Jacksonville Criminal Lawyer Blog

Over the last several years in Florida, drug cases involving pills such as Hydrocodone, Oxycodone, Roxycontin and other pain pills have become much more prevalent as opposed to more traditional drug crimes involving marijuana, cocaine, crack and heroin.

In a recent trafficking on Oxycodone case south of Jacksonville, Florida, the police searched the defendant and found two prescription pill bottles clearly labeled to contain Oxycodone. The pill bottles were also labeled with the defendant's name on the prescription. Because the total weight of the Oxycodone pills in the two pill bottles was greater than 4 grams, the Oxycodone pills exceeded the weight necessary to warrant a trafficking charge. While the pills were in clearly marked prescription bottles, the police officer determined that the prescriptions were excessive- one bottle indicated a prescription for the defendant for 160 thirty milligram Oxycodone pills filled on April 7, 2010, and the other bottle indicated a prescription for 224 thirty milligram Oxycodone pills filled on April 9, 2010. The two separate prescriptions for Oxycodone were apparently written by two different doctors that were each unaware the defendant went to the other doctor for the prescription because the defendant never told either doctor she was seeing the other doctor for the same purpose.

A valid prescription for pills such as Hydrocodone from a licensed doctor written in the normal course of business is a defense to the charge of possession of, or trafficking in, pills. However, the state argued that because the defendant was engaged in doctor shopping- going to two different doctors in a short period of time to get prescription pills from each without informing the doctors of each other- the prescriptions were not given in the normal course of business so the legal prescription defense does not apply.

However, the court rejected this argument and found that the defendant did have a valid defense to trafficking in Oxycodone because the defendant did have valid prescriptions for the Oxycodone pills from licensed doctors even though they were obtained through illegal doctor shopping. Regarding the prescription defense, the issue is not whether the defendant was acting appropriately, but whether the prescriptions were issued in the licensed doctor's normal professional practice. If so, the prescriptions are valid, and a possession of trafficking charge would be dismissed.

The bottom line here is that the state improperly charged the defendant with trafficking in Oxycodone. The defendant clearly violated the law when she obtained the two Oxycodone prescriptions through doctor shopping. However, she still had a clear defense to the trafficking charge. Because the defendant's crime was doctor shopping rather than trafficking in Oxycodone, the proper charge was in fact, doctor shopping. The state made a mistake and overcharged the defendant so the case was thrown out.

In most DUI cases in Florida, when the polcie officer makes observations indicating the driver is impaired by alcohol, the police officer will ask the driver to submit to a breathalyzer test which tests a person's blood alcohol level after the driver blows into the breathalyzer device. In some circumstances, the breathalyzer test is not practical, and the police officer investigating a DUI can request the driver submit to a blood test to test the driver's blood alcohol level. This normally occurs after the driver is involved in an accident and suffers injuries making the breath test impracticable. The blood draw for the blood alcohol test is performed at the hospital where the driver has been taken to treat the injuries he/she suffered in the accident.

However, just because a person is in what appears to be a serious accident does not automatically allow the police officer investigating the driver for DUI to take the driver's blood and have it tested for alcohol content. In a recent DUI case south of Jacksonville, Florida, the defendant lost control of her vehicle and flipped it over on the highway. To the responding police officer, it appeared to be a serious accident where a driver would normally be injured. When the polcie officer arrived, the driver was being loaded into the ambulance to be taken to the closest hospital emergency room. The police officer followed the driver and the ambulance to the hospital and made contact with the driver. The police officer indicated that the driver smelled of alcohol, had slurred speech and exhibited other signs of impairment from alcohol. However, the driver made it clear that she was not injured, had refused medical treatment and did not want to go to the hospital in the first place. At the hospital, she did not receive any medical treatment.

According to the police officer, the breathalyzer test could not be done at the hospital so he asked the driver to submit to a blood test to test her blood alcohol level. The driver agreed and submitted to the blood test. The blood test came back with a blood alcohol level above 0.08, the legal limit.

The criminal defense lawyer filed a motion to exclude the evidence of the blood alcohol test because the police officer did not follow the implied consent laws as they relate to blood tests. Blood tests are permitted only when the breath test is not practical. The breathalyzer test is not practical when the driver has been seriously injured and has to be taken to the hospital for treatment. In this case, the driver was taken to the hospital, but she was not seriously injured, nor was she trated. The police officer failed to support his contention that the breathalyzer test was not practical. As a result, he did not follow the law by requesting the blood test, and the blood alcohol test results were thrown out.

