Jacksonville Criminal Lawyer Blog

For a long time in federal criminal court, sentences for crimes involving crack cocaine were much harsher than sentences for crimes involving powder cocaine. In fact, all other things being equal, a person with 100 grams of powder cocaine may likely receive the same sentence as a person with 1 gram of crack cocaine. The Obama administration has discussed changing this system so that crack cocaine crimes are punished more in line with powder cocaine crimes in federal court.

Congress recently passed a law to help accomplish that goal, at least partially. The law does not equalize powder cocaine and crack cocaine sentences, but it significantly lowers the sentencing ratio. Now, all things being equal, 1 gram of powder cocaine is punished the same way as 18 grams of crack cocaine in federal criminal cases. Additionally, 28 grams of crack cocaine will trigger the 5 year minimum mandatory prison sentence while 280 grams of powder cocaine will trigger that 5 year minimum mandatory federal prison sentence.

Now, the question for many people who are serving sentences for crack cocaine crimes in federal prison, or have pending crack cocaine cases in federal court, is whether this new law applies to them. Can a person who is serving a sentence for a crack cocaine crime who was sentenced pursuant to the 100-1 ratio go back in front of a federal judge to get his/her sentence reduced? Can a person with a pending crack cocaine case be sentenced pursuant to the new 18-1 ratio? The new law does not address these questions, i.e. when the law becomes effective, or whether the law is retroactive. Normally, when a law does not address this issue of the effective date or retroactivity, it does not apply to prior or existing cases. Normally, it would only apply to cases where the date of the offense occurred after the date the law was officially passed. However, that issue will likely be argued and litigated in federal criminal cases going forward.

You may have seen commercials sponsored by police and other law enforcement agencies warning people that they will be arrested for DUI if they drive drunk. The slogan for the advertisement is, "Over the Limit, Under Arrest." Of course, in Florida the legal limit for DUI is 0.08.

The National Highway Traffic Safety Administration (NHTSA) recently announced that they are beginning their annual drunk driving (DUI) arrest campaign. More than 11,000 police and law enforcement agencies all over the country will take part in the effort to make driving under the influence of alcohol or drugs (DUI) arrests. That means there will be more DUI checkpoints, and police officers will be more inclined to conduct DUI investigations and make DUI arrests after traffic stops. The NHTSA pointed to a survey which showed that approximately 8% of all drivers polled admitted to driving drunk when they thought they were over the legal DUI limit last year.

Obviously, we can all agree that preventing drunk driving is important. However, the issue arises as to who is considered a drunk driver. As criminal defense lawyers in Jacksonville, Florida who have handled many DUI cases, we know how subjective DUI arrests can be. Basically, if a police officer pulls a driver over and believes the driver is intoxicated, the officer can make an arrest. Ninety nine times out of a hundred, that arrest report will say the officer smelled a strong odor of alcohol, was slurring his/her speech, had bloodshot, watery eyes and was swaying. Once a police officer draws the conclusion that the driver is drunk, that assumption will cloud all of the police officer's observations during the DUI investigation. If the police choose not to have a video camera at the scene, the police officer's observations cannot be verified objectively. The arrest is completely subjective. And when there are quotas or specific campaigns to arrest drunk drivers for DUI like this one, the line between a drunk driver and a driver who may have just had a couple of drinks with dinner and feels fine is blurred.

Of course, there are many ways to defend against a DUI charge that is based on the subjective opinions and statements of the police officer. If you have questions about DUI law in Florida or have been arrested for DUI, feel free to contact the law office of Shorstein & Lasnetski for a free consultation 24/7.

For example, where a person gets arrested in or near his/her vehicle, the police officer may have the legal authority to search the vehicle depending on the circumstances. Many drug cases are made this way. Arrests for driving with a suspended license or driving under the influence (DUI) are obviously common arrests involving people and their vehicles.

If there is a sober person at the scene, such as a friend or relative of the person getting arrested who has permission to take the vehicle, the police officer should let that person drive the vehicle away. If not, and there is no one available to drive the vehicle from the scene, the police can impound the vehicle. In those cases, the police are allowed to conduct what is called an inventory search. The official reason for an inventory search is to document any valuable items in the vehicle so they can be secured and returned to the suspect. However, police use that opportunity to search for drugs, guns and any other evidence in the vehicle

One other basis for searching a vehicle after an arrest is the search incident to an arrest. This kind of search has been limited fairly recently, but it basically allows a police officer to search a vehicle if the person arrested is close to the vehicle to make sure there are no weapons or anything else to which the defendant may have access. However, in most cases, when the police arrest someone, they place that person in handcuffs and safely in their patrol car. If that is where the suspect is, he/she obviously cannot reach anything in his/her vehicle. In that case, there is no basis for the police officer to search the vehicle.

