How to Get a Possession Charge Dropped

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Florida Possession Charge Dropped

Any person convicted of illegal possession of hydrocodone will also have their driver’s license revoked for one year.

OXYCODONE POSSESSION

Oxycodone is the generic name for Percocet, Oxycontin, and Tylox. Possession of up to seven grams of oxycodone without a valid prescription is a third-degree felony that is punishable by up to five years in prison, five years of probation, or a fine of up to $5,000.

Possession of more than seven grams without a valid prescription is a trafficking offense.

A conviction of illegal oxycodone possession will also result in a driver’s license suspension for one year.

SYNTHETIC DRUG POSSESSION

Synthetic drugs have been all the rage in the last couple of years. Think of bath salts, spice, or K2.

Possession of less than three grams of synthetic drugs is a first-degree misdemeanor. A conviction can lead to up to one year in jail, one year of probation, or a fine of up to $1,000.

Possession of more than three grams of synthetic drugs is a third-degree felony. That means the judge can impose up to five years in prison, five years of probation, or a $5,000 fine.

A conviction for possession of synthetic drugs will also result in a one-year driver’s license revocation.

XANAX (ALPRAZOLAM) POSSESSION

Illegal possession of Xanax, or alprazolam, is a third-degree felony in Florida.

Possession of Xanax without a prescription can get a person up to five years in prison, five years of probation, and a $5,000 fine.

Any person convicted of possession of Xanax will also have their driver’s license suspended for one year.

Defenses To Drug Possession Charges In Florida

INSUFFICIENT EVIDENCE

In Florida, the most common defense to drug possession charges is the insufficient evidence defense.

Simply, each charge has elements that make up the crime that the state must prove to get a conviction.

The state must prove each of these elements beyond a reasonable doubt. Beyond a reasonable doubt is the highest standard in our legal system.

And if the state can’t prove any one of the elements of a charge, then the state can’t prove the entire charge.

CONSTRUCTIVE POSSESSION

Constructive possession is a defense when cocaine or another drug is found in a place to which more than one person had access.

Construct possession is a helpful defense, because it requires the state to additionally prove that the accused had knowledge of the presence of the drugs and the ability to exercise and maintain control over the drugs. 

These are additional elements that need to be proven beyond a reasonable doubt. And as you can imagine, without statements by a witness or the accused, it can be tough to prove knowledge of the presence of drugs.

For example, imagine you’re stopped while driving a friend’s car and police find cocaine in the trunk of the vehicle. In this scenario, the police would be unable to convict you unless they had some sort of proof or evidence that you knew there was cocaine in the trunk of the car.

ILLEGAL SEARCH AND SEIZURE

A strong defense that can lead to charges being dismissed is the illegal search and seizure defense.

Our Constitution requires that police officers act reasonably when they search or seize a citizen. If a police officer is violating constitutional rights by searching or seizing a citizen unreasonably, then we need to do something about that. And the best thing to do about it? We can ask the judge to throw out any evidence that a police officer secured through violating someone’s constitutional rights. The end result is a dismissal of the charge.

For example, consider someone who is driving down the road with a big bag of marijuana in the backseat. The accused is driving a vehicle that the police officer thinks just looks like a drug dealer’s vehicle. So the officer pulls the accused over for no legal reason.

The police officer immediately smells the marijuana when he comes up to the driver’s side window, orders the accused out of the car, arrests him, and then the driver is charged with possession of marijuana.

A good lawyer will use the search and seizure defense to get the case dismissed. If the officer didn’t have any legitimate reason for pulling over the accused, then the officer acted unlawfully and the evidence of the marijuana, no matter how much is in the backseat of the car, should be tossed out. If the evidence of the marijuana is tossed out, then there’s no way that the state can prove its charge.

LACK OF KNOWLEDGE

There is an affirmative defense to the charge of possession of drugs if the accused can prove that he or she did not know that the substance in their possession was a drug.

Consider this hypothetical yet realistic example. A man is pulled over by the police. He’s ordered out of the car. When the police pat down the accused, they find a baggie of cocaine in his pants.

The accused looks at the police and says, “I had no idea that was there. These jeans aren’t even mine. I just came from my cousin’s house where I’d gotten very dirty from working in the yard and I just grabbed a pair of his pants and put them on. I had no idea that cocaine was there.”

