Jacksonville Criminal Lawyer Blog

Domestic Battery vs. Battery in Florida

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

In Florida, there are different types of battery crimes that have different ramifications for people charged with those crimes. A battery charge in Florida can be a misdemeanor, punishable by no more than one year in jail, or a felony, punishable by more than a year in prison, depending on the circumstances of the crime. A regular battery is very broadly defined. Technically, a battery can be committed by doing much less than actually striking a person. In Florida, a battery is simply defined as intentionally striking or even touching another person against his/her will. A regular battery is a misdemeanor punishable by up to one year in jail. However, if a person has any kind of prior battery conviction, a second battery can be charged as a third degree felony that carries a maximum punishment of five years in prison. A first time regular battery can also be a felony if the battery causes serious harm to the victim.

A battery becomes a domestic battery if the victim has a certain relationship to the defendant. A domestic battery charge carries the same penalties as a regular battery, but prosecutors often take them more seriously and recommend harsher sentences that can include jail time and attendance in programs designed to teach people about domestic violence. A battery can become a domestic battery if the defendant and victim are related, live together or have children together.

One significant difference between a regular battery charge and a domestic battery charge is the effect it can have on a person’s criminal record. On a regular battery charge, if the defendant decides to plead guilty or no contest, the criminal defense lawyer can negotiate a sentence where the judge withholds adjudication. This is not considered a conviction under Florida law and the criminal defense attorney can file a motion to have the defendant’s criminal record sealed if he/she has no other convictions. However, Florida law does not allow a person to have a domestic battery charge sealed when the judge agrees to withhold adjudication on that charge. If a defendant pleads guilty or no contest to a domestic battery charge, it is likely to stay on his/her criminal record permanently.

Drug Dog or K9 Alert for Drugs is Insufficient to Allow Police Search

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

In Florida, a common scenario in drug cases occurs when the police pulls a driver over and suspects the driver has illegal drugs in his/her vehicle. The piolice officer may ask for consent to search the vehicle for drugs, or the police officer may bring a drug dog, or K9, to the scene to sniff the area around the vehicle for the odior of illegal drugs such as marijuana, cocaine, heroin and methaphetamine. The drug dog is presumably trained and certified to detect to the odor of illegal drugs and indicate a particular signal to the police officer handler who recognizes the signal as an indication that there is an odor of illegal drugs coming from the vehicle. In some jurisdictions, when the drug dog alerts, this is sufficient problable case to justify a search of the vejhicle by the police.

However, in Florida, the state has the burden of proof that a search of one’s vejhicle for illegal drugs is based on probable cause, and merely presenting evidence that a trained drug dog alerted to an odor of illegal drugs does not meet this burden. The state must prove that the drug dog, and the police officer handler, were sufficiently trained and certified to detect the odor of illegal drugs. However, this is the beginning of the analysis, not the end. The state must provide details of the drug dog’s training and the drug dog’s performance during training. The state must also present evidence of how often the drug dog gave false alerts in training and in the field after training. The court should also look at instances where the drug dog alerted to a residual odor of illegal drugs, i.e. where drugs were not found in the vehicle but evidence sugests they were previously in the vehicle.

In some cases, the courts have been satisfied with a drug dog’s reliability to detect an odor of illegal drugs as long as the state has shown the drug dog had the proper training and credentials. However, Florida law requires a much more detailed huistory of the training, success and failure of a drug dog’s ability to actually detect the presence of illegal drugs.

Police Show of Authority is Sufficient for a Seizure

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

In Florida, police officers are not allowed to seize a person without a reasonable belief based on specific facts that the person is engaging, or is about to engage, in criminal activity. If police officers do seize or detain a person without the required reasonable suspicion, any evidence found on the person, such as illegal drugs or guns, will be inadmissible and thrown out of court. This seizure does not necessarily require a physical detention or even a command directed at the person. If the action of the police officers indicate a show of authority without direct commands or a physical seizure, it can still be considered a “seizure” under the search and seizure laws in Florida.

