July 24, 2015

Florida DMV Can Suspend Your Driver's License for Medical Reasons Based on Confidential Tip

One thing people in Florida do not always realize is that driving is considered a right, not a privilege. This does not mean that the DMV in Florida is going to withdraw drivers' licenses for no reason, but it does mean that when the DMV does revoke a person's driving privileges, that person may have much less recourse than in criminal cases where Constitutional rights are at issue.

For example, in DUI cases, the DMV will almost always suspend a person's driver's license based merely upon a DUI arrest. Of course, according to Constitutional law, a person is innocent until proven guilty and an arrest, by itself, is not proof of guilt. However, since driving is a privilege and the DMV operates under its own set of rules, they can suspend a driver's license immediately upon a DUI arrest. The driver will have an opportunity to challenge the license suspension, but that process does not have anywhere near the safeguards and thoroughness that comes with a criminal case.

The DMV can also suspend your driver's license if there is an indication that you are not medically fit to drive. All it takes to start this process is a report from someone that you are not medically fit to drive. This can be a doctor or anyone with any knowledge of your ability to drive. If someone makes such a report to the DMV, the DMV might open a file and send you a letter telling you to go see a doctor and get examined to see if the doctor thinks you should be driving. The doctor would then prepare a report that goes to the DMV. If the doctor concludes that you are not fit to drive, the DMV will likely suspend your license until you can prove, with the assistance of a doctor, that you are competent to drive.

Additionally, if the DMV sends you a letter indicating that they have reason to believe you are not fit to drive and requesting a report from a doctor and you do not comply, the DMV can suspend your driver's license until you do comply with the DMV's instructions and get an evaluation and report from a qualified doctor. In the meantime, you are not allowed to discover who made the report to the DMV or what the person said to the DMV about your medical condition and your driving. There are probably a few reasons for the confidentiality of this process, but I assume one of them is to encourage people to report family members without that family member knowing.

July 16, 2015

Examples of When the State Cannot Prove Constructive Possession in Florida

In Florida, there are a lot of drug cases and gun cases that involve the concept of constructive possession. Actual possession is when the police find a gun or drugs on a person i.e. in his pocket, in his hand, in his waistband, sees him throw the drugs on the ground. Constructive possession is a lot more vague. The state can convict a person of a possession of drugs or gun charge based on constructive possession. However, it can be more difficult.

In layman's terms, constructive possession means the illegal item(s) is in a place where it is sufficiently clear the suspect knew it was there and had some control over it. In other words, the state needs to present sufficient evidence for a jury to believe the defendant knew about the item(s) and either put it there or had the ability to remove it. The state does not, however, have to prove the defendant actually did place the item there or intended to take it away at some point.

Again, it is vague, but some examples might help clarify it. Of course, ultimately, it is up to a judge or jury to decide.

If you go to a big party and you see marijuana on the table a few feet away but never touch it or do anything with it and the police come in, you are not in constructive possession of those drugs. The state could probably prove you knew it was there, but they could not prove you have any control over it, just like most other people at the party. it is not illegal to be in the presence of illegal drugs, although it is not a good idea either as anything can happen in these constructive possession cases.

If you live in an apartment with two roommates and the police search it and find a bag of cocaine in a clothes drawer, you might have a problem if it can be proven that it is your room and your drawer of clothes. For instance, the police might present evidence that your wallet and personal documents were in the room and the shirts in the drawer appeared to be your size and there are other indications that the room belongs to you. Of course, you can argue that a roommate or someone else put the drugs there without your knowledge, but nothing says a judge or jury has to believe that. In this case, you might win, but there would probably be enough evidence to establish knowledge and the ability to control the cocaine.

In a recent case near Jacksonville, Florida, the police searched some property including a vehicle that was on the premises. Several people were also on the premises at the time. Upon searching the vehicle, the police found a gun in the closed center console. They also found a recent rental car agreement for the car in the defendant's name right next to the gun in the center console. Since the defendant was a convicted felon, he was arrested for possession of a firearm by a convicted felon based on this evidence.

