Jacksonville Criminal Lawyer Blog

Interstate Agreement on Detainers Applies in Florida

Published on: September 7, 2013 | by Lasnetski Gihon Law

The laws regarding when the state has to take a person to trial and statutes of limitation can be very complicated depending on the charge, when the crime was committed, where the defendant was residing and other factors. There is a law that applies in Florida that addresses a situation where a defendant has a pending case in Florida but is currently in jail in another state. In these cases, the defendant can petition the Florida court to have his/her trial, or otherwise have his/her case resolved, here in Florida, and the Florida case could be dismissed if the state does not act accordingly.

The Interstate Agreement on Detainers provides that when a person has been sentenced to incarceration in another state and has a pending case in Florida (or any other state where this law applies), and Florida has a detainer on the defendant in that other state, the defendant can force a trial or resolution in Florida within 180 days. The defendant has to send a letter to the court and the prosecutor’s office in the county in Florida where the case is pending which tells them where he is incarcerated and makes a written request to have his Florida case disposed of. The letter must also be certified by an official where he is currently incacerated indicating certain facts about his sentence and the time he has served.

if the defendant follows those rules and the prosecutor in Florida does not resolve his case either through a trial or a plea (or get a continuance from the judge) within 180 days, the judge should dismiss the Florida charges. These days, with state attorneys offices having serious budget issues, they may not be inclined to bring a defendant to Florida for certain types of cases. Other prosecutors may not be aware of this law and might let a letter like this fall through the cracks. For someone who is in prison in another state and has a pending case in Florida, it might make a lot of sense to have a crinminal defense lawyer utilize the Interstate Agreement on Detainers for the Florida case and get the Florida charges dropped or at least force a favorable resolution in the Florida case.

Florida DUI Officer Could Not Stop Driver for Swerving in His Lane

Published on: September 4, 2013 | by Lasnetski Gihon Law

In order for a DUI case to go forward in Florida, the initial stop of the driver must be legal. In other words, if the initial stop of the driver by the police officer is not a valid stop, all evidence that the police officer obtains after the stop should be thrown out, which would likely make proving the DUI case too difficult to proceed.

Most DUI cases start with a police officer indicating that he/she observed the suspect violate one or more traffic laws as he/she was driving. Usually, that is sufficient for a traffic stop. From there, the police officer will allege the standard signs of impairment (odor of alcohol, bloodshot and glassy eyes, slurred speech, and so on), and the DUI investigation goes on from there.

However, not all alleged driving conduct is a legitimate basis for a stop and DUI investigation. In a recent DUI case near Jacksonville, Florida, the defendant was driving in a lane that was narrower than normal. Depending on the type of road, driving lanes are normally 10 – 12 feet in width. The police officer in this DUI case testified that he saw the defendant swerve in his narrow lane to the point of driving on top of the lane dividing line. The police officer did not see him drive into the other lane or commit any other traffic violations such as speeding or running a red light. The police officer also did not observe the defendant make any sudden movements with the vehicle, cause any other vehicles to react to him or endanger anyone. The police officer pulled the defendant over for swerving in his lane and subsequently initiated a DUI investigation.

Medical Doctor in Florida Can Be Charged With Drug Trafficking for Improperly Prescribing Drugs

Published on: September 1, 2013 | by Lasnetski Gihon Law

When most people think of drug trafficking charges in Florida, they think of people selling large quantities of marijuana, cocaine or other illegal drugs in traditional drug deals. However, with prescription drugs being the focus of police more and more, drug trafficking cases can involve many different scenarios. First, drug trafficking does not just mean selling or moving a large amount of drugs. Drug trafficking can also include merely possessing drugs over a certain threshold weight. Also, particularly with pill cases, a person really does not need to possess a great deal of pills to be at risk for a drug trafficking charge.

Medical doctors have also been the subject of drug trafficking investigations. In a recent drug trafficking case near Jacksonville, Florida, a medical doctor was charged with multiple counts of drug trafficking for providing Oxycodone to patients without a proper medical evaluation. The law allows a doctor to prescribe and dispense controlled substances such as painkillers like Hydrocodone in the normal course of his/her professional medical practice. However, if the state believes that a doctor is prescribing or dispensing controlled substance pills in an improper manner, such as without a proper medical evaluation or to people who do not need them or to known addicts in excess, the state may bring criminal charges against the doctor. We have seen this happen quite often in certain pain clinic cases in the Jacksonville and South Georgia areas.

In those cases, the state can charge a properly licensed medical doctor with trafficking in drugs or other drug-related crimes. The doctor can defend him/herself by arguing that the drugs were prescribed in the normal course of his/her medical practice. These cases can be difficult for the state to prove. After all, it is the educated and experienced doctor who normally decides issues related to a proper evaluation, diagnosis and treatment plan, not a police officer or prosecutor. On the other hand, drug trafficking charges in Florida come with severe penalties so there is a lot at stake (a felony conviction, loss of a medical license and prison time), and such cases must be defended appropriately

Florida May Be Putting Medical Marijuana Initiative Up for a Vote

Published on: August 28, 2013 | by Lasnetski Gihon Law

As many people are aware, marijuana laws have changed in some states over the last several years. Some states have realized how ridiculously wasteful, counter-productive and just plain stupid it is to give people criminal records and put them in jail for possessing and using a plant, and then ask taxpayers to pay for it. Florida, of course, is not one of those states. Anytime you have politicians who love spending taxpayer money on useless programs and policies that do nothing but increase the size and reach of big government, it is hard to get government to change its course. That is an obstacle for Florida.

