Jacksonville Criminal Lawyer Blog

In Florida, the State Must Prove the Defendant was Driving or in Actual Physical Control of the Vehicle for a DUI Conviction

Published on: December 21, 2011 | by Lasnetski Gihon Law

One often overlooked element of a DUI (“driving under the influence of alcohol or drugs”) charge is the requirement that the state must prove beyond a reasonable doubt that the defendant was either driving the vehicle or in actual physical control of the vehicle while impaired from alcohol or drugs. Most of the time, this is not an issue as most DUI cases result from a traffic stop where the police officer observes the driver allegedly commit some traffic violation. However, in DUI cases involving accidents, this can be a significant issue that can result in DUI charges being dropped.

Unlike with traffic stops, accidents often occur without observation by a police officer, and possibly without any witnesses at all. In accidents with other drivers, sometimes the other driver does not actually see who was driving the vehicle that hit his/her vehicle. In single vehicle accidents, the driver is usually out of the vehicle by the time the police officer arrives. In these cases, it may be fairly obvious who was driving. However, assumptions are not sufficient to prove the defendant was driving beyond a reasonable doubt. Of course, once the police officer arrives, he/she will take a statement from the driver who will likely disclose the fact that he/she was in fact driving the vehicle. However, there is a good chance this admission by the driver is not admissible in a DUI trial.

In Florida, there is something called the accident report privilege. This privilege requires people involved in an accident to tell the police officer what happened in the accident. Because there is a requirement to talk to police, any statements a driver makes about the crash during the accident investigation cannot be used against him/her in a criminal case. Therefore, if the only evidence the police have that the DUI suspect was driving prior to the accident came from the driver’s own statements while the police officer was investigating the accident, that statement cannot be used against the DUI suspect and the DUI charges should be dismissed.

U. S. Government Set To Make Two New Drugs Illegal

Published on: December 18, 2011 | by Lasnetski Gihon Law

Despite the obvious and incomprehensibly expensive failure of the war on drugs, the United States government continues to expend time, resources and of course, money into making more and more drugs illegal. This time, the targets of the government are synthetic stimulants, or “bath salts”, and synthetic marijuana, or “fake pot.” The vote in the House of Representatives could happen any time, and the new bill making the two substances illegal is expected to pass without a problem. The new law would allow up to 20 years in prison for people who distribute small quantities of the bath salts or fake pot. In addition to the upcoming federal ban, many states, including Florida, have enacted similar laws making bath salts and fake pot illegal.

Legalizing Marijuana May Result in Fewer Traffic Deaths

Published on: December 15, 2011 | by Lasnetski Gihon Law

A new study found that traffic fatalities declined in states that legalized medical marijuana. The study looked at the relationship among marijuana laws, alcohol consumption and traffic-related deaths. The results were an almost 9% decline in traffic fatalities and a 5% decline in beer sales in states that legalized medical marijuana. These results are in direct contradiction to people who were concerned that legalizing medical marijuana would result in more drivers impaired from drugs and more traffic deaths.

The study looked at 13 states that legalized marijuana from 1990 – 2009. In those states, alcohol consumption was reduced for people in their 20’s, whose leading cause of death is traffic accidents. In 2009, alcohol-impaired driving contributed to about one-third of all fatal motor vehicle accidents. Reducing fatal accidents by 9% by legalizing medical marijuana would make a significant impact in the number of young people killed in motor vehicle crashes.

Defendant in Florida Found Not Guilty of Obtaining a Mortgage by Fraud and Theft Charges

Published on: December 12, 2011 | by Lasnetski Gihon Law

The law firm of Lasnetski Gihon Law in Jacksonville, Florida handles all variations of white collar crimes. One of the cases for which our clients often request representation is the crime of mortgage fraud. As a result of handling a large number of mortgage fraud criminal cases, we have noticed that the police often charge defendants for negligent, and often common, mistakes made during the mortgage application process that do not rise to the level of criminal conduct. Other times, the state may prosecute a mortgage fraud case when a person does make an incorrect statement, but the false statement has no effect on the approval for the mortgage loan.

For instance, in a recent case south of Jacksonville, Florida, the defendant obtained a mortgage to build a home on a vacant lot. He found a mortgage broker and completed the loan application. In each of the documents during the application process and at the closing, the defendant stated his gross monthly income as $9,800 per month. According to the state, the defendant’s gross monthly income shown on his tax returns was less than $9,800 per month. The state then jumped to the conclusion that the defendant gave false information on his mortgage application and therefore committed mortgage fraud by inflating his income to get a higher loan amount.

