Criminal Defenses are not discussed until after we give a brief overview of how a formal criminal charge makes it into court. First, when you are arrested for a crime, the Police Officer brings you into custody, either serving you with an arrest affidavit or writing his own arrest affidavit stating what you allegedly did and what the evidence is that supports that offense. Next, The police officers involved with an arrest will put together evidence, submit witness statements, collect physical evidence, record confessions. Next, the State attorney will then review all of the evidence and make a formal charging decisions, specifically filing “an information” against the Defendant. This usually takes several weeks from when the Defendant was first arrested.The information is the formal charging document that tells the Defendant what his offense is. It is written in a plain way that tells you clearly what degree offense the charge is, when the offense was committed, and who the victim was.
Criminal Defenses are defenses to the formal criminal charges listed in “the information” filed against the Defendant. There are far too many criminal defenses to list in their entirety. Therefore, the Criminal Defenses listed below are merely an attempt to give you an idea what types of Defenses are available. The explanation is written in as simple of terms as possible. Often times when lawyers discuss legal issues, clients become confused because they talk as if the client knows the law already. The hope throughout the entire help section is to simplify the process and make understanding the law an easier endeavor.
- Self-Defense: Self Defense is a criminal defense where you say that you thought you were going to be harmed so you harmed someone else. E.g. someone looks like they are going to punch you, so you punch them first.
- Defense of Others: another of the criminal defenses that can be explained quite plainly. With this one, the Defense is that you thought someone else was going to get harmed so you jumped in and harmed them instead. E.g. a mugger attacks your girlfriend so you punch the mugger to prevent her from being hurt.
- Necessity: one of the more interesting criminal defenses. Necessity defense is the defense that you admit to committing the crime, but you state you had to commit the crime in order to prevent some other greater harm. E.g. A driver leaves the scene of an accident because he’s being chased by a motorcycle gang who’s trying to kill him.
- No mens rea: Mens rea defenses are criminal defenses that claim the Defendant did not have criminal intent necessary to satisfy the elements of the offense.E.g. You break into someone’s house to use the restroom. The State charges you with Burglary. You argue that you didn’t have the intent to commit a crime inside the house, instead you intended to use the restroom, therefore you didn’t have the criminal intent to commit a Burglary.
- No Actus Reus: Actus Reus defenses are criminal defenses that claim the Defendant didn’t actually commit the act. Mens rea refers to the mental state. Actus reus refers to the physical state. An example of an Actus Reus Defense would be an involuntary arm spasm that caused your hand to touch a woman next to you inappropriately. The argument is that you didn’t actually commit the act. It was the spasm that forced your arm. Not always the strongest argument, but these sorts of defenses can be seen in some instances.
- Alibi: Alibi defenses rely on other witnesses to come to court and testify that you were with them when the offense was committed.
- Consent: Consent defenses rely on evidence showing that the victim was a willing participant. For example, in a sex battery case, evidence that the victim voluntarily consented to sex.
- Etc. There are a number of criminal defenses available in a criminal case. Each case has multiple possible angles. It’s important to discuss your story in detail with a criminal Defense lawyer so he can discuss criminal defenses in detail and explain how your criminal defenses fit into your case.
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Self Defense in Florida
Temporary Possession of Drugs
Self Defense in Florida
- What is Self Defense in Florida? Self Defense in Florida is an affirmative Defense that says “although you committed a battery, or an assault, or some other crime involving you fighting… you cannot be found criminally liable if you were defending yourself.” In general, the Defense requires evidence that the Defendant was not the aggressor and that he defended himself with reasonable force to combat the force being used by the attacker. In other words, a non-lethal threat should be defended with non-lethal self defense. For example, a guy punches the Defendant and the Defendant pulls out a gun and shoots the guy, it is highly unlikely that a self-defense theory would be legally sufficient because the level of force used to defend was dramatically more egregious than the harm posed. Therefore, when looking at cases it’s important to understand context is important, with factual variances creating difficulty with bright-line rules to when a self defense argument would work. It’s important to talk to your lawyer about your specific set of facts to see if Self Defense in Florida is applicable to your case.
- How does Self Defense in Florida work? Because self Defense in Florida is an affirmative defense, it means that actual evidence of a need for self defense must be produced by the Defense. See S.D.G. v. State, 919 So.2d 704 (Fla 5th DCA 2006). In S.D.G. the 5th District Court of Appeals said, “where a defendant did not initiate the fight and was acting to protect herself from her attacker, the defense of self-defense applies. Once Appellant produced evidence supporting her claim of self-defense, the State was required to prove beyond a reasonable doubt that Appellant’s actions were not taken in self-defense to sustain a finding of guilt.”
