Criminal Defense

New Florida Racing on the Highways Laws in Effect July 1, 2024

Published on: April 24, 2024 | by Lasnetski Gihon Law

Starting July 1, 2024, the laws relating to Racing on Highways in Florida are changing. The Florida legislature has increased the penalties and created new provisions that will affect anyone charged with this crime.

The crime of racing on the highways includes a lot of activities including racing, street takeovers, stunt driving, speed exhibitions and more. It applies to highways, roadways, and parking lots. An officer doesn’t need a warrant to make an arrest. And even a first time offense will result in a mandatory driver license revocation for at least 1 year.

Federal Safety Valve: The Supreme Court Dramatically Reduces Eligibility For Sentences Below the Minimum Mandatory in Federal Drug Offenses

Published on: April 3, 2024 | by Lasnetski Gihon Law

In federal criminal courts, when a person is convicted of a drug offense with a minimum mandatory sentence provision, there are only two ways that allow a federal judge to go below that statutory minimum mandatory sentence: a 5K motion filed by the federal prosecutor if the client provides substantial assistance to the government or the safety valve provision of 18 U.S.C. §3553(f). Congress recently broadened the safety valve provision and one particular section has been subjected to intense litigation resulting in varying outcomes from the various circuits.

AdobeStock_269451886-300x200
If otherwise qualified under different subsections, a person is eligible for the safety valve, and therefore a sentence below a statutory minimum mandatory sentence under §3553(f)(1) if:

The defendant does not have –

What if the State doesn’t give me a speedy trial?

Published on: February 12, 2024 | by Lasnetski Gihon Law

Close-up of the U.S. Constitution Every person charged with a crime in the United States is entitled to a speedy trial. This is a federal constitutional right guaranteed by the Sixth Amendment to the United States Constitution which states, [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…” The State of Florida also made this a state constitutional right in Section 16 of the Florida Constitution, which states that in all criminal prosecutions the accused shall, upon demand…shall have the right…to have a speedy and public trial…

The Florida Supreme Court adopted Florida Rule of Criminal Procedure 3.191, which provides that every person charged with a crime be brought to trial on a misdemeanor within 90 days of arrest on a misdemeanor and within 175 days of arrest on a felony. The Rule states that the time period commences when the person is taken into custody, which is defined as “when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged;” There are exceptions to these timeframes and the most common exception is when the person charged waives their right to a speedy trial. There are valid reasons to waive that right. Basically, a person is not entitled to have their cake and eat it too. In other words, a person charged with a crime is going to need time to investigate the case, to potentially take depositions, to conduct legal research, to file motions and have motion hearings, and to otherwise conduct pretrial negotiations and/or litigation. So, if a person demands a speedy trial, that person is necessarily not going to have additional time to prepare a defense. So, in most cases, a person charged is going to move to continue the case to allow for preparation. However, what happens when the time has expired before the person has waived his or her right to a speedy trial?

In State v. Williams, Ms. Williams was arrested on October 8, 1999. The State filed formal charges on May 3, 2000, which was 206 days after her arrest. Ms. Williams filed a motion for discharge alleging that the State failed to bring her to trial within the time allowed by Florida Rule of Criminal Procedure 3.191. Under subsection (p)(3), the defendant can file a notice of expiration of speedy trial and then the trial court must conduct a hearing within five days and set the case for trial within 10 days. This is referred to as the “recapture period.” So, the trial judge treated the motion for discharge as a notice of expiration of speedy trial and held a hearing and scheduled the case for trial within 10 days. Ms. Williams objected, arguing that she should have been discharged because the time frame had expired.

When Can a Police Officer Make an Arrest on a Misdemeanor Without a Warrant in Florida?

Published on: January 22, 2024 | by Lasnetski Gihon Law

The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. Police officers can’t simply walk up to any citizen and detain or arrest that person. There must be reasonable suspicion or probable cause that the person has, is, or is committing a crime in order to detain or arrest them.

