Jacksonville Criminal Lawyer Blog

Florida Police Officer Out of Jurisdiction Could Not Make Citizen’s Arrest for DUI

Published on: October 3, 2017 | by Lasnetski Gihon Law

A recent DUI case near Jacksonville, Florida had a couple of interesting issues. Essentially, a police officer was in his patrol car but out of his jurisdiction. He came across a person riding his motorcycle who had just crashed. She went over to assist and ultimately determined that he had been driving while under the influence of alcohol (DUI). The police officer kept the suspect at the scene until proper backup from the that jurisdiction could arrive. Once a police officer in that jurisdiction arrived, he took over the DUI investigation and arrested the defendant for DUI. By the time the second police officer arrived, the defendant was no longer driving or on his motorcycle.

The first issue is that a police officer cannot generally make arrests outside of his jurisdiction. This first officer was in a different county. It was nice that he went over to try and assist the defendant, but he was not legally authorized to make an arrest of the defendant for DUI. There are exceptions to this rule, for instance, where a police officer is chasing a suspect who goes into another county, or police officers have agreements in place with agencies in other counties or emergency situations where felonies occurred. However, none of those applied here.

There is something in Florida law called a citizen’s arrest. Citizens can arrest other people for felonies and breach of peace. A police officer outside of his jurisdiction has the same right to effect a citizen’s arrest as a normal citizen does. A DUI that does not involve a serious injury or death is not a felony, so if this was to be a valid citizen’s arrest, it would have to be considered a breach of peace. A breach of peace is a generic legal term. It is like obscenity- you know it when you see it, but it generally is going to require an element of disturbing the peace. The court determined this was not a breach of peace situation as the defendant was not causing any disturbance to others when the police officer found him. Certainly, erratic driving that endangers others could be a breach of peace, but this officer did not observe that. Because there was no right to make a citizen’s arrest and this officer was not in his jurisdiction, the officer had no right to try and keep the defendant at the scene to wait for the second officer.

A Person in Florida Who Has Not Obtained a Driver’s License Cannot be Charged with a Felony Suspended License Charge

Published on: September 30, 2017 | by Lasnetski Gihon Law

In Florida, it is a crime for a person to drive a motor vehicle if his/her license is suspended and he/she knows it is suspended. That last part is important because it is only a civil traffic infraction to drive with a suspended license in Florida if the driver is not aware of the license suspension. In many cases, for first time violators, whether a person gets the civil citation or a criminal charge for driving with a suspended license will depend on how the officer who pulls the driver over feels.

If the state believes the driver knew he/she had a suspended license and drove anyway, the state will charge the driver with a crime. Normally, it is a misdemeanor crime. However, if a person has two or more prior convictions for driving with a suspended license, the state can charge the person with a third degree felony. For the first or second violation, the penalties are usually minimal, especially if the defendant can obtain a good license while the case is pending. Additionally, the state will often charge a person with the misdemeanor crime even if he/she has a few prior convictions because most prosecutors understand there are much more serious cases that should occupy their time. However, once a person gets several of these convictions or once the person has been charged with a felony, jail time and/or future felony charges are a real possibility for subsequent violations.

A person’s driver’s license can be suspended for a few reasons, including a DUI, a marijuana possession conviction, unpaid tickets, too many points on the driving record, auto insurance issues and other reasons. Judges often consider driving on a suspended license more or less serious, and more or less deserving of jail time, depending on the reason for the underlying suspension. For instance, many judges in Florida will generally order jail time if a person is driving while his/her license is suspended due to a recent DUI conviction. On the other hand, judges usually are not too concerned about suspensions due to unpaid tickets, especially if they are paid in a reasonable period of time.

Florida Court Rules it is OK for Police Officer to Stop DUI Suspect He Had Seen Impaired an Hour Earlier

Published on: September 26, 2017 | by Lasnetski Gihon Law

In most DUI (driving under the influence of alcohol or drugs) cases in Florida, a police officer will observe a person driving erratically or violate a traffic law and pull that driver over. The police officer will claim to observe evidence that the driver is impaired from alcohol or drugs and proceed with a DUI investigation that includes questioning, field sobriety tests (if the driver agrees) and a request to submit to the breathalyzer machine. There are other ways for DUI cases to start (an accident, a DUI checkpoint, a driver asleep in a parked vehicle), but this is the most common.

