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In Florida, the process for a person getting out on bond while a criminal case is pending is usually fairly standard.  If the police officer obtains an arrest warrant to arrest a suspect based on a prior crime, the judge who signs the arrest warrant will normally also place a bond amount on that warrant.  After the arrest, if the defendant can make that bond, then he/she will be released pending the resolution of the case.  When the police arrest someone immediately after an alleged crime was committed without an arrest warrant, that defendant will normally see a judge the next day.  That judge will set a bond for the defendant then at what is called a first appearance hearing.  The defendant can then be released if he/she can make the bond.

The general rule is that anyone who was arrested has a right to a reasonable bond, and if he/she can make that bond, either by paying the full amount or by paying 10% or so to a bonding company, that person can be released from jail.  There is an exception to this general rule that can delay or even prevent a defendant from being released on bond even if he/she can come up with the money to pay the bond.  The state can file what is called a Nebbia motion to prevent a defendant from bonding out.  Essentially, if the state believes, regardless of whether there is any specific evidence to support this belief, that the money to be used to pay the defendant’s bail might come from illegal sources, the state can require the defendant to show that the money comes from a legitimate source.  This does not sound problematic on its face.  Defendants should not be able to use funds from illegal sources as bond money.  The problem is that a defendant is normally entitled to a reasonable bond at his/her first appearance hearing and should be released on that day if he/she can make a reasonable bond.  If the state files the Nebbia motion, many judges will not hold a hearing on that issue at the first appearance court date.  Some judges have never had such a hearing and are not comfortable conducting one when the case may ultimately go to another judge anyway.  Even if a judge is prepared and willing to hold the Nebbia hearing immediately, the defendant may need some time to get evidence and witnesses to court to prove where the bail money is coming from.  Judges do not hold these kinds of hearings every day.  If the hearing needs to be postponed for whatever reason, it could take a couple of weeks before the defendant could have a chance to prove the legitimacy of the bond money and bond out.

The bond system in Florida is already rife with injustice.  Obviously, although it is much worse than most people know, it favors people with money and severely hinders poor people.  All day, every day there are people who plead guilty to a criminal charge without seeing the evidence and without a meaningful consultation with a lawyer because they want to get out of jail quickly and can not afford to make a bond or wait several weeks for the next court date.  The Nebbia inquiry, which the state can request on a mere hunch in all sorts of different cases, adds another questionable procedural hurdle for people to be released who are innocent until proven guilty at that stage of the proceedings.

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When a person enters a guilty or no contest plea or is convicted in a criminal trial, the next step is normally for the judge to sentence the defendant.  A criminal sentence can involve incarceration, probation or both.  If a defendant is placed on probation, he/she is placed on probation for a number of months or years.  During that time, there are usually conditions the defendant must meet.  For instance, the defendant may have to complete community service hours, take certain classes, complete a rehabilitation program and so on.  One condition that is required among all people on probation is that he/she must not commit any new crimes. If a person violates one or more of these conditions, that person will likely be arrested and will face a violation of probation charge.

There are two characteristics of a violation of probation charge in Florida that make it more difficult for defendants than regular criminal charges.  One, the case is decided by the judge rather than a jury.  There is no right to a jury trial for violation of probation charges.  Two, the standard is much lower.  For new criminal cases, the state must prove guilt beyond a reasonable doubt.  There is no way to quantify this standard, but it is supposed to be a pretty high burden, at least in theory.  For violations of probation, the standard is a preponderance of the evidence, which means more likely than not, or greater than 50%.  This is universally considered a low standard.

One intricacy that sometimes comes into play with people on probation is a situation where the probationer gets arrested on a new charge, and for whatever reason, the state does not feel like they can prove the case to a jury beyond a reasonable doubt.  However, they do proceed with a violation of probation case based on that alleged crime since the standard is lower and a judge decides.  This most often happens in domestic battery cases.  The state may have a hard time proving the new domestic battery charge to a jury because the police often do not collect much evidence or do any investigation at the scene upon arrest and alleged victims often change their stories or refuse to cooperate.  However, judges are fully aware of the difficulties in proving domestic battery cases when victims refuse to cooperate, and they know a dropped domestic battery charge does not necessarily mean the suspect is not guilty.  Sometimes it does; sometimes it doesn’t.  The state dropping a case and the defendant being innocent are not necessarily the same thing under the law.

