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As many people know, the federal government classifies certain drugs according to a schedule.  In fact, the Drug Enforcement Agency is permitted by statute to make the rules which determine in which class a particular drug belongs.  Criminal statutes and penalties are enacted based on those classifications.   Schedule I drugs are considered the most dangerous and the most addictive.  Examples of Schedule I drugs are heroin and LSD.  Schedule V drugs are the least dangerous.  An example of a Schedule V drug is the cough medicine Robitussin.

Despite Schedule I including the most dangerous and addictive drugs and substances that have no accepted medical value, cannabis, or marijuana, is still considered a Schedule I drug.  Basically, the federal government is saying  marijuana is just as bad as heroin and bath salts.  Also, despite the fact that doctors all over the country, and all over Florida, are prescribing marijuana to patients to treat a variety of medical conditions, the federal government is saying that marijuana has no accepted medical use. By definition, in order to be a Schedule I drug, a substance must have no accepted medical value.

This kind of government ignorance and corruption would be silly if it wasn’t resulting in people going to prison for having marijuana.  In some marijuana cases, criminal defense lawyers are making the legal argument that it is not constitutional to punish a person for having a Schedule I drug that has no medical use when we are dealing with a substance that medical doctors all over Florida and the country (and all over the world) are prescribing to patients for medicinal purposes.  That seems like an obvious and logical argument that cannot lose in any tribunal where logic and reason are considered useful tools for decision making.  However, anyone who believes logic should win the day underestimates just how backwards our government is, and just how addicted government officials are on campaign donations from billion dollar pharmaceutical companies.  Financial influence is a formidable opponent of reason and justice.

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Florida Gator head football coach recently told the media that he has received death threats following a few losses on the field.  Coach Mac shrugged those threats off as part of the job, but he is probably quite concerned for the safety of his family.  So what protection does Coach Mac have if law enforcement were able to track down the people responsible?  Well, there is a huge distinction in Florida law between written threats and verbal threats.  Written threats are treated much more harshly than verbal threats in the State of Florida.  Once they are made (and often they are made in a spur of the moment fit of anger or frustration with no intent to carry through with the threat), they often leave a trail of evidence that leads back to the author.  So what are written threats under Florida law?

WRITTEN THREATS

Written threats are covered by Florida Statute Section 836.10, which makes it a second degree felony to send a written threat.  A second degree felony is punishable by up to 15 years in prison.  So what does the State have to prove in order to convict someone of “written threats?”  Lets break it down:

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In Florida, the police can stop a driver if that officer observes the driver commit a traffic violation.  This is a detention under search and seizure law, but it is justified based on the fact that the driver apparently committed a traffic violation.  Many DUI cases start this way in Florida.  However, if the violation is merely a traffic violation, the police officer can generally only keep the driver for the purpose and only as long as it takes to write a traffic ticket.  If the police officer keeps the driver for an extended period of time without specific evidence of criminal activity, it is likely a violation of search and seizure law.

Another detention occurs when the police officer asks a driver or other occupant of the vehicle to exit the vehicle.  A criminal defense lawyer would argue that pulling a person out of a vehicle during a routine stop is an illegal detention.  If so, that criminal defense attorney could have any evidence seized thereafter suppressed due to the illegal seizure.

In a recent gun case just south of Jacksonville, Florida, the defendant was stopped for having an illegally tinted window.  The police officer ordered the defendant out of the vehicle while they had a drug dog sniff the vehicle.  When he opened the door to exit the vehicle, the police saw that he had a handgun under his seat.  Since the defendant was a convicted felon, he was arrested for possession of a firearm by a convicted felon.

