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In Florida, where marijuana remains illegal for now, the odor of marijuana is a fairly common basis that police use to further investigate or search a suspect.  It is also a basis that is often used to conduct a DUI investigation and make DUI arrests.  The odor of marijuana obviously gives police officers reason to believe that marijuana is present.  Under some circumstances, the police can use that information to search items or people.  However, it is not a blanket excuse to conduct a search or “pat down” in every situation.

In a possession of marijuana case near Jacksonville, Florida, the police received a tip that certain individuals were involved in drug activity at a warehouse.  The police responded and saw several individuals at the warehouse.  The police officer indicated he smelled a strong odor of marijuana coming from the group.  However, the police officer did not see any marijuana and did not see anyone smoking anything.  Based on the odor of marijuana, the police officer asked one of the individuals to come forward.  The suspect approached the police officer.  This led to a pat down of the suspect and ultimately a search during which the police officer found marijuana.  The suspect was arrested for possession of marijuana.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana arguing that the police officer illegally searched the defendant.  The appellate court agreed.  A general odor of marijuana coming from a group of people was not sufficient evidence to pat down one of the individuals or search him.  The police officer could have investigated with questions or requests for consent to search but was not yet legally authorized to pat down or search anyone without more specific evidence as to who was actually smoking the marijuana or had marijuana in his possession, if anyone.  Because the police officer went straight to a pat down and then a search without trying to get more specific evidence to identify the source of the odor, the marijuana evidence was suppressed and the possession of marijuana charge was later dismissed.

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As most people know, when a person is arrested or otherwise taken into custody, they have certain rights about which the police must inform that suspect.  That person has a right to remain silent and consult a lawyer without ever speaking to the police.  People always have this right, but it is only once they are in some sort of custody and under interrogation when the police must inform the suspect of those rights before moving forward with an interrogation.

Few things damage a suspect’s criminal case more than speaking to police, particularly in the early stages of the case when the suspect does not know all of the details and the police have much more information about the case.  It is almost always more beneficial for a suspect to remain silent at this point.

When the police want to get a statement from a suspect, it is normally because the police feel like they can make their case against the suspect stronger with the statements the suspect makes.  In almost every situation, the police are correct.  So, when deciding whether to speak to the police at an early stage with limited information, it is important to understand the police are seeking a statement for a reason and that reason is not favorable to the suspect.

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While it is one of the more misunderstood amendments, just about everyone has some familiarity with the First Amendment.  The First Amendment covers a few general areas, but most people recognize it as giving people a right to free speech.  One area where it is commonly misunderstood is when speech has negative consequences in the private sector, i.e. a person loses a job or a company gets boycotted based on speech.  The First Amendment does not apply in these contexts.  Private companies and private citizens can punish people or take action based on someone else’s speech.  The First Amendment does apply to the government.  In other words, the government, or any subdivision, department or employee thereof, is restricted in actions it can take based on the speech of a person.  As a general matter, the police cannot arrest a person based on speech.  The government cannot generally make laws prohibiting speech.  Of course, there are exceptions.  Some speech is not protected.  Specific threats of violence or plans to commit crimes are not necessarily protected under the First Amendment, and the government can take action in certain of those situations.

Another area where the First Amendment may have limitations is in regard to criminal cases.  The police, the prosecutor, the other lawyers, the judge and other parties involved in a criminal trial do not have free reign to say anything publicly about a pending criminal case, particularly a criminal case that is in the news.  Like every other right, the First Amendment right to free speech can be limited if it conflicts with another Constitutional right.  In the case of a criminal trial, that conflicting right may be the Sixth Amendment right to a fair trial and an impartial jury.  If comments by the police or the prosecution might improperly persuade the jury, or a potential jury, the judge might issue what is called a gag order.  Of course, this goes both ways.  The defendant has a right to a fair trial and an impartial jury, but the defense attorney cannot make statements outside of court that might improperly persuade the potential jury towards his/her side either.

A gag order is an order from the judge preventing the attorneys and perhaps others involved in a case from making statements outside of court about the case.  A gag order will normally prevent the affected parties from talking about the facts of the case, the various theories, the legal issues, sentencing issues and other matters that might influence jurors.  Gag orders are rare because people generally have a right to talk about whatever they want.  But, if one side can show that statements from the other side are likely to impact the right to a fair trial, the judge may issue an order limiting statements.  If the judge does so, that order needs to be as specific and limited as possible so it is only designed to restrict statements and topics that are likely to affect a fair trial and influence a jury.

