A: To be found guilty of simple possession of a controlled substance, the State must prove beyond a reasonable doubt that the person knew a controlled substance was present and had the ability to control it. Possession can be shown where the controlled substance is in the hand, or pocket of the person charged, or the controlled substance is in open view, and the accused could reach out and touch it.
Florida law presumes that the person has knowledge of the controlled substance’s presence, as well as the ability to control it, when an area is under the exclusive possession of that person. For example, a person who is driving a car all by himself is presumed to know, and have the ability to control, a controlled substance found anywhere within that vehicle. This presumption is, however, rebuttable. The burden is on the accused to establish circumstances which might undermine the strength of the presumption.
There is no presumption of knowledge or control when an area is occupied by two or more people. For example, there would be no presumption of knowledge and control when a car is occupied by two people. The State would have to prove, if it could, that one or both occupants knew that a controlled substance was in the glove compartment and had the ability to control it. In many instances, the State is unable to prove through independent evidence that either occupant is guilty of drug possession - unless one or both occupants made a statement. The State could still try to prove that one or both occupants might be guilty based upon other admissible evidence, such as fingerprints or touch DNA.
“Sale”, or “distribution”, of a controlled substance is the same charge in Florida. A sale is defined as the delivery of a controlled substance for something of value. Distribution of a controlled substance would simply be the delivery of a controlled substance with or without something of value. A person can be charged in Florida with delivery of a controlled substance by simply giving a drug to someone. There is no requirement that something of value be exchanged.
Possession with intent to distribute a controlled substance is not always easy to describe. The State may claim that simply possessing multiple small packets of cocaine, or marijuana, is sufficient proof of intent to distribute. By itself, a person might buy a number of “nickel bags” for his own personal use. The mere possession of a number of small bags is not necessarily inconsistent with personal use. In most cases where possession with intent to distribute is charged, the State has proof that the place where the drugs are found, and the circumstances, indicate an intent to sell, as well as the amount and packaging. This is always a difficult matter of proof when the amount of the drug is consistent with personal use.
A: This is a multi-part answer. Some drug charges do not have a mandatory minimum term of incarceration or fine, but there will be a mandatory 1-year suspension of the driver license if the person is adjudicated guilty of a felony or misdemeanor drug offense.
“Adjudication of guilt” is a term of art in Florida criminal procedure. The adjudication is to be contrasted with the “withhold of adjudication”. The withhold of adjudication is not considered to be a conviction. A person who receives a withhold of adjudication may be placed on felony probation, but that person’s driver license would not be suspended, because there is not an adjudication of guilt.
Another possible escape from a driver license suspension is a diversion, such as a pre-adjudicatory drug court. Felony drug court may be available to certain individuals who have not previously been convicted of a felony and who did not sell, distribute or possession with intent to sell or distribute a drug. At the successful completion of drug court, a conditional plea is set aside and the case dismissed.
If, on the other hand, a person is adjudicated guilty of a drug offense in Florida, then that person will receive a 1-year driver license suspension. That person would not be eligible for a driving permit until after serving the first six months of that 1-year suspension.
The term “mandatory minimum” would also apply to a variety of charges, such as trafficking, or to sale or possession with intent to sell or distribute, within a certain number of feet of a church, school or day care center. These mandatory minimum sentences range from three years in prison to life in prison depending upon the amount of drugs and other circumstances. Each trafficking conviction is accompanied by a mandatory fine. By law, the court must adjudicate guilty any person who pleas to, or is found guilty of, a trafficking charge.
While not technically a “mandatory minimum”, certain persons score prison under the Florida Criminal Punishment Code. When a person scores prison under the Code, the sentencing judge is bound to sentence to not less than the minimum prison term computed under the guidelines - unless the State agrees to a lesser term via a bona fide plea agreement, or the court finds a legally sufficient basis for a downward departure.
A: Article I, Section 12, of the Florida Constitution deals with searches and seizures. It is required to be read, and applied, in the same way that the United States Supreme Court interprets the Fourth Amendment to the United States Constitution. In general, an automobile cannot be searched on mere suspicion. However, an automobile can be searched without a search warrant if there is probable cause for the presence of drugs in the car, or if the occupant is arrested for some other charge. This latter type of search is variously referred to as a search incident to arrest, protective sweep or inventory search. The question of what constitutes probable cause is an issue constantly being litigated in the courts. There is also a question whether police need a warrant to search a parked car after the occupants have departed.
A search warrant is needed to search premises which are used as a home. The search warrant must be based on probable cause. Mere suspicion will not allow for the issuance of a search warrant.
