Jacksonville Criminal Lawyer Blog

Federal Agency Recommends Lowering DUI Limit Almost by Half For Florida and Other States

Published on: May 29, 2013 | by Lasnetski Gihon Law

DUI arrests in Florida come in all types. Many of them are completely the result of the subjective opinions and observations of a police officer who may be predisposed to believe you are driving while impaired from alcohol or drugs. Once that police officer has it in his/her head that you are driving drunk, basic psychology suggests that every subjective observation and interpretation he/she makes going forward is going to be tainted to some degree by that belief.

In most DUI cases in Florida, the police officer will request that the DUI suspect submit to a breathalyzer test. This test that purports to measure one’s blood alcohol level is not based on the subjective interpretations of the police officer, but it does come with its own issues, such as the reliability of the breathalyzer machine and the breathalyzer’s maintenance and operation. Of course, there are subjective elements to the breathalyzer stage of a DUI arrest. First, not everyone understands that the breathalyzer test is administered only after the police officer has arrested the driver for DUI. As you might expect, once the police officer goes through the trouble of making the DUI arrest, writing a report and driving the suspect all the way to the jail, we do not hear too many (as in none) reports of police officers “unarresting” the driver when he/she blows in the breathalyzer and the results are below the legal limit.

There is subjectivity in the breathalyzer process to the extent that different types of alcohol and different quantities of alcohol affect people differently depending on weight, metabolism rates, tolerance and other factors. There is also subjectivity in how and where the government decides to set the legal limit. Right now, the legal limit in Florida is 0.08. If a person blows in the breathalyzer and the results come back at 0.08 or higher, the driver can be assured that the state will likely file DUI charges. However, even where the suspect belows below 0.08, the state will often file DUI charges depending on the circumstances.

Jacksonville, Florida Police Make Domestic Battery Arrests on Word of One Person

Published on: May 26, 2013 | by Lasnetski Gihon Law

While some people consider misdemeanor crimes to be relatively minor, they can be quite serious, both in terms of punishment and the effect it can have on a person’s permanent criminal record. As the job market has become more difficult over the years, we have received a lot of calls from people with misdemeanor crimes on their records who did not think much of them at the time but are now having real problems today due to them missing out on job opportunities.

Among the misdemeanor crimes in Florida that are serious, DUI and domestic violence are at the top of the list. DUI’s are serious because they can often stay on one’s record forever (depending on the disposition), they are expensive and they can result in long driver’s license suspensions that can really disrupt a person’s life. Domestic battery charges are serious because the punishments can be severe, they often stay on a person’s record forever and (like DUI’s) future similar arrests can result in felony charges for what would normally be misdemeanor conduct.

As criminal defense lawyers in the Jacksonville area, we handle a lot of domestic battery cases. An alarming number of these arrests and subsequent criminal charges stem merely from one person’s word with no objective, corroborating evidence. The police officer often does not take the time to investigate the allegations, talk to both sides, locate witnesses or do anything else to find out if the allegations are true or if there is a defense such as self-defense. Often, the police officer will side with the first, or only, person to call 911 and make assumptions from there. This is particularly problematic in domestic battery cases since the parties are people who normally have a significant history together and the person calling the police may have an incentive to have the other party arrested.

Florida Prosecutor Drops Synthetic Marijuana Charges Against Store Owner

Published on: May 23, 2013 | by Lasnetski Gihon Law

As criminal defense lawyers in the Jacksonville and North Florida area, we have seen an increase in cases involving the alleged sale of what the police call “synthetic marijuana.” Keep in mind that “synthetic marijuana” is a term completely made up by police to make it sound like this substance is illegal. The police can call any substance “synthetic marijuana” with the idea that people are smoking it so it must be illegal. However, in our society, the Florida legislature, in state cases, has to actually pass a law specifically making possession or sale of the specific substance illegal before a person can be legitimately convicted of a crime for possessing or selling it. That is true regardless of whatever nefarious name law enforcement wants to give it. Nothing is illegal just because the police think so or think it should be.

