GET MY GPS OFF, Battery, Domestic Violence

Blog

GET MY GPS OFF, Battery, Domestic Violence

Date: 03-02-2018

If you have been arrested for battery domestic violence, or battery domestic violence by strangulation, you may have been ordered to wear a GPS device upon your release from jail. It's important for you to know that you can have the GPS removed after filing a motion with the court. It is also worth knowing that GPS devices are new to the law and that the law regarding such devices is currently being shaped.

 

The United States Supreme Court has recently addressed GPS devices in two cases: United States v. Jones and in Grady v. North CarolinaInJones, the Court held that the government's use of a GPS device without a warrant was unlawful. In Grady, the Court ruled that the Fourth Amendment applied when a person is required to wear a GPS device by the Court. The Grady Court, however, did not set forth what was required for the government to satisfy the Fourth Amendment. Thus, under the United States Constitution, as interpreted by the U.S. Supreme Court, the Court may not be permitted to require you to wear a GPS device pending a resolution in your case.

 

Further, the Florida Legislature is considering changes to the statutes regarding no contact orders and GPS devices. Senate Bill 342 recently passed the Senate but has yet to be passed by the House of Delegates and signed by the Governor as of yet. This law is helpful to people going through these difficult circumstances who also have children. Senate Bill 1286 seeks to increase the penalties for removing a GPS device.

 

Ultimately, as you have read, the law is formulating with advances in technology. If you have been required to wear a GPS device your rights may be being violated. Of course, when subject to prosecution you need to make strategic decisions. An experienced attorney can certainly assist.

 

As I have stated in a previous blog, you have a right to an adversarial hearing. This may be required for your GPS to be removed.

 

Please call to schedule a complimentary consultation at 407-865-8888.

DUI, Reckless Driving for the Commercial Driver

Blog

DUI, Reckless Driving for the Commercial Driver

Date: 06-21-2014

If you have been arrested for DUI, or Reckless driving, or any other traffic violation and you have a commercial driver's license you already know that the consequences for you are different from that of the non-commercial driver.   Pursuant to the relatively new federal regulation 49 CFR 384.226   "The State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CLP or CDL holder’s conviction for any violation, in any type of motor vehicle, of a State or local traffic control law (other than parking, vehicle weight, or vehicle defect violations) from appearing on the CDLIS driver record, whether the driver was convicted for an offense committed in the State where the driver is licensed or another State." Chapter 394 of the Code of Federal Regulations can be found by clicking on the link.   This regulation is creating confusion in the courts of the State of Florida.   There are several Florida Statutes that inform when a court or judge in the State of Florida may withhold adjudication of guilt, which is likely the equivalent of masking as described above: F.S. 948.01Florida Rule of Criminal Procedure 3.670 and F.S. 921.187 to name a few. There are specific statutes that prohibit the court from withholding adjudication including for DUI under F.S. 316.656 and Fla. R. Crim. P. 6.290. However, there are no (as far as this author is aware) Florida Statutes prohibiting a judge from withholding adjudication on an offense differing from DUI such as Reckless driving.   In evaluating the authority of the courts, and the effects of the actions of the State of Florida DHSMV it is important to note that F.S. 322.01(11)(b) adopts 49 CFR 383.5's definition of conviction:   "Conviction means an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal, an unvacated forfeiture of bail or collateral deposited to secure the person’s appearance in court, a plea of guilty or nolo contendere accepted by the court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended, or probated."   F.S. 322.01(11)(a) defines conviction as:  
"(11)(a) “Conviction” means a conviction of an offense relating to the operation of motor vehicles on highways which is a violation of this chapter or any other such law of this state or any other state, including an admission or determination of a noncriminal traffic infraction pursuant to s. 318.14, or a judicial disposition of an offense committed under any federal law substantially conforming to the aforesaid state statutory provisions."
According to the DHSMV and memorandum by Maureen Johnson, the DHSMV states it will not accept a withhold of adjudication on such charges as those mentioned above because it believes a withhold of adjudication is masking.
However, Florida Statute 316.302 spells out what section of Title 49 of the CFR have been adopted by the State of Florida through the Legislature and 384.226 is not included in those adopted.
Thus, because F.S. 316.302 does not adopt 49 CFR 384.226 and adoption of 49 CFR 383.5's definition of conviction is found under Chapter 322, not Chapter 316 where DUI and Reckless driving are found such violations are not subject to the anti-masking statute in the State of Florida.
Because the regulations at issue have not been adopted through legislation, the laws of the Florida Legislature are the laws that prevail. The Florida statute preempts (take precedent) over the Federal Regulations under the theory of Federalism. See Hughes v. State943 So.2d 176 (Fla. 3rd DCA 2006).
So you ask, what does this mean to you, the commercial driver charged with DUI? It means if the charge is reduced to reckless driving and you receive a withhold of adjudication it should not be placed on the CDLIS driver's record.
The above is based on the state of the law at this time. This is an area of law that is still being developed through the courts. If you have such an issue please contact an attorney experienced in this line of work.

Officer wants your cell phone, resisting arrest

Blog

Officer wants your cell phone, resisting arrest

Date: 03-20-2014

The other day I was interviewed by Rene Stutzman, staff writer for the Orlando Sentinel. Ms. Stutzman wrote a piece, Police Seizing Cell Phones; A Civil Rights Issue, (the full article is below), in a lawsuit where the arrestee is suing the police because an officer made him stop recording the officer, and when the person refused to stop he was arrested for Resisting an Officer Without Violence, otherwise known as resisting arrest under Florida Statute 843.02.

 

As I was quoted by Ms. Stutzman, this issue is coming up more and more. Technology moves fasters then the legislature can regulate our advanced society. As a result of the request for the interview I've been giving this topic some thought, and below provide some suggestions to the government and the citizen.

 

Suggestions for the government:

 

Either the legislature could require the below policies and/or the police agencies themselves could invoke such a policy:

 

1. When an officer believes a person is video recording, and evidence is being captured, the officer has a right to collect said evidence.

