Legal Blog - Page 45 of 48

Apr 13, 2012 | By Jay Rooth | Read Time: 2 minutes | Domestic Violence

Man who Killed Thief is Freed Based on Florida’s “Stand Your Ground” Law

A Florida judge has dismissed a murder charge against a man who chased and fatally stabbed a car radio thief in Miami’s Little Havana area in January. In the wee hours of the night the accused man discovered two people in his truck stealing his car radio. Alarmed, they ran off. Carrying a knife, he chased one of them. When he caught up with the thief, the thief tried to hit him with a bag containing three stolen car radios, weighing about four to six pounds. The radio owner ducked the blow and mortally stabbed the thief. Over the next hours, the accused man failed to report the incident, but police eventually found him and questioned the man about the incident. He ultimately admitted to his role after viewing a surveillance video showing the confrontation, leading to police charging the man with murder. Reviewing the facts, the judge stated that the accused man was justified in chasing the thief to try to recover his property. She was convinced that the accused felt threatened when the thief swung a heavy bag of metal objects at him. Citing Florida’s 2005 Stand Your Ground law, she determined that the law protected him from being charged with murder under the circumstances. Under that law, a citizen does not have a duty to retreat when threatened but can lawfully use force when attacked – which can be applied as a defense in a wide variety of cases ranging from shootings to domestic violence. The man was represented by a public defender who welcomed the judge’s decision. The judge gave credit to the public defender’s office’s hard work in protecting their client’s constitutional rights. This case has likely received extra attention in the wake of the highly publicized and controversial killing of 17-year-old Trayvon Martin by an armed neighborhood watch member. The neighborhood watch member has similarly invoked Florida’s Stand Your Ground law in defending his actions.

Apr 4, 2012 | By Jay Rooth | Read Time: 2 minutes | Drug Charges

GPS Trackers are everywhere!

Ever since GPS trackers entered the retail market, law enforcement has been searching for ways to maneuver it into their criminal and drug crimes investigation arsenal. Over the years, I have had several clients inform me that they have found a mysterious device on their vehicle. After a clear inspection and even a quick Google search of the model number, we are able to positively confirm we found a GPS device. It’s amazing to me that law enforcement thought they could legally attach these devices to suspects vehicles and track there every move without violating the individuals constitutional rights. The United States Supreme Court has finally set law the record straight. In US v. Jones, the Court said that the government must get a warrant to put a GPS tracker on citizens’ vehicles. The Courts ruling indicated that without a warrant, these devices violate the reasonable expectation of privacy guaranteed by the Fourth Amendment to the Constitution. As soon as this happened, law enforcement across the country had to scramble in order to obtain warrants for the active GPS trackers out in the field. The Wall Street Journal reported that the FBI alone had to turn off 3,000 GPS trackers. The FBI later retracted and said they were not exactly sure the numbers regarding the GPA trackers. I am not sure what is scarier, the fact that the FBI does not have a clue of the number of trackers or the fact that there are so many active, the agency cannot keep valid numbers. The bottom line is that federal agents and local law enforcement agencies are seriously taking advantage of this GPS technology. We are now starting to see law enforcement attempt to track individuals through the personal handheld devices, such as cell phones. Criminal lawyers across the country will continue to attack the this invasion of privacy. While a couple of courts are in conflict over this issue, I am confident the courts will make this right with a clear ruling this is a 4th amendment violation. http://www.forbes.com/sites/kashmirhill/2012/03/27/how-many-gps-trackers-is-the-fbi-actually-using/

Apr 4, 2012 | By Jay Rooth | Read Time: < 1 minute | About Us

Think Your Locked IPhone is Safe? Guess Again.

