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A Motion to Dismiss a request to a judge to throw out a count or counts against you.  In Florida, there are several different types of motions to dismiss that your criminal defense lawyer can file, including motions based on being pardoned, double jeopardy, and immunity. However, the most common motion to dismiss in criminal law is commonly referred to as a C4 Motion.  A C4 Motion, under Florida Rules of Criminal Procedure 3.190(c)(4), alleges that there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.

When would a Motion to Dismiss be appropriate in my case?

A C4 Motion to Dismiss is not going to be appropriate in most cases.  Whenever there is any disputed facts in a case, your attorney would not file a motion to dismiss because the prosecutor would file a traverse and the judge would deny the motion without a hearing.  A C4 motion is only appropriate when you and the prosecutor agree on all of the material facts, but you disagree on whether you committed a crime.  For example, if you were charged with child abuse after a video of you spanking your child was discovered and disclosed to the police, the material facts would probably not be in dispute.  The facts that led to the charge are on video for all to see.   However, the prosecutor may allege that you committed child abuse and your criminal defense attorney may file a motion to dismiss alleging, as a matter of law, there was no crime committed.  In other words, your attorney would look at the statute and the prior case law and try to convince the judge that your actions did not rise to the level of child abuse.

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A motion to suppress is an important arrow in the quiver of any criminal defense attorney.  It is a weapon to defend the true meaning of the Fourth Amendment to the Constitution of the United States.  It is a powerful tool that protects all Americans from unreasonable searches and seizures by law enforcement officers.  Anytime a law enforcement officer detains you, searches you or your property, or seizes you or your property, there is a question whether that detention, search and/or seizure was lawful and reasonable.  Your criminal lawyer would file a motion to suppress and the burden would be on the State to prove the police action was lawful and reasonable.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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adobe-spark-post-10A Federal Grand Jury is an integral part of almost any federal criminal case.  Grand jury testimony often becomes a key issue in a federal criminal trial.  But what is a Grand Jury exactly?  How is it different than any other jury?  How is the federal system different than in the Florida criminal justice system?   What are your rights when it comes to a Grand Jury?

What is a Federal Grand Jury?

A Federal Grand Jury is a group of citizens that come together to determine whether there is probable cause to issue an indictment in federal court.  An indictment is the charging document that lays out the crime or crimes that a person is being charged with.  A Grand Jury must have between 16-23 people.  The Grand Jury will generally meet over the course of several months and will sit for many cases.  The court will appoint one foreperson to serve as a type of chairperson who organizes and leads the discussions.

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A twenty seven year old soccer coach has been arrested for interference with the custody of a minor after leaving Jacksonville, Florida with a 17 year old girl.  Mr. Rodriguez’s criminal defense lawyer will surely challenge any allegation that the girl was taken against her will or that there was any nonconsensual sexual contact, but does that matter?  What is the age of consent in the State of Florida?  Is it a crime to have a sexual relationship with a 17 year old?  What if it is consensual?  Let’s break down the law in the State of Florida as it relates to sex offenses between two consensual people, one of whom is younger than 18 years old.

What is the age of consent in the State of Florida for a sexual relationship?

In the State of Florida, the age of consent is eighteen (18) years of age.  This means that anyone younger than 18 years old cannot consent to sexual contact.  It is a crime for any person of any age to have any sexual contact with a minor that is 15 years old or younger.  There are specific requirements for minors that are between 16 years of age and 18 years of age.  So, two minors or one minor and one young adult that engage in willing sexual contact could be in violation of very serious sex offense statutes, which could result in incarceration and being labeled a sex offender.

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Bernandino Bolatete has been arrested and charged by criminal complaint in federal court in Jacksonville, Florida after threatening to a mass shooting at a local mosque.  But what he has initially been charged with might surprise you?  Rather than a charge related to a terroristic threat, Mr. Bolatete has been charged with knowingly receiving and possessing a silencer that was not registered to him in the National Firearms Registration and Transfer Record.  26 U.S.C. §5861(d) makes it a federal offense to receive or possess certain unregistered firearms.  Included in the definition of a firearm under the applicable section is a silencer.  Mr. Bolatete is charged with receiving and possessing a firearm provided to him by an undercover officer.

What is the National Firearm Registration and Transfer Record (NFRTR)

The National Firearm Registration and Transfer Record (NFRTR) is a national registry of certain firearms that are subject to the National Firearms Act.  It is a federal criminal offense to possess or receive certain firearms that have not been registered to you in the NFRTR.  The Act only applies to certain firearms.  The registry includes:

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One of the more common cocktail party questions criminal defense attorneys get asked is whether you can get a DUI while driving a golf cart, or even riding a bicycle.  In Florida, the answer is yes.  You can be arrested, charged, convicted and sentenced for DUI (Driving Under the Influence) for operating a golf cart or a bicycle while under the influence of alcoholic beverages or controlled substances to the extent that your normal faculties are impaired.  This will become more and more of an issue with the creation and expansion of golf cart communities, like our very own Nocatee in Ponte Vedra, Florida, where you will see scores of golf carts traveling between residences and local bars and restaurants on a daily basis.

Surely I can’t get a DUI on a lawn mower or a horse?

