Jacksonville Criminal Lawyer Blog

Driving under the influence of alcohol or drugs (aka DUI, DWI or drunk driving) is ordinarily a misdemeanor charge in Florida. A misdemeanor charge ordinarily means that a person convicted of the charge cannot serve more than 12 months in jail or on probation. However, for DUI's, a first conviction carries a six month maximum and a second conviction carries a 9 month maximum. There are other penalties associated with a DUI charge such as fines, community service, license suspensions, DUI classes and/or an interlock device, depending on if it is a first or repeat DUI conviction.

However, in some cases, a DUI in Florida can be a felony charge (a charge that can result in a sentence of more than a year in prison and/or on probation) which can carry much more serious penalties. The obvious example is when a person commits a DUI and causes an accident that results in the death of another person. This is called DUI manslaughter and was the charge for which the Jacksonville, Florida woman recently was sentenced to four years in prison. If a person commits a DUI, causes a crash that results in a death and then flees the scene, the DUI charge is a first degree felony, which is the most serious kind. And if a person commits a DUI and causes an accident that results in serious bodily injury to another person, the state will charge that person with felony DUI with serious bodily injury. In these cases, what constitutes serious bodily injury is unclear. If a person brakes a bone or has to have surgery, the serious bodily injury element is likely met. If the person has some back pain and has to see a chiropractor for a few visits, the serious bodily injury element may be a stretch.

Even a simple DUI with no accident or injuries can be charged as a felony. For instance, if a person is arrested for DUI after two prior convictions and the most recent prior conviction occurred within ten years of the recent arrest, the state can charge that person with felony DUI which comes with a maximum sentence of five years in prison. If a person is arrested for DUI and has three prior DUI convictions, even if the last conviction was decades ago, the state can charge that person with felony DUI. In these instances, the state does not always charge the more serious felony (they still have the discretion to charge a misdemeanor DUI), but they certainly can if they choose to.

If you have questions about DUI law or the various charges and penalties associated with different DUI scenarios, feel free to contact us for a free consultation.

It is no secret that police in Jacksonville, Florida, like in most other cities, focus their attention to certain areas and certain times of the year when investigating certain crimes like DUI (aka driving under the influence, DWI, drunk driving). One of those times is Georgia v. Florida weekend (or Florida v. Georgia weekend depending on your affiliation). And the areas the police seem to focus on when looking for DUI's are, among others, the streets downtown near restaurants and bars, and the streets at and coming to and from Jacksonville Beach and Ponte Vedra such as beach Boulevard, Atlantic Boulevard, A1A and J Turner Butler Boulevard (JTB). Police officers will hang out near bars and restaurants watching people go to their vehicles and also along the roads watching for any traffic violations.

Obviously, if you have been drinking, the best course of action is to get a ride with a friend or call a taxi. However, if you have been stopped by a police officer in Jacksonville or elsewhere and he/she starts asking DUI-related questions, it is important to know your rights. Keep in mind that field sobriety tests are very difficult tests of balance and coordination that are tough under any circumstances. Even worse, the results are completely subjective based on the opinion of a police officer who already thinks you are drunk. Otherwise, he/she would not have asked you to do them in the first place.

Once the first DUI-related question comes out, you should know that any follow up question is designed to gather evidence to be used against you after the DUI arrest he/she is going to make. So, under those circumstances, you need to decide whether you want to answer incriminating questions and perform difficult, subjective tests or politely refuse to incriminate yourself and request to speak with a lawyer. In other words, you have a right to remain silent and not help the police make the DUI case against you.

If you have been stopped pursuant to a DUI investigation, feel free to contact us during the DUI stop or after the stop for a free consultation so you will know your rights.

This year, the Florida legislature will be reviewing a proposed bill that would set statewide standards for cameras at intersections that take pictures of the license plates of vehicles that run red lights. Once the picture is taken of a vehicle that allegedly ran a red light, a traffic ticket is automatically mailed to the owner of the vehicle. Legislation regarding standards for red light cameras have been before the Florida legislature several times before, but they have not been able to agree on how to split the revenues.

