Having a VALID Prescription is a Defense to Drug Trafficking or Possession Charge.

Having a valid prescription for a controlled substance/medication is a valid defense to possession as well as drug trafficking. See Shedd v. State, 137 So. 3d 456 (Fla 4th DCA 2014) citing McCoy v. State, 56 So. 3d 37, 39 (Fla. 1st DCA 2010); and Ramirez v. State, 125 So. 3d 171 (Fl 4th DCA 2013). You are entitled to a special jury instruction that states if the jury believes that you have a valid prescription or you were in care and control of the prescription for another who had a valid prescription, you are to be found not guilty. See the same cases cited above. The appellate court for Shedd v. State reversed his conviction for possession of controlled substances because his attorney failed to request such a jury instruction. The attorney had Shedd’s mother testify on his behalf that he was driving her car (where the drugs were found) and going to meet her, and also that the pills belong to her and she had a valid prescription. However, the attorney failed to ask for a special jury instruction that having care and control of valid prescribed pills was an affirmative defense to the charge of possession of a controlled substance. The moral of the story here is that if you have a valid prescription or you are holding medication for someone who has a valid prescription you cannot be illegally in possession of such medication. Valid prescription equals affirmative defense to possession charges.

Florida Legislature passes marijuana related CBD bill 6/16/2014

A summary of the new law is available here http://www.mpp.org/states/florida/FL-CBD-bill-summary.pdf

Florida lawmakers passed a bill on June 16, 2014 that will exempt certain people from criminal prosecution for using marijuana that is low in THC and high in CBD IF certain requirements are met. However, the law is so narrow that even the patients it was meant to help might not be able to take advantage of the law.

Gov. Rick Scott signed this bill.

The BILL allows patients with cancer and conditions that result in chronic seizures or severe muscle spasms to use marijuana that contains a low THC level of .8% and containing 10% CBD of higher. THC also known as Tetrahydrocannabinol, is the ingredient in marijuana that causes the “high”. See the Wikepedia article for more information on THC here . CBD also know as Cannabidiol, is a compound in cannabis that has medical effects but does not make one feel “high” and in fact it can calm the psychoactive effects of THC. See this article for more information on CBD here

Patients can administer the medicine via pills, oils, or vaporization. Smoking is prohibited. The bill also requires the state to register five dispensing businesses, spread out across the state, to grow and dispense the medical marijuana. Unfortunately, the bill places heavy burdens on physicians who wish to recommend marijuana to their patients, arguably forcing them to violate federal laws in order to do so.

Although Florida has now take a step in the right direction of medical marijuana it is only a baby step. The law is so restrictive that doctors may not feel comfortable to even recommend or write a script for it to a patient who is included in the limited list of those who are able to use medical marijuana containing low THC under this law. At least the bill may establish dispensing businesses of medical marijuana. Look to the future because the voters of Florida will have the ultimate opportunity to enact a broader workable medical marijuana law this November by voting “yes” on Amendment Two.

Stay tuned as Florida’s journey with medical marijuana continues.