AdobeStock_117707955-300x200Believe it or not, yes, you can.  Florida’s DUI statute, Fla. Stat. §316.193, prohibits a person from driving, or being in actual physical control of, a vehicle while under the influence of drugs or alcohol or while having a .08 BAC level or more.  Notice that the word “motor” is not present before the word “vehicle.”   The legislature specifically wanted the DUI statute to apply to more vehicles than just motor vehicles.  So, what is the definition of a vehicle for purposes of the DUI statute?

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The criminal defense attorneys of SLG Law often get calls from people asking us what they can and can’t do when it comes to recording people.  A mother in Virginia recently found out the hard way that recording someone without their knowledge can lead to felony charges.  According to the article, the mother was concerned about another child at school bullying her child.  She wanted to get proof of the bullying, so she sent her child to school with a recording device.  Recording devices are prohibited at the school and school officials discovered the device.  Subsequent to an investigation, the mother was charged with a felony for violating state law relating to recording someone’s communications without their knowledge.  So, what about here in Jacksonville, Florida? What is the law in the State of Florida as it relates to recording people?

What is the law in Florida relating to recording other people’s conversations?

Florida Statute Section 934.03 lays out the law as it relates to recording someone’s communications.  Florida is a two-party consent state.  This means that all of the parties to the conversation must consent to recording of the conversation for the act of recording to be legal. A person who violates this law can be charged with a third degree felony punishable by up to five years in prison.

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adobe-spark-postThe Florida Time Union released a story with some eye-popping statistics relating to the use of pedestrian citations in the city’s most crime ridden areas of Jacksonville.  Jacksonville criminal defense attorneys often challenge these pretextual stops, but the case law continues to generally support the use of profiling, as long as there is a lawful basis for the stop.  With so many pedestrian safety statutes on the books, it’s easy for a law enforcement officer to pick and choose who the officer wants to stop and question, under the guise of pedestrian safety.

Jacksonville Sheriff’s Officers will often conduct a stop and talk or a stop and frisk search on individuals they believe are suspicious and if they uncover something illegal, they will make an arrest.  But what effect does their detention have on a citizen who has done nothing wrong?  Won’t that person feel profiled?  Unjustly singled out?  How big of a group is this?  How many citations do the Jacksonville Sheriff’s Office issue where the person was engaged in otherwise lawful conduct and possessed nothing illegal on their person?  How many African American citizens have been stopped for violation of a pedestrian safety statute and not issued a citation simply so the Jacksonville Sheriff’s Officer could investigate them further?  An African American law abiding citizen living in a high crime area is sure to carry resentment if he or she feels continually harassed or is cited for violations of pedestrian safety statutes that are not enforced in the low crime, white areas of Jacksonville.

Also disturbing, is the report that the Jacksonville Sheriff’s Office has been issuing hundreds of citations despite the person not actually violating the statute.  Whether this true or not, it seems like the end desire of law enforcement (to drive out crime in crime ridden areas of Jacksonville) is laudable, but some of the methods (pretextual stops and searches) may do more damage than good.  So many crimes in predominantly African American, low income neighborhoods require the cooperation of citizens who live in that community.   When those people don’t trust law enforcement because of what they consider constant, unjustified harassment, they are less likely to cooperate in a criminal investigation.  Murders, rapes, robberies, burglaries can all go unsolved or unprosecuted because the State lacks the witnesses and evidence to proceed.  It would seem that if the Jacksonville Sheriff’s Office spent more resources providing more law enforcement officers for those particular areas that need them the most and if those law enforcement officers developed, groomed, and maintained positive relationships with the citizens of those communities, more crimes would get solved and successfully prosecuted.

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In Florida, most DUI cases result from a police officer claiming to observe a person violate a traffic law.  The police officer conducts a traffic stop, claims to observe signs of impairment from alcohol or drugs and then initiates a DUI investigation.  DUI investigations normally involve various questions about where the driver has been, what the driver has been doing and how much the driver has had to drink.  The driver, of course, is free to refuse to answer any of these questions.  They are designed to discover evidence that can be used against the driver in a DUI case.  The police officer will also ask the driver to perform field sobriety tests.  These are completely subjective coordination tests that can be difficult and should be refused if the police officer does not have a video camera to record this critical encounter.  Finally, the police officer will normally ask the driver to submit to a breathalyzer test to measure the driver’s blood alcohol level.  Unfortunately, these tests are only given after the DUI arrest.  Therefore, a good number on the breath test will not change the fact of the DUI arrest.  The police officer has a right to request a breath test if there is probable cause to believe the driver is impaired.  While the driver can refuse the breathalyzer test, a refusal will likely result in a longer driver’s license suspension because of the Florida implied consent laws.

The police officer cannot ask for a blood test in normal DUI cases.  There are certain rules that dictate when a police officer can seek a blood draw alcohol test in a DUI case.  Failure to follow these rules will result in any blood alcohol test being thrown out of court.

A driver in a case just south of Jacksonville, Florida had wrecked his motorcycle, and the police officer arrived after the fact.  The police officer claimed to observe the standard factors such as odor of alcohol and slurred speech.  The police officer arrested the suspect for DUI and took him to the hospital due to a potential ankle injury.  At the hospital, the police officer requested a blood sample to test for alcohol content.  The police officer did not mention the possibility of a breathalyzer alternative.  The suspect agreed to the blood draw.  He was treated for an ankle sprain and released.  He was then taken to the jail.