August 22, 2016

Florida Court Finds That Police Pressing Key Fob is Not an Illegal Search

In Florida and elsewhere, people have privacy rights in their vehicles. This means that the police generally cannot search a person's vehicle for drugs or other evidence of criminal activity without consent from the owner or a search warrant. There are some exceptions to this general rule, but the police cannot just go into a person's vehicle and search it in almost any situation.

Vehicles are more advanced now, and rather than having the traditional key that is placed into the lock to open a vehicle like a regular door, many cars come with key fobs that can open a vehicle by pressing a button. Additionally, many key fobs have a button that can be pressed that will cause the vehicle to honk so the owner can find it in a crowded parking lot.

In a possession of cocaine case south of Jacksonville, Florida, the defendant was arrested for a public disturbance. The police officer searched the defendant after the arrest. Police officers are allowed to search people immediately after an arrest to make sure a person going to jail does not have any weapons or anything else that would be a threat to the police officer or anyone else. When the police officer searched the defendant, he found a key fob. The police officer pressed a button on the key fob, and the defendant's vehicle's alarm went off. The officer went to the vehicle and saw a bag of cocaine on the seat. The officer was able to see the cocaine in the vehicle by looking through the window. The bag of cocaine was ultimately seized, and the defendant was arrested for possession of cocaine.

The criminal defense lawyer filed a motion to suppress arguing that the police officer had no legal basis to press the key fob and look for the vehicle. He was right, but it was not a constitutional violation. A constitutional violation based on an illegal search or seizure only occurs when there has been an intrusion by the state upon a person or his/her private property and the person had a reasonable expectation of privacy in that property. In this case, the police officer lawfully obtained the key fob since it was found during a legal search incident to a lawful arrest. The court ruled against the defendant because the defendant did not have a reasonable expectation of privacy in the information provided by the key fob. In other words, the key fob merely informed the police officer as to the location of the vehicle in a parking lot. A person does not have a reasonable expectation of privacy in the location of a vehicle in a public parking lot. As a result, there was no unconstitutional invasion of privacy.

If the key fob caused the vehicle to make an alarm sound in a garage or some other private place that resulted in a police search, this case may have been decided differently. However, because the vehicle was in a public place, the right to privacy was not implicated here.

August 19, 2016

Police in Florida Could Not Prove Constructive Possession of Drugs Found in Hotel Room

For any type of drug possession case, there are two ways the state can prove the crime in Florida. The easiest way is with an actual possession case. Actual possession is what it sounds like. If a person is holding the drugs or has drugs in his/her pocket or is actually possessing the drugs in any other way, that is an actual possession case that is likely easy to prove. However, even if a person does not have actual possession of the drugs, the state can still prove a drug possession case. The other form of possession is called constructive possession. This can be proven when the state establishes that the defendant knew of the drugs and had some ability to control the drugs. For instance, I have constructive possession of the sunglasses in my car even though they are nowhere near me. I know they are there, I have the keys to the car and I am the only one who drives my car.

Constructive possession cases get difficult for the state when there are multiple people who have access to the drugs. For instance, in a possession of Methamphetamine case near Jacksonville, Florida, police responded to a suspicious person call at a hotel. They went to one of the rooms and knocked on the door. A man and a woman were inside. The police got consent to search the room and found Methamphetamine in a pocket of a jacket in the room. It was not clear if the jacket belonged to the man, the woman or someone else. There was also a syringe presumably used to shoot the drugs in the room. The police asked the woman if her DNA would show up on the syringe, and she said yes. She was arrested for possession of Methamphetamine and possession of drug paraphernalia.

This case was ultimately thrown out. The state could not prove that the woman had knowledge and control over the Methamphetamine to the exclusion of the other guy in the room or anyone else who could have been in the room before the police arrived. The state lacked evidence that the jacket belonged to the woman. It could have belonged to the man or someone else. The state did not get any statements tying the woman to the Methamphetamine or the jacket. There was no other meaningful evidence connecting the woman to the Methamphetamine or the jacket that was sufficient to prove possession. In other words, the state did not have enough evidence to prove that any one person possessed the drugs as opposed to any other person. In these situations, constructive possession cases fail. If the police had obtained a statement from the woman or a witness or fingerprints or something indicating the jacket belonged to the woman, they would have had a stronger case. However, if multiple people have access to the drugs and the evidence does not specifically point to one of those people, the constructive possession case will likely fail.

August 12, 2016

Claimant in Florida Forfeiture Case May Be Able to Get Fees and Costs From State For Improper Forfeiture

Many states have laws that allow the police and other law enforcement agencies to take a person's property with very little evidence of criminal activity. In fact, it is not uncommon for the police to obtain ownership of a person's property, referred to as forfeiture under Florida law, without ever even charging the property owner with a crime. It is also possible for the state to forfeit a person's property when the state does charge the person with a crime related to the property, but the defendant wins the case either by having the criminal charges dropped or winning at trial.

