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News Regarding Legal Protections for Those Reporting Drug Overdoses

In 2012, the Florida Legislature passed a law called “The 911 Good Samaritan Act” (Florida Statute §893.21 (2016)).  This law was intended to protect anyone who suffers from a drug overdose, or tries to help another person experiencing a drug overdose, from being prosecuted for drug possession crimes connected to their calls to law enforcement and other rescue personnel.

The purpose behind the lawmakers’ actions here were clear: there is a public safety interest in encouraging people to seek medical attention in situations of drug overdose, without fear of arrest.  In short, the message was, “Don’t worry about getting in trouble - act immediately to seek medical in case of a drug overdose.”

However, just like many other well-intentioned and seemingly clear legislation, the meaning of the law was left for debate, as some of the terms in the actual statute remained unclear.  For example, the law requires that the reporting citizen is “acting in good faith” – what does this mean?  And, how far does the law go to protect reporters from prosecution- and when might they not be protected?  A recent case from Florida’s First District Court of Appeal helped to resolve some of these questions.

The case is called Pope v. State (1D17-2487  2018) and the facts involved a man who was charged with possessing both heroin and marijuana that were found inside his home after he contacted authorities when his friend overdosed.  The Court summarizes the facts as follows:

“In December 2016, Thomas Pope and two friends were doing heroin together at Pope’s home. One of the friends, a young woman named Ashley, overdosed and stopped breathing. Pope immediately got on the phone with 911, providing his address and seeking help. He answered the 911 operator’s questions regarding Ashley’s condition, and he followed the operator’s instructions to monitor her breathing and tilt her head to open her airway. Emergency responders quickly arrived, recognized symptoms consistent with a heroin overdose, and successfully administered a medication to counteract the effects. Ashley survived. Despite some admirable efforts to save his friend, Pope’s conduct was far from exemplary. At some point after the 911 call but before responders arrived, Pope moved Ashley to the front porch, leaving her briefly unattended. He tried to hide the heroin and rearranged things inside the home. When emergency responders arrived, he initially refused to answer the door, and when he finally did, he did nothing to help them help his friend. He denied knowing Ashley, saying he had no idea where she came from or what she had taken. He was belligerent, somewhat aggressive, and entirely uncooperative.”

Mr. Pope’s lawyers filed a Motion to Dismiss, claiming he was protected by the Good Samaritan Law ( Fla. Stat. §893.21).  The trial court denied the motion, finding that although Pope initially acted in good faith in contacting the authorities, he also acted in bad faith in his subsequent actions.  Pope entered a plea and later appealed the denial of his Motion to Dismiss. 

The First District’s analysis mostly focuses on that term “good faith” in the statute.  The State, just like the trial Court, basically argued that a person must act in good faith from the time he/she requests medical assistance, all the way through the conclusion of the incident.  The appellate court disagreed, reasoning that the statute only requires good faith in requesting medical assistance, and does not require specific behavior after that. Ultimately, the First District reversed the trial court and held that Pope’s Motion to Dismiss should have been granted. 

This case is important because it shows that courts are committed to upholding the protections of the Good Samaritan Statute, increasing public safety and encouraging people to report drug-related overdoses immediately.  The opioid crisis facing our country is widespread and well-documented.  It is important to increase awareness of this Act, to inform those who are now facing criminal charges due to contraband discovered during the reporting of a drug-related overdose, and to encourage future life-saving actions, without fear of prosecution.

 

Lori Wurtzel
Blog Post: Can I Possess Something That I Never Touched?

How can the State charge me with drug possession when they didn’t find any drugs on me?

Can the police arrest me for possession of a firearm that I never touched?

Issues surrounding the word "possession" in criminal cases are some of the most common, and complicated, questions that criminal defense lawyers encounter.  This blog post is intended to answer some of these questions and resolve common misconceptions.

Under Florida Law, "possessing" something means that you have personal charge of, or exercise the right of ownership, management, or control over, an object.  But... what does that mean?

First and foremost, this means that the State can, in fact, charge you with possession of contraband even though the contraband was not found on or taken directly from you.  This is allowed under the legal concept of constructive possession.

In short, actual possession exists where contraband is found either on the defendant’s person (like, in your hand, or in your pocket), in a container (bag, backpack, medicine container, etc.) carried by the defendant, or where the contraband is so close to the defendant that it is readily accessible (as a prosecutor might argue in a closing statement, “within ready reach”).    Overall, actual possession encompasses the types of scenarios the average person would imagine when thinking about the meaning of the word "possession".

The concept of "constructive possession", on the other hand, is a more significant cause of confusion.  The legal definition of constructive possession requires that an object is in a place over which the defendant has control, or, in a place where the defendant has concealed it.

So, what if something illegal is found in a place that is under your control - but also under the control of others (for example, a vehicle with multiple occupants, or a living room with multiple people)?  In this situation, the State must demonstrate that the defendant:

(1) has knowledge that the object was there, and

(2) has control over the object.