However, people are trying to make medical marijuana legal in Florida. A recent bill that would have made medical marijuana legal in Florida was recently shut down. However, a group is obtaining signatures to try and place a medical marijuana constitutional amendment on the ballot for November of 2014. The initiative would apparently allow people to use marijuana for certain specified medical conditions and also when a doctor indicated its medical use would outweigh the potential health risks for the patient.

Adding a measure like this a the ballot takes time, resources and money. However, it looks like there is a good chance they will be successful in getting the medical marijuana measure on the ballot in 2014. Some of the polling done by various groups in favor of medical marijuana in Florida suggests that a medical marijuana amendment to the constitution would pass.

Florida Court Cannot Give a Defendant a Higher Sentence if He/She Cannot Pay Restitution

Published on: August 25, 2013 | by Lasnetski Gihon Law

In theft cases in Florida, restitution is usually a critical issue. Restitution is the term the defines the amount of money (or the value of the stolen item(s)) that needs to be repaid to compensate the victim. Whenever a defendant pleads guilty to a theft or fraud crime, or gets convicted at a trial, the judge will normally order the defendant to pay restitution to compensate the victim for what was stolen, if applicable. While the case is pending, the matter of restitution will likely be a negotiated issue between the state and the criminal defense lawyer.

A judge is not allowed to increase a defendant’s sentence because he/she cannot pay restitution. Likewise, a judge is not allowed to condition a reduction in a defendant’s sentence upon the payment of some or all of the restitution. Such actions would violate the Equal Protection Clause of the Constitution which forbids the court from treating people differently based on their wealth, or lack thereof.

That is what the law says, but in reality whether a defendant can pay restitution, and how much he/she can pay, usually matters. In some cases, it can be the most significant factor in negotiations. The law says that the the judge cannot condition a lighter sentence on the payment of restitution or order a harsher sentence because the defendant cannot pay restitution, but in practice, when a defendant can pay some or all of the restitution in advance, the defendant’s criminal defense attorney can often use that to the defendant’s advantage and work out a much better sentence than when no restitution payments can be made in advance. After all, at the end of the day, getting his/her money back is usually a victim’s top priority.

The Danger of Submitting to the Field Sobriety Exams in a DUI Case in Florida

Published on: August 22, 2013 | by Lasnetski Gihon Law

In just about every DUI case in Florida, the police officer is going to ask the driver to submit to a field sobriety exam. The police officer will not typically offer to the driver that he/she is free to refuse the field sobriety exam. The police officer wants the driver to submit to the field sobriety exam. it is a great tool police officers can use to support the DUI case against the driver.

If you are at the point in a DUI stop where the police officer is asking you to submit to a field sobriety exam, chances are the police officer thinks you are drunk. From here, the police officer is going to be observing you with the idea that you are drunk so that bias will certainly affect any subjective decision he/she makes about you. And make no mistake, the field sobriety exam involve completely subjective exercises. In other words, you pass or fail the exams if the police officer says you pass or fail the exams. And he/she already thinks you are drunk.

There are all sorts of problems with the field sobriety exam. Again, it cannot be understated that the sole judge of these exercises during the investigation is a person who already believes you are drunk. The exercises are often not recorded on video although it usually does not take much to have a video camera at the scene. If there is no video recording, it will always be your word that you passed the field sobriety exercises against the police officer’s word that you failed. Even when there is a video camera at the scene, the field sobriety exercises often take place outside of the camera or in the dark so the person watching the video really cannot see what is going on. Some of the exercises are too difficult to see on the video anyway, such as the eye test and touching your finger to your nose.

What Can I do if the Police in Florida Seize My Money or Other Property?

Published on: August 19, 2013 | by Lasnetski Gihon Law

As criminal defense lawyers in the Jacksonville and North Florida area, we have seen quite a few asset forfeiture cases lately. Asset forfeiture law is not technically criminal law, but it has a lot of similarities to it. A law firm that is familiar with search and seizure law and asset forfeiture law is important when the police seize a person’s property with the idea that they intend to keep, or forfeit, the property. An asset forfeiture case in Florida can start in many ways. A police officer can make a traffic stop of a person, determine that he/she is committing a crime and seize his/her money and or vehicle. Or, it can be a more premeditated effort based on an investigation. For instance, we have seen several incidents recently where the police investigate convenience stores for selling what they allege is synthetic marijuana. They send in undercover officers to make a few buys and then come back with uniformed officers to seize money, bank account information and merchandise.

