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Whether through books or TV shows or movies, most people in Florida have heard the Miranda warnings and understand that the police are supposed to read them to a suspect after he/she has been arrested.  It is important that the police inform people of their constitutional rights upon their arrest.  Of course, this includes the right to always remain silent when police want to ask questions or take a statement and the right to consult with a lawyer before a suspect makes any statement or makes any decisions about his/her case.

However, the police do not have to read a person the Miranda warnings in every encounter they have with suspects.  The general rule is that the police are required to read Miranda warnings before any custodial interrogation.  In other words, a suspect has to be in custody to trigger this requirement.  Custody is generally defined as a situation where the suspect is not free to leave.  Obviously, if a person is being handcuffed and arrested, he/she is in custody.  However, it is less clear when the police confront a suspect to ask questions or bring the suspect to the police department to ask questions.  The other requirement is that the police are conducting an interrogation.  If the police approach a person and the person starts making statements on his/her own, that is obviously not a custodial interrogation that requires Miranda warnings.  If a suspect voluntarily goes to the police station and starts talking to the police, that likely is not a custodial interrogation either.  However, if any force or involuntary confinement is used and/or it is clear that the suspect cannot just stop and leave, that would be a custodial interrogation.

It is important to note that, whether an encounter with police is a custodial interrogation or obviously a consensual and casual interaction or something in between that is not so clear, a suspect or defendant always has the right to remain silent and request a lawyer before anything critical to the case happens.  And in just about every situation, that is exactly what a suspect or defendant should do.  Many, many cases get a whole lot worse for suspects and defendants when they make the decision to talk to the police without knowing all of the facts and issues about their case.

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In Florida, most DUI (driving under the influence of alcohol or drugs) cases are the result of a police officer claiming to observe a suspect violating some traffic law while driving, after which the officer conducts a traffic stop and DUI investigation.  Other times, which occur in the Jacksonville, Florida area from time to time, the police set up a DUI roadblock and check drivers as they pass through the checkpoint.  In these cases, the police observe the suspect driving the vehicle, and if they can prove the driver was impaired from alcohol or drugs, the police observe all of the elements necessary to prove a DUI charge ad can move forward with a DUI arrest.

This is important because there is a law in Florida that essentially says the police cannot arrest a person for most misdemeanors unless the police actually observe the suspect commit the misdemeanor crime.  Again, this usually is not an issue in DUI cases because most DUI cases result from traffic stops.  But, there is a small subset of DUI cases where this can be an issue for a criminal defense lawyer to pursue.  For instance, consider a case where a civilian or even a non-state law enforcement official observes a suspect driving while impaired and calls the local police to report it.  When the police locates the DUI suspect, the suspect has already parked and exited the vehicle.  The police officer might conduct a DUI investigation and determine that the suspect was impaired from alcohol or drugs, but the police officer cannot arrest the suspect for DUI.  In this case, someone might have seen the suspect driving while impaired, but the police officer did not.  If the police officer did not observe that element of the crime, the police officer cannot arrest the driver for DUI.

There are two exceptions to this rule.  Local police officers who have authority to investigate such crimes can relay the required information to another police officer who can make an arrest.  For instance, police officer A observes a suspect driving erratically and pulls the suspect over.  Police officer B arrives to take over the DUI investigation and police officer A tells officer B what he observed.  Officer B finishes the DUI investigation and arrests the driver.  Fellow officers are considered interchangeable in this scenario.  The other exception involves traffic crashes.  A police officer who responds to just about any type of crash that involves an injury and/or any property damage can investigate the case for a potential DUI and make an arrest even if the police officer arrived after the crash and did not observe anyone driving.  The state still must prove the DUI suspect was driving or in control of the vehicle, but the police do not need to have observed it for an arrest in these types of DUI cases.

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After a person is convicted of a crime in Florida, whether as a result of a guilty or no contest plea or a jury trial, it is up to the judge to determine the defendant’s sentence.  Of course, if the criminal defense lawyer and the prosecutor work out a deal as part of a guilty or no contest plea, the judge still has to agree to accept the deal, but judges will normally go along with a deal worked out by the two sides.  Minimum mandatory penalties for some crimes in Florida can limit a judge’s discretion in sentencing.  However, if a defendant enters a plea without a deal with the state or a person is found guilty at a trial, the judge will usually be the one to decide the defendant’s sentence without any limitations.

The sentence in such cases is usually determined at a sentencing hearing.  This is a hearing at which both sides can present witnesses, evidence and arguments to convince the judge to sentence the defendant as they see fit.  The parties can present a wide variety of information in aggravation or in mitigation to convince the judge of their position.  The judge is permitted to consider many different facts and opinions when determining a defendant’s sentence.

However, some facts are not appropriate for consideration at sentencing.  It is not uncommon for a sentencing hearing to take place several weeks, or even months, after a defendant enters a guilty or no contest plea or loses a trial.  Events that occur in between can be considered by the judge, for better or worse.  Examples of positive developments in between a plea and sentencing might be that the defendant obtained a new job or started a rehabilitation program.  On the other hand, if a defendant fails to appear at his/her sentencing hearing, that will almost always result in a higher sentence once the defendant is arrested on a warrant.

