Jacksonville Criminal Lawyer Blog

Florida Police Officer Arrests Person Sleeping in Car for DUI, Case Gets Thrown Out

Published on: November 20, 2015 | by Lasnetski Gihon Law

Most DUI cases start with a police officer observing a suspect driving a vehicle in an erratic manner or at least in such a way that one or more traffic laws are violated. This allows the police officer to stop the driver and have an encounter. However, occasionally, we see DUI cases that begin when the suspect is not driving at all. Many of these DUI cases begin when a police officer observes a person sleeping in a vehicle that is parked, sometimes legally, sometimes illegally, and sometimes in the roadway. Other times, a concerned citizen sees a person sleeping in his/her car and calls the police to check it out.

It is certainly not illegal to sleep in your car, so the police are not permitted to detain you or arrest you based on that alone. Of course, where your car is parked when you are sleeping in it will be a factor in whether the police officer has sufficient cause to move forward with a criminal investigation. If your car is in your driveway or in a regular parking spot, the police officer will have less of a legal reason to wake you up and question you. If you are partially in the roadway, there would be more evidence to suggest driving while impaired from alcohol or some other problem which gives the police officer more legal reason to investigate.

Generally, when a police officer sees a driver asleep in a vehicle, that police officer can come to the vehicle to check on the driver. Sleeping alone is not sufficient evidence of impairment from alcohol so the officer cannot detain the driver and start a DUI investigation. The police officer can check and see if there appears to be a medical emergency and if so, go into the vehicle to help. However, the officer cannot assume a medical problem; the officer must have specific evidence of a medical problem. The officer cannot assume the driver is drunk either. If there are alcohol containers near the driver, that may be enough evidence of a DUI to move forward with an investigation, but absent specific evidence of alcohol or drugs, the police officer cannot start a DUI investigation. Basically, sleeping in the car can prompt a police officer to look inside the vehicle, but unless there is specific evidence of a medical problem or alcohol/drugs, the officer has to leave the driver alone after a brief encounter.

The Odor of Alcohol is Not a Sufficient Basis for Police to Start DUI Investigation in Florida

Published on: October 29, 2015 | by Lasnetski Gihon Law

In Florida, many DUI investigations and arrests begin with a simple traffic stop. Sometimes the police officer suspects the driver is driving under the influence of alcohol before he/she makes the traffic stop and sometimes the police officer claims to develop suspicion after making contact with the driver. Police officers use several clues or factors to justify a DUI investigation, although as criminal defense lawyers in Florida, we see the same few “observations” show up over and over again.

Police officers are allowed to make a traffic stop based on an observation of a traffic violation, such as speeding, running a red light or driving in and out of the traffic lane while endangering other drivers. This gives the police officer authority to stop the driver and issue a citation for the traffic violation. If the police officer wants to extend the encounter to investigate for DUI (or any other crime for that matter), the police officer must be able to articulate specific indicators of criminal activity. This is, again, where we see the same comments show up over and over. For instance, the police officers will almost always testify that he smelled an odor of alcohol coming form the driver and that the driver had a flushed face and watery, bloodshot eyes and was slurring his/her speech. Those “observations” come standard with just about any DUI police report. The problem is that some of them often cannot be independently verified, even if there is a DUI video.

In any case, all of those observations must be sufficient to allow the police officer the right to hold the driver for a DUI investigation which usually includes a request for the field sobriety test and a request for a breathalyzer test after the driver is arrested for DUI and taken to the jail. Every case is different (even if the DUI police reports look very similar), and each one must be evaluated on its own merits. Almost all DUI police reports are going to mention odor of alcohol. In Florida, this alone is not a sufficient legal basis to detain a driver for a DUI investigation. Remember, the crime is driving while impaired from alcohol which is not the same as driving after having had alcohol to drink. The police officer must show not only that the driver had consumed alcohol (or drugs), but that the driver was also impaired from the alcohol (or drugs). Odor of alcohol is mere evidence of drinking which, by itself, is not illegal.

Florida Man’s Detained After Driving to House Being Searched for Drugs

Published on: October 26, 2015 | by Lasnetski Gihon Law

In Florida, the police generally cannot search a person’s vehicle without consent, a search warrant or specific indications of illegal activity occurring within the vehicle. However, police can often come up with certain observations that allow them to search a person’s vehicle under certain circumstances.

In a recent case near Jacksonville, Florida, the police were executing a search warrant at the home of a suspected marijuana dealer. During the search, the suspect drove up to the house for a visit. He did not live there and had no apparent connection to the house. A police officer approached the suspect and started asking him questions about whether he had any weapons or drugs. The suspect did not answer so the police officer told him to get out of the vehicle. After some more questions, the suspect admitted to having some Oxycodone pills without a prescription, and his car was searched. He was then arrested for possession of pills without a prescription.

