Category Archives: Florida Law
New Supreme Court Ruling May Require Change to Florida Law
Calling for Warrants for Blood Draws in DUI Cases
A new case decided last month (April 17, 2013) by the Supreme Court of the United States, Missouri v. McNeely, promises to require revisions of current law in the State of Florida and may jeopardize future prosecutions for DUI that rely upon blood alcohol levels based upon analysis of blood draws.
In a previous ruling the Supreme Court, in Schmerber v. California, 384 U.S. 757 (1996), upheld a warrantless blood test of an individual arrested for DUI. The reason being that the officer might reasonably have believed he was confronted with an emergency, and delay of a blood draw threatened destruction of evidence.
The Court in 1966 pointed out that the testimony in the lower court indicated that the percentage of alcohol in an individual’s blood typically decreased by approximately 0.015 percent to 0.02 percent per hour once the alcohol has been fully absorbed. They went on to note that since an individual’s alcohol level gradually declines after he stops drinking, a significant delay in testing can negatively affect the probative value of the results. This factor was essential to holding in Schmerber that delay in securing a warrant would threaten the destruction of evidence.
However, in this new ruling, the Court held that the natural metabolization of alcohol in the blood stream does not present a per se exigent circumstance that will justify warrantless blood draws in all drunk driving cases. The Court further held that whether an exigency exists which would allow a warrantless blood draw in a DUI case, is an issue that must be determined on a case by case basis based upon the totality of circumstances.
Given the current state of the ability for police departments to communicate with the judiciary in order to secure warrants, which makes application for same in a short period of time not impracticable, it cannot be said that exigency is presented in all cases which thereby justify warrantless blood tests.
The court noted that in the 47 years since Schmerber was decided there is a more expeditious processing of warrant applications and well over the majority of the states allow police officers to apply for search warrants remotely through using telecommunications and email.
The Court therefore held that in drunk driving investigations the natural dissipation of alcohol in the blood stream does not constitute an exigency in every case to justify conducting a blood test without a warrant.
Impact on Florida’s Implied Consent Laws
It is difficult to predict all the consequences that this new decision will have on future cases involving motorists driving under the influence. They may be far-reaching; all 50 states have adopted implied consent laws in one form or another, requiring all operators of motor vehicles within their states to consent to blood alcohol content (BAC) testing if they’re arrested or detained on suspicion of a drunk driving offense.
Refusal to submit to a breath, urine, or blood test is admissible as evidence in DUI criminal proceedings in Florida, for example, and results in an automatic suspension of the driver license for one year. Under Florida’s implied consent law, the following is allowed:
Forceful Withdrawal of Blood: If necessary, blood may be withdrawn in DUI cases involving serious bodily injury or death by authorized medical personnel with the use of reasonable force by the arresting officer, even if the driver refuses.
Unconscious: Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition shall be deemed not to have withdrawn his consent to such test. A blood test may be administered whether or not such person is told that his failure to submit to such a blood test will result in the suspension of his privilege to operate a motor vehicle. (Florida Highway Safety and Motor Vehicles).
That may change with McNeely; in the state of Florida cases involving searches consisting of warrantless blood testing can now be attacked based upon unreasonable search and seizure. For example, people who consented to having their blood drawn could challenge the administration of the test by arguing their consent was not given voluntarily. A good criminal defense lawyer in Florida could challenge its implied consent laws for punishing citizens for exercising their constitutional right to refuse a search not authorized by warrant.
The new ruling suggests that when officers in drunk driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.
Florida Highway and Safety Motor Vehicles, “Florida DUI and Administrative Suspension Laws.”
Harmless Error Blog, “Missouri v. McNeely: Trouble for Implied Consent Laws?”, 22 April 2013.
I just received several emails from friends and acquaintances who want to know why Casey Anthony was found not guilty and “how could this happen”. Although I have taught criminal procedure and tried numerous murder cases, I am quite sure that my answer won’t satisfy most.
In the first place, I must give the caveat that I did not watch the proceedings from beginning to end nor did I get to review first hand all the exhibits and physical evidence. Obviously, the jury, made up of individuals who care about children was as emotionally ravaged by this case as anybody else. I therefore have to assume that the jury followed the court’s instructions regarding burden of proof and reasonable doubt and felt that although she may be guilty, she had not been proven guilty of first degree murder beyond and to the exclusion of every reasonable doubt.