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In Florida, when a police officer stops a driver and suspects that he/she is driving while impaired from alcohol or drugs, that police officer will go through the normal DUI investigation.  That typically includes various questions about what the driver has been doing, where he/she has been and how much he/she has had to drink.  It is important for everyone to understand that you have a right to refuse to answer such questions.  In fact, it is usually a good idea to give your name, license, registration and insurance card and then request to speak to a lawyer.  As most people should know by now, anything else you say can and will be used against you in a DUI case.

The next step in a DUI investigation is normally to ask the driver to exit the vehicle and submit to field sobriety tests.  Again, it is usually a bad idea to perform these tests.  First and foremost, these are completely subjective tests (i.e. if the police officer says you failed, then you failed).  And these subjective tests are being conducted and graded by a person who already believes you are drunk.  Also, if there is no video in the police car documenting the tests, your ability to defend your performance in court later on is severely impaired.  Even if there is a video, the video will not catch certain critical parts of the testing, For instance, when the police officer conducts the HGN test where he asks you to follow the light with your eyes, he will say you failed, and the video will not be able to disprove that because it will not capture how you did on that particular test.

After the field sobriety tests, or your refusal to perform them, the officer will likely arrest you for DUI.  You are taken to the jail and booked.  Only after you are in the jail does the officer asks you if you want to blow in the breathalyzer.  Given the timing, the first thing you need to understand is that the breathalyzer will not save you from an arrest.  You have already been arrested.  It is just another tool the police use to try to convict you of DUI.  In Florida, when you obtain a driver’s license, you consent to blow into the breathalyzer as part of a lawful DUI investigation.  However, you can still refuse that request.  If you refuse a breathalyzer test as part of your first DUI, there are two primary repercussions.  As long as the DUI arrest is valid, your driver’s license will be suspended for a year (rather than six months if you take the breathalyzer test).  Secondly, if your DUI case goes to trial, the state can use the refusal against you in court and argue you refused the breathalzyer because you knew you would fail.  Of course, you and your criminal defense lawyer can argue the many other reasons why you rightfully felt like you should not have taken the breathalyzer.

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As readers of this blog know, we have written extensively on issues relating to marijuana and the legalization of marijuana.  It is a particularly relevant topic these days as more states legalize marijuana either recreationally, or as Florida did in the 2016 election, for medicinal purposes.  It is our belief that marijuana will ultimately be legal for all purposes in all states at some point.  However, getting there is going to be a long and arduous process.  Apparently, the election of Donald Trump and the appointment of Jeff Sessions as Attorney General will not do much to advance the legalization movement.

As stated, Florida did achieve a small victory in November as a majority of voters approved an initiative to legalize medical marijuana in Florida.  I decided to write this article to give people a little better understanding of what that means in Florida and to alert people that Shorstein, Lasnetski & Gihon is prepared to assist professionals who are seeking to enter the marijuana industry in Florida.  As Colorado, Washington, Oregon and other states have shown in a short period of time, the marijuana industry is going to be tremendous.

So what new rights does the Florida medical marijuana law confer on qualified people in Florida?  It allows people with certain medical conditions to obtain a certificate from a doctor that can be used to ultimately obtain marijuana to treat those conditions.  The law does not allow just anyone with any medical problem or aches and pains to go to any doctor and request a certificate for medical marijuana.  Only certain medical conditions qualify.  Those include: ALS, cancer, HIV/AIDS, Crohn’s disease, epilepsy, glaucoma, multiple sclerosis, Parkinson’s disease and PTSD.  As you can see, these are very serious medical conditions of which a patient must have a documented record to move forward with medical marijuana treatment.

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When most people think of the crime of burglary, they think it involves someone breaking into a home or other building and stealing something that is inside.  In fact, in Florida the crime of burglary is much broader than that.  First, it can involve just about any building, including vacant buildings, and it can also involve other structures like a car or a boat.

Next, a person does not have to steal something inside the conveyance to be guilty of burglary.  If a person enters the conveyance with the intent to commit any number of crimes, that can be a burglary.  Finally, it is not even necessary for the perpetrator to enter the structure.  Putting a hand through a window can be sufficient for a burglary conviction.

In a recent burglary case south of Jacksonville, Florida, the defendants planned to burglarize a home and walked onto the porch in front of the home.  They tried to get into the home, but they could not find a way in.  Someone saw them and called the police.  They were arrested as they were leaving the home and ultimately charged with burglary of a dwelling.

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In alleged DUI cases that involve serious accidents, the police are often not able to perform their usual DUI investigations which include field sobriety tests and a breathalyzer test, if the suspect consents to them.  If the suspect is in no condition to perform those tests due to injuries from the crash or is taken to the hospital, the police cannot perform the normal DUI investigation.  If the police are able to develop probable cause that the suspect was driving while impaired from alcohol or drugs, there are ways for the police to continue investigating a DUI after a crash.

