Jacksonville Criminal Lawyer Blog

Police in Jacksonville Make Quick But Critical Decisions in Domestic Battery Cases

Published on: August 9, 2012 | by Lasnetski Gihon Law

As criminal defense lawyers in the Jacksonville, Florida area, we see a lot of domestic battery cases. Although they are usually misdemeanors, they can be very serious charges that stay on a person’s criminal record forever. Domestic battery cases are often considered the most serious misdemeanor cases by the prosecutors so they may get more attention than most other misdemeanor cases. The Florida legislature has paid special attention to them by creating a law that says if a person pleads guilty or no contest to a domestic battery charge in Florida, or loses at trial, the record of the domestic battery charge will stay on that person’s criminal record forever, even if the judge withheld adjudication in the case. In other words, a person cannot seal or expunge a domestic battery case unless it is completely dropped or the defendant gets a not guilty verdict at trial.

For such a serious charge (which can carry a maximum penalty of 12 months in jail), it is disturbing to see how quickly and often arbitrarily the decision is made to arrest a person for domestic battery. These cases often start when someone makes a call to report some type of domestic disturbance. The police officer usually does not have a lot of specific information about what happened and who did what. When the police police officer arrives, he/she makes observations after the fact and tries to determine what happened based on the statements of two people who may be impaired, upset, excited, biased or otherwise unreliable. Since these incidents usually occur in the home without witnesses, the police officer often does not have an objective third party to help him/her decide who was at fault, if anyone. What usually results is a quick decision about who the bad guy is and who the good guy is based on limited and unreliable evidence. Once the arrest is made, the state does not typically go back. They do what they think is necessary to get a conviction and validate the arrest, no matter how questionable the arrest was.

If you have been arrested for domestic battery in the Jacksonville, Florida area and want to protect your rights, feel free to contact us for a free consultation.

Suspect Arrested for DUI After Police See Him Remove Motorcycle From a Ditch

Published on: July 23, 2012 | by Lasnetski Gihon Law

In Florida, a person can be arrested for DUI if he/she drives a motor vehicle while impaired from alcohol or drugs. A person can also be arrested for DUI if he/she is not driving if the person is in actual physical control of the vehicle. This has been interpreted to mean being in the driver’s seat with the keys in the ignition or with the keys within arm’s reach. Another issue that arises is whether the vehicle can be operated. If a person is in the driver’s seat of a vehicle with the keys but the engine has been removed, obviously the vehicle cannot be operated and a DUI arrest would not stand. However, if a person is in a vehicle with the keys and the vehicle is out of gas, Florida courts have upheld DUI arrests because a person could easily go and get some gas and the vehicle would be readily operable.

In a recent DUI case near Jacksonville, Florida, a defendant was arrested for DUI and testified that he missed a turn and tried to make a u-turn on his motorcycle. While doing so, he drove his motorcycle into a ditch filled with water. His motorcycle shut off, and he tried to remove it from the ditch without success. He walked to a nearby bar to get a friend to help him retrieve the motorcycle. He also testified that while waiting for the friend, he had a few drinks at the bar. After the drinks, the defendant and his friend went to the ditch and were pulling the motorcycle out when a police officer arrived. The police officer decided that the defendant was impaired from alcohol and arrested the defendant for DUI.

The criminal defense lawyer ultimately had the DUI case thrown out. The state could not prove defendant was ever driving or in actual physical control of the motorcycle. Arguably a person could be in actual physical control of a motorcycle if he is pulling it out of a ditch and he has the keys. However, in this case, the motorcycle was inoperable because it was driven into a ditch filled with water. As a result, the motorcycle could not be started and could not be operated.

In Florida a Fourth DUI Conviction Means a Permanent License Suspension

Published on: July 20, 2012 | by Lasnetski Gihon Law

In Florida, the DUI laws have become more and more severe over the years. The license suspension penalties that go with DUI convictions have also become more severe over the years. If a person gets a fourth DUI conviction, his/her driving privileges will be permanently suspended. This seems to be a fairly straightforward rule- four DUI convictions equals no more driving, ever. However, there can be questions about convictions of similar drinking and driving laws from other states. Not every state has the same DUI laws. In another state, the drunk driving laws may be called something else and they may have different elements and requirements. Alcohol-related conduict may be legal in one state and a criminal violation in another.

In Florida, the law says that a person with four convictions for DUI, or a similar alcohol-related traffic offense in another state, will result in a permanent revocation of driving privileges. As a result, someone could have a conviction from another state of an alcohol related offense that would not rise to the level of a DUI in Florida, but if a Florida court considers it similar enough to Florida’s DUI laws, that will count as a conviction that could lead to a permanent license suspension. .

Sleeping Behind the Wheel is Not Evidence of DUI in Florida

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

We have handled a lot of DUI cases in Florida that start when a police officer sees a person asleep in the driver’s seat of a vehicle. This scenario often results in a DUi arrest, although the police often do not follow the rules in making the DUI arrest. First, it should be noted that in Florida, a person can be arrested for DUI even though he/she is not driving. A person commits a DUI in Florida if he/she is driving or if he/she is in actual physical control of the vehicle. Actual physical control of a vehicle under the Florida DUI laws has been interpreted to mean being in the driver’s seat with the keys in the ignition (whether the vehicle is running or not) or being in the driver’s seat with the keys within arm’s reach.

