Jacksonville Criminal Defense Attorney Blog

Domestic Violence Injunction Requires Recent Conduct

Published on: November 21, 2019 | by Roelke Law, P.A.

Has a Petition for Protection against Domestic Violence been filed alleging you did something to warrant issuance of an injunction? If the allegations don’t show the petitioner is the victim of recent domestic violence or is in imminent danger of becoming a victim of domestic violence, the Petition should be dismissed according to a recent decision by the First District Court of Appeal.

In that case, a mother challenged a domestic violence injunction entered against her at the behest of her daughter. The daughter sought an injunction on behalf of her minor daughter alleging her mother had physically abused the daughter as a child, had attempted to interfere with paternity proceedings involving the minor granddaughter and had involved the Department of Children and Families in unfounded attempts to take the minor child away, and that the grandmother tries to control her adult daughter. The trial court entered a permanent injunction.

The appellate court reversed the injunction on the ground the allegations were legally insufficient to support the entry of a domestic violence injunction. A domestic violence injunction may issue to protect a member of the movant’s family or household “who is either the victim of domestic violence as defined in s. 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence.” Florida Statute § 741.30(1)(a). “Domestic violence” is defined as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” Florida Statute § 741.28(2). The appellate court concluded the injunction was improper because there was no evidence that the minor child was the victim of domestic violence or in imminent danger of becoming a victim. Continue reading

Significance of a Green Tongue in a DUI Arrest

Published on: November 14, 2019 | by Roelke Law, P.A.

Driving under the influence (DUI) is a criminal offense in Florida. The offense is proved by impairment of “normal faculties” by drugs or alcohol and/or by an unlawful breath or blood alcohol level of 0.08 or above. Impairment of normal faculties by alcohol can be determined by testing blood, breath or urine. But it is much more difficult to determine impairment of normal faculties by marijuana or other drugs.

Currently in Florida, there is no definitive way, like a blood or breath test, to determine marijuana intoxication. Rather, the only way to determine whether someone’s normal faculties are impaired by marijuana is to assess whether they possess their normal faculties. Normal faculties includes the ability to perform the many mental and physical activities of daily life, such as walking, talking, seeing, hearing, driving and making judgments. Normal faculties are normally assessed in Florida DUI cases via the administration of roadside tests known as field sobriety exercises (FSEs).

In addition to administering FSEs, officers commonly note certain physical observations such as blood shot, watery eyes, pupil dilation, facial flushing, and speech slurring to bolster their conclusion someone’s normal faculties are impaired. And, in some marijuana-based DUI cases, officers across the United States are alleging that people who’ve recently smoked marijuana have green tongues. In fact, law enforcement officers are instructed to look for a “possible green coating” in one world-wide specialized training program. Continue reading

Woman Arrested for DUI Hadn’t Been Drinking Recently

Published on: November 4, 2019 | by Roelke Law, P.A.

Most driving under the influence (DUI) cases begin the same way. You’re pulled over by the police for a traffic infraction such as speeding, failing to maintain a single lane or for a license tag or tail light violation. The officer approaches your car and asks for your driver’s license, vehicle registration and insurance card.

The officer then notes you purportedly have bloodshot, watery eyes and the odor of an alcoholic beverage on your breath. But you haven’t had anything to drink, or if you did, it wasn’t enough to make you impaired.

You’re then asked to perform some roadside sobriety exercises. Feeling confident, you agree. Despite doing pretty well, however, the officer says you failed. You’re then handcuffed and taken to jail. At the jail you agree to take a breath test. To your surprise, your result is above the legal limit of 0.08. Case closed, right? Not so fast! Continue reading

Judge Says Police Claiming to Smell Marijuana Are Liars

Published on: October 7, 2019 | by Roelke Law, P.A.

Did the police justify their search of your vehicle by claiming they detected the odor of marijuana? If they did and there was in fact no marijuana smoked or recently in your car, your lawyer may be able to question their credibility based on a New York judge’s recent comments reported in The New York Times.

