Florida law allows a person to seal or expunge a criminal case under certain, limited circumstances. This is a great option for people who are eligible as a criminal record of any kind can be a serious detriment to future job prospects. For an expunction, a person is eligible if the case the person wants to expunge was either dropped, never filed or resulted in a verdict of not guilty and that person has never been convicted of a crime before and has never had a case sealed or expunged in Florida before. For a sealing, the same rules apply except the person is still eligible to get a criminal case sealed even if he/she pled guilty or no contest as long as the judge withheld adjudication on each count. Also, certain, more serious crimes are not eligible to be sealed. If anyone has a prior criminal case on his/her record and thinks he/she might be eligible to have it sealed or expunged, it is almost always worth looking into as it is generally much better to go into a job search with no criminal record or less of a criminal record. Shorstein, Lasnetski & Gihon will discuss the matter with you and look into your background to see if you are eligible for a sealing or expunction.

While a sealing or expunction in Florida is a great way to eliminate or conceal a prior criminal case from employers running the standard record search, neither process completely eliminates all records from everyone. If the person who had his/her record sealed or expunged gets arrested again, the prosecutor will see the prior case(s), and the judge will know about the prior case for bond and sentencing purposes, if applicable. Also, it is unclear that a sealing or expunction of a criminal case eliminates the state’s ability to get certain records from the prior case, such as DNA.

In a recent murder case near Jacksonville, Florida, a woman was sexually assaulted and murdered by a suspect who fled the scene. The police found an item at the scene with what they suspected was the offender’s DNA. The police ran the DNA found at the crime scene through their system and found a likely match with the defendant. After obtaining other evidence, the defendant was arrested and charged. The criminal defense lawyer filed a motion to suppress the DNA evidence because the police matched the crime scene DNA with the defendant’s DNA that was obtained as a result of a prior case that had been expunged. The criminal defense attorney argued that the state illegally obtained the defendant’s DNA because the prior expunction order required the FDLE to expunge all of its records relating to the case, including the DNA.

In Florida, any person who sends a written or electronic communication threatening to kill or cause serious bodily harm to another or a family member of that person or threatens some other act of terrorism commits a serious crime in Florida. Under the Florida statutes, that conduct constitutes a second degree felony which is punishable by up to 15 years in prison. Obviously, one would hope that the police are certain the communication is serious before arresting someone for a crime of this nature as people send jokes or ridiculous texts and other communications all of the time. Having a crime like this with such a serious potential penalty creates a lot of room for abuse by law enforcement.  However, if a person is dangerous and sends a serious threat to another, this is the crime to deal with it.

These days, there are many different ways to communicate and many different social media avenues to send information. In a case just south of Jacksonville, Florida, a high school student sent a Snapchat picture to another student which was a picture of a rifle and a message that there will be show and tell the following school day. As expected, the student showed it to others and school officials learned of the communication. Ultimately, the student who sent the picture over Snapchat was arrested for sending a written threat to kill or do bodily injury.

The criminal defense lawyer filed a motion to dismiss the charge. He argued that the defendant was joking and the photo did not specifically threaten the victim in any case. The state responded that the victim did not believe it to be a joke and was worried the defendant would come up to the school with a gun and cause serious harm. The court agreed with the criminal defense attorney and dismissed the case because there was no specific threat to kill or cause harm. The state appealed the dismissal. The appellate court focused on what constitutes a threat under the Florida statute. Should the focus be on whether the person sending the threat was serious or joking, or should the court look at whether the victim reasonably believed the threat was serious? The appellate court determined that the reasonable reaction of the victim should determine whether a crime was committed. In this case, the victim testified that he was scared and believed the threat to be serious. The fact that there was a recent school shooting prior to the threat was also relevant to the victim’s interpretation of the communication. Because the threat was sufficient to cause alarm in a reasonable person, the appellate court reversed the dismissal and allowed the state to proceed with the case.

