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Do you have the right to bear arms in Florida?

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DO YOU HAVE THE RIGHT TO BEAR ARMS OR OWN A GUN IN THE STATE OF FLORIDA?  DO YOU HAVE QUESTIONS AND NEED A CRIMINAL DEFENSE ATTORNEY

The Second Amendment to the U.S. Constitution has been shortened to be understood as ‘the right to bear arms’.  That is misleading.  As an individual, you do not have the right to legally carry a firearm without some restrictions.  The 2nd Amendment reads:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The meaning of this one sentence has been the topic of many discussions in and out of court.

In 1939 the Supreme Court heard the case United States v. Miller, in which Jack Miller and another person were arrested and indicted for transporting unregistered sawed-off shotguns across state lines.  Miller had several arguments to back his case, one of which was that the National Firearms Act, which regulated the interstate transport of certain firearms, violated the second amendment.  Miller won with the lower district courts, but the case was taken to the Supreme Court

The Supreme Court ruled against Miller and upheld that the fact that the second amendment does not guarantee the right to keep and bear such firearms.   Part of the statement was “…in the absence of any evidence tending to show that possession of use of [sawed-off] shotgun… has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument” 307 U.S. at 178[1].  Thus, the Supreme Court interpreted the Second Amendment as preserving the authority of the states to maintain militias.

 

The Supreme Court did not hear a ruling concerning the Second Amendment again until 2007 with the Parker v. District of Columbia case.  Previously, the District of Columbia had laws concerning a ban on carrying a pistol without a license, new registration of handguns, and firearms being kept unloaded an locked.  In the Parker case, the lower D.C. courts ruled against these laws and found that a person has the right to own handguns for their own personal protection and keep them in their homes without placing a trigger lock on them.

The case was appealed by Heller to the Supreme Court (D.C. v. Heller) and the Court agreed with the lower court that the D.C. banning of handguns and requiring firearms in the home to be disassembled or locked did violate the Second Amendment.  The Court stated that although the amendment stated “a well regulated Militia…” that this does not limit the action, or use of, firearms.

 

However, the Court did acknowledge that the right to bear arms is subject to regulations.  Regulations such as licenses, matters concerning concealed weapons, limiting the rights of felons or mentally ill individuals,  and prohibiting of carrying weapons in certain places.

The issues and arguments of the Second Amendment still arise today, and the interpretation of this amendment is constantly being scrutinized.  If you are arrested and charged with any crime regarding carrying or being in possession of a handgun, call an attorney immediately.  In Florida the criminal defense office of The Law Office of Travis Koon has handled cases regarding the issue of handguns, and may be able to handle your case.  Call any one of our offices today (in Gainesville, Lake City, or Miami) to schedule an appointment.  Do not wait until it is too late!  We are Florida criminal defense attorneys that are here to protect your rights.

 

[1] http://www.loc.gov/law/help/second-amendment.php

 

EXPERIENCED GAINESVILLE AND LAKE CITY, FLORIDA CRIMINAL DEFENSE ATTORNEY

 

At www.koonlegal.com and Attorney Travis Koon, we know that if found guilty, some of these charges can change your life completely.

 

At www.koonlegal.com , Criminal Defense Attorney Travis Koon, is a trained and skilled attorney that will assess your situation and argue the best defense for your case. Attorney Travis Koon has represented people charged with crimes his entire career. Criminal Defense Attorney Travis Koon has helped over 1,500 clients avoid jail time and the loss of their freedom. Attorney Travis Koon has conducted over 40 criminal trials and many of those trials were in the immediately area surrounding Live Oak, Florida, Lake City, Florida and Gainesville, Florida. Attorney Travis Koon is a member of the Florida Bar and Georgia Bar. In addition, Attorney Travis Koon is a member of the Federal Middle District and Northern District. Attorney Travis Koon is experienced in criminal cases in State and Federal Court.

 

Koonlegal

Travis Koon, Attorney

Criminal Attorney

Live Oak, Lake City & Gainesville, Florida

Live Oak and Lake City-386-597-0000

Gainesville-352-729-1211

traviskoon@koonlegal.com

www.koonlegal.com

 

Talking About Your Case On Social Media

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If you have an open case, stop posting to social media.

Please believe me when I tell you this… posting on social media will harm your case!  If you are arrested and waiting trial, stop posting on all social media sites.  Never, never, never post anything about your case; I recommend you stop posting all together.

Even if you think you are saying something completely irrelevant, the prosecuting attorneys are watching your sites closely to find anything they can use against you; a picture of you with a drink, a picture of you with a friend, a comment on someone else’s photo… they will find it all.