The accused is willing to go to trial and testify. If the accused is believable in front of a jury, the jury may end up acquitting the accused because he did not have knowledge that the drugs were in his pants. It’s an absolute defense under Florida law to any drug possession charge.

OVERDOSE DEFENSE

Consider a situation where someone goes to the hospital for an overdose and starts telling the hospital staff about hydrocodone pills in his pocket — essentially admitting to possessing drugs. The hospital, recognizing that there are illegal drugs on the patient, call the police and the police arrest the man.

A criminal attorney in this case would want to utilize the overdose defense.

In our Florida statutes, there is a specific defense of immunity available to someone who is overdosing on drugs and seeks medical treatment, and as a result evidence is obtained regarding illegal drug possession.

PRESCRIPTION DEFENSE

If you have a legal prescription for a controlled substance or another drug, then proof of the legal prescription is an absolute defense to the charge.

However, if the script for the drugs is illegally obtained, then presenting the script to the state may actually result in additional charges such as obtaining a prescription under fraud.

TEMPORARY POSSESSION

What about a situation where someone touches a drug but only temporarily to pass it on to another person?

If such a person takes possession of the drug only momentarily, then that person is not considered in legal possession of the drug because that person never exercised dominion and control over it.

For example, what if you are a passenger in a car and the driver is pulled over by the police? The driver, fearful of the police, pulls a baggie of oxycodone out of his pocket and hands it to you. The officer comes up to the passenger side window first, sees the oxycodone, and puts you under arrest.

The temporary possession defense states that you never had actual permanent dominion and control of the drug. Thus, a conviction is not warranted.

ALIBI

An alibi is when a person accused of a crime in Florida presents proof that it was impossible to have actually committed the crime because the accused was somewhere else during the time that the crime was committed. And alibi must be able to cover the entire time period during which the crime occurred.

What makes alibi unique is that the person accused of the crime invokes the defense before trial and puts everyone on notice that the alibi defense is going to be used. We have a specific rule of criminal procedure that addresses the alibi defense. Under that rule, the person accused of a crime must, at least 10 days before trial, serve the prosecuting attorney a written notice of the intention to claim an alibi. This notice of claiming alibi also has specific factual information such as the place where the accused was at the time of the alleged offense, and the names and addresses of any witnesses who could establish the alibi.

It’s important for the accused to file this notice of alibi prior to trial. If she does not, and instead brings it up for the first time at trial, she runs the risk of the court excluding the alibi evidence in front of the jury.

ENTRAPMENT

The entrapment defense is a legal justification, or excuse, to an otherwise unlawful possession of drugs. Entrapment happens when police or other governmental agents have improperly induced a person to commit a crime when that person is not otherwise likely to commit a crime like that in the first place.

Consider the following scenario. Paul is an undercover narcotics agent who’s really looking to make a big splash and add some arrests to his resume. Paul has a confidential informant named Maria. Maria tells Paul that she believes Diana would buy drugs from Paul.

The informant introduces Diana to the undercover police officer. Initially, Diana wants nothing to do with Paul’s attempts to get her to buy drugs. But Paul wants to make a name for himself, and he is persistent. Paul’s really putting the pressure on. Eventually Diana buys the drugs, and Paul the undercover police officer gets a warrant for Diana’s arrest.

This type of situation is one that Paul the undercover police officer made happen. This type of fact pattern deserves a look at the entrapment defense.

There is a statute that addresses the entrapment defense as it applies to drug crimes and other criminal acts. Under the statute the defendant has to establish the following by a preponderance of the evidence:

  • that the accused was encouraged by an law enforcement officer or his agent to engage in criminal conduct so the officer could obtain evidence of the commission of a crime;
  • the accused engaged in such criminal conduct as a direct result of law enforcement’s encouragement;
  • the person who induced or encouraged the accused was law enforcement;
  • the person who induced or encouraged the accused used methods of persuasion or inducement to create a substantial risk that the crime would be committed; and
  • the accused was not a person ready to commit the crime at the time that the person actually committed the crime.

