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Michael Adam Haber
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Michael Haber’s Answers

7,022 total


  • Does state law trump hospital policies regarding legal blood draw in a DUI manslaughter suspect?

    Last year I obtained a blood sample on a patient who was the driver in a car crash that resulted in a fatality on scene. (I'm an RN). The patient verbally opposed the blood draw, but the highway patrol showed me a search warrant signed by a judg...

    Michael’s Answer

    The patient can oppose / object all s/he wants. If s/he was involved in a motor vehicle accident and either serious bodily injury or death occurred then a blood draw is mandatory and can be compelled against the driver's wishes.

    I cannot tell you what your employer will or will not do (that is an employment law and not a DUI or a criminal defense question) but I can suggest 2 things if you are concerned: 1) if you have an employment contract then look to that document and / or 2) contact an employment lawyer.

    Without looking at your subpoena I cannot be sure but if I were a betting man then I'd guess that you are being called into verify the protocol that you used when drawing the blood sample. There are strict rules (for "legal blood") and your hospital policies and protocols may or may not comport with the same. My guess is that you have nothing to fear or worry about and are simply being called to explain what you did, how you did it and why you did it. Just tell the truth and let the cards fall where they may. Either way you have no stake in the underlying criminal case.

    As for your employer I see no issue but then again what do I know... I'm a mere criminal defense litigator and not some fancy labor lawyer...

    I hope that I have been helpful in answering your question.

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  • Tobacco or nicotine testing in Pre Trail Intervention (PTI)

    Hi, I should be on pre trial intervention in Florida very soon. I was wondering if there is any chance of me being tested for nicotine or tobacco? I was also wondering if cigars could give me a false positive for any other type of drug? I a...

    Michael’s Answer

    I've never heard of that being a condition of PTI but if you have a tobacco related offense then it's not impossible for the State to make it a condition.

    Diversion is a program which is designed to make you think twice about future criminality by way of making you jump through a series of proverbial hoops during a period of supervision, successful completion of which results in a dismissal. The program is owned and operated by the State Attorney's Office and they have absolute and unequivocal discretion as to whether to admit you, keep you or "graduate" you from their program.

    Frankly, if you are a minor then it is unlawful for you to use or possess tobacco, doing so constitutes a crime and committing a crime while you are on PTIis a sure way to a) get bounced out and prosecuted on both your underlying case and your new substantive violation.

    How's about this for an idea.... stay away from nicotine until you hit 21. In fact, you'd be well advised to avoid tobacco and nicotine altogether. It's pure poison.

    I hope that I have been helpful in answering your question.

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  • My friend was charged with simple stalking/resisting arrest without violence. The state wants 1 yr. Can he get charges dropped?

    My friend has been charged with simple stalking and resisting arrest without violence. The state of FL wants him to do a year in jail. His pd told him he can either take the plea deal, do an open plea, or go to trial. He has no other adult charges...

    Michael’s Answer

    Charges do not magically disappear. They only go away with the assistance of a skilled and experienced criminal defense lawyer who tirelessly efforts on your behalf.

    My advise: Your friend needs to refocus from the internet to the real world by locating and hiring an experienced Bradenton area criminal defense lawyer to assist in first determining whether or not viable defenses to the charges, affirmative or otherwise, exist, or whether there may be factual, legal, procedural or substantive mechanisms by which to attack and beat the charges. If not then, depending upon the unique facts and circumstances of both your friend and the case then diversion may be possible or an aggressive attempt can be made to negotiate the most reasonable plea possible, mitigation can be explored or the case can be geared up for as meaningful and effective a defense as is possible.

    Either way, and again: Charges do not magically disappear. They only go away with the assistance of a skilled and experienced criminal defense lawyer who tirelessly efforts on your friend's behalf.

    I hope that I have been helpful in answering your question.

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  • My friend was charged with simple stalking/resisting arrest without violence. The state wants 1 yr. Can he get charges dropped?

    My friend has been charged with simple stalking and resisting arrest without violence. The state of FL wants him to do a year in jail. His pd told him he can either take the plea deal, do an open plea, or go to trial. He has no other adult charges...

    Michael’s Answer

    Charges do not magically disappear. They only go away with the assistance of a skilled and experienced criminal defense lawyer who tirelessly efforts on your behalf.

