“License and registration, please.”  If you have ever been pulled over by police, you have probably heard this phrase.  In recent years, Americans have grown more and more suspicious of police officers. With all that we see and hear on the news and in social media, arguably, there is cause for alarm in some cases.  In my practice as a Jacksonville Criminal Lawyer, I get questions regarding encounters with police regularly. Criminal defense lawyers can’t always give the definite answers that people are looking for, however. Much of what we can and cannot do under Florida law is based on the particular details of a situation.   There are certain rights that all Jacksonville criminal attorneys will tell you that can or should expect to be a given.

license and registration checkWith the popularity of smartphones with video recording capabilities, many people are taking it upon themselves to record officers. I recently watched a video online that showed a man pulled over at a DUI checkpoint. The driver refused to give the police officer his license and registration. The driver asked the police officer to explain what probable cause there was to ask for the driver’s license and registration.   The officer even threatened to have the man arrested for interference, but the driver didn’t fold. Instead he asked that a supervisor be called out to the scene. Once the supervising officer arrived, he leaned forward a little into the driver’s window and stated that there was no smell of an alcoholic beverage and told the driver he was free to go. The original officer who had demanded the driver’s license and registration and repeatedly said the U.S. Supreme Court and upheld DUI checkpoints looked very confused.

The likely reason that the supervising officer let the driver go about his business is that the United States Supreme Court in the case of Delaware v. Prouse back in 1979 held that it is improper for police, without “articulable and reasonable suspicion” to detain drives simply to check their licenses and registration.  The U.S. Constitution’s provision against unreasonable search and seizure provides a shield against this type of police conduct. Florida’s Constitution also protects against unreasonable searches and seizures. For more information or help with a case, contact the Law Office of David M. Goldman, PPLC today. Initial consultations are free.

In most situations, bad driving gets you a traffic ticket. However, for some driving offenses, traffic tickets are not enough as far as the law is concerned. You can be arrested for being a bad driver. Recently, a woman was arrested in Virginia after being caught driving over 90 mph on three separate occasions within an hour. The third time she was stopped, Kai Kitchen was arrested for reckless driving.

Reckless drivingFlorida has its own version of reckless driving.  Florida Statute 316.192 states, “Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.”  Reckless driving is a criminal offense that can lead to jail, even prison in some cases, depending on whether it’s the first conviction or whether there are injuries or property damage.  Reckless driving is deemed more serious than simple careless driving.  Careless driving leads to a civil citation and is defined in Florida Statute 316.1925, which states, “Any person operating a vehicle upon the streets or highways within the state shall drive the [vehicle] in a careful and prudent manner, having regard for the width, grade, curves, corners, traffic, and all other attendant circumstances, so as not to endanger the life, limb, or property of any person.”

Reckless driving can be punished more severely, because it looks at situations where the driver is actively doing something that can be dangerous, while careless driving is more like being absent minded while driving.  Causing property damage, an injury, or even a death while driving carelessly isn’t a criminal offense, but doing either while driving recklessly can result in a stiff punishment.

Being arrested can be a scary and very embarrassing ordeal.  After an arrest, a person’s criminal record is public information and can be viewed on request by pretty much anyone.  That means that a nosy neighbor, friends and family, or even your employer can look into why you were arrested and what happened.  Most often, people want their criminal records sealed for purposes of finding or keeping employment.  Sometimes, others are solely focused on avoiding the embarrassment of the offense that landed them in jail being a matter of public record.

criminal record sealFlorida law, under Florida Statute 943.059, allows a court to seal criminal records.  As long as the person attempting to seal a criminal record has never actually been convicted of a crime, the process is normally simple and straight forward.  The law allows for the sealing of one criminal offense, but if one incident resulted in multiple offenses, then they all can be eligible for sealing.  Separate, unrelated offenses cannot all be sealed.  Only one can be chosen.  In some instances, the State of Florida, through the State Attorney’s Office, may object to a criminal record being sealed.  However, the vast majority of requests go unopposed by the State.  There are some offenses that cannot be sealed, even if there are no convictions on a person’s record.  For example, many sexually motivated offenses cannot be sealed. Continue reading