However, in a recent DUI case near Jacksonville, Florida, a police officer responded to a incident at a local bar. He observed the defendant next to her car, and believed that she was highly intoxicated. He told her not to drive and warned her that he would pull her over if he saw her on the roads. Approximately an hour later, the police officer drove to the bar and saw the suspect drive her car drive out of the parking lot. Although she had not violated any traffic laws, he pulled her over. He conducted a DUI investigation, determined that she was drunk driving and arrested her for DUI.

The criminal defense lawyer filed a motion to suppress the evidence and have the DUI case dismissed because the police officer did not have a legal basis for stopping the defendant. A police officer must have probable cause to stop a driver, and that almost always comes from actually observing the driver commit a traffic violation. At a minimum, a police officer normally has to testify that he/she observed the suspect drive erratically which prompted the officer to conduct a traffic stop and investigate a possible DUI. In this case, there was no such improper driving.

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, the State Can Force a Defendant to Prove Where Money Comes From Before Being Released on Bond

Published on: September 16, 2017 | by Lasnetski Gihon Law

In Florida, the process for a person getting out on bond while a criminal case is pending is usually fairly standard. If the police officer obtains an arrest warrant to arrest a suspect based on a prior crime, the judge who signs the arrest warrant will normally also place a bond amount on that warrant. After the arrest, if the defendant can make that bond, then he/she will be released pending the resolution of the case. When the police arrest someone immediately after an alleged crime was committed without an arrest warrant, that defendant will normally see a judge the next day. That judge will set a bond for the defendant then at what is called a first appearance hearing. The defendant can then be released if he/she can make the bond.

The general rule is that anyone who was arrested has a right to a reasonable bond, and if he/she can make that bond, either by paying the full amount or by paying 10% or so to a bonding company, that person can be released from jail. There is an exception to this general rule that can delay or even prevent a defendant from being released on bond even if he/she can come up with the money to pay the bond. The state can file what is called a Nebbia motion to prevent a defendant from bonding out. Essentially, if the state believes, regardless of whether there is any specific evidence to support this belief, that the money to be used to pay the defendant’s bail might come from illegal sources, the state can require the defendant to show that the money comes from a legitimate source. This does not sound problematic on its face. Defendants should not be able to use funds from illegal sources as bond money. The problem is that a defendant is normally entitled to a reasonable bond at his/her first appearance hearing and should be released on that day if he/she can make a reasonable bond. If the state files the Nebbia motion, many judges will not hold a hearing on that issue at the first appearance court date. Some judges have never had such a hearing and are not comfortable conducting one when the case may ultimately go to another judge anyway. Even if a judge is prepared and willing to hold the Nebbia hearing immediately, the defendant may need some time to get evidence and witnesses to court to prove where the bail money is coming from. Judges do not hold these kinds of hearings every day. If the hearing needs to be postponed for whatever reason, it could take a couple of weeks before the defendant could have a chance to prove the legitimacy of the bond money and bond out.

The bond system in Florida is already rife with injustice. Obviously, although it is much worse than most people know, it favors people with money and severely hinders poor people. All day, every day there are people who plead guilty to a criminal charge without seeing the evidence and without a meaningful consultation with a lawyer because they want to get out of jail quickly and can not afford to make a bond or wait several weeks for the next court date. The Nebbia inquiry, which the state can request on a mere hunch in all sorts of different cases, adds another questionable procedural hurdle for people to be released who are innocent until proven guilty at that stage of the proceedings.

