Jacksonville Criminal Lawyer Blog

A Person Arrested for DUI in Florida May Be Entitled to an Indepdendent Blood Acohol Test

Published on: March 2, 2016 | by Lasnetski Gihon Law

In Florida, when a person gets arrested for DUI (driving under the influence of alcohol or drugs), he/she is taken to jail and booked into the jail. Only after the arrest and being processed into the jail is the person offered a breathalyzer test to measure a person’s blood alcohol level. Never in the history of DUI arrests have we heard of someone being unarrested after blowing in the breathalyzer and getting a result under the 0.08 legal limit, or even after getting a result of 0.00. Therefore, we can assume the purpose of the breathalyzer is not to objectively determine if the defendant is impaired and guilty of DUI so much as for the police to try and acquire more evidence against someone they are already convinced is guilty o DUI.

A person in Florida who has been arrested for DUI can refuse a breathalyzer test, but that refusal may come with increased penalties including a license suspension or a separate criminal charge for multiple, separate instances of a refusal. However, many people arrested for DUI do not necessarily trust the police when it comes to a breathalyzer test and the true purpose of the breathalyzer test taken after a DUI arrest. In that case, a person arrested for DUI can ask the police officer for an independent blood test. This would be a test administered by an entity, like a private laboratory, that is completely separate from the police. Many police officers do not know that a DUI suspect has a right to request an independent blood test, and the police department has a duty to make reasonable accommodations for the independent blood test. This might include the obligation to give the suspect a phone call and a ride to a lab that is open. Police officers like making arrests, and they like when arrests are finished. They may not want to continue to process and drive the suspect to a lab for an independent test. However, if the DUI suspect makes the request and there is a reasonable way to contact a lab and get the suspect to the lab, the police officer may be obligated to do just that. Jacksonville, Florida has several lab testing companies that provide blood tests for people every day.

If a DUI suspect makes a reasonable request for an independent blood test and the police officer refuses to accommodate the DUI suspect, the criminal defense attorney can move to have the evidence of the police department’s breathalyzer test thrown out.

In Florida, a Robbery By Force Can Be Committed Without Touching the Victim

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

In Florida, robbery is a serious felony charge. Many people misunderstand the differences among robbery, theft and burglary. A theft generally occurs when you steal something from a person outside of their presence, or not in their possession. If you leave your phone on your desk and go to the bathroom and I take it while you are gone, that would be a theft. A burglary generally involves breaking into a place, or entering a place without authorization, with the intent to commit a theft or other felony therein. If I come into your house through an open window while you are at work and steal your TV, that would be a burglary. A robbery is considered more of a violent crime. It generally involves taking something directly from a person in the person’s presence. If I push you down and steal the bag you are carrying, that is a robbery. Likewise, if I approach you and threaten you with violence if you do not give me your bag, that would also be a robbery.

Actual violence or even physical contact is not necessary for a robbery conviction. Obviously, using the threat of violence or threatening someone with a weapon to take someone’s property is considered robbery. But, there is also a form of robbery referred to as robbery by sudden snatching. This normally involves snatching property from someone’s possession, like grabbing a person around someone’s shoulder or keys from someone’s hands. However, a recent case near Jacksonville, Florida shows that such force is not always necessary for a robbery by sudden snatching conviction.

In that case, the defendant grabbed a cell phone that was on the victim’s lap. The criminal defense lawyer argued this constituted the less serious charge of theft since the victim was not holding or embracing the phone. The appellate court disagreed, and the defendant was convicted of robbery. It appears that the crime of robbery by sudden snatching occurs when a defendant grabs an item that is being carried by the victim or is on the victim. If the defendant grabs an items next to the victim, perhaps where the victim put his bag or phone down on the table or a bench next to the victim, then that would likely be theft rather than robbery. But then again, it probably depends on the circumstances. It is an important distinction as a robbery charge normally yields a more serious sentence than a theft charge.

In States with Medical Marijuana, Deaths from Painkillers are Down, and Why Marijuana is Still Illegal

Published on: February 24, 2016 | by Lasnetski Gihon Law

As many people are aware, marijuana is slowly becoming more acceptable, and legal, around the country. Ironically, and contradictorily, states that consider themselves “conservative”, as in for smaller government, seem to be the most reluctant to get the government out of people’s right to possess and use this plant. But, that is how upside down politics are these days. More and more evidence shows that marijuana is not the evil drug that the government and pharmaceutical lobby financed politicians want people to believe. As a result, some states are entering the 21st century and not prosecuting and incarcerating people who choose to use the cannabis plant.

