Posted On: August 31, 2009

New Law Would Allow Students Convicted of Drug Possession to Receive Federal Student Aid

The current law on federal student aid disqualifies anyone from receiving federal student aid or loans if he/she has a drug conviction, even just a drug possession conviction that is a misdemeanor. For instance, if a student is caught with a small amount of marijuana and gets convicted of drug possession, he/she would not be eligible to receive federal student aid. If a person decided to go back to school as an adult and had a drug possession conviction from twenty years ago, he/she may not be eligible for federal student aid based on that old drug possession conviction.

However, a new bill being proposed in Congress seeks to change that law. The new law, the Student Aid and Fiscal Responsibility Act of 2009, would allow people convicted of drug possession crimes to remain eligible for student aid. People convicted of more serious drug crimes, such as selling drugs, would not be eligible for federal student aid. One of the reasons for the proposed new law is that taking away a person's ability to go to or finish college does not do much to keep people off of drugs. For the millions of kids who experiment with drugs in college but otherwise go on to be productive members of the community, the new law would ensure that the minor mistake of a drug possession charge does not prohibit them from graduating college and attaining their career goals.

Posted On: August 29, 2009

Know the Ways to Lose Your Florida Concealed Weapon Permit

Applications for concealed weapons permits in Florida have increased significantly this year, according to an article on News4Jax.com. It is expected that the Florida Department of Agriculture and Consumer Services, which processes the concealed weapons permit applications and issues the permits, will receive approximately 150,000 applications in 2009. The article indicates that there are approximately 6 million gun owners in Florida.

We get calls from people who are in danger of losing their concealed weapons permit for various reasons and need help retaining it. Some people are in danger of losing their concealed weapons permit and do not even realize it.

A license to carry a concealed weapon or firearm is valid for seven years and does just what it says- it allows you to carry a concealed weapon or firearm. However, you must also carry the license and identification at all times when carrying the concealed weapon. Most people are eligible to obtain a concealed weapons permit. If you are over 21, a U.S. citizen or a permanent resident alien, not a convicted felon, physically capable of safely handling a weapon or firearm, do not have a history of drug or alcohol abuse and can pass the firearms course, you are probably eligible for a concealed weapons permit.

However, once you have obtained a concealed weapons permit, you can lose it for various reasons: if you become legally incapacitated, are committed to a mental institution, get convicted of a felony or misdemeanor domestic violence charge or have a repeat violence or domestic violence injunction granted against you.

Most of these are fairly obvious. However, the injunction factor can be tricky. First, domestic violence and repeat violence injunctions are often granted based on questionable evidence and the word of one person against the other. Judges often take the "safer" route and grant an injunction against a person although the evidence is weak. Unfortunately, this affects a person's right to carry a concealed weapon. Second, many people do not know that such an injunction causes a person to lose his/her concealed weapons permit.

If you have been served with a petition for injunction and either have a concealed weapons permit or intend to get one, keep in mind the injunction may cause you to lose your concealed weapons permit or prevent you from getting one. If you have any questions about the injunction process and have to defend against it, contact us for a free consultation.

Posted On: August 27, 2009

When Police Ask Questions, You Do Not Always Have To Answer

We see countless criminal cases in the Jacksonville, Florida area where regular people or suspects talk and answer questions when police come to investigate a crime, and the result is the person talks him/herself into getting arrested and/or gives the police officer the evidence he/she needs (and did not have) to make a strong criminal case against the person.

The Fifth Amendment to the U.S. Constitution guarantees you the right to remain silent and not answer a question from a police officer when that answer may incriminate you. For example, consider a situation where a vehicle with four occupants gets pulled over, and the officer finds a bag of marijuana or cocaine in the center console area. The bag of illegal drugs is within arm's reach of each of the four occupants. The police officer takes all four people out of the car and asks questions to find to whom the drugs belong. What should the four occupants do?

The police officer wants at least one person to take ownership of the drugs so a valid arrest can be made. Keep in mind that the police officer is going to say various things, from promises to threats, to make the people think they should, or have to, answer his/her questions. The police officer may say that he'll arrest everyone and take them all to jail unless someone claims the drugs. The police officer may promise that the person who claims responsibility will get a better deal or a slap on the wrist if he/she claims the drugs. The police officer may say anything, but his/her purpose is clearly to get a statement from someone so he/she can make an arrest and make it stick.