When the government makes the laws, the government makes the laws very favorable to themselves.

The forfeiture laws in Florida give the police and other law enforcement agencies a lot of authority to take the property of people they suspect are involved in criminal activity. The forfeiture laws are also set up to provide property owners few quick and efficient options to retrieve their seized property even when the evidence supporting the seizure is weak.

There is one remedy available to property owners who have had property unlawfully taken by the state. However, it comes very late in the process, and it is a difficult remedy to obtain. The following case illustrates how this remedy can work.

In a forfeiture case south of Jacksonville, Florida, the police were investigating the manufacture of marijuana. They executed a search warrant and found marijuana plants and other marijuana paraphernalia and growing implements in the house. They also found a small amount of marijuana and rolling papers in the suspect's vehicle. They arrested the suspect for manufacturing marijuana and also seized his vehicle for forfeiture. When a person has property seized for forfeiture, that person does have a right to a preliminary hearing within a relatively short period of time. However, many judges see this preliminary hearing as a rubber stamp, and very rarely do they dismiss a forfeiture case at that stage. In this case, the judge noted that the evidence for forfeiture of the vehicle was weak but allowed the forfeiture case to proceed. As a result, the police were authorized to keep the suspect's vehicle for a much longer period of time until the forfeiture proceedings played out.

Approximately two years later, the state finally conceded that they did not have sufficient evidence to prove the vehicle was used to facilitate the marijuana crime or was bought with proceeds from marijuana sales. As a result, the state had no legal basis to keep the vehicle. The vehicle was released to the suspect, but he lost the use of it for almost two years.

This was a common example of how the police can take a person's property to forfeit it with very little, if any, evidence to support the forfeiture under the law, but a claimant has very little recourse to remedy the problem for a long time. The preliminary hearing to which a claimant is entitled somewhat quickly is often just a formality, as it was in this case.

The criminal defense and forfeiture lawyer for the claimant filed a motion for fees, costs and damages (as the vehicle was damaged while in police custody). The Florida forfeiture laws do allow a successful claimant to recover reasonable attorney's fees and costs if the state failed to act in good faith at any point in the process or its conduct was a gross abuse of discretion. One could argue that the state taking possession of a person's vehicle without an evidentiary basis and keeping it for two years is the definition of bad faith and an abuse of discretion. However, to actually get an award of fees and costs, the forfeiture attorney has to get the judge to agree. Some judges do not like to make that kind of finding against another governmental agency.

In this case, the judge did not agree that the police and the state acted in bad faith because the state voluntarily dismissed the forfeiture case, although it took almost two years. The judge found that this meant the claimant did not technically prevail in the case, as the statute requires. The judge also found that the two year delay was not in bad faith.

This was one of many examples of the government having extraordinary authority to take people's property, and the people having limited options to address the issue. We have seen this happen all too often. However, there are ways to put pressure on the government and make the process go as quickly as possible. If you have been involved in any type of forfeiture matter and have questions about your rights, feel free to contact us for a free consultation.

August 8, 2016

Jacksonville, Florida Law Firm of Shorstein, Lasnetski & Gihon Gets DUI Case Dismissed Despite Client Having a Blood Alcohol Level More Than Three Times the Legal Limit

A client recently came to the law firm of Shorstein, Lasnetski & Gihon as a result of a DUI (driving under the influence of alcohol or drugs) arrest in July of 2016. The arrest was actually based on an alleged DUI offense in Jacksonville, Florida from 2013. Most DUI arrests are made at the time the police officer claims to observe the suspect driving while impaired from alcohol or drugs so there is little delay between the alleged offense and the prosecution and court appearances for the charge.

However, in some cases, the police do not make an arrest immediately. For instance, in this case the investigation began when the client was involved in a motor vehicle accident. The client was not in a suitable condition to give a breath sample for the breathalyzer as the client was taken to the hospital to be treated for injuries. In those cases, the police will often attempt to obtain a blood sample from the DUI suspect at the hospital. While breathalyzer tests provide results immediately, blood samples used to test for blood alcohol content need to be sent to the crime lab for testing. As a result, the police usually do not make an arrest until the results come back a few weeks or a few months later, assuming the results show alcohol or drugs were found in the suspect's system.

In this case, blood was taken from the client at the hospital and sent to the crime lab. The test results came back about a month later. They showed the client had a blood alcohol level of more than three times the legal limit of 0.08. At this point, the Jacksonville Sheriff's Office obtained an arrest warrant for DUI. Three years later, the DUI charge was dismissed.

