Jacksonville Criminal Lawyer Blog

In most DUI cases, when a police officer claims to observe signs of impairment of a driver, the police officer will request the suspect to take a breathalyzer test to determine if the driver is driving under the influence of alcohol (i.e. DUI). Florida law allows a police officer to request that a driver take a breathalyzer test if the police officer makes a valid arrest for DUI based on his/her observations that the driver is driving while impaired. The driver can refuse to submit to the breathalyzer. If the driver refuses to take the breathalyzer test, the state can use the breathalyzer refusal against the driver at the DUI trial.

If the driver submits to the breathalyzer and the police officer is not satisfied with the breathalyzer results, the police officer cannot then request a urine or blood test without specific evidence that the driver is impaired by drugs rather than alcohol. A breathalyzer is supposed to test the person's blood alcohol content. The breathalyzer cannot determine if a driver has used drugs. A urine or blood test can test for the presence of alcohol and/or drugs in a person's system. However, if the police officer requests the breathalyzer test, the officer cannot then request the urine or blood test to look for drugs just because he/she did not like the breathalyzer results.

In a recent DUI case south of Jacksonville, Florida, the police officer saw the suspect stopped at a traffic light. The light turned green and red and then green again, but the suspect never drove forward. The police officer approached the vehicle and saw the driver laying down in the driver's seat. The officer said he observed signs of impairment and conducted field sobriety tests. The officer said the suspect failed the field sobriety tests and arrested the suspect for DUI. At the police department, the suspect submitted to two breathalyzer tests. Both breathalyzer tests yielded results under the legal limit of 0.08. At that point, the police officer claimed that he thought the suspect might be under the influence of drugs and requested the suspect submit to a urine test. The suspect refused. The state ultimately tried to use the suspect's refusal of the urine test against the suspect at his DUI trial.

The court said the state was not permitted to use the suspect's refusal of the urine test against him at the DUI trial. The state was limited to trying to prove the DUI with the officer's testimony of his observations and the two breathalyzer tests under the legal limit of 0.08. Because the police officer was not able to articulate any specific reasons why he thought the suspect was impaired by drugs, as opposed to just alcohol, the police officer was not allowed to request the urine test. Since the police officer's urine test request was improper, the state could not use the urine test refusal against the defendant at the DUI trial.

In Florida, in order for the police to have a right to search a person's house, they normally will need a valid search warrant signed by a judge. Police typically obtain a search warrant for a person's house after conducting surveillance and observing drug related activity at the house or having a confidential informant go to the house to make drug buys. Once the police obtain the search warrant for the house, are they limited to searching inside the house in areas where illegal drugs can be stored or can they search other areas outside, but near, the house?

Many search warrants for someone's house will also include what is called the curtilage of the house. The obvious questions becomes: What is within the curtilage of the home to be searched? Curtilage is not specifically defined in Florida law, and it depends on the nature of the property. However, the general definition of curtilage is the area around the home that is intimately tied to the home. The factors a criminal court would look at to determine if something is within the curtilage of the home are: how close the area searched was to the house, whether the area searched was enclosed near the home, how that particular area is used at the home and what steps, if any, the homeowner took to protect the privacy of the area.

Therefore, one can assume this includes the driveway of the home and a fenced-in backyard. If there is no fence at the house, the curtilage still likely includes the immediate area around the house.

In a recent case south of Jacksonville, Florida, the defendant was arrested on drug and gun charges after police searched his vehicle that was parked outside a friend's house. The police had a search warrant for the residence that included vehicles within the curtilage of the home. The defendant's vehicle was parked on the street just beyond the driveway. The defendant did not live at the residence. The police searched his vehicle and found guns and illegal drugs inside.

The criminal defense lawyer for the defendant filed a motion to suppress the gun and drugs arguing that the police did not have a right to search the car that was parked outside the home, but on the street. The court agreed and threw out the gun and drug charges. Because the defendant's car was parked on the street, as opposed to the driveway or elsewhere on the property, it was not within the curtilage of the home and the search warrant did not authorize the police to search it.

If you have been charged with a crime in Florida, or any other state, and you are not a United States citizen, you may be at risk of suffering immigration related penalties, such as deportation, as well as the normal criminal penalties. If your criminal defense lawyer is not familiar with immigration law, he/she may not know to advise you of the immigration ramifications of your criminal case or may not be sufficiently familiar with the immigration laws to properly advise you of what the immigration risks are of a guilty or no contest plea or a guilty verdict at a trial in the criminal case.

At Shorstein & Lasnetski, we handle immigration cases as well as criminal cases so, unlike most other criminal lawyers in the Jacksonville, Florida area, we are qualified to fully advise you if you are not a United States citizen and are facing criminal charges.,

In 2010, the United States Supreme Court decided the case of Padilla v. Kentucky. The Padilla case held that criminal defense lawyers are required to advise criminal clients who are not U.S. citizens that a guilty or no contest plea may have negative immigration consequences. Of course, many criminal defense lawyers are not qualified to provide specifics as to how the immigration process works and what those negative immigration consequences are likely to be. Therefore, it is very important to contact a law firm that is experienced in both criminal law and immigration laws, as we are.

What happens if a noncitizen enters a guilty plea or a no contest plea to a criminal charge without being properly advised that there may be adverse immigration consequences, such as deportation? Since 2010, the law has provided that the person may have a right to go back and withdraw his/her guilty or no contest plea and fight the criminal charges or try to work out a better plea deal that would not likely have negative immigration consequences.

However, one question that remains unanswered is whether the duty of the criminal defense attorney to advise clients of the immigration consequences of a guilty or no contest plea in a criminal case is retroactive. In other words, if a noncitizen had a case prior to 2010, when the Padilla case was decided, and his/her criminal defense lawyer did not advise him/her of the negative immigration consequences of the plea, can that person go back and withdraw the plea? Some courts in Florida have held that the Padilla case is not retroactive, which means noncitizens who were not properly advised about immigration issues prior to Padilla cannot use the Padilla case to go back and withdraw their guilty or no contest pleas. Other courts in other states have held the opposite. The issue has not been ultimately decided in Florida.

It is certainly possible that this is a question that will need to be decided by the Florida Supreme Court.

In any case, if you had a criminal case and plead guilty or no contest and now face possible immigration consequences, feel free to contact us to discuss your immigration status and the possibility of going back to challenge your criminal case. If you currently have a case pending and are concerned about the immigration consequences of your criminal case, contact us to fully understand how a criminal case can affect your immigration status.

In Florida, when a person obtains a driver's license, he/she consents to submit to a breathalyzer test when a police officer has probable cause to believe the person is driving while impaired by alcohol and makes a DUI arrest. If the person refuses to submit to a breathalyzer test during a DUI arrest, that person is subjected to a longer driver's license suspension and the evidence of the breathalyzer refusal can be used against him/or in the DUI case. Additionally, a second breathalyzer refusal during a subsequent DUI arrest in Florida is a misdemeanor crime.

When a person refuses the breathalyzer test and goes on to have a DUI trial, the state will always bring out the fact of the refusal and argue to the jury that the defendant refused the breathalyzer because he/she knew it would show that he/she was impaired by alcohol. Of course, the criminal defense lawyer and the defendant can refute that assumption with their own arguments as to why the defendant refused the breathalyzer.

However, in a recent DUI case west of Jacksonville, Florida, the state attempted to do something quite different. In this DUI case, the defendant refused to submit to the breathalyzer. Apparently, the defendant had a prior DUI arrest and conviction many years before where he actually submitted to the breathalyzer test. At the trial, the defendant was asked by the prosecutor why he refused the breathalyzer test, and the defendant said that he did not trust the breathalyzer test. The state then brought out evidence of the defendant's prior DUI case where he did submit to the test.

Normally, at a trial the state cannot bring out evidence of other crimes the defendant committed in the past. This is considered to be overly prejudicial evidence. In any trial, the question is whether the defendant committed the crime(s) for which he/she is currently on trial, not other crimes in the past. Showing the jury that the defendant committed similar or other crimes in the past tends to take the focus of the jury away from the particular evidence in the case and places the defendant in a bad light with the jury.

In this case, the defendant's DUI conviction was thrown out. The state improperly brought out evidence of the defendant's prior DUI case that was irrelevant to the DUI case that was the basis for the trial and unnecessarily prejudicial to the defendant.

Most people understand that the police in Florida cannot seize a person without specific facts indicating the person is, was or is about to be involved in criminal activity. However, what is considered a seizure of a person is not always clear. It does not just mean an arrest. It can also mean commanding a person to do something he/she was not intending to do. For instance, if a police officer tells a person to get out of his/her car or to move his/her car, that can be a seizure that is not proper without a legal basis for making the request.

In a recent DUI (driving under the influence of alcohol or drugs) and possession of cocaine case south of Jacksonville, Florida, the defendant was trying to exit a parking garage in his vehicle. A nearby police officer saw that he was having trouble putting the token into the machine to raise the gate. There were vehicles behind the defendant who were waiting to get out of the parking garage. The police officer told the defendant to move his vehicle away from the gate and into a parking spot so the other vehicles could leave. The suspect did move his vehicle and then got out an started stumbling and leaning on his car for support. The officer then approached the defendant, observed that he seemed to be impaired and initiated a DUI investigation. The police officer arrested him for DUI and found cocaine in his pocket.

The criminal defense lawyer filed a motion to suppress the evidence relating to the DUI investigation and the cocaine found in the defendant's pocket. He argued that a police officer cannot command the defendant to move his vehicle without specific evidence that he is committing a crime. By telling the defendant to drive away from the gate to a parking spot, the police officer effectively seized the defendant without sufficient evidence that he was involved in criminal activity.

The court disagreed with the criminal defense attorney. Normally, the police officer must have specific evidence that a person is involved in criminal activity before he/she can seize a person. However, there can be other reasons justifying a seizure. One is a police officer's community caretaking function which is necessary for public safety and welfare. In this case, the court found that the police officer had a right to make the defendant move his vehicle so the others could get out of the parking garage. This was a sufficient community caretaking function to allow the police officer to "seize" the defendant. Once the defendant parked and voluntarily exited his vehicle, the police officer observed signs of impairment from alcohol and DUI and was permitted to initiate the DUI investigation.

In recent years in Florida, as prescription drug use has significantly increased, police have been investigating how and where people are obtaining narcotic pills without a prescription. One crime that police focus on is doctor shopping. In Florida, the crime of doctor shopping is committed when a person sees different doctors to get the same prescription pills within a thirty day period without informing the subsequent doctor(s) of the previous doctor(s). When the police think a person is doctor shopping, they often attempt to obtain the prescription drug records without consent of the patient, a subpoena or a search warrant. Florida law allows the police to do this.

In a recent case south of Jacksonville, Florida, the police obtained evidence that the suspect had obtained multiple prescriptions for Hydrocodone and Oxycontin within a short period of time from different doctors. The police officer went to the various pharmacies without notifying the suspect and without a search warrant and requested the patient's pharmacy records. The pharmacy provided the information which showed the suspect had presented several prescriptions for the same drugs from different doctors in a short period of time. The police officer then contacted the doctors, obtained their patient contracts, spoke to the doctors about whether the suspect was a patient and had the doctors confirm they issued the prescriptions for Hydrocodone and Oxycontin without knowing the patient visited other doctors for the same reason.

The suspect was ultimately charged with trafficking in Hydrocodone and Oxycontin due to the number of pills he received with the various prescriptions. While normally having a valid prescription for pills is a legal defense to trafficking in those pills, it is not a defense if the prescriptions were obtained illegally through doctor shopping.

The criminal defense lawyer for the suspect filed a motion to suppress the evidence of the prescriptions and the evidence obtained from the doctors as that information was obtained without consent and without a proper search warrant. The criminal defense attorney argued that prescription records and medical records are confidential, and the police cannot just go and get them without consent of the patient or a court order.

The court agreed in part and disagreed in part. The patient contracts were medical records that were protected by the doctor-patient confidentiality laws. Therefore, the police could not obtain those records without the patient's consent, a search warrant or a subpoena. Likewise, the doctors' statements regarding the patient were also protected by the doctor-patient confidentiality laws. The police officer was not authorized to ask the doctors, or any of their staff, questions about the suspect's medical records or status as a medical patient.

However, the prescription drug records are treated differently under Florida law. Florida law specifically provides that records of prescription drugs that are controlled substances must be maintained for at least two years for inspection by law enforcement officials investigating drug crimes. Therefore, this particular statute requires pharmacies to keep records of controlled substance prescriptions and provide them to police without a court order or even notifying the patient as long as the police come and say they are investigating a drug crime.

In a recent DUI (driving under the influence of alcohol or drugs) case south of Jacksonville Florida, the defendant was driving on I-95 and failed to stop at an open weigh station. The defendant was driving a large pickup truck, and the police officer believed that the defendant was required to stop his truck at the weigh station. When the defendant did not stop, the police officer pulled him over and told him to drive back to the weigh station. Apparently, according to the police officer, the defendant committed a traffic violation on the drive back to the weigh station so the police officer stopped him. The police officer indicated that he smelled alcohol on the defendant and initiated a DUI investigation. The police officer ultimately arrested the defendant for DUI and searched his vehicle. The police officer found marijuana in the vehicle and arrested the defendant for possession of marijuana in addition to DUI.

