July 8, 2016

Can the Judge in a Florida Criminal Case Order Sex Offender Therapy for Defendant Not Convicted of Sex Offender Crime?

In Florida, there are certain crimes that require a judge to sentence the defendant to sex offender therapy if the defendant is convicted of the crime, i.e. either enters a plea of guilty or no contest to the charge or is convicted of the charge at trial. Normally, these sex offense crimes are serious felonies like lewd and lascivious molestation of a minor. A conviction for such an offense will likely result in not only sex offender therapy but prison time and sex offender status which mandates that a person goes on the sex offender list for life.

What if a defendant is convicted of a crime that is not one of the enumerated sex offenses under Florida law, but the state or the judge still wants to require the defendant to participate in sex offender therapy while on probation?

In a sex case near Jacksonville, Florida, the defendant was charged with lewd and lascivious molestation and went to trial. A conviction of that charge would have resulted in a sentence of sex offender therapy (likely after a prison sentence) and sex offender status for life. The jury found the defendant not guilty of the lewd and lascivious charge but found the defendant guilty of a lesser included offense. A lesser included offense verdict occurs when the jury finds that there is not sufficient evidence to convict a defendant of the main charge, but the jury finds the defendant's conduct did rise to the level of a less serious crime. As a result, the jury will find the defendant guilty of the less serious charge. In this case, the less serious charge the jury decided on was battery, which is a misdemeanor. A battery also does not have any sex offense connotations. Molesting a minor will always also be a battery, but a battery usually does not involve sexual molestation.

After the verdict on the misdemeanor battery charge, the judge sentenced the defendant to complete sex offender therapy while on probation. The criminal defense attorney appealed arguing that the judge could not sentence the defendant to sex offender therapy since the defendant was not convicted of a sex offense.

The Florida Supreme Court ruled that the Florida statutes do not prohibit a judge from sentencing a person to sex offender therapy for an unlisted charge just because the statute lists certain crimes that require the therapy. The Court noted the broad discretion judges have in imposing sentences upon defendants after conviction. However, the sex offender therapy condition has to be reasonably related to facts of the case and the crime of conviction. A judge would not be able to force a defendant to undergo sex offender therapy after a DUI conviction, but if the facts illustrate some issue with sexual misconduct, such a sentence would likely be legal.

July 3, 2016

In DUI Cases, Police in Florida Can Force a Breath Alcohol Test Without a Warrant but not a Blood Alcohol Test

When a driver is stopped by the police and the police officer initiates a DUI (driving under the influence of alcohol or drugs) investigation, the police officer will almost always ask the driver to submit to a breathalyzer test. The breathalyzer machine is designed to measure the amount of alcohol in one's system. The legal limit in Florida is 0.08. What many people do not realize is that the police only offer the breath alcohol test or the blood alcohol test at the jail after the driver has been arrested for DUI. Therefore, it is fairly obvious that the police are not seeking the breath or blood alcohol test as part of an objective determination into whether the driver is impaired; the purpose of the breath or blood alcohol test is for the police to try to obtain additional evidence to support the DUI prosecution. In other words, no one is getting "un-arrested" after a favorable breathalyzer reading. The police officer has already concluded that the driver is guilty of DUI as a result of the arrest he/she has already effected.

While a person gives his/her implied consent to submit to a breathalyzer test when he/she agrees to accept driving privileges in Florida, some people refuse the test when the time comes. Some people do not trust a system that offers the test only in the jail after the arrest for a DUI and do not trust a police officer who did not trust a driver who claimed to not be impaired. Can the state require a person to give a breath or blood sample without a warrant if the driver refuses and punish a person for that refusal? Yes and no.

A recent United States Supreme Court case looked at two situations where drivers refused a breath test and a blood test and the state (not Florida) charged them with separate crimes for the refusal. If a person has a right to refuse a breath test and/or a blood test under the Fourth Amendment, then the state cannot prosecute someone for the refusal.

