If the Officer Can't Remember the Case At All - Can He Just Read His Police Report Outloud to the Jury at Trial?

What happens if the police officer cannot remember anything about a portion of a criminal investigation? For example, in many driving under the influence (DUI) cases in Florida, the arresting officer has a very difficult time remembering the details about how the subject did on field sobriety exercises. This problem is particularly common when there is no video recording of the exercises.

Although some officers pretend to remember after looking at their report, what if the officer just admits that he or she doesn't remember? In other words, what if the officer says he or she has no present independent recollection whatsoever and that there is no way to refresh the recollection by looking at the report.

Can the prosecutor just ask the officer to read to the jury at trial the police report concerning field sobriety exercises as a past recollection recorded under Section 90.803(5)?

When the proper predicate is laid, a past recollection recorded is admitted as substantive evidence. Section 90.803(5) provides:

(5) RECORDED RECOLLECTION.—A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.
To lay a proper foundation, the prosecutor would ask the witness the following questions:
  • does the witness now has insufficient recollection to enable the witness to testify fully and accurately? 
  • was a memorandum or record was created concerning the officer's observations?
  • did the witness once have knowledge about it?  
  • was the memorandum or record report made by the witness when the matter was fresh in the witness's memory? 
  • does the memorandum or record reflects that knowledge correctly?
Assuming that the prosecutor can lay the proper predicate, the defense attorney should argue that the past recollection recorded exception to the hearsay rule under Section 90.803(5) does not apply to the reading of a police report because the report would not qualify as a "memorandum or record."

That term "report" is not defined in subsection (5) of Section 90.803, but under Section 90.803(8), the public records or reports exception specifically excludes reports made in criminal cases.

Section 90.803(8) provides:

(8) PUBLIC RECORDS AND REPORTS.—Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354.

This provision shows that the legislature draws a distinction between "records" and "reports," which supports the position that reports are not including within "records" as contemplated by the hearsay exceptions.

Although that same exclusion for police reports (created by the officer concerning his observations in a criminal case) is not specifically included in subjection (5), it is required by Florida law for several reasons. The court in State v. Donner, 11 Fla. L. Weekly Supp. 976b (2004), explained it this way:

Under this section [Section 90.803(8) for public records and reports], the [officer's] report would not have been admissible since it was a police report, and such report are excluded from the public records hearsay exception. The Florida Supreme Court clearly stated this interpretation in Burgess v. State, where it would not allow admission of a police report since it was hearsay and therefore inadmissible in an adversarial criminal proceeding. 831 So.2d 137, 141 (Fla. 2002). 

The court also cited Professor Ehrhardt, who found that this limitation is "based on the belief that observations by officers at the scene of a crime or when a defendant is arrested are not as reliable as observations by public officials in other cases because of adversarial nature of the confrontation between the police and the defendant." Charles Ehrhardt, Florida Evidence 786 (2003 Ed.).

The court did note that while some statutes provide for the use of a police report in trial proceedings; this applies only when the legislature has expressly permitted such use. Burgess, 831 So.2d at 141. Since no such statute exists which would have expressly allowed [the officer's] arrest report to be introduced, it therefore was inadmissible pursuant to Section 90.803(8). 

Additionally, in Burgess v. State, 831 So.2d 137 (Fla. 2002), the Florida Supreme Court found:
[T]he information contained in police reports is ordinarily considered hearsay and inadmissible in an adversary criminal proceeding. See Bolin v. State, 736 So. 2d 1160, 1167 (Fla.1999). Nor does the information contained in the report in question fall under any recognized exception to the hearsay rule. See §§ 90.801-805, Fla. Stat. (1999). 
Id. 

So the correct objection for the criminal defense attorney is that:
  • the words in the police report are "hearsay" and do not fall under the hearsay exception contained in Section 90.803(5) or any other hearsay exception; and 
  • the hearsay statements are also "not relevant" since the witness has no recollection;
  • if the judge finds that the statements are not hearsay because they are not offered for the truth of the matter asserted then they are especially "irrelevant" because what relevant purpose would those statements serve if not for the truth of the matter asserted?
Also, you can't confront a witness about what they can't remember, so I would also add a "confrontation clause" argument.