If you have an open case, stop posting to social media.

Don’t kid yourself into thinking that only your friends will see these posts, nothing is private on social media; the entire reason for social media is to share information.  Several courts have ruled that even though the privacy settings are on, social media postings are not private.  Facebook and Twitter even warn users of this in their privacy policies.

Let’s say you are fighting a DUI case, and on your Facebook page there was a picture, taken years ago, of you holding a drink… maybe it’s a good picture and you decide to change it to your profile picture.  The attorney for the other side may see you holding the drink and now he will ask the judge for full access to all you social media accounts.

“A survey of over 1,200 police agencies around the country showed that a whopping 80 percent of officials said they’ve used social media to collect evidence in criminal cases––the majority of which indicating that the information they find there helps them solve crimes faster than they would otherwise.”[1]

Some information that can be obtained from social media is:

  • Background information, witnesses and suspects
  • What the suspect was doing in the weeks, days, or hours before the incident
  • A possible location of a suspect
  • Incriminating photos
  • Information that may support the argument that your actions were planned or thought about prior to the incident
  • Posts or pictures that may incriminate you in a more serious crime or illegal activity

Something so little can have huge ramifications on your case.

If you have an open case, stop posting to social media.

Some real-world universal laws also hold true in social media.  If you post something that may be damaging to your case and then delete it, you can be charged with destruction of evidence, this is a serious charge.

In the case Lester v. Allied Concrete Co., it was argued that Lester and his attorney had removed evidence from Facebook that showed his prior use of anti-depressants and his medical history.  The court granted a warrant for Facebook to release all information, and a complete search was done of Lester’s Facebook account.  A 32-page report was written and presented to the courts.  Imagine a detailed account of everything you have ever put on social media.

So I say to you one last time… If you have an open case, stop posting to social media.

If you need a Florida attorney, call us at The Law Office of Travis Koon.  We deal with criminal defense cases all throughout Florida with offices in Lake City, Gainesville and Miami, and may be able to help you with yours.

[1] http://stangllaw.com/facebook-posts-can-hurt-criminal-case-wisconsin/

Self Defense

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It seems to be a universally accepted fact that a person has the right to defend themselves against the perceived threat of bodily harm or death, even when the force used in defense would normally considered to be crime to do so.

Many laws vary from state to state, this article is giving a general overview, and an attorney should always be consulted in any legal issue.

Findlaw defines the argument of self-defense as:  “The right to prevent suffering force or violence through the use of a sufficient level of counteracting force or violence”.  [1]

This may seem like a straight-forward means of defense, but it rarely is.  There are many questions that surround this definition and need to be answered in each case.  What is considered a sufficient level of force?  At what point has the perceived victim gone beyond that point?  Could and/or should the person first attempted to retreat?  What if the victim provoked the attack?  What if the threat wasn’t really there?  This defense is more complicated that it seems on the surface.

The use of self-defense must be similar to the level of threat in question.  In other words, a person can only use as much force as needed to stop or remove the threat.  A victim cannot kill a person for slapping them across the face.

Self-defense justifies the use of force when it is used in response to an immediate threat, but one must stop using force once the threat has ended.  Any use of force by the victim after this point is considered to be retaliation and not self-defense.

Some states say the victim should first make an attempt to avoid the violence before using forces, but many have removed this clause and the “stand your ground” defense can be used.

The state of Florida condones the stand your ground defense and can be found in statute 776.012, which states:

…a person who uses or threatens to use force in accordance with this subsection does not have the duty to retreat before using or threating to use such force.

A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm…[2]

As stated earlier, the laws have many interpretations to each person and each situation, and an attorney should always be consulted when a person is being charged with a crime.  The Law Offices of Travis Koon are Florida attorneys that understand the ins and outs of Florida law, with offices located in Lake City, Miami, and Gainesville.  Call us today if you need legal consultation or have questions regarding your case.

[1] http://criminal.findlaw.com/criminal-law-basics/self-defense-overview.html

[2] http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0776/0776.html

Miranda Rights

Posted by | Attorney, Criminal Defense, Drug Crimes, DUI, Seizure | No Comments
DUI

Miranda Rights

If you ever watched a movie or TV show that showed an arrest, you have heard the Miranda Rights being read.  We all know the basics of it, but let’s look at this warning a little more, and dispel some of the misconceptions.

 

The Miranda Warning is simply and explanation of the person’s rights that are given before any interrogation can begin.

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

 

If a person does not understand these rights, then it is best to speak up and say so, have it explained.  But once it is understood, my best advice is to politely stop talking.  Do not explain anything or make any remarks that may be used against you.  Stop talking and call an attorney.

