looking at the evidence in 60% to 70% of the cases in which I used this, we were able to create a much more favorable outcome, probation instead of jail or prison for example or in many cases we can negotiate for a dismissal instead of harsh punishment because that individual is going through appropriate treatment. Now there are a lot of mines that can be stepped on in the criminal justice system as someone is going through the life of a case. For example ADHD is recognized as a valid ground for departure, at the same time, something like alcohol abuse disorder or other substance abuse is not considered a proper reason for a mitigated sentence. A lot of lawyers just throw their hands up in the air if their client was drinking or under the influence of drugs at the time of the incident whereas when we use brain imaging, we find things that none of us could expect because we weren’t looking for it.
So even though that person would fit under the exclusion for drugs and alcohol under rule 3.992(b) Departure ground for specialized treatment, when we do the brain imaging, we find other things that justify a downward departure. If your son has ADHD, he may have other problems in his brain. If he has been switched on medications or sometimes he does better than other times and then their case is inconsistent, these are indicators that brain imaging would be very important to the defense of the case. I can’t speak for my colleagues but I always screen for this and this is one of the best questions I think I’ve been asked.
Been Charged With Possession Of Marijuana And Paraphernalia In Florida On Vacation. Can I Get Adjudication Withheld? I Read Online That I Won’t Have A Conviction On My Record. Is This True?
Yes and no. Unfortunately this is one of the most misleading aspects of Florida criminal law. It’s when people are told that adjudication withheld means they won’t have a conviction on their record. Let me explain. First, it is absolutely true that if someone has an adjudication withheld they will not have a record of conviction with the clerk of the court. That is very misleading. The reason it is misleading is because anybody doing a criminal record search on someone who is applying for graduate school, a job, a mortgage or whatever, they are going to show up as having criminal history with adjudication withheld. The problem you run into with this possession of marijuana and paraphernalia charge is that it’s going to show up to a prospective employer as someone with a drug and alcohol problem even if that is not true. The best way to handle that is to avoid adjudication withheld.
You want to avoid it for another reason as well, if someone gets adjudication withheld, their criminal record on a first offense cannot be directly expunged. Instead it has to go through a record sealing process that is 10 years long and each year the legislature meets and changes the law. Someone could have adjudication withheld and go for 9 years thinking that they are going to be able to finally expunge their record in the 10th year only to find out that the legislature has added that particular charge, possession of marijuana under 20 grams and possession of paraphernalia to the list of offenses that cannot be expunged for any reason. So what do you do in that scenario?
What Should You Do?
Well, first you may have defenses that you are not aware of, only a killed criminal defense attorney is going to be able to tell you if that is true. Second, think of every case as an upside down capital letter Y with trial on one side and settlement on the other. When dealing with cases that cannot be won at trial where someone is a first offender, I don’t look towards something that is terribly burdensome such as drug court for that individual. Drug court requires a great deal of time investment. In phase 1 there is a court appearance every week, there is a counseling requirement that someone go to Narcotics Anonymous for at least 4 times a week and on top of that they have to go to counseling 4 times a week. So you factor in 8 types of counseling per week plus a court appearance every week for the first phase and then you start adding in the fact that drug court is going to last 12 to 14 months, you start to realize that it’s so burdensome that it’s a miracle anybody gets through it without violating.
So what is the better path? The better path is for the lawyer to focus on a negotiated dismissal. A negotiated dismissal can take a wide variety of forms and I can do a 4 day seminar on all the different types but to make it simple, the goal of the negotiated dismissal for the first offender is to create a dismissal so the charge can be expunged as soon as the case was closed by using leverage. What is leverage? When we set a case for trial, even a bad case, we have leverage. So what I normally do and is my practice is I enter a plea of not guilty on behalf of my client, go through what we call the discovery process so that you can examine the evidence and look for defenses that are not obvious to the layperson and at the appropriate time we open settlement negotiations and try to humanize our client in the eyes of the prosecutor so the prosecutor doesn’t see them as a case number.
No one that this firm has ever represented is merely a case number. They are a human being who is alive and has goals, dreams, hopes and desires. So we want to make all of those hopes dreams and desires come true and one of the ways to do that is to make sure that someone on a first offense for a marijuana charge does not have inexpungable criminal history that causes a lifetime of earnings loss.
Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
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