In a recent case just west of Jacksonville, Florida, a convenience store owner was selling a substance that was sold under various brand names that customers were smoking to get a buzz. The government decided they did not want the store to sell this substance, labeled it synthetic marijuana, and sent an undercover officer into the store to discuss buying the substance to smoke it. Later, the police came in with search warrants, seized all of the so-called synthetic marijuana and arrested the store owner on felony drug charges.

As the criminal defense attorney for the store owner, it was our position that the store owner did not commit any crime. Prior to selling the items, the store owner consulted with an expert who tested the substances and indicated that they were not illegal under Florida law. The expert was correct in that the substances were not illegal under Florida law at the time the store owner was selling them, although the Florida legislature was in the process of making the new substances illegal. As a result, regardless of the fact that it looked somewhat like marijuana, people bought it to smoke it and the police called it synthetic marijuana, since there was no Florida law at the time that specifically made the substances illegal, the criminal drug charges did not go forward.

Police Cannot Force a Blood Test in Standard DUI Case Without Search Warrant

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

In Florida, we have what is called implied consent which means that any person who obtains a driver’s license in Florida consents to submit to an alcohol test where a police officer makes a valid stop and has probable cause to believe the person is driving under the influence of alcohol. This usually takes the form of a request by the police officer to blow into a breathalyzer at the jail after the person has been arrested for DUI. Whatever the reading is, the state will usually seek to use that evidence against the defendant in court in the DUI case. Where the breathalyzer reading is below the legal limit of 0.08, the police are not likely to unarrest the defendant, for lack of a better word.

A person who has been arrested for DUI can refuse the breathalyzer test. The police will not force a person to blow into the breathalyzer to get a breathalyzer result. In some cases, the police officer can request a test of his/her blood rather than a test of his/her breath. In a recent DUI case that went up to the United States Supreme Court, the DUI suspect refused to submit to a blood alcohol test and the police officer took his blood anyway to test it for alcohol content without a search warrant. The DUI case was appealed all the way to the Supreme Court.

The criminal defense lawyer argued that to take the defendant’s blood was a search and seizure under the Constitution, and it was unreasonable without a search warrant signed by a judge. The state argued that there was an exception to the general rule that the police need a search warrant for a search and seizure. Generally, the state needs a search warrant to search someone, including taking their blood. However, there are exceptions to the search warrant requirement. If there are emergency circumstances, such as the risk of losing evidence if the search is delayed, the state may be able to conduct a search without a search warrant. In this DUI case, the state argued that the blood concentration dissipates as time goes by so the police officer needed to get the blood for alcohol testing as soon as possible.

Florida Romeo and Juliet Law Could Get Certain People off the Sex Offender List

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

It is certainly not a popular thing to say that the Florida sexual molestation crimes are too severe. However, there is a certain category of sex offender cases that result from overzealous and misguided prosecutions. Consider a situation where an eighteen year old kid, considered an adult under the law, is dating a girl in his school. Maybe they have a class or two together and eat lunch together. They have an open relationship at school and go to the prom together. And then they break up, the girl’s parents get mad, the boy gets arrested and charged with a serious felony sex offense, becomes a convicted felon and has to report as a sex offender for the rest of his life and live by the very strict sex offender rules.

This has happened in two cases we are aware of. In both cases, the boy and girl were high school students going to the same school. They saw each other in class, in the hallways, at lunch and at school functions. They started relationships openly at school, and none of the teachers, the principal nor any other school personnel had any issue with it. However, both relationships ended, as high school relationships typically do, and someone got the police involved after the fact. The police, and then the state, using poor judgment, decided to arrest the boys for lewd and lascivious molestation based on these open high school relationships. The problem was that in both cases, the boys had just turned 18 years old and were about three and a half years older than their younger, high school girlfriends. In both cases, the boys decided to plead guilty to the lewd and lascivious molestation charges because they got an offer of probation that sounded pretty good when they considered that they faced serious prison time if they went to trial and were found guilty.

However, the problem was that both kids were considered to be sex offenders which meant they had to report as sex offenders every year for the rest of their lives. They also had to comply with very strict requirements that are put in place to supervise real sex offenders.