The Supreme Court held that the state does have a right to require a breath alcohol test without a warrant but not a blood alcohol test. Essentially, the Court noted the difference between blowing into a machine and being subjected to a needle and blood draw. The former is fairly unintrusive while the latter is quite invasive. Because the state has an interest in making sure people are not driving while impaired from alcohol, given the potential danger to the community, the Court will allow the state to intrude on a person without the need for a search warrant to further that interest. However, the intrusion is limited, and it ends before the state has a right to take blood from someone to test alcohol content without a warrant.

In effect, the police are not likely going to force someone to blow into the breathalyzer if a person refuses as part of a DUI investigation. But, this does allow the state to impose consequences for a breath alcohol test refusal, including charging a person with a separate crime. The state cannot bring similar charges for refusing a blood alcohol test.

June 30, 2016

Inching Closer to the Legalization of Marijuana

As criminal defense lawyers in the Jacksonville, Florida area, we still spend too much time and effort dealing with criminal cases and probation violations involving marijuana. It is a tremendous waste of taxpayer money and government resources, notwithstanding how completely ineffective the war on drugs continues to be. Some law enforcement agencies admit the obvious here and are not necessarily opposed to legalization efforts. Others are more stat oriented and realize how much easier drug arrests and prosecutions are than investigating and prosecuting more serious and complex crimes and continue to be opposed to legalization. Job security and taking the easy road are strong motivators.

In any case, the legalization movement forges ahead. Voters in California will be able to vote on marijuana legalization in November once again. They screwed it up last time, but most people agree that it is a matter of when, not if, this will pass in California. And once it takes hold in California and people see that civilization will survive, taxpayers will not be wasting as much money on the war on drugs carousel and money will be raised for positive causes through taxation (as in places like Washington, Colorado, Alaska and Oregon), legalization will continue to move forward in other states.

One problem facing legal marijuana businesses is that they do not have access to the same banking services afforded to other businesses. As a result, they cannot accept credit cards and other convenient forms of payment. They are primarily cash only businesses. This is the case because marijuana is still illegal under federal law and banks are not willing to risk federal criminal prosecution to serve the marijuana industry.

Like most, if not all, aspects of the war on drugs, this is foolish and counterproductive. Forcing these shops to operate cash only businesses makes them prime targets for robbers. Maybe that is the point- people against marijuana legalization would not mind seeing some armed robberies or violence associated with legal marijuana shops so they can point to how dangerous marijuana shops are. However, there is a bill moving through the Senate that would essentially prevent the federal government from punishing banks for working with marijuana businesses that are operating legally in their states. It is hard to say whether this bill, or a similar bill, will pass any time soon, but this situation with the banks and marijuana businesses is untenable. You cannot have businesses operating openly and legally on the one hand and banks prosecuted for providing routine financial services to them on the other hand. Of course, at the end of the day, politicians are largely controlled by the people with the money, and the banks have money. Once marijuana becomes a larger, more established industry in the U.S. (see California), the banks will want their cut and the politicians will fall in line, as they do.

Medical marijuana is legal in many states. It is farcically counter-intuitive that marijuana can be recommended for medicinal use by the people who are most qualified and experienced to make such decisions, i.e. doctors, yet marijuana is still considered a Schedule I drug, meaning it lacks any medical value, by the people who seem to be most ignorant and/or biased on the substance, i.e. the government. Since marijuana is still illegal under federal law and in many states, can a doctor get into trouble for recommending that a patient use it? No, a doctor's medical marijuana recommendation is protected by the First Amendment. This was decided by the Ninth Circuit Court of Appeals and affirmed by the United States Supreme Court.

However, some doctors are still hesitant to prescribe marijuana for patients who would benefit from it. Why? Once again, it is about the money. While the government cannot prosecute a doctor for prescribing marijuana to a patient, a doctor could lose his/her license or a medical practice could lose federal funding for doing so. To address this, a bill is moving through the Senate that would prevent the government from using federal funding to interfere with doctors who prescribe marijuana in states where it is legal.

Finally, but no less important, Microsoft has agreed to provide software that would help track marijuana throughout the entire life of the plant. This software would help with safety and compliance issues. With Microsoft entering the industry to provide what appears to be a valuable and important product, other businesses will surely follow, which will only add legitimacy to the movement.

