Tampering with evidence is a criminal offense in Florida. Tampering with evidence is a third degree felony; the maximum penalty is five (5) years in prison and/or a $5,000 fine. To prove tampering, the State has to prove that a person while knowing that a criminal trial, proceeding or an investigation has begun or is about to be started, then alters, destroys, conceals or removes anything with the intent to impair its credibility, availability or use-ability in trial. Many times tampering is not what is shown by the entertainment industry like fabrication or threatening a witness; instead several tampering cases begin at the all important traffic stop and escalates when an officer thinks that evidence is tossed, thrown or eaten.
In a recent case, the subject of a traffic stop was allegedly attempting to flee and when captured, the officer supposedly noticed the person to be chewing something. The officer ordered him to spit it out, but he refused and pulled his head away from the officer while continuing to chew the unknown substance until he swallowed it. According to the officer a field test on residue in the mouth tested positive for cocaine, however, the crime lab came back as “insufficient sample for identification”.
The argument of the defense was that it was not known if the substance was already in the mouth at the time of the traffic stop. They argued that the State could not prove that the alleged drugs were not already being chewed. This was all supposed to mean that the State could not prove the needed intent to impair the object’s availability for a police investigation. The trial judge agreed and dismissed the case!
The appeals court did not agree and sent the case back so that prosecution could be reinstituted. The Court of Appeal relied on the fact that the arrestee turned his head and continued to chew the object until he swallowed it, refusing to comply with the officer’s order to spit out the object. That is a little hard to swallow unless you believe everything the officer has to say which is exactly what a court is bound to do at a hearing regarding a motion to dismiss.
While every person is innocent until proven guilty, that is only at a trial, not at arrest or as here in a motion to dismiss. Trial can be months from an arrest and there is a lot of procedure in between arrest and a jury trial. Understanding the complexity of the criminal justice system can be difficult unless you have an attorney at your side. Please click, call or fill out the form to the upper right to speak to a lawyer about your case.
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State v. Barnes 1D15-3292