Criminal Procedure

Criminal Defense Lawyers Are Required to Tell Client of Deportation Risk Before Entering Guilty Plea

Published on: June 22, 2011 | by Lasnetski Gihon Law

If you have been charged with a crime in Florida, or any other state, and you are not a United States citizen, you may be at risk of suffering immigration related penalties, such as deportation, as well as the normal criminal penalties. If your criminal defense lawyer is not familiar with immigration law, he/she may not know to advise you of the immigration ramifications of your criminal case or may not be sufficiently familiar with the immigration laws to properly advise you of what the immigration risks are of a guilty or no contest plea or a guilty verdict at a trial in the criminal case.

At Lasnetski Gihon Law, we handle immigration cases as well as criminal cases so, unlike most other criminal lawyers in the Jacksonville, Florida area, we are qualified to fully advise you if you are not a United States citizen and are facing criminal charges.,

In 2010, the United States Supreme Court decided the case of Padilla v. Kentucky. The Padilla case held that criminal defense lawyers are required to advise criminal clients who are not U.S. citizens that a guilty or no contest plea may have negative immigration consequences. Of course, many criminal defense lawyers are not qualified to provide specifics as to how the immigration process works and what those negative immigration consequences are likely to be. Therefore, it is very important to contact a law firm that is experienced in both criminal law and immigration laws, as we are.

Police Officer’s Racial Comment Admissible at Trial

Published on: February 10, 2011 | by Lasnetski Gihon Law

To what extent is a police officer’s racial comment admissible in a criminal trial? It depends on the circumstances and type of case. However, in any trial, evidence that tends to prove that a witness is biased against one side or the other should be admissible at the trial. If a police officer makes a comment during the arrest that indicates he/she may be biased against the defendant based on his/her race, that comment should be included in the evidence that is evaluated by the jury. The same is true if the comment was made by a lay witness.

In a recent domestic battery case that occurred south of Jacksonville, Florida, the defendant was African-American and the victim was white. The police officer who arrested the defendant for domestic battery made an apparently racist comment explaining why he had to arrest the defendant. The court ultimately ruled that the criminal defense lawyer could bring the comment to the jury’s attention because prejudicial comments are relevant to attack the credibility, and show the possible bias, of the police officer.

Domestic battery cases are often based solely on the testimony of the victim. In many domestic violence cases, the only two people present for the incident are the defendant and the alleged victim so there are no independent witnesses to confirm either side’s story. As a result, the police officer who responds to the domestic battery call has to decide which party is telling the truth. Even if there is some evidence of an injury on the alleged victim, that does not prove that a domestic battery was committed if the alleged victim started the altercation and the other party was defending him/herself. Because the police officer uses more discretion than normal in most domestic battery arrests, any bias the police officer may have against the defendant should be admissible in the trial.

Police in Florida Cannot Stop a Motorcyclist For Driving Without A Helmet

Published on: December 15, 2010 | by Lasnetski Gihon Law

It is not uncommon in the Jacksonville, Florida area and throughout Florida to see people riding motorcycles without a helmet. As criminal defense lawyers in the Jacksonville, Florida area, one question we recently were asked from a client is whether the police can pull them over for not wearing a helmet while riding a motorcycle. This can be much more serious than just being subjected to a traffic ticket. Many serious criminal cases start with a seemingly harmless police stop. Most DUI’s start with the police officer claiming to observe some sort of moving violation allowing him/her to pull the driver over and initiate a DUI investigation. Many illegal drug cases start the same way and end with the police searching the vehicle and/or the driver/passengers and finding illegal drugs. Gun arrests also often start with the police pulling a driver over for some sort of fairly harmless moving violation.

So, it is important as criminal defense lawyers, to understand when a police stop is unlawful because when it is an illegal stop and the police discover some evidence of a crime, that evidence can be thrown out of court.

In a recent case near Jacksonville, Florida, a police officer stopped a motorcycle driver for not wearing a helmet to ask him if he had proper motorcycle insurance. The officer then learned that the driver had a suspended license and arrested him. The criminal defense lawyer challenged the stop arguing that the police officer did not have a legal right to stop the motorcyclist for not wearing a helmet to check his insurance.

