Jacksonville Criminal Lawyer Blog

Judge Dismisses Case After State Takes Three Years to File Charges

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

In this drug case near Jacksonville, Florida, the defendant was arrested for sale of marijuana in 2007. However, the state did not file the marijuana charges until 2010. The criminal defense lawyer for the defendant filed a motion to dismiss the charges claiming that the three year delay was a due process violation and prevented the defendant from adequately defending the case.

The state had an opportunity to present witnesses to explain the legitimacy of the three year delay. One of the officers said he thought the federal government might take the case so he did not discuss the case with the state authorities to have them pursue it. It is normal practice for the state to hold off in prosecuting a case if the federal government is going to pursue it. However, nothing prevents the state from filing charges, and three years is a long time for the federal government to make a decision. In this case, the federal government apparently decided not to pursue the case a year and a half after the arrest. The state officials did not provide a good excuse as to why they waited an additional year and a half to file the drug charges after the federal government decided not to file their charges.

The two primary issues when considering a motion to dismiss based on a delay in filing charges after the arrest are the reason for the delay and whether the delay compromises the defendant’s ability to defend the case. The judge in this case dismissed the charges because the state did not provide a good excuse for the three year delay and the defendant presented a witness whose benefit to the defendant was diminished by the fact that her memory of the incident had faded.

Paramedic Takes Blood From DUI Suspect And Gives it to Police

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

In Florida, implied consent means that when a person accepts the privilege of driving on the roads in Florida by obtaining a driver’s license, that person consents to take a breathalyzer test if a police officer has probable cause to arrest the person for driving under the influence of alcohol (DUI). After a DUI arrest, the police officer will still ask the DUI suspect if he/she will submit to a breathalyzer test, and the DUI suspect can still refuse. However, because of the implied consent law, a refusal could mean enhanced penalties, such as a longer driver’s license suspension.

While driving in Florida does, at least in theory, subject a person to a breathalyzer test, it does not give the police the right to automatically request a blood alcohol test. In order for a police officer to get a blood alcohol test in a regular DUI case, the suspect must consent or the police officer must get a court order for the blood. In a recent DUI case south of Jacksonville, the paramedics were called after someone saw the defendant passed out in his vehicle. The defendant told the paramedic that he was a diabetic, and the paramedic took the defendant’s blood to test his blood sugar level. A police officer arrived and suspected that the defendant was drunk. The paramedic gave the defendant’s blood sample to the police officer who had it tested for alcohol content.

The defendant was arrested for DUI. His criminal defense lawyer filed a motion to suppress the evidence of the blood alcohol test. The court ultimately threw out the evidence of the blood alcohol test because the police officer did not have the defendant’s consent or a court order to get the blood sample, whether it came from the defendant or the paramedic. As a result, the blood sample, and the subsequent blood alcohol test, was illegally obtained and could not be used against the defendant in a DUI case.

Defendant Impersonating Criminal Defense Lawyer Convicted in Federal Court

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

A defendant from California who was accused of practicing law as a criminal defense lawyer without a license was charged with a variety of federal crimes, including mail fraud and wire fraud, and ultimately convicted and sentenced to nine and a half years in federal prison. The defendant never went to law school and never took any bar exams. However, he managed to get admitted to several federal courts by filing false admission applications to those federal courts, and he handled many criminal cases as a criminal defense lawyer in several states.

In court, defendant’s real criminal defense lawyer argued that the federal government did not establish all of the necessary elements of wire fraud and mail fraud. In order to commit the federal crime of wire fraud, there must be some aspect of the crime that is transmitted by wire to a different state for the purpose iof executing a scheme to defraud another. In order to commit mail fraud, a defendant must use the mail system to further the scheme to defraud.

For the wire fraud charge, the government focused on the defendant’s website which he used to promote his fraudulent criminal law practice. The government called a witness from the defendant’s website hosting and domain name registration company. That witness testified that the server, which processes and stores data for the website, was located out of state in Virginia and anyone in any state could and did view the website. The court went into a lengthy and technical discussion about how internet content crosses state lines when people from other states view it. At the end of the discussion, the court ruled that posting a website that was hosted in a different state and viewed by people in different states was sufficient to satisfy the interstate requirement for a wire fraud conviction.

Defense Lawyer Could Use Alleged Victim’s Facebook Messages Against Her in Sexual Battery Trial

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

Social networking websites like MySpace and Facebook have had major impacts in criminal cases. People will post messages on their Facebook pages, or post messages to another’s Facebook page, that they would not want coming out in a criminal trial. However, if the message is relevant to an issue and the authenticity of the message can be established, the message can be brought out for the judge and jury to see. This can have a very significant impact on a defendant, good or bad, or any other witness in a case.

In a recent sexual battery case south of Jacksonville, Florida, a defendant was accused of raping and beating his ex-girlfriend. Several months after the arrest, the alleged victim sent a series of insulting messages to the defendant’s new girlfriend through Facebook. At the trial, the criminal defense lawyer sought to introduce the evidence of the Facebook messages so he could cross-examine the ex-girlfriend with them. The state objected saying they were prejudicial and irrelevant. However, the court ultimately ruled that the derogatory messages sent by the alleged victim were admissible for cross-examination.