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More and more states are legalizing marijuana for medicinal purposes.  Of course, some states are also legalizing marijuana for recreational purposes.  It seems likely that marijuana will eventually become legal recreationally and medicinally everywhere, but it is going to be a long process.  In the meantime, people with medical problems can get help from marijuana only in the states that allow it.  Likewise, those people can only get a prescription or medical authorization for certain medical conditions.  In other words, where medical marijuana is legal, it is not just a matter of going to any doctor and asking for a prescription.  For instance, in Florida, a doctor has to successfully complete the required course and examination to be allowed to recommend marijuana to patients.  Additionally, only certain medical conditions legally qualify as medical conditions for which medical marijuana can be used as a treatment.

In Florida, there are eleven qualifying conditions for which medical marijuana can be recommended by a doctor.  These are all very serious medical conditions.  There is also a catchall category if a person has a medical condition that is serious and the doctor thinks the use of marijuana will do more good than harm.  This is somewhat of a ridiculous standard since marijuana does little, if any, harm while there are numerous medical conditions for which it can help.  But, we are still a long way from even a basic, unbiased collective understanding of marijuana so laws are written this way for now.

States with medical marijuana laws have different rules, but they are generally similar in that there are restrictions covering who can recommend marijuana and for what it can be recommended.  Fortunately, PTSD (post-traumatic stress disorder) is one of the medical conditions for which people can use medical marijuana in Florida.  However, it is not properly recognized as a qualifying condition in all medical marijuana states.

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Most DUI cases result from a police officer alleging that he/she observed the driver commit some traffic violation after which a traffic stop is conducted and a DUI investigation follows.  If the police officer believes the driver is impaired from alcohol, the officer will arrest the driver and take him/her to jail.  Only after the driver is booked into the jail is he/she asked to blow in the breathalyzer to try to determine his/her blood alcohol content.

Therefore, in most DUI cases, the police request that the driver submits to a breath test to try to find out the blood alcohol content.  There are, however, other tests.  Drawing blood and sending it to the crime lab is another way to try and determine a DUI suspect’s blood alcohol content.  However, the police are not always allowed to request a blood to test alcohol content since that test is obviously more invasive than a breathalyzer test.  A DUI suspect can always ask the police officer for an independent blood alcohol test, and the police have to accommodate the DUI suspect if it can reasonably be done.  But, the police can only seek a blood test in certain circumstances.

One situation where a blood test is fairly common is when a DUI case involves a serious accident.  After a serious accident, if the police officer believes a driver is drunk driving or impaired from alcohol, the police officer will want to try to find out the driver’s blood alcohol content.  It may not be feasible to explain a person’s rights and administer the breathalyzer in some of these cases.  For instance, if the driver is seriously injured and has to go to the hospital, it would not be possible to take the driver to jail and perform the breathalyzer test.  In these cases, the police officer can request a blood draw to send the sample to the lab for testing later.

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When a person is arrested for a new criminal charge in Florida, that person is entitled to a hearing to have a reasonable bond set for the case.  Not everyone will get a bond.  For instance, some charges are so serious that a judge might set no bond for a person.  A person’s criminal history, ties to the community and other factors help determine what a reasonable bond should be for each case.  Once a bond is set, the person can either pay the full bond amount to the jail or go to a bonding company and pay a fee (usually 10% of the bond amount) to be released from jail while the case is pending.  As long as the person does not flee the jurisdiction and attends the required court dates, the person who put up the bond will get the money back at the end of the case (although sometimes the clerk will take out fines and costs if they are ordered as part of a sentence).

The rules are different for violation of probation cases.  People with new cases have certain due process rights that allow those defendants to take positions and have hearings on issues related to probable cause for arrests and bonds.  However, people who are on probation at the time of a new arrest do not have all of the same protections.  For instance, if a person is on probation and is arrested for a new case, that person’s bond may be revoked based solely on that new arrest.  The new arrest must be a “qualifying offense” under the Florida statute (generally any serious felony offense), but only the arrest is necessary for a revocation of the bond.  Of course, an arrest is not evidence of guilt and everyone is innocent until proven guilty at that point.  However, because people on probation in Florida do not have the same rights as others, an arrest for many felony crimes is all it takes for a prosecutor to file a motion to revoke bond and a judge to grant it.

Practically, it is a very bad idea to get arrested while on probation. Some judges will revoke a person’s bond based on just about any new arrest while on probation.  Additionally, not only will the person have a new case to deal with, but will have a separate probation violation case.  The new case has a higher standard of proof the state must meet- beyond a reasonable doubt.  However, the probation violation case has a much lower standard- preponderance of the evidence, which basically means more likely than not.  Prosecutors know that a new case may be weak from an evidentiary standpoint, but if the person is on probation, the state is much more likely to win at a probation violation hearing in front of a judge rather than a trial in front of a jury.  This gives the state a lot of leverage, even with weaker new cases.

