Jacksonville Criminal Lawyer Blog

State Tries to Use Prior DUI Conviction Against Defendant in DUI Case

Published on: June 19, 2011 | by Lasnetski Gihon Law

In Florida, when a person obtains a driver’s license, he/she consents to submit to a breathalyzer test when a police officer has probable cause to believe the person is driving while impaired by alcohol and makes a DUI arrest. If the person refuses to submit to a breathalyzer test during a DUI arrest, that person is subjected to a longer driver’s license suspension and the evidence of the breathalyzer refusal can be used against him/or in the DUI case. Additionally, a second breathalyzer refusal during a subsequent DUI arrest in Florida is a misdemeanor crime.

When a person refuses the breathalyzer test and goes on to have a DUI trial, the state will always bring out the fact of the refusal and argue to the jury that the defendant refused the breathalyzer because he/she knew it would show that he/she was impaired by alcohol. Of course, the criminal defense lawyer and the defendant can refute that assumption with their own arguments as to why the defendant refused the breathalyzer.

However, in a recent DUI case west of Jacksonville, Florida, the state attempted to do something quite different. In this DUI case, the defendant refused to submit to the breathalyzer. Apparently, the defendant had a prior DUI arrest and conviction many years before where he actually submitted to the breathalyzer test. At the trial, the defendant was asked by the prosecutor why he refused the breathalyzer test, and the defendant said that he did not trust the breathalyzer test. The state then brought out evidence of the defendant’s prior DUI case where he did submit to the test.

Police Cannot Force Driver to Move His Vehicle Without Legal Basis in DUI Case

Published on: June 16, 2011 | by Lasnetski Gihon Law

Most people understand that the police in Florida cannot seize a person without specific facts indicating the person is, was or is about to be involved in criminal activity. However, what is considered a seizure of a person is not always clear. It does not just mean an arrest. It can also mean commanding a person to do something he/she was not intending to do. For instance, if a police officer tells a person to get out of his/her car or to move his/her car, that can be a seizure that is not proper without a legal basis for making the request.

In a recent DUI (driving under the influence of alcohol or drugs) and possession of cocaine case south of Jacksonville, Florida, the defendant was trying to exit a parking garage in his vehicle. A nearby police officer saw that he was having trouble putting the token into the machine to raise the gate. There were vehicles behind the defendant who were waiting to get out of the parking garage. The police officer told the defendant to move his vehicle away from the gate and into a parking spot so the other vehicles could leave. The suspect did move his vehicle and then got out an started stumbling and leaning on his car for support. The officer then approached the defendant, observed that he seemed to be impaired and initiated a DUI investigation. The police officer arrested him for DUI and found cocaine in his pocket.

The criminal defense lawyer filed a motion to suppress the evidence relating to the DUI investigation and the cocaine found in the defendant’s pocket. He argued that a police officer cannot command the defendant to move his vehicle without specific evidence that he is committing a crime. By telling the defendant to drive away from the gate to a parking spot, the police officer effectively seized the defendant without sufficient evidence that he was involved in criminal activity.

In Florida, the Police Can Get Quick and Easy Access to Your Pharmacy Records

Published on: June 13, 2011 | by Lasnetski Gihon Law

In recent years in Florida, as prescription drug use has significantly increased, police have been investigating how and where people are obtaining narcotic pills without a prescription. One crime that police focus on is doctor shopping. In Florida, the crime of doctor shopping is committed when a person sees different doctors to get the same prescription pills within a thirty day period without informing the subsequent doctor(s) of the previous doctor(s). When the police think a person is doctor shopping, they often attempt to obtain the prescription drug records without consent of the patient, a subpoena or a search warrant. Florida law allows the police to do this.

In a recent case south of Jacksonville, Florida, the police obtained evidence that the suspect had obtained multiple prescriptions for Hydrocodone and Oxycontin within a short period of time from different doctors. The police officer went to the various pharmacies without notifying the suspect and without a search warrant and requested the patient’s pharmacy records. The pharmacy provided the information which showed the suspect had presented several prescriptions for the same drugs from different doctors in a short period of time. The police officer then contacted the doctors, obtained their patient contracts, spoke to the doctors about whether the suspect was a patient and had the doctors confirm they issued the prescriptions for Hydrocodone and Oxycontin without knowing the patient visited other doctors for the same reason.

The suspect was ultimately charged with trafficking in Hydrocodone and Oxycontin due to the number of pills he received with the various prescriptions. While normally having a valid prescription for pills is a legal defense to trafficking in those pills, it is not a defense if the prescriptions were obtained illegally through doctor shopping.

DUI Case Reversed Due to Illegal Police Stop of Pickup Truck

Published on: June 10, 2011 | by Lasnetski Gihon Law

In a recent DUI (driving under the influence of alcohol or drugs) case south of Jacksonville Florida, the defendant was driving on I-95 and failed to stop at an open weigh station. The defendant was driving a large pickup truck, and the police officer believed that the defendant was required to stop his truck at the weigh station. When the defendant did not stop, the police officer pulled him over and told him to drive back to the weigh station. Apparently, according to the police officer, the defendant committed a traffic violation on the drive back to the weigh station so the police officer stopped him. The police officer indicated that he smelled alcohol on the defendant and initiated a DUI investigation. The police officer ultimately arrested the defendant for DUI and searched his vehicle. The police officer found marijuana in the vehicle and arrested the defendant for possession of marijuana in addition to DUI.

