Jacksonville Criminal Lawyer Blog

In Florida, the crime of child abuse is committed when a person intentionally causes physical or mental injury to a child or does something that could reasonably be expected to cause a physical or mental injury to a child. Assuming the child is not seriously injured, child abuse is a serious third degree felony that carries a maximum penalty of three years in prison in Florida. Police and prosecutors take these crimes very seriously, as one might expect when children victims are involved.

However, there is a question as to what exactly constitutes the crime of child abuse in Florida. Some police will make arrests and some prosecutors will file criminal charges for conduct that was considered normal, or even encouraged, not too many years ago. Cases in Florida have attempted to clarify what conduct can be considered criminal abuse of a child. In Florida, an actual injury is required for the conduct to be criminal. This means something more than just causing discomfort to the child. It would seem to require actual objective evidence of any injury such as a sprain, broken bone, burn, puncture of the skin or at least a bruise. If a person causes some harm to a child but none of those objective findings are present, it is likely that the crime of child abuse was not committed, and any charges for child abuse should be thrown out.

The lesser third degree felony child abuse charge also contemplates a crime where a person causes a mental injury to the child. In such a case, the state would likely have to establish some sort of impairment to the child's ability to function mentally that was caused by the act of child abuse and was not previously present.

There is a more serious crime of child abuse where this issue is not a factor. If a person tortures a child or intentionally causes great bodily harm, disability or disfigurement to a child, it is aggravated child abuse. This is a first degree felony which is normally punishable by up to 30 years in prison.

There have been many cases in Florida and across the country that looked at whether police who have a search warrant to search one's home can barge into the residence or must knock and announce themselves first. There have also been cases in Florida that discussed what the proper remedy is if the police violate a requirement to knock and announce themselves prior to entering a residence to execute a search warrant.

When the police have a search warrant for a particular residence, they are permitted to search that residence for the items listed in the search warrant. However, they generally must knock and announce their presence rather than just busting in the door and starting their search. There are exceptions if the police are aware of facts that would indicate that knocking and announcing their presence would create a safety hazard. In those situations, the police can explain those facts to a judge and apply for a search warrant that specifically authorizes them to avoid the knock and announce requirement and go directly into the residence.

However, what happens if the police are required to knock on the door and announce themselves before going into the residence but fail to do so? In Florida, the answer is not yet clear. Normally, when the police perform an improper search, it is a violation of the Fourth Amendment that results in any evidence seized being thrown out. For instance, if the police search someone without consent or a search warrant and only based on a hunch or an anonymous tip that the person is carrying drugs or other evidence, that would be an illegal search in violation of the Fourth Amendment. The proper remedy would be for the criminal defense lawyer to have the evidence thrown out. A criminal defense attorney would make the same argument if the police failed to knock and announce themselves before executing a search warrant in a person's home and found illegal drugs, guns or other evidence inside. However, the law in Florida has not been established with certainty whether the remedy is to throw out the evidence found as a result of a knock and announce search warrant violation or if the evidence found is still admissible in court. This may be an issue that the Florida Supreme Court ultimately decides.

Last year, we posted about how violent crimes and property crimes have decreased despite the recession and difficult financial times for many people. The common thinking was that as times get tough for people, more people would commit crimes. That was not the case in 2009, and it does not appear to be the case in 2010. According to a recent article citing FBI statistics, violent crimes and property crimes have continued to decline in 2010 even though the economy has arguably improved very little. Violent crimes have actually dropped 6.2% in the first half of 2010, and property crimes dropped 2.8%. The 2010 numbers are part of a three year trend of fewer crimes across the country. Experts have not been able to come up with many reasons why crime has been consistently dropping as the economy has declined. However, the trend appears to be pretty clear after three years.

One area where crime has increased is in the area of illegal pills. As criminal defense lawyers in the Jacksonville, Florida area, we have seen many more cases involving people arrested for illegally possessing various pills (such as Oxycontin, Oxycodone, Hydrocodone, Xanax and others) without a prescription and distributing such pills illegally. The police are also vigorously going after pain clinics and other medical providers whom they allege are dispensing these narcotic pills improperly. While overall crime may be trending downward, the police are still focusing on particular areas where they allege crime is still going strong. Based upon our observations, there is little doubt that the distribution and possession of illegal pills is an area on which the police are currently focusing.

