Jacksonville Criminal Lawyer Blog

Jacksonville, Florida police have indicated that they intend to make more DUI (also referred to as drunk driving or driving under the influence) arrests this weekend as it falls on the New Year's holiday. People in the Jacksonville, Florida area can expect Jacksonville Sheriff's Office and Florida Highway Patrol officers to be on the lookout for people they suspect are driving under the influence of alcohol or drugs. They are also setting up DUI checkpoints in the Jacksonville area.

Of course, for anyone who plans to drink this weekend, having a designated driver or taking a cab is always the best option. However, the other side of the coin in these situations where the police are making a concerted effort to make DUI arrests is that police often tend to draw conclusions first and work on the evidence later when they believe someone is DUI. A DUI arrest is very subjective. A DUI arrest is often the result of a police officer who is already looking for DUI suspects deciding that a person is impaired from alcohol and then making very subjective observations that are consistent with that foregone conclusion. These same observations that police officers write in their reports over and over again include: odor of alcohol, bloodshot and glassy eyes, slurred speech and swaying. Of course, all of those are subjective conclusions, and none of them prove that a person is impaired. From there, the police officer will likely ask the DUI suspect to participate in the field sobriety exercises. These are very difficult coordination and balance exercises administered under difficult conditions when the suspect is often very nervous. Whether a person passes these exercises is completely based on the subjective opinion of the police officer who obviously already thinks the suspect is impaired or he/she would not have asked the DUI suspect to take the field sobriety tests in the first place. Under those circumstances, it may not make sense to agree to take the field sobriety tests, which are completely voluntary.

The message from the Jacksonville police is a good one- if you are going to drink, a designated driver or taxi is the best option. However, we have handled a lot of DUI's and see how subjective the DUI arrest can be on a normal weekend. When the police make a statement that they are focusing on DUI's during a particular weekend, the risk of more questionable DUI arrests is greater.

If you have been stopped for DUI or arrested for DUI and have questions about your rights and defenses, feel free to give us a call any time, 24 hours a day for a free consultation to learn your rights.

In a recent DUI case south of Jacksonville, Florida, the defendant was the subject of a citizen's arrest until the police officer arrived and formally arrested the defendant for DUI. The citizen was sitting on a bench when the defendant pulled up, stopped and got out of her vehicle. The citizen noted the defendant was clearly disoriented and appeared intoxicated. The citizen then took the keys from the defendant to prevent her from driving further. This was a seizure under the Florida search and seizure laws. Once she retained the defendant's keys, the citizen called the police. The police officer arrived, spoke to the citizen about the defendant's apparent intoxication and began a DUI investigation. After determining the defendant was drunk driving, the police officer arrested her for DUI. The defendant ultimately took a breathalyzer test which showed a very high blood alcohol content level.

The defendant's criminal defense lawyer filed a motion to suppress the evidence of the breathalyzer test and the police officer's observations of her signs of impairment. The criminal defense attorney argued that the citizen's arrest was improper and all evidence obtained thereafter was inadmissible. The court disagreed and found that this was a proper citizen's arrest. Because the citizen observed the defendant show signs of impairment and acted properly in taking the keys from her to prevent her from driving, the citizen's arrest was proper. The defendant was not unlawfully seized, and the police were permitted to conduct their DUI investigation and make a DUI arrest.

In Florida, the crime of animal cruelty can either be a misdemeanor or a felony. Felonies are more serious and carry maximum punishments greater than one year in prison while misdemeanors carry maximum punishments of no more than one year. In Florida, misdemeanor animal cruelty is committed by killing, tormenting, depriving of food and water or unnecessarily mutilating an animal. The wording of misdemeanor animal cruelty clearly covers a lot of bad conduct that one might inflict upon an animal. In order for felony animal cruelty to apply, a person must cause a "cruel death" of an animal or cause excessive or repeated suffering to an animal.

There is generally a big difference between a felony charge and a misdemeanor charge. However, there is some overlap in the language of the two levels of animal cruelty. If a person torments an animal and/or deprives it of food to cause its death, that clearly would be a misdemeanor under the above language. However, it also could be considered repeated or excessive suffering or a cruel death, which would make it a felony.

When such an act of animal cruelty occurs, how does one know if the misdemeanor or felony charge is more appropriate? It is typically up to the police officer and the prosecutor. They make the decisions as to the charge for which the defendant is arrested and what charge is filed. As we have seen in Jacksonville, Florida, the police and the prosecutors typically err on the side of the more serious felony charge. In fact, we have seen cases where people kill animals by shooting them, resulting in quick deaths, and the felony charge is filed. These acts would seem to clearly fall within the misdemeanor animal cruelty definition, but the more serious felony charge is filed because people suspected of committing animal cruelty resulting in the death of an animal do not often get the benefit of the doubt.

