Jacksonville Criminal Lawyer Blog

U.S. Sentencing Commission to Review Sentencing Guidelines for Possession of Child Pornography Crimes

Published on: September 26, 2009 | by Lasnetski Gihon Law

Federal judges testified in front of the U.S. Sentencing Commission regarding the abnormally high sentences given for the federal crime of possession of child pornography. The judges asked the Commission to review the criminal sentencing guidelines for possession of child pornography cases. The judges noted that some people are getting inordinately high sentences for sitting in their homes looking at pictures of child pornography that are the same or more than sentences for crimes such as rape and bank robbery. Additionally, the judges noted that people who are convicted of possession of child pornography crimes are receiving sentences that are no less than those for people convicted of manufacturing or commercially distributing child pornography. As a point of reference, one judge noted that in his district, the average sentence for possession of child pornography increased from 50 months to 109 months from 2002 to 2007.

The judges indicated they were not trying to downplay the seriousness of possession of child pornography but were merely trying to ensure that the sentencing guidelines for that crime were appropriate when compared to more serious and violent crimes and also more threatening child pornography crimes such as manufacturing and/or distributing child pornography. The U.S. Sentencing Commission appeared to be receptive to the testimony and may consider adjusting the sentencing guidelines for possession of child pornography crimes in federal court in the future.

Florida Statewide Prosecutor’s Annual Report

Published on: September 23, 2009 | by Lasnetski Gihon Law

The Florida Statewide Prosecutor’s Office issued its annual report for 2008. That office prosecutes crime throughout the state of Florida. It has several offices statewide, including an officer here in Jacksonville, Florida.

Among the issues raised in the report was the increasing gang problem in Florida. The report noted that Florida has the fastest growing gang problem in the United States, and gangs are branching out into rural areas. The report also indicates that there is increased illegal drug activity in the Central Florida and North Florida areas. In addition to the normal cocaine and crack cocaine, methamphetamine and heroin crimes they deal with, they are seeing an increased number of hydroponic marijuana cases. And just like the federal authorities, the Statewide Prosecutor’s Office is focusing more on fraud related cases such as mortgage fraud, health care fraud and securities fraud. Florida was number one in single family home loan fraud cases in 2006 and 2007.

The report is a good source to identify some of the trends in criminal law on the state level and to also see where the local law enforcement and prosecutors’ offices are channeling their resources to fight various crimes.

Police Arrest Suspect in Front Yard; Police May Not Enter House For a Search

Published on: September 20, 2009 | by Lasnetski Gihon Law

In a recent case south of Jacksonville, Florida, the police got a call of a suspected burglary at the house next to the caller’s house. When the police arrived, they found the defendant moving items from the house to a car parked next to the house. The front door to the home showed signs consistent with a break-in. The police determined that the defendant was the suspect about whom the neighbor called. Additionally, when the police arrived, the owner of the house was present standing on the front porch. The defendant was the husband of the homeowner.

The police officers arrested the defendant and then walked in the house to search it without getting consent from the owner. The officers referred to this search as a protective sweep search. The police officers opened a closet and found a large amount of marijuana inside. The defendant was charged with trafficking in cannabis, or marijuana.

The defendant’s marijuana trafficking charge was ultimately dismissed because the police conducted an illegal search. The criminal defense lawyer for the defendant filed a motion to dismiss the marijuana evidence because the police did not have a right to enter the house.

In a DUI Case With an Accident, the State Must Prove Defendant Was Driving the Vehicle

Published on: September 17, 2009 | by Lasnetski Gihon Law

In order to successfully prosecute a defendant for the crime of DUI (also referred to as driving under the influence, driving while intoxicated, DWI or drunk driving), the State has to prove that the defendant was the actual person driving the vehicle. In most DUI cases, that is obvious because the DUI investigation and arrest result from an alleged traffic violation committed by the defendant who is in the process of driving the vehicle. However, many DUI investigations and arrests result from traffic crashes where the police officer arrives to the scene after the crash. In this case, the police officer does not have personal knowledge that the defendant was driving. If there are other people involved in the crash, they may or may not be able to say that the defendant was driving depending on what they were able to see, whether they were seriously injured or other factors. In a one vehicle crash, it is likely that there are no witnesses to testify as to who was driving other than the defendant him/herself.