At any criminal trial, a criminal defense attorney has a right to fully cross-examine the state’s witnesses, and that includes the right to explore a witness’s biases and improper motives to testify against the defendant. In this case, the Facebook messages supported the defense argument that the alleged victim was jealous of the defendant and had a motive to lie as a result. Therefore, the criminal defense lawyer had a right to bring them into the trial and use them to question the alleged victim and attack her credibility.

The Government Uses Your Cell Phone to Track You Without a Warrant

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

The government has been using people’s cell phones to track their current locations, and past locations, for some time without a search warrant. When a person has a cell phone, it sends a ping to the nearest cell phone tower. Cell phones with GPS devices, which include most of them these days, send the electronic ping signals constantly. Law enforcement officials can track this signal to get an approximate location on a person. They can also obtain this data to determine if a person was in a particular location at a particular time. The government has been using this cell phone data to track and learn people’s locations for a while, and they have been doing so without first obtaining a search warrant.

A recent study by the ACLU found that many police departments were tracking people through their cell phones with little or no court oversight. Very few of the police agencies that were tracking cell phone signals had applied to a court for a search warrant in advance. Currently there is a bill moving through Congress that would end this practice and require law enforcement agencies to get a search warrant from a judge before they could access a person’s location through his/her cell phone signals. Another bill moving through Congress would require a search warrant before a police officer could track a person’s current location, but not a person’s prior location. The Obama administration is against the search warrant limitation for tracking one’s cell phone. They argue that a person does not have an expectation of privacy in his/her cell phone signals that are transmitted through a wireless carrier and it would be too burdensome on government officials to get a search warrant every time prior to tracking one’s cell phone.

Police Officer in Florida Cannot Arrest DUI Suspect Without Observing The Actual DUI Take Place

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

There is a difference in Florida between felonies and misdemeanors when it comes to a police officer’s right to arrest a suspect without having actually observed the crime take place. There are some exceptions, but the general rule is that a police officer cannot arrest a person for committing a misdemeanor crime unless it was committed in a police officer’s presence. In most DUI cases, the police officer observes the defendant driving in a manner that indicates the driver is impaired, the police officer makes a traffic stop and then initiates a DUI investigation. In those cases, the DUI crime is clearly committed in the police officer’s presence. However, if a police officer does not observe the DUI crime and a police officer does not observe the suspect driving or in actual physical control of the vehicle, the police officer cannot arrest the suspect for DUI. (This does not apply to accident cases.)

In a recent case near Jacksonville, Florida, the defendant parked a car outside of a residence and a witness saw the defendant get out of the car and stagger around until she got back into her car. The defendant started to drive away and nearly hit a parked car. The witness convinced the defendant to stop the car and took the keys. The witness then called police and told them he thought the defendant was drunk. When the police officer arrived, he saw the defendant sitting on the curb and the witness had her keys. The police officer got a statement from the witness about the defendant’s driving and actions, investigated the defendant for DUI, administered field sobriety tests to the defendant and arrested her. She blew over the legal limit on the breathalyzer test.

The criminal defense lawyer filed a motion to suppress the evidence obtained by the police officer after the DUI arrest because a police officer cannot normally arrest a person for a misdemeanor without observing the crime being committed. The court agreed, and the DUI case was ultimately thrown out. While there was a witness who did see the defendant apparently commit a DUI offense, the police officer did not see it. When the police officer arrived, the defendant was outside the car and did not have the keys. Driving the vehicle or being in actual physical control of the vehicle is an element of a DUI offense. Since no police officer ever witnessed the driver satisfy this element, the police officer was not authorized to arrest the defendant for DUI.

In DUI Case, Police Officer Cannot Request Urine Test Just Because He Is Dissatisfied With Breath Test

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

In a recent driving under the influence (DUI) case near Jacksonville, Florida, the defendant was involved in a single car accident but was not hurt. The police officer arrived at the scene and observed empty beer cans in the defendant’s vehicle. The police officer then made all of the routine observations police officers normally make in DUI cases- glassy and bloodshot eyes, strong odor of alcohol and slurred speech. The defendant then submitted to the field sobriety exercises, and the police officer determined that he failed and there was probable cause to arrest the defendant for DUI.

At the police station, the defendant submitted to a breathalyzer test. The breathalyzer results came back well under the legal limit of 0.08. The police officer, who apparently had already made up his mind that the defendant was drunk, was not satisfied with these results. He then asked the defendant to submit to a urine test to test for drugs in his system. However, there was no evidence that the defendant had used any drugs- no statements from the defendant, no drugs found at the scene and no drug paraphernalia. The police officer was just relying on his assumption that the defendant was somehow impaired.