However, in any animal cruelty case, the law must still be followed, and the state should not be permitted to overcharge an act that should be charged as a misdemeanor under Florida law.

One often overlooked element of a DUI ("driving under the influence of alcohol or drugs") charge is the requirement that the state must prove beyond a reasonable doubt that the defendant was either driving the vehicle or in actual physical control of the vehicle while impaired from alcohol or drugs. Most of the time, this is not an issue as most DUI cases result from a traffic stop where the police officer observes the driver allegedly commit some traffic violation. However, in DUI cases involving accidents, this can be a significant issue that can result in DUI charges being dropped.

Unlike with traffic stops, accidents often occur without observation by a police officer, and possibly without any witnesses at all. In accidents with other drivers, sometimes the other driver does not actually see who was driving the vehicle that hit his/her vehicle. In single vehicle accidents, the driver is usually out of the vehicle by the time the police officer arrives. In these cases, it may be fairly obvious who was driving. However, assumptions are not sufficient to prove the defendant was driving beyond a reasonable doubt. Of course, once the police officer arrives, he/she will take a statement from the driver who will likely disclose the fact that he/she was in fact driving the vehicle. However, there is a good chance this admission by the driver is not admissible in a DUI trial.

In Florida, there is something called the accident report privilege. This privilege requires people involved in an accident to tell the police officer what happened in the accident. Because there is a requirement to talk to police, any statements a driver makes about the crash during the accident investigation cannot be used against him/her in a criminal case. Therefore, if the only evidence the police have that the DUI suspect was driving prior to the accident came from the driver's own statements while the police officer was investigating the accident, that statement cannot be used against the DUI suspect and the DUI charges should be dismissed.

Despite the obvious and incomprehensibly expensive failure of the war on drugs, the United States government continues to expend time, resources and of course, money into making more and more drugs illegal. This time, the targets of the government are synthetic stimulants, or "bath salts", and synthetic marijuana, or "fake pot." The vote in the House of Representatives could happen any time, and the new bill making the two substances illegal is expected to pass without a problem. The new law would allow up to 20 years in prison for people who distribute small quantities of the bath salts or fake pot. In addition to the upcoming federal ban, many states, including Florida, have enacted similar laws making bath salts and fake pot illegal.

A new study found that traffic fatalities declined in states that legalized medical marijuana. The study looked at the relationship among marijuana laws, alcohol consumption and traffic-related deaths. The results were an almost 9% decline in traffic fatalities and a 5% decline in beer sales in states that legalized medical marijuana. These results are in direct contradiction to people who were concerned that legalizing medical marijuana would result in more drivers impaired from drugs and more traffic deaths.

The study looked at 13 states that legalized marijuana from 1990 - 2009. In those states, alcohol consumption was reduced for people in their 20's, whose leading cause of death is traffic accidents. In 2009, alcohol-impaired driving contributed to about one-third of all fatal motor vehicle accidents. Reducing fatal accidents by 9% by legalizing medical marijuana would make a significant impact in the number of young people killed in motor vehicle crashes.

The law firm of Shorstein & Lasnetski, LLC in Jacksonville, Florida handles all variations of white collar crimes. One of the cases for which our clients often request representation is the crime of mortgage fraud. As a result of handling a large number of mortgage fraud criminal cases, we have noticed that the police often charge defendants for negligent, and often common, mistakes made during the mortgage application process that do not rise to the level of criminal conduct. Other times, the state may prosecute a mortgage fraud case when a person does make an incorrect statement, but the false statement has no effect on the approval for the mortgage loan.

For instance, in a recent case south of Jacksonville, Florida, the defendant obtained a mortgage to build a home on a vacant lot. He found a mortgage broker and completed the loan application. In each of the documents during the application process and at the closing, the defendant stated his gross monthly income as $9,800 per month. According to the state, the defendant's gross monthly income shown on his tax returns was less than $9,800 per month. The state then jumped to the conclusion that the defendant gave false information on his mortgage application and therefore committed mortgage fraud by inflating his income to get a higher loan amount.

Under Florida law, a person can be convicted of obtaining a mortgage by false representation, aka mortgage fraud, where a person makes a false statement in order to obtain a mortgage and the victim relies upon the defendant's false statement.