The defendant was actually convicted at trial, but fortunately for him, his criminal defense lawyer appealed, and the conviction was reversed. The court found that the rental car agreement next to the gun was not sufficient to prove possession. The rental car agreement was proof that the defendant rented the car, but it was not clear when the agreement was placed in the center console and when the gun was placed there. It was certainly possible that one of the other people at the property, or anyone else, drove the car or was in the car at some point and put the gun in the center console after the rental agreement was placed there. This case might have ended differently if the defendant was in the car at the time the police found the gun, particularly if the center console was open, but the fact that the defendant rented the vehicle did not mean he knew everything that was in the car days later, especially if the illegal item was not out in the open.

July 13, 2015

When Can Oral Communications Be Secretly Recorded in Florida?

With cell phones that have the capability to record audio and video, people record other people's communications all of the time. However, that may not be legal in Florida. There is a statute that addresses this issue, but its interpretation is not clear. The Florida statute basically says it is illegal to record another person's conversation without that other person's knowledge and consent. This means you cannot call someone on the phone and record the conversation without telling the other person you are recording the conversation and getting his/her agreement. There are exceptions to the rule, and it is not exactly clear how the exceptions apply.

Of course, as indicated, knowledge and consent of the other party makes recording legal. Also, there is a legal exception for law enforcement officers to intercept an oral communication when the officer is a party to the conversation and for law enforcement to record a conversation involving other people if one of the parties agrees and it is for the purpose of obtaining evidence for a criminal case.

Based on this, it is clear that the police are permitted to record a conversation between Person A and Person B if Person A knows about the recording and agrees to it and the purpose is to discover evidence for a criminal case. This is what is commonly known as a controlled call. The police often use this technique to have a trusted friend or family member who is working with the police call a suspect and try to get the suspect to make incriminating statements while they record the call. As long as the suspect's friend agrees to the recording, it is legal even though the suspect obviously will not be told of the recording or the police involvement.

The question is whether the requirement that the recording be for the purpose of obtaining evidence in a criminal case also applies when the conversation includes the police officer rather than just two or more lay people. The statute is not clear. A recent Florida appellate court case discussed this issue. The appellate court determined that the criminal evidence qualifier does apply to recordings that involve either private citizens together or police and private citizens. In other words, the police must be able to establish a purpose of uncovering evidence in a criminal case if they are going to secretly record a conversation only involving lay people or a conversation between a suspect and a police officer.

One other factor that could alter this conclusion. The prohibition of recording oral communications only applies when the suspect being recorded has a reasonable expectation of privacy. Phone calls would almost certainly qualify. However, discussions that take place in public or with several other people around may not be protected from recording by the Florida law because they are not deemed to be private.

July 10, 2015

State Cannot Use Breathalyzer Test Results Against Defendant in DUI Case Where Independent Blood Test Was Requested

In Florida, when a police officer makes a traffic stop and claims he/she observes evidence of impairment from alcohol, that officer will initiate a DUI investigation. This usually starts with questions about where the driver has been, how much the driver has had to drink and other questions about the driver and his/her activities. The driver, of course, is free to request a lawyer and refuse to answer those questions. Next, the police officer will request that the driver submit to field sobriety tests. Again, the driver is free to refuse to submit to those tests. The driver should probably refuse to submit to those tests if he/she has any health/physical issues and/or the police officer does not have a video camera in his/her vehicle that accurately, objectively and completely records the driver's performance of those tests. Sometimes, even when there is a video camera, it is difficult to observe exactly how the driver performs on some or all of the field sobriety tests. In that case, the driver is at the mercy of the police officer's subjective opinions as to his/her success. This can be due to the placement of the car in relation to the test location, the lighting and the obscure nature of the tests themselves.

After a DUI arrest, the police officer will ask the driver to submit to a breathalyzer test which tests the driver's blood alcohol level. The driver can refuse this test, but it is important to note that when a person in Florida agrees to accept a driver's license, he/she impliedly consents to submit to a breathalyzer test after a valid DUI arrest. If the driver decides to refuse the breathalyzer test, that driver is subjected to a longer driver's license suspension and could have the refusal used against him/her if the DUI case goes to trial.