One obvious reason that some states refuse to legalize marijuana, either for medicinal or recreational purposes, is because some companies have a strong financial interest in keeping marijuana illegal. It costs a lot of money to win elections these days, and those political positions are highly coveted. In many elected position, you do not work very hard, you get a great salary, you get great benefit and you get an outstanding retirement package. Believe it or not, government has voted for government to be compensated well. So, people really want these government jobs, and they need to raise the exorbitant amount of money it takes to win those jobs. The pharmaceutical lobby is one incredibly rich group that is willing to finance these campaigns and win those sweet jobs for candidates. According to Opensecrets.org, the pharmaceutical lobby contributed more than $235 million to politicians in 2015. Of course, anyone who knows anything about money knows that people or corporations do not expend that kind of money without expecting something in return. In the pharmaceutical lobby’s case, that return comes in the form of people using their products instead of a more natural, less harmful alternative. Like marijuana. Keeping marijuana illegal and ostracized is critical to ensure those continued profits for drug companies.

A recent article from Newsweek suggests that when marijuana becomes legal and more accessible, more people use marijuana in favor of processed drugs. As a result, it seems as if fewer people die. Positive statistics like this do not pay for expensive campaigns so who knows what effect reports like this will have. But, for the rest of us, it is instructive to understand this dynamic. The article mentions that deaths from overdoses from opioids have tripled since 1991. However, in states where marijuana has been legalized, at least for medicinal purposes, that dangerous trend has reversed. In those states, 25% fewer people have died from opioid overdoses from 1999 to 2010. That is a 300% increase in deaths versus a 25% decline. Those numbers are hard to ignore. One always has to be careful distinguishing between correlation and causation, but there are some things we know. People do not die from marijuana overdoses. People do die from pain pill overdoses. Using marijuana to treat various medical conditions can eliminate the need for painkillers or at least allow a person to reduce their dosage of, and reliance on, painkillers.

In Florida, Refusal to Submit to Field Sobriety Exercises Might Not be Admissible in DUI Case

Published on: February 21, 2016 | by Lasnetski Gihon Law

When a police officer pulls a driver over in Florida and believes that the driver is impaired from alcohol or drugs, that police officer will begin a DUI investigation. We would like to say that this is an objective evaluation of whether the driver is impaired, but most often, it appears that the police officer has already formed a conclusion that the driver is impaired and then tries to develop evidence to support that foregone conclusion. Rather than viewing the evidence objectively, the police officer often draws conclusions with the preconceived notion that the driver is impaired and guilty of DUI.

In other words, two people can watch a person walk a straight line and come to different conclusions. But, if one of those people already believes the driver is impaired from alcohol or drugs, he will very likely view the evaluation differently from someone who has no idea there is a DUI investigation taking place. This is particularly try if the former person’s job is to make DUI arrests.

During DUI investigations in Florida, the police officer will almost always ask the driver to participate in field sobriety exercises. These are completely voluntary and can be refused without a direct negative impact on one’s driving privileges. Most importantly, they are completely subjective, meaning whether the driver passes or fails depends completely on the opinion of the officer, who already thinks the driver is impaired or he/she would not be going through this in the first place.

A Good Example of a Bad Constructive Drug Possession Case in Florida

Published on: February 18, 2016 | by Lasnetski Gihon Law

In Florida, drug possession cases can be proven in two different ways. A person can be found guilty of a drug charge based on actual possession. Actual possession of a drug is what it sounds like. A person is holding the drugs or has them in his/her pocket or some other container actually in his/her possession. However, the state in Florida does not need to prove actual possession. A person can also be found guilty of drug possession based on constructive possession. This can occur when drugs are found near a person or in a place controlled by a person even if the person is not present, like his/her home or vehicle. In order to prove constructive possession of drugs, the state needs to prove more than just proximity to the drugs. The state has to prove that the defendant knew the drugs were present and had custody or control over the drugs- i.e. the ability to exercise some sort of ownership interest or control over the drugs.

A drug case south of Jacksonville, Florida,illustrated an example where the state could not prove that the defendant was the one who constructively possessed the drugs. Constructive possession of drugs often gets harder to prove the more people are near the drugs or have access to them. These kinds of drug possession cases are not uncommon. In this case, the police were investigating a separate crime and pulled the defendant over in a vehicle. The vehicle belonged to someone else. There was also a passenger in the vehicle. The police searched the vehicle and found a duffel bag in the backseat. The duffel bag contained a smaller bag of cocaine and marijuana. The duffel bag also contained items that belonged to the defendant, the passenger and some other person. Only the defendant was arrested for possession of marijuana and possession of cocaine.

