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The United States Supreme Court recently issued an opinion in Denezpi v. United States that further expanded a government’s ability to prosecute individuals multiple times for the same conduct.  

Generally, the Fifth Amendment to the Constitution prohibits the government from retrying an individual who has already been prosecuted for that same conduct.  This is commonly referred to as the “Double Jeopardy” clause, which states, “[n]o person shall…be subject for the same offense to be twice put in jeopardy of life or limb.”  This clause, among other things, prevents the federal government from retrying an individual who has been found not guilty of an offense.  But it’s application is much more far reaching.

In Denezpi v. United States, the Supreme Court considered an interesting issue involving whether the federal government’s prosecution of an offense committed on tribal lands under tribal law precluded its prosecution of a federal offense under federal law under the Double Jeopardy clause. Mr. Denezpi committed a sexual assault on tribal land.  His particular tribe took advantage of a longstanding court system called CFR courts where federal prosecutors exercise federal authority in prosecuting violations of tribal law.  Most Indian tribes have established their own court system, but some tribes, mainly due to a lack of resources, still utilize CFR courts.  

AdobeStock_138088871-300x200It seems like every other day a new trend is emerging on Tik Tok.  Some of them are harmless.  Some of them are not.  One emerging trend is called the “Orbeez Challenge,” where children, mostly teenagers, shoot a polymer bead at unsuspecting, innocent bystanders.  While the shooter may think it’s funny and relatively harmless, the potential consequences may not be.  The beads, shot at high speeds, can cause welts and potentially serious bodily injury.  The potential for serious bodily injury could result in prosecution for Aggravated Assault with a Deadly Weapon, even if the intended target isn’t hit.  Intended victims may have a concealed firearm and may fire back in perceived self defense. Arrest and/or death are very real and very probable outcomes from this challenge.

For example, a ninth grader in North Carolina was hit in the eye by an Orbeez bead.  Six teens were arrested in Utah for walking into a restaurant and shooting at diners.  Three teens were arrested in New York for shooting people through the window of their car in drive-by shootings. In New Smyrna Beach, a seventeen year old was arrested for shooting a campus adviser from his vehicle.  He was charged with battery on a school employee, which is a third degree felony.  These are just some of the examples of teens getting arrested.

Another issue that most kids don’t think about is that they are responsible for the consequences of their actions, even if they didn’t intend the outcome.AdobeStock_112460662-300x199  For example, if a teenager shoots an Orbeez pellet at a person driving a car and that person swerves into a tree and dies, the child could be charged with manslaughter.  The child, and potentially the parents depending on their knowledge of the child’s possession of the Orbeez gun, could also be financially liable for damage or injury caused as the result of an Orbeez attack.

The Supreme Court handed down an important federal criminal law decision on March 7th, 2022 involving the interpretation of the “different occasions” language in the Armed Career Criminal Act. The Armed Career Criminal Act, 18 U.S.C. s.924(e), provides for a 15 year minimum mandatory sentence for any defendant convicted of possession of a firearm by a convicted felon if that defendant has three prior convictions for a violent felony or a serious drug offense, if those three prior offenses were committed on “occasions different from one another.”

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In Wooden v. United States, the Supreme Court addressed what the term “occasions different from one another,” which is often referred to as the “different occasions” provision, means. In 1997, Wooden broke into a storage facility and burglarized ten different storage units.  He was arrested and pled guilty to ten counts of burglary and was sentenced to eight years in prison.  In 2014, Wooden answered the door to his house and a police officer asked to speak to his wife.  The officer asked if he could step inside due to the chill outside and Mr. Wooden agreed.  When the officer entered, he observed firearms in plain sight.  The officer had previous knowledge that Mr. Wooden was a convicted felon so he arrested Mr. Wooden for Possession of a Firearm by a Convicted Felon.  Mr. Wooden was indicted in federal court and convicted.

In his federal case, the federal prosecutors argued that Mr. Wooden was an Armed Career Criminal because each burglary to each storage unit happened successively and therefore were separate occasions.  That is, he completed each burglary before beginning the next burglary of the next unit.  Mr. Wooden’s attorney argued that all ten burglaries occurred on one occasion.  AdobeStock_462414486-300x169The District Court agreed with the government and sentenced Mr. Wooden to 16 years with the 15 year minimum mandatory sentence as an Armed Career Criminal.  Without the Armed Career Criminal status, Mr. Wooden was looking at a maximum sentence of 10 years, with guidelines of around 21 months. Mr. Wooden appealed to the Sixth Circuit Court of Appeals, which agreed with the District Court.  The Supreme Court granted certiorari based on a conflict between various circuits.

