Jacksonville Criminal Lawyer Blog

A federal judge recently declined to sentence a defendant with ecstasy charges within the federal sentencing guidelines because he felt the federal sentencing guidelines punish ecstasy crimes too harshly and are not scientifically justified.

In federal court, when a defendant pleads guilty or is convicted at trial, the judge will determine his/her sentencing guidelines prior to sentencing. The ultimate guideline range takes several factors into consideration including, for drug cases, the type of drug and the quantity of the drug. Crimes involving some drugs result in higher sentencing ranges than others. A person's criminal history and the circumstances of the crime are also factors in determining one's sentencing guidelines range. Ultimately, a guideline range for the crime that is measured in months will be established which suggests that the judge should sentence the defendant somewhere within that range. Federal judges are not required to sentence the defendant within that range; they can depart above or below that range based on the nature of the criminal activity and the particular defendant and other factors.

In this case, the defendant pled guilty to conspiracy to possess and distribute ecstasy. His sentencing guidelines range was 63 - 78 months in federal prison. The judge, however, departed well below that guidelines range and sentenced the defendant to 26 months in prison. At the sentencing hearing, the judge was presented with testimony about the relative safety of ecstasy, including testimony from a Harvard psychiatrist who referenced a five year study that found long term recreational ecstasy use did not cause clinically significant damaging effects. The judge concluded that the harshness of the ecstasy sentencing guidelines did not have a rational relationship to the effects of the drug and a sentence within the guidelines range would be greater than necessary to achieve the objectives of sentencing.

In Florida, a battery crime is defined as intentionally striking, or even touching, another person against his/her will. This is obviously a very broad definition of criminal activity that can include a lot of conduct, and even harmless conduct. Slightly pushing someone with no injury whatsoever can come under the definition of battery. Domestic battery is a battery against a relative, someone with whom the defendant shares a child or someone with whom the defendant lives or used to live.

A person's first domestic battery or regular battery crime is a misdemeanor in Florida punishable by up to a year in jail. Battery and domestic battery are two of the most serious misdemeanor charges depending on the circumstances of the case and any injuries caused. However, they are still misdemeanors so the severity of the potential punishments are limited.

If a person has a prior conviction for battery, whether it is a regular battery, domestic battery, battery against a law enforcement officer or aggravated battery, another battery charge of any kind can be charged as a third degree felony. The second battery does not need to be of the same kind as the first. In other words, if a person is convicted of a battery against a stranger and then commits a domestic battery, the second battery crime can be charged as a felony.

Felony crimes are often much more serious than misdemeanor crimes, particularly when the state sees that the defendant has a prior record of a similar nature. For third degree felonies, the maximum penalty is five years in prison.

In Florida, where the police officer has probable cause that a person is drunk driving or driving under the influence of alcohol (i.e. DUI), the police officer has a right to ask the driver to submit to a test to measure the alcohol content of a person's blood. In Florida, driving with a blood alcohol content of 0.08 or more is illegal. Most often, the police officer will ask the DUI suspect to take a breath test, or breathalyzer, to determine the person's alcohol level. If the suspect refuses the breath test/breathalyzer, the DMV may increase the driver's license suspension and the state will attempt to use the driver's refusal to submit to the breathalyzer as evidence against the suspect at the DUI trial, i.e. the state will argue the DUI suspect refused the breath test because he/she knew it show a high reading.

In some cases, the police officer investigating the DUI will seek to get a blood test to determine the driver's blood alcohol level as opposed to a breath test. The state can seek a blood test of the DUI suspect where it is not practical to administer the breathalyzer. For instance, if the DUI suspect is involved in an accident and is injured to the extent that he has to go to the hospital, a breath test may not be possible. In that case, the state is authorized to get a blood test from the DUI suspect. If the DUI suspect is in a position to refuse and does so, the state can use the DUI blood test refusal against the suspect at his DUI trial.

However, if a breathalyzer test is a viable option for the police officer and DUI suspect, the police officer is not permitted to seek a blood test. The DUI suspect can request a blood test, but the police officer is not allowed to substitute the blood test for the breath test at the police officer's own discretion. If the police officer requests the blood test when the breathalyzer is a viable option and the DUI suspect refuses, the state will not be permitted to use the DUI suspect's refusal of the blood test at the DUI trial, and the state would have to try and prove its DUI case without mention of any blood or breath test to measure the DUI suspect's blood alcohol content.