Hundreds of years ago, our criminal justice system was founded upon the precept that in order to find an individual guilty they must be proven guilty beyond a reasonable doubt. Probable guilt, likely guilt, or being thought to be “more than likely guilty” was not enough. By saddling the State with this very high burden, it was of course, conceivable that in some instances guilty people would go free. But our founding fathers made the conscious decision that individual liberty and justice was so important in a free society and we valued our freedoms so highly, that we would require this higher burden since we would rather see 100 guilty people go free than have 1 innocent person spend a day in jail for a crime he or she did not commit.
If the crime was that of being a bad mother or despicable human being, or a selfish and self-centered person, the outcome may certainly have been different. However, as she was charged with first degree murder, the State had to prove beyond a reasonable doubt that her mother intentionally killed her. Based upon what I did view on television and in the papers, it was clearly evident that this essential element of the crime could not be proven beyond a reasonable doubt. No matter how hard the State tried to point to Casey’s despicable behavior, after the death.
The truth is, we don’t know how this child died, and although it may have made us feel better seeing the mother punished for her actions, it would not necessarily have been the right verdict. Of course, Casey Anthony will have to live with this for the rest of her life and I for one don’t believe that she has “gotten away” with anything. I am praying for her and her father and mother. I understand why people are upset but I also believe the Caylee is with her Father in Heaven and Casey’s punishment lies ahead of her and is in God’s hands.
In short “nobody really gets away with anything.”
Russell A. Spatz
Counselor and Attorney at Law
Miami - A federal grand jury in Miami returned a 16-count indictment charging Rodrigo Molina, 32, of Miami, and Marcos Macchione, 31, of Aventura, Fla., for their alleged involvement as money laundering service providers for a sophisticated international securities fraud organization, Assistant Attorney General Alice S. Fisher of the Criminal Division and U.S. Attorney R. Alexander Acosta of the Southern District of Florida announced.This indictment follows major law enforcement operations carried out on Feb. 25, 2008 that resulted in the arrests of Molina and Macchione in Florida as well as 18 subjects in Brazil. The Brazilian operation netted the alleged leader of this criminal organization, Doron Mukamal, as well as his partners, associates and employees. Also arrested in Brazil were the “doleiros,” or money launderers, that assisted the organization by providing a complicated maze of bank accounts that quickly hid money sent in by the victims. Molina and Macchione were allegedly responsible for the U.S. portion of the doleiro operations being managed out of Brazil.
“Scam artists who attempt to dupe investors by claiming to represent legitimate financial services will be aggressively pursued both in the U.S. and abroad,” said Assistant Attorney General Fisher. “I want to thank all of the domestic and international agencies for their diligent work in aggressively pursuing this case.”
This case involves an international criminal organization that utilized the U.S. securities market to scam foreign investors out of more than $50 million during the last three years. As the indictment alleges, this fraud organization victimized U.S. “micro cap” company investors worldwide using an operation that spanned North and South America. A team consisting of the Department’s Fraud Section, FBI, U.S. Postal Inspection Service, the Securities and Exchange Commission (SEC), the New Jersey Attorney General’s Office Bureau of Securities and Division of Criminal Justice, the Alabama Securities Commission, and the Brazilian Federal Police conducted a three-year international cooperative investigation that was responsible for dismantling the fraud.
New Jersey investigators became involved in 2005 when victims from around the world contacted New Jersey’s Bureau of Securities to report that a New Jersey securities broker had defrauded them. Heritage Financial of Trenton, N.J., one of the companies quickly determined by investigators to be completely fictitious, offered to purchase nearly worthless stock from investors by paying much more than the stocks were worth. Shortly before the stock transaction was supposed to take place, the fictitious broker would require the victim to pay some sort of advance fee. These fees were purported to pay for taxes, escrow payments or other services not actually required in legitimate transactions. Once these “fees” were wired into bank accounts, mostly located in Miami, the fictitious brokers simply abandoned the transaction. In many cases investors were further victimized when they contacted the fictitious broker to question what had happened to their money. On many occasions they were told that the broker had located warrants or the rights to purchase more shares held by the victims. These warrants were imaginary, but the “brokers” would offer to pay huge premiums to the investors for them. Again, lured by the promise of huge profits, the investors would remit large payments for additional fictitious fees.