An important element of a possession charge, particularly where contraband is located in an area occupied by multiple people, is "knowledge that the object was there".  Although knowledge can be inferred or assumed when the defendant has exclusive possession over contraband, this does not apply where there is joint possession.   As long as the contraband is not found in plain view, the State may have a difficult time proving that any one particular person present knew of its presence.  For example, how could it be proven that the passenger of a vehicle knew that there was marijuana inside the closed center console of a vehicle his friend is driving?  Often times, it can't.

In many criminal cases involving constructive possession, there are additional facts and circumstances the State relies upon in demonstrating the Defendant's knowledge of the presence of contraband.  It may be that the contraband is in plain view, where everyone can see it, or that the Defendant made an admission (“I knew the gun was there, but it isn’t mine”) to police.  Under these circumstances, these types of statements to the police can be devastating to the defense of a resulting criminal case.  

Even if the State can prove that a person knew that contraband was present, it also has to prove that he or she had dominion and control over the contraband.  For instance, when the defendant is in a place that is not in his or her control (like another person's house or car), the law requires the State to prove beyond a reasonable doubt that the defendant had the ability to exercise control over the contraband. 

The following standard jury instruction (read to juries before they deliberate on a verdict) can be helpful to the Defense: 

“Mere proximity to an object is not sufficient to establish control over that object when it is not in a place over which the person has control.” 

For example, imagine a person is charged with possession of contraband.  The contraband was found inside of a safe in the room of the defendant’s friend.  At the time the police entered the room, the defendant was standing next to the safe, or perhaps even resting his arm against the safe.  When questioned, the defendant admits that he knew his friend kept illegal contraband in the safe and that there was in fact contraband in the safe at that time.  The defendant, however, does not own or live in the house, does not own the safe, and does not know the code or have access to the safe.  Even though the defendant was found right next to – maybe even touching – the place where the contraband was found, and the defendant admitted he knew the drugs were there, he had no ability to exercise control over the safe and/or contraband.  

Finally, it is important to note that more than one person can be charged with possession of the same contraband, as long as the State can prove that each person had the ability to exercise control over the contraband.  For example, during a search of an apartment, police find contraband on a living room table, in plain view, and both occupants of the apartment were sitting around the table when the police entered.  Here, the State could charge both roommates with possession of the contraband. However, if only one person claims ownership of the contraband, the State may dismiss the charge against the other person (but is not required to do so).

In summary, YES, you absolutely can be arrested, charged, and even convicted of a possession crime, even if the contraband is not found directly on you.  As you can see, there are a variety of factors to consider, including, but not limited to: where the contraband was found, who had control over the area, who was present, and whether the contraband was in plain view.  And, of course, any statements regarding knowledge of the presence of the contraband could be extremely detrimental, and are typically not a good idea to make.  

Every possession case is different, and if you have more questions regarding your own case, or that of a friend or loved one, you can call Wurtzel Law for a free consultation.  We can look at the facts of your specific case, as well as examine the procedures used to search for and seize the contraband, to advise you as to the options available in your particular situation.

Lori Wurtzel
Upcoming FREE Event Thursday May 24

Join us Thursday May 24 for a free legal seminar with Board-Certified criminal trial attorney Benjamin Wurtzel.  He will be discussing the rules regarding sealing and expunging your criminal record in Florida.  There will be time for questions at the end.  See attached flyer for more information!

Lori Wurtzel
Finally, Clarity on Defense Responsibility to Disclose Statements or Reports from Experts

Florida Rule of Criminal Procedure 3.220 is clear that both the State and Defense must disclose statements or reports of experts that the party intends to use at trial or hearing.  (See the Rules here)  

What has not been clear - to both practitioners and appellate courts alike- is whether the Defense is required to disclose to the State those statements and reports of experts that it does not intend to use at trial or hearing.  Most of this ambiguity comes from the Second District Court of Appeals' decision in Kidder v. State, 117 So.3d 1166 (Fla. 2d DCA 2013).  In Kidder, the Second District ruled that, based upon the plain language of the rule, Kidder was required to disclose to the State the results of a blood alcohol test performed by an expert retained by the Defense, even though the defense did not intend to use the report, nor call the expert as a witness, at trial. Read full opinion here

Prior to today's Amendment, a defendant's obligation to disclose statements or reports of experts (found in Fla. R. Crim. P. 3.220(d)(1)(B)(ii) ) required the defense to disclose

"reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons." 

A decision issued last week by the Florida Supreme Court, however, changed this.  By accepting and approving The Florida Bar’s Criminal Procedure Rules Committee's proposal to amend Florida Rule of Criminal Procedure Rule 3.220, the Florida Supreme Court is making it clear that the defense must only disclose to the State those statements or reports that it intends to use at trial or hearing. 

The amended Rule reads as follows:

"reports or statements of experts, that the defendant intends to use as a witness at a trial or hearing, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons."

This Amendment is effective immediately upon its release. 

In practice, this change may assist a defense attorney in his/her analysis of possible expert consultations, without fear that a disadvantageous report or finding will irreparably harm a client's defense.

What is Child Hearsay - and How Might it Affect My Case?

