Jacksonville Criminal Defense Lawyer Blog

June 8, 2018

Traffic Stops for Window Tinting and How it Affects Your DUI Case

Florida Statute 316.2953 provides the law on window tinting and what is legal in the State of Florida. It states that “a person shall not operate any motor vehicle on any road on which vehicle the side wings and side windows on either side forward of or adjacent to the operator’s seat are composed of, covered by, or treated with any sunscreening material or other product or covering which has the effect of making the window nontransparent or which would alter the window’s color, increase its reflectivity, or reduce its light transmittance.” The statute provides that “a sunscreening material is authorized for such windows if, when applied to and tested on the glass of such windows on the specific motor vehicle, the material has a total solar reflectance of visible light of not more than 25 percent as measured on the nonfilm side and a light transmittance of at least 28 percent in the visible light range.” What happens if a police officer sees your window tint and pulls you over, resulting in DUI arrest?

In State v. Coley, 157 So.3d 542 (Fla. 4^thDCA 2015), Gary Coley was stopped by police for an illegal window tint. He was charged with possession of cocaine and cannabis and he moved to suppress any and all contraband seized, and statements made, arguing that there was not probable cause for the stop. The police officer testified that he had issued many citations for illegal tints of side windows during the hearing. He stated that in his experience, the tint is illegal where the driver of the vehicle cannot be seen. The officer correctly stated that per statutory regulation, a tint measurement of less than 28 % is illegal. The officer indicated that he stopped Coley because he could not see the driver of the vehicle through the tint of its side windows, thereby giving him probable cause to conduct the traffic stop. The defense argued that the traffic stop was illegal due to the officer’s mistake of law because the law does not state that if a driver cannot be seen through it, then the tint is illegal. The trial court granted the motion to suppress.

The Fourth District Court of Appeals held that a traffic stop is permissible under the Fourth Amendment where an officer has probable cause to believe that a traffic infraction occurred. The court provided: “As we have previously recognized, the probable cause standarddoes not demand any showing that such belief be correct or more likely true than false. A ‘practical, nontechnical’ probability … is all that is required…. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. State v. Neumann, 567 So.2d 950, 952 (Fla. 4th DCA 1990) (citations omitted) (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)).”

May 22, 2018

Golfer Lucas Glover’s Wife Arrested in Florida: Possible Criminal Implications

by Holli Dean

National headlines were made when the wife of former U.S. Open champion Lucas Glover was arrested for domestic violence battery and resisting arrest in St. Johns County, Florida on May 13, 2018. The altercation allegedly occurred after Lucas Glover missed the 54-hole cut at The Players Championship. Lucas Glover told authorities that his wife gets violent every time he does not play well in a major PGA Tournament. There were allegedly visible injuries on Lucas Glover and his mother. Krista Glover faces a court date on May 31, 2018 and was released on a $2,500 bond.

Krista Glover is charged under F.S. 784.03 which states the offense of battery occurs when a person:

1) actually and intentionally touches or strikes another person against the will of the other; or

May 17, 2018

Byrd v. United States: An Examination of Expectation of Privacy in Rental Cars

by Holli Dean

A recent United States Supreme Court case, Byrd v. U.S., No. 16-1371 (2018) discussed the parameters of expectation of privacy under the Fourth Amendment of the U.S. Constitution. There was a circuit split about whether an unlisted driver of a rental car has a reasonable expectation of privacy in the rental vehicle. The question certified was does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement?

In the case, Latasha Reed rented a car in New Jersey while petitioner Terrence Byrd waited outside the rental facility. Reed listed no other drivers on her rental agreement and the agreement warned that permitting an unauthorized driver would violate the agreement. Reed gave the keys to Byrd upon leaving the building and he stored his personal belongings in the trunk and left by himself to drive to Pennsylvania.

Byrd was stopped in Pennsylvania for a traffic infraction whereupon the police learned it was a rental car and he was not the authorized driver. Byrd had prior drug and weapons convictions. The police searched the car, stating they did not actually need his consent because he was not listed on the rental agreement. They found 49 bricks of heroin in the trunk and body armor and the evidence was turned over to federal authorities. Byrd was charged with federal drug and other crimes. The District Court denied a motion to suppress the evidence as the fruit of an unlawful search, and the Third Circuit affirmed because Byrd was not listed on the rental agreement and he lacked a reasonable expectation of privacy in the car.

May 11, 2018

Understanding the Florida Sexual Predator Designation

by Holli Dean

Florida Statutes § 775.21, also known as the Florida Sexual Predators Act, was established by the Florida Legislature to implement a strategy on how to deal with repeat sexual offenders, sexual offenders who use violence, and sexual offenders who prey on children. Essentially, this strategy includes ensuring decisions to release sexual predators due to prison overcrowding are not made, providing for specialized supervision of sexual predators who are in the community by specially trained probation officers with low caseloads, requiring the registration of sexual predators with the Florida Department of Law Enforcement, providing for public notification concerning the presence of sexual predators, and prohibiting sexual predators from working with children.

Offenders that must be designated as “sexual predator” include offenders convicted of:

A capital, life or first-degree felony violation of kidnapping, kidnapping of a child under 13, false imprisonment, false imprisonment of a child under 13 where the victims is a minor or sexual battery, lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age, or selling or buying of minors, or something similar from another jurisdiction.