Search and seizure issues are normally at the top of the list in any criminal case where physical evidence is recovered from a defendant.  Florida law, like federal law, provides protection for citizens against illegal search and seizure. This protection stems from the Florida Constitution and the United States Constitution. At its essence, it is centered on idea that the government needs a good reason to intrude on a citizen’s expectation of privacy.   In criminal law, evidence that is gathered in violation of state or federal search and seizure law can be suppressed.  A good criminal defense lawyer will always immediately begin this analysis whenever hearing the facts of a new criminal case for the first time.

search and seizureRecently, in the case of Cole v. State of Florida, the Third District Court of Appeals (3rd DCA) reviewed a case involving an alleged violation of search and seizure law. Cole was charged with tampering with evidence, trafficking in cocaine, and possession of drug paraphernalia after he was pulled over by a police officer. The traffic stop had been initiated due to a faded temporary tag placed on the car Cole was driving. The defense filed a motion to suppress the evidence that it believed was the result of an illegal search. During the traffic stop, Cole acted nervous, clinched his fists, and held a pen tightly in his hand. He was also sweating and stuttering. The stopping officer believe that the pen could potentially be used and a weapon. She ordered Cole from the car to do a pat down. Florida law allows an officer to conduct a pat down when there is a reasonable suspicion that a person who is being temporarily detained may be armed with a weapon.   The court ruled that the pat down was reasonable under the circumstances.

As Cole was getting out of the car for the pat down, he threw something underneath the car. It was later discovered to be cocaine. During the pat down, something was felt in Cole’s sock, and the officer removed the item. It turned out to be cocaine, as well. The appellate court found that it was wrong for the officer to pull the bulge from Cole’s sock, but found that it would have been discovered anyway after Cole was arrested for the drugs that were thrown underneath the car. This is referred to as the “inevitable discovery” doctrine. The court said that it did not matter that the wrongful search by the officer came before the drugs under the car had been discovered. The appellate court held that the trial court was correct in denying Cole’s motion to suppress.

I recently came across a story where a woman was arrested for stealing a car that Florida law recognizes as, in essence, half hers.  After a verbal altercation with her husband, the woman left in the family car, which was registered in her husband’s name.  The husband reported the car stolen.  When the police found the women with the car a few days later, she was arrested for grand theft auto.  Even after she explained that it was her husband’s car that had been purchased during the marriage, and that she was a listed driver on the insurance card, she was still arrested.  If you’re anything like I am, you’re a little bothered to hear this story.  I suppose there is a silver lining here.  The woman reportedly only spent a few days in jail before posting bail, and the case was ultimately dropped.

theftI asked my nine year old son to tell me what he thought theft was.  He said that it’s when you take something without permission.  I then asked if he wasn’t allowed to use his laptop for some reason, but took it anyway, would that be stealing?  He replied, “It’s not stealing if it’s already yours.” From the mouths of babes.  Any Jacksonville criminal defense lawyer could easily tell you that theft takes place when a person knowingly obtains or uses the property of another and intends to permanently or temporarily deprive the person of the use of their own property.  The key phrase is property of another.   Section 61.075, Florida Statute makes property purchased during a marriage, whether solely in the husband’s or wife’s name or jointly, marital property.  This means it belongs to the both parties of the marriage.

If you or a loved one are in need of legal representation, call the experienced Jacksonville criminal defense attorneys at the law office of David M. Goldman, PLLC today.  We can help.

