Jacksonville Criminal Lawyer Blog

DUI Manslaughter in Florida Requires Causation Between Crash and Impairment

Published on: October 7, 2012 | by Lasnetski Gihon Law

When a person is driving under the influence of alcohol or drugs to the extent that his/her normal faculties are impaired and gets into an accident, the DUI charge becomes much more serious. If another person is seriously injured in the accident, the driver will likely be charged with DUI with serious bodily injury which is a felony. If a person dies as a result of the accident, the driver will likely be charged with DUI manslaughter which is a first degree felony in Florida and often comes with a significant prison sentence if the defendant is convicted of the crime.

However, proving a DUI manslaughter case in Florida is not as simple as proving there was an accident, someone died in the accident and one of the drivers was drunk. The state must prove that the defendant’s impairment caused or contributed to the accident and the death. In other words, if the accident would likely have occurred even if the driver was completely sober and/or the accident was not the defendant’s fault, then the state cannot prove a DUI manslaughter case.

In a recent DUI manslaughter case near Jacksonville, Florida, the accident reconstructionist experts who looked at the crash determined that the victim must have been doing a wheelie on his motorcycle when he was hit by the defendant who had been drinking. The victim was driving his motorcycle at about 85 miles per hour and was not wearing a helmet. Because the accident happened, if the victim was doing a wheelie prior to the crash and driving at that speed, there is a good chance the the defendant would not have even seen the motorcycle because its headlight would have been pointed upwards and difficult for oncoming traffic to see. Basically, because the way the accident likely happened, the state could not prove that the defendant was at fault in the accident nor could the state prove that the defendant’s impairment caused or contributed to the crash. As a result, in this case, even though there was a crash, someone died and the defendant was impaired from alcohol, the charge of DUI manslaughter was thrown out because the impairment did not cause or contribute to the crash. The victim’s own reckless driving apparently caused this crash, and the defendant is not criminally liable for it.

Defendant’s Stand Your Ground Claim Successful in Florida Aggravated Assault Case

Published on: October 4, 2012 | by Lasnetski Gihon Law

As many people have become aware since the popularity of the George Zimmerman/Trayvon Martin case, the Florida Stand Your Ground law allows a criminal defense lawyer representing a defendant charged with a crime of violence to file a motion to have the case thrown out based on the idea that the defendant had a right to defend himself against the alleged victim. Unlike a normal defense at a trial, the Florida Stand Your Ground law is an immunity to criminal prosecution. This means that if it is successful, the case is thrown out before it ever gets to a jury.

In a case near Jacksonville, Florida, the defendant was charged with aggravated assault after a power company employee climbed over his fence onto his property to shut off his electricity. The defendant exited his house with a gun, threatened the victim and fired a shot in his direction. The power company employee climbed back over the fence off of the defendant’s property and called the police. The defendant testified that he lived in a high crime area and did not initially know who the intruder was because the power company did not call ahead.

The court agreed with the defendant and threw out the aggravated assault charge. While the power company employee does have a right to come onto private property for service-related purposes, since the court believed the defendant did not know the intruder was a power company employee, he had a right to defend himself from someone he assumed was committing a burglary on his property. As long as the defendant discontinued the threat once he realized the guy was a power company employee rather than a criminal and the threat of violence was no longer justified, the Florida Stand Your Ground law applied in this case.

Federal Government Not Prosecuting Wall Street Executives

Published on: October 1, 2012 | by Lasnetski Gihon Law

Despite the havoc that has occurred with the economy, mortgages and the banking system over the last several years, no Wall Street executives have been prosecuted since the economy went down the drain in 2008. One can only imagine the fraud and illegalities that were occurring to have such a significant effect on our financial system. It seems logical that the federal government might be able to find a couple people who broke the law as billions of dollars in wealth were erased from people’s accounts and pensions. However, as of today, not one Wall Street executive has been prosecuted in criminal court.