In Florida, we have what is called the accident report privilege. This law provides that when a person is involved in a traffic crash in Florida, he/she is required to talk to the police and say what happened in the crash. However, what that driver says cannot be used against the driver in a criminal case, such as a DUI case, or a civil case for personal injuries or wrongful death. So, if the only evidence a police officer and the State have in a DUI case to prove that the defendant was the one driving is the defendant’s own statement that he/she was driving, that cannot be used against the defendant to prove the DUI case.

In a DUI case in Florida, the fact that the defendant was driving seems like an obvious element for the State to prove. However, in some cases where an accident occurred, it can be a very difficult element for the State to prove and one that can result in the DUI charges being dropped.

Former Owner of Cisco Travel Plaza and Others Indicated on Federal Criminal Fraud Charges in Kingsland, Georgia

Published on: September 14, 2009 | by Lasnetski Gihon Law

As we have discussed several times on this blog, the federal authorities are focusing more on fraud related crimes, or so called white collar crimes. We have seen the greatest concentration of federal investigative resources go towards mortgage fraud cases recently, particularly in Florida. However, they are looking at fraud cases of all types.

In Kingsland, Georgia, a recent criminal investigation resulted in the indictment of the former owner of the Cisco Travel Plaza and several others connected to that business. The indictment alleges that these individuals committed the crimes of fraud, conspiracy, bribery and/or criminal trademark infringement. Specifically, the law enforcement authorities, which included the FBI, GBI, local Kingsland police and the IRS, are alleging that Mr. Cisco and the others miscalibrated the fuel pumps at three Cisco Travel Plaza locations to provide less fuel than what was indicated and paid for, substituted cheaper fuel at the premium and mid-grade fuel pumps, sold non-BP fuel while using the BP logo at the centers and bribed Georgia Department of Agriculture inspectors who came to inspect the centers and the pumps. The indictment alleges that these offenses occurred between 2005 and 2006 and resulted in a loss of $7 million to customers of Cisco Travel Plaza.

DUI Breath Test Operator Must Follow Rules or Driver’s License Suspension Will Be Overturned

Published on: September 12, 2009 | by Lasnetski Gihon Law

During the course of a DUI investigation, the police officer will often request that the driver submit to a breath test, aka breathalyzer. If the driver agrees to submit to the breathalyzer test, there are certain rules the police officer must follow for the breath test to be valid. When a person gets arrested for driving under the influence of alcohol (“DUI”) in Florida, the Department of Highway Safety and Motor Vehicles (“DMV”) will automatically suspend the driver’s license. This suspension is independent of the criminal case and the potential suspension that is part of a criminal sentence.

A person arrested for DUI in Florida has a right to challenge the DMV’s license suspension through a formal hearing. At that hearing, the criminal defense lawyer can raise certain issues relating to whether the stop of the driver was legal, the police officer had reason to arrest the driver and the breath test was valid.

One of the rules relating to breath tests referenced above is the 20 minute observation rule. If the driver agrees to the breathalyzer test, a police officer must observe the driver for at least 20 minutes prior to administering the breathalyzer test. The purpose of this rule is to make sure the driver does not ingest anything by mouth or throw up which would alter the breath test results. Once a police officer has confirmed that the driver has neither taken anything by mouth or vomited for a continuous 20 minute (or more) period, it is proper to administer the breathalyzer test.

Criminal Defense Lawyers Lasnetski Gihon Law Get Drug Case Dismissed Due to Illegal Search

Published on: September 10, 2009 | by Lasnetski Gihon Law

Lasnetski Gihon Law was called by a client who had been arrested a few counties south of Jacksonville, Florida for possession of marijuana. The client was at his home on his back porch. A police officer was responding to a noise complaint made by the client’s neighbor about the client. The police officer knocked on the front door, and no one answered. The police officer said that he heard voices around back so he walked around the house into the backyard. When he was in the backyard, he saw our client and some marijuana on a table near our client. Our client was arrested for possession of that marijuana.

This was clearly a bad search. After we filed our Motion to Suppress the marijuana seized as a result of the illegal search, the prosecutor agreed with our position and dropped the case. The reason this was an obviously illegal search is because a person has a strong privacy interest in his/her home and that includes the backyard. A police officer may not walk into a person’s home or walk around a person’s home into the backyard without a search warrant or a clear exception to the search warrant requirement such as consent or exigent circumstances. In this case, the police officer did not have a search warrant or consent to search, and an investigation into a noise complaint would not establish exigent circumstances.

Because the police officer did not have any right to walk behind his house into his backyard and violate our client’s privacy rights, any marijuana he found as a result of the illegal search was thrown out and the possession of marijuana charge could not stand.

