Jacksonville Criminal Lawyer Blog

In Florida, a defendant's statement or confession is not admissible at a trial until the state sufficiently proves what is referred to as corpus delicti. Corpus delicti refers to the legal elements that are necessary to prove that a crime occurred. The state must first prove these legal elements with substantial elements independent of the confession. In other words, the state cannot merely use the confession to prove that the crime occurred. On the contrary, the state must present evidence that the crime occurred before the state can present the confession in court.

The concept can be illustrated by a recent criminal case south of Jacksonville, Florida. In this case, the defendant was charged with possession of cocaine and tampering with evidence. A police officer was investigating complaints of drug activity. He observed the defendant in a high crime and drug area. The defendant had a few brief encounters with some individuals. The police officer assumed these were drug transactions but was not close enough to see any details. The police officer stopped the defendant and observed him apparently throw something into his mouth and swallow it. The police officer assumed it was crack cocaine and arrested the defendant. After his arrest, the defendant admitted to buying the crack cocaine and swallowing it when the police officer approached him.

This confession was clearly sufficient to establish that the defendant possessed crack cocaine and tampered with the evidence by swallowing it. However, the confession was thrown out because the state could not prove the elements of any crime without the confession. The police officer made assumptions as to what the defendant was doing, and he was right based on the confession, but the police officer did not have any actual evidence that the defendant committed a crime so the confession was not admissible.

In theft cases and other cases where the defendant caused an economic loss to the victim, the judge will often put the defendant on probation and order him/her to pay restitution over time. Restitution is the money the defendant must pay back to the victim for the loss caused by the defendant. If the defendant fails to pay the restitution in full, and/or fails to comply with any other term of probation, the judge can issue a warrant for the arrest of the defendant for a probation violation. After the defendant's arrest on the violation of probation warrant, there may be a probation violation hearing at which the state has the burden of proving that the defendant did not comply with the terms of probation. The burden of proof on the state is much lower in a probation violation hearing than it is for a regular criminal case.

If the alleged probation violation deals with failure to pay restitution, the judge cannot find a violation of probation based solely on the fact that the defendant failed to pay restitution. In other words, failing to pay restitution, by itself, is not a violation of probation.

Under the United States Constitution, a person is not supposed to be sentenced to jail or prison due to an inability to pay. Therefore, in order for a judge to find that a person has violated probation for failure to pay restitution, the state must prove that the person had the ability to pay and willingly failed to do so- merely proving to the judge that the defendant was required to pay restitution and did not is not sufficient. It is the state's burden to prove this essential element. If the state does present sufficient evidence on this element, the defendant still has a right to show that he/she did not have the ability to pay and/or did not willingly fail to pay. It is never the defendant's initial burden to prove that he/she did not have the ability to pay restitution to avoid a probation violation.

In Florida, police officers are supposed to make arrests only within their own jurisdiction. For instance, a Jacksonville Sheriff's Office officer is not permitted to make an arrest for a crime that takes place in Clay County or St. Augustine, Florida. However, there is an exception to the rule in cases where the police officer is in "fresh pursuit" that causes him/her to leave his jurisdiction to go into another city or county.

The fresh pursuit law allows a police officer to pursue a person who has committed a felony or misdemeanor crime, a county or city ordinance violation or certain traffic violations into another jurisdiction to make an arrest or traffic stop. The law also allows the police to chase a person who is only suspected of committing a felony into another jurisdiction. The police officer is then allowed to detain and arrest the suspect in that other jurisdiction. Once the arrest outside the jurisdiction is made, the police officer must immediately notify the appropriate police officer in the particular county or city where the arrest was made.

In order for the fresh pursuit law to be applicable, the police officer must actually be chasing the suspect into the next jurisdiction without any delays. If the police officer believes the suspect has committed a crime, ordinance violation or traffic violation and merely follows the suspect without trying to pull the suspect over in his/her jurisdiction, the police officer cannot go into another jurisdiction to make the arrest because it is not a fresh pursuit.

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.

If you have been charged with a crime in Florida, or any other state, and you are not a United States citizen, you may be at risk of suffering immigration related penalties, such as deportation, as well as the normal criminal penalties. If your criminal defense lawyer is not familiar with immigration law, he/she may not know to advise you of the immigration ramifications of your criminal case or may not be sufficiently familiar with the immigration laws to properly advise you of what the immigration risks are of a guilty or no contest plea or a guilty verdict at a trial in the criminal case.

