Jacksonville Criminal Lawyer Blog

As criminal defense lawyers in the Jacksonville, Florida area, we have seen many more possession, sale and trafficking cases that involve pills such as Hydrocodone, Oxycodone, Oxycontin and other controlled substances that are legal with a valid prescription. The laws in Florida can be very harsh for such crimes with potentially long prison sentences for relatively few of these pills.

While it may seem obvious, when a person is charged with possession of pills, or trafficking pills based on possession of a large number of pills, having a valid prescription for the pills is a defense to the crime. In a recent case near Jacksonville, Florida, a woman was charged with trafficking in Hydrocodone for illegal possession of more than 14 grams but less than 28 grams of Lortab, a controlled substance. The state alleged that an undercover officer went to the defendant's house and obtained 30 pills of Lortab from the defendant. Based on that, the defendant was charged with trafficking in Hydrocodone. The defendant argued that she had a prescription for the Lortab and only let the undercover officer borrow the pills. The defendant expected the undercover officer to return the pills once the undercover officer got her own prescription.

The defendant was convicted of trafficking in Hydrocodone but appealed the conviction because the jury was not informed that the defendant's prescription for the Lortab was a defense to the crime. The Court reversed the conviction. The state argued that proof that the defendant possessed the pills was sufficient to convict her of trafficking in Hydrocodone. However, a valid prescription for the pills is a defense to the charge, and if there is evidence that the defendant had such a prescription, the jury must be informed that they can find the defendant not guilty if they believe the evidence of the valid prescription.

As we have discussed several times on this blog, the federal government, and to a lesser extent the state government, focuses on different types of crimes depending on the prevailing attitudes and issues of the moment. We have seen the government shift its focus from terrorism to mortgage fraud to securities fraud to pain clinics to Medicare fraud. Currently, with the economy and the debt being such major issues, different types of fraud become primary issues for law enforcement. Medicare fraud is a perfect target because it is huge, it involves fraud and it involves stealing from the federal government.

Medicare fraud can take several different forms. One primary way to commit Medicare fraud is to submit Medicare reimbursement forms for medical equipment or medical services that were either never provided or were provided but were unnecessary. The government has no way to track the amount of Medicare fraud with any specificity. However, the government has estimated that the total amount of Medicare fraud in 2010 was close to $50 billion, although it is unclear how many of the cases that comprise that estimate turned out to be valid Medicare reimbursement requests.

The United States Department of Justice (DOJ) recently announced the arrest of 111 suspects for Medicare fraud related conduct. In the press release, the government indicated the arrests included doctors, nurses, health care executives and others in nine cities for Medicare fraud totaling approximately $225 million. The arrests were made by the DOJ's Medicare Fraud Strike Force which includes hundreds of federal, state and local law enforcement personnel. Confirming the increased focus on Medicare fraud, the DOJ indicated the number of law enforcement officials devoted to making Medicare fraud arrests has quadrupled over the last two years. They claim the various Medicare Fraud Strike Force teams made hundreds of arrests and recovered $4 billion in taxpayer money in 2010.

Of the 111 recent Medicare fraud arrests, 32 of them were in Florida. In Miami, Florida, the police broke up an alleged Medicare fraud scheme that involved $55 million worth of false billings for home health care, medical equipment and prescription drugs.

Clay County police raided the Total Medical Express clinic off of Blanding Boulevard in Orange Park, Florida and made several arrests of some of its patients and an office manager, according to an article on FirstCoastnews.com. The police allege that the pain clinic was unlicensed and was giving out narcotic drugs like Oxycontin to people without performing the proper medical procedures. Police claim that people come from all over the southeast, pay cash for the pills without the proper medical exam and diagnosis and then use and/or sell the pills on the street. Clay County police indicated they expect to make more arrests relating to Total Medical Express in the near future.