We see a few problems with red light cameras. First, the ticket goes to the owner of the vehicle, but it is not clear what happens when the owner is not the person driving the vehicle when it goes through a red light. Does the state or county have to prove that the owner was driving or does the owner have to prove that he/she was not driving?

Additionally, as criminal defense lawyers, we represent many people who have been charged with the crime of driving with a suspended license. This can be a serious crime that results in jail time and a longer driver's license suspension if a person gets multiple convictions. Many people have their licenses suspended without knowing it and do not find out until they are stopped by the police. If a vehicle owner is sent a ticket but does not receive it because it got lost in the mail or he/she changed addresses, that person may have his/her license suspended without knowing it. One could see how the system does not function properly resulting in a lot of people facing potential driving with a suspended license charges without knowing it until they are stopped by police and arrested.

In a recent criminal case involving a burglary near Jacksonville, Florida the police received information that items recently stolen during a burglary were located in the suspect's residence. The police waited outside the suspect's apartment until he arrived home in his vehicle. They approached the suspect and asked him if they could search his apartment for the stolen items. The suspect apparently consented to a search of his apartment. The police officers presented the suspect with a standard form to sign signifying his consent to the search. The consent to search form was broad and included places other than the apartment, such as his vehicle. The suspect signed the form but not before crossing out his vehicle on the form.

The police then searched the apartment as the suspect apparently permitted. They found items stolen in the burglary in his apartment. Then, the police arrested the suspect and searched his vehicle which was parked on the street. They found more stolen items and evidence in the vehicle.

During the criminal case, the criminal defense lawyer made a motion to suppress the evidence found in the vehicle on the grounds that the search of the vehicle was illegal. The court ultimately agreed with the criminal defense attorney and the evidence found in the defendant's vehicle was thrown out.

There are a couple of important points to understand here. First, if the police do not have a search warrant and there are not emergency circumstances necessitating an immediate search, the police do not have a right to search you, your home or your vehicle. They have to get you to agree to a search under those circumstances. If the police ask you for consent to search anything of yours, you have every right to say no. Additionally, if you give consent to search one thing, that doesn't necessarily give the police the right to search anything else, although if they find something incriminating during the initial agreed upon search, it could lead to further valid searches. If in doubt, the best course of action is to decline a request to search.

In this case, the suspect did give the police consent to search his apartment. And the police found incriminating evidence that was used to charge him with a crime. However, he specifically refused the police permission to search his vehicle so any search of his vehicle was illegal. There are times when a police officer can search a person's vehicle pursuant to an arrest, but in this case, the vehicle was outside and away from the suspect when he was arrested so that exception did not apply.

An Air National Guard helicopter flying around Bradford County, Florida (about an hour southwest of Jacksonville, Florida) spotted a marijuana plant growing in the backyard of a Starke, Florida resident, according to an article on News4Jax.com. Local police officers subsequently searched the property including the house and found marijuana and guns. This investigation was part of a special effort in Bradford County and Union County to target illegal drug dealers and drug users.

One question in a drug case like this is whether the homeowner's rights were violated when law enforcement observed the marijuana plant in his backyard and then searched his house and property. All individuals have very strong privacy rights in their homes and their adjacent property. As criminal defense attorneys, we have handled cases where police officers have gone into the backyards of people without search warrants and found illegal drugs only to have those cases thrown out because that kind of search is a Fourth Amendment violation. The analysis is different when the initial observation is done by a helicopter in the air space over a house. Whether the initial search of the property and observation of the marijuana is legal depends on several factors, such as whether the helicopter pilot had a right to be where he was and whether he had to use any special equipment to see one marijuana plant in the yard from a helicopter.

Any time the police or someone acting on behalf of the police observe suspected illegal drugs or suspected illegal activity in or near someone's home without a search warrant, there is the potential for a Fourth Amendment violation that needs to be investigated. If there is such a Fourth Amendment violation, evidence of illegal drugs or other illegal activity should be thrown out..

