Jacksonville Criminal Lawyer Blog

Defendant’s Suicide Attempt Used Against Him at Trial in Florida

Published on: January 13, 2013 | by Lasnetski Gihon Law

At trials in criminal cases, the state will attempt to use whatever evidence it can to show that the defendant is guilty of the crime(s) with which he/she is charged. What such evidence consists of depends on the nature of the case. For example, in a recent case near Jacksonville, Florida, the defendant was charged with multiple counts of lewd or lascivious molestation, a very serious felony charge. After the allegations came out but before the arrest, the defendant apparently tried to commit suicide with pills. At the trial on the lewd or lascivious molestation charges, the state brought out that the defendant tried to commit suicide. The criminal defense lawyer objected to that evidence, but the court allowed it.

According to the court, the state is permitted to introduce evidence that a person is trying to evade prosecution for a crime(s). Under the Florida rules of evidence, acts of the defendant which tend to show his/her consciousness of guilt are normally admissible at trial. Common examples of this are when a person tries to run away from an arrest or conceal him/herself from being located by law enforcement. However, there have also been examples where a suspect or defendant has attempted suicide after learning of criminal allegations or being arrested. In those cases, the state may be permitted to tell the jury about the suicide attempt and basically argue that the defendant tried to commit suicide because he/she knew he/she was guilty and wanted to avoid prosecution. Vague comments about possibly committing suicide may not be admissible at trial if they are not serious, but an actual suicide attempt may very well be admissible in a criminal trial, and the state will use it to argue the suicide attempt was an attempt to avoid being prosecuted by someone who knows he/she is guilty.

It is Important to Understand the Concealed Firearm laws in Florida

Published on: January 10, 2013 | by Lasnetski Gihon Law

Due to recent events, new reports have indicated that firearm and ammunition purchases have increased significantly in 2012 and into 2013. As more and more people purchase and own firearms, it is very important that they know the laws regarding firearms possession and ownership in Florida. Florida has very severe criminal penalties for violating gun laws.

For instance, most people are aware that if you are a convicted felon, whether the felony conviction occurred in Florida or any other state, you are not allowed to possess a firearm. State prosecutors almost always recommend prison sentences for people charged with the crime of possession of a firearm by a convicted felon. Fewer people know that you are not allowed to purchase a firearm if you have been convicted of a misdemeanor domestic violence charge. This is a federal law. When you purchase a firearm from a federally licensed firearms dealer, they will give you a form. One of the questions asked on the form is if you have ever been convicted of a misdemeanor crime of domestic violence. Even if you have never been convicted of a felony before, but have been convicted of a misdemeanor crime of domestic violence, the firearms dealer will not sell you a firearm. If you lie on that form, you could be charged with a serious federal crime.

If you are authorized to purchase and possess a firearm, it is still important to know the concealed firearms laws in Florida. Carrying a concealed firearm without a proper concealed firearms license is a felony crime in Florida. A common arrest for carrying a concealed firearm occurs when a police officer stops a person for a traffic violation and later finds a gun under the seat or hidden in the driver’s waistband. However, there are exceptions to the carrying a concealed firearm law. You are allowed to carry a concealed firearm without a concealed firearms permit in your home or at work.

Suspect Refuses Treatment at Jail, Gets a DUI Blood Test

Published on: January 6, 2013 | by Lasnetski Gihon Law

In Florida, when a person gets arrested for driving under the influence of alcohol, or DUI, he/she is going to get taken to jail. In the Jacksonville area, he/she will stay in jail until he/she goes in front of a judge either the next morning or next afternoon depending on how late the arrest was. When a person in the Jacksonville, Florida area gets arrested for DUI (other than for a previously signed arrest warrant), the person cannot bond out immediately and has to wait to see a judge to get a bond the next day.

Also in the Jacksonville, Florida area, and likely in most places, the jail will not accept a person who has an immediate injury or urgent medical problem. Having an urgent or serious medical problem is not a ticket out of jail; it just means that the police will take the person to a hospital to get medically cleared before the person can go back into the jail. In DUI cases, this often arises after an accident associated with the DUI. If it is questionable whether the person has a serious enough injury or medical problem so that a hospital trip is necessary before jail, the jail may have a nurse or other medical personnel evaluate the suspect to see if he/she needs to go to the hospital or can go to the jail.

In DUI cases, the police officer does not normally request a blood sample for a blood alcohol test. In most cases, a breath test, or breathalyzer test, is requested of the driver to test his/her blood alcohol level. An exception occurs where a person involved in an accident, is suspected of DUI and the accident involve serious injury or death such that a hospital visit is required.

State May Subpoena Medical Records and Blood Test Results in Certain DUI Cases in Florida

Published on: January 3, 2013 | by Lasnetski Gihon Law

In most driving under the influence of alcohol (DUI) cases in Florida, the police officer will ask the driver to consent to a breath, or breathalyzer, test which uses the driver’s breath to try and measure the driver’s blood alcohol content. The legal blood alcohol limit in Florida is 0.08. Also, normally, the police officer cannot request that a driver take a blood test to determine the driver’s blood alcohol content. The driver can request an independant blood alcohol test, but it is not something that the police officer typically mentions in a normal DUI investigation.

