U.S. Supreme Court rules in DUI Case

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.

General Violation of Probation Questions

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.

Who is at your door – the electric company or the police?

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.

S.Ct. holds that GPS is a Search under 4th Amendment

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.

Do Jurors Use Google During Trial?

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.

DUI Prosecution Made Easier?

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 lawyermay 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?

Letters From The Bar

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 theBoard 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.

Social Media’s Role in the Casey Anthony Case

The Casey Anthony trial was the first high-profile murder case to take place in the social media realm. The blogosphere went haywire; tweets and posts around the country were trending anything related to Casey Anthony. We saw the posts, even sent out a few tweets about the topic ourselves, but what did the defense think about all of the social media action? Some argue that they made their case based on it.

Prior to the trial, Amy Singer was hired by the defense (pro-bono) to help with the jury selection process and consultation during the trial. According to an article from Law.com, Singer was quoted saying that “the whole trial was social-media driven.”

Singer and her team searched thousands of blogs and posts before and during the trial to find out “what was annoying people about Anthony”. They wanted to hear the important negative comments so the defense could address the issues in their arguments.

For example, as soon as the bloggers and tweeters developed an opinion about George Anthony, Singer encouraged the defense to dig more information up and put him in the spotlight. The thought here was that if the public had such an agreed consensus towards certain evidence or topics, the jury may share the same thoughts.

The jury selection was very critical in this case, and according to some the trial was over after the jury was selected. The defense’s ideal juror was “bright and intelligent” and if they were talking about Casey Anthony, they were talking about the facts; i.e mentioning Caylee’s skull being found in a field as opposed to Casey’s alleged party girl persona.

Needless to say, all the posts, blogs and tweets involving anything to do with Casey Anthony were analyzed by the defense and taken into account for the development of the case. And for what it’s worth, the defense team did a proficient job using that information to help back the case.

Is social media another expertise that should be developed by criminal defense attorneys? Florida A&M professor Shiv Persaud thinks so.

“It definitely might become a part of my curriculum in trial practice. We could benefit from a new type of tool we didn’t have before.” 

It couldn’t hurt. Time is an obvious issue, but when searching for a criminal lawyer, check Facebook and Twitter. If they have a presence, that wouldn’t be a bad thing.

Open House Parties – Parents Beware

Florida House of Representatives voted unanimously for a new bill that could send a parent to jail for 364 days. . . if a minor is served drugs or alcohol at an “open house” party resulting in death or serious bodily injury. Lawyers for St. John’s county 52 year old mother charged with manslaughter for hosting a party that resulted in the death of a minor argued that her actions do not rise to the level of manslaughter.