Jacksonville Criminal Lawyer Blog

With all of the talk about the terrible economy and out of control state and national deficits, one has to wonder how much sense it makes for law enforcement to spend so much time, effort and money on arresting and incarcerating people for minor drug offenses. However, recent statistics for 2009 show that the police are arresting people for minor drug offenses almost as much as ever despite the fact that arrests for violent crimes and property crimes have steadily decreased over the last couple of years. FBI crime statistics for 2009 show that police in the United States made more than 1.6 million drug arrests in 2009. More than half of those arrests for for marijuana related crimes. Therefore, in one part of the country, marijuana is legally considered medicine that people can use to alleviate symptoms from their medical conditions. Travel a certain distance in one direction or another in this country and the use of the same plant labels that person as a criminal for which he/she may get serious jail time and the local, state and county governments will spend exorbitant amounts of taxpayers' money to prosecute that person.

Of the over 850,000 marijuana related arrests in 2009, most of them were for simple marijuana possession. Very few of those arrests were for marijuana trafficking, sales or manufacturing. Police are still arresting many more people for simple drug possession crimes than for more serious crimes like violent crimes, burglaries and white collar crimes.

Many of the crimes we see that involve computer or networking technology and criminal activity of a sexual nature deal with people in possession of child pornography on their computers. Law enforcement officials are able to track these photos and videos and find them on just about any computer. People need to understand that connecting a computer to the internet is like opening a door to the harddrive through which the government can freely walk, with the appropriate search warrant or permission, of course.

However, another crime we are starting to see more often in Florida deals with a new term called sexting. Sexting, which is derived from the word texting, involves sending sexually suggestive, and sometimes illegal, picture via text messages, which can be done on most cell phones these days. Some kids may think that sending a naked picture to a friend of similar age is a joke. In fact, sending a sexually suggestive picture of a minor to another person over the internet or via text message can be a serious crime in Florida. Police in the Jacksonville area are receiving more complaints about such activity and following up with arrests. When a person uses a cell phone or computer to send such a picture, it can be a federal crime. One twenty-four year old kid was recently sentenced to twenty years in federal prison for violating federal criminal laws by sending naked pictures of a minor over the internet and by cell phone. Everyone should be aware, and adults should tell their kids, that it can be a very serious crime to send nude and other sexually suggestive pictures by text message or over the internet, regardless of how harmless it may seem.

As criminal defense lawyers who handle all varieties of criminal cases in state and federal court in Florida, particularly in the Jacksonville area, we get a lot of good questions from clients about the legal process in Florida. One common question from clients pertains to Miranda warnings. Most people understand Miranda warnings to be those statements from the police officer to the suspect when he/she is being arrested. The police officer is supposed to inform the person, among other things, that he/she has a right to remain silent, that if he/she says anything it can and will be used against him/her in court and he/she has a right to a lawyer before and during any questioning by police.

Anyone suspected of, or arrested for, a crime would do well to heed those warnings. All too often we see people giving all sorts of statements to police that do nothing but help the police make their case against them. If you are unsure about whether it is prudent to talk to the police or anyone else about your case, the best course of action would be to contact a criminal defense attorney who can properly advise you on that subject and anything else related to your criminal case.

But what happens if the police officer never gives the Miranda warnings to the suspect? Some people we have spoken to asked if that means the charges must be dropped because the arrest was invalid. That is not necessarily the case. Miranda warnings deal with statements given by suspects to the police when they are in custody. If the police officer does not give Miranda warnings, but no statement is given to the police by the suspect, the failure to give Miranda warnings may have no effect on the case. However, if a person is taken into custody by the police, no Miranda warnings are given and the person does give a statement to the police, that statement can be found to be inadmissible and thrown out of court. If the state cannot prove their case without that statement, the failure to give Miranda warnings could ultimately result in the criminal charges being dropped.

In a Florida mortgage fraud case, the police obtained an arrest warrant for a person they claimed had obtained fraudulent mortgage loans by using straw buyers and falsifying salary and employment information on loan documents. The police located the suspect driving near her home, stopped her vehicle and arrested her. When she was arrested in her vehicle, the police saw a bag in the backseat containing various documents. The police seized the bag of documents when they arrested her.

