Craig Epifanio Explains To Media The Problems With Foreign IncarcerationCraig Epifanio's Legal Opinion Sought By Local MediaCraig Epifanio Protects His Client From An Illegal ForfeitureBar Admissions and FelonsSTATE OF FLORIDA v. J.H. County Court
May 30, 2019: Tampa strip club owner, Joe Redner, lost his appeal to grow his own medical marijuana this past week. This case has broad implications for the future of medical marijuana in the state of Florida. Even though Floridians overwhelming wanted and passed a Constitutional amendment allowing medical marijuana, the Court has now restricted the people to legally grow their own. This seems to not only fly in the face of citizen's goal to legalize medical marijuana but denied Mr. Redner, what the lower court called "the most effective way...to get the benefit of medical marijuana." Hopefully the Supreme Court will review this case soon for the benefit of all its citizens.
June 12, 2019: Would you rather give up your phone password or go to jail? The answer is you don't have to choose. The Constitution protects you from divulging that information as a violation of your 5th Amendment privilege against self-incrimination as well as protection against police abusing who overlook your 4th Amendment right against unlawful searches and seizures. A court this past week dismissed charges against a person who took the proper stand and said NO to the police when they asked him for his password. Like many who suffer the consequences of being brave (he spent 44 days in jail in contempt of court until the court ultimately dismissed the charge), just remember it is your Constitutional right to keep your cell phone information private and just say NO to the police if they want your cell phone password.
June 20, 2019: In a highly unusual move, the Hillsborough county prosecutors office overturned 17 convictions yesterday. Those cases relied solely on the testimony of "bad" cops who had been fired last month. Among other things, the officers, who were being investigated for over seven months, failed to dispose of seized drugs, failed to document when people were detained or searched, and even were found to turn off their body cameras right before an arrest. The three Tampa police officers involved were Officer Maceo, Officer Landry, and Officer Laratta. Due to their lack of credibility as the only witness, the past convictions were overturned and even five pending cases that they were involved with will not proceed. It pays to find a good attorney who can review the police files and always test an officer's credibility. Here, the Hillsborough county State Attorney's office did the right thing, as they have an ethical duty to make sure every conviction is one that can be proven beyond a reasonable doubt. Congratulations to all involved.
June 27, 2019: NEW 2019 FLORIDA LAWS YOU SHOULD BE AWARE that go into effect this week or October:
- Affecting most citizens is the one regarding texting and driving. Before this change, police could only pull you over if they witnessed a second offense in addition to texting. Now, they only need to see the texting before you can be pulled over and receive a ticket (or potentially worse if they search your vehicle). While a good idea, the problem is that officers can now use this law as a pretext to pull someone over, even though they may not have been texting. The law allows exceptions, such as using the phone for GPS, for example. I anticipate that this law will see many new motions being filed.
- Another criminal traffic law is one regarding street drag racing. Of course, that should be illegal. The change is that before the police needed to actually witness this in order to make an arrest. Now, they can show up, and base an arrest solely on witnesses who were allegedly present, and of course may not know if there was actual racing going on. For example, a person may have been speeding and the witness may wrongly assume racing. Again, I foresee problems.
- One change to the law is the felony theft law which hasn't been changed since 1986. Before, a theft of goods or cash, of $300 or more would cause one to be charged with a felony. It has now been changed to $750. For first time offenders who make that stupid mistake, this can be a big deal (although one would still face up to one year in jail).
July 3, 2019: In a case affecting many DUI cases, the US Supreme Ct. in Mitchell v. Wisconsin said that police can take your blood without a warrant when you're asleep. While getting intoxicated drivers off the road is a good thing, the United States Supreme Court said this past week that police do not need a warrant to do a blood draw if the person is asleep (when ironically they would usually be off the road anyway, not causing harm to others). So, if you're tired and you pull over, even if you're not intoxicated, the police can now stick a needle in your arm without your consent. In my opinion this is against the 4th Amendment prohibition against searches without a warrant. And while the Supreme Court said that the exception of exigent circumstances would apply in these cases, the dissenters argued that the exigent circumstances rule was not even argued, and further, that the police should still be required to get a warrant if they are going to invade someone's body. Admittedly, the Court did leave open the possibility that a warrant may be required in some cases but it leaves little solace to the innocent tired person who pulled over in order to keep the roads safe from themselves and others. With all this in mind, it is best to get an attorney to fight this intrusion without a warrant.