Florida’s Stand Your Ground Statute - the Pretrial Immunity Hearing

This article is not intended to be legal advice. If you need legal advice about a criminal accusation involving something that happened in the past, seek out the services of a criminal defense attorney. If you need advice about what might happen in the future, you probably need advice from someone other than a criminal defense attorney.

These areas of the law are not well settled under Florida law and speculation about what the pending litigation might mean for people facing prosecutions if the legislation is passed.

2017 SB 128

Senate Bill 128, proposed in 2017, might change who has the burden of proof during pretrial hearings to evaluate a defendant’s claim of immunity based on a justifiable use of force under Florida’s Stand Your Ground Statute. Florida law currently provides the defendant a right of immunity from criminal prosecution and civil action if the person is justified in using force.

In criminal prosecutions, the courts often determine on a pre-trial basis whether immunity should apply. The current statute is unclear about whether the prosecutor for the state or the defense should have the burden of proof during that pre-trial immunity hearing.

Because of that lack of clarity in the current legislation, the majority of the Florida Supreme Court in Bretherick v. State, 145 So.3d 821 (Fla. 2014) clarified the procedures the court should use. Under that decision, a defendant claiming immunity must prove by a preponderance of the evidence the entitlement to immunity at a pretrial hearing.

In the dissenting opinion, the court concluded that the Florida legislature intended for the state to have the burden of proof at pretrial immunity hearings.

The proposed legislation, 2017 Senate Bill 128, shifts the burden of proof to the prosecution in pretrial hearings to determine whether a defendant is immune from criminal prosecution based on a claim involving the justifiable use of force.

To receive protection, the defendant must file a motion that clearly states the reasons the defendant is immune and alleges the facts on which the immunity claim is based. The bill does not expressly require the defendant be sworn or admit the facts in the motion.

The bill also requires the state to prove its burden beyond a reasonable doubt. The burden of proof of beyond a reasonable doubt is the same burden of proof imposed on the state in the prosecution of criminal cases. Even if the defense loses on a pre-trial basis, the issue of self-defense can also be raised at trial as an affirmative defense.

Senate Bill 128 also provides that the state must prove its burden by the beyond a reasonable doubt standard instead of the lower standards used during other types of pre-trial hearings.


The History of Florida’s Stand Your Ground Statute


In 2005, the Florida Legislature enacted chapter 2005-27, commonly known as the “Stand Your Ground” law. The Stand Your Ground law expanded the common law Castle Doctrine. The new legislation also changed the defender’s common law duty to retreat.

The changes to Florida’s self-defense laws were incorporated into chapter 776, F.S., which applies to the justifiable use of force.

The History of the Castle Doctrine in Florida


The Castle Doctrine dates back to common law. Florida’s Castle Doctrine establishes that when faced with an intruder, a person had no duty to retreat from his or her home. Instead, under Florida’s version of the Castle Doctrine, the defender had the right to stay in the home and protect himself or herself with force. That force can include even deadly force.

Florida’s Stand Your Ground statute in 2015, expanded the Castle Doctrine. The Stand Your Ground provisions extended the “castle” to include more than just a residence. Under Florida’s Stand Your Ground statute, the protections also apply to a dwelling, residence, or occupied vehicle.

In fact, Florida Statute Section 776.013(5), defines a dwelling as a temporary or permanent building or conveyance of any kind, including an attached porch with or without a roof, mobile or immobile, including a tent, provided that it is designed for nighttime lodging.

The term “residence” is defended to include a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

The term “vehicle” means a conveyance of any kind, whether or not motorized provided that it is designed to transport people or property.

When Do Stand Your Ground Protections Apply

The Stand Your Ground statute in Florida also created a presumption that a person within these protected areas has a reasonable fear of imminent peril of death or great bodily harm under the following two conditions:
  • the offender must have entered or be in the process of unlawfully and forcibly entering the dwelling, residence, or occupied vehicle or be attempting to forcibly remove a person; and
  • the defender must know or had reason to believe that an unlawful and forcible entry had occurred or was occurring.
The Stand Your Ground law in Florida does not impose a duty to retreat on a person who acts in self-defense in his or her castle and other protected areas. Under Florida Statute Section 776.032(1), the defender will generally receive a grant of immunity from arrest, criminal prosecution, and civil action when those conditions are met.