While there is certainly a place for the entrapment defense, each case has to be analyzed thoroughly to make sure that this defense is the appropriate one. Any time that you present an affirmative defense, where the accused is in essence admitting to committing criminal activity, the defense needs to be one that has a strong chance of success.

“CHRONIC SUBSTANCE ABUSER”

Florida law relies upon a criminal punishment code scoring system to determine the minimum allowable sentence for all felony crimes.

In Florida, if the scoring system point value for a person’s crimes are added together and the number is 44 points or more, then that person is facing mandatory prison time.

However, a person convicted of a non-violent drug crime who also scores less than 60 points on the criminal punishment code scoring system and is found by the judge to be a “chronic substance abuser” is eligible for drug offender probation if the judge agrees.

This is powerful. When relying upon the statutory defense, a person who might otherwise score a term of years in prison may be able to convince the judge to instead order drug offender probation.

Options For Resolving Drug Possession Cases

To determine the right options for resolving a drug possession case we need to look at the person’s needs, the specific laws that apply to the particular drug charge, and whether a person is guilty or innocent of the drug possession charges they are facing.

PRETRIAL DIVERSION

Pretrial diversion is a program that is run by the state attorney’s office, and is usually reserved for first-time drug offenders.

In a diversionary program, the defendant agrees to do some things such as pay a fine, stay out of trouble, attend Narcotics Anonymous meetings, and the like. In exchange, the state attorney agrees to dismiss all charges when the defendant has completed the terms of the agreement.

In essence this is similar to probation, but the defendant is never actually placed on any official probation. That means that if the defendant screws up, they’ll simply be revoked from the diversionary program and go back into court exactly where they started.

The obvious benefit to a diversionary program is that when it’s all said and done the drug possession charges are dismissed. If a future employer is running a background check on a person who’s been through a diversionary program, they may be able see that there was an arrest for a drug charge but they also will see that the state dismissed the charge.

In most of the Tampa Bay jurisdictions, the offender’s charge of drug possession can be sealed and expunged after the diversionary program is completed. Once everything is sealed or expunged, future employers won’t even be able to find out about the arrest.

DRUG COURT

Drug court is a specific type of diversionary program has been created and funded in each of Florida’s counties to address the problem of repeat drug offenders.

The program is more therapeutic and less like a traditional punitive courtroom. There is a process for identifying, evaluating, managing, and placing substance abuse offenders to hopefully avoid the formal criminal justice system.

In drug court, there is an assigned judge who reviews progress reports of each participant. Drug court sounds easier, but it can be more difficult and more thorough for the participating members. Whereas a person on probation may only report to probation once a month, it’s common for drug offender court participants to report multiple times per week for drug tests and return to court every couple of weeks.

Drug court at its heart works best for repeat offenders who truly have an issue with substance abuse. It is less effective and sometimes too cumbersome for a first-time offender who perhaps just made a mistake and may not really need to even be in drug court.

SEEK A DISMISSAL

A favorite defense for individuals charged with drug possession in Florida courts is to seek a dismissal.

As you can imagine, the state attorney or a judge won’t dismiss the case for no good reason. Rather, there needs to be a good reason to get the case dismissed.

For example, above we talked about the case where the police have acted illegally. If law enforcement acted illegally and as a result the judge has suppressed or eliminated evidence from consideration, then it may be appropriate for the state attorney to simply dismiss the case.

In other cases, the state is simply unable to prove the elements of the crime. Thus, an attorney can seek dismissal based on that.

The judge upon a formal motion from an attorney can do dismissals. They are less frequently done as a result of a defense attorney negotiating with the state attorney.

Obviously a dismissal is the best-case scenario. That’s because the state attorney or the judge is dismissing it without the person charged having to do anything in exchange.

PLEA

Most cases are resolved by some type of plea negotiation. This is like a settlement on the charge.

When negotiating a plea, the criminal defense attorney is both negotiating the charge of which a person would be convicted and also the punishment for the charge.

For example, a state attorney may charge a defendant with sale of cocaine. The state attorney may ask for a minimum of 18 years in prison.

However, through plea negotiations a strong criminal defense attorney may be able to get the charge reduced from the sale of cocaine to the simple possession of cocaine. And perhaps the prison sentence reduced to a simple probationary term.

