Jacksonville Criminal Lawyer Blog

I thought it was a good time to address this question which we get quite often from individuals in and around Jacksonville, Florida about victims and alleged victims trying to drop domestic violence charges against a person who was arrested for, or charged with, a domestic violence related offense. There was a recent article on www.Firstcoastnews.com which referenced a study by the National Institute of Justice that found that incidents of domestic violence increase during difficult financial times. The article noted that money issues were the major cause leading to domestic violence. Clearly, we are going through a period that is bringing significant financial distress upon many families in Jacksonville and throughout the country.

It is not uncommon for some sort of domestic incident to occur, whether it is a heated argument, one person pushing a spouse or significant other or a more violent incident where the police are called and respond to the scene. This is often followed by an arrest and formal charges. It is also quite common for the person who called the police (the victim or alleged victim) to later decide that he/she does not want to pursue the case, i.e. wants to drop the charges. The reality is that the person who called the police or who is an alleged victim or a real victim does not have the authority to drop the charges. He/she can go to the Jacksonville Sheriff's Office or local police or the prosecutor's office and ask them to drop the case, but once the police and/or the prosecutor's office get involved, that decision is up to them. The police or prosecutor will likely listen to what the alleged victim has to say, but he/she is not bound by anything that is said. Because of the high number of purported victims who later request to drop domestic violence charges, it is very common, perhaps more likely than not, for the police and prosecutors to pursue a domestic violence case until the very end, including a trial, when the alleged victim is not cooperating. This is particularly true where there is other evidence of domestic violence, such as independent witnesses, statements from either party or a witness and/or visible injuries that are memorialized in photographs or a police report.

This is not to say that the police or prosecutors will never drop a domestic violence case when an alleged victim makes the request. This does happen. However, there is clearly a misconception among people that when a person who claims he/she was the victim of a domestic violence incident later tells the police or the prosecutor that it did not happen or that he/she does not want to pursue the case, that means the case just goes away.

In Jacksonville and throughout Florida, the fines for traffic violations such as speeding have noticeably increased over the years. However, a new Florida law provides that people who are caught speeding excessively will pay a much greater fine. Drivers who are caught speeding 50 miles per hour over the posted speed limit face a $1,000 fine for a first offense, $2,500 and a one year suspended license for a second offense and $5,000 and a ten year license suspension for a third offense. This is a significant increase compared to the prior law which provided for a $250 fine for anyone caught speeding by 30 miles per hour or more over the speed limit.

Although some people may think that it is rare for a person to be driving so fast in excess of the speed limit, airplanes tracked the speeds of drivers on the highway in South Florida just after this new law went into effect and found 80 people who were speeding at 50 miles per hour or more over the speed limit.

There were other laws that specifically addressed motorcycles. It is now illegal for motorcycle drivers to lift the front wheel off of the pavement. Motorcycle drivers must also attach their license tags horizontally or face a $1,000 fine as police complain about having a difficult time reading the license tags on motorcycles that may be speeding.

A recent poll indicated that a majority of Americans support eliminating minimum mandatory sentences for nonviolent crimes. A minimum mandatory sentence is a sentence that is prescribed by the state legislature or Congress that indicates the minimum, or lowest, sentence a person can get after being convicted of certain crimes. It takes the discretion away from the judge and the prosecutor who have more specific knowledge of the particular facts of the case. One argument in support of minimum mandatory sentences is that they equalize the treatment given to different people who are convicted of similar crimes. However, in taking away the discretion of prosecutors to recommend lower sentences and judges to issue lower sentences, the results are often unfair and fail to take into consideration the mitigating circumstances of each individual case. They also prevent judges from ordering particular defendants to serve a more appropriate and rehabilitative sentence, such as one incorporating treatment, and often limit judges to ordering a more inappropriate and costly sentence that only incorporates prison. This can be particularly true for nonviolent crimes such as drug crimes.

The recent report indicated that 78% of the people polled felt that judges, as opposed to legislators, should decide what sentence a particular criminal defendant should get after pleading guilty or no contest to a nonviolent crime or being found guilty of a nonviolent crime after a trial. This is consistent with the idea that the judges who know more about the specific cases and individuals are better equipped to decide what sentence is appropriate.

Recent reports have also indicated that minimum mandatory sentences have had no beneficial effect on drug use and abuse, drug addiction or drug trafficking. Often, these minimum mandatory sentences affect drug users and small time drug dealers as opposed to drug traffickers and suppliers. However, minimum mandatory sentences for nonviolent crimes like drug crimes have significantly increased state and federal costs and ensured that those funds have gone toward incarceration and inmate housing as opposed to drug treatment and prevention which might reduce the number of nonviolent drug offenders who go through the criminal justice system.

