Jacksonville Criminal Lawyer Blog

At a time when the Florida and U.S. economies and credit markets are in a downward spiral, people and governments often have to innovate to recover. The idea of legalizing marijuana should not be considered groundbreaking, progressive thinking in 2009, but it is far from accepted as appropriate and far from a reality. However, in California, a lawmaker has proposed a bill that would legalize marijuana in that state.

The proposed law legalizing marijuana would create a system that would tax and regulate marijuana production, distribution and sales. The state would license producers and sellers who could sell marijuana to individuals over 21 years of age. The law would also allow adults to grow up to ten marijuana plants for personal use only.

This proposal is gaining traction in California partly because of the severe budgetary crisis in that state. It is estimated that the regulation and taxation of marijuana in California would bring $1.3 billion in revenues each year. Marijuana is the largest cash crop in California, and the state government is not making any money from it. There would be a corresponding savings associated with the end of the failed and expensive war on marijuana along with the reduction in inmates who are in jail on petty marijuana charges.

It is unclear if this law will pass this year. I suspect that a law legalizing marijuana will pass at some point, most likely initially in California, Oregon, Washington or a similar state. As for Florida, we face similar budgetary issues and state and local governments that expend a lot of time, effort and money going after marijuana users and sellers. The Florida economy could use the billions of dollars of revenues that legalized and taxed marijuana would bring. Will marijuana become legal in Florida? I think so. Will it happen any time soon? That is hard to say.

On Wednesday of this week, Georgia and federal law enforcement officials searched the offices of Dr. William Nelson pursuant to a joint investigation involving Drug Enforcement Agency agents and Glynn County and City of Brunswick, Georgia local police (St. Simon's Island, Georgia is just over an hour north of Jacksonville, Florida). The law enforcement officers were executing a federal search warrant and seized boxes of documents from Dr. William Nelson's family and emergency medical practice.

According to the article on Jacksonville.com, Dr. Nelson is a board certified doctor in emergency medicine, but his medical license had been suspended due to alleged issues with his child support obligations. It is unclear at this time what evidence the law enforcement officials were looking for, however the article does make reference to prescriptions for patients for drugs such as Oxycontin, Xanax, Percocet, Valium, Methadone and Hydrocodone.

The Florida crime of burglary of a dwelling or structure is committed when a person enters (or remains) in the dwelling or structure of another with the intent to commit a crime in that dwelling or structure. A common manner in which the crime of burglary is committed in Florida is when a person breaks into a house intending to steal something from that house. The crime seems to require that a person actually enters the house or other structure. However, that is not necessarily the case. If the person crawls under a house to steal something (such as copper wiring) or goes onto the roof to steal something, that is considered "entering" the dwelling or structure and also subjects that person to an arrest and prosecution for burglary. The word "enters" in the burglary criminal law refers to an invisible, vertical plane that surrounds a house. If a person breaks that plane with the intent to commit a crime, even if he never literally enters the house or structure, it is considered a burglary in Florida.

A hacker gained access to the computer network at the University of Florida which contains the personal information of approximately 97,000 people, according to an article on News4Jax.com. The University of Florida initiated an investigation after the data breach was discovered, but it was not clear if the personal information was successfully accessed.

Due to the proliferation of computers, the Internet and computer networks, companies have increasingly stored the personal and financial information of clients and employees on their computer networks. As a result, hackers and thieves have increased their efforts to obtain this information that is often easily accessed and unencrypted on company networks. Florida law requires companies that have had their networks compromised to follow certain procedures or face severe financial penalties and bad publicity that could severely damage the company. At a minimum, if a company experiences a data breach of its network and personal information is materially compromised, the company should conduct a thorough investigation to determine if harm has, or likely will, come to those whose information may have been accessed. Records of this investigation and the results must be kept for five years.

Depending on the results of the investigation and the extent of the data breach, Florida law may require the company to do more, including notifying all of the individuals whose information was compromised. If you suspect your company's network has been breached and personal information has been compromised, visit our website or contact us for more information about what Florida law requires your company to do.