TRIAL

Finally, trial by a judge or jury is an option to resolve a drug possession charge.

In most cases, a trial will happen after an attorney has tried some of the other options above.

For example, perhaps a defendant is charged with possession of alprazolam (Xanax). The officer found the Xanax in the backseat of a vehicle. The criminal defense attorney believes that the evidence is insufficient to prove the case. Also, the defendant is upset because he swears that he is innocent of the charge.

Originally, perhaps the defense attorney seeks an outright dismissal of the case. When the attorney is not able to get an outright dismissal, he and his client decide they would accept a diversionary program. They do not want to take the case before a judge at trial.

However, the defense attorney and his client also can’t get the state attorney to agree to a diversionary program. Only then does the attorney and the defendant switch gears and prepare to try the case in front of a jury.

In a jury trial, the state attorney has the burden of proving their case to the exclusion of all reasonable doubt. Remember those elements of a drug possession charge that we talked about earlier? The state attorney is going to have to prove to the jury each one of those elements beyond a reasonable doubt.

If the jury convicts the defendant, then he will need to be sentenced by the trial court. But if the jury comes back with a not guilty verdict, all charges are dismissed and that person is free to leave the courtroom that day. Contact us to learn how to avoid or minimize sentencing for drug possession.

CRIMINAL DEFENSE

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What Our Clients Say

When I met Lee I was at a very stressful point in my life. I was all over the place mentally stressing "was I making the right choice?" Well let me tell you 110% it was the correct choice. Lee wont sit there and bs you... he will tell you exactly how it is, and give you his professional advice on which way to go with things. Lee was very responsive....like i said i was at a stressful point in my life and him reaching out to me or the immediate response put my mind at ease. More then I could say for a family friend who is also a lawyer. 100 percent satisfied with Lee and the outcome I received, I would recommend him highly if your ever in a legal bind. I know I can count on him in the future god forbid I have to.
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Molly McCoy
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Jason Raney
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23:59 06 Apr 20
I can't say enough good things about my experience with my attorney Lee. His encouragement throughout the process was vital in calming the nerves of this 1st time offender. He had immediate responsiveness to my calls and texts and never gave any false hope concerning possible outcomes. He was able to get charges dropped and maintained my clean record. I highly recommend this law firm for its professionalism and quality of service.
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Jennifer Alexander
19:34 30 Mar 20
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22:23 27 Mar 20
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Ashley Ziegler
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I would absolutely recommend Denmon and Pearlman to anyone in need of legal services! Lee Pearlman is hands down one of the most professional and efficient attorneys, His associates are just as knowledgeable, and they Immediately responded to any of my inquiries. I have found my firm for life and would recommend them to anyone I come across. Thank you so much for all of your support and services throughout my situation.
Christina Bosco
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15:41 03 Feb 20
I would absolutely recommend Denmon and Pearlman to anyone in need of legal services! Lee Pearlman is hands down one of the most professional and efficient attorneys, His associates are just as knowledgeable, and they Immediately responded to any of my inquiries. I have found my firm for life and would recommend them to anyone I come across. Thank you so much for all of your support and services throughout my situation.
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Lee Pearlman and his team are great! if your thinking of allowing a public defender in the adult system represent you I would strongly encourage you not to do that, but to call these people! They have done nothing but achieve positive quick results. I want to specifically thank Shadi! He is so eager and motivated. He keeps in touch with you and explains everything every step of the way. He was so great that he showed up to court on THANKSGIVING morning. Who does that? Shadi does! Thanks again Shadi and Lee!
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krystal Speeler
20:50 15 Dec 19
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Matthew Garcia
20:28 29 Oct 19
Nicole and Lee go the extra mile to represent various client needs, and work with you as a whole human being, being considerate and kind, as well as being thorough and fearless as well. I have utilized their services in 3 different scenarios, and every time, I was thrilled with their representation. Hire Lee or Nicole for anything - for everything. Fantastic lawyers and fantastic people.