At the trial, the criminal defense lawyer moved for a directed verdict of acquittal, which basically asks the judge to circumvent the jury and find the defendant not guilty based on insufficient evidence of constructive possession. The criminal defense attorney argued that the state could not prove that the defendant had custody and control of the duffel bag to constitute constructive possession. While there was evidence that the defendant knew about the bag and had some control over it since it was in the car he was driving and had some of his belongings in it, there was a joint possession issue. That is, there was equal evidence that the bag belonged to the passenger or the other person whose items were also in the bag. The state cannot prove constructive possession of drugs based on this circumstantial evidence when the evidence establishes that one or more other people appear to have an equal ownership or possessive interest in the drugs. There was nothing that set apart the defendant’s ability to have custody and control over the bag from the other two people involved. Therefore, the convictions for possession of cocaine and possession of marijuana were reversed.

Florida Police Officer Did Not Have a Right to Search Vehicle of Suspect on Probation

Published on: February 15, 2016 | by Lasnetski Gihon Law

In Florida, a person who is on probation for a crime does lose some of his/her constitutional rights. For instance, any other person has the right to be free from unreasonable searches and seizures in his/her home. This means that a police officer or other agent of the state cannot normally enter a person’s home without valid consent from the owner or a search warrant. When a person commits a crime and goes on probation, his/her constitutional rights are often compromised. For instance, a condition of probation may be that the defendant’s probation officer is allowed to show up to the defendant’s house unannounced and come inside to search. The idea is that a probation officer is allowed to take steps to make sure a person on probation is following the conditions of probation, and a person who commits a crime and goes on probation forfeits some of his/her rights to privacy during the probationary period.

However, this does not extend to all of a probationers’ property and all agents of the state. A police officer does not have free reign to search the property of a person who is on probation.

In a recent drug case near Jacksonville, Florida, the defendant was pulled over for a traffic violation. When the police officer ran his information, he found that the driver was on probation for a drug trafficking charge. When the police officer returned to the defendant’s vehicle, he asked him if he could search his vehicle. The police officer still had the defendant’s driver’s license and had not indicated he was free to leave. The defendant was under the impression that he was required to allow the police officer to search his vehicle because he was on probation. He said that to the police officer, and the police officer allowed the defendant to believe that. The police officer searched the vehicle and found Methamphetamine inside. The defendant was arrested and charged with possession of Methamphetamine.

For People in Florida Who Want to Own a Firearm, the Prior Felony Disposition is Critical

Published on: February 12, 2016 | by Lasnetski Gihon Law

In Florida, it is illegal for someone who has been convicted of a felony crime to own or possess a firearm. This applies to any felony conviction, so if a person who lives in Florida has a prior felony conviction from any other state, that will still prevent the person from legally having a firearm in Florida. In other words, the prior felony conviction does not have to be a Florida felony conviction.

A possession of a firearm by a convicted felon charge is a serious crime in Florida. It is a second degree felony in Florida, which is punishable by up to 15 years in prison. Prosecutors often seek prison time for a first conviction for this crime.

There can be many defenses to a possession of a firearm by a convicted felon charge. First, depending on where the gun was found in relation to the defendant, a defendant can argue that he/she was not actually in possession of the firearm. Or, a defendant can argue that he/she is not a convicted felon. Whether a person is a convicted felon seems fairly straightforward. However, in Florida, it may not be. When a person gets charged with a felony crime in Florida, he/she can either have a trial or enter a plea of guilty or no contest to the charge. If the person does enter a guilty or no contest plea, or loses at trial, the judge can do one of two things. The judge can adjudicate the defendant guilty. This means the judge is finding the defendant guilty which is a conviction under Florida law. Or, the judge can withhold adjudication of guilt. This means that the judge is not technically finding the defendant guilty (although he/she may have admitted guilt or been found guilty). As a result the defendant is not a convicted felon. Therefore, he/she is permitted under Florida law to own and possess firearms without concern for this criminal statute.

United States Supreme Court to Decide if Police Can Search Your Cell Phone Without a Warrant

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

When a person in Florida gets arrested for a crime, the police are generally permitted to search him/her. This is considered a search incident to an arrest, and it allows the police officer to search the suspect to make sure the suspect does not possess anything that could harm the police officer as the suspect is placed in the police car, driven to jail and booked into the jail. The police can also search the person for evidence of the crime if the officer has a reasonable basis to believe the suspect has evidence of the crime or any weapon that could put the officer’s safety at risk.

