group_therapy_sessionAn accused sex offender’s failure to complete the terms of his plea deal landed him in jail for more than two years, and the trial court ruled that he willfully violated his probation. His argument that he did not fully understand the requirements of his plea deal did not win on appeal, since the 5th District Court of Appeal stated that he had only two options, which were to ask to withdraw the plea arrangement or to seek to have his sentence vacated, and since he did neither of these things, the probation violation ruling was proper. The outcome is a cautionary tale for anyone facing criminal charges to make certain that you fully understand all the terms of a plea bargain before agreeing to a deal.

Warren Staples was arrested and charged for a sex crime involving a minor. Staples and the state worked out a plea deal where he would agree to plead guilty and, in exchange, he would receive a sentence of five years of sex offender probation. Another element of the deal required the man to complete successfully a sex offender treatment program. Apparently fearful of the risks that a trial outcome might bring, Staples accepted the deal. In court, Staples was never forced to admit that he had actually committed the crime with which he was charged.

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Many Florida driver’s are unaware that by getting a Florida driver’s license, they are agreeing to consent to a breath test in a DUI investigation.  If you look at the very bottom of your driver’s license it says “Operation of a motor vehicle constitutes consent to any sobriety test required by law.”  In Florida driving is considered a “privilege” not a “right”.  What’s the difference you might ask?  All Americans have certain “rights”, the right to vote, the right to freedom of speech, the right to be free from unreasonable search and seizures.  It’s the search and seizure right that calls the consent to sobriety tests into question.

If you refuse the breath test on the second DUI arrest the refusal itself becomes a 1st degree misdemeanor, punishable by up to a year in jail.  Some lawyers have unsuccessfully argued that the refusal to take the breath, blood, or urine tests is merely a withdrawal of your consent to search.  And since you have a “right” not to be unreasonably searched, and can withdraw your consent at any time, you should therefore not be punished for refusing to take any sobriety test.

DUI refusal

The courts, all the way up to the U.S. Supreme Court agree that law enforcement must have probable cause to search a person or his property.  The same courts also agree that bodily searches, like blood, breath, urine, DNA, body cavity searches, are a “search” within the meaning of the Fourth Amendment. However, despite this  rule of law, and because the search of blood, breath and urine cannot be forced upon a person, some courts have said that law enforcement needs a warrant to make these kind of searches.  But as with all things legal, there are exceptions to the warrant requirement.

One of those is exigent circumstances.  Exigent circumstances mean that the evidence may be destroyed before the law enforcement officer can come back with a warrant, as warrants must be written and signed by a judge.  For example, in drug cases, if they arrest a known drug dealer at his home and there are other people left in the home when the dealer is taken to jail, that may be considered an exigent circumstance allowing law enforcement to search the house because chances are, by the time they got back with a warrant, the house would be cleaned of any contraband by those left in the house.

In a DUI case, the results of any sobriety test would be compromised if the arresting officer had to go get a warrant.  As we all know, alcohol metabolizes in your blood, and the longer you wait, the less alcohol will be in your system.  Therefore, waiting to get a warrant would jeopardize a DUI investigation and most likely destroy the evidence.  (Note in Arizona, the law provides for forced blood draws, however the warrant process is so streamlined, law enforcement can get the warrant almost immediately)

The most used exception to the warrant requirement, however, is CONSENT.  If a person is arrested and they give consent to search their home or car then there is no need for law enforcement to get a warrant.  If a person is stopped for a traffic violation and the officer asks for consent to search their person, car, or other belongings, the officer doesn’t even need a lawful arrest to conduct the search.  Consent validates any search, even one without probable cause.  And you, by accepting the privilege of driving in Florida, have consented to the search of your breath, blood, or urine.  Just so you are reminded of that, if you arrested for DUI, there is “script” that law enforcement must read to you advising you of the consequences of not taking the test, if you refuse the test when they initially ask.  (Blood tests may be taken in the case of accidents, urine tests when the results of the breath test are inconclusive because there was an intoxicant other than alcohol involved)

In a DUI case, breath tests, blood tests or urine tests are considered a search.  Thus, it would appear that law enforcement needs either a lawful arrest or a warrant to take those tests, OR they need an exception to the warrant requirement.  They have that by virtue of the consent you gave when you got a driver’s license.

