Articles Posted in Other Offenses

Does the government understand it’s own laws?  If you ask the elected officials who are drafting the laws, they supreme courtmay tell you to wait until the bill has passed to find out what’s in it.  Basically, not even the people drafting our laws understand them, and things get no better once a law has passed.   Ask three government officials a question, and you’re likely to get three different answers.  Even if you arrive at a reasonably correct answer, that law may conflict with several other laws.  For example, when We The People decided to legalize marijuana in several states, our federal government did not agree with that decision.  After all, marijuana is still a Schedule 1 narcotic under federal law. So, do you think the federal government might respect the state electorate’s decision?  Of course not.  Like some two year old throwing a tantrum, the feds harass legal marijuana retailers by threatening money laundering charges against any bank that accepts currency derived from the sale of an illegal narcotic.  If you want to legally buy weed, you’re going to have to pay in cash.  Coincidentally, this is the way weed transactions have gone down while the substance was illegal, so I guess some things never change.

The federal government is not happy with certain aspects of Florida’s criminal justice system.  Namely, they don’t like the fact that Florida permits citizens to admit to a crime–yet not be found guilty of it.  We call this a “withhold of adjudication”, and here’s how it works.  Say you have stolen a car, and you confess to such.  In court, the guilty plea sounds something like this: “Yes Your Honor, I stole that car, I plead guilty to the crime of Grand Theft Auto”.   In Florida, the judge may respond “I am not going to find you guilty of stealing the car, this court will withhold adjudication, you will not be a convicted felon”.  Unfortunately, the federal government has never approved of such technicalities, and the feds will treat this plea as a conviction.  To see how this issue was recently resolved, let’s take a look at the case of  Clarke v. United States of America, 2016 Fla. LEXIS 277 (Fla. 2016). Continue Reading

One of the cool things about criminal law is that our evidence, disputes, and analysis are open to the public. All of our disagreements at motion hearings and trials are open to the public. If an “expert” claims that XYZ is true, that expert will be subject to cross-examination, and he or she must answer the opposing side’s questions (redundant, I know). This is not true of science. What we think of as “scientific truth” is subject to the whims of those who decide what will be published and who should be awarded research money. The culture of science discourages dissent, so science typically doesn’t advance based on honest debates about the evidence, but rather, “science advances one funeral at a time” (Max Planck). Dr. Henry Bauer, Professor Emeritus of Chemistry & Science at Virginia Tech, explains that for many “scientific truths”, “there are perfectly competent and well informed scientist who disagree on the basis of good evidence with what everyone else believes, and that this evidence and the arguments offered by these dissenters is simply ignored by their supposed peers, who seek to enforce an orthodoxy instead of assessing all the evidence with an open mind.” Bauer, Henry “Dogmatism in Science and Medicine

The criminal court system is far more intellectually honest than much of the scientific community. Criminal justice issues are subject to cross examination in a public forum, now, try getting a scientist to defend their views in a public and most will only show up if the opposition still believes the earth is flat. In criminal law, when several judges disagree, sometimes the Supreme Court will step in to resolve the dispute, and the entire process is open to the public. Every piece of evidence, every appellate brief, every oral argument. So today, we’re going to examine one of many disagreements percolating in Florida’s criminal courts regarding the popular criminal charge of driving while license suspended or revoked (DWLS).

At first glance, an arrest for driving while license suspended implies that the citizen at one time possessed a valid driver’s license that has since been suspended or revoked. But many folks in Florida have never had a driver’s license to begin with, and yet they still end up getting arrested for driving on their suspended (nonexistent) license. Should a person who has never had a license be convicted of driving on a suspended license? Florida courts disagree on this issue, so let’s begin the analysis with a (bad) case out of the Second District Court of Appeals, Carroll v. State, 761 So. 2d 417 (Fla. 2nd DCA 2000).
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stop sign driving.jpgViolations of probation can be difficult to prove, and this is especially true of VOP’s based upon a new arrest. An arrest is certainly enough to have a judge sign a No Bond VOP warrant, but the State will have to present more evidence than just a new arrest to sustain a VOP conviction. In summary: yes, you will be arrested for violating your probation based upon a new arrest–but no, the arrest alone is not enough to convict. To see how this plays out in real life, let’s take a look at Prater v. State, 2014 WL 2968842 (Fla. 5th DCA 2014).