Why did the DUI charge get dismissed in court? In Florida, we have a statute called the statute of limitations. This statute compels the state to bring a prosecution against a suspect within a certain period of time, depending on the type of charge. The statute is designed to protect a defendant by forcing the state to be diligent in prosecuting defendants, thereby avoiding a situation where a defendant's ability to defend him/herself is compromised because of the passage of time which might result in the loss of witnesses or evidence and memories fading.

In this case, although the blood test results came back in mid-2013, the police did not arrest the defendant until almost three years later. However, the statute of limitations for a misdemeanor DUI of this nature is two years from the date of the alleged offense.

As a result, Shorstein, Lasnetski & Gihon filed a motion to dismiss the DUI charge based on the statute of limitations, i.e. because the state did not begin prosecuting our client for DUI until more than two years after the alleged offense. The statute of limitations is not always a black and white issue with regard to that two year period. If a defendant leaves the state of Florida or takes steps to hide from the police, the state can argue that the two year period is tolled. However, the state must show that they were diligent in searching for the defendant during the time period the two year period was running.

In this case, the state could offer no such proof. The Jacksonville Sheriff's Office obtained the warrant and then just let the warrant remain in the system. No efforts were undertaken to try and find the defendant and make an arrest. The police had our client's contact information and many other resources at its disposal to try to locate our client, who had not left Jacksonville, Florida during that time. Because neither the police nor the prosecutor's office made a diligent attempt to locate and arrest our client, they could not meet their burden under the Florida statute of limitations. Therefore, the motion to dismiss was granted, and the DUI case was thrown out.

We have used this statute of limitations in other cases where a warrant was obtained for a client but no effort was made to find the client during the statutory period. In those cases, as in this DUI case, the result is often a dismissal of all charges. If you think the statute of limitations might be an issue in your criminal case, feel free to contact us for a free consultation.

August 5, 2016

Police Search With Consent Became Illegal When it Went Too Far in Florida Drug Case

Many drug cases in Florida are the result of police suspecting that a suspect has drugs and requesting that the defendant consent to a search of his/her vehicle, home, person or other belongings. People always have the right to refuse a police officer's request to search, but people often allow the police to search anyway. When a person gives the police consent to search, as long as it is not under duress or after some search and seizure violation, that eliminates the need for the police to get a search warrant, have probable cause or rely on one of the few exceptions to the search warrant requirement. However, when a person gives the police consent to search, it is not a blank check for the police to search wherever they want and for whatever they want. A search by consent is limited to the area to which the consent applies and the nature of the item for which the police are looking.

As an example, in a possession of cocaine case south of Jacksonville, Florida, the police were investigating a robbery during which an I-phone was stolen. They tracked the I-phone to an apartment complex and started knocking on doors and requesting permission to come inside and search for it. The defendant in this case gave the police consent to search his apartment for the I-phone. The police went into the apartment and found the I-phone on a table. After that, they continued searching the apartment and found cocaine in a drawer. The defendant was arrested for possession of cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the cocaine arguing that the search conducted after the I-phone was located was illegal. The consent to search was limited to a search for the I-phone. Once the I-phone was located, the consent to search terminated. Therefore, without further evidence or additional consent, the police had no lawful basis to continue searching inside the apartment.

This was a situation where the search exceeded the cope of the consent. Another example where the police might exceed the scope of consent is when they search in places the item they are looking for could not be located. For example, if the police are looking for a stolen briefcase, they would not be permitted to search in a jewelry box.

Consent to search gives the police broad powers to invade a person's privacy and search for evidence. However, a consensual search is limited, and where the police exceed that limit, any evidence located may be thrown out of court.

August 2, 2016

Excessive Delay in Investigation Results in Florida DUI Case Being Thrown Out

Most DUI cases are initiated in a similar manner here in Florida. A police officer will claim to observe a driver violate some traffic law and then will pull that driver over. While the police officer will begin to check the driver's license and consider writing a traffic ticket, if the police officer believes the driver is impaired from alcohol or drugs at some point, the police officer will likely abandon the traffic ticket process and initiate a DUI investigation. This will involve asking the driver questions such as where he/she has been and whether he/she has had anything to drink. This will likely transition into a request to perform field sobriety exercises. If the driver agrees to submit to them and the police officer subjectively determines the driver failed (which is likely since the police officer, who is the sole judge of the driver's performance, already believes the driver to be impaired), then an arrest for DUI is likely.

A police officer is permitted to turn a routine traffic stop into a DUI investigation if there is specific evidence that the driver is impaired and the process does not take too long. Any time a police officer keeps a driver for a traffic ticket or criminal investigation, it is considered a detention under the law. A police officer can detain a person but only so long as necessary for a lawful purpose. If the purpose of the detention is to address a traffic violation, the police officer can only keep the driver for as long as it normally would take to write a traffic ticket. If there is specific evidence of a criminal violation, i.e., a DUI, the police officer can only keep the driver long enough for a normal DUI investigation and only so long as there continues to be evidence of a DUI.