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In Florida, the definition of battery is very broad.  Of course, if you hit a person or strike them in a violent way, that would qualify as a battery without a reasonable defense, like a valid self defense claim.  But the Florida definition of battery also includes an unauthorized touching.  People touch other people in all sorts of ways.  According to the Florida battery statute, that contact can be considered a criminal battery if the touching was unauthorized.  With a statute worded so broadly, we rely on the police and the prosecutor to only make arrests and file charges when the conduct is intentionally malicious and properly serious.  Of course, giving the government broad powers and relying on them to use their powers with deliberation and reservation is a scary thought.

In any case, it is rare to see the state charge a person with battery when the contact is minimal.  It does happen, but fortunately it is not common. In a recent case near Jacksonville, Florida, a kindergarten teacher was convicted of battery after an altercation with a child at school.  The kid was behaving poorly by yelling, throwing things and spitting.  The teacher smacked the child but said she did it to try to block his spitting and throwing things at her.  The child was not injured.  Another teacher saw the incident, the police were called and the teacher was arrested for battery for intentionally touching the child against his will.

This case was different than a normal battery case because the defendant was a teacher.  Teachers are presumed to be similar to parents under Florida law when the child is in the custody of the teacher.  Teachers, like parents with their kids, have the obligation to supervise and control their students, and along with that, they have the right to discipline the children who misbehave.  This includes the right to reasonable physical punishment.  The criminal defense lawyer appealed the teacher’s conviction for battery.  The appellate court agreed that the teacher had the right to reasonable discipline of the child who was behaving as this one was.

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In Florida, the police are generally not allowed to enter a person’s home to search or investigate a crime without permission from the homeowner or a valid search warrant.  In some cases, the police cannot even go onto your property to search or investigate if the property is properly fenced and it is clear people are not welcome on the property.  The right to privacy in one’s home is one of the strongest constitutional protections.

However, for homes that are not adequately fenced in, the police are normally allowed to go up to anyone’s door, knock and ask questions.  As long as it appears that the general public would be allowed to go up to a door and knock, the police can too.  The residents can refuse to answer the door or they can refuse to answer any questions if they do open the door, but the police are welcome to try and knock and see if they can get someone to talk or even let them in.  If the residents do not cooperate, the police are not allowed to take the encounter any further, at least according to the law.  In practice, the police do not like to take no for an answer and may act accordingly.

In any case, if homeowners or other residents do not want the public or the police to be able to just walk up to their doors, knock and try to get information, they need to make it clear that their property is not open to the general public.  Fences and gates work well to do this.  Signs can as well, but the sign needs to be clear.  There was a case in Jacksonville, Florida where a person growing marijuana in his house had a “No Solicitors” sign on his door.  He had no gate or fence and no other signs.  The police walked up to his front door, knocked, smelled marijuana when the door was opened and subsequently obtained a search warrant.  The homeowner was arrested for growing marijuana.

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A recent DUI case near Jacksonville, Florida had a couple of interesting issues.  Essentially, a police officer was in his patrol car but out of his jurisdiction.  He came across a person riding his motorcycle who had just crashed.  She went over to assist and ultimately determined that he had been driving while under the influence of alcohol (DUI).  The police officer kept the suspect at the scene until proper backup from the that jurisdiction could arrive.  Once a police officer in that jurisdiction arrived, he took over the DUI investigation and arrested the defendant for DUI.  By the time the second police officer arrived, the defendant was no longer driving or on his motorcycle.

The first issue is that a police officer cannot generally make arrests outside of his jurisdiction.  This first officer was in a different county.  It was nice that he went over to try and assist the defendant, but he was not legally authorized to make an arrest of the defendant for DUI. There are exceptions to this rule, for instance, where a police officer is chasing a suspect who goes into another county, or police officers have agreements in place with agencies in other counties or emergency situations where felonies occurred.  However, none of those applied here.