Police in the Jacksonville area arrested 135 people, mainly in Duval County and Clay County, for either allegedly illegally possessing pills without a prescription or illegally distributing pills, according to an article on www.Jacksonville.com. According to police, the arrests occurred between September and December of this year, and the arrests are only the first phase of a longer investigation into the sale and use of illegal pills in the Jacksonville, Florida area and throughout Florida. The investigation apparently also includes doctors, pharmacists and other medical professionals who are accused of distributing pills unlawfully. Approximately 12,000 pills were seized in the latest operation, and police indicate there is more to come.

We have seen pain clinics pop up all over Florida in the last couple of years, and we represent a variety of such people from owners of pain clinics to people accused of illegally possessing various pain pills. Many of the people involved with pain clinics and other medical providers provide services to people who have chronic pain and are in need of medical services but may not have insurance or the funds to avail themselves of other medical providers. State and federal authorities have been cracking down on these pain clinics and allege that some of them are illegally dispensing pain pills in large quantities and those pills are being re-sold on the street at a significant profit. While there may be some people who are abusing the system and re-selling pain pills, there are also medical providers who are offering a valuable service to people in need of medical care for chronic pain who have no other way to get relief. In situations such as these, we see law enforcement cast a wide net that certainly catches people illegally distributing and using illegal drugs but also people who are providing a valuable and legitimate business and medical service.

In this case, it appears that the police in the Jacksonville area are determined to make a lot of arrests for alleged illegal pill-related crimes as this is just the first phase of the investigation. The concern, as always, is that honest and legitimate people involved in the business of pain management will get caught up in the massive investigation. In those cases, it is important that their rights are protected and the police and government are challenged to prove that illegal activity actually took place.

Because people in Florida have a Constitutional right to be free from unreasonable searches and seizures as well as a privacy right in their homes, police can only search one's residence for drugs, guns or other evidence in limited circumstances. The two primary bases for legally searching one's home are consent to search and a valid search warrant. However, there may be other circumstances where a police search is legal.

For instance, in a recent cultivation of marijuana case near Jacksonville, Florida the police had an arrest warrant for the defendant's roommate. They both lived in a mobile home. An arrest warrant is just what it sounds like- it gives the police the right to arrest the person listed in the warrant, but it is not a search warrant so it does not give the police the specific right to search anything in particular. However, in this case, the police arrived at the mobile home, and the person in the arrest warrant answered the door. That person asked the police if he could retrieve some of his things, and the police followed him inside. The person was looking back into the mobile home and acting nervously as if someone else was in the mobile home. The police officers called out to anyone else in the mobile home, but no one responded. The officers then walked around the mobile home to see if anyone else was present and found several marijuana plants and marijuana cultivation equipment in one of the rooms. They also found the defendant who was arrested for felony possession of marijuana and cultivation of marijuana.

The criminal defense lawyer for the defendant tried to have the evidence of the marijuana thrown out based on the argument that the search was illegal. The criminal defense attorney argued that the police officers did not have a search warrant or consent to search the mobile home so the search was illegal and any drug evidence found was inadmissible in court. However, there is an exception to the general rule that the police cannot search a home without a search warrant or consent that the court found applied in this case. When the police make an arrest in one's home, if they have a legitimate reason to believe someone else may be present who may pose a danger to the police, they can search the immediate area for their safety. This is called a protective sweep. If they happen to find marijuana or other evidence of a crime during this protective sweep, they are authorized to seize it and use it against the suspect in a criminal case.

In this case, the police testified that they had reason to believe someone else was in the mobile home who was not responding to their calls. As a result, they felt the need to check the rest of the mobile home to make sure there were no threats to their safety present.

Under the law, this kind of protective sweep may be valid if there are facts to suggest a threat might be present. However, it only gives the police the right to look around to see if anyone else is in the immediate vicinity. It does not give the police the right to go searching all over the residence for other evidence.

It is not uncommon in the Jacksonville, Florida area and throughout Florida to see people riding motorcycles without a helmet. As criminal defense lawyers in the Jacksonville, Florida area, one question we recently were asked from a client is whether the police can pull them over for not wearing a helmet while riding a motorcycle. This can be much more serious than just being subjected to a traffic ticket. Many serious criminal cases start with a seemingly harmless police stop. Most DUI's start with the police officer claiming to observe some sort of moving violation allowing him/her to pull the driver over and initiate a DUI investigation. Many illegal drug cases start the same way and end with the police searching the vehicle and/or the driver/passengers and finding illegal drugs. Gun arrests also often start with the police pulling a driver over for some sort of fairly harmless moving violation.