Obviously, there is still a long way to go to get this issue to where it needs to be. However, in 2016 it appears there are several promising developments on multiple fronts that will stimulate some critical momentum.

June 17, 2016

Paying Back the Money in Government Benefits Fraud Cases Can Lead to Your Arrest in Florida

As criminal defense lawyers in Jacksonville, Florida, we handle a wide variety of fraud and theft cases in state and federal courts. A common criminal case we see is one where a person receives government benefits, such as unemployment benefits, without proper authorization. For instance, a person might misstate certain facts in the benefits application that allows him/her to receive the benefits when he/she really is not eligible under the law to receive them. Other times, a person may be entitled to receive the government benefits initially, but due to changed circumstances, such as a new job or a marriage that brings a second income into the household, the person is no longer eligible to receive the benefits but fails to disclose the new information to the government and keeps getting the benefits despite no longer being eligible.

In these cases, it is common for someone in the government benefits office to contact the recipient and alert him/her that there is a problem. If it is confirmed that the person is receiving benefits improperly, the government agency will often offer the recipient a deal by which he/she acknowledges the fraud and agrees to pay the unauthorized money back. This can be a good deal, but it can also create problems for the recipient. It can work out great if the recipient agrees to pay the money back over time, pays the money back according to the plan and then the government agency closes the case without ever alerting the police. However, it can be problematic if the person admits the fraud to the agency, agrees to a plan to pay the money back but then fails to make the payments for whatever reason. In this scenario, which is common, the government agency normally will then take the case to the police or the prosecutor in which case an arrest and felony charges are likely. Additionally, because the recipient has likely already acknowledged the fraud to the government agency and agreed to pay the money back, it becomes difficult to defend the criminal case by denying the fraud. Of course, as usual it depends on the circumstances of the particular case. We have also seen cases where a person has agreed to pay the money back, was making the payments according to the plan and law enforcement still became involved resulting in criminal charges.

Fortunately, the state and federal prosecutors are usually reasonable in these kinds of cases, as long as the amount of money is not too significant. They will normally consider the fact that the defendant tried to pay the money back, especially if there is a valid reason for not being able to repay the full amount. But, these are still serious felony charges, in most cases, and it is important that they are handled correctly. When they are handled correctly with an experienced criminal defense attorney, it is possible for the charges to get dropped or for the defendant to otherwise avoid a criminal conviction so his/her record can be cleared.

If you have been involved in any kind of fraud case, it is very important to know your rights and the best strategy to deal with the allegations. Feel free to contact us for a free consultation.

May 27, 2016

An Improper Promise Can Make a Statement Inadmissible in Florida

When the police in Florida believe a suspect committed a crime, they will often take steps to get that suspect to make admissions that can be used against the suspect in court. When the police take someone into custody and seek to get a statement from the suspect, the police have to read the suspect the Miranda warnings informing the suspect that he/she does not have to make any statement and has a right to a criminal defense lawyer. We advise people that it is almost always in a suspect's best interests to remain silent in those circumstances, as the Constitutional gives a person a right to do. It may be a good idea to talk to the police at some point, but it is generally smarter to do so once the suspect has a better idea of the allegations, issues and the process.

The police use a variety of tactics to get people to make statements that will incriminate themselves. However, not all such methods are legal. In order for a confession to be admissible in court, it must be voluntarily given. This does not just mean the police cannot beat a confession out of a suspect. It also refers to situations where the police use improper threats or promises to elicit a statement. In a recent robbery and attempted murder case near Jacksonville, Florida, the police were investigating a shooting and brought the suspect in for questioning. At first, the suspect denied any knowledge of the shooting. The police officers pressed the suspect and ultimately implied that if the suspect told the truth, as the police saw it, the suspect would likely face lesser felony charges. The suspect changed his story and admitted to involvement in the shooting.

The criminal defense attorney filed a motion to suppress the defendant's statement arguing it was not voluntary. The appellate court agreed. The police are not allowed to make improper promises of leniency to get the defendant to make a statement. Therefore, the police cannot suggest that the defendant would face lesser charges or receive some other benefit for making a statement.

