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Florida Police Officer Can Detain and Arrest Suspect for DUI While in Private Parking Garage Under Certain Circumstances

Published on: November 10, 2016 | by Lasnetski Gihon Law

Some people in Florida believe they are only at risk of a DUI arrest if they are caught driving on the public roads by a police officer while impaired from alcohol or drugs. That is not true. A person does not even need to be driving to be arrested and convicted of DUI. The Florida driving under the influence statute confers criminal liability on anyone who is driving while impaired from alcohol or drugs or in actual physical control of a vehicle while impaired from alcohol or drugs. We have dealt with many cases where a person was arrested for DUI while resting or sleeping in a vehicle that is not even running. The state can move forward with a DUI case in that situation if the suspect had the keys to the vehicle and it was capable of being driven, even if the keys were not in the ignition at the time.

Additionally, a police officer can initiate a DUI investigation when the suspect is on private property, as opposed to driving on the public roadway, in some situations. In a recent DUI case just south of Jacksonville, Florida, witnesses observed the suspect crash through the barricade at the entrance to a private parking garage and proceed to park inside. The witnesses called the police, and a police officer found the suspect in the parking garage. He initiated a DUI investigation and ultimately arrested him for DUI. The criminal defense lawyer moved to dismiss the DUI charges because the incident took place in a private garage.

Florida law is not exactly clear as to a police officer’s authorization to detain, investigate and arrest someone for DUI inside a private garage or other private property. It is certainly possible that if all of the events of this incident occurred within the confines of the private property, the police officer would not be authorized to conduct a DUI investigation. However, in this case, the defendant crashed through the barricades at the front of the property from a public roadway and proceeded into the private garage. Additionally, the driver did not pay to enter private garage as patrons were supposed to if they wanted to lawfully use the garage. The court found that this was sufficient to allow the police officer to conduct a DUI investigation and ultimately make the DUI arrest. Had the defendant entered the garage appropriately and shown signs of impairment once inside, perhaps by hitting a parked vehicle inside, it is not clear if the police officer would have been permitted to conduct a DUI investigation at that point.

The War on Drugs Sometimes Causes Police Officers to Forget About the Constitution

Published on: November 4, 2016 | by Lasnetski Gihon Law

Police officers like marijuana arrests because they are easy- they don’t require much work, they don’t require much thought, and they don’t require much, if any, investigation. This is one of many reasons why dealing with the war on drugs that primarily serves to waste money and increase the size of government is so difficult Despite the government’s desire to continue the war on drugs, it is not an excuse to disregard the Constitution and the right to be free from unreasonable searches and seizures.

In a recent possession of marijuana case near Jacksonville, Florida, the suspect was riding his bicycle at night without proper lighting. There was no evidence of any criminal activity, but riding a bike without proper lighting is a traffic violation. Based on this lighting malfeasance, two police officers saw fit to stop their vehicle and detain the suspect. The officers asked the suspect for his ID, and he opened his bookbag to retrieve it. The suspect tried to shield the officers from seeing into the bookbag when he obtained his ID but did not act suspiciously. Based on this, the officers handcuffed the suspect and seized the bookbag. The officer then claimed to smell marijuana, searched the bookbag and found small bags of marijuana inside. The suspect was arrested for possession of marijuana.

The criminal defense lawyer filed a motion to suppress the marijuana evidence. The police do have a right to stop someone for committing a traffic violation, even one as minor as this one. However, they can only stop the person for the purpose of writing a ticket for the violation. They cannot detain the person for any longer period of time or seize the person by handcuffing him unless there is specific evidence of criminal activity. In this case, there was none. The suspect complied with the officer and obtained his identification from his bag. If the suspect did so in a way the officer did not like, that is not a specific indicator of criminal activity. If the police officer claimed he searched the bag because it could have had a weapon or drugs without specific evidence, then any police officer could search anyone with a bag, a car, pockets, etc and claim a suspect could have something illegal in a place the officer cannot see. That is not how the Constitution works.

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.

In Florida Grand Theft Case, the State Must Prove the Value of the Item Stolen

Published on: October 17, 2016 | by Lasnetski Gihon Law

In Florida, a theft is a felony offense, known as grand theft, if the value of the property stolen was $300 or more. If the value of the property is significantly higher, the offense can be a second degree felony or a first degree felony depending on the circumstances. If the value of the property is less than $300, the offense is a misdemeanor. Therefore, when someone commits a theft, the level of the crime and how serious it is depends heavily on the value of the property stolen. It is up to the state to prove that value beyond a reasonable doubt. If the state cannot prove the value of the property is $300 or more, the offense will be a misdemeanor even if it seems obvious that the property is more valuable.

