Jacksonville Criminal Lawyer Blog

A common scenario for drug arrests in Jacksonville, Florida will have the police searching a car, house or other location, find a bag of drugs and arrest the person closest to it. When the police find drugs, they want to arrest someone, although proof that the person arrested possessed or owned the drugs does not always exist.

For instance, in a recent criminal case just outside of Jacksonville, Florida, the police were investigating a hotel they believed was a known drug area where crack cocaine was often sold. They observed the defendant enter and leave one of the hotel rooms several times. The police recognized the defendant as someone who had an outstanding warrant for his arrest. The police officer followed the defendant into the hotel room and found a crack pipe and cocaine in the room. The crack pipe and cocaine were on the night stand in between the two beds. The defendant was in the room along with two other people. No one in the room was in the immediate vicinity of the crack pipe and cocaine. The hotel room was not registered to the defendant.

The police arrested the defendant for possession of cocaine and possession of drug paraphernalia, perhaps because he was closest to the drugs or because they were familiar with his criminal history. However, the case was later dismissed by his criminal defense lawyer.

In order to make a valid drug arrest under these circumstances, the police must have evidence that the defendant actually possessed the drugs and/or crack pipe or was in constructive possession of the drugs and/or crack pipe. Actual possession of drugs is self explanatory. If the defendant had the drugs in his hand or pocket, that would be actual possession. Constructive possession of drugs is not as clear. In order to establish constructive possession of drugs, the evidence must show that the defendant knew of the drugs and had control over the drugs. For instance, if the drugs were in the defendant's jacket pocket on the bed next to him, that would be a better case of constructive possession. But, when the drugs are found somewhere in a room with multiple occupants that is not registered to the defendant, the drugs can belong to someone else in the room or someone else entirely. Under those circumstances, the police do not have sufficient evidence to arrest someone on drug charges.

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Posted In: Drug Crimes

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There is a difference between drinking and driving and being guilty of driving under the influence of alcohol (aka DUI in Florida or DWI in some states). Clearly, if you have been drinking, the safest course of action is to stay the night where you are, let a friend drive or call a taxi. However, we handle a lot of DUI cases in the Jacksonville, Florida area and often see people arrested for DUI who may have had a couple of drinks but whose condition did not rise to the level of a DUI. It is not proper for a police officer to make a DUI arrest just because a person has been drinking. However, this often occurs. That a driver has been drinking is just the threshold factor for a proper DUI investigation. In order for a DUI arrest to be proper, the police officer must have evidence that the driver was under the influence of alcohol to the extent his normal faculties, such as sight, balance, coordination, judgment, are impaired. Therefore, if a person had a couple of drinks at dinner and may have committed a traffic violation but is not showing signs of impairment from alcohol, he/she should not be arrested for DUI. However, police make arrests under these circumstances all of the time.

There are ways for criminal defense attorneys to combat DUI arrests that are based on insufficient evidence and point out common inconsistencies and exaggerations in the police officer's arrest report and testimony. DUI videos, jail videos and pictures are available that can help disprove an officer's report and testimony about the condition of the person arrested for DUI both during the DUI investigation and after the DUI arrest. If you have been arrested for DUI in the Jacksonville, Florida area and have questions about how to fight the DUI charge, feel free to contact us for a free consultation.

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Posted In: DUI

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There have been fewer drunk drivers and drivers intoxicated from drugs driving on the roads according to a study by the National Highway Traffic Safety Administration. The study found that tougher DUI laws and stricter enforcement of DUI laws have contributed to the reduction in drunk driving. Back in 1973, 7.5% of drivers surveyed had blood alcohol levels over the current legal limit of at least 0.08 compared to only 2.2% surveyed in 2007, according to an article on News4Jax.com. A government survey also found that 16.3% of nighttime weekend drivers tested positive for drugs such as marijuana, cocaine and methamphetamine. However, a positive drug test does not necessarily prove that the driver is under the influence of drugs at the time since a drug can stay in a person's system after the effects of the drug have worn off. The study also reached a fairly obvious conclusion that a person is more likely to encounter a drunk driver or a driver intoxicated from drugs late at night or early in the morning.

Here in Jacksonville, Florida, the police are definitely focused on making DUI arrests. As expected, Jacksonville police looking to make DUI arrests are more concentrated in certain areas, such as Jacksonville Beach and the main roads going to and from Jacksonville Beach, and more likely to make DUI stops late at night and on the weekends. Before answering any questions or submitting to any tests after you have been pulled over by a police officer, keep in mind that once a police officer has an inclination that you have been drinking, everything he/she asks and does will be designed to obtain evidence to support the DUI arrest he is about to make. If you have any questions about how to handle a DUI stop or a recent DUI arrest, feel free to contact us for a free consultation.