Here’s the interesting part of consent – a person who has given consent can withdraw that consent at any time.  And since you have a RIGHT against unreasonable search and seizure, it would appear that you can withdraw your consent to take any sobriety test.  Right?  In Volusia county, that is the argument being made by the defense attorneys.  So far, the county courts have disagreed.  However, they did submit this questions to the Fifth District Court of Appeal for an answer: “DOES SECTION 316.1939, FLORIDA STATUTES (2013), THE UNLAWFUL REFUSAL STATUTE, VIOLATE THE FOURTH AMENDMENT?”  I guess we’ll have to wait and see.

Breathalyzer_studyA driver’s defense against the admission at trial of a hospital’s blood alcohol content measurement after he refused a law enforcement request to submit to a test was “unusual” but also ultimately unpersuasive. Both the trial court and the 2d District Court of Appeal rebuffed the driver’s double jeopardy claim, ruling that the license suspension punishment arising from the refusal stemmed from separate conduct than the criminal act of driving under the influence.

When Charlotte County law enforcement officers arrived at the scene of an auto accident late at night on September 5, 2009, they found that one of the drivers involved, Arthur Laws, appeared to be under the influence. Officers requested that he take a blood alcohol level test, but he refused. However, since he had been injured in the accident, emergency responders transported the man to a hospital in Fort Myers, where the staff took a blood test that assessed the man’s blood alcohol content at .208. The state eventually accessed the man’s medical records, prompting his lawyers to ask the court to suppress that BAC information in his DUI trial.

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Jail_CellA victim’s agreement to accept a payment of restitution from his attacker was not, by itself, enough to justify giving the attacker only probation and restitution when the crime would normally result in several years of imprisonment, according to a recent 2d District Court of Appeal ruling. These sentences of no jail time are sometimes permissible under the law, but success often means having a detailed knowledge of the law, since the accused must first get into the record enough proper evidence to support the argument that the victim’s need for the restitution money outweighs the need to punish the attacker through imprisonment.

The recent ruling involved the criminal prosecution of Clay Montgomery. Montgomery’s lawyers and prosecutors were in plea negotiations on an aggravated battery charge. After negotiations with the state broke down, the man’s attorneys contacted the victim and the victim’s civil lawyers. Those parties agreed that the accused man would pay $50,000 to the victim as restitution for his injuries. In exchange, the accused man received a release from the victim covering any further civil or criminal actions.

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computer-1A man caught in a law enforcement sex crime sting was charged and convicted for his misdeed. The state, however, made the misstep of levelling three different criminal charges based on the same episode when two of the three crimes were subsumed within the third. Due to this error, the man’s lawyers persuaded the 2d District Court of Appeal to throw out two of three charges.

Back in 2012, the Polk County Sheriff’s Office undertook the first of (so far) three undercover sex-sting operations named “Operation Cyber Child.” Law enforcement officers posted fake ads on Craigslist and elsewhere, posing as underage children. The 2012 operation ensnared 38 men, including Walter Exantus, who made sexual offers in emails, online chats, and telephone conversations. The PCSO’s stings also inspired a WTSP TV “10 Investigates” exploration into whether or not the police’s tactics crossed the line into illegal entrapment.

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cell-phoneIn today’s modern world, cell phones have become nearly ubiquitous. With this in mind, privacy activists hailed the US Supreme Court’s 2014 Riley v. California decision this past summer, which ruled that law enforcement officers must obtain search warrants before searching the cell phones of persons under arrest. This decision, along with a similar one from the Florida Supreme Court issued last year, have greatly enhanced the privacy rights of accused persons in Florida, including a Polk County man who mounted a successful appeal to numerous criminal charges based upon evidence obtained through a warrantless search of his personal phone.

On February 7, 2012, Matthew Willis’ broken license tag light would evolve into something far more complicated. Haines City police officers pulled Willis’ pickup truck over for the broken light and then discovered his driver’s license was suspended. The police placed Willis and his two passengers in patrol cars. A search of the truck revealed pill boxes, marijuana, and methamphetamine in the glove compartment.

