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In Florida, most DUI cases (driving under the influence of alcohol) are the result of traffic stops and then subjective DUI investigations and then requests for the driver to submit to a breathalyzer test after he/she has been arrested.  The police cannot generally request a blood sample from a person, or force a suspect to give a blood sample, unless the Florida statute authorizes it or there are emergency circumstances. There are DUI cases in Florida where a police officer can get a DUI suspect’s blood to be sent to the crime lab and tested for alcohol content. There is a Florida statute that allows the police to obtain a blood sample from a DUI suspect in certain circumstances.

If a driver has been involved in an accident and there is probable cause to believe the driver was under the influence of alcohol and that driver has caused a serious injury or death, the police can then require the driver to provide a blood sample for testing. There is some ambiguity over what a serious injury is and there is often conflict over whether there is probable cause to believe the driver was under the influence of alcohol.  For instance, just because someone involved in the crash was taken to the hospital does not mean there was a serious injury.  Likewise, just because the police smell alcohol on a driver does not automatically mean there is probable cause to believe the driver is under the influence of alcohol.

But there is also another factor that gets overlooked in some DUI cases. The police must have evidence that the driver whose blood they are seeking caused the crashed that resulted in the serious injury or death. Police often come to these accidents after the fact. Therefore, they cannot necessarily rely on their observations of the crash to determine the cause. They must perform some level investigation to make some credible determination of causation of the crash and the resulting injury or death. Without that, the police cannot order a DUI suspect to give blood. This does not mean a driver cannot be charged with DUI. It just means the police cannot obtain the driver’s blood, and if the police do so without establishing any causation, the criminal defense lawyer can get the evidence of the blood alcohol test thrown out of court.

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In Florida, it is illegal for a person who has been convicted of a felony crime in any state to carry a concealed weapon.  There is a Florida criminal statute that addresses possessing a firearm and carrying a weapon, but they prohibit different things.  The law says that person who has previously been convicted of a felony may not possess a firearm.  The same statute says a person who has been convicted of a felony may not carry a concealed weapon.  The key difference, of course, is with the words carry and possess.  Regarding firearms, they may not be possessed.  Of course, if a convicted felon is carrying a firearm, he is also possessing it. However, the concept of possession is much broader than what a person is carrying.  A person can constructively possess things that are miles away.  For instance, you may be in California but also be in possession of a firearm in your house in Florida if the state can prove you knew the firearm was there and had sufficient control over its existence there. Proximity to a firearm may be sufficient to prove possession.  More than one person can be in possession of the same firearm. Many factors may be sufficient for the state to prove a person is in possession of a firearm, and if that person is a convicted felon, the penalty for such an offense can be severe.

Carrying a weapon is much more narrow. A convicted felon may not carry a concealed weapon. Carrying is generally interpreted as one would expect. As a result, if the police find a knife in a driver’s glove compartment of his car, the state may be able to prove the driver is in possession of the knife, but he is not carrying it, and therefore would not be in violation of this criminal statute. However, while the action required for criminal liability is more narrow, the definition of a weapon is broad. A weapon can include any potentially deadly weapon that can be concealed from another person. For instance, brass knuckles can cause a lot of damage, but they are generally not a weapon that is used to cause death. However, they are specifically listed in the statute as a potentially deadly weapon that a convicted felon cannot carry while concealed.

In conclusion, no person who has been convicted of a felony in any state may carry or possess a firearm. Also, that person may not carry any concealed weapon that has the potential to cause a deadly injury. That person may carry a potentially deadly weapon that is not a firearm openly so that it is not concealed.  However, it is still dangerous for a convicted felon to carry a deadly weapon that is not a firearm openly because if someone reports it as concealed and/or the police officer believes the weapon is concealed, the suspect may be facing a felony charge that is a credibility contest where a jury would know he or she is a convicted felon.

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We’ve all seen the news footage of religious protests at the funerals of deceased service members.  People yelling and screaming and carrying signs with hateful messages.  These are images that get most rational people’s blood boiling.  But did you know that in the State of Florida, it is actually a crime?


Is it a crime to protest at a funeral?


Yes. Florida Statute §871.015 makes it a crime to knowingly engage in protest activities or to knowing cause protest activities to occur during or within 1 hour before or 1 hour after the conducting of a funeral or burial at that place.