According to the Florida Attorney General's Office, this week is Identity Theft Week in Florida and throughout the country. The purpose of Identity Theft Week is to raise awareness as to the various ways people are at risk of having their identities and financial information stolen. As the Internet and other technology have become more popular, thieves have come up with numerous ways to try to learn identification and financial information from unsuspecting victims.

For instance, as the Florida Attorney General's website notes, "phishing" is a common way thieves try to get people to provide their identification and financial information. Phishing is the process by which a thief will send out mass emails to people that appear to come from legitimate entities like a bank, credit card company or retailer. The email may say that there is a problem with the person's bank account or credit card and request certain information that would allow the thief to access financial information.

Banks and credit card companies do not request such information via email. If you have received an email asking for any information that could lead to access to your financial information (such as a social security number, date of birth, credit card number, PIN), you can call the Florida Attorney General's Office at 1.866.966.7226 to report the incident and help determine if a communication is valid.

An 89 year old stabbed and killed his 22 year old grandson in Crescent City, Florida (which is about two hours south of Jacksonville, Florida) according to an article on www.News4jax.com. The grandfather is claiming that he stabbed his grandson in self defense.

In Florida, the law of self defense was expanded making it easier for those suspected or accused of violent crimes to assert the self defense claim. The Florida law was changed couple of years ago. Under the prior Florida law, a person was required to use any reasonably possible means to escape a situation before using deadly force to meet deadly force outside of a person's home or workplace. According to the new Florida law, individuals are not required to retreat and may use deadly force in public when they reasonably perceive a threat of deadly force to themselves or others.

According to recent reports and articles, high schools across the United States are increasingly drug testing their students. Court cases that have addressed the legality of drug testing in high schools have resulted in opinions that allow high schools to drug test students as a prerequisite to joining school sports teams and extracurricular activity organizations. Students who refuse to consent to random drug testing can be banned from playing sports and participating in extracurricular activities.

President Bush instituted a policy to expand drug testing in high schools and approved millions of dollars towards that expansion. One way the federal government has encouraged high schools to drug test their students is to reward federal grant money to those schools that institute the drug testing policies. Reports indicate that 4-7% of all high schools in the U.S. have such random drug testing policies, and the numbers are increasing by about 100 per year.

Other than the obvious trust and right to privacy issues implicated by the high school drug testing policies, critics point to various studies (like this one) that indicate that such policies have no effect, or a negative effect, on drug use among high school students.

Jacksonville police and police officers all over Florida commonly use drug dogs or K-9's that are trained to detect the odor of marijuana, crack, cocaine, methamphetamine and other illegal drugs to search for those drugs in vehicles and other areas. However, there is some question as to how reliable these drug dogs are in detecting the odor of illegal drugs. Drug dogs and the police officers who handle them are supposed to be trained and certified to assure that they are both skilled and qualified to accurately detect the odor of illegal drugs and give the appropriate signal in those circumstances. However, not all of these drug dogs are so qualified according to recent criminal cases and news articles.

In the traffic stop scenario, a common drug dog search may proceed as follows. A Jacksonville police officer would pull a driver over for some sort of moving traffic violation. If the Jacksonville police officer feels like he/she sees indications of drug possession, the officer may call for a drug dog to walk around the vehicle and smell for the odor of illegal drugs. Without probable cause to believe that drugs are in the vehicle, the police officer should conduct the drug dog search while the driver is in the process of getting his/her ticket for the moving violation. In other words, if the police officer has finished giving the driver a ticket or warning, that driver is free to leave and cannot be ordered to stay for the drug dog search unless the police officer has specific reasons to believe that the driver is committing a crime, such as possession of illegal drugs.

The police officer will either have his own drug dog present or he/she may call for a drug dog over the radio. Assuming a drug dog is present, or arrives, during the ticket-writing process or there is other specific evidence to suggest drugs are present, the police officer may have the right to walk the dog around the vehicle. As the drug dog walks around the vehicle, the dog may give a certain signal or alert that the odor of drugs is present. At that point, the police officer will likely search the vehicle for the suspected drugs.