- Case Study. Example of Self Defense in Florida: S.D.G. is a an example of a Self Defense in Florida case. In S.D.G. a police officer observed two people fighting, the Defendant being one of the two that was fighting. The police officer ordered them to separate, but the two refused. Eventually, the officer decided to use his taser to break up the fight. Defendant was arrested for disorderly conduct. The State only called that officer as the single witness in the case. The Defendant had two witnesses who testified that the Defendant was not the aggressor and only fought back in self defense. The S.D.G. Court ruled that Self-Defense was applicable: the Defendant introduced evidence that she was not the attacker or provoker, and that she fought back out of necessity. Because the State failed to prove beyond a reasonable doubt that this was not accurate, the Defendant must prevail. The District Court reversed, requiring the Circuit Court to discharge the Defendant from the crime.
Self Defense in Florida. Questions? Call us (407) 930-8912
- What is a necessity Defense? The necessity defense is the defense that you actually committed the crime but there is some reason that you shouldn’t be punished for it. The general premise behind the defense is that you shouldn’t be punished for doing something practical, yet illegal, if the good of the act outweighs the bad of the crime. It’s an essence a balancing act, weighing the intention and actions of the Defendant, versus the evil which the law seeks to protect. The theory is that this crime would never have been committed had it not been for some necessity. Therefore, why punish someone who is not an inherently evil person or a person who does inherently bad things? For a complete history of the necessity defense, there are several well-written scholarly articles on the topic. A simple Google Search of the history of the Necessity Defense will provide several on point articles and pages.
- Legal Elements of Necessity Defense? In order to establish a necessity defense, the Defendant must show the following: (1) Defendant reasonably believed that his action was necessary to avoid an imminent threat of death or serious bodily injury to himself or others; (2) defendant did not intentionally or recklessly place himself in a situation in which it would be probable that he would be forced to choose the criminal conduct; (3) there existed no other adequate means to avoid threatened harm except criminal conduct; (4) harm sought to be avoided was more egregious than the criminal conduct perpetrated to avoid it, and (5) defendant ceased the criminal conduct as soon as necessity or apparent necessity for it ended.
- Examples of when you can use Necessity Defense? In W.E.P. vs State of Florida, 790 So.2d 1166 (Fla. 4th DCA 2001), the fourth District Court of appeals considered a necessity defense case where the Defendant and his brother fled in a truck away from an officer. The Defendant testified he was being chased by people who were trying to hurt him, and he was trying to protect himself and his little brother. Therefore, he drove away despite the Officer instructing him to remain. The Defendant reported to police authorities as soon as the danger dissipated. The Defendant was charged with leaving the scene of an accident and fleeing (among other things). The District Court stated that there no criminal culpability by the Defendant and the case should have been dismissed. As part of their reason they cited the necessity defense, stating “Because [defendant] was fleeing to avoid injury to himself and to brother, it would make no logical sense to require [defendant] to remain at the scene where his safety was in danger from the aggressors.” The Court also made note of the fact that the Defendant notified police authorities as soon as he was out of danger. Therefore, the Court found the Defendant’s actions satisfied the necessity requirements laid out above.
Necessity Defense. Questions? Call 407-930-8912
- What is Involuntary Intoxication?
- Involuntary intoxication is a criminal defense under certain circumstances.
- In order to use the involuntary intoxication defense the intoxication must not be voluntary and the intoxication must negate the intent required for the criminal offense you are being charged with.
- Voluntary intoxication only works as a defense to negate intent where there is specific intent is required.
- In sum, voluntary and involuntary intoxication defenses are used to show that the person did not have the intent to commit the offense; where voluntary intoxication defense is applicable only for specifically enumerated specific intent crimes, where involuntary intoxication is more applicable and is allowed in both specific intent crimes and general intent crimes.
- How Involuntary Intoxication works:
- Involuntary intoxication defense is a defense raised at trial by the Defense. During trial the state has the burden of proving that you intended your actions. Without intent there is no crime. Therefore, the Defense introduces evidence at trial that would show you had no intent to become intoxicated and that your behavior was a direct result of the involuntary intoxication.
- The involuntary intoxication defense is given as part of jury instructions where the Defense (or State) produces sufficient evidence that (1) the Defendant unknowingly ingested a substance which caused him to become impaired, and (2) did some act without the knowledge that he was or would become impaired. See Carter v. State, 710 So.2d 110 (Fla. 4th DCA 1998).
- Case Study on Involuntary Intoxication:
- Carter v. State: In Carter, the 4th DCA looked at involuntary intoxication as a defense to Driving Under the Influence (DUI). In Carter, the Defendant was arrested for DUI. The Defendant testified at trial that he only had one beer and some medicine from his friend which she had told him was Ibuprofen. The friend testified that she kept ibuprofen and her Amitriptlyline (use for Depression) in the same container. She testified that she had accidentally given her friend Amitriptyline instead of the Ibuprofen. There was testimony from a medical professional that the Defendant’s behavior was consistent with alcohol, but also consistent with intoxication due to four Amitriptyline tablets that Defendant may have taken. The 4th DCA stated that the Involuntary Intoxication Defense was applicable given the facts and that it should have been given during the jury instructions. The Court remanded for a new trial.
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- Actual Possession vs. Constructive Possession:
- Actual Possession: Simply put, actual possession means you actually had the illegal contraband on your person.