The four occupants do not have to say anything. The four occupants should not say anything. The officer may then get upset and arrest everyone. However, in this scenario, which is very common, this case will either get dropped by the prosecutor or can be beaten at trial because without an incriminating statement, there may be no way for the state to prove who in the vehicle owned or possessed the drugs. If the state cannot prove that, they cannot prove their case.

This happens often in the context of a DUI (driving under the influence of alcohol or drugs) case as well. If a police officer pulls you over and suspects that you have been drinking, he/she will likely ask you if you have been drinking, how much and where you have been. Why would you answer those questions if the answers will only serve to incriminate you? You can politely request to speak to a criminal defense lawyer and leave it at that.

The right to remain silent is one of the most important rights provided in the Constitution. Unfortunately, so many people being investigated for drug crimes and other criminal activity fail to exercise this right. When the police officer starts asking questions and makes threats or promises, although the police officer clearly just wants to make an arrest, for some reason people start talking and bury themselves. The Fifth Amendment guarantees that you do not have to do that.

If you have any questions about a police investigation into criminal activity and what your rights are, feel free to contact us for a free consultation. Even if you are the middle of a police encounter, you have a right to get on your cell phone or home phone and contact an attorney and ask questions, which may be a good option for you rather than say something that will be used against you in court at a later date.

Posted On: August 25, 2009

Jacksonville, Florida Police to Address the Misdemeanor Crime of Racing

Jacksonville police recently met to address the issue of racing in Jacksonville, particularly involving teenagers in the summer months. Jacksonville police are actually encouraging people to race on racing tracks as opposed to the roads. Illegal racing has increased in Jacksonville, according to an article on News4Jax.com. Jacksonville police noted that Jacksonville ranked number 3 in the country for motor vehicle accident deaths involving teenagers aged 16-19. A new Jacksonville Sheriff's Office (JSO) program seeks to educate teenagers about the dangers of racing on regular roads and allow them to drive on a real racetrack.

In Florida, racing on the roads is a misdemeanor crime. The crime of racing has a broad definition and includes using a vehicle to outgain another vehicle, to prevent another vehicle from passing or to arrive at a destination ahead of another vehicle. The penalties for racing include a possible maximum jail sentence or probation of one year, a fine of $500 to $1,000 and a one year license suspension.

Posted On: August 23, 2009

I have Several Arrests But the Charges Have Always Been Dropped. Can I Have All of These Arrests Sealed or Expunged in Florida?

When a person calls us at Shorstein & Lasnetski, LLC and asks about getting a prior criminal record sealed or expunged, we are often faced with the situation of a person with multiple arrests. The person wants to know if he/she can have his/her entire criminal record sealed or expunged. The first question is whether that person is eligible to have any arrest or criminal disposition sealed or expunged. We can answer that question fairly quickly at a free consultation over the phone or in our office.

Assuming a person is eligible to have a criminal record sealed or expunged in Florida, Florida law does not allow him/her to have multiple, different criminal records sealed or expunged. Florida law says that a person can only seal or expunge one criminal record. As part of the sealing or expunction process, the applicant has to swear that he/she has never had a criminal record sealed or expunged before. In other words, you can only do it once.

However, I mentioned that you cannot have multiple, different criminal records sealed or expunged in Florida. If you have multiple charges that were part of the same incident, assuming you are eligible, you can have all of the charges related to that incident sealed or expunged. For example, assume you were pulled over for reckless driving, the officer thought you were drunk and arrested you for DUI and then said you gave him a false name and resisted arrest, you may have four criminal charges as part of that one incident. If those charges were later dropped, you might be eligible to have the criminal records related to all four charges expunged because they were part of the same incident.

On the other hand, assume you were arrested for DUI in 2000 and then were arrested for domestic battery in 2004. The 2000 DUI was resolved with a withhold of adjudication, and the 2004 domestic battery charge was dropped. In this situation, you would have to choose which criminal record you would want to address. If you have the DUI sealed, you could not have the domestic battery expunged, and vice versa.

If you have questions about whether you are eligible to have a criminal record expunged or sealed, feel free to call us for a free consultation.

Posted On: August 21, 2009

New Federal Law Proposed to Make Federal Criminal Sentences for Crack Cocaine Crimes Equal to Powder Cocaine Crimes

We have written before about how people who commit crack cocaine crimes in federal court receive higher sentences than people who commit similar crimes involving powder cocaine. In other words, in order to get a similar sentence in certain situations, it would take the possession of much more powder cocaine than crack cocaine. The Obama administration has indicated an intention to eliminate this sentencing disparity in federal criminal courts.

