Jacksonville Criminal Lawyer Blog

Inching Closer to the Legalization of Marijuana

Published on: June 30, 2016 | by Lasnetski Gihon Law

As criminal defense lawyers in the Jacksonville, Florida area, we still spend too much time and effort dealing with criminal cases and probation violations involving marijuana. It is a tremendous waste of taxpayer money and government resources, notwithstanding how completely ineffective the war on drugs continues to be. Some law enforcement agencies admit the obvious here and are not necessarily opposed to legalization efforts. Others are more stat oriented and realize how much easier drug arrests and prosecutions are than investigating and prosecuting more serious and complex crimes and continue to be opposed to legalization. Job security and taking the easy road are strong motivators.

In any case, the legalization movement forges ahead. Voters in California will be able to vote on marijuana legalization in November once again. They screwed it up last time, but most people agree that it is a matter of when, not if, this will pass in California. And once it takes hold in California and people see that civilization will survive, taxpayers will not be wasting as much money on the war on drugs carousel and money will be raised for positive causes through taxation (as in places like Washington, Colorado, Alaska and Oregon), legalization will continue to move forward in other states.

One problem facing legal marijuana businesses is that they do not have access to the same banking services afforded to other businesses. As a result, they cannot accept credit cards and other convenient forms of payment. They are primarily cash only businesses. This is the case because marijuana is still illegal under federal law and banks are not willing to risk federal criminal prosecution to serve the marijuana industry.

Paying Back the Money in Government Benefits Fraud Cases Can Lead to Your Arrest in Florida

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

As criminal defense lawyers in Jacksonville, Florida, we handle a wide variety of fraud and theft cases in state and federal courts. A common criminal case we see is one where a person receives government benefits, such as unemployment benefits, without proper authorization. For instance, a person might misstate certain facts in the benefits application that allows him/her to receive the benefits when he/she really is not eligible under the law to receive them. Other times, a person may be entitled to receive the government benefits initially, but due to changed circumstances, such as a new job or a marriage that brings a second income into the household, the person is no longer eligible to receive the benefits but fails to disclose the new information to the government and keeps getting the benefits despite no longer being eligible.

In these cases, it is common for someone in the government benefits office to contact the recipient and alert him/her that there is a problem. If it is confirmed that the person is receiving benefits improperly, the government agency will often offer the recipient a deal by which he/she acknowledges the fraud and agrees to pay the unauthorized money back. This can be a good deal, but it can also create problems for the recipient. It can work out great if the recipient agrees to pay the money back over time, pays the money back according to the plan and then the government agency closes the case without ever alerting the police. However, it can be problematic if the person admits the fraud to the agency, agrees to a plan to pay the money back but then fails to make the payments for whatever reason. In this scenario, which is common, the government agency normally will then take the case to the police or the prosecutor in which case an arrest and felony charges are likely. Additionally, because the recipient has likely already acknowledged the fraud to the government agency and agreed to pay the money back, it becomes difficult to defend the criminal case by denying the fraud. Of course, as usual it depends on the circumstances of the particular case. We have also seen cases where a person has agreed to pay the money back, was making the payments according to the plan and law enforcement still became involved resulting in criminal charges.

Fortunately, the state and federal prosecutors are usually reasonable in these kinds of cases, as long as the amount of money is not too significant. They will normally consider the fact that the defendant tried to pay the money back, especially if there is a valid reason for not being able to repay the full amount. But, these are still serious felony charges, in most cases, and it is important that they are handled correctly. When they are handled correctly with an experienced criminal defense attorney, it is possible for the charges to get dropped or for the defendant to otherwise avoid a criminal conviction so his/her record can be cleared.

An Improper Promise Can Make a Statement Inadmissible in Florida

Published on: May 27, 2016 | by Lasnetski Gihon Law

When the police in Florida believe a suspect committed a crime, they will often take steps to get that suspect to make admissions that can be used against the suspect in court. When the police take someone into custody and seek to get a statement from the suspect, the police have to read the suspect the Miranda warnings informing the suspect that he/she does not have to make any statement and has a right to a criminal defense lawyer. We advise people that it is almost always in a suspect’s best interests to remain silent in those circumstances, as the Constitutional gives a person a right to do. It may be a good idea to talk to the police at some point, but it is generally smarter to do so once the suspect has a better idea of the allegations, issues and the process.