What happens in a criminal case in Florida when a witness, who may have information that incriminates him/herself, is called to testify at a deposition? Most people are familiar with the Fifth Amendment of the U.S. Constitution which says that a person has a right not to incriminate him/herself. This means that a person can not be forced to make statements to the police or prosecutors that could be used against him/her in a criminal case. But there are times in Florida where the state will subpoena a person for a sworn statement or deposition and ask that person for information that could implicate the person in a crime. Does that person have to answer those questions?

The person may have to answer questions and provide information that would be incriminating, but the information cannot be used against the person in a criminal case. A person who is subpoenaed to testify will be given what is called use and derivative use immunity. This means that the state cannot use the statements provided by the witness or any information derived by those statements against the witness in a criminal case. For instance, suppose the witness said that he drove the defendant to a particular hotel after the robbery and hid the gun in room 100. The state could not use that statement against the witness in a prosecution against the witness as an accessory to the robbery crime. Additionally, the state could not go to the hotel and get the registration form signed by the witness for room 100 and use that against the witness if the only way they learned of this information was through the witness's statement. However, if the state was aware of the information about the hotel from another independent source, they could still use that information against the witness based on that other source.

Most people understand that when they have a private conversations with their lawyers about an existing or potential case, whether criminal or civil, those conversations are supposed to remain confidential. This is referred to as the attorney-client privilege, and it means that no one can compel the attorney or the client to disclose what was discussed between them.

However, in the context of a pending case or investigation involving a corporation and its executives or employees, it may not be clear who exactly the attorney represents. For instance, in a recent federal criminal case, the government was investigating a company and its chief financial officer for conspiracy and securities fraud. The company hired a lawyer to assist with an internal investigation and an audit. That lawyer interviewed the CFO who gave that lawyer important information critical to his own case. The CFO believed that the lawyer was his lawyer and all communication between the two was confidential and private. This particular attorney had even represented the CFO in the past in civil cases, which further led the CFO to believe that he was having confidential discussions with his personal lawyer.

Subsequent to those conversations with the CFO, the lawyer disclosed information from those conversations to other lawyers and accountants assisting in the internal investigation of the company and ultimately to the government. The government then intended to use that information against the CFO.

The CFO then hired his own criminal defense attorney. He argued that none of the information obtained by the government by the initial lawyer should be used against the CFO. To do so would violate the attorney-client privilege. However, the government argued that the CFO should have known that the information he provided to the lawyer would be shared with the accountants, auditors and others as part of the company's internal investigation. As a result, the CFO should have known that the lawyer was not his personal lawyer but a lawyer whose client was the company. And if the attorney's client was the company rather than the CFO personally, information provided by the CFO could be shared with others related to the company.

This issue has not been finally decided, and it may depend on what exactly the attorney told the CFO prior to their discussions regarding exactly whom the lawyer represented and what would be done with the information. In any case, where a company and an executive or employee of the company are facing criminal charges or an investigation, it is important to know the exact nature of the relationship with the attorney and what he/she intends to do with the information before making any statements. If the attorney-client relationship is later determined not to exist because the client is the company and not the individual, then any statements made to the attorney may be used against the individual.

I found an article showing Polk County, Florida (about four hours south of Jacksonville, Florida) police officers serving a search warrant looking for drugs. They did not realize that the owner of the house set up surveillance cameras in his house. While some of the police officers appeared to be searching the house, several others were playing Wii bowling, a popular new video game. You can read the article and see the video here.

I can honestly say I have never seen anything like this before. But the real question for the person charged with the drug crime(s) is what effect this improper police behavior will have on his case. The right to search the house was based on a search warrant. Assuming that search warrant was valid and based on probable cause, this behavior probably will not affect the police officers' right to enter the house. However the Fourth Amendment protection against unreasonable searches and seizures also affects what the police can do once they enter the house pursuant to a valid search warrant.

The search of a house must be conducted as quickly and efficiently as necessary to search only for the items listed in the search warrant. Obviously, if police officers are playing video games rather than getting in, getting the search done and getting out, they are not abiding by their Fourth Amendment obligations. A criminal defense lawyer would file a Motion to Suppress based on the alleged Fourth Amendment violation to try and have any drug seized in the house thrown out. In any case, if the drug charges go to a jury, the criminal defense lawyer has a lot to argue about the reliability of the police and the manner in which the drug investigation was conducted.

