Posted On: January 29, 2011

Some Florida Counties Getting Search Warrants for Driver's Blood in DUI Cases

In DUI cases in Florida, the police officer who suspects the driver of driving while intoxicated will normally request that the driver submit to a breath alcohol test, or breathalyzer, which is the common test to determine if a person is driving over the legal limit. Blood and urine tests also exist, but police typically request the breath test due to the fact that it is easier to administer. In Florida, when a person gets a driver's license and accepts the privilege to drive, he/she agrees to submit to an alcohol test after a lawful arrest for DUI where the police officer had probable cause to make the DUI arrest. Normally, the driver can refuse the breath, blood or urine test- the police officer will not force the the driver to submit to the breathalyzer, blood or urine test. However, if the driver refuses to submit to the breath, blood or urine test after a lawful arrest for DUI, the person is subject to a longer driver's license suspension and being charged with a misdemeanor crime for a subsequent DUI test refusal. The refusal can also be used against the driver in court during the DUI criminal case.

However, police and prosecutors in some counties in Florida are fighting back against people who refuse the breathalyzer or other alcohol test. They are having a judge available in certain situations, such as when police set up checkpoints or during times when police expect a lot of drunk drivers, who will quickly issue search warrants when a driver arrested for DUI refuses the breath test. In this situation, after the driver refuses the breathalyzer, the police officer will tell the judge why he/she thinks the driver has committed a DUI and request the judge to issue a search warrant to obtain the driver's blood to be tested for alcohol content. In this situation, the police would not force the driver to submit to the breath alcohol test, but it would force the driver to submit to a blood alcohol test.

Ths method of getting a search warrant on the fly and forcibly taking one's blood to test it for alcohol obviously raises several concerns. It is likely this will be challenged through the appellate courts in Florida and other states to determine if the strategy and the method are legal.

Posted On: January 26, 2011

Is it Illegal in Florida to Doctor Shop for Prescription Drugs Without Misleading the Doctors?

Police and prosecutors throughout Florida have significantly increased their attention on drug possession, distribution and trafficking crimes relating to pills (such as Oxycontin, Xanax, Hydrocodone, Oxycodone and many others) as opposed to more traditional drug crimes involving marijuana, cocaine, crack and heroin. New laws in Florida have been enacted to deal with pain clinics and people who acquire such pills without the proper prescription. Doctor shopping is one area where lawmakers, police and prosecutors are cracking down.

Doctor shopping, generically, deals with a person going to various doctors within the same time period (30 days) in order to get multiple prescriptions for the same or similar drugs. Because doctors and doctors' offices may not have good networking systems that can tell them if a patient has seen a similar doctor or been given a related drug prescription in the recent past, people looking to acquire a large number of drugs may go to different doctors for prescriptions without each doctor knowing of the patient's prior visits to the other doctors.

Florida passed a law making doctor shopping illegal. However, what must the state prove to establish that a person has broken the doctor shopping law and illegally obtained drugs without a prescription? Is it a crime if the patient fails to tell the doctor that he/she has seen another doctor and obtained a similar drug prescription within the last 30 days? Or, is it only a crime if the doctor or other medical personnel asks the patient if he/she has seen a different doctor and obtained a drug prescription within the last 30 days and the patient withholds that information or lies about it? The former places the affirmative duty on the patient to tell the doctor about a similar doctor visit. The latter places the initially duty on the doctor or doctor's assistant and then requires the patient to tell the truth about other doctors and prescriptions. Of course, when talking about a serious felony charge in Florida, the distinction is important.

Specifically, the Florida law on doctor shopping makes it illegal for a person to withhold information that he/she has received a controlled substance or a prescription for a controlled substance within the past 30 days when seeking a controlled substance or a prescription for a controlled substance from a doctor. Does a person commit felony doctor shopping in Florida if he/she goes to an orthopedic doctor on Monday and gets a prescription for Oxycontin, sees another orthopedic doctor on Wednesday and gets a prescription for Oxycontin and then visits a pain management doctor on Friday to get a prescription for Hydrocodone if no one ever asks the patient if he/she has been to any other doctors within the past 30 days and the patient stays silent on the issue? The Florida doctor shopping law, as it is written, is not clear because it does not specifically indicate whether the patient has the duty to disclose a recent prescription for a drug or merely must truthfully answer the question about a recent drug prescription when asked.