April 20, 2018

Controlled Substance Classifications under Florida Law

by Holli Dean

F.S. § 893.13 provides that a person may not sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. The penalties can be a felony or misdemeanor depending on the type and quantity of controlled substance you possess, among other things such as selling on a school, church, or nursing home grounds.

F.S. § 893.03 lists the controlled substances and how they are classified under Florida law.

Schedule I: Drugs that have a high potential for abuse and have not currently accepted medical use. Some examples include Heroin, LSD, Peyote, PCP, and MDA.

April 11, 2018

Basics of Burglary in Florida

by Holli Dean

Burglary in Florida is defined as entering a dwelling, structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter.

F.S. § 810.02(2) indicates that burglary is a felony of the first degree if the offender assaults or batters another person or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon. It can also be a first-degree felony to use a motor vehicle as an instrument to assist in committing the offense and damaging the dwelling or structure or to cause damage in excess of $1,000.00.

F.S. § 810.02(3) indicates that burglary is a felony of the second degree if, during the offense, the offender does not assault or batter a person and is not or does not become armed with a dangerous weapon or explosive. It will also be a second-degree felony if the offender enters or remains in a dwelling and there is or is not another person in the dwelling and the offender enters or remains.

April 2, 2018

Probation Violations and the Florida Anti-Murder Act

by Holli Dean

The Anti-Murder Act in Florida requires violent felony offenders or other certain types of offenders who violate probation or community control to remain in jail until the court determines whether the individual poses a danger to the community. This law was established in March 2007. The Florida Department of Corrections will designate those offenders as Violent Felony Offenders of Special Concern or “VFO” on the violation of probation or community control affidavit.

Florida Rules of Criminal Procedure 3.790(b)(3) indicates that except when the alleged violation of probation is based solely on the defendant’s failure to pay costs, fines, or restitution, the defendant shall not be granted bail or any other form of pretrial release prior to the resolution of the probation or community control violation hearing. The court shall not dismiss the probation violation warrant pending against a defendant without holding a recorded violation hearing at which both the state and the accused are represented. At that hearing, the court shall make a written finding as to whether the defendant poses a danger to the community.

The court bases its findings on one or more of the following factors:

February 26, 2018

The 411 About Plea Agreements in Florida

by Holli Dean

The majority of criminal cases in Florida get resolved by plea agreements. In the Florida Rules of Criminal Procedure, Rule 3.171 governs plea agreements. The prosecutor has broad discretion in plea agreements. The prosecutor may engage in discussions with the defendant’s attorney or, if the defendant is unrepresented, with the defendant himself as long as a record is made of the discussions.

The prosecutor may ask the defendant to enter a plea of guilty or no contest (nolo contendere) to a charged crime or to a lesser or related offense in exchange for the prosecutor agreeing to any of the following:

1) abandon other charges;

February 2, 2018

UPDATE: Certain Convicted Felons in Florida Could Have Another Option for Civil Right Restoration

by Holli Dean

Recently, I wrote about new House Bill 903, the Economic Redemption and Restoration of Constitutional Rights Act. If passed, this law would authorize certain convicted felons to petition for constitutional or civil rights to be restored in the circuit court of the county in which the felon resides or in the county where the felon was convicted. At that time, a class-action lawsuit, Hand v. Scott, was pending against Gov. Rick Scott, the Clemency Board, and six other state officials, including the Secretary of State and the Department of Corrections Head. The lawsuit was filed by the Fair Elections Legal Network “FELN,” on behalf of nine former felons.

According to the FELN, Florida is one of four states that denies the right to vote to all former felons until they petition for rights restoration, and 1.68 million Floridians currently do not have the right to vote due to a felony conviction (the highest state total in the nation). Over 10,000 are waiting for a hearing on their restoration applications. If no new applications were submitted, it would take the Clemency Board almost 51 years to hear the entire backlog of applicants.

As cited from a FELN press release:

January 26, 2018

Eyewitness Identification Procedures in Criminal Cases Must Be Closely Examined

by Holli Dean

Recently, a new law went into effect in Florida regarding eyewitness identification in criminal cases. Florida Statutes section 92.70 is called the Eyewitness Identification Reform Act “EIRA.” If you have a criminal case where an eyewitness has identified you, it is very important that these procedures were followed or the identification can be thrown out of court. The statute contemplates eyewitness identification procedures being more uniform and fair with the revisions.

F.S. 92.70 specifies that the lineup in a criminal case must be conducted by an independent administrator. The statute defines independent administrator as “a person who is not participating in the investigation of a criminal offense and is unaware of which person in the lineup is the suspect.” The police may use a neutral alternative method of identification if there is no independent administrator. One alternative method listed in the statute is a photo lineup. An automated computer program that can automatically administer the photo lineup to the eyewitness and prevent the lineup administrator from knowing which photo is being viewed until the end can be used for identification. Or the photographs can be placed in folders, randomly numbered and shuffled and then presented to the eyewitness so the lineup administrator cannot see or track which photo is being viewed until the end.

Under the EIRA, before the lineup, the eyewitness must be told and acknowledge in writing: