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In Florida, there is a criminal statute that addresses the neglect of a child.  The statute is problematic because it is broadly written.  The effect is that police officers have very broad discretion to arrest a person for child neglect.  And prosecutors similarly have wide discretion when deciding whether to file charges.  As a result, a police officer’s opinion, normally based on very limited information, about how a parent should raise or deal with a child takes precedence over the parent in response to situations that may or may not involve actual negligence.

The Florida statute does not just apply to parents.  Any caregiver who neglects a child can be charged with child neglect in Florida.  Child neglect is a serious felony charge.  It becomes more serious if the child is injured as a result of some incident relating to the alleged neglect.  If there is no injury, child neglect is still a third degree felony.  It is a serious charge for a crime that may be reasonable parental conduct that a police officer just disagrees with.

For example, we have handled several cases where a parent decides a child or children are old enough to be left alone at home for a period of time.  Something happens, maybe there’s a knock at the door or the kid breaks something and cannot reach the parents, the kid panics and ultimately the police respond to the home.  If whichever police officer responds to this situation decides the kid should not have been left alone, not knowing the history and circumstances of the kid and the parents, then the parents will get arrested for a serious felony charge.  And we find that some police officers do not like responding to situations and coming away empty handed.  The old- I will arrest these people and let the lawyers and the judge figure it out approach.  This is not an uncommon scenario.

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In Florida, and likely in all of the other states as well, it is illegal for a person to prevent another from reporting a crime or otherwise providing information about criminal activity to the police or in court.  This is part of a more inclusive statute dealing with witness tampering.  The Florida law makes it illegal for a person to use force, intimidation or threats to cause another person to avoid testifying or providing evidence in a case, damage or alter evidence, avoid a subpoena or testify falsely.  It is also illegal to hinder a person from reporting a crime.  This is a felony crime in Florida, and it becomes a more serious felony the more serious the underlying issue is.  For instance, a person can be charged with a life felony of tampering with a witness if the person is obstructing a witness relating to certain serious first degree felony crimes.

This situation can come up in almost any case, but it comes up more frequently in domestic violence cases.  Since the parties know each other in domestic battery cases, the dynamic is one where it is more likely that the suspect will takes steps to try and prevent the victim from calling the police, giving a statement to the state or coming to court to testify.  If force, threats or intimidation are used, this could be a separate crime.

A person can be guilty of tampering with a witness even if the witness or victim has not taken any steps to contact the police or report a crime.  In a recent case near Jacksonville, Florida, the defendant was being abusive to his daughter.  The kid’s mother and sister observed the incident.  After some yelling, the defendant took the cell phones from the older sister and mother and broke one of them.  He kept the other.  He told them they could not call the police on him for his abuse.  No one had attempted to call the police and report the abuse before the defendant took the cell phones.  The defendant was charged with tampering with the two witnesses for preventing them from calling the police.

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Most of the posts on this blog deal with various areas of Florida law or new trends in the law.  A subset of posts deals with the overly aggressive police and prosecutors who makes arrests and charge cases when either the law does not support it or the equities of the situation suggest government intervention is not necessary or appropriate.

In this case near Jacksonville, Florida, a bonding company agreed to post bond for a defendant.  The person putting up the bond provided the title to his vehicle as security for the bond.  The bond process in Florida works as follows: when a person is arrested, a judge will set a bond for that person in just about every case.  Once the bond is set, for example at $10,000, the defendant will remain in custody until his case is resolved unless a person posts a bond.  There are generally two ways to post the bond.  Someone can pay the full amount of $10,000 to the jail in cash. The benefit of this is that the person will get the money back (minus fees and costs in some cases), when the case is over no matter how it ends as long as the defendant does not skip court and run away.  Or, the person can pay a bonding company to bond the defendant out.  In this case, the bonding company will normally take 10%, or $1,000, as the fee.  The benefit to this is the person only has to come up with 10% of the bond, but that 10% is gone once it is paid because that is the fee to pay for the service the bonding company provides.  The bonding company is responsible for the other 90%.  However, many bonding companies will require security for that other 90% in case the defendant does run away.

In this case, the person gave the bonding company the title to his car as collateral.  The bonding company would have a right to claim the car if the defendant fled.  If not, the bonding company would return the title once the case was over.  The defendant ultimately fled, and the bonding company was forced to pay the full bond.  The bonding company went after the person who paid the 10% of the bond for the rest of the bond amount.  That person could not pay so the bonding company sought to take the vehicle.  After the bonding company representative took the vehicle, the owner reported the vehicle stolen.  The police arrested the bonding company agent for grand theft of the vehicle.