A new law is also being considered that would establish equal sentences for crack cocaine and powder cocaine crimes. The new law would lower the crack cocaine sentences to the current powder cocaine level instead of the inverse. If and when this law passes, people charged and convicted of crack cocaine crimes in federal court will be exposed to lower sentencing ranges that are in line with those of powder cocaine crimes.

Posted On: August 19, 2009

Federal Government Cracking Down on Medicare Fraud Crimes

Federal agents raided dozens of doctors' offices and homes during investigations into alleged Medicare fraud. As part of the government's effort to reform health care and save money, the federal government is focusing on Medicare fraud and what they say are millions of dollars that are fraudulently taken from the government pursuant to the Medicare laws. The recent raids occurred in Houston, New York, Boston and Louisiana. In Houston alone, thirty-two indictments were recently unsealed charging $16 million in Medicare fraud claims.

Medicare fraud can be committed in various ways, but it often involves a doctor or someone in a doctor's office billing Medicare for supplies that were not medically necessary and/or never provided to the patient. Under the Medicare laws, when a doctor prescribes a medical product, such as a wheelchair, to a patient, the doctor has a right to reimbursement from the government. In this case and other cases of Medicare fraud, the government alleges that the medical supplies were unnecessary and/or the medical supplies were never given to the patient and the doctor pocketed the reimbursement money. In this case, wheelchairs, arthritis kits and tube feeding supplies were the most common supplies that were the subjects of the alleged Medicare fraud.

Due to its relatively large elderly population, Medicare fraud is a significant issue in Florida. With the publicity surrounding health care reform, wasted money in the health care industry and the enormous tax burden on the public, it is likely that the federal government and state law enforcement in Florida will continue to investigate doctors for Medicare fraud.

Posted On: August 17, 2009

Is There a Difference Between Getting a Criminal Record Sealed or Expunged in Florida?

The law office of Shorstein & Lasnektski, LLC receives a lot of calls from people who want to get a criminal record sealed or expunged in Jacksonville, Florida and other parts of Florida. The discussion typically starts with whether the person is eligible to have the particular criminal record sealed or expunged. This post does not discuss under what circumstances a person is eligible to have a criminal record sealed or expunged. For questions about whether you are eligible to have a criminal record sealed or expunged in Florida, please contact us for a free consultation.

In this post, we are discussing what effects getting a criminal record sealed or expunged will have on your record once the process is completed. When a criminal record is sealed, the public cannot get access to it. However, certain government agencies do have access to it. For instance, if you are seeking employment with a criminal justice agency, applying to take a bar exam to become a lawyer or seeking employment with the Department of Child and Family Services, to name a few examples, those entities can access a sealed record. However, private employers will not have access to your criminal record once it is sealed.

When you have your criminal record expunged, the public cannot see your criminal record and private employers cannot see your criminal record. Those same government entities that can see a sealed criminal record will not be able to see your criminal record. They will only be informed that you have had a criminal record expunged but would not see the criminal record unless they obtain a court order, which is rare.

Posted On: August 15, 2009

Drug Reform Issues Progressing Under Obama Administration

The Obama administration has promised certain drug law reforms, and it appears that we may soon see some of the results. One of the issues that we have written about before is the disparity between criminal sentences for crack cocaine crimes versus powder cocaine crimes in the federal criminal system. Under the Bush administration, people convicted of relatively small amounts of crack cocaine would receive much higher prison sentences than people convicted of having higher quantities of powder cocaine. Under the new administration, we should see sentences on crack cocaine crimes equal to sentences for powder cocaine crimes. Additionally, the Obama administration is reducing funding for the media anti-drug campaign. Under the Bush administration, an enormous amount of money was spent on television commercials and various other media outlets to combat drug use, but studies showed that the campaign was not effective and the money was not well spent. The Obama administration is also trying to make it easier for people to obtain student loans after being convicted of relatively minor drug crimes. Lawmakers are also proposing bills that would decriminalize small marijuana possession under the federal laws and legalize medical marijuana in more places.

Posted On: August 13, 2009

What is the Entrapment Defense to a Drug Charge in Florida?