Nicki Wright
Nicki Wright
13:27 08 Oct 19
February of 2019 I ran into a very problematic legal matter, it put my healthcare license and my very livelihood on the line. I didn’t have anyone to turn to and my family left me on my own, I was lost and, honestly, things were looking bleak. I was recommended Mr. Lee Pearlman and went to meet with him, without much hope for how things would turn out. Not only was Mr. Pearlman understanding of the situation, he was so friendly and calm that my problem seemed less like the end of the world and more like an unfortunate bump in the road. It took a couple of months but he fought for me to return to work and explained the process so that I could actually understand the legal lingo. It has taken more time and dedication than I ever thought, but my life is back on track and I cannot thank Lee enough for fighting for me. I had very low expectations for how things would turn out, but Lee blew them out of the water and helped me more than I thought possible. If you are looking for someone that won’t judge your mistakes and will try his hardest to help you, I cannot recommend Lee Pearlman enough. He and his staff were always so nice and I will genuinely miss seeing them all.
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22:37 10 Sep 19
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Nikki Jay
Nikki Jay
18:47 07 Jun 19
Been with Lee Pearlman for quite a bit of time. He's EXCELLENT!!! He's well known and extremely well liked by Defense teams, Prosecution teams and Judges alike. If anyone can get the job done, it's Lee!! He was also there for me on the emotional level as I was scared and very upset over everything we were going through. He continued to reassure me that it was all going to be alright!! He certainly helped our family through a very tough time and got the BEST outcome that could have been gotten. I truly wouldn't trust any other attorney to handle any legal situation. Thank You from the bottom of my heart Lee, for EVERYTHING!!!! GOD BLESS YOU
Hope Fuller Lane
Hope Fuller Lane
23:51 25 Feb 19
I have personally had the opportunity to work first hand with attorneys Lee Pearlman and Klarika Caplano, as well as multiple other members of the firm’s staff. The attention and dedication I received is top notch, and they are always available to answer questions or address any concerns. This firm will do everything in their power to obtain the most favorable outcome possible.
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21:19 03 Jan 19
This law firm handles a multitude of different types of cases. I have personally retained them for family and for an auto accident as well as been very close to someone who Lee and Jake represented in a criminal case. That case was long and drawn out and The State seemed to of had the upper hand until Lee and Jake came on and ended up going through a two day trial. Without them the outcome did not look good but because of them a NOT GUILTY verdict came through and he was clear of everything. We are so thankful for the entire team at Denmon Pearlman for all the situations they have helped us through. They were efficient, kind, caring and available to answer our questions and concerns by phone, texts and emails quickly and always made us feel reassured, confident and happy because we knew they had our backs in every situation. I will definitely use them again if I’m ever in a situation of any type again. I have recommended them to many and I will continue to recommend them to anyone who is in need of help. 10 START RATING for sure!!
Roxanne Edens
Roxanne Edens
19:27 13 Nov 18
Lee Pearlman is fantastic! My brother had a difficult case and Mr. Pearlman stepped in and quite literally saved the day for my brother and our family. He is experienced, extremely kind, easy to get in contact with, and most importantly, gets the job done. Couldn’t be happier and if I’m ever in need of a lawyer again I’ll be going straight to him.
Lyndsey Dolan-King
Lyndsey Dolan-King
19:18 07 Sep 18
I have been opposing counsel against Lee on many occasions when I worked for the State Attorney's Office. He is by far one of the most talented attorneys I have ever met. His professionalism and passionate advocacy for his clients is only matched by his skill in the courtroom. Great lawyer!
Justin Reep
Justin Reep
17:57 26 Jun 18
Unfortunately I've had a couple of things to clear up in the last couple years. FORTUNATELY..I found Lee Pearlman. He's very professional, pays attention to detail and his ability to make you feel safe and calm is fantastic. He's smart and personable, I honestly think had we met under different circumstances, we would be good friends.
Scott Michael
Scott Michael
18:04 04 May 18