Police are obtaining court orders requiring Apple and Google to help bypass security passwords to enable them access to a person’s cell phone. According to CNET police officers are using fill-in-the-blanks court orders for judge’s to sign to obtain access to a person’s cell phone. This practice is disturbing on multiple levels. Why is Apple retaining information on an iPhone’s user’s password to begin with, why is google doing the same thing, what sort of information is a judge being given to justify a court order essentially requirig a company to unlock a closed container, and if the phone is not password protected does this search of the phone trigger a possible 4th amendment search and seizure violation? Prosecutors across the country are urging Judges to allow the cops to check cell phones as a search incident to an arrest. Criminal defense attorneys will be arguing that these searches are violations of the 4th Amendment. This type of search will continue to be litigated and argued locally in Orlando, Florida and throughout the United States. Smartphone technology has added convenience to our lives but it also has given police a new tool for conducting investigations. Examining the content in an iphone has the potential to reveal much more about ourselves then looking through a wallet. Using cell phone towers to track a person’s whereabouts seems similar to using a GPS device to track movement and you can bet that the Supreme Court is going to have to address this situation.

Mar 28, 2012 | By Jay Rooth | Read Time: < 1 minute | Drunk Driving

Are Harsher DUI Penalties Around the Corner?

I do not advocate drunk driving. It is clearly unsafe for the driver and for everyone who shares the road with the driver. However, a POLITICO article reports that the United States Congress is trying to legislatively coerce states to require the installation of a vehicle interlock device on the cars of everyone who is convicted a driving under the influence. This would include first time offender, who may have never had any contact with the criminal justice system. The Congress is able to force states to amend their own statutes by threatening to take away 5 percent of their regularly allocated safety money if they fail to enact this legislation. As a criminal defense attorney in Orlando, and someone who defends DUI cases on a daily basis, this proposal seems over the top and completely takes away the discretion from our Judges. Not all DUI’s are created equally and should not be treated the same. In law school we are taught that the Judges are the ones who fashion sentences. This type of legislation would further take away what little discretion Judges have on DUI cases. If based on the facts and circumstances a Judge feels that a first time offender needs the vehicle interlock device, then they should order it, but it does not seem like a necessary requirement for everyone who is convicted on this charge.

Mar 26, 2012 | By Andrew Moses | Read Time: < 1 minute | Prison & Sentencing

Overcriminalization, and the State of Florida

Grits for breakfast is a blog about the Texas criminal just system. On March 23 they took a look at the recent Supreme Court opinion, Missouri v. Frye. The Supreme Court ruled that criminal defense lawyers are required to convey a plea offer to their client. If they do not, then this may be grounds for obtaining a new trial. I do not think that anyone has any problems with this opinion. All defense attorneys should tell their clients about all plea offers. The blogger does look at little deeper and is astonished that the criminal conduct of Frye was related to a felony driving on a suspended license, and was looking at up to four years in prison. That’s right because Mr. Frye had previously been convicted at least two previous times for driving on a suspended license, he was looking at up to four years in prison. I know what your thinking, Missouri must be some backwards state to have a felony, and looking at up to four years for driving on a suspended license. Well guess what Floridians, not only are you too looking at felony charges for this type of conduct, but your maximum penalty is not four but FIVE YEARS in the Department of Corrections. Clearly people should only be driving if their license is valid, but the possibility of becoming a convicted felon for this conduct seems a bit extreme. It also has no effect on deterrence. Currently 1 in 7 Floridians have a suspended license. I agree with the blogger, this is “overcriminalization run amok.”