In a large drug trafficking case south of Jacksonville, Florida, several defendants were charged with being in possession of 200 to 400 grams of cocaine, which qualifies for a cocaine trafficking charge in Florida. However, the trafficking charge against one of the defendants was thrown out because the state could not prove that he was in actual or constructive possession of the drugs. Actual possession is straightforward- if you are holding drugs or have drugs in your pocket, you are in actual possession of the drugs. Constructive possession is more of a gray area. A person can be convicted of possession of drugs even though the drugs are not actually in the person's possession. If the person knows of the drugs and has the ability to control the drugs, he can be convicted of possession of the drugs. A good example would be the CD's in my car. I am not anywhere near them, but I know they are there and I have the ability to access and control them since they are in my car and I have the key.

In this cocaine trafficking case, the police received information that several individuals were manufacturing and selling cocaine from some apartments. The police found cocaine in one of the apartments but only drug paraphernalia in the second apartment. There was no evidence that the defendant had any ownership or control over the apartment with the cocaine. He did have control over the second apartment, but no actual cocaine was found there. When the defendant was arrested, there was no cocaine on his person or in his vicinity. The defendant did not make any statements admitting to possessing any cocaine.

The state did present evidence that suggested the defendant was involved with cocaine, but no actual evidence linking the defendant to the possession of any specific amount of cocaine. As a result, the state could not prove actual or constructive possession of 200 to 400 grams of cocaine, and the drug trafficking charge against him was dismissed.

Police received a call that a woman was driving under the influence of alcohol, located the vehicle and arrested the driver for DUI. Most DUI investigations occur after police claim to see a driver violate some traffic law such as speeding, swerving outside the lane or running a red light. The police officer stops the vehicle and claims to observe signs of alcohol use and impairment such as an odor of alcohol, bloodshot and watery eyes and slurred speech. Occasionally, police officers set up roadblocks or checkpoints where vehicles are stopped at certain intervals and the drivers are checked for possible DUI, driving with a suspended license or an outstanding warrant.

Less often, the police will get a call from a witness, perhaps another driver on the road, who reports that a driver is driving erratically and may be DUI. We have never heard of a situation where the call to police actually comes from someone in the same vehicle as the suspected DUI driver, and it is the driver's daughter, no less, as the article indicates.

When the police get a call from an anonymous caller that someone is committing a crime, whether it is a DUI, sale of drugs or any other crime, the police cannot just pull the car over or detain the person on the street when they find him/her. The police officer must identify the suspect and observe something concrete which supports the claim that the person is engaging in criminal activity. In the case of an anonymous DUI call, the police officer would have to at least observe some swerving or other traffic violation. When the call comes from an identified source and provides specific information about criminal activity, the police have more authority to make a stop based solely on the caller's information. In this case, if the daughter of the suspected DUI driver is calling and she is in the car, it is likely that the police had a legal right to stop the woman and initiate a DUI investigation.

In a recent criminal case near Jacksonville, Florida, the defendant was charged with obtaining prescription drugs by fraud, which is a felony crime. This crime is actually more common these days as more people gain access to various prescription drugs. Many police departments have special units designed to make arrests relating to illegal possession and sale of prescription drugs.

In this case, the police received a tip that the defendant was doctor shopping. Doctor shopping involves a person going to different doctors to obtain the same or similar prescriptions. The suspect will not tell the subsequent doctor that he/she has already seen a previous doctor to obtain the same or similar prescription. The suspect will then obtain multiple prescriptions to be filled at different pharmacies to obtain a larger quantity of prescription drugs.

Pharmacies keep computer files of patients, their prescriptions, the dates prescriptions were filled and the doctors who prescribed them for at least two years. The police in this case obtained the computer printout for the suspect from the pharmacy without a subpoena or court order and saw that she had multiple prescriptions for drugs from different doctors in a short period of time. The prescriptions were for common drugs like Oxycontin and Oxycodone. The police then obtained the prescriptions and showed them to the prescribing doctors who indicated they did not know of the other prescriptions when they wrote their particular prescription.

After being charged with the crime for obtaining prescription drugs by fraud, the criminal defense lawyer filed a motion to suppress the evidence of the different prescriptions because the police did not get a search warrant before obtaining that information from the pharmacies. The criminal defense attorney argued that prescription drug information is private, and a court order, or subpoena, is required before such information can be released.