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People in Florida litter all of the time.  You cannot drive more than a block around here without seeing trash that was discarded along the side of the road.  Most people probably assume that the penalty for getting caught littering is a fine.  There are signs along some roads which indicate what the fine is for littering, not that we have ever seen a police officer enforce them.  Littering is a noncriminal violation that can only be punished with a fine if the amount of trash or debris is small.  Under Florida law, if a person litters and the weight of the trash is no more than 15 pounds, the penalty is up to a $100 fine.  However, as the weight or volume of the trash becomes greater, the violation is a criminal violation and the potential penalties become more serious.

At 15 to 500 pounds, littering becomes a first degree misdemeanor.  This carries a penalty of up to 12 months in jail.  No one is likely to go to jail in Florida for a misdemeanor littering charge, although it is theoretically possible, but the statute specifically mentions that the defendant must be ordered to do community service which would involve picking up trash.  If the littering was done by throwing the trash out of a vehicle, three points are added to the defendant’s driving record with the DMV.

If the littering involves more than 500 pounds or 100 cubic feet in volume, it becomes a third degree felony.  This crime carries a maximum sentence of five years in prison in Florida.  Again, prison is unlikely for a felony littering charge, unless serious damage was done, but the statute specifically mentions penalties that the judge must impose.  The defendant must remove the litter and repair or pay for any damages caused by it.  The defendant must also perform community service to help restore the area affected or another area damaged by littering.  The defendant must also pay three times the amount of damage caused by the littering to someone who was damaged as a result of the felony littering.

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Most people are aware of the Florida Stand Your Ground law as it received a lot of notoriety during the George Zimmerman case and other cases in Florida since then.  Essentially, the law says that people in Florida are not required to retreat and can use deadly force if he/she reasonably believes it is necessary to prevent the other person from committing an imminent act that is likely to cause death or serious injury to him/herself or another person. It is basically a self defense law that allows a person to use deadly force if the person legitimately thinks the other person is going to do something very bad to him/her.  The law provides some procedural benefits to a defendant who can utilize the Stand Your Ground law.

One question is whether police officers can use the Stand Your Ground law like regular people can.  In a recent murder case near Jacksonville, Florida, a police officer was charged with murder after shooting someone he claimed he thought had a weapon and was pointing it at him.  The police officer was responding to a suspicious person call and saw the suspect walking in a neighborhood with what appeared to be a rifle.  He followed the suspect and ultimately told him to drop the alleged rifle. The suspect did not drop it and pointed it at the police officer, according to the officer.  The police officer then shot him and killed him.

The criminal defense lawyer filed a motion to dismiss the charges based on the Florida Stand Your Ground law.  The criminal defense attorney argued the police officer reasonably believed the suspect had a weapon and was going to fire it at the officer, and he shot the officer in self defense.  The state objected and argued that a police officer does not have the right to assert the Stand Your Ground law because there is a Florida statute that specifically addresses when a police officer may use force when effecting an arrest.  Because there is already a statute on this issuing specifically dealing with police officers are arrests, that law applies rather than the Stand Your Ground law which applies to people generally.

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In Florida, there is a criminal statute that addresses the neglect of a child.  The statute is problematic because it is broadly written.  The effect is that police officers have very broad discretion to arrest a person for child neglect.  And prosecutors similarly have wide discretion when deciding whether to file charges.  As a result, a police officer’s opinion, normally based on very limited information, about how a parent should raise or deal with a child takes precedence over the parent in response to situations that may or may not involve actual negligence.

The Florida statute does not just apply to parents.  Any caregiver who neglects a child can be charged with child neglect in Florida.  Child neglect is a serious felony charge.  It becomes more serious if the child is injured as a result of some incident relating to the alleged neglect.  If there is no injury, child neglect is still a third degree felony.  It is a serious charge for a crime that may be reasonable parental conduct that a police officer just disagrees with.