The United States Supreme Court recently found that Florida’s death penalty sentencing process was unconstitutional.  Specifically, the Court found that Florida’s death penalty scheme violated the 6th amendment to the U.S. Constitution.  The case of Hurst v. Florida was argued before the Court in October of 2015, and the case was decided in January of 2016.  Florida law calls for life imprisonment in capitol cases upon conviction.  A person may be sentenced to death, but only after a jury has heard additional evidence on the death issue.  The jury will then provide an advisory life or death sentence, but the ultimate decision comes from the judge in the case.  This last step is what the U.S. Supreme Court found problematic.

death penaltyIn Hurst v. Florida, Timothy Hurst was convicted of murder for the death of his co-worker.  The jury found him guilty and recommended death.  The judge also found that the death penalty was warranted.  Hurst appealed to Florida’s District Court of Appeal and was granted a new sentencing phase hearing.  The death penalty, again, was the result in the second proceeding, as well.  The case was then appealed to the Florida Supreme Court, which upheld the result, despite Hurst’s argument that his 6th amendment rights had been violated.  Hurst was referring to a U.S. Supreme Court case where the high court struck down an Arizona death penalty sentencing scheme similar to Florida’s where the judge played a role in deciding the ultimate question of life or death.  Once Hurst’s case was heard by the high Court, the U.S. Supreme Court justices agreed with Hurst.

Florida’s legislature is now reconsidering the death penalty procedures in the State.  According to Jacksonville.com, a Florida senate committee will begin working this week on a death penalty fix.  For more information or help with a criminal case for yourself or a loved one, call the Law Office of David M. Goldman, PLLC today.  Initial consultations are always free.  Let our experienced Jacksonville criminal defense lawyers help you reach the best outcome in your case.

Last month, a Florida woman was arrested for Domestic Battery when she attached her husband… for passing gas in bed.  According to huffingtonpost.com, a Florida woman was so offended by her husband passing gas during the wee hours of the morning, that she elbowed him and then, literally “kicked him out” of bed.  The husband waited for things to calm down a bit before returning to bed.  A second gas-passing episode landed him in more hot water and resulted in more elbows and kicking.  The police were eventually called, and the wife, 55 year old Dawn Meikle was arrested.

Domestic ViolenceAlthough no injuries were reported in this incident, Florida criminal defense lawyers can tell you that domestic violence is taken very seriously.  Florida Statute 741.28 defines domestic violence as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.”  In my experience as a Jacksonville criminal defense lawyer, the vast majority of domestic violence incidents are of the misdemeanor variety.  They involve minor or no injuries, and are normally between couples.  Domestic violence can occur between brothers and sisters, parents and children, or between any other household members living together as a family.

Obviously, the incidents are sometimes more serious.  A similar story to this one, also out of Florida, involved a woman throwing a kitchen knife at her boyfriend when he passed gas while standing in front of her.  I’ve conjured some pretty rancid gas in my day, but I’ve never been attached for it.  I have been yelled at and given the evil eye though.

Posting pictures or videos of yourself committing crimes is probably not the wisest thing to do in a country where just about everyone is on social media and can easily view what you post.  Even grannies, people with no real friends, and the police have social media accounts, like Facebook, Twitter, and Snapchat. Now, I imagine that there are places in the world where lawlessness runs rampant and posting pictures or videos of yourself using drugs, possessing stolen property, or beating your spouse won’t land you in hot water, but America is not one of those places.  Well, maybe in some parts, but you get what I mean.  In general,  I think that it takes a special type of stupidity to believe that you can do these types of things and suffer no consequences.  Recently, in Gainesville, Florida, according to accesswdunn.com,  a group of young men were arrested after posting images of themselves on Snapchat holding guns, drinking alcohol, and using marijuana.

self-incrimination on social mediaThe young men, one of which was a juvenile, were arrested after someone viewed the images and reported the group to the police.  They were arrested shortly after. One of the young men was in possession of a gun that had been stolen from a burglary of a car.  In Florida, breaking into a car and stealing a gun is considered an armed burglary.  Believe it or not, this offense is actually punishable by life in prison, even when the burglary is only to a car and not a person’s home.  That doesn’t mean that the young man in this story will get sentenced to life in prison, but that is an unfortunate, yet unlikely, possibility.  Although, in my experience such a sentence for a young person, especially someone that doesn’t have much of a record, is not likely, this does not mean that bad things can’t happen that will make the young man in possession of the stolen gun very uncomfortable.