As in Florida, courts in New York have long held an officer may effect a warrantless search of a car and its occupants if they smell marijuana coming from the vehicle. But in late July of this year, a judge in the Bronx said officers base vehicle searches on the smell of marijuana too often to be believed. And, the judge has urged her fellow jurists across the state to stop letting police officers get away with lying about smelling marijuana as an excuse to search a vehicle.

“The time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop,” Judge April Newbauer wrote in a decision in a case involving a gun the police discovered in car they had searched after claiming to have smelled marijuana. She added, “So ubiquitous has police testimony about odors from cars become that it should be subject to a heightened level of scrutiny if it is to supply the grounds for a search.” Continue reading

Probation Officer’s Hearsay Testimony Insufficient to Prove You Violated Your Probation

Published on: September 22, 2019 | by Roelke Law, P.A.

Has your Probation Officer either threatened to violate, or actually violated, your probation? If so, there are many ways a knowledgeable Jacksonville criminal defense lawyer can help prevent, or substantially reduce, any adverse effects on you. A recent case from the First District Court of Appeal provides one example.

Jalyn Viriginia Brownsworth plead no contest to grand theft and was sentenced to 24 months of probation. Shortly after imposition of sentence, her probation officer filed an affidavit of violation of probation alleging Jalyn had failed to submit to undergo a required drug/alcohol evaluation.

At the revocation hearing, Jalyn’s probation officer testified she had been scheduled for an evaluation that later required rescheduling. The probation officer further testified that when she later contacted the evaluation facility staff, she was told Jalyn failed to attend the rescheduled appointment. Based on Jalyn’s purported failure to attend the rescheduled evaluation as related by the probation officer, the trial court found Jalyn to have violated her probation. Jalyn appealed. Continue reading

Recordings Made Without Your Permission Sometimes May Be Used Against You

Published on: September 15, 2019 | by Roelke Law, P.A.

Many people believe if someone records them without their permission, the recording cannot be used in court. A recent decision by the First District Court of Appeal, however, shows that is not always the case.

Corey Smiley was invited to the home of the women with whom he shared a two year old child. While there Smiley and the woman got into an argument. The woman recorded the argument on her cell phone. The video depicted Smiley questioning the woman about the video and repeatedly trying to grab her phone. It further showed Smiley shoving the woman and threatening to shoot her and their child. The woman asked Smiley to leave her home several times. The woman claimed after the recording ended Smiley brandished a gun. She then fled with their child.

Smiley was arrested and charged with aggravated assault by threat with a deadly weapon and domestic violence battery. Smiley subsequently sought to exclude the cell-phone video on the ground it had been illegally recorded without his consent. The trial court denied his request and admitted the video at his trial. Smiley was convicted of the charges. Continue reading

New Hemp Law Makes it Harder to Prosecute Florida Marijuana Cases

Published on: August 25, 2019 | by Roelke Law, P.A.

On June 25, 2019 Florida Governor Ron DeSantis signed Florida Senate Bill 1020, regulating the production and distribution of hemp and hemp extracts in Florida, including the increasingly popular hemp derivative, cannabidiol (CBD). The bill makes Florida the latest state to enact legislation to legalize and regulate its hemp industry. The bill mirrors similar action at the federal level late last year when President Trump signed the Farm Bill removing hemp from the list of controlled substances, making it legal to grow and sell hemp under federal law.

Hemp comes from the same cannabis plant that produces marijuana. Marijuana, however has much higher levels of tetrahydrocannabinol (THC), the chemical in the plant that is psychoactive and produces the hallmark “high” or euphoria. Both hemp and marijuana contain CBD, a medical compound that has health benefits but is non-euphoric.

Under the Farm Bill, hemp is legal provided doesn’t contain more than 0.3 percent THC. If hemp contains more than 0.3 percent THC, it is still a federally banned controlled substance. Similarly, Senate Bill 1020 excludes hemp from the definition of cannabis provided the THC concentration does not exceed 0.3 percent on a dry weight basis.

Marijuana Legalization is Putting Some Drug Dogs Out of Work

Published on: June 2, 2019 | by Roelke Law, P.A.