One problem with this common scenario, as discussed in this article on Tampa's newspaper's website, is that some of these drug dogs are not very reliable. The Tampa article noted that drugs were only found in vehicles 50% of the time when one particular dog often used by the Tampa police alerted. A 50% success rate is not a sound basis to support probable cause to search someone's property. Another drug dog in Manatee County, Florida alerted to the odor of alcohol in every vehicle he checked, although drugs were found in less than half of those vehicles. A dog who is going to alert to a vehicle every time a police officer brings it out to check defeats the purpose of using drug dogs and seriously undermines the Fourth Amendment rights of those people whose property is searched. As a result, criminal defense lawyers are checking the success and failure rates of these drug dogs to determine just how reliable they have been in the past and perhaps make a motion to the judge to have evidence of the drugs thrown out.

Drivers in Jacksonville and other areas in Florida may see more saturation patrols and DUI checkpoints, according to a Florida Highway Patrol official. The reason is that a recent report from the Florida Department of Highway Safety and Motor Vehicles showed that deaths from alcohol-related motor vehicle accidents increased in 2007 by 13% (after decreasing from 2005 to 2006).

A saturation patrol occurs when Jacksonville Sheriff Office officers or other police flood an area to catch drivers who may be committing violations, such as driving under the influence of alcohol or drugs (aka DUI or DWI) or driving without wearing a seat belt. A DUI checkpoint is a police roadblock where the police stop every vehicle or periodic vehicles and investigate the driver for a DUI violation.

On October 1, 2008, a new rule will be in effect for commercial vehicle drivers who get convicted of driving under the influence of alcohol or drugs (aka DUI or DWI) in Florida. The new Florida rule provides that any commercial semi truck driver who gets convicted of a DUI will have his/her commercial driver's license (CDL) suspended for one year from the date of the conviction. This is true whether the DUI crime occurred while driving a commercial vehicle or a personal vehicle. If a semi truck driver gets a second DUI conviction after October 1, 2008 (either in his/her commercial or personal vehicle), he/she faces a permanent revocation of his/her CDL (A CDL is required to drive a truck commercially.)

If you have been arrested for DUI in Jacksonville or the North Florida area, it is important to contact a lawyer immediately so that you understand your rights and the penalties you may be facing. The DUI laws change frequently so you should contact a lawyer who is up to date on all of the recent updates in DUI law.

The arrest of a child is often a traumatic and distressing experience, both for the youngster and his/her parents. Juvenile criminal activities refer to those perpetrated by anyone under the age of 18. If adjudicated delinquent, the defendant is inducted into a rehabilitation program drawn up by the Florida Department of Children and Families. If your child or someone you know has been taken into custody or accused of a crime by law enforcement officers, here’s what you need to know:

• While law enforcement officers have the right to take your child into custody, they must inform you or the child’s legal guardians.

• A child can be questioned without his/her parents or legal guardians present, but the court has the right to accept the resultant testimony based on whether the accused youngster was aware of his/her constitutional rights.

• Law enforcement officers are well within their rights to detain your child at a county jail for up to 6 hours for the purpose of fingerprinting and photographing if they have reason to believe that he/she has committed a crime. These records must be held separately and away from the public eye, and must be destroyed on orders from the court.

• Your child has the right to be represented by an attorney, just like any adult. The attorney must respect the wishes of your child over yours, in spite of the youngster being a minor. Any communication between your child and his/her attorney is confidential.

• If a juvenile court finds your child adjudicated delinquent with which he has been charged, there are certain circumstances that allow the conviction to be used later in an adult court if your child has been charged with and is tried for further criminal offenses.

• Court hearings of juvenile trials are not always held in camera.

• While juvenile records are kept private and access to them is limited to the child, his/her attorney and his/her parents or guardians, any information that is garnered from court hearings that are open to the public is allowed to be published in the press.

• While most juveniles are tried in juvenile courts, there are some circumstances under which the accused is tried as an adult in an adult criminal court depending on the seriousness of the crime.

• A juvenile accused of a crime cannot be placed in jail unless he/she has been tried and adjudicated delinquent in an adult criminal court or is being transferred to an adult court for the first time. He/she must be held separate from adult inmates, in cells that are not visible or audible to them, at all times.

• A juvenile accused of a crime is usually placed in detention after which the DCF must notify you. A hearing before a judge must be conducted within 24 hours of the detainment. If the court decides that detention must be continued, a trial must begin within the next 21 days.

This post was contributed by Kelly Kilpatrick, who writes on the subject for the colleges for criminal justice. She invites your feedback at kellykilpatrick24@gmail.com.

A recent study by the National Academy of Sciences is looking at the reliability of certain forensic evidence techniques many assume are reliable such as the use of fingerprint, tire track and bite mark analyses. These techniques are commonly used by the state to prosecute and convict people accused of a crime. The report is not due until December, but there are indications that the report will cast serious doubts upon the use of these techniques in criminal cases.