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Posted In: DUI

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Many states, including Florida, allow qualified residents to apply for and obtain concealed weapons permits. These permits allow the person to carry a concealed weapon, such as a firearm, in their vehicles and other concealed places. In Florida, carrying a concealed firearm without such a permit is a third degree felony punishable by up to five years in prison; carrying a concealed weapon (non-firearm, such as a knife), without authorization is a misdemeanor.

The laws of each state are different, and particulars regarding how and where a person can carrying a concealed firearm or weapon are not the same in each state. As a result, if a person has a concealed weapon permit in one state and travels to another that has different laws regarding how that weapon can be concealed, that person may be violating the concealed weapon law of the second state even though he/she has a valid concealed weapon permit and is following the law of his/her home state. The new proposal would make it clear that a person who has a concealed weapon permit from one state can travel into other states with the concealed weapon as long as the other state also issues concealed weapon permits.

One group that would welcome such a law is semi truck drivers who constantly travel across state lines and often have to stop in dangerous and secluded areas while carrying valuable cargo. Truck drivers are at greater risk of becoming robbery targets and should have the right to protect themselves when they are on the road.

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Posted In: Federal Crimes , Gun Crimes

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As a criminal defense law firm practicing in the Jacksonville, Florida area, we get this question quite often. Sometimes, a person pleads guilty or no contest to a crime in Jacksonville the morning after the arrest without really knowing the consequences of the guilty or no contest plea, without really understanding the nature of the charges and evidence against him/her and without any meaningful discussion with a criminal defense attorney. Later, they may contact us and ask if there is a way to withdraw or reverse the guilty or no contest plea to the criminal charge.

There often is a way for a person who plead guilty or no contest to reverse or withdraw the plea. This is especially true for those people who plead guilty or no contest at their first appearance hearing the next day. In Jacksonville, Florida, the first appearance hearing takes place at J1, which is a courtroom attached to the jail. When a person gets arrested in Jacksonville, Florida, he/she will go in front of the judge the next morning or afternoon in J1. Many people plead guilty or no contest to their criminal charges in J1 on their own and later want to reconsider that decision or at least confer with a criminal defense attorney to find out if the guilty or no contest plea was the right thing to do.

In order for a plea of guilty or no contest to a charge to be legal and valid, the defendant must enter the plea voluntarily, knowingly and intelligently. At the first appearance hearing the next day, the defendant does not really have an opportunity to thoroughly go over the case, the charges, the evidence and the ramifications of the sentence with a criminal defense lawyer. The judge is supposed to ask each defendant who is pleading guilty about his/her age, education, mental and physical conditions and prior experience with the criminal justice systems. The purpose of these questions is to get some assurance that the defendant who is pleading guilty without having spoken to a criminal defense lawyer knows what he/she is doing and what effects that decision may have. If those questions are not asked of the defendant when he/she pleads guilty or no contest to a criminal charge, the plea may not be valid. In that case, the defendant may be able to file a motion to withdraw the plea and have a chance to fight the charges.

If you have been arrested for a crime in the Jacksonville, Florida area, entered a plea of guilty or no contest and think you entered the plea without all of the necessary information and advice of a criminal defense attorney, feel free to contact us for a free consultation and we can discuss your case and whether you are able to withdraw your plea and fight the charges.

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Posted In: Criminal Procedure

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We get a lot of calls from people in the Jacksonville, Florida area and throughout Florida who want to know about sealing or expunging a criminal record. Sealing or expunging a criminal record can be a powerful tool for people who are concerned that a past mistake that shows up on their criminal record may affect their ability to get a good job or further their education.

When we get calls from people who want to know if their criminal record can be sealed or expunged, the first thing we usually discuss is whether they are eligible to have the particular criminal record sealed or expunged. Florida law dictates whether or not a person is eligible to have a criminal record sealed or expunged. Unfortunately, not everyone is eligible to have a criminal record sealed or expunged. The circumstances that determine whether a person can have a criminal record sealed or expunged are too in-depth to go over in this post. If you have a question as to whether you are eligible to have a criminal record sealed or expunged, feel free to contact us for a free consultation, and we can answer that question for you.