Criminal defense lawyers do not often assert the entrapment defense in criminal cases, particularly drug cases, because it does not apply in most cases. However, there are cases where the entrapment defense is a valid defense when a person is charged with a drug crime in Florida.

For instance, in a recent case, a defendant was charged with trafficking in cocaine after he set up a drug deal between a cocaine supplier and a buyer who turned out to be a confidential informant (CI) for the police. His criminal defense lawyer argued that the defendant was entrapped into committing the trafficking crime. The defendant testified that he was addicted to cocaine and also used other illegal drugs, such as marijuana and heroin. He could not afford his drug habit and needed a way to make some money. The CI approached him and asked him if he could arrange a deal for a large amount of cocaine. Several times, the defendant told the CI that he was not interested. However, the CI persisted and finally offered the defendant some of the cocaine if he would arrange the drug deal. The defendant agreed and was arrested by police for trafficking in cocaine right before the deal was done.

The standard for entrapment in Florida is as follows: it is not entrapment when the police intend to disrupt ongoing criminal activity and use reasonable means to do so. Alternatively, if the police are going out of their way to take advantage of someone who is not otherwise involved in drug trafficking or a related drug crime, and they use unreasonable methods to do it, the defense of entrapment can work. However, if the state can show that the defendant is predisposed to commit the drug crime, i.e. he/she has sold or been involved with illegal drugs before or was familiar with how drug deals work and the terminology, the entrapment defense is problematic, unless the defendant can show that the police's conduct was particularly outrageous.

Criminal defense lawyers do not often use the entrapment defense in drug cases. However, the law does allow it, and there are circumstances where it may be applicable. If it is successful, the drug charges will be dismissed.

Posted On: August 11, 2009

St. Johns County, Florida Man Arrested for Boating Under the Influence of Alcohol

A man in St. Johns County, Florida was arrested for boating under the influence of alcohol, or BUI, after he was stopped for a fishing license check and the officer suspected that he was intoxicated, according to an article on News4Jax.com. During the summer months in the Jacksonville and St. Augustine, Florida areas, we see an increase in BUI cases to go along with the increased number of people boating and fishing in the local waters. Some people may think that a BUI charge is not very serious, but the laws relating to BUI can make that criminal charge as serious as the laws relating to driving under the influence of alcohol or drugs, or DUI.

There are, however, differences in how a BUI case is prosecuted and how it is defended by a criminal defense lawyer. The issues related to when an officer is permitted to stop a boater are different as are the issues related to the officer's determination as to whether the boater is actually impaired. If you have been arrested for boating under the influence of alcohol (BUI), it is a serious charge, but there are defenses. If you have any questions about a BUI charge, feel free to call us for a free consultation.

Posted On: August 10, 2009

Will the Police (or the State) Drop My Domestic Battery Case if the Victim Drops the Charges?

Domestic battery is perhaps the most serious misdemeanor crime in Florida and one that the State Attorney's office takes very seriously in the Jacksonville, Florida area. However, many of them turn out to be weak cases for the State and cases where the true facts are far different from what is written in the police report.

The law office of Shorstein & Lasnetski, LLC handles a lot of domestic battery cases in Jacksonville, Florida and the surrounding areas. One question we get quite a bit is if the police and the State can proceed with domestic battery charges when the alleged victim decides she wants to drop the charges. The answer is that the State can charge a defendant with domestic battery and continue with the prosecution when the alleged victim wants to drop the charges. Once the police have been called and made an arrest, the police officer prepares a report and sends the file to the State Attorney's Office. That file will contain the police report and may also contain pictures of injuries and/or witness statements. It is up to the prosecutor, not the alleged victim, whether or not official domestic battery charges will be brought.

However, when the alleged victim wants to drop domestic battery charges, that is still very relevant. When we handle domestic battery and other domestic violence cases, we always try and work with the alleged victim to learn the true facts surrounding what happened and determine if the alleged victim wants to drop the charges. When the alleged victim wants to drop the domestic battery charges, we can use that information and present it, along with other information, in a way that convinces the prosecutor to drop the charges or at least informs the prosecutor that the domestic battery case is not as serious as he/she may have thought from reading the police report and obtain a favorable result for our client.

So, the short answer to the common question is that the police and the State can pursue a domestic battery case even when the alleged victim wants to drop the charges. However, it is almost always helpful to a defendant in a domestic violence case when the alleged victim does want to drop the charges, which is often the case. In that scenario, we can use the alleged victim's intention to drop the charges along with other beneficial information to achieve a good result for the accused in a domestic battery case.