A recent article in the Washington Examiner suggests that conflicts of interest with the Department of Justice are to blame for the lack of prosecutions. As is often the case, when a new president takes over, he appoints people from the largest financial institutions and law firms to positions of power in government. These people worked for the companies who may have broken the law or worked with the executives who might be the targets of federal white collar crime prosecutions or represented those same companies and executives at their law firms. For example, as the article points out, Attorney General Eric Holder used to work for the law firm of Covington & Burling which represents Goldman Sachs, Bank of America, Citigroup and many others. When those relationships exist among the people making the decisions to prosecute white collar crimes and the people and companies potentially committing the white collar crimes, you can see why the following counter-intuitive situation exists today: according to the article, financial fraud prosecutions by the Department of Justice are at a twenty year low even though there seems to be more questionable financial dealings than ever.

In Florida, Driver Cannot Give Police Consent to Search Passenger’s Property

Published on: September 28, 2012 | by Lasnetski Gihon Law

In Florida, police officers are allowed to search a person or his/her property in limited circumstances. One situation where a search is usually legal is when the owner of the property or the person with authority over the property gives the police consent to search the property. However, a person cannot give police consent to search property that is not his/hers or over which he/she does not have authority.

For example, in a possession of cocaine case near Jacksonville, Florida, the police pulled a vehicle over in a high crime and drug area. The police officer suspected the occupants of buying crack cocaine. There was a male driver and a female passenger in the vehicle. After some discussion, the police officer asked the driver if he could search his car. The driver agreed, and the police officer asked the driver and the passenger to step out of the car. The police officer did not find any drugs in the car, but he did find some drugs in a purse that was on the passenger seat. The police officer arrested the female passenger for possession of the cocaine found in the purse.

The criminal defense lawyer moved to suppress the evidence of the cocaine because the police officer did not have authority to search the purse. If a police officer gets consent to search a car from the driver or owner, that usually means he can search all over the car, the glove compartment and even containers in the car depending on whether the consent is limited or general. However, if an item or container likely belongs to someone else who did not give consent, the police officer cannot use the driver’s consent as authorization to search another person’s property. In this case, it should have been fairly obvious that the purse belonged to the female passenger. There was no evidence that the driver owned the purse or had authority to give consent to search the purse. If the police officer wanted to search the purse, he should have asked the person most likely authorized to give consent to search the purse. Because he did not, he did not get proper authorization to search the purse, and the evidence of the cocaine was suppressed. The possession of cocaine charge was dropped.

Police Follow Defendant Into His Home, Find Marijuana, But Case is Thrown Out

Published on: September 25, 2012 | by Lasnetski Gihon Law

People in Florida have very strong privacy rights in their homes, and police can only enter a person’s home in limited circumstances. Normally, the police will either need a valid search warrant, consent from an authorized person or an emergency making it necessary to enter a person’s home when there is no time to get a search warrant. Absent one of those situations, a police officer’s search of or in a person’s home will likely be illegal.

In a recent possession of marijuana case near Jacksonville, Florida, the police responded to a domestic disturbance call involving a husband and wife. The husband and wife met the police officers in the front yard, and everyone decided that the husband should spend the night somewhere else. The police officers offered to give the husband a ride to a friend’s house. The husband indicated he had a knife on him that he needed to put back in his house. The police officers followed him into the house and saw that he had a bag of marijuana in his pocket. The police officers arrested him for possession of marijuana.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana. The criminal defense attorney argued that the police officers did not have a right to enter the defendant’s home and as a result, any evidence found in the home should be suppressed. The Court agreed. The police officers did not have a search warrant, and there was no emergency that justified entry into the defendant’s house. While the defendant apparently did not object when the police officers followed him into his house, that is not the same as affirmative consent. Because the police officers did not have a legal basis to enter the house where they found the marijuana, the evidence of the marijuana was suppressed and the possession of marijuana charge was thrown out.

