Evidentiary Issues

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.

Expunging a Criminal Record in Florida Does Not Necessarily Eliminate All Records, Such as DNA Records

Published on: May 28, 2020 | by Lasnetski Gihon Law

Florida law allows a person to seal or expunge a criminal case under certain, limited circumstances. This is a great option for people who are eligible as a criminal record of any kind can be a serious detriment to future job prospects. For an expunction, a person is eligible if the case the person wants to expunge was either dropped, never filed or resulted in a verdict of not guilty and that person has never been convicted of a crime before and has never had a case sealed or expunged in Florida before. For a sealing, the same rules apply except the person is still eligible to get a criminal case sealed even if he/she pled guilty or no contest as long as the judge withheld adjudication on each count. Also, certain, more serious crimes are not eligible to be sealed. If anyone has a prior criminal case on his/her record and thinks he/she might be eligible to have it sealed or expunged, it is almost always worth looking into as it is generally much better to go into a job search with no criminal record or less of a criminal record. Lasnetski Gihon Law will discuss the matter with you and look into your background to see if you are eligible for a sealing or expunction.

While a sealing or expunction in Florida is a great way to eliminate or conceal a prior criminal case from employers running the standard record search, neither process completely eliminates all records from everyone. If the person who had his/her record sealed or expunged gets arrested again, the prosecutor will see the prior case(s), and the judge will know about the prior case for bond and sentencing purposes, if applicable. Also, it is unclear that a sealing or expunction of a criminal case eliminates the state’s ability to get certain records from the prior case, such as DNA.

In a recent murder case near Jacksonville, Florida, a woman was sexually assaulted and murdered by a suspect who fled the scene. The police found an item at the scene with what they suspected was the offender’s DNA. The police ran the DNA found at the crime scene through their system and found a likely match with the defendant. After obtaining other evidence, the defendant was arrested and charged. The criminal defense lawyer filed a motion to suppress the DNA evidence because the police matched the crime scene DNA with the defendant’s DNA that was obtained as a result of a prior case that had been expunged. The criminal defense attorney argued that the state illegally obtained the defendant’s DNA because the prior expunction order required the FDLE to expunge all of its records relating to the case, including the DNA.

Victim’s Cell Phone Recording of Defendant’s Statements In Her Home Could Be Used In Court

Published on: October 23, 2019 | by Lasnetski Gihon Law

In Florida, we have a wiretap law that, with some exceptions, prohibits people in Florida from intentionally recording verbal, wire or electronic communications unless all of the parties to the communication consent to the recording. If a party does record a communication in violation of this Florida wiretap law, the lawyer for the opposing side can move to suppress that evidence and keep it out of court. There may be other penalties for illegally recording a communication as well.

In a case near Jacksonville, Florida, the defendant went over to his girlfriend’s house, and they got into an argument. Once the argument started, the girlfriend started recording the defendant with her cell phone. The defendant ultimately pushed the girlfriend and threatened her with a gun. He was charged with domestic battery and aggravated assault. The state sought to introduce the girlfriend’s recording of the incident at the trial. The criminal defense lawyer objected arguing that the recording violated the Florida wiretap law and was therefore inadmissible.

The court disagreed with the criminal defense attorney and allowed the recording into evidence. The Florida wiretap law only covers communications that are made with a reasonable expectation of privacy. In other words, the Florida wiretap law only deals with conversations and electronic communications that people would normally expect to be private. Private phone calls and texts and emails would normally be covered by the wiretap law. Conversations in public or over social media where other people can see or hear them would not be covered under the wiretap law. In this case, the criminal defense lawyer argued this was a private conversation because it occurred in the girlfriend’s home. However, the judge rejected that argument because the evidence indicated the defendant knew he was being recorded by the cell phone and kept talking. He even tried to take the cell phone away from his girlfriend as she was recording. The analysis by the court seems to be flawed as one would normally have a reasonable expectation of privacy in a private home of a girlfriend when others are not around. It seems to be more of a case of implied consent where the defendant knew the recording was taking place yet decided to continue arguing anyway. Proper result but improper reasoning.

Can the State Force a Defendant to Provide the Passcode to a Cell Phone in a Florida Criminal Case?

Published on: June 28, 2019 | by Lasnetski Gihon Law

Over the last several years, there has been a lot of litigation over whether, how and to what extend the police and prosecutors can access a person’s cell phone data. As everyone is aware, cell phones can contain a wealth of information about a person, his/her activities and the people with whom he/she associates. This can provide the state with a lot of incriminating information that can be used to successfully prosecute defendant in a wide variety of cases. But because cell phones contain so much private information, courts in Florida have recognized a right of privacy with cell phone information such that the police cannot normally just take a person’s cell phone and search it for whatever they want.

Let’s say the state did obtain a defendant’s cell phone or similar electronic device. Can the state force the defendant to provide the passcode to the state so they can access and search it?