So, it is important as criminal defense lawyers, to understand when a police stop is unlawful because when it is an illegal stop and the police discover some evidence of a crime, that evidence can be thrown out of court.

In a recent case near Jacksonville, Florida, a police officer stopped a motorcycle driver for not wearing a helmet to ask him if he had proper motorcycle insurance. The officer then learned that the driver had a suspended license and arrested him. The criminal defense lawyer challenged the stop arguing that the police officer did not have a legal right to stop the motorcyclist for not wearing a helmet to check his insurance.

The court found that the stop was illegal. As a result, any evidence of his suspended license that the police officer learned after the stop was inadmissible, and the charges were thrown out. It is not proper for a police officer to stop a person on a motorcycle for not wearing a helmet to check for insurance. The general rule is that a police officer can only stop and detain a person, whether on the street or in a vehicle, if he/she has reasonable suspicion that the person is involved in criminal activity. Not wearing a helmet on a motorcycle is not evidence of illegal activity (except for those under 21), and therefore not a legal basis for a valid stop by police.

In a recent DUI case near Jacksonville, Florida, the defendant was pulled over by police for failing to maintain a single lane. The police officer conducted a DUI investigation and decided the defendant was impaired while driving his vehicle. The police officer observed vomit on the defendant and in his vehicle, glassy and bloodshot eyes and slurred speech. The police officer then searched the defendant's car and found a pill bottle containing Hydrocodone pills (Lorcet). The defendant had a prescription for the Hydrocodone pills. He denied drinking but admitted taking the prescription drugs three days prior to driving.

The criminal defense lawyer for the defendant tried to keep the evidence of the Hydrocodone away from the jury. The criminal defense attorney argued that evidence of the prescription drugs was prejudicial and not necessary for the state to prove its DUI case. The court ultimately disagreed and found that the evidence of the Hydrocodone pills was admissible.

In a DUI case in Florida where there is evidence of drug use, even if it's a prescription drug, that evidence may be admissible in certain circumstances. For instance, the relevant factors under Florida law are: 1) there is significant evidence the defendant was impaired while driving, 2) there is evidence that the defendant recently used the drug, 3) there is not enough evidence that the defendant used some substance other than the drug which would explain his/her impairment, such as alcohol, and 4) the evidence does not show that the drug did not cause the impairment.

The idea here is that when a person is charged with DUI based on impairment from alcohol, the state has the burden of proof and needs to prove that the defendant was intoxicated by alcohol to the extent that his/her normal faculties were impaired. Evidence of prescription drugs or other illegal drugs is not necessarily relevant to the issue of whether the defendant was impaired by alcohol. However, as some people may not be aware, it is also illegal to drive while impaired by drugs, even prescription drugs. So, if a person is impaired by prescription drugs, he/she may be arrested for and convicted of DUI. In that case, where there is evidence that the defendant was impaired by illegal drugs or prescription drugs, and not alcohol, the state has a right to prove the DUI via impairment from those drugs and those drugs may be admissible into evidence.

In a recent case outside of Jacksonville, Florida, the police were looking for someone who had a warrant for his arrest. They tracked him down to a house which had a secondary building in the back yard that was also used as a residence. The police found the suspect in the secondary residence. When they came in to arrest him, they found cocaine and marijuana in plain view in the residence. They charged the suspect with trafficking in cocaine and possession of marijuana.

The criminal defense lawyer on the case ultimately got the case thrown out. The main problem with the state's case was they had no proof that the defendant owned or lived in the secondary residence. In order for the state to prove trafficking in illegal drugs or possession of illegal drugs, the state has to prove that the defendant was in possession of the drugs. Normally, this means the person actually had the drugs in his/her possession. However, actual possession of drugs is not required for a drug possession conviction. Constructive possession of drugs can also result in a conviction in Florida. To prove constructive possession, the state has to prove that the defendant knew the drugs were present AND had some sort of control over the drugs. So, just because the drugs were out in the open in the same room and the defendant knew they were there is not enough to convict him for trafficking or drug possession. The state must prove more- for instance that he put them there or they were his drugs. Being in close proximity to illegal drugs is not enough. If the defendant had said they were his drugs, that would be sufficient for a conviction. Or, at a minimum, if the state could prove that the defendant lived at that residence by himself, that could be circumstantial evidence that the drugs were his.