It can be overwhelming and troublesome to face your first Driving Under the Influence (“DUI”) conviction in Florida. This is especially true if you are navigating it all on your own. AdobeStock_241104865-300x199

If you are wondering whether you need a lawyer for your first DUI in Jacksonville, an experienced DUI attorney can make all the difference by helping you navigate both the consequences of a first-time DUI and your legal options. 

In Florida, a DUI offense occurs if you are driving, operating, or in control of a vehicle while impaired by alcohol or drugs – including controlled or chemical substances – to the extent that your normal faculties are impaired or you are above a .08 breath alcohol level or blood alcohol level. 

Consequences are Harsh in Jacksonville for DUI ConvictionsAdobeStock_132216077-scaled

News outlets reported that a 26-year-old man from St. Augustine, Florida was tragically killed in a wrong-way car accident in November, 2021. The deadly collision occurred on I-295 at Baymeadows Road. The accident resulted in all lanes being blocked for about five hours. According to state Troopers, a 42-year-old man was driving an SUV around 3:30 am northbound but on the southbound lane. The SUV hit a van head-on. The SUV driver was taken to a nearby hospital with serious injuries while the van’s driver died at the accident scene. While Florida Highway Patrol (FHP) did not receive any calls about the wrong-way crash, they did receive a wrong-way driver advisory about an SUV at 95 and Baymeadows about an hour-and-a-half before the deadly accident.

The SUV’s driver, who is a foreign national from the Dominican Republic and has no U.S. driver’s license or address, was arrested. According to arrest reports, the driver’s blood alcohol content (BAC) was 0.27–three times the legally allowable limit under Florida law. He has been charged with DUI manslaughter and remained hospitalized but on an absentee booking as well as an immigration hold by Immigration & Customs Enforcement (ICE). Arrest records show the man is being held on a $125,000.00 bond. 

New Laws Went Into Effect in Florida: What You Should Know

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After a busy legislative session in Florida, several laws were passed in April 2021 that came into effect once the session was over. While most of the state’s laws went into effect as of July 1, 2021, there are many that did not. There were many types of laws that passed. It is critical to know the laws of the state you reside in–including old laws and newly enacted laws–because they directly affect you. Ignorance of the law is not a defense, and having familiarity with Florida’s laws will help you know what to do in the event of a legal misunderstanding. No matter what type of criminal charge you may be facing, it is important to have proper legal representation. 

Notable New Laws in Florida

The war on drugs has been, and continues to be, one of the most ineffective, expensive and damaging government policies in American history. And as it relates to marijuana, it has not only been a complete waste of money and resources, but it has been an easy, if often illegal, basis for police officers to circumvent 14th Amendment protections against unreasonable searches and seizures allowing police officers to invade privacy and property based on the alleged “odor of marijuana.” So often, police officers claim to smell marijuana, which leads to a prolonged search only to find that there is none. In court, they can simply argue that the defendant must have marijuana prior to the search, and the 14th Amendment protections evaporate. Essentially, the “odor of marijuana” can become a blanket substitute for the 14th Amendment prohibition against unreasonable searches and seizures.

Some progress has been made in this area as states have legalized marijuana recreationally. Minorities are still being arrested for marijuana at much greater rates, so systemic problems remain in force, but legalizing marijuana has provided some protection against these unnecessary and counterproductive arrests and searches.

At the federal level and in states like Florida, cannabis is not fully legal, but hemp is. While the legality of hemp certainly has not received the same kind of praise and publicity that marijuana legalization gets, it has created an interesting dynamic when it comes to police encounters and searches and seizures. Before hemp legalization, police officers would stop a vehicle or approach a person in certain areas, claim to smell marijuana and then assume full legal authorization to search that person’s property. Now, that is not so clear. First, we need to understand what hemp is under the federal and state laws. Hemp is basically the same as the cannabis plant but with less than 0.3% THC content. So, legal hemp looks, smells, feels and tastes just like illegal marijuana. A chemical test to determine the THC content of the substance is required to distinguish legal hemp from illegal marijuana. This is critical because the naked eye, mouth, nose or hand cannot tell the difference between what is legal (hemp) and what is illegal (marijuana). As a result, police officers cannot just search people or vehicles based solely on the “odor of marijuana” because what they have always assumed was marijuana might be hemp, which is now legal. And police cannot search people or property based on the assumption of illegal activity.

That is kind of a convoluted title to the blog post, but essentially the police in this case tried to use the observation of a concealed handgun in the defendant’s vehicle as a legal basis to search the vehicle, find the concealed firearm and then charge the defendant with carrying a concealed firearm. It didn’t work. In Florida, it is a third degree felony to carry a concealed firearm on or about one’s person. That is a pretty general and somewhat vague law, but how this usually plays out is the police stop a vehicle, find some reason to search it and then find a gun that they say was not openly visible. This can also apply to a person carrying a firearm on his person that is not openly displayed and visible. In order for a person to carry a concealed firearm in his vehicle or otherwise, he would need to apply for and receive a concealed firearms permit from the state.

