Evidence

June 28, 2018

Florida Supreme Court to Rule on Retroactive Application of Stand Your Ground Law

The Florida Supreme Court will take up a question about whether a 2017 change to Florida’s “Stand Your Ground” self-defense law should apply to older cases. The 2017 change shifted the burden of proof from the defense to the prosecution. Two appellate courts have split about whether the change in 2017 should apply retroactively to defendants who were arrested before the law took effect but whose cases were pending.

The case is Tashara Love v. The State of Florida, 3D17-2112 (Fla. 3d DCA May 11, 2018) a case that was heard by the Third District Court of Appeal. Love’s writ of prohibition was denied, essentially denying her statutory immunity under the Florida Stand Your Ground Law, F.S. 776.032. On November 26, 2015, Love and a group of women were involved in an altercation outside a Miami-Dade nightclub. Love shot the victim, Thomas Lane, as he was about to hit her daughter. Love was charged with one count of attempted second degree murder with a firearm and Love invoked the Stand Your Ground Law because she committed the crime while defending her daughter.

Before the date the immunity hearing was held, the Florida Legislature amended F.S. 776.032. Prior to the amendment, the Florida Supreme Court held that defendants had the burden of proof in pretrial immunity hearings and they had to prove by a preponderance of the evidence their use of force was justified. The amendment provided that once a self-defense claim of immunity from criminal prosecution was raised by the defendant, the burden of proof by clear and convincing evidence is on the prosecution seeking to overcome the immunity. The State argued at her immunity hearing that the statute did not apply retroactively, and the trial court agreed and applied the preponderance of the evidence standard of proof. The Third DCA ruled that the statute did not apply retroactively, and Love was not entitled to the shift in burden of proof.

June 28, 2018

Community Control Sentence In Florida: What Is It and How Does It Work?

by Holli Dean

Community Control in Florida is a supervision program that is an alternative to incarceration only used in felony cases. If you are sentenced to Community Control, you are confined to your home unless you are working, attending school, doing public service hours, participating in treatment, or any activity that has been approved by your Community Control officer. It’s a benefit because you are home with your family and not in prison, but it can be very hard to follow the conditions. Frequently, probation

The Department of Corrections will supervise you and assign you a Community Control officer (think probation officer). Offenders will be required to report weekly to the Community Control officer and complete a daily activity log each week and a Community Control Offender Schedule to have preapproved regarding your whereabouts for the upcoming week. You will also be required to provide an hourly accounting of your whereabouts for the prior week to ensure you did not deviate from your preapproved schedule.

One thing to note is while you may be approved for your residence, common areas such as recreational facilities, swimming pool area, business office, laundry facilities, or the mail area are not included in areas you may be during Community Control.

June 8, 2018

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

by Holli Dean

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 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.

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.

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:

January 18, 2018

Can Law Enforcement Obtain a Blood Sample Without Your Consent in a DUI Case?

by Holli Dean

In certain circumstances, the answer may be yes. In Aguilar v. State, 43 Fla.L.Weekly D179a (3^rd DCA 2018), Juan Aguilar appeals a conviction for DUI crimes DUI Manslaughter, DUI with person or property damage, and DUI causing serious bodily injury, along with two counts of DUI, the lesser included offense. These charges arose out of a three car accident that occurred at around 3:00 a.m. one evening. Aguilar lost control of his car and struck one person who died, two who suffered serious bodily injuries, and one who suffered minor injuries. A state trooper observed Aguilar was “somewhat unresponsive, incoherent” and had “blood shot watery eyes,” “slurred speech,” and “had odor of alcohol” coming from his person and car.

The state trooper indicated that because there were “significant indicators” that Aguilar was displaying an “alcohol related impairment,” he came to the trauma center where Aguilar was taken to get a “blood draw.” He indicated that he made no effort to get a warrant to obtain the blood because of “time restraints.” He indicated that he again smelled an odor of alcohol and noticed his face was “flushed” and his eyes were “bloodshot and watery.” The blood sample taken, without consent or a warrant, showed a blood alcohol level of 0.112. Aguilar filed a motion to suppress the blood test results due to a lack of probable cause and lack of warrant. The State introduced evidence that it would have taken at least four hours to obtain a warrant and that “because of the natural metabolization of alcohol in the bloodstream, there were time constraints creating exigent circumstances to justify an exception to the warrant requirement.” The trial court denied the motion to suppress.