 

2. The method of collection should be by the least intrusive means possible.

 

3. The least intrusive method most commonly available is to have the person recording the event, email the video to ________________________. Law enforcement could have a special email account just for the collection of evidence.

 

4. Further, the officer should have the person providing email fill out an affidavit with their name, address, phone number and email address. Said person shall also certify that the video has not been altered prior to emailing.

 

The reason for the above policy is to protect everyone. The innocent bystander should not fear that he will be punished for video recording public events. And the government should be able to secure evidence that may be fruitful in the investigation of a crime.

 

The Legislature could provide that an officer who complies with the above protocol is immune from prosecution or civil liability. Thus, by protecting the rights of the citizen so do we protect the rights of law enforcement.

 

The above policy allows the person to keep the recording for whatever purpose they desire, and their phone. Said person will not be in fear of being arrested. Also, said person should not be in fear that their privacy will be further invaded.

 

The Florida Supreme Court has recognized that law enforcement needs a warrant to search a cell phone. Smallwood v. State.

 

The article by Rene Stutzman follows:

 

Police seizing cell phones: A civil-rights dispute

 

By Rene Stutzman, Staff Writer6:23 p.m. EDT, March 19, 2014

 

You're walking down the sidewalk and see police officers making an arrest. They're using force, and the man they're arresting is protesting. You pull out your cellphone and start recording.

 

An officer orders you to stop, says you're breaking the law. He demands that you hand over your phone.

 

What should you do? Are you breaking the law?

 

No, according to local lawyers, as long as you were in a public place and not interfering with the officer or his investigation.
 

"You have an absolute right to videotape an officer or anyone else on the street," said Howard Marks, an Orlando attorney who specializes in civil-rights cases. "Law-enforcement officers don't like being taped. That's tough luck."

 

The issue has become a growing civil-rights dispute, the result of smartphone proliferation.

 

It has transformed a dispute that used to involve a relatively small number of people — news photographers — into one that has the potential to put cops at odds with any bystander with a cellphone.

 

It has prompted arrests, disputes, and lawsuits across the country, including:

 

•Rochester, N.Y., where a woman was arrested after she began video-recording a traffic stop while standing in her yard.

 

•Baltimore, where officers seized a man's phone after he recorded video of his friend's arrest. When it was returned moments later, the video had been deleted.

 

•Newark, N.J., where a high-school girl was arrested after video-recording officers responding to an incident on a transit bus.

 

On Monday, a 25-year-old Orlando man, Alberto Troche, filed a federal civil-rights lawsuit against Orlando police Officer Peter Delio, accusing him of falsely arresting him and violating his constitutional rights Dec. 7 when the officer ordered him to stop video-recording another man's arrest in downtown Orlando.

 

The video shot by Troche shows several Orlando officers yelling at a crowd of bystanders, ordering them to stop video-recording the arrest and threatening them with arrest if they refuse.

 

It also appears to show Delio grabbing Troche's phone after telling him, "I'll be taking that."

 

Sgt. Jim Young, a spokesman for the Orlando Police Department, would not comment on the case, citing the pending litigation. City lawyers have not filed a response in federal court.

 

The state's largest police union, the Police Benevolent Association, did not return a call for comment. Neither did the Fraternal Order of Police, which represents Orlando police officers.

 

"We've seen over the past couple of years … a pattern of law enforcement officers ordering people to stop taking pictures or videos in public places as well as taking cameras and arresting people who fail to comply" said Baylor Johnson, the media-relations manager with theAmerican Civil Liberties Union of Florida. "That's something we find really troubling."

 

Matthews Bark, a former assistant state attorney now in private practice in Altamonte Springs, said, "It's coming up more and more. It's something we need to deal with as a society."

 

Troche was accused of resisting arrest without violence, a charge that prosecutors dropped. But not until he'd spent 15 hours in police custody and at the Orange County Jail.

Local lawyers were unequivocal this week that officers were in the wrong when they ordered Troche to stop recording the arrest.

 

"If you're in a public place, and you're not interfering with a lawful investigation, then you have an absolute right to videotape a police officer," said Adam Pollack, an Orlando criminal defense lawyer. "There's no expectation of privacy."

 

He pointed out that the intersection where Troche was arrested — Wall Street and Orange Avenue — is already under video surveillance by city-owned cameras.

 

The Orlando Police Department, Orange County Sheriff's Office and Florida Department of Law Enforcement all advise officers that, when they're in public, citizens have a right to video-record them.

 

But the lines get blurry about whether an officer has a right to seize the phone or camera of someone recording officers at work.

 

If the officer thinks it contains evidence of a crime and there's a danger that the evidence is about to be destroyed, he or she should seize and hold it, according to an OPD training bulletin from November.

 

In his arrest report, Delio wrote that's what he was trying to do when he took Troche's phone: preserve evidence of a crime.

 

rstutzman@tribune.com or 407-650-6394

 

Copyright © 2014, Orlando Sentinel

Battery Domestic Violence GPS

Blog

Battery Domestic Violence GPS

Date: 02-15-2014

Yesterday I attended the Orange County Bar Association Criminal Law Section's continuing legal education course on domestic violence. The Honorable Judge Nancy Clark, who is a judge in the Ninth Judicial Circuit County Court in and for Orange County, was the presenter and did a phenomenal job. I also had two cases where my clients were accused of battery domestic violence in Seminole County, Florida before the Honorable Judge Fred Schott. Both of these experiences brought many issues to the forefront for people charged with domestic violence.

 

If you have been arrested for domestic violence you are not entitled to bond out of jail until you see a judge at First Appearance. See F.S. 741.2901(3). The first appearance is supposed to be within 24 hours of arrest.

 

At the first appearance, the Judge shall consider the safety of the "victim", the "victim's" children, and any other person who may be in danger if the defendant is released, and exercise caution in releasing the defendant. F.S. 741.2902(1).