To date, the following eleven states have legalized recreational use of marijuana: Washington, Oregon, California, Alaska, Nevada, Colorado, Illinois, Michigan, Maine, Vermont and Massachusetts. As those and other states and cities relax their drug laws, the highly trained dogs used by their police departments to sniff out narcotics can’t be relied on to smell the right thing.

It generally costs a law enforcement department about $6,000 to purchase a working dog and thousands more to train it. The drug dogs are usually trained to detect numerous drugs, including marijuana, cocaine, heroin, ecstasy and methamphetamine. So, when a dog alerts, it simply indicates the presence of one of those five drugs. In those states where marijuana has been fully legalized, a drug dog’s alert could mean it smells only marijuana. Since marijuana is legal in those states, the dog’s alert would not give rise to probable cause to search a person or their vehicle for illegal drugs.

Thus, in several states where marijuana is fully legalized, including California, Oregon, Maine and Vermont, most newly acquired drug dogs are not being trained to alert to the smell of marijuana. And, some other states where recreational marijuana use is not legal have started to omit marijuana from the scents dogs are trained to detect. Continue reading

DoD Employee Sentenced to Ten Years for Attempting to Entice a Minor to Have Sex

Published on: April 1, 2019 | by Roelke Law, P.A.

On March 26, 2019 United States District Judge Brian J. Davis sentenced 68 year old Mohammad Abdul Malek to 10 years in federal prison for attempted enticement and coercion of a minor to engage in sexual activity. Malek, a Ph.D. level engineer, was employed as a federal civilian employee at Kings Bay Naval Base and was living in St. Mary’s Georgia prior to his arrest.

To implement an investigation into child sexual exploitation, on August 22, 2019 a Jacksonville Sheriff’s Office detective posted an ad in the “community / activity partners” section of Craigslist. The ad stated “Looking 2 learn “(Atlantic)” “Hey, I’m looking 2 learn something new. . . I’m totally bored here visiting my granny! HMU if ur real.”

The detective assumed the persona of a 13 year old female. Malek responded only hours after the ad was posted to the internet, stating “I can teach you love making. . . .” Malek later claimed to be 50. The undercover persona replied that she was “almost 14.” Malek initially responded “You are too young.” Unfortunately for him, however, Malek subsequently engaged in more dialog from August 23 through August 26 involving approximately 780 text messages with the undercover persona. Continue reading

Recent Law Makes It Harder To Obtain Stalking Injunctions

Published on: March 8, 2019 | by Roelke Law, P.A.

If you’ve been served with a Petition for Injunction for Protection against Stalking, sometimes referred to as a “restraining order”, there’s good news for you. A recent case from the First District Court of Appeal has made it harder to get a stalking injunction.

In Venn v. Fowlkes, 43 Fla.L.Weekly D2455 (Fla. 1^st DCA 2018) Mr. Venn filed a Petition for Protection Against Domestic Violence against Ms. Venn with whom he shared a child from their 15 year relationship. Mr. Fowlkes’s Petition alleged Ms. Venn stalked and harassed him 24/7 at his work and home, and harassed him by filing a child support case. The allegations included that Ms. Venn called Mr. Fowlkes numerous times without leaving a message; knocked on the door of his house and ran; created problems at the restaurant where he works; claimed to have many pictures of him and his wife; called and bothered Mr. Fowlkes’s brother; claimed to be in fear of Mr. Fowlkes; and told a third-party that she would “get the crackers on [him].” Claiming to be “tired of [Ms. Venn’s] games, [her] stalking, [and her] harassment through the child support case,” Mr. Fowlkes’s Petition requested the trial court to stop it immediately by granting him an injunction.

At the injunction hearing, Mr. Fowlkes testified the allegations in his petition were true and correct. He provided no further substantive testimony. Ms. Venn objected to the injunction and testified she had legitimate reasons for visiting Mr. Fowlkes’s workplace and home. For example, Ms. Venn informed the court she had gone to the restaurant several times with the parties’ minor daughter, at the daughter’s request and after Mr. Fowlkes had invited the daughter to eat there. Ms. Venn also acknowledge placing something in Mr. Fowlkes’s mailbox related to her child support case against him. Ms. Venn contended Mr. Fowlkes’s petition was filed in retaliation for her having filed a child support case against him. Continue reading