In a recent robbery case near Jacksonville, Florida, the police seized a passcode protected Iphone from the defendant when he was arrested. The state later filed a motion to compel the passcode from the defendant. In the motion, the state said it was looking for all communication information and photographs for a seven day period prior to the arrest. The motion did not reference any specific information the state believed was on the phone that was relevant to the case. The state just believed the defendant communicated with his co-defendant prior to the robbery and was looking for evidence of that. The criminal defense attorney objected based on the Fifth Amendment right against self-incrimination. The Fifth Amendment forbids the government from compelling testimonial communications or acts that might incriminate a suspect or defendant. Whether something is testimonial depends on whether the request requires the person to use the contents of his own mind to communicate some statement of fact. This court determine that disclosing a passcode known in the defendant’s mind would be a testimonial act.

Prosecutor in Florida Theft Case Uses Defendant’s Facebook Post to Prove Case

Published on: May 7, 2018 | by Lasnetski Gihon Law

With the proliferation of social media, the state has an extra tool it can use to obtain evidence and prove cases in court. At this point, people should understand that posting information on the internet, whether pictures, conversations, documents, etc., does not come with a reasonable expectation of privacy. The police or prosecutors can subpoena information from internet service providers or simply go on a defendant’s social media page and print off or download incriminating information. The bottom line, whether in relation to a criminal case, a civil case or just generally- do not post things on the internet that you would not want the police or the general public to see.

For example, in a case just south of Jacksonville, Florida, the police were investigating two auto thefts that happened in similar locations within an hour of each other. The police developed suspects for the two auto thefts and ultimately obtained one of the suspect’s cellphones. They obtained a search warrant for the phone and saw Facebook postings showing two defendants in the stolen cars. One of the defendants was wearing one of the victim’s watches. The videos were posted on Facebook shortly after the second auto theft. The victims were able to identify the suspects through the Facebook videos. Both defendants were convicted based on the Facebook videos.

This was a fairly extreme example of stupidity on the part of the defendants, but people do post things on the internet that implicate them in crimes or negatively affect civil cases. It may not be as obvious and direct as this, but it does happen, and police, prosecutors and parties in lawsuits do check Facebook pages and other social media to try to find evidence that helps their cases. In Florida, as long as the internet evidence is legitimate and unaltered, it very likely may be used as evidence in court.

Can the Police in Florida Obtain Blood or Medical Records From DUI Suspect With a Subpoena?

Published on: May 1, 2018 | by Lasnetski Gihon Law

In most DUI (driving under the influence of alcohol or drugs) cases in Florida, the police arrest a person they believe is driving while impaired. That DUI suspect is taken to the jail and booked. Only after the suspect is taken to the jail do the police ask the suspect to take a breathalyzer test to test the suspect’s blood alcohol level. In some cases, where the breathalyzer test is not practical, often when there is an accident and the suspect is taken to the hospital, the police will request a blood draw to test that blood for alcohol content.

A DUI suspect may refuse a breath test or a blood test. Due to the implied consent laws in Florida, a refusal may come with certain consequences (such as a longer driver’s license suspension and the state trying to use the refusal as evidence in court), but the suspect cannot be forced to submit to a breath, blood or urine test as a general rule.

However, if the DUI suspect refuses the breathalyzer or a blood or urine test, the police may try to get a subpoena for the blood that they can send to the lab to test for alcohol content. Alternatively, the state can try to subpoena a person’s medical records in cases where a suspect went to the hospital after a crash, and the hospital tested the suspect’s blood for alcohol or drugs. It’s not something we see often, but a subpoena is a tool the police and the state have to obtain evidence when it is otherwise difficult or impossible for the state to get that evidence. In a DUI case, that evidence can be the difference between a strong case and a weak case.

What is Hearsay? Can They Prosecute Me Based On He Said/She Said?

Published on: March 12, 2018 | by Lasnetski Gihon Law

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One of the most misunderstood issues in criminal law is hearsay. People often confuse he said/she said evidence with hearsay. Many people believe that the State cannot prosecute a person based on he said/she said evidence. This article seeks to clear up any misunderstandings regarding what hearsay is and isn’t and when the State can proceed on nothing but verbal testimony.

What is Hearsay?

Hearsay is defined as an out of court statement offered to prove the truth of the matter asserted. Plainly speaking, it typically means that a witness is testifying in court to what someone else said out of court. For example, if witness John Smith takes the witness stand in a DUI case against Mike Adams and says, “Ms. Jones told me that Mike Adams was driving recklessly,” that would be hearsay. The statement, “Mike Adams was driving recklessly,” is being offered to prove that Mike Adams was driving recklessly. This also was an out of court statement made by Ms. Jones. So, this statement should not be admissible unless it fits into one of the statutory hearsay exceptions, as discussed below.

Can the State Take a DNA Swab from a Defendant in Florida Without Proof of DNA Evidence for a Comparison?

Published on: October 31, 2017 | by Lasnetski Gihon Law

In Florida and other states, DNA can be a useful tool for the police and the prosecutors to use to determine who committed a crime. It is not used nearly as often as one might expect from watching TV shows, but it certainly does come in to play in some cases. The police might respond to the scene of a crime and collect samples of tissue in the hopes that they can compare the DNA of that tissue to a suspect, find a match and prove that the suspect either committed the crime or at least was present at the scene of the crime.

