Jacksonville Criminal Lawyer Blog

Actual Physical Control of a Vehicle for DUI in Florida

Fri, 03 Feb 2012 15:30:24 -0500

In Florida, in order to be charged with DUI, a person does not necessarily have to be driving the vehicle while impaired from alcohol or drugs. It is sufficient under the Florida DUI laws for a person to be in actual physical control of a vehicle. For instance, if the defendant was impaired while in the driver's seat with the keys in the ignition, this is sufficient for actual physical control even if the vehicle was in park and not moving.

In another recent DUI case near Jacksonville, Florida, a police officer responded to a call of a possible impaired driver and saw the defendant exit his vehicle from the driver's side door with the keys in his hands. After administering field sobriety tests to the driver, the police officer arrested him for DUI. The criminal defense lawyer moved to have the DUI case thrown out arguing that the defendant was neither operating the vehicle nor in actual physical control of the vehicle. However, the court disagreed and found that the evidence that the police officer observed the defendant exit the driver's side door with the keys was enough to establish actual physical control of the vehicle under the Florida DUI laws.

Clearly, the courts in Florida may interpret "actual physical control" very broadly under the DUI laws. If you have been drinking and are impaired, the best thing to do is to avoid your vehicle altogether.

Can Police Search Your Office and Desk at Work?

Tue, 31 Jan 2012 15:01:06 -0500

Most people in Florida understand that they have a strong privacy right in their homes. As a result, police are generally not allowed to come in and search a person's home without a search warrant or consent. However, does this strong protection against unreasonable searches and seizures extend to the workplace in Florida?

In a recent case near Jacksonville, Florida the defendant was charged with kidnapping, armed sexual battery, robbery and other charges. After the incident, the victim identified the defendant in a photo lineup. As part of their investigation, the police went to the defendant's place of work, which was a hotel where he was a manager and shared an office and a desk with another employee. Without the defendant's knowledge, the police asked the defendant's employer if they could search his office desk. The defendant's manager gave the police consent to search his desk, and they found the victim's cell phone in one of the drawers.

The defendant's criminal defense attorney filed a motion to suppress the evidence of the victim's cell phone claiming that the police did not have a right to search the defendant's desk without a search warrant or consent from the defendant. He also claimed that the general manager did not have the right to give the police consent to search his desk.

The question was whether the defendant had a legitimate expectation of privacy in his desk. If so, the police could not search it without a search warrant or consent from the defendant. The court found that the search was valid. The court decided that because the defendant shared an office and the desk with another employee, he did not have a reasonable expectation of privacy in the office or the desk. Also, other employees of the hotel had full access to the office and the desk. As a result, the general manager's consent to search the office and desk was sufficient for a legal search.

This does not mean that the police can go to any workplace and search offices and desks without a search warrant if they have the employer's permission. If a person has an office that is locked and/or a desk that is locked and not freely accessible by others, than the police would likely need a search warrant or consent from the defendant to search that office and desk.

Police Stops Vehicle After Leaving Florida Pain Clinic

Fri, 27 Jan 2012 14:44:04 -0500

Over the last few years, we have seen how police in Florida have taken a much greater interest in so-called pain clinics, making a multitude of arrests of a wide range of people from the owners and doctors at the pain clinics to the people who use the prescription medication obtained at the pain clinics.

In a recent case south of Jacksonville, Florida, police were conducting surveillance in the parking lot of a pain clinic. They observed the defendant exit the pain clinic and enter a vehicle with two other people inside. The police officer followed the vehicle and watched as the three occupants apparently passed around a prescription pill bottle. Based on this observation, the police officer stopped the vehicle and arrested the defendant for doctor shopping after finding the pill bottle.

The criminal defense lawyer filed a motion to suppress evidence of the pill bottle alleging that the stop of the vehicle was invalid. The police officer testified that he had been investigating pain clinics for years and it is common for people to come from long distances to these pain clinics, buy prescription pills with cash without a proper medical exam and then share the pills with others in the parking lot.

The court found that the experience of the police officer along with his observations at the pain clinic were sufficient to give him reasonable suspicion to believe the defendant was illegally sharing drugs in the vehicle, although the observations of the police officer could also be explained by perfectly innocent conduct.

Does Weight of Marijuana Include Water for a Trafficking in Marijuana Charge?

