Jacksonville Criminal Lawyer Blog

In Florida Hit and Run Cases, the State Must Prove Defendant Knew of Accident

Published on: February 17, 2013 | by Lasnetski Gihon Law

In Florida, when a person is involved in an auto accident that involves property damage or injury, that person must stop and remain at the scene to exchange identification and insurance information with the other party and the police officer. If a person is involved in an auto accident that causes property damage and does not remain at the scene of the crash, he/she can be arrested and charged with leaving the scene of an accident which is a misdemeanor crime. If the crash results in a serious injury to someone, leaving the scene of the accident is a felony crime. If there is a death involved, the case becomes much more serious.

In a recent hit and run case near Jacksonville, Florida, the defendant was in a large truck, hit a pedestrian and kept driving. Witnesses who saw the accident called the police, and the defendant was stopped a few miles down the road. The defendant claimed that he did not know he hit the pedestrian. This case raises the question of whether the state has to prove the defendant driver actually knew he/she was involved in a crash before he/she can be convicted of the crime of leaving the scene of an accident. In most crashes, it is obvious to everyone involved in the crash.

However, there are cases where the impact may be minor yet the damages are severe where the driver may not know he/she was involved in a crash for some reason. In those cases, the state must prove the defendant knew he/she was involved in a crash. The criminal statute requires a willful violation on the part of the defendant. A willful violation requires some level of knowledge of improper activity on the part of the defendant. The state can prove knowledge of the crash by showing evidence of the nature of the crash, the defendant’s behavior after the crash, any statements the defendant made and testimony of witnesses who saw the crash.

Medical Emergency Can Be a Basis for a Police Search in Florida

Published on: February 14, 2013 | by Lasnetski Gihon Law

In Florida, there are generally two common bases that allow a police officer to search a person, vehicle, residence or anything else in which a person has a privacy right. If a person consents to a police search, the police can search pursuant to the terms of the consent. If the police go to a judge with probable cause to believe there is evidence of a crime and the judge agrees, the police can search pursuant to a search warrant. Most searches are conducted based on one of those two reasons. However, there are other situations where a police officer can search a person, vehicle or residence without consent and without a search warrant.

One situation occurs when there is a medical emergency. For instance, if a person has a seizure in his bed and his friend flags down a police officer outside, the police officer can probably come into the house and check on the person. If the police officer happens to see a bag of marijuana or cocaine in the room and makes an arrest, there is a good chance that search and seizure will be upheld. However, a search based on a medical emergency has its limits.

In a recent case near Jacksonville, Florida, the mother of the defendant called the police because the defendant appeared to be passed out in his room next to some pills. However, when the polcie arrived, the defendant was outside in front of the house. The police officer asked the defendant some questions, and he did not appear to need medical treatment. The police officer noticed a pill bottle in his pants. The defendant said it was blood pressure medication. The police officer then told the defendant to give him the pill bottle. The defendant complied, and the police officer determined that the pill bottle contained illegal pills. He arrested the defendant, and later found a bag of marijuana on him.

Self Defense is Not a Valid Defense in Florida Where Defendant is Committing Forcible Felony

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

Most people have heard of the defense of self defense in Florida where a defendant is charged with a violent crime. Basically, a person can use reasonable force to defend him/herself from the imminent force of another person. However, a defendant does not always have the right to a self defense claim. If the defendant was committing, attempting to commit or escaping from a forcible felony, the defendant does not have the right to claim self defense if he/she commits a violent crime against another person. Additionally, if the defendant provokes the force, he/she normally cannot claim self defense if he/she responds with violence.

In a case near Jacksonville, Florida, the defendant and the victim had very different stories about how the victim got injured. The victim said he was attacked by the defendant with a knife. The defendant said the victim attacked him first with a baseball bat and the defendant defended himself with the knife. The state charged the defendant with aggravated battery and attempted murder. The state argued that the defendant could not use the self defense argument because he was committing the forcible felony of aggravated battery when he was allegedly defending himself and committing the attempted murder. However, this is circular and flawed logic. The acts that supported the alleged aggravated battery and attempted murder were the same. In order to eliminate a self defense claim, the state has to show that the defendant was committing an independent forcible felony while allegedly defending himself. If the defendant was committing an independent forcible felony, then he/she cannot claim self defense if he commits a separate violent crime. In this case, the aggravated battery and attempted murder were basically the same conduct.

A legitimate example of the forcible felony exception to a self defense claim would be where the defendant is committing an armed robbery and the victim resists with violence. If the defendant was in reasonable fear for his life and committed an aggravated battery by shooting the victim, the defendant could not claim self defense because the violence occurred during a separate forcible felony he committed.

Conviction for Schemes to Defraud Reversed in Florida Sheriff Overtime Case

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

In a case south of Jacksonville, Florida, a sheriff’s office deputy allegedly manipulated the sheriff’s overtime assignment computer program to give her more overtime hours as a security officer at a local hospital than the sheriff’s policy would normally allow. The defendant worked those overtime hours, and she was paid extra for those overtime hours. As a result, the defendant was able to work more and get paid more at the expense of other sheriff’s employees who were assigned fewer overtime hours than normal.