In a recent case near Jacksonville, Florida a defendant was charged with the sex crimes of lewd or lascivious exhibition and transmitting an image harmful to minors by an electronic device. The criminal charges stemmed from an undercover operation during which a police officer posed as a thirteen year old over the internet. According to the police, the defendant began communicating with the police officer in a sexually inappropriate manner. The defendant and the police officer were chatting on Yahoo Instant Messenger. At some point, the defendant set up a web cam and exposed his penis several times. The defendant was ultimately arrested and charged with the two sex crimes.

At trial, the defendant argued that what he wrote on Yahoo Instant Messenger and what he showed on his web cam were protected by the First Amendment right to free speech because it was done through a public website. However, the court found that communications over the internet directed to children are not protected by the First Amendment and the state has a compelling interest to protect children from harmful materials on the internet.

One question that comes up regarding the sex crime of lewd or lascivious exhibition is what the words "lewd" and "lascivious" mean. Unfortunately, these words are not defined in the criminal statute. So, there is no easy answer as to what conduct is criminalized under this law. Whether conduct is lewd or lascivious is decided first by the police and the prosecutor who decide to make an arrest and bring criminal charges, but ultimately by a judge or jury. The statute gives an example of lewd or lascivious conduct as follows: exposing one's genitals in a lewd or lascivious way. Of course, when the definition includes the words we are trying to define, that definition is not very helpful.

Recent statistics show that there were over 1.7 million arrests on drug charges in the United States in 2008. One might expect that many of these arrests targeted the more serious drug offenses like trafficking and manufacturing dangerous drugs like cocaine, heroin and methamphetamine. That was not the case.

Of the 1.7 million drug arrests last year, about half of them were related to marijuana, and most of those were for possession of marijuana. In Florida and the other southern states, arrests for possession of marijuana comprised more than half of all drug arrests. Fewer than 20% of all drug arrests were for drug dealing or manufacturing. In 2008, the number of people arrested for drug crimes was approximately three times that of violent crimes.

What this boils down to is we are still expending a tremendous amount of money and resources going after petty drug offenses at the expense of much more serious criminal offenses.

I read a good article on identify theft from the Miami paper. The article discusses how the crime of identity theft is not only becoming much more prevalent, but is also becoming harder to detect. This is the case in Florida and throughout the country.

The following are some of the more interesting points made in the article. Only 1 out of every 700 people who commit identity theft is ever arrested. When you consider that identity theft is often a difficult charge for prosecutors to prove, the percentage of people who are actually convicted of identity theft is quite a bit lower than the 1 in 700 figure. Additionally, the effects of identity theft can be extremely onerous on a person. However, those effects are not always immediately apparent like with other crimes. The article noted that on average, a person victimized by identity theft does not realize he/she is a victim of identity theft until a year after the actual theft. One of the best ways to stay diligent and reduce this lag time is to check your credit reports at the three major credit reporting agencies (Equifax, Experian and Transunion) at least once a quarter. Finally, the author of the article illustrates how easy it is for skilled hackers to gain access to other people's information. However, most people and businesses fail to appreciate the risk of a compromised network and do not take adequate security measures. This only exacerbates the problem of more identity thefts and fewer detections of identity thefts.

Every now and then, a driver in Jacksonville, Florida and other areas of Florida will come across a DUI roadblock and get stopped by the police who are randomly looking for people driving under the influence of alcohol or drugs. We all should know that normally the police cannot stop a person in his/her vehicle (or otherwise) without specific facts indicating he/she is committing a crime or traffic violation. If a DUI roadblock randomly stops people without any prior facts indicating a crime or traffic violation, how can this be legal in Florida?