Once it is determined that you are eligible to have a criminal record expunged or sealed, it is important to understand that the process can take a few months. If you have a job interview or school application coming up and want to have a criminal record sealed or expunged, it is important to start the process quickly so the order to have your criminal record sealed or expunged can be signed by a judge and disseminated to the proper entities in plenty of time. The first step is to get fingerprinted and have the fingerprint form filled out. There is also an Application for Certificate of Eligibility that you need to sign and have notarized. With those documents, we can obtain the other information, signatures and court documents needed to send a package to the Florida Department of Law Enforcement (FDLE) so you can be certified as eligible. The FDLE charges $75 for the certification process and takes 6 - 8 weeks to respond once they receive the package. Once the FDLE certifies that you are eligible to have the particular criminal record sealed or expunged, we prepare and file a motion and proposed order for the judge. Once the judge signs the order to seal or expunge your record, several copies go to the clerk's office in the county where the criminal record is kept. For a fee, the clerk's office distributes the signed order to the FDLE and local police agency who then seals or expunges your record. The entire process necessarily takes a few months.

It is a good idea to seal or expunge your criminal record if you are eligible if you are at all concerned about potential employers or school administrators seeing your criminal record. If you have any questions about the process to seal or expunge a criminal record or whether you are eligible, feel free to contact us any time for a free consultation.

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Posted In: Sealings & Expunctions

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A recent possession of cocaine case was dismissed after a judge ruled that the police did not have a right to enter the defendant's apartment and search the defendant for drugs without a search warrant. In this case, the police received a tip that drug activity was taking place at a specific apartment. When police officers responded to the tip, they saw that the apartment door was open. The police officers were able to see the defendant in the kitchen wiping off the counter. They noticed a digital scale on the counter along with a white, powdery substance that appeared to be cocaine and a straw. The police officers entered the apartment, handcuffed the defendant, searched him and found two bags of cocaine in his pocket.

The criminal defense lawyer for the defendant filed a motion to suppress alleging that the police did not have a right to enter the defendant's apartment and arrest and search him. As a result, all evidence of cocaine possession should be thrown out.

Everyone has a Fourth Amendment right to be free from unreasonable searches and seizures. This Constitutional protection is strongest in one's home. As a result, a police officer typically needs a search warrant if he/she is going to lawfully search someone's home. There are exceptions to the search warrant requirement if the police officer can prove that he/she could see the illegal drugs from a place the police officer had a legitimate right to be, it is immediately clear that the item seen is illegal or incriminating and the officer had a lawful right to access the drugs or other incriminating item. If all of those factors are not present, the police officer can only enter someone's home to conduct a search if there are urgent, or exigent, circumstances or the owner of the home consents to the search.

In this case, the state argued that exigent circumstances existed because the defendant was seen wiping the counter down. However, the court did not find this sufficient because there was no evidence that the defendant knew the police were present and was wiping the counter to get rid of the cocaine. Additionally, the police officers could have posted an officer by the door while the other officer went to get a search warrant. There was no other reason the police could not wait to get a search warrant while leaving an officer at the apartment to monitor the defendant.

Because the Fourth Amendment protection in one's home is strong and the State was unable to prove a need for the police to enter the defendant's home urgently or without a search warrant, the search was illegal, the drugs were thrown out and the defendant's conviction for possession of cocaine was reversed.

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Posted In: Drug Crimes , Search and Seizure

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In drug cases, the police are often involved in the planning stages of the drug transaction, whether by using an undercover detective who poses as a buyer or seller, by using a confidential informant or by using surveillance to record the discussions between the parties involved in the drug transaction. With that kind of evidence, prosecutors often bring conspiracy charges in addition to the drug sale and/or purchase charges once the transaction has been completed.

However, police and prosecutors will sometimes assume the elements of a drug conspiracy are in place just because there were preliminary discussions about the drug transaction and the drug transaction took place. Conspiracy is a crime completely separate from the actual drug sale and purchase crimes. In order to prove a conspiracy, the state has to prove that there was an agreement between two or more people to commit the same offense. Therefore, if the state only has evidence that two people met at a certain location at the same time and completed a drug deal, they can assume there was an agreement to buy and sell drugs but without proof of the actual agreement, there is insufficient evidence to prove a conspiracy. In other words, proof of the drug deal, even where it appears to be elaborately planned, is not sufficient evidence to prove and agreement an a conspiracy.