    My advise: Your friend needs to refocus from the internet to the real world by locating and hiring an experienced Bradenton area criminal defense lawyer to assist in first determining whether or not viable defenses to the charges, affirmative or otherwise, exist, or whether there may be factual, legal, procedural or substantive mechanisms by which to attack and beat the charges. If not then, depending upon the unique facts and circumstances of both your friend and the case then diversion may be possible or an aggressive attempt can be made to negotiate the most reasonable plea possible, mitigation can be explored or the case can be geared up for as meaningful and effective a defense as is possible.

    Either way, and again: Charges do not magically disappear. They only go away with the assistance of a skilled and experienced criminal defense lawyer who tirelessly efforts on your friend's behalf.

    I hope that I have been helpful in answering your question.

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  • Are the 12 months Felony PTI Diversion program a mandatory duration or are there exceptions.

    I am innocent. I did not plea guilty, I was advised diversion was the best option to avoid a potential sentance + record. I was at the wrong place at the wrong time and got mixed with the wrong person and in result of that I got charged for someon...

    Michael’s Answer

    Judges do not / have no power to amend PTI conditions, and not only will the SAO generally not renegotiate the terms or conditions of PTI, but they cannot be compelled to do so by the Court. Why? Because diversion (PTI / PTD) is a program which is 100% owned and operated by the State Attorney's Office and they have absolute and unequivocal discretion as to whether to admit you, keep you or "graduate" you from their program.

    You are free to make your case and try to get your ASA to agree to make an exception for you but I would not count on it as they are extremely unlikely to do so. They generally adopt that attitude that they are giving you a "gift" by permitting you to enroll, complete and "earn" a dismissal, and they alsmost always adopt a "zero tolerance" policy, being very careful not to set a precedent of making exceptions, which would open the door for other folks to seek a variance.

    Still, I don't want to discourage you. Be prepared for a resounding "NO" but don't be afraid to ask (for if you don't ask then it's 100% guaranteed not to happen). If you do ask then I suggest that you follow the "Rule of the 3 "P"'s" - be patient, pleasant and polite.

    I hope that I have been helpful in answering your question.

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  • Is a picture of a cigar cigarette evidence that im smoking pot

    My kids mom says she has a picture of me with a cigar she tryingg to say that the cigar is a marijuana cigarette is that picture evidence to convince the courts that my child is indanger HOW CAN I PROVE SHE IS LIEING ABOUT ME DOING DRUGS

    Michael’s Answer

    • Selected as best answer

    Yes. It is evidence. Whether it actually proves anything is another story.

    You cannot necessarily disprove anything that anyone says, but then again (in this case anyhow) they can't necessarily prove their point either.

    This sounds to me like a she said / she said contest.

    She is free to lie and you are free to call her a liar.

    Respectfully, if I were you I would spend more time worry about yourself and less about "her". Let her say what she wants. So long as you are doing the right thing you should be just fine.

    I hope that I have been helpful in answering your question.

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  • If a no contact order is a condition of my bond, can I still be present at my lawyer's deposition of the alleged victim?

    I was wondering if, since a no contact order is a condition of my bond, I was still entitled to be present at my lawyer's deposition of the alleged victim. She accused me of a second degree felony, and I don't think she knows that I could face 15 ...

    Michael’s Answer

    Unlike in civil cases, where both parties are always entitled to appear at the other's depositions, in criminal cases Rule 3.220(h)(7) prohibits a Defendant from attending depositions which are scheduled by her / his lawyer and are taken of State witnesses, with an exception for where both sides agree to permit the Defendant to be present or where the Judge finds "good cause" for that to happen.

    It is rare that the Court will permit a criminal Defendant to attend a deposition but there are circumstances where it does happen. For example, in non-violent "pape-cases" where a Defendant is an "expert" in the field and the lawyer must depose a skilled State's witness (like a forensic accountant or a financial investigator) then the Defendant may be permitted to attend as a) the Defendant's presence will assist his lawyer in conducting a meaningful deposition and b) there is no intimidating effect on the witness by the Defendant's presence (compare this example to an assault or battery or a domestic violence case where the alleged victim is being deposed).

    Still, if you are a Defendant then you will almost certainly not be permitted to attend your own depositions and you should spend as much time as is necessary with your lawyer, preparing her or him to take a meaningful and effective deposition.

    I hope that I have been helpful in answering your question.

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  • Jail Credit Motion

    Looking for a good lawyer in Vero Beach to file a jail credit motion for my fiance who is in Prison. Any recommendations?

    Michael’s Answer

    We (participating Avvo lawyers) are not permitted to solicit business for either ourselves or for other lawyers.