At Shorstein & Lasnetski, we handle immigration cases as well as criminal cases so, unlike most other criminal lawyers in the Jacksonville, Florida area, we are qualified to fully advise you if you are not a United States citizen and are facing criminal charges.,

In 2010, the United States Supreme Court decided the case of Padilla v. Kentucky. The Padilla case held that criminal defense lawyers are required to advise criminal clients who are not U.S. citizens that a guilty or no contest plea may have negative immigration consequences. Of course, many criminal defense lawyers are not qualified to provide specifics as to how the immigration process works and what those negative immigration consequences are likely to be. Therefore, it is very important to contact a law firm that is experienced in both criminal law and immigration laws, as we are.

What happens if a noncitizen enters a guilty plea or a no contest plea to a criminal charge without being properly advised that there may be adverse immigration consequences, such as deportation? Since 2010, the law has provided that the person may have a right to go back and withdraw his/her guilty or no contest plea and fight the criminal charges or try to work out a better plea deal that would not likely have negative immigration consequences.

However, one question that remains unanswered is whether the duty of the criminal defense attorney to advise clients of the immigration consequences of a guilty or no contest plea in a criminal case is retroactive. In other words, if a noncitizen had a case prior to 2010, when the Padilla case was decided, and his/her criminal defense lawyer did not advise him/her of the negative immigration consequences of the plea, can that person go back and withdraw the plea? Some courts in Florida have held that the Padilla case is not retroactive, which means noncitizens who were not properly advised about immigration issues prior to Padilla cannot use the Padilla case to go back and withdraw their guilty or no contest pleas. Other courts in other states have held the opposite. The issue has not been ultimately decided in Florida.

It is certainly possible that this is a question that will need to be decided by the Florida Supreme Court.

In any case, if you had a criminal case and plead guilty or no contest and now face possible immigration consequences, feel free to contact us to discuss your immigration status and the possibility of going back to challenge your criminal case. If you currently have a case pending and are concerned about the immigration consequences of your criminal case, contact us to fully understand how a criminal case can affect your immigration status.

To what extent is a police officer's racial comment admissible in a criminal trial? It depends on the circumstances and type of case. However, in any trial, evidence that tends to prove that a witness is biased against one side or the other should be admissible at the trial. If a police officer makes a comment during the arrest that indicates he/she may be biased against the defendant based on his/her race, that comment should be included in the evidence that is evaluated by the jury. The same is true if the comment was made by a lay witness.

In a recent domestic battery case that occurred south of Jacksonville, Florida, the defendant was African-American and the victim was white. The police officer who arrested the defendant for domestic battery made an apparently racist comment explaining why he had to arrest the defendant. The court ultimately ruled that the criminal defense lawyer could bring the comment to the jury's attention because prejudicial comments are relevant to attack the credibility, and show the possible bias, of the police officer.

Domestic battery cases are often based solely on the testimony of the victim. In many domestic violence cases, the only two people present for the incident are the defendant and the alleged victim so there are no independent witnesses to confirm either side's story. As a result, the police officer who responds to the domestic battery call has to decide which party is telling the truth. Even if there is some evidence of an injury on the alleged victim, that does not prove that a domestic battery was committed if the alleged victim started the altercation and the other party was defending him/herself. Because the police officer uses more discretion than normal in most domestic battery arrests, any bias the police officer may have against the defendant should be admissible in the trial.

It is not uncommon in the Jacksonville, Florida area and throughout Florida to see people riding motorcycles without a helmet. As criminal defense lawyers in the Jacksonville, Florida area, one question we recently were asked from a client is whether the police can pull them over for not wearing a helmet while riding a motorcycle. This can be much more serious than just being subjected to a traffic ticket. Many serious criminal cases start with a seemingly harmless police stop. Most DUI's start with the police officer claiming to observe some sort of moving violation allowing him/her to pull the driver over and initiate a DUI investigation. Many illegal drug cases start the same way and end with the police searching the vehicle and/or the driver/passengers and finding illegal drugs. Gun arrests also often start with the police pulling a driver over for some sort of fairly harmless moving violation.

So, it is important as criminal defense lawyers, to understand when a police stop is unlawful because when it is an illegal stop and the police discover some evidence of a crime, that evidence can be thrown out of court.