A recent case in Florida (not in Jacksonville's appellate district) addressed this issue. In that case, the court held that it is the patient's duty to inform the doctor that he/she had seen a doctor and received a similar drug prescription within the past 30 days when the patient is seeking a drug prescription. In other words, if a patient is presently seeking a prescription for a controlled substance from a doctor, he/she must affirmatively disclose that he/she has seen a different doctor who gave him/her a similar drug prescription within the past 30 days, if that is the case. In order for the crime of doctor shopping to be committed, there is no requirement that the doctor or a doctor's assistant first ask the patient if he/she has recently seen a different doctor and been given a similar drug prescription.

While this case does clarify the Florida doctor shopping law as it is written, it still leaves room for ambiguity. This affirmative duty on the patient to disclose a recent drug prescription only applies where the patient is presently seeking a drug prescription. Therefore, if a patient sees a doctor for the second time in a week with complaints of serious pain with the idea of getting a drug prescription, but does not specifically ask for the prescription, the patient would not have to disclose the prior doctor visit and prescription and could not be guilty of doctor shopping under this recent case.

Posted On: January 23, 2011

Felony Driving With a Suspended License Case Thrown Out Due to Illegal Seizure

In a recent felony driving with a suspended license case in Florida, the charge was thrown out because the court determined that the police officer illegally seized the defendant before he learned the defendant's license was suspended. This is an important case because we see the same situation arise in DUI cases.

In this case, the police officer saw the defendant sleeping in the driver's seat of his vehicle in a parking lot with the car running. It was early in the morning, and the parking lot was otherwise empty. The police officer approached the vehicle and saw the defendant apparently asleep in the car. The police officer knocked on the driver's side window and woke him up. The police officer did not notice anything illegal going on or any cause to be concerned for the driver's safety. After waking him up, the police officer ordered the driver to turn off the car. The police officer then asked the driver for his license and learned he had a suspended license. Because he had several prior driving with a suspended license convictions, the driver was charged with felony driving with a suspended license, which carries a maximum penalty of five years in prison in Florida.

The criminal defense attorney for the driver filed a motion alleging that the police officer illegally seized the driver before learning he had a suspended license. The police are not allowed to detain, or seize, a person so that he/she is under the impression that he/she cannot leave without reasonable suspicion of criminal activity, or specific evidence that the person needs assistance. In this case, the police officer did not have any specific reason to believe the driver was committing a crime when he approached the vehicle. When the police officer ordered the driver to turn off his car, the driver was under the impression that he could not leave and was being detained. Because the police officer did not have any specific legal reason to make that demand of the driver, it was an illegal seizure. As a result, any evidence the police officer uncovered (such as the evidence that his driver's license was suspended) was a result of an illegal search and seizure and was thrown out. The charge of driving with a suspended license was thrown out with that evidence.

As criminal defense lawyers in the Jacksonville, Florida area, we have seen several cases that start out this way. Many times, they are DUI cases that begin when a police officer sees someone resting or sleeping in his/her parked vehicle and approaches to investigate. There is nothing illegal about sleeping in one's car parked in a parking lot. If the police officer does not have reasonable suspicion that the person is committing a crime, the police officer may not order the person to turn off the car, get out of the car or do anything else that constitutes a detention.

Posted On: January 20, 2011

Florida Man Arrested for Possession of Child Pornography Found in Luggage at Airport

A Florida man was arrested after Transportation Safety Administration (TSA) agents found child pornography pictures when searching his bag before a flight. In this case, the man checked a bag at the airport and proceeded to wait for his flight. Without his knowledge, TSA agents apparently randomly selected his luggage and searched it for explosives or other dangerous materials. The TSA agent found a folder in the suitcase and looked through it. Inside the folder, the TSA agent found several child pornography pictures. The police were called, and they obtained a search warrant to search the suspect's computer, flash drives, camera and other items found in his suitcase. A total of 196 child pornography pictures were found as a result of the search.