Most people think the police can only seize and forfeit a person’s or business’s property if they can and intend to prove the person or owner of the business committed a crime. That is not always the case. We have handled cases where the police have seized over a million dollars from a person and business without filing criminal charges at all. We have seen cases where the police seized hundreds of thousands of dollars and made a criminal arrest, but they tried to keep the money even after the criminal charges were dropped.

If there is one thing the government likes, it is money, particularly other people’s money. Florida has some strange laws that allow the police to try and take people’s money and assets whether a crime is charged and pursued or not. If you have had your money or assets seized by the police and want to make sure your rights are protected and your ability to recover your property is preserved, it is important to talk to an attorney familiar and experienced with the Florida asset forfeiture laws. Feel free to contact us for a free consultation.

Police in Florida Cannot Search House Based on Anonymous Tip in High Crime Area

Published on: August 11, 2013 | by Lasnetski Gihon Law

The Constitutional right to privacy prevents the police from entering a person’s home to search for drugs or other evidence except in certain circumstances. If the police have a valid search warrant or someone with authorization gives the police consent to enter and search the house, that is one thing, but without one of those two circumstances, it is rare for the police to have authority to enter someone’s home.

In a recent marijuana case near Jacksonville, Florida the police received an anonymous tip that the defendant was in his home and engaged in some type of drug activity. An anonymous tip is practically never going to be a valid reason for the police to search a person’s home. Understanding that, the police decided to walk up to the house, knock on the door and see what happens. The police are usually allowed to go to a suspect’s house, knock on the door and see if someone inside will open the door and talk to them. If the police see or smell drugs or the person who opens the door gives them consent to enter, then the police can likely move forward with a drug investigation. The other side of that is a person is free to ignore the police if they come knocking on the door.

In this case, the police knocked on the door. The defendant stepped out of a side entrance, saw the police and ran back inside. Based on that, the police searched the house, found marijuana inside and arrested the defendant for possession of marijuana.

Armed Robbery With a Deadly Weapon Can Be Committed With BB Gun in Florida

Published on: August 8, 2013 | by Lasnetski Gihon Law

In Florida, armed robbery with a deadly weapon is a very serious crime that is punishable by up to life in prison. The Florida statute defines robbery with a deadly weapon as taking the property of another by use of force or putting someone in fear of violence. If the perpetrator carried a “deadly weapon” during the robbery, then it becomes a first degree felony punishable by up to life in prison.

In a case south of Jacksonville, Florida, the defendant robbed a cashier at a convenience store. When the cashier did not immediately comply and hand over the money, the defendant lifted up his shirt showing the handle to a gun. The cashier then gave him the money. Through surveillance footage and fingerprints, the police located the defendant. They arrested him in his vehicle and found a black BB gun under the driver’s seat. At the trial, the jury determined that the BB gun found in his car was the one the defdendant used in the robbery. The jury convicted him of robbery with a deadly weapon.

The criminal defense lawyer appealed arguing that a BB gun is not a deadly weapon under the Florida statute. He argued that a deadly weapon must be something that is likely to produce death or great bodily injury. However, the Court disagreed and held that a jury is justified in determing that a BB gun is a deadly weapon as they did in this case. A jury can determine a BB gun is a deadly weapon if there is an implication from the defendant’s words or actions. Since the victim testified that she thought it was a real gun and gave up the money as a result, the jury could find it was a deadly weapon under the robbery statute.

Florida DUI Evidence Thrown Out Where Police Did Not Read Implied Consent in Spanish

Published on: August 5, 2013 | by Lasnetski Gihon Law

In Florida, when a police officer makes a DUI arrest, he/she will normally ask the suspect to submit to a breathalyzer test to be taken after the arrest. If the suspect agrees to take the breathalyzer test which results in a reading of 0.08 or higher, the state will certainly use that evidence against the defendant in the DUI case. If the suspect refuses the breathalyzer test, the state will attempt to use that refusal against the defendant in the DUI case by arguing that the defendant refused the breathalyzer test because he/she knew there would be a bad result. Of course, there are any number of reasons why a suspect would refuse a breathalyzer test after a DUI arrest, and he/she can argue those in response in the DUI case, but the state will normally have a right to make their argument as well.

However, in order for the state to use a breathalyzer refusal against a defendant in a DUI case in Florida, the police must follow certain rules. One such rule is that when explaining the breathalyzer test to the suspect, the police officer must inform the suspect that if he/she refuses to submit to the breathalyzer test, that refusal can be used against him/her at the DUI trial and result in a suspension of his driver’s license. If the police officer fails to tell the suspect that, the state may not use the refusal against the defendant at trial.

In a recent DUI case near Jacksonville, Florida, a police officer stopped the suspect for driving without his headlights on. The police officer indicated that he observed signs of impairment about the suspect and initiated a DUI investigation. The DUI investigation then led to a DUI arrest. After the arrest and at the jail, the police officer asked the suspect if he would submit to a breathalyzer test. The suspect refused. The police officer then read him the implied consent information including the required information about a refusal of a breathalyzer test being used against the suspect at a DUI trial. The suspect was Hispanic. He understood some English, but his primary language was Spanish. He indicated that he did not fully understand the implied consent warnings. The police officer declined to re-read them in Spanish.