July 10, 2019: A federal appeals court threw out a conviction this week of possessing and conspiring to distribute meth or methamphetamine. As many lawyers know, the Sixth Amendment Confrontation clause is crucial to a good defense. The founders put this in there so that, among other reasons, people are able to face their accusers and the Court is not relying on hearsay. In this case, a police officer testified that a confidential informant (aka CI) told the officer that the defendant was to receive a large shipment of meth. The court rightly ruled that a defendant has a right to cross examine this CI. This case also highlights a reason that they say "cross examination is the greatest legal engine invented to discover the truth." Thus, if we can't confront our accusers by having your attorney cross examine witnesses, then the brilliance of having the Confrontation clause would become meaningless.
July 17, 2019: Last week a deputy in the Florida panhandle was caught planting drugs on innocent citizens. Unfortunately, in my line of work, clients would often tell me these stories and while I usually believed what they were telling me, it was hard to prove. Innocent people would be forced to hire an attorney such as myself for something they didn't do and I would have to file motions in certain cases to get charges dismissed. The deputy was arrested in Jackson county Florida. He would pull people over for minor traffic offenses, then claim he smelled marijuana or other drugs. Not only did innocent people have to go to court with an attorney to defend themselves, but in at least one case, a person lost custody of their daughter. This shameful conduct is one more reason why it is often harder to protect the innocent than it is to represent the guilty. Furthermore, it is a blight on all officers who do act in good faith, as now the prosecutor had to drop over 120 cases in which he was involved. If you suspect you have been a victim of police foul play when you have been arrested, do not hesitate to contact my office.
July 24, 2019: A Melbourne Florida deputy was out patrolling the streets after getting arrested for a DUI. While the prosecutor dismissed criminal charges against her, the problem is that like many who get DUIs, they are still limited to driving for business purposes only under Florida administrative law. In this case, the deputy refused and thus must lose her full driving privileges and be restricted to driving for business purposes only for one full year, even though the criminal charges were dismissed. Driving while license suspended, and driving in violation of a business purpose is probably one of the most common charges that regular citizens face and one of the most common cases (often accompanying a DUI) I have taken on in over 22+ years of practice. A person can face charges that range from misdemeanors involving up to 60 days jail, and in some cases, felonies where one faces up to 5 years prison. Regardless, this deputy's arrest is a good lesson for all. If you get arrested for a DUI, it is good to hire an attorney to either fight the charge so that you get you full driving privileges back, or at a minimum, get your business purpose only license within 10 days of your arrest so that you don't face additional criminal charges.
July 31, 2019: In my 22+ year career as a criminal defense attorney, I have been mostly fortunate to be in front of really good, and often great, judges (that's not to say that I don't disagree with them which happens A LOT). However, that doesn't mean judges are above the law. Just this past week, a judge in Broward county Florida was recommended for suspension for "choking the clerk." The judge initially denied it, but like most courtrooms nowadays there was video refuting her claim that she did not touch the clerk. The Florida Judicial Qualifications commission said that her alleged conduct shown that she was "unfit to serve" and that this was "inappropriate conduct" for a judge. Needless to say, it is inappropriate for anyone, but judges in particular are held to a higher standard. While this conduct could make some potential defendants feel intimidated, rest assured that I will fight for my clients even against judges such as these who do outrageous things. I have certainly seen outrageous rulings but I will not stand down if I feel my client is being treated unfairly. This also represents even one more unexpected reason why getting a Pinellas/Hillsborough attorney for any charge is your best option.