The criminal defense lawyer ultimately got the DUI case dropped. The Florida implied consent law allows the police officer to obtain a breathalyzer test if there is evidence that the defendant may be impaired from alcohol. Of course the evidence in this case was the same redundant observations the police check on the DUI arrest report in just about every DUI case. However, that is usually enough for the court to find probable cause to move forward with the breathalyzer test. But once the the defendant produced a low reading on the breathalyzer test, there was no legal basis to request a urine test or any other test to see if the defendant had used any drugs. There was no evidence of drug use to allow the police officer to move forward with a drug test.

Police in Florida Can Stop a Driver for DUI for Improperly Tinted Windows

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

As criminal defense lawyers in the Jacksonville, Florida area, it is not uncommon for us to see cases that were initiated by police after a traffic stop because the vehicle’s windows were too darkly tinted. The police can stop a driver based on a reasonable suspicion that a traffic violation has occurred. A traffic violation could be the more traditional infraction such as speeding, running a red light or improper lane change. It could also be for illegally tinted windows. In order for the stop to be valid, the police officer must have a reasonable suspicion that the windows are too tinted. The police officer does not have to prove the window tint is illegal with the appropriate device. Once the police officer stops the driver for illegally tinted windows, the police officer may then conduct a criminal investigation into a possible DUI or other crime if there is evidence to indicate some other crime is occurring.

In a recent DUI case outside of Jacksonville, Florida, the police officer stopped a driver because he could not see the driver through the tinted windows. When he approached the driver, the police officer indicated he smelled an odor of alcohol coming from the driver. As a result of this evidence alone, the police officer detained the driver. He ultimately arrested the driver for driving under the influence of alcohol.

The DUI case was later thrown out. A police officer must have reasonable suspicion that a crime or traffic violation is occurring to stop the vehicle, and the police officer must have reasonable suspicion that a crime is occurring to detain the suspect. The police officer did have reasonable suspicion of the traffic violation due to the overly tinted windows. However, the court said that an odor of alcohol, by itself, is not sufficient reasonable suspicion of a DUI to detain someone. The police officer would have to have additional evidence of a DUI such as a reckless driving pattern, swaying, slurred speech or other evidence that the driver was intoxicated from alcohol or drugs.

Leaving the Scene of an Accident in Florida

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

In Florida, if a person is involved in a traffic accident that results in property damage, an injury to someone or a death, that person must remain at the scene and provide the proper identification and insurance information. Failure to do so is a crime, referred to as leaving the scene of a crash or hit and run. If the accident merely results in property damage to the other vehicle, leaving the scene is a misdemeanor crime. However, if another person is injured as a result of the crash, leaving the scene of the accident is a third degree felony punishable by up to five years in prison. If someone dies as a result of the accident, leaving the scene is a first degree felony punishable by up to thirty years in prison.

What constitutes a crash after which the driver must remain at the scene is usually straightforward- any crash with any property damage, injury or death. But what happens when a person is injured or dies without an actual crash?

In a recent hit and run case near Jacksonville, Florida, the defendant was driving when somehow his passenger got separated from the vehicle, struck the road and died. The defendant kept on driving. The defendant was ultimately arrested and charged with leaving the scene of a crash involving death. The criminal defense lawyer filed a motion to dismiss arguing that there was no “crash” under the criminal statute because there was no evidence that the car crashed into the victim. The terms “involved” and “crash” are not defined in the criminal statute, and the criminal defense attorney made the clever argument that a person exiting a vehicle without making contact with it is not being “involved” in a “crash.”

Another Stand Your Ground Law Case in Florida

Published on: May 31, 2012 | by Lasnetski Gihon Law

The Florida Stand Your Ground Law has received a lot of attention over the last few months. When a criminal defense attorney tries to utilize the Florida Stand Your Ground law, the criminal defense attorney is alleging the defendant is immune from prosecution under the law. In other words, the criminal defense lawyer is arguing that the state cannot prosecute the defendant because the Florida Stand Your Ground law says the defendant’s conduct was justified under the law and the case must be dismissed.

In a recent case south of Jacksonville, Florida, the defendant was arrested and charged with aggravated battery with a deadly weapon after he shot the victim. Apparently, the defendant was a security guard at a club. Some guys left the club with beers, and the defendant told them they could not leave the club with beers. The guys concealed the beers and started drinking in the parking lot. The defendant confronted the guys about drinking in the parking lot. At some point, the victim became hostile, and the other guys started to surround the defendant. The victim threw a full beer bottle at the defendant and missed. He then grabbed a second beer bottle to throw at the defendant. At this point, the defendant shot the victim several times. The defendant called 911 and stayed at the scene until the police arrived.

The state charged the defendant with aggravated battery with a deadly weapon based on these facts. The criminal defense lawyer moved to dismiss the case arguing that the defendant was justified in using deadly force as he was reasonably in fear of death or serious bodily injury or being the victim of a forcible felony. The court agreed with the defendant and dismissed the case. The court found that the defendant was reasonably in fear of being hit by a full beer bottle, which could be a forcible felony. The defendant was also reasonably in fear of serious bodily injury or worse. If the victim hit him with the beer bottle and knocked him down, the victim and his friends could have taken his gun or otherwise caused him serious injury. As a result, the court found that the Florida Stand Your Ground law applied and dismissed the case.