Under Florida law, a person can be convicted of obtaining a mortgage by false representation, aka mortgage fraud, where a person makes a false statement in order to obtain a mortgage and the victim relies upon the defendant’s false statement.

State Cannot Charge Someone With Burglary if They Have a Sufficient Interest in the Property

Published on: December 9, 2011 | by Lasnetski Gihon Law

In a recent criminal case south of Jacksonville, Florida, the defendant was charged with burglary of an occupied dwelling and other charges after the victim reported she was sleeping in an apartment and the defendant broke in and assaulted her. The victim had been staying at the apartment with a friend. The defendant had also been staying at the apartment as he and his girlfriend’s names were on the lease. The defendant and his girlfriend were in the process of moving out, but they still had the keys and the lease had not expired.

In order to convict a person of burglary, the state must prove the defendant does not own or have rightful possession of the property. However, where both the defendant and victim had a possessory interest in the property, the state must prove the victim’s possessory interest was greater than the defendant’s possessory interest. If their possessory interests are equal, the crime of burglary is not committed. Some of the factors a court will look at include: whose name(s) is on the lease, who is staying where, did either person already move out or abandon the property, who is paying the bills?

In this case, the defendant was in the process of moving out, but had not yet done so. He was on the lease and still paying some of the bills. He had a key to the property. The victim was just a guest at the property, her name was not on the lease and she was not paying the bills. As a result, the defendant had a greater possessory interest in the property and could not be convicted of burglary for entering the property to commit a crime.

Police in Florida Have A Lesser Standard To Stop and Investigate a Person for Possible DUI

Published on: December 6, 2011 | by Lasnetski Gihon Law

In Florida, in order for the police to stop a person and investigate him/her for a crime that is not a DUI, the police need “reasonable suspicion” that the person is involved in criminal activity. When the information comes from an ordinary citizen reporting the suspicious behavior to the police, the police must observe the suspect and confirm through their own observations conduct that is consistent with the tip and consistent with criminal activity. In other words, if a person calls police and says the guy in the blue shirt and black pants on the corner of Main Street and 1st Street is selling drugs, the police cannot stop him to investigate just because they see a guy wearing a blue shirt and black pants on that exact corner. The police also have to verify conduct consistent with criminal activity. For instance, this might include an observation that he was making quick, hand to hand transactions with people ion the street.

However, Florida courts state a lesser standard for stopping someone to investigate for a DUI crime. In a recent case about a DUI arrest near Jacksonville, Florida, the police stopped the driver based on tips from two citizens that the driver was drunk. Upon seeing the driver, they stopped him to investigate him for DUI without observing any evidence that the driver was in fact drunk. They ultimately arrested him for DUI. The court upheld the stop and stated that in DUI cases, the police only need a “founded suspicion” that the driver is intoxicated and impaired. The court acknowledged there is a somewhat relaxed standard for DUI stops because of the valid safety concerns with DUI cases (as opposed to other crimes that present valid safety concerns).

Breathalyzer Test Given Before Defendant Was Arrested Was Not Valid in Florida

Published on: December 3, 2011 | by Lasnetski Gihon Law

With DUI cases in Florida, a lot of people assume that the defendant is arrested only after he/she has submitted to a breathalyzer test that showed the defendant was drunk driving or impaired by alcohol. Otherwise, people understand that an arrest before a high breathalyzer reading is likely to be based on the completely subjective assumptions of the police officer who already assumes the driver is drunk when he/she is formulating his/her opinions.

But that is not how it works. Breathalyzer tests are administered only after the defendant is arrested based on the subjective conclusions of the police officer. With many DUI arrests, it is a case of, arrest first (based on assumptions) and get the evidence later.

In a recent DUI case south of Jacksonville, Florida, the police officer observed a driver swerve out of his lane. The police officer ran a check of the driver’s tag and learned that he had an outstanding warrant for driving with a suspended license. The police officer stopped the driver, arrested him for driving with a suspended license and took him to the police station. Only after the driver arrived at the police station did the officer indicate he noticed an odor of alcohol, slurred speech, bloodshot and glassy eyes and all the standard things that go into every DUI police report. The police officer asked the driver to take a breathalyzer or breath alcohol test. The driver refused. At that point, the police officer arrested the driver for DUI.

