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In Florida, most people are arrested for DUI (driving under the influence of alcohol or drugs) after a police officer observes them driving a vehicle while allegedly impaired. While the DUI crime is called “driving” under the influence, a person in Florida does not actually have to be driving to be arrested and convicted of a DUI charge. There are two ways to be guilty of DUI. Driving, of course, is one way. The statue provides for another method. If a person is in actual, physical control of the vehicle while impaired from alcohol or drugs, that person can be arrested and convicted of DUI even if the police officer, or anyone else, never sees that person driving. So, what does actual, physical control of a vehicle mean in Florida? There have been numerous cases that have discussed situations where a DUI suspect was found in or near his car and whether that constituted actual, physical control sufficient for a DUI conviction. Some of the factors include how close the suspect is to the driver’s seat, where the keys are located and whether the vehicle is operable.

In a recent DUI case south of Jacksonville, Florida, the suspect was involved in a minor auto accident, and the police were called. When the police officer arrived, he saw the suspect outside the vehicle leaning against the car on the driver’s side and another person was leaning against the passenger side of the vehicle. The keys were in the ignition.  The officer assumed the suspect on the driver’s side, who was the owner of the vehicle, was the driver of the vehicle and arrested her for DUI after determining that he was impaired from alcohol. At the trial, the criminal defense lawyer moved for a judgment of acquittal because there was no evidence that the defendant was driving the vehicle and insufficient evidence that she was in actual, physical control of the vehicle. The Florida law says the suspect must be in or at the vehicle and have the capability to operate the vehicle. The state must also show the keys were either in the ignition or close enough to the defendant to allow her to start the vehicle and drive away.

In this case, the keys were in the ignition and the suspect was close enough to the vehicle to be in actual, physical control. However, the DUI conviction was reversed because both the defendant and the person leaning against the passenger side were jointly in control of the vehicle, and both of them had the same capability to operate the vehicle. In a case where more than one person has actual, physical control of the vehicle (i.e. joint occupation or control), the state must provide independent proof to establish the defendant was in constructive possession of the vehicle. The fact that she was the owner of the vehicle and on the driver’s side was not sufficient. Without independent proof that the suspect was driving or had control of the vehicle to the exclusion of the other party, the state could not meet its burden of a conviction for DUI.

 

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Florida, like other states, has a forfeiture law that allows the state to take ownership of people’s property when those people are suspected of committing certain crimes. The forfeiture laws are brutal because the state does not need to prove the suspect committed a crime to take that person’s property. In fact, the state does not even need to make an arrest or file charges, let alone win the criminal case, to take people’s property. Alternatively, the state can proceed to forfeit a person’s property even if the crime committed was minor, and the property has significant value. Additionally, the procedure effectively allows the state to take property and then force the owner of the property to prove the state acted improperly.

In a forfeiture case south of Jacksonville, Florida, the defendant was charged and convicted of two counts of registering a vehicle under a false name. This is a minor misdemeanor charge that almost never comes with jail time. However, because the police really liked the car she registered (a Cadillac Escalade), the state attempted to forfeit the vehicle. That is how forfeiture in Florida often works. The issue really is not enforcing the law or protecting the community or punishment so much as it is a person has property the state wants so the state is going to try to take it.

In this case, the defendant used a false name to buy and register the vehicle. The state took the vehicle and said it was contraband that could be forfeited under the Florida Contraband Forfeiture Act. The court ruled that the state could take and forfeit her vehicle without the case ever going to a jury.

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In Florida and other states, a person has a right to privacy in his home, automobile, personal effects and other property. This means that the police cannot just search a person or his/her property based on suspicion or because they feel like it. However, the rules are different for people on probation.  If a person is arrested and charged with a crime, pleads guilty or is convicted at trial and is then put on probation, the state has much greater access to that person and his/her property than a regular person.

In a case just south of Jacksonville, Florida, the defendant was on probation for attempted sexual battery on a child. He was put on probation after he served time in prison. While on probation, he was required to fulfill certain conditions, and he had a probation officer who supervised him. While on probation, his probation officer came into his home and downloaded his cell phone data without a search warrant or consent.

Obviously, a police officer or anyone from the state cannot enter a person’s home and/or search his cell phone without a search warrant or specific consent under normal circumstances. However, this involved a person on probation for a serious crime.  Upon searching his phone, the probation officer found information that indicated the defendant had violated his probation. A warrant was issued for the violation of probation.

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In Florida, the state constitution provides that medical records are private and protected from discovery by the state. In order to obtain a defendant’s medical records, the state must prove that the records are relevant to the case. The state is not permitted to subpoena a defendant’s medical records at its own discretion.

In a case near Jacksonville, Florida, there was a motor vehicle crash, and the driver of the vehicle that caused the crash fled the scene. The police developed evidence that the defendant was the driver who caused the crash and fled the scene. They determined he had a suspended license. He was charged with felonies for hit and run and driving with a suspended license and causing a serious injury. The state learned that the defendant went to the hospital after the crash. The state tried to get the defendant’s medical records from the hospital to determine if he was impaired at the time of the crash. Toxicology records would likely indicate whether the defendant had alcohol or drugs in his system.