Mar 21, 2012 | By Andrew Moses | Read Time: 2 minutes | Domestic Violence

Domestic Violence immunity through Stand Your Ground Laws

The Stand your Ground Defense can apply to variety of criminal cases including a simple domestic violence battery charge. The Stand your ground laws in the State of Florida have been a hot topic of discussion over the past couple of weeks related to the high profile case Trayvon Martin. In the Trayvon Martin case, law enforcement is refusing to arrest and charge the shooter, George Zimmerman. Mr. Zimmerman is attempting to apply the Stand Your Ground Laws in order to have immunity for the shooting death of Trayvon Martin. While there is great uproar across the country, it’s important to understand the laws in the State of Florida. The law associated with Stand your ground does not always have to be attributed to a shooting case. A detailed look at the facts and correct application of the laws in the State of Florida may provide a valid defense to even a simple domestic violence battery charge. In domestic violence cases, we often see Law enforcement officer rush to judgment without a full investigation. Some agencies even have an internal policy where they must make an arrest when responding to a call related to domestic violence. A recent case published, State of Florida v. Bryan (FLWSUPP 19058BRY), ruled that Mr. Bryan was immune from prosecution under the Stand Your Ground law. Mr. Bryan was charged with Domestic Violence Battery for the unlawful touching of the alleged victim, NMF. (The courts many times will use initials rather than publishing the name of a juvenile). NMF entered Bryan’s home, walked into his room and struck Bryan. NMF then stood in front of the room door preventing Bryan from the exit. Bryan then walks up to NMF and strikes her. Law enforcement responds and only arrests Bryan for the Domestic Violence battery. The Court applied Florida Statute 776.012 which provides in part: “A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force”. So, because NMF stood in front of the door and had recently used force on Bryan, the Court ruled that it was therefore reasonable for Bryan to believe that NMF would use force to prevent him from leaving the room. With this ruling the Court found Bryan immune from prosecution under the Stand your Ground law and dismissed the case.

Mar 16, 2012 | By Andrew Moses | Read Time: 2 minutes | Prison & Sentencing

Florida Legislature Passes Bill That Would Allow Early Release

The Florida Legislature has passed a bill that would allow for prison sentence modification. Both the House and Senate, has passed bills that would allow for the early release of prisoners held for non-violent offenses. The bill creates a new law that requires the Florida Department of Corrections to develop a reentry program designed to allow nonviolent offenders to have their incarceration reduced by allowing them to participate in an intensive substance abuse treatment program. The reentry program must include prison-based substance abuse treatment, general education development and adult basic education courses. The program must also include vocational training and decision making and personal development training. In order to qualify for the program the prisoner must meet certain criteria. They must be nonviolent offender which has been defined as a third degree felony offense that is not a forcible felony. The prisoner must have completed at least half of their sentence and they must have been identified as having the need for substance abuse treatment. If the nonviolent offender meets the eligibility requirements, the department of corrections must then notify the sentencing court and get their approval for participation in the program. The state attorney is also notified and may file a written objection for the prisoner’s participation in the program. The prisoner must complete at least six months in the reentry program and if they complete the program then the sentencing judge may order a modification of the sentence to include drug offender probation. If the offender violates the probation then the court may revoke probation and impose any legal sentence that they see fit. It seems as though the Florida legislature is finally realizing that addicts needs rehabilitation and not just punishment. A person who is able to cope with their addiction is less likely to reoffend and will save the tax payers money by reducing recidivism.

Mar 14, 2012 | By Andrew Moses | Read Time: < 1 minute | Prescription Pills & Opioids

Warrants issued for Prescription Pills Trafficking Ring

Law enforcement agencies across Central Florida are continuing their attack on the illegal possession of prescription pills and sale of prescription drugs. Over the past several months law enforcement agencies including the Drug Enforcement Agency (DEA) and Florida Department of Law Enforcement (FDLE) have added more officers, detectives and agents to combat the overwhelming increase in illegal possession of the prescription drugs. With this increase in law enforcement, the Courts across Central Florida have clearly seen a growth in illegal prescription drug cases. Over the last 11 months, a number of these law enforcement agencies have been working a criminal investigation in Marion County that led to 43 individual arrests for over 200 felonies. The target of the investigation was into the trafficking of thousands of Oxycodone and methadone pills. An Orlando Sentinel article indicated that the “ringleader” formed the organization that included several operators and reselling prescription pills for $15 to $20 a piece resulting in over $100,000 in profits. This investigation is a clear indication of the focus and dedication of resources that the local law enforcement agencies are willing to dedicate to this pill epidemic. Local law enforcement agencies are working together with DEA and FDLE in order to share resources and make these types of arrests across Central Florida. With the assistance of these Federal and State agencies the local law enforcement officers are targeting larger rings of trafficking the pills,doctor shopping, pill mills, and the doctors who are alleged to have been overprescribing the medications.