Another Drug Case Dismissed Due to State’s Inability to Prove Constructive Possession of Methamphetamine

Published on: September 8, 2009 | by Lasnetski Gihon Law

We see many cases where the police find illegal drugs near a person or group of people or in a house or car owned by someone and charge one or more people with possession of those drugs. For example, the police may go to a apartment or hotel room that is and has been occupied by several people and find illegal drugs. When no one admits to owning the drugs, the police arrest everyone in the room or house in the hopes that some of the charges will stick. The fact of the matter is that the police and the state must be able to show that a person had knowledge of the drugs and exercised some control over the drugs. Without those two elements, a charge of possession of drugs will fail.

In a recent criminal case near Jacksonville, Florida, police went into a hotel room occupied by two people. The defendant was arrested for carrying a concealed weapon. The police found a set of keys on a table in the room. The police officer asked the defendant to whom the keys belonged. The defendant said they were his keys and agreed to a search of his vehicle, according to the police officer. The police officers searched the vehicle and found a black bag on the passenger floorboard that contained a large amount of methamphetamine. The evidence indicated that the defendant and another guy arrived at the hotel in the vehicle together, and the defendant then admitted he knew about the methamphetamine.

The defendant was charged with trafficking in methamphetamine, and that charge was ultimately thrown out. While the evidence may have proven that the defendant knew about the methamphetamine, the drugs were not found on, or immediately near, him. They were found in a vehicle occupied by at least one other person. Because the state could not prove that the defendant had some control over the methamphetamine at some point, there was insufficient evidence to prove that he was in constructive possession of the drugs.

More Women Arrested for Driving Under the Influence of Alcohol or Drugs (DUI) in Jacksonville, Florida

Published on: September 6, 2009 | by Lasnetski Gihon Law

There has been a significant increase in the number of women who have been arrested and convicted for DUI in the Jacksonville, Florida area according to a study and interview reported at www.News4Jax.com. The article cited a study that indicated the percentage of women pulled over and arrested for driving under the influence of alcohol or drugs (also referred to as a DUI, a DWI or drunk driving) has increased almost 30% between 1998 and 2007 (the article does not indicate what area these numbers cover). A member of the State Attorney’s Office for the Jacksonville, Florida area also confirmed that they have noticed an upward trend in the percentage of women defendants who have been arrested and charged with DUI, particularly in the more serious cases such as DUI manslaughter when the DUI was allegedly related to an accident that resulted in a death.

Another DUI trend noted by the Jacksonville, Florida prosecutor is the increase in DUI arrests related to drugs as opposed to alcohol. A person can be arrested for driving under the influence of illegal drugs or prescription drugs just as he/she can be arrested for driving while intoxicated.

However, despite the increase in women arrested for the crime of DUI, men are still arrested for DUI at a much higher rate than women.

Good Article Discussing the Laws Punishing Sex Offenders

Published on: September 4, 2009 | by Lasnetski Gihon Law

The article linked here discusses the various laws addressing sex crimes and dealing with sex offenders and the people who are required to register as a sex offender. The article makes several good points. One point is that the laws punishing “sex offenders” and the laws labeling someone a “sex offender” triggering the sex offender registration requirement are too broad. As a result, given the limited resources of the police and prosecutors, it makes it more difficult for them to monitor and focus on the truly dangerous sex offenders. For instance, the article notes that in some states, sex offenders include a woman who had oral sex with another guy decades ago when she was 17 and the boy was a couple of weeks shy of his 16th birthday, and they were in the same high school class. In other states, people were considered sex offenders for soliciting prostitutes, urinating in public and having consensual sex with a teenagers when they were teenagers themselves. As the article mentions, part of the problem is that when a sex offender law is proposed, even when it is over-reaching and includes people doing things that are far less serious than what one would normally consider a sex offense, it is always unpopular for politicians to vote against such laws. It is always popular with constituents to be tough on sex crimes, and no politician wants to risk being called soft on child molesters, even if he/she merely thinks a proposed law is too harsh on a 17 year old who has consensual sex with 15 year old. However, the best approach to sex crimes and sex offenders is to be tough but smart. Categorizing people as sex offenders who clearly do not deserve the label does not do anyone any good.

Florida has strict laws addressing what sexual conduct between people is considered a crime, some of which address sexual conduct between young people pretty close in age. Florida also has strict laws about when, where and how a person is required to register a sex offender, whether he/she is a resident of Florida or just a visitor. If you have questions about the laws dealing with sexual battery, registering as a sex offender and other sex crimes, feel free to contact us for a free consultation.