 

In Seminole County, those accused of domestic violence offenses are often released on bond after seeing the judge, but their freedom is still severely compromised. The reason, many judges will require that the accused be monitored by the state by a GPS device. The accused will have to wear an electronic device around his/her ankle and call the GPS administrator whenever the device alerts.

 

This restriction on one's freedom is quite intrusive and is done with only a scintilla of proof. Often in these types of cases, there are two sides of the story, but law enforcement and the prosecution will take the side of the party who reported the conflict. (This is why I put the word victim in quotes). This means, even if your partner hit you first, and then you defended yourself, but your partner reported the conflict, you will likely be the one arrested and subject to the restrictions on your freedom as mentioned above and including not being allowed to return home, or being able to contact the other person.

 

The Florida Legislature has required the State Attorneys to adopt a "pro-prosecution policy." As a result, the prosecution often files charges against the arrested without a complete investigation or application of the laws.

 

In fact, if it is reported that parties live together, law enforcement and the prosecution automatically assume that any violence between the parties constitutes domestic violence. This actually is not the case. It is only domestic violence if the parties are spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. F.S. 741.28(3).

 

The reason I say this is not the case is because often a knight in shining armor, man/woman, begins to date someone. Said someone has nowhere to live so this knight in shining armor lets this said someone reside with them. Then this said someone accuses the knight of domestic violence. The knight is arrested, not allowed to return to his/her home because the judge and prosecution assume the this is domestic violence. But it is not. Why you ask. Well, the parties don't reside together as if a family. There is no intent to get married, and there is no intent to have children. Thus, the parties may live together, but not as if a family.

 

This begs the question, how do I get the Court to understand this. You have the right to an adversarial preliminary hearing before a judge where the burden is on the prosecution to show that there is probable cause for the charges alleged leading to your arrest. Florida Rule of Criminal Procedure 3.114(b)(1) and Parry-Hoepfner v. State. Thus, in a situation like described above, the prosecution would not be able to provide probable cause of domestic violence and the restrictions on your freedom should be alleviated.

 

This is just one legal means of having your freedom that was deprived without sufficient proof restored. For more information contact a qualified attorney. 407-865-8888.

DUI, Refusing A Breath Test, Refusing Field Sobriety Exercises

Blog

DUI, Refusing A Breath Test, Refusing Field Sobriety Exercises

Date: 02-12-2014

People always ask, should I do the field sobriety exercises, should I take a breath test.

 

There is no easy answer to these questions. Your life circumstances and immediate circumstances affect the answers to these questions.

 

However, a situation that does arise is when the officer reads you your Miranda warnings; you know: "You have the right to remain silent; anything you say can be used against you in a court of law; you have the right to have an attorney present prior to and during any questioning; if you cannot afford one, one will be appointed for you;" then the officer ask you will you perform the field sobriety exercises. There are three rational responses: yes, no, or remaining silent as the officer just informed you was your right.

 

But the truth is that a person usually doesn't have the rights pursuant to Miranda after being stopped for a traffic violation, when being asked to perform field sobriety exercises, and when being asked to take a breath test. See State v. Burns. Thus, one would be confused at the side of the road, the person is informed they have these rights, but when they get to court they're informed that they do not have these rights. As a result, the courts have begun to formulate what is known as the confusion doctrine. In Kurecka v. Statethe Fourth District Court of Appeals explained this confusion doctrine:

 

"Under a judicially created exclusionary rule, known as the “confusion doctrine,” “a licensee's refusal to submit to [a] breath test will be excused if, due to a prior administration of the Miranda warnings, the licensee believes that he or she had the right to consult with counsel prior to taking a breath test.” Ringel v. State, 9 Fla. Supp. 678a (Fla. 18th Cir.Ct.2002). The doctrine is usually invoked by drivers as a defense to a license suspension or revocation. In most instances, the drivers assert that, because the police officer contemporaneously advised them of their Miranda rights (right to refuse interrogation and to have an attorney present at all stages of an interrogation) and read them the requirements and sanctions of the implied consent law, they believed that they could consult with counsel before deciding whether to submit to breath testing. They contend that they should not be held strictly accountable for refusing to take a breath test and suffer a license suspension or revocation when the officer confused them about their right to counsel. See, e.g., Calvert v. State, 184 Colo. 214, 519 P.2d 341 (1974)."

 

Many of the cases analyzing the confusion doctrine require the defendant to make his confusion known to the officer. It is important to note that the cases who uphold the confusion doctrine as law or hold otherwise are County Court and Circuit cases. They are not District Court cases. These means that the interpretations of the confusion doctrine coming from the County Courts and Circuit Courts are not binding on all the courts in the state of Florida. This was explained by the Fourth District Court of Appeals in KureckaSee also DHSMV v. Marshall.

 

But, before the District Courts do review whether the confusion doctrine is applicable in the circumstances described above, this author suggests very strongly that the analysis not be done under the confusion doctrine, but under the evidence code as is already done when the State of Florida attempts to admit evidence that a defendant did not cooperate with law enforcement and thus evidences consciousness of guilt.

 

The theory is that a person who refuses to cooperate with law enforcement does so because they know they are guilty. But as explained by the Florida Supreme Court in Menna v. State, there could be many reasons a person chooses not to do what is asked by them of law enforcement, other than that they are guilty. The Court explained:

 

"We have held that before such refusal evidence can be introduced the court must make a prima facie determination that the evidence is relevant with regard to the defendant's consciousness of guilt. This requirement implicitly recognizes that, as articulated by Judge Pearson in Herring, there are potentially many reasons, other than guilt, that a defendant might be motivated to refuse to submit to such a test. Furthermore, under some circumstances, such as those in Herring, a refusal may be so ambiguous as to remove from its invocation any probative value in the refusal as to the issue of the defendant's alleged consciousness of guilt."

