Jacksonville Criminal Lawyer Blog

Most DUI's in Florida stem from a traffic stop. The police officer then decides that the driver is impaired from alcohol or drugs and initiates a DUI investigation which usually involves questions about drinking/drugs, a field sobriety test and a breathalyzer test. However, in order for a DUI arrest to be valid, the initial stop of the defendant must be legal. In other words, if the police officer did not have a legal basis to stop the defendant, the DUI case will be thrown out no matter how impaired the defendant may have been.

In a recent DUI case near Jacksonville, Florida, the defendant was stopped in front of a crosswalk waiting for pedestrians to cross the road so she could make a turn. Apparently, the defendant honked her horn at the pedestrians several times as they crossed the crosswalk. A police officer saw her and approached her after she turned into a parking lot and parked her vehicle. The defendant told the police officer she honked the horn multiple times because the pedestrians were not moving fast enough. The police officer testified that he smelled alcohol coming from her and told her to exit her vehicle. The police officer conducted a DUI investigation and then arrested her for DUI.

The criminal defense lawyer filed a motion to suppress the evidence related to the DUI investigation based on the fact that the initial stop/detention was unlawful. The criminal defense attorney argued that the police officer did not have probable cause to believe the defendant violated any traffic laws before he asked her to exit the vehicle. However the court disagreed and allowed the DUI evidence to come in.

In Florida, a police officer can stop a person for violating a traffic law. There is a law in Florida which says that a driver may use his/her horn when reasonably necessary to ensure safe operation of the vehicle. However, the driver may not otherwise use the horn while driving. The court found that the defendant did not have a legitimate safety reason to honk her horn in this case. As a result, the court found that the stop was legitimate.

People use their horns for many reasons. Although we do not see this kind of case very often, be aware that there is a law that allows a police officer to stop you for honking your horn when it is not necessary for safety reasons. And once a police officer stops you, he/she can investigate you for any crime that he/she believes you are committing, including, of course, DUI.

In Florida, it is illegal for a person to record another person's oral communications (whether on the phone or in person) without consent of all the parties to the conversation or a court order. If the police or any other person secretly records an incriminating statement of a defendant without the defendant's knowledge and consent or a court order, that recorded statement cannot be used in court. However, there are exceptions to the law that says these secret recordings are admissible in court.

Most people understand at this point that 911 calls are recorded and generally can be used against the defendant at trial. This includes incoming calls into the 911 operator as well as outgoing calls from the 911 operator in certain situations. If someone calls 911 and the 911 operator has to call that same number back in order to obtain further information to respond to the emergency, that call can be recorded and used in court just like an incoming call to 911. However, those are the only two situations when a 911 operator's call can be recorded and used in court against a defendant.

A recent aggravated assault and possession of drugs case near Jacksonville, Florida presented a slightly difference scenario in which the state tried to use a recorded 911 call against the defendant. In this case, the 911 operator received a call from a neighbor who indicated there was a disturbance next door. The neighbor gave the 911 operator the phone number of the house where the disturbance was occurring. The 911 operator called the number. The phone calls was answered, but no one spoke. The line remained open, and the 911 operator heard a voice threatening to shoot the residents of the home. The police arrived and found the defendant with a gun, marijuana and pain pills without a prescription.

At the trial, the state played the 911 call recording of the defendant threatening to shoot the victims. The criminal defense lawyer appealed claiming that the 911 call recording was illegal as it was made without the consent of the defendant and without a court order. The court agreed with the criminal defense lawyer.

The Florida statute allows calls made to the 911 operator to be recorded. The law also allows calls made from the 911 operator to the same number that previously called to get more information to be recorded. However, the law does not allow calls from the 911 operator to a different number to be recorded and used in court. Because this call was not made to the same number that originally called 911, the call was not allowed to be recorded and used in court.

In Florida, a police officer may have a recording device in his/her vehicle. This obviously becomes important if the defendant makes statements after an arrest while sitting in the police car, whether to the officer, to another person detained in the vehicle or in any other context. Can the state use the secretly recorded conversations of a defendant in a police car at the trial?

In a recent robbery case south of Jacksonville, Florida, the defendant and his friend were stopped by a police officer who suspected them of committing a robbery nearby. The police officer put both of them in the back of his police car. In the back of the police car, the defendant made incriminating statements about the robbery in a conversation with his friend. These statements were recorded and used by the State against the defendant at the robbery trial.

The criminal defense lawyer tried to prevent the statements from being admitted at trial. He argued that the statements were hearsay and testimonial as they were obviously recorded to be used against a defendant at trial.

The court found that the secretly recorded statements were allowed in the trial. The defendant's own statements were his own admissions which are admissible at trial. As for the other individual in the police car with the defendant, the defendant's criminal defense attorney did not have a chance to cross-examine him, but his recorded statements were admissible because they were used to put the defendant's admissions into context. The statements were not testimonial because they were not made in response to any questioning by the police, but rather were spontaneous statements.

State of the address time often means the announcement of a new unit or task force to address crimes that have been occurring with increasing regularity for some time prior to the announcement. The 2012 speech was no exception. In last month's address, President Obama announced the creation of a new unit designed to investigate fraud crimes. Specifically, the new unit will apparently be focusing on mortgage fraud and securities fraud cases.

The new unit will be referred to as the Unit on Mortgage Origination and Security Abuses. it is not exactly clear why this new unit was created when President Obama announced the creation of an ostensibly similar task force back in 2009- the Financial Fraud Enforcement Task Force. It could be that this new task force/unit is more specialized in the areas of greater need and is a subunit of that larger task force.