The U.S. Supreme Court has addressed the exigency exception to blood testing in DUI cases several times. It held that an exception to the Fourth Amendment for searches conducted outside the approval of a judge applies when “the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” The U.S. Supreme Court has held that natural dissipation of alcohol in the bloodstream was not a per se exigency, but one factor to consider in the totality of the circumstances test.

January 2, 2018

Kuckuck v. State: An Examination of Double Jeopardy With Solicitation and Traveling After Solicitation

by Holli Dean

William Kuckuck v. State of Florida, 43 Fla.L.Weekly D80b (5^th DCA 2017) involves a defendant, William Kuckuck, who was convicted of violating Florida Statutes section 847.0135(3)(b), by knowingly using a computer on-line service, internet service, or other similar device to solicit a person believed to be a parent of a minor child to obtain their consent to engage in unlawful sexual conduct with the child and of violating section 847.0135(4)(b) for traveling to meet the minor child to engage in unlawful sexual conduct after solicitation.

The arrest came about after an FBI Agent posed as the father of 11 and 9 year old daughters and posted an ad on Craigslist seeking “taboo” experiences for his “daughters.” Kuckuck responded by email and engaged in explicit communication regarding sexual conduct that Kuckuck sought to engage in with the “daughters” on July 14, 2016 and sought consent from the “father” on July 15, 2016. On July 15, 2016, Kuckuck traveled to have sex with the “daughters” and was arrested.

There were two counts filed by the State of Florida; for his solicitation on July 14, 2016 and his traveling after solicitation on July 15, 2016. Kuckuck argued that double jeopardy applied and prohibited a conviction on the solicitation count because the conviction would be based upon the same acts as the traveling charge and was subsumed in the traveling count.

December 21, 2017

Can You Refuse a Test Given by Law Enforcement When Stopped for DUI in Florida?

by Holli Dean

If you are ever stopped for DUI, you may not trust the breath test and want to refuse to take the test or you may even want to ask for a separate blood test or breath test by a lab of your choosing. In Florida, your license can be suspended for refusal to submit to a breath, blood, or urine test. You can ask for a review of your license suspension, but a hearing officer will be looking at certain factors under the statute at the review hearing. Florida courts have determined that a law enforcement officer may select the initial test; and refusal will result in license suspension.

In the case of Dept. of Highway Safety and Motor Vehicles v. Green, 702 So.2d 584 (2^nd DCA 1997), Mr. Green declined to take a breath test after being stopped for DUI. He was observed to be weaving his vehicle and to have bloodshot eyes, alcohol on his breath, and to be unsteady on his feet. He failed a standard set of roadside sobriety tests. He was arrested and taken to the breath testing unit. The officer provided the “implied consent” warning indicating a refusal to take the breath test would result in a suspension of his driving privileges. Mr. Green refused. He, instead, offered to take a blood test and requested assistance from the arresting officer by bringing him a telephone book or a telephone to contact a laboratory.

Mr. Green argued that he had the right to select the test of his choice and the officer was obligated to assist him in obtaining that test. The Court held that the officer has the right to select the initial test, and it can be “an approved chemical test or physical test.” Only after a driver has complied with the initial law enforcement selected test does an officer have to assist a driver in obtaining a blood test or secondary test.

December 13, 2017

I Didn’t Do it! I Have An Alibi!

by Holli Dean

You may find yourself arrested for a crime that occurred at a time you were somewhere else completely at the same time the crime was being committed! There is a special procedure to handle this situation in Florida criminal courts and its important that those procedures are followed or it could result in your evidence not being used at trial.

In Florida pursuant to Rule 3.200, Florida Rules of Criminal Procedure, upon the written demand of the prosecuting attorney, a defendant in a criminal case who intends to offer evidence of an alibi in their defense must file a Notice of Alibi with the Court and serve it on the prosecutor no less than 10 days before trial.

The demand from the prosecutor will include the place, date and time of the commission of the crime charged as is known to the prosecutor.