August 7, 2019: I've had the pleasure of representing many very good people in my decades of practicing law in Florida. This includes representing undocumented immigrants who rarely get into trouble. When they do, it is almost always for misdemeanors such as driving on a suspended license (which used to not be a problem until they changed the law), or DUI, or even loitering. In all those years, I have been trusted not to tell their status and judges know not to ask me. Recently, however, a troubling new trend has happened where undercover ICE agents will be in misdemeanor court to arrest those undocumented people. So far, I have only seen this happen in Hillsborough county, but I fear other counties may do the same. The people we represent are still presumed innocent and I understand that these are real faces with real families. So I guarantee that I will maintain that confidentiality with ALL my clients and as always I will make sure that everyone's case is resolved in a matter that will remain personal and privileged.
August 14, 2019: Have you ever accidentally clicked on the wrong website? A Federal Appeals court (the last court before the US Supreme Court) in Virginia has ruled that when a person only took one click to a pornography website, then police have the right to search one's home. This seems to be a far stretching of the limits that the 4th Amendment places on the police's ability to search one's home and possessions, and even though this is not Florida, a Federal appeals court decision can affect the law across the country. As one attorney who commented,"Links can be created [t]hroughout the internet and we may not know the origin.... They can be shared or even pranks." Exactly! What one does in the privacy of one's home should be protected. If you have been arrested for something during any sort of search and are not sure whether the police have violated your 4th Amendments to be free from unreasonable search and seizure, feel free to contact my office.
August 21, 2019: "The officers said they smelled marijuana in my car." Whenever I would hear clients say this, I knew that even if the officers did not smell cannabis, that officers knew this was an excuse to justify an otherwise illegal search. Now with medical marijuana legal in Pinellas, Hillsborough, and all other Florida counties, this lame excuse by officers to illegally search one's vehicle can now be better defended. This is the case, even if it is true! The reason is because now that marijuana is legal in some cases, that can not be the sole reason for an officer to search one's vehicle. It is similar to a situation where an officer says he smells alcohol. That smell alone does not mean that an officer has the right to search the vehicle without other evidence of a crime being committed. Obviously, this does not give anyone the right to be intoxicated on marijuana and then drive, but it does restrict the officer's ability to search a vehicle now, unlike before whenever the officer claimed they "smelled marijuana" in the car. Call my office today, if you feel you've been improperly searched.
August 28, 2019: One of the least reliable yet most often used to convict is the mug shot witness ID. Now it seems that with today's technology, a few bad apple officers are altering mug shots to witnesses just so "they can get their man." In a case in Portland, but certainly applies through all police departments, including those here in the Tampa bay area, officers removed face tattoos from the original mug shot so that tellers in a bank robbery could pick the person the police wanted to convict. Even though none of the tellers ever mentioned face tattoos, police unilaterally decided to make the photo fit "the police version" of events. This attempt at subverting justice and the rule of law is just shameful. As was put, "it is hard to fathom any photo array conduct that is more suggestive than altering a source photograph for the sole purpose of making the investigation target look more like the perpetrator." Call me if you feel you've been unfairly targeted or improperly identified.
September 4, 2019: Can you be found guilty by association or just because you associate with a criminal? In general, the answer is no. However, with the ever expanding conspiracy statutes on both Florida and federal levels, the government often finds a way to convict innocent people. Fortunately, there are some courts who see this broad expansion as a problem since the law requires a consciousness of guilt to convict. An appeals court recently overturned a conviction where the testimony against the defendant was from an unreliable accomplice. The accomplice gave no independent corroboration or verification. The court found that without independent corroboration, there is not enough evidence to convict someone based on this alleged accomplice. In this age of charging as many as people as possible in a conspiracy charge it is important to hire an attorney that knows how to fight these often baseless or tenuous claims of guilt. If you've been charged merely because of guilt by association, feel free to contact my office.