When Do Stand Your Ground Protections Not Apply

Under Florida Statute Section 776.013, the presumption does not apply under the following circumstances:
  • if the person against whom defensive force is used or threatened has the right to be in or is a lawful resident of the location and against whom there is no injunction for protection;
  • the person sought to be removed is in the lawful custody or guardianship of the person against whom the defensive force is used or threatened;
  • the person who uses or threatens to use defensive force is committing a crime or using the location to further a criminal act;
  • the person against whom defensive force is used or threatened is a law enforcement officer entering the premises pursuant to an official duty and who identifies him or herself as a law enforcement officer.
In fact, under Florida Statute Section 776.013(4), a person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to intend to commit an unlawful act involving force or violence.
2005 Changes to Florida’s Self-Defense Laws
Under the 2005 changes to Florida’s self-defense law under Section 776.012(1), a person does not generally have a duty to retreat before using force outside of a person’s dwelling, residence, or occupied vehicle.

When acting in self-defense or in defense of others, a person does not have a duty to retreat and may use non-deadly force, if the person reasonably believes the force is necessary to defend himself or herself or another against an imminent use of unlawful force.

Instead, the person may use deadly force, if the person reasonably believes the force is necessary to prevent imminent death or great bodily harm to himself or herself. Under Section 776.012(2), the common law duty to retreat before using deadly force still applies to a person who is engaged in criminal activity or is not in a place where he or she has a right to be.

Standing Your Ground in Defense of Property

For claims involving acting in defense of property, a person does not have a duty to retreat and may use non-deadly force under the following circumstances:
  • if the person believes that the force is necessary to stop a trespasser’s entry on personal or real property other than a dwelling; and
  • the belief is reasonable under the circumstances.

Deadly force may be used if the person reasonably believes deadly force is needed to prevent a forcible felony. The term “forcible felony” is defined to include;
  • any felony which involves the use or threat of physical force or violence against any individual specifically including:
    • treason;
    • murder;
    • manslaughter;
    • sexual battery;
    • carjacking;
    • home-invasion robbery;
    • robbery;
    • burglary;
    • arson;
    • kidnapping; 
    • aggravated assault;
    • aggravated battery;
    • aggravated stalking;
    • aircraft piracy; or
    • unlawful throwing, placing, or discharging of a destructive device or bomb.

See Section 776.08, F.S.

Immunity from Civil Action under Stand Your Ground

Under Section 776.031, a person who uses force in self-defense as authorized under chapter 776, F.S., is justified for those actions and is immune from and any civil action. Under Section 776.032(3), a defendant to a civil action based on a use of force is entitled to reasonable attorney’s fees, court costs, lost income, and all expenses related to the defense of the action if the defendant prevails in a claim of immunity.

Immunity from Criminal Prosecution and the Peterson Hearing


Under Section 776.031, a person who uses force in self-defense as authorized under chapter 776, F.S., is justified for those actions and is immune from criminal prosecution. Under Section 776.032(1), the concept of immunity is supposed to apply to all phases of the criminal prosecution including the arrest, being detained, being charged, or facing a criminal prosecution.

The Stand Your Ground statute is silent on how to procedurally determine the right to immunity before trial. As a result, the procedures for determining when immunity applies have largely been determined by the courts.

The courts have recognized that the procedures for claiming immunity are different than the procedures for asserting an affirmative defense. In many cases, the defense will file a pretrial, adversarial motion and the court will set a hearing on the motion to determine immunity. Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008).

The standard used by some trial courts during the immunity hearing was a showing by a preponderance of the evidence. Even if the court denies the immunity claim, the defense can still introduce the claim as an affirmative defense at trial. Id.

In Bretherick v. State, 170 So. 3d 766, 722 (Fla. 2015), the Florida Supreme Court attempted to clarify the issues by finding that the defense bears the burden of proof in immunity hearings and that the required showing is beyond a reasonable doubt. The dissenting opinion argued:
By imposing the burden of proof on the defendant at the pretrial evidentiary hearing, the majority substantially curtails the benefit of the immunity from trial conferred by the Legislature under the Stand Your Ground law. There is no reason to believe that the Legislature intended for a defendant to be denied immunity and subjected to trial when that defendant would be entitled to acquittal at trial on the basis of a Stand Your ground defense. But the majority’s decision here guarantees that certain defendants who would be entitled to acquittal at trial will nonetheless be deprived of immunity from trial.
Id. at 780.

