Orlando, FL Criminal Law Blog

The Orange County State Attorneys office has finally implemented a juvenile program run by the Department of Juvenile Justice (DJJ) allowing first time misdemeanor offenders an opportunity to avoid a criminal record.  Since July of 2011, over 5000 juveniles have entered into the DJJ civil citation program across the state of Florida.  This new civil citation program is intended for first time offenders charged with select non-violent offenses to avoid criminal prosecution.  The type of offenses that are automatically not eligible for this program are firearm offenses, exposure or any sex charge, prostitution, and any gang related offense. 

Law enforcement will have the discretion to either issue a civil citation or make a criminal complaint and arrest.  If a civil citation is issued, the information is forwarded to the state attorneys office for review and if appropriate, the case will proceed through the DJJ civil proceedings.  The Orange County State Attorneys office is trying to maintain a more active role in the program, but the sanctions are truly monitored by DJJ.  Sanctions for a civil citation may include up to 50 hours of community service, youth and family counseling, drug screening, substance abuse treatment, mental health treatment, letter of apology, restitution, academic progress monitoring, and pre-vocational monitoring.  Upon successful completion of the sanctions, the youth will avoid having an arrest record. 

The Orange County State Attorneys Office will not change an officer's decision to charge a criminal citation to a civil citation. However, alternative programs also exist in the juvenile system such as diversion which would have the criminal charges dismissed. 

Much safer than dealing drugs, experts say identity theft - especially tax identity theft - has become increasingly popular in Orlando and abroad. Though it often goes untracked, those accused of identity theft in Florida face lengthy prison sentences and hefty fines.

The Federal Trade Commission reports Florida is at the epicenter of the remote crime in the United States, likely due to its large senior citizen population. Since 2008, the IRS reports about 500,000 taxpayers have alleged wage or identity tax fraud. The cases reported continue to climb, tripling between 2009 and last year.

Increase in Identity Theft Investigations

With mounting pressure to obtain criminal convictions, the FTC, IRS and FBI are upping identity theft investigations. However, there have been numerous complaints with how slow the IRS deals with identity theft allegations. But, even with this perceived slow claims process, the IRS said it stopped more than $1 billion in false returns in 2011.

A federal judge in Miami has ruled that the mandatory drug testing of government employees pursuant to Governor Scott's Executive Order is unconstitutional.  You can read Judge Ungaro's opinion here.

The Judge ruled that requiring drug testing of government employees violated the Fourth Amendment of the Constitution which prohibited unreasonable searches and seizures.  Judge Ungaro wrote that "The fundamental flaw with the Executive Order is that it infringes privacy interests in pursuit of a public interest which, in contrast to the concrete and carefully defined concerns in Skinner, Nat'l Treasury, and Vernonia, is insubstantial and largely speculative.

So what does all this mean?  Well the trial judge ruled that Governor Scott's executive order was unconstitutional.  The judge ruled that the privacy interest were more important then the public interest, which was the goal of the order.

Call this one a score for protecting the Fourth Amendment and not allowing the government to infringe upon our private lives.

I figured that i would not be a very good criminal defense attorney if I did not at least acknowledge the holiday that many people in this country celebrate.  Am I talking about Earth Day?  Nope.  I'm talking about Marijuana appreciation day.  For some reason, and the stories of the how this date came about are as varied as the strains of cannabis, April 20 has become a day to celebrate pot and to protest it's illegal.  All over the country there are groups who participate in this annual event and light up.

For those of you in Orlando or really anywhere in Florida, be aware that this celebration can still get you arrested.

Anyway happy 420

A Florida judge has dismissed a murder charge against a man who chased and fatally stabbed a car radio thief in Miami's Little Havana area in January. In the wee hours of the night the accused man discovered two people in his truck stealing his car radio. Alarmed, they ran off. Carrying a knife, he chased one of them. When he caught up with the thief, the thief tried to hit him with a bag containing three stolen car radios, weighing about four to six pounds. The radio owner ducked the blow and mortally stabbed the thief.

Over the next hours, the accused man failed to report the incident, but police eventually found him and questioned the man about the incident. He ultimately admitted to his role after viewing a surveillance video showing the confrontation, leading to police charging the man with murder.