Our country’s constitution grants criminal defendants protection against self incrimination, which means you are not required to tell on yourself.  However, when you post images or videos of yourself on social media that show you and your friends committing crimes, you’re pretty much waiving your right against self-incrimination.

negligence_500-288x300Second chances are a precious commodity in the world. Second chances in the criminal justice system are even more precious. Oftentimes, the opportunity to be given a break in the criminal justice system comes in the form of diversion programs.  They give people the opportunity to say, “oops”, and try again.  Diversion programs can be referred to by different names, but in general will give a person a chance not to be prosecuted as a result the offender’s participation in a program, typically aimed at addressing some sort of issue.  For instance, a person that is caught shoplifting may be required to attend a theft class as part of diversion.  Community service and fines are also common, since there is normally a fee attached to participating in the program.  Some other terms used are Pre-trial Intervention (PTI) or Deferred Prosecution (DP).

Florida Statute 948.08 gives state prosecutors discretion to use PTI programs.  In the case of  State of Florida vs. Michael Board, the defendant complained after the State revoked the PTI program due to alleged violations of the agreement by Mr. Board.  The trial court agreed with Mr. Board and required to the State to request permission from the trial court before being allowed to revoke PTI.  The State appealed and the appellate court sided with the State, pointing out that Florida law gives all discretion regarding PTI to the prosecution agency.

In many cases where the defendant has no prior record and the case does not involve a violent offense, the State will use its discretion to send the defendant to PTI.  The benefits of PTI lie primarily in the fact that the case will be dropped upon successful completion of the program.  Being able to apply to have your record sealed or expunged after completion is another nice benefit of PTI.  The programs may involve things from community service on the one hand, to classes being taken on the other hand.  In many cases, there are multiple requirements, but having the case dropped usually makes the program worth any trouble associated.  In many cases, the sooner you can have an attorney working on your behalf to convince the State that PTI is appropriate, then the better your chances of getting into PTI.  To speak an experienced Jacksonville criminal lawyer about your case, call us today to schedule a free consultation.

Things that you don’t know can, and oftentimes, will hurt you.  Under Florida’s criminal law, it appears to not be widely known by the average person that crimes committed by another person can get you into trouble under some circumstances.  Florida Statute 777.011, entitled Principal in the first degree, states “Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.”  In short, you can be charged if you commit the crime or if you help or assist in anyway.

Jacksonville criminal defense lawyerAs a Jacksonville criminal defense lawyer, I have encountered the surprise of clients and family members, typically parents, who are puzzled how a person who was not present ends up being charged with a crime.  For example, let’s say Jon Doe is a seventeen year old you man just a few weeks away from his eighteenth birthday.  John knows of a house where there is a gun collection.   John tells his friend, who has a history of burglarizing houses, where the house is located and how to find the guns inside the house.  The friend later breaks into the home and steals the guns while John is at work.  The friend has committed an Armed Burglary, which is a burglary committed when an offender is armed or becomes armed during the commission of a burglary.  Here, John’s friend becomes armed when he steals the guns from the house.  Can John be charged with Armed Burglary?  The answer is “yes”.  The horrible news for John is that Armed Burglary is an offense that is punishable by a maximum of life in prison.  John’s age makes it likely that he will be charged as an adult under these circumstances.

Remember when a person aids or counsels another regarding the commission of a criminal offense, the person may be charged whether or not the person was present at the time the offense is committed.  In the example used here John has certainly aided his friend with the Armed Burglary.  At the Law Office of David M. Goldman, PLLC, we have experienced Jacksonville criminal defense lawyers that can help you or a loved one in your time of need.  We can help protect your rights and help you reach the best outcome under the circumstances in your case.  Initial consultations are free.  Call us today to schedule your consultation with a qualified Jacksonville criminal defense lawyer.

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