As an example, in a DUI case just south of Jacksonville, Florida, a police officer pulled a vehicle over for a traffic violation. The police officer began addressing the traffic violation but then believed that the driver was impaired from alcohol. Instead of initiating a DUI investigation, the police officer called for another officer to come to the scene to handle the DUI investigation. Sometimes, a police officer will call for backup or another officer who is better trained to investigate DUI's to take over a situation where the officer believes the driver is impaired. In this case, it took about 15 minutes for the backup officer to arrive and start the DUI investigation. The initial officer did nothing during that time, and the driver was left to wait for the second officer. Once the second officer arrived, he pursued the DUI allegation and ultimately arrested the driver for DUI.

The criminal defense lawyer filed a motion to suppress all of the evidence that was obtained after the second police officer arrived. The criminal defense attorney was successful, because the court agreed that the defendant was unlawfully detained. The police did not have a legal basis to detain the driver initially and then for another 15 minutes to wait for the second officer without continuing to develop evidence of a crime being committed. In other words, the police are allowed to detain a person while there is a continuing investigation that is producing legitimate evidence. The police cannot hold a person for an unreasonable period of time based on a suspicion of criminal activity that might be supported with evidence later. As a result, the DUI case was thrown out.

July 30, 2016

Florida DUI Case Thrown Out After Police Stop Defendant for Honking Horn

Most DUI (driving under the influence of alcohol or drugs) cases in Florida start with a traffic stop. A police officer will allege that he/she saw a driver commit some sort of traffic infraction. The police officer will pull the driver over. If the police officer believes the driver is impaired from alcohol or drugs, the police officer will initiate a DUI investigation. However, if the DUI arrest is valid, it must start with a legal basis for the initial traffic stop. If the police officer did not have a lawful reason to stop the driver, it is likely that the DUI case will be thrown out in court.

In a case near Jacksonville, Florida, a police officer was on patrol when he heard the defendant honk his horn several times without any apparent reason. The police officer conducted a traffic stop and gave the driver a ticket for improper use of his horn. The police officer then detained the driver for a DUI investigation because he found his conduct suspicious after the traffic stop. This DUI investigation ultimately resulted in a DUI arrest.

The criminal defense lawyer filed a motion to suppress based on the argument that the initial traffic stop was not lawful. Florida law requires every motor vehicle to have a horn in good working order and for drivers to use it to ensure the safe operation of the vehicle. The statute does not prohibit the use of the horn for any particular reason. A police officer does have the right to stop a driver for a legitimate public safety reason, but none existed in this case. Therefore, the stop would only be valid if the defendant had violated some traffic law. Honking one's horn for no apparent reason is not such a violation. As a result the traffic stop was not lawful.

Since the initial traffic stop was illegal, the arrest of the defendant for DUI was also illegal. Therefore, the DUI charge was thrown out.

July 27, 2016

Judge in Florida Can Suspend a Person's Driver's License for a Traffic Violation

In Florida, there are certain crimes that come with an automatic suspension of the defendant's driver's license. For instance, a DUI (driving under the influence of alcohol or drugs) conviction will always result in a driver's license suspension of at least six months. Other crimes that come with driver's license suspensions include possession of marijuana and racing if the defendant is convicted of one of those crimes.

Routine traffic offenses are not considered crimes in Florida. They are not normally handled in criminal court; they are handled in traffic court by a traffic court judge. The penalty for most traffic citations is a fine and possibly a driver improvement course. If a person gets a certain number of traffic tickets within a certain period of time, it can result in a driver's license suspension.

While the penalty for most traffic tickets is a fine, the judge does have the authority to suspend a person's driver's license for a routine traffic violation like speeding or running a red light. A Florida statute gives the judge discretion to suspend a person's driver's license for a period of up to one year for certain traffic violations.

However, if a person violates a traffic law and causes an accident as a result, a different Florida statute allows the judge to suspend the driver's license for more than a year. In a recent case south of Jacksonville, Florida, a driver ran a stop sign and failed to yield and crashed her vehicle into a motorcycle killing two people. This was not considered reckless driving so no criminal case was filed, but it did go to traffic court as a result of the traffic law violations. The judge suspended the driver's license for a period of 10 years. The driver's lawyer appealed the decision arguing that the judge did not have authority to suspend the driver's license for more than a year for the traffic violations. However, the appellate court affirmed the suspension. Florida law does allow a driver's license suspension of more than one year if the driver commits one or more traffic violations and causes a crash. The Florida statute requires the judge to look into the totality of the circumstances, which would include the nature of the crash, the severity of the injuries and property damage, the driving of the defendant and his/her driving record.

If a person does have his/her driver's license suspended and is caught driving thereafter, that does become a criminal offense for which a jail sentence is a possibility.

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.