In Florida, one's medical records are private and are protected from unreasonable searches and seizures. Neither a police officer nor anyone else can look at another person's medical records without express permission or a court order. However, controlled substance records at a pharmacy do not carry the same privacy protections in Florida. In fact, Florida law specifically allows the police to obtain a person's pharmacy records without a subpoena or search warrant and without notifying the patient in advance. Therefore, if the police are involved in an investigation of a person relating to prescription drugs that are controlled substances (such as Vicodin, Percocet, Xanax, Oxycontin and many other common drugs), they may be able to look into your pharmacy records without your knowledge.

The U.S. Department of Justice recently announced criminal charges against 94 people relating to Medicare and Medicaid fraud which is reportedly the largest health care fraud sting in U.S. history, according to an article on SFgate.com. The officials said the investigation and charges span seven states and involve more than $251 million in false Medicare and Medicaid claims.

Medicare or Medicaid fraud typically involves a doctor or other health care provider seeking reimbursement through the government program for medical supplies or medical treatment that was either unnecessary or never provided to a patient. In these recent cases, the subjects of the investigation are suspected of submitting false claims for physical and occupational therapy, home health care and other treatments. The federal government has recently discussed an increased focus on these cases and created a task force to investigate Medicare/Medicaid fraud in various states. Florida is reported to be one of the prime focuses of the task force. The government claims that health care fraud costs the country billions of dollars each year.

A recent report by the U.S. Department of Justice, Bureau of Justice Statistics, shows that identity theft, also referred to as financial theft, crimes increased as of 2007 when the most recent statistics were compiled. According to the report, 7.9 million households, or 6.6%, report that at least one member was a victim of some type of identity theft in 2007. That was a major increase over the previous two years.

The Bureau defined identity theft as the unauthorized use or attempted unauthorized use of a credit card or other financial account or misuse of personal information. The most common type of identity theft is the unauthorized use or attempted unauthorized use of one's credit card. The average loss incurred by victims of identity theft was $1,830 in 2007 according to the report.

Florida gives out more speeding tickets than any other state, according to a recent article at News4Jax.com referring to a study done by the National Motorist Association. Georgia is second. The Florida state trooper interviewed for the article indicated that they do not specifically target speeders, but we have written on this blog about how states will step up enforcement of traffic tickets to raise money, particularly when economic times are bad.

When a person gets a ticket for speeding or another moving violation, it can affect him/her in various ways. First, there is a fine that goes along with any traffic ticket. If the judge adjudicates the person guilty for the traffic violation, points will be added to the person's driving record. Insurance companies see these points and may raise insurance rates. Additionally, if a person accumulates too many points in a specific period of time, the DMV will suspend his/her driving privileges.

We receive calls from people who have received various traffic citations. We can schedule a hearing and request that the judge reduce the fine and/or withhold adjudication on the violation so no points are added to the driving record. If successful, a person can avoid the risk of a license suspension and increased insurance premiums that go along with points on a driving record.

In a recent attempted second degree murder case near Bartow, Florida (which is about 3 1/2 hours southwest of Jacksonville, Florida), a defendant's attempted second degree murder conviction was reversed because the judge did not properly instruct the jury about the defendant's right to defend himself.

In this case, the defendant, the alleged victim and two other friends were sitting in a park drinking. The defendant and the alleged victim got into some type of altercation, and the defendant ultimately stabbed him with a knife. When questioned by the police and throughout the trial, the defendant (and his criminal defense attorney) claimed that he stabbed the alleged victim because he thought the alleged victim was going to kill him.

In this attempted second degree murder case, the judge instructed the jury that a person cannot use deadly force unless he/she first reasonably tries to avoid the danger from the other person. However, the law has changed, and this is no longer an accurate statement under Florida law. Florida has since eliminated this so-called duty to retreat. Under current Florida law, as long as a person is not doing anything illegal and is in a place he/she has a right to be, he/she does not have to retreat, can stand his/her ground and can use any force reasonably necessary to prevent death, great bodily harm or a forcible felony.

In other words, in the past in Florida, before a person could use deadly force, he/she had to retreat or avoid the situation if reasonably possible. Now, if a person reasonably believes that he/she is about to be the victim of violence and/or a forcible felony, he/she can use reasonable force to prevent that from occurring without first determining if retreat is reasonable. And when a person does use deadly force under those circumstances and is charged with a violent crime, he/she can use the new Florida law as a complete defense to that use of force. Because the judge failed to tell the jury about this new law in this case, the defendant's conviction for attempted second degree murder was thrown out.