Tue, 24 Jan 2012 12:55:33 -0500

In Florida, in order to be charged with trafficking in marijuana, which typically carries much higher penalties than possession of marijuana, the quantity of marijuana has to be greater than 25 pounds. In a recent trafficking in marijuana case south of Jacksonville, Florida, after the defendant was arrested, the police weighed the marijuana at 26 pounds, which is sufficient for a trafficking in marijuana charge. Approximately a year and a half later, the criminal defense lawyer for the defendant had the marijuana re-weighed. The weight at that time was 24 pounds, which was not sufficient for a trafficking in marijuana charge. Apparently the discrepancy was due to water seeping from the marijuana over time that pooled at the bottom of the container. The question, then is whether the weight of the water can be included in the weight of the marijuana for the purpose of a trafficking in marijuana charge.

The court determined that the weight of the marijuana does include moisture and the charge of trafficking in marijuana was appropriate. Under Florida law, marijuana, or cannabis, is basically defined as all parts of the marijuana plant including the seeds, the resin and any compound thereof. As a result, the court found that this includes any moisture naturally found in the plant for weighing purposes. It would not, however, include packaging materials, soil or excess water not inherent in the plant's vegetable matter.

Since the court decided that the water that seeped out of the marijuana plant over time was a natural part of the plant, and not excess water, it was included in the weight of the marijuana and the trafficking in marijuana charge was upheld.

Can Police Have a Drug Dog Sniff Front of Residence Without a Search Warrant?

Sat, 21 Jan 2012 11:34:22 -0500

In Florida, police often bring a drug dog to a traffic stop if they think there are drugs in the vehicle. The police are allowed to bring a drug dog to the scene of a traffic stop if they have reasonable suspicion to believe there are drugs in the vehicle and there is a brief wait for the drug dog to arrive or if the police officer is writing the driver a ticket for a traffic violation and the drug dog is brought to the scene within the normal time it takes to write the ticket. The justification is that it is not a significant violation of one's privacy rights to allow a dog to smell around the outside of a vehicle. As a result, the courts in Florida are more lenient with drug dog sniffs and allow police to do them in more situations than if the police are opening doors or looking in and searching personal property.

In a recent case involving marijuana trafficking and electricity theft, the Florida police tried to extend this authority to the front door of a residence. In this case, the police went onto the property of the defendant and had the drug dog sniff the front door area without a search warrant or probable cause to believe marijuana or other drugs were inside. The drug dog alerted to the odor of marijuana, and a trafficking amount of marijuana was found in the vehicle.

The Florida Supreme Court found the search illegal. While the police did not enter the home, as in the drug dog cases involving vehicles, a person's home gets greater protection than a person's vehicle on the public roads. As a result, police are not allowed to go onto a person's property with a drug dog and sniff the outside of the home without a search warrant. This was considered to be an unwarranted invasion of a person's strong Fourth Amendment right to be free from unreasonable searches and seizures in his/her home or on his/her residential property.

However, the issue may not be finally resolved. The prosecutor's office in Florida has asked the United States Supreme Court to review this issue, and if they do, their word will be the final word on whether police can go take a drug dog on a person's property and sniff the outside of the home without a search warrant.

Jacksonville, Florida is One of the Top 5 Worst Cities for DUI Arrests

Wed, 18 Jan 2012 11:20:22 -0500

According to a recent survey, Jacksonville, Florida ranks fourth among all cities in the country in DUI (driving under the influence of alcohol or drugs) arrests. The survey was conducted by Insurance.com. It is not clear if the numbers reflect DUI arrests or DUI convictions, but it appears that it refers to DUI arrests as the report notes that there were 3,708 people arrested for DUI in 2010.

We do not know how they do things in other cities, but this does not come as much of a surprise. We have seen many DUI cases, and one thing is clear. Once that police officer decides in his/her head that a driver is impaired by alcohol or drugs, that police officer is going to make a DUI arrest regardless of what the driver says or how he/she does on the field sobriety exam. People in Jacksonville, Florida need to understand that they have a right to remain silent and do not have to answer questions about where they have been, what they have been doing, and if they have had anything to drink. Additionally, they have a right to refuse the field sobriety tests which are a completely subjective and difficult set of balance and coordination tests that can be difficult for anyone under any circumstances. With field sobriety tests, whether a person passed or failed is solely based on the subjective opinion of the police officer who obviously already thinks the driver is impaired or he/she would not have asked the driver to take the test in the first place. If the field sobriety tests are not videotaped, as many are not, the driver has no way to defend him/herself in court when the police officer testifies that the driver failed the field sobriety tests at a DUI trial.