DUI LAW CHANGED IN JULY 2013

NEW DUI LAW
As of July 1, 2013, the law has changed in Florida regarding DUI license suspension.  Prior to then, if you received a DUI, your license was suspended immediately and you could challenge it through a process called a administrative review hearing.  You would order the administrative review hearing within 10 days from the date of your arrest and you could get a driving permit for forty-five (45) days to drive (for business purposes only).  The purpose of this permit was to allow you to drive while you were challenging the driving license suspension.  Your hearing was to take place within those forty-five (45) days.
 At the hearing you would challenge whether there was evidence to show that you more likely than not drove the vehicle or had actual physical control of the vehicle while impaired.  This administrative review hearing is an administrative proceeding so they do not need to prove you were driving or in actual physical control while impaired beyond a reasonable doubt.  You can challenge the stop of the vehicle and argue that if the vehicle was illegally stopped all evidence should be suppressed and not used to meet the burden that you were more likely than not driving or in actual physical control of a vehicle while impaired.  If you were able to show that you were NOT more likely than not, driving or in actual physical control of a vehicle while impaired, your licenses suspension would be invalidated and you would get your license back.  Also, if you did not blow, you can challenge whether you actually refused to blow.  The same standard applied to refusal cases.  If you were able to show that it is NOT more likely than not that you actually refused, you could get the suspension invalidated and get your license back.
In the past, if you blew and had a breath alcohol level of over .08. and lost at the administrative hearing, you would then undergo a 30 day HARD suspension where you cannot get a permit or license of any kind and thereafter you could apply for a hardship license.  Also, If you refused to blow, and lost at the administrative hearing you would then undergo a 90 day HARD suspension where you cannot get a permit or license of any kind and thereafter you could apply for a hardship license. You could obtain a hardship most likely when you enroll in DUI school, and you have not driven any vehicle when you did not have a valid permit or license to do so.    This was to punish people who refused to blow more so than those who blew.
NOW, if you choose to leave your suspension intact and not invoke your right to that administrative review hearing, drivers can avoid the hard suspension period.  Now, you are eligible to obtain a “hardship” license (a business and work purpose permit) right away IF it is your first DUI related arrest and IF you do not invoke your right to challenge the suspension at the administrative review hearing.
This new change in the law is huge for single parents, people who rely on driving as part of work, students, or those who need to drive for medical necessity or other reasons.  It discourages first time offenders from challenging their suspension period but also rewards them with the option to get a hardship license immediately.
Depending on your specific facts, you may want to still challenge the suspension at a hearing and risk the possibility of a HARD suspension.  This is something to discuss with Tanya M. Dugree.  Call Tanya M. Dugree today to weigh your options.  Time is of the essence.  If you are going to challenge your suspension, you must do so within 10 days from your arrest.
It is important to note that the new law changes include if you do opt for an administrative review hearing and subpoena the arresting officer or the breath technician and they fail to appear, you can automatically move to invalidate the driver’s license suspension.
Remember, the decision of whether or not to invoke your right to an administrative hearing is a difficult and definitive decision to make.  The Law Office of Tanya Dugree can aide you in laying out your options and deciding this very important decision.  Call Tanya Dugree today. 813-418-5253

Juvenile’s Life Sentence Found Unconstitutional

The supreme court ruled last year that it is unconstitutional for juveniles to receive life in prison without the possibility of parole in Miller vs Alabama which extended Florida’s First Circuit case finding that it was unconstiutional for juveniles to receive life without parole in non homicide cases.http://en.m.wikipedia.org/wiki/Miller_v._Alabama

DUI FIELD SOBRIETY EXERCISES ARE DESIGNED TO FAIL

 

Related Article:

http://m.wsbtv.com/news/news/local/professor-dui-field-tests-designed-fail/nFdKg/

 

This is interesting. Florida does require you to do field sobriety exercises.  I always disagreed with the exercises being a good tool to measure sobriety.

SEARCH of CELL PHONE DURING ARREST without a warrant = ILLEGAL SEARCH (Smallwood v. Florida, No. SC11-1130)

Smallwood v. Florida, No. SC11-1130

 

Search of a Cell Phone during Lawful Arrest is illegal without a warrant or consent or exigent circumstances. The Fourth Amendment is still alive some of the time.

FACTS: The defendant, Cedric Smallwood, was suspected of robbing a convenience store. During the arrest of Smallwood, and found a cellphone on or near his person. The officers seized and examined the cellphone incident to the lawful arrest. On the phone, the officer found pictures of cash and firearms that may have linked Smallwood to the robbery.

Smallwood was convicted of robbery with a firearm, and the First District Court of Appeals affirmed his conviction. However, the Florida Supreme Court overturned the conviction by ruling that Smallwood’s phone was illegally searched without a warrant.

RULING: During a lawful arrest, an officer can seize a cellphone from the person being arrested; however, the officer cannot examine the phone without a search warrant, unless the officer obtains the suspect’s consent or a genuine exigency exists.

Sometimes the fourth amendment still prevails in protecting our rights against unreasonable searches and seizures. This case, in my opinion is a great case and protects our privacy. Much of our lives are kept on our phones and without probable cause to get a warrant the phone should not be automatically searched just because the owner of the cell phone is arrested with it. I give this decision 5 stars!!