It's hard to believe it's been 4 years since my husband was cleared on two charges stemming back to 1986. Thank you so much Lee Pearlman for representing my husband. When we found out about the 28 year old warrant we drove down to Florida w/o an attorney and hit the yellow pages and Google. We believe the Lord led us to Lee Pearlman. He took our case and worked tirelessly until my husband was, not only released, but freed of both charges!! Because of Lee, my husband is now in contact with his mom, that he had not seen in 36 years. He was told she had passed away. Thank you Lee, there's not enough money in the world that could repay you for what you have given us. Freedom is a wonderful thing.
Jeannette Newman Fehr
Jeannette Newman Fehr
16:12 28 Apr 18
The amount of gratitude and thanks I want to express to Lee and his team is unfathomable. Lee’s communication and professionalism during this difficult time for me was exceptional. He always kept me informed during each step of the process. It is evident that Lee has a tremendous of respect within the court system, which led to my favorable result. Results; which at the end of the day is the most important thing when searching for a Law firm. I couldn’t recommend a better Lawyer than Lee Pearlman.
Lee- thank you so much for everything during this time!
Martin Smith
Martin Smith
00:28 03 Feb 18
Lee Pearlman, a phenomenal defense attorney! And now a family friend! Being unsure where to start in finding a lawyer to represent my husband, I reached out to a co-workers husband that is a lawyer, and for our particular case, he let me know that if he were in my husband's situation, he would want Lee for the job. I am happy to say that was the best advice he could have provided to me because it did not disappoint. From the beginning stages, pre-trials, motions, bond hearing to trial he offered great insight of how things could play out always keeping me informed. Lee moved with a purpose; he didn't delay, his time efficiency moving thru our case as quickly as possible and got the job done. His ability to use other resources when necessary was essential. Nicole Denmon paired with Lee in the trial were a fantastic team and went above and beyond to battle for us. Going thru an experience like that isn't one you would hope ever to go thru, but the entire staff is so friendly, professional and helpful. This office of people just made the experience the very best it could be!
Jodi Sue Holcomb
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19:38 24 Jan 18
Look no further, you have found the best law firm ever created. It will be the best decision you make adding them to your team. Unparalleled and unmatched they indeed set the standard & raised the bar and are shaping the future for attorneys. I was appointed Lee Pearlman in my case. I was looking at a capital offense, so my life was literally in his hands. My wife hired him, and we both can say he is the best attorney out there. But he is also an amazing person. With such a scary monster of a case I had and my life on the line, they gave me peace of mind throughout the whole situation. It wasn't a simple case with a few moving parts, but Lee showed versatility, depth and with a tremendous amount of resources to handle any problem or situation. He kept everything realistic for me and managed everything promptly, pushing relentlessly to resolve my case and get me home to my family. He went way above the call of duty; he was there for me, my wife, my son, and family every step of the way. Even though we didn't have all the money, you could tell it wasn't about the money but rather his compassion for fighting for truth and justice. He handled a capital offense in 10months; he definitely is a trial attorney. He will take it the distance for you with the best qualities an attorney could have. He is aggressive, professional, confident, focused, talented, trustworthy and extremely knowledgeable. His skill and hard work are surpassed only by his modesty and compassion with attention to detail. He will get the job done. Lee added Nicole Denmon to assist on my case in trial, and I can say the same for her. Truly an amazing team, the best attorneys and phenomenal firm I can call family. Thank you for everything.
Honey Honeycomb
Honey Honeycomb
16:19 24 Jan 18
If you have a personal injury, Lee Pearlman is the attorney you need to see. He and his assistants, Ashley and Anisley are number one in my book. They were always available to answer questions and fought for me all the way. Thank you Denmon Pealman Law Firm!!
Marsha Fowler
Marsha Fowler
00:54 10 Jan 18
Mr Lee Pearlman is a outstanding attorney he has been a great help to me for many years now and always dose what he says. Ive recommended him to family and friends. He has always comes out on top he is a 5 star lawyer. Thank you
Chris Piedra
Chris Piedra
20:54 28 Nov 17
Mr. Lee Pearlman is THE GUY. He is charismatic, respectful, intelligent and the BEST at what he does. I would recommend no one else to my friends and family. From the beginning stages of fright and uncertainty, all the way to the trial and the verdict of Not Guilty, he was there to answer my questions, quell my uncertainties and deliver exactly what he promised. Mrs. Adriane Ovcharenko was equally as charismatic and fantastic during the trial. It is safe to assume everyone at Denmon Pearlman hold themselves to a standard above the rest and deliver exactly that.
Kevin James Mark
Kevin James Mark
17:28 16 Aug 17