Generally, hearsay – an out of court statement that one party attempts to introduce into evidence to prove the truth of the substance of that statement – is not admissible in court (See Florida State Statute s. 90.801).  In simpler terms, people cannot come into court and say “So-and-So told me_____________.”  Florida has created an exception to this general rule- an exception frequently used in prosecutions of sex crimes involving child victims.  Specifically, this exception allows a witness to testify in court as to what a child victim told them about the charged incident.  These witnesses may be parents, family members, detectives, or members of the Department of Children and Families, for example.

This exception is found in Fla. Stat. 90.803(23).  Here is how this typically plays out: The State is required to file a written notice at least 10 days prior to trial.  In this notice, they will identify the specific statements they intend to offer as evidence, when the statement was made, and the circumstances surrounding the statement which indicate its reliability.  The Court then holds a hearing to evaluate the statements.  During this hearing, the Court will determine whether the time, content, and circumstances of the statements provide sufficient "safeguards of reliability".  Basically, can we trust these statements? 

To make this determination, courts may consider:

      the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate.  

Interestingly, although there is case law indicating it's preferable for the child to testify at the hearing, it is not required and prosecutors often do not call the child as a witness at the hearing.  Unfortunately, this prohibits defense attorneys from cross-examining the child in front of the judge regarding possible issues of credibility, motive, and bias.

Finally, it is important to note that no corroboration of the crime is required at the hearing if the child victim is also going to testify at trial.  If, however, the child is found to be “unavailable” – generally meaning finding by the court that the child’s participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm – the State must present some other corroborative evidence of the abuse or offense.

While child hearsay motions tend to be difficult for the defense, they are not impossible to combat, provided the right approach is taken.  First, it is important to retain an experienced defense attorney who has handled these hearings, as they are unique and specialized. Additionally, it’s important that the attorney is well-versed in applicable case law, knows the proper procedures, and can identify the factors that tend to diminish reliability of the child’s statements.  Second, defending against child hearsay requires an in-depth review of discovery, specifically identifying and comparing any and all statements previously made by the child or the witnesses to whom the statements were made.  When applicable, it is extremely effective to show the judge that multiple statements have been made and at least one or more tend to contradict one another.  

Finally, as we all know, children are extraordinarily impressionable.  It is imperative that the defense attorney conducts a thorough investigation, seeking any evidence of bias, influence, or motive to fabricate allegations.

Lori WurtzelWurtzel Law
Will my arrest be on my record?

One of the most common questions a criminal defense attorney hears is, “Will this be on my record?”.  Much like most honest answers to legal questions, the truth is: “It depends”.  Specifically, it depends on the exact outcome of your case, whether you are eligible to seal or expunge your records, and exactly what you are referring to by the term “record”.

First, it is important to remember that criminal cases and all associated documents are normally a part of public record.  This means that anyone -employer, neighbor, ex-boyfriend- can potentially obtain information regarding your arrest through a simple Google search.

In Florida, the two most common methods for removing these kinds of criminal records from public view are through sealing and expunging criminal records.  Although these terms might often be used interchangeably, they are in fact quite different, and governed by separate laws (Court-Ordered Sealing is found in Fla. Stat. 943.059, Court-Ordered Expunction is found at Fla. Stat. 943.0585).  Generally, sealing refers to the process by which a criminal record may be exempted from public records laws, while expunction refers to the actual destruction and deletion of criminal history records. 

The question, however, remains:

Am I eligible to seal or expunge my record, and if so, how do I do that? 

A criminal conviction – where the Judge “adjudicates the defendant guilty” – will permanently be part of your criminal record.  An “adjudication of guilt” may not be sealed or expunged.  In some cases, the Judge or the prosecutor may agree to “withhold adjudication” as part of a plea agreement.  Under Florida law, a withhold of adjudication is not a conviction, and depending on the nature of the offense, may qualify you to have the arrest record sealed.  If the case was dropped (either by Nolle Prosse or No Information Notice), or dismissed, or if you were found Not Guilty at trial, you may qualify to have the arrest record expunged.

If you have not had your criminal history record sealed or expunged, it may be difficult to discern what information about your arrest is available to the public.  While one company may only be concerned about your answer on an application regarding whether you have been convicted of a felony, another company may be conducting a thorough, nationwide search of your entire criminal history.  An employer may even ask if you have received a withhold of adjudication, or if you completed a diversionary program.  It is also important to remember that certain Florida state agencies may be able to view your arrest history, regardless of your sealing/expunging status.  These agencies/entities are specifically identified in Fla. Stat. 943.059 and generally relate to admission to certain government employment positions, state bars, or licensing agencies.

If you are currently facing criminal charges, or have questions about your prior criminal record, it is important to consult an attorney experienced in criminal law.  This may help you to best understand the lasting impacts of your case and to structure the best possible outcome to protect your future.

Helpful Links

Florida State Statutes Regarding Expunction of Criminal Records:

https://www.flsenate.gov/Laws/Statutes/2016/943.0585

FDLE Information on Seal and Expunge Process:

http://www.fdle.state.fl.us/Seal-and-Expunge-Process/Seal-and-Expunge-Home