Jacksonville Criminal Lawyer Blog

A person who has been arrested for a crime in Florida and elsewhere has the right to remain silent. Most people have heard of the Miranda warnings that are read to a person pursuant to an arrest, which includes the right to remain silent. However, the right to remain silent is a right afforded by the Constitution and begins as soon as a person is arrested even if the police officer has not yet read the Miranda warnings.

Another aspect of the right to remain silent after an arrest is the fact that, in the subsequent criminal trial, the prosecutor is not allowed to make a comment to the jury about the defendant's silence after the arrest or the defendant's exercise of his/her right to remain silent for the time period before, during and after the Miranda warnings are read after the arrest. An improper comment by the prosecutor about a criminal defendant's silence after an arrest can take several forms, and most of them are improper.

For instance, consider a recent Florida criminal case where a person in an airport consented to a search of his luggage in which the police found two bricks of cocaine. The subject remained silent when he and the officer saw the cocaine in his bag and was arrested. At the trial, the defendant testified, and the criminal defense attorney argued, that the defendant did not know the drugs were in his bag. The prosecutor commented that if that was the case, the defendant should have said something about how he was surprised the cocaine was in his bag and that he did not put them there as soon as he and the police officer saw the bricks of cocaine. This was found to be an improper comment on the defendant's silence after his arrest and his conviction for drug trafficking was reversed.

Criminal prosecutors would often like to argue that if a defendant is innocent, why didn't he/she say so and come up with an explanation after an arrest. However, the Constitutional right to remain silent mandates that a person who has been arrested does not have to say anything to explain him/herself and any comment by the state regarding the exercise of that right can be grounds for the reversal of a criminal conviction.

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Posted In: Criminal Procedure

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In Duval County (Jacksonville), Florida, there are over 34,000 boats registered. As we approach the Summer months, boating becomes increasingly popular, and the Jacksonville area water ways become more crowded. As a result, boating under the influence of alcohol (BUI) arrests also increase this time of year.

In the Jacksonville, Florida area, there are law enforcement officials, such as the Florida Wildlife Commission, who patrol the water ways in Duval County, Clay County, Nassau County and all of Northeast Florida just like police officers and troopers patrol the roads. And also like police officers on the road, law enforcement officials on the water must have a valid reason to stop a boat. A boat can be stopped based upon probable cause which can arise if a boat is speeding or in violation of the various regulations that apply to boats. A boat can also be stopped for a random inspection related to fishing, equipment, registration or safety.

If an officer suspects that a boat driver is operating the boat under the influence of alcohol, the officer may request a field sobriety test. The field sobriety test is different from the one performed on a vehicle driver. Part of the test can be done on the boat on the water such as the alphabet, horizontal gaze and finger counting. However, other parts of the test should be done on land, such as standing on one leg, placing the finger on the nose and walking a straight line and turning. But there are other factors to consider in the boating context. A boater should be given a period of time after getting off of the boat to acclimate him/herself to land after spending time on the water. Also, these tests are often more difficult if the person is barefoot or in flip flops as supposed to regular, more stable shoes. At some point, in deciding whether to make an arrest for BUI or after a BUI arrest, the officer will make a note of and/or take pictures of any alcohol or alcohol containers in the boat.

Under Florida law, a person commits the crime of boating under the influence when he/she operates a vessel while his/her normal faculties are impaired or his/her blood or breath alcohol level is 0.08 or higher. Like the crime of DUI, boating under the influence of alcohol or drugs is a misdemeanor (unless upon a third conviction within ten years of the previous conviction or upon a fourth conviction) that subjects an offender to serious fines and other penalties, probation and the possibility of jail time.

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Posted In: Boating Under the Influence (BUI)

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When does speeding result in more than a traffic violation and become a criminal offense that can get you arrested and thrown in jail? It is not clear, but two Jacksonville drivers were recently arrested for allegedly driving well in excess of the speed limit, according to an article on www.Firstcoastnews.com.

In Jacksonville, Florida, there is no standard or law that tells a police officer when to issue a ticket for speeding or when to arrest someone who is speeding. That decision can be made at the discretion of the particular police officer. In this case, two Jacksonville motorcycle drivers were reportedly driving 142 miles per hour in a 65 miles per hour zone on State Road 9A. The Jacksonville Sheriff's Office officer stopped them and arrested them. The police officer decided that driving at such an excessive speed went beyond the normal conduct that is typically addressed by a speeding citation and actually became reckless conduct which placed the two motorcycle drivers and others in danger of being injured in an accident.