 

In 1963 Ernesto Miranda was arrested and charged with the kidnapping and rape of a woman, he had a prior record as being a peeping tom.  He confessed to the crime but soon recanted saying he was forced and coerced into confessing.  He was found guilty, but the ACLU picked up his case and appealed it.  In Miranda v. Arizona (1966) the Supreme Court found that his Fifth Amendment rights had been violated.  The Fifth Amendment to the United States Constitution covers several issues, which include the right to due process, double jeopardy, but significant to this case because it protects the individuals from self-incrimination.  Miranda was re-tried and once again found guilty – but the Miranda Rights were born.

 

An arrest can occur without the suspect being Mirandized, if the police later decide to question the suspect, the rights will be read at that time.  A person may still be asked common information such as name and age, and can be searched, for the safety of the officer. 

 

It is a myth that if a person is not read their rights that they will not be found guilty of any charges.  It only means that the self-incrementing confession may not be used against them; it has nothing to do with protecting them against the punishment as a whole.

 

If you are arrested and read these rights, please take the advice and do not say anymore.  Call us immediately at The Law Offices of Travis Koon.  We are criminal defense attorneys in Florida and can speak with you about your case.  We are located throughout Florida with offices in Miami, Lake City, and Gainesville.  Before you tell your side of the story, always call and attorney and tell it to us first.  We are here to help you through this trying time.

New Florida Laws for 2015

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New Florida Laws for 2015

It’s the start of a new year; the time when we make new (or the same) resolutions, and feel that it is the time to get a new and fresh start, a time to try again.  According to law makers, it is also a time to let us all know about the new laws that are being added to the books.

Unfortunately, not knowing about the new laws will not always get you a pardon from the ticket or arrest.  The powers that be feel that we are responsible to pay attention to the news and know that laws that we must abide by.  In a way I agree with this, but at The Law Office of Travis Koon, we know that there are just some laws that our client’s don’t always know exist.  So we want to let you know about some changes that are happening.

Florida Minimum Wage.  Florida businesses and workers should have seen a change that took affect the start of the New Year; the state’s minimum wage increased from $7.93 to $8.05 per hour.  To help off-set this increase, employers should see a 5.2% decrease in workers compensation increase.

Booster Seats.  In the past, children ages 3 and under are required to be in a car seat, while kids 4 and 5 years old could use seat belts… but that has changed.  Now children through ages 5 must be in booster or car seats.  AAA Auto club recommends kids should remain in booster seats until they reach 4 feet 9 inches.  People violating this law may be fined $60 and have 3 points added to their driver’s license.

There were not many laws changed the beginning of this year, but are you aware of the laws that passed last year?  Here are a couple laws that we, The Law Office of Travis Koon, want to make sure you are aware of.

Pain Killers. Increase the amount of being in possession, sale, or manufacture of hydrocodone that is needed to receive the mandatory prison sentence.

Increase Sentences.   The minimum mandatory sentence was increased for dangerous sexual offenders against children to 50 years.

Drivers Leaving the Scene of an Accident.   If a person is involved in accident that results in an injury (a second degree felony) and leaves the scene of the accident, their driver’s license will be revoked for a minimum of 3 years.

These are just a couple of the laws that were passed in 2014.  While you may not be aware of all the new laws, we are.  The Law Office of Travis Koon is aware of the changes to laws and how they can affect you.  We are Florida attorneys with offices in Gainesville, Lake City, and Miami.  Call us immediately if you have had a run-in with the law and need a top notch criminal defense attorney.

Statute of Limitations

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It is amazing how a mistake from your past can still haunt you today. A ‘statute of limitations’ is the deadline for filing a lawsuit or being charged with a crime. Most must be filed within a certain amount of time and once the time on a case runs out, the legal claim is no longer valid.

The reasoning behind a statute of limitations is to ensure convictions only happen when the physical or eye witness evidence has not deteriorated over time; people’s memories fade, or change as the years pass. It is believed by some that if the criminal has been living in the public and maintaining a ‘reformed’ life, that after a reasonable amount of time, he/she is to be free from arrest and conviction.

The time that a person can file a lawsuit varies on the type of claim and the state in which it will be filed. For criminal charges, prosecutors cannot charge a person for a crime after the specified number of years has passed. But some crimes, such as murder, are considered so serious that there is no statute of limitations.

The case against the famous filmmaker Roman Polanski is still on-going. He is accused of a child sex crime that occurred in Poland in 1977, and he is still fighting this charge. In the same year, he pled guilty and served 42 days in jail. In 1978 he moved to the United States for fear a judge may overrule his plea bargain and sentence him for a longer period of time.