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In the digital age, when so many people keep cell phones, Ipads, fitness trackers and other electronic devices with them at all times, the courts are grappling with issues of privacy when law enforcement seeks to obtain information about people during their investigations.  We have discussed some of these issues such as whether a police officer can look through a suspect’s phone for incriminating information upon an arrest. The police can normally search a person and check their belongings upon an arrest to make sure there are no weapons, officer safety issues or evidence if there is reason to believe evidence might be present.  A phone or Ipad-like device can contain all sorts of private information and evidence.  However, courts have generally ruled that the police need a search warrant to search a person’s phone even if it is seized pursuant to a lawful arrest.

Another type of data that is stored in electronic devices (or stored with third party entities after being collected by the devices) is location information.  Obviously, a suspect’s location can be critical information if police are investigating an incident like a shooting, robbery or burglary, and they are trying to determine if a suspect was in the area at the time.  The question that arose in this case was whether the police can contact a person’s cell phone provider and request the data they maintain showing customers’ locations.  Or, do the police have to get a search warrant to request that information? Some courts across the country and in Florida have allowed law enforcement to obtain this information without a warrant based on the idea that customers do not have a reasonable expectation of privacy in their location information and/or they do not have standing to object to this information being released by some third party entity.

What makes this data different from information that is kept on one’s phone is that it is automatically generated when a person has a cell phone and it is stored by a third party rather than on one’s phone.  However, the United States Supreme Court recently ruled that the police do have to get a search warrant before requesting this location data from cell phone providers. They found people do have a reasonable expectation of privacy in their location information.

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A recent case involving a DUI arrest near Jacksonville, Florida raised the issue of what constitutes a “crash” under the Florida DUI laws.  More specifically, does a crash require some sort of property damage or injury or is a collision simply enough regardless of whether any vehicle is damaged or a person is injured?  Why is this important?  It could make all of the difference in a DUI case.

In Florida, a police officer is not generally allowed to arrest a person for a misdemeanor crime without a warrant unless he/she or another police officer observes the crime being committed. There are exceptions to this rule in various areas of criminal laws. In DUI cases, the exception is that police officers can arrest a person suspected of DUI without observing the crime if the police officer discovers evidence to support the DUI arrest after a traffic crash. So, if a police officer learns that a person is driving erratically and may be drunk from a lay witness and only finds the suspect after he is outside of his car, never having seen him driving or in the car, the officer would not be able to make the DUI arrest because the criminal conduct did not occur in the police officer’s presence.

On the other hand, if a person is driving under the influence of alcohol or drugs and gets into a traffic crash, the police are called and the police officer arrives after the suspect exits the vehicle, the police officer can still make a DUI arrest if the officer obtains evidence that the suspect was driving the vehicle and was impaired.

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In the State of Florida, you can be compelled to perform Field Sobriety Exercises.  This doesn’t mean that the officer can physically force you to perform the exercises.  It simply means that the officer does not have to obtain your consent and your refusal to perform the field sobriety exercises can be used against you in court.  So how would this play out?  Let’s take a look:


What are Field Sobriety Exercises?


Field Sobriety Exercises are physical tasks that an officer will ask you to perform when that officer suspects that you are driving while under the influence of alcoholic beverages or drugs.  Some of the exercises are standardized, meaning that the instructions and the way they are conducted are the same everywhere in the United States.  Some of the exercises are not.  Some examples of Field Sobriety Exercises are the Walk and Turn exercise, the Finger to Nose exercise, the One Leg Stand Exercise, the Rhomberg Alphabet exercise, and the Rhomberg Balance exercise.  Each exercise is designed to divide your attention so you are concentrating on different tasks.  For example, during the walk and turn exercise, you have to listen to instructions, remember to keep you arms by your sides, place one foot in front of the other heal to toe, walk down a line, take 9 steps, turn taking small steps during the turn and take 9 steps back, all while not swaying, raising your arms or stopping.  The officer will mark down each thing that you do wrong and will form an opinion on whether you are impaired or not based on how you do on the Field Sobriety Exercises.  In the real world however, the officer may have already formed an opinion about whether you are impaired before you ever start the field sobriety exercises and they may use the results of the field sobriety exercises to gather evidence against you.

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In a case that was recently decided by the United States Supreme Court, the issue was whether the police could go onto a suspect’s property and search a vehicle that was in the driveway under a partially enclosed portion of the house, likely something built to provide shade for the vehicle. In this case, the police were searching for a stolen motorcycle. They believed the motorcycle was located at the house in question. When they arrived, they saw what appeared to be a motorcycle under a tarp in the driveway. The police officer walked onto the property, looked under the tarp and ran the tag of the motorcycle.  After determining the motorcycle was stolen, the owner of the house was arrested.

