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.
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 circuit court judge in Palm Beach Florida, unlike Miami-Dade Judge Milton Hirsch, upheld the constitutionality of Florida’s drug statute. In a 16-page opinion, Judge Kastrenakes blasted U.S. District Judge Mary Scriven and Circuit Judge Hirsch arguing they disregarded a plethora of appeals court decisions to reach their erroneous conclusion that the law is unconstitutional because prosecutors don’t have to prove that a person knew he possessed illegal drugs to get a conviction. Mere possession is enough, the judge wrote. Their rulings, he claimed were “fatally-flawed” and “just plain inaccurate.”
Judges in Hillsborough and Pinellas Counties have thus far denied all motions to dismiss 893.13 charges. Appeals have been taken from Judge Scriven’s ruling as well as in South Florida. This issue will have to end up before the Supreme Court to decide.
After the trial is over, the work of the criminal defense attorney is done and the convicted felon has served his or her time, the next step is reentering society and the reinstatement of civil rights.
Along those lines, this past March the Clemency Board approved changes to the clemency rules. The most controversial change reinstated a requirement that those seeking restoration must not only submit an application, but also go through a minimum five-year waiting period. If and when a convicted felon is eligible for reinstatement, the applicant must receive approval by the governor and two Cabinet members.
Attorney General Pam Bondi released a special statement to the St. Petersburg Times justifying her decision to adjust the clemency rules. “My goal in approving the new rules was to restore respect for the rights of law-abiding citizens and to reinforce the fact that every felony is a serious breach of the bonds that unite our society.” With the added requirements to request approval and serve a mandatory wait period, all applicants are expected to live crime-free which in theory, would decrease the percentage of felons returning to prison.
Some opponents to the changes argue that if the prisoners have served all of their time and paid their fines, civil rights should be restored – and that extending a convicted felon’s restrictions sends the message that they are not worthy to re-enter society.
Petitions have been signed and debates have risen in whether or not the changes are constitutional. With a clemency meeting approaching (September 22) here is a document defining and explaining the revised clemency rules.
With the increase in prescription drug-related deaths in Florida, Governor Rick Scott established the Drug Enforcement Strike Force to crackdown on Florida’s pill mill crisis. Yesterday, Attorney General Pam Bondi issued a statement with the results.
She stated that because of the collaborative efforts with the Drug Enforcement Strike Force, an immense amount of prescription drugs are no longer being dispensed illegally.
According to The Attorney General’s news release, the efforts include:
- Partnering with government officials to combat pill mills and prescription drug abuse (stricter administrative and criminal penalties)
- Prosecute prescription drug-related cases through the Office of Statewide Prosecution when illegal activity spans multiple jurisdictions.
“The fact that prescription drug-related deaths have increased since 2009 is crushing, and with our continued efforts I am confident that these reports will reflect positive changes in the future…” Attorney General Pam Bondi says.
The fight against prescription drug abuse has already resulted in hundreds of arrests, the seizure of thousands of pharmaceutical pills and an increased caseload for many Florida criminal law attorneys.
Announced today, the Governor and Cabinet will recognize August 27 as “Prescription Drug Take-Back Day” giving citizens the opportunity to safely get rid of prescription drugs.
Mary S. Scriven, United States District Judge for the Middle District of Florida, Orlando Division, held Florida Statute 893.13, Florida’s drug statute, unconstitutional in an order filed on July 27, 2011. In accord with Rule 57 of the Federal Rules of Civil Procedure, a Declaratory Judgment shall be entered separately, declaring Florida Statute, 893.13 unconstitutional. In her 43 page order, Judge Scriven granted Petitioner, Mackle Vincent Shelton’s Petition for Writ of Habeas Corpus under 28 U.S.C. Section 2255.
Click for the full text of the opinion.
Overview: In 2010, Congress passed the Fair Sentencing Act (FSA) which increased the amounts of crack cocaine that triggered the mandatory minimum sentences for federal crack cocaine crimes. The effect was to lower crack cocaine sentences. The FSA also narrowed the ratio between the powder and crack cocaine offenses from 100:1 to 18:1. Under the old law, a five (5) year mandatory minimum sentence was in place for possessing with the intent to distribute 5 grams of crack or 500 grams of powder cocaine. Under the new law, 28 grams of crack and 500 grams of cocaine triggers the five (5) year minimum mandatory sentence.
Q. Will the 2011 crack cocaine guideline amendment be retroactive?
A. Yes. On June 30th, the Commission voted unanimously to make the amendment retroactive. This means approximately 12,040 federal crack offenders sentenced under the sentencing guidelines (U.S.S.G.) before November 1, 2010, may be eligible for sentence reductions.
Q. When does the retroactive crack amendment go into effect?
A. November 1, 2011
Q. How can federal prisoners serving time for crack cocaine offenses benefit from the amendment?
A. No one gets a sentence reduction automatically. A motion under 18 U.S.C. 3582©(2) must be filed in the court that sentenced the prisoner. The court will likely give the prosecutor the opportunity to oppose the reduction. The court can give all, part or none of the requested sentence reduction. There is no guarantee that any prisoner will receive a sentence reduction.
Q. Who is eligible to seek a sentence reduction based on the retroactive crack guidelines:
A. Prisoners are eligible to seek a sentence reduction if they:
- were convicted in federal court – it will not benefit people convicted in state court for state violations of crack offenses
- were convicted of a crime involving crack cocaine – it will not benefit people convicted of crimes involving other types of drugs
- were sentenced before November 1, 2010
- are serving a guideline sentence for crack cocaine – it will not benefit those serving a mandatory minimum sentence of five or ten years without any additional time under the sentencing guidelines.
- are not on supervised release
- are not in a federal halfway house – if you are already in a half-way house, you are likely to be released before the retroactive amendment goes into effect.
Q. Are career offenders eligible for sentence reductions?
A. Most likely no. Career offender sentences depend largely on the charge the person faced and the statutory maximum penalty that charge carries. A separate guideline section USSG 4B1.1 controls career offender sentences and was not reduced by this amendment.
Federal prisoners convicted for crack offenses and sentenced prior to November 1, 2010 should contact a federal criminal defense attorney in the district where they were sentenced to see legal representation to determine if they are eligible to see relief under this retroactive crack guideline amendment.
Currently, Florida’s death sentence policy is different than all other states in the US. Although some states have modified versions, Florida is the only state that allows the jury to recommend either the death penalty or life in prison decided on by majority vote. The judge then takes the recommendation into consideration but does not have to agree.
Last week in Miami, a Federal judge declared that Florida’s death sentence was unconstitutional because jurors are not required to explain what specific part of evidence they based their decision on. This is just one example of a situation where having a lawyer familiar with the Federal criminal code and Federal criminal sentencing could be beneficial.
According to an article from Tampa Bay Online, the ruling applies only to a specific case of a murderer currently on Florida’s Death Row, but there is reason to believe that this will spark many more challenges in the future.
So this brings us to the “hot topic” question… will this ruling have any effect on the outcome of the Casey Anthony case? The Anthony defense sure hopes so. Since word of Wednesday’s ruling from the Miami judge, Anthony’s defense team has “filed a motion to have the Florida death penalty declared unconstitutional.”
Anthony’s defense team decided to challenge the current death penalty days after their motion for a ruling of competence was disregarded. Three different psychologists saw Anthony and according to their findings, she is competent and the trial will proceed on Friday, and now on Monday news breaks that they have filed the motion. Coincidence?
UPDATE 7/6/11: With the acquittal yesterday of all murder charges, it isn’t applicable to the Casey Anthony case any longer.