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Posted In: Traffic Infractions

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Jevon Kearse, who was one of the best defensive players ever to play for the University of Florida, was arrested and charged with driving under the influence of alcohol (DUI) after a traffic stop in Tennessee this past weekend, according to an article on ESPN.com. According to police, Kearse's vehicle was weaving in the road and speeding which was the basis for the traffic stop. When the officer approached Kearse, police said that his eyes were red and watery, his speech was slurred and he emitted an odor of alcohol. Kearse then performed the requested field sobriety test but refused to take the breathalyzer test. He was then arrested for DUI.

This is a fairly common DUI arrest scenario. When the police see a vehicle weaving and/or speeding in the early morning hours on the weekend, their suspicion of a DUI is raised. Red, bloodshot eyes, slurred speech and an odor of alcohol are classic signs that police look for when deciding to initiate or continue a DUI investigation. Police will then often request a field sobriety test which the driver has a right to refuse. Police will often also request the driver submit to a breath or blood alcohol test which, if refused in Florida, subjects the driver to driver's license suspension penalties, which are further detailed here on our website.

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Posted In: DUI

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After an arrest for drunk driving in Jacksonville, Florida the police officer is going to take your driver's license away. If you are otherwise authorized to drive (i.e. your license is not suspended or revoked), the police officer will give you a ticket that will serve as a temporary driver's license that lasts for 10 days. After ten days after your arrest for DUI, your temporary privilege to drive expires. However, even though your license will be suspended following the ten days after your arrest, you still can apply for a hardship license that allows you to drive in certain circumstances.

After your arrest for DUI in Jacksonville, there is also a procedure that allows you to challenge the suspension of your license with a Department of Motor Vehicles (DMV) officer. You must apply for a hearing within ten days of your arrest.

If that appeal of the suspension of your driver's license after the DUI is unsuccessful, that does not affect your ability to get the hardship license. The procedure for getting the hardship license is as follows. If you submitted to the breath or blood alcohol test and your blood or breath alcvohol level was 0.08 or greater, you have to wait 30 additional days after the initial 10 day temporary driving period after your arrest to petition for the hardship license. So, on the 41st day after your DUI arrest, you may have the hearing to obtain the hardship license. If you refused to submit to a blood or breath alcohol test, you have to wait 90 days after the initial 10 day temporary driving period to try to get the hardship license. So, on the 101st day after your DUI arrest, you can go to the hearing to get a hardship license.

There are two types of hardship driver's licenses. A business hardship license allows you to drive to and from work, for necessary on-the-job trips, for educational purposes, for meeical purposes and for church-related purposes. An employment hardship license allows you to drive to and from work and for necessary on-the-job trips only.

In Jacksonville, Duval County, the hearings are typically set about seven days in advance. So, around the 34th day after a DUI arrest if you bloew 0.08 or higher, or around the 94th day after an arrest if you refused to submit to a blood or breath alcohol test, call the administrative office in Duval County at (904) 777-2132 and set up the appointment for the hearing. At the hearing, you will need to show that you need a hardship driver's license for the reasons indicated above and that you will not drink and drive again. The hearing officer will also look into any criminal record you may have. It would also be a good idea to bring any proof of employment, enrollment in school and any other documentation that supports the need for a hardship license.

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Posted In: DUI

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Financial identity theft crimes are becoming more common in Florida as people resort to using less cash in favor of credit and debit cards. The following are a couple examples of increasingly common ways people are committing financial identity fraud to obtain the names and numbers on credit and debit card accounts so they can be later used without the cardholder's authorization.

One method of financial identity fraud is referred to as key logging. It can happen in two primary ways. First, a person will attach a device to a computer through the keyboard port that can document a person's key strokes when the computer is used. For instance, an offender may attach the device to a computer at a public library. When a victim uses the computer and types information on the keyboard, the offender can come back and remove the device and determine what keys the victim hit while using the computer. Alternatively, software is available that can serve the same purpose. After visiting a certain website, opening an email or getting a computer virus, a computer may acquire software that records a person's keystrokes and sends the information to another location to be accessed by an offender.