For example, we have handled several cases where a parent decides a child or children are old enough to be left alone at home for a period of time.  Something happens, maybe there’s a knock at the door or the kid breaks something and cannot reach the parents, the kid panics and ultimately the police respond to the home.  If whichever police officer responds to this situation decides the kid should not have been left alone, not knowing the history and circumstances of the kid and the parents, then the parents will get arrested for a serious felony charge.  And we find that some police officers do not like responding to situations and coming away empty handed.  The old- I will arrest these people and let the lawyers and the judge figure it out approach.  This is not an uncommon scenario.

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In Florida, and likely in all of the other states as well, it is illegal for a person to prevent another from reporting a crime or otherwise providing information about criminal activity to the police or in court.  This is part of a more inclusive statute dealing with witness tampering.  The Florida law makes it illegal for a person to use force, intimidation or threats to cause another person to avoid testifying or providing evidence in a case, damage or alter evidence, avoid a subpoena or testify falsely.  It is also illegal to hinder a person from reporting a crime.  This is a felony crime in Florida, and it becomes a more serious felony the more serious the underlying issue is.  For instance, a person can be charged with a life felony of tampering with a witness if the person is obstructing a witness relating to certain serious first degree felony crimes.

This situation can come up in almost any case, but it comes up more frequently in domestic violence cases.  Since the parties know each other in domestic battery cases, the dynamic is one where it is more likely that the suspect will takes steps to try and prevent the victim from calling the police, giving a statement to the state or coming to court to testify.  If force, threats or intimidation are used, this could be a separate crime.

A person can be guilty of tampering with a witness even if the witness or victim has not taken any steps to contact the police or report a crime.  In a recent case near Jacksonville, Florida, the defendant was being abusive to his daughter.  The kid’s mother and sister observed the incident.  After some yelling, the defendant took the cell phones from the older sister and mother and broke one of them.  He kept the other.  He told them they could not call the police on him for his abuse.  No one had attempted to call the police and report the abuse before the defendant took the cell phones.  The defendant was charged with tampering with the two witnesses for preventing them from calling the police.

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Most of the posts on this blog deal with various areas of Florida law or new trends in the law.  A subset of posts deals with the overly aggressive police and prosecutors who makes arrests and charge cases when either the law does not support it or the equities of the situation suggest government intervention is not necessary or appropriate.

In this case near Jacksonville, Florida, a bonding company agreed to post bond for a defendant.  The person putting up the bond provided the title to his vehicle as security for the bond.  The bond process in Florida works as follows: when a person is arrested, a judge will set a bond for that person in just about every case.  Once the bond is set, for example at $10,000, the defendant will remain in custody until his case is resolved unless a person posts a bond.  There are generally two ways to post the bond.  Someone can pay the full amount of $10,000 to the jail in cash. The benefit of this is that the person will get the money back (minus fees and costs in some cases), when the case is over no matter how it ends as long as the defendant does not skip court and run away.  Or, the person can pay a bonding company to bond the defendant out.  In this case, the bonding company will normally take 10%, or $1,000, as the fee.  The benefit to this is the person only has to come up with 10% of the bond, but that 10% is gone once it is paid because that is the fee to pay for the service the bonding company provides.  The bonding company is responsible for the other 90%.  However, many bonding companies will require security for that other 90% in case the defendant does run away.

In this case, the person gave the bonding company the title to his car as collateral.  The bonding company would have a right to claim the car if the defendant fled.  If not, the bonding company would return the title once the case was over.  The defendant ultimately fled, and the bonding company was forced to pay the full bond.  The bonding company went after the person who paid the 10% of the bond for the rest of the bond amount.  That person could not pay so the bonding company sought to take the vehicle.  After the bonding company representative took the vehicle, the owner reported the vehicle stolen.  The police arrested the bonding company agent for grand theft of the vehicle.

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In Florida, there is a law called implied consent.  This means that when you agree to accept driving privileges and a driver’s license in Florida, you agree to submit to a breathalyzer test if the police have probable cause to believe you have driven while impaired from alcohol.  This does not mean you have to submit to a breathalyzer test.  There are many cases where a police officer arrests a person for DUI in Florida without the requisite probable cause, and a DUI suspect might decide not to cooperate with the police officer any further.  Of course, it is then up to the criminal defense lawyer to file a motion to suppress after the fact and the judge to rule on whether probable cause existed to support the DUI arrest and request for a breathalyzer.