 

The Menna Court looked the Third District Court of Appeals opinion in Herring v. State, and explained:

 

"The unfairness, of course, is that a defendant who is told he may refuse and is told of no consequences which would attach to his refusal may quite plausibly refuse so as to disengage himself from further interaction with the police or simply decide not to volunteer to do anything he is not compelled to do. In contrast, if a defendant knows that his refusal carries with it adverse consequences, the hypothesis that the refusal was an innocent act is far less plausible."

 

In fact, the Florida Supreme Court has already addressed the admissibility of a person's refusal to perform field sobriety exercises and refusal to take a breath test under the above rationale in State v. Taylor.

 

The reason it is important to analyze the issues under the later rationale, under the evidence code, and not under the former rationale known as the confusion doctrine is that it follows the evidence code passed by both the Florida Legislature and approved by the Florida Supreme Court. See Florida Statute 90.401. In applying the rationale already provide by the Florida District Courts, the Florida Supreme Court and the Florida Legislature, it puts the burden on the State of Florida to provide some evidence that the person's refusal to do what is asked by law enforcement is accompanied by adverse consequences and thus evidence of consciousness of guilt. In a situation in which this piece started, where a person is informed they have the right to remain silent, they are not informed of adverse consequences and are provided a safe harbor. Thus, if said person refuses to do as requested, said refusal should not be admissible in court.

 

Clearly, this is a bit more complicated than saying you should refuse the field sobriety exercises, and the breath test.

 

If you are arrested for DUI please call 407-865-8888.

Aggravated Assault With A Deadly Weapon Stand Your Ground and Self Defense

Blog

Aggravated Assault With A Deadly Weapon Stand Your Ground and Self Defense

Date: 10-10-2013

There was outrage in the streets of Florida, or at a minimum in the media. George Zimmerman gets away with killing a black teenager while using a firearm, and a black woman, Marissa Alexander was sentenced to 20 years in prison after being convicted by a jury of aggravated assault with a deadly weapon for firing a warning shot in effort to get her husband to desist from physical abuse after a history of physical abuse. Racism was the cry. However, the First District Court of Appeals for the State of Florida cried bad jurisprudence.

 

On the 26th day of September 2013, the First District Court of Appeals reversed Marissa Alexander's conviction for aggravated assault with a deadly weapon and sentence of twenty years in prison in the case of Alexander v. State, 38 Fla. L. Weekly D2067a (Fla. 1st DCA 2013). The court did not find that Ms. Alexander was immune from prosecution under Florida's Stand Your Ground Law, but found that the jury instruction provided by the court to the jury improperly put the burden on Ms. Alexander to prove she acted in self-defense as opposed to putting the burden on the prosecution to prove she did not act in self-defense.

 

Many people were outraged that George Zimmerman was found not guilty and Marissa Alexander was found guilty. They protested how could George Zimmerman be found to have stood his ground lawfully and Ms. Alexander could not. But, in actuality, George Zimmerman was not found to have stood his ground lawfully because if that were the case the judge, Judge Deborah Nelson, would have had to dismiss the case (thrown it out) prior to a jury ever getting the chance to decide the outcome. Under the stand your ground law in Florida, if the court finds a person stood his ground in self-defense the person is immune from prosecution. See Clarence Dennis v. the State of Florida, 51 So.3d 456 (Fla. 2010). No one found that George Zimmerman was immune from prosecution. The jury found that there was insufficient evidence to overcome his defense that he acted in self-defense after being properly instructed on the burden of proof and when self-defense is permitted.

 

The jury, in Ms. Alexander's case, was misinformed. The jury was instructed:

 

A person is justified in using deadly force if she reasonably believes that such force is necessary to prevent:
 
1. imminent death or great bodily harm to herself or another, or
 
2. the imminent commission of Aggravated Battery against herself or another.
 
AGGRAVATED BATTERY
 
To prove the crime of Aggravated Battery, the following two elements must be proven beyond a reasonable doubt. The first element is a definition of battery.
 
1. Rico Gray Sr. intentionally touched or struck MARISSA DANIELLE ALEXANDER against her will.
 
2. Rico Gray Sr. in committing the battery intentionally or knowingly caused great bodily harm to MARISSADANIELLE ALEXANDER.
 
By giving the instruction above it appeared that Ms. Alexander had to prove beyond a reasonable doubt that her husband was in the imminent commission of an aggravated battery.
 
However, the First DCA ruled that "[t]he defendant's burden is only to raise a reasonable doubt concerning self-defense. The defendant does not have the burden to prove the victim guilty of the aggression defended against beyond a reasonable doubt. 'When a defendant claims self-defense, the State maintains the burden of proving the defendant committed the crime and did not act in self-defense.' Montijo v. State, 61 So.3d 424, 427 (Fla. 5th DCA 2011). 'The burden never shifts to the defendant to prove self-defense beyond a reasonable doubt. Rather, he must simply present enough evidence to support giving the instruction.' Id.
 
Ultimately, when a jury is instructed properly, i.e., that the State must prove that she committed the crime and did not act in self-defense, Ms. Alexander will have the same fate as George Zimmerman. She will most likely be found not guilty.
 
It is also important to note that many were outraged by the sentence, twenty years in prison. In Florida, if a person is convicted of a dangerous felony and while committing said felony discharged a semi-automatic firearm, the minimum sentence is twenty years in prison under Florida Statute 775.087(3)(a)(2). It appears the Court was required to give this draconian sentence.
 
Ultimately, the moral of the story is that if we do not pay the closest of attention to how we communicate the laws, inequitable results will be reached. Fortunately, the democracy found in the United States of America and our way of governing have the protections necessary to ensure people are not wrongfully oppressed or convicted; at least for the most part.
 
If you are charged with an assault, battery and especially if it is with a deadly weapon and you want to ensure your rights are properly protected please call my office for a complimentary consultation.