For instance, in a recent marijuana case south of Jacksonville, Florida, the defendant was sitting on the steps of an apartment complex. Several police cars drove up and six police officers approached the area where the defendant was sitting with bullet proof vests and guns drawn. The police officers were there to raid one of the apartments. They had no knowledge the defendant was involved in criminal activity. None of the police officers touched the defendant or even addressed him specifically. When he saw the police officers approaching him, the defendant threw down a few bags of marijuana. He was then arrested, and the police officers found more marijuana in his pocket. He was charged with felony possession of marijuana.

His criminal defense lawyer filed a motion to suppress the evidence of the marijuana arguing that the defendant was seized when the officers approached him without any reasonable suspicion since the defendant was merely sitting on the steps. The court agreed to throw out the evidence of the marijuana. In determining whether police action constitutes a seizure, the court must determine whether a reasonable person would feel like he/she was free to leave the area under the circumstances. If the court determined that a reasonable person would not feel free to leave given the actions of the police, this constitutes a seizure that is illegal unless the police officers can show specific evidence of the defendant’s criminal activity. The court found that when several police officers approached the defendant in full uniform with guns drawn, the defendant did not reasonably feel like he could leave. This was a seizure under Florida law without legal justification so the evidence of the marijuana found during the illegal seizure was inadmissible.

In Florida, Police Can Stop Vehicle When The Vehicle is Different From Registration Description

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

In Florida, when a person purchases a vehicle, he/she must register it with the state and purchase a license tag. When applying for a license tag, the person must provide his/her information as well as a description of the vehicle that remains in the state database. This includes the make, model and year of the vehicle as well as the color. Drivers are required to attach the tag to the registered vehicle when driving the vehicle. The police use the tag to access the state database and properly identify the vehicle and the owner. If the police officer runs a tag and finds the tag was registered to a Ford but is now attached to a Honda, the police officer can pull over the driver to investigate whether the vehicle and/or the license tag was stolen or the license tag was improperly transferred to another vehicle..

Are the police allowed to pull over a vehicle after running the tag and finding a less significant difference between the vehicle observed and the information in the state database? In a recent criminal case near Jacksonville, Florida, the police officer ran a license tag and everything matched except the state database indicated the vehicle was light blue when the vehicle was actually black. Based on this discrepancy, the police officer pulled the driver over to see if the car or the license tag was stolen or the tag had been transferred to a different vehicle. The driver provided a driver’s license and registration that matched the vehicle. The driver indicated that he had recently painted the vehicle but did not inform the DMV. The police officer then asked for consent to search his vehicle, and the driver agreed. The police officer found marijuana and illegal pills in the vehicle, and the driver was arrested for possession of marijuana and possession of pills without a prescription.

The criminal defense lawyer challenged the legality of the stop. If the stop was not valid, the consent the driver gave the police officer to search his car would also be invalid, and the evidence of the drugs would be thrown out. The stop would only be valid if the police officer had reasonable suspicion to believe the driver was violating a traffic law or crime. The criminal defense attorney noted that a vehicle owner is not required to notify the state when he/she changes the color of a vehicle.

The Difference Between Robbery, Robbery By Sudden Snatching and Theft in Florida

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

In Florida, there are separate crimes for theft, robbery and robbery by sudden snatching. Under the Florida criminal laws, a theft occurs when someone takes the property of another without permission either permanently or temporarily. This crime does not involve taking the property by force or threat. For instance, if the victim left her purse on her desk and the suspect came in and took it while she was gone, that would be theft. Theft can range from a misdemeanor to a first degree felony depending on the value of the property taken or other factors.