In this case, the state did prove that the defendant inflated his monthly income. However, there was no evidence that the bank relied on that information to approve the mortgage for the amount requested. In other words, there was no evidence that the bank would have denied the mortgage loan, or reduced the loan amount, if the defendant had disclosed his lower gross monthly income. Because an entire element of the mortgage fraud crime was missing in the state's case, the mortgage fraud charge was dismissed.

The state also could not prove that the defendant committed theft. The defendant may have given a false statement as to his monthly income, but it was done to obtain the mortgage. In order to prove the crime of theft, the state would have to prove that the defendant intended to deprive the victim of property. In this case, it was apparent that the defendant only intended to obtain a mortgage, and there was no evidence that he did not intend to pay the money back. As a result, the grand theft charge was dismissed as well.

In a recent criminal case south of Jacksonville, Florida, the defendant was charged with burglary of an occupied dwelling and other charges after the victim reported she was sleeping in an apartment and the defendant broke in and assaulted her. The victim had been staying at the apartment with a friend. The defendant had also been staying at the apartment as he and his girlfriend's names were on the lease. The defendant and his girlfriend were in the process of moving out, but they still had the keys and the lease had not expired.

In order to convict a person of burglary, the state must prove the defendant does not own or have rightful possession of the property. However, where both the defendant and victim had a possessory interest in the property, the state must prove the victim's possessory interest was greater than the defendant's possessory interest. If their possessory interests are equal, the crime of burglary is not committed. Some of the factors a court will look at include: whose name(s) is on the lease, who is staying where, did either person already move out or abandon the property, who is paying the bills?

In this case, the defendant was in the process of moving out, but had not yet done so. He was on the lease and still paying some of the bills. He had a key to the property. The victim was just a guest at the property, her name was not on the lease and she was not paying the bills. As a result, the defendant had a greater possessory interest in the property and could not be convicted of burglary for entering the property to commit a crime.

In Florida, in order for the police to stop a person and investigate him/her for a crime that is not a DUI, the police need "reasonable suspicion" that the person is involved in criminal activity. When the information comes from an ordinary citizen reporting the suspicious behavior to the police, the police must observe the suspect and confirm through their own observations conduct that is consistent with the tip and consistent with criminal activity. In other words, if a person calls police and says the guy in the blue shirt and black pants on the corner of Main Street and 1st Street is selling drugs, the police cannot stop him to investigate just because they see a guy wearing a blue shirt and black pants on that exact corner. The police also have to verify conduct consistent with criminal activity. For instance, this might include an observation that he was making quick, hand to hand transactions with people ion the street.

However, Florida courts state a lesser standard for stopping someone to investigate for a DUI crime. In a recent case about a DUI arrest near Jacksonville, Florida, the police stopped the driver based on tips from two citizens that the driver was drunk. Upon seeing the driver, they stopped him to investigate him for DUI without observing any evidence that the driver was in fact drunk. They ultimately arrested him for DUI. The court upheld the stop and stated that in DUI cases, the police only need a "founded suspicion" that the driver is intoxicated and impaired. The court acknowledged there is a somewhat relaxed standard for DUI stops because of the valid safety concerns with DUI cases (as opposed to other crimes that present valid safety concerns).

With DUI cases in Florida, a lot of people assume that the defendant is arrested only after he/she has submitted to a breathalyzer test that showed the defendant was drunk driving or impaired by alcohol. Otherwise, people understand that an arrest before a high breathalyzer reading is likely to be based on the completely subjective assumptions of the police officer who already assumes the driver is drunk when he/she is formulating his/her opinions.

But that is not how it works. Breathalyzer tests are administered only after the defendant is arrested based on the subjective conclusions of the police officer. With many DUI arrests, it is a case of, arrest first (based on assumptions) and get the evidence later.

In a recent DUI case south of Jacksonville, Florida, the police officer observed a driver swerve out of his lane. The police officer ran a check of the driver's tag and learned that he had an outstanding warrant for driving with a suspended license. The police officer stopped the driver, arrested him for driving with a suspended license and took him to the police station. Only after the driver arrived at the police station did the officer indicate he noticed an odor of alcohol, slurred speech, bloodshot and glassy eyes and all the standard things that go into every DUI police report. The police officer asked the driver to take a breathalyzer or breath alcohol test. The driver refused. At that point, the police officer arrested the driver for DUI.

The criminal defense lawyer was able to have the driver's refusal to take the breath alcohol test thrown out because the request was made before he was actually arrested for DUI. Had the driver agreed and submitted to the breathalyzer test, the results would have been thrown out of court because the law requires a person to be arrested for DUI before he/she takes the breath alcohol test.