It is too early to speculate, but depending on the continued viability of these forensic evidentiary methods, the report could open up arguments to have prior convictions reopened and examined. The report and its findings could also affect future criminal cases and the state's ability to use such techniques in court. At a minimum, it may allow criminal defense attorneys to produce evidence that these techniques are questionable and certainly not as reliable as juries often assume. For instance, regarding bite mark analysis, one prior study showed that an innocent person was identified 63% of the time based on bite mark evidence.

Once the report comes up, we will have more information regarding its contents and possible ramifications.

A new report from the FBI revealed that police and other law enforcement officials continue to arrest drug offenders at very high rates, particularly people who merely possess marijuana. In 2007, 1.9 million people were arrested on drug charges, 872,000 of them for marijuana offenses. Arrests for marijuana offenses increased by 5% in 2007, which is an all time high, although the overall crime rate decreased in 2007 for the fifth year in a row. It is not just marijuana traffickers and growers who are being arrested. According to the FBI report, 89% of marijuana cases are possession cases. A drug arrest and conviction, even if merely for simple possession of marijuana, can have serious effects. A person in Florida who is convicted for a marijuana related offense risks losing his/her driver's license, professional license, access to public assistance and access to student loans.

As of 2007, police arrest more people for drugs than for any other crime. Twenty percent of state prison inmates are there for a drug related offense, and over half of the inmates in federal prisons are there for drug related offenses.

The United States has spent hundreds of billions of dollars on the war on drugs and put millions of U.S. citizens in jail or prison. However, while the U.S. has some of the strictest drug laws in the world, we have one of the highest rates of drug use. Clearly, the U.S. needs to consider a different approach that sensibly weighs the cost, both in dollars and otherwise, and effectiveness of current, strict drug laws against the seriousness of the various marijuana and other drug related crimes.

If Jacksonville police officers are investigating a drug crime or other felony and determine that a crime has occurred or is occurring, the Jacksonville police officers may seize money or other property that is being used in connection with that crime or is proceeds of the drug or other criminal activity. The law that allows the police to take, and try to keep, property from people that is connected to a crime is called the Florida Contraband Forfeiture Act. Basically, the Florida Contraband Forfeiture Act (FCFA) sets up procedures whereby police can seize and ultimately forfeit property that is used in connection with a drug or other felony crime.

In Jacksonville, this seizure and forfeiture of property in connection with a drug or other felony crime commonly occurs when an officer pulls over a suspect and finds drugs and cash in the vehicle. The police officer may then seize the cash and the vehicle as well as the drugs and claim that the cash and vehicle were used to facilitate a drug crime or were proceeds of a drug crime. The government then has to notify the owner(s) of the property seized that they intend to forfeit, or keep, that property. The owner(s) then has to actively make a claim for the property, and the case is litigated through the civil court system.

It is also common for the police to seize and attempt to forfeit property that is owned by someone who has no knowledge of any criminal activity. For instance, if in the example above, the vehicle belonged to a friend or relative who let the criminal suspect borrow his/her car and had no idea drugs would be transported in the vehicle, that owner would be what is called an innocent owner. The Florida forfeiture laws do not allow the police and the government to forfeit property from someone who had no knowledge of the drug or other criminal activity that is the basis of the forfeiture. In the past and in some states other than Florida, it was up to the innocent owner of the property to show that he/she did not know and had no reason to know that his/her property was used in connection with drug or other felony criminal activity. However, under the Florida forfeiture laws, the government has the burden of proving that it is more likely than not that the owner of the property they seek to forfeit did not, and had no reason to, know of the criminal activity. If the government cannot meet that burden, that property must be returned to the owner under the Florida forfeiture laws.

If you have been arrested by the the police in Jacksonville or anywhere in Florida and the police officer seized property owned by you or someone who let you borrow that property (or you loaned property that was later seized to someone else), the police and the government may try to keep, or forfeit, that property. It is important that you act quickly to assert your rights to recover property that the police and the government may not have a right to keep.

Crime statistics in Jacksonville, Florida show that violent crime in Jacksonville has increased from 2006 to 2007, although violent crime across the country has decreased. According to an article on Firstcoastnews.com, reports of violent crime (such as murders, rapes and robberies) in Jacksonville increased by over 22% from 2006 to 2007. The Jacksonville Journey is an initiative created by the city of Jacksonville designed to rectify the increasing violent crime trend in Jacksonville. The Jacksonville Journey recommends an increased police presence in Jacksonville neighborhoods along with other strategies which can be found here.