September 11, 2019: While getting a DUI in a car is much more common, we live in Florida where there are a lot of BUI, or boating under the influence of alcohol or drugs. As recently happened in Redington Beach, a man was charged with BUI Manslaughter, among other charges, when he was alleged to being intoxicated and running over a man on a jet ski. For the BUI Manslaughter alone, he now faces up to 15 years in prison. For the most part, people charged with BUI face most of the same penalties as a DUI. Hopefully, you are never charged with any alcohol related offense, but if that mistake happens, call my office for a consultation.
September 18, 2019: A memo has surfaced in the Hillsborough county prosecutor's office regarding possession of marijuana charges. In short, since prosecutors must be able to distinguish legal hemp (meaning having a THC level of 0.3% or less) from illegal marijuana, they do not have a scientifically reliable way to test that in the field. This means that odor or even plain view is insufficient so long as it does not involve a felony amount, a firearm, or other factors. In other words, they would only have probable cause to arrest if the police knew before the stop, observed a hand to hand deal, the defendant admitted it (remember you have a right to remain silent), conflicting statements, obvious nervousness, trying to hide a substance, large amounts of currency, and especially if one appears intoxicated. This is not a get out of jail free, but it is an acknowledgement that if you're charged, and you have a good attorney, then you've just bettered your odds.
September 25, 2019: A weed breathalyzer? Apparently scientists are working on one that detect those impaired by marijuana or cannabis while driving, in order to arrest one for a DUI, aka Driving Under the Influence of alcohol or drugs. It goes without saying that no one should drive impaired. However, we have been down this road before for testing one's impairment. Through most of the 20th century, every few years police departments would come along and say that the latest breath machine for alcohol is totally reliable. Then defense attorneys like myself would challenge these machines only to find out that they are not always reliable. Even in 2019, these breath testing machines have been found to be out of compliance and not reliable. This reason alone is always an important one in considering hiring a good defense attorney. With more states legalizing marijuana, medical and recreational, it is inevitable that there will be some sort of machine to detect illegal amounts of THC in one's system. We'll be ready to fight for you today, whether it's alcohol, weed, or other drugs.
October 2, 2019: This week a new texting while driving law goes into effect. Some of you are aware that part of the law started July 1st. That part allows officers to pull one over if they see someone texting on their phone while driving. Starting this week, they can also pull you over in a school zone just for holding the phone. To understand better, the original law only allowed police officers to pull someone over as a secondary offense (for example, they pull you for speeding and then cite you for driving while texting). Some felt that this did not give officers enough power to stop people from texting while driving. So they changed the law to allow officers to stop people on texting alone. There are exemptions that officers can't stop a person for. Among those include, if you are using the phone for talking, using it for navigation, or even scrolling through your phone. This new part of the law is where it comes into effect this week. So even if you are using your phone for navigation only in a school zone, you can still be cited. While the goal of the law is laudable, the law does open up abuse by law officers to stop someone as a pretext for other reasons. So if an officer thinks your texting, they can pull you over and subsequently search your vehicle if you were to give them permission (which you should never do even if, and especially if you have done nothing wrong; it is your right to refuse consent to search your vehicle). Be aware of your rights and call me if you feel the police abused their power.
October 9, 2019: It's that time of the year again: A new Supreme Court term. There are a lot of cases concerning criminal law which may have a big effect in the future. Two of the most important cases are ones regarding insanity and another involving unanimous jury trials. Regarding the insanity defense, there are only 5 states, Alaska, Idaho, Kansas, Montana, ad Utah, that do not recognize the defense and claim that they don't have to show the person necessarily knew right from wrong. This is despite this being the law since before the Constitution was ratified. I predict this will be overturned. The second regarding unanimous juries is interesting. In short, a few states, notably Oregon and Louisiana, allow a person to be convicted with a less than unanimous verdict. Since the US Constitution mandates a unanimous verdict, the argument is that it should also be applied to all states. This one is harder to predict. Further, if these state laws are upheld, it may one day affect Florida. Follow me on my Facebook page for updates.