However, some people do not necessarily trust the government with their lives and well-being. They might agree to submit to a breathalyzer test, but request an independent blood test that is not provided by the police. In this situation, the driver should politely and clearly request an independent blood test. Under Florida law, a person arrested for DUI whose breath is tested has a right to request an independent blood test. Of course, most people do not drive around with a lab technician who is prepared to test blood for alcohol. Likewise, the police are not likely to let the suspect who is under arrest leave to get a blood alcohol test and return later.

Therefore, the Florida courts have held that if a person whose breath has been tested requests an independent blood test, the police have to take reasonable steps to allow that independent test to occur. This would include a phone call and transportation to a place that could conduct such a test. If the police refuse the request for an independent blood test or do not take reasonable steps to assist the suspect in obtaining the independent blood alcohol test, the state's breath alcohol tests would likely be thrown out and unavailable to be used as evidence against the driver in court.

June 15, 2015

Defendant in Florida May Not Be Charged With Drug Possession if Drugs Found During Overdose

There is a law in Florida that is not well known that protects people from drug charges if police find drugs while assisting someone during a medical emergency due to a drug overdose. A Florida statute provides immunity from prosecution for a person who is experiencing a drug overdose and is in need of medical attention if the police find evidence of the drug possession crime as a result of the overdose and medical attention.

For instance, suppose a person uses a drug like cocaine or heroin and becomes seriously ill so that someone calls 911 for medical attention and the police arrive. If, in the process of assisting the person, the police find cocaine or heroin or any other evidence of illegal drugs, this law protects the person from arrest for the drug charge. If the police officer, who may not be familiar with this law in Florida, does decide to arrest the person, the criminal defense lawyer can file a motion to dismiss the drug charge based on this immunity. The police can take a person into protective custody who needs emergency medical attention due to drug abuse. However, this cannot lead to criminal prosecution if drugs were found during the medical treatment.

This protection does not help everyone who is feeling the effects of drug abuse. If a person is clearly impaired from drugs and someone calls 911 for an ambulance, that does not automatically trigger the immunity from prosecution. Ultimately, it would be up to a judge to decide, but the criminal defense lawyer would have to establish that the defendant was more than just high or intoxicated. The criminal defense attorney would have to establish that the defendant was experiencing a serious medical emergency when the evidence of the drugs was found. Presumably, this evidence would be presented by way of medical records and witness testimony, if applicable.

June 3, 2015

Police in Florida Generally Need a Search Warrant to Obtain Real Time Cell Phone Information

Most people are aware that cell phones have GPS data that allows a cell phone provider to track and determine the location of the cell phone. This can be valuable information to police officers who are looking for a cell phone, or a suspect, at any given time. Do police officers need to get a search warrant to be permitted to obtain this GPS information from the cell phone provider?

In a recent case near Jacksonville, Florida, a drug deal went bad, and a shooting occurred. The victim contacted police and told them the suspect fled with a cell phone. The police officers contacted the provider for the cell phone and filled out a form claiming it was an emergency and they needed the real time location data for the cell phone. The police did not get a search warrant for the cell phone provider; they merely filled out the form requesting the information. The cell phone provider complied, and the police found the suspect within a couple of hours. When the police found the suspect, they also found the gun used in the shooting, and the suspect was arrested for murder, drug crimes and gun crimes.

The criminal defense lawyer filed a motion to suppress the seizure of the gun arguing that the police illegally searched the cell phone information which led to the suspect which led to the gun. The court agreed. A person does have a reasonable expectation of privacy in his/her real time cell phone information. As a result, the police need probable cause and generally need a search warrant to obtain this information. Because they did not get a search warrant here and relied on a form that is not approved and signed by a judge, the search was considered illegal.

There is a fairly common exception to a situation like this. If the police can establish exigent circumstances, i.e. there is an emergency and they need the information quickly, they could bypass the search warrant requirement. For instance, in this case, the prosecutor argued that the suspect was likely armed and dangerous so they needed to find him as quickly as possible. The court agreed with this argument, but in order to bypass the search warrant requirement, the state also would need to establish that they did not have time to get a search warrant. Since the state failed to establish how long it would take to get a search warrant and that extra time created or exacerbated an emergency situation, the state did not meet its burden under the exigent circumstances exception.