Other times, a DUI suspect may not agree to submit to a breathalyzer test because he/she does not believe he/she is being treated fairly or he/she just does not want to give the state evidence to prove the DUI case in court.  In any case, as a practical matter, the implied consent law says that if the police officer has probable cause to believe a person is guilty of DUI, the police officer can request a breathalyzer test.  If the suspect refuses, the suspect is then subject to certain penalties.  A refusal may result in a longer driver’s license suspension.  A second refusal when there has been a previous refusal during a prior DUI case could result in a new misdemeanor charge.  For the instant case, if a person refuses the breathalyzer, the state will try to use that refusal against the defendant in the DUI case if it goes to trial.  The state will argue to the jury that the defendant refused the breathalyzer test because the defendant was drunk and knew he/she would fail it.  Of course, there are many reasons why a defendant would refuse a breathalyzer test, and the criminal defense attorney can make those counterarguments at a DUI trial.  Ultimately, it would be up to a jury to decide, if the DUI case goes to trial.

Procedurally, in Jacksonville, Florida, the police normally do not offer the breathalyzer test until after the suspect has been arrested for DUI and taken to the jail.  That is one reason why people decide not to submit to a breathalyzer test.  The person is already arrested for DUI at that point, and no one gets “unarrested” after a good breathalyzer reading.  But, after the suspect is taken to the jail and brought to the breathalyzer room in the jail, if he/she refuses to submit to the breathalyzer, the state will try to use that refusal against the suspect in court.

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The case we wrote about in our previous post was a DUI manslaughter case near Jacksonville, Florida that involved some interesting legal issues.  A crash occurred at about 1:00 a.m. involving two vehicles.  The victim’s vehicle was forced off of the road into a canal.  The defendant initially fled the scene of the crash, but he did return about an hour later.  However, he never checked on the status of the victim.  There were issues surrounding the blood draw and whether the state could force a person to give blood for alcohol testing without consent and without a search warrant.

Another interesting issue was discussed in this DUI case.  DUI manslaughter is obviously a serious charge.  It is a second degree felony in Florida, which means a person can get sentenced to up to 15 years in prison if convicted.  We have heard of judges giving those sentences, or close to it, for the more egregious DUI manslaughter cases.  A DUI manslaughter can become even more serious if the suspect does not render aid to the victim after the crash.  In that case, the DUI manslaughter charge goes from a second degree felony to a first degree felony, which is punishable by up to 30 years in prison.

It is not clear what exactly the term “render aid” entails.  If the suspect has no medical training, there is only so much he/she can do to help an injured victim and there is only so much that person should try to do in order to not make things worse.  At a minimum, we can assume rendering aid means staying at the scene, checking on the victim and calling for an ambulance as soon as possible.  If the victim has an obvious emergency that can be handled by the suspect, the suspect probably needs to try and alleviate that problem.

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When the police want to search a person’s property, or search a person, they normally need consent from that person or a search warrant signed by a judge.  However, that general rule does have exceptions.  In most DUI cases, the police officer will request that the subject submit to a non-invasive breathalyzer test to determine the blood alcohol level.  Other times, the police officer may request a blood draw.  The police cannot request a blood draw in just any DUI case.  There are rules that limit when the police can request blood for alcohol testing in DUI cases.  And when police request blood in a DUI case and the suspect refuses, the police normally cannot force a blood draw without a search warrant.

As stated, there are exceptions to this rule, and one that applies at times in DUI cases is the exigent circumstances exception.  Exigent circumstances under the law generally means there is a risk that the evidence in a DUI case (the alcohol in the suspect’s blood) will be lost if the evidence is not obtained in a timely manner.  This can be particularly relevant in a DUI case as the alcohol in a person’s body dissipates as the body’s metabolism takes effect.

The fact that alcohol dissipates in a person’s body is not a sufficient reason, by itself, to force a blood draw without a search warrant after a suspect refuses the blood draw.  Other factors must be present.