For example, in a recent theft case near Jacksonville, Florida, the defendant stole some used fencing material from a business. The fencing material was old and had not been in use recently, so the business did not know its value or what they paid for it. At the trial, the state did not present any evidence of the market value of the fencing but did have someone from a hardware store testify that the replacement value of the fencing was $450. Based on that testimony, the defendant was convicted of grand theft.

The criminal defense attorney appealed the grand theft conviction and won. According to the Florida theft statute, the state must prove beyond a reasonable doubt what the market value of the stolen property was at the time it was stolen. If for some legitimate reason the state cannot determine the market value at the time of the theft, the state can rely on the replacement value of the property near the time of the offense. In this case, the state did not attempt to prove the market value of the stolen property. The state also did not establish why they were unable to prove the market value. Without such proof of why they could not determine market value, the state was not permitted to use replacement value instead. Additionally, the witness who testified about replacement value did not adequately prove replacement value. The evidence of replacement value has to relate to similar property around the time of the theft. The state must have some evidence of the condition of the property when it was stolen and/or how new the property was. For instance, if used fencing material was stolen some time ago, the state cannot just being in a witness to say what new fencing would cost today. The state must offer evidence of what used fencing materials would cost similar to what was stolen.

Florida Police Officer Improperly Arrests Suspect for Giving False Name

Published on: October 14, 2016 | by Lasnetski Gihon Law

A recent encounter between a suspect and a police officer near Jacksonville, Florida illustrates that police do not have free reign to question suspects and detain them based on mere suspicions or the fact that they do not like a person’s answers. In light of recent police shootings and some people’s automatic defense of police regardless of the facts or the relevant law, it seems as if some people believe that it is the obligation of citizens to comply with police no matter how unlawful the police conduct might be.

In a recent cocaine possession case, a police officer observed the suspect standing next to a car in the middle of the road. When the police officer approached, the car fled but the suspect remained on foot. The police officer asked the suspect his name, and he gave a name that the police officer later determined was a false name. Once the police officer ran the name and checked with another individual nearby who knew the suspect, he determined that the name was false. He arrested the suspect at that time. After the arrest, the police officer searched the suspect and found that he was in possession of cocaine. After arresting the suspect for possession of cocaine, he got the suspect’s true name and learned that he had a separate felony warrant outstanding.

The criminal defense lawyer filed a motion to suppress the evidence of the cocaine based on the fact that the defendant was illegally detained and illegally arrested. The appellate court agreed. The defendant was not breaking the law when the police officer approached him. The police officer is permitted to ask questions of anyone, but when the defendant gave a false name, that was not against the law either. Giving a false name can be a misdemeanor crime in Florida, but only if the defendant was lawfully detained or arrested at the time. At the time the defendant gave the false name, the police officer did not have any legal reason to detain or arrest him. Therefore, giving a false name at that time was not a crime under Florida law.

Florida Juvenile Who Sent Threats on Twitter Not Guilty of Making Threats Crime

Published on: October 4, 2016 | by Lasnetski Gihon Law

In Florida, it is a crime to make a threat to kill or cause bodily injury to someone or someone’s family member. In fact, it is a very serious second degree felony punishable by up to 15 years in prison if the threat is communicated to the victim or his/her family in writing. With the popularity of social media and sites like Facebook, Twitter and many other sites that allow people to communicate with others over the internet, people should understand that “in writing” includes electronic communications. Therefore, a person could make a threat over Facebook to kill or injure someone and send it to the other person and face a serious felony charge as a result. These “written” threats are more serious than verbal threats under Florida law, and of course, generally easier to prove.

There are some limitations to this law. In a recent case near Jacksonville, Florida, a defendant sent out a post on Twitter saying he was going to shoot up his school. When someone sends such a post on Twitter, anyone following the author can see it, and those people can send the post to anyone else. In theory, anyone on Twitter could eventually see the post and where it came from.

Not surprisingly, this post made the rounds, and the kid who wrote and sent it was arrested for making written threats, but not before the school was notified, the students were evacuated and many police officers responded to the school.