The Brazilian defendants used well-designed Web sites to mislead their victims into believing that they were legitimate securities brokers. The perpetrators, in order to carry out their scheme, stole the identities of real U.S. broker dealers and created others that were fictitious. In many instances they even created false governmental entities that touted the legitimacy of the fictitious brokers. Additionally, voice over Internet Protocol (VoIP) telephone providers were utilized so that the fictitious brokers had U.S. phone numbers even though they were located in Brazil and other countries.
Since 2005 this fraud scheme has been responsible for the greatest number of victim complaints received by the SEC’s Office of Investor Education and Advocacy. To date, the investigative team has seized and/or frozen several million dollars through the investigation. Besides arresting the fraud organization head and managers, the Brazilian operation called “Operacao Pirita” raided an operating “boiler room” located in a Sao Paulo hotel full of telemarketing fraudsters actively carrying out the fraud. In addition to the arrests, the Brazilian Federal Police, with the assistance of personnel from the New Jersey Bureau of Securities and the Division of Criminal Justice, seized 17 guns, 17 vehicles, drugs, at least one home, and more than $1.5 million in cash and jewelry.
If convicted the defendants each face a maximum of 20 years imprisonment. The indictment also seeks criminal forfeiture of contents of several of the bank accounts used to facilitate the laundering of the fraud proceeds.
An indictment is merely a charge. Defendants are presumed innocent unless and until proven guilty beyond a reasonable doubt.
Trial Attorney Matthew Klecka of the Criminal Division’s Fraud Section will prosecute the Miami indictments. The investigation is being conducted by the FBI, U.S. Postal Inspection Service, New Jersey Bureau of Securities, New Jersey Division of Criminal Justice, and the SEC.
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In a late afternoon ceremony on the Capitol Courtyard on March 11, Florida Governor Charlie Crist honored Justice Barbara J. Pariente as one of the three newest members to the Florida Women’s Hall of Fame. Justice Pariente joined Dr. Pallavi Patel, Tampa pediatrician, and Ileana Ros-Lehtinen, 18th District Congresswoman of Florida, as the three 2007-08 inductees named by the Florida Commission on the Status of Women. Justice Pariente joins Justice Rosemary Barkett and Justice Peggy Quince who entered the Hall of Fame in 1986 and 2007 respectively.
Justice Pariente thanked Governor Crist for the honor of being selected, saying, “I have received other awards in my lifetime, but this is the Academy Award of awards.” She continued by discussing her work, leading to this moment in time, indicating that her involvement with many high profile cases has been very significant.
Celebrated for her keen attention to family issues in her work, Justice Pariente concluded by saying, “I am convinced that some of the most complex and challenging cases in which we can make a difference are those involving children and families. So, I am very proud to be recognized for my constant advocacy for children in need who end up entangled in the legal system, because I subscribe to the notion that 100 years from now it will not make a difference what our bank account was or how many honors and awards we received but that the world will be better because we made a difference in the lives of children.”
Justice Pariente, of West Palm Beach and Tallahassee, is only the second woman to serve on Florida’s Supreme Court and as its Chief Justice from 2004-2006. Throughout a legal career begun in 1975, she has shown a passionate commitment to improving the lives of women, children, and families in Florida, especially those whose disadvantages in life have brought them into courts.
Since her appointment to the Court in 1997, she has championed drug courts, Florida’s nationally praised program to rehabilitate people who commit minor crimes because of substance abuse, rather than imposing the more expensive and less successful alternative of jail. She has been a driving force behind Florida’s Unified Family Courts, a judicial approach to help ensure that each family’s legal problems are managed comprehensively by a single judge or team.
In her career, Pariente has mentored school-age children, has encouraged mentoring programs, and has worked directly to help juvenile offenders. In 2003, she turned a personal tragedy – breast cancer – into a public victory by sharing her successful treatment with Florida and national media. During this period, she never missed a court hearing, even appearing wigless in cases that were widely broadcast. Pariente graduated fifth in her law school class at George Washington University in 1973 and immediately began a successful twenty-year legal career, first as a Florida federal district court law clerk, then as one of South Florida’s pioneering women trial attorneys. She is married to Judge Fred A. Hazouri of Florida’s Fourth District Court of Appeal and is a mother and grandmother.
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