I saw an amazing statistic in an article about the number of people arrested on drug crimes in the United States last year. By "amazing", I mean hopelessly pathetic and extremely wasteful and expensive. According to the statistics, more than 1.6 million people were arrested on drug offenses in 2010, which equates to a drug arrest every 19 seconds- all day, every day last year. While some might assume, or at least hope, that most of these drug arrests involved more serious drugs like heroin, methamphetamine and cocaine, more than half of these drug arrests involved marijuana. And the overwhelming majority of marijuana arrests were for simple possession of marijuana as opposed to sale or trafficking in marijuana.

These 2010 numbers represent a slight increase in drug arrests from 2009 but a more than 8% increase from ten years ago. Another disturbing aspect of these high drug arrest numbers is that incidents of other crimes have decreased. Violent crimes such as murder and robbery as well as property crimes such as theft and burglary have all decreased in the same time period these drug arrests have reached all time highs. People in the United States continue to be arrested for drug crimes more than any other crime. However, with this War on Drugs being waged for over 40 years, it is hard to see how any of this is having a beneficial effect on this country. On the other hand, it is easy to see how incredibly expensive and wasteful it continues to be.

As criminal defense lawyers in the Jacksonville, Florida and North Florida area, we have seen a significant increase in the number of criminal cases involving pain clinics and pain management practices throughout Florida and South Georgia. State and federal law enforcement officials have been very active in raiding any medical practices they believe are illegally dispensing pain medication and narcotics in violation of the law and without following the proper medical procedures. They are also arresting doctors and owners of pain clinics for operating these pain clinics without the proper license from the Florida Department of Health. When the police or Drug Enforcement Agency officials raid and search these pain clinics, they often arrest everyone associated with the medical facility, including employees, doctors and owners. They also often seize any assets of value at the medical practice including records, equipment, money and vehicles.

Recently, local police raided another doctor's office in Maclenny, Baker County, Florida and charged several people with prescription fraud. Police allege that the people arrested at the doctor's office would provide prescriptions for pain medications for cash without having them examined by the doctor. Police alleged that some of the patients who received the prescription drugs illegally ultimately overdosed.

Pain management facilities have been around for many years, and they provide a valuable service to people dealing with chronic and acute pain. However, law enforcement officials, particularly in Florida, believe that some pain clinics are starting up that are providing pain pills to people who are not being properly examined by a doctor and do not medically need the pills. They refer to these places as pill mills as they allegedly see many patients a day and provide prescription pain medication to anyone for a small fee.

If you have an affiliation with a pain clinic or other pain management facility and have questions about the changing laws that deal with licensure and other issues and want to discuss the proper way to operate a pain management practice, feel free to contact us for a free consultation.

A postal supervisor with the United States Postal Service was arrested for stealing merchandise that was ordered from online stores and shipped through the mail. The defendant was sentenced to three years in federal prison for stealing over $150,000 in merchandise. One of the ways the defendant was tracked was through pawn shops in Florida and Georgia where the defendant sold the stolen merchandise. When a person pawns an item at a pawn shop, the pawn shop will keep identifying information about the person such as a picture, signature and fingerprint card.

Normally, the theft of store merchandise and most other items will be a crime charged in state court. However, the theft of mail comes under the jurisdiction of the federal government and will be prosecuted by the United States Attorney's Office. Therefore, a person charged with a mail theft charge will face an entirely different criminal system with a different way of determining a proper sentence, if convicted. While this case involved more than $150,000, theft of any mail can still be a federal crime. When a defendant is charged with a federal crime in federal court, the rules are quite different from the majority of cases that end up in state court. When charged with any federal crime, it is important to seek the advice and counsel of criminal defense lawyers who are familiar with the different system and rules involved in the federal system.

if you have been arrested for a federal crime and would like to know your rights in the federal system, feel free to contact us for a free consultation.

Over the last several years with the ever-increasing deficit becoming more and more of a issue in the media, the federal and state governments have focused more on crimes that involve fraud, including fraud that involves government benefits. There may be no bigger crime involving fraud and government benefits at any time in our history than Medicare fraud.

Medicare is a government funded insurance program that assists approximately 46 million of the elderly and disabled with health care. One report estimated the total amount of Medicare fraud at $60 billion as of 2009. We have seen many cases where state and/or federal law enforcement officials have investigated and arrested doctors, medical center owners, executives and employees and patients for allegedly committing various versions of Medicare fraud. One of the most common methods of committing Medicare fraud occurs when a doctor or other employee sends a Medicare reimbursement form to the government for medical services or equipment that were unnecessary or never provided.

