Jacksonville Criminal Lawyer Blog

For Underaged Drivers in Florida, the Legal Limit for a DUI is Much Lower

Published on: April 16, 2014 | by Lasnetski Gihon Law

In Florida, the law establishes what it considers a legal limit for a driver’s blood alcohol content. Most people know that the legal limit in Florida in DUI cases is 0.08. If a person blows a 0.08 or higher on the breathalyzer, that does not necessarily mean he/she will be convicted of DUI, but it is certainly evidence that state can use to try and prove a DUI case in court. How many drinks it takes to get to 0.08 depends on various factors including body weight, metabolism, food intake and other factors.

Most people are also well aware that the drinking age in Florida is 21. The rules in Florida regarding DUI’s are different for a driver under the age of 21. For one example, the legal limit is much lower. In Florida, it is illegal for a person under the age of 21 to drive with a blood alcohol content of 0.02 or higher. It does not take much alcohol to get to a 0.02 blood alcohol content.

Many adults go out to dinner and have a drink or two and drive home assuming they are under the 0.08 legal limit. They certainly may be right. However, for people under 21, that will not help. The legal limit is such that just about any alcohol may subject them to a DUI charge. The idea of course, is that since people under 21 are not legally allowed to drink, they are not given the same leeway when it comes to a DUI charge. For adults over the age of 21, drinking and driving is not illegal as long as the driver is not impaired. For people under 21 years of age, any drinking and driving can easily subject them to a DUI conviction. Since the penalties for DUI convictions get increasingly worse as a person gets more than one, and much more expensive, it is important to avoid DUI’s, particularly for younger drivers.

Florida Police Can Order Blood Draw in DUI Manslaughter Case Where There is Evidence of Impairment

Published on: April 13, 2014 | by Lasnetski Gihon Law

In a normal DUI case in Florida, where there is no accident with serious injury or death, the police do not request or seek to obtain a blood sample of the defendant to test for alcohol content. The procedure is often different when a DUI case does involve an accident with serious injury or death.

In a DUI manslaughter case near Jacksonville, Florida, the defendant failed to yield and caused a crash that killed the other driver. A police officer responded to the scene and observed that the defendant appeared to be impaired from alcohol. The police officer testified that he smelled an odor of alcohol coming from the defendant and she was belligerent with multiple police officers. As a result, he ordered the defendant to submit a blood sample that was later tested and found to have an alcohol concentration above the legal limit in Florida of 0.08.

The criminal defense lawyer filed a motion to suppress the blood alcohol test results claiming the police officer did not have a right to order a blood sample taken from her and tested without a search warrant. The Florida implied consent law means DUI cases are treated differently when a serious injury or death is involved. In that case, if the police officer has probable cause to believe the person who caused the accident was under the influence of alcohol or drugs, the police officer has a right to order a blood draw and test it for alcohol content. Implied consent means a driver consents to this process when he/she agrees to accept a driver’s license in Florida.

Florida Stand Your Ground Claim Does Not Work Where Defendant Shot Victim in Back

Published on: April 10, 2014 | by Lasnetski Gihon Law

In a recent shooting case near Jacksonville, Florida, the defendant was charged with aggravated battery with a firearm after shooting the victim in the back of the leg. The criminal defense lawyer filed a Stand Your Ground motion claiming that the defendant had a right to use deadly force against the victim because the victim was threatening him. Since the victim was unarmed and shot in the back of the leg, this was apparently a difficult argument.

Under the Florida Stand Your Ground law, a person can use deadly force, including firing a gun at another person, if that person reasonably believes it is necessary to respond to an another’s use or threat of deadly force. Whether that claim is valid depends on the circumstances. When the alleged victim also has a gun and is shot facing the defendant, that is likely to be a stronger defense claim than when the alleged victim is unarmed and shot facing away from the defendant.

In this case, the defendant and the victim did not like each other and had several arguments prior to the shooting. Ultimately, the victim came to the defendant’s house to confront him. Each side gave different stories as to what happened, but the evidence was clear that the victim was unarmed and shot in the back of the leg outside of the defendant’s house. That evidence was consistent with the victim’s testimony that he turned to leave once the defendant retrieved his gun. That evidence was not consistent with the defendant’s story that he feared that the victim was going to beat him up when he fired the shot.

Florida Stand Your Ground Immunity Applies to Correctional Officers As Well

Published on: April 7, 2014 | by Lasnetski Gihon Law

After a few well publicized cases in Florida, many people are aware of the Stand Your Ground law in Florida. It really is not any sort of groundbreaking law. It is a derivation of self defense, which has been around forever. It addresses the fact that a person does not have a duty to retreat in the face of a reasonable threat and also allows a criminal defense lawyer to file a motion to have the case thrown out before it ever gets to a jury if the judge finds the defendant had a right to use reasonable force under the circumstances. But generally, it is applied as a fairly standard self defense law- a person has a right to use reasonable force to defend against someone else’s use of force or the reasonable threat of force.

