Jacksonville Criminal Lawyer Blog

There is a Very Limited Exception to the Sex Offender Registration Requirement in Florida

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

In Florida, if a person is convicted of certain sex crimes involving minors, that person is required by law to become a sex offender which means that he/she must comply with the sex offender registration requirements and other rules for the rest of his/her life. These are very burdensome and distressing requirements that typically do not go away. In a criminal case involving sexual conduct with a minor, everything is negotiable, and it is possible to reach a resolution that eliminates the sex offender label with an adjusted criminal charge. However, this stipulation is often a deal-breaker with prosecutors in all but the most minor cases.

We get a lot of calls from people who have been sentenced as sex offenders and want to try and remove the sex offender status. This is unlikely to happen. However, the Florida legislature did add an exception to the sex offender requirement for the applicable consensual sex crimes involving a minor. Under the law, a person may be eligible to have the sex offender or sexual predator status removed if the person has just one qualifying sex crime (whether he/she was convicted or adjudication of guilt was withheld), the sex offender or predator registration requirement is necessary solely based on that one case, the person was not more than four years older than the victim of the crime and the victim was between the ages of 14 and 17 at the time of the crime.

If the person meets these requirements, he/she can file a motion with the court to remove the requirement that the person register as a sex offender or sexual predator. At that point, it is up to the judge to determine if the requirement will actually be removed. But keep in mind that the court will likely strictly interpret the four year age difference requirement. In a recent case near Jacksonville, Florida, a person met all of the requirements for the sex offender exception above except he was four years and three months older than the victim. Because he was more than four years older than the victim, the court denied his motion to remove the sex offender registration requirement.

Even a Misdemeanor Criminal Charge Can Affect Your Concealed Weapons Permit in Florida

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

In Florida, the Department of Agriculture and Consumer Services regulates licenses to carry concealed weapons or firearms. That department issues concealed weapons or firearms permits, and they also revoke them for various reasons. If a person has been convicted of a felony in Florida or any other state, that person is not allowed to own or possess a firearm. However, if a person has been found guilty or pled guilty or no contest to a lesser charge, the department may still suspend that person’s license to carry a concealed firearm or weapon.

Florida law provides that certain people who qualify may obtain a license to carry a concealed weapon or firearm. The licenses must be carried with the firearm or weapon, and they are good for seven years.

If a person has been found guilty or entered a plea or guilty or no contest to a misdemeanor involving violence, the department will deny an application for a concealed weapons or firearm permit for a period of three years from the time the criminal sentence has been successfully completed. If a person has an existing concealed firearms or weapons permit, the department will suspend the concealed firearms/weapons permit if a person gets arrested and sentenced for a misdemeanor involving violence. That suspension will last at least three years from the time the sentence is successfully completed. The department will also suspend a concealed weapons/firearms permit if the person has an injunction against violence issued against them.

Police Need To Verify Anonymous Tip for Valid Sale of Cocaine Arrest

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

Police in Florida often get tips from people about others who are allegedly involved in criminal activity. Many of these tips relate to people allegedly selling drugs or growing drugs. When the tips come from people who identify themselves to the police, know the suspects and have specific information about the criminal activity, the tips are considered more reliable than tips from anonymous people. When the tip comes from a person who is not willing to identify him/herself to police and discusses alleged criminal activity, this is not sufficient for the police to obtain a search warrant or make an arrest. The police can investigate the matter to see if they can observe facts that verify the tip and the criminal activity. If the police do in fact observe facts consistent with the tip and consistent with criminal activity, they may be able to detain or arrest the suspect. However, if the police observe the suspect and verify certain harmless facts (such as description and location) but not anything indicating criminal activity, the police cannot lawfully detain or arrest the suspect.

In a recent sale of cocaine within 1,000 feet of a park case just outside of Jacksonville, Florida, the police received an anonymous tip that the defendant was selling cocaine at a park with a young child. The police went to the park and saw the defendant and his son. They then saw the defendant walk to the driver’s side of another vehicle and then make an exchange of an unknown object for money. At this point, the police arrested the defendant for sale of cocaine within 1,000 feet of a park. They found that he was in possession of money and more cocaine at the time.

The criminal defense lawyer filed a motion to suppress evidence of the cocaine based on the argument that the police officer did not have probable cause to arrest the defendant. The court ruled that the arrest and search were valid. If the police officer had detained the defendant after only verifying that he was at the park with his son, that would not have been sufficient verification of the tip to justify detaining the defendant. Those facts are harmless facts that do not indicate criminal activity is occurring. However, once the police observed what appeared to be a hand to hand transaction, which are common in drug sales, the police did have sufficient corroboration of the tip to detain the defendant and investigate further.

A Battery Charge Can Be a Felony in Florida if Alleged Strangulation is Involved

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

In Florida, a battery where no weapon is used is normally a misdemeanor crime, which means the maximum penalty is one year in jail. A battery against someone not related to the defendant is a serious charge but not normally as serious as a domestic battery charge and certainly not as serious as a felony battery charge. Using a weapon during a battery can certainly raise the stakes for a battery charge and make it a felony punishable by years in prison. Outside of the domestic battery context where a defendant has a prior domestic battery conviction, battery charges are typically going to remain misdemeanors if no weapon or serious injury is involved.

