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While it is one of the more misunderstood amendments, just about everyone has some familiarity with the First Amendment.  The First Amendment covers a few general areas, but most people recognize it as giving people a right to free speech.  One area where it is commonly misunderstood is when speech has negative consequences in the private sector, i.e. a person loses a job or a company gets boycotted based on speech.  The First Amendment does not apply in these contexts.  Private companies and private citizens can punish people or take action based on someone else’s speech.  The First Amendment does apply to the government.  In other words, the government, or any subdivision, department or employee thereof, is restricted in actions it can take based on the speech of a person.  As a general matter, the police cannot arrest a person based on speech.  The government cannot generally make laws prohibiting speech.  Of course, there are exceptions.  Some speech is not protected.  Specific threats of violence or plans to commit crimes are not necessarily protected under the First Amendment, and the government can take action in certain of those situations.

Another area where the First Amendment may have limitations is in regard to criminal cases.  The police, the prosecutor, the other lawyers, the judge and other parties involved in a criminal trial do not have free reign to say anything publicly about a pending criminal case, particularly a criminal case that is in the news.  Like every other right, the First Amendment right to free speech can be limited if it conflicts with another Constitutional right.  In the case of a criminal trial, that conflicting right may be the Sixth Amendment right to a fair trial and an impartial jury.  If comments by the police or the prosecution might improperly persuade the jury, or a potential jury, the judge might issue what is called a gag order.  Of course, this goes both ways.  The defendant has a right to a fair trial and an impartial jury, but the defense attorney cannot make statements outside of court that might improperly persuade the potential jury towards his/her side either.

A gag order is an order from the judge preventing the attorneys and perhaps others involved in a case from making statements outside of court about the case.  A gag order will normally prevent the affected parties from talking about the facts of the case, the various theories, the legal issues, sentencing issues and other matters that might influence jurors.  Gag orders are rare because people generally have a right to talk about whatever they want.  But, if one side can show that statements from the other side are likely to impact the right to a fair trial, the judge may issue an order limiting statements.  If the judge does so, that order needs to be as specific and limited as possible so it is only designed to restrict statements and topics that are likely to affect a fair trial and influence a jury.

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More and more states are legalizing marijuana for medicinal purposes.  Of course, some states are also legalizing marijuana for recreational purposes.  It seems likely that marijuana will eventually become legal recreationally and medicinally everywhere, but it is going to be a long process.  In the meantime, people with medical problems can get help from marijuana only in the states that allow it.  Likewise, those people can only get a prescription or medical authorization for certain medical conditions.  In other words, where medical marijuana is legal, it is not just a matter of going to any doctor and asking for a prescription.  For instance, in Florida, a doctor has to successfully complete the required course and examination to be allowed to recommend marijuana to patients.  Additionally, only certain medical conditions legally qualify as medical conditions for which medical marijuana can be used as a treatment.

In Florida, there are eleven qualifying conditions for which medical marijuana can be recommended by a doctor.  These are all very serious medical conditions.  There is also a catchall category if a person has a medical condition that is serious and the doctor thinks the use of marijuana will do more good than harm.  This is somewhat of a ridiculous standard since marijuana does little, if any, harm while there are numerous medical conditions for which it can help.  But, we are still a long way from even a basic, unbiased collective understanding of marijuana so laws are written this way for now.

States with medical marijuana laws have different rules, but they are generally similar in that there are restrictions covering who can recommend marijuana and for what it can be recommended.  Fortunately, PTSD (post-traumatic stress disorder) is one of the medical conditions for which people can use medical marijuana in Florida.  However, it is not properly recognized as a qualifying condition in all medical marijuana states.

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Most DUI cases result from a police officer alleging that he/she observed the driver commit some traffic violation after which a traffic stop is conducted and a DUI investigation follows.  If the police officer believes the driver is impaired from alcohol, the officer will arrest the driver and take him/her to jail.  Only after the driver is booked into the jail is he/she asked to blow in the breathalyzer to try to determine his/her blood alcohol content.

Therefore, in most DUI cases, the police request that the driver submits to a breath test to try to find out the blood alcohol content.  There are, however, other tests.  Drawing blood and sending it to the crime lab is another way to try and determine a DUI suspect’s blood alcohol content.  However, the police are not always allowed to request a blood to test alcohol content since that test is obviously more invasive than a breathalyzer test.  A DUI suspect can always ask the police officer for an independent blood alcohol test, and the police have to accommodate the DUI suspect if it can reasonably be done.  But, the police can only seek a blood test in certain circumstances.

One situation where a blood test is fairly common is when a DUI case involves a serious accident.  After a serious accident, if the police officer believes a driver is drunk driving or impaired from alcohol, the police officer will want to try to find out the driver’s blood alcohol content.  It may not be feasible to explain a person’s rights and administer the breathalyzer in some of these cases.  For instance, if the driver is seriously injured and has to go to the hospital, it would not be possible to take the driver to jail and perform the breathalyzer test.  In these cases, the police officer can request a blood draw to send the sample to the lab for testing later.