In Florida criminal cases, if and when a defendant either pleads guilty or no contest or is convicted at a trial, the court will normally order restitution as part of the defendant’s sentence if there is a victim who lost money or property as a result of the crime. This is most common in fraud and theft cases where the defendant stole money or something else of value from the victim. It is also common in cases where the victim’s property was damaged or the victim was injured as a result of the crime and had to pay for medical bills or to fix or replace property.

Normally, the prosecutor will get with the victim and find out the amount of restitution. The prosecutor and criminal defense attorney will go over the amount and the proof of loss and come to an agreement as to the amount of restitution. If they cannot agree, the court will hold a hearing to determine the amount of restitution that is owed. Then, the defendant can either pay it prior to or at the time of the resolution of the case or the judge will sentence the defendant to a period of probation, either instead of jail or prison or after jail or prison, and the defendant will pay the restitution as a condition of probation.

However, there are times when the state does not know the amount of the restitution when the defendant pleads guilty or no contest. This happens because the prosecutor has not been able to get in touch with the victim or the amount has otherwise not been determined yet for some reason. In this case, the state will normally ask the judge to reserve a period of time to determine the restitution amount. When a defendant pleads guilty or no contest and gets sentenced, the sentence will not change, for better or worse, absent other circumstances in the future. However, if the judge reserves right to determine restitution at a later date, the judge can add a restitution amount at that later time. Florida law indicates that the judge has 60 days for which restitution can be reserved. Some criminal defense lawyers interpret this to mean that if the state does not figure out the restitution amount and the judge does not order that restitution amount within 60 days from the conviction, the state can no longer seek restitution. However, the case law rejects that argument.  As long as the judge reserves the issue of restitution within 60 days of the sentence, the state can come back and ask the judge to order the restitution amount after that 60 days has elapsed. Normally, if the state does not have the amount at the sentencing hearing or immediately thereafter, they are never getting it.  But, sometimes, the prosecutor is diligent and comes up with a figure later. As long as restitution was reserved within 60 days of the plea and sentence, the state can ask the judge to order restitution beyond that 60 day period.

In Florida, most DUI cases involve some alleged traffic violation followed by a DUI investigation and an arrest.  If the police officer thinks the driver is impaired from drugs or alcohol, and usually the officer makes that decision early and quickly, that officer is going to make the arrest. Everything else he does is designed to gather evidence to support the decision he has already made. Some people think the police officer will offer a breathalyzer test before an arrest to determine if an arrest for DUI is, in fact, appropriate. But that is not how it works. Essentially, there is a traffic stop, the police officer decides the driver is DUI, collects evidence such as field sobriety test results, makes the arrest, takes the driver to jail, books the driver into the jail and only then requests the breathalyzer test. So, the breathalyzer test is not something a driver can do to avoid an arrest. The arrest is a done deal at that point.  It is just another tool the police use to try to bolster their DUI case.

Most DUI cases involve a request for a breathalyzer test at the jail. However, there are situations where a breathalyzer test is not feasible, for instance, if the defendant was injured in an accident and had to be taken to the hospital or is otherwise unable to provide a breath sample. In that situation, the police might have the option of getting the driver’s blood to test for alcohol content. However, there are legal limitations to getting blood in DUI cases, and the police cannot always do it just because a breath test would be inconvenient.

In a case south of Jacksonville, Florida, a driver was injured in a single vehicle accident. A police officer responded and smelled alcohol coming from the vehicle. The driver was unconscious and taken to the hospital. The driver was not able to provide a blood sample so the police officer asked medical personnel to obtain a blood sample to be tested for alcohol content. The police officer did not seek a search warrant before getting the blood sample. After the blood tested well over the legal limit in Florida, the driver was arrested for DUI with injury.