Prosecutors in Florida Can Still Proceed with a Violation of Probation Case Based on a Criminal Charge That Was Dropped

Published on: September 13, 2017 | by Lasnetski Gihon Law

When a person enters a guilty or no contest plea or is convicted in a criminal trial, the next step is normally for the judge to sentence the defendant. A criminal sentence can involve incarceration, probation or both. If a defendant is placed on probation, he/she is placed on probation for a number of months or years. During that time, there are usually conditions the defendant must meet. For instance, the defendant may have to complete community service hours, take certain classes, complete a rehabilitation program and so on. One condition that is required among all people on probation is that he/she must not commit any new crimes. If a person violates one or more of these conditions, that person will likely be arrested and will face a violation of probation charge.

There are two characteristics of a violation of probation charge in Florida that make it more difficult for defendants than regular criminal charges. One, the case is decided by the judge rather than a jury. There is no right to a jury trial for violation of probation charges. Two, the standard is much lower. For new criminal cases, the state must prove guilt beyond a reasonable doubt. There is no way to quantify this standard, but it is supposed to be a pretty high burden, at least in theory. For violations of probation, the standard is a preponderance of the evidence, which means more likely than not, or greater than 50%. This is universally considered a low standard.

One intricacy that sometimes comes into play with people on probation is a situation where the probationer gets arrested on a new charge, and for whatever reason, the state does not feel like they can prove the case to a jury beyond a reasonable doubt. However, they do proceed with a violation of probation case based on that alleged crime since the standard is lower and a judge decides. This most often happens in domestic battery cases. The state may have a hard time proving the new domestic battery charge to a jury because the police often do not collect much evidence or do any investigation at the scene upon arrest and alleged victims often change their stories or refuse to cooperate. However, judges are fully aware of the difficulties in proving domestic battery cases when victims refuse to cooperate, and they know a dropped domestic battery charge does not necessarily mean the suspect is not guilty. Sometimes it does; sometimes it doesn’t. The state dropping a case and the defendant being innocent are not necessarily the same thing under the law.

Littering Can be a Felony Crime in Florida

Published on: September 9, 2017 | by Lasnetski Gihon Law

People in Florida litter all of the time. You cannot drive more than a block around here without seeing trash that was discarded along the side of the road. Most people probably assume that the penalty for getting caught littering is a fine. There are signs along some roads which indicate what the fine is for littering, not that we have ever seen a police officer enforce them. Littering is a noncriminal violation that can only be punished with a fine if the amount of trash or debris is small. Under Florida law, if a person litters and the weight of the trash is no more than 15 pounds, the penalty is up to a $100 fine. However, as the weight or volume of the trash becomes greater, the violation is a criminal violation and the potential penalties become more serious.

At 15 to 500 pounds, littering becomes a first degree misdemeanor. This carries a penalty of up to 12 months in jail. No one is likely to go to jail in Florida for a misdemeanor littering charge, although it is theoretically possible, but the statute specifically mentions that the defendant must be ordered to do community service which would involve picking up trash. If the littering was done by throwing the trash out of a vehicle, three points are added to the defendant’s driving record with the DMV.

If the littering involves more than 500 pounds or 100 cubic feet in volume, it becomes a third degree felony. This crime carries a maximum sentence of five years in prison in Florida. Again, prison is unlikely for a felony littering charge, unless serious damage was done, but the statute specifically mentions penalties that the judge must impose. The defendant must remove the litter and repair or pay for any damages caused by it. The defendant must also perform community service to help restore the area affected or another area damaged by littering. The defendant must also pay three times the amount of damage caused by the littering to someone who was damaged as a result of the felony littering.

Florida Police Officer Has Murder Case Dismissed Based on Stand Your Ground Law

Published on: September 5, 2017 | by Lasnetski Gihon Law

Most people are aware of the Florida Stand Your Ground law as it received a lot of notoriety during the George Zimmerman case and other cases in Florida since then. Essentially, the law says that people in Florida are not required to retreat and can use deadly force if he/she reasonably believes it is necessary to prevent the other person from committing an imminent act that is likely to cause death or serious injury to him/herself or another person. It is basically a self defense law that allows a person to use deadly force if the person legitimately thinks the other person is going to do something very bad to him/her. The law provides some procedural benefits to a defendant who can utilize the Stand Your Ground law.

