Jacksonville Criminal Lawyer Blog

As pain pill or pill mill cases become much more prevalent in Florida, one issue that we have looked at quite often is a person's privacy rights in his/her pharmacy and medical records. In Florida, a person has clear privacy rights in his/her medical records. It requires a court order for the police or another party to see a person's medical records, and there must be a legitimate legal basis to do so. However, pharmacy records are much different. There is much less protection for pharmacy records relating to prescription narcotics. In some cases, a police officer can go to a pharmacy and request a person's prescription records without a search warrant or court order and without the patient ever being notified of the police search. The police officer merely has to tell the pharmacy that he/she is working on a criminal case, and the pharmacy records of controlled substance prescriptions become an open book.

In many cases, this issue comes up in relation to doctor shopping charges- where a person is suspected of going to different doctors in a short time period to get similar pain pill prescriptions without informing the doctors that he/she went to the other doctor for the same purpose. The police may then go to the pharmacies where the person is filling the prescriptions for evidence of the doctor shopping crime.

Florida law allows the police to just walk into the pharmacy and obtain records of prescriptions for controlled substances when the police officer says he/she is working on a criminal case, or in other words, just about any time a police officer feels it is remotely relevant to a criminal investigation. The very limited privacy protection prevents the police officer from obtaining pharmacy records in this way of prescriptions for drugs that are not controlled substances.

Sometimes, the police will try to use this law to delve further into a person's medical data. Once they easily obtain the prescription information, the police may determine the names of the prescribing doctors and then go talk to them about the defendant and the allegedly illegal prescriptions. This is a violation of the law. While Florida law does allow the police to easily access a person's controlled substance pharmacy records, it does not allow the police to take the next step and get any medical records or talk to any medical personnel about the defendant, unless the police officer gets a court order first.

In Florida, an assault is an intentional verbal or physical threat to commit violence upon another person in such a way that it is apparent that the person making the threat has the ability to carry it out and the victim reasonably fears that the violence is imminent. An assault is a misdemeanor crime in Florida. However, it can become an aggravated assault, a serious felony, if a deadly weapon is used or the assault is made with the intent to commit a felony. When the victim is a police officer, or any number of other public employees, the crime and potential penalties become more serious.

An aggravated assault against a law enforcement officer charge often comes up in the police chase context. One question that arises is whether the defendant intended to threaten the police officer or was just trying to get away. If the former, then an aggravated assault on a law enforcement officer charge may be valid. If the defendant was just trying to escape and did not intend to threaten the police officer, the aggravated assault on a police officer charge may still be a viable charge.

In order for the state to prove an aggravated assault on a police officer charge, or any assault for that matter, the state does not have to prove that the defendant intended to commit violence against the victim. The state only has to prove that the defendant intentionally made the threat, either by words or actions, that was substantially certain to put the victim in fear of violence. Therefore, in the police chase context where the police cars are chasing the defendant or have him blocked off, if a defendant accelerates a car in the direction of a police officer, with no intent to strike the police officer but just to get away, the defendant may be charged with aggravated assault on a police officer if the police officer was in reasonable fear of being hit by the defendant's car.

As we have discussed several times in the past, the old laws dealing with prison sentences were very different for crack cocaine crimes as opposed to powder cocaine crimes. Basically, a person charged with an amount of crack cocaine often faced a much more severe prison sentence than a different person charged with the same amount of powder cocaine. After years of incredibly disparate sentences for similar drug crimes, quite often detrimentally affecting African-Americans, Congress finally acted to minimize the difference with the Fair Sentencing Act of 2010. The difference was not eliminated altogether. However, because the differences were so tremendous before, there was room to make significant changes. The ratio of prison sentences for crack cocaine crimes versus powder cocaine crimes went from 100 - 1 to 18 - 1. There is still a pretty big difference, but it is much better than before.

The new rules are now in effect for federal crack cocaine and powder cocaine crimes. Anyone who is charged with a crack cocaine crime going forward will benefit from the less stringent sentencing rules. Due to a United States Sentencing Commission decision, the new rules are also being applied retroactively, which means people who were arrested and convicted for crack cocaine crimes in the past and sentenced to prison under the old rules can challenge that sentence and request a modified sentence more in line with the new rules. Many people have recently been successful with that challenge.