May 30, 2015

Police in Florida Cannot Enter Secured Property for Investigation Based on Anonymous Drug Tip

The right to privacy in one's home and on one's property is one of the strongest rights in the Constitution. The police are not allowed to come into one's home and search or ask questions without consent from the resident or a valid search warrant. The fact that the police in Florida have an anonymous tip that a resident is growing marijuana plants or engaged in any other illegal activity does not change that.

However, if the police do get an anonymous tip of illegal activity and it is not sufficient for a search warrant, the police can normally walk up to the suspect's front door, knock and see if the occupant(s) will answer questions or let the police in to investigate. In this way, the police are entitled to the same access as any of member of the public who can walk up to a person's door and knock.

One exception is if the front door is not easily accessible. For instance, if there is a fence surrounding the property or the home is otherwise enclosed or secluded in such a way that it is apparent that the occupant(s) does not want people to be able to freely walk up to the door, the police cannot go through a fence or intrude onto the property without consent or a search warrant.

In a recent case near Jacksonville, Florida, the police received an anonymous tip that the homeowner was growing marijuana plants inside his house. The house was surrounded by a chain link fence and a locked gate. The property owner also had a "no trespass" sign on the gate. This was clearly a homeowner who did not want people coming onto his property without permission. However, the police went through the gate, knocked on the front door and ultimately found marijuana plants on the property. The defendant was charged with manufacturing marijuana.

The criminal defense lawyer filed a motion to suppress arguing that the search was illegal as the police had no legal right to walk upon the property. The court agreed. The police can walk up to someone's door to knock and ask questions if there is free and easy access to the door. Of course, the occupant is entitled to not answer the door, refuse to answer questions or refuse to let the police come inside. However, if it is apparent that the homeowner has blocked access to the property and reasonably expects that the property be kept private from visitors, the police would not be permitted to enter the property to search, investigate or even knock on the door to ask questions. If they do and find drugs or other evidence of criminal activity, that evidence is likely to be thrown out of court.

May 27, 2015

You Can Be Pulled Over If You Have a Trailer Hitch or Anything Else Obstructing Your License Plate in Florida

A lot of serious criminal arrests are the result of simple, seemingly harmless traffic stops. Many drug cases and gun cases originate from simple traffic violations that lead to traffic stops that lead to criminal investigations and searches and seizures. Of course, most DUI arrests are also the result of simple traffic stops.

In a case near Jacksonville, Florida, the defendant was driving a vehicle with a trailer hitch. A police officer driving 25 feet behind him noted that he could not read the defendant's complete license tag due to it being partially blocked by the trailer hitch. For that reason, the police officer pulled the defendant over. After some investigation and a search of his vehicle, the police officer arrested the defendant for possession of marijuana and possession of cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana and cocaine alleging that the police officer did not have a legal basis to stop the defendant based on a partially obscured tag caused by a trailer hitch. Florida law provides that all vehicles must be properly licensed and all of the letters and numbers on the license tag must be clear and free from any obscuring matter so they can be plainly visible and legible at least 100 feet from the vehicle. The criminal defense attorney pointed to a prior case which interpreted this law to mean that the license plate itself cannot have anything on it that would obscure the letters or numbers. Therefore, a trailer hitch, which is not actually on the license plate, would not violate this law. However, the court in this case, which has precedence over Jacksonville, Florida, held that the intent of the law is that the license tag must be clearly visible from at least 100 feet away. If something is blocking it, either on the actual license plate or external to the license plate, the law is being violated. As a result, the court found that the initial stop was valid due to a partially obscured license plate, whatever the reason for the obscurity may have been.

Based on this ruling, people need to be aware that if anything is obstructing a police officer's vision of any letters or numbers on a license plate, whether it is on the license plate, in front of the license plate or something being towed by the vehicle, a police officer has a legal right to make a traffic stop.