Good Faith Belief in Entitlement to Property is Defense to Grand Theft in Florida

Sun, 15 Jan 2012 17:20:16 -0500

In Florida, grand theft is a felony charge that can be more or less serious depending on the nature of the charge and the amount or value of the property that was allegedly stolen. In some cases, there is a fine line between a civil dispute where one side loses out and a criminal case where one of the sides actually commits a theft. There is no objective criteria that determine whether a loss is a criminal grand theft or a civil dispute more properly addressed with a civil lawsuit. On the front end, it is up to the police and the prosecutor whether they move forward with a criminal grand theft charge. If they do, it is ultimately up to a judge or jury to decide if a criminal grand theft offense has been committed.

If the prosecutor charges a defendant with grand theft, the defendant has certain defenses available to him/her. One defense is the good faith belief that the defendant was entitled to the property taken. If the judge or jury finds that the defendant had a good faith belief that he/she was entitled to take the property, that is a complete defense to a grand theft charge. This defense is valid even if the defendant's good faith entitlement belief was mistaken and unreasonable. This is true because in order to prove that a defendant committed the crime of grand theft, the state must prove the defendant acted with the specific intent to steal the object taken. If the defendant honestly believed he/she had a right to take the property, the state could not prove the essential element of intent to steal.

Of course, a defendant charged with grand theft cannot just tell a judge or jury that he/she thought the property was his/hers and walk away. There must be some evidence, circumstantial or otherwise, indicating the defendant had an honest belief he/she was entitled to take the property. Whether the evidence suggests the defendant thought the property was his/hers or a contract between the parties suggested the defendant could take the property, there must be something that indicates a legitimate belief in an entitlement to the property. If the defendant can establish that, a charge of grand theft will fail.

A Defendant's Confession Alone is Not Sufficient for a Criminal Conviction in Florida

Wed, 11 Jan 2012 15:26:55 -0500

In Florida, a defendant's statement or confession is not admissible at a trial until the state sufficiently proves what is referred to as corpus delicti. Corpus delicti refers to the legal elements that are necessary to prove that a crime occurred. The state must first prove these legal elements with substantial elements independent of the confession. In other words, the state cannot merely use the confession to prove that the crime occurred. On the contrary, the state must present evidence that the crime occurred before the state can present the confession in court.

The concept can be illustrated by a recent criminal case south of Jacksonville, Florida. In this case, the defendant was charged with possession of cocaine and tampering with evidence. A police officer was investigating complaints of drug activity. He observed the defendant in a high crime and drug area. The defendant had a few brief encounters with some individuals. The police officer assumed these were drug transactions but was not close enough to see any details. The police officer stopped the defendant and observed him apparently throw something into his mouth and swallow it. The police officer assumed it was crack cocaine and arrested the defendant. After his arrest, the defendant admitted to buying the crack cocaine and swallowing it when the police officer approached him.

This confession was clearly sufficient to establish that the defendant possessed crack cocaine and tampered with the evidence by swallowing it. However, the confession was thrown out because the state could not prove the elements of any crime without the confession. The police officer made assumptions as to what the defendant was doing, and he was right based on the confession, but the police officer did not have any actual evidence that the defendant committed a crime so the confession was not admissible.

Separated Wife Gives Florida Police Consent to Search Husband's Home

Sun, 08 Jan 2012 15:00:09 -0500

In order for police in Florida to search a person's home, they either need a search warrant, exigent circumstances or consent to search. Focusing on the latter issue, consent to search is normally given by the person who owns the home or is listed on the lease as the tenant. However, the police can also request consent to search a home from someone who does not own the residence and is not on the lease if it appears that the person has unrestricted access to the premises. This can include a roommate or someone temporarily staying at the residence. And, according to a recent case near Jacksonville, Florida in which a person was convicted of possession of a firearm by a convicted felon, a wife separated from her husband can also give police consent to search her husband's home.

In this case, the defendant had been living with his wife, but due to some alleged abuse, she had moved out of the residence. A few days later, she called the police to report the domestic violence. After she reported the domestic violence, she also told police that the defendant was a convicted felon and had a firearm in his home. She then gave the police consent to search the home although she was not staying there at the time. The police went to the home, searched it and found a firearm inside. The defendant was arrested for possession of a firearm by a convicted felon.