In Florida, if a police officer pulls a driver over and there is any indication of alcohol or impairment, that officer is likely to initiate a DUI investigation. That will usually involved specific questions about drinking, field sobriety exercises and a breathalyzer at the jail after the driver has been arrested. However, it is important to understand that drinking and driving is not a crime and neither is having an alcoholic beverage in the vehicle (although open container is a civil violation). The crime is driving while being impaired from alcohol or drugs. Additionally, police cannot initiate a criminal investigation, whether for DUI or another crime, based on speculation or a hunch. The police officer must have facts supporting a reasonable suspicion that the driver is impaired from alcohol or drugs.

The police commonly use odor of alcohol as a basis to start a DUI investigation. However, odor of alcohol does not prove impairment. It only tends to prove someone has had one or more alcoholic drinks or has alcohol in the vehicle. This alone is not sufficient to investigate or arrest for DUI. In a recent case south of Jacksonville, Florida, the defendant was stopped by a police officer for speeding. When he approached the vehicle, the officer said he smelled alcohol and saw an open drink in the center console. The police officer later wrote the usual DUI observations in his arrest report (bloodshot and watery eyes, slurred speech, difficulty finding his license, etc.), but those were not used as a basis for the DUI investigation in the beginning.

The criminal defense lawyer filed a motion to suppress the field sobriety tests results and other evidence presented by the police officer after the defendant was ordered out of his vehicle. The criminal defense attorney argued that the police officer did not have a legal basis to order the defendant to exit his vehicle and request the field sobriety tests because he did not have reasonable suspicion that the driver was impaired, only that he may have had an alcoholic drink at some point.  The court agreed and threw out the evidence of the DUI. The court ruled that speeding, an odor of alcohol and an open container in the vehicle do not establish enough evidence of DUI to allow a police officer to initiate a DUI investigation.  People speed constantly and an odor of alcohol might mean consumption, but not necessarily impairment.

In Florida, driving with a suspended or revoked license is not a particularly serious charge, as a first time charge, but it can lead to more serious charges and more serious penalties. A driving with a suspended or revoked license (DWLS) charge can also quickly snowball into a situation where a person has a longer suspension which leads to more DWLS charges which leads to longer suspensions. If things get out of hand, a person can face five years or more of a license suspension and fines and costs to pay with no way to drive to work to pay those costs.  Prosecutors and judges handle a lot of DWLS cases. It may be the most common type of case in county (misdemeanor) court in Florida. And while judges and prosecutors do not care much about them when a person has a minimal record, multiple DWLS charges can result in serious penalties. In fact, if a person has a few DWLS convictions in his/her past, that person can be charged with a felony for the next DWLS violation. Once a person is in circuit (felony) court, it’s not uncommon to face months in jail for the less serious offenses those prosecutors and judges see.

In order for the state to prove that a defendant is guilty of a DWLS crime, the state normally has to prove three things – that the defendant was seen driving, that his/her license was suspended or revoked at the time and that he/she knew or was given notice that his/her license was suspended or revoked at the time.  Usually, parts one and two are easy, but not everyone knows their license is suspended.  A person may have received a traffic ticket and thought it was paid or thought a driving course took care of it, but for some reason, the ticket was not resolved. If a traffic ticket is not paid, the DHSMV will eventually suspend the driver’s license. They should send notice to the driver in the mail, but a person might move or otherwise not receive it.

A habitual traffic offender in Florida is someone with three serious driving violations within five years. A serious driving violation is a DUI, a driving with a suspended license criminal violation (or civil violation with a conviction) and/or two many points from regular traffic violations. If a person becomes a habitual traffic offender, his/her driver’s license will be suspended for five years. As you can see, getting multiple DWLS charges or citations can lead to longer suspensions. It can also lead to felony charges and jail time for future violations.