DUI, Blood test, McNeely vs. Schmerber and Florida Statute 316.1933 (DUI Lawyer in Seminole County)

Blog

DUI, Blood test, McNeely vs. Schmerber and Florida Statute 316.1933 (DUI Lawyer in Seminole County)

Date: 08-24-2013

Recently, the United States Supreme Court issued its opinion in the case of Missouri v. Tyler G. McNeely. Justice Sonya Sotomayer, writing for the Court, held "that natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant." In other words, unless there is an emergency withdrawing blood from a person suspected of DUI without a warrant is prohibited under the Fourth Amendment to the U.S. Constitution. In 1966, the U.S. Supreme Court , in Schmerber v. California, held that law enforcement's blood draw of the defendant and person suspected of DUI was lawful despite the fact that the blood draw was taken without the issuance of a warrant because an emergency existed that did not provide the opportunity to seek out a neutral and detached magistrate because the accused had to be taken to the hospital, and the scene of the accident required significant investigation.

 

The differences between McNeely and Schmerber are many. The clearest distinction is that McNeely was not in an accident, no one was injured, and he did not have to go the hospital. Thus, unlike in Schmerber, no emergency existed. Another difference between McNeely and Schmerber is the passage of time the advances in technology especially forms of communication, i.e., email, texting, scanning, instant messaging, etc... Thus, the ability to get a warrant in 1966, the year of the Schmerber opinion, the task of getting a warrant signed was much more arduous then the task is today. Today, a warrant can be typed, emailed to a judge from a laptop in a patrol car, and returned electronically signed in an instant. (This is how officers were getting warrants to take blood in DUI cases in Brevard County, See State v. Gregory G. Geiss). Thus, in this day and age, the facts in Schmerber may not be sufficient to allow for a blood draw without seeking a warrant and issuance of said warrant.

 

Since the McNeely decision, a question has arisen: Does Florida Statute 316.1933, on its face, violate the warrant requirement found in the Fourth Amendment to the U.S. Constitution? Further, does Florida Statute 316.1933 violate the Fourth Amendment as applied in particular situations?

 

Florida Statute 316.1933 provides:

 

(1)(a) If a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances, or any controlled substances has caused the death or serious bodily injury of a human being, a law enforcement officer shall require the person driving or in actual physical control of the motor vehicle to submit to a test of the person's blood for the purpose of determining the alcoholic content thereof or the presence of chemical substances as set forth in s. 877.111 or any substance controlled under chapter 893. The law enforcement officer may use reasonable force if necessary to require such person to submit to the administration of the blood test. The blood test shall be performed in a reasonable manner. Notwithstanding s. 316.1932, the testing required by this paragraph need not be incidental to a lawful arrest of the person.

 

The above statute does not look at particular facts from a particular case as is required by the United States Supreme Court's opinion in McNeely. Thus, on its face, 316.1933 could be held unconstitutional. Further, due to the advances in technology the emergency that once existed in Shmerber no longer exist. Thus, just because someone is injured, or perhaps unfortunately deceased, the exigency (immediacy) of the situation is not increased. The ability to get a warrant still exist.
 
Ultimately, it is the author's opinion that the constitutionality of Florida Statute 316.1933 will be done on a case by case basis as it applies to each individual case.
 
If you've been charged with DUI in Seminole County or Orange County please call for a complimentary consultation 407-865-8888.

Charged with Possession of Cocaine? Appellate Court Reversing Convictions

Blog

Charged with Possession of Cocaine? Appellate Court Reversing Convictions

Date: 08-24-2013

Just yesterday, August 23rd, 2013, the Fifth District Court of Appeals (the appellate court for Seminole CountyOrange County, Volusia County and Brevard County) released two opinions (neither opinion is final until the time for rehearing has passed, i.e., 15 days) where both defendants' were charged with possession of cocaine under Florida Statute 893.13 and possession of a controlled substance with the intent to sell or deliver (one was cannabis the other a schedule four substance).

 

In both cases, the attorneys for the defendants moved the court to suppress the evidence, i.e., the cocaine, cannabis, and schedule four substance seized by the law enforcement officers. In both cases the trial court denied the defendants' motions to suppress, and in both cases the Fifth District Court of Appeals reversed those decisions, informing the trial court that the evidence should have been suppressed and as a result the convictions of the defendants for possession of cocaine and possession of a controlled substance with intent to sell must be reversed. Also of interest, both cases were decided on an interpretation of reasonable suspicion despite the fact that the initial seizures by law enforcement were based on a different basis for a traffic stop; (to be discussed more later).

 

The names of the cases are William Andrew Price v. the State of Florida, 38 Fla. L. Weekly D1797a, and Croix Michael Carter v. the State of Florida, 38 Fla. L. Weekly D1802a.

 

As previously stated, at least to some degree, both cases address the initial seizure of the defendant, and in doing so, in both cases, the Fifth District Court of Appeals found that the initial seizures of the defendant were unlawful, at least based on the evidence presented at the hearings. In both cases, the Court found that the officers lacked a reasonable suspicion required to conduct these seizures.

 

In Price v. State, the defendant was walking out of a pharmacy with a white bag, got into a vehicle, made some movements not indicative of a hand to hand transaction, and drove away. The officers conducted a traffic stop of this vehicle that did not commit any traffic infractions. The Fifth District Court of Appeals found that the officers did not have the requisite level of reasonable suspicion necessary to conduct the investigatory stop of the vehicle (i.e. a traffic stop).

 

The Court defined reasonable suspicion as follows:

 

The whole mosaic, the totality of circumstances, must be taken into account. "The detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity." In defining particularity, the Court requires that the basis for the detention be grounded in specific and articulable facts. Unparticularized suspicions or hunches will not suffice.

 

After defining reasonable suspicion, the Fifth District Court of Appeals found that the officers lacked reasonable suspicion in this case. The Court went on to explain that if the facts in Price led to a finding that there was a reasonable suspicion, "the demarcation between reasonable suspicion and the forbidden hunch would be eviscerated."

 

Ultimately, Mr. Price's convictions for possession of cocaine, and possession of a schedule IV controlled substance with intent to sell or distribute have been reversed.