The job of the police is to get evidence that they can use to make a strong case against the defendant. The stronger the state's case, the more leverage the state has to get a tougher sentence. Therefore, it is antithetical to think that offering the state more evidence to strengthen their case against you somehow translates into a lighter sentence for you. However, notwithstanding that obvious contradiction, it is also unconstitutional to offer a benefit for a statement as it affects the voluntariness of the statement.

May 23, 2016

Recorded Jail Call Leads to Drug Trafficking Conviction for Florida Inmate

When a person is arrested for a crime in Florida, he/she is taken to the local jail. If he/she cannot make bond, he/she will remain there until the criminal case is resolved. Inmates in the local jail generally have phone privileges, but they are informed that each call is recorded. In many cases, particularly the more serious cases and cases that are likely to go to trial, prosecutors will retrieve the jail call recordings in the hopes of finding incriminating statements made by the defendant. While all inmates know these jail calls are recorded by the state, it is amazing how often inmates say things during these jail calls that impair their cases.

As criminal defense lawyers in Jacksonville, Florida, we always inform our clients never to talk about their cases during jail calls. The risk of doing so drastically outweighs any benefit of having such a recorded conversation.

For example, in a recent drug trafficking case near Jacksonville, Florida, the defendant was charged with conspiracy to traffic in various controlled substances by ordering them off of the internet from a foreign country. The police were able to obtain a printout of all of the drug orders the defendant made from his computer. They were able to access his computer because the defendant called a friend from jail and gave the friend his computer username and password and asked the friend to access the site he used to order the drugs. The state obtained a copy of this recorded phone call and used that information to get into the defendant's computer.

The criminal defense lawyer filed motions to try and keep out the evidence of the defendant's purchase orders over the internet. However, the court rejected those arguments. The state was able to use the defendant's recorded jail call with his friend to show how the defendant was using his computer to bring in large quantities of drugs by purchasing them over the internet. Had the defendant not spoken about this in a recorded jail call, the state may have never come across this very incriminating evidence.

May 20, 2016

If You Refuse to Submit a DNA Sample to Police in Florida, Can the State Use That Refusal Against You in Court?

In Florida, most people know that their Fifth Amendment right to remain silent means that the state cannot normally use a person's silence in response to police questioning against them in court. However, does this same principle extend to a refusal to provide DNA?

In a recent murder case south of Jacksonville, Florida, the police responded to an apartment where they saw signs that the victim had been attacked. The police were able to collect DNA from the apartment which they believed came from the attacker. They went to question the defendant who was the ex-boyfriend of the victim. The police asked if they could take a DNA sample from the defendant (now done with a simple swab inside a person's mouth) to compare it to what they found in the apartment. The defendant refused to give a DNA sample.

The defendant was ultimately arrested for murder. The state tried to admit the evidence that the defendant refused to provide a DNA sample. They argued that the defendant's refusal was evidence of his consciousness of guilt. The trial court let the state admit the evidence. However, the case was reversed on appeal. The appellate court found it was particularly important that the police did not tell the defendant that if he refused to provide a DNA sample, that could be used against him in court, similar to Miranda warnings that are given. The defendant was given the impression that giving the DNA sample was optional, and if he refused, there would be no adverse consequences. Had the police made the proper disclosure to the defendant and he still refused, then the state would likely have been able to admit evidence of his refusal at the trial.

May 6, 2016

The Fifth Amendment Protects a Person's Right to Remain Silent Before Arrest and Before Miranda Warnings

Most people understand that everyone has a Constitutional right to remain silent. This is a right afforded to people in the Fifth Amendment to the U.S. Constitution and the Florida Constitution. As many people are aware, this means that the police cannot force you to give a statement or say anything that might be used as evidence against you in a criminal case. It also allows you to refuse to testify at a criminal trial. If you do exercise your right to remain silent upon arrest, after arrest or at trial, the state cannot use your silence against you. That means the state cannot imply during your criminal case or at trial that you remained silent because you are guilty. The state cannot make any suggestion to the jury about your decision to remain silent or why you made that decision.

One question that occasionally comes up is when this right to remain silent becomes relevant. It is clear that a person is protected by the Fifth Amendment upon an arrest, in all pretrial proceedings and at the trial. Does a person have the same protection before an arrest?

In a murder case near Jacksonville, Florida, the police responded to a shooting and found a dead body in the same house as the defendant. The police asked the defendant several questions about the situation, but the defendant did not answer. At this point, the defendant was not under arrest and had not been informed of the Miranda warnings which discuss the right to remain silent, among other rights. The defendant was ultimately arrested for murder. At the trial, the state put the police officer on the stand and asked him a variety of questions about how he asked questions of the defendant at the crime scene, but she remained silent. The state used this testimony to suggest her silence was evidence of her guilt. The defendant did not testify at the trial.

The defendant was convicted of murder, but her criminal defense lawyer appealed arguing that the Florida Constitution protects a person from having to make any statements even before an arrest and Miranda warnings are given. The Florida Supreme Court agreed. The Florida Constitution provides that no person shall be forced to be a witness against oneself in any criminal matter. This is considered a very significant right under Florida law and is broadly construed to favor the defendant. Normally, this right attaches upon an arrest, but Florida interprets its Constitution to protect someone even before an arrest or Miranda warnings. The Court found that the right to remain silent exists whether Miranda warnings are given or not. The fact that the police officer notifies a person of his/her right to remain silent does not activate that right or make it more effective.

In conclusion, the state in Florida cannot use a defendant's silence before arrest and before Miranda warnings at trial to suggest that silence is evidence of the defendant's guilt. It violates the defendant's Constitutional right to remain silent as it puts the defendant in a position to feel compelled to produce evidence to refute the implication of guilt, which is not Constitutional. However, if a defendant does testify at trial and the defendant's pre-arrest silence is inconsistent with that trial testimony, the state can likely use the pre-arrest silence to impeach the defendant at trial.

May 1, 2016

Florida Vehicular Homicide Conviction Based on Speeding Alone Reversed

In Florida, vehicular manslaughter cases are very serious. That seems obvious, but states and counties treat these crimes differently depending on how prosecutors' offices and judges view them. Vehicular homicide often involves a defendant who did not intend to commit a crime and has never been in trouble before doing something with the most tragic results. Some places view this as worthy of probation. Others view it as worthy of long prison sentences. In Jacksonville, Florida, they are most often viewed in the latter manner and come with significant prison sentences.

Most vehicular homicide cases involve a person who causes a crash that results in death while being impaired from alcohol or drugs. In that case, the police officer will investigate the driver at the scene, do field sobriety exercises if practicable, request a breathalyzer test after the arrest at the jail or request that blood be drawn for testing if the driver goes to the hospital.

However, the state can charge a person with vehicular homicide even if no drugs or alcohol was involved with the crash. The law in Florida distinguishes accidents involving negligence from those involving reckless driving. Negligence cases normally involve a driver violating one or two traffic laws resulting in a crash. For example, if a person was speeding, ran a red light or pulled out in front of another vehicle and caused a deadly crash, that is likely to be considered negligence. Negligent conduct results in traffic tickets and lawsuits but not criminal charges. If a person's driving goes beyond that kind of negligence and is particularly egregious, it can be considered reckless. For instance, driving 65 miles per hour in a 45 miles per hour zone and causing a crash is probably going to be considered negligence given how common speeding is. However, driving 85 mph erratically in a 45 mph zone in the rain certainly comes closer to recklessness and criminal behavior. Ultimately, the police decide if it is sufficient for an arrest, the prosecutor decides if it is sufficient to file criminal charges and a judge or jury decides if the defendant is in fact guilty of the crime.

In a vehicular homicide case near Jacksonville, Florida, a woman drove off the side of the road at a high rate of speed and hit a tree, killing her passenger. She was charged with vehicular homicide and convicted at trial. The criminal defense attorney appealed because it appeared the only evidence that she was reckless was her speed. There was no evidence that she was drunk or impaired from drugs. A accident reconstructionist for the state examined the evidence of the crash including the skid marks and gave the opinion that the driver was traveling at approximately 80 miles per hour in a 65 miles per hour zone. There was no other evidence of improper driving.

The vehicular homicide conviction was reversed. Reckless driving requires the driver to knowingly drive in a manner that is likely to cause death or serious bodily injury. That does not mean the state has to prove the driver intended to cause a crash or kill someone. The state must prove the driver intended to do something so dangerous that a deadly crash was likely. Intentionally drinking a lot of alcohol and driving or intentionally driving 100 mph in a 45 mph zone in the rain or in a residential areas with kids playing would likely qualify.

In this case, the court determined as a matter of law that speeding alone, especially when the speed was not too excessive, was not reckless. As a result, the state could not sustain a conviction for vehicular homicide without evidence of other reckless conduct.

April 28, 2016

If a Suspect in Florida Throws Evidence Away, it Becomes Abandoned Property and Fair Game for Police

It is pretty clear in Florida that a police officer cannot search a suspect for drugs or other evidence of illegal activity without a proper legal basis such as consent, probable cause or a valid arrest. A police officer might be able to do a quick pat down of a suspect if there is some evidence of criminal activity and that leads more evidence which can lead to a more thorough search. However, there has to be some specific information indicating criminal activity before a search can commence, unless the suspect agrees to a search. That applies to a person's body and clothes as well as his/her possessions. it does not apply to property that has been abandoned under the law.

As an example, in a trafficking in cocaine case near Jacksonville, Florida, the suspect was stopped by police while driving. After it became clear the police officer was investigating the suspect for a drug related crime, the suspect threw a small bag out of the car window. The police officer probably did not have a legal basis to search the vehicle or the suspect at that point, but he walked around the car and retrieved the bag which contained cocaine. The suspect was arrested for trafficking in cocaine. The criminal defense lawyer filed a motion to suppress the bag of cocaine arguing that the police officer did not have probable cause to search the vehicle or the bag that came from the vehicle. The court disagreed. Once the suspect threw the bag away from the vehicle, under Florida law, that bag became abandoned, and the police have a right to search abandoned property.

This comes up in other situations as well. One common scenario occurs when the police believe a suspect is growing marijuana or otherwise manufacturing drugs in his/her home. The police will often go through a person's trash outside to see if they can find discarded items that are commonly used to manufacture drugs. As long as the property is trash and the police do not have to enter a person's property to retrieve it, this is normally considered abandoned property that police can search and seize without a search warrant. Of course, the police cannot go into your house or garage or otherwise trespass on to your property to take your trash, but if you leave a trashcan out on the curb for pickup, that is something the police can likely go through.

April 25, 2016

Police in Florida Interrogating a Suspect Have to Alert Suspect That His/Her Attorney is Present

Most people in Florida are aware of the fact that when the police take someone into custody, that person has a right to remain silent and not talk to the police and have a right to an attorney before or during any discussion with police. The police are required to notify a suspect of these rights before taking any statement from a suspect in custody. However, there are times when the police are investigating a crime and ask a suspect to come to the police station and voluntarily speak to the police. If the suspect agrees, that suspect is likely not considered to be in custody, and the police do not have to read the suspect his/her rights about remaining silent and having an attorney. Many suspects do voluntarily speak to police and give incriminating statements without ever hearing their Miranda rights because they were not technically in custody. However, an incriminating statement made to the police is equally detrimental, whether the suspect was previously arrested or met with the police voluntarily and without being in custody.

A situation sometimes arises when a suspect is speaking with the police and his/her lawyer shows up or calls the police department to try and talk to the suspect/client or stop the questioning altogether. Do the police have to alert the suspect that his/her lawyer is outside or calling on the phone wanting to speak wit the suspect? Does it matter if the suspect never exercised his/her right to remain silent and request an attorney?

On legal shows on TV, you often see a police officer interrogating a suspect and then his/her lawyer barges into the room to stop the questioning. It does not work that way in real life. No lawyer is getting back to the interrogation room without one or more police officers letting the lawyer get back there. More likely, and how it seems to work in Jacksonville, Florida, the lawyer calls the police department or walks into the reception area and is told he/she cannot have access to the client, and the questioning continues.