Additional Resources

Governor’s Scott’s Task Force on Citizen Safety and Protection - The task force was convened by Florida Governor Rick Scott for the purpose of reviewing Florida’s Stand Your Ground law. A detailed report was issued by the task force on February 21, 2013, which was before the Florida’s Supreme Court Decision in Bretherick. The report found that all persons who are conducting themselves in a lawful manner have the right to defend themselves and to stand their ground when attacked.

Recent Statistics on Civil Violation Citations for Marijuana in Tampa

Earlier this year, the City Council in Tampa passed a city ordinance, Tampa Code Section 14-62.

The ordinance attempted to decriminalize the possession of marijuana less than 20 grams and the possession of marijuana paraphernalia. 

The problem is that officers with Tampa Police Department are not issuing the citations in all cases. 

Our last blog article explains why TPD officers are still taking people to jail. In many of these cases, TPD officers are seizing vehicle so they can collect the $500 civil penalty (with an additional $450 being paid for towing and storage).

Read more about how marijuana citations are issued under Tampa Code Section 14-62.

In fact, TPD is issuing the citations less than half of the time in these cases. The other half of the time, TPD is still arresting people for a criminal charge under state law. During the last six month period, 409 citations were issued but 529 people were arrested for marijuana.

People identified as "black" were cited and arrested more often than those identified as "white." During that period 243 black people were issued a civil violation citation for possession of marijuana while only 160 white people were cited for the same violation.

For those people arrested for misdemeanor marijuana charges during that period, 306 were identified as black and 222 were identified as white.

I recently obtained a report filed by TPD at the request of the Tampa City Council to address the effectiveness of the program during a six-month period from March 31, 2016, through September 30, 2016. That report provided these statistics: 

ADULT MARIJUANA CIVIL CITATION STATISTICS:

Time Period: March 31 through September 30, 2016.

1. Total number of citations issued?                 409
2. How many paid civil fine within 30 days? 198
3. How many had previous citation issued?      3
4. Racial distribution: 1-0, A-3, B-243, W-160, U-3
5. Ethnicity:         Hispanic 27 Non-Hispanic 148

Adult Misdemeanor Marijuana Arrests (Charges) Total: 529
1. Racial distribution: 1-0, A-I, B-306, W-222, U-O
2. Ethnicity:         Hispanic 61 Non-Hispanic 359
3. Reason arrest instead of citation:
a. Other charges:         135
b. Insufficient ties to Hillsborough County:    9
c. Prior unpaid marijuana citation:    1
d. Officer discretion:   41

Same Time Period 2015 Adult Marijuana Arrests: 921

Code Descriptors: 
I - American Indian / Alaskan Native 
A - Asian / Pacific Islander
B - Black
W - White
U - Unknown
Demographic Detail of Unpaid Marijuana Civil Citations
Total 211 records
Total Male Female
Black                      148      120      28
White                         61        42      19
Asian/Pacific Islander                           2          1         1
American Indian/Alaskan Native                           0
Unknown                           0


Tampa Code Section 14-62 - Civil Violation Citation for Marijuana and Paraphernalia

Map of Marijuana Citations Issued
During the First 30 Days 
On March 28, 2016, the Senior Assistant City Attorney of the Tampa Police Department issued Legal Bulletin #2016-08 dated March 28, 2016. 

The legal bulletin addressed the new civil citation process for marijuana violations within the City of Tampa. These civil violation citations for marijuana and paraphernalia are issued under Tampa Code Section 14-62.

According to the bulletin, it appears the goal of the program is to give the subject an incentive to “modify his [or her] illegal behavior based on the threat of further fines.” The ordinance itself states that the purpose of the program is to help a person in possession of marijuana or marijuana paraphernalia to avoid “criminal penalties and [a] potentially life-long criminal record… disproportionate to the severity of the offense.” 

