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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.

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. 

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.

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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 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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Criminal defense attorneys in Florida often struggle to answer questions related to what is and what is not considered child abuse in the State of Florida.  The reason is that the child abuse statute is so very broad and covers such a wide array of actions, some of which do not even include physically touching a child.  That statute often runs up against the age old adage that a parent has the right to raise their child as they see fit.

Ask ten different people and you will get ten different answers on how a child should be punished for different behaviors and actions.  What was considered acceptable parental corporal punishment decades ago could be considered child abuse today.  So, what is considered child abuse today?


What is the child abuse law in Florida?

adobe-spark-post-8There has been a lot of talk about new legislation regarding firearms, but what is the current status of the law as it relates to guns?  Criminal defense lawyers know that there are plenty of firearm statutes with extreme high range of punishments already on the books in Florida.  These laws are coupled with very long minimum mandatory sentences.  There are also many different and often overlapping state and federal laws regulating all aspects of firearm possession, use, distribution, manufacturing, and more.   This blog will lay out some of the more common firearm statutes in the State of Florida.


What are the common gun laws in the State of Florida?


Many of the Florida gun laws are located in Chapter 790 of the Florida Criminal Statutes. Here are some of the more common statutes:

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As every criminal defense lawyer knows, there are some very draconian minimum mandatory sentences in Federal criminal court.  There are federal minimum mandatory sentences for certain drug offenses, firearm offenses, and for defendants who have certain convictions.   There are two ways to break the minimum mandatory sentence, which then allows a judge to sentence you below the minimum mandatory.  The first is called “substantial assistance.”  Basically, if you snitch and the government wants your information, uses your information, and they determine that it was worthy of a sentence below the minimum mandatory, they can file a substantial assistant motion and if granted by the judge, the minimum mandatory would no longer apply.  You can only get less than the minimum mandatory sentence if the prosecutor files the motion.  If they decide not to file the motion, the judge must sentence you to the minimum mandatory sentence up to the maximum sentence.  But what if you don’t want to snitch? What if you don’t have any information that the government is interested in?  There is one more option that will allow the judge to sentence you below the minimum mandatory sentence: Safety Valve.


What is Safety Valve?


The “Safety Valve” provision is a provision of law codified in 18 United States Code §3553(f).  It specifically allows a judge to sentence you below the minimum mandatory required by law.  However, you must be eligible.  There is also a two level reduction in the sentencing guidelines under United States Sentencing Guidelines §2D1.1(b)(17).

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When can a police officer stop and search you?  This is a question often asked to criminal defense lawyers, but can rarely be answered with any degree of specificity.  Why?  Because whether a police officer has illegally stopped and searched you is a mixed question of fact and law.  Rarely, are two cases exactly the same factually.  So, it is up to the trial judge to listen to the testimony and evidence at a suppression hearing, to determine which facts he or she believes to be true and whether under those facts, the officer acted within the law based on prior case law.  Recently, in a rare reversal, the Eleventh Circuit Court of Appeal reversed a Federal District Judge’s denial of a motion to suppress.  Here’s why?


The stop and seizure of Patrick Heard


Officers received a 911 call stating that there were gunshots in the woods behind an apartment complex.  Patrick Heard was walking his dog at the apartment complex when two police officers arrived and approached him approximately 15 – 29 minutes after the 911 call.  The officers asked Patrick if he had heard gunshots.  Patrick told the officers that he had heard gunshots coming from the woods.  The officers asked Patrick for his identification, which he readily provided.  The address on his license didn’t match the address to the apartment complex so the officers asked him if he was staying with someone in the apartment complex.  Patrick answered that his mother lived at the apartment complex and pointed up towards an apartment, but didn’t provide the apartment number.  According to the officers, Patrick was swaying.  The officers asked Patrick if they could search him and he stated, “I didn’t do anything wrong.”  An officer told Patrick to raise his hands so they could pat him down.  The officers found a firearm on Patrick and arrested him because he was a convicted felon in possession of a firearm.

adobe-spark-postYou were arrested or given a Notice To Appear.  It was a petit theft, grand theft, possession of drugs, or some other non-violent offense.  You’ve never been arrested before, or if you have, you have a very minor prior record.  You’re scared.  You don’t know what to expect.  Will you go to jail?  Will you lose your job?  Will this haunt you forever?

In many cases, you may be eligible for pretrial diversion or pretrial intervention.  In Duval County, it is commonly referred to as PTI (Pretrial Intervention).  For many non-violent, less serious offenses, the prosecutor has the discretion to divert your case from the court system.  I often like to refer to it as a kind of front-loaded probation.  If you complete certain conditions, the State agrees to drop the charges against you and you may be eligible to have your record sealed or expunged.


How can I get PTI? 

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