A police officer is free to ask anyone questions in that situation, but once the police officer tells the suspect to exit his vehicle, the encounter becomes a detention. The police officer is only justified to tell the suspect to exit the vehicle if there is some indication of illegal activity or there is a risk to the officer’s safety. In this case, the police officer relied on the officer safety risk angle. After the criminal defense lawyer filed a motion to suppress the evidence of the drugs found in the car, he testified that the suspect was acting nervously, was not properly answering his questions and was hiding his hands. Based on that, he detained the suspect because he was worried about his safety. The court agreed and justified the search.

Should I take the breath test if I’m stopped for DUI?

Published on: October 22, 2015 | by Lasnetski Gihon Law

As a criminal defense firm in Jacksonville and Orlando, we often get asked the question, “Should I take the breath test if I’m stopped for DUI?” While this is a very specific question, we always give a wider answer. When someone is pulled over, it is usually for a traffic violation (i.e. speeding, running a red light or stop sign, weaving). Once the officer approaches the driver’s side of the vehicle, they often claim that they developed reasonable suspicion to believe the person was impaired. For example, they will use the buzz words, “bloodshot, water eyes,” “slurred speech,” and “flushed face.” Based on these observations, the officer will ask the person to step out of the vehicle. The officer will again make observations about whether the person can maintain their balance, whether they fumble with their license and registration, and whether their answers are incoherent. It is important to understand that officers are often looking for signs of impairment, while they ignore what I like to call “signs of non-impairment.” The signs of impairment will make it into the police report. The signs of non-impairment often will not.

If the officer believes there is reasonable suspicion that the person is impaired, he or she will ask the person to perform what we call “field sobriety tests,” while the officer will call them “field sobriety exercises.” Field sobriety tests can include the finger to nose test, walk and turn test, rhomberg alphabet test, one leg stand test, and rhomberg balance test. We have noticed that when there is a video, the officer’s explanation of what happened often does not match what is in the video. Whether a person appears impaired is an opinion. And reasonable people can disagree. Regardless, the officer has an interest in making sure that the eventual arrest is justified. Therefore, the police report will often embellish what actually happened. For example, the report may read, “the suspect was swaying from side to side,” which makes a visual image in the mind of a person swaying dramatically. However, often we will watch DUI videos where there is no clear sway and it appears to us, and often to jurors, that the person’s sway is natural and not indicative of impairment.

But back to the original question. The field sobriety tests are not required by law. A person cannot lose their license or be prosecuted simply for declining to perform the field sobriety tests. However, if a person is arrested for DUI, the State can use their refusal against them in court. In other words, the prosecutor can stand in front of a jury and argue, “[l]adies and gentlemen, why would the defendant refuse to perform field sobriety exercises unless he knew that he was impaired?” The DHSMV can also use the refusal to perform field sobriety tests as evidence to support the license suspension.

The Florida DHSMV Can Suspend Your Driver’s License For Failing to Pay Alimony

Published on: October 13, 2015 | by Lasnetski Gihon Law

In Florida, it is a misdemeanor crime to drive a vehicle if your driver’s license has been suspended. The Florida Department of Highway Safety and Motor Vehicles can suspend your driver’s license for a variety of reasons – a DUI arrest, failing to pay traffic tickets, a possession of marijuana conviction and other reasons. If you get a few driving with a suspended license charges within a certain period of time, it can lead to habitual traffic offender status and a five year driver’s license revocation. This can become a real problem for someone who needs his/her vehicle for work, to take care of children and other necessities. Not only do multiple driving with a suspended license convictions result in longer driver’s license suspensions, if you get enough of these charges in a relatively short period of time, they can result in felony convictions and serious jail or prison time.

There is another basis for the state to suspend your driver’s license that has nothing to do with traffic laws or criminal charges. In a recent case near Jacksonville, Florida, a man was ordered to pay alimony, or spousal support, as part of a divorce judgment. However, he allegedly lost his job and stopped making the alimony payments. The Florida Department of Revenue sent him a notice of intent to suspend his driver’s license and motor vehicle registration for failing to pay alimony. The man challenged the procedure by which his driver’s license and vehicle registration were suspended, but he lost. The state is allowed to suspend a person’s driver’s license and vehicle registration for failure to pay alimony. The individual would be allowed to petition the court for relief based on the loss of his job or income, but this is another method by which the state can suspend a person’s driver’s license.

It could certainly be argued that this is a counterproductive enforcement technique, particularly if a person lost his/her job or had some other financial emergency. Additionally, if a person can not drive and gets a criminal conviction for driving with a suspended license, it makes it difficult to get or keep a job. Without stable employment, it is difficult to pay alimony or child support. On the other hand, when people do not pay alimony or child support, the state does not have many options to enforce the support order, and doing nothing certainly will not help the person who needs the financial assistance.

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.

Marijuana Case in Florida Thrown Out When Police Don’t Make Effort to Preserve Evidence

Published on: September 18, 2015 | by Lasnetski Gihon Law

As most people with a basic understanding of the criminal justice system understand, the state always has the burden of proof in a criminal case. That means the state is obligated to prove, with evidence, that the defendant committed the crime with which he/she is charged. A person is always considered innocent until the state meets that burden. Of course, if the state never produces sufficient, convincing evidence to prove guilt beyond a reasonable doubt, the defendant remains innocent. Perhaps it is human nature for people to assume someone is guilty based on rushed and poorly researched media articles or even just an arrest on serious charges, but that is not how the system is supposed to work. Evidence controls.

In a recent possession of marijuana case near Jacksonville, Florida, the state failed to preserve and produce evidence of the defendant’s guilt, and the marijuana charge was thrown out. This revolved around an incident that took place while a local station was filming a reality show about police officers. The local station had an agreement that allowed them to ride with the police to film the show.

The police officers indicated they saw the defendant smoking a marijuana cigarette, detained him and found more marijuana in his picket. The suspect claimed he was just smoking a cigar with tobacco and argued that the video would support his claim. The criminal defense lawyer attempted to obtain the footage of the encounter from the TV station, but they refused to provide it unless the defendant signed a waiver allowing them to show the incident on TV. He refused, and the station ultimately destroyed the video.

Police in Florida Can Only Arrest for Resisting Arrest if There is a Legal Basis for the Initial Arrest

Published on: September 11, 2015 | by Lasnetski Gihon Law

That is sort of a convoluted title, but the issue is when police can arrest someone for resisting an arrest. In Florida, resisting arrest can be a misdemeanor or felony charge in Florida. It is a misdemeanor if a person resists arrest without violence; it is a felony charge if a person resists arrest with violence. An old joke says that if the suspect wins the fight, it is going to be a felony, and if the police officer gets the upper hand, the suspect may have a shot at coming away with a misdemeanor. In any case, whether the charge is a felony or misdemeanor is based on the subjective determination of the police officer and then ultimately the prosecutor, unless it is clear that serious violence was used to resist arrest.

However, the state cannot just arrest and charge anyone who resists the commands or arrest of an officer. The police officer must have a legal basis to stop, investigate and/or arrest the suspect to begin with. If a person is minding his own business and the police officer tries to detain the person based on suspicion and the person resists, a police officer will often arrest the suspect for resisting arrest. However, the criminal defense lawyer may file a motion to dismiss alleging that the police officer had no legal basis to detain the suspect in the first place so the resisting arrest charge is not valid.

In a recent case near Jacksonville, Florida, the police responded to a domestic dispute. When they arrived, the saw the suspect heatedly arguing with his girlfriend outside of their home. When they arrived, the suspect took the girl inside the house. The police looked through the window and did not see any illegal activity or fighting. The girlfriend ultimately exited the house with no injuries. The police ordered the suspect out of the house, but he refused. They entered his house with the K-9, and an altercation resulted between the suspect and the police. The suspect was charged with resisting arrest with violence.

Florida DMV Can Suspend Your Driver’s License for Medical Reasons Based on Confidential Tip

Published on: July 24, 2015 | by Lasnetski Gihon Law

One thing people in Florida do not always realize is that driving is considered a right, not a privilege. This does not mean that the DMV in Florida is going to withdraw drivers’ licenses for no reason, but it does mean that when the DMV does revoke a person’s driving privileges, that person may have much less recourse than in criminal cases where Constitutional rights are at issue.

For example, in DUI cases, the DMV will almost always suspend a person’s driver’s license based merely upon a DUI arrest. Of course, according to Constitutional law, a person is innocent until proven guilty and an arrest, by itself, is not proof of guilt. However, since driving is a privilege and the DMV operates under its own set of rules, they can suspend a driver’s license immediately upon a DUI arrest. The driver will have an opportunity to challenge the license suspension, but that process does not have anywhere near the safeguards and thoroughness that comes with a criminal case.

The DMV can also suspend your driver’s license if there is an indication that you are not medically fit to drive. All it takes to start this process is a report from someone that you are not medically fit to drive. This can be a doctor or anyone with any knowledge of your ability to drive. If someone makes such a report to the DMV, the DMV might open a file and send you a letter telling you to go see a doctor and get examined to see if the doctor thinks you should be driving. The doctor would then prepare a report that goes to the DMV. If the doctor concludes that you are not fit to drive, the DMV will likely suspend your license until you can prove, with the assistance of a doctor, that you are competent to drive.

Examples of When the State Cannot Prove Constructive Possession in Florida

Published on: July 16, 2015 | by Lasnetski Gihon Law

In Florida, there are a lot of drug cases and gun cases that involve the concept of constructive possession. Actual possession is when the police find a gun or drugs on a person i.e. in his pocket, in his hand, in his waistband, sees him throw the drugs on the ground. Constructive possession is a lot more vague. The state can convict a person of a possession of drugs or gun charge based on constructive possession. However, it can be more difficult.

In layman’s terms, constructive possession means the illegal item(s) is in a place where it is sufficiently clear the suspect knew it was there and had some control over it. In other words, the state needs to present sufficient evidence for a jury to believe the defendant knew about the item(s) and either put it there or had the ability to remove it. The state does not, however, have to prove the defendant actually did place the item there or intended to take it away at some point.

Again, it is vague, but some examples might help clarify it. Of course, ultimately, it is up to a judge or jury to decide.