In a recent case near Jacksonville, Florida, a police officer stopped a motorcycle driver for not wearing a helmet to ask him if he had proper motorcycle insurance. The officer then learned that the driver had a suspended license and arrested him. The criminal defense lawyer challenged the stop arguing that the police officer did not have a legal right to stop the motorcyclist for not wearing a helmet to check his insurance.

The court found that the stop was illegal. As a result, any evidence of his suspended license that the police officer learned after the stop was inadmissible, and the charges were thrown out. It is not proper for a police officer to stop a person on a motorcycle for not wearing a helmet to check for insurance. The general rule is that a police officer can only stop and detain a person, whether on the street or in a vehicle, if he/she has reasonable suspicion that the person is involved in criminal activity. Not wearing a helmet on a motorcycle is not evidence of illegal activity (except for those under 21), and therefore not a legal basis for a valid stop by police.

In a recent DUI case near Jacksonville, Florida, the defendant was pulled over by police for failing to maintain a single lane. The police officer conducted a DUI investigation and decided the defendant was impaired while driving his vehicle. The police officer observed vomit on the defendant and in his vehicle, glassy and bloodshot eyes and slurred speech. The police officer then searched the defendant's car and found a pill bottle containing Hydrocodone pills (Lorcet). The defendant had a prescription for the Hydrocodone pills. He denied drinking but admitted taking the prescription drugs three days prior to driving.

The criminal defense lawyer for the defendant tried to keep the evidence of the Hydrocodone away from the jury. The criminal defense attorney argued that evidence of the prescription drugs was prejudicial and not necessary for the state to prove its DUI case. The court ultimately disagreed and found that the evidence of the Hydrocodone pills was admissible.

In a DUI case in Florida where there is evidence of drug use, even if it's a prescription drug, that evidence may be admissible in certain circumstances. For instance, the relevant factors under Florida law are: 1) there is significant evidence the defendant was impaired while driving, 2) there is evidence that the defendant recently used the drug, 3) there is not enough evidence that the defendant used some substance other than the drug which would explain his/her impairment, such as alcohol, and 4) the evidence does not show that the drug did not cause the impairment.

The idea here is that when a person is charged with DUI based on impairment from alcohol, the state has the burden of proof and needs to prove that the defendant was intoxicated by alcohol to the extent that his/her normal faculties were impaired. Evidence of prescription drugs or other illegal drugs is not necessarily relevant to the issue of whether the defendant was impaired by alcohol. However, as some people may not be aware, it is also illegal to drive while impaired by drugs, even prescription drugs. So, if a person is impaired by prescription drugs, he/she may be arrested for and convicted of DUI. In that case, where there is evidence that the defendant was impaired by illegal drugs or prescription drugs, and not alcohol, the state has a right to prove the DUI via impairment from those drugs and those drugs may be admissible into evidence.

In Florida, in order for the police to detain someone for further investigation, whether for a drug related crime or a DUI, the police must have some specific evidence of the criminal activity before going further with the investigation.

In a recent case, the police observed a person slumped in the driver's seat of a car parked at a convenience store. The car was running. The police went to the car and saw the woman sleeping in the driver's seat. The police knocked on the door to wake her but were unsuccessful. The police officer said he smelled an odor of alcohol coming from the inside of the vehicle. The police then opened the door. He had to shake the person to wake her. They ultimately conducted a DUI investigation and arrested her for DUI.

The criminal defense lawyer attempted to get any evidence that the defendant was intoxicated thrown out by arguing that the police did not have a legal basis to open her door and remove her from the vehicle. The court disagreed. In Florida, the police cannot search a vehicle or a person or seize or detain a person without specific evidence of criminal activity. In this case, the court found that the evidence that the woman was sleeping in the driver's seat of a running car, the woman would not wake up with the police banging on the window and the odor of alcohol was sufficient for the police officer to open the woman's car door and investigate further.

However, in a similar case, the court came to a different conclusion. In the other case, the person was asleep in the driver's seat of a car parked at a restaurant. The police went to the vehicle and knocked on the window. The person awoke and looked at the police officer but refused to open his door until the police officer asked him five times. Only then did the driver get out of the car. At that point, the police officer testified that he observed signs that the driver was impaired by alcohol. In this DUI case, the evidence that the driver was impaired by alcohol was thrown out, and the DUI case was dropped. The difference in this case was that there was no specific evidence that the driver was committing a crime before the police officer ordered him to get out of his vehicle. The police cannot order someone to exit his/her vehicle without specific evidence of wrongdoing. The fact that someone is sleeping in his vehicle, without more, is not enough evidence that the person is committing a crime.