Read more our next blog article to learn more about why subjects identified as Black are given marijuana citations and arrested for marijuana-related misdemeanors more often than those identified as White by the Tampa Police Department under these new procedures over the last 6 months.
I was unable to find any information about racial disparity when TPD decides to seize vehicles pursuant to Tampa Code Section 14-30 after an arrest for even a tiny amount of marijuana found in the vehicle. Under that section, if you are arrested for marijuana found in your vehicle TPD officers can seize your vehicle until you pay a $500 civil penalty and more than $450 in towing and storage fees.  

Problems with Tampa’s Marijuana Citation Program by TPD


From reading the legal bulletin, it appears that one of the biggest problems with the way TPD is implementing this policy revolves around the tremendous discretion given to the officers in the field who decide whether to make an arrest or just issue a citation.

It would be easier if all TPD officers were just told to issue the citations and never make an arrest for possession of these small amounts of marijuana. Of course, if the officers discover some other criminal offense, then they would still make an arrest for any other crime. 
Instead, the officer has wide discretion to decide whether to proceed with formal misdemeanor arrest and seize the subjects vehicle subject to the payment of an additional $500 civil penalty (along with another $450 in towing and storage fees) in any particular case because:  
  • if the citizen has failed to pay a previously issued civil citation, then the arrest is processed as usual with an arrest and criminal prosecution for the misdemeanor (so it makes sense to pay the first citation and every subsequent citation within the 30 days);
  • the officer gets to decide if the citizen cannot be released on his own recognizance under SOP 307.2 (which also gives the officer tremendous discretion); 
  • the officer can decide to proceed with an arrest as long as the officer justifies that decision with a “legitimate, non-discriminatory reason.” 
The bulletin makes it clear that the officer gets to name the reason for making an arrest instead of issuing a citation. The memo gives several examples of why an officer might want to make an arrest. The examples used in the bulletin include: 
  • the subject has a recent criminal history involving the illegal sale of cannabis or other drugs (although was otherwise eligible for the citation); or 
  • the subject has received several cannabis citations in a short period of time, even when the citations are promptly paid (although was otherwise eligible for the citation). 
The officers can easily determine whether the subject has an unpaid prior civil citation for marijuana possession by checking the subject’s name in Versadex. The unpaid citation will appear as a general offense report with the offense being “Unpaid Civil Citation.” See TPD SOP 340. 
 

Who Is Eligible for the Marijuana Violation Citation in Tampa? 


On April 1, 2016, the Tampa Police Department instituted a civil citation procedure applicable to certain cases where a citizen is found to be in possession of 20 grams or less of marijuana or possession of marijuana paraphernalia. 
Instead of bringing criminal charges under state law, the civil citation will be issued only when: 
  1. The officer doesn’t have probable cause for any other criminal offenses except possession of marijuana or possession of marijuana paraphernalia;
  2. The amount of marijuana possessed is 20 grams or less; 
  3. The subject is 18 years of age or older;
  4. No other criminal charges are applicable from the same incident; 
  5. The subject is qualified for release on his own recognizance; and 
  6. The subject has no prior unpaid civil citation. 
If the subject meets this criteria, then the officer can (but is not required to) issue a civil citation for violation of Tampa Code Section 14-62 in lieu of making a physical arrest or issuing a notice to appear for a misdemeanor charge under state law. 
The Legal Bulletin also explains that whenever the civil citation is used, the subject’s vehicle will not be impounded pursuant to Tampa Code Section 14-30. 
The way I read this legal bulletin, the officer has a huge amount of discretion. The officer can either:
  1. issue a civil citation for a violation of the city ordinance for 4-62(b) (possession of marijuana) or 14-62(c) (possession of paraphernalia) but not both; 
  2. issue a notice to appear on a misdemeanor prosecuted under state law for misdemeanor possession of marijuana under F.S. 893.13(6)(b) and/or possession of paraphernalia under F.S. 893.147(1); 
  3. make a formal arrest and take the suspect to jail to be formally booked into the jail; and/or
  4. seize the suspect’s vehicle under Tampa Code Section 14-30 (except the vehicle will not be seized if the civil citation is issued). 

What Happens if You Don’t Just Pay the Civil Marijuana Citation?