However, in order to make this comparison, the crime scene officers need to find usable tissue at the scene. Secondly, the state needs to be able to collect DNA from a suspect to make the comparison with the evidence. In the past, collecting DNA was more intrusive upon defendants and suspects. More recently, a quick, simple and painless cotton swab of the inside of a person’s mouth can secure the DNA necessary for a comparison. Because collecting DNA from a person is much less involved and intrusive than it used to be, courts are more likely to allow it since it is such a minor and unobtrusive procedure.

However, that does not mean the police or the state can just obtain a person’s DNA whenever they want or for whatever reason they want. In a recent armed robbery case south of Jacksonville, Florida, the police collected a gun and a backpack that was apparently possessed by the armed robber. They found a suspect and arrested him. During the case, the state sought to obtain the defendant’s DNA by doing a cheek swab so his DNA could be compared to any DNA found on the gun or backpack. However, due to the Florida crime lab procedures, probably based on budgetary concerns, the state could not say whether they had any DNA from the evidence to compare to the defendant’s DNA. Apparently, the policy is to only determine if there is evidentiary DNA once they have DNA from a suspect.

Massachusetts Court Rules Police Cannot Testify Defendant Was High on Marijuana in DUI Case

Published on: September 22, 2017 | by Lasnetski Gihon Law

In a recent DUI case in Massachusetts, the state sought to prove that the defendant was impaired from marijuana while driving, thereby rendering him guilty of driving under the influence under that state’s DUI laws. At the trial, the prosecutor had the arresting police officer testify that based on his observations of the defendant and the field sobriety exercises, the defendant was high on marijuana. The defendant was convicted of DUI, and the criminal defense lawyer appealed.

The appeal was successful, and the DUI conviction was reversed. The Massachusetts Supreme Judicial Court ruled that a police officer cannot legally testify that a defendant was high on marijuana based on observations and a field sobriety test. The court noted that marijuana can have different effects on different people. Also, the police officer was not an expert on marijuana and its varying effects on people (very few, if any, are; most seem to think they are). As a result, the police officer’s testimony on that issue was improper to support a DUI conviction.

In just about every DUI case, the police officer is going to ask the suspect to submit to field sobriety exercises. These are difficult balancing and related exercises performed under adverse circumstances. The directions for each test can be confusing, and if a suspect says he/she does not understand them or needs for them to be repeated, the police officer will likely suggest that is evidence of impairment rather than the officer’s poor communication or explanation. The tests are completely subjective, and the judge is a police officer who likely already believes the suspect is impaired, otherwise that judge would not have asked the suspect to perform them in the first place. Sometimes the suspect’s performance is recorded on a police officer’s camera in his/her vehicle, but often it is not because many police officers do not have video cameras in their vehicles. If the arrest is not recorded, whether the defendant did well on the field sobriety exercises or completely failed them is a matter of the police officer’s word against the defendant’s word. However, because the effects of excessive alcohol intake are well known and fairly consistent among different people, police officers are allowed to testify that a defendant who allegedly failed the field sobriety tests was too impaired from alcohol to drive. That is not the case with regard to marijuana, according to this recent Massachusetts case.

In Florida, Statements Made to a Police Officer Investigating an Auto Accident Are Not Generally Admissible in Court

Published on: October 28, 2016 | by Lasnetski Gihon Law

In Florida, we have a law commonly known as the accident report privilege. In all crashes that involve an injury or significant property damage, the police officer responding to the crash must prepare a crash report that documents information about the crash and the people involved. When a person is involved in an auto accident in Florida, that person must remain at the scene and provide certain information to the responding officer. One can see how a duty to remain at the scene of the crash and provide information to the police might conflict with a person’s right to remain silent if there might be criminal implications to the crash. Some crashes obviously involve criminal activity, such as driving under the influence of alcohol or drugs, hit and run and/or driving with a suspended license. People have a right to remain silent rather than make incriminating statements to the police.

In order to reconcile this conflict, the Florida accident report privilege provides that the state cannot use in court as evidence a person’s statement made to the police for the purpose of completing the crash report. In other words, if a driver makes an incriminating statement to the police officer while he/she is conducting a crash investigation, the state cannot call the police officer to repeat that statement in court in the state’s case.

However, there are exceptions. First, the state might be able to use a statement made by the driver for the purpose of completing the crash report as impeachment. If at trial the defendant waives his/her right to remain silent and testifies in court about the crash, the state or the opposing party may use the statement made to the police at the time of the crash against the driver if it is inconsistent with what the driver is saying in court. Another exception to the Florida accident report privilege exists where the driver does not follow the law after the crash. For instance, if the driver is involved in a crash and the flees the scene, he/she loses the benefit of the accident report privilege. Florida cases have ruled that where a driver is involved in an accident that results in a death and then leaves the scene of the crash (which is a serious felony crime in Florida), the driver loses the benefit of the accident report privilege if he/she gives a statement to the police once they locate the driver.