Some examples of a crime committed in Florida and that statute of limitation associated with each are listed below. Please remember this is just an example; contact a qualified attorney for questions regarding your specific situation.

• Felony crimes that result in death, or felony crimes that are punishable by life in prison = no statute of limitations
• First degree felony = 4 years after the crime has been committed
• Other felonies = 3 years after the crime is committed
• First degree misdemeanor = 2 years after the crime is committed
• Second degree misdemeanor = 1 year after the crime is committed

Please don’t assume that just because the statute of limitations has expired that you cannot be charged with a crime; in certain instances the statute of limitations clock stops running and can be restarted again at a later date this is referred to as “Tolling,” meaning a person can be charged of a crime even after the allotted years have expired.

The laws can be very confusing. If you are charged with a crime that happened years ago, contact our office immediately. We are The Law Office of Travis Koon and are Florida attorneys that handle criminal cases. We have offices in several cities that can evaluate your case. If you need a top notch criminal defense attorney in Gainesville, Lake City, or Miami, you need to call us now.

Double Jeopardy

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The Fifth Amendment to the United States Constitution protects individuals from state and federal governments in several ways: from prosecuting for the same crime on more than one occasion, it protects individuals from imposing more than one punishment for a single offense, and sets precedence that a person shall not be a witness against themselves… commonly known as Double Jeopardy.

The Fifth Amendment to the Constitution states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

This Amendment was put into place to protect the people from government, prosecutors, and judges charging indiscriminately. It is here to:
• Prevent the government from using its powers to wear down and wrongly convict an innocent person.
• Protect an individual from the emotional, financial, and social consequences of successive prosecutions.
• Preserve the integrity and finality of criminal proceedings. These may be compromised if the states were allowed to arbitrarily ignore unsatisfactory outcomes.
• Restrict the prosecutions discretion over the charging process
• Eliminate judicial discretion to impose cumulative punishments that the government has not authorized

As with any law or Amendment, it can and has been interpreted in many ways – it is rarely cut and dry. There are four central questions that must be answered in order to determine if double jeopardy has occurred:
• In what type of legal proceedings does double jeopardy protection apply?
• When does it begin?
• When does it end?
• What constitutes as successive prosecutions or punishment for the same offense?

When double jeopardy begins and ends has been defined and is fairly clear (therefore the courts don’t argue over this). But determining the type of legal proceedings and what constitutes as successive punishments has been a struggle for the courts.

When Double Jeopardy Begins and Ends
During a jury trial, double jeopardy begins when the jury is being selected. If it is a trial to be heard in front of a judge, double jeopardy beings when the first witness is sworn in.
Determining when double jeopardy ends is a little more complicated. There are four times that it can end: after an acquittal, after a dismissal, after a mistrial, and on an appeal after a conviction.

In What Type of Legal Proceeding Does Double Jeopardy Protection Apply?
Double Jeopardy extends to all felonies, misdemeanors and juvenile delinquency cases that go to court. But this applies only in subsequent criminal proceeding, not in ordinary civil or administrative proceeding

Therefore, it is acceptable to have a criminal trial and be found not guilty, but still have several civil suits against an individual and be punished for those.

What Constitutes as Successive Prosecutions or Punishment for the Same Offense?
The main question to be decided upon is are successive prosecution or punishments geared toward the same offense.

Let’s give an example. Say an individual steals a car to rob a store and hits a pedestrian along the way. Can they face individual charges of grand theft auto, burglary and a hit and run (assuming the person lived), or since it all happened in once instance, is it double jeopardy to face successive charges?

In the 1932 case of Blockburger v. United States the courts found that the government may prosecute for more than one offense stemming from a single course of conduct only when each offense has at least one mutually exclusive element. Meaning, it can stand alone on its own.

When to Call an Attorney
Immediately. If you have been charged with a single crime, or multiple crimes, you need a good criminal defense attorney to ensure your rights are being upheld. Many instances can affect the outcome of the charges… you should never try to fight these alone.

At The Law Offices of Travis Koon, we are here to protect you. We have offices throughout Florida and will stand by you in the criminal defense proceedings. Whether you have been arrested in Jacksonville, Gainesville, Lake City, or Miami – call us today!

Police Stop

Did the Officer Illegally Search or Stop & Frisk you?

Posted by | Criminal Defense, Drug Crimes, DUI, Search, Seizure, Stop & Frisk | No Comments

When Does a Frisk Become a Search and Seizure?