BACKGROUND INFO: Prater was placed on probation after entering a plea to aggravated battery with a deadly weapon, and aggravated assault. He received 15 years of probation. Yes, I said fifteen. We all know that the Pope himself cannot successfully complete 15 years of probation. Some judges are well aware of this statistical fact, and impose long terms of probation for just that reason. One Orange County judge affectionately refers to probation as an “Early DOC Entry Program”, designed for those defendants that are not willing to take prison up front–just give them enough rope to hang themselves, and you can give them prison on the violation. Naturally, I don’t agree with giving clients sentences that they cannot handle; but then again, what I want doesn’t matter much. If a client wants something I know they can’t handle, I’ll try to negotiate comfortable options (jail?), but that’s all I can do. Too many lawyers out there think the clients work for them. Obviously, that’s not the case. I work for defendants. They tell me what to do, and I have to follow their lead even when my violation-radar is telling me that a probation plea is a bad idea. Anyway.
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running model.jpgNobody likes to be bossed around, but plenty of people enjoy being bossy. Most of these bossy folks work for the government. The good thing about bossy people is that you don’t necessarily have to listen to them. Sure, you may be fired if the person bossing you around is your supervisor at work. Or, you may die of a rare disease if you don’t listen to a doctor ordering you to undergo some medical procedure. But, it is a tad odd that a kid that just graduated from a couple of months at a police academy can order you around–or you’re going to jail. Law enforcement is one of the few professions in which their commands will land you in jail if you don’t obey. Technically, this disobedience is called resisting an officer without violence. What an awesome power, right? Do as I say, or go to jail. Um, do you think this power gets abused? Well, what government power doesn’t get abused?

So, it’s a crime to disobey an officer’s legal commands. I’ve seen resisting charges simply because a citizen doesn’t respond fast enough to an officer’s commands. Don’t exit the car fast enough–arrested for resisting. Don’t get off the phone fast enough when an officer wants to talk to you–going to jail for resisting. Don’t feel like sticking around and talking to the police–you better start feeling like it, or you may be heading to jail. A “resisting” charge transforms a minor delay into a criminal act. Now, there are all sorts of defenses to a resisting charge, and more often than not, this charge is heaped on top of bogus charges just to make sure something sticks. When I see a resisting an officer without violence charge, I know bogosity is lurking nearby.

For example, let’s take a look at Perez v. State, 138 So. 3d 1098 (1st DCA 2014). Perez was found guilty of resisting an officer without violence (among other things). Law enforcement believed that evidence of a burglary may have been located at a certain house, so the officers decided to conduct a “knock and talk” on the home, a procedure in which the cops simply knock on a front door, and hope that the occupants will speak to them. In this case, when the police rolled up, Perez and another individual headed out the back door. The cops ran toward him, and Perez decided to stop in the yard (the other guy jumped the fence and got a little further away). Perez was found guilty of not obeying law enforcement’s command to stop running. Was this really a crime? Well, let’s take a look.
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crowbar.jpgMany folks live with a constant fear of police abuse. From what I’ve seen over the years, that fear is completely understandable, depending upon location, and economic standings. And, there are several different ways law enforcement abuse we citizens. Some ways are subtle, like the “I smell the odor of cannabis, so I’m going to search your car” routine. This has never happened to my white 98 year old grandpa, but it does happen to my teenage black clients. Now, part of this may be due to the fact that my grandpa doesn’t smoke weed (that I know of). And also, it is shocking (even to me) that my grandfather is still driving at his age (but the DMV renewed his license through age 103–so go figure). Aside from the “I smell weed” searches, I also see plenty of abuse via loitering and prowling arrests. Most judges are fairly suspicious of loitering cases, and they have good reason for such concern. One appeals court put it this way:

Because of its potential for abuse, the loitering and prowling statute must be applied with special care. It cannot be emphasized enough that the loitering and prowling statute is not to be used as a “catchall” provision whereby police may arrest citizens where there is no other basis which would justify their detention. Instead, the proper application of this statute requires a delicate balancing between the protection of the rights of individuals and the protection of individual citizens from imminent criminal danger to their persons or property.” Mills v. State, 58 So. 3d 936, 939 (Fla. 2d DCA 2011).

So, armed with a bit of healthy skepticism, let’s take a look at a recent loitering and prowling case of C.C. v. State. 137 So. 3d 466 (Fla. 4th DCA 2014).
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kids.jpgIf you’ve lived on Mother Earth long enough, you’ve encountered a smart-assed kid that (a) has no respect for authority, and (b) knows his rights. So, how do police officers respond to someone that tells them they “know their rights?” As a general rule, and I think you can find this in the FDLE Field Training Manual–most officers reach for their handcuffs and billy-club, though not necessarily in that order. I’m just saying.