In DUI Case, Defendant’s Admission of Driving, By Itself, May Not Be Sufficient to Support DUI Conviction

Published on: September 22, 2012 | by Lasnetski Gihon Law

In a DUI (driving under the influence of alcohol or drugs) case in Florida, the state must prove that the defendant was driving the vehicle or at least in actual, physical control of the vehicle while impaired. In most cases, this is easy as most DUI cases start when the police officer pulls the driver over for a traffic infraction. In accident cases, it can be more difficult for the state even when it seems obvious the defendant was driving. For instance, when a police officer responds to the scene of an accident, he/she usually has no evidence to suggest alcohol or drugs were involved. The police officer will initiate a traffic crash investigation and get a statement from the presumed driver. During the traffic crash investigation, nothing the driver says about driving or impairment or anything else incriminating can be used against the driver if the police officer ultimately arrests the driver for DUI or another crime. This is called the accident report privilege.

Additionally, if the police officer responds to an accident and the driver is already out of the vehicle, the state may not be able to prove the driver was in fact driving while impaired from alcohol or drugs. In a recent DUI case near Jacksonville, Florida, the police officer responded to a one vehicle crash, and there were four people standing around the vehicle. Ultimately, the driver admitted he was driving, but none of the other people confirmed it and there was no other evidence to establish that he was driving. The police officer arrested him for DUI, but the case was thrown out.

In criminal cases in Florida, a person’s confession alone is not sufficient to convict a person of a crime. In this case, the only evidence the state had that the defendant was driving was his own admission. Without any other independent evidence to corroborate that statement, the statement was not admissible to establish the defendant was driving. As a result, there was insufficient admissible evidence to prove the DUI, and the case was dropped.

Uttering Forged Check Case Reversed When Police Officer Improperly Identifies Defendant

Published on: September 19, 2012 | by Lasnetski Gihon Law

In an uttering a forged check case near Jacksonville, Florida, the defendant was charged with allegedly going into a bank and cashing a check that was forged. Once the bank realized the check was forged, they called the police. The police officer obtained the check and saw that it was endorsed in the name of the defendant. They also obtained the video footage from the camera positioned at that teller station. When the police officer saw the name on the check, he went to the driver’s license computer system and obtained a picture and signature for the suspect. The police officer determined that the signature on file with the DMV matched the signature on the forged check. He also concluded that the picture on file with the DMV matched the video footage of the suspect in the bank.

At the trial of the defendant for uttering a forged check, the defendant’s picture and signature on file with the DMV were shown to the jury along with the signature on the check and the bank video. The police officer was allowed to testify that, in his opinion, the signatures and the photo and video matched. The jury convicted the defendant of uttering a forged check.

The conviction was reversed because the police officer’s testimony was improper. The police officer was not at the bank when the check was cashed and had never seen the defendant before. He had no specific knowledge about the defendant. He also had no special training or expertise in handwriting analysis or video identification. In other words, his opinion was nothing special. The jury was equally capable of deciding if the defendant was in the video and it was his signature on the check. More importantly, that is the jury’s job (not a police officer who was not an eyewitness to the crime) in a criminal case. Because the police officer attempted to substitute his non-expert opinion for the jury’s and tried to assume the jury’s role, his testimony was improper and the conviction was reversed.

Facebook Friend Request Is Considered “Contact” in Domestic Violence Case

Published on: September 16, 2012 | by Lasnetski Gihon Law

In just about all domestic battery cases in the counties in and around Jacksonville, Florida, the judge will place a no contact order on the defendant when he/she is released on bond while the case is pending. Even when the domestic battery case is very weak and looks like it may eventually be dropped, in the early stages of the case the judge does not know much about the case and will put a no contact condition in a defendant’s bond out of an abundance of caution. This means that the defendant cannot have any contact with the victim until the case is resolved or the no contact order is specifically lifted by the judge. This can be difficult in many domestic violence cases where the defendant and alleged victim are married, share children and/or live together. Sometimes, the defendant will have contact with the alleged victim because the alleged victim initiates or requests the contact. However, if things go badly and the police become involved, the police officer likely will not care that the alleged victim initiated the contact and arrest the defendant for violating the no contact provision of the bond. The same is true where one person gets a restraining order against another that prohibits any kind of contact.

