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Florida law distinguishes between traffic violations that are civil and can only result in a fine or possible driver’s license suspension and traffic violations that are criminal and can result in charges and even prison time. Sometimes, there is overlap. For instance, if a person gets a DUI, the DHSMV will get involved and often issue a license suspension, and there will also be a criminal case that can involve a separate license suspension as well as other penalties. Very poor driving can result in a careless driving traffic ticket which comes with a fine or a criminal charge of reckless driving which comes with criminal penalties and a possible automatic license suspension. If someone is injured or killed as a result of someone else’s negligent or bad driving, that could either be a civil traffic case or a criminal case, or both.

In a recent case south of Jacksonville, Florida, the defendant committed a traffic violation that resulted in a crash. At the time, there was no fatality so he was given traffic citations which indicated no serious injury or death. Whether it was a mistake by the police officer or someone died later due to the crash and injuries, there was a fatality and the state later sought to charge the defendant with a traffic infraction involving death.

At the scene, the police officer did not have the defendant sign the citations. Florida law requires a signature by the defendant for any traffic infraction that requires a court appearance or any traffic violation that results in a criminal charge. In this case, the defendant did not appear in court because he was not given and did not sign any citation indicating a court date was required or there was a criminal charge related to the incident. The defendant had a criminal defense lawyer appear for him at a court date, but that was not the same as the defendant’s appearance so the requirement for a signature was not waived. At the court appearance, the state tried to upgrade the charge to reflect the fatality. However, the criminal defense attorney objected since there was no signature on the citations. The court agreed. Since there was no signature, there was no requirement for the defendant to appear in court. Since the defendant was not in court, the court did not have jurisdiction over the defendant to upgrade the charges against him in his absence. As a result, the defendant’s criminal defense lawyer was allowed to resolve the case with the civil traffic violation with no fatality at that court appearance and not face more serious charges.

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In most DUI (driving under the influence of alcohol or drugs) cases in Florida, the police officers will conduct their routine (and highly subjective) DUI investigations after a traffic stop, which includes a request for field sobriety tests at the scene and then a request for a breathalyzer test at the jail after the DUI arrest. However, some DUI cases are handled differently due to the circumstances, and the state will try to obtain evidence of impairment a different way.

In a DUI case south of Jacksonville, Florida, the police learned of a vehicle that was involved in a crash where the driver then fled the scene of the crash. The police had the license plate number of the vehicle and went to the owner’s address. At that address, they saw the vehicle involved in the crash, but the owner was not there. An occupant of the residence told the police that he left in a different vehicle. The police then went to search for that vehicle. When they found it, the police made a traffic stop and conducted a DUI investigation at the scene. The police officer made all of the standard observations at the scene (odor of alcohol, swaying, slurred speech, bloodshot and watery eyes, etc.) and arrested the defendant for DUI. As he was being arrested, the defendant claimed he was having medical problems. As a result, the police took him to the hospital where medical personnel took a blood sample for the purposes of diagnosis and treatment.

The state later sent a subpoena to the hospital to obtain those medical records to see the blood alcohol content. The criminal defense lawyer objected, but the court allowed the subpoena and evidence of the medical records. The court determined that the medical records were relevant to the DUI investigation which was the legal standard since this was not a blood draw elicited by the police for the purposes of the DUI case but a medical blood draw elicited by the medical personnel for diagnosis and treatment. If the court determines the medical records are relevant to the DUI case, the criminal defense attorney would have to show bad faith by the state to keep that evidence out of the case.

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In Florida, police officers are generally able to stop vehicles when those drivers commit traffic violations. This does not necessarily require a moving violation such as speeding or running a red light. It could also involve some problem with the vehicle itself. Once the police officer stops the driver for the traffic violation, the police officer may be able to investigate an alleged crime, if the officer finds specific evidence that a crime is being committed.  This is how many DUI and drug arrests start.

However, not all police stops based on traffic violations are legitimate. In a case south of Jacksonville, Florida, the suspect was driving with one of his tail lights broken. The covering to the light was broken so that the light was white when illuminated. When the police officer approached the vehicle, he smelled marijuana and ultimately arrested the driver for possession of cannabis/marijuana.

The criminal defense lawyer moved to suppress the evidence of the marijuana arguing that the initial stop was illegal. In Florida, the general rule is that traffic stops are valid when a driver is committing a traffic violation. In Florida, it is illegal to drive a vehicle that is in an unsafe condition or does not contain parts, such as lamps, in proper condition. In this case, the defendant argued that three of his four tail lights were working fine. So the question was whether the vehicle, with one broken tail light but others that worked, was in an unsafe condition. Since the stop happened in the morning during the daylight and the police officer could not specifically describe what was unsafe about the vehicle, the court ruled that the vehicle was not in an unsafe condition, therefore the stop was invalid. Since the stop was not legal, the search and seizure of the marijuana after the stop was also illegal. However, the court was clear that these cases would be decided on a case by case basis depending on the specific circumstances. A condition of the vehicle may be considered ok in one situation, while the same condition might be considered unsafe in other circumstances or based on the opinions of different judges.

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Most of the criminal laws people know about are laws that are promulgated by state legislatures or Congress. However, cities and counties can also enact laws that make certain conduct illegal. But not all of these city or county laws allow the police to arrest someone for a violation. Apparently, not all police officers know that. In a case south of Jacksonville, Florida, the suspect was sitting on a park bench late at night. Apparently, the county had an ordinance making it a violation for a person to engage in any activity in contradiction to a posted sign. The park had a sign saying the park was closed after dark. So, the police officers arrested the suspect for being in the park after dark and searched his backpack. They found a small amount of fentanyl in his backpack, and he was later charged with possession of a controlled substance.

Normally, when the police make a valid arrest, they are permitted to search the person and his immediate belongings. This is a search incident to an arrest, and the idea is that police are permitted to search a person and what he is carrying after an arrest because the police need to know if someone they are taking into custody has anything dangerous or illegal on him. This is a standard search that is difficult to challenge unless police use it as an excuse to search things away from and not connected to the suspect.

However, the problem here was the arrest itself. There was a county ordinance and the suspect was in violation of it by being in the park after dark, but the ordinance only allowed for a fine for a violation. Nothing in the ordinance allowed the police to arrest someone for any more than holding them while they wrote the ticket. As a result, the arrest for a county ordinance that did not authorize arrests was illegal. Since the arrest was illegal, the search of the backpack incident to the arrest was also illegal. Searches incident to a lawful arrest are fine, if limited in scope, but searches incident to an arrest are illegal if the arrest itself was not legal.

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Florida law allows a person to seal or expunge a criminal case under certain, limited circumstances. This is a great option for people who are eligible as a criminal record of any kind can be a serious detriment to future job prospects. For an expunction, a person is eligible if the case the person wants to expunge was either dropped, never filed or resulted in a verdict of not guilty and that person has never been convicted of a crime before and has never had a case sealed or expunged in Florida before. For a sealing, the same rules apply except the person is still eligible to get a criminal case sealed even if he/she pled guilty or no contest as long as the judge withheld adjudication on each count. Also, certain, more serious crimes are not eligible to be sealed. If anyone has a prior criminal case on his/her record and thinks he/she might be eligible to have it sealed or expunged, it is almost always worth looking into as it is generally much better to go into a job search with no criminal record or less of a criminal record. Shorstein, Lasnetski & Gihon will discuss the matter with you and look into your background to see if you are eligible for a sealing or expunction.

While a sealing or expunction in Florida is a great way to eliminate or conceal a prior criminal case from employers running the standard record search, neither process completely eliminates all records from everyone. If the person who had his/her record sealed or expunged gets arrested again, the prosecutor will see the prior case(s), and the judge will know about the prior case for bond and sentencing purposes, if applicable. Also, it is unclear that a sealing or expunction of a criminal case eliminates the state’s ability to get certain records from the prior case, such as DNA.

In a recent murder case near Jacksonville, Florida, a woman was sexually assaulted and murdered by a suspect who fled the scene. The police found an item at the scene with what they suspected was the offender’s DNA. The police ran the DNA found at the crime scene through their system and found a likely match with the defendant. After obtaining other evidence, the defendant was arrested and charged. The criminal defense lawyer filed a motion to suppress the DNA evidence because the police matched the crime scene DNA with the defendant’s DNA that was obtained as a result of a prior case that had been expunged. The criminal defense attorney argued that the state illegally obtained the defendant’s DNA because the prior expunction order required the FDLE to expunge all of its records relating to the case, including the DNA.

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In Florida, any person who sends a written or electronic communication threatening to kill or cause serious bodily harm to another or a family member of that person or threatens some other act of terrorism commits a serious crime in Florida. Under the Florida statutes, that conduct constitutes a second degree felony which is punishable by up to 15 years in prison. Obviously, one would hope that the police are certain the communication is serious before arresting someone for a crime of this nature as people send jokes or ridiculous texts and other communications all of the time. Having a crime like this with such a serious potential penalty creates a lot of room for abuse by law enforcement.  However, if a person is dangerous and sends a serious threat to another, this is the crime to deal with it.