Author: Tanya M. Dugree

Related Article:  http://www.foxnews.com/politics/2013/05/02/florida-court-rules-cellphone-search-without-warrant-is-unconstitutional/

THE CASTLE DOCTRINE IN ACTION; Bainter v. State of Florida, 39 FLW D677a (Fla. 5th DCA)

Recent Florida case decided entry onto a person’s property without a warrant constituted an illegal knock and talk where the property had a barb wire fence and no trespassing signed posted. See Case: Bainter v. State, 39 FLW D677a (Fla. 5th DCA). Decided on March 28, 2014.

A knock and talk or “tap and rap” is when officers come to your home to investigate ongoing or past alleged criminal conduct but do not have sufficient evidence or probable cause needed to to make an arrest or get a search warrant.

The moral of the story if you don’t want officers to have the ability to come on your property and knock on your door, post no trespassing signs and get a fence. True story.

People have a right to a reasonable expectation of privacy in their homes and on their properties. When a property owner takes measures to keep the general public out by putting up a fence and no trespassing signs, the law protects that privacy interest. If the police want to go onto that property, they need a search warrant or consent.

See this website for more information on this case and many others: https://www.fdle.state.fl.us/Content/getdoc/d10dc7f4-56bc-4529-8670-f68be3a8b21a/14-02-Entry-onto-Defendant-s-Property-Constituted.aspx

Full opinion can be read at

NEW SEARCH & SEIZURE CASE DECIDED. A driver cannot give blanket consent to search someone else’s belongings in her vehicle.

2D13-1706
Gay v. State of Florida, decided May 14, 2014 by Second District Court of Appeals. The officer pulled the driver over for failure to make a complete stop and decided not to write a citation. However, the officer then asked for consent to search and obtained consent to search from the driver. The appellant was a passenger in the vehicle. She left her purse in the vehicle and stepped out of the vehicle during the search. The court determined the officer had no probable cause to go inside the purse left in the vehicle. As the passenger, the appellant did not give consent to the search of her purse. Even the officer stating that he smelt the faint odor of marijuana was not enough. No marijuana was found. Illegal pills were found inside the purse. The pills should have been suppressed as a product of an illegal search.

WHEN ATTORNEYS FAIL TO FILE MOTIONS

Today I spoke with a potential new client in prison. He was on probation and faced a violation of probation for a new charge only. There was no technical violation. He was ultimately convicted of the violation of probation solely based on the new law violation. There was a glaring motion issue for that new case, specifically, a motion to suppress evidence that was illegally obtained. I am convinced that if the attorney had filed a motion to suppress the attorney would have likely gotten the evidence suppressed and without the evidence there would be no violation of probation and this man would not be in prison. The client is possibly doing prison time he could possibly have avoided if his attorney litigated the issues presented. Instead, he now is in prison for 10 years and trying to get out.

DOING OUR JOB, CRIMINAL DEFENSE, AND DOING IT RIGHT, COULD MEAN SOMEONE’S FREEDOM.

Author: Tanya M. Dugree
Protecting Your Rights & Defending Your Freedom

Should the State be able to prosecute the crime of murder even if it is 40 years later?

Do you think there should be a statute of limitations (time limit) on how long the state has to prosecute the crime of murder? Will a 40 year time lapse make it harder to prove the case with missing witnesses and old evidence? http://www.cnn.com/2014/02/06/justice/massachusetts-cold-case-murder/index.html?hpt=ju_c2

For the most heinous of crimes, often times, State laws will allow prosecution for an unlimited amount of time. Such crimes sometimes include murder and sexual assault/battery. With today’s technology these delayed prosecutions are now plausible. The question I pose is whether or not these delayed prosecutions are just? Often times a defendant may have had an alibi but 40 years later, the witnesses who need to attest to his/her whereabouts are no longer available. The same goes for the State, often times, their key witnesses are also unavailable. All of the witnesses’ memories will be faded and maybe even unreliable. I am not certain if a person should or should not be prosecuted 40 years later but I do know that prosecuting someone all those years later will pose evidentiary and due process questions.