Posted On: August 7, 2009

Defenses in Domestic Violence Cases in Florida

Police in Jacksonville, Florida and the surrounding counties of Clay County, Nassau County and others make a lot of arrests for domestic battery and similar domestic violence related charges. What often happens is there is some incident, whether it is an argument, a disturbance or an actual physical altercation, and someone calls the police. The police arrive and have to make an assessment of what happened after the fact. It can be a difficult thing to do since one or both of the parties are highly emotional and are not in the right frame of mind to discuss the incident rationally. The police often make quick decisions to arrest someone, often the male, write a report and move on to the next case. The report is often one-sided and paints a picture that appears more serious and incriminating than what actually occurred. The result may be a domestic battery charge against someone that is not warranted.

At Shorstein & Lasnetski, LLC, we analyze a lot of domestic battery cases and the evidence that the police contend supports the charge. There are several ways for criminal defense lawyers, especially those experienced in domestic battery cases, to defend against domestic battery charges. Once the incident is over, the alleged victim usually calms down and decides she does not want to prosecute. If done the right way, this can be an important tool for a defendant in a domestic battery case. Additionally, once the alleged victim calms down, she will often discuss how the actual facts of the incident are different, and less serious, than what was initially reported and what is in the police report. The police do not often conduct a full investigation when they respond to a domestic battery call. If the alleged victim is claiming an injury, the police may not document it with pictures which calls into question the existence or seriousness of the injury. If an altercation allegedly occurred, did the police take pictures of the surrounding area, i.e. the room in the home where it supposedly occurred, to show that something did happen there? If there were any witnesses such as roommates, neighbors or guests that would have seen or heard a disturbance, are there written or recorded statements?

When we investigate domestic battery cases, we always ask these questions and others and often find that a complete investigation was not done. With these holes in the domestic battery case and the alleged victim's intention to drop the charges (or even without this last element), domestic battery cases will often have several good avenues of defense that result in good results for the client.

Posted On: August 4, 2009

Significant Increase in U. S. Border Patrol Drug Seizures

The United States Customs and Border Protection ("border patrol") announced that they have seized a significantly greater amount of drugs in fiscal 2009 (three-fourths of the way into the fiscal year). Specifically, the border patrol seized approximately 3.3 million pounds of illegal drugs which is a 64% increase from 2008. Marijuana is still the drug that is seized the most by the border patrol at 2.6 million pounds. In addition to the marijuana, 60,411 pounds of cocaine, 4,384 pounds of methamphetamine and 1,463 pounds of heroin were seized by the border patrol. Along with the illegal drugs, $43.9 million in currency and 772 firearms were seized by the border patrol.

Posted On: August 2, 2009

Driving With a Suspended License and DUI Charges Should Not Be Tried Together.

It is not uncommon for a person to be arrested for driving under the influence of alcohol or drugs (also commonly referred to as DUI, DWI or drunk driving) and driving with a suspended or revoked license, or DWLS, in Florida. Under those circumstances the prosecutor will file at least two charges in the information, one for DUI and the other for DWLS. If the defendant decides to take the case to trial, those two charges should be separated, or severed. In other words, the jury that hears the evidence related to the DUI charge should not hear the evidence and decide the case related to the driving with a suspended license charge. A different jury at a new trial should decide the second charge.

The reason these charges should be severed is because the evidence pertaining the driver's alleged suspended license, such as his driving history, is unrelated to the evidence related to the DUI, and vice versa. This relates to the idea that unduly prejudicial evidence should not be admissible in court. It is prejudicial for the state to present evidence of the defendant's driving history and suspended license in his/her DUI trial because that evidence has nothing to do with the DUI and only paints the defendant in a bad light with irrelevant evidence. Likewise, when a jury is deciding whether the defendant was driving with a suspended license, it is prejudicial for the state to present evidence of the defendant's intoxication because that is irrelevant to the DWLS charge.

Where a defendant has been charged with driving under the influence of alcohol or drugs and driving with a suspended or revoked license in the same case, it is important for the criminal defense lawyer to file a motion to sever those charges so the state is not permitted to admit unnecessary and prejudicial evidence against the defendant at the trial. The jury should only hear the specific evidence relevant to the particular charge.