Statistics show that approximately 1,800 people in federal prisons on crack cocaine charges are eligible for immediate release under the new sentencing rules. Additionally, about 12,000 federal inmates convicted of crack cocaine charges are eligible for reduced prison sentences.

In Florida, there are multiple levels of police encounters, and with each one, there may be certain legal requirements on the part of the police officer to justify the police officer's actions. The first level encounter is a brief, consensual encounter where a police officer is not required to have any evidence that the suspect is involved in criminal activity. In these encounters, because the police officer does not have any evidence of criminal activity and is just casually requesting information, the suspect is free to refuse the police officer's requests and leave the scene. However, if the encounter becomes more serious and a reasonable person would not believe he/she was free to ignore the police officer and leave, it becomes more than a casual, consensual encounter.

In a second level encounter, the police can briefly detain a suspect to see if the suspect is involved in any criminal activity and/or possibly armed and a threat to the officer's safety. As stated, this encounter must be quick and cannot be too intrusive. In order to justify such an encounter, the police officer must know of specific facts giving the officer reasonable suspicion that criminal activity is occurring or the person is armed and dangerous. If that reasonable suspicion is not quickly confirmed, the encounter must end.

The third level encounter involves a long, intrusive detention by the police officer or an outright arrest. In order to justify this kind of detention, the police officer must have probable cause to believe the suspect was involved in criminal activity or an actual arrest warrant.

In which level does a check of a person's name and date of birth for outstanding arrest warrants belong? In a recent criminal case south of Jacksonville, Florida, a police officer responded to a call of illegal drug activity and observed the defendant standing next to a building. Without activating the emergency lights or drawing his weapon, the police officer approached the defendant and asked him for his name and date of birth. The defendant gave the information, the police officer ran it in his computer and learned that the defendant had an outstanding arrest warrant. The police officer arrested the defendant and found him in possession of marijuana bags. The defendant was charged with possession with intent to sell marijuana.

The criminal defense lawyer filed a motion to suppress the marijuana claiming that the police officer did not have reasonable suspicion that the defendant was involved in criminal activity when the officer asked him for his name and date of birth. The state agreed but alleged that this was a first level, consensual encounter and no reasonable suspicion was needed.

The court ruled in favor of the state and found that this was a first level encounter, and a police officer is allowed to ask for a person's name and date of birth without any evidence the person is involved in criminal activity. The court also necessarily found that the defendant was free to refuse the officer and leave.

In the real world, we know that when the police are investigating drug complaints and ask the defendant for his name and date of birth and the defendant refuses and walks away, the police officer is not going to leave it at that. But in the legal world, if the police officer makes a case that he was simply asking for the suspect's name and date of birth and would have taken no for an answer, a court may likely find the police officer can do this without any indication the person had done anything wrong.

There are a few different kinds of drug crimes in Florida. Simple possession is typically the least serious drug crime, and trafficking is the most serious. In between the two, possession with intent to sell illegal drugs is still a very serious felony crime. The crime is often associated with the suspect being within a certain distance of a public park or school. For the most part, prosecutors and judges look for more serious sentences when they believe a defendant was selling, or intending to sell, an illegal drug rather than just using it.

What evidence is required to prove possession with intent to sell an illegal drug in Florida? Sometimes, the police will try to use the quantity of the drug found on the suspect as the primary, or only, evidence that the defendant intended to sell the drug. This may be allowed under Florida law if the amount of the drugs was so significant, no reasonable person would believe it was for personal use. For instance, if the police find a person with a couple of bricks of crack cocaine, that would probably be sufficient for a possession with intent to sell crack cocaine charge. However, when the quantity does not obviously indicate the drugs are for sale rather than personal use, the state must present other evidence that the drugs were for sale.

In a recent case south of Jacksonville, Florida, the police responded to a park where people were allegedly selling crack cocaine. Ultimately, they arrested the defendant who was found carrying a bag with about 50 crack rocks inside. The defendant was arrested for possession of crack cocaine with intent to sell within 1,000 feet of a public park.