In a recent case south of Jacksonville, Florida, the defendant was arrested for domestic battery, and the judge ordered that he have no contact with the victim when he bonded out on the charge. The defendant never called the victim or saw the victim, but he did send a Facebook friend request to her. The victim contacted the state about the friend request, and the state filed a motion to revoke the defendant’s bond based on a violation of the no contact provision of the bond. The judge agreed, and the defendant’s bond was revoked and he had to stay in jail while his domestic battery case was pending.

When a judge orders no contact with the victim, whether part of a bond, probation or a restraining order, that typically means no direct or indirect contact of any kind. This will likely include any messages sent by phone or over the internet. A simple message like this one can result in an arrest and a lot of unnecessary time in jail.

Some Statistics on the Cost of Federal Prisoners

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

The United States Department of Justice (DOJ) recently issued a statement indicating what everyone else already knows- continuing to increase prison populations is getting extremely expensive and is unsustainable in the current economic environment (or any other realistic environment for that matter). The DOJ asked the United States Sentencing Commission to try to reduce the costs associated with federal prisons. The report did not, however, indicate how they expected the costs to be reduced.

The report did come with some sobering statistics about our federal prison population. The conclusion is that regardless of whatever our politicians want to tell us about how conservative they are and how they want to reduce the size of government, government keeps getting bigger and bigger and more and more money is wasted.

In 1980, there were only 19,000 prisoners with fewer than 25% there for drug crimes. By 2010, there were 190,000 federal prisoners with more than 50% being there for drug crimes. That is what happens when you wage a wasteful and self-defeating war on drugs. The other thing that happens is the government, i.e. the taxpayers, pays a lot of money to keep this ineffective system going. Expenditures on the state, local and federal levels increased from $32.6 billion in 1984 to $186.2 billion in 2006. We are not asking anyone to hold his/her breath, but with the country in debt and terrible shape economically, maybe someone somewhere will understand that spending so much money on ineffective policies is not the best use of taxpayer money.

A Successful Stand Your Ground Law Claim in Florida

Published on: September 11, 2012 | by Lasnetski Gihon Law

We have discussed the Florida Stand Your Ground law in Florida many times on this website. Basically, it allows someone to use force to protect himself or another from someone he/she reasonably believes is about to use force against him/her or another. It also allows a person charged with a violent crime to file a motion with the judge to have the case dismissed rather than go to a jury trial where a jury would normally evaluate a self defense claim.

A recent criminal case south of Jacksonville, Florida illustrates a successful Stand Your Ground law claim. In this case, the defendant was charged with aggravated battery after punching the victim. In this case, the victim and defendant were friends. The defendant and his witnesses, who were also friends of both parties, testified that the victim was known to be very aggressive and violent towards others, particularly when he was drinking. On the night of the incident, the friends went out to a club and the victim started drinking. At the end of the night, the defendant and the victim got into an argument, and the victim was yelling profanities at the defendant and walking towards him in an aggressive manner. The defendant backed up in response. When the defendant backed up close to a wall, he punched the victim and knocked him down. The witnesses testified that the victim was the aggressor and the defendant initially tried to avoid the conflict.

For some reason, on these facts, the state charged the defendant with a serious felony offense- aggravated battery. However, the criminal defense lawyer filed a motion to dismiss based on the Stand Your Ground law immunity. The judge agreed and threw the case out. Because the defendant used force in a situation where he reasonably believed the “victim” was about to use force against him, based on the victim’s actions, intoxication and history of violence, the defendant was entitled to stand his ground and have the charges dismissed.