Different kinds of “premises” are not necessarily subject to the same level of protection as a home. There might be no need for a search warrant for an area which is open to the public. The police will, however, need a search warrant to search a motel room or a cell phone. A given person might consent to a search and will be considered to have waived his constitutional rights by doing so.
A: Yes, you may be arrested. The charge may not “stick” if there is no independent evidence of knowledge and the ability to control those drugs. The law does not presume knowledge and control when an area is possessed by more than one person. To be a passenger in a motor vehicle suggests that there is at least a driver, and possibly other passengers. In such a situation, the car would not be under the exclusive possession of any particular individual. Therefore, proof of knowledge and control over the drug would have to be proven beyond a reasonable doubt by independent evidence.
The outcome may be different depending on where you might be when drugs are found. If you are in a public area, then you might get arrested at police discretion, but there is no presumption of knowledge and control. Unless the police testify that they saw you “throw down” the drugs, or you confessed to throwing down the drugs, or someone else says that the drugs belong to you, then it is hard to see how the State would be able to prove knowledge and control beyond a reasonable doubt.
If drugs are found in your personal apartment, and no one else is present, then the area would be under your exclusive possession or control. The law presumes your knowledge and ability to control any drugs found in an area under your exclusive possession or control.
If you are in somebody else’s apartment, then the law generally would not presume your knowledge and ability to control over drugs - as long as those drugs were not open and obvious and within your easy access.
A: In general, it is difficult for the State to prove possession of drugs without a confession, or a statement of a witness, as long as the area is not under the exclusive possession of the accused. So the easiest and best defense is the exercise of the right to remain silent. Persons who are being investigated for suspected crimes do not have to make a statement and would be well-advised not to do so without first having consulted with an attorney. A person placed in such a situation should very specifically say that they wish to exercise their right to remain silent and do not want to answer any questions without the presence of an attorney. Such words would be sufficient to invoke both the rights to remain silent and to counsel.
Drug cases can be defended on the basis that the evidence was obtained as the result of an unreasonable search and seizure. Florida law requires that evidence obtained in violation of the Fourth Amendment be suppressed from use at a trial.
The State must prove that the substance is the drug charged in the information. Usually, law enforcement officers cannot come into a trial and testify that the substance field tested positive for a given drug. The results of field tests are not admissible in court. Therefore, in most cases, the State is required to obtain the results of laboratory drug testing.
The defense of entrapment is available in drug related cases in Florida. Entrapment exists when the government, or its agents, induce a person not otherwise predisposed to commit a crime. The entrapped person generally admits the drug charges, but asserts that he was induced by police to commit the crime by improper police methods.
In cases involving informants working off their own criminal charges, a person can defend that the informant is not believable. Even without entrapment, the informant may be the person who actually possessed the drugs or set up the deal. Jurors are instructed to consider the testimony of informants with skepticism, because many such informants are motivated more by desire to escape their own punishment than a love of truth.
The particulars of any drug case could give rise to any number of other defenses. For example, law enforcement officers may “lose” or destroy material evidence which might have been relevant to the issue of guilt or innocense. The destruction of such material evidence could be the grounds for sanctions against the State.
A: This question is quite complex to answer. I often refer to the Department of Highway Safety and Motor Vehicles (DHSMV) website, because the DUI laws change frequently. The penalties may include fines, costs, license suspensions, DUI school, ignition interlock, and jail or prison.
The mandatory first offense DUI conviction requires the following: A minimum fine of $500 up to a maximum of $1,000; court costs; 6-month driver license suspension up to a maximum of 12 months; DUI school; and 50 hours of community service. The fine will double to a minimum of $1,000, and a maximum of $2,000, if the BAC is .15 or higher or if there is a minor in the vehicle. The maximum first offense jail zooms from six to nine months if the BAC was .15 or higher or if there is a minor in the vehicle. There is a mandatory 6-month ignition interlock requirement if the BAC is .15 or higher. It should be noted that the court retains discretion to impose an ignition interlock requirement in every case. There is a mandatory vehicle immobilization of 10 days.
First offense DUI maximum penalties are increased if there is property damage, or personal injury, to a maximum of 12 months in jail and a $1,000 fine.