One exception is when the suspected drunk driver was involved in an accident with serious injuries or death that involves a hospital visit. In those cases, the police officer can request that the driver provide a blood sample to later test for alcohol content when the driver appears in the hospital for treatment and a urine or breath test is not practical. When a driver was involved in a serious accident involving injury or death, the police officer can request a blood draw to test for alcohol at the hospital.

What if the driver refuses, but the medical staff takes his/her blood for medical reasons? In a recent DUI case near Jacksonville, Florida, a driver was involved in a single vehicle accident and was taken to the hospital. The responding police officer suspected that the driver was impaired by alcohol and requested a blood sample to test for blood alcohol at the hospital. The driver refused to provide a blood sample for blood alcohol testing, but the hospital staff did take blood for medical reasons. Later, the State subpoenaed the blood taken by the hospital and all blood test results performed by the hospital.

Police in Florida Can Approach Suspect and Ask Basic Questions

Published on: December 30, 2012 | by Lasnetski Gihon Law

In Florida, the United States and Florida constitutions afford citizens certain rights to prevent police officers from unreasonably stopping them, detaining them and searching them. The term “unreasonable” in this context refers to police searches and seizures that are done without sufficient, specific evidence to establish the person is involved in criminal activity or possesses evidence of criminal activity.

While a police officer cannot go up to a person who looks suspicious and stop him for interrogation, a police officer can always go up to a person and ask questions in a consensual manner. For instance, in a recent marijuana case near Jacksonville, Florida, a police officer saw two juveniles walking down the street during school hours carrying full backpacks. The police officer stopped his vehicle without activating his emergency lights or siren and asked the juveniles some questions. The police officer asked the juveniles what they were doing there and for their identifications. Both juveniles agreed to answer the questions and provide their ID’s. Next, the police officer asked if he could search their backpacks, and the juveniles consented to the search. The police officer found marijuana and marijuana paraphernalia inside and arrested them both for possession of marijuana.

This was a legal police encounter. A police officer can always go up to a person and ask basic questions and ask for ID. Of course, the other side of the coin is that a person can refuse to answer the questions and walk away. As long as there is no evidence the person is involved in criminal activity, the police officer should not have a legal basis to stop the person and make them answer questions or provide ID. In this case, the juveniles agreed to talk to the police officer and let him search their backpacks to find the marijuana. Obviously, that was a bad decision and one was likely the result of the juveniles not knowing their constitutional rights. If a person has marijuana or other drugs on him/her and consents to a police officer search, that is a guaranteed arrest and criminal charge.

In Burglary Case in Florida, State Has To Prove Defendant Did Not Have Permission to Enter

Published on: December 27, 2012 | by Lasnetski Gihon Law

In Florida, burglary is a very serious felony crime. Generally, a burglary is committed by entering some structure with the intent to commit a theft or some other crime inside. A person does not need to actually go all the way into the structure to commit the crime of burglary. Additionally, a person does not need to actually commit a crime inside to commit a burglary. if the evidence establishes that the defendant partially entered the structure and intended to commit a crime inside, then a burglary may be proven.

However, one element of a burglary is that the defendant must not have authorization to enter the structure. In other words, if the defendant had permission to enter the structure, it is unlikely that he/she can be found guilty of burglary. This issue often arises when a person is staying with the victim or perhaps use to stay with the victim and apparently moved out but still comes over to the residence. In those cases, if the defendant can present some evidence that he/she had consent to be in the structure, the state then has the burden of proving beyond a reasonable doubt that the defendant did not have permission to enter the structure. It will depend on the circumstances of the case, but the defendant can argue that he/she used to live there, had a key, still had some possessions there, had a relationship with the owner and other factors indicating a right to be there. If the state fails to prove beyond a reasonable doubt that the defendant did not have permission to be there, then the state cannot prove a burglary was committed.

Former Police Ask Federal Government to Respect New State Marijuana Legalization Laws

Published on: December 24, 2012 | by Lasnetski Gihon Law

As many people are aware, Colorado and Washington recently passed laws legalizing marijuana to some extent. In the past, when California passed laws legalizing medical marijuana dispensaries, the federal government seemingly ignored the state’s wishes and raided these medical marijuana dispensaries that were legal under state law. For some reason, the federal government was arresting, prosecuting and imprisoning people for marijuana related conduct that was perfectly legal under the state’s laws.

When Colorado and Washington passed the marijuana legalization laws, the states were concerned that the Obama administration would continue to thwart the wishes of those states by making marijuana arrests under federal law. At first, the Obama administration was vague about how the federal government would react to the states’ marijuana laws.