The following situation occurred south of Jacksonville, Florida and involved an illegal search of a person for drugs. The person was the passenger of a vehicle that was stopped due to an inoperable taillight. The police officer suspected that the occupants of the vehicle may have had drugs or stashed drugs in the vehicle because of what the officer described as suspicious movement made by the occupants after being stopped by the police officer. The police officer had a drug dog who walked around the vehicle. The drug dog did not alert to the odor of illegal drugs. The police officer then asked for consent to search the driver. The driver agreed. While the police officer was searching the driver, a second police officer arrived and told the passenger that he was going to be searched and asked him he he had anything on him. The passenger reached into his pocket and gave the second police officer a pill bottle with some marijuana and illegal prescription drugs. He was then arrested for drug possession.

Is this a valid search and seizure of drugs from the passenger? No. First, the police officer did not have a reasonable basis to search the passenger so the State could not argue that they would have located the drugs anyway pursuant to a legal search. Additionally, when the passenger gave the police officer the drugs, that was not voluntary because he was submitting to police authority after the police officer told the passenger he would be searched anyway. The important points are that a police officer can always ask a person if the officer can search him or her. The person can always refuse. If a person voluntarily consents to a search or gives a police officer drugs or other evidence of a crime, that evidence will likely be used against that person to effect an arrest and in court. However, if a person succumbs to police authority, as in this case, his/her actions may not be voluntary and any evidence that is discovered may be suppressed.

With the new administration, the federal government will shift its focus regarding federal drug crimes. It appears that the Obama administration will focus more on rehabilitation and be less stringent with nonviolent first-time federal drug offenders than the prior Bush administration.

Some of the highlights of the Obama administration's policies on federal drug crimes include:

- increased efforts to end racial profiling by law enforcement who are investigating drug crimes;

- offering alternatives to first-time nonviolent federal drug offenders such as a diversionary type rehabilitation programs as opposed to incarceration;

- providing education, job training and substance abuse counseling to federal drug offenders to assist them in integrating back into the community after they have completed their sentences;

- providing a prison to work program to give federal drug offenders a better opportunity to obtain gainful employment and reduce the instances of recidivism;

- eliminating the differences in sentencing in the federal system between powder cocaine crimes and crack cocaine crimes; and

- increasing the focus on methamphetamine related federal crimes.

Florida is one of twenty states that has proposed legislation that would make it illegal to drive while talking on a handheld cell phone. Florida legislators cite evidence and articles suggesting that when a driver is talking on his/her cell phone, it can be as distracting and dangerous as a person driving while impaired by alcohol or drugs. There are currently five states that have enacted a law banning handheld cell phone use while driving. Other states are also considering derivations of this law to ban driving while using a text message device and/or a hands free cell phone device.

I saw another article today commenting that the FBI and federal prosecutors are increasingly focusing on corporate fraud and mortgage fraud crimes, which are commonly referred to as white collar crimes. This is a reaction to the difficult economic times in general, and specifically, the alarming number of foreclosures, bankruptcies and investors who have lost money they thought was safely invested. According to the article, the FBI has indicated that they currently have 538 active corporate fraud investigations and more than 1,800 active mortgage fraud investigations. Clearly, the focus of the FBI and federal prosecutors has shifted away from immigration-related issues (which was popular after 9/11) and moved towards white collar crime related to the current economic turmoil.

As criminal defense attorneys who handle state and federal criminal cases including white collar cases, we try to monitor the direction and focus of state and federal prosecutors in the Jacksonville, Florida area and throughout Florida. We think this is an important part of advising and representing clients. Contrary to what some people might assume, police, the FBI and other law enforcement authorities are influenced by current events, the media and trends and shift their focus and resources accordingly. As a result, it is instructive for criminal defense lawyers to follow the same trends and corresponding reports of active criminal investigations an cases to determine upon which companies, individuals and issues the federal government is focusing now and will be in the future.

In the wake of the highly publicized scandal and alleged Ponzi scheme involving Bernie Madoff, U.S. lawmakers announced a proposed bill that would provide for an additional $110 million, 50 FBI agents, 100 SEC Enforcement Officials and 50 Assistant U.S. Attorneys to deal with federal securities fraud cases. The bill is called the Supplemental Anti-Fraud Enforcement Markets Act ("SAFE Markets Act").