As criminal defense lawyers who handle all varieties of criminal cases in state and federal court in Florida, particularly in the Jacksonville area, we get a lot of good questions from clients about the legal process in Florida. One common question from clients pertains to Miranda warnings. Most people understand Miranda warnings to be those statements from the police officer to the suspect when he/she is being arrested. The police officer is supposed to inform the person, among other things, that he/she has a right to remain silent, that if he/she says anything it can and will be used against him/her in court and he/she has a right to a lawyer before and during any questioning by police.

Anyone suspected of, or arrested for, a crime would do well to heed those warnings. All too often we see people giving all sorts of statements to police that do nothing but help the police make their case against them. If you are unsure about whether it is prudent to talk to the police or anyone else about your case, the best course of action would be to contact a criminal defense attorney who can properly advise you on that subject and anything else related to your criminal case.

But what happens if the police officer never gives the Miranda warnings to the suspect? Some people we have spoken to asked if that means the charges must be dropped because the arrest was invalid. That is not necessarily the case. Miranda warnings deal with statements given by suspects to the police when they are in custody. If the police officer does not give Miranda warnings, but no statement is given to the police by the suspect, the failure to give Miranda warnings may have no effect on the case. However, if a person is taken into custody by the police, no Miranda warnings are given and the person does give a statement to the police, that statement can be found to be inadmissible and thrown out of court. If the state cannot prove their case without that statement, the failure to give Miranda warnings could ultimately result in the criminal charges being dropped.

A couple from Fleming Island in Clay County, Florida was arrested for allegedly throwing a party with underaged kids and alcohol according to an article on Firstcoastnews.com. According to law enforcement, the Clay County couple threw a graduation party at their home at which underaged kids were drinking. Pictures of the party and the kids drinking were apparently posted on Facebook which helped lead to the arrests.

As litigation lawyers who handle all types of litigation cases including criminal defense, personal injury/wrongful death and business litigation, we have seen how people can get themselves into trouble by divulging information over the internet that is later used against them. People need to understand that an emails, a text messages and anything posted on a website are not private. If another person can access it, that can later be used against the person by police and in court by the other party. Whether it is a picture of a plaintiff in a personal injury case engaging in some activity that his/her injuries were supposed to preclude or a statement that incriminates the defendant in a criminal case, any such thing sent out over the internet can become critical evidence.

The best course of action is to consider whether you would want a police officer, an employer, a prosecutor, a judge or any other person(s) to see the information before sending it in an email or text or posting it on a website.

Quite often, a major part of the state's case is a statement or a confession from the defendant either admitting the crime or admitting to certain damaging facts that reflect negatively upon the defendant at the criminal trial. However, in Florida, a defendant's confession that was lawfully obtained is not always admissible to prove the state's case.

In a criminal case in Florida, the state cannot admit a defendant's statement or confession until the state has presented other proof that a crime was committed. Because of this rule, a defendant can never be convicted of a crime based on his/her statement alone. A defendant's statement can certainly be used against a defendant to prove the state's case, however the state must present evidence independent of the defendant's statement first before seeking to admit the defendant's statement into evidence. If the state does not have sufficient independent evidence to establish that a crime occurred, the defendant's statement will not come into evidence and the criminal case will likely be dismissed.

In Florida, many drug cases begin when a confidential informant, or CI, provides information to the police about another person using, selling, trafficking or manufacturing illegal drugs. This often occurs after the confidential informant is arrested on his/her own charges and wants to make a deal with the police or the state to reduce his charges or sentence. The CI will provide information to the state, or perhaps work for the state by making a controlled drug buy, allowing the state to make a case against someone else.

When a confidential informant gives information to the police or the state that they use to get a search warrant, search a house for illegal drugs and then arrest one of the residents of that house, that other person will have a pending criminal drug case. Normally, during that trial, that defendant will have a right to see all of the evidence and learn of all of the witnesses that the state believes proves his/her guilt and that the defendant needs to prepare his/her defense.

Can the defendant's criminal defense lawyer force the state to disclose the identity of the CI? It depends. While the state is obligated to give the criminal defense attorney all of the relevant evidence in the case, the state does have a limited right to withhold the identity of confidential informants in some situations. The purpose of this rule is to protect and encourage people who provide information about criminal activity to the police. However, a criminal defendant has a Constitutional right to know of any and all information that helps the defendant defend him/herself against criminal charges.