Finally, where the state has evidence that two people agreed to a drug deal, it still may not be sufficient to prove a conspiracy. The proof of the agreement has to establish that the parties agreed to commit the same offense. So, if the state has recordings or other evidence that a buyer and a seller agreed to a drug transaction and actually went through with it, this is not a conspiracy because the two parties did not agree to the same offense. The two parties agreed to, and committed, separate offenses, i.e. sale of drugs and purchase of drugs. There is no common goal because one is selling and the other is buying and those are separate drug crimes.

Sometimes prosecutors like to add conspiracy charges in drug cases because it increases leverage for the prosecutor and adds exposure for a defendant. Prosecutors may look at evidence that the defendant(s) planned the drug deal and went through with it and assume they have a valid conspiracy charge. However, conspiracy is a completely separate crime and evidence of planning and/or a drug deal may not be sufficient to prove a conspiracy.

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Posted In: Drug Crimes

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Three people were arrested by federal law enforcement officials for allegedly setting up a scheme where they would steal money from local banks in Jacksonville, Florida using bad checks and ATM cards, according to an article on News4jax.com. According to federal officials, the scheme involved depositing a bad check into an existing account with an ATM machine and then using an ATM card to withdraw the money before the bank realized the check was bad. In order to complete this type of fraud, the person would have to have a legitimate ATM card that could access a real account and the bank would have to credit the bad check to the account before checking to make sure it was a good check with funds available. According to federal officials, the suspects were able to get people to sell their ATM cards allowing them to quickly access the accounts where the bad checks where deposited.

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Posted In: Theft Crimes

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Senator Jim Webb of Virginia published a short article on The Charlottesville Center for peace and Justice website about problems with the criminal justice system and some suggested reforms. He highlights some pretty disturbing figures which make it difficult to argue that the criminal justice system is functioning fairly and smoothly. In his article, he cites the following: 1 out of every 31 adults in the United States is either incarcerated or on parole or probation and the number of incarcerated drug offenders has increased by 1200% since 1980. Most of the people in the U.S. are incarcerated for non-violent offenses.

When we consider the level of violence that pervades cities in the United States, including Jacksonville, Florida, one obvious implication is that criminal justice resources are not being allocated towards violent offenders to the extent they should be. Something is clearly wrong when the jails and prisons are full on drug and other nonviolent offenders at an increasing rate, yet violent crimes are more and more prevalent. Senator Webb points to reforms which would direct law enforcement attention more towards violent offenders while also developing rehabilitory strategies for drug and other nonvioolent offenders who can use the help to get back on their feet once through the criminal justice system.

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Posted In: Criminal Procedure

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Last year we posted a blog article about DUI checkpoints in the Jacksonville, Florida area as police come out in force on a holiday weekend like this one to try and make arrests for driving under the influence of alcohol or drugs (also referred to as DUI, DWI and drunk driving). Because July 4th falls on a Saturday this year and the holiday is taken on the Friday before July 4th, we expect Jacksonville area police officers to be all over the place looking for potential DUI arrests. At Jacksonville Beach and the main roads leading to and from Jacksonville Beach like J. Turner Butler Boulevard (JTB), Beach Boulevard and Atlantic Boulevard, Jacksonville police are out in higher concentrations looking to make DUI arrests.

More and more recently, we have spoken with clients and read DUI arrest reports where it appears that police officers make the decision early on that a person is driving under the influence of alcohol or drugs and the DUI investigation is just a formality leading to a certain arrest. In other words, police officers put the same information on every DUI arrest report (odor of alcohol, slurred speech, swaying, mumbling or stuttering, and failed field sobriety exams) and decide to arrest a person for DUI regardless of whether or not there are any actual signs of impairment. As a result, it is important to know your rights if a police officer stops you and asks questions about alcohol or drugs. Ideally, you would call a DUI lawyer who is available at all times and ask questions immediately. If you are unable to speak to a DUI lawyer when stopped, understand that you do not have to answer the question about whether you have had any alcohol or drugs or how much you have had. You can also refuse the field sobriety exams. Keep in mind that if a police officer has it in his/her head that you are guilty of DUI, he/she will request that you submit to a field sobriety exam for the sole purpose of giving him/her and the State more evidence to convict you of DUI. Very few people, if any, get out of a DUI arrest by submitting to the field sobriety exams, even if they are perfectly sober.

Many people do not know their rights, or do not exercise their rights, during a DUI stop. If you have been arrested for DUI in the Jacksonville, Florida area or have any questions about how to handle a DUI stop, feel free to contact us any day, any time for a free consultation.

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Posted In: DUI

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