However, there is one type of battery that we see charged fairly often that does not involve a weapon and often does not result in any, let alone serious, injuries to the alleged victim. Battery by strangulation is a third degree felony in Florida punishable by a maximum of five years in prison. One might expect that the battery by strangulation charge requires forceful strangulation and evidence of the victim’s inability to breathe for the state to bring those charges. That is not always the case. As criminal defense lawyers working in the Jacksonville, Florida area, we have see quite a few battery by strangulation arrests where, at worst, the defendant merely puts his/her hands on or near the victim’s neck. This is not sufficient to maintain a battery by strangulation charge in Florida. The Florida law requires the defendant to impede the normal breathing of the victim or the circulation of the blood of the victim by applying pressure on the neck, nose or mouth and creating a risk of great bodily harm.

The Florida law, as written, seems to require a significant effort to choke, or strangle, the victim. However, we often see police officers arresting a person for battery by strangulation where there is just an allegation that the defendant merely put his/her hands on the victim’s neck without evidence of a restricted airway or blood flow or a risk of serious bodily harm. In many cases where battery by strangulation is charged, the state may have overcharged the case and the misdemeanor is much more appropriate than the more serious felony charge, and this type of case must be defended appropriately.

Is Weaving Within a Lane a Sufficient Basis to Make a DUI Stop in Florida

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

In a recent DUI case south of Jacksonville, Florida, a police officer stopped the defendant for driving out of control and in an abnormal driving pattern. More specifically, the police officer testified that the defendant was driving back and forth in his lane and striking the lane markers. At some point, after driving over to the divided white lines, the defendant abruptly swerved back towards the middle of the lane. However, the driver never drove over into the adjacent lane. The police officer concluded that the driver was impaired and pulled him over allegedly to see if he was fine to continue driving. After the traffic stop, the police officer conducted a DUI investigation, had the driver perform field sobriety tests and arrested him for DUI.

The criminal defense lawyer filed a motion to suppress evidence of the police officer’s observations of impairment and the results of the police officer’s field sobriety examination. The criminal defense attorney argued that there was no actual traffic violation so the police officer did not have a legal basis to pull over the defendant.

Ordinarily, a police officer may only conduct a traffic stop of a defendant, whether to write a traffic ticket or investigate for a DUI, if the police officer observes the driver commit a traffic violation. However, there are exceptions to this general rule. One exception is referred to as the community caretaker doctrine in Florida. This says that a police officer may stop a vehicle without reasonable suspicion of criminal activity if the officer believes it is necessary to protect public safety. A police officer can stop a driver if he/she observes abnormal driving if there is reason to believe the driver may be ill, tired or impaired and a risk to others on the road. These traffic stops are allegedly unrelated to a criminal investigation, but they can turn into a DUI or other criminal investigation if the police officer observes signs of impairment from alcohol and/or drugs or other evidence of criminal activity.

State Charges Defendant With Felony DUI, But Felony Case is Dismissed

Published on: September 2, 2011 | by Lasnetski Gihon Law

In Florida, a DUI charge (driving under the influence of alcohol or drugs) is normally going to be charged as a misdemeanor crime. While the Florida legislature continues to make minimum penalties for DUI harsher, jail time for a misdemeanor crime is limited to a maximum of one year and most people charged with any misdemeanor are not facing anywhere near that amount of jail time, if any. However, if a person has three prior DUI convictions, the state does have the option of charging the fourth DUI as a third degree felony. Third degree felonies carry a maximum penalty of 5 years in prison, and it is not uncommon for someone to go to jail or prison when charged with a third degree felony if he/she has a prior record.

In a recent DUI case south of Jacksonville, Florida, the state charged the defendant with felony DUI because the defendant had three prior DUI convictions. However, the state cannot use just any prior DUI conviction to justify the three prior DUI convictions necessary to charge felony DUI for the fourth DUI. There are restrictions with the use of prior DUI convictions. For instance, if the defendant was facing jail time, could not afford a lawyer and did not have adequate legal representation during the prior DUI case, that prior DUI conviction cannot be used as one of the three prior DUI’s necessary to make the fourth DUI a felony.

In this case, one of the defendant’s prior DUI convictions went all the way to the mid-1980’s. The criminal defense lawyer filed a motion to dismiss the felony DUI charge because the defendant indicated he did not have enough money to hire a criminal defense attorney back then, did not waive his right to a criminal defense lawyer and was not appointed a criminal defense attorney by the court for the prior DUI in the 1980’s. Because the prior DUI case was so old, the files were destroyed, and the state was not able to prove that the defendant either had a criminal defense lawyer when he was convicted of the prior DUI or waived his right to a criminal defense attorney in that case. Because the state could not prove the necessary requirements to use one of the the prior DUI convictions, the State was not permitted to charge the fourth DUI as a felony.