Another method used to commit financial identity fraud is called skimming. This occurs when the offender uses a device that records the information on the magnetic strip on a credit or debit card as well as the information entered on the keypad. The device can be used in places where people swipe their credit or debit cards, such as ATM machines, gas station pumps and other such terminals. It can also be done in the various situations where a person gives a waiter, retailer or other vendor a credit card to be swiped and returned to the customer.

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Posted In: Theft Crimes , White Collar Crime

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Federal criminal charges were brought against a Florida man who allegedly attempted to obtain a high paying job with forged documents and false information, according to an article at www.Reuters.com. The Florida suspect has been charged with three counts of wire fraud by federal prosecutors after allegedly sending fraudulent documents to a company performing a background check on behalf of the company to which he applied for a job. The fraudulent documents were related to an SEC investigation that the suspect claimed was no longer ongoing. According to federal prosecutors, the suspect created a fake email from the SEC indicating that he cooperated with their investigation and provided valuable information. Federal prosecutors also allege that the suspect claimed that he was the vice president of finance for a Fortune 500 company, although he had been previously fired from that job.

The federal crime of wire fraud refers to any use of interstate wire communications to commit a fraudulent scheme to obtain money or other property. The use of wires encompasses telephone, radio, television and computer networks. Without knowing more about the facts of this case, the allegations of wire fraud likely involve an attempt to obtain money via a well paying job by using email and/or the telephone to transmit fraudulent information. If he is convicted of the wire fraud counts, he faces a maximum of 20 years in prison and a $250,000 fine.

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Posted In: Federal Crimes , White Collar Crime

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A law enforcement officer was charged with driving under the influence of alcohol (DUI) after he was found passed out in his truck which was stopped in the road, according to an article at www.News4Jax.com. The officer was given a field sobriety test which he reportedly failed, and was then arrested for DUI.

One question in the DUI context that may arise from this arrest is how a person can be arrested for drunk driving, or DUI, when he is not even driving the vehicle. In other words, does a person have to actual drive the vehicle to be arrested and ultimately convicted of a DUI defense? The answer is no. A person can commit a DUI if he/she is driving the vehicle when his/her normal faculties are impaired or with a blood or breath alcohol level of 0.08 or higher, or if he/she is in "actual physical control" of the vehicle. "Actual physical control" means the person has the capability to direct the vehicle even if he/she is not doing so around the time of the arrest. So, if a person is in the driver's seat of a stopped vehicle with the keys in the ignition, that person may be at risk of a DUI arrest even if the person is not driving. If the vehicle is stopped in the middle of the road and the driver is passed out, as reported in the article referenced above, the risk of a DUI arrest increases.

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Posted In: DUI

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Previously, if you lived in Florida and were convicted of a felony crime, you lost your right to vote. With the presidential election approaching along with several local Jacksonville, Florida elections, it is important for people who have been convicted of a felony crime to be aware that you now can have your right to vote restored.

If you have been convicted of a felony in Florida and would like to restore your voting rights, you can visit the website for the Duval County Supervisor of Elections or find your local Florida Supervisor of Elections website here or go to www.Restoremyvote.org.

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Posted In: Criminal Procedure

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A Jacksonville (Duval County), Florida woman is a known criminal who shoplifts at various department stores. She was most recently seen stealing items at a Target store on Monument Road in Jacksonville, Florida, according to an article on www.Firstcoastnews.com. Department stores in Florida and across the country lose a significant amount of money to shoplifters every year. As a result, they have taken steps to identify and arrest shoplifters before they can leave the store with the merchandise. Department stores now often have elaborate video surveillance, scanners that detect when a stolen item is leaving the store and undercover loss prevention officers inside the stores looking for potential shoplifters.

What signs do loss prevention officers and police officers look for to identify a shoplifter? There are several characteristics that shoplifters exhibit when they are in a store looking for something to steal. Loss prevention officers look for people who appear nervous and avoid eye contact with others, who wander around the store without buying anything, who leave the store and return within a short period of time, who linger in areas that are difficult to see, who keep looking around for people watching them and who come into the store with loose clothing, a big bag or other containers that can conceal a stolen item.