The police officer can go to the hospital and request that the driver submit to a blood draw. After the blood is taken from the DUI suspect, the police send it to the crime lab where it is tested for drug and alcohol content.

However, as a result of a United States Supreme Court case that was decided in 2013, the police cannot take a DUI suspect’s blood without consent from the suspect or a search warrant.  The state used to be able to argue that they did not need a search warrant due to exigent circumstances inherent in a DUI case- that alcohol is constantly metabolizing in the blood and as time passes, getting an accurate blood alcohol reading becomes more difficult.  The recent Supreme Court case rejected that argument.  The general rule is that a blood draw is considered a search under the Constitution so the police need consent or a search warrant to obtain someone’s blood.

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Florida, like many states and the federal government, has some draconian asset forfeiture laws.  For some reason, the state’s practice of forfeiting property from suspects based on very little evidence does not get much coverage, but taking property from people suspected of committing crimes is a favorite practice of police all over Florida.

As you likely know, when the state accuses someone of a crime, that person is innocent until proven guilty, and the state has the burden of proving guilt beyond any reasonable doubt.  The rules are quite different in forfeiture cases.  In asset forfeiture cases, the police can take a person’s property based on mere suspicion of criminal activity, and the state gets to keep that property while forcing the claimant to jump through a variety of hoops to try to get the property back.  While the state has to prove some connection between the property and criminal activity, as a practical matter the claimant generally has to prove there is no connection between the property and any criminal activity.  In some cases, the state can forfeit a person’s property even where the state acknowledges it does not have sufficient evidence to charge anyone with a crime.

In theory, at least, if the state wants to forfeit a person’s property, the state generally has to establish that the property represents proceeds from certain illegal activity (i.e. drug sales proceeds) or the property was used to facilitate certain criminal activity.  A recent case south of Jacksonville, Florida shows just how little the state needs to do to proceed with a forfeiture of a person’s vehicle.  In this case, the police were executing a search warrant and found a pipe with Methamphetamine residue inside a nice vehicle.  Often, the standard for whether the police decide to proceed with asset forfeiture is how much they like the property and whether it is paid off.  New vehicles that are paid off are good forfeiture targets.  Older vehicles or vehicles with large loan payments are not.  In any case, this was a nice vehicle that contained a small pipe with a small amount of Methamphetamine residue in it.  The police seized the vehicle for forfeiture.

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In most cases, if the police want to search your residence for drugs, guns or other evidence of criminal activity, they need consent from the owner or someone with authorization or a search warrant.  However, there are some exceptions.  One such exception is the hot pursuit doctrine.  The hot pursuit doctrine involves cases that fall into a subset of exigent circumstances cases.  Exigent circumstances generally include emergency situations where the police have a right to conduct a search or seizure and do not have time to get consent or a search warrant.  For example, if the police were patrolling an area and heard gunshots and screaming inside a house, they would likely have the right to enter the home immediately without having to take the time to try to get consent or a search warrant.

The hot pursuit doctrine involves a situation where the police are chasing a suspect who they have reason to believe committed a crime and the suspect runs into an area that the police would normally need consent or a search warrant to enter.  However, due to the exigency of the chase, the police are allowed to enter the property to continue chasing the suspect.

While this does allow the police to enter properties without the usual need for consent or a search warrant in some situations, its applicability is limited.  The greatest protection people have under the Fourth Amendment is in their homes.  As a result, the law does not allow police to disregard the search warrant requirement in every case where they are chasing a suspect.  The hot pursuit doctrine is normally reserved for situations where the police are chasing someone who presumably committed  a felony crime.  If the police are going to be allowed to just run onto or into someone’s property, they need to be chasing someone who allegedly committed a more serious crime.  The less serious the crime the suspect is presumed to have committed, the less likely the police will be allowed to circumvent the search warrant requirement.

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Can you walk into a federally licensed firearm dealer’s shop and purchase a firearm for someone else?  In other words, can your uncle Joe, who lawfully owns other firearms, give you $900 to go into the local gun shop to buy him a new semi-automatic?  The United States Supreme Court has said, “No.”  This sale, commonly referred to as a “straw purchase,” is illegal under federal law.  Even though both you and your Uncle Joe can lawfully purchase firearms, it is a crime to do that if you are the actual buyer on Form 4473, if you are actually purchasing the firearm for a third party.

Gun-shop-300x200In 2009, Bruce Abramski, a former police officer, walked into a local gun shop and purchased a firearm for his uncle. His uncle sent him $400 to make the purchase. Under federal law, the firearm dealer was required to record the buyer’s name, age and place of residence. Abramski filled out ATF Form 4473 stating that he was the actual purchaser. Abramski walked out and immediately transferred the firearm to his uncle. Both Abramski and his uncle were eligible to lawfully purchase a firearm from a federally licensed firearm dealer.  Neither one was a convicted felon or otherwise a prohibited person.

So, why wasn’t what Bruce Abramski did legal under the Second Amendment?