The new unit will be comprised of state and federal law enforcement officials. Among other duties, they will be looking at people they allege contributed to the financial crisis by combining and selling mortgage-backed securities.

In Florida, where mortgage fraud and securities fraud are alleged to be as prevalent as anywhere in the country, this could certainly translate into more investigations, arrests and prosecutions of people involved in the real estate, mortgage and financial industries. As criminal defense lawyers in the Jacksonville and greater North Florida area, we have seen an increase in the number of people arrested for mortgage fraud-related activities. It would not surprise us to see those mortgage fraud-related arrests continue to increase with President Obama's recent comments.

In Florida, burglary of a dwelling is a very serious felony crime. Burglary clearly includes entering someone's residence with the intent to steal something inside. However, in Florida, a burglary can include more than just a person's home. A dwelling is defined as not just the home but also any attached porch. For instance, if a home had an enclosed porch attached, it would be a burglary if a person entered the porch area and stole something even if he/she never entered the actual residence.

Some residences have porch areas that are not enclosed. The porch may consist merely of a concrete slab that abuts a part of the house. If a person walks onto a unenclosed porch to steal property, is that a burglary of a dwelling?

In a recent burglary case in Jacksonville, Florida the defendant was arrested for stealing a bicycle that was on or near an unenclosed porch area that was partially covered by the second floor balcony. The porch area was in front of the residence and had no posts or enclosures indicating it was an attachment to the home.

The Court decided that this area was not an attached porch as contemplated by the burglary statute. As a result, when the defendant walked onto the concrete porch area, he did not commit a burglary of a dwelling. If a porch area is enclosed and/or covered and gives some indication that it is part of the residence, it is likely an attached porch under the burglary of a dwelling statute. However, without some indication that it is attached and an extension of the home, it will likely not be considered an attached porch under the burglary of a dwelling statute.

It is clear that going onto or into someone's property to search for evidence is a search under the Constitution, and as a result, police typically need a search warrant or consent for such a search to be valid. However, is it also a search if the police place a GPS device on a vehicle and monitor the vehicle's movements? The police are not technically searching anything but are able to track where a person goes in the vehicle with the GPS device.

The United States Supreme Court recently addressed this issue in the context of a cocaine trafficking case. The police placed a GPS device on the defendant's vehicle and monitored his movements for 28 days. The police did get a warrant to place the GPS device, but they did not comply with the terms of the warrant. Over the 28 days, the police were able to track the vehicle's movements to within 50-100 feet. The GPS tracking device relayed more than 4,000 messages to the police about the vehicle's location.

The criminal defense lawyer moved to suppress the evidence obtained from the GPS tracking device as a violation of the defendant's Fourth Amendment rights. The government argued that a valid warrant was not necessary as a person does not have a reasonable expectation of privacy with regard to his/her movements on public roads.

The Court agreed with the criminal defense lawyer and held that the government's placement of a GPS device on a vehicle and subsequent monitoring of the GPS device constitutes a "search" as contemplated by the Fourth Amendment to the Constitution. As a result, in order for the police to place a GPS tracking device on a person's vehicle, they will need a valid search warrant.

In the Jacksonville, Florida area, we have noticed more and more businesses, known as internet cafes, pop up around Jacksonville, Florida. While I have never actually visited one of the locations, I was curious as to exactly what kind of businesses they were, particularly because the one closest to the Law Office of Shorstein & Lasnetski has tinted windows and a security guard outside. Usually, tinted windows and security guards mean adult movies/accessories or gambling.

We noticed a recent article that reported Florida Governor Rick Scott said these internet cafes should be illegal. Apparently, Governor Scott recently spoke about them with reporters. He noted there are loopholes in the law which allow them to exist throughout Florida. He indicated more than 1,000 of the internet cafes have opened in Florida since 2006. The internet cafes offer electronic sweepstakes games that are legal under current Florida law.

In response to this issue, it appears the government wants to legislate how people spend their time and money and increase its authority. There are currently two proposed laws moving through the Florida legislature that would ban internet cafes in Florida. The proposed law that would ban internet cafes appears likely to pass in the House, although the Senate is taking a more job-friendly approach and looking to regulate the internet cafes and force them to pay a fee to operate.

Supporters of the internet cafes note that they provide thousands of jobs in Florida and it is hypocritical for the Florida government to ban some forms of gaming when it allows, even encourages, other blatant forms of gambling.

In Florida, in order to be charged with DUI, a person does not necessarily have to be driving the vehicle while impaired from alcohol or drugs. It is sufficient under the Florida DUI laws for a person to be in actual physical control of a vehicle. For instance, if the defendant was impaired while in the driver's seat with the keys in the ignition, this is sufficient for actual physical control even if the vehicle was in park and not moving.

In another recent DUI case near Jacksonville, Florida, a police officer responded to a call of a possible impaired driver and saw the defendant exit his vehicle from the driver's side door with the keys in his hands. After administering field sobriety tests to the driver, the police officer arrested him for DUI. The criminal defense lawyer moved to have the DUI case thrown out arguing that the defendant was neither operating the vehicle nor in actual physical control of the vehicle. However, the court disagreed and found that the evidence that the police officer observed the defendant exit the driver's side door with the keys was enough to establish actual physical control of the vehicle under the Florida DUI laws.

Clearly, the courts in Florida may interpret "actual physical control" very broadly under the DUI laws. If you have been drinking and are impaired, the best thing to do is to avoid your vehicle altogether.