The U.S. Supreme Court in Missouri v. McNeely held that compelling a potential drunk driver to submit to a blood test without a warrant is prohibited by the 4th Amendment protection against unreasonable search and seizures. In individual cases, exigent circumstances may permit a compelled blood draw based on the totality of the circumstances. In drunk driving cases, the natural dissipation of alcohol in the bloodstream does not constitute per se exigency sufficent to skip the constitutionally mandated step of getting a warrant. This is not to say that there couldn’t be circumstances that could compel a driver who refuses to provide a breath sample to succumb to a needle prick to take a blood draw from a vein, but it will be scrutinized much more carefully and have to have facts and circumstances to support it.
The Eleventh Circuit Court of Appeals in US v. Thompson found that in a case involving felon in possession of a firearm in violation of 18 U.S.C. section 922(g)(1), the Defendant must have had at least two of the three “civil rights” restored to not be in violation of the statute. Thus, when Thompson was charged with being a felon in possession of a firearm based on a 1994 state conviction, he defended the case claiming that his civil rights had been restored in 2005. In actuality, Thompson only regained his right to vote, but not to serve on a jury or to hold public office. The Eleventh Circuit held that because Thompson had only 1 or his 3 civil rights restored, he was still in violation of the statue for possessing a firearm.
The Tampa Tribune Reader’s Poll of 2012 has rated Palmieri Law as the Best Law Firm in its Reader’s Poll of 2012. This was a result of countless reader’s voting and confirming the hard work that Lori Doganiero Palmieri and her staff has worked hard to achieve over the last 9 years in private practice. If you or a loved one is in need of criminal defense representation in state or federal court, why not go to the best – the expert in Criminal Trial Law – Palmieri Law.
Floridians have been waiting for a definitive answer from the State Supreme Court on whether Florida’s Drug Statute, Sec. 893.13 is constitutional. On Thursday they determined it passes constitutional muster. The full opinion is attached.
On May 7, 2011, TP, an 8 year USAF veteran, honorably discharged, went to Ybor City with his cousin. He and his (girl)friend had a disagreement when leaving a bar. A group of men from Manatee County insinuated themselves into their argument and started disparaging the woman with obscenities and vulgar comments. She pushed one of the men. A fight nearly occurred, although the client was always trying to calm the situation and quash the violence. When the client ran to get his car from a nearby lot, the traffic was bumper to bumper. Fearful that his cousin and friend would be jumped by this group, he drove on the wrong side of the road and accidently struck the same gentleman in the argument in the street. He was charged with Aggravated Battery with a Deadly Weapon accused of intentionally running the man down in the street with his vehicle. He was immediately arrested. It took over a year to come to trial. The state’s investigation was very poor. The defense presented his two witnesses that law enforcement refused to take a statement from that night. The defense also introduced a forensic engineer who performed accelleration testing on the client’s vehicle. It was proven that his 4-cyl car could not generate the reported 35-40 mph speed in just 30 yards. The state’s witnesses statements differed from those originally taken. The client testified it was an accident as well. The jury took less than an hour to acquit him. The court excluded any testimony that the client suffered from PTSD due to his combat time in Iraq. The client was a medic in the Air Force and was studying to become a RN. There was no reason for him to retaliate against this accident victim. The court also excluded the victim’s twice the legal limit of alcohol plus cocaine and marijuana in his system.
I have a lot of folks asking general questions about Violations of Probation, which can also include Violations of Community Control or house arrest. First, once a supervising officer becomes aware of either a new law violation or a technical violation of the rules, he must report it to the court. The judge then determines if a warrant should issue for the alleged violations. That can take anywhere from a few days to several weeks depending on the severity of the allegations and the county. Once a warrant is served, the defendant generally is held without bond. That means you will sit in custody until you can get in front of a judge (other than your first appearance) to try to resolve the violation. That can last from days to weeks. The course of action that I suggest to my clients is to calendar a turn-in to the court and try to resolve the violation all in the same day. Often times there is sufficient reason to continue on supervision and avoid jail or prison time. You want someone advocating your position instead of sitting back and waiting for the system to get to you.