The police often arrest anyone who is found near illegal drugs, whether in a residence, a vehicle or on the street. However, without a statement from someone admitting to ownership of the drugs, being near drugs is not sufficient for a drug conviction in Florida.

In Florida, in order for the police to detain someone for further investigation, whether for a drug related crime or a DUI, the police must have some specific evidence of the criminal activity before going further with the investigation.

In a recent case, the police observed a person slumped in the driver's seat of a car parked at a convenience store. The car was running. The police went to the car and saw the woman sleeping in the driver's seat. The police knocked on the door to wake her but were unsuccessful. The police officer said he smelled an odor of alcohol coming from the inside of the vehicle. The police then opened the door. He had to shake the person to wake her. They ultimately conducted a DUI investigation and arrested her for DUI.

The criminal defense lawyer attempted to get any evidence that the defendant was intoxicated thrown out by arguing that the police did not have a legal basis to open her door and remove her from the vehicle. The court disagreed. In Florida, the police cannot search a vehicle or a person or seize or detain a person without specific evidence of criminal activity. In this case, the court found that the evidence that the woman was sleeping in the driver's seat of a running car, the woman would not wake up with the police banging on the window and the odor of alcohol was sufficient for the police officer to open the woman's car door and investigate further.

However, in a similar case, the court came to a different conclusion. In the other case, the person was asleep in the driver's seat of a car parked at a restaurant. The police went to the vehicle and knocked on the window. The person awoke and looked at the police officer but refused to open his door until the police officer asked him five times. Only then did the driver get out of the car. At that point, the police officer testified that he observed signs that the driver was impaired by alcohol. In this DUI case, the evidence that the driver was impaired by alcohol was thrown out, and the DUI case was dropped. The difference in this case was that there was no specific evidence that the driver was committing a crime before the police officer ordered him to get out of his vehicle. The police cannot order someone to exit his/her vehicle without specific evidence of wrongdoing. The fact that someone is sleeping in his vehicle, without more, is not enough evidence that the person is committing a crime.

In a recent criminal case south of Jacksonville, Florida, undercover police officers claimed the defendant illegally sold them prescription drugs Oxycodone and Xanax. The police then obtained the defendant's pharmacy records from two different pharmacies without a search warrant or subpoena. Those records showed that the defendant was seeing two different doctors for the same condition and receiving prescriptions for the pills he was allegedly re-selling. The police then contacted the doctors to obtain medical information about the defendant. This was also done without a search warrant or subpoena. The police found out when the defendant's next appointment was with his doctor and waited to arrest him there. When he was arrested, the police found more Oxycodone and marijuana in his possession. The defendant was charged with sale of controlled substances (the prescription drugs Oxycodone and Xanax) and possession of a controlled substance and marijuana.

The criminal defense lawyer for the defendant filed a motion to suppress all of the evidence of the illegal drugs based on the argument that the police illegally obtained information and evidence about the defendant without the required consent, subpoena or search warrant. Florida law provides that medical providers may not discuss medical information or release medical information about a patient without the patient's consent or a subpoena from the court. This is the law because a person's medical condition and medical records are confidential and cannot be shared with others without the patient's permission or a justifiable legal reason acknowledged by a judge.

However, the court partially disagreed with the criminal defense attorney and found the police officers' actions to be legal with regard to the pharmacy records. The reason is that in Florida, pharmacy records of prescriptions for controlled substances are governed by a different statute which allows the police to obtain those records without a subpoena or search warrant. The statute with respect to pharmacy records of controlled substances is not clear in limiting the circumstances when a police officer can obtain those records. The statute seems to authorize the police to obtain one's pharmacy records of controlled substances when the police are enforcing "the laws of this state relating to controlled substances." Practically, this would seem to mean any time the police are calling a pharmacy and requesting the records.

However, the court did find a problem with the police obtaining medical information about the defendant from the doctor as doctors and general medical information are bound by the confidentiality laws.

As a result, people need to understand that general medical information is confidential and cannot be shared with the police without the patient's consent or a subpoena, i.e. court order. On the other hand, pharmacy records regarding controlled substances are not protected by the same confidentiality rules, and police may have fairly easy access to them.