 

In Carter v. State, the Fifth District Court of Appeals came to the same conclusion as in Price, that there was insufficient reasonable suspicion of criminal activity for the initial seizure, and thus reversed the convictions for possession of cocaine, and possession of cannabis with intent to sell or distribute. The basis for the Court's decision was slightly different here, however.

 

In Carter, the basis for the initial seizure was the allegation that the Defendant ran a stop sign. However, at the hearing, the only officer that testified could not recall if he actually saw the defendant run the stop sign or if his partner did. The trial court found that despite this vague testimony, the burden of reasonable suspicion had been satisfied. The Fifth District Court of Appeal disagreed. The Fifth District Court of Appeals decision in Carter was based on the nature of the testimony and not whether the alleged allegation provided reasonable suspicion, but whether the testimony provided a substantial competent basis that the actual allegation occurred. This is different than in Price, where there is no dispute as to whether the conduct occurred or whether the allegations were supported by competent evidence, but the issue was did the alleged conduct arise to the level of reasonable suspicion.

 

Because the only officer that testified in Carter could not substantially and competently testify that the defendant ran the stop sign the Fifth DCA reversed his convictions for possession of cocaine and possession with intent to sell or distribute cannabis. The Fifth DCA explained:

 

"'Competent, substantial evidence has been defined as ‘such evidence as will establish a substantial basis of fact from which the fact at issue can reasonably be inferred.’” C.M. v. Dep’t of Children & Families, 823 So. 2d 182, 183 (Fla. 5th DCA 2002) (quoting Duval Util. Co. v. Fla. Pub. Serv. Comm’n, 380 So. 2d 1028, 1031 (Fla. 1980)). Substantial evidence must be something more than a “mere iota or scintilla,” must have real probative value, and must be “real, material, pertinent and relevant.'Rahyns v. State, 752 So. 2d 617, 620 (Fla. 4th DCA 1999). "

 

The Fifth DCA's ruling was based on the competent, substantial evidence standard. The Court, however, did address the fellow officer rule (Florida Statute 901.15(5)) in its opinion in Carter. Of interest, in doing so, the Court noted that an officer is justified in relying on another officer's observations if those observations have been communicated to him.

 

Ultimately, both of the parties charged here with possession of cocaine, and possession with intent to sell or distribute did not prevail at the trial court but did so on appeal. Even if you have been convicted of these offenses you should call an attorney to see if you have any recourse. Time is of the essence as you only have thirty days after the conviction to begin the appellate process. (See Florida Rule of Appellate Procedure 9.110).

Blog Posts

Helpful Links

The information found on The Law Offices of Matthews R. Bark is for general information purposes only. Nothing on this site should be taken as legal advice for any situation or individual case. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
© 2013 - 2019 All Rights Reserved.

Serving Seminole County & Orange County.

  999 Douglas Ave #3317, Altamonte Springs, FL 32714

Driving While License Suspended or Revoked Habitual Traffic Offender

Blog

Driving While License Suspended or Revoked Habitual Traffic Offender

Date: 08-23-2013

Have you entered a plea to driving while license suspended or revoked pursuant to Florida Statute 322.34 and found out later that your driver's license would be suspended for five years? You may be eligible to withdraw your plea pursuant to Florida Rule of Criminal Procedure 3.172.

 

If the court did not inform you that you could lose your driver's license as a result of your plea you are entitled to have the court withdrawal your plea and vacate your sentence. As a result, the DHSMV will have to set aside the habitual traffic offender extended suspension of your driver's license that may have occurred under Florida Statute 322.264.

 

This issue was recently addressed by the Third District Court of Appeals in the case of State of Florida v. Jonathan Aiden. The Third District Court of Appeal ultimately held:

 

"The record in Aiden’s case is devoid of any showing that the trial court so advised Aiden during the 2010 plea colloquy, as required by the rule in effect at the time of Aiden’s plea. This supports Aiden’s claim on appeal that he was not properly advised by the trial court that one of the consequences of his plea might be ineligibility for a driver’s license. For this reason, the trial court correctly granted Aiden’s motion to withdraw his 2010 plea and vacated that conviction."

 

Ultimately, if you have pled to an offense that requires that your driver's license be suspended as a result of the plea, such as possession of cannabis or another controlled dangerous substance, cocaine, heroin, Xanax, or oxycodone, you may be eligible to have said plea withdrawn if you were not advised your driver's license would be suspended.

Blog Posts

Battery Domestic Violence GPS

Blog Battery Domestic Violence GPS Date: 02-15-2014 Yesterday I attended the Orange County Bar Association Criminal Law Section’s continuing legal education course on domestic violence. The Honorable Judge

Read More »

Helpful Links

The information found on The Law Offices of Matthews R. Bark is for general information purposes only. Nothing on this site should be taken as legal advice for any situation or individual case. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.
© 2013 - 2019 All Rights Reserved.

Serving Seminole County & Orange County.

  999 Douglas Ave #3317, Altamonte Springs, FL 32714

DUI Seminole County Florida Amendments to the License Suspension Statute

Blog

DUI Seminole County Florida Amendments to the License Suspension Statute

Date Updated: 07-15-2017

On July 1st of 2013, the statute, Florida Statute 322.2615, governing the license suspension as a result of being arrested for DUI in Florida changed.

 

Before I address the changes lets discuss the process. You were arrested for DUI in the State of Florida, whether it be in Seminole County or Orange County, or for that matter, anywhere in the State of Florida. The officer took away your driver's license, at least he should have. The question you are probably asking is what now? Can I drive?

 

The answer is a bit more complicated than a simple yes or no. Initially, the ticket the Officer gave you for DUI will be your driver's license for ten days. That has not changed. What comes next, however, is a change from the previous statute.