Suspects in Florida Need to be Clear About Asserting a Right to a Criminal Lawyer

Published on: May 2, 2013 | by Lasnetski Gihon Law

Legal shows on television do not normally have much association with reality, but one thing you often see on there is true. When a person gets arrested and the polic say he/she has a right to remain silent, a right to a lawyer and anything he/she says can and will be used against him/her, that is definitely true. Anyone who has been arrested has a Constitutional right to remain silent. Anyone who has been arrested has a right to speak to a criminal defense lawyer before he/she gives any sort of statement to the police. For some reason, a lot of people ignore those Constitutional rights and freely speak to the police after an arrest. Almost invariably, that person does severe damage to his/her case by doing so. Criminal defense attorneys sometimes say, one way to solve the jail overcrowding problem would be if people shut up when they were arrested by the police.

It cannot be stressed enough how important it is for someone arrested for a crime or suspected of having committed a crime to understand that he/she has an absolute right to not talk to the police and to talk to a criminal defense lawyer. However, the police are not going to ask you twice, and they are not going to hold your hand during this process. The police have a job to do and that is to arrest you and put you in jail if they think you have committed a crime. The whole idea of them getting a statement from you is to help them do that. You telling them you did not do the crime is not likely to change their minds. They did not go to the trouble of arresting you and bringing you in for a statement just to apologize and send you on your way if you tell them you are innocent. In all likelihood, you will only dig yourself a much deeper hole by giving a statement under those circumstances when you do not even know what evidence they have, if any.

In order to assert your Constitutional rights to remain silent and speak to a lawyer, you must be clear that is what you want to do. An equivocal or half-hearted request to stop talking or see if you can call someone will not get the job done. You must be very clear and assertive that you want to speak to a criminal defense lawyer before making any statements. You cannot say you want to go home or you want to call a friend or family member. You have to clearly express a desire to speak to an attorney in lieu of giving any sort of statement. Anything short of that may not be a sufficient assertion of your Constitutional rights. However, if you do make a clear statement that you want to speak with a criminal lawyer, the police are supposed to stop all questioning at that point. You can always resume speaking to the police at a later time, but if you do, you will likely be doing so with the benefit of knowing much more about the case, the laws the penalties you face and whether you have anything to gain by making a statement. The police always have something to gain by you making a statement after an arrest, you, on the other hand, may not.

Convicted Felon in Possession of a Firearm May Be Able to Use Florida Stand Your Ground Law

Published on: April 29, 2013 | by Lasnetski Gihon Law

The Florida Stand Your Ground Law, as it is commonly known, received a lot of popularity, or perhaps notoriety, as a result of the pending Trayvon Martin/George Zimmerman case. The law, which really is not very extraordinary, is basically a self defense law that says a person can use force if he/she reasonably believes he/she is about to be the victim of force. The force used by the defendant has to be reasonable under the circumstances and in consideration of the kind of force used or threatened by the alleged victim. In simple terms, if someone is in the process of doing, or is about to do, something violent to you, you can do something violent to him/her as long as you do not go overboard, and there is no duty to retreat from the situation.

One benefit of the Florida Stand Your Ground law is that a defendant charged with a violent crime can have the criminal defense lawyer file a Stand Your Ground motion and have a hearing prior to a trial. If it is established that the defendant meets the parameters of the Florida Stand Your Ground law, the defendant is immune from prosecution. This means that the judge must throw the charges out, and the defendant does not have to take his/her chances with a jury.

One exception to the Florida Stand Your Ground law is that the defendant cannot benefit from the law if the defendant is engaged in an unlawful activity. An obvious example would be a person burglarizing a home, the homeowner comes out with a gun and threatens to shoot the defendant so the defendant shoots the homeowner first. That would clearly fall within a Stand Your Ground situation as a person would have a right to shoot another to avoid being shot him/herself. However, the exception would apply and the defendant would not be allowed to succeed on a Stand Your Ground claim because he/she was engaged in an unlawful activity (burglary) at the time.

Federal Government Using New Technology to Track People By Their Cell Phones

Published on: April 26, 2013 | by Lasnetski Gihon Law

The United States Constitution, along with the Florida Constitution, protects people from unreasonable searches and seizures. There are many cases decided by state and federal courts which elaborate on what is a legal search and seizure by the police and what violates a person’s right to privacy under the Constitution. However, as many legal cases as there are, they do not perfectly cover every situation. This is particularly true where a new technology is developed that gives the government access to people and information that was not possible before.