The criminal defense lawyer filed a motion to suppress the evidence of the firearm based on the argument that the police did not have authority to enter and search the home. The court denied the motion. Any person who has joint access or common authority over the residence can give police consent to search the residence. In this case, although the wife left the home, there was no evidence that her access to the home had been restricted in any way. Because she apparently still had joint access to the home, the judge ruled that she was permitted to give the police consent to search and look for the firearm.

Judge in Florida Cannot Find a Violation of Probation for Failure to Pay Without Proof of Ability to Pay

Thu, 05 Jan 2012 15:39:01 -0500

In theft cases and other cases where the defendant caused an economic loss to the victim, the judge will often put the defendant on probation and order him/her to pay restitution over time. Restitution is the money the defendant must pay back to the victim for the loss caused by the defendant. If the defendant fails to pay the restitution in full, and/or fails to comply with any other term of probation, the judge can issue a warrant for the arrest of the defendant for a probation violation. After the defendant's arrest on the violation of probation warrant, there may be a probation violation hearing at which the state has the burden of proving that the defendant did not comply with the terms of probation. The burden of proof on the state is much lower in a probation violation hearing than it is for a regular criminal case.

If the alleged probation violation deals with failure to pay restitution, the judge cannot find a violation of probation based solely on the fact that the defendant failed to pay restitution. In other words, failing to pay restitution, by itself, is not a violation of probation.

Under the United States Constitution, a person is not supposed to be sentenced to jail or prison due to an inability to pay. Therefore, in order for a judge to find that a person has violated probation for failure to pay restitution, the state must prove that the person had the ability to pay and willingly failed to do so- merely proving to the judge that the defendant was required to pay restitution and did not is not sufficient. It is the state's burden to prove this essential element. If the state does present sufficient evidence on this element, the defendant still has a right to show that he/she did not have the ability to pay and/or did not willingly fail to pay. It is never the defendant's initial burden to prove that he/she did not have the ability to pay restitution to avoid a probation violation.

Can a Police Officer in Florida Make an Arrest outside His/Her Jurisdiction?

Mon, 02 Jan 2012 17:36:45 -0500

In Florida, police officers are supposed to make arrests only within their own jurisdiction. For instance, a Jacksonville Sheriff's Office officer is not permitted to make an arrest for a crime that takes place in Clay County or St. Augustine, Florida. However, there is an exception to the rule in cases where the police officer is in "fresh pursuit" that causes him/her to leave his jurisdiction to go into another city or county.

The fresh pursuit law allows a police officer to pursue a person who has committed a felony or misdemeanor crime, a county or city ordinance violation or certain traffic violations into another jurisdiction to make an arrest or traffic stop. The law also allows the police to chase a person who is only suspected of committing a felony into another jurisdiction. The police officer is then allowed to detain and arrest the suspect in that other jurisdiction. Once the arrest outside the jurisdiction is made, the police officer must immediately notify the appropriate police officer in the particular county or city where the arrest was made.

In order for the fresh pursuit law to be applicable, the police officer must actually be chasing the suspect into the next jurisdiction without any delays. If the police officer believes the suspect has committed a crime, ordinance violation or traffic violation and merely follows the suspect without trying to pull the suspect over in his/her jurisdiction, the police officer cannot go into another jurisdiction to make the arrest because it is not a fresh pursuit.

Jacksonville, Florida Police to Focus on DUI Arrests This New Year's Weekend

Fri, 30 Dec 2011 11:08:30 -0500

Jacksonville, Florida police have indicated that they intend to make more DUI (also referred to as drunk driving or driving under the influence) arrests this weekend as it falls on the New Year's holiday. People in the Jacksonville, Florida area can expect Jacksonville Sheriff's Office and Florida Highway Patrol officers to be on the lookout for people they suspect are driving under the influence of alcohol or drugs. They are also setting up DUI checkpoints in the Jacksonville area.