It is interesting how reactive our lawmakers and law enforcers are to major stories and so-called trends in criminal law. Not long ago, I wrote a post about how federal law enforcement authorities were prosecuting fewer white collar crimes and allocating their resources more towards immigration and terrorist-related issues. This was a reaction not only to 9/11 but also to the fact that illegal immigrants were coming over the border in droves to take advantage of the thriving U.S. economy and the numerous jobs made available by companies looking for cheap labor. At the time I wrote that post in May of 2008, prosecution of all federal white collar crimes was down 27% since President Bush took over in 2000.

More recently, the federal government's focus shifted to mortgage fraud cases. The economy, and in particular, the housing markets, crashed, and several things happened. Immigration was still a concern, but those jobs that enticed illegal immigrants dried up to a large degree. Falling housing prices, untenable mortgages that were no longer supported by housing values and foreclosures captured the headlines. As a result, federal law enforcement officials increased their efforts to address mortgage fraud cases. As of late 2008, federal mortgage fraud cases more than doubled over the prior few years.

Now, with hourly reports about the demise of the financial industry and the credit markets, the spectacular Madoff scandal and securities that were once highly valued now reduced to mere dollars a share, the federal government is on the move again and the target is securities fraud.

What does this say about the government's ability to keep up with people committing various federal crimes? Perhaps the federal government is susceptible to influence and suggestion from the media just like so many other consumers of the news outlets and more than we would expect.

A doctor in Columbia County, Florida (which is about an hour west of Jacksonville, Florida) was arrested on charges of assisting in obtaining a controlled substance by fraud and unauthorized possession of prescription forms. In a prior post, we discussed how law enforcement authorities in Jacksonville and other areas in Florida are increasingly looking at alleged illegal drug crimes involving prescription drugs as more people, particular younger people, are abusing prescription drugs such as Oxycontin, Xanax, Percocet and many others. Police are focusing not just on the users but on doctors and other staff members at hospitals and doctors' offices who have access to the prescription drugs and prescription drug forms.

According to the article, Dr. Yong Am Park, who is the subject of this criminal investigation, also had his medical license suspended by the Florida Department of Health. He will likely face a hearing down the road that may determine whether he will be able to continue practicing medicine. A doctor accused of crimes faces an additional sanction of losing his/her medical license and ability to make a living as he/she did before in addition to the criminal charges, particularly when those criminal charges directly relate to the doctor's practice.

Preston Parker, who plays wide receiver for Florida State, was arrested for DUI after local police allegedly found him asleep in the driver's seat in the early morning hours. Parker's vehicle was parked, but the key was in the ignition, the engine was running and his foot was on the brake pedal according to the article on ESPN.com. Parker submitted to the field sobriety exercises requested by the police officer, was arrested and then submitted to a test of his blood alcohol content (BAC).

We discuss this arrest to highlight one issue in DUI criminal case law of which some people are not aware. Someone may read this article and wonder how a person can be arrested and charged with driving under the influence of alcohol or drugs (commonly referred to as DUI or DWI) when he was not even driving.

Unfortunately, this is not just a simple matter of Parker's criminal defense lawyer pointing out that Parker was not driving when the police saw him so his case must be dismissed. In Florida, the crime of DUI can be committed when a person is driving a vehicle or in actual physical control of a vehicle while under the influence of alcohol or drugs to the extent his/her normal faculties are impaired. While this issue will surely be contested by Parker's criminal lawyer in his DUI case, under Florida law, a person who has the keys in the ignition with the engine running could be considered in actual physical control.

Heartland Payment Systems is a credit card processing company that handles 100 million credit card transactions per month. They recently went public with the fact that their network was breached and unauthorized access was gained to those credit card transactions. The company did not know, or did not disclose, which and how many credit card records were compromised, but they did say that the records accessed were sufficient to allow hackers to make duplicate credit cards.

In Florida, if a company that maintains certain identification or financial information about others suffers a material breach of its network or files, an important legal duty is triggered. Failure to comply with that legal duty could subject the company to costly penalties and severe damage to its reputation. When a company has reason to believe its network has been materially compromised, Florida law requires the company to conduct a reasonable investigation to determine the extent of the breach and whether harm has, or likely will, come to any of the individuals whose data are maintained. This investigation must be thoroughly documented. Depending on the results of that investigation, the company may be required to notify individuals of the data breach.

If you work for a company in Florida and have had your network breached, or have reason to believe your network has been breached, you can learn more about your legal rights here or contact us to learn more about what Florida law requires when a data breach occurs.