These days, there are many different ways to communicate and many different social media avenues to send information. In a case just south of Jacksonville, Florida, a high school student sent a Snapchat picture to another student which was a picture of a rifle and a message that there will be show and tell the following school day. As expected, the student showed it to others and school officials learned of the communication. Ultimately, the student who sent the picture over Snapchat was arrested for sending a written threat to kill or do bodily injury.

The criminal defense lawyer filed a motion to dismiss the charge. He argued that the defendant was joking and the photo did not specifically threaten the victim in any case. The state responded that the victim did not believe it to be a joke and was worried the defendant would come up to the school with a gun and cause serious harm. The court agreed with the criminal defense attorney and dismissed the case because there was no specific threat to kill or cause harm. The state appealed the dismissal. The appellate court focused on what constitutes a threat under the Florida statute. Should the focus be on whether the person sending the threat was serious or joking, or should the court look at whether the victim reasonably believed the threat was serious? The appellate court determined that the reasonable reaction of the victim should determine whether a crime was committed. In this case, the victim testified that he was scared and believed the threat to be serious. The fact that there was a recent school shooting prior to the threat was also relevant to the victim’s interpretation of the communication. Because the threat was sufficient to cause alarm in a reasonable person, the appellate court reversed the dismissal and allowed the state to proceed with the case.

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In Florida criminal cases, if and when a defendant either pleads guilty or no contest or is convicted at a trial, the court will normally order restitution as part of the defendant’s sentence if there is a victim who lost money or property as a result of the crime. This is most common in fraud and theft cases where the defendant stole money or something else of value from the victim. It is also common in cases where the victim’s property was damaged or the victim was injured as a result of the crime and had to pay for medical bills or to fix or replace property.

Normally, the prosecutor will get with the victim and find out the amount of restitution. The prosecutor and criminal defense attorney will go over the amount and the proof of loss and come to an agreement as to the amount of restitution. If they cannot agree, the court will hold a hearing to determine the amount of restitution that is owed. Then, the defendant can either pay it prior to or at the time of the resolution of the case or the judge will sentence the defendant to a period of probation, either instead of jail or prison or after jail or prison, and the defendant will pay the restitution as a condition of probation.

However, there are times when the state does not know the amount of the restitution when the defendant pleads guilty or no contest. This happens because the prosecutor has not been able to get in touch with the victim or the amount has otherwise not been determined yet for some reason. In this case, the state will normally ask the judge to reserve a period of time to determine the restitution amount. When a defendant pleads guilty or no contest and gets sentenced, the sentence will not change, for better or worse, absent other circumstances in the future. However, if the judge reserves right to determine restitution at a later date, the judge can add a restitution amount at that later time. Florida law indicates that the judge has 60 days for which restitution can be reserved. Some criminal defense lawyers interpret this to mean that if the state does not figure out the restitution amount and the judge does not order that restitution amount within 60 days from the conviction, the state can no longer seek restitution. However, the case law rejects that argument.  As long as the judge reserves the issue of restitution within 60 days of the sentence, the state can come back and ask the judge to order the restitution amount after that 60 days has elapsed. Normally, if the state does not have the amount at the sentencing hearing or immediately thereafter, they are never getting it.  But, sometimes, the prosecutor is diligent and comes up with a figure later. As long as restitution was reserved within 60 days of the plea and sentence, the state can ask the judge to order restitution beyond that 60 day period.

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In Florida, most DUI cases involve some alleged traffic violation followed by a DUI investigation and an arrest.  If the police officer thinks the driver is impaired from drugs or alcohol, and usually the officer makes that decision early and quickly, that officer is going to make the arrest. Everything else he does is designed to gather evidence to support the decision he has already made. Some people think the police officer will offer a breathalyzer test before an arrest to determine if an arrest for DUI is, in fact, appropriate. But that is not how it works. Essentially, there is a traffic stop, the police officer decides the driver is DUI, collects evidence such as field sobriety test results, makes the arrest, takes the driver to jail, books the driver into the jail and only then requests the breathalyzer test. So, the breathalyzer test is not something a driver can do to avoid an arrest. The arrest is a done deal at that point.  It is just another tool the police use to try to bolster their DUI case.