The police use a variety of tactics to get people to make statements that will incriminate themselves. However, not all such methods are legal. In order for a confession to be admissible in court, it must be voluntarily given. This does not just mean the police cannot beat a confession out of a suspect. It also refers to situations where the police use improper threats or promises to elicit a statement. In a recent robbery and attempted murder case near Jacksonville, Florida, the police were investigating a shooting and brought the suspect in for questioning. At first, the suspect denied any knowledge of the shooting. The police officers pressed the suspect and ultimately implied that if the suspect told the truth, as the police saw it, the suspect would likely face lesser felony charges. The suspect changed his story and admitted to involvement in the shooting.

The criminal defense attorney filed a motion to suppress the defendant’s statement arguing it was not voluntary. The appellate court agreed. The police are not allowed to make improper promises of leniency to get the defendant to make a statement. Therefore, the police cannot suggest that the defendant would face lesser charges or receive some other benefit for making a statement.

Recorded Jail Call Leads to Drug Trafficking Conviction for Florida Inmate

Published on: May 23, 2016 | by Lasnetski Gihon Law

When a person is arrested for a crime in Florida, he/she is taken to the local jail. If he/she cannot make bond, he/she will remain there until the criminal case is resolved. Inmates in the local jail generally have phone privileges, but they are informed that each call is recorded. In many cases, particularly the more serious cases and cases that are likely to go to trial, prosecutors will retrieve the jail call recordings in the hopes of finding incriminating statements made by the defendant. While all inmates know these jail calls are recorded by the state, it is amazing how often inmates say things during these jail calls that impair their cases.

As criminal defense lawyers in Jacksonville, Florida, we always inform our clients never to talk about their cases during jail calls. The risk of doing so drastically outweighs any benefit of having such a recorded conversation.

For example, in a recent drug trafficking case near Jacksonville, Florida, the defendant was charged with conspiracy to traffic in various controlled substances by ordering them off of the internet from a foreign country. The police were able to obtain a printout of all of the drug orders the defendant made from his computer. They were able to access his computer because the defendant called a friend from jail and gave the friend his computer username and password and asked the friend to access the site he used to order the drugs. The state obtained a copy of this recorded phone call and used that information to get into the defendant’s computer.

If You Refuse to Submit a DNA Sample to Police in Florida, Can the State Use That Refusal Against You in Court?

Published on: May 20, 2016 | by Lasnetski Gihon Law

In Florida, most people know that their Fifth Amendment right to remain silent means that the state cannot normally use a person’s silence in response to police questioning against them in court. However, does this same principle extend to a refusal to provide DNA?

In a recent murder case south of Jacksonville, Florida, the police responded to an apartment where they saw signs that the victim had been attacked. The police were able to collect DNA from the apartment which they believed came from the attacker. They went to question the defendant who was the ex-boyfriend of the victim. The police asked if they could take a DNA sample from the defendant (now done with a simple swab inside a person’s mouth) to compare it to what they found in the apartment. The defendant refused to give a DNA sample.

The defendant was ultimately arrested for murder. The state tried to admit the evidence that the defendant refused to provide a DNA sample. They argued that the defendant’s refusal was evidence of his consciousness of guilt. The trial court let the state admit the evidence. However, the case was reversed on appeal. The appellate court found it was particularly important that the police did not tell the defendant that if he refused to provide a DNA sample, that could be used against him in court, similar to Miranda warnings that are given. The defendant was given the impression that giving the DNA sample was optional, and if he refused, there would be no adverse consequences. Had the police made the proper disclosure to the defendant and he still refused, then the state would likely have been able to admit evidence of his refusal at the trial.

The Fifth Amendment Protects a Person’s Right to Remain Silent Before Arrest and Before Miranda Warnings

Published on: May 6, 2016 | by Lasnetski Gihon Law

Most people understand that everyone has a Constitutional right to remain silent. This is a right afforded to people in the Fifth Amendment to the U.S. Constitution and the Florida Constitution. As many people are aware, this means that the police cannot force you to give a statement or say anything that might be used as evidence against you in a criminal case. It also allows you to refuse to testify at a criminal trial. If you do exercise your right to remain silent upon arrest, after arrest or at trial, the state cannot use your silence against you. That means the state cannot imply during your criminal case or at trial that you remained silent because you are guilty. The state cannot make any suggestion to the jury about your decision to remain silent or why you made that decision.