The second offense DUI penalties are progressively more severe. The second offense DUI, which takes place within five years of a first offense DUI conviction, increases the minimum fine to $1,000, with a maximum fine of $2,000; requires that a sentence of at least 10 days in jail be imposed, with a maximum potential sentence of nine months. If the BAC is .15 or higher, then the minimum fine doubles to $2,000, up to a maximum of $4,000. There is a mandatory ignition interlock of one year, but the mandatory period doubles to two years if the BAC is .15 or higher. The maximum period of incarceration increases to 12 months if the BAC is .15 or higher, or if a minor is in the vehicle. There is a mandatory vehicle immobilization of 30 days. There is a mandatory 5-year license revocation and a requirement for advanced DUI school. The person is not eligible to obtain a driving permit until having successfully served the first one year of their 5-year driver license suspension. It should be noted that the jail term can be substituted for an appropriate residential drug or alcohol treatment program, as long at least 48 hours of confinement is consecutive.
The second offense DUI, which takes place more than five years after a first offense DUI conviction, is treated less harshly. There would be no mandatory 10-day jail term, the minimum period of suspension drops to six months, with a maximum of 12 months. The vehicle immobilization drops back to 10 days.
Third offense DUI penalties depend on whether it occurred within 10 years of the second offense DUI conviction. If so, then the mandatory fine doubles to a minimum of $2,000, and a maximum of $5,000. If the BAC is .15 or higher, or if there is a minor in the car, then the minimum fine is $4,000. There is a mandatory 30 days in jail. The 30 days may be served in an appropriate residential drug or alcohol treatment program, as long as at least 48 hours of confinement is consecutive. The vehicle immobilization is 90 days. There is a requirement for the advanced DUI school. The ignition interlock must be installed for at least two years. There is a mandatory 10-year license revocation. There is no eligibility for a permit until two years of the 10-year revocation are successfully served.
A third offense DUI occurring more than 10 years from the second offense DUI conviction has somewhat lower penalties. The minimum and maximum fines stay the same. The 30-day mandatory jail term is eliminated, but the maximum 12 months in jail penalty stays the same. The driver license suspension is dramatically reduced to a minimum six months and a maximum 12 months.
A fourth offense DUI penalty may be prosecuted as a felony with potential imprisonment of up to five years. The fine is a minimum of $2,000 and a maximum of $5,000. If the BAC is .15 or higher, or if there is a minor in the vehicle, then the minimum fine doubles to $4,000. There is a requirement for completing the advanced DUI school. There is a mandatory permanent license revocation. However, the person may be eligible for hardship reinstatement after five years. If the individual is incarcerated, the 5-year period of time for hardship eligibility begins upon the date of release from incarceration. There is an ignition interlock requirement of at least five years as a condition of any hardship permit. As with second and third DUI convictions, there is a requirement for completing the advanced DUI school.
Any DUI involving serious bodily injury (SBI) is punishable as a felony by up to five years in prison and a $5,000 fine. In some cases, however, the actual sentence may exceed five years because of special calculations for victim injury, and criminal history, under the Criminal Punishment Code.
DUI manslaughter, and vehicular homicide, are both punishable by up to 15 years in prison and a $10,000 fine. The statutory maximum may be exceeded when, due to victim injury and criminal history, the minimum sentence under the Criminal Punishment Code exceeds 15 years.
There is a special penalty for a person convicted of DUI manslaughter who leaves the scene of the accident. A driver convicted of DUI manslaughter who knew, or should have known, that the crash occurred, but failed to give information or render aid is subject to a more serious penalty of up to 30 years in prison and a $15,000 fine. A similar enhancement applies to a person convicted of vehicular homicide who leaves the scene of the accident.
For all DUI manslaughter convictions, there is a mandatory permanent revocation. The individual may be eligible for hardship reinstatement after five years, but only if there are no prior DUI-related convictions.
For DUI with SBI, and for vehicular homicide, there is a mandatory 1-year license revocation.
A: The State system prosecutes all sex crime charges, but the State system has less ability to handle complicated charges with multiple defendants, complex computer charges, and cross-jurisdictional charges.
The federal system has better resources to enable prosecution of such complicated, complex and cross-jurisdictional cases. Still, virtually any sex crime charge with an interstate nexus can be prosecuted in federal court. The most common federal sex crime prosecutions involve computer porn, computer solicitation, and human trafficking.
The federal system also prosecutes cases occurring on federal property, such as national parks, military bases, and post offices. Federal prosecutions may also be initiated for cases occurring on Indian reservations, ships, aircraft and on the high seas. It is a federal crime to travel to a foreign country for purposes of “sex tourism” with minors.
A: Constitutional rights apply equally to the innocent and to the guilty. Arrests, especially in State court, can be made on “probable cause”. Thus, an arrest is simply the first step in the criminal process: The arrest does not necessarily end in conviction.