Those two principles are balanced out in Florida law by requiring the state to disclose the identity of a confidential informant in two situations. First, if the state plans to have the CI testify against the defendant in a trial or pretrial hearing, the state must alert the criminal defense lawyer and disclose the identity of the CI so the criminal defense attorney has the chance to talk to the CI and see what he/she has to say. Second, the state has to tell the criminal defense attorney about the CI if failure to disclose the CI would infringe on the defendant's Constitutional rights. In other words, if the criminal defense lawyer can show that the CI is necessary for the defendant to advance a particular defense in the case, the state will likely have to disclose the identity of the confidential informant so the criminal defense attorney can adequately prepare that defense for the defendant. To conceal the identity of the CI when the defendant needs to know about him/her to defend him/herself would violate the defendant's Constitution right to confront witnesses against him/her and the right to a fair trial.

If you are stopped for a DUI (aka driving under the influence of alcohol or drugs, DWI or drunk driving) and the officer has detained you for a DUI investigation, arrested you or read the Miranda warnings to you, you have a right to remain silent and not answer questions. Keep in mind that once the police officer has it in his/her mind that you may be impaired by alcohol or drugs, everything he/she does from that point on is to gather evidence to be used against you in a DUI case.

After a traffic stop where the police officer suspects you of driving under the influence of alcohol, he/she will ask you questions about where you have been, whether you have been drinking, and if so, how much. These questions are obviously designed to collect evidence to arrest you and charge you with DUI. The officer will also ask you to submit to field sobriety tests or exams. These are very difficult balancing exercises that are hard to perform under any circumstances. More importantly, whether or not you pass or fail is a completely subjective decision made by a police officer who obviously already thinks you are impaired or he/she would not have asked you to do them in the first place.

As criminal defense lawyers in the Jacksonville, Florida area who handle a lot of DUI cases, we read a lot of police reports where a person has made statements that help the police and the state prosecute them for DUI. When the U.S. Constitution affords you the right to remain silent and not incriminate yourself, consider why you would want to make a statement to the police in such a situation that is only going to be used against you in a criminal case.

What happens in a criminal case in Florida when a witness, who may have information that incriminates him/herself, is called to testify at a deposition? Most people are familiar with the Fifth Amendment of the U.S. Constitution which says that a person has a right not to incriminate him/herself. This means that a person can not be forced to make statements to the police or prosecutors that could be used against him/her in a criminal case. But there are times in Florida where the state will subpoena a person for a sworn statement or deposition and ask that person for information that could implicate the person in a crime. Does that person have to answer those questions?

The person may have to answer questions and provide information that would be incriminating, but the information cannot be used against the person in a criminal case. A person who is subpoenaed to testify will be given what is called use and derivative use immunity. This means that the state cannot use the statements provided by the witness or any information derived by those statements against the witness in a criminal case. For instance, suppose the witness said that he drove the defendant to a particular hotel after the robbery and hid the gun in room 100. The state could not use that statement against the witness in a prosecution against the witness as an accessory to the robbery crime. Additionally, the state could not go to the hotel and get the registration form signed by the witness for room 100 and use that against the witness if the only way they learned of this information was through the witness's statement. However, if the state was aware of the information about the hotel from another independent source, they could still use that information against the witness based on that other source.

Most people understand that when they have a private conversations with their lawyers about an existing or potential case, whether criminal or civil, those conversations are supposed to remain confidential. This is referred to as the attorney-client privilege, and it means that no one can compel the attorney or the client to disclose what was discussed between them.

However, in the context of a pending case or investigation involving a corporation and its executives or employees, it may not be clear who exactly the attorney represents. For instance, in a recent federal criminal case, the government was investigating a company and its chief financial officer for conspiracy and securities fraud. The company hired a lawyer to assist with an internal investigation and an audit. That lawyer interviewed the CFO who gave that lawyer important information critical to his own case. The CFO believed that the lawyer was his lawyer and all communication between the two was confidential and private. This particular attorney had even represented the CFO in the past in civil cases, which further led the CFO to believe that he was having confidential discussions with his personal lawyer.