In Florida, the Stand Your Ground law received a lot of attention over the years, particularly in relation to the Trayvon Martin case. The Florida Stand Your Ground law is not a particularly radical law. It is essentially a self defense law that allows a person to use reasonable force, including deadly force, in response to an imminent threat of similar harm.  In other words, if a person reasonably believes someone is about to injure or kill him/her, or another person, that person can use a similar level of force to prevent that from happening. There may be issues regarding whether the other person’s threat was truly imminent and whether the suspect used a commensurate level of force, but it is generally a self defense law. What makes the Florida Stand Your Ground law somewhat exceptional is the procedural aspect of it. Rather than having to assert the Stand Your Ground defense at a trial and hope the jury sides with the defendant, which is always questionable, a defendant can file a motion with the judge that requires a hearing prior to the trial. Once the defendant makes an initial case of self defense, state has the burden of proving the defendant did not have a valid basis to use force or that the Stand Your Ground law does not apply for legal reasons, and if the state fails to do so, the judge should rule in the defendant’s favor and the case is over. A jury would never hear the case. This is an immunity rather than a defense in that if the defendant’s motion is successful, the defendant is immune from further prosecution for the offense.

In a recent case near Jacksonville, Florida, an older defendant lived at home with his adult niece. He was a security guard with no prior criminal record. He had a concealed carry permit and firearms training. One evening, someone knocked on his door, his niece answered, and some guy pulled her out of the house. The niece resisted and called for the defendant to help her. Two other men were there and helped the first man pull the niece away. The defendant grabbed his guy and ran outside. He fired a warning shot into the air. The three men shot back, and a gunfight ensued. The defendant and his niece were hit along with one of the other men.

It turns out, these three men were police officers, although they apparently never announced that fact to the niece or defendant. They went to the house in an undercover capacity to investigate the niece’s alleged prostitution offenses. They arrived in plain clothes and an unmarked vehicle and posed as customers seeking a prostitute. After the incident, the defendant was arrested and charged with three counts of attempted murder of a law enforcement officer.

In Florida, when police search something, such as a vehicle, and find drugs or other evidence of illegal activity, the defendant can normally file a motion to suppress the evidence based on an illegal search under the Fourth Amendment. However, not every defendant has a right to challenge every search by police that results in an arrest. A defendant must have standing to challenge a search by the police. In other words, the defendant must have some possessory or ownership interest in the thing that was searched to be able to challenge the search. More specifically, the defendant must have had a reasonable expectation of privacy in the thing that was searched to be lawfully permitted to challenge the search. That is the standard for standing to challenge an allegedly illegal search.

In a case south of Jacksonville, Florida, the defendant was stopped in a vehicle for running a red light. The police ultimately searched the vehicle and found oxycodone, cocaine and other drugs inside. The defendant was arrested for possession of various drugs. The criminal defense lawyer filed a motion to suppress the evidence of all of the drugs arguing that the search was illegal. The state responded by arguing the defendant had no legal right to challenge the search because the vehicle was a rental car, and the defendant was not listed as an authorized driver on the rental car contract nor had he paid for the rental car.

The trial court agreed with the state based on a Florida case which said the driver of a rental car does not have standing to challenge the search of that rental car if he is not authorized to drive the car by the owner, the rental car company, even if the person who did properly rent the car gave the driver permission to drive the rental car. However, several years later, the United States Supreme Court decided the issue differently. The United States Supreme Court is controlling. The Supreme Court ruled that a person in lawful possession of a rental car does have standing to challenge a search of the rental car even if he isn’t listed as an authorized driver on the rental car contract. Just because a person is not listed as an authorized driver does not mean it is unlawful for him to drive it. It may be a violation of the rental car agreement and might have implications for insurance if there is an accident, but being an unauthorized driver according to the rental car agreement does not make a person an illegal driver. However, if a person steals a car and is stopped by the police who search the vehicle and find drugs or evidence of the theft, that defendant would not have standing to challenge the search of the vehicle as he would not be in lawful possession of the vehicle.