This was clearly a violation of the sheriff’s overtime policies and resulted in more money for the defendant at the expense of her co-workers, but was it a crime? In this case, sheriff’s deputies would sign up each week through a computer system to request overtime hours at the hospital where people who have been arrested and jail inmates sometimes go for treatment and need to be guarded. A sheriff’s deputy is only allowed to sign up for a hospital overtime shift once every three days. The defendant was able to manipulate the computer system to work many more overtime hours than other sheriff’s deputies. The defendant was arrested and convicted on fraud charges on the theory that the defendant’s fraud deprived other sheriff’s deputies of overtime hours and pay.

The criminal defense lawyer appealed the conviction and argued that the defendant could not be convicted of fraud because the criminal statute requires that the victim is deprived of property. Property is normally defined as something that can be transferred and is exclusive. The appellate court held that the missed opportunity to work overtime hours does not fit the definition of property. As a result, the defendant did not deprive anyone of property, as that term is defined in the Florida criminal statutes, so she could not legally be convicted of schemes to defraud for essentially stealing overtime hours.

Investigators Using Wiretaps to Catch Insider Trading

Published on: January 30, 2013 | by Lasnetski Gihon Law

Here is an interesting article about how law enforcement officials have changed their tactics to catch Wall Street executives who are involved with insider trading. While wiretaps are traditionally thought of as tools to catch drug dealers, investigators decided to resort to using wiretaps in insider trading cases. Because insider trading is often done among, well, insiders, it was difficult for investigators to get inside tight groups of financial executives to see who was doing what. To circumvent this problem, investigators used whatever traditional methods they could to get an idea who was involved with insider trading and then closed the gaps through the use of wiretaps. When you have people on tape talking about using non-public information to make trades, it is a lot easier to get them to cooperate which, of course, leads to other suspects, more wiretaps, more cooperation and so on.

Nineteen People Arrested in Alleged Auto Insurance Fraud Scheme in Jacksonville, Florida

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

According to an article at News4Jax.com, police arrested nineteen people they say were involved in a large car insurance scheme in the Jacksonville, Florida area and other parts of Florida. When a person purchases an automobile in Florida, he/she is required to also purchase insurance for the vehicle. While the insurance laws change frequently, as of last year, vehicle owners were required to have Personal Injury Protection insurance, or PIP insurance, which was basically like no fault insurance. If a person with PIP insurance was involved in an accident, the PIP insurance would cover his/her medical bills for injuries sustained in the accident up to a certain amount, often $10,000, regardless of who was at fault for the accident.

According to Florida state investigators, certain people were committing fraud related to PIP insurance by staging accidents and getting the people involved in the alleged accidents to fake injuries and pretend to get treatment at a medical facility that presumably offers medical treatment. That facility then bills the insurance company for PIP insurance benefits for treatment that was never provided. According to the state investigators, about eighty alleged fake accident victims were involved in this scheme and an estimated $228,000 in fraudulent PIP insurance claims were made. As a result, the state investigators arrested people who allegedly were involved in the staged accidents, people who allegedly recruited the people to participate in the staged accidents and people allegedly involved with the clinics who made the claims for PIP benefits to the insurance companies. The state investigators apparently have more warrants outstanding for additional people they allege were involved in the car insurance fraud scheme.

Defendant Stopped in Drug Trafficking Case for Driving Repainted Vehicle

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

Many drug cases start with a simple traffic stop that turns into a search of the vehicle by police and/or a police K9 and ultimately an arrest on some drug charge. However, in order for that drug charge to be valid, the initial stop of the suspect and the search must be valid under the Constitution. In most cases, for the initial stop to be valid, the police must have probable cause, or at least reasonable suspicion, that the driver is violating a traffic law or committing some other crime. For the search to be valid, the police officer normally must have consent to search the vehicle or probable cause to believe there are drugs or is evidence of criminal activity in the vehicle.

In a recent drug trafficking case near Jacksonville, Florida, the defendant was driving a blue Ford when a police officer saw him and ran the tag. Apparently, the tag was registered to the same type of vehicle but the color on the registration information was green. Based solely on the color inconsistency, the police officer stopped the driver. The driver told the police officer that he had recently had the vehicle painted. The police officer smelled marijuana coming from the vehicle and searched it. Inside the vehicle, the police officer found marijuana and crack cocaine. The defendant was arrested for trafficking in marijuana and cocaine.

In most cases, a police officer can only stop a driver if there is specific evidence giving the officer at least a reasonable suspicion of criminal activity. The criminal defense lawyer argued that changing the color of a vehicle is not illegal or suspicious, and there is no legal obligation to report a change in vehicle color to the state. As a result, the court found that a police officer cannot stop a vehicle just because the vehicle’s color is different from the color on the registration information. This factor alone is insufficient evidence of criminal activity. However, there have been some courts in other states that have allowed a police officer to stop a vehicle based solely on a color discrepancy.