In Florida, felonies are scored according to written sentencing guidelines on a scoresheet. A violation results in 6 additional points, (12 for a new felony conviction) and may get a defendant in excess of 44 points that will tip the scales toward prison time. The amount of time a person could potentially get for a violation of probation is a function of their original scoresheet and how many points have been assessed. The judge is free to sentence a defendant up to the statutory maximum for the underlying charge, i.e. 3rd Degree felony up to 5 years, 2nd degree felony up to 15 years and 1st degree felony up to 30 years.
Violation sentences can be dependant on what efforts the probationer has made toward their financial and treatment obligations. The goal is to get supervision reinstated and get the probationer off supervision as soon as possible. That takes some ingenuity and talent and bit of luck.
A Pinellas County Sheriff’s Office Detective wore a Progress Energy uniform to enter a homeowner’s property sniffing for growing marijuana. Luckily for the homeowner, there was none, but that did not stop the ruse from being discovered. An attorney representing other clients accused of growing marijuana got the admissions of this illegal activity from the detective in a sworn deposition. The attorney showed the transcript to the Sheriff who said “he was appalled by it.” Remember that law enforcement can search property with consent, but if a homeowner doesn’t know who they are opening the door for, the alleged consent is not valid. If you don’t want to open your door to the police, you don’t have to unless they have a warrant to serve. Know who is at your door before you open it. Progress Energy told the newspaper that it did not condone the use of it’s uniforms and customers can always check the identity of their workers through their customer service department.
The United States Supreme Court decided today the case of United States v. Antoine Jones. They sought and obtained a search warrant permitting it to install a Global-Positioning-System (GPS) tracking device on a vehicle registered to Jones’ wife. The government was authorized to install the tracking device within 10 days in Washington, DC from the date of the warrant. The agents installed the device on the 11th day and in Maryland. The government tracked the movement of the vehicle for 28 days and later indicted Jones and others on drug trafficking and conspiracy charges. The trial court suppressed the GPS data while the car was parked at Jones’ residence but not while it traversed the city claiming Jones had no reasonable expectation of privacy on public streets.
Jones was later convicted and appealed. The D.C. Circuit reversed finding that the Fourth Amendment was violated by the introduction of the evidence obtained from the warrantless use of the GPS device.
The United States Supreme Court held that hte government’s attachment of the GPS device to the vehicle, and its use of the device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.
This is an important decision of the Supreme Court preserving our individual rights against unreasonable searches and seizures by the government. No longer will law enforcement be able to install and monitor a vehicle with a GPS device without a valid court order.
A federal district judge in Manhattan says she is “keenly aware” of convictions set aside because jurors have looked up information on the Internet during trial, the New York Times reports. Judge Shira Scheindlin suggested a way to combat the problem by requiring jurors to sign a pledge promising they will not look up case related information online until the case is over. Violations of the pledge could bring perjury charges against jurors who fail to comply.
As most jurors have iPhones or Blackberrys with them when reporting for jury duty, how often do jurors fail to adhere to the admonition by the trial judge not to watch the news, read newspapers or surf the web during the trial? Because trials are only fair if the only evidence considered by the jury is what is presented in court, looking up information on the internet clearly requires reversal if it occurs and is known. Particularly in cases with a great deal of news coverage, it could certainly affect the outcome of the case should outside infomation infiltrate the jury’s deliberations. Consider making this request during jury selection of the trial judge in your case should you be a criminal defendant, particularly in a case with excessive media coverage.
The United States Court of Appeals for the Eleventh Circuit in Atlanta lifted the stay of execution order in the case of Manuel Valle, allowing Valle’s twice-delayed execution to move forward. This paves the way for Governor Rick Scott to reschedule Valle’s execution. Scott has 10 days to order the execution after a stay is lifted.
Valle is still hoping that pleadings pending in federal court in Jacksonville and before the U.S. Supreme Court will delay his execution yet again.