The defendant's criminal defense lawyer filed a motion to suppress the evidence of child pornography claiming that the TSA agent's search of his suitcase and the folder went beyond the scope of what is appropriate for a search for explosives and other dangerous materials in an airport. In other words, the criminal defense attorney argued that the TSA agent went beyond the scope of what the Fourth Amendment allows when he opened the suspect's folder and looked at the pictures so any evidence found in that search and the subsequent searches should be thrown out.

This kind of search, a routine search performed by a non-police officer government employee, is considered an administrative search and is governed by different laws than searches conducted by police officers. When police officers search someone, they typically need either permission, a search warrant or specific facts indicating the person is committing a crime. There is more leeway for administrative searches such as this one as there is a significant interest in making sure air travel is safe and people do not bring dangerous materials onto airplanes. Government agents are allowed to search people and their belongings in airports without a search warrant or probable cause as long as the search is reasonable and conducted for the limited purpose of making sure the person is not a danger to others. This does not give government employees the right to go through a person's luggage and search every inch of it. Additionally, relatively unobtrusive technology exists that can search for weapons so TSA agents may be further limited in the searches they can conduct on their own.

In this case, the TSA had a policy of sending all luggage through a machine that detects explosives but also manually searching random suitcases. Normally, the TSA agents swab the luggage to test for explosives residue, but they also have discretion to search through papers and photographs. The court found that this search was legal. The court based its decision on the fact that the TSA policy permitted a random search, and the quick search of the folder in the luggage for explosives was not overly intrusive. As a result, the court found the search was not legal.

This case must have been a close call. It is a stretch to think that government agents can look through one's paperwork and claim it is a search for explosives. Of course, appellate courts are not quick to let people walk in close cases after they have been found with almost 200 child pornography pictures.

People carrying child pornography pictures onto a plane and having their bags randomly searched is a fairly rare scenario. However, it is not uncommon for people to bring a small amount of drugs or pills for which they do not have a prescription onto a plane. Cases like these give the government more authority to look through a person's private effects and use the excuse that they are searching for explosives or weapons as a basis for an intrusive search.

Posted On: January 17, 2011

Car Crashes Into Fence and Police Find Marijuana Grow House

Police in Putnam County, Florida (which is about an hour south of Jacksonville, Florida) found a large indoor marijuana grow house after a vehicle crashed through a fence at the house, according to an article on News4Jax.com. Police arrived to investigate the crash and smelled the marijuana. At that point, they obtained a search warrant for the house and found 227 marijuana plants and 143 marijuana grow lights. No one was at the home when the police found the marijuana and marijuana growing equipment, but the police are trying to determine who is responsible for the house and marijuana and believe the marijuana grow house is being used to grow marijuana and transport it to south Florida.

Normally, the police in Florida are not allowed to go into a person's home or through a fence at a person's home without permission from the homeowner or a search warrant signed by a judge. However, there can be an exception for either emergency situations or where the police are lawfully there for another reason. For instance, if there is an auto accident at someone's home, the police have a right to investigate that accident. If they find evidence of illegal activity while they are lawfully investigating the accident, they would have the right to investigate that criminal activity. Of course, there are limits to what the police can do when they are investigating an accident. The police cannot use it as an excuse to look around someone's home to see if there is any evidence unrelated to the accident.

In this case, it would be important to know exactly what the police did and where they went to determine that there was marijuana in the house. If the police discovered the marijuana during the course of their normal accident investigation, the investigation may be legal. If the police started searching around the property when it was not necessary to investigate the accident, the search for the marijuana may be illegal and any evidence of the marijuana may not be used against whomever may get arrested for cultivating marijuana in this case.

Posted On: January 14, 2011

Trafficking in Cocaine Case Reversed When State Could Not Prove Constructive Possession

A recent trafficking in cocaine case near Jacksonville, Florida was reversed because the state could not prove that the defendant was in constructive possession of the cocaine. In any possession or trafficking case, the state has to prove the defendant knew about and possessed the illegal drugs beyond a reasonable doubt. Possession of drugs can be proven in two ways. Actual possession means what it sounds like- the defendant was holding the drugs or had them on his/her person. Constructive possession is more vague. Even where the defendant is not holding the drugs in some way, the state can still prove the defendant was possessing the drugs by proving constructive possession. Constructive possession deals with things we know are present and over which we have some control. For instance, if a person lives in an apartment by himself and the police find a bag of cocaine in his desk drawer along with his wallet and bills, the state has a pretty good constructive possession case. On the other hand, if the state cannot prove that the defendant knew the drugs were present and had some control over them, the state cannot prove constructive possession.