The criminal defense lawyer moved to have all of the evidence obtained by the police officer after the stop suppressed based on an illegal stop. This would include all of the police officer’s observations related to the DUI, including the field sobriety tests and the breathalyzer results, as well as the evidence of the marijuana in the vehicle. Once the criminal defense lawyer files a motion to suppress the evidence, the state has the burden of proving the stop was valid. In this case, the state could not establish that the defendant was required to stop at the weigh station with his big truck. Therefore, the state could not establish that the police officer had a right to stop the defendant. When the state cannot establish that the traffic stop was legal, the evidence of criminal activity obtained after the stop is typically thrown out. As a result, all evidence of the DUI and possession of marijuana charge was thrown out, and the charges were ultimately dismissed.

Can a Plastic Fork be a Deadly Weapon and a Basis for an Aggravated Battery Charge in Florida?

Published on: June 7, 2011 | by Lasnetski Gihon Law

The crime of aggravated battery is a very serious felony crime in Florida that often results in a person receiving a prison sentence if convicted. In Florida, aggravated battery is defined as committing a battery (unauthorized contact with another person) with the use of a deadly weapon. As you can see, the definition of battery is very broad. Just about any unauthorized contact with another person can technically be a battery. The question in an aggravated battery case typically revolves around the deadly weapon element. What is a deadly weapon? Sometimes, in the case of a knife or brass knuckles, the object clearly qualifies as a deadly weapon. However, when other, less dangerous objects are used, the answer is not so clear.

In a recent criminal case near Jacksonville, Florida, the defendant was charged with aggravated battery for stabbing the victim in the back of the neck with a plastic fork. The victim was scratched by the fork and had a red mark, but there was no bleeding. The state charged the victim with aggravated battery claiming that the plastic fork could have seriously injured the victim had the defendant stabbed him in a different place on his neck, i.e. at the artery. The judge agreed, and the defendant was convicted of the crime.

The appellate court reversed the conviction. Clearly, this was a regular battery (a misdemeanor crime). However, the plastic fork was not considered a deadly weapon which is a requirement for a felony aggravated battery conviction. A deadly weapon is an object that does or is likely to cause serious injury if used as it is normally intended or any object that is likely to cause serious injury when used as the defendant used it in the particular case. In this case, the plastic fork did not actually cause a serious injury, and there was no evidence that the plastic fork was likely to cause a serious injury if used as the defendant used it or as it was intended to be used. Whether the plastic fork could have caused serious injury if the defendant stabbed the victim in another place on the neck and if it had punctured the victim’s skin is not the standard.

Federal Government Proposes New Cyber Security Laws

Published on: June 4, 2011 | by Lasnetski Gihon Law

With computer crimes becoming more prevalent as more people obtain computers and similar networking devices, state and federal governments are enacting new laws to respond to the increasing number of crimes. The Obama administration recently announced a new proposed law dealing with various cyber security issues. The new law would address several areas. It would establish a national, standardized data breach reporting system for businesses to notify customers when they have had a breach of their security systems where financial or identification information may have been lost. Currently, various states have different laws that may or may not require a company to notify a customer when there has been a breach in their security and potential loss of people’s financial and identification information.

The law would also set minimum sentences for people convicted of computer crimes related to hacking into networks and stealing information.

Finally, as we have seen in other contexts, the lines of communication among the various governmental departments that deal with cyber crimes are not exactly open, and it can be unclear which government agency is responsible for investigating the matter. When one government department will not share information with another, complicated cyber crimes often go unsolved. The new law will attempt to rectify that problem so the government can be more efficient in dealing with cyber crime. We’ll see how that goes.

States May Be Rethinking Medical Marijuana Laws After Warning From Federal Government

Published on: June 1, 2011 | by Lasnetski Gihon Law

As you may know, there are more than one set of criminal laws that govern people in this country. The criminal laws most people are familiar with are the state criminal laws that are promulgated by each state’s legislature. State police, prosecutors and court systems handle the majority of crimes in this country. State laws vary from state to state. Of course, there are also federal criminal laws which are a single set of laws promulgated by Congress that apply in all states. Most criminal conduct that is illegal under a state’s criminal laws is also illegal under the federal laws. However, some conduct may be legal under one set of laws and illegal under another set of laws. Medical marijuana may be one such issue.

Many states are considering enacting laws that make medical marijuana legal. Florida does not have a law that makes medical marijuana legal. Marijuana laws in Florida can be quite severe depending on the nature of the crime. Like Florida, federal criminal laws also have not legalized marijuana for any reason. Because the federal government has not budged on the medical marijuana issue, some states are reconsidering whether to make medical marijuana legal. A couple of years ago, the Department of Justice’s stance was that it was a waste of their time and resources to go after people dispensing medical marijuana if the state in which they operate allows it. Given the increasingly limited resources with which we are working in this country, that seems like a pretty logical position.