In a recent Florida case not far from Jacksonville, Florida, the Florida Stand Your Ground law was asserted by a defendant who worked as a corrections officer. The defendant worked at a jail in Lake County, Florida. Apparently, he got into a fight with an inmate that resulted in multiple fractures to the inmate. He was subsequently charged with aggravated battery.

The criminal defense lawyer asserted a self defense/stand your ground claim. The court questioned whether correctional officers could use the Florida Stand Your Ground law because there are specific statutes already in place that deal with correctional facilities. Those laws have provisions that authorize the use of force by correctional officers against inmates. The higher court ruled that correctional officers can use the Florida Stand Your Ground law. The Florida statutes that deal with correctional officers do not nullify the Florida Stand Your Ground law and vice versa as the Stand Your Ground law apply to correctional officers. The higher court did not decide whether the defendant had a legitimate Stand Your Ground claim; they just ruled that a correctional officer has a right to pursue one.

Can Police in Florida Come Up to Your House and Knock if You Have a Closed Gate?

Published on: April 4, 2014 | by Lasnetski Gihon Law

In Florida, the police generally need a search warrant to enter your home and search for illegal drugs or other evidence of criminal activity. When they do not have a search warrant, they can still try and gain legal access to your home by walking up to your door, knocking, asking some questions and requesting consent to enter and search your home. For the most part, police officers have the same right to approach your front door, knock and ask questions as anyone else does. If you decide to open your door, answer questions from the police, let them come in and then they find guns or drugs or other evidence, that was your choice.

However, there are limitations to this. If there is free access between your street and your front door, the police can typically just walk right up and knock. On the other hand, if you have a closed gate or barbed wire or some other obstruction preventing someone from walking up to your door, the police usually cannot cross that obstruction to get to your front door to knock. The police cannot likely open a closed gate or climb a fence to get to your door. They certainly cannot break or unlock anything to get to your door without a search warrant.

In a recent trafficking in marijuana case near Jacksonville, Florida, the defendant lived on a large piece of property that was surrounded by a barbed wire fence and also had a chain linked fence blocking the long driveway. He had “No Trespassing” signs on the fence. After receiving an anonymous tip of drug activity, the police went to the house to do what they call a “knock and talk” (go to the door, knock and hope the suspect starts talking). The police officers opened the gate and drove down the driveway and ultimately approached the front door. The defendant answered, spoke to the police and they ultimately discovered a large amount of marijuana on the property.

Jacksonville Police Seize and Try to Forfeit Large Sum of Cash From Traveler in Jacksonville Airport

Published on: March 31, 2014 | by Lasnetski Gihon Law

Lasnetski Gihon Law recently represented a person who was traveling through Jacksonville on his way back from a nearby poker tournament. Having had some success at the poker tournament, he was bringing a large sum of cash back home with him. When he went through the security line at the airport, he was stopped and escorted to a room by the Jacksonville airport police where his luggage was searched. At this point, there was no indication that he had broken any laws. When the police searched his belongings, they did not find anything illegal. They did, however, find a large amount of cash in his luggage. The police officers questioned him as to where he had been, where he was going and how he obtained the cash.

Due to terrorism and the safety concerns inherent in air travel, a person traveling through an airport does not have the same privacy rights that one would have in his/her home or vehicle. However, that does not mean that the police can detain a person, search his/her property and interrogate him/her without any evidence of criminal activity. However, that is exactly what happened here. The police found no evidence of any criminal activity and knew nothing about this individual other than the fact that he was traveling with cash. He would have been within his rights to refuse to answer any of their questions and demand to leave, but he decided to explain to them that he just came from a poker tournament where he won the money. The police were not satisfied with this response and seized his money. They then allowed him to fly home since they had no legal basis to detain him. Of course, they had no legal basis to take his money, but they did that anyway.

When the police seize property from someone, the government then has to file paperwork indicating an intention to forfeit, or retain ownership of, the property. While the client hoped that someone with even a basic grasp of the Constitution and Florida forfeiture laws would review this case and realize the money was improperly seized so it could be quickly returned to him, the opposite occurred. The government agency that reviewed the case filed paperwork to have the money forfeited to the government.

Knock and Announce Search Warrant in Florida Requires Police to Allow Occupant Time to Open Door, But Not Much Time

Published on: March 24, 2014 | by Lasnetski Gihon Law

In Florida, there is such a thing called a knock and announce search warrant. If the police have sufficient evidence to believe there are drugs or other evidence of criminal activity in a residence, the police can obtain a search warrant that allows them to search the premises. That does not necessarily give the police the right to barge into the home and start searching. It can be a serious safety risk both to the occupants and the police if they just barge into the home unannounced.

A knock and announce warrant requires the police to knock on the door, announce they are police and give the occupant the opportunity to let the police inside. However, if no one lets the police in, the police can then break open a door or window to gain entry.

One question that comes up is whether the police complied with the requirements of the knock and announce search warrant. Often, it is question of whether the police gave the occupants sufficient time to open the door before busting through the door. On the one hand, there is the safety issue with the police coming into one’s home unannounced. On the other hand, if the police announce themselves and wait too long, the occupants could dispose of drugs or other evidence that are in the residence.

