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Collection of DNA May Toll Statute of Limitations in Lewd and Lascivious Battery Cases

In Florida, the state must commence prosecution of a suspect within a certain period of time from the date a crime is committed or reported. That period of time is referred to as the statute of limitations. It provides that the state must prosecute a suspect within a certain period of time, and if they do not, the state can never prosecute the suspect for that crime. The idea is that a defendant has a constitutional right to properly defend him/herself, and if the state unreasonably delays in bringing its case against the defendant, it could impair the defendant’s ability to defend the case. Witnesses forget, they move away, they pass away and evidence can be difficult or impossible to obtain as time passes.

There are various factors that can toll a statute of limitations. This means that the time period can be stalled, or the clock can be stopped, if one of these factors exist. For instance, if the defendant leaves the state of Florida and the police cannot find him/her despite their due diligence, this could toll the statute of limitations. Additionally, in some cases, like fraud cases, the victim is not aware that he/she has been defrauded until much later so the statute of limitations may not start until the victim knows or should have known that he/she has been a victim of fraud. In sex cases, collecting DNA can toll the statute of limitations until it can be tested.

In a recent case near Jacksonville, Florida, a fifteen year old girl gave birth, and a thirty year old guy was listed as the father. Since it is illegal for a 30 year old guy to have sex with a 15 year old girl, the police started a lewd and lascivious battery investigation. The father/suspect fled, and he could not be located to be interviewed or arrested. As a result, the police moved the case to the inactive list. Every now and then, they would look at the case in an attempt to find the suspect. The statute of limitations on the lewd and lascivious battery case was three years. More than three years later, the police found the suspect and took a DNA sample from him. They also took a DNA sample of the child and found a match. The suspect was arrested.

The criminal defense lawyer filed a motion to dismiss the charge based on the passage of the statute of limitations. While the statute of limitations is three years, it can be tolled if the police tried to find the suspect and collected DNA during the original investigation to preserve it and make it available for testing later. The problem was that the state failed to do this. They obviously could not get the suspect’s DNA early on because they could not find him. However, they could have, and should have, collected the child’s DNA for later comparison during the initial investigation. There was no reason not to. Because they did not collect DNA for later testing when they found the suspect, the statute of limitations was not tolled. Because of this egregious mistake by the police, the statute of limitations ran, and the state could not prosecute the defendant. The case was dismissed.