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Posted In: Theft Crimes

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In March, federal sentencing guidelines, which help a judge determine what kind a sentence a person will get after he/she is arrested and convicted of a federal crime, were changed as they apply to crack cocaine related crimes. Prior to the change, a person arrested and convicted for possessing a small amount of crack would receive the same sentence as a person arrested and convicted for possessing a much larger amount of powder cocaine. The old sentencing guidelines were criticized since most people arrested for crack related crimes were African-American while most people arrested for cocaine related crimes were white. One of the original justifications for the disparity in sentencing between crack and cocaine related crimes is that government officials found that people arrested for crack related crimes were more likely to also commit a violent crime.

According to the U.S. Sentencing Commission Preliminary Crack Cocaine Retroactivity Data Report published in April of this year, 3647 inmates convicted of a crack related crime have applied to have their sentences reduced, and 3,075 of them have been successful. The Middle District of Florida, where Jacksonville is located, had the 5th highest number of prison inmates convicted of a crack related crime apply for, and have granted, a reduction in their prison sentence. Inmates in the Middle District of Florida who had their sentences reduced did so by an average of 19.4%.

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Posted In: Federal Crimes

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When is an encounter with a police officer considered consensual and when is it considered an illegal detention under Florida law? The answer could be the difference between incriminating evidence being used against a defendant charged with a crime like possession of drugs or possession of a firearm by a convicted felon and having crucial evidence like drugs or a gun being thrown out of court.

The general rule in Florida is that the police may request identification, typically a driver's license, from a person and briefly hold onto that identification for a reasonable period of time, perhaps long enough to check the person for outstanding warrants. This is considered a consensual encounter with police. However, depending on the circumstances, if the police officer holds onto a person's license or other identification for longer than necessary for the warrants check or if the police officer shows other signs of authority, the encounter may turn into an illegal detention. If the encounter with police turns into an investigatory detention and there is no reasonable suspicion of criminal activity to support the detention, the detention may likely be considered illegal and any evidence obtained as a result should be thrown out.

Factors that support the argument that an encounter with the police has shifted from consensual to an investigatory detention are:

- holding onto a person's driver's license or other ID longer than necessary to check for warrants or learn basic identification information
- the presence of multiple police officers involved in the encounter
- commands by the police officer(s) to stand a certain way or move to a certain area
- other questions or commands by the police officer(s) that would lead a person to believe he/she is not free to leave
- the demeanor of the police officer(s)
- the length of the encounter
- other actions by the police officer(s) like the use of sirens, showing their badges, pulling out their guns, taser or other weapons and other exhibitions of force or authority

The bottom line is whether a reasonable person in an encounter with police feels like he/she is free to leave and terminate the encounter. One obvious way to make this determination is to ask the officer(s) if you can leave. Some people may be reluctant to do this for fear of angering the officer or raising suspicions. Of course, if the officer still has your driver's license or identification card, you do not want to leave without that. Consequently, if the officer keeps your license for an unreasonably long period of time, the encounter may no longer be considered consensual. Of course, if you ask for your license back when the officer is finished with a brief warrants check, refusal to return it would likely give a person reason to believe that he/she cannot yet leave.

There are many factors to be considered in determining whether a police encounter was consensual or an illegal detention. If incriminating evidence was obtained as a result of the encounter, the answer to that question may be the difference between a conviction or criminal charges being dismissed. Ultimately, the question may be decided by the criminal judge at a motion to dismiss evidence hearing.

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Posted In: Search and Seizure

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Violent crimes, including murder, rape and robbery, increased between 2006 and 2007 in Jacksonville, Florida and other major cities in Florida, according to the FBI's Uniform Crime Report. Of the 17 cities in Florida with over 100,000 residents, the murder rate increased in 10 of them. Murders increased in Jacksonville by 12%. In addition to Jacksonville, violent crimes increased in just about every city in South Florida with a population over 100,000. In all of Florida, Orlando was statistically the most violent city.

Despite the increase in violent crimes in Jacksonville and many other cities in Florida, the violent crime rate decreased nationwide between 2006 and 2007 by 1.4%. The decrease in violent crimes can be partially attributed to the Northeast where violent crimes decreased by 5.4%. In the South as a whole, violent crimes increased by 0.7%.

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Posted In: Violent Crimes

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The field sobriety test during an investigation by police for driving under the influence of alcohol or drugs (DUI) consists of a few tests administered by the police officer, like the horizontal gaze test, standing on one leg, walking in a straight line and turning around and reciting the alphabet. A police officer often will ask a driver to submit to a field sobriety test if he/she thinks the driver is under the influence of alcohol or drugs.