The highest court in Florida decided that DUI roadblocks are legal if they meet certain criteria. The main criteria of a proper DUI roadblock is that the police must establish a written plan in advance detailing how the DUI roadblock will operate and when and how vehicles will be stopped. This plan must take as much discretion away from the police officers as possible regarding the decision as to who will be stopped. In other words, if the police officers at a DUI roadblock are allowed to decide at the scene who gets stopped based on their own subjective observations or the police officers develop their own plan for stopping vehicles at the DUI roadblock, this is not a legal DUI roadblock. The police officers are required to plan in advance how the vehicles will be stopped that does not leave the decision up to the discretion of the police officers. If the plan dictated that the police officers can stop every vehicle or every 5th vehicle, that would be legal. But if the police officers were permitted to stop every vehicle that looked a certain way or every vehicle with a certain kind of driver, that DUI roadblock would likely be considered illegal. If the DUI roadblock is considered illegal, the DUI charge should be thrown out of court.

Other factors relating to a valid DUI roadblock are whether the DUI roadblock is well marked and warning signs are provided so it is as safe as possible for motorists. The police officers must also be in uniform and easily identifiable as police officers. While police officers are permitted to stop drivers at a valid DUI roadblock, that stop must be as brief as necessary to investigate DUI's, and the encounter with the driver must not be more intrusive than necessary.

If you have been stopped at a DUI roadblock and arrested for DUI or any other charge in Jacksonville, Florida or the North Florida area, feel free to contact us for a free consultation to determine if the DUI roadblock and/or your arrest was legal.

In a recent trafficking in methamphetamine and marijuana case, the police went to the house of the suspect with a warrant for his arrest. The police officers knocked on the door without announcing who they were and why they were there. The police officers then opened the door and found the suspect inside. They also found marijuana in the home that was the basis for the trafficking in marijuana charge. After his arrest, the suspect made some statements that the State intended to use against him in court.

Later in the case, the criminal defense lawyer moved to have the evidence of the marijuana and the defendant's statements thrown out based on an illegal arrest. In Florida, we have a law that says the police must knock and announce themselves and their purpose before entering a person's home to execute an arrest warrant. This is a compromise between a person's a 4th Amendment privacy interest in his/her home and the State's right to serve valid arrest warrants at a person's home. In addition to knocking and announcing who they are and why they are there, the police must give a person a chance to open the door and let the police inside before coming in on their own.

In this case, the police violated the knock and announce statute by failing to make the proper announcements and waiting to see if someone would answer the door. The question then is: what is the proper remedy for the defendant after such a violation? The proper remedy is not that the charges that were the basis of the arrest get dropped. However, there is support in the law in Florida that if the police obtain any evidence as a result of the improper arrest, that evidence will get thrown out and may not be used against the defendant in court. Therefore, if the police violate the knock and announce statute, any evidence they find in the house after the illegal entry and any statements they get after entering the house may be thrown out of court.

Consider a fairly common situation where a police officer makes a traffic stop of a vehicle. The police officer testifies that he saw the driver shuffling around in the vehicle as if he was trying to hide or grab something, such as a gun or illegal drugs. In this case, the police officer testifies that he suspected that the driver may be armed and/or involved in drug activity so he removes the driver from the vehicle to conduct a brief search for weapons. This is referred to as a patdown for weapons. Can the officer handcuff the driver prior to the brief patdown? Normally, where the officer can testify to specific facts indicating there may be a threat of harm, he/she can briefly handcuff the suspect(s) and briefly pat him/her down to see if he/she is in possession of a gun or other weapon.

However, once the suspect is patted down and no weapons, drugs or other illegal items are found, the officer must remove the handcuffs. Additionally, any basis for a further patdown or more invasive search has disappeared once the patdown has been completed and no threat is apparent.

This came up in a recent drug case south of Jacksonville, Florida where the initial patdown did not produce any guns, drugs or other evidence of criminal activity. However, the police officer kept the suspect in handcuffs. A second police officer came to the scene, patted the suspect down and found a crack pipe and some cocaine. That person was charged with possession of cocaine and possession of drug paraphernalia, but the case was later dismissed because that search was illegal. Once the initial officer conducted the pat down and did not find anything, there was no additional basis for a second patdown. The officer should have removed the handcuffs and allowed the person to leave. The second patdown was illegal, and the evidence seized as a result of that patdown could not be used in court.