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Couple_looking_at_tv_screenA sexual misconduct conviction was thrown out by the 2d District Court of Appeal recently because the accused man did not receive a fair trial. The man’s appellate counsel argued successfully that the trial court should not have allowed a police officer and the alleged victim’s teacher to testify about the girl’s credibility, and it should not have allowed the prosecution to play a movie clip that would tend to create improper prejudice in the minds of the jurors.

Henry Keith Cavaliere was on trial for sexual misconduct with an underage girl. The alleged crime came to light when the girl disclosed the molestation to a friend after the two watched a movie about an online sexual predator. The girl subsequently told her teacher about the contact, and later a police officer interviewed her about the incident.

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New_Jersey_State_Police_Traffic_StopA recent ruling from the state’s highest court served as a clear statement regarding the limitations of proper traffic stops. Namely, the Florida Supreme Court‘s opinion reminded that, for a traffic stop stand up in court, the police officer must not only have a suspicion that illegal activity has occurred, but that suspicion must be a “well-founded” one, and stopping a vehicle because its paint color did not match the color on file with the Department of Highway Safety and Motor Vehicles did not meet this standard.

The ruling stemmed from the drug trial of Kerrick Van Teamer. A sheriff’s deputy spotted the man driving a green Chevrolet car, but when he ran the car’s license plates through the state’s vehicle registration database, the deputy discovered that the plate belonged to a blue Chevrolet. Although the court’s opinion did not say, the car’s year and model (in addition to the make) presumably matched; only the color did not.

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St._Pete_501_2nd_St_S02One of the constitution’s most basic protections is citizens’ right to be secure in their homes. That’s why the law imposes several hurdles for the issuance and execution of a search warrant for a person’s home. In one recent case, the 2d District Court of Appeal allowed a warrant to stand, ruling that the police presented enough proof to allow a warrant to issue, and that the 28-day delay prior to the warrant’s issuance was not so long as to make the warrant invalid.

In the case, police began pursuing Artesha Williams after a confidential informant told them that Williams was dealing crack cocaine from her home. Police then set up several “controlled buys” where the informant purchased drugs from Williams. The informant also gave the police inaccurate information about Williams having drugs and weapons inside her vehicle, which she did not. Based upon these drug transactions, the police requested a search warrant for Williams’ home. Four weeks later, the court issued the warrant and, upon executing the search, officers obtained crack cocaine, razor blades, baggies, and digital scales.

At trial, the woman asked that the court suppress the drug and drug paraphernalia evidence. The trial court rejected this request, and the woman was ultimately convicted. On appeal, Williams again asserted that the warrant was improper and that the trial court should have suppressed the drug evidence. The woman specifically challenged the warrant as “stale” because the last controlled buy occurred 28 days before the warrant issued and because the police, when applying for the warrant, left out the information about the informant’s bad tip related to Williams’ car.

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white-doctorWhile Florida’s criminal sentencing guidelines exist to help promote fairness, the law gives judges discretion to issue lesser penalties when the sentence prescribed by the guidelines does not meet the ends of justice. That can be especially true when the accused person suffers from serious mental or physical problems. In one such recent case, the Florida Supreme Court weighed in to confirm that courts do not have to make findings that the needed medical care is unavailable through the corrections system in order to impose a lesser sentence based upon that person’s medical condition.

The accused criminal in the high court’s recent case was Harry Chubbuck, a 66-year-old Vietnam veteran. In January 2008, police charged him with several drug charges, for which Chubbuck worked out a plea agreement. The man pled guilty and received five years probation. One condition of the man’s probation was that he not use drugs or alcohol.

Two years later, Chubbuck was back before the court on a probation violation hearing after he failed a drug test, which showed cocaine in his system. At his hearing, the trial judge elected to issue a “downward departure,” or penalty less than what the state’s sentencing guidelines called for. Based upon the man’s multitude of mental and physical problems, which included PTSD, COPD, diabetes, hepatitis C, and melanoma, and the judge’s conclusion that the Department of Corrections would not meet Chubbuck’s medical needs effectively, the court issued a sentence of time served.

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