The criminal defense lawyer objected to the request for the defendant’s medical records arguing that medical records are private under the Florida constitution, and they were irrelevant to the pending charges as the defendant was not charged with DUI (driving under the influence of alcohol or drugs). Initially, the court ruled that the state could get the defendant’s medical records because they could be used to impeach the defendant. The criminal defense attorney appealed and won. The appellate court ruled that to overcome the right to privacy, the state must prove the medical records are relevant to an ongoing investigation or case. The state must show a nexus between the records and a material issue in the case. Because the state did not have evidence of a DUI, and the defendant was not charged with DUI, his medical records were not relevant to the case and could not be subpoenaed by the state.

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In Florida, it is pretty clear that the sale of an illegal drug is a felony crime. Selling some drugs is more serious than others. While police and prosecutors continue to waste time and taxpayer money arresting and charging people with selling marijuana, at least that crime is not considered very serious, depending on the quantity. However, selling heroin or fentanyl is considered a serious crime which often carries serious jail or prison time. The more that is sold, the more serious the crime, generally.

Normally, if a person sells one drug amount to a person one time, that is a single crime that carries a single sentence. Multiple sales, even to the same person, can each be considered separate crimes if they are separated by a sufficient time period.  Can a single sale of one substance to a single person be considered two crimes?

In a recent case south of Jacksonville, Florida, the defendant sold a single drug quantity he believed to be heroin to an undercover police officer. He was arrested on one count of sale of heroin, which is a second degree felony that carries a maximum sentence of 15 yeas in prison. In drug cases where a defendant requests a lab report or where the case may go to trial, the state will send the drug sample to the crime lab to be tested for composition and weight. In this case, the lab report showed that the substance contained heroin and fentanyl. As a result, the state charged the defendant with two separate counts- sale of heroin and sale of fentanyl although the defendant just sold one substance one time. Both charges are second degree felonies and fall under the same Florida statute.

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In Florida, many criminal arrests begin as traffic stops.  Most DUI’s begin this way along with other, more serious charges. As a result, a criminal defense lawyer should always look at the initial stop and how it occurred to see if there might be a search and seizure issue that could be the basis of a motion to suppress.  Police can normally stop a driver for violating a traffic law such as speeding or running a red light. However, it is not uncommon for the police to stop a driver for more vague traffic infractions like the failure to maintain the lane, particularly in driving under the influence of alcohol or drugs (DUI) cases.

In a recent case near Jacksonville, Florida, the defendant was pulled over for failure to maintain her lane on two occasions. The police officer ultimately searched the vehicle and found marijuana inside. The defendant was arrested for possession of marijuana. The criminal defense attorney filed a motion to suppress the evidence of the marijuana based on the argument that the police officer did not have a legal basis to pull the defendant over.

The court agreed with the criminal defense lawyer. At the motion to suppress hearing, the police officer testified that the defendant did not impact any other vehicles, pedestrians or anyone else when she veered out of her lane two times. The relevant Florida statute says that when a roadway has been divided into two or more marked lanes, the driver should drive entirely within a single lane as nearly as practicable and shall not move from that lane unless it is clear such movement can be made safely. The courts in Florida do not find that a driver has violated this statute unless there was evidence that the driver or any other person was endangered. Therefore, if a driver crosses over a solid white or yellow line periodically but no other driver or person was impacted, it would not likely be a violation that would warrant a traffic stop. The police must establish some sort of safety concern caused by the driver crossing the solid line.

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In Florida, the criminal laws are created by the state legislature. They are laws that prohibit certain conduct, and a violation of those laws can result in an arrest and jail time. Police are allowed to search a person after an arrest for a state crime. If the police find other or additional evidence of criminal activity during that search incident to an arrest, they can likely use that evidence against the defendant to support the arrest and/or add additional criminal charges. Cities in Florida can also enact laws that address certain conduct.  These laws can also come with penalties that include relatively short periods of time in jail.  For instance, fighting and loitering  are municipal ordinances in Jacksonville, and a violation of either ordinance can result in some jail time.

However, the same search and seizure rules do not apply to municipal ordinances as for state and federal crimes. In a recent case south of Jacksonville, Florida, police found the suspect in a city park after it closed at 11:00 p.m. The police officer arrested the suspect for being in the park after hours. This was not a state crime but a municipal ordinance violation. After the arrest, as they always do, the police officer searched the suspect. The police officer found a concealed handgun, cocaine and marijuana. The suspect was then charged with felony and misdemeanor crimes based on the evidence found after the municipal ordinance arrest.

The criminal defense lawyer filed a motion to suppress all of the evidence based on the search incident to a municipal ordinance arrest. The court noted that the police are not allowed to go through a full custodial arrest and search for a violation of a municipal ordinance, like they can for actual criminal law violations. They can “arrest” or detain a suspect for a brief period of time in order to write a ticket or issue a notice to appear in court at a later date. However, the suspect is not taken to jail. As a result, the police are not permitted to conduct a search incident to an arrest in these cases. Therefore, the search of the defendant was unreasonable, and the charges related to the gun, marijuana and cocaine were thrown out.

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In Florida and elsewhere, people have a constitutional right to privacy, and this protection is greatest in one’s home. As a result, the police generally cannot search a person’s residence without consent from someone with authorization or a valid search warrant. If the police do get a valid search warrant signed by a judge, that does not give them free rein to search anything and everything belonging to the suspect. The search is limited to what is reasonable and the area identified in the search warrant.

In a recent drug possession case south of Jacksonville, Florida, the police obtained evidence that the defendant had illegal drugs in his home. The police went to a judge and obtained a search warrant for the residence. The address of the residence was listed on the search warrant, and it was described as a single story residence. The search warrant authorized the police to search the residence, the curtilage of the residence (the area surrounding the home), any vehicles on the premises and any people at the premises. That is fairly common for search warrants. When the police arrived to the property, the saw an RV on the property and searched it. They found illegal drugs inside.

The criminal defense lawyer filed a motion to suppress the evidence found in the RV arguing that police did not have authority to search the RV based on a search warrant of the permanent residence that did not mention the RV. The state pointed out that a search warrant of a residence and its curtilage often allows police to search enclosed areas around the house, such as a shed or a vehicle on the property. However, search warrants are limited to the place described in the search warrant. Police officers are not authorized to search separate dwelling units on the property that are not listed in the search warrant. So, the question becomes whether the RV is apparently being used as a separate dwelling. The court looked at where it was located, who owned it, whether it was affixed to the ground, whether there was a utility hookup, whether it was occupied and other factors. If it was reasonable to believe the RV was being used as a separate residence, the police could not search it since it was not mentioned in the search warrant. However, if it appeared reasonable to believe the RV was being used as a vehicle and was on the property mentioned in the search warrant, then the police probably would have been authorized to search it. In this case, the evidence indicated the RV was a residence so the search was unlawful, and the evidence found in the RV was suppressed.

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With some exceptions, police officers are generally only allowed to investigate crimes and make arrests within their jurisdictions. A Jacksonville Sheriff’s Office employee isn’t normally allowed to drive into St. John’s County and pull people over who he suspects of driving under the influence of alcohol or drugs. Additionally, off-duty police officers are not normally allowed to investigate cases or make arrests.

However, in a case south of Jacksonville, Florida, a police officer ended his shift and was driving to his house, which was in a different county. Another vehicle was swerving and almost hit the officer forcing him to leave the roadway. The officer turned around and started following the suspect. The police officer observed him swerving all over the road. The police officer pulled the suspect over to investigate for DUI. He called a local police officer who took over the investigation and did ultimately arrest the suspect for DUI.

The criminal defense lawyer filed a motion to suppress the evidence of DUI arguing that the initial police officer illegally pulled the defendant over since he was off-duty and out of his jurisdiction. The state argued that the police officer made a lawful citizen’s arrest. In other words, the state treated the case as if the police officer was a private citizen. Citizens are allowed to make arrests in Florida if they witness a person commit a felony crime or the crime of breach of the peace.

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In Florida, the police usually attempt to substantial a DUI (driving under the influence of alcohol or drugs) arrest by asking the suspect to take a breathalyzer test. This is a test normally administered at the jail only after the suspect has been arrested. The purpose of the test is never to determine if the suspect is impaired; it is always to secure more evidence against the suspect. In other words, if a DUI suspect agrees to submit to the breathalyzer test at the jail and blows under the Florida legal limit of 0.08, the police will not let that suspect go. On the other hand, if the suspect blows above 0.08, the state will always attempt to use that evidence against the suspect in court.

The police have other tests to try to create evidence. Sometimes, under certain circumstances, the police can take blood that is later tested for alcohol or drug content. There are specific rules that determine when a blood test is appropriate. The police can also request a urine test in certain situations. In a case just south of Jacksonville, Florida, after the suspect was arrested for DUI, the police officer asked if the suspect would submit to a breath or urine test. The suspect agreed to give the urine sample. The urine sample was given in a fairly private setting and under the supervision of a female police officer.

The criminal defense lawyer filed a motion to suppress the urine test results arguing that the police needed a search warrant to obtain a urine sample for a standard DUI case. The criminal defense attorney argued that giving a urine sample is an unnecessary invasion of a person’s privacy. The court noted that, unlike blood samples, which require a needle and puncture of the skin, giving a urine sample is a fairly non-intrusive process. On the other hand, a urine sample can be tested for a wide range of substances while breath can only be used to test alcohol content. The court agreed that giving a urine sample implicates a person’s right to privacy, however the state’s interest in obtaining evidence, whether that involved alcohol consumption or the use of drugs, outweighed those privacy interests. The court held that the police could request the urine sample without a search warrant since they had probable cause to arrest the suspect for DUI and allowed the state to use the urine test results against the defendant in court.