Recently the federal government announced that 91 people in eight different cities were charged with committing Medicare fraud in an amount totaling approximately $300 million. Among those charged were many doctors accused of seeking reimbursement for medical services that were never provided. As an example, one doctor is accused of billing Medicare for medical services allegedly provided to dead people.

The Attorney General's office has indicated that Medicare fraud investigations are a critical part of President Obama's healthcare reform. As the government spends money and tries to deal with the runaway deficit problem, attacking the billions of dollars lost through Medicare fraud appears to be an area ripe for attention from state and federal law enforcement officials.

In criminal cases, the state may try and speak with the defendant's spouse to obtain critical evidence against the defendant. However, in Florida there is a spousal privilege which limits the state's ability to obtain testimony from one spouse against another spouse who is charged with a crime. However, this spousal privilege has limitations. There are instances where a spouse can testify against his/her spouse in a criminal case.

What is protected are confidential communications between the spouses. Even if the spouse/witness wants to testify to what the defendant/spouse told him/her, the defendant can prevent the spouse from testifying to any confidential discussions and communications between the two. For instance, if a defendant is charged with robbery and before the alleged incident, the defendant tells his wife in the privacy of their home that he really needs money and he's going to go out and get some, that would be a confidential communication that the state could not use against the defendant.

The spousal privilege is a well-recognized privilege in Florida, but it is not absolute. The communication must be confidential for it to be protected. If a spouse admits to incriminating information to his wife but also in front of a third party, the statement is not confidential and it is not privileged. If the defendant makes an incriminating statement to his wife and tells her she can share it with another person, or the defendant shares it with another person, the statement is no longer confidential and is unprotected.

In any criminal case where the state intends to question the defendant's spouse, it is important for the criminal defense lawyer to determine the scope of this questioning and make sure any confidential communications between the spouses are not disclosed and are kept out of court.

As criminal defense lawyers in the Jacksonville and North Florida area, two of the most common crimes we see are possession of illegal drugs and delivery of illegal drugs such as marijuana, cocaine, methamphetamine and heroin. Hundreds of people in the Jacksonville and North Florida areas are put in jail for those crimes on a weekly basis. However, it is possible that those drug convictions were unconstitutional because the Florida possession and delivery of drugs law violates a person's right to due process under the Constitution.

In a recent, very well-written opinion by a judge in Miami-Dade County, the possession and delivery of illegal drugs statute was determined to be unconstitutional. This is the same criminal statute that has put thousands and thousands of people in jails and prisons in Florida over the years. So, what was the problem with such a well-established and frequently used criminal statute? According to the judge's analysis, the statute, as written, does not distinguish between people who possess or delivery illegal drugs knowing the illegal nature of the substance and those who possess or deliver illegal drugs not knowing what they have is illegal.

Of course, the majority of people who possess or deliver illegal drugs know very well what they are doing is illegal. However, there are those people who possess or deliver illegal drugs who do not know the illegal nature of what they are possessing or delivering. The criminal statute does not distinguish between those two mental states- intending to do the act that is illegal in the first instance and not intending to do anything illegal in the second instance. For that reason, according to the judge, the statute is unconstitutional because it covers conduct where there is no intention to break the law.

The State argued that if a person did not know the substance he/she had or delivered was an illegal drug, the defendant could assert that as a defense. However, according to the judge, this placed an impermissible burden on the defendant who is always innocent until the state proves him/her guilty in a criminal case. It is the state's burden to prove their case, and one of the elements that must be proven is the fact that the defendant knew what he/she had was an illegal drug.

For instance, consider a situation if Person A has a closed gym bag and asks his friend to take it to the gym and put it in his locker. Person A knows there is a bag of cocaine inside and is plannign on having his buyer pick it up at the gym. The friend has no diea what is in the gym bag bvut gets arrested before he makes the delivery. Under the statute, the friend is guilty of delivering cocaine without the state having to prove that the friend knew he was illegally delivering cocaine.

What are the implications of this recent ruling that the drug statute is unconstitutional? There are thousands of people with pending drug cases who have been arrested and/or charged by this statute that has now been deemed unconstitutional by a Circuit Court judge. Will those cases be allowed to go forward? There are thousands of people in jail or prison who were sentenced after having been convicted of this questionable drug statute. Should they be released?