Police-Officer-with-Arrest-Warrant-illustration-300x261
Typically, if a police officer wants to make an arrest, they must seek an arrest warrant. In order to obtain an arrest warrant, the officer must establish to a judge that there is probable cause that a crime occurred and that the defendant committed the crime. The judge will then issue an arrest warrant if the judge determines there is probable cause exists.

However, a police officer does not always have to obtain an arrest warrant in order to make an arrest. There are exceptions to the arrest warrant requirement. Florida Statute §901.15 lays out when an officer can make an arrest without an arrest warrant. There are many exceptions to the arrest warrant requirement. For example, an officer doesn’t need a warrant to arrest a person for driving under the influence. The officer can simply make the arrest once observing all of the elements of the offense.

Florida 5th DCA Holds That Officers Do Not Need to Obtain Valid Consent Before Requiring Field Sobriety Exercises Where There is Reasonable Suspicion of DUI

Published on: December 19, 2023 | by Lasnetski Gihon Law

A major issue in DUI cases has not been fully fleshed out and has caused a lot of confusion among practicing criminal defense attorneys and judges. When a driver is pulled over and the officer has reasonable suspicion that the driver is under the influence of alcoholic beverages or drugs, does that officer have to obtain voluntary consent before requesting that the driver submit to field sobriety exercises?

The leading case on this issue comes out of the Second District Court of Appeals. In State v. Liefert, 247 So.2d 18 (Fla. 2d DCA 1971), the Second DCA held that when an officer has sufficient cause to believe a driver committed a DUI, the driver’s consent to taking field sobriety exercises is immaterial and the officer can require that the driver submit to them, or the refusal can be used against the driver as evidence of consciousness of guilt.

dui-law-300x200 In Liefert, an officer observed Mr. Liefert weaving across two lanes of traffic. The officer pulled Mr. Liefert over and noticed an odor of alcoholic beverage. The officer asked Mr. Liefert if he would take some physical sobriety tests and Mr. Liefert agreed. Mr. Liefert was arrested, based in part on the results of the sobriety tests and Mr. Liefert filed a motion to suppress all evidence obtained as The trial court granted the motion finding that the officer did not advise Mr. Liefert of a right to refuse to take the tests.

Understanding the DUI Police Report

Published on: September 1, 2022 | by Lasnetski Gihon Law

bigstock-Drunk-Driving-72494374
When a person is pulled over for driving under the influence (DUI), the arresting officer will prepare a police report, summarizing the reasons behind the arrest. These reports are important when it comes to prosecuting a DUI case, and they can be helpful for defense attorneys in evaluating the case and determining a strong basis for a defense.

Why DUI Reports Are Valuable

Without DUI reports, the courts can only go off the testimony and viewpoint from the parties involved. Alone, DUI reports are not enough to be considered admissible evidence. The court will not accept the report by itself since the statements constitute hearsay, but the report gives both sides an idea of what the arresting officer would say when called to the stand. Having this information will allow the defendant to prepare a case and fight the charges. The arresting officer’s report can show if there are any weaknesses in the case, including their basis for probable cause in the arrest.

New Criminal Laws in Florida & Defenses to Criminal Charges

Published on: November 24, 2021 | by Lasnetski Gihon Law

New Laws Went Into Effect in Florida: What You Should Know

AdobeStock_428103450-300x225

After a busy legislative session in Florida, several laws were passed in April 2021 that came into effect once the session was over. While most of the state’s laws went into effect as of July 1, 2021, there are many that did not. There were many types of laws that passed. It is critical to know the laws of the state you reside in–including old laws and newly enacted laws–because they directly affect you. Ignorance of the law is not a defense, and having familiarity with Florida’s laws will help you know what to do in the event of a legal misunderstanding. No matter what type of criminal charge you may be facing, it is important to have proper legal representation.

Notable New Laws in Florida