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In Florida, many criminal cases involving drugs and guns result from traffic stops.  A police officer will conduct a traffic stop and become suspicious or allegedly discover evidence of illegal activity and search the vehicle.  A search of the vehicle can be based on consent, which the driver or occupant never has to give.  Or, sometimes the police officer will call a drug K-9 to the scene that alerts to the odor of narcotics.  These searches can be questionable if the police officer keeps the vehicle and driver at the traffic stop for an unreasonable period of time while waiting for the drug dog.  There are other methods the police use to search vehicles after a traffic stop, but requesting consent is a common one.

Not every traffic stop involves a vehicle.  People in Florida need to be aware that the traffic laws apply to people on bicycles as well.  The police can stop a bicycle for running a stop sign or a red light just like a vehicle.  However, the initial stop of the vehicle, or bicycle, must be legally valid in order for any search or arrest thereafter to be valid.

In a recent possession of crack cocaine case south of Jacksonville, Florida, the suspect was riding his bike against traffic.  Florida law says a bike must ride with traffic, just like a car must.  Of course, people ride their bikes against traffic all of the time and the police ignore it, but in this case, they stopped the rider.  While issuing the rider a citation, the police officer asked him if he had any drugs or guns in his possession.  The rider admitted to having crack cocaine.  The police officer searched him, found the cocaine and arrested him for possession of crack cocaine.

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In Florida, the DUI (driving under the influence of alcohol or drugs) laws come with minimum mandatory penalties for a conviction.  These penalties increase for each successive DUI a person gets.  One benefit of a criminal defense lawyer getting the state to amend a DUI charge to a reckless driving charge is the reckless driving charge does not count as a DUI conviction that increases the minimum penalties if the person gets one or more additional DUI convictions.

One of the minimum penalties that comes with a DUI conviction is a suspension of the person’s driver’s license.  The suspension can be as short as six months for a first DUI conviction or as long as ten years for a third DUI conviction that is within ten years of the prior conviction.  The DMV does allow people to get hardship licenses which permit people to drive to work, school and other necessities, but there may be a period of time before a person can apply for a hardship license depending on the case.

If a person gets a fourth DUI conviction in Florida, that person’s driving privileges will likely be revoked forever.  That is mandated by statute in Florida.  However, not all convictions count.  In a recent DUI case from Jacksonville, Florida, the DMV attempted to permanently revoke a person’s driving privileges based on four prior DUI convictions.  However, it was noted that one of prior DUI convictions was a violation of a city ordinance, rather than a Florida state statute.  The criminal defense attorney appealed the permanent suspension.  The court agreed and held that a DUI conviction that is a violation of a city or municipal ordinance does not count as one of the four prior DUI’s that can result in a permanent driver’s license suspension.  The prior convictions must be violations of state DUI laws.  The conviction at issue was an old DUI conviction that related to an old city ordinance.  However, the DMV can go back as far as they want to count prior DUI convictions.  If a conviction is 40 years old, it can count, as long as it is a state DUI violation.

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Cyberstalking-Blog
A 20 year old student at the University of North Florida was recently the victim of a man who created fake social media accounts using her name and likeness.  Her Facebook photos were used to create fake social media accounts on Instagram and Tinder.  The fake accounts requested money be sent and stated that the victim was “sexually ready.”  So, was this a crime?  And if so, what crime was it?

The young man that created these fake social media accounts was arrested and charged with Cyberstalking.  Cyberstalking is defined in Florida Statute Section 784.048(1)(d) and requires:

  1. engaging in a course of conduct to communicate, or to cause to be communicated, words, images, or language,
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We at Shorstein, Lasnetski & Gihon do not handle much in the way of family law matters, but we came across a case that illustrates a possible connection between an order that is common in divorce cases and a potential criminal violation in Florida courts.  In divorce cases where a minor child is involved, custodial rights will have to be worked out between the parties or determined by the judge.  Obviously, custody issues regarding one or more children can be very contentious in divorce cases, along with other issues such as alimony and division of property.  One or both parties may not be happy with the outcome and how much time he/she gets with the child or children after the divorce is final.

When it comes to family law child custody orders, violating the order can have serious consequences.  In a case just south of Jacksonville, Florida, the parents divorced, and the judge ordered shared custody between the parents.  The father violated the order and took the child away without allowing the mother to have contact with the child for several months.  When the father and child were found, the father was arrested for kidnapping and concealment of a child contrary to a court order.  The concealment charge is the one related to the family court order.  That Florida statute makes it a crime to take a minor outside of the state of Florida or conceal the location of the child in violation of a custody order of which the parent is aware.  A violation of this statute is a third degree felony which is punishable by up to five years in prison.

The criminal defense lawyer moved to dismiss the concealment charge arguing that the custody order did not require the father to disclose the child’s location to the court.  This argument was rejected.  A concealment crime occurs if a parent conceals the child’s location from the court or the other parent who is entitled to custody if it is in violation of an order.