Tampering with or Fabricating Evidence in Miami

Dennis Gonzalez Jr. is a former Miami-Dade prosecutor who has been defending people since 2012. Our office answers 24 hours a day.

What the State Must Prove

From Fla. Std. Jury Instr. (Crim.) 21.8 (see our Elements page), the State must prove two elements:

1. Knowledge of a proceeding or investigation. You knew that a criminal trial, proceeding, or investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury, or legislative committee of Florida was pending or about to be instituted.
2. The act, either or both of these:

- Tampering: you altered, destroyed, concealed, or removed a record, document, or other item, with the purpose to impair its verity or availability in that proceeding or investigation; or

- Fabricating: you made, presented, or used a record, document, or other item, knowing it to be false.

Degrees and Penalties

Under s. 918.13:

• Generally a third-degree felony: up to 5 years in prison and a $5,000 fine.
• If the trial, proceeding, or investigation relates to a capital felony: a second-degree felony, up to 15 years and a $10,000 fine.

Common Situations

• Dropping or throwing an item as police approach.
• Swallowing, flushing, or hiding something during a stop or a search.
• Deleting texts, photos, or apps, or resetting a phone, after learning of an investigation.
• Altering business records, receipts, or video before turning them over.
• Giving police or a court a document that turns out to be false.

Defense Themes

• What did you know, and when? The State must prove you knew an investigation or proceeding was pending or about to begin. Ordinary conduct before anyone was investigating is different.
• Purpose. Tampering requires the purpose to impair the item's truth or availability. Not every movement of an object is concealment.
• Was anything impaired? If police recovered the item right away, intact, that fact matters to the defense.
• Routine deletion. Phones and apps delete things on their own, and people clear messages for everyday reasons. Forensic review can show when and how data changed.
• Fabrication requires knowledge of falsity. Passing along a document you believed was genuine is not fabricating.
• The underlying search. If the stop or search was unlawful, related evidence may be challenged. See Motions to Suppress.

What to Do First

1. Do not delete, edit, or move anything connected to the matter, including messages, files, and video, once you know there is an investigation.
2. Do not explain to police why you did or did not do something. Ask for a lawyer.
3. Write down the timeline: when you first learned about any investigation.
4. Call us. If the case involves contact with witnesses, also see Witness Tampering.

Why Choose Dennis Gonzalez Law, P.A.

• Former Miami-Dade prosecutor.
• Defending people since 2012.
• Super Lawyers recognition and an Avvo Rating of 10.0.
• Bilingual office — se habla español.
• We answer 24 hours a day. Call (305) 209-0384.

Frequently Asked Questions

Is throwing something down when police walk up always tampering?

No. The State must prove knowledge of a pending or about-to-be-instituted investigation and a purpose to impair the item's truth or availability. Whether that fits depends on the facts.

I deleted messages before I knew about the case. Is that a crime?

The statute requires that you knew an investigation or proceeding was pending or about to be instituted. Timing is central.

Is tampering a felony even if the original charge is a misdemeanor?

Yes. Tampering is generally a third-degree felony regardless of the original charge, and a second-degree felony when the matter relates to a capital felony.

Can I be charged with both possession and tampering?

Prosecutors often file both. Each charge has its own elements, and each can be challenged.