October 16, 2019: An interesting Florida appeals case came out this past week which talks about how state "experts" determine one's alcohol limit in DUI and BUI cases. Often times, a prosecutor will try to extrapolate ones blood alcohol level backwards to the time of driving, as opposed to the time the person took the breath test. For example, a person may blow a .07 (under the legal limit), but then try to say that "at the time of driving" their blood/breath alcohol was higher than the legal limit. The appeals court allowed the expert testimony in that case. However, what's good for the goose.... is good for the defense. Now this means that a defense expert can extrapolate back to a more favorable result for the defense. For example, if one blows a .12, now a defense expert can say that they can extrapolate a driver's BAC to one BELOW the legal limit. Obviously, one needs a good defense attorney to help the defendant out and use this information. If you feel you've been wrongly charged, even though your breath test shows above the legal limit, feel free to call my office about your defenses.
October 30, 2019: What happens when you're charged with a DUI and you are under 21? Many things are worse for that driver. Most important thing to remember is that you can lose your license even if your breath or blood test is only 0.02%. That is often less than one drink for many people. Further if charged this way, you don't even have the right to have a court hearing, but merely an administrative hearing, where the burden is much lower. Of course, the officer can still investigate you for a DUI, meaning everything from field sobriety tests all the way to a full arrest and a night in jail. Even if you are not an adult, this charge will stay on your record if you are convicted. Thus it is very important to get an attorney immediately if charged with a DUI, even if it is only an administrative hearing.
November 2019: I have added stories about rights to privacy, rights against electronic device searches, and more on developing marijuana laws in Florida. Please see our links under Drug Possession, Search and Seizure, and DUI laws.
November 20, 2019: Can cops search commercial genetic databases to solve alleged crimes? Well apparently, one Florida judge gave the police to search sites such as Ancestry.com or 23andme and go through up to 20 million DNA submissions. This incredible breach of the 4th Amendment and breach of privacy is a HUGE blow to our rights. As I've said before the 4th Amendment to be free from unreasonable searches and seizures is there more to protect the innocent than it is to protect the guilty. Now 20 million innocent citizens are subject to being probed the government, even though they have done nothing wrong. Hopefully, this action will be overturned by an appeals court. Otherwise, we will fall into a slippery slope where we have no privacy left.
November 27, 2019: Racing on the streets of Florida is not only illegal, for several years now, it is a misdemeanor punishable by up to a year in jail. More importantly, there is an automatic license revocation if convicted. This week, in Pinellas county, someone tried to race another person across the Courtney Campbell bridge. Problem was the person he was trying to race was a police officer. Other than the obvious dangers, one never knows who they may run up against on the street. Could be an officer of the law. While his defenses may be limited, there are a lot of defenses to racing so feel free to call if you have been charged.
December 4, 2019: In a case where the cops will hopefully have learned that it not only does crime not pay, but not doing your job correctly can cause a guilty man to go free. Just recently, a Pinellas judge ruled that police AND prosecutors lied in order to get a warrant to search a computer. The law does not allow officers to lie or misstate facts in order to get a warrant but Officer Michael Alvarez is alleged to have committed perjury in order to get a warrant. Now because he had a good defense attorney who fought this and exposed the lies, the defendant charged with child pornography will go free. This case shows the importance of hiring good legal counsel who is willing to fight for you even if the odds seemed stacked against you.
December 12, 2019: Keep an eye out for old unpaid tickets. Tampa, among other Florida cities, have started going through old unpaid tickets and sending out summons to pay. For example, an unpaid parking ticket issued to a Tampa man 7 years ago, was just this past week issued. In this case, he was lucky that he was found, as many people move, often out of state, without never knowing about these tickets. The problem becomes really bad, not only because of the unfairness, but also because now anyone who may not be aware of old tickets and don't get them resolved face criminal charges. One could lose their license for non-payment, the DMV suspends their license, and then that person is stopped now facing criminal charges. It is important to talk to an attorney today about defenses to these situations and other Driving While License suspended or revoked charges before things escalate and get worse.