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When a person is arrested for a new criminal charge in Florida, that person is entitled to a hearing to have a reasonable bond set for the case.  Not everyone will get a bond.  For instance, some charges are so serious that a judge might set no bond for a person.  A person’s criminal history, ties to the community and other factors help determine what a reasonable bond should be for each case.  Once a bond is set, the person can either pay the full bond amount to the jail or go to a bonding company and pay a fee (usually 10% of the bond amount) to be released from jail while the case is pending.  As long as the person does not flee the jurisdiction and attends the required court dates, the person who put up the bond will get the money back at the end of the case (although sometimes the clerk will take out fines and costs if they are ordered as part of a sentence).

The rules are different for violation of probation cases.  People with new cases have certain due process rights that allow those defendants to take positions and have hearings on issues related to probable cause for arrests and bonds.  However, people who are on probation at the time of a new arrest do not have all of the same protections.  For instance, if a person is on probation and is arrested for a new case, that person’s bond may be revoked based solely on that new arrest.  The new arrest must be a “qualifying offense” under the Florida statute (generally any serious felony offense), but only the arrest is necessary for a revocation of the bond.  Of course, an arrest is not evidence of guilt and everyone is innocent until proven guilty at that point.  However, because people on probation in Florida do not have the same rights as others, an arrest for many felony crimes is all it takes for a prosecutor to file a motion to revoke bond and a judge to grant it.

Practically, it is a very bad idea to get arrested while on probation. Some judges will revoke a person’s bond based on just about any new arrest while on probation.  Additionally, not only will the person have a new case to deal with, but will have a separate probation violation case.  The new case has a higher standard of proof the state must meet- beyond a reasonable doubt.  However, the probation violation case has a much lower standard- preponderance of the evidence, which basically means more likely than not.  Prosecutors know that a new case may be weak from an evidentiary standpoint, but if the person is on probation, the state is much more likely to win at a probation violation hearing in front of a judge rather than a trial in front of a jury.  This gives the state a lot of leverage, even with weaker new cases.

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In Florida, many criminal cases involving drugs and guns result from traffic stops.  A police officer will conduct a traffic stop and become suspicious or allegedly discover evidence of illegal activity and search the vehicle.  A search of the vehicle can be based on consent, which the driver or occupant never has to give.  Or, sometimes the police officer will call a drug K-9 to the scene that alerts to the odor of narcotics.  These searches can be questionable if the police officer keeps the vehicle and driver at the traffic stop for an unreasonable period of time while waiting for the drug dog.  There are other methods the police use to search vehicles after a traffic stop, but requesting consent is a common one.

Not every traffic stop involves a vehicle.  People in Florida need to be aware that the traffic laws apply to people on bicycles as well.  The police can stop a bicycle for running a stop sign or a red light just like a vehicle.  However, the initial stop of the vehicle, or bicycle, must be legally valid in order for any search or arrest thereafter to be valid.

In a recent possession of crack cocaine case south of Jacksonville, Florida, the suspect was riding his bike against traffic.  Florida law says a bike must ride with traffic, just like a car must.  Of course, people ride their bikes against traffic all of the time and the police ignore it, but in this case, they stopped the rider.  While issuing the rider a citation, the police officer asked him if he had any drugs or guns in his possession.  The rider admitted to having crack cocaine.  The police officer searched him, found the cocaine and arrested him for possession of crack cocaine.

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In Florida, the DUI (driving under the influence of alcohol or drugs) laws come with minimum mandatory penalties for a conviction.  These penalties increase for each successive DUI a person gets.  One benefit of a criminal defense lawyer getting the state to amend a DUI charge to a reckless driving charge is the reckless driving charge does not count as a DUI conviction that increases the minimum penalties if the person gets one or more additional DUI convictions.

One of the minimum penalties that comes with a DUI conviction is a suspension of the person’s driver’s license.  The suspension can be as short as six months for a first DUI conviction or as long as ten years for a third DUI conviction that is within ten years of the prior conviction.  The DMV does allow people to get hardship licenses which permit people to drive to work, school and other necessities, but there may be a period of time before a person can apply for a hardship license depending on the case.

If a person gets a fourth DUI conviction in Florida, that person’s driving privileges will likely be revoked forever.  That is mandated by statute in Florida.  However, not all convictions count.  In a recent DUI case from Jacksonville, Florida, the DMV attempted to permanently revoke a person’s driving privileges based on four prior DUI convictions.  However, it was noted that one of prior DUI convictions was a violation of a city ordinance, rather than a Florida state statute.  The criminal defense attorney appealed the permanent suspension.  The court agreed and held that a DUI conviction that is a violation of a city or municipal ordinance does not count as one of the four prior DUI’s that can result in a permanent driver’s license suspension.  The prior convictions must be violations of state DUI laws.  The conviction at issue was an old DUI conviction that related to an old city ordinance.  However, the DMV can go back as far as they want to count prior DUI convictions.  If a conviction is 40 years old, it can count, as long as it is a state DUI violation.

