Jacksonville Criminal Defense Lawyer Blog

September 23, 2022

In Florida, What is a Claim for Abuse of Process?

What is Abuse of Process?

Abuse of process involves the use of criminal or civil legal process against another primarily to accomplish a purpose for which it was not designed. In the case of Cline v. Flagler Sales Corporation, Cline purchased what was described as a chattel (possibly an appliance) from Flagler Sales Corporation and executed a retail installment contract. Flagler hired someone to collect the installment payments that were not made. Meanwhile, Cline returned the chattel which was accepted. However, the collector filed criminal charges against her under F.S. Section 818.01. This law makes it a crime to remove property from the county in which you live where another person or entity holds the title to the item (chattel). The charge resulted in Cline’s arrest.

Abuse of Process Involves the Issuance of Improper Process Which is Used.

March 7, 2022

What Is Probable Cause?

by Neil Weinreb

What is probable cause?

When a police officer conducts an arrest, probable cause is the standard used to justify a search by police. It simply is the legal basis upon which a legal search by a policeman or police agency can be based. The Fourth Amendment to the United States Constitution guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

How does a warrant get issued?

February 18, 2022

What is Civil Theft?

by Neil Weinreb

In short, the cause of action of Civil Theft involves the taking of another person’s property without their consent with the intention to deprive the person of their property. There is no distinction in terms of the act of theft between criminal and civil theft. However, the consequences are different and the proof required is also different.

772.11 Civil remedy for theft or exploitation.—

(1) Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of ss. 812.012–812.037 or s. 825.103(1) has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts. Before filing an action for damages under this section, the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section. If the person to whom a written demand is made complies with such demand within 30 days after receipt of the demand, that person shall be given a written release from further civil liability for the specific act of theft or exploitation by the person making the written demand. Any person who has a cause of action under this section may recover the damages allowed under this section from the parents or legal guardian of any unemancipated minor who lives with his or her parents or legal guardian and who is liable for damages under this section. Punitive damages may not be awarded under this section. The defendant is entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim that was without substantial fact or legal support. In awarding attorney’s fees and costs under this section, the court may not consider the ability of the opposing party to pay such fees and costs. This section does not limit any right to recover attorney’s fees or costs provided under any other law.

November 5, 2021

WHAT SHOULD YOU DO WHEN POLICE WANT TO SEARCH YOUR VEHICLE?

by Law Office of David M. Goldman

Seeing the flashing lights and hearing the siren of a police car behind you while on the road is always scary. In the best cases, these traffic stops are very brief and only involve a short conversation. In other instances, though, the stop may become much more serious, and the officer may at some point tell the driver they want to search the vehicle. If you find yourself in this situation, it is critical that you know what to do and that you understand how to protect your rights. Your Jacksonville criminal defense lawyer can assist you with any illegal search and seizure that you may be subjected to.

Vehicle Searches Under the Fourth Amendment

The Fourth Amendment protects all American citizens from unlawful search and seizure. Before law enforcement searches any property, they must obtain a search warrant to do so. That protection applies to vehicles as well, but drivers may have fewer rights when an officer wants to search their vehicle. The law recognizes that drivers could easily leave the scene if the police officer had to obtain a warrant before searching the vehicle. As such, police officers must only have probable cause to search a vehicle during a traffic stop, and they do not need to obtain a warrant.

October 22, 2021

Is It Legal for Police to Briefly Detain Me?

by Neil Weinreb

Police frequently conduct searches of individuals based on a reasonable suspicion. A brief investigative detention based on a reasonable suspicion is called a “Terry Stop”.

What is Reasonable Suspicion?

Reasonable suspicion is a term that is used to refer to a police officer’s reasonably justifiable suspicion that a person had committed a crime or was in the process of committing one, or was about to commit one. Where the officer believes that a crime may have been committed or is about to be committed, he or she may make a temporary detention of the suspect and may proceed to pat them down.