In the recent trafficking in cocaine case, a police officer stopped the defendant for a traffic violation. During the stop, the officer found a bag with over 100 grams of cocaine under the driver's seat. The vehicle did not belong to the defendant, no fingerprints were found on the bag, the police officer never saw the defendant touch the bag and the defendant did not make any statements admitting the cocaine was his or he knew it was there. There was no evidence connecting the defendant to the bag of cocaine other than the fact that it was under the seat of a car he was driving. Because the state did not present any evidence that the defendant knew the bag of cocaine was there or had placed it there, the trafficking in cocaine conviction was reversed.

This is a fairly common scenario in possession of, and trafficking in, illegal drugs cases. Had the bag been sitting on the passenger seat with the defendant being the only one in the car, the state's case would have been much better. The defendant in this case did not make any statements to the police about the cocaine. The number one way the police obtain the evidence they need to prove a constructive possession case is by obtaining statements about the drugs from the suspect. Had this defendant made any statements indicating he knew the cocaine was in the vehicle, the state's trafficking in cocaine case would have become much stronger.

Posted On: January 11, 2011

Lewd or Lascivious Molestation Case Reversed Due to Marijuana Evidence

In a recent criminal case near Jacksonville, Florida where the defendant was charged with lewd or lascivious molestation for allegedly showing his penis to a 5 year old and enticing her to touch it, the state's conviction of the defendant was reversed because the state improperly introduced evidence of the defendant's marijuana use. Apparently, the victim's dad and the defendant used to smoke marijuana together in the same house where the alleged lewd or lascivious molestation occurred, and this testimony came out at the trial when the prosecutor was questioning the victim's dad. The defendant was not charged with possession of marijuana; he was only charged with the sex crime.

The jury convicted the defendant of lewd or lascivious molestation, but the conviction was reversed on appeal. The evidence of the defendant's marijuana use was not relevant to the case and whether the defendant committed lewd or lascivious molestation. Evidence of the defendant's marijuana use was considered impermissible character evidence and should not have been heard by the jury. In other words, the purpose of that testimony was to attack the defendant's character because whether the defendant had used marijuana in the past had nothing to do with whether he committed the sex crime for which he was charged. Sometimes when there is an error in a trial, a conviction is not necessarily reversed if the error is considered harmless, i.e. the mistake did not appear to affect the jury's guilty verdict. However, when the jury hears of other crimes committed by the defendant that have nothing to do with the crime that is the basis of the trial, this will almost always result in a conviction being reversed.

Posted On: January 8, 2011

When is a Refusal to Submit to the Field Sobriety Exam Not a Refusal in Florida?

In Florida, when the police officer is conducting a DUI investigation, that officer is going to request that the driver submits to a field sobriety examination at some point. This is a very subjective and voluntary test which is supposed to be designed to see if the driver is intoxicated but practically is often just used as evidence to bolster the DUI case for the police and the state. People in Florida need to understand their rights and that they have an absolute right to refuse to submit to the field sobriety exam.

If a driver refuses a police officer's request to submit to a field sobriety exam, that alone does not affect his/her driving privileges. The risk of a refusal is that the refusal can be used against the driver in his/her DUI trial where the prosecutor will argue the driver refused the field sobriety exam because the driver knew he/she was drunk and would fail. Of course, the driver will likely have perfectly good reasons for refusing the field sobriety exam that his/her criminal defense lawyer can assert to refute the prosecutor's argument.