State Can Charge Conspiracy to Traffic in Drugs Based on Phone Conversations in Florida

Published on: March 17, 2014 | by Lasnetski Gihon Law

In Florida, trafficking in cocaine or another drug normally means a person is caught possessing a large quantity of drugs or distributing a large quantity of drugs. How much drugs needs to be possessed or distributed to qualify for a trafficking charge depends on the type of drug. For pills and heroin, it does not take much. For cocaine, it takes more but still not as much as people might think. For marijuana, one would need to have quite a lot. If a person does have a sufficient quantity of drugs to be arrested for trafficking, the charge usually comes with a severe mandatory minimum prison sentence.

Conspiracy to traffic in drugs is also a very serious criminal charge in Florida. For a trafficking charge, the state does not need to prove the defendant actually possessed or distributed the drugs. The state can move forward with a conspiracy charge if a person merely agreed to participate in the trafficking. A fairly common situation occurs when the police arrest a lower level drug dealer and then convince that person to cooperate with the police. That person may agree to wear a wire and also give up the phone numbers of other drug dealers so the police can get a wire on their phones. If the police are able to record a person discussing selling a certain quantity of drugs over the phone, that may be sufficient for a serious conspiracy to traffic charge. Conspiracy to traffic in drugs means that a person comes to an agreement with another to traffic in drugs. An actual drug deal does not have to take place. The defendant may not even touch any drugs. If he/she comes to some sort of understanding with another to distribute a sufficient quantity of drugs, it can be conspiracy to traffic drug charge.

Federal Government to Propose Lighter Sentences for Non-Violent Drug Offenders

Published on: March 13, 2014 | by Lasnetski Gihon Law

It is not always clear when a criminal case will be handled by the federal government, i.e. the United States Attorney’s Office, or the state or local government, i.e. the state attorney’s office here in Florida. For drug cases, the federal government typically likes to handle the bigger cases, and the cases that involve small amounts of drugs normally stay on the state or local level. If drugs and guns are involved, the federal government often likes to handle those cases because the federal statutes and sentencing guidelines have harsh penalties for people convicted in those cases.

Whether a defendant is better off in state court or federal court depends on a lot of factors such as the nature of the case, the defendant’s criminal history, the judge, the county and other factors. The federal system does have fairly severe potential penalties for all varieties of drug cases, but again, whether a defendant actually gets a severe penalty depends on many factors. However, in federal cases, hopefully help is on the way for those people charged with non-violent drug offenses. We have discussed at length how our prisons are full of non-violent drug offenders. This isn’t just an enormous waste of taxpayer money, but it is also counterproductive if the idea is to help people get off of drugs.

Some government officials seem to finally acknowledge this problem and are doing something about it. Attorney General Eric Holder recently announced proposed reductions to the federal sentencing guidelines for non-violent drug offenders. The federal sentencing guidelines are guidelines that judges strongly consider when sentencing a defendant for any crime in federal court. These new guidelines would apparently reduce prison sentences by eleven months, on average. This, of course, would also reduce taxpayer expenditures going towards the housing of non-violent drug offenders. It is expected that these new, more lenient guidelines would go into effect later in 2014.

Entrapment Defense Does Not Work in Florida Traveling to Meet a Minor Case

Published on: March 6, 2014 | by Lasnetski Gihon Law

In Florida, it is a serious felony crime to travel either within a state or across state lines to meet a minor, or a person believed to be a minor, to engage in unlawful sexual activity. These cases are often the Craigslist cases where an undercover officer will pretend to be a minor on Craigslist or a similar website who is interested in meeting an adult for sex. If a suspect engages that “minor” over the internet, the officer will suggest they meet for sexual activity. When the suspect shows up, he is met by numerous police officers and arrested. At least one of the charges will be traveling to meet a person believed to be a minor for the purpose of illegal sexual activity. This is a very serious felony charge in Florida that normally comes with a significant prison sentence.

These cases can be strong for the state. First, a defendant charged with such a crime is often stigmatized before he gets his day in court. Secondly, as long as the state can prove the defendant is the person with whom the undercover officer was communicating over the internet about the sexual encounter (the fact that the defendant shows up to the meeting at the time discussed online goes a long way towards doing that), it is hard for the defendant to provide a legitimate reason for the meeting. One common defense in these cases is entrapment. Entrapment is also used, but somewhat less common, in drug cases. In these cases, the defendant will say that he initially planned to meet an adult female and thought he was communicating with an adult, but the undercover officer entrapped him by later claiming to be a minor and insisting upon the meeting.

Entrapment is a very difficult defense to make in any criminal case. A police officer being sneaky is not sufficient for entrapment. The defendant must show that the police officer’s fraudulent representation created a substantial risk that an otherwise law abiding citizen would commit an offense. A simple offer to engage in illegal activity is not nearly enough. If the undercover officer gave no indications to the suspect about a minor being involved, set up a meeting and then had a minor show up at the meeting, there would be a good defense to that scenario. However, these police officers are trained to communicate in these stings and at some point during the discussion, the officer will make it clear that he/she is a minor (or at least pretending to be), and if the defendant continues with the discussion and the meeting, the entrapment defense is probably not going to work.