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In Florida, there is a law called implied consent.  This means that when you agree to accept driving privileges and a driver’s license in Florida, you agree to submit to a breathalyzer test if the police have probable cause to believe you have driven while impaired from alcohol.  This does not mean you have to submit to a breathalyzer test.  There are many cases where a police officer arrests a person for DUI in Florida without the requisite probable cause, and a DUI suspect might decide not to cooperate with the police officer any further.  Of course, it is then up to the criminal defense lawyer to file a motion to suppress after the fact and the judge to rule on whether probable cause existed to support the DUI arrest and request for a breathalyzer.

Other times, a DUI suspect may not agree to submit to a breathalyzer test because he/she does not believe he/she is being treated fairly or he/she just does not want to give the state evidence to prove the DUI case in court.  In any case, as a practical matter, the implied consent law says that if the police officer has probable cause to believe a person is guilty of DUI, the police officer can request a breathalyzer test.  If the suspect refuses, the suspect is then subject to certain penalties.  A refusal may result in a longer driver’s license suspension.  A second refusal when there has been a previous refusal during a prior DUI case could result in a new misdemeanor charge.  For the instant case, if a person refuses the breathalyzer, the state will try to use that refusal against the defendant in the DUI case if it goes to trial.  The state will argue to the jury that the defendant refused the breathalyzer test because the defendant was drunk and knew he/she would fail it.  Of course, there are many reasons why a defendant would refuse a breathalyzer test, and the criminal defense attorney can make those counterarguments at a DUI trial.  Ultimately, it would be up to a jury to decide, if the DUI case goes to trial.

Procedurally, in Jacksonville, Florida, the police normally do not offer the breathalyzer test until after the suspect has been arrested for DUI and taken to the jail.  That is one reason why people decide not to submit to a breathalyzer test.  The person is already arrested for DUI at that point, and no one gets “unarrested” after a good breathalyzer reading.  But, after the suspect is taken to the jail and brought to the breathalyzer room in the jail, if he/she refuses to submit to the breathalyzer, the state will try to use that refusal against the suspect in court.

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The case we wrote about in our previous post was a DUI manslaughter case near Jacksonville, Florida that involved some interesting legal issues.  A crash occurred at about 1:00 a.m. involving two vehicles.  The victim’s vehicle was forced off of the road into a canal.  The defendant initially fled the scene of the crash, but he did return about an hour later.  However, he never checked on the status of the victim.  There were issues surrounding the blood draw and whether the state could force a person to give blood for alcohol testing without consent and without a search warrant.

Another interesting issue was discussed in this DUI case.  DUI manslaughter is obviously a serious charge.  It is a second degree felony in Florida, which means a person can get sentenced to up to 15 years in prison if convicted.  We have heard of judges giving those sentences, or close to it, for the more egregious DUI manslaughter cases.  A DUI manslaughter can become even more serious if the suspect does not render aid to the victim after the crash.  In that case, the DUI manslaughter charge goes from a second degree felony to a first degree felony, which is punishable by up to 30 years in prison.

It is not clear what exactly the term “render aid” entails.  If the suspect has no medical training, there is only so much he/she can do to help an injured victim and there is only so much that person should try to do in order to not make things worse.  At a minimum, we can assume rendering aid means staying at the scene, checking on the victim and calling for an ambulance as soon as possible.  If the victim has an obvious emergency that can be handled by the suspect, the suspect probably needs to try and alleviate that problem.

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When the police want to search a person’s property, or search a person, they normally need consent from that person or a search warrant signed by a judge.  However, that general rule does have exceptions.  In most DUI cases, the police officer will request that the subject submit to a non-invasive breathalyzer test to determine the blood alcohol level.  Other times, the police officer may request a blood draw.  The police cannot request a blood draw in just any DUI case.  There are rules that limit when the police can request blood for alcohol testing in DUI cases.  And when police request blood in a DUI case and the suspect refuses, the police normally cannot force a blood draw without a search warrant.

As stated, there are exceptions to this rule, and one that applies at times in DUI cases is the exigent circumstances exception.  Exigent circumstances under the law generally means there is a risk that the evidence in a DUI case (the alcohol in the suspect’s blood) will be lost if the evidence is not obtained in a timely manner.  This can be particularly relevant in a DUI case as the alcohol in a person’s body dissipates as the body’s metabolism takes effect.

The fact that alcohol dissipates in a person’s body is not a sufficient reason, by itself, to force a blood draw without a search warrant after a suspect refuses the blood draw.  Other factors must be present.

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The War on Drugs may be the most counter-productive, fiscally wasteful policy in the history of humankind.  Yet, it forges ahead, as it does little to effect any change other than to redirect taxpayer money away from beneficial programs and increase the size of government.  With regard to marijuana, it is difficult to understand why any police officer would support the War on Drugs.  Any encounter with a “suspect” has inherent risks to a police officer.  Why would any officer want to risk his/her well-being to determine whether or not someone has a plant, or the flower from a plant?

On the other hand, marijuana cases are easy.  A police officer smells the distinctive odor of cannabis, searches a person or a vehicle, finds the marijuana and makes an arrest.  No thought, no investigative skills, no legwork required.  And it counts as an arrest like any other for statistical purposes.  It is so much easier and quicker than tracking down reluctant witnesses in a shooting or figuring out where the money went in a fraud case.