In the case of G.T. v. State, a juvenile appealed her conviction for resisting an officer without violence. 120 So. 3d 141 (Fla. 4th DCA 2013) This incident began as most juvenile cases do, with a call from a neighbor complaining of a “disturbance of juveniles drinking and smoking.” It shouldn’t surprise you that juveniles do not understand the concept of “being quiet”, and such immaturity provides a constant revenue stream for Crime Inc., so nobody seems to mind. Anyway, the police arrive at the apartment complex and see six teenagers hanging out, one is holding an empty “Bacardi Silver” bottle. Some alcohol connoisseurs may argue that this–in and of itself–is grounds to at least harass these teens, but you cannot pass judgment on teenage drink selections, as it is often a question only of what they can steal from their parents. So, blame the parents for poor taste. Once the officer detained the kids he noticed that several of the teens were drunk, because they had red, glossy eyes and slurred speech. The officer started things off by asking for their names, birthdays, and parental contact information .
All the teenagers played along with the name game, except G.T., she refused to give any information because she “knows her rights.” Now, we all know somebody that “knows their rights”–and that’s OK so long as they actually know what they’re talking about (but that’s kind of rare, unfortunately). As you might expect, and as my informal studies have shown, the police are not too fond of folks that “know their rights”. Most people that “know their rights” get themselves arrested, and, depending on how much they know, the police may even provide a complimentary beat down. G.T. knew just enough about her rights to get herself arrested for resisting an officer without violence and disorderly intoxication. So, was G.T. right? Was she legally entitled to refuse to give her name and information to the police? Did she really know her rights?
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gun held.jpg Here’s a few basic principles of any criminal justice system. Juries are typically the fact finders. Judges are typically referees, calling balls and strikes throughout the process. But, what happens when the facts of a case are so weak that there is no need to have a jury trial? Well, we defense attorneys ask the judge to step into the fray, and make factual determination that will cause the case to be dismissed. Prosecutors don’t want judges dismissing weak cases, because they know that many defendants cannot afford the risk of going to trial, even on weak facts. Technically, when a criminal defense attorney poses this question to a judge, it is in the form of a Motion to Dismiss. This motion tells the court that the facts of the case do not constitute the crime charged, so why waste time tax payer money? We’re going to take a look one such waste of money, found in O.S. V. State, 120 So. 3d 130 (Fla. 3d DCA 2013).

O.S. was convicted of possession of a concealed weapon (brass knuckles) in his vehicle. Now, several issues may be examined in a concealed weapons case, issues regarding the stop of the vehicle, issues regarding constructive possession, or issues regarding the definition of a weapon. But the issue for today involves what constitutes “concealed”. And, who gets to make a determination as to what is concealed–the judge, or the jury?

When O.S. was pulled over for a bad tag light (yes, a classic bogus stop) the officer asked him to step out of the car. Once the door opened, the officer “could observe the brass knuckles sitting in the pocket by the driver’s door.” Id. An important question on any concealed weapons charge involves the degree to which the weapon was recognized by the officer. In this case, the defense attorney’s cross examination noted that the officer recognized the weapon “right away”. Id. O.S. also admitted to the officer that he had the brass knuckles in the car.
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dog eating.jpgHave you tried watching a cable news channel recently? I can’t do it. There’s always two to four talking heads arguing, and you can’t even understand the point they’re trying to make because they’re talking over each other (at least “Around the Horn” on ESPN utilizes a MUTE button, very effective). Good luck trying to glean any sort of useful analysis from a cable news program. But, if you’ve never checkout out a real life debate, you should. Debates are organized, and often informative. The structure of a debate facilitates the digestion of difficult material in a short period of time (assuming, of course, that the debate organizers have selected the proper panel). One of my favorite sites for debates is Intelligence Squared. Most of these debates are well organized, and both sides are well represented.

Our criminal justice system has similar rules to these debates. Even though we criminal defense lawyers waive the Constitution every chance we get, our First Amendment right to free speech doesn’t apply when a jury is listening. Under Florida’s evidence code, a jury may only be told certain things regarding the evidence, certain things regarding the potential sentence (death penalty, for example), and certain things regarding the rules governing the jury’s decision (reasonable doubt, weighing witness testimony, etc.).
We criminal lawyers don’t get to say what we want to a jury. We don’t get to tell the truth. We don’t get to tell the jury that our client will go to prison for a minimum of three years for possessing $100 worth of pills. No free speech whatsoever. But, leave it to some prosecutors to attempt to circumvent the rules of evidence, and try to sneak a few lies in the back door. And, telling the jury lies is exactly what today’s case study involves (ok, maybe the term “lie” is too strong of a word, read on, and you decide).