Going after pain clinics has been a major focus of the police here in Duval County, Clay County and Nassau County and other parts of Florida by both local police and federal law enforcement. As abuse of pain pills has become more popular and arrests for illegal possession of pain pills have increased at a much greater rate than more traditional drug crimes such as marijuana, cocaine, crack and methamphetamine, law enforcement officials are focusing on the source of these pills. Whenever they get word that a pain clinic has a long line of people who are getting these pills after very brief appointments, the police are likely going to start an investigation into the facility's practices.

As lawyers handling criminal cases in the Jacksonville, North Florida and Southeast Georgia area, we have seen a lot of these cases over the last couple of years. The police are not just arresting patients; they are arresting the pain clinic employees, doctors and anyone with an ownership interest in the pain clinics. Under Florida law, it does not take very many pills to be subject to very serious penalties. As a result, just about all of these cases, from the patients to the office manager to the doctor to the owner, can become very serious.

The definition of "child abuse", whether used as a legal term or in regular conversation, is not exactly clear. What passed for good, appropriate discipline in the old days could subject someone to serious felony charges and prison time today. Under Florida law, there are different levels of child abuse and some conduct that is close to child abuse but is not considered a crime at all.

In Florida, a parent, or someone assuming the role of the child's parent, has a right to administer reasonable and non-excessive physical punishment to a child. If the discipline falls into this category, the parent is not guilty of any crime in Florida. So, what does "reasonable and non-excessive" punishment mean? It is hard to say. It may be a decision made first by the prosecutor and then by a judge or jury. When a parent's conduct towards a child goes beyond "reasonable and non-excessive" punishment, it becomes a crime. The first level of criminal activity when a parent physically punishes a child is the misdemeanor crime of contributing to the dependency of a child. This crime is committed by causing an act that causes the child to be dependent or in need of services and subjects a person to up to a year in jail. A "child" is considered anyone under the age of 18. "Services" could certainly include medical services or the Department of Children and Families.

At the next level, physically punishing or abusing a child can constitute the crime of child abuse which is defined as intentionally causing physical or mental injury to the child or doing something that can reasonably be expected to cause physical or mental injury to the child. When this crime is committed without causing serious injury to the child, it is a third degree felony punishable by up to five years in prison. When the crime of child abuse is committed and the child is tortured or seriously injured, it becomes aggravated child abuse which is a first degree felony punishable by up to thirty years in prison.

There is obviously a huge difference between the misdemeanor crime and the two felony child abuse crimes. However, it is not clear what conduct differentiates the three crimes or what may not be a crime at all. Should the trier of fact focus more on the conduct or the results? What if the child is injured badly, but the conduct was fairly harmless, i.e. where the parent pushes the child but the child trips and hits her head on something and has a serious head injury? What if the conduct seems bad, but the child is not injured at all?

There are a few issues with the crime of child abuse in Florida. First, conduct that used to be considered acceptable can be a serious, although ambiguous, crime today. Second, it is very difficult to tell from reading the various laws what is acceptable punishment versus a low level crime versus a very serious crime with the potential for a lengthy prison sentence.

As of March 1, a new federal law made the possession or sale of the chemicals that comprise what is known as fake pot or synthetic marijuana illegal, according to an article on Firstcoastnews.com. The product, which often goes by the names K2, spice or blaze, simulates the effects of marijuana and does not show up on the traditional marijuana drug tests. The Drug Enforcement Agency can take emergency steps to temporarily ban certain items considered to be dangerous and a threat to public safety for one year. The ban is then later considered for permanency pending a recommendation from the U.S. Department of Health and Human Services. The synthetic marijuana is often sold in hookah shops and smoke shops.

While it is currently just a federal criminal violation to possess or sell the fake pot/synthetic marijuana, many states are also moving to make it illegal on the same level as regular marijuana. The Florida Senate committee recently unanimously voted to make synthetic marijuana illegal. The proposed Florida law is expected to pass which would make synthetic marijuana illegal on the state level as well in Florida.