One question that occasionally comes up is when this right to remain silent becomes relevant. It is clear that a person is protected by the Fifth Amendment upon an arrest, in all pretrial proceedings and at the trial. Does a person have the same protection before an arrest?

In a murder case near Jacksonville, Florida, the police responded to a shooting and found a dead body in the same house as the defendant. The police asked the defendant several questions about the situation, but the defendant did not answer. At this point, the defendant was not under arrest and had not been informed of the Miranda warnings which discuss the right to remain silent, among other rights. The defendant was ultimately arrested for murder. At the trial, the state put the police officer on the stand and asked him a variety of questions about how he asked questions of the defendant at the crime scene, but she remained silent. The state used this testimony to suggest her silence was evidence of her guilt. The defendant did not testify at the trial.

Florida Vehicular Homicide Conviction Based on Speeding Alone Reversed

Published on: May 1, 2016 | by Lasnetski Gihon Law

In Florida, vehicular manslaughter cases are very serious. That seems obvious, but states and counties treat these crimes differently depending on how prosecutors’ offices and judges view them. Vehicular homicide often involves a defendant who did not intend to commit a crime and has never been in trouble before doing something with the most tragic results. Some places view this as worthy of probation. Others view it as worthy of long prison sentences. In Jacksonville, Florida, they are most often viewed in the latter manner and come with significant prison sentences.

Most vehicular homicide cases involve a person who causes a crash that results in death while being impaired from alcohol or drugs. In that case, the police officer will investigate the driver at the scene, do field sobriety exercises if practicable, request a breathalyzer test after the arrest at the jail or request that blood be drawn for testing if the driver goes to the hospital.

However, the state can charge a person with vehicular homicide even if no drugs or alcohol was involved with the crash. The law in Florida distinguishes accidents involving negligence from those involving reckless driving. Negligence cases normally involve a driver violating one or two traffic laws resulting in a crash. For example, if a person was speeding, ran a red light or pulled out in front of another vehicle and caused a deadly crash, that is likely to be considered negligence. Negligent conduct results in traffic tickets and lawsuits but not criminal charges. If a person’s driving goes beyond that kind of negligence and is particularly egregious, it can be considered reckless. For instance, driving 65 miles per hour in a 45 miles per hour zone and causing a crash is probably going to be considered negligence given how common speeding is. However, driving 85 mph erratically in a 45 mph zone in the rain certainly comes closer to recklessness and criminal behavior. Ultimately, the police decide if it is sufficient for an arrest, the prosecutor decides if it is sufficient to file criminal charges and a judge or jury decides if the defendant is in fact guilty of the crime.

If a Suspect in Florida Throws Evidence Away, it Becomes Abandoned Property and Fair Game for Police

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

It is pretty clear in Florida that a police officer cannot search a suspect for drugs or other evidence of illegal activity without a proper legal basis such as consent, probable cause or a valid arrest. A police officer might be able to do a quick pat down of a suspect if there is some evidence of criminal activity and that leads more evidence which can lead to a more thorough search. However, there has to be some specific information indicating criminal activity before a search can commence, unless the suspect agrees to a search. That applies to a person’s body and clothes as well as his/her possessions. it does not apply to property that has been abandoned under the law.

As an example, in a trafficking in cocaine case near Jacksonville, Florida, the suspect was stopped by police while driving. After it became clear the police officer was investigating the suspect for a drug related crime, the suspect threw a small bag out of the car window. The police officer probably did not have a legal basis to search the vehicle or the suspect at that point, but he walked around the car and retrieved the bag which contained cocaine. The suspect was arrested for trafficking in cocaine. The criminal defense lawyer filed a motion to suppress the bag of cocaine arguing that the police officer did not have probable cause to search the vehicle or the bag that came from the vehicle. The court disagreed. Once the suspect threw the bag away from the vehicle, under Florida law, that bag became abandoned, and the police have a right to search abandoned property.