The judge who issued this ruling is a circuit court judge in Miami-Dade County. Other judges in circuit courts in other parts of Florida may disagree and find the drug statute to be perfectly legal. A ruling in Miami may have no effect on a similar case in Jacksonville where the issue is raised. What will likely happen is the Florida Supreme Court will have to decide the validity and constitutionality of this drug statute. Once the Florida Supreme Court decides this issue, it would be binding on all defendants charged with possession of illegal drugs or delivery of illegal drugs in Florida.

Most people are familiar with the word hearsay as they have heard the term on TV shows and other places. The evidentiary rules regarding hearsay are often misunderstood, not just by the general public, but also by lawyers. Basically, hearsay is a statement by a person not in court that one side is attempting to use in court to prove the truth of the matter referenced in the statement. As a simple example, if Bob comes in to court and tells the jury that Steve told Bob that Defendant committed the robbery, Bob's testimony is hearsay. As a general rule, hearsay is not admissible in court because the Defendant has a right to question Steve about what he saw, and he cannot do that if Steve is unavailable and the jury only hears what Steve allegedly saw through Bob's testimony. However, there are exceptions to the hearsay rule.

One exception is called the dying declaration. In a recent murder and armed robbery case south of Jacksonville, Florida, shortly after the incident, the police saw the victim in the hospital. The police officers showed the victim a photo lineup which included the defendant's picture. The victim could not speak, but he was apparently able to blink signifying an affirmative response when the police officers showed the victim the picture of the defendant. The victim later died, and the police officer came to court during the defendant's trial and testified the victim blinked while looking at the defendant's picture in the photo lineup to indicate the defendant was the person who robbed and shot him.

The criminal defense attorney argued to keep the evidence of this identification out of court claiming it was inadmissible hearsay. Inadmissible hearsay does not have to be an actual statement; it can also be an assertion like a gesture, pointing or blinking. However, the court disagreed. Under the dying declaration hearsay exception, if a person makes a statement or assertion while he/she reasonably believes his/her death is imminent and certain and the statement is concerning the cause of that death, that statement may be admissible hearsay in court. The witness does not need to expressly state that he/she knows death is imminent and certain if it is apparent from the circumstances that the witness would reasonably believe he/she is about to die.

In this case, the state presented evidence that the victim was in grave condition and it was clear that he was about to die. Because of that, the court found that the dying declaration exception to the hearsay rule applied, and the police officer was allowed to testify to the victim's identification of the defendant as the robber and shooter. The obvious downside to the defendant was that the state presented critical evidence of his guilt without the defendant's criminal defense lawyer having an opportunity to cross-examine the victim about this hearsay evidence.

Police officers are allowed to search a person for drugs, guns or other evidence of criminal activity in limited circumstances. One of the most common bases for searching a person is consent. The police can almost always approach a person and ask for consent to search him/her. Additionally, everyone who is arrested for a crime will be searched by the police. The primary legal justification for this search incident to an arrest is to make sure the suspect does not have any weapons on him/her to ensure the police officer's safety when he/she takes the suspect into custody.

However, the arrest has to be valid for the search incident to the arrest to be legal. The police cannot search a person for illegal drugs, guns or other criminal evidence if there is no legal basis to arrest the person in the first place. For example, if a person commits a traffic violation, the police officer can give that person a traffic ticket, but the police officer is not allowed to search the person based on the traffic violation. The police officer can ask to search the person and/or his/her vehicle during the traffic stop, but the person has a right to refuse the police request to search. Likewise, if a person is in violation of some other ordinance for which jail time is not a potential penalty, the police cannot search a person based on a violation of that ordinance.

In a recent criminal case south of Jacksonville, Florida, police officers saw the defendant in a city park after dark. The city had passed an ordinance prohibiting people from being in the city park after dark due to drug activity in the park. The police officer approached the individual and told him about the ordinance. The police officer then arrested the defendant for violating that ordinance. Incident to the arrest, the police officer search him and found marijuana and drug paraphernalia in his pocket. The defendant was then arrested for possession of marijuana (cannabis) and possession of drug paraphernalia.

The criminal defense lawyer moved to suppress the evidence of the marijuana and drug paraphernalia arguing that the arrest for the city ordinance was illegal so the resulting search was also illegal. The judge agreed. Because the city ordinance could not result in jail time as a possible penalty, the police officer did not have a right to arrest and search the defendant. All the police officer could do was detain the defendant for the purpose of writing him a ticket.

The police officer also tried to justify the search by claiming the defendant put his hands in his pocket and the police officer was concerned he might have a weapon and be at risk. However, there was no objective evidence that the suspect was armed, so a search for officer safety was not justified. The evidence of the marijuana and drug paraphernalia was thrown out, and the possession of marijuana charge was dropped.