Any person in Florida has a right to be free from illegal searches and seizures. This applies not only to the person him/herself but also a residence, a vehicle and just about anything else belonging to the person that is not out in the open for anyone to see. However, there are instances when a police officer can search a person, a home, a vehicle or other private area. When vehicles are involved, there are specific circumstances when a police search is permitted. One of the most common instances is when the police officer asks for consent to search from the driver or owner of the vehicle. A person is certainly not required to give that consent (and we always wonder why one does when there are drugs in the vehicle), but that seems to be the most common scenario where a police officer lawfully searches a person's vehicle and finds drugs or other evidence resulting in an arrest. A search warrant will also allow a police officer to search a vehicle.

One other mechanism for police searches of vehicles has been limited by the courts recently. Police used to have free reign to search a vehicle after an arrest of the vehicle occupant. Based on new court rulings discussed elsewhere on our blog, police are significantly limited in searching vehicles subsequent to an arrest.

One other situation that allows police to search a vehicle without a search warrant or consent deals with the inventory search. When the police arrest the driver of a vehicle and there is no other person to drive the car from the scene, the police may decide to have the vehicle towed to a secure location. The law says that the police are permitted to conduct an inventory search of the vehicle in these circumstances. The purpose of the inventory search is to inventory anything of value in the vehicle so the owner's property can be secured and returned to the owner. Of course, if the police find drugs or other evidence of criminal activity in the vehicle during the inventory search, the police can use that evidence against the occupant.

However, inventory searches are limited. The police cannot use the inventory search as an excuse to search a vehicle when no other valid basis for the search exists. Inventory searches are only valid when they are conducted pursuant to standardized criteria. In other words, the police must have standard rules for when and how an inventory search is conducted that apply equally in all such cases. If the police officer decides to conduct an inventory search in some cases but not in others, or changes the manner of the inventory searches in different cases, the rule requiring standardized criteria for inventory searches is violated and the searches should be ruled invalid. In that case, any evidence of drugs or other criminal activity should be thrown out of court after the appropriate motion to suppress filed by the criminal defense lawyer.

In Florida, police may seize money or other property from a suspect if they believe the money or property represents proceeds from drug or other illegal activity or is otherwise related to drug or other illegal activity. Many times, the seizure results from a routine traffic stop. For instance, in a recent case near Jacksonville, Florida, the police stopped a person for having illegally tinted windows. When the police officer approached the driver, the police officer said he smelled an odor of marijuana coming from the vehicle. The police officer ultimately found a fairly small bag of marijuana in the vehicle along with approximately $20,000 in cash. The police officer then seized the cash claiming it was drug related. The state then instituted forfeiture proceedings to keep the cash.

Florida law does allow the police to seize, and the state to forfeit, cash and other property that is proven to be related to drug crimes or other criminal activity. Of course, the person from whom the property is seized, or the owner of the property if different, has a right to contest the forfeiture. While it is a lower burden than in a regular criminal case, the State does have the burden to prove that the property is contraband, i.e. related to drug or other criminal activity. However, practically, the person from whom the property was taken or the owner of the property needs to establish that the property is legitimate and/or was acquired from a source unrelated to drug or other criminal activity. It is typically not enough to say the money came from a job, a lottery ticket or a lawsuit; actual facts to support the legitimate source of the money are important to present to the court. But when a person can prove that the property is legitimate and not related to drug or other criminal activity, the state has no right to keep any of the property.

The United States and Florida Constitutions protect citizens from unreasonable searches and seizures by police. One example where the police will stop and search someone is when they receive an anonymous tip of criminal activity. However, anonymous tips alone are not enough to justify a search and seizure of a person. Even where the anonymous tip very specifically identifies the suspect and his/her predicted behavior, that alone is insufficient to justify a search and seizure.

For instance, suppose a person unknown to the police approaches an officer and says that Joe Smith drives to the local motel every day and sells crack cocaine. That person gives a perfect description of Joe Smith, his vehicle and the exact time he will show up to the exact place at the motel. Suppose the police go to the motel the next day and they see Joe Smith arrive just as the tip indicated. Can the police stop Joe Smith at that point and search him? No. Even where the anonymous tip proves to be 100% accurate, the police need more to justify a search and seizure. For instance, the police would need to verify some evidence that Joe Smith is actually involved in criminal activity at the motel before they stop him. If the police went to the motel and saw Joe Smith pull up and then saw him conduct what appeared to be hand to hand drug transactions, that would be different. In the former scenario, the police merely confirmed harmless details about Joe Smith that did not indicate he was involved in criminal activity- his appearance, his vehicle and his location. However, once they actually see Joe Smith engage in conduct that may be consistent with criminal activity, that plus the anonymous tip information would be sufficient to stop Joe Smith.