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Cyberstalking-Blog
A 20 year old student at the University of North Florida was recently the victim of a man who created fake social media accounts using her name and likeness.  Her Facebook photos were used to create fake social media accounts on Instagram and Tinder.  The fake accounts requested money be sent and stated that the victim was “sexually ready.”  So, was this a crime?  And if so, what crime was it?

The young man that created these fake social media accounts was arrested and charged with Cyberstalking.  Cyberstalking is defined in Florida Statute Section 784.048(1)(d) and requires:

  1. engaging in a course of conduct to communicate, or to cause to be communicated, words, images, or language,
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We at Shorstein, Lasnetski & Gihon do not handle much in the way of family law matters, but we came across a case that illustrates a possible connection between an order that is common in divorce cases and a potential criminal violation in Florida courts.  In divorce cases where a minor child is involved, custodial rights will have to be worked out between the parties or determined by the judge.  Obviously, custody issues regarding one or more children can be very contentious in divorce cases, along with other issues such as alimony and division of property.  One or both parties may not be happy with the outcome and how much time he/she gets with the child or children after the divorce is final.

When it comes to family law child custody orders, violating the order can have serious consequences.  In a case just south of Jacksonville, Florida, the parents divorced, and the judge ordered shared custody between the parents.  The father violated the order and took the child away without allowing the mother to have contact with the child for several months.  When the father and child were found, the father was arrested for kidnapping and concealment of a child contrary to a court order.  The concealment charge is the one related to the family court order.  That Florida statute makes it a crime to take a minor outside of the state of Florida or conceal the location of the child in violation of a custody order of which the parent is aware.  A violation of this statute is a third degree felony which is punishable by up to five years in prison.

The criminal defense lawyer moved to dismiss the concealment charge arguing that the custody order did not require the father to disclose the child’s location to the court.  This argument was rejected.  A concealment crime occurs if a parent conceals the child’s location from the court or the other parent who is entitled to custody if it is in violation of an order.

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On July 6th, 2016, Corrine Brown, along with Elias Simmons, was indicted on a twenty four (24) count federal indictment.  You heard me right, folks.  24 counts.  The charges all stem from her relationship with a organization called the One Door for Education – Amy Anderson Scholarship Fund.  The basic allegations are that Corrine Brown, when she was a congresswoman, would solicit contributions to this fund.  The proceeds from the contributions were supposed to go to scholarships.   The government has alleged that the vast majority of the money taken into this scholarship fund went into the pockets of Corrine Brown, Elias Simmons and others.  Specifically, the federal government has alleged that out of approximately $800,000 contributed to the fund, only about $10,000 went to actual scholarships.  So let’s break this down and look at the various charges.

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The Government alleges that Corrine Brown and others solicited money into the One Door for Education Scholarship Fund and then deposited some of those proceeds into their personal accounts for personal use.

Count 1 – Conspiracy to Commit Wire Fraud and Mail Fraud

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When the police are investigating a crime in Florida and seize property that they believe is proceeds of criminal activity or used to facilitate criminal activity, a forfeiture case might result.  A forfeiture case is a separate case where the state attempts to assume ownership of property that they seize as part of a criminal investigation.  Civil forfeiture cases receive a lot of criticism in Florida and other states, and for good reason.  The forfeiture laws allow the police to take people’s property and hold onto it indefinitely.  There is a low threshold for the state be able to keep the property and, as a practical matter, it is often the job of the claimant to prove the property was legitimate in order to get the property back.  This process can take months or years to resolve.  In many forfeiture cases, it seems more accurate to say the person trying to reclaim his/her property is guilty until he/she can prove innocence, at least in relation to the property at issue.

Another characteristic of forfeiture cases that many people do not understand is that the state does not need to convict a person of a crime in order to be allowed to forfeit the property that is allegedly related to a crime.  A person can be found not guilty at trial or the criminal case can be dropped, yet the state can still successfully forfeit property.  In fact, the police do not even have to arrest anyone and the state does not even have to charge anyone in order to move forward with a civil forfeiture case.  We have handled several cases where an arrest of anyone was never even a consideration, but the state still attempted to forfeit large sums of money.

Needless to say, in practice, the state’s practice of forfeiting property is very questionable.  As favorable to the state as it may be, there is, in fact, a procedure whereby a person can claim and try to recover his/her property.  Forfeiture cases in Florida are considered civil cases.  As a result, the rules of civil procedure apply.  This is good in some respects as it allows for broad discovery (collecting evidence from the other side) procedures.  On the other hand, it is bad for claimants as the state has a lower threshold to win its case.  The state’s burden is a preponderance of the evidence (just greater than 50%) rather than the higher standard of beyond any reasonable doubt in criminal cases.