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What is "Unlawful use of police communications" under FL Statute 843.167 and how is it applied?: Does the State have to prove in any way that one was using a police scanner or can they just say they think one was using a police scanner to obstruct and automatically enhance any other charge? According to 843.167(2) it states "Any person who is charged with a crime and who, during the time such crime was committed, possessed or used a police scanner or similar device capable of receiving police radio transmissions is PRESUMED to have violated paragraph (1)(a)."

Does this mean that one is presumed guilty and so the State doesn't have to charge you with 843.167(1)(a) they can just say you did it and are presumed guilty and your charges automatically get enhanced? Or would they have to charge you with a subsection in 843.167 and be found guilty? How is this applied in the field?

I was never charged with 843.167(1)(a) but I did have a scanner in my vehicle (wasn't using it for anything illegal though) and just wondering if the State can try to automatically enhance my misdemeanor charge to a felony without any due process or additional charges?

Asked about 7 years ago in State & Local Law

Stephen’s answer: I believe this is a state law you are asking about.
There are many instances where the criminal laws employ “presumption” in the employ of crafting the statute. A presumption is where you accept a fact as true without any supporting evidence.
For all criminal charges, you are innocent until proven guilty, even in cases where the law applies a presumption of some kind. In a homicide, you may be charged with murder even though you claim self-defense; you must assert self defense at trial. If you are charged with drug possession it is presumed you know what the drugs are and that they are illegal; if otherwise the defendant must assert those facts. In this way, the law is crafted so that a defendant exposed to a presumption has every right and opportunity to overcome the presumption if tried for the crime.
SO, if you were arrested for a crime and charged with having a scanner in your vehicle as well, it means the police do not need to witness the act of your using it to assist in the commission of the alleged crime, that much may be presumed, and be, by statute, probable cause and they may charge you with that. However, it would still have to be proven at trial and you could assert in your defense any fact that tends to destroy the presumption.
Such a presumption could possibly allow the defense to ask for additional discovery, or to challenge the constitutionality of the statute’s use of the presumption, or otherwise make this companion charge much more trouble than it is worth. Therefore, in practice, such a charge is perfect as being offered to drop in exchange for a plea of guilt on the companion, and likely more serious, charged offfense.
Each case is different, and this is why you would require a defense lawyer to assist in an actual arrest.

Answered about 7 years ago.


Am I able to purchase a firearm after an Adjudication of Guilt Withheld on drug related charges and 3 years have past?: Plead no contest and received adjudication withheld of guilt.
Where:
Tallahassee, FL
When:
Oct 31, 2012 (arrested)
Sep 16, 2014 (completed all probation and court requirements)
Feb 18, 2016 (sealed records)
What:
Sale of cannabis - Felony 3
Possession > 20 grams - Felony 3
Possession of paraphernalia - Misdemeanor 1
Maintaining place where controlled sub. used - Misdemeanor 1

Asked almost 8 years ago in Federal Crime

Stephen’s answer: As far as the state of Florida is concerned, you were not convicted of a felony because adjudication was withheld, meaning you can buy and legally possess a firearm in Florida. You posted this as a federal question, however so here are some considerations as to federal law. Be generally advised that for the purposes of sentencing scoring and some enhancements to federal law violations involving a firearm, the withhold of adjudication does not factor into the equation and you are considered a felon for that specific purpose. Also, federal law enforcement folks, and those from other states, may not know what a withhold of adjudication means, see the listed felony charges and plea/disposition, and make an arrest which you would then have to defend against. So be careful on federal lands and other locations where the feds might exercise jurisdiction.

Answered almost 8 years ago.


Is it completely up to your PO if you serve time?: I had a dirty drug test today im on probation And I call colors

Asked about 8 years ago in Federal Crime

Stephen’s answer: It is up to the PO to use discretion to formally violate you or not. If formally violated, it’s likely a no-bond capitals will issue, meaning jail until court, at least. Once the violation itself is served, the outcome ultimately depends on the judge. Consult an attorney, as you may have defenses and representation can result in reduced risk of arrest, a long jail wait, and then may make the best of any outcome on your behalf. Good luck.

Answered about 8 years ago.