There is something in Florida law called a citizen’s arrest.  Citizens can arrest other people for felonies and breach of peace.  A police officer outside of his jurisdiction has the same right to effect a citizen’s arrest as a normal citizen does.  A DUI that does not involve a serious injury or death is not a felony, so if this was to be a valid citizen’s arrest, it would have to be considered a breach of peace.  A breach of peace is a generic legal term.  It is like obscenity- you know it when you see it, but it generally is going to require an element of disturbing the peace.  The court determined this was not a breach of peace situation as the defendant was not causing any disturbance to others when the police officer found him.  Certainly, erratic driving that endangers others could be a breach of peace, but this officer did not observe that.  Because there was no right to make a citizen’s arrest and this officer was not in his jurisdiction, the officer had no right to try and keep the defendant at the scene to wait for the second officer.

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In Florida, it is a crime for a person to drive a motor vehicle if his/her license is suspended and he/she knows it is suspended.  That last part is important because it is only a civil traffic infraction to drive with a suspended license in Florida if the driver is not aware of the license suspension.  In many cases, for first time violators, whether a person gets the civil citation or a criminal charge for driving with a suspended license will depend on how the officer who pulls the driver over feels.

If the state believes the driver knew he/she had a suspended license and drove anyway, the state will charge the driver with a crime.  Normally, it is a misdemeanor crime.  However, if a person has two or more prior convictions for driving with a suspended license, the state can charge the person with a third degree felony.  For the first or second violation, the penalties are usually minimal, especially if the defendant can obtain a good license while the case is pending.  Additionally, the state will often charge a person with the misdemeanor crime even if he/she has a few prior convictions because most prosecutors understand there are much more serious cases that should occupy their time.  However, once a person gets several of these convictions or once the person has been charged with a felony, jail time and/or future felony charges are a real possibility for subsequent violations.

A person’s driver’s license can be suspended for a few reasons, including a DUI, a marijuana possession conviction, unpaid tickets, too many points on the driving record, auto insurance issues and other reasons.  Judges often consider driving on a suspended license more or less serious, and more or less deserving of jail time, depending on the reason for the underlying suspension.  For instance, many judges in Florida will generally order jail time if a person is driving while his/her license is suspended due to a recent DUI conviction.  On the other hand, judges usually are not too concerned about suspensions due to unpaid tickets, especially if they are paid in a reasonable period of time.

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In most DUI (driving under the influence of alcohol or drugs) cases in Florida, a police officer will observe a person driving erratically or violate a traffic law and pull that driver over.  The police officer will claim to observe evidence that the driver is impaired from alcohol or drugs and proceed with a DUI investigation that includes questioning, field sobriety tests (if the driver agrees) and a request to submit to the breathalyzer machine.  There are other ways for DUI cases to start (an accident, a DUI checkpoint, a driver asleep in a parked vehicle), but this is the most common.

However, in a recent DUI case near Jacksonville, Florida, a police officer responded to a incident at a local bar. He observed the defendant next to her car, and believed that she was highly intoxicated.  He told her not to drive and warned her that he would pull her over if he saw her on the roads.  Approximately an hour later, the police officer drove to the bar and saw the suspect drive her car drive out of the parking lot.  Although she had not violated any traffic laws, he pulled her over.  He conducted a DUI investigation, determined that she was drunk driving and arrested her for DUI.

The criminal defense lawyer filed a motion to suppress the evidence and have the DUI case dismissed because the police officer did not have a legal basis for stopping the defendant.  A police officer must have probable cause to stop a driver, and that almost always comes from actually observing the driver commit a traffic violation.  At a minimum, a police officer normally has to testify that he/she observed the suspect drive erratically which prompted the officer to conduct a traffic stop and investigate a possible DUI.  In this case, there was no such improper driving.

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In a recent DUI case in Massachusetts, the state sought to prove that the defendant was impaired from marijuana while driving, thereby rendering him guilty of driving under the influence under that state’s DUI laws.  At the trial, the prosecutor had the arresting police officer testify that based on his observations of the defendant and the field sobriety exercises, the defendant was high on marijuana.  The defendant was convicted of DUI, and the criminal defense lawyer appealed.