In Florida, when the police search a person or any location and find drugs or other evidence of illegal activity, the defendant can challenge the search as illegal under the Fourth Amendment which prohibits unreasonable searches and seizures. However, not every defendant can challenge every search. There is a concept in search and seizure law called standing, which means that a defendant must have some possessory or ownership interest in the thing that was searched to be allowed to challenge the search in court. For instance, if the police search your house that you own, you are going to have standing to challenge that search because you have an obvious interest in your home. On the other hand, if you leave something on the bus and the police search that bus and find incriminatory evidence against you, you probably cannot challenge the search of that bus because you have no interest in the bus. And then there is a lot of situations in between that implicate the standing issue that will depend on the circumstances and the case law.

In a recent case near Jacksonville, Florida, the police were looking for a suspect due to an active arrest warrant. They went to a hotel room and found the subject and arrested him. After the arrest, the police saw what they considered suspicious activity in the nearby hotel room, entered the room, found cocaine and marijuana inside and arrested the occupant of that room for possession of illegal drugs as well. The criminal defense lawyer filed a motion to suppress the evidence of the drugs arguing that the police did not have a legal right to enter and search the hotel room without a warrant.

The state presented evidence that the occupant of the hotel room had rented the room as a juvenile and by using a false name so he had not validly rented the room. Since it was not his room, he had no standing to challenge the search of that room.  The court disagreed with the state. The issue is not who rented or paid for the room. The issue is whether the defendant had a reasonable expectation of privacy in the room or whatever is searched. Hotel guests, whether they paid for the room or are just staying in the room, have an expectation of privacy in those hotel rooms. This is fairly obvious as if you are sharing a hotel room with a friend who paid for them hotel room, you would expect that room to be private from intrusion from others. The state also argued that the defendant lost his expectation of privacy in the room because he occupied it illegally because he was a minor and gave a false name to rent the room. However, the state could not provide any law that says it is illegal to rent a hotel room as a minor. Nor is it illegal to rent a hotel room under a false name. The state was correct that the defendant would have no expectation of privacy in a hotel room that was occupied illegally, but being a juvenile or using a false name was not illegal. If the hotel had learned that the defendant used a false name or was a juvenile and then told the defendant to leave the room, then the defendant would have been a trespasser if he stayed. Under those circumstances, he would no longer have a reasonable expectation of privacy and would lose his standing. But, as long as he was a legal occupant, he had standing and could challenge the search of the hotel room.

In Florida, we have a wiretap law that, with some exceptions, prohibits people in Florida from intentionally recording verbal, wire or electronic communications unless all of the parties to the communication consent to the recording. If a party does record a communication in violation of this Florida wiretap law, the lawyer for the opposing side can move to suppress that evidence and keep it out of court. There may be other penalties for illegally recording a communication as well.

In a case near Jacksonville, Florida, the defendant went over to his girlfriend’s house, and they got into an argument. Once the argument started, the girlfriend started recording the defendant with her cell phone. The defendant ultimately pushed the girlfriend and threatened her with a gun. He was charged with domestic battery and aggravated assault. The state sought to introduce the girlfriend’s recording of the incident at the trial. The criminal defense lawyer objected arguing that the recording violated the Florida wiretap law and was therefore inadmissible.

The court disagreed with the criminal defense attorney and allowed the recording into evidence. The Florida wiretap law only covers communications that are made with a reasonable expectation of privacy. In other words, the Florida wiretap law only deals with conversations and electronic communications that people would normally expect to be private. Private phone calls and texts and emails would normally be covered by the wiretap law. Conversations in public or over social media where other people can see or hear them would not be covered under the wiretap law. In this case, the criminal defense lawyer argued this was a private conversation because it occurred in the girlfriend’s home. However, the judge rejected that argument because the evidence indicated the defendant knew he was being recorded by the cell phone and kept talking. He even tried to take the cell phone away from his girlfriend as she was recording. The analysis by the court seems to be flawed as one would normally have a reasonable expectation of privacy in a private home of a girlfriend when others are not around. It seems to be more of a case of implied consent where the defendant knew the recording was taking place yet decided to continue arguing anyway. Proper result but improper reasoning.

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