Law Enforcement Officials Charge 32 People After Pain Clinic Investigation in South Florida

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

At Lasnetski Gihon Law in Jacksonville, Florida, we represent people who are being investigated or have been arrested and charged with crimes relating to pain clinics and pain management practices, whether they are doctors, owners or employees. Over the last several years, we have seen a significant increase in state and federal investigations of pain clinics in Florida and Georgia. State and federal law enforcement officials take the position that many of these pain clinics are so-called “pill mills” that prescribe addictive pain medication to people as quickly as possible and without performing the proper examinations. While there are some pill mills out there, many pain management clinics are operating properly and legally, yet they are still the subject of criminal investigations. Clearly, there are many people with chronic pain who are greatly benefited by pain management doctors but who are not fortunate enough to have adequate insurance.

Another example of law enforcement going after pain clinics was seen in South Florida recently. Thirty-two people, including doctors and owners of pain clinics, were charged with crimes relating to the distribution of pain pills last week. They were calling this the largest illegal pain clinic operation in the country and alleged that 20 million pain pills were distributed for a profit of approximately $40 million between 2008 and 2010. Oxycodone was the primary prescription drug that was issued to the patients.

According to the Attorney General’s office, Florida leads the nation in illegal pain medication distribution. Articles like this one about the police shutting down a pain clinic and arresting multiple doctors, owners and employees are not uncommon.

Government Focused on Deporting Illegal Immigrants With Criminal Records

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

There are approximately 300,000 deportation cases currently pending in immigration courts across the country. The United States government has recently signaled a change in the way it intends to handle those cases. The government has indicated that it will focus primarily on those illegal immigrants who have criminal records or are otherwise considered a threat to national security. Those illegal immigrants with pending deportation cases who do not have criminal records or pending criminal cases will likely be allowed to remain in the country and apply for a work permit. Other factors to be considered in a deportation case will be how long the person has been in the country and whether the person has relatives who are U.S. citizens.

If you are not a United States citizen and have a deportation or immigration issue, or have been arrested and are facing deportation, the law firm of Lasnetski Gihon Law handles all criminal and immigration matters in state and federal courts. Feel free to contact us for a consultation about your rights within the criminal justice system and the immigration process.

Deaths From Prescription Drugs Increase in Florida in 2010

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

As criminal defense lawyers in Jacksonville, Florida and the North Florida area, we see the trends in criminal law as they occur. One obvious trend over the last several years is the shift away from more traditional drug crimes involving marijuana, crack, cocaine and heroin towards drug crimes involving prescription drugs like Oxycontin, Hydrocodone and Oxycodone. Florida police and lawmakers are also aware of this trend and have responded by making prescription pill crimes and punishments more serious and making more arrests in this area.

A recent article on News4Jax.com will not do anything to stem the tide of stricter laws and more arrests involving prescription drugs. According to the article, deaths from prescription drugs increased by 9% in 2010, despite increased efforts by law enforcement to crack down on the illegal distribution of these prescription drugs. Governor Scott noted that the government has strengthened laws and regulation as well as budgeted more money for police in an effort to address the rise in prescription drug related crimes and deaths. Of course, throwing more money into regulation and enforcement has never seemed to reduce drug crimes in the past; it only seems to result in more money and resources needed in the criminal justice system and the prison system. Among the drugs most responsible for the increased deaths from prescription drugs, Oxycodone was the number one drug. According to the article, there were almost three times as many deaths in Florida from Oxycodone than cocaine.

Florida is the leading state when it comes to the illegal purchase of prescription drugs. As a result, law enforcement officials have gone after pain clinics alleging they are providing prescription drugs to countless people without following the required medical protocol. We have represented several doctors, pain clinic owners and employees who have been charged with serious felony crimes related to various pain clinics. You can be sure that whenever law enforcement makes a certain crime a priority, they cast a wide net to try and address the issue, and many people who are innocent or only tangentially involved will get caught up in it.

DUI Charges Dismissed in Florida After Defendant Found in Backseat of Vehicle

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

Many people believe that a person can only get arrested for driving under the influence of alcohol or drugs, i.e. DUI, if he/she is actually driving the vehicle while impaired. However, this is not the case. In Florida, the DUI laws cover a person operating the vehicle or “in actual physical control” of the vehicle. This latter phrase covers incidents where a person is in control of the vehicle and has the capability of driving it, even if he/she is not actually driving it at the time. One common example is where a police officer approaches a person who is sitting in the front seat of the vehicle with the keys in the ignition. If the person is drunk or otherwise impaired by alcohol or drugs, the police officer can arrest him/her for DUI. This situation often arises where a person parks his/her vehicle and falls asleep or passes out in the front seat with the keys in the ignition.

However, in a recent DUI case south of Jacksonville, Florida, the police received a call of a person passed out in his vehicle. When the police officer arrived, he saw the person passed out in the back seat of the vehicle. The keys were in the front seat. The police officer determined that the person was drunk and arrested him for DUI. The DUI charge was ultimately thrown out. Because the defendant was passed out in the back seat, there was no evidence that he was capable of operating the vehicle even though the keys were inside the vehicle. The state could not prove that the defendant was in actual physical control of the vehicle so the DUI charges could not stand.