The criminal defense attorney filed a motion to suppress the evidence of the stolen motorcycle because the police officer did not have a legal basis to search it on the defendant’s driveway.  There are a couple of legal principles involved here.  There is something called the motor vehicle exception in search and seizure law. Normally, if the police want to search the property of a person, the police have to get consent or a search warrant.  However, automobiles are different for two reasons.  One, there is less of a reasonable expectation of privacy in an automobile because they are driven around and parked in public, and people can generally see inside of them through the windows.  Two, automobiles are easier to move from one place to another making it easier to dispose of evidence inside.  As a result, the automobile exception allows a police officer to search an automobile without a search warrant if the police officer has probable cause to believe there is evidence of a crime in the vehicle.

A competing issue in this case is the idea that people have a strong expectation of privacy in their homes and the immediate area surrounding their homes, i.e. the curtilage. The curtilage is generally defined as the immediate area surrounding the home along with a porch and any enclosed areas near the home.  This would also seem to apply to property that is enclosed by a fence that is clearly not open to the general public.  The police may not go into these areas to search without consent or a search warrant.

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In Florida, one exception to a search warrant requirement is consent to search from the owner of the property or someone in possession of the property who appears to have authority to give consent.  Police can generally walk up to any person, vehicle or residence and ask to search without a warrant and without probable cause. If that property owner agrees, the police are free to search.  However, there are limitations, and people should always understand they have a constitutional right to refuse any police request to search one’s property.

In this case, police officers drove to the defendant’s property in a rural area south of Jacksonville, Florida. They went through an open fence and ignored the “No trespassing” signs.  They knocked on the front door, but no one answered.  The officers then got back into their vehicle and kept driving on the property to a barn where they found marijuana. They ultimately arrested the property owner for various marijuana charges.

The criminal defense attorney filed a motion to suppress all of the marijuana evidence because the police did not have a right to come onto their property and search it.  At the hearing, the police officers testified they previously had permission to enter the property. It was determined during the hearing that the permission was given three years earlier by the previous property owner.

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In a criminal case just south of Jacksonville, Florida, the defendant was arrested for possession of a firearm by a convicted felon after an employee at a restaurant called the police and reported that he appeared to have a gun in his waistband. There was no indication the defendant pulled out a gun, was acting in a suspicious manner or used or held it in a threatening manner. When the police arrived, they saw a bulge in the defendant’s waistband but could not tell it was a gun. The police officer patted the defendant down and discovered the gun. Afterwards, they determined that the defendant was a convicted felon.

The criminal defense lawyer filed a motion to suppress the evidence of the gun because it was not a legal search. In order for the police to legally search a person, or just pat a person down for weapons, the police must, at a minimum, have reasonable suspicion that the person is involved in criminal activity. In order for the police to conduct a stop and frisk, the police must have reasonable suspicion that the person is armed and dangerous.

In this case, the police did not have reasonable suspicion of criminal activity. It is not illegal to carry a gun in Florida.  Therefore, the fact that a person has a gun in public is not evidence of criminal activity.  It might be illegal for a person to carry a concealed weapon in public, but only if that person does not have a concealed firearms permit. When the police stopped and patted the defendant down, they did not know whether or not he had a concealed firearms permit. Therefore, they did not have evidence he was committing a crime even if they knew he had a gun concealed in his waistband.

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With the proliferation of social media, the state has an extra tool it can use to obtain evidence and prove cases in court. At this point, people should understand that posting information on the internet, whether pictures, conversations, documents, etc., does not come with a reasonable expectation of privacy. The police or prosecutors can subpoena information from internet service providers or simply go on a defendant’s social media page and print off or download incriminating information.  The bottom line, whether in relation to a criminal case, a civil case or just generally- do not post things on the internet that you would not want the police or the general public to see.

For example, in a case just south of Jacksonville, Florida, the police were investigating two auto thefts that happened in similar locations within an hour of each other. The police developed suspects for the two auto thefts and ultimately obtained one of the suspect’s cellphones. They obtained a search warrant for the phone and saw Facebook postings showing two defendants in the stolen cars. One of the defendants was wearing one of the victim’s watches.  The videos were posted on Facebook shortly after the second auto theft. The victims were able to identify the suspects through the Facebook videos.  Both defendants were convicted based on the Facebook videos.

This was a fairly extreme example of stupidity on the part of the defendants, but people do post things on the internet that implicate them in crimes or negatively affect civil cases.  It may not be as obvious and direct as this, but it does happen, and police, prosecutors and parties in lawsuits do check Facebook pages and other social media to try to find evidence that helps their cases. In Florida, as long as the internet evidence is legitimate and unaltered, it very likely may be used as evidence in court.