Drugs Found in Vehicle After DUI Arrest may Be Admissible at DUI Trial in Florida

Published on: December 12, 2010 | by Lasnetski Gihon Law

In a recent DUI case near Jacksonville, Florida, the defendant was pulled over by police for failing to maintain a single lane. The police officer conducted a DUI investigation and decided the defendant was impaired while driving his vehicle. The police officer observed vomit on the defendant and in his vehicle, glassy and bloodshot eyes and slurred speech. The police officer then searched the defendant’s car and found a pill bottle containing Hydrocodone pills (Lorcet). The defendant had a prescription for the Hydrocodone pills. He denied drinking but admitted taking the prescription drugs three days prior to driving.

The criminal defense lawyer for the defendant tried to keep the evidence of the Hydrocodone away from the jury. The criminal defense attorney argued that evidence of the prescription drugs was prejudicial and not necessary for the state to prove its DUI case. The court ultimately disagreed and found that the evidence of the Hydrocodone pills was admissible.

In a DUI case in Florida where there is evidence of drug use, even if it’s a prescription drug, that evidence may be admissible in certain circumstances. For instance, the relevant factors under Florida law are: 1) there is significant evidence the defendant was impaired while driving, 2) there is evidence that the defendant recently used the drug, 3) there is not enough evidence that the defendant used some substance other than the drug which would explain his/her impairment, such as alcohol, and 4) the evidence does not show that the drug did not cause the impairment.

Police Can Detain A Person Asleep in a Vehicle for a DUI Investigation

Published on: December 6, 2010 | by Lasnetski Gihon Law

In Florida, in order for the police to detain someone for further investigation, whether for a drug related crime or a DUI, the police must have some specific evidence of the criminal activity before going further with the investigation.

In a recent case, the police observed a person slumped in the driver’s seat of a car parked at a convenience store. The car was running. The police went to the car and saw the woman sleeping in the driver’s seat. The police knocked on the door to wake her but were unsuccessful. The police officer said he smelled an odor of alcohol coming from the inside of the vehicle. The police then opened the door. He had to shake the person to wake her. They ultimately conducted a DUI investigation and arrested her for DUI.

The criminal defense lawyer attempted to get any evidence that the defendant was intoxicated thrown out by arguing that the police did not have a legal basis to open her door and remove her from the vehicle. The court disagreed. In Florida, the police cannot search a vehicle or a person or seize or detain a person without specific evidence of criminal activity. In this case, the court found that the evidence that the woman was sleeping in the driver’s seat of a running car, the woman would not wake up with the police banging on the window and the odor of alcohol was sufficient for the police officer to open the woman’s car door and investigate further.

What Happens if the Police Do Not Mirandize a Suspect in Florida?

Published on: September 24, 2010 | by Lasnetski Gihon Law

As criminal defense lawyers who handle all varieties of criminal cases in state and federal court in Florida, particularly in the Jacksonville area, we get a lot of good questions from clients about the legal process in Florida. One common question from clients pertains to Miranda warnings. Most people understand Miranda warnings to be those statements from the police officer to the suspect when he/she is being arrested. The police officer is supposed to inform the person, among other things, that he/she has a right to remain silent, that if he/she says anything it can and will be used against him/her in court and he/she has a right to a lawyer before and during any questioning by police.

Anyone suspected of, or arrested for, a crime would do well to heed those warnings. All too often we see people giving all sorts of statements to police that do nothing but help the police make their case against them. If you are unsure about whether it is prudent to talk to the police or anyone else about your case, the best course of action would be to contact a criminal defense attorney who can properly advise you on that subject and anything else related to your criminal case.

But what happens if the police officer never gives the Miranda warnings to the suspect? Some people we have spoken to asked if that means the charges must be dropped because the arrest was invalid. That is not necessarily the case. Miranda warnings deal with statements given by suspects to the police when they are in custody. If the police officer does not give Miranda warnings, but no statement is given to the police by the suspect, the failure to give Miranda warnings may have no effect on the case. However, if a person is taken into custody by the police, no Miranda warnings are given and the person does give a statement to the police, that statement can be found to be inadmissible and thrown out of court. If the state cannot prove their case without that statement, the failure to give Miranda warnings could ultimately result in the criminal charges being dropped.

Clay County Couple Arrested For Allegedly Throwing Party With Alcohol and Underaged Kids

Published on: July 16, 2010 | by Lasnetski Gihon Law

A couple from Fleming Island in Clay County, Florida was arrested for allegedly throwing a party with underaged kids and alcohol according to an article on Firstcoastnews.com. According to law enforcement, the Clay County couple threw a graduation party at their home at which underaged kids were drinking. Pictures of the party and the kids drinking were apparently posted on Facebook which helped lead to the arrests.