Reviewing the facts, the judge stated that the accused man was justified in chasing the thief to try to recover his property. She was convinced that the accused felt threatened when the thief swung a heavy bag of metal objects at him.

Citing Florida's 2005 Stand Your Ground law, she determined that the law protected him from being charged with murder under the circumstances. Under that law, a citizen does not have a duty to retreat when threatened but can lawfully use force when attacked - which can be applied as a defense in a wide variety of cases ranging from shootings to domestic violence.

Police are obtaining court orders requiring Apple and Google to help bypass security passwords to enable them access to a person's cell phone.  According to CNET police officers are using fill-in-the-blanks court orders for judge's to sign to obtain access to a person's cell phone.

This practice is disturbing on multiple levels.  Why is Apple retaining information on an iPhone's user's password to begin with, why is google doing the same thing, what sort of information is a judge being given to justify a court order essentially requirig a company to unlock a closed container, and if the phone is not password protected does this search of the phone trigger a possible 4th amendment search and seizure violation?

Prosecutors across the country are urging Judges to allow the cops to check cell phones as a search incident to an arrest.  Criminal defense attorneys will be arguing that these searches are violations of the 4th Amendment.  This type of search will continue to be litigated and argued locally in Orlando, Florida and throughout the United States.

Smartphone technology has added convenience to our lives but it also has given police a new tool for conducting investigations.  Examining the content in an iphone has the potential to reveal much more about ourselves then looking through a wallet.  Using cell phone towers to track a person's whereabouts seems similar to using a GPS device to track movement and you can bet that the Supreme Court is going to have to address this situation.

Ever since GPS trackers entered the retail market, law enforcement has been searching for ways to maneuver it into their criminal and drug crimes investigation arsenal. Over the years, I have had several clients inform me that they have found a mysterious device on their vehicle. After a clear inspection and even a quick Google search of the model number, we are able to positively confirm we found a GPS device. It's amazing to me that law enforcement thought they could legally attach these devices to suspects vehicles and track there every move without violating the individuals constitutional rights. The United States Supreme Court has finally set law the record straight. In US v. Jones, the Court said that the government must get a warrant to put a GPS tracker on citizens' vehicles. The Courts ruling indicated that without a warrant, these devices violate the reasonable expectation of privacy guaranteed by the Fourth Amendment to the Constitution. As soon as this happened, law enforcement across the country had to scramble in order to obtain warrants for the active GPS trackers out in the field. The Wall Street Journal reported that the FBI alone had to turn off 3,000 GPS trackers. The FBI later retracted and said they were not exactly sure the numbers regarding the GPA trackers. I am not sure what is scarier, the fact that the FBI does not have a clue of the number of trackers or the fact that there are so many active, the agency cannot keep valid numbers. The bottom line is that federal agents and local law enforcement agencies are seriously taking advantage of this GPS technology. We are now starting to see law enforcement attempt to track individuals through the personal handheld devices, such as cell phones. Criminal lawyers across the country will continue to attack the this invasion of privacy.  While a couple of courts are in conflict over this issue, I am confident the courts will make this right with a clear ruling this is a 4th amendment violation.

http://www.forbes.com/sites/kashmirhill/2012/03/27/how-many-gps-trackers-is-the-fbi-actually-using/

I do not advocate drunk driving.  It is clearly unsafe for the driver and for everyone who shares the road with the driver.  However, a POLITICO article reports that the United States Congress is trying to legislatively coerce states to require the installation of a vehicle interlock device on the cars of everyone who is convicted a driving under the influence.  This would include first time offender, who may have never had any contact with the criminal justice system.  The Congress is able to force states to amend their own statutes by threatening to take away 5 percent of their regularly allocated safety money if they fail to enact this legislation.

As a criminal defense attorney in Orlando, and someone who defends DUI cases on a daily basis, this proposal seems over the top and completely takes away the discretion from our Judges.  Not all DUI's are created equally and should not be treated the same.

In law school we are taught that the Judges are the ones who fashion sentences.  This type of legislation would further take away what little discretion Judges have on DUI cases.  If based on the facts and circumstances a Judge feels that a first time offender needs the vehicle interlock device, then they should order it, but it does not seem like a necessary requirement for everyone who is convicted on this charge.