Colorado and Washington received support from some seemingly unlikely allies asking the federal government not to bother with states that have legalized marijuana. Former law enforcement officials, DEA agents, criminal prosecutors and judges signed a letter to Attorney General Eric Holder asking the federal government to leave Washington and Colorado alone. When you think about it, it makes perfect sense. By all accounts, the war on drugs has been an unmitigated disaster of unprecedented proportions. It is little more than a tool for politicians who take every opportunity to increase the size of government and seize on the fears of the public. In addition to the incredible cost of the program with no discernible results, it also puts law enforcement officials in dangerous situations for no legitimate reason. As everyone knows, making marijuana illegal creates a strong market for marijuana that is run by dangerous drug cartels. This creates an unnecessary danger for police and everyone else.

Record Number of People Are in Favor of Legalizing Marijuana

Published on: December 21, 2012 | by Lasnetski Gihon Law

As our government continues to pour money down the most wasteful government program in the history of mankind, also known as the war on drugs, the public seems to be more and more in favor of reversing course to some degree and legalizing marijuana. A recent survey conducted by Public Policy Polling found that 58% of the respondents said marijuana should be legal. Other recent polls had approval for legalizing marijuana at just over 50% and just under 50%. Of course, these polls were conducted around the same time that Colorado and Washington passed laws legalizing some degree of marijuana possession. More specifically, in Colorado, the new law makes it legal for an adult 21 years of age or older to possess up to an ounce (28.35 grams) of marijuana and privately grow/cultivate up to six marijuana plants. Back in the dark ages in Florida, what is now perfectly legal in Colorado is a felony crime punishable by up to five years in prison here. In Florida, it is a misdemeanor to possess twenty grams or less of marijuana, but it is a third degree felony to possession more than twenty grams of marijuana. Twenty grams is not much of anything.

It is probably only a matter of time before other states, including Florida, join the 20th century and stop wasting ridiculous amounts of money and resources on possession of a plant. General public sentiment appears to be heading in that direction, and the laws often follow. However, because legalization laws are contrary to the current, longstanding trend of taking every opportunity to increase the size of government and its reach, legalization laws may still be pretty far in the future for Florida.

Texting and Driving May Be Illegal in Florida Soon

Published on: December 18, 2012 | by Lasnetski Gihon Law

In some states, it is illegal to text while driving. In Florida, there is no law against it, but that will likely change soon. There are bills moving through the Florida legislature that would make it illegal to text and drive. If one of the bills becomes the law in Florida, it will not be a criminal offense to text and drive; it will merely be a civil traffic infraction that will result in a traffic ticket and a fine. Additionally as the proposed law appears now, it will be a secondary offense. The significance of this is that the police are not allowed to pull a driver over based solely on a secondary offense. If texting and driving becomes a secondary offense, the police cannot pull someone over and give them a ticket if they are just texting and driving. The police can only give a driver a ticket for texting and driving if he/she is able to pull him/her over for a primary offense such as speeding or running a red light.

This becomes critical in criminal cases as many criminal cases, such as DUI and possession of illegal drugs or guns, start with a simple traffic stop. In all of those cases, it is important that the criminal defense lawyer review the stop and make sure it was legal. If the initial traffic stop is not legal, the evidence obtained by the police officer after the stop cannot be used against the defendant if there is a subsequent arrest and criminal charge.

Florida Police Cannot Detain a Person For DUI Due to Sleeping in Vehicle

Published on: December 13, 2012 | by Lasnetski Gihon Law

As an initial matter, people need to understand that they can be arrested for driving under the influence of alcohol or drugs (i.e. DUI) even if the police never see them driving a vehicle. If a person is in actual physical control of the vehicle, that is sufficient for a DUI arrest if the person is impaired. The classic case of actual physical control is when the police officer sees a person in his/her vehicle with the keys in the ignition, whether the vehicle is running or not. In those cases, the state has a valid argument that the defendant was in actual physical control of the vehicle and guilty of DUI although no one was actually driving the vehicle at the time.

However, the police cannot just detain a person who is laying down in or sleeping in a vehicle whether the keys are in the ignition or not. A common DUI case occurs when the police get a call about, or see, someone apparently drunk or asleep in a vehicle parked somewhere. The police officer will approach the vehicle and see that the person is asleep or passed out in the driver’s seat. The police officer can assume the driver is passed out drunk, but without specific evidence that the person has been drinking or using drugs, the police officer cannot act on that assumption alone. The police officer can knock on the window and ask the driver some questions to investigate further. However, based on this evidence alone, the police officer cannot tell the driver to get out of the vehicle, tell the driver to take the keys out of the ignition or block the driver’s vehicle with his/her own police vehicle.

The bottom line is the police officer cannot force someone to do something or give the person any indication that he/she cannot leave based on an assumption that the driver is impaired from alcohol or drugs. If, after a consensual discussion with the driver, the police officer develops evidence that the person has been drinking or using drugs (such as odor of alcohol or incriminating statements), then the police officer can ask the driver to turn off and step out of the vehicle. However, without specific evidence of impairment, detaining the driver for further investigation or arresting him/her for DUI is improper and should result in the DUI case getting thrown out.