In Florida, a robbery occurs when a person takes the property of another without permission by use of force, violence or threat of violence. An example would be where a woman was walking with her purse and the suspect pushes her down and takes the purse or otherwise wrestles the purse away from her. Robbery is a second degree felony punishable by a maximum of 15 years in prison. However, if the suspect had or used a deadly weapon during the robbery, it becomes a first degree felony.

In Florida, robbery by sudden snatching involves taking property from another when the property is on that person and is aware of the taking. As example would be where the woman was walking with her purse in her hand the the suspect grabs the purse and runs away. However, if the purse was close to the victim but not on her person and the suspect took it without violence or a threat, it would likely just be a theft. Robbery by sudden snatching is a third degree felony punishable by up to 5 years in prison if no deadly weapon was possessed or used. If the suspect used a weapon, then the crime would be armed robbery and a first degree felony. If the suspect possessed a weapon during the robbery by sudden snatching but did not use it, the crime becomes a second degree felony.

State Limited to One Possession of Firearm/Ammunition by Convicted Felon Charge Per Transaction

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

In a recent criminal case in Jacksonville, Florida, the police were executing a search warrant at the defendant’s home and found several guns throughout the house along with ammunition for some of the guns. The defendant had previously been convicted of a felony. In Florida, a convicted felon is not permitted to own or possess a firearm. Possession of a firearm by a convicted felon is a serious felony crime for which the state often recommends jail or prison time.

In this case, all of the guns and the ammunition were found in the same home (although in different places within the home) and during the same search. The state charged the defendant with multiple counts of possession of a firearm by a convicted felon and possession of ammunition by a convicted felon- one count of possession of a firearm by a convicted felon for each firearm and one count of possession of ammunition by a convicted felon for all of the ammunition.

A motion to dismiss the charges was filed alleging that the state was only permitted to charge the defendant with one count of possession of a firearm or ammunition by a convicted felon for all of the items found in the home. Based on the wording of this criminal statute, the state was not allowed to file multiple charges for the multiple firearms or even separate charges for the firearms and ammunition. The judge’s ruling was mixed, and we eventually appealed to the appellate court.

Federal Judge Decides Ecstasy Penalties Are Too Harsh Under Federal Sentencing Guidelines

Published on: July 31, 2011 | by Lasnetski Gihon Law

A federal judge recently declined to sentence a defendant with ecstasy charges within the federal sentencing guidelines because he felt the federal sentencing guidelines punish ecstasy crimes too harshly and are not scientifically justified.

In federal court, when a defendant pleads guilty or is convicted at trial, the judge will determine his/her sentencing guidelines prior to sentencing. The ultimate guideline range takes several factors into consideration including, for drug cases, the type of drug and the quantity of the drug. Crimes involving some drugs result in higher sentencing ranges than others. A person’s criminal history and the circumstances of the crime are also factors in determining one’s sentencing guidelines range. Ultimately, a guideline range for the crime that is measured in months will be established which suggests that the judge should sentence the defendant somewhere within that range. Federal judges are not required to sentence the defendant within that range; they can depart above or below that range based on the nature of the criminal activity and the particular defendant and other factors.

In this case, the defendant pled guilty to conspiracy to possess and distribute ecstasy. His sentencing guidelines range was 63 – 78 months in federal prison. The judge, however, departed well below that guidelines range and sentenced the defendant to 26 months in prison. At the sentencing hearing, the judge was presented with testimony about the relative safety of ecstasy, including testimony from a Harvard psychiatrist who referenced a five year study that found long term recreational ecstasy use did not cause clinically significant damaging effects. The judge concluded that the harshness of the ecstasy sentencing guidelines did not have a rational relationship to the effects of the drug and a sentence within the guidelines range would be greater than necessary to achieve the objectives of sentencing.

In Florida, a Second Battery Conviction is a Felony

Published on: July 28, 2011 | by Lasnetski Gihon Law

In Florida, a battery crime is defined as intentionally striking, or even touching, another person against his/her will. This is obviously a very broad definition of criminal activity that can include a lot of conduct, and even harmless conduct. Slightly pushing someone with no injury whatsoever can come under the definition of battery. Domestic battery is a battery against a relative, someone with whom the defendant shares a child or someone with whom the defendant lives or used to live.