Subsequent to those conversations with the CFO, the lawyer disclosed information from those conversations to other lawyers and accountants assisting in the internal investigation of the company and ultimately to the government. The government then intended to use that information against the CFO.

The CFO then hired his own criminal defense attorney. He argued that none of the information obtained by the government by the initial lawyer should be used against the CFO. To do so would violate the attorney-client privilege. However, the government argued that the CFO should have known that the information he provided to the lawyer would be shared with the accountants, auditors and others as part of the company's internal investigation. As a result, the CFO should have known that the lawyer was not his personal lawyer but a lawyer whose client was the company. And if the attorney's client was the company rather than the CFO personally, information provided by the CFO could be shared with others related to the company.

This issue has not been finally decided, and it may depend on what exactly the attorney told the CFO prior to their discussions regarding exactly whom the lawyer represented and what would be done with the information. In any case, where a company and an executive or employee of the company are facing criminal charges or an investigation, it is important to know the exact nature of the relationship with the attorney and what he/she intends to do with the information before making any statements. If the attorney-client relationship is later determined not to exist because the client is the company and not the individual, then any statements made to the attorney may be used against the individual.

We see countless criminal cases in the Jacksonville, Florida area where regular people or suspects talk and answer questions when police come to investigate a crime, and the result is the person talks him/herself into getting arrested and/or gives the police officer the evidence he/she needs (and did not have) to make a strong criminal case against the person.

The Fifth Amendment to the U.S. Constitution guarantees you the right to remain silent and not answer a question from a police officer when that answer may incriminate you. For example, consider a situation where a vehicle with four occupants gets pulled over, and the officer finds a bag of marijuana or cocaine in the center console area. The bag of illegal drugs is within arm's reach of each of the four occupants. The police officer takes all four people out of the car and asks questions to find to whom the drugs belong. What should the four occupants do?

The police officer wants at least one person to take ownership of the drugs so a valid arrest can be made. Keep in mind that the police officer is going to say various things, from promises to threats, to make the people think they should, or have to, answer his/her questions. The police officer may say that he'll arrest everyone and take them all to jail unless someone claims the drugs. The police officer may promise that the person who claims responsibility will get a better deal or a slap on the wrist if he/she claims the drugs. The police officer may say anything, but his/her purpose is clearly to get a statement from someone so he/she can make an arrest and make it stick.

The four occupants do not have to say anything. The four occupants should not say anything. The officer may then get upset and arrest everyone. However, in this scenario, which is very common, this case will either get dropped by the prosecutor or can be beaten at trial because without an incriminating statement, there may be no way for the state to prove who in the vehicle owned or possessed the drugs. If the state cannot prove that, they cannot prove their case.

This happens often in the context of a DUI (driving under the influence of alcohol or drugs) case as well. If a police officer pulls you over and suspects that you have been drinking, he/she will likely ask you if you have been drinking, how much and where you have been. Why would you answer those questions if the answers will only serve to incriminate you? You can politely request to speak to a criminal defense lawyer and leave it at that.

The right to remain silent is one of the most important rights provided in the Constitution. Unfortunately, so many people being investigated for drug crimes and other criminal activity fail to exercise this right. When the police officer starts asking questions and makes threats or promises, although the police officer clearly just wants to make an arrest, for some reason people start talking and bury themselves. The Fifth Amendment guarantees that you do not have to do that.

If you have any questions about a police investigation into criminal activity and what your rights are, feel free to contact us for a free consultation. Even if you are the middle of a police encounter, you have a right to get on your cell phone or home phone and contact an attorney and ask questions, which may be a good option for you rather than say something that will be used against you in court at a later date.

Criminal defense lawyers do not often assert the entrapment defense in criminal cases, particularly drug cases, because it does not apply in most cases. However, there are cases where the entrapment defense is a valid defense when a person is charged with a drug crime in Florida.

For instance, in a recent case, a defendant was charged with trafficking in cocaine after he set up a drug deal between a cocaine supplier and a buyer who turned out to be a confidential informant (CI) for the police. His criminal defense lawyer argued that the defendant was entrapped into committing the trafficking crime. The defendant testified that he was addicted to cocaine and also used other illegal drugs, such as marijuana and heroin. He could not afford his drug habit and needed a way to make some money. The CI approached him and asked him if he could arrange a deal for a large amount of cocaine. Several times, the defendant told the CI that he was not interested. However, the CI persisted and finally offered the defendant some of the cocaine if he would arrange the drug deal. The defendant agreed and was arrested by police for trafficking in cocaine right before the deal was done.