Of course, for anyone who plans to drink this weekend, having a designated driver or taking a cab is always the best option. However, the other side of the coin in these situations where the police are making a concerted effort to make DUI arrests is that police often tend to draw conclusions first and work on the evidence later when they believe someone is DUI. A DUI arrest is very subjective. A DUI arrest is often the result of a police officer who is already looking for DUI suspects deciding that a person is impaired from alcohol and then making very subjective observations that are consistent with that foregone conclusion. These same observations that police officers write in their reports over and over again include: odor of alcohol, bloodshot and glassy eyes, slurred speech and swaying. Of course, all of those are subjective conclusions, and none of them prove that a person is impaired. From there, the police officer will likely ask the DUI suspect to participate in the field sobriety exercises. These are very difficult coordination and balance exercises administered under difficult conditions when the suspect is often very nervous. Whether a person passes these exercises is completely based on the subjective opinion of the police officer who obviously already thinks the suspect is impaired or he/she would not have asked the DUI suspect to take the field sobriety tests in the first place. Under those circumstances, it may not make sense to agree to take the field sobriety tests, which are completely voluntary.

The message from the Jacksonville police is a good one- if you are going to drink, a designated driver or taxi is the best option. However, we have handled a lot of DUI's and see how subjective the DUI arrest can be on a normal weekend. When the police make a statement that they are focusing on DUI's during a particular weekend, the risk of more questionable DUI arrests is greater.

If you have been stopped for DUI or arrested for DUI and have questions about your rights and defenses, feel free to give us a call any time, 24 hours a day for a free consultation to learn your rights.

Suspect Gets Arrested for DUI After Citizen's Arrest

Tue, 27 Dec 2011 17:20:33 -0500

In a recent DUI case south of Jacksonville, Florida, the defendant was the subject of a citizen's arrest until the police officer arrived and formally arrested the defendant for DUI. The citizen was sitting on a bench when the defendant pulled up, stopped and got out of her vehicle. The citizen noted the defendant was clearly disoriented and appeared intoxicated. The citizen then took the keys from the defendant to prevent her from driving further. This was a seizure under the Florida search and seizure laws. Once she retained the defendant's keys, the citizen called the police. The police officer arrived, spoke to the citizen about the defendant's apparent intoxication and began a DUI investigation. After determining the defendant was drunk driving, the police officer arrested her for DUI. The defendant ultimately took a breathalyzer test which showed a very high blood alcohol content level.

The defendant's criminal defense lawyer filed a motion to suppress the evidence of the breathalyzer test and the police officer's observations of her signs of impairment. The criminal defense attorney argued that the citizen's arrest was improper and all evidence obtained thereafter was inadmissible. The court disagreed and found that this was a proper citizen's arrest. Because the citizen observed the defendant show signs of impairment and acted properly in taking the keys from her to prevent her from driving, the citizen's arrest was proper. The defendant was not unlawfully seized, and the police were permitted to conduct their DUI investigation and make a DUI arrest.

The State Does Not Always Appreciate the Difference in Animal Cruelty Charges in Florida

Sat, 24 Dec 2011 16:38:27 -0500

In Florida, the crime of animal cruelty can either be a misdemeanor or a felony. Felonies are more serious and carry maximum punishments greater than one year in prison while misdemeanors carry maximum punishments of no more than one year. In Florida, misdemeanor animal cruelty is committed by killing, tormenting, depriving of food and water or unnecessarily mutilating an animal. The wording of misdemeanor animal cruelty clearly covers a lot of bad conduct that one might inflict upon an animal. In order for felony animal cruelty to apply, a person must cause a "cruel death" of an animal or cause excessive or repeated suffering to an animal.

There is generally a big difference between a felony charge and a misdemeanor charge. However, there is some overlap in the language of the two levels of animal cruelty. If a person torments an animal and/or deprives it of food to cause its death, that clearly would be a misdemeanor under the above language. However, it also could be considered repeated or excessive suffering or a cruel death, which would make it a felony.

When such an act of animal cruelty occurs, how does one know if the misdemeanor or felony charge is more appropriate? It is typically up to the police officer and the prosecutor. They make the decisions as to the charge for which the defendant is arrested and what charge is filed. As we have seen in Jacksonville, Florida, the police and the prosecutors typically err on the side of the more serious felony charge. In fact, we have seen cases where people kill animals by shooting them, resulting in quick deaths, and the felony charge is filed. These acts would seem to clearly fall within the misdemeanor animal cruelty definition, but the more serious felony charge is filed because people suspected of committing animal cruelty resulting in the death of an animal do not often get the benefit of the doubt.

However, in any animal cruelty case, the law must still be followed, and the state should not be permitted to overcharge an act that should be charged as a misdemeanor under Florida law.

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

Wed, 21 Dec 2011 16:15:31 -0500

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.