Somewhat recently, government officials have attempted to track people via GPS in their phones and otherwise. As a result, there have been court decisions in Florida and throughout the United States discussing whether the police need a warrant before they can track someone’s movement by GPS. There is now a new technology called Stingray that allows the government to track cell phone signals inside vehicles, homes and certain buildings. With this technology, the government can use a person’s cell phone data, such as text messages and emails, to determine the exact location of the cell phone. Law enforcement officials are apparently using this technology to track people without first applying for a search warrant and getting permission from a judge. The government’s position is that the technology does not retrieve information on the cell phone, just its location, so a search warrant is not required.

This tracking device, which apparently costs between $60,000 and $175,000, is primarily being used in drug cases (the government does love to spend money on the war on drugs). As of now, we have not seen any legal opinions that have directly addressed this particular Stingray technology. However, as the government makes greater use of it and makes drug and other arrests as a result, the issue of whether the government can track a person by his/her cell phone data without a warrant will likely be the subject of future criminal cases and appeals.

Proving Defendant Knows Marijuana is There is Not Sufficient for Possession Charge

Published on: April 23, 2013 | by Lasnetski Gihon Law

In Florida, a defendant can be convicted of possession of marijuana or other drugs based on constructive possession. However, the state has to prove both that the defendant knew the drugs were present and had some sort of dominion or control over the drugs. For example, if a person walks into a friend’s house who is having a party and sees marijuana on the table and stays at the party but never touches it or smokes the marijuana, he would not be guilty of possession of marijuana if the police come in and arrest him. It is not illegal to be in the same room as illegal drugs and there is no legal obligation to leave a place where drugs may be present, although it might be a good idea to avoid legal problems.

A recent possession of marijuana case was a common example of a constructive possession of drugs case where the state would have a very difficult time proving its case short of the suspects giving statements to the police. A police officer pulled over a driver and immediately smelled marijuana in the vehicle. The police officer ultimately searched the vehicle and found marijuana in a backpack in the hatchback area of the vehicle. There were three occupants in the vehicle. The police officer arrested all of them, but they could not prove a possession of marijuana case on any of them. Basically, in order to prove that one or more of the occupants was guilty of possession of marijuana, the state would have to prove they knew the marijuana was present and establish proof it belonged to one or more of them or on or more of them was in possession of the marijuana. That is the idea with a constructive possession case- since the police did not see the suspect actually possess the marijuana, the state can still try to prove the marijuana was actually possessed by a suspect or belonged to a suspect with circumstantial evidence, or a confession.

In this case, the state could easily prove each suspect knew the marijuana was there because everyone could smell it. However, there was insufficient evidence to prove it belonged to any of them or any of them had actually possessed it. The vehicle was rented, and there was nothing else in the backpack indicating if it belonged to any of them. No one made any statements so the state had nothing more than proximity. As a result, this was insufficient for a possession of marijuana conviction for any of them

Concerned Citizen can Be Basis for a Traffic (and DUI) Stop in Florida

Published on: April 20, 2013 | by Lasnetski Gihon Law

Most traffic stops, whether it is just a traffic ticket situation or one that leads to criminal charges like DUI or possession of drugs, result from a police officer claiming to observe a person violate some traffic law. It is not common for police officers to make a traffic stop based on prior information with the exception of certain drug investigations. However, a police officer may be permitted to stop a driver based on a tip from a concerned citizen.

A traffic stop is considered a seizure under the Constitution. This means that a police officer cannot conduct a traffic stop without specific, reliable evidence of criminal activity or at least a traffic violation. As indicated, normally that comes from a patrol officer’s own alleged observations. Less often, police officers will follow up on information provided by a concerned citizen who has flagged down an officer or called 911. The question then is whether the police officer is permitted to stop a person based on such a tip.

In a recent case south of Jacksonville, Florida, a driver called 911 and said that a suspect was driving recklessly on the highway and almost went off the road a few times. The caller gave specific information about the suspect’s vehicle and also provided her own name and contact information. A police officer responded and stopped the suspect. This ultimately led to a DUI arrest of the suspect.