Evidence

January 26, 2018

Eyewitness Identification Procedures in Criminal Cases Must Be Closely Examined

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.

December 4, 2017

Arrested for Assault or Battery of a Law Enforcement Officer? Penalties in Florida are More Severe than Normal

by Holli Dean

Florida law makes penalties stricter for assault or battery of a law enforcement officer. Under Florida Statutes 784.07(2), when you are charged with knowingly committing an assault or battery upon a law enforcement officer, the charge will be reclassified as follows:

(a) Second degree misdemeanor assault will be a first degree misdemeanor

(b) First degree misdemeanor battery will be a third degree felony

April 26, 2016

Illegal Search and Seizure?

by David M. Goldman

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.

Recently, 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.

January 1, 2016

Self-Incrimination: Crime on Social Media

by David M. Goldman

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.

The 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.

August 4, 2015

I May Have a Warrant for My Arrest

by David M. Goldman

As a Jacksonville criminal lawyer, I have had many conversations with people who believe they may end up having a warrant issued for their arrest. Sometimes, this conversation comes after law enforcement has completed an investigation; and other times this conversation happens during an active investigation. Either way, contacting a criminal defense lawyer is a good move when there is the chance a warrant could be issued. If you are contacted by law enforcement regarding an investigation, contact the Law Office of David M. Goldman PLLC immediately at (904) 685-1200. Our experienced criminal defense lawyers can help advise you of your rights and the necessary actions to protect yourself. It is also helpful to get a case evaluation based on the facts as early as possible.

Handcuffs1 Often, people who are being investigated want to talk to police to explain things. They wish for the best and hope that they can remove the possibility of an arrest or a warrant being issued. The truth is talking with the investigating detective or officer is almost always a bad idea, if you’re the target. Florida law, under Section 901.15, controls situations that arrests can be made. In general, an officer can only arrest a person for a misdemeanor if the officer sees it happen. There are exceptions. For felony crimes, officers can make an arrest without a warrant whenever there is probable cause. However, in my experience, if officers don’t make an arrest at the time the alleged crime takes place or while in “hot pursuit” of a suspect, officers will usually pursue an arrest warrant.

Talking to a detective or an officer to explain yourself isn’t likely to change his or her mind about the investigation. All too often I have seen situations where the evidence that was used to convict a person was given to law enforcement while the defendant was trying to “explain things” to an officer. Under the 5th amendment you have the right against self incrimination, which basically means you aren’t required to tell on yourself. The right to remain silent incorporated in the Miranda Warning comes from this right. The right to an attorney that you hear of in the Miranda Warning comes from the 6th amendment. You should always exercise these rights. Remaining silent is probably the most valuable right you have. You should immediately tell law enforcement that you’d like to contact your attorney.

May 23, 2015

Lawyer DUI setup

by David M. Goldman

Lawyer DUI setup: The Florida Bar alleges Three Florida Attorneys set up opposing counsel with a DUI. The Florida Bar has finished up its case today in an ethics trial against three Florida attorneys accused of using a Tampa police officer and an office paralegal to set up a rival attorney with a DUI in an attempt to derail the case. The alleged setup stems from a defamation trial two years ago that pitted two morning radio shock jocks against each other. So far this case has engrossed the local legal community with the accusations of dirty scheming and flirtation to win the case.

The Florida Bar supports the version of events as told by attorney Phil Campbell. Campbell was charged with a DUI two years ago. He alleges that attorneys Adam Filthaut, Robert Adams, and Stephen Diaco orchestrated his DUI charge by using an office paralegal and a local police officer to derail the trial.

The alleged event occurred in January 2013, when the three attorneys represented the well known radio host Bubba The Love Sponge Clem in a defamation lawsuit brought by a rival radio personality, Todd Schnitt. Schnitt claimed Bubba made derogatory remarks about him and his wife on his radio show and induced his fans to harass him.