The criminal defense lawyer moved to have all of the evidence obtained by the police officer after the stop suppressed based on an illegal stop. This would include all of the police officer's observations related to the DUI, including the field sobriety tests and the breathalyzer results, as well as the evidence of the marijuana in the vehicle. Once the criminal defense lawyer files a motion to suppress the evidence, the state has the burden of proving the stop was valid. In this case, the state could not establish that the defendant was required to stop at the weigh station with his big truck. Therefore, the state could not establish that the police officer had a right to stop the defendant. When the state cannot establish that the traffic stop was legal, the evidence of criminal activity obtained after the stop is typically thrown out. As a result, all evidence of the DUI and possession of marijuana charge was thrown out, and the charges were ultimately dismissed.

The crime of aggravated battery is a very serious felony crime in Florida that often results in a person receiving a prison sentence if convicted. In Florida, aggravated battery is defined as committing a battery (unauthorized contact with another person) with the use of a deadly weapon. As you can see, the definition of battery is very broad. Just about any unauthorized contact with another person can technically be a battery. The question in an aggravated battery case typically revolves around the deadly weapon element. What is a deadly weapon? Sometimes, in the case of a knife or brass knuckles, the object clearly qualifies as a deadly weapon. However, when other, less dangerous objects are used, the answer is not so clear.

In a recent criminal case near Jacksonville, Florida, the defendant was charged with aggravated battery for stabbing the victim in the back of the neck with a plastic fork. The victim was scratched by the fork and had a red mark, but there was no bleeding. The state charged the victim with aggravated battery claiming that the plastic fork could have seriously injured the victim had the defendant stabbed him in a different place on his neck, i.e. at the artery. The judge agreed, and the defendant was convicted of the crime.

The appellate court reversed the conviction. Clearly, this was a regular battery (a misdemeanor crime). However, the plastic fork was not considered a deadly weapon which is a requirement for a felony aggravated battery conviction. A deadly weapon is an object that does or is likely to cause serious injury if used as it is normally intended or any object that is likely to cause serious injury when used as the defendant used it in the particular case. In this case, the plastic fork did not actually cause a serious injury, and there was no evidence that the plastic fork was likely to cause a serious injury if used as the defendant used it or as it was intended to be used. Whether the plastic fork could have caused serious injury if the defendant stabbed the victim in another place on the neck and if it had punctured the victim's skin is not the standard.

With computer crimes becoming more prevalent as more people obtain computers and similar networking devices, state and federal governments are enacting new laws to respond to the increasing number of crimes. The Obama administration recently announced a new proposed law dealing with various cyber security issues. The new law would address several areas. It would establish a national, standardized data breach reporting system for businesses to notify customers when they have had a breach of their security systems where financial or identification information may have been lost. Currently, various states have different laws that may or may not require a company to notify a customer when there has been a breach in their security and potential loss of people's financial and identification information.

The law would also set minimum sentences for people convicted of computer crimes related to hacking into networks and stealing information.

Finally, as we have seen in other contexts, the lines of communication among the various governmental departments that deal with cyber crimes are not exactly open, and it can be unclear which government agency is responsible for investigating the matter. When one government department will not share information with another, complicated cyber crimes often go unsolved. The new law will attempt to rectify that problem so the government can be more efficient in dealing with cyber crime. We'll see how that goes.

As you may know, there are more than one set of criminal laws that govern people in this country. The criminal laws most people are familiar with are the state criminal laws that are promulgated by each state's legislature. State police, prosecutors and court systems handle the majority of crimes in this country. State laws vary from state to state. Of course, there are also federal criminal laws which are a single set of laws promulgated by Congress that apply in all states. Most criminal conduct that is illegal under a state's criminal laws is also illegal under the federal laws. However, some conduct may be legal under one set of laws and illegal under another set of laws. Medical marijuana may be one such issue.

Many states are considering enacting laws that make medical marijuana legal. Florida does not have a law that makes medical marijuana legal. Marijuana laws in Florida can be quite severe depending on the nature of the crime. Like Florida, federal criminal laws also have not legalized marijuana for any reason. Because the federal government has not budged on the medical marijuana issue, some states are reconsidering whether to make medical marijuana legal. A couple of years ago, the Department of Justice's stance was that it was a waste of their time and resources to go after people dispensing medical marijuana if the state in which they operate allows it. Given the increasingly limited resources with which we are working in this country, that seems like a pretty logical position.

However, more recently, the Obama administration has indicated they might go after (i.e. arrest and prosecute) those involved with some of the larger medical marijuana operations even if they are in compliance with their state's laws.

As an example, New Jersey was in the process of implementing its new medical marijuana laws. However, they have put those efforts on hold because they are not sure what the response will be from the federal government. Will the federal government raid medical marijuana shops that are legal under their state's laws or will they defer to the state's intentions to make medical marijuana legal and focus their efforts on more serious and important problems? Until these questions are answered, medical marijuana dispensers who operate in states where it is legal still face the risk of arrest and prosecution from the federal government.