That is no longer legal. A recent murder case south of Jacksonville, Florida decided by the Florida Supreme Court dealt with a murder suspect who voluntarily came to the police station to speak with the police. In the meantime, his parents hired a criminal defense lawyer who was told the suspect was giving a statement to police so he immediately went to the police station. The attorney asked to see his client, but he was denied. The suspect was not told that a criminal defense lawyer had been hired and was present at the police station. Shortly thereafter, the suspect confessed to the murder.

The criminal defense attorney filed a motion to suppress the confession arguing that the defendant was denied his due process rights since the police did not tell him his new lawyer was outside and requesting to speak with him. The motion was denied, but the issue made its way to the Florida Supreme Court. That Court held that the police have to tell the suspect that his/her criminal defense lawyer is present and wants to speak with the client. Then, the suspect has a right to stop the interrogation and consult with his/her criminal defense attorney. If the police fail to do this, the statement will be suppressed.

This is now the proper procedure whether the suspect is in custody after an arrest or came to meet with the police voluntarily. It is also the proper procedure whether or not the suspect himself requests a criminal defense lawyer prior to finding out a criminal defense attorney has been hired for him/her and is present.

April 22, 2016

Florida Injunctions Against Domestic Violence Do Little To Prevent Violence

A recent story out of Seminole County, Florida has made headlines spotlighting the ineffectiveness of injunctions for protection against domestic violence in cases where the respondent has no regard for human life. Henry Brown killed his wife, two children, and himself in a domestic dispute after a judge issued an injunction for protection against him. The injunction specifically ordered that Brown turn over his firearms to law enforcement. He used those same firearms to murder his family and to take his own life. SLG Parnter John Gihon spoke to News 13 Orlando about violations of injunctions. You can read the story here.

The question is what could have been done to prevent this senseless and brutal act? Unfortunately, injunctions are usually not the answer. Any person who violates an injunction for protection against domestic violence in Florida is guilty of a first degree misdemeanor. The maximum penalty for a first degree misdemeanor is one year in jail. Very rarely will anybody with little or no record receive a length jail sentence. But the real problem is that a person who is so filled with rage that they are willing to kill children and themselves are not going to be deterred by an injunction and threat of up to 1 year in jail.

But what about the guns? What if law enforcement proactively went and retrieved Henry Brown's guns after the injunction was set in place. Unfortunately, the sad and unfulfilling answer is that this just simply is not practical and has very little correlation to potential violence. First, a determined person will find other firearms or other means to achieve his or her sinister desires. Second, countless injunctions are issued everyday throughout the State with varying degrees of conduct underlying each case. Law enforcement doesn't have the manpower to determine whether the respondent has firearms, determine how many firearms respondents have, and enforce them turning over those firearms. The same argument could be made for DUIs or other crimes. If a person's license is suspended for DUI, should law enforcement monitor that person 24 hours a day and 7 days a week to ensure that they don't drive? Regardless, if that person drives while impaired and kills an innocent victim, people will question why that person was able to drive in the first place. It just simply isn't practical to proactively enforce each provision of an injunction.

So how are violations of injunctions enforced? The sad truth is that it is often the victim reporting the violation to law enforcement that will enact a violation of injunction investigation. Often times, like in the case of Henry Brown, it is too late by then and the damage has been done.

Are Injunctions useless? No. Absolutely not. In cases where the respondent has something to lose that they are afraid of losing, like their liberty, their children, their job, or their money, an injunction can provide a victim of domestic violence with relief from badgering, verbal abuse, insults, potential for physical confrontation and other forms of violence. In the vase majority of cases, both sides want to stay away from each other. The injunction sets the terms of their separation.

There is a dark side to injunctions as well. It takes almost no evidence to obtain an injunction. Judges often want to issue the injunction as quickly as possible and many times will put pressure on the respondent to concede to the injunction. Injunctions are used as weapons in divorce proceedings and child custody battles. Unwitting people often concede to injunctions because they don't want to go near the petitioner, but they don't realize that they are giving up certain rights.

The moral of the story is that injunctions can be effective tools to protect true victims of domestic violence when the respondent has something that he or she doesn't want to lose. However, injunctions can also be misused and will have no effect on a person so enraged that they are willing to kill and to die to satisfy that rage.

You can read more about Violation of Injunctions in Florida here.