Can the Police in Florida Search a Suspicious Package Sent Through the Mail?

Published on: January 16, 2016 | by Lasnetski Gihon Law

Every now and then, as criminal defense lawyers in Jacksonville, Florida, we get possession of drug or drug trafficking cases that involve someone sending a package containing drugs through the mail. Sometimes, the package of illegal drugs is actually addressed to a specific person. Other times, the drug package is addressed anonymously (i.e. to “Resident”) or addressed to a fake person. A question often arises as to if and when the police are allowed to open the package and search it. Sometimes, someone at the mail facility notices that the package is suspicious and contacts the police. Other times, the police might have officers at the facility looking for specific packages. Drug packages can be suspicious based on how they are addressed, where they are from and how they are packaged.

A possession of marijuana case near Jacksonville, Florida involved a box of marijuana that was sent to a friend of the defendant through the United States Post Office. The package came from California which is one of the suspicious factors the police look for. The package was sent to an apartment, but the name on the package did not match anyone who was listed as a resident at the apartment complex. That was another red flag. The renter of the apartment, a friend of the defendant’s, accepted the package and signed for it in the name of the person listed on the package, which was not her true name. The police were involved with the delivery of the marijuana package and confronted the woman about it. She said she was accepting the package for a friend. She then gave the police consent to open it and search it. The police found a couple of pounds of marijuana in the package. The woman then texted the defendant and told him the package was ready for him to retrieve. When he arrived, he was arrested for conspiracy to possess marijuana.

There were a few search and seizure issues involved in this case. The criminal defense attorney for the defendant filed a motion to suppress the marijuana evidence arguing that since the package did not belong to the woman, she did not have the legal authority to give the police consent to open it. Generally, people do not have the legal authority to give consent to search things that do not belong to them. In such cases, the police would need to get consent from the owner of the property or get a valid search warrant for the package.

EL Faro Ship That Departed From Jacksonville Florida Still Missing

Published on: October 5, 2015 | by Lasnetski Gihon Law

As people in Jacksonville, Florida and along the east coast know, there was a lot of discussion about Hurricane Joaquin last week and the various paths it might take. Some meteorologists had Hurricane Joaquin partially contacting the east coast of Florida while others predicted that it would pass well east of Florida and cause a tremendous amount of rainfall in the South Carolina area. In any case, just about every meteorologist expected Hurricane Joaquin to move north as it past Florida to the east, which is what it did. The only question was how close it would get to the Florida coast.

While Jacksonville was not victimized by Hurricane Joaquin, it did apparently cause a serious tragedy to a ship and crew that left Jacksonville for Puerto Rico on Tuesday of last week. The ship, which carried a crew of 33 people and almost 700 containers, was lost at sea on Thursday, when Hurricane Joaquin was to the east of Florida. Officials lost contact with personnel on El Faro when it was near the Bahamas, on the way to Puerto Rico. It was estimated that El Faro would have been traveling through 20 to 30 foot waves as it made its way to Puerto Rico during the hurricane. As of the date of this post, the ship has not been found although some debris from the ship has been recovered as part of the search and rescue mission.

The ship is owned by TOTE Maritime, which indicated that most of the people on El Faro are from the United States, while a few of them are from Poland. Many of the Americans on El Faro have some connection to Jacksonville, the city from which El Faro departed.

Lasnetski Gihon Law named one of U.S. News and World Report’s Best Law Firms

Published on: November 12, 2014 | by Lasnetski Gihon Law

Lasnetski Gihon Law (formerly Lasnetski Gihon Law) was recently named as one of U.S. News and World Report’s Best Law Firms in the area of Criminal Defense – White Collar, Metro division, Tier 1. Click here to see the listing. You can see the methodology used by U.S. News and World Report here.

Lasnetski Gihon Law partner Harry Shorstein speaks to Jacksonville Downtown Rotary about use of taxpayer money.

Published on: October 5, 2013 | by Lasnetski Gihon Law

The use, and often abuse, of taxpayer money by government officials is a popular topic in discussions about politics. All too often, it seems like politicians scream and shout about how conservative they are yet when they get elected, they treat taxpayer funds like they have won the lottery. In any case, here is an article discussing a speech by Lasnetski Gihon Law partner Harry Shorstein to the Jacksonville Downtown Rotary group about some past and present issues facing jacksonville, Florida and the use of taxpayer funds.