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.
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 Intoxilyzer 8000 is the official breath-testing unit used in the State of Florida for suspected drunken drivers. The machine prints out a BAC (Blood Alcohol Content) report that is analyzed by a specialist and used as dominant evidence in court.
The Intoxilyzer 8000 is not a cheap piece of machinery and neither is the required expert that must be present in court to testify regarding the validity of the results. A Herald Tribune article stated that prosecutors for years felt their only option was to hire “Matthew Malhiot, a former Florida Department of Law Enforcement employee who charged them $1,200 a day to appear in court.” Facing such a large expense, prosecutors decided they wanted to cut ties with Malhiot and hire current FDLE employees to testify instead.
On Thursday, a Sarasota County judge approved the decision to allow state employees to say that the machine is scientifically reliable and that the results are valid. Criminal defense attorneys, especially those who specialize in DUI defense, may find this decision surprising. The expert who analyzes the machine’s data is supposed to be independent and impartial to the trial. Having a state employee (one who often testifies in DUI cases anyways) as the witness who validates the reliability of the Intoxilyzer 8000 could be viewed as a conflict of interest. Although this may save money and make prosecuting easier in DUI cases, the job of the criminal defense lawyer may become more difficult. It will be interesting, however, to see if an argument surrounding this possible conflict of interest emerges as a plausible DUI defense.
If FDLE is going to testify that their own procedures are scientifically valid, where’s the unbiased opinion that court’s should rely on?
I am honored to have received a personalized letter of thanks for the second year in a row from the Bar President in regards to my time and efforts spent with the Criminal Law Certification Committee. I feel privileged enough to be able to serve as chair of a Committee, which, as Mayanne Downs put it, “Our committees have always been the grassroots of our existence.” To receive personalized thank-you letters makes the experience even more rewarding.
For those who serve along side me on the Bar Committee, I’d like to thank you for a great year as well. I look forward to what is to come and appreciate all of the hours we have spent together devoted to the Board Certification Program. I am confident that the future will be great, if not better, than the past two years thanks to Presidents Mayanne Downs and Jesse H. Diner.
The Florida Board of Legal Education and Specialization has Re-Certified Lori Doganiero Palmieri as a Board Certified Criminal Trial Law Specialist through July 2015. Ms. Palmieri has been Board Certified in Criminal Trial Law since 2000. She was asked to serve on the Bar’s Certification Committee in 2005 and currently sits as the Chair of the committee through summer of 2011.