However, when a police officer sees a person sleeping in his/her vehicle, that police officer is limited in how he/she can investigate the driver. The police officer may assume a person who is asleep in the driver’s seat while the car is running is drunk, but there are other explanations for this scenario. The person could be tired, sick or just taking a break with the air conditioning and/or radio on. There is nothing illegal about sleeping in a car off of the road while the vehicle is on. A police officer cannot detain a person based on an assumption that a person is committing a crime. Because sleeping in a vehicle that is running is not a crime and does not necessarily mean the person is drunk, a police officer cannot approach the person and detain him/her without specific evidence that a crime is being committed.

In a recent DUI case near Jacksonville, Florida, a police officer saw the defendant asleep in the driver’s seat of a running vehicle that was parked in a parking spot. The police officer assumed he was drunk but had no specific evidence to support that assumption. The police officer approached the defendant, parked directly behind his vehicle, shined a spotlight on the defendant, and then told him to roll his window down. After the defendant compiled, the police officer said he smelled an odor of alcohol coming from the defendant, saw bloodshot and glassy eyes, heard slurred speech and all of the usual observations police officers make in every DUI case. The police officer then arrested the defendant for DUI.

Adverse Evidence of Breathalyzer Refusal Does Not Apply for Bicycle DUI

Published on: July 15, 2012 | by Lasnetski Gihon Law

First, I suppose we should note that in Florida, a person can be arrested and convicted of driving under the influence (DUI) for riding a bicycle while impaired from alcohol or drugs. It would certainly be bad luck to get a criminal conviction for DUI in Florida for drunk driving of a bicycle, but it could potentially happen.

If a person is arrested for DUI while on a bicycle, the DUI trial would present different issues from the regular motor vehicle DUI case. In a DUI case involving a motor vehicle, the police officer is going to ask the driver to submit to a breathalyzer test to try and determine the driver’s blood alcohol content. The implied consent law in Florida provides that when a person agrees to accept the privileges of driving, he/she also agrees to submit to a breathalyzer test after a valid arrest for DUI while driving a motor vehicle. This is what implied consent means. Now, a person can still refuse to blow in the breathalyzer and cannot be forced to submit to a breathalyzer test, however there are certain penalties that come with the breathalyzer refusal because of the implied consent law. One penalty is an increased license suspension if the police officers complied with the DUI laws.

Another penalty is that during the DUI trial, the state can try to use the refusal against the defendant. The state will present evidence that the driver was asked to submit to the breathalyzer test and refused to do so. The state will be permitted to argue that the defendant refused the breathalyzer test because he/she was drunk and knew he/she would fail it. Of course, there are a number of reasons why a person would refuse to submit to a breath test and the criminal defense lawyer has a right to argue them, but the state can make their argument as well.

Florida Police Arrest 103 People in Alleged Prescription Drug Trafficking Ring

Published on: July 12, 2012 | by Lasnetski Gihon Law

Police in Flagler County, St. Johns County and Putnam County, Florida arrested 103 people who were allegedly involved in illegally trafficking prescription pills, according to an article on News4Jax.com. As we have discussed several times on our website, over the last few years police throughout Florida and Georgia have been focusing on prescription pill cases. In particular, they have been going after pain clinics, or pill mills as they call them, and arresting everyone associated with pain clinics they allege are involved with distributing pain pills in large quantities to anyone without following the laws and proper medical procedures. Police have been arresting people at pain clinics from the patients to the staff members to the doctors to the people who own the pain clinics.

In this case, doctors and pain clinic owners were included in the arrests. According to the Florida statistics, there have been more than 2,800 arrests related to pain clinics and prescription drugs since march of 2011. Police have also closed more than 250 pain clinics in Florida during that time period.

If you have any questions about operating a pain management medical facility or have been contacted or arrested by police related to such a facility, it is very important that you know and protect your rights. Feel free to contact us for a free consultation.

Lesser Crack Cocaine Sentences Apply to Federal Defendants in Pipeline Crack Cocaine Cases

Published on: July 9, 2012 | by Lasnetski Gihon Law

As we have discussed on our criminal defense lawyer blog in the past, the federal sentencing guidelines, which play a significant role in the ultimate sentence a federal criminal defendant will receive, used to be much more severe for crack cocaine cases as opposed to powder cocaine cases. They still are, however the wide gap has been narrowed to some degree. A couple of years ago, the rules for crack cocaine and powder cocaine sentencing in federal court changed to make sentences somewhat more comparable for powder and crack cocaine cases involving similar amounts (basically, the sentencing disparity went from 100-1 to 18-1).