Traditionally, cocaine, crack and marijuana cases were the majority of drug cases that appeared in criminal courts in Florida. Over the last several years methamphetamine and pill cases have become much more common. According to the Centers for Disease Control and Prevention, prescription painkillers have caused more fatal overdoses than drugs like cocaine and heroine. Painkillers like Hydrocodone, Oxycodone and Oxycontin can be very addictive and cause people to go to great lengths to obtain those drugs. Recently, law enforcement officials have noticed an increase in robberies of pharmacies and other drug stores. At pharmacies, people are targeting prescription drugs, narcotic cough syrup and pseudoephedrine pills that are a key ingredient in the manufacture of methamphetamine.

The Drug Enforcement Agency has reported an 80% increase in pharmacy robberies and burglaries from 2006 to 2010. In 2010, Florida led the nation in the number of pharmacy robberies. Pharmacies and drug stores are also noticing an increase in thefts of these items by employees who either use the drugs or sell them on the street.

We have discussed how the various law enforcement agencies seem to follow the issues of the day when making priorities out of certain crimes. While violent crimes are normally always priorities, when it comes to theft or white collar crimes, different crimes seem to grab the attention of the police at different times. When there is a huge story about securities fraud in the news, then those cases seem to pop up more often. When the housing bubble collapses and issues relating to mortgages make the news, mortgage fraud seems to be the most important crime to law enforcement officials. Today, high unemployment numbers are frequently discussed in the news. Predictably, we recently saw a story indicating the police have started cracking down on unemployment compensation fraud cases.

We have handled many unemployment compensation fraud cases in the Jacksonville, Florida area. Basically, in those cases the police allege that someone obtained unemployment compensation benefits when they were not entitled to them or for a time period longer than the entitlement. Often, the police claim that the suspect kept receiving unemployment benefits after returning to the workforce. Based on our experience, evidence supporting these criminal allegations is often shaky.

However, the reason the police are making these crimes a priority is obvious. According to the article, losses from unemployment compensation fraud across the country amounted to $1.7 billion in 2010, and approximately 30% of the improper unemployment fraud payments were made to people that had returned to work. Additionally, the unemployment rate figures to remain in the news as it is sure to be a major topic of discussion during the upcoming presidential campaigns.

If you have been accused of or arrested for unemployment compensation fraud in the Jacksonville, Florida area, feel free to contact us for a free consultation at Shorstein & Lasnetski for legal advice on the best way to respond and defend against those charges.

In the past, we have discussed the unequal treatment given to defendants who have been arrested for drug crimes where the primary difference was whether the illegal drug was crack cocaine or powder cocaine. Under the old federal criminal laws, people arrested and charged with crack cocaine crimes faced much stiffer penalties and prison sentences than those charged with similar powder cocaine charges. As an example, someone caught with 5 grams of crack cocaine could face a mandatory minimum prison sentence of five years while it would take 500 grams of powder cocaine to subject a defendant to the same mandatory minimum prison sentence.

Under the Fair Sentencing Act, Congress acted to bridge the gap between sentences for crack cocaine crimes and powder cocaine crimes. While the two crimes are still not considered equal for sentencing purposes, the large disparity between crack cocaine and powder cocaine crime sentences has diminished to some degree. The disparity was reduced from 100-1 to 18-1.

One question that remained when Congress decided to bring sentences for crack cocaine and powder cocaine crimes closer together was whether defendants convicted of crack cocaine crimes sentenced under the old, harsher laws could petition the courts for a modified, lesser sentence considering the new law. There are thousands of federal inmates who have been convicted of crack cocaine crimes that would have greatly benefited had Congress decided to fix this disparity sooner.

The United States Sentencing Commission recently unanimously voted to apply this new law retroactively. This means that people who were convicted before the Fair Sentencing Act became effective can petition the court to have their sentences reduced consistent with the changes made in the law. It is estimated that this will affect more than 12,000 prison inmates and reduce prison sentences by an average of three years. It is also expected to save the government approximately $200 million.