A Person Has Very Limited Privacy Rights in Pharmacy Records in Florida

Published on: November 30, 2011 | by Lasnetski Gihon Law

As pain pill or pill mill cases become much more prevalent in Florida, one issue that we have looked at quite often is a person’s privacy rights in his/her pharmacy and medical records. In Florida, a person has clear privacy rights in his/her medical records. It requires a court order for the police or another party to see a person’s medical records, and there must be a legitimate legal basis to do so. However, pharmacy records are much different. There is much less protection for pharmacy records relating to prescription narcotics. In some cases, a police officer can go to a pharmacy and request a person’s prescription records without a search warrant or court order and without the patient ever being notified of the police search. The police officer merely has to tell the pharmacy that he/she is working on a criminal case, and the pharmacy records of controlled substance prescriptions become an open book.

In many cases, this issue comes up in relation to doctor shopping charges- where a person is suspected of going to different doctors in a short time period to get similar pain pill prescriptions without informing the doctors that he/she went to the other doctor for the same purpose. The police may then go to the pharmacies where the person is filling the prescriptions for evidence of the doctor shopping crime.

Florida law allows the police to just walk into the pharmacy and obtain records of prescriptions for controlled substances when the police officer says he/she is working on a criminal case, or in other words, just about any time a police officer feels it is remotely relevant to a criminal investigation. The very limited privacy protection prevents the police officer from obtaining pharmacy records in this way of prescriptions for drugs that are not controlled substances.

In Florida, What Does the State Have to Prove for Aggravated Assault on a Police Officer?

Published on: November 27, 2011 | by Lasnetski Gihon Law

In Florida, an assault is an intentional verbal or physical threat to commit violence upon another person in such a way that it is apparent that the person making the threat has the ability to carry it out and the victim reasonably fears that the violence is imminent. An assault is a misdemeanor crime in Florida. However, it can become an aggravated assault, a serious felony, if a deadly weapon is used or the assault is made with the intent to commit a felony. When the victim is a police officer, or any number of other public employees, the crime and potential penalties become more serious.

An aggravated assault against a law enforcement officer charge often comes up in the police chase context. One question that arises is whether the defendant intended to threaten the police officer or was just trying to get away. If the former, then an aggravated assault on a law enforcement officer charge may be valid. If the defendant was just trying to escape and did not intend to threaten the police officer, the aggravated assault on a police officer charge may still be a viable charge.

In order for the state to prove an aggravated assault on a police officer charge, or any assault for that matter, the state does not have to prove that the defendant intended to commit violence against the victim. The state only has to prove that the defendant intentionally made the threat, either by words or actions, that was substantially certain to put the victim in fear of violence. Therefore, in the police chase context where the police cars are chasing the defendant or have him blocked off, if a defendant accelerates a car in the direction of a police officer, with no intent to strike the police officer but just to get away, the defendant may be charged with aggravated assault on a police officer if the police officer was in reasonable fear of being hit by the defendant’s car.

Federal Prisoners Convicted of Crack Cocaine Charges Are Being Released

Published on: November 24, 2011 | by Lasnetski Gihon Law

As we have discussed several times in the past, the old laws dealing with prison sentences were very different for crack cocaine crimes as opposed to powder cocaine crimes. Basically, a person charged with an amount of crack cocaine often faced a much more severe prison sentence than a different person charged with the same amount of powder cocaine. After years of incredibly disparate sentences for similar drug crimes, quite often detrimentally affecting African-Americans, Congress finally acted to minimize the difference with the Fair Sentencing Act of 2010. The difference was not eliminated altogether. However, because the differences were so tremendous before, there was room to make significant changes. The ratio of prison sentences for crack cocaine crimes versus powder cocaine crimes went from 100 – 1 to 18 – 1. There is still a pretty big difference, but it is much better than before.

The new rules are now in effect for federal crack cocaine and powder cocaine crimes. Anyone who is charged with a crack cocaine crime going forward will benefit from the less stringent sentencing rules. Due to a United States Sentencing Commission decision, the new rules are also being applied retroactively, which means people who were arrested and convicted for crack cocaine crimes in the past and sentenced to prison under the old rules can challenge that sentence and request a modified sentence more in line with the new rules. Many people have recently been successful with that challenge.

Statistics show that approximately 1,800 people in federal prisons on crack cocaine charges are eligible for immediate release under the new sentencing rules. Additionally, about 12,000 federal inmates convicted of crack cocaine charges are eligible for reduced prison sentences.