Most DUI cases involve a request for a breathalyzer test at the jail. However, there are situations where a breathalyzer test is not feasible, for instance, if the defendant was injured in an accident and had to be taken to the hospital or is otherwise unable to provide a breath sample. In that situation, the police might have the option of getting the driver’s blood to test for alcohol content. However, there are legal limitations to getting blood in DUI cases, and the police cannot always do it just because a breath test would be inconvenient.

In a case south of Jacksonville, Florida, a driver was injured in a single vehicle accident. A police officer responded and smelled alcohol coming from the vehicle. The driver was unconscious and taken to the hospital. The driver was not able to provide a blood sample so the police officer asked medical personnel to obtain a blood sample to be tested for alcohol content. The police officer did not seek a search warrant before getting the blood sample. After the blood tested well over the legal limit in Florida, the driver was arrested for DUI with injury.

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In Florida, if a police officer pulls a driver over and there is any indication of alcohol or impairment, that officer is likely to initiate a DUI investigation. That will usually involved specific questions about drinking, field sobriety exercises and a breathalyzer at the jail after the driver has been arrested. However, it is important to understand that drinking and driving is not a crime and neither is having an alcoholic beverage in the vehicle (although open container is a civil violation). The crime is driving while being impaired from alcohol or drugs. Additionally, police cannot initiate a criminal investigation, whether for DUI or another crime, based on speculation or a hunch. The police officer must have facts supporting a reasonable suspicion that the driver is impaired from alcohol or drugs.

The police commonly use odor of alcohol as a basis to start a DUI investigation. However, odor of alcohol does not prove impairment. It only tends to prove someone has had one or more alcoholic drinks or has alcohol in the vehicle. This alone is not sufficient to investigate or arrest for DUI. In a recent case south of Jacksonville, Florida, the defendant was stopped by a police officer for speeding. When he approached the vehicle, the officer said he smelled alcohol and saw an open drink in the center console. The police officer later wrote the usual DUI observations in his arrest report (bloodshot and watery eyes, slurred speech, difficulty finding his license, etc.), but those were not used as a basis for the DUI investigation in the beginning.

The criminal defense lawyer filed a motion to suppress the field sobriety tests results and other evidence presented by the police officer after the defendant was ordered out of his vehicle. The criminal defense attorney argued that the police officer did not have a legal basis to order the defendant to exit his vehicle and request the field sobriety tests because he did not have reasonable suspicion that the driver was impaired, only that he may have had an alcoholic drink at some point.  The court agreed and threw out the evidence of the DUI. The court ruled that speeding, an odor of alcohol and an open container in the vehicle do not establish enough evidence of DUI to allow a police officer to initiate a DUI investigation.  People speed constantly and an odor of alcohol might mean consumption, but not necessarily impairment.

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In Florida, driving with a suspended or revoked license is not a particularly serious charge, as a first time charge, but it can lead to more serious charges and more serious penalties. A driving with a suspended or revoked license (DWLS) charge can also quickly snowball into a situation where a person has a longer suspension which leads to more DWLS charges which leads to longer suspensions. If things get out of hand, a person can face five years or more of a license suspension and fines and costs to pay with no way to drive to work to pay those costs.  Prosecutors and judges handle a lot of DWLS cases. It may be the most common type of case in county (misdemeanor) court in Florida. And while judges and prosecutors do not care much about them when a person has a minimal record, multiple DWLS charges can result in serious penalties. In fact, if a person has a few DWLS convictions in his/her past, that person can be charged with a felony for the next DWLS violation. Once a person is in circuit (felony) court, it’s not uncommon to face months in jail for the less serious offenses those prosecutors and judges see.

In order for the state to prove that a defendant is guilty of a DWLS crime, the state normally has to prove three things – that the defendant was seen driving, that his/her license was suspended or revoked at the time and that he/she knew or was given notice that his/her license was suspended or revoked at the time.  Usually, parts one and two are easy, but not everyone knows their license is suspended.  A person may have received a traffic ticket and thought it was paid or thought a driving course took care of it, but for some reason, the ticket was not resolved. If a traffic ticket is not paid, the DHSMV will eventually suspend the driver’s license. They should send notice to the driver in the mail, but a person might move or otherwise not receive it.

A habitual traffic offender in Florida is someone with three serious driving violations within five years. A serious driving violation is a DUI, a driving with a suspended license criminal violation (or civil violation with a conviction) and/or two many points from regular traffic violations. If a person becomes a habitual traffic offender, his/her driver’s license will be suspended for five years. As you can see, getting multiple DWLS charges or citations can lead to longer suspensions. It can also lead to felony charges and jail time for future violations.

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