In a recent criminal case south of Jacksonville, Florida, the police were investigating a location from which prescription drugs like Hydrocodone and Oxycodone were being dispensed pursuant to internet orders with the involvement of a pharmacist. Police observed a warehouse and saw some employees loading packages into vehicles that were taken to local shipping businesses. The police officers spoke to the employees and learned that the packages contained prescription drugs that were ordered by people over the internet. The employees were taking the orders and prescriptions over the internet and then filling the prescriptions and shipping them out to customers. According to the employees, there was a pharmacist employed by the internet pharmacy, but he was not present very often and did not review all of the prescriptions and drug deliveries.

In Florida, it is a felony crime to manufacture, sell or deliver any drug that is habit forming or potentially unsafe except with a prescription and under the supervision of a practitioner licensed to dispense the drug. There are two primary requirements for dispensing prescription drugs that can be dangerous and addictive like Hydrocodone, Oxycodone and Oxcyontin- there must be a valid prescription, and the drugs must be dispensed by a pharmacist who reviews the prescription for potential side effects, drug interactions and proper dosages and usage.

In this case, the customers ordering the drugs over the internet apparently had valid prescriptions. However, the defendants who were selling and dispensing the drugs were not doing so under the supervision of a licensed pharmacist who was properly reviewing the prescriptions as required by Florida law. There was a pharmacist associated with the internet pharmacy, but that pharmacist was not reviewing every prescription. Because this was not done, the employees responsible for dispensing the drugs were charged and convicted of felony drug crimes.

Normally in Florida, the police cannot search a person or his/her vehicle, home or other belongings without probable cause and a search warrant or consent to search. Students in school do not enjoy those same protections from searches and seizures by police or school officials.

In a recent gun case in Jacksonville, Florida, a school received an anonymous tip that a student at the school had carried a gun on school grounds three months earlier. When school officials learned of the anonymous tip, the school resource officer and security guard took the student to the security office where he was searched. A gun was found on the student. The student was charged with carrying a gun on school grounds.

Outside of the school context, this search would never be legal. First, an anonymous tip that is not corroborated by specific observations is not sufficient to search someone without permission. Additionally, a tip that someone was carrying a gun three months earlier would be considered stale and, even if reliable, would not be sufficient probable cause to search someone three months after the alleged criminal conduct occurred.

However, the Florida courts recognize that the school context is different. Rather than using the normal probable cause standard for searches, the courts will uphold a search by school officials if it is determined to be reasonable. Because of the great potential for danger to children at schools, along with the well-publicized shooting incidents we have seen, the judges give school officials a lot of leeway when determining whether a search was reasonable under the circumstances.

In Florida, the state can prove possession in one of two ways. The most obvious involves actual possession. For instance, marijuana found in a person's hand or pocket would constitute actual possession of marijuana. However, even when a person is not in actual possession of drugs, the state can still prove possession of the drugs under certain circumstances. This other situation involves constructive possession of drugs. For instance, if the police search a person's house and find a bag of cocaine on that person's dresser right next to his bed, along with other items belonging to him in room belonging to him where he is the only occupant of the room at the time, that may be sufficient to prove a case of constructive possession of cocaine.

In order to prove constructive possession of drugs, the state needs to prove that the suspect knew the drugs were present and had some sort control over the drugs. For instance, if you go to a party with hundreds of people, you are standing in the kitchen by yourself next to the closed refrigerator and the police come and find a bag of marijuana in that refrigerator, they cannot convict you of possession of marijuana without proof that you knew the marijuana was in the refrigerator and you had some sort of control over it, i.e. you put it there or used some of it. You may have been the closest to the marijuana, but that is just one potentially relevant factor. Without evidence that you knew the marijuana was present and had some significant connection to it, that marijuana cannot be attributed to you in a criminal case.

In a recent criminal case near Jacksonville, Florida, the police pulled a car over for speeding. The police obtained consent to search the car and found a suitcase containing marijuana in the trunk of the vehicle. The police then arrested the driver for trafficking in cannabis/marijuana. There was also a passenger in the vehicle who had the keys to the vehicle prior to the driver.