- Constructive Possession: In contrast, Constructive Possession means that you possessed the illegal contraband, despite it not actually being on your person. A common misconception of Defendants arrested under constructive possession theories is that you actually have to possession the contraband in order for the state to pin the crime on you. While it is true that constructive possession is a significantly stronger case for the Defendant, it doesn’t mean the state cannot prove their case.
- Here’s what the state needs to show in order to prove constructive possession: In order to prove constructive possession the state must show that the Defendant “was able to exercise dominion and control over the drugs, knew of their presence, and knew of their illicit nature. Notice that there are THREE REQUIREMENTS to prove constructive possession. See Davis v. State, 761 So.2d 1154 (Fla. 2nd DCA 2000). In Davis, the 2nd District Court elaborated on these requirements. The Court stated “proof of mere proximity of the defendant to the drugs is insufficient to sustain a conviction for constructive possession.” The Court went on to give examples of other cases where proximity was insufficient to establish constructive possession. For example, the Court cited Agee v. State, 522 So.2d 1044 (Fla. 2nd DCA 1988). Referencing Agee, the Davis Court said, “even when a defendant was found standing approximately one foot from a matchbook containing 19 packets of heroin, the evidence was held insufficient to withstand a motion for judgment of acquittal.”
- Where illegal contraband found in Public: There is an even greater level of scrutiny applied to the State where the contraband is found in a Public Place. See Davis. The Davis Court also cited to Tanksley v. State, 332 So.2d 76 (Fla 2nd DA 1976). Tanksley was another prime example of where constructive possession was not sustainable because of the public nature of the case. Tanksley was used in the Davis opinion to emphasize how the public-nature of an offense can impact constructive possession arguments. In Tanksley, a paper bag was found 15 feet from where the Defendant was sitting. Inside the paper bag there was heroin. Fingerprint tests were run that matched the Defendant. However, the Court said the evidence simply was not sufficient to sustain a verdict, because there were other people around, and the evidence could not refute every reasonable hypothesis of innocence. Specifically, the Court said the evidence could not refuse the possibility that the Defendant touched the bag and envelope before it contained heroin. Therefore, the evidence was insufficient to establish the elements of constructive possession.
- Constructive Possession is a Case-by-Case Basis: As you can see Courts look at a number of factors to determine whether a constructive possession allegation can be sustained. A good lawyer has a strong understanding of the case law and your case and call help you show how your case matches with another key case that is favorable to your specific situation.
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Temporary Possession of Drugs, Florida Drug Laws
- Elements of Drug Possession: In order to find that a Defendant is in possession of a drug, the State must show that the Defendant either (a) had actual possession of the drug, or (b) had constructive possession of the drug. Temporary possession does not satisfy either of those types of possession.
- Temporary Possession is insufficient possession under Florida law: “To prove dominion and control the evidence must establish the Defendant’s conscious and substantial possession, as distinguished from mere involuntary or superficial possession of the contraband.” In other words, the State must present more evidence than temporary possession under Florida Law in order to sustain a verdict on possession of contraband. Different Courts have elaborated on what is meant by temporary possession, but the general premise is that in order to actually possess the drug, under the letter of the law, there must be a substantial possession. In other words, an actual intent to possess the drugs, unknowing and accidental possession don’t count.
- Therefore, Temporary Possession of Drugs is a Defense: The Defense is used to show that there was not sufficient possession as required by law. Without evidence of actual or constructive possession the State cannot meet its burden and the case should be dismissed. Therefore, where applicable the Defense Attorney would introduce evidence to establish that the possession was mere temporary possession and did not rise to the level required to satisfy possession. If the Defense Attorney is successful, and the State cannot introduce evidence to show a substantial possession, then the Trial Court should dismiss under a temporary possession defense.
- Circumstantial Evidence in Temporary Possession cases: Where the evidence is circumstantial, the State is required to prove that the evidence is inconsistent with any reasonable hypothesis of innocence. Where there is a single reasonable hypothesis of innocence that remains, the State has failed to meet it’s burden. This is specifically implicated in temporary possession cases, because of the often circumstantial evidence that surrounds temporary possession cases.
- Case Analysis of Temporary Possession of Drugs:Take a look at Isaac v. State, 730 So.2d 757 (Fla. 2nd DCA 1999). In Isaac, officers observed two men standing a foot apart, passing an unknown object back and forth. The men saw the officer and immediately dropped the bag to the ground. The bag was recovered and drugs were inside. The 2nd District Court in Isaac stated that this type of possession did not fall under either Actual or Constructive Possession and therefore the case should have been dismissed. The Court cited constructive possession and temporary possession theories, stating “The State did not meet its burden of excluding every reasonable hypothesis of innocence. To be sure, the circumstances suggested that one or both men possessed the cocaine. At the same time, however, those circumstances did not exclude the reasonable hypotheses that the men found the baggie at that spot and were simply examining it when the policemen happened by, or that the other fellow brought the cocaine there and was showing it to Isaac.” The Court reverse the conviction and ordered the Circuit Court to discharge the case.
Temporary Possession of Drugs, Florida Drug Laws. Questions? Call 407-930-8912