The first thing an arrested person should do is exercise his or her right to remain silent and to insist on conferring with a lawyer before any questioning.
The second thing an arrested person should do is not consent to any searches of anything. The arresting officers may request permission to search a home, an office, computer, a phone, and so on. There is no requirement for the arrested person to consent to any of these searches, nor is there any requirement for the arrested person to provide passwords or access codes.
The third thing is to understand that police are not stupid. They will listen carefully to any explanation the arrested person makes. The police are just as happy to show that some part of the explanation is false as they are to receive a confession. The police will sometimes allow an arrested person to keep his or her cell phone, because there is recording equipment in the patrol car, the interview room, or other place where the arrested person has been allowed to retain the cell phone. Please consider that most jails now record all phone calls. Prosecutors routinely request copies of all of these recorded phone calls from the jails. The arrested person should not discuss their case on jail telephones.
The fourth thing is to not pretend to know the law. So often, an arrested person offers an “explanation” which really isn’t. For example, an arrested person may explain that the sexual activity was “consented” when the law does not allow consent as a defense. Let the lawyer practice law.
The fifth thing to do is to get a criminal lawyer. Let the lawyer’s experience help guide the defense.
A: In federal cases, a false statement to a federal agent can lead to perjury or obstruction charges. The person may wind up getting convicted of “process violations”, even though never arrested for the underlying investigation.
Consulting with an attorney as soon as someone learns of an investigation is important. The attorney may offer insights that keep that person from doing or saying things that make the situation worse.
Retaining an attorney does not make a person look guilty. It makes them look prepared and intelligent. The first thing any corporation does is “lawyer up” in response to an investigation. You should do the same thing corporations and wealthy people do. Get a lawyer. There are many reasons why obtaining proper counsel makes good business sense.
A: The accuser may have made a false claim due to anger, intoxication or mental illness. If the arrested person and the accuser are in a relationship, it is almost never the desire of one to have the other prosecuted. So what to do?
Many courts require those arrested for domestic violence to be held until first appearance. Very often, a no contact with accuser condition is imposed. The lawyer can help eliminate these no contact orders.
Violation of a no contact order can put the arrested person back in jail with no bond. Arrested persons should not violate these no contact orders.
Careful scrutiny of the arrest affidavit, reports and statements may show that police have misconstrued what the “accuser” said. Showing that police misunderstood what the “accuser” said is usually a good thing. The accuser cannot be charged with making a false statement to a law enforcement officer if the officer misconstrued what was said or the circumstances.
In other cases, there may simply be no other evidence of a battery. If the accuser says that the initial claim was false, then the accuser may need a lawyer too. It would be perjury for the “accuser” to go to court and to testify to the false claim. So, the accuser could exercise his/her Fifth Amendment right to remain silent. The prosecution could not proceed in such a case without testimony that a crime was committed. At that point, the charge might be dropped, or the State may seek to immunize the accuser. Once immunized, the accuser is free to tell what really happened without fear of being charged.
Every arrested person should guard against telling any witness, or potential witness, what to say or not to say, or encouraging the witness to duck subpoenas or not to show up for court. Such comments could be construed as witness tampering and lead to new, more serious charges.
A: Family reunification is generally at the top of this list, where the parties want to get back together.
Sometimes diversionary programs need to be considered. The successful completion of a diversion can avoid the consequences of a conviction. A person convicted of domestic battery loses the right to keep and bear firearms.
In all cases, consideration should be given to collecting recordings of 911 calls, police body camera footage and any other evidence of the incident. Such evidence is often the best indicator of what actually transpired.
Collection of text messages and emails between the individuals involved is often an important task. It may be beneficial to screenshot social media before posting can be taken down or changed.
A: The nature of the consequences can vary drastically depending upon the type of charge. The most obvious potential consequence of a serious felony charge is lengthy prison term. All convicted felons lose civil rights and, in particular, the right to keep and bear firearms.
Some sex charges impose mandatory classification, and reporting, as a sex offender or sex predator. Such classifications in the State of Florida are for life. There is no realistic way, at the present time, to eliminate these sex offender classifications.
In today’s world, information is only a few clicks away. A conviction can be easily located by potential employers and landlords. Jobs may be denied. Even housing may be denied because of a criminal history.
Criminal convictions may impact a person’s ability to work in their profession. School teachers charges with DUI or child neglect may be subject to suspension or termination. Doctors and nurses charged with controlled substance offenses are at risk of losing their professional licenses. The effects of criminal convictions are serious and long term.
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