May 24, 2015

Necessaity Can be a Defense to Criminal Traffic Charges in Florida

In Florida, the defense of necessity may be available for a defendant charged with a variety of criminal charges. When using this defense, a defendant is basically saying that he/she did commit the crime, but did so because it was necessary due to some urgent circumstances. The necessity defense has a few conditions that must be met: 1) the defendant reasonably believed the criminal act was necessary to avoid imminent death or serious injury to him/herself or others, 2) the defendant did not intentionally put him/herself in the position that resulted in the need to take action, 3) the criminal act was the only adequate method to avoid the problem, 4) the harm to be avoided was more serious than the criminal conduct, and 5) the defendant ceased the criminal conduct as soon as the threat dissipated.

There are situations where a necessity defense would be a valid defense. If a person needed to drive while impaired or with a suspended license to get a person with a serious and emergent health problem to the hospital, that might qualify. However, this defense often fails with conditions one and three.

For example, in a recent case near Jacksonville, Florida, two guys went out to a bar. One of them got too drunk to drive, and the defendant had a suspended driver's license. The defendant decided to drive home. He was stopped by police and arrested for driving with a suspended license. His criminal defense attorney tried the necessity defense to defend the case. It failed. The problem with condition number one was that being drunk is not a threat that involves the risk of imminent death or serious bodily injury. If the friend was so drunk that he was getting seriously ill, this condition might have been satisfied. However, just being too drunk to drive did not qualify. The problem with condition number three was that there were other reasonable and adequate alternatives, such as walking, calling a friend for a ride or calling a taxi. Because this defendant's necessity defense did not come close to satisfying those two conditions, the defendant was convicted of driving with a suspended license. Likewise, if the drunk guy drove because the defendant's license was suspended and he got arrested for DUI, his necessity defense would have failed for similar reasons.

May 21, 2015

Collection of DNA May Toll Statute of Limitations in Lewd and Lascivious Battery Cases

In Florida, the state must commence prosecution of a suspect within a certain period of time from the date a crime is committed or reported. That period of time is referred to as the statute of limitations. It provides that the state must prosecute a suspect within a certain period of time, and if they do not, the state can never prosecute the suspect for that crime. The idea is that a defendant has a constitutional right to properly defend him/herself, and if the state unreasonably delays in bringing its case against the defendant, it could impair the defendant's ability to defend the case. Witnesses forget, they move away, they pass away and evidence can be difficult or impossible to obtain as time passes.

There are various factors that can toll a statute of limitations. This means that the time period can be stalled, or the clock can be stopped, if one of these factors exist. For instance, if the defendant leaves the state of Florida and the police cannot find him/her despite their due diligence, this could toll the statute of limitations. Additionally, in some cases, like fraud cases, the victim is not aware that he/she has been defrauded until much later so the statute of limitations may not start until the victim knows or should have known that he/she has been a victim of fraud. In sex cases, collecting DNA can toll the statute of limitations until it can be tested.

In a recent case near Jacksonville, Florida, a fifteen year old girl gave birth, and a thirty year old guy was listed as the father. Since it is illegal for a 30 year old guy to have sex with a 15 year old girl, the police started a lewd and lascivious battery investigation. The father/suspect fled, and he could not be located to be interviewed or arrested. As a result, the police moved the case to the inactive list. Every now and then, they would look at the case in an attempt to find the suspect. The statute of limitations on the lewd and lascivious battery case was three years. More than three years later, the police found the suspect and took a DNA sample from him. They also took a DNA sample of the child and found a match. The suspect was arrested.

The criminal defense lawyer filed a motion to dismiss the charge based on the passage of the statute of limitations. While the statute of limitations is three years, it can be tolled if the police tried to find the suspect and collected DNA during the original investigation to preserve it and make it available for testing later. The problem was that the state failed to do this. They obviously could not get the suspect's DNA early on because they could not find him. However, they could have, and should have, collected the child's DNA for later comparison during the initial investigation. There was no reason not to. Because they did not collect DNA for later testing when they found the suspect, the statute of limitations was not tolled. Because of this egregious mistake by the police, the statute of limitations ran, and the state could not prosecute the defendant. The case was dismissed.