Under the city ordinance, the fine for the citation is $75 for the first offense and $150 for a second offense. The amount goes up sharply for additional offenses. If you don't pay it within 30 days then you will NEVER be eligible to receive a citation for a future case and instead the officer will be required to either arrest you and take you to jail or issue you a notice to appear in court on the misdemeanor charges. 

If you don’t pay the citation with thirty (30) days of the date of issuance, the City Attorney's Office shall forward the original and one (1) copy of the citation to the county court. 
The civil infraction is punishable by a civil penalty not to exceed five hundred dollars ($500.00). If you don’t want to pay the citation, then you should contest the citation in the county court. The procedures for contesting the citation shall be set forth in the citation.
If a person fails to pay the penalty within the specified period or fails to appear in court to contest the citation, that person shall be deemed to have waived the right to contest the citation. A judgment may be entered against that person for an amount up to the maximum civil penalty.

What Advice if Given to TPD Officers When Making these Decisions?

The legal bulletin provides this information (paragraph breaks were added):
In the typical street encounter, nothing changes up until the time a charging decision is made. As an example, an officer observes a traffic infraction and stops a citizen’s car. As the officer approaches the car, the distinct odor of burning marijuana is detected emanating from within the car.

The officer explains the reason for the stop and obtains the citizen’s D.L. and registration. The marijuana odor, of course, gives the officer probable cause to search the vehicle and its occupants. The officer should control the scene and ensure his own safety. Obtain backup as necessary and handcuff the citizen(s) prior to searching them or the vehicle. 

Once the search is completed, decide what you have. If the only applicable criminal charge will be possession of 20 grams or less of marijuana and/or possession of marijuana paraphernalia, decide whether the citizen meets the other criteria for civil citation. If so, issue the civil citation charging 14-62(b) (possession of marijuana) or 14-62(c) (possession of paraphernalia) but not both.

If other criminal charges are appropriate, if the citizen cannot be released on his own recognizance under SOP 307.2, or if the citizen has failed to pay a previously issued civil citation, then the arrest is processed as usual, using the CRA and charging misdemeanor possession of marijuana under F.S. 893.13(6)(b) and/or possession of paraphernalia under F.S. 893.147(1).

Juveniles found in possession of 20 grams or less of marijuana or paraphernalia will be processed under SOP 313.4 and future Legal Bulletin. 

To determine whether the subject has an unpaid prior civil citation for marijuana possession, check the subject in Versadex. The unpaid citation will appear as a general offense report with the offense being “Unpaid Civil Citation.” See SOP 340 for additional information.

Again, the decision of whether to proceed with arrest under the state statute or with citation under Tampa’s ordinance can only be made after completion of the full investigation and lawful search. A subject with a recent criminal history involving the illegal sale of cannabis or other drugs is not the intended beneficiary of the Tampa program. 

Similarly, a subject who has received several cannabis citations in a short period of time, even when the citations are promptly paid, is not apparently inclined to modify his illegal behavior based on the threat of further fines. 

When officers elect to arrest (even in ROR cases) under the misdemeanor statute, there is a drop down menu in Versadex for recording the reason(s) for the decision not to issue the civil citation in lieu of arrest. When that decision is based on officer discretion, the specific reason must be articulated in an “explain below” box. 

___________________________________________

Tampa Code Sec. 14-62. - Possession of cannabis or paraphernalia.


(a)   Definitions.

(1)   Cannabis means all parts of any plant of the genus Cannabis, whether growing or not and the seeds thereof. The term does not include the resin or oil extracted from any part of the plant or "low-THC cannabis" as defined in F.S. § 381.986 if manufactured, possessed, sold, purchased, delivered, distributed, and dispensed in conformance with F.S. § 381.986.

(2)   Paraphernalia means any object used, intended for use, or designed for use, in ingesting, inhaling, smoking, or otherwise introducing cannabis into the human body.

(b)   Any person who possesses twenty (20) grams or less of cannabis as defined herein except as otherwise authorized by law commits a violation of this subsection.

(c)    Any person who possesses paraphernalia as defined herein except as otherwise authorized by law commits a violation of this subsection.

(d)   A person charged with possession of cannabis under subsection (b) may not be charged with possession of paraphernalia under subsection (c) arising out of the same incident.