The suspect was ultimately convicted after her trial for mortgage fraud, grand theft and racketeering. Her criminal defense lawyer tried to have the documents found in the bag thrown out claiming the police illegally seized those documents. The criminal defense attorney claimed that the police did not have a search warrant for the bag of documents and had no reason to believe the bag contained evidence related to the case at the time the bag was seized. The criminal defense lawyer argued that unlike drugs or guns, nothing about a bag of papers suggests that it is evidence of criminal activity, and therefore the police do not have a right to take it without a search warrant.

However, the judge disagreed and allowed the state to use the documents as incriminating evidence to convict the defendant of the mortgage fraud and the related criminal charges. Under Florida law, when the police arrest a person in his/her vehicle, the police are permitted to search the vehicle if the suspect is within arm's reach of items in the passenger compartment of the vehicle at the time of arrest or there is reason to believe the vehicle has evidence related to the crime(s) for which the suspect is being arrested. In this case, the judge found that latter standard to have a very low threshold. Basically, the judge found that since mortgage fraud is the kind of crime where one would expect there to be physical evidence, perhaps in a vehicle, the police were authorized to assume the bag they seized might have contained evidence of the related crimes. As a result, the police were justified in seizing the bag.

This was a crucial decision in this case. We have handled many mortgage fraud cases, and the documents are critical to the state's ability to prove their case. Whether such documents are permitted as evidence in a mortgage fraud trial can be the difference between a conviction and a not guilty verdict. This kind of decision allowing the police to search a vehicle on an assumption can obviously have serious ramifications in gun and drug cases as well.

In federal criminal cases charging a defendant with fraud relating to the operation of a business, a common defense is asserted that the defendant relied upon the advice of a professional or other advisor, such as an accountant, and had the right to assume his/her conduct was legal. In a federal criminal trial where the defendant is charged with fraud or a related crime and the defense is a good faith reliance upon such advice, the judge should normally allow the defendant to assert such defense and should normally instruct the jury that such good faith reliance upon an advisor is a valid defense if supported by the facts.

In criminal fraud cases in federal court, the government normally must prove that the defendant intended to defraud the victim. In other words, the government must prove beyond a reasonable doubt that the defendant's purpose in performing the acts that constitute the fraud crime was to defraud another person out of services, money and/or other property. As a result, a logical defense to criminal fraud would be that the defendant had no ill-intent, but rather thought he/she was acting lawfully based upon the advice of an advisor. This is why good faith reliance upon the advice of a professional can be a valid defense in federal criminal fraud cases. Of course, whether the defendant acted with intent to defraud someone or was honestly and innocently relying upon an advisor is a matter for the jury to decide.

However, in order for the jury to properly understand and evaluate this defense when deliberating, the judge in the case must instruct the jury about this good faith reliance defense. If the judge rejects the federal criminal defense lawyer's request to instruct the jury about the defendant's good faith reliance upon an advisor defense, the jury cannot consider it when deciding the case. Under federal law, the judge does not have the authority to decide what the defendant's defense is and instruct the jury accordingly. Likewise, the federal judge in a criminal case does not have the authority to decide that the defendant's defense of good faith reliance upon an advisor is weak or lacking in credibility and therefore refuse to instruct the jury about the defense.

The threshold to allow a jury to consider that defense is low. If there is any foundation in the evidence for the defense that the defendant relied upon the advice of an advisor, then the judge must instruct the jury to consider that defense. If the jury finds that the defendant did rely in good faith upon the advice of such a professional, it should be a complete defense to a fraud charge in federal criminal court and result in a not guilty verdict.

In any driving under the influence of alcohol or drugs (DUI) case in Florida, the state has to prove that the defendant was actually driving, or in actual physical control of, the vehicle. That seems obvious, but it may be problematic for the state in situations where the police respond to an accident and the drivers and others are out of the vehicles at the time. Accidents happen quickly, and sometimes, no one actually sees who is driving. Then, one may think it is as simple as the police officer asking who was driving. However, the initial discussion between the police officer and the driver about the accident is often inadmissible in a criminal case for DUI.