However, more recently, the Obama administration has indicated they might go after (i.e. arrest and prosecute) those involved with some of the larger medical marijuana operations even if they are in compliance with their state’s laws.

Can the Police Search a Person’s Cell Phone After an Arrest Without a Search Warrant

Published on: May 29, 2011 | by Lasnetski Gihon Law

In Florida, the general rule for searches and seizures is that the police cannot search a person, a vehicle, a home or other private property without a valid search warrant. Of course, there are exceptions to this general rule which allow the police to search a person or his/her property without a search warrant in many situations.

One common exception to the search warrant requirement is the search incident to an arrest. When the police arrest a person for a crime in Florida, that police officer can search that person incident to the arrest. There are two primary bases for the search incident to an arrest exception to the search warrant requirement. First, the police officer is allowed to search the person, any container on the person and any container within the person’s immediate reach for officer safety. The police officer has a right to make sure the person being arrested does not have a weapon in his/her possession or within arm’s reach that could be a threat to the officer. The other basis for a search incident to arrest is to protect against the destruction of evidence. For instance, if the police officer arrests someone for a drug crime, the officer has a right to search the person to make sure he/she does not have more drugs or other evidence on him/her that can be thrown away, swallowed or otherwise destroyed.

The search can cover the entire person, his/her clothing and any closed containers on that person. Does that include a person’s cell phone? In other words, can a police officer in Florida search the contents of a person’s cell phone without a search warrant after arresting that person? This can certainly be a significant issue in any criminal case. Cell phones contain pictures, text messages, emails, website histories and phone records which can provide the police with all sorts of evidence in criminal cases. Each person clearly has a significant privacy interest in the contents of his/her cell phone.

More Then Just the Owner of a Residence Can Give Police Consent to Search

Published on: May 26, 2011 | by Lasnetski Gihon Law

We continue to be amazed at how many people give police officers consent to search them, their vehicles, their homes or anything else that contains illegal drugs or other evidence of criminal activity. Everyone should understand that the the Constitution gives each person a right to refuse a police officer’s request to search his/her private property or belongings.

In any case, there are legal issues that arise that address who is actually authorized to give consent to search a residence when more than one person lives there. Certainly, the owner/occupant can give consent to search, but what about someone else is also staying there or someone who is just visiting?

In a recent case south of Jacksonville, Florida, the defendant was charged with possession of a firearm by a convicted felon and possession of ammunition by a convicted felon after police found the gun and ammunition during a search of his apartment. In this case, the police responded to a domestic violence call at the defendant’s apartment. When the police arrived, they found the 911 caller in the front yard, and she showed some signs of a recent physical altercation. She told the police she lived in the apartment with the defendant for the past two months, but she was not listed as an occupant on the lease. With the woman’s consent, the police officers went inside the apartment to help her retrieve some of her belongings. Once inside, the police officers found an assault rifle and ammunition. The police officers also found a pile of women’s clothes which corroborated her story that she was staying at the apartment.

Laws to Require Tracking of Pseudoephedrine Cold Pills Does Not Reduce Methamphetamine Production

Published on: May 23, 2011 | by Lasnetski Gihon Law

People familiar with the drug methamphetamine and its production know that it can be made using many products that can be found at your typical household. One of the key ingredients of methamphetamine is pseudoephedrine, which is found in many cold pills such as Sudafed. Once police realized that these cold medicine products were flying off of the shelves at pharmacies and grocery stores and making their way to methamphetamine labs, police agencies and legislatures started making and enforcing laws to try to make it more difficult for people to buy pseudoephedrine in large volumes. As a result, cold medicines containing pseudophedrine are no longer out on the shelves for anyone to purchase. They are kept in a locked container and/or behind the counter requiring the assistance of a store employee to retrieve them. Also, there are limits on the number of pseudoephedrine products a person can buy at any given time, and everyone buying pseudoephedrine products must show identification and sign a register. In some states, that information is entered into a statewide computer database for tracking. That way, when police are investigating methamphetamine manufacturing cases, they have a quick and easy source to determine who may be supplying one of the most important ingredients in the production of methamphetamine.

A recent article by the Associated Press looked into whether these laws have been effective in curbing the manufacture of methamphetamine. The article concluded that not only have the laws not reduced methamphetamine production, but production has increased recently. Additionally, as anyone with a historical perspective would expect, a black market has developed where people are acquiring large quantities of pseudoephedrine products and selling them to methamphetamine manufacturers at a premium. Because the laws have artificially affected the supply and demand, pill brokers are using various people to go store to store to buy pseudoephedrine pills for $7 to $8 per box and then selling them for $40 to $50 per box.

Despite the laws and with the assistance of the pseudoehopedrine black market, methamphetamine related activity (including arrests, seizures and discoveries of meth labs) was up 34% in 2009. Methamphetamine related activity increased more in the states that require electronic tracking of pseudoephedrine purchases. People in the black market and those involved in meth production are enlisting the help of friends, family members and customers to acquire pseudoephedrine pills- a practice known as “smurfing”. In that way, the laws have resulted in more people being involved in the production of methamphetamine while in the past methamphetamine production required fewer people.