As litigation lawyers who handle all types of litigation cases including criminal defense, personal injury/wrongful death and business litigation, we have seen how people can get themselves into trouble by divulging information over the internet that is later used against them. People need to understand that an emails, a text messages and anything posted on a website are not private. If another person can access it, that can later be used against the person by police and in court by the other party. Whether it is a picture of a plaintiff in a personal injury case engaging in some activity that his/her injuries were supposed to preclude or a statement that incriminates the defendant in a criminal case, any such thing sent out over the internet can become critical evidence.

The best course of action is to consider whether you would want a police officer, an employer, a prosecutor, a judge or any other person(s) to see the information before sending it in an email or text or posting it on a website.

In Florida, Defendant’s Confession is Not Admissible Until State Proves Crime Was Committed

Published on: July 3, 2010 | by Lasnetski Gihon Law

Quite often, a major part of the state’s case is a statement or a confession from the defendant either admitting the crime or admitting to certain damaging facts that reflect negatively upon the defendant at the criminal trial. However, in Florida, a defendant’s confession that was lawfully obtained is not always admissible to prove the state’s case.

In a criminal case in Florida, the state cannot admit a defendant’s statement or confession until the state has presented other proof that a crime was committed. Because of this rule, a defendant can never be convicted of a crime based on his/her statement alone. A defendant’s statement can certainly be used against a defendant to prove the state’s case, however the state must present evidence independent of the defendant’s statement first before seeking to admit the defendant’s statement into evidence. If the state does not have sufficient independent evidence to establish that a crime occurred, the defendant’s statement will not come into evidence and the criminal case will likely be dismissed.

Can the State Withhold the Identity of a Confidential Informant (“CI”) in Florida?

Published on: March 5, 2010 | by Lasnetski Gihon Law

In Florida, many drug cases begin when a confidential informant, or CI, provides information to the police about another person using, selling, trafficking or manufacturing illegal drugs. This often occurs after the confidential informant is arrested on his/her own charges and wants to make a deal with the police or the state to reduce his charges or sentence. The CI will provide information to the state, or perhaps work for the state by making a controlled drug buy, allowing the state to make a case against someone else.

When a confidential informant gives information to the police or the state that they use to get a search warrant, search a house for illegal drugs and then arrest one of the residents of that house, that other person will have a pending criminal drug case. Normally, during that trial, that defendant will have a right to see all of the evidence and learn of all of the witnesses that the state believes proves his/her guilt and that the defendant needs to prepare his/her defense.

Can the defendant’s criminal defense lawyer force the state to disclose the identity of the CI? It depends. While the state is obligated to give the criminal defense attorney all of the relevant evidence in the case, the state does have a limited right to withhold the identity of confidential informants in some situations. The purpose of this rule is to protect and encourage people who provide information about criminal activity to the police. However, a criminal defendant has a Constitutional right to know of any and all information that helps the defendant defend him/herself against criminal charges.

You Have the Right to Remain Silent During Field Sobriety Tests During a DUI Stop

Published on: November 7, 2009 | by Lasnetski Gihon Law

If you are stopped for a DUI (aka driving under the influence of alcohol or drugs, DWI or drunk driving) and the officer has detained you for a DUI investigation, arrested you or read the Miranda warnings to you, you have a right to remain silent and not answer questions. Keep in mind that once the police officer has it in his/her mind that you may be impaired by alcohol or drugs, everything he/she does from that point on is to gather evidence to be used against you in a DUI case.

After a traffic stop where the police officer suspects you of driving under the influence of alcohol, he/she will ask you questions about where you have been, whether you have been drinking, and if so, how much. These questions are obviously designed to collect evidence to arrest you and charge you with DUI. The officer will also ask you to submit to field sobriety tests or exams. These are very difficult balancing exercises that are hard to perform under any circumstances. More importantly, whether or not you pass or fail is a completely subjective decision made by a police officer who obviously already thinks you are impaired or he/she would not have asked you to do them in the first place.

As criminal defense lawyers in the Jacksonville, Florida area who handle a lot of DUI cases, we read a lot of police reports where a person has made statements that help the police and the state prosecute them for DUI. When the U.S. Constitution affords you the right to remain silent and not incriminate yourself, consider why you would want to make a statement to the police in such a situation that is only going to be used against you in a criminal case.