This is referred to as the Florida accident report privilege. This Florida law says that a driver is required to tell the police what happened after an accident. However, because this requirement affects a person's right to remain silent if there is possibly criminal activity involved, any statements the driver makes about the accident during the accident investigation phase are not admissible in a criminal case. When the state cannot use the statement by the driver that he/she was driving the vehicle, the state may have a very hard time actually proving the suspect was driving a vehicle.

Even where the statement that a suspect was driving is not protected by the accident report privilege, the statement is still not admissible in a DUI trial unless and until the state can prove that a crime was committed by substantial evidence independent of the statement. In other words, if there is insufficient evidence to prove that the suspect may have committed a DUI and the suspect then makes incriminating statements about committing a DUI, that statement will not be admissible in a DUI trial. So, before such a statement can be used against a defendant in a DUI trial, the state must have other evidence that he/she committed the crime. Going back to the original point, when an accident occurs and the police show up after the fact, a suspect's statement may be thrown out of a criminal trial if there are no solid witnesses or other evidence establishing that a DUI was committed.

Consider a situation where a crime occurs and the police believe they know who committed the crime. They obtain an arrest warrant, but they are not able to locate the suspect for some time. When they do find the suspect, the suspect runs from the police. At the defendant's trial for the original crime, is evidence that the defendant ran from the police admissible at the trial for the original crime in Florida? It depends.

When a person runs from the police when the police are arresting that person for a crime that previously occurred, the prosecutor may not be allowed to introduce evidence of the defendant's flight from police at the trial. It largely depends on how much longer the arrest, and the running from the police, occurred after the initial crime because the key question is whether it can be shown that the defendant ran from police due to consciousness of guilt for this particular crime. In other words, if the police are looking for person X for a robbery that occurred previously, can it be shown that person X ran from the police because he knew he was guilty of that robbery?

Obviously, one of the factors is how much time elapsed between the crime and the flight from police. The more time between those two events, the harder it is for the prosecutor to establish that the defendant had a reason to believe the police were looking for him for that particular crime. If the flight occurs a couple of days after the crime, it is more likely that evidence of the defendant running from police will be admitted at the trial. However, if it is months or years later, such evidence should not be admissible at the trial absent other facts suggesting the defendant knew the police were after him/her for that particular crime.

As the Internet becomes more popular and more accessible through portable and handheld devices, more people are sending sexually explicit pictures in violation of state and federal laws. These pictures are also being sent as attachments to text messages to and from cell phones. What one person thinks is a harmless or funny text or email may actually be a serious felony crime.

Federal law enforcement authorities have noted an increase in such online criminal behavior. One area that is specifically of note is the crime of sexual extortion. Sexual extortion may result when a teenager sends a naked or suggestive picture of herself over the Internet, and someone threatens to expose her behavior to family or friends unless she sends more such pictures or more sexually explicit pictures. One federal criminal affidavit labeled this kind of crime as sextortion, according to an article on SFgate.com. The article provides several examples of recent, high-profile cases involving sexual extortion over the Internet, and the punishments some of these defendants are getting are severe, including lengthy prison sentences. Some people, particularly young people, may assume that sending sexually suggestive pictures over the Internet or via text message is fun or a harmless prank. However, depending on the circumstances, state or federal law enforcement officials may consider it a serious crime with serious consequences. And emails and text messages are often easy to trace back to the sender. The best course of action is to not post any suggestive pictures of oneself or anyone else on the Internet or send them via email or text message to anyone. Once they get posted or sent, they can end up anywhere.

When a police officer suspects a person of driving under the influence of alcohol or drugs (i.e. DUI), he/she will sometimes request a blood draw to measure blood alcohol content rather than a breath test, or breathalyzer, or a urine test. While an officer can request a breath test, or breathalyzer, or a urine test from a suspect when he/she has good reason to believe the suspect is intoxicated from alcohol and/or drugs to the extent his/her normal faculties are impaired, i.e. DUI, that officer is not as free to request blood to investigate a DUI as blood tests are more intrusive than breath and urine tests.