A typical traffic stop that turns into a DUI investigation might go something like this. A police officer will observe a driver violate a traffic law such as failing to maintain one's lane, rolling through a stop sign or speeding. The police officer will then pull the driver over, approach the driver and ask a few questions. If the police officer observes what he/she subjectively considers evidence of intoxication, the police officer may ask some questions pertinent to a DUI investigation such as whether or not the driver has been drinking or using drugs and if so, to what extent. The police officer may then ask the driver to submit to a field sobriety test.

A driver in Florida is not required to submit to a field sobriety test. If a driver does submit to a field sobriety test, there is no objective criteria that measures whether or not the driver passes or fails. It is up to the discretion of the police officer. There are several reasons why a completely sober person might fail a field sobriety test depending on his/her age, level of coordination, physical condition, nervousness and many other actors. Anyone who feels like he/she has one of these conditions that would affect the results of a field sobriety test should seriously consider refusing the test. If the driver submits to a field sobriety test and the police officer determines that he/she fails, the officer will testify as to his/her version of what happened during the test and his/her interpretation of the results. Of course, a refusal to submit to a field sobriety test can be used against a driver at a DUI trial, but there may certainly be valid reasons for the refusal completely unrelated to alcohol or drug use.

At a DUI stop in Florida, it is important to understand that the field sobriety test requested by the police officer is designed to obtain subjective evidence of impairment that can be used against the driver in court. Every driver in Florida has a right to refuse the field sobriety test. However, this should not be confused with the blood or breath alcohol test, a refusal to which subjects a person to an automatic license suspension of one year for a first refusal and 18 months for a subsequent refusal.

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Posted In: DUI

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A Jacksonville, Florida mother was recently arrested after an incident at Sadie Tillis Elementary School where she allegedly threw objects at the principal, broke a table and made threats to come back and shoot up the school, according to a news article on www.News4jax.com. Clearly, if true, her conduct was inappropriate and needed to be taken seriously to ensure that the children at the school were not placed at risk, but the nature of her remarks provides an opportunity to look at what elements must be present to commit the crime of assault, a term often used in everyday discussion but rarely truly defined.

The Florida crime of assault is committed when a person: 1) makes an intentional and unlawful threat by word or act, 2) to do violence to another person, 3) coupled with an apparent ability to commit the threatened act, and 4) doing some overt act that reasonably creates fear in the other person that the violence is imminent. As a result, words alone are insufficient to form the basis of an assault. There must be some corresponding act that reasonably would put another person in fear that the violence is coming fairly soon along with circumstances that indicate the person has the ability to commit the threatened act. Additionally, threats to do violence that are conditioned upon some other factor typically do not form the basis for an assault as the violence would likely not be imminent.

Looking at the facts of this reported criminal case, if the woman threw an object at the principal, that could form the basis for an assault. However, any verbal threats made, however horrible they may be, would not fit the definition of an assault unless the woman had the apparent ability to follow through with the violence and another person was in reasonable fear of being the victim of imminent violence.

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Posted In: Misdemeanor Crimes

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Consider a Jacksonville, Duval County, Florida search warrant scenario where Jacksonville Sheriff's Office Officer A goes to a judge and presents evidence to establish that there is probable cause to search a house for the presence of marijuana, cocaine or other illegal drugs. The search warrant directs Officer A to perform the search. After the judge signs the search warrant, Officer A calls a fellow officer to tell him the search warrant has been signed. The other police officers at the residence start the search while Officer A is en route. Marijuana is found at the residence by one of the other police officers. Is this a valid search of the residence? Probably not according to a recent case out of south Florida.

It is likely that the police officers' search of the residence for marijuana will be found to be improper because of how it was executed. If the search warrant directs the affiant (the police officer testifying to the judge regarding probable cause to issue the search warrant) to perform the search, that police officer must be present when the search is undertaken. If he or she is not present, any evidence found during the search, such as drugs or guns, may be thrown out of court.

A criminal defense lawyer should determine if any police officer(s) was directed to perform the search in the warrant and if that officer(s) was in fact present for the search. Of course, other police officers can assist any police officer named in the search warrant as the search is performed. Additionally, other police officers are permitted to secure the premises to prepare for the search, and this does not have to be done in the presence of the police officer named in the search warrant.

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Posted In: Search and Seizure

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