This comes up in other situations as well. One common scenario occurs when the police believe a suspect is growing marijuana or otherwise manufacturing drugs in his/her home. The police will often go through a person’s trash outside to see if they can find discarded items that are commonly used to manufacture drugs. As long as the property is trash and the police do not have to enter a person’s property to retrieve it, this is normally considered abandoned property that police can search and seize without a search warrant. Of course, the police cannot go into your house or garage or otherwise trespass on to your property to take your trash, but if you leave a trashcan out on the curb for pickup, that is something the police can likely go through.

Police in Florida Interrogating a Suspect Have to Alert Suspect That His/Her Attorney is Present

Published on: April 25, 2016 | by Lasnetski Gihon Law

Most people in Florida are aware of the fact that when the police take someone into custody, that person has a right to remain silent and not talk to the police and have a right to an attorney before or during any discussion with police. The police are required to notify a suspect of these rights before taking any statement from a suspect in custody. However, there are times when the police are investigating a crime and ask a suspect to come to the police station and voluntarily speak to the police. If the suspect agrees, that suspect is likely not considered to be in custody, and the police do not have to read the suspect his/her rights about remaining silent and having an attorney. Many suspects do voluntarily speak to police and give incriminating statements without ever hearing their Miranda rights because they were not technically in custody. However, an incriminating statement made to the police is equally detrimental, whether the suspect was previously arrested or met with the police voluntarily and without being in custody.

A situation sometimes arises when a suspect is speaking with the police and his/her lawyer shows up or calls the police department to try and talk to the suspect/client or stop the questioning altogether. Do the police have to alert the suspect that his/her lawyer is outside or calling on the phone wanting to speak wit the suspect? Does it matter if the suspect never exercised his/her right to remain silent and request an attorney?

On legal shows on TV, you often see a police officer interrogating a suspect and then his/her lawyer barges into the room to stop the questioning. It does not work that way in real life. No lawyer is getting back to the interrogation room without one or more police officers letting the lawyer get back there. More likely, and how it seems to work in Jacksonville, Florida, the lawyer calls the police department or walks into the reception area and is told he/she cannot have access to the client, and the questioning continues.

Florida Injunctions Against Domestic Violence Do Little To Prevent Violence

Published on: April 22, 2016 | by Lasnetski Gihon Law

A recent story out of Seminole County, Florida has made headlines spotlighting the ineffectiveness of injunctions for protection against domestic violence in cases where the respondent has no regard for human life. Henry Brown killed his wife, two children, and himself in a domestic dispute after a judge issued an injunction for protection against him. The injunction specifically ordered that Brown turn over his firearms to law enforcement. He used those same firearms to murder his family and to take his own life. SLG Parnter John Gihon spoke to News 13 Orlando about violations of injunctions. You can read the story here.

The question is what could have been done to prevent this senseless and brutal act? Unfortunately, injunctions are usually not the answer. Any person who violates an injunction for protection against domestic violence in Florida is guilty of a first degree misdemeanor. The maximum penalty for a first degree misdemeanor is one year in jail. Very rarely will anybody with little or no record receive a length jail sentence. But the real problem is that a person who is so filled with rage that they are willing to kill children and themselves are not going to be deterred by an injunction and threat of up to 1 year in jail.

But what about the guns? What if law enforcement proactively went and retrieved Henry Brown’s guns after the injunction was set in place. Unfortunately, the sad and unfulfilling answer is that this just simply is not practical and has very little correlation to potential violence. First, a determined person will find other firearms or other means to achieve his or her sinister desires. Second, countless injunctions are issued everyday throughout the State with varying degrees of conduct underlying each case. Law enforcement doesn’t have the manpower to determine whether the respondent has firearms, determine how many firearms respondents have, and enforce them turning over those firearms. The same argument could be made for DUIs or other crimes. If a person’s license is suspended for DUI, should law enforcement monitor that person 24 hours a day and 7 days a week to ensure that they don’t drive? Regardless, if that person drives while impaired and kills an innocent victim, people will question why that person was able to drive in the first place. It just simply isn’t practical to proactively enforce each provision of an injunction.