Under Florida law, a police officer can only request a blood draw to check for DUI if: 1) the police officer has reason to believe the suspect was operating the vehicle under the influence of alcohol and/or drugs, 2) the suspect appears for treatment at a medical facility and 3) a breath or urine test is impractical or impossible. A person can always consent or agree to a blood test, but that consent must be free and voluntary. If a police officer requests a blood draw when all three of the above factors are not present without notifying the suspect that a blood test is not required and that implied consent only applies to a breath or urine test, then consent to a blood test for DUI is not valid.

The three factors allowing police to request a blood test for DUI are most often present in serious accidents. However, if a person is in a less serious accident and does not need medical treatment, a blood test is likely inappropriate. Blood tests are not the norm for DUI investigations in Florida. If you have been arrested for DUI in the Jacksonville, Florida area, or even been asked by a police officer to submit to a blood test and think you may be arrested for DUI in the future, feel free to contact us for a free consultation. It is certainly possible that the police officer was not justified in requesting the blood draw and any incriminating blood alcohol test results may be inadmissible in court.

We recently posted an article about how police in Jacksonville and throughout Florida are emphasizing DUI stops and arrests more than ever. It is important for people to know their rights when they are stopped by a police officer who believes he/she may be driving under the influence of alcohol or drugs. A guilty or no contest plea to DUI in Florida brings about very serious consequences from a prolonged license suspension to significant fines and the possibility of a jail sentence. For that reason, if you have been stopped for a possible DUI or arrested for DUI in the Jacksonville area, consider immediately contacting a DUI attorney in Jacksonville with the experience to properly handle your DUI case.

We also came across a recent article in the Jacksonville news that said Jacksonville is the worst speed trap city in Florida. Of course, a speeding ticket is nowhere near as serious as a DUI. In Florida, a DUI is a misdemeanor crime that carries serious penalties. If a person gets a third DUI, the state has the option of charging him/her with a felony that carries up to five years in prison. A speeding ticket is a civil infraction for which a person can be fined, although that fine can be fairly high depending on the difference between the person's speed and the speed limit. Additionally, with a speeding ticket and other traffic infractions, points can be assessed on a person's driver's license if the traffic citation results in a conviction. If a person gets too many points in a certain period of time or fails to properly deal with the traffic citation, that could result in a suspended license. If a person gets stopped for driving with a suspended license, he/she will likely be arrested for the crime of driving with a suspended license which is a misdemeanor crime and, like a DUI charge, can be upgraded to a felony crime in Florida once a person accumulates enough driving with a suspended license convictions.

There are certain crimes in Florida that require the defendant to register as a sex offender for the rest of his/her life after a conviction. This sex offender status confers fairly rigid requirements on a person, and failure to comply can lead to an additional serious felony criminal charge in Florida. For instance, the Florida Department of Law Enforcement will likely send an annual letter to a person's registered address asking the person to verify that he/she still resides there. If the letter is not answered in time, the police may come looking for that person. If the police determine that the person has changed his/her address, permanently or temporarily, without notifying the proper authorities, that person will likely face a new third degree felony charge.

Under the Florida career sex offender law, a person must register with the Department of Corrections within two days of establishing a permanent or temporary residence. The definition of a permanent residence might sound a lot like a temporary residence. A permanent residence is a place where the person "abides, lodges or resides" for 14 or more consecutive days. A temporary residence will include any trip of four days or more or just about any series of trips to the same location. A temporary residence is defined under the Florida criminal laws as a place where the person "abides, lodges or resides" for 14 days in the aggregate in any calendar year that is not his/her permanent residence or a place where the person "routinely abides, lodges or resides" for a period of 4 or more consecutive days or nonconsecutive days in any month which is not his/her permanent address. For example, if a person likes to visit a friend at the same location one weekend each month, that would qualify as a temporary residence and need to be reported.

Any time the person changes or establishes a permanent or temporary residence under the Florida law definitions above, he/she needs to report that information to a Florida driver's license office within two business days.

The residency definitions are very strict in terms of reporting. If a person goes on vacation for four days, technically, he/she has to report that address as a temporary residence. Basically, any time a person visits the same location for four consecutive days or spends four or more separate days at a particular location in a month, the safe thing to do is to follow the reporting requirements in order to avoid the additional felony charge.