 

It used to be, under the former statute 322.2615, in order to get a permit to drive that the arrested had to request a formal review hearing. The formal review hearing would be set and prior to said hearing, the arrested would receive a permit to drive. Now, under the new section 322.2615(1)(b)3, if you are otherwise eligible for a hardship license under now Florida Statute 322.271(7), you can apply for a hardship license for the duration of the license suspension in lieu of requesting a formal or informal review hearing.

 

Florida Statute 322.271(7) reads as follows:

 

(7) Notwithstanding the provisions of s. 322.2615(10)(a) and (b), a person who has never previously had a driver license suspended under s. 322.2615, has never been disqualified under section s. 322.64, has never been convicted of a violation of s. 316.193, and whose driving privilege is now suspended under section s. 322.2615 is eligible for a restricted driving privilege pursuant to a hearing under section (2).(a) For purposes of this subsection, a previous conviction outside of this state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, or any other alcohol-related or drug-related traffic offense similar to the offense of driving under the influence as provided in s. 316.193 will be considered a previous conviction for a violation of s. 316.193, and a conviction for violation of former s. 316.028, former s. 316.1931, or former s. 860.01 is considered a conviction for a violation of s. 316.193.
 
(b) The reinstatement shall be restricted to business purposes only, as defined in this section, for the duration of the suspension imposed under s. 322.2615.
 
(c) Acceptance of the reinstated driving privilege as provided in this subsection is deemed a waiver of the right to formal and informal review under s. 322.2615. The waiver may not be used as evidence in any other proceeding.
 

Thus, now, after you are arrested, within 10 days of this arrest you must decide whether you want to apply for a hearing to review your driver license suspension or request a hearing to get your permit. The DHSMV has informed this attorney that you will have to have the hardship hearing within 10 days of your arrest. Further, in order to get your hardship license, you must be in compliance with Florida Statute 322.271, which means you must have enrolled in a DUI class pursuant to Florida Statute 316.193(5).

 

It may seem like a no brainer to simply enroll in the DUI class and to get a hardship license. However, this is a costly process, number one. Number two, if you got in an accident, or can't afford any indication of this offense on your record it may benefit you to have a formal review hearing.

 

Ultimately, despite this major change, that will inure to the benefit of many, it is my recommendation that you consult an attorney immediately. The determination of how to proceed after being arrested for DUI, whether it be in Seminole County, Orange County or anywhere else in Florida must be done quickly.

 

Unfortunately, if you have previously been convicted of DUI or had your driver's license suspended as a result of being arrested for DUI you are not eligible for this new option of forgoing a review hearing and getting a hardship permit for the duration of your license suspension.

 

In order to assist attorneys and those recently arrested for DUI I have included the new Florida Statute 322.2615 below:

 

322.2615. Suspension of license; right to review
(1)(a) A law enforcement officer or correctional officer shall, on behalf of the department, suspend the driving privilege of a person who is driving or in actual physical control of a motor vehicle and who has an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher, or of a person who has refused to submit to a urine test or a test of his or her breath-alcohol or blood-alcohol level. The officer shall take the person's driver's  license and issue the person a 10–day temporary permit if the person is otherwise eligible for the driving privilege and shall issue the person a notice of suspension. If a blood test has been administered, the officer or the agency employing the officer shall transmit such results to the department within 5 days after receipt of the results. If the department then determines that the person had a blood-alcohol level or breath-alcohol level of 0.08 or higher, the department shall suspend the person's driver's license pursuant to subsection (3).(b) The suspension under paragraph (a) shall be pursuant to, and the notice of suspension shall inform the driver of, the following:
 
1. a. The driver refused to submit to a lawful breath, blood, or urine test and his or her driving privilege is suspended for a period of 1 year for a first refusal or for a period of 18 months if his or her driving privilege has been previously suspended as a result of a refusal to submit to such a test; or
 
b. The driver was driving or in actual physical control of a motor vehicle and had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher and his or her driving privilege is suspended for a period of 6 months for a first offense or for a period of 1 year if his or her driving privilege has been previously suspended under this section.
 
2. The suspension period shall commence on the date of issuance of the notice of suspension.
 
3. The driver may request a formal or informal review of the suspension by the department within 10 days after the date of issuance of the notice of suspension or may request a review of eligibility for a restricted driving privilege under s. 322.271(7).
 
4. The temporary permit issued at the time of suspension expires at midnight of the 10th day following the date of issuance of the notice of suspension.
 
5. The driver may submit to the department any materials relevant to the suspension.
(2)(a) Except as provided in paragraph (1)(a), the law enforcement officer shall forward to the department, within 5 days after issuing the notice of suspension, the driver's license; an affidavit stating the officer's grounds for belief that the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances; the results of any breath or blood test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer or correctional officer and that the person refused to submit; the officer's description of the person's field sobriety test, if any; and the notice of suspension. The failure of the officer to submit materials within the 5–day period specified in this subsection and in subsection (1) does not affect the department's ability to consider any evidence submitted at or prior to the hearing.
 
(b) The officer may also submit a copy of the crash report and a copy of a video recording  of the field sobriety test or the attempt to administer such test. Materials submitted to the department by a law enforcement agency or correctional agency shall be considered self-authenticating and shall be in the record for consideration by the hearing officer. Notwithstanding s. 316.066(5), the crash report shall be considered by the hearing officer.
 
(3) If the department determines that the license should be suspended pursuant to this section and if the notice of suspension has not already been served upon the person by a law enforcement officer or correctional officer as provided in subsection (1), the department shall issue a notice of suspension and, unless the notice is mailed pursuant to s. 322.251, a temporary permit that expires 10 days after the date of issuance if the driver is otherwise eligible.
 
(4) If the person whose license was suspended requests an informal review pursuant to subparagraph (1)(b)3., the department shall conduct the informal review by a hearing officer designated by the department. Such informal review hearing shall consist solely of an examination by the department of the materials submitted by a law enforcement officer or correctional officer and by the person whose license was suspended, and the presence of an officer or witness is not required.
 