(e)   Penalties and procedure.

(1)   The provisions of Tampa Code Chapter 23.5 shall apply to all violations charged pursuant to this section.

(2)   Violation of this section is deemed to be an irreparable or irreversible violation punishable by civil penalty as a Class I offense.

(3)   If the applicable civil penalty is not paid within thirty (30) days from the citation date, in addition to the procedure provided in Tampa Code Chapter 23.5 in the event of such nonpayment, the defendant will no longer be eligible for the alternative enforcement procedures provided by this section.

(Ord. No. 2016-44, § 1, 3-17-16)
____________________________

The attorneys at the Sammis Law Firm, P.A., represent clients charged with criminal offenses throughout Tampa Bay. The attorneys also advocate for the reform of marijuana laws and are proud members of the NORML National Legal Committee (NLC).

Florida Statute 943.0581 for an Administrative Expunction after an Unlawful or Mistaken Arrest

If your arrest was unlawful or by mistaken then the best result in your case is getting the criminal charges dropped and then getting an administrative expunction under Florida Statute 943.0581.

These types of expunctions are rare in Florida because a law enforcement agency or prosecutor is rarely going to admit that an arrest was made "contrary to law" or "by mistake." But it does happen.

Sometimes the officer acts in an unlawful way as determined in an internal affairs investigation into police misconduct.

In some cases, the State Attorney's Office will drop the case and explain in writing that the reason for dropping the charges is because the arrest was "unlawful" or "contrary to the law."

If the agency or prosecutor won't agree, then you can file a motion to suppress evidence or a motion to dismiss the charge and convince the judge to grant the motion on the grounds that the arrest was "unlawful" or "contrary to the law."

The benefits of using the administrative expunction include not using up your once-in-a-lifetime right to seal or expunge a criminal record. Also, if you have previously sealed or expunged a prior record or are not otherwise eligible because you were previously convicted of any criminal offense, then the administrative expunction is the only option available.  

After the request is submitted, an Operations & Management Consultant Manager or a Senior Criminal Justice Information Technician with FDLE's Quality Control Section will review the request, along with associated documentation, and determine whether it meets the criteria for an administrative expunction per section 943.0581, F.S.

If you would like more information about sealing or expunging your criminal record, then contact the criminal defense attorneys at the Sammis Law Firm in Tampa, FL. Call 813-250-0500.

What is an administrative expunction?

Title XLVII for criminal procedure and corrections in Chapter 943 provides a process to petition for an administrative expunction. The administrative expunction under Florida Statute 943.0581 is different from Florida's other laws dealing generally with the preservation and destruction of public records.

The legislature allowed the Florida Department of Law Enforcement to adopt a rule pursuant to chapter 120 for the administrative expunction of any nonjudicial record of an arrest of a minor or an adult made contrary to law or by mistake.

Under Florida Statute 943.0581(2), only a "law enforcement agency" is permitted to apply to the Florida Department of Law Enforcement (FDLE) in the manner prescribed by rule for the administrative expunction of any nonjudicial record of any arrest of a minor or an adult who is subsequently determined by the agency, at its discretion, or by the final order of a court of competent jurisdiction, to have been arrested contrary to law or by mistake.

Alternatively, an adult or, in the case of a minor child, the parent or legal guardian of the minor child, may apply to the department in the manner prescribed by rule for the administrative expunction of any nonjudicial record of an arrest alleged to have been made contrary to law or by mistake, provided that the application is supported by the endorsement of the head of the arresting agency or his or her designee or the state attorney of the judicial circuit in which the arrest occurred or his or her designee.

In other words, the chief of police of sheriff himself (or his designee) or the State Attorney (or his designee) must sign the application.  

Requirements for the Application for the Administrative Expunction

When the law enforcement agency makes the request, the agency will often type up a one-page document entitled "Quality Control Administrative Expunction Request." The form is sent to the following address:

    Florida Department of Law Enforcement (FDLE)
    Quality Control Section
    Post Office Box 1489
    Tallahassee, FL 32303-1489

An application for administrative expunction shall include the date and time of the arrest, the name of the person arrested, the offender-based tracking system (OBTS) number, and the crime or crimes charged. The application shall be on the submitting agency’s letterhead and shall be signed by the head of the submitting agency or his or her designee.