A recent case out of Colorado will make it a little more difficult for the police to make the easy, simple marijuana arrests that do nothing to benefit the public despite political claims that more arrests translate to a safer community.  Many marijuana arrests are the result of a trained K-9 walking around a vehicle after a traffic stop and alerting to the odor of marijuana or some other illegal drug which then gives the police officer probable cause to search the vehicle.  If the police officer finds illegal drugs in the vehicle, the officer will likely arrest one or more of the occupants in the vehicle.  The entire case can be wrapped up in a matter of minutes.

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In Florida, it is a felony for anyone who has been convicted of a felony in any state or federal court to own or possess a firearm.  If the defendant is caught in actual possession of the firearm (as opposed to constructive possession), the defendant is subject to a mandatory minimum sentence of three years in prison.

In a recent possession of a firearm by a convicted felon case south of Jacksonville, Florida, the defendant was a woman whose husband collected guns.  The defendant was a convicted felon and could not own or possess any guns.  After the husband died, the defendant ran into serious financial difficulties.  To address this problem, the defendant and a friend went to a pawn shop and sold some of her husband’s guns.  It was not clear whether the defendant actually touched any of the guns as the pawn shop clerk did not remember the transaction.  The state was only able to recover the normal documents that are prepared in relation to a pawn transaction in Florida.  Those documents showed the defendant did sign the pawn transaction form and had her fingerprints taken, as the law requires when a person pawns items he/she owns.  She also received the money for the pawned guns.

Based on this evidence, the state charged her with possession of a firearm by a convicted felon.  The criminal defense lawyer filed a motion to dismiss the gun charge.  He argued that the state could not prove that the defendant actually possessed the guns or was in constructive possession of the guns since there was no testimony about the details of the transaction.  The court agreed that the state could not prove actual possession of the firearms, but denied the motion to suppress.  The documents from the pawn shop that were available were sufficient for the state to proceed on the theory that the defendant constructively possessed the guns.  The fact that she was involved in taking the guns to the pawn shop and pawning them for money was evidence that she had knowledge of the guns and the ability to control them, which are essential elements of a constructive possession charge.

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Pursuant to both the United States and the Florida Constitutions, people have a right to privacy in their homes.  This means that the police normally cannot come into a person’s home and search for drugs or other evidence of criminal activity without a valid search warrant or consent from someone who lives there.  This right to privacy protection applies to homeowners, people who rent apartments and other residents.  It also applies to less traditional residences like rooming houses.

In a recent possession of cocaine case near Jacksonville, Florida, the defendant was staying at a rooming house along with many other people.  The defendant had a room there and a key to the room.  He kept his belongings there.  The police showed up to the area while responding to an unrelated call.  The defendant had a pill bottle that he placed under the rooming house when he saw the police.  The police officer became suspicious, walked onto the property, reached under the house and pulled out the pill bottle.  He opened it and found cocaine inside.  The defendant was arrested for possession of cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the pill bottle and the cocaine.  He argued that the police officer did not have a search warrant or consent to come onto the property and take a pill bottle that was under the house.  The issue became whether the defendant had a reasonable expectation of privacy in a rooming house in which he was staying.  If he did, a police officer cannot come onto the property and take a pill bottle from underneath it that belonged to the defendant.

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In Florida, where marijuana remains illegal for now, the odor of marijuana is a fairly common basis that police use to further investigate or search a suspect.  It is also a basis that is often used to conduct a DUI investigation and make DUI arrests.  The odor of marijuana obviously gives police officers reason to believe that marijuana is present.  Under some circumstances, the police can use that information to search items or people.  However, it is not a blanket excuse to conduct a search or “pat down” in every situation.

In a possession of marijuana case near Jacksonville, Florida, the police received a tip that certain individuals were involved in drug activity at a warehouse.  The police responded and saw several individuals at the warehouse.  The police officer indicated he smelled a strong odor of marijuana coming from the group.  However, the police officer did not see any marijuana and did not see anyone smoking anything.  Based on the odor of marijuana, the police officer asked one of the individuals to come forward.  The suspect approached the police officer.  This led to a pat down of the suspect and ultimately a search during which the police officer found marijuana.  The suspect was arrested for possession of marijuana.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana arguing that the police officer illegally searched the defendant.  The appellate court agreed.  A general odor of marijuana coming from a group of people was not sufficient evidence to pat down one of the individuals or search him.  The police officer could have investigated with questions or requests for consent to search but was not yet legally authorized to pat down or search anyone without more specific evidence as to who was actually smoking the marijuana or had marijuana in his possession, if anyone.  Because the police officer went straight to a pat down and then a search without trying to get more specific evidence to identify the source of the odor, the marijuana evidence was suppressed and the possession of marijuana charge was later dismissed.