(5) After completion of the informal review, notice of the department's decision sustaining, amending, or invalidating the suspension of the driver's license of the person whose license was suspended must be provided to such person. Such notice must be mailed to the person at the last known address shown on the department's records, or to the address provided in the law enforcement officer's report if such address differs from the address of record, within 21 days after the expiration of the temporary permit issued pursuant to subsection (1) or subsection (3).
 
(6)(a) If the person whose license was suspended requests a formal review, the department must schedule a hearing within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing.
 
(b) Such formal review hearing shall be held before a hearing officer designated by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses identified in documents provided under paragraph (2)(a) in subsection (2), regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension. The hearing officer may conduct hearings using communications technology. The party requesting the presence of a witness shall be responsible for the payment of any witness fees and for notifying in writing the state attorney's office in the appropriate circuit of the issuance of the subpoena. If the person who requests a formal review hearing fails to appear and the hearing officer finds such failure to be without just cause, the right to a formal hearing is waived and the suspension shall be sustained.
 
(c) The failure of a subpoenaed witness to appear at the formal review hearing is not grounds to invalidate the suspension. If a witness fails to appear, a party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides or by filing a motion for enforcement in any criminal court case resulting from the driving or actual physical control of a motor vehicle that gave rise to the suspension under this section. A failure to comply with an order of the court shall result in a finding of contempt of court. However, a person is not in contempt while a subpoena is being challenged.
 
(d) The department must, within 7 working days after a formal review hearing, send notice to the person of the hearing officer's decision as to whether sufficient cause exists to sustain, amend, or invalidate the suspension.
 
(7) In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension. The scope of the review shall be limited to the following issues:
 
(a) If the license was suspended for driving with an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher:
 
1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.
 
2. Whether the person whose license was suspended had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher as provided in s. 316.193.
 
(b) If the license was suspended for refusal to submit to a breath, blood, or urine test:
 
1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.
 
2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.
 
3. Whether the person whose license was suspended was told that if he or she refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.
 
(8) Based on the determination of the hearing officer pursuant to subsection (7) for both informal hearings under subsection (4) and formal hearings under subsection (6), the department shall:
 
(a) Sustain the suspension of the person's driving privilege for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such tests, if the person refused to submit to a lawful breath, blood, or urine test. The suspension period commences on the date of issuance of the notice of suspension.
 
(b) Sustain the suspension of the person's driving privilege for a period of 6 months for a blood-alcohol level or breath-alcohol level of 0.08 or higher, or for a period of 1 year if the driving privilege of such person has been previously suspended under this section as a result of driving with an unlawful alcohol level. The suspension period commences on the date of issuance of the notice of suspension.
 
(9) A request for a formal review hearing or an informal review hearing shall not stay the suspension of the person's driver's license. If the department fails to schedule the formal review hearing to be held within 30 days after receipt of the request therefor, the department shall invalidate the suspension. If the scheduled hearing is continued at the department's initiative or the driver enforces the subpoena as provided in subsection (6), the department shall issue a temporary driving permit that shall be valid until the hearing is conducted if the person is otherwise eligible for the driving privilege. Such permit may not be issued to a person who sought and obtained a continuance of the hearing. The permit issued under this subsection shall authorize driving for business or employment use only.
 
(10) A person whose driver's license is suspended under subsection (1) or subsection (3) may apply for issuance of a license for business or employment purposes only if the person is otherwise eligible for the driving privilege pursuant to s. 322.271.
 
(a) If the suspension of the driver's license of the person for failure to submit to a breath, urine, or blood test is sustained, the person is not eligible to receive a license for business or employment purposes only, pursuant to s. 322.271, until 90 days have elapsed after the expiration of the last temporary permit issued. If the driver is not issued a 10–day permit pursuant to this section or s. 322.64 because he or she is ineligible for the permit and the suspension for failure to submit to a breath, urine, or blood test is not invalidated by the department, the driver is not eligible to receive a business or employment license pursuant to s. 322.271 until 90 days have elapsed from the date of the suspension.
 
(b) If the suspension of the driver's license of the person relating to unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher is sustained, the person is not eligible to receive a license for business or employment purposes only pursuant to s. 322.271 until 30 days have elapsed after the expiration of the last temporary permit issued. If the driver is not issued a 10–day permit pursuant to this section or s. 322.64 because he or she is ineligible for the permit and the suspension relating to unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher is not invalidated by the department, the driver is not eligible to receive a business or employment license pursuant to s. 322.271 until 30 days have elapsed from the date of the suspension.
 
(11) The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to the administration of a breath test or blood test or the refusal to take either test or the refusal to take a urine test. However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test. If the arresting officer or the breath technician fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension.
 
(12) The formal review hearing and the informal review hearing are exempt from the provisions of chapter 120. The department may adopt rules for the conduct of reviews under this section.
 
(13) A person may appeal any decision of the department sustaining a suspension of his or her driver's license by a petition for writ of certiorari to the circuit court in the county wherein such person resides or wherein a formal or informal review was conducted pursuant to s. 322.31. However, an appeal shall not stay the suspension. A law enforcement agency may appeal any decision of the department invalidating a suspension by a petition for writ of certiorari to the circuit court of the county wherein a formal or informal review was conducted. This subsection shall not be construed to provide for a de novo review.
 
(14)(a) The decision of the department under this section or any circuit court review thereof may not be considered in any trial for a violation of s. 316.193, and a written statement submitted by a person in his or her request for departmental review under this section may not be admitted into evidence against him or her in any such trial.
 
(b) The disposition of any related criminal proceedings does not affect a suspension for refusal to submit to a blood, breath, or urine test imposed under this section.
 
(15) If the department suspends a person's license under s. 322.2616, it may not also suspend the person's license under this section for the same episode that was the basis for the suspension under s. 322.2616.
 
(16) The department shall invalidate a suspension for driving with an unlawful blood-alcohol level or breath-alcohol level imposed under this section if the suspended person is found not guilty at trial of an underlying violation of s. 316.193.