The appeal was successful, and the DUI conviction was reversed.  The Massachusetts Supreme Judicial Court ruled that a police officer cannot legally testify that a defendant was high on marijuana based on observations and a field sobriety test.  The court noted that marijuana can have different effects on different people.  Also, the police officer was not an expert on marijuana and its varying effects on people (very few, if any, are; most seem to think they are).  As a result, the police officer’s testimony on that issue was improper to support a DUI conviction.

In just about every DUI case, the police officer is going to ask the suspect to submit to field sobriety exercises.  These are difficult balancing and related exercises performed under adverse circumstances.  The directions for each test can be confusing, and if a suspect says he/she does not understand them or needs for them to be repeated, the police officer will likely suggest that is evidence of impairment rather than the officer’s poor communication or explanation.  The tests are completely subjective, and the judge is a police officer who likely already believes the suspect is impaired, otherwise that judge would not have asked the suspect to perform them in the first place.  Sometimes the suspect’s performance is recorded on a police officer’s camera in his/her vehicle, but often it is not because many police officers do not have video cameras in their vehicles.  If the arrest is not recorded, whether the defendant did well on the field sobriety exercises or completely failed them is a matter of the police officer’s word against the defendant’s word.  However, because the effects of excessive alcohol intake are well known and fairly consistent among different people, police officers are allowed to testify that a defendant who allegedly failed the field sobriety tests was too impaired from alcohol to drive.  That is not the case with regard to marijuana, according to this recent Massachusetts case.

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In Florida, the process for a person getting out on bond while a criminal case is pending is usually fairly standard.  If the police officer obtains an arrest warrant to arrest a suspect based on a prior crime, the judge who signs the arrest warrant will normally also place a bond amount on that warrant.  After the arrest, if the defendant can make that bond, then he/she will be released pending the resolution of the case.  When the police arrest someone immediately after an alleged crime was committed without an arrest warrant, that defendant will normally see a judge the next day.  That judge will set a bond for the defendant then at what is called a first appearance hearing.  The defendant can then be released if he/she can make the bond.

The general rule is that anyone who was arrested has a right to a reasonable bond, and if he/she can make that bond, either by paying the full amount or by paying 10% or so to a bonding company, that person can be released from jail.  There is an exception to this general rule that can delay or even prevent a defendant from being released on bond even if he/she can come up with the money to pay the bond.  The state can file what is called a Nebbia motion to prevent a defendant from bonding out.  Essentially, if the state believes, regardless of whether there is any specific evidence to support this belief, that the money to be used to pay the defendant’s bail might come from illegal sources, the state can require the defendant to show that the money comes from a legitimate source.  This does not sound problematic on its face.  Defendants should not be able to use funds from illegal sources as bond money.  The problem is that a defendant is normally entitled to a reasonable bond at his/her first appearance hearing and should be released on that day if he/she can make a reasonable bond.  If the state files the Nebbia motion, many judges will not hold a hearing on that issue at the first appearance court date.  Some judges have never had such a hearing and are not comfortable conducting one when the case may ultimately go to another judge anyway.  Even if a judge is prepared and willing to hold the Nebbia hearing immediately, the defendant may need some time to get evidence and witnesses to court to prove where the bail money is coming from.  Judges do not hold these kinds of hearings every day.  If the hearing needs to be postponed for whatever reason, it could take a couple of weeks before the defendant could have a chance to prove the legitimacy of the bond money and bond out.

The bond system in Florida is already rife with injustice.  Obviously, although it is much worse than most people know, it favors people with money and severely hinders poor people.  All day, every day there are people who plead guilty to a criminal charge without seeing the evidence and without a meaningful consultation with a lawyer because they want to get out of jail quickly and can not afford to make a bond or wait several weeks for the next court date.  The Nebbia inquiry, which the state can request on a mere hunch in all sorts of different cases, adds another questionable procedural hurdle for people to be released who are innocent until proven guilty at that stage of the proceedings.