The new rules clearly apply for the benefit of anyone with a new crack cocaine case. One question was whether the lesser crack cocaine guidelines apply to people who pled guilty or were convicted at trial prior to the new rules but were scheduled to be sentenced after the new rules went into effect in 2010. The United States Supreme Court recently decided that the lesser crack cocaine sentencing rules do apply to people in the pipeline at the time, i.e. people who were convicted prior to the rules going into effect but sentenced after the rules went into effect. As a result, there are thousands of defendants who were convicted of crack cocaine crimes who could have their sentences reduced under the new crack cocaine sentencing rules.

Florida Police Arrest Suspect and Search Cell Phone Without a Search Warrant

Published on: July 6, 2012 | by Lasnetski Gihon Law

In Florida, a common basis for a search of a suspect is called the search incident to an arrest. This allows a police officer to search a person who has been lawfully arrested. The main idea is that the person is being taken into custody by the police, and the police officer has a right to search that person for weapons for the officer’s safety. The police also search the person who has been arrested to inventory his/her belongings so they can be identified and returned to the suspect at a later date. In the past, this kind of search did not include the contents of a person’s cell phone which can have an abundance of information such as phone numbers, emails, photographs, websites visited and text messages.

In a recent case near Jacksonville, Florida the defendant was arrested for possession of cocaine with intent to sell and possession of marijuana. When he was arrested, the police searched him as they normally do and found his cell phone. The police officer went on to search his cell phone without first getting a search warrant and saw an incriminating text message that indicated he planned on selling the cocaine. In upholding the search of the cell phone without a search warrant, the court cited a United States Supreme Court decision which said that police could search “containers” found on a person being arrested without “additional justification”, i.e. without a search warrant or even some evidence that the “container” actually contained evidence of the crime. The Florida court found that the cell phone was a container (just like a box or suitcase or other item that can contain documents and files) so it could be searched based solely on the fact that the defendant was in possession of it at the time he was arrested.

Jacksonville Police Are Looking to Make DUI Arrests This July 4th Holiday

Published on: July 3, 2012 | by Lasnetski Gihon Law

This time of year, around the July 4th holiday, Jacksonville Sheriff’s Office, Florida Highway Patrol and other local law enforcement agencies are out in force looking to stop people for traffic violations and make DUI arrests. The local Jacksonville area police focus on DUI arrests during the July 4th holiday perhaps more than any other time of the year.

Keep in mind that a police officer’s DUI investigation is likely the most subjective process leading to an arrest of any crime. That becomes more of a problem for potential DUI suspects during a time when the police are making a conscious effort to make more arrests. When a police officer has a preconceived belief that a person may be impaired from drugs or alcohol, this could certainly sway his/her opinion as to whether a DUI arrest should be made after conducting the very subjective field sobriety exercises and interpreting the police officer’s very subjective observations about a person’s condition and demeanor. While most people think a police officer’s DUI investigation should be recorded on video in this day and age, a lot of DUI investigations are not recorded by the police. Police officers who do not have video cameras in their vehicles can always call for another police officer who does have a video camera to record the DUI investigation, but they often do not do that. As a result, whether a person is convicted of DUI or found not guilty may depend on the defendant’s word versus the police officer’s word.

Because the police officer’s DUI investigation is so subjective, it is very important for a person to know his/her rights when he/she is pulled over by police and suspected of DUI. First, the driver does not have to answer any questions as to where he/she has been or what he/she has been doing prior to the stop. The driver does not have to take the subjective field sobriety tests that can be difficult for anyone to pass under those circumstances. Basically, when a police officer pulls a person over and initiates a DUI investigation, the driver does not have to answer any questions or perform any field sobriety tests that could incriminate that driver. It is always safe to politely ask to speak to a lawyer.

Too Many People in a Vehicle is Not Necessarily a Legal basis for a DUI Stop

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

In Florida, the sequence of a DUI arrest usually goes as follows: a police officer observes a person commit a traffic violation, the police officer stops the driver, the police officer allegedly observes signs that the driver is impaired by alcohol or drugs, the police officer starts a DUI investigation including a field sobriety test if the driver agrees to take it and then a DUI arrest. However, none of the steps following the stop are valid to establish a DUI conviction if the initial stop is illegal.

In a recent DUI case near Jacksonville, Florida, the defendant was driving a vehicle with two seats- one for the driver and one for a passenger- but he had two people in the passenger seat. The police officer saw this and also allegedly saw the driver drive over the double yellow line although no vehicles in the opposite lane were around and at risk. Based on those two reasons, the police officer stopped the driver and ultimately conducted a DUI investigation.

The criminal defense lawyer filed a motion to suppress all of the evidence of the DUI obtained after the initial stop arguing that the stop was invalid. The court agreed that the police officer could not legally stop the defendant because he had too many people in his car. Having too many people in your car, by itself, is not a legal basis to initiate a traffic stop. The police officer would have to testify that the extra person(s) obstructed the driver’s view or otherwise interfered with the driver. There was no such testimony in this case. However, crossing the double lines, even if no other cars are around and no one was endangered, is a traffic violation and was a sufficient basis to initiate the traffic stop. When a police officer gives multiple reasons for a traffic stop and at least one of them is valid, the evidence will not be suppressed based on the initial traffic stop.