Mar 2, 2012 | By Andrew Moses | Read Time: < 1 minute | Prescription Pills & Opioids

CVS Decision Impacts More Than Just Florida Doctors

In an unprecedented act, a national pharmacy chain has informed a small number of Florida doctors, including a few in Orlando, that any prescriptions written for certain pain killing drugs (Schedule II narcotics) will not be filled by the pharmacy. In late 2011, CVS/pharmacy sent an unsigned letter to these doctors notifying them of the decision. What was not stated in the letter is why the pharmacy made the decision was made. However, an article in the Orlando Sentinel notes that Florida, in years past, did little to regulate pain clinics and this attracted abusers and dealers of prescription drugs to the state. And in July of 2011, the state enacted more restrictive controls over the dispensing of pain killers and imposed stiffer penalties on doctors who violate state drug control laws. The Orlando Sentinel also notes that several of the Florida doctors that received letters from CVS/pharmacy, including five in the greater Orlando-area, have previously been arrested for crimes relating to prescription drugs and/or medical malpractice. But, not all of the doctors that received letters have been arrested. One such doctor feels that CVS/pharmacy is “blacklisting” certain doctors and is fighting back. This particular doctor has filed a defamation lawsuit claiming that the pharmacy is “falsely implying” that the doctor is practicing medicine “unethically or illegally.” By not filling certain prescriptions from a number of doctors, the pharmacy does more than just, in the words of one of the doctors, “blacklist” the doctors that received letters, the pharmacy may be preventing many Floridians who live with pain from the prescription medications they so desperately need.

Feb 9, 2012 | By Andrew Moses | Read Time: 2 minutes | Drunk Driving

Florida Law Enforcement Boozes it up to Defend Breath Test Device

The Florida Department of Law Enforcement (FDLE) recently launched a “spirited” defense of the Intoxilyzer 8000 machine – the machine it uses to test the blood alcohol content of suspected drunk drivers. Since theIntoxilyzer was put into service in 2005, it has been a subject of ridicule and attack among defense attorneys in several Florida counties who have claimed that it is an inaccurate means of measuring blood alcohol content. In an attempt to prove that the machine is reliable and accurate, the FDLE decided to test it out by paying some of its employees to get drunk while on the job. On an October day, the FDLE provided whisky and other liquor- at taxpayers’ expense – and had 15 employees drink while on the clock. After the participants had become sufficiently intoxicated, they blew into three different Intoxilyzers: one calibrated to provide an accurate measurement of breath volume, one set to measure too little breath and one set to measure too much. Cameras recorded the results. The participants’ blood was then drawn and sent to a lab for comparison. Two months later, an alcohol-testing expert from the FDLE presented the results of the experiment to a panel of judges from Sarasota and Manatee counties, and asserted that the test proves that the machines are accurate. Results of Experiment Questioned The judges were skeptical of the results of the experiment, partially because the results of the blood tests of the participants were conspicuously absent from the presentation and other results presented were not finalized. Statistical experts agreed, saying that the experiment may not be scientifically valid, as it was only performed one time on a small group of people. Use of Intoxilyzer Controversial The controversy surrounding the machines started in 2005, when certain machines reported that some drivers have blown 10-12 liters of air into the machine. This measurement is impossible, as a typical person’s lung capacity is only about five liters. Breath volume is important to achieve an accurate result, as an insufficient amount of breath can cause the machine to register artificially high blood alcohol content. Since FDLE rules do not require that breath volume measurements be calibrated, this calls into question the accuracy of the machines. The fears of inaccuracy may be legitimate. An expert found that drivers tested on these particular machines that are not properly calibrated were four times more likely to register a blood alcohol content of 0.25 – three times the legal limit. The panel of judges is awaiting final results before it decides if the Intoxilyzer will continue to be used in Manatee and Sarasota counties.

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