Under Florida Statute 943.0581(6), if the person was arrested on a warrant, capias, or pickup order, a request for an administrative expunction may be made by the sheriff of the county in which the warrant, capias, or pickup order was issued or his or her designee or by the state attorney of the judicial circuit in which the warrant, capias, or pickup order was issued or his or her designee.

Under the statute, the fact that an application is signed or endorsed under this section is not admissible as evidence in any judicial or administrative proceeding and may not be construed in any way as an admission of liability in connection with an arrest.

What are FDLE's Procedures for the Administrative Expunction? 

In response to Florida Statute 943.0581, FDLE adopted Rule: 11C-7.008 for the Administrative Expunction Procedures. The latest version of the final adopted rule is presented in Florida Administrative Code (FAC): The effective date of the last version of the rule became effective on April 16, 2009. Rule 11C-7.008 for the Administrative Expunction Procedures provides:



(1) Non-judicial records of arrest made contrary to law or by mistake will be administratively expunged by the Department, upon application by the arresting law enforcement agency, or by the person arrested or, in the case of a minor child, the parent or legal guardian of the minor person arrested. An application submitted by the person arrested or the parent or legal guardian of the minor person arrested, shall be supported by the endorsement of the head or chief law enforcement officer of the arresting agency or of the state attorney of the judicial circuit in which the arrest occurred.

(2) Application for administrative expunction requires either that the arresting law enforcement agency has determined that the arrest was made contrary to law or by mistake; or that a court of competent jurisdiction has entered a final order finding that the arrest was made contrary to law or by mistake.

(3) An application for administrative expunction must be in writing. If submitted by the arresting law enforcement agency, the application shall be on agency letterhead, and signed by the head or chief law enforcement officer of the arresting agency or his or her authorized designee. An application submitted by the person arrested or the parent or legal guardian of the minor person arrested, must be in writing and must identify the relationship of the person signing the application to the person arrested.

(4) A supporting endorsement of an application submitted by the person arrested or the parent or legal guardian of the minor person arrested, must be in writing, on agency letterhead, and signed by the head or chief law enforcement officer of the arresting agency or his or her authorized designee or by the state attorney of the judicial circuit in which the arrest occurred or his or her authorized designee.

(5) An application for administrative expunction submitted by the arresting law enforcement agency, or the supporting endorsement in the case of an application submitted by the person arrested or the parent or legal guardian of the minor person arrested, shall identify the arrest to be expunged by providing the following information. Written documents related to administrative expunctions shall make specific reference to identifying information, including:

(a) Name and Aliases;
(b) Sex and Race;
(c) Date of Birth;
(d) Social Security Number (if available, used for identification – not mandatory);
(e) Date and Time of Arrest;
(f) Original Charges(s);
(g) FDLE Number and FBI Number (if applicable and known);
(h) OBTS Number;
(i) Reason for Administrative Expunction;

(6) If the person was arrested on a warrant, capias, or pick-up order, the request for an administrative expunction, or the supporting endorsement of an application submitted by the person arrested or the parent or legal guardian of the minor person arrested, may be made by the sheriff of the county where the warrant, capias, or pick-up order was issued or his or her designee, or by the state attorney of the judicial circuit where the warrant, capias, or pick-up order was issued or his or her designee.

(7) When an administrative expunge application meets the statutory requirements, the Department will notify the arresting agency, which is then responsible for expunging its records of the arrest, and for notifying any other agency to which it provided the criminal history record information that is the subject of the administrative expunction.

(8) No application or endorsement made under this section shall be admissible as evidence in any judicial or administrative proceeding or otherwise be construed in any way as an admission of liability in connection with an arrest.

(9) The procedures by which an individual may secure an administrative correction of the criminal history record pertaining to the individual are set out in Chapter 11C-8, F.A.C. Non-criminal arrest records which are mistakenly or improperly forwarded to the Department for processing and retention as criminal history records will be removed as an administrative correction by the Department.
Rulemaking Authority 943.03, 943.0581 FS. Law Implemented 943.0581 FS. History–New 8-5-92, Amended 3-21-07, 4-16-09.





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