Gainesville Personal Injury, Divorce and Alimony Attorney

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01/10/2014
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Warrantless Search

Many searches today are warrantless searches. Other than “the officer did not read me my rights” the search without a warrant is probably the biggest complaint amongst my criminal defense and drug clients. Not all warrantless searches are invalid and there are several exceptions to the warrant requirement. 

One exception, called inevitable discovery was recently addressed by the Third District in Rodriguez, v. State. This ruling does apply to the Gainesville and Ocala area. In that case several bail bondsmen were attempting to locate one of their clients charged with marijuana cultivation, who had listed the address of the Defendant’s home on his application for the bond.

When the bondsmen arrived, the Defendant answered, denied knowing the client, and told the bondsmen that he was alone. The bondsmen requested permission to search the home, and the Defendant consented to the search. The bondsmen noticed a smell of marijuana. Inside, they encountered a locked door which the Defendant opened while telling the bondsmen that he was growing marijuana in the room. The bondsmen saw the grow operation and called the police. The grow room contained six-foot marijuana plants, lights, and 36 pounds of marijuana.

When a uniformed police officer arrived, the Defendant invited the officer into the house, the officer saw the grow room and made the arrest. When the narcotics unit arrived, the Defendant signed a consent to search form. The Defendant filed a motion to suppress asking the court to disallow the evidence found pursuant to the warrantless search because the officer did not make any efforts to obtain a search warrant before law enforcement entered the home.

The trial court concluded that the inevitable discovery doctrine applied because probable cause had been established before law enforcement requested consent. The appeals court agreed that the independent evidence from the bondsmen regarding the locked grow room, the lights, and actual marijuana plants, coupled with the pre-search smell of marijuana from outside the front door described by both the bondsman and police, established probable cause for a search warrant before any law enforcement officer requested consent. Therefore consent was not needed and neither was an application for a warrant.

This Defendant could not control the fact that his address was used by another marihuana grower. However he could have refused to allow the bondsman to enter. The legal lesson is that if probable cause is present, as in this case, the court may uphold a warrantless search even if there is no consent to search. Whether an exception such as ‘inevitable discovery’ applies to your case depends exclusively on the facts. Every case is different. If you or a loved one is in needs to hire a lawyer, then please click or call today.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Jurisdiction to Suspend a Driver’s License for Refusal to Submit in a DUI

The Department of Highway Safety and Motor Vehicles (“DHSMV”) has jursidcition to suspend licenses for refusal to submit a breath sample, however their jurisdiction must be properly obtained.  A person who is arrested for suspicion of Driving Under the Influence of drugs or alcohol (“DUI”) in Florida will be asked to provide a sample of their breath by blowing into an Intoxilyzer 8000. If you refuse to blow, then your license will be suspended but you can challenge the suspension at an administrative hearing at the Department of Highway Safety and Motor Vehicles (“DHSMV”). There are several challenges that can be raised at a DMV hearing. 

In a recent case, the driver had the suspension overturned and their license reinstated because the DHSMV and the arresting officer failed to provide Due Process to the individual. The challenge raised by the lawyer was to the sufficiency of the documentation submitted and the jurisdiction to suspend.

The court held that “Due process requires adherence to the legislature’s mandate that before the Department may initiate proceedings to suspend a person’s privilege to operate a motor vehicle, it must first receive the arresting officer’s properly sworn statement.” The arresting officer had signed the arrest report; however, the officer who was supposed to attest to or administer the oath only attested to the signature being the signature of the arresting officer. Basically, the court found that saying ‘that is his signature’ is very different than ‘that officer swore an oath and signed’.

The Court further found that such a defect “cannot be overlooked as a mere technicality or cured by good faith”. Furthermore, the failure to submit properly sworn documents failed “to vest the Department with initial jurisdiction upon which it could proceed with any administrative action”. In other words, they should not have ever suspended the license without at least having sworn document, and therefore there was no Due Process at the DHSMV.

The lack of organization of these two officers is rare. DUI and DUI refusals are taken very seriously by the State both at the prosecutor’s office and at the DHSMV and you should not battle the State alone. Please click or call for to hire a DUI lawyer today.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Traffic Ticket Lawyer

There is a large set of the population that has no idea what a traffic ticket defense lawyer does.  It is very much the same as what a criminal defense lawyer does which is to ensure that the government is held to their burden and that it can prove the case while actually following the constitution, the law and the rules. It is not about whether the government has sufficient evidence to prove the violation; it is about whether the government can actually admit such evidence into court while following the constitution and laws. 

For example, EVERY Dunnellon red light camera case handled by this firm was dismissed!  However, several people who chose to proceed unrepresented did not have their cases dismissed, paid fines to the government and earned themselves sometimes permanent marks on their driving histories instead. In these cases, the unrepresented simply did not know what to do when the Dunnellon city officer showed up in the Marion County courthouse in Ocala to prove the traffic ticket.

Why can a lawyer get cases dismissed and the unrepresented are getting marks on their driving history and paying fines? This happens in criminal and traffic court all the time. Lawyers are supposed to do the research and have law to back them up. The unrepresented may not know when to object or what to say. The rules of evidence actually do apply in civil traffic infraction cases.

While the unrepresented may say nothing, a lawyer objects to attempts to improperly admit evidence. The government could be left with no way to identify the driver in most crash cases. In a traffic ticket case a lawyer can represent the driver in their absence and the driver does not have to be present to be identified.  While some judges do not like the rule that allows an absent driver yet still requires the government prove identity beyond a reasonable doubt, most judges will follow the law and dismiss the case if the identity of the offender cannot be proven.

The life lesson to readers is that if you or a loved one are about to be in front of a judge in traffic court, criminal court or any other court, then you should consider hiring a lawyer. Click or call today to hire a defense lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529