This article is simply a brief description; a credible attorney should always be consulted in any situation. For assistance in legal situations call The Law Offices of Travis Koon, our criminal defense attorneys can determine if your rights were unlawfully infringed upon.
It almost seems common knowledge that a law enforcement officer is within their legal rights to frisk (a limited search) a person for weapons (for the safety of themselves and those around them) during temporary detainment – such as a traffic stop. This is a common misconception; law enforcement is only allowed to frisk an individual when they have ‘reasonable suspicion’ of a weapon.
The United States Supreme Court ruled in 1968 Terry v. Ohio:
Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, …he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
This shows that in order to frisk a suspect, two requirements must be met:
• The suspect must be legally detained, meaning the detention must be based upon reasonable suspicion of a criminal activity.
• There must be reasonable suspicion that the person detained is armed and dangerous. Reasonable suspicion includes the totality of the situation – a bulge in clothing, behavior, the nature of the suspected offense and even the time and location of the stop .
The next question is to what extent is the officer allowed to frisk the detained person. The restraining officer is allowed a limited search of the outer clothing. A ‘limited search’ consists of a pat down of the outer clothing, then if the officer detects what he/she believes to be a weapon may they reach into the clothing to remove the object in question.
But what happens if the object in question is not a weapon, but perhaps an illegal controlled substance? If the officer believes the questionable object may be a weapon but turns out is in not, but still an illegal substance, as long as it was a lawful frisk, the contraband is admissible in evidence. But if the contraband was found by manipulating the outer clothing by squeezing or sliding the contents in the detainee’s pocket, then it is considered an invalid seizure, and any contraband found is invalid as well – as ruled in Perkins v. State .
Many laws are unquestionably confusing, and a person should not be expected to try to figure them out alone. It is in your best interest to hire a strong criminal defense attorney, such as those at The Law Offices of Travis Koon, who will guide you through the court systems and work hard to ensure your legal rights were maintained.

DUI

Arrested? 4th Amendment Illegal Search and Seizure

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The 4th Amendment-Illegal Search & Seizures

On September 25, 1789 the First Congress of the United States proposed 12 amendments to the Constitution. On December 15, 1791 10 amendments were ratified and constitute the first 10 amendments, or the Bill of Rights.
The 4th Amendment to the US Constitution protects against unwarranted searches and seizures. It states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmations, and particularly describing the place to be searched, and the persons or things to be seized.

This amendment protects against arbitrary arrest, and is the basis of laws regarding search warrants, being stopped and frisked, and even wires taps and other forms of surveillance; as well as other privacy laws. It was originally thought of as the notion that ‘each man’s home is his castle’ and protected him and his information while in the home, but today it is also expanded upon to protect a person’s privacy even while in public.
There are arguments for and against the idea that the US Constitution is a ‘living and breathing’ document. The proponents for this idea believe that the US Constitution needs to be interpreted in the modern societal text, while the opponents believe that it is a distinct set of rights that is the cornerstone of our society and shouldn’t continually be changed.
According to West’s Florida Practice Series TM, in order for a search to fall within the coverage of the Fourth Amendment, “a governmental search must either intrude upon an individual’s ‘reasonable expectation of privacy’ or amount to trespass upon an individual’s person, house, papers, or effects in an attempt to find something or obtain information’.
It is the reasonable expectation of privacy that the Court handed down a landmark decision in Katz v. United States in 1967 that the Fourth Amendments protects people, not places. Katz was accused of placing bets and receiving wagering information by telephone, he used a public telephone booth to make interstate wages. FBI agents placed a wiretap outside of the telephone booth and could hear his side of the conversations. Katz argued that this violated his rights because he had the reasonable expectation of privacy, even while in public. It is a value judgment ‘as to the extent to which a free and open society will permit governmental intrusion upon personal privacy in order to facilitate other societal objectives such as effective enforcement of criminal laws’.

Justice Stewart’s assessment was that the Fourth Amendment “protects people, not places” shows the fine line that is walked by law enforcement daily.
Moving forward to 2014, but still using the same example of obtaining information from telephones, Riley, in Riley v. California, was stopped on a traffic violation. While searching him incident to the arrest, the police officer seized a cell phone from his pants pocket and eventually accessed photos and videos that seemed to be in connection with a shooting that occurred weeks earlier. Riley’s motion to suppress was denied. This was eventually reversed when it was decided that police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.
With ever-changing technology, the laws are constantly being revised to take this into account. No one should have to attempt to maneuver the court systems alone. Hiring a top criminal defense attorney such as The Law Offices of Travis Koon is in the best interest of the charged individual. We will fight for the rights of our clients.