May 10, 2015

Assumptions and Police Officer's Super Human Eyesight Are not Sufficient for a Search and Seizure in Florida

In Florida, the police are not allowed to stop a person for a drug or other criminal investigation without reasonable suspicion that the person is engaging, just engaged or is about to engage in criminal activity. This reasonable suspicion standard requires more than just assumptions. There must be some specific evidence that reasonably leads a police officer to believe there is criminal activity afoot.

In a recent case south of Jacksonville, Florida, the police officer was at a gas station in the evening as it was getting dark and observed the suspect enter into a hand to hand transaction with another person in the parking lot. The police officer was about 30 feet away, but he said he could see the suspect give the other person a rolled up baggie. The police officer assumed it was marijuana based on the neighborhood and the nature and short duration of the transaction. As a result, the police officer stopped the suspect, searched him and found marijuana in his pocket. He was arrested for possession of marijuana.

The criminal defense attorney filed a motion to suppress the marijuana evidence arguing that the police officer did not have a reasonable basis to stop the defendant. The judge agreed. While the police officer was correct that the transaction did involve marijuana, learning this after the fact cannot be a basis for a prior search. The police officer must be able to point to specific facts indicating criminal activity before he/she stops a suspect. In this case, the police officer was too far away to see or smell marijuana. He was just relying on assumptions based on limited information. Short, hand to hand transactions in questionable neighborhoods may mean drug deals, but they also might mean something else. That alone is not sufficient to permit a search and seizure. Because the police officer did not rely on sufficient facts indicating criminal activity, the stop was unlawful, and the resulting search was unlawful. As a result, the marijuana charge was thrown out.

May 7, 2015

People on Probation in Florida May Have Reduced Constitution Rights Regarding Searches and Seizures

Most people in Florida enjoy the Constitutional protections that prevent the police from searching a person's home, vehicle or other belongings without probable cause, a search warrant and/or consent. In other words, police cannot just go and enter a person's home or search something that belongs to a person without respecting certain Constitutional safeguards, which generally require a search warrant or an agreement from the owner of what is being searched.

However, people on probation in Florida do not necessarily get the full protection of these Constitutional provisions. When a defendant pleads guilty or no contest to a criminal charge or is found guilty after a trial, the judge will sentence the defendant. That sentence often includes probation, either by itself or after a term of incarceration. When a defendant goes on probation, there are certain conditions that must be followed. There may be specific conditions in certain cases, such as paying a certain amount for restitution in a fraud case, and general conditions that apply to most or all cases. One of the general conditions of probation that is often ordered in Florida is one that allows a probation officer to enter the probationer's home to search it for drugs, weapons or other indicia of criminal activity. While a probation officer or law enforcement officer would not normally be allowed to enter a person's home and look around without a search warrant or permission in advance, a person on probation does not have that same protection if a random search was included as a condition of probation. If the probation officer randomly searches a probationer's home and finds anything illegal, that probationer could face new charges and a violation of probation charge without being able to successfully challenge the search and get the evidence thrown out.

In a recent case near Jacksonville, Florida, a defendant was sentenced to probation after being convicted of a violent crime. A general condition of probation allowed the probation officer to enter his home any time to search it. These general conditions of probation are often not disclosed to the defendant in court during the sentencing hearing. A defendant may have to carefully read his/her sentencing paperwork to see that the condition exists. Many do not bother to do that.

In this case, the probation officer and a police officer showed up at the probationer's house very early in the morning without notice and came in for a search. They found a gun and drugs inside. As a result, the subject's probation was violated, and he faced new charges for the drugs and gun since he was a convicted felon. The defendant's criminal defense lawyer tried to challenge the random, unannounced search, but the courts allowed it since he was on probation, and it was a condition of his probation.

This does not mean that the police and/or a probation officer has free reign to search a probationer's home as often as, whenever and however they want. Any search must be reasonable in its scope and method. However, it is fairly clear that periodic, random searches without notice will be allowed in these situations where a person is on probation and such searches as allowed as a condition of that probation.