December 18, 2019: I've criticized law enforcement's use of Stingray devices which is a device allowing police to skirt warrant requirements and track citizen's cell site information, even without probable cause. The ruling reaffirms that police are not allowed to do this as there is a great danger of innocent people getting swept up in this warrantless behavior. The new ruling goes further and says that since there were no previous court decisions on it then they acted in good faith. The court saw through this by saying that good faith by the officers doesn't apply merely because they are "doing stuff just because no one has told them they can't yet." Fortunately, there is an independent branch of government trying to protect our constitutional rights.
January 8, 2020: An interesting DUI scenario recently happened in Florida when a man's car was hit by a train and then afterwards he said he drank two bottles of alcohol. I am sometimes asked whether it would be advisable to drink alcohol in such a scenario. I certainly can not advise that a person do that as one risks an arrest for DUI, just as this man did. However, his case does offer a good criminal defense attorney, such as myself, an opportunity to fight and potentially win this case. In a DUI case, the state must prove that a person was intoxicated WHILE driving. Certainly, the driver's version is cause for skepticism but there is a good argument to make to a judge or jury that the state can't PROVE that he was intoxicated when driving. My advice is to never drink and drive but if you find yourself in a situation where you're not sure that your arrest was lawful please contact our office.
January 15, 2020: It may surprise many but Pinellas County Sheriff's Office was one of the first police agencies to utilize facial recognition technology back in 2000. Now many agencies in Florida come to Pinellas database to check facial IDs. There are many problems with this, that even the Pinellas county sheriff has conceded. For example, police would often do random ID checks and if the person didn't have ID, then their photo would be put in the database. One major problem (in addition to the probable civil rights violation) is that the ID was often of such poor quality that it is often unusable. Another more significant issue was that people with Alzheimer's and other issues didn't have IDs and couldn't remember their name so these innocent people were then subject to unnecessary police involvement in their lives. So, as you can see, this facial recognition "technology" is just another way that the police expand their scope of their searches on innocent citizens. Hopefully the Florida legislature will outlaw the unchecked use of this technology, as some other jurisdictions have.
January 22, 2020: Two men are in prison for a 1985 murder. However, it is pretty clear that one of them is innocent. Yet, prosecutors still refuse to concede any appeals and now. One man never confessed, and was only convicted based on jail house snitches. There are just too many people in prison today based on questionable testimony. These snitches have a motive to lie and we should learn that this in itself is almost always a reason to raise a reasonable doubt. Hopefully the governor's office will review this for a possible pardon or clemency. Meanwhile, one person waits for his execution while the other is serving a life sentence. Injustice indeed.
January 2020: One of the most common charges I get asked to help people with is driving while license suspended or revoked. There are so many things that can cause one's license to be suspended, including many that are unrelated to driving. However, there is hope as the legislature appears to be putting forward a bill that would restrict the Florida DMV from suspending one's license for many financial obligations. The vicious cycle then happens because in order to make money, people need to drive, and if they can't drive they can't make money to pay off those financial obligations. Hopefully this is a way to lessen police ability to jail them for what, in essence, is their present inability to pay. This country's history is one where we don't put people in debtor's prison, and if the law isn't changed, that is exactly what will continue to happen.
IN THE NEWS THIS WEEK
February 2020: This has been a busy month with some new laws. The Florida House has approved a measure allowing first time DUI offenders to enter diversion programs. It would only be eligible for, among other reasons, those that were not in an accident, can not have minors in their vehicle, and the offender can not have any prior felonies or or drug or alcohol related offenses. This could be big for those counties that do not already have such a program (including Pinellas and Hillsborough counties). Please contact my office to see if you are eligible. Also this month, a Florida appellate court unbelievably said that the State can prosecute an individual over sending a mere picture of an AR-15 to another individual, even though it was not a threat to harm anyone. A great intrusion on both 1st and 2nd Amendment rights. The biggest national news out of Florida has to be that the State can NOT bar felons from voting over unpaid fees as that would create an illegal poll tax among other reasoning. Even though over 2/3 of Floridians agreed that this should not be the practice in Florida. There is still confusion, however, I would encourage any convicted felon who has completed their sentence and is not incarcerated or on probation to register to vote and make your voice heard.