However, in some DUI cases, the driver's refusal to submit to a field sobriety exam cannot be used against the driver in the DUI trial. The refusal cannot be used against the driver in the DUI trial when the refusal was not a true refusal. What does this mean? First the police officer must give the driver the proper warnings when the police officer requests that the driver take the field sobriety tests. The police officer must tell the driver that a refusal to take the field sobriety exam will result in adverse consequences for the driver. In other words, the refusal can be considered by the police officer in his/her decision to arrest the driver for DUI and a later DUI trial. Second, the refusal has to be a clear refusal. Third, if the driver initially refuses but then changes his/her mind, the police officer must allow the driver to take the field sobriety exam if it is still convenient to do so and the tests results would not be affected by the driver's changed mind. Therefore, if the driver refuses at the DUI stop and changes his/her mind after he/she has already been booked into the jail, that is probably too late and the refusal can likely be used against the driver at the DUI trial. However, if the driver initially refuses but changes his/her mind a few minutes later while they are still at the scene of the stop, the police officer would likely have to allow the driver to take the field sobriety exam. If the police officer does not, the driver's criminal defense lawyer would likely be successful in making sure the driver's initial refusal to take the field sobriety exam cannot be used as evidence by the state against the driver at the DUI trial.

Posted On: January 5, 2011

Should I Submit to the Field Sobriety Tests During a DUI Stop in Florida?

When police in Jacksonville and other cities in Florida stop a driver and suspect he/she is driving under the influence of alcohol (DUI), the police officer will ask the driver if he/she will submit to field sobriety tests, which are very subjective exercises that are supposed to be designed to determine if the driver is impaired by alcohol. A driver has an unconditional right to refuse these field sobriety tests. When deciding whether to submit to a request to a police officer's request to take field sobriety tests, the driver should consider several things, including: 1) the test is completely subjective and the judge is the police officer who already thinks the driver is intoxicated, 2) the field sobriety tests can be very difficult for anyone as they test balance and coordination in circumstances a normal person is not used to in a situation where most people would be nervous and 3) if the police officer does not bother to videotape the field sobriety tests (and they often do not), the driver does not have much of a way to refute the police officer's subjective opinion that the driver failed.

However, there can be a downside to refusing to take the field sobriety tests. That downside really is not that the driver is more likely to get arrested. If the police officer thinks the driver is drunk and is asking for the field sobriety tests, the police officer is probably going to make the arrest no matter what happens going forward. The downside is that after the driver gets arrested and charged with DUI, the fact that the driver refused the field sobriety tests can be used against the driver at the DUI trial, and the prosecutor will obviously argue that the driver refused because he/she knew he/she would fail due to his/her alcohol level. Of course, the driver may have perfectly good reasons for refusing the field sobriety tests, i.e. an injury that would affect balance and coordination, too nervous, the encounter was not being videotaped, the fact that the police officer already made up his/her mind that the driver was drunk, etc., and the criminal defense lawyer would have an opportunity to argue those defenses at the DUI trial as well.

Posted On: January 2, 2011

It is Illegal in Florida for a Felon to Possess a Firearm or Carry a Concealed Weapon

In Florida, if a person has been convicted of a felony crime, it is thereafter illegal for that person to possess a firearm (or ammunition) or carry a concealed weapon. There are distinctions between those two crimes. The first part deals with possession and firearms (although it should be noted that ammunition and electric weapons are also included in this crime). Possession means more than just having the firearm on one's person. The firearm can be in the person's car or home or in proximity to the person, and if the state can prove the person knew it was there and maintained some control over the firearm, the state may be able to prove the person was in possession of the firearm. In that case, the person can be charged with possession of a firearm by a convicted felon.

The other crime referenced in this statute deals with carrying weapons. Carrying is certainly narrower than possession. To prove that a convicted felon was carrying a concealed weapon, the state must prove that the person actually had actual possession of the weapon. It is not enough for the state to prove the person had a weapon near him/her or had it in his/her home or vehicle. But the second part is broader. A weapon is not limited to a firearm. It can include a knife or boxcutter or something similar that can be used to cause a serious injury to someone. Of course, not every convicted felon carrying a knife or boxcutter is committing a serious crime. Some people use those items to work, eat and perform routine activities. However, if the state can prove that the person is a convicted felon and is carrying a concealed knife, boxcutter or similar item for use as a weapon, then the state may be able to prove the crime of possession of a concealed weapon by a convicted felon.