Driver Stopped in DUI Case Even When He Did Not Violate Traffic Laws

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

Most DUI cases in Florida are initiated when a police officer sees a driver committing some sort of traffic violation and then pulls him/her over. If the police officer feels as if there is evidence that the driver has been drinking, the police officer will likely begin a DUI investigation. However, there are DUI cases where the defendant was stopped without violating any traffic laws.

In a recent DUI case south of Jacksonville, Florida, the driver drove down a road that was blocked by emergency vehicles farther down. Rather than turn around, the defendant kept driving down the road. The defendant later said that he felt like he had enough room to drive around the emergency vehicles. While this was not the smartest move when the driver had been drinking, he had not violated any traffic laws when he was stopped by the police. The polcie officer saw him driving down the road that was apparently blocked to see why the driver kept driving rather than turning around. After talking to the driver, the police officer initiated a DUI investigation and ultimately arrested him for DUI.

The defendant’s criminal defense lawyer challenged the stop by arguing that the police officer did not have a legal basis to stop the defendant because no traffic laws were violated. In a DUI case, if the initial stop is not legal, then whatever evidence the police officer discovers after the initial stop will likely be thrown out. Likewise, without such evidence, the DUI case will likely be dismissed.

Necessity Could be a Defense to Driving With a Suspended License in Florida

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

Driving with a suspended license is normally a misdemeanor crime in Florida. However, it can still carry serious penalties such as jail time and an additional, very long suspension of driving privileges. If a person has enough prior driving with a suspended license (DWLS) convictions, the state can charge a new DWLS offense as a felony that could carry a penalty of up to five years in prison.

Most driving with a suspended license cases are fairly straightforward. The state only has to prove three things: 1) the defendant’s driver’s license has been suspended or revoked, 2) the defendant knew his/her driver’s license was suspended or revoked at the time of the arrest and 3) the defendant was driving while his/her driver’s license was suspended or revoked. The third element is fairly easy to prove as practically all DWLS cases are initiated after a police officer stops the defendant while he/she is driving. The first element can easily be proven with records from the DMV. The second element can be somewhat difficult to prove, but normally, when the DMV suspends a driver’s license, they send a notice to the driver, and that may be sufficient to establish that element.

However, even if the state can easily prove its DWLS case, there can be a defense to the charge. If a defendant charged with DWLS can establish that it was reasonably necessary to drive while his/her license was suspended or revoked, the defendant may not be guilty of the driving with a suspended license charge even where he/she was clearly driving with a suspended license. To prevail using a necessity defense, whether to a DWLS charge or another applicable criminal charge, the defendant has to establish that his/her conduct was reasonably necessary to deal with an emergency situation that he/she did not create. One obvious example would be if the defendant had a serious injury or was helping someone with a serious injury and was going to the hospital for emergency treatment.

State Can Obtain Blood Test Results From Hospital in DUI Case, But Cannot Use Presumption of Guilt

Published on: January 16, 2013 | by Lasnetski Gihon Law

When a person signs up for a driver’s license in Florida, he/she agrees to consent to a breathalyzer test administered by the police if the police have probable cause to believe that person is driving under the influence of alcohol to the extent that his/her normal faculties are impaired. This is what is referred to as the implied consent law. By accepting the privilege of driving in Florida, the driver impliedly consents to take the breathalyzer test after a legitimate DUI arrest. Of course, people refuse the breathalyzer test for any number of reasons after a DUI arrest, and the police cannot actually force someone to take the breathalyzer test. However, if the DUI arrest was valid and the driver refuses the breath alcohol test, the state can administer greater penalties, such as a longer driver’s license suspension, and the state can argue to the jury at a DUI trial that the driver refused the breathalyzer test because he/she knew he/she was drunk and would blow over the 0.08 legal limit. The defendant and criminal defense lawyer can argue other, perfectly innocent and valid reasons why he/she refused the breathalyzer test, and ultimately the issue would be for a jury to decide. In your average DUI investigation by the police, there may be perfectly valid reasons to refuse a breathalyzer test depending on how the police officer is conducting the DUI investigation and arrest.

In addition to a breathalyzer test, the police can obtain a blood sample for a blood alcohol test in some situations. This would not normally apply in a routine DUI arrest after a regular traffic stop where a breathalyzer test is feasible, but a blood test may be applicable after a serious accident that involves an injury or death. In the case of a serious accident, where the suspected driver goes to the hospital for serious injuries, the police may request a blood sample to test for blood alcohol content because the breathalyzer test at the police station is not practical. Additionally, the medical staff may take the suspected driver’s blood and test it for alcohol content for medical reasons. In the former case, if the driver refuses the blood draw, the state can later argue at trial that the driver refused the blood draw because he/she knew that he/she was guilty of driving under the influence of alcohol. If the state gets the blood test results via subpoena after the blood is drawn for medical purposes, the implied consent law does not apply and the state cannot argue any presumption that the driver was impaired by alcohol. However, in either case, the state can subpoena blood test results from the hospital if the medical provider took a blood sample and tested it for alcohol for medical reasons.