The criminal defense lawyer argued that the state did not have sufficient evidence that the crack cocaine was for sale and the possession with intent to sell charge should be dropped. The state relied on just two facts to support the intent to sell charge- the quantity of the crack rocks and the fact that the defendant did not have any drug paraphernalia to use the crack cocaine on him. However, this was insufficient evidence to prove possession with intent to sell crack cocaine. Because there was a possibility the drugs could have been for personal use, the state needed to present more evidence of intent to sell. For instance, if the police testified that they saw the defendant engage in apparent drug transactions or arrested him with a large amount of cash along with the crack cocaine, that might be sufficient to prove intent to sell. The quantity of the crack cocaine alone in this case was not sufficient, and the possession of crack cocaine with intent to sell within 1,000 feet of a park charge was dismissed.

In Florida a battery is normally committed when a person forcefully touches another in an unauthorized manner. A first time battery will likely be charged as a misdemeanor crime. The charge becomes domestic battery if the victim is a relative or shares another specified relationship with the suspect. A battery can be a felony if a weapon is used or the battery results in sufficiently serious injuries to the victim.

However, no matter the type of battery, domestic or otherwise, felony or misdemeanor, the defendant may have a self defense argument. A valid self defense claim is a complete defense to a battery charge and, if successful, would result in a verdict of not guilty in a criminal trial.

A person in Florida has a right to use force against another if he/she reasonably believes it is necessary to protect him/herself or another from that person's imminent use of force. In other words, if you think someone is about to use force against your or another victim, you can use force against that person if it is reasonably necessary to prevent that force from occurring.

This right to self defense is not absolute. There are two common situations where self defense is not a valid defense to a battery charge. If the defendant is committing a forcible felony, attempting to commit a forcible felony or escaping from the commission of a forcible felony, he/she does not have the right to claim self defense if he/she uses violence against someone. For instance, if a defendant breaks into another's home to steal something, someone inside is about to strike the defendant and the defendant hits that person first, the defendant will not be allowed to use the self defense claim. In this case, the defendant was committing a burglary and had no right to strike the other person. The defendant would be charged with burglary and battery without a valid self defense argument.

The other scenario occurs when the defendant initially provokes the use of force. If the defendant starts a fight and the other person moves to strike the defendant, the defendant is not authorized to use a self defense argument if the defendant strikes the other person first.

The FBI is using more aggressive means to get personal emails and information about internet usage. In the past, the FBI was permitted to use administrative subpoenas that were not initially presented to a judge for review. These administrative subpoenas, or national security letters, were sent to internet service providers at the discretion of the FBI asking internet service providers to disclose information about personal emails and what websites the targets of the subpoenas had visited. Upon receiving the national security letters, the internet providers were obligated to refrain from alerting its customers that the FBI was requesting the information and the internet service provider was providing the information.

More recently, perhaps due to backlash from the secret disclosure of this private information, the internet service providers were limiting the information they would provide to the FBI in response to these national security letters. As a result, the FBI has shifted its strategy and asked the courts for orders, called business records requests, that require the internet service providers to release the extensive private information previously obtained by the national security letters. According to a recent article, in the first few months of this year, more than 80% of the business record requests made by the FBI were for internet records, and the FBI made more than four times as many business record requests in 2010 compared to the prior year.

Over the last several years, we have seen a significant increase in the number of arrests of people in Florida for possession, sale and trafficking involving prescription narcotics like Oxycodone, Hydrocodone, Roxycontin and Oxycontin. These drug crimes involving prescription pills have increased at a much greater rate than the more traditional drug crimes involving marijuana, cocaine, heroin and crack.

The prescription pill criminal cases come in many forms. One area that has been more difficult for the police to detect is referred to as doctor shopping. A common approach by people looking for prescription painkillers like Hydrocodone and Oxycodone is to set up multiple appointments with different doctors, complain of pain and get prescriptions for pain pills from each doctor. Of course, the patient does not tell each doctor that he is seeing the other ones for the same purpose of getting the pain pill prescriptions. The patient then gets the prescriptions from the various doctors, fills them at different drug stores and obtains a large quantity of pills to use and/or re-sell. This was difficult for the doctors, pharmacists and the police to detect because there was no way for one doctor to know if a patient has seen a similar doctor recently and received a similar prescription unless the patient disclosed that information.