In Mitchell v. State, the defendant was convicted of animal cruelty. 118 So. 3d 295 (Fla. 3d DCA 2013). You’re not going to like the facts of this case, but that’s never stopped me from laying it out there. Mitchell and a few friends were eating some steaks, drinking some beer. So far, so good. One friend fed Mitchell’s dog a piece of steak. Mitchell freaked out, and attempted to grab the steak back from the dog. Good luck with that, right? Right. The dog bit Mitchell–after all, we’re talking about steak here, how did you expect the dog to react?
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police car.jpgOur criminal justice system punishes two parties–the government, and citizens (defendants). The government gets punished when it does something illegal in order to obtain evidence. Theoretically, such unconstitutional things don’t happen, but we live in an imperfect world, and in order to deter the government from illegal searches and seizures we criminal defense lawyers get to “suppress” illegally obtained evidence.

Today we’re going to discuss a Motion to Suppress in a fleeing and attempting to elude case. As you probably already know, motions ask the judge to do something. In a Motion to Suppress, a criminal defense attorney asks the court to suppress a piece of evidence. Sometimes, the effect of suppressing a key piece of evidence will be that the whole case must be dismissed. Other times, suppression simply makes life more difficult for the prosecutor. Either way, I’m happy.

In State v. Kirer, the defendant/driver wasn’t breaking any traffic laws, but he failed to stop when the cop behind him turned on his lights, sirens, and P.A. system. 120 So. 3d 60 (Fla. 4th DCA 2013). Of course, once the P.A. system comes on, it should be no surprise that you’re about to encounter one pissed off cop. The second nasty result of an officer wielding his P.A. system is that you tend to receive several more tickets than you deserve. Getting back to Kirer’s case, he failed to stop in a timely manner, but the statute does not tell us how much time we have to stop. Is two minutes of failing to pull over a felony fleeing charge? Three minutes? Four? The problem here is “timing” and physics–time is relative, scientifically speaking (if it even exists at all, it is now called “spacetime”). Sure, I’m not qualified to go any further with this concept, but you get the point. Fleeing and attempting to elude charges are often based upon the mere opinion of a frustrated cop screaming through the P.A. for you to pull over. That being said, “cop time” is always very short. If you don’t pull over instantly, law enforcement will assume you are fleeing and attempting to elude them. Many of us have seen the Rodney King beat down, YouTube is full of bad cop behavior, so it seems reasonable to pull our vehicle into a safe, well lit location, right?. Is there any law that you MUST pull over on the side of a dangerous highway with cars routinely exceeding the 70 mph limit? Well, yes, there’s a fleeing charge–and it’s a felony.
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bottle.jpgOnce again, it seems like the juveniles are creating some good case law for defense attorneys. So, I find myself torn between having good case law (can’t put a price on that), and the insane amount of money our government wastes in the process. Anyway, let’s talk about B.B. v. State, 117 So. 3d 442 (Fla. 2nd DCA 2013), a case in which a juvenile was convicted of providing false identification to a law enforcement officer and possession of alcohol by a person under twenty-one years of age. Her criminal defense attorney moved to dismiss these charges, but the motion was denied, and this appeal resulted. Here’s what happened.

The Polk County Sheriff’s Office stopped a vehicle for speeding. When the car stopped, the driver took off running into the woods. This happens on occasion, no need to draw our guns here, just call out the expensive helicopters to make sure we spend $3,125 in chopper fuel costs to chase a misdemeanor suspended license charge. Even though the driver took off, there were two people remaining in the car, B.B. (a juvenile) in the front passenger seat, and another person in the rear seat. When the police asked B.B. her name, she lied, and gave them her sister’s name. Also, police found an open can of Four Loko in the console between the driver seat and passenger seat. In case you didn’t know, Four Loko is an alcohol/energy drink. For those instances in which kids don’t have enough energy to party until the break of dawn, this drink will get you there with energy to spare (supposedly). The cops on the scene decided not to conduct an investigation as to who possessed the alcohol, and simply charge B.B. with the Four Loko possession. Once again, stellar police work.

Here’s something you already know. Lots of money gets spent in the criminal justice system for stupid crimes. Are you getting your money’s worth? Sure, B.B. was arrested and maybe even taught a lesson, but that doesn’t make me feel any safer. And, you want to see tons of money down the drain? Take a closer look at Polk County Sheriff’s creepy obsession with busting prostitutes–under the guise of “curbing” human trafficking. Why stop violent crimes or drug trafficking, when you can bust some 32 year old single mother of two trying to give a “body rub” for $60 bucks? These moms must be stopped sheriff, please, spend thousands more, whatever it takes! Sure, tons of drugs are entering Florida, Mexican drug lords are sanctioning killings in our Florida streets Goodfellas style–but we’re too busy taking B.B. to jail and busting Backpage backrubs. By now, it should be a bit clearer as to why B.B. isn’t getting the education she deserves. Those “human trafficking” operations cost several teacher’s salaries per sting.
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