    I can, however, offer you the following 2 suggestions:

    1) Use the "Find a Lawyer" feature on Avvo to locate lawyers in a given geographical area and /or

    2) Go to the Florida Association of Criminal Defense Lawyers homepage (www.facdl.org) and use their Locate a Lawyer feature.

    More I cannot offer you along these lines and on this forum.

    Still, I hope that I have been helpful in answering your question.

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  • State had no witnesses at preliminary hearing.

    Friend was arrested at my house on a FTA, he ran in my room and officer saw paraphernalia, I refused the search and they obtained search warrant while I was detained in my house, them never letting me out of sight. Search warrant was issued for no...

    Michael’s Answer

    Were you arraigned?

    You case is likely still alive and well and you should be represented.

    Just because the cops secured a warrant doesn't mean that the warrant will support the evidence seized.

    The best way for you to get competent advise is going to be to consult with an experienced and local criminal defense lawyer who can follow-up on your information with questions of her/his own, as well as review the warrant, affidavit in support of the warrant and the return, as well as and whatever evidence that you may be able to provide, and then offer an informed opinion.

    My advise: Get offline and into a skilled and experienced 813 area criminal defense lawyer's office. Use the "Find a Lawyer" feature on AVVO to locate proximate lawyers, make an appointment, show up on time, bring whatever evidence, documents or witnesses that you may have, engage in a meaningful face-to-face consultation and get yourself some advise which is legally sound and has been custom tailored as possible to meet your specific reasonable needs in your unique case.

    I hope that I have been helpful in answering your question.

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  • If i get clear of my charges does everything in my personal record including the arrest and jail time be gone??

    I was falsely accused even though the investigation show i didnt do anything. But i was still arrested and when my lawyer got the evidence it showed i didnt do anything, it doesnt make sense why i was arrested. So im worried that this will follow...

    Michael’s Answer

    You are correct to be worried, because to some extent the arrest will follow you forever.

    Sealing is available in a case where you received a withhold of adjudication, and expunction is available in a case which was dismissed, nolle pros'd, no actioned or where you were found to have been not guilty. In Florida you can only seal or expunge one eligible (non-disqualified) offense in your lifetime.

    If you look at the following website you will learn everything you ever wanted to know about the sealing / expunction process:

    http://www.fdle.state.fl.us/content/getdoc/c83dd888-ef7a-448e-9a96-ba69fc4181f7/Seal-and-Expunge-Home.aspx

    I also strongly encourage you to both read my AVVO Legal Guide on Sealing and Expunging Records in FL and watch my YouTube Webisode on Sealing / Expnging records as they both contain valuable information supplemental to this answer and should prove to be helpful to you. For your convenience the both links follow and are attached at the bottom of this answer:

    Please see: http://www.avvo.com/legal-guides/ugc/sealing-and-expunging-records-in-fl-a-legal-guide-by-michael-a-haber-esq-miami-criminal-lawyer?published=true

    Please see: https://youtu.be/XtndMiwCP84

    The procedure is both quite detailed and somewhat painstaking but is also far from being rocket science. You can attempt to navigate it yourself (FDLE has tried to simplify it - again I refer you to the website above) but, assuming your eligibility, any criminal defense lawyer (anywhere in Florida - this can be done remotely and does not necessarily require a local attorney, although a local attorney may or may not be less expensive) will be able to accomplish the task with greater ease and likely in a shorter time period.

    That said I suspect that it doesn't much matter where you were arrested, what you were arrested for, what the final disposition was or whether or not you sealed / expunged the record. This is 2015 and we are forehead deep into the internet age, where nothing is private, sacred or truly hidden from public scrutiny.

    Sadly, sealing (and expunging) only applies to certain (not even to all) government agencies (for example if fingerprints, mugshots, DNA or anything else - including crime statistics bearing your name or identifying information - were uplaoded to the FBI database then a local Order of Expunction would not effect the Feds) and that it has no effect whatsoever on private (er, extortionist) enterprise, who compile and maintain arrest information and then demand that you pay them off to remove your information from their database and public access. Worse still, after you "buy back your information", then you can count on there being another private company lurking, somewhere, sometime, somehow, just waiting for you to pay them off as well. Its a seemingly never-ending vicious cycle.

    For better or for worse you are probably best advised to take the wind out of the sails by admitting your past issues / indiscretions to your present (or potential) employer, lender, landlord, etcetera, rather than waiting for them to find out on their own.

    I hope that I have been helpful in answering your question.

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