Since a battery under Florida law is an intentional touching or striking of another person, a battery committed against a law enforcement officer should always require that the defendant intended to touch or strike an officer. Yet officers often make arrests for Battery on a Law Enforcement Officer (BOLEO) where there’s no evidence of any intention to commit battery on the officer.
|W.C. Fields about to be Battered
While working years ago as a prosecutor and now as a defense lawyer in Tampa Bay, Florida I’ve seen dozens of cases dismissed or reduced when evidence clearly established that an officer was not intentionally touched.
The following are four ways in which law enforcement officers often mistakenly charge an unintended or accidental touching as a BOLEO:
1. Law enforcement officers may overreact when they feel that a situation is getting out of control and make a BOLEO arrest to quell the situation. Officer safety is a legitimate issue but an arrest for BOLEO should only be made if the facts and circumstances of the case support an intentional touching or striking of an officer.
2. Other cases result from what should be charged as a mere misdemeanor resisting arrest without violence where a defendant is not immediately obeying an officer’s commands to allow an arrest or provide specific information. In these situations the case should be reduced from a felony to reflect the actual facts of the case.
3. Sometimes officers become frustrated during the course of an investigation if an officer is injured even if the defendant had no intention of doing anything to the officer. In one case I had years ago the officer was angry that his glasses broke while securing my client during an arrest and was more than happy to use a felony charge as a means of paying for his new frames thru restitution. The other officers testified that there was no unlawful touching or striking of the officer’s face so the BOLEO charge was dismissed.
4. Officer or prosecutors may make a tactical decision to add BOLEO charges that would normally not be filed where it can be used as effective leverage to convict the defendant of other charged misconduct. By driving the guidelines higher with a new charge the prosecutors up the ante for a defendant who might want to fight the other charges in trial thus increasing the chances of obtaining a conviction.
If you’ve been falsely arrested for Battery on a law enforcement officer, it’s important to have a criminal defense lawyer look for the underlying reasons why a BOLEO charge has been filed in each case and then to support his conclusions with evidence such as video, audio, photographs, medical records or witness testimony. By establishing a likely motive for the police to have mistakenly charged the felony BOLEO it becomes much more likely to find ways to dismiss the charge or reduce the felony to a more manageable misdemeanor.
Your favorite Clearwater criminal defense attorney is often asked whether one must obey on officer’s commands. In fact the first few minutes of any initial encounter you have with an officer may be the most important factor in determining whether you’re arrested. If you are not going to co-operate nor obey an officer’s commands, then it’s especially important that you remain calm, reasonable and courteous.
Here is a summary of how to deal with an officer’s requests or commands for information and the various factors that may come into play in determining how you should handle the situation.
|Florida Highway Patrol
The first consideration is how and where the confrontation with the police originates.
An officer knocking at your home door who has no reasonable suspicion that a crime has been committed has much less leeway to compel you to act than one who has reason to believe you are armed, dangerous and just left the scene of a murder.
While at home every American has a high expectation to privacy rights. This means if an officer attempts to compel a home owner to allow a search for evidence, he must have a search warrant or an arrest warrant or have an appropriate legal exception to not have the proper warrant.
One need never give consent to search if the officer does not have a search warrant. Yet in Florida courts may allow officers who claim to have suspicion that a crime has or is being committed by for example, smelling marijuana at the door of a home, to search without a warrant and to make arrests of the occupants without an arrest warrant.
If an officer initiates an arrest without an arrest warrant, must one obey the officer and allow the arrest? In Florida one can resist an illegal arrest only if no force or violence is used. In practice what this means is that one may tell the officer why one should not be arrested, but if force is used the officer may file a felony charge of resisting arrest with violence or battery on a law enforcement officer.
Many citizen and officer confrontations occur while a citizen is away from home. For example, when an officer stops a driver for an infraction such as speeding or improper lane change, then the officer has a right to demand a drivers license and proof of insurance. If there’s an indication of drugs, drinking, impairment or DUI, then the officer will investigate, but the driver need not obey the officer’s commands to take field sobriety test, HGN tests nor to give a breath sample.
If there was a car accident or a suspected DUI manslaughter then the officer has the further right under Florida law to conduct an accident investigation. Every Florida driver under the law has an obligation to provide sufficient information for the completion of that investigation. At the end of the accident investigation then the officer will conduct a criminal investigation, if necessary, at which time the driver need not co-operate.
If you are confronting an officer’s request or command, remember that your primary goal is not to be arrested. Treat the officer how you’d want to be treated. By being calm, courteous and reasonable your expectation will be that a good officer will be courteous, reasonable and fair to you in return; if he’s not immediately ask for a Tampa Bay criminal lawyer who will ensure that your rights are protected.