Most people who are familiar with medical privacy laws know that a person's medical records are confidential and can only be disclosed with the patient's permission or under other limited circumstances. However, records of prescriptions for controlled substances (such as Oxycodone and Oxycontin) do not share the same privacy protections. In fact, police seeking a person's pharmacy records relating to controlled substances do not even need a subpoena or other court order. They can simply call the pharmacy and request a person's prescription records relating to controlled substances and say that the request is pursuant to their enforcement of the law. A statute in Florida requires pharmacies to keep prescription drug records for at least two years and allow police to inspect those records where the police officers are enforcing the laws. A court order is not needed, and there is no requirement to notify the patient in advance. The way the statute is worded, basically any investigation by the police is good enough to allow the police access to a person's controlled substance prescription records going back at least two years.

In a recent criminal case of obtaining prescription drugs by fraud south of Jacksonville, Florida, the defendant created a fake prescription for Oxycodone and presented it to the pharmacy. He received 30 pills of Oxycodone. The pharmacy later checked the prescription and saw that the doctor's name was incorrect. The pharmacist called the police to report the crime of obtaining prescription drugs by fraud. The police officer asked the pharmacy for all of their records relating to the defendant without first getting a search warrant or consent from the defendant. The pharmacy complied without notice to the defendant. The police officer confirmed that the prescription was fake and the defendant had in fact received the Oxycodone from the pharmacy. The defendant was arrested and charged with the felony crime.

The criminal defense lawyer for the defendant tried to have the pharmacy record evidence thrown out alleging that the search and seizure of the defendant's pharmacy records violated his privacy rights and the Fourteenth Amendment. However, the court found the police officer's conduct to be proper based on the Florida statute which allows the police to obtain pharmacy records of controlled substances when they are relevant to a criminal investigation.

In Florida, particularly northeast Florida, methamphetamine possession, sale, manufacturing and trafficking cases are on the rise. Local police and federal agents are looking out for various meth labs and making many arrests of those who are involved, either directly by participating in the manufacture of methamphetamine or indirectly by merely supplying some of the ingredients needed to make methamphetamine in the meth lab. One of the critical ingredients needed to make methamphetamine is pseudoephedrine, which is found in many cold medicines.

Cold medicines with pseudoephedrine used to be easy to obtain in any pharmacy, grocery store or Walmart right off of the shelf. A person could buy as much as he/she wanted without anyone thinking twice as to his/her intentions. However, as more and more meth labs popped up and more people were making methamphetamine, law enforcement agencies and lawmakers started cracking down on the unconditional sale of cold medicines that were being used to make meth. Today, cold medicines with pseudoephedrine are not kept on the shelf but in a locked container in the store. There is a limit on how much cold medicine with pseudoephedrine a person can buy, and the person has to sign a log and provide identification when he/she buys it. That way, when the police are investigating someone for methamphetamine manufacturing, or contributing to it, they can go to the local pharmacies to see if the person has been buying pseudoephedrine in any material quantities.

Despite these efforts to limit the purchase of cold medicines with pseudoephedrine, methamphetamine manufacturing is on the rise- 34% as of 2009 according to an article on Foxnews.com.

Two states are taking the attempt to limit pseudoephedrine purchases a step further. Oregon and Mississippi now require a doctor's prescription to obtain cold medicines with pseudoephedrine. According to officials in Oregon, since the law requiring a prescription for pseudoephedrine products went into effect in 2006, meth lab arrests have decreased significantly. Kentucky is also considering such a law. The article does not mention whether Florida anticipates any changes relating to meth labs.