As a result, Florida made it illegal to go to multiple doctors within a 30 day period and get similar pain pill prescriptions without telling the doctors of the patient's visit(s) to the other doctor(s). This is called doctor shopping, and it has become a felony crime in Florida. However, this relatively new law did not make it any easier for police or doctors to catch people doctor shopping. The police would only solve such a crime if they found the various prescriptions or pill bottles with the different doctors' names and dates or otherwise came across this information, which was unlikely.

In order to give the police, doctors and pharmacists a better tool to stop doctor shopping for pain pills, Florida established a statewide database where doctors are required to input information about pain pill prescriptions for their patients. As of now, doctors in Florida are not required to check the database to see if a patient recently obtained a similar prescription, so the law has a major flaw. However, next year the law is supposed to require that doctors check the database before providing a controlled substance prescription to make sure the patient is not doctor shopping. Once this requirement becomes effective, it will be much more difficult for people to obtain pain pills and other controlled substances by doctor shopping.

In addition to Florida, most of the other states now have a prescription drug database. However, it is not clear from the recent Jacksonville article whether Florida doctors can check the database from other states. If not, there is another flaw that is likely to affect police, doctors and pharmacists in Jacksonville. Since Jacksonville is so close to the Georgia border, a person may be able to get pain pill prescriptions from doctors in Florida and Georgia without each doctor knowing of the other if the doctors do not have access to prescription database information in the other state.

Normally in Florida, when the government plans to make something illegal, whether it is certain conduct by a person or possession of some new drug the government is afraid of, the Florida legislature will come up with a new criminal law. Congress does the same thing on the federal level. However, the DEA has authority to ban certain substances on a more immediate and temporary basis if the DEA determines the substance is dangerous. The DEA has recently acted to ban certain "bath salts", more particularly known as mephedrone, methylone and 3,4 methyleneoxypyrovalerone. These "bath salts" have become more popular in Florida over the last couple of years. They are known by the more common names of Vanilla Sky, Ivory Wave and Bliss.

The DEA ban classifies the "bath salts" as Schedule I controlled substances and makes it illegal to possess or sell these "bath salts" for at least a year. During the time of the temporary ban, the DEA is supposed to study the substances to determine if they are dangerous and a permanent ban is appropriate. The DEA is concerned that these "bath salts" may cause extreme paranoia and violent episodes among other side effects. While the DEA does have authority to ban potentially dangerous drugs more quickly than Congress and state legislatures, the problem the DEA has is they must specifically identify which substances are being banned. However, the people making these drugs can quickly manufacture new, derivative substances not covered by the ban and essentially outrun the DEA's efforts.

As criminal defense lawyers in Jacksonville and the North Florida area, a very common scenario that we see a lot occurs when police are patrolling what they call high crime areas and a suspect runs when he/she sees police in the area. A common question results from this scenario. When the police are in a high crime area and see someone running from them but there is no evidence of a specific crime occurring, what can the police do? This issue has been addressed by courts in Florida and all over the country. Years ago, the United States Supreme Court decided that when a person is unprovoked and runs from the police in a high crime area, the police have a right to chase the person and briefly detain him/her to investigate further, i.e. to quickly determine if the person ran because he/she was involved in criminal activity.

However, the police can not do more than that without specific evidence of criminal activity or specific evidence that the person is armed and a possible threat to the police officer's safety. If a person runs upon seeing police, the police officer chases and catches him/her and then searches the suspect for drugs and/or weapons, that is an illegal search. The chase and the brief detention are legal, but the search would be illegal without specific evidence that the person was committing a crime or armed. Running from the police in a high crime area allows the police to chase and stop the suspect but, without more evidence, it does not allow the police officer to pat down or search the suspect. If the police do conduct a pat down or search under those circumstances and find illegal drugs or guns, that evidence should be thrown out of court.