September 27, 2021

Five Important Things You Should Know About DUIs in Florida

by Law Office of David M. Goldman

The criminal offense of driving under the influence (DUI) seems straightforward but is much more complex than people first think. It can be found in Florida statute §316.193. All drivers within the state of Florida should know about the state’s DUI laws, and what they entail, so they do not find themselves facing charges. If you have been charged with a DUI, your Jacksonville criminal attorney can assist you with getting the best result out of a bad situation.

DUI vs Drunk Driving

The Florida Statutes define the offense of DUI as driving or having physical control of a vehicle while under the influence of alcohol, chemicals, or controlled substance that results in blood alcohol of at least 0.08 percent, or that impairs a person’s normal faculties. Many people use the terms “DUI” and “drunk driving” interchangeably, but the two are different. While a drunk driver is considered to be under the influence, not all motorists under the influence are drunk, as chemicals and controlled substances can also impair a person. Some people can be impaired taking over-the-counter medications such as Nyquil. Consult your local Jacksonville criminal attorney if you have been charged with driving under the influence.

September 24, 2021

Can You Get a DUI from One Drink?

by Neil Weinreb

In the state of Florida, a person who has any alcohol in his or her body is prohibited from being in physical control of a motor vehicle. F.S. 322.62. The penalties for violation of this law result in being placed out of service immediately for a twenty four hour period. If one has a blood alcohol level of .04 or more grams of alcohol per 100 milliliters of blood or a breath-alcohol level of .04 grams of alcohol per 210 liters of breath, he or she is exposed to additional penalties that are enumerated in F.S. 322.61. The ramifications could result in adverse effects on one’s livelihood with restrictions on the operation of a commercial vehicle.

What Are the Possible Ramifications of a Single Drink?

A single drink can result in fulfilling the first element of proof required to prove a DUI charge. The next element required to meet the definition of a DUI in Florida is proof that an individual was driving a motor vehicle within the state of Florida. The last element required to prove a DUI case is that the offender’s normal faculties are impaired. The last element may be proven by an officer’s belief that the driver was impaired and or by the smell of alcohol on his or her breath, slurred speech, difficulty standing, walking in a straight line, based on a field sobriety test. This is a non inclusive list.

August 27, 2021

How Can You Appeal a Criminal Conviction?

by Neil Weinreb

In Florida, someone who has been convicted of a crime can consider appealing a conviction to obtain relief from the conviction and sentence. The criminal court system allows appeal. However, most lower court decisions are upheld. Therefore, attempting to appeal a case may be a significant challenge. Some appeals are a matter of right and some are discretionary on the part of the appellate court. Generally, the party the files the appeal attempts to show a material error on the part of the trial court.

What Type of Error is Substantial?

The appellate courts distinguish between harmless error and a material error. Where an appellate court reviews an error as harmless, it is not considered to have a substantial impact on the disposition and eventual result of the case. Where an error by a trial court does not show that it affects the substantial rights of a party, it may be difficult to prove that a material mistake was made by the trial court and obtain relief.

July 9, 2021

If You Have Been Charged with a Crime, Do You Know What Mens Rea Means?

by Neil Weinreb

What is Mens Rea?

Mens Rea is the mental element of an individual’s intent to commit a crime. It can also be expressed as the knowledge that a particular act would result in a crime being committed.

Why is Mens Rea significant if I have been accused of a crime?

June 11, 2021

DO YOU UNDERSTAND YOUR MIRANDA RIGHTS?

by Neil Weinreb

The United States Supreme Court handed down a decision that has been historic in a case entitled the Miranda v. Arizona, in 1966. Essentially, four cases made it to the United States Supreme Court with similar issues. All cases involved interrogation by police in a closed room where the putative Defendant was cut off from the outside world. In three of these cases, the Defendant signed statements that were admitted at trial and one of the cases involved oral statements admitted at trial. Following the Miranda Case, whenever a person is taken into detention, that individual must be advised of their Fifth Amendment right against making any self-incriminating statements. When the police question someone in custody, they must advise:

You have the right to remain silent.
Anything that you say can and will be used against you.