Does this authorization to search a suspect incident to an arrest extend to all of the suspect’s possessions? The law used to allow a police officer to search a person’s vehicle if the suspect is arrested in or at his/her vehicle. This kind of search really did not comport with the logic behind a search incident to an arrest. Once a person is arrested, handcuffed and placed in the police car, he/she does not have much of an opportunity to grab a weapon in his/her car and harm the officer. The law was changed by a Supreme Court case a few years ago which now only allows the police to search a vehicle incident to an arrest if the suspect has access to the car at the time of the arrest. This usually is not the case since police officers generally handcuff the suspect and put him/her in the police car when the arrest is made.

What are the search and seizure rules when it comes to cell phones at the time of an arrest? Cell phones have obviously evolved over the years to the point that they can contain a lot of information, including incriminating information, such as contacts, phone numbers, notes, photographs, websites, text messages, emails and other data and communications. A police officer could learn a lot about a person and criminal activity fairly quickly by looking through one’s cell phone. On the other hand, cell phones are more like computers today, and police are generally not allowed to search a person’s computer without a search warrant or consent from the owner.

There Are Some Exceptions to the Search Warrant Requirement in Florida, but They Are Limited

Published on: January 29, 2016 | by Lasnetski Gihon Law

In Florida, the police are not generally allowed to enter a person’s residence without a valid search warrant or consent to enter and search by the owner or someone with authorization to give the consent to the police. Perhaps the strongest privacy rights and right to be free from unreasonable search and seizure by police is in one’s home. However, there are some limited circumstances when a police officer can enter your home without consent or a search warrant.

For instance, there is a concept in criminal and search and seizure law that deals with exigent circumstances, or emergency situations. The police might be able to enter your home without a search warrant or consent if there is specific evidence of a medical emergency inside. An example might be if the police received a call of a hostage situation in a house and heard gunshots and screaming, the police would likely be able to go into the house to see if someone’s life or health was in danger. The police would not be able to use the emergency as an excuse to search the place, but if they did see some illegal drugs or evidence of other illegal activity while they were lawfully in the home, they would be able to pursue that.

To use this exigent circumstances exception in Florida, there must be clear and specific evidence of some medical or similar problem that needs immediate attention. In a possession of Methamphetamine case near Jacksonville, Florida, the police drove by a house they suspected was being used to make Methamphetamine. They saw that the front door was open, some lights were on and mail was on the floor near the door. The police officer used that as an excuse to go inside to check on the welfare of the residents. Once inside, he saw Methamphetamine and materials used to make Methamphetamine. The resident who was home at the time was not in any medical distress, but he was arrested for Manufacture of Methamphetamine.

Florida Jury in Criminal Trial Wants Witness Testimony Read Back to Them.

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

When both sides to a criminal case finish presenting evidence, questioning the other side’s witnesses and making their arguments, the jury goes into the jury room to deliberate and try to reach a verdict. They use their memories of and notes from the testimony, the law that is read to them by the judge and any exhibits that were entered during the criminal trial. Sometimes, a jury wants to re-hear specific testimony that was elicited during the trial. Is the judge allowed to get a transcript of the witness’ testimony and read it back to the jury or let the jury take the transcript with them into the jury room in a criminal case?

In a recent gun and drug case near Jacksonville, Florida, the jury asked the judge if he could read a transcript of a police witness’ testimony back to them. The criminal defense lawyer agreed as long as the judge read back all of the detective’s testimony including the parts where the criminal defense attorney was cross-examining the detective. The judge did it a different way. The judge allowed the jury to decide what parts of the detective’s testimony they wanted to hear. The jury was only interested in hearing the testimony elicited by the state without hearing some of the testimony that would likely be beneficial to the defendant. The criminal defense lawyer objected to reading just a part of the detective’s testimony, but he was overruled.

In Florida criminal cases, the judge is allowed to read back certain testimony of witnesses when the jury makes the request. The judge has discretion to make this determination. The judge is also allowed to read back just a part of the witness’ testimony if that is what the jury is requesting. However, the judge may not read back a part of a witness’ testimony if it would be misleading and the criminal defense lawyer’s cross-examination of the witness is within the scope of the jury’s request. The judge may not read back partial testimony to a jury that would bolster one side’s version of the case if there is relevant cross- examination on the matter.