The trafficking in marijuana case was ultimately thrown out because the state could not prove the driver was in constructive possession of the suitcase containing the marijuana. The police could not get any fingerprints from the suitcase or the marijuana wrapping. Nothing belonging to the driver was found in the suitcase with the marijuana. The driver did not make any statements admitting to possessing, or even knowing about, the marijuana in the trunk. As a result, there was not enough evidence that the driver knew the marijuana was in the suitcase in the trunk or that the driver had sufficient control over that marijuana.

However, one way the police frequently get around this constructive possession problem is to ask the driver, or anyone else in the vehicle, to whom the marijuana or other drugs belong. This question may come with a threat to arrest everyone involved if no one answers or a promise to go easy on anyone who does answer. When asked this question, keep in mind that you have a right to remain silent and one of the most common ways the police and the state get the missing evidence they need to prove drug possession in these kinds of cases is when the suspect, for whatever reason, admits to ownership, or at least knowledge, of the illegal drugs.

In a recent case south of Jacksonville, Florida, the police went well beyond what is permissible under Constitutional search and seizure law and trespassed upon a person's property in order to investigate a complaint relating to growing marijuana. In this case, the police received an anonymous tip that the suspect was growing marijuana at his house. When the police arrived at the house to investigate, they saw that the house was completely surrounded by a tall fence and some bushes. As a result, the police were unable to see the house from public property. Therefore, the police could not observe any criminal activity that would corroborate their anonymous tip or even the house itself.

Generally, the police are not allowed to search a person's home or go through a private gate onto a person's property without a valid search warrant or consent to search the premises. In this case, the anonymous tip without any corroborating evidence was not sufficient to allow the police to get a search warrant. Not to be deterred however, when the suspect opened the gate to leave his property, the police officers slipped inside the gate and blocked the suspect from leaving. The police asked the suspect to sign a consent to search form, and, knowing he had a lot of marijuana plants inside his house, he refused. After some period of time, the suspect did open his door and allow the police inside. Once inside, the police found over 100 marijuana plants and arrested the suspect for cultivation of marijuana.

This was clearly an illegal search. The anonymous tip that was not corroborated by specific observations of the police officers was not enough for the police to obtain a warrant. If the police do not have a search warrant, they are not permitted to go onto a person's private property through a gate clearly meant to keep people out and maintain the homeowner's privacy. That is a trespass. If the police trespass to get on the person's property, the property owner's subsequent consent for the police to search is tainted and likely will not hold up in court.

Keep in mind that the police can walk onto a person's property without a search warrant to knock on the door and ask questions of a homeowner, including a request to search the premises. This is permissible for most houses that are not surrounded by a fence clearly designed to keep people off of the property. However, if a person has set up his/her property so that it is necessary to go through a locked gate to enter the premises, the police are likely going to need a search warrant or consent to go through that gate.

In Florida, the Constitutional protection against illegal searches and seizures by police is strongest when it involves a person's privacy interest in his/her residence. Normally, a police officer cannot search a person's house, apartment or other residence without a valid search warrant or consent to search by a person authorized to give consent to search the home. This protection against illegal searches and seizures also extends to a person's backyard.

In a recent marijuana case south of Jacksonville, Florida, the police received an anonymous tip that three individuals were outside of a particular house standing next to a white SUV with cocaine and guns. The police arrive and saw the SUV and some people in front of the house, but they did not see anyone matching the description in the anonymous tip nor did they see any drugs or guns.

One of the police officers said he heard voices coming from behind the house. The police officers proceeded to walk through the gate and into the backyard to see if anyone there was armed. While in the backyard, the police officers saw marijuana in the house through a window and arrested the defendant who was also in the house with the marijuana.

This was clearly an illegal search. The anonymous tip gives the police the right to go to the house and investigate the tip but little else. If the police do not observe any activity that verifies the criminal conduct referenced in the anonymous tip (i.e. the drugs and guns), the police are not permitted to search the house, anyone at the house or the backyard without a search warrant or consent. When the police arrived at the house, there was no evidence of criminal activity. As a result, the police were not permitted to go into the house or the backyard. The fact that people may be behind the house in the backyard in an area protected from illegal searches and seizures did not give the police the authority to search the backyard without specific evidence of criminal activity in the backyard and a valid search warrant. The police had neither. As a result, evidence of the marijuana was thrown out of court, and the marijuana charges were dropped.