In this case near Jacksonville, Florida, the police officer approached a parked vehicle in a hotel parking lot that had a concealed license plate. When he approached the vehicle, he said he saw the defendant had the butt of a gun sticking out of his waistband. The police officer detained the defendant and then arrested him once it was determined that the defendant did not have a license to carry a concealed firearm. He was charged with carrying a concealed firearm.

The criminal defense lawyer filed a motion to suppress the evidence of the gun arguing that the police officer did not have a legal basis to detain the defendant and then search him. The police officer testified that he saw that the defendant was armed, but he could not articulate any evidence of criminal activity since the officer did not know whether or not the defendant had a concealed firearms permit at the time of the detention. The key here is that the police have to have some specific indication that the defendant is involved in criminal activity in order to detain and search a person. Having a gun is not necessarily a crime. Having a concealed firearm is not a crime unless the person does not have a license for it, which the police officer did not know at the time. Without some reason to believe the defendant was doing something illegal, there was no legal basis for the detention and search. What the police officer could have done, once he saw the concealed firearm, was ask the suspect if he had a license for it. If the defendant chose to answer and said no, then there would have been sufficient evidence to detain him and arrest him. Or, if the defendant had been doing something dangerous with the gun, like waving it at someone or threatening someone, that would have been sufficient to detain the person and possibly arrest him. However, the simple fact of having a gun may not be enough for a detention or arrest in Florida.

In most DUI cases in Florida, all of the evidence the state obtains is from the traffic stop, the DUI investigation at the scene and then the breathalyzer test at the jail if the defendant agrees to submit to the breathalyzer. This normally involves whatever reason the police officer gives for the traffic stop, the police officer’s observations after the stop (which pretty much always include the same observations of odor of alcohol, slurred speech, bloodshot and watery eyes, swaying, etc) and a breathalyzer result if the defendant agrees to the breathalyzer test. However, there are cases where more evidence may be available. For instance, if the defendant goes to the hospital for whatever reason during the course or after the arrest, the police may request a blood draw at the hospital to check for blood alcohol content or the medical personnel may seek their own blood draw for diagnosis and treatment purposes. In the latter case, the state may try to obtain those medical records to find out about blood alcohol content and learn whatever other incriminating information might be in the medical records. And they often obtain those records with a simple subpoena rather than a search warrant that has to be reviewed and signed by a judge.

In a recent case just south of Jacksonville, Florida, the police responded to the scene of a crash. The police investigated the defendant for DUI and reported the standard DUI observations. The defendant then agreed to submit to field sobriety tests, which is normally a terrible idea after a crash. These are very subjective tests graded by a person who likely already has decided the defendant is drunk. Additionally, these tests are even more difficult after a person may be disoriented from a traffic accident. The police will usually attribute any alleged mistakes to being impaired from alcohol or drugs rather than impaired or injured from the recent crash.

Due to the defendant’s condition, after the DUI arrest, the police took the defendant to the hospital to check him out medically. The state later subpoenaed those medical records from the hospital. The criminal defense lawyer objected based on the fact that medical records are private and legally protected. Despite that privacy and legal protection, the state can obtain medical records via subpoena if those records are relevant to a criminal investigation. One of the arguments was that the defendant did not ask to go to the hospital so the medical records were created as a result of unilateral state action. The court rejected these arguments. The relevance required to obtain these medical records in an ongoing criminal case is a very low standard. The court essentially said the medical records from the time of a DUI arrest will almost always be relevant. The court allowed the disclosure of the defendant’s medical records but only records related to blood alcohol content and observations from medical personnel regarding the defendant’s impairment.

In Florida, robbery by sudden snatching is a crime that involves a person takes the property from the victim’s person when the victim is aware of the taking. Robbery by sudden snatching is a serious charge as it involves the possibility of violence and fear by the victim. However, the charge itself does not require any more force than what is required to take the property, and it does not require the victim to resist. Robbery by sudden snatching is a third degree felony and one of the more serious ones.

In a recent Jacksonville, Florida case, the defendant reached into a vehicle and stole two phones that were on the dashboard. The victim was in the driver’s seat, but was not in actual possession of the phones at the time. It was alleged that the defendant made some contact with the victim as he grabbed the phones.

The criminal defense attorney argued that this could not be robbery by sudden snatching since the victim did not have the phones on him at the time. The jury found him guilty, but the conviction was reversed by the appellate court who noted that actual possession of the property by the victim was a requirement of that statute. If the defendant makes contact with the victim as he takes property that is not on the victim, that is not enough for a robbery by sudden snatching conviction.

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