The standard for entrapment in Florida is as follows: it is not entrapment when the police intend to disrupt ongoing criminal activity and use reasonable means to do so. Alternatively, if the police are going out of their way to take advantage of someone who is not otherwise involved in drug trafficking or a related drug crime, and they use unreasonable methods to do it, the defense of entrapment can work. However, if the state can show that the defendant is predisposed to commit the drug crime, i.e. he/she has sold or been involved with illegal drugs before or was familiar with how drug deals work and the terminology, the entrapment defense is problematic, unless the defendant can show that the police's conduct was particularly outrageous.

Criminal defense lawyers do not often use the entrapment defense in drug cases. However, the law does allow it, and there are circumstances where it may be applicable. If it is successful, the drug charges will be dismissed.

It is not uncommon for a person to be arrested for driving under the influence of alcohol or drugs (also commonly referred to as DUI, DWI or drunk driving) and driving with a suspended or revoked license, or DWLS, in Florida. Under those circumstances the prosecutor will file at least two charges in the information, one for DUI and the other for DWLS. If the defendant decides to take the case to trial, those two charges should be separated, or severed. In other words, the jury that hears the evidence related to the DUI charge should not hear the evidence and decide the case related to the driving with a suspended license charge. A different jury at a new trial should decide the second charge.

The reason these charges should be severed is because the evidence pertaining the driver's alleged suspended license, such as his driving history, is unrelated to the evidence related to the DUI, and vice versa. This relates to the idea that unduly prejudicial evidence should not be admissible in court. It is prejudicial for the state to present evidence of the defendant's driving history and suspended license in his/her DUI trial because that evidence has nothing to do with the DUI and only paints the defendant in a bad light with irrelevant evidence. Likewise, when a jury is deciding whether the defendant was driving with a suspended license, it is prejudicial for the state to present evidence of the defendant's intoxication because that is irrelevant to the DWLS charge.

Where a defendant has been charged with driving under the influence of alcohol or drugs and driving with a suspended or revoked license in the same case, it is important for the criminal defense lawyer to file a motion to sever those charges so the state is not permitted to admit unnecessary and prejudicial evidence against the defendant at the trial. The jury should only hear the specific evidence relevant to the particular charge.

As a criminal defense law firm practicing in the Jacksonville, Florida area, we get this question quite often. Sometimes, a person pleads guilty or no contest to a crime in Jacksonville the morning after the arrest without really knowing the consequences of the guilty or no contest plea, without really understanding the nature of the charges and evidence against him/her and without any meaningful discussion with a criminal defense attorney. Later, they may contact us and ask if there is a way to withdraw or reverse the guilty or no contest plea to the criminal charge.

There often is a way for a person who plead guilty or no contest to reverse or withdraw the plea. This is especially true for those people who plead guilty or no contest at their first appearance hearing the next day. In Jacksonville, Florida, the first appearance hearing takes place at J1, which is a courtroom attached to the jail. When a person gets arrested in Jacksonville, Florida, he/she will go in front of the judge the next morning or afternoon in J1. Many people plead guilty or no contest to their criminal charges in J1 on their own and later want to reconsider that decision or at least confer with a criminal defense attorney to find out if the guilty or no contest plea was the right thing to do.

In order for a plea of guilty or no contest to a charge to be legal and valid, the defendant must enter the plea voluntarily, knowingly and intelligently. At the first appearance hearing the next day, the defendant does not really have an opportunity to thoroughly go over the case, the charges, the evidence and the ramifications of the sentence with a criminal defense lawyer. The judge is supposed to ask each defendant who is pleading guilty about his/her age, education, mental and physical conditions and prior experience with the criminal justice systems. The purpose of these questions is to get some assurance that the defendant who is pleading guilty without having spoken to a criminal defense lawyer knows what he/she is doing and what effects that decision may have. If those questions are not asked of the defendant when he/she pleads guilty or no contest to a criminal charge, the plea may not be valid. In that case, the defendant may be able to file a motion to withdraw the plea and have a chance to fight the charges.

If you have been arrested for a crime in the Jacksonville, Florida area, entered a plea of guilty or no contest and think you entered the plea without all of the necessary information and advice of a criminal defense attorney, feel free to contact us for a free consultation and we can discuss your case and whether you are able to withdraw your plea and fight the charges.