A person’s first domestic battery or regular battery crime is a misdemeanor in Florida punishable by up to a year in jail. Battery and domestic battery are two of the most serious misdemeanor charges depending on the circumstances of the case and any injuries caused. However, they are still misdemeanors so the severity of the potential punishments are limited.

If a person has a prior conviction for battery, whether it is a regular battery, domestic battery, battery against a law enforcement officer or aggravated battery, another battery charge of any kind can be charged as a third degree felony. The second battery does not need to be of the same kind as the first. In other words, if a person is convicted of a battery against a stranger and then commits a domestic battery, the second battery crime can be charged as a felony.

In Florida DUI Case, State Cannot Use Blood Test Refusal Against Defendant if Breathalyzer Was an Option

Published on: July 25, 2011 | by Lasnetski Gihon Law

In Florida, where the police officer has probable cause that a person is drunk driving or driving under the influence of alcohol (i.e. DUI), the police officer has a right to ask the driver to submit to a test to measure the alcohol content of a person’s blood. In Florida, driving with a blood alcohol content of 0.08 or more is illegal. Most often, the police officer will ask the DUI suspect to take a breath test, or breathalyzer, to determine the person’s alcohol level. If the suspect refuses the breath test/breathalyzer, the DMV may increase the driver’s license suspension and the state will attempt to use the driver’s refusal to submit to the breathalyzer as evidence against the suspect at the DUI trial, i.e. the state will argue the DUI suspect refused the breath test because he/she knew it show a high reading.

In some cases, the police officer investigating the DUI will seek to get a blood test to determine the driver’s blood alcohol level as opposed to a breath test. The state can seek a blood test of the DUI suspect where it is not practical to administer the breathalyzer. For instance, if the DUI suspect is involved in an accident and is injured to the extent that he has to go to the hospital, a breath test may not be possible. In that case, the state is authorized to get a blood test from the DUI suspect. If the DUI suspect is in a position to refuse and does so, the state can use the DUI blood test refusal against the suspect at his DUI trial.

However, if a breathalyzer test is a viable option for the police officer and DUI suspect, the police officer is not permitted to seek a blood test. The DUI suspect can request a blood test, but the police officer is not allowed to substitute the blood test for the breath test at the police officer’s own discretion. If the police officer requests the blood test when the breathalyzer is a viable option and the DUI suspect refuses, the state will not be permitted to use the DUI suspect’s refusal of the blood test at the DUI trial, and the state would have to try and prove its DUI case without mention of any blood or breath test to measure the DUI suspect’s blood alcohol content.

Increase in Abuse of Prescription Pills Results in More Pharmacy Robberies

Published on: July 22, 2011 | by Lasnetski Gihon Law

Traditionally, cocaine, crack and marijuana cases were the majority of drug cases that appeared in criminal courts in Florida. Over the last several years methamphetamine and pill cases have become much more common. According to the Centers for Disease Control and Prevention, prescription painkillers have caused more fatal overdoses than drugs like cocaine and heroine. Painkillers like Hydrocodone, Oxycodone and Oxycontin can be very addictive and cause people to go to great lengths to obtain those drugs. Recently, law enforcement officials have noticed an increase in robberies of pharmacies and other drug stores. At pharmacies, people are targeting prescription drugs, narcotic cough syrup and pseudoephedrine pills that are a key ingredient in the manufacture of methamphetamine.

The Drug Enforcement Agency has reported an 80% increase in pharmacy robberies and burglaries from 2006 to 2010. In 2010, Florida led the nation in the number of pharmacy robberies. Pharmacies and drug stores are also noticing an increase in thefts of these items by employees who either use the drugs or sell them on the street.