One question is whether police officers can use the Stand Your Ground law like regular people can. In a recent murder case near Jacksonville, Florida, a police officer was charged with murder after shooting someone he claimed he thought had a weapon and was pointing it at him. The police officer was responding to a suspicious person call and saw the suspect walking in a neighborhood with what appeared to be a rifle. He followed the suspect and ultimately told him to drop the alleged rifle. The suspect did not drop it and pointed it at the police officer, according to the officer. The police officer then shot him and killed him.

The criminal defense lawyer filed a motion to dismiss the charges based on the Florida Stand Your Ground law. The criminal defense attorney argued the police officer reasonably believed the suspect had a weapon and was going to fire it at the officer, and he shot the officer in self defense. The state objected and argued that a police officer does not have the right to assert the Stand Your Ground law because there is a Florida statute that specifically addresses when a police officer may use force when effecting an arrest. Because there is already a statute on this issuing specifically dealing with police officers are arrests, that law applies rather than the Stand Your Ground law which applies to people generally.

Police in Florida Arrest Man for Letting Young Child Walk Down the Stairs

Published on: September 1, 2017 | by Lasnetski Gihon Law

In Florida, there is a criminal statute that addresses the neglect of a child. The statute is problematic because it is broadly written. The effect is that police officers have very broad discretion to arrest a person for child neglect. And prosecutors similarly have wide discretion when deciding whether to file charges. As a result, a police officer’s opinion, normally based on very limited information, about how a parent should raise or deal with a child takes precedence over the parent in response to situations that may or may not involve actual negligence.

The Florida statute does not just apply to parents. Any caregiver who neglects a child can be charged with child neglect in Florida. Child neglect is a serious felony charge. It becomes more serious if the child is injured as a result of some incident relating to the alleged neglect. If there is no injury, child neglect is still a third degree felony. It is a serious charge for a crime that may be reasonable parental conduct that a police officer just disagrees with.

For example, we have handled several cases where a parent decides a child or children are old enough to be left alone at home for a period of time. Something happens, maybe there’s a knock at the door or the kid breaks something and cannot reach the parents, the kid panics and ultimately the police respond to the home. If whichever police officer responds to this situation decides the kid should not have been left alone, not knowing the history and circumstances of the kid and the parents, then the parents will get arrested for a serious felony charge. And we find that some police officers do not like responding to situations and coming away empty handed. The old- I will arrest these people and let the lawyers and the judge figure it out approach. This is not an uncommon scenario.

Preventing a Victim or Witness from Reporting a Crime in Florida

Published on: August 18, 2017 | by Lasnetski Gihon Law

In Florida, and likely in all of the other states as well, it is illegal for a person to prevent another from reporting a crime or otherwise providing information about criminal activity to the police or in court. This is part of a more inclusive statute dealing with witness tampering. The Florida law makes it illegal for a person to use force, intimidation or threats to cause another person to avoid testifying or providing evidence in a case, damage or alter evidence, avoid a subpoena or testify falsely. It is also illegal to hinder a person from reporting a crime. This is a felony crime in Florida, and it becomes a more serious felony the more serious the underlying issue is. For instance, a person can be charged with a life felony of tampering with a witness if the person is obstructing a witness relating to certain serious first degree felony crimes.

This situation can come up in almost any case, but it comes up more frequently in domestic violence cases. Since the parties know each other in domestic battery cases, the dynamic is one where it is more likely that the suspect will takes steps to try and prevent the victim from calling the police, giving a statement to the state or coming to court to testify. If force, threats or intimidation are used, this could be a separate crime.

A person can be guilty of tampering with a witness even if the witness or victim has not taken any steps to contact the police or report a crime. In a recent case near Jacksonville, Florida, the defendant was being abusive to his daughter. The kid’s mother and sister observed the incident. After some yelling, the defendant took the cell phones from the older sister and mother and broke one of them. He kept the other. He told them they could not call the police on him for his abuse. No one had attempted to call the police and report the abuse before the defendant took the cell phones. The defendant was charged with tampering with the two witnesses for preventing them from calling the police.