Category Archives: Criminal Law

Supreme Court makes Statement on Free Speech for Facebook Case

Pennsylvania man Anthony Elonis had his appeal heard by the Supreme Court, and his conviction for violating a federal threat statute was overturned.

The case garnered a lot of attention because of where Elonis made the threats. He used his facebook page to post statements discussing murder and other violent acts toward his ex-wife. He also threatened the FBI agent investigating him and made mention of perpetrating a school shooting.

His original defense and appeal challenged the notions of free speech and what could be considered a threat. It is also the first time the Supreme Court has heard a case revolving around social media. It was watched closely by many, especially advocates for the victims of domestic violence.

Elonis and his attorney repeatedly compared his posts to the controversial lyrics of rapper Eminem, saying that Elonis used his facebook page as a creative outlet, not an arena to intimidate his estranged ex-wife.

The original conviction claimed that Elonis knew he was communicating a specific threat at his ex-wife, but the Supreme Court ruled that there was not sufficient proof to make that judgement. Social media is a relatively new medium of expression, and the law often plays catch up to developments in technology.

When you’ve been accused of a crime, a consultation with a criminal lawyer is the first step towards clearing your name.

Source:

SCOTUS rules in favor of man convicted of posting threatening messages on Facebook, www.cnn.com Ariane de Vogue, 1 June 2015

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Alex Rodriguez Admits to Using PEDs in Meeting with DEA

Alex Rodriguez.jpg

“Alex Rodriguez” by Keith Allison from Baltimore, USA – Alex Rodriguez. Licensed under CC BY-SA 2.0 via Wikimedia Commons.

Popular New York Yankees baseball player Alex Rodriguez, is once again making headlines; this time for his alleged admission of using performance enhancing drugs (PED). Last year, Rodriguez was accused of purchasing PEDs from Biogenesis of America, an accusation he vehemently denied in public, but was suspended for. This week, however, the Miami Herald reportedly uncovered a 15-page report from a Drug Enforcement Agency (DEA) meeting in Miami with Rodriguez that took place in January. During that meeting, Rodriguez admitted under oath that he purchased PEDs for roughly two years at the price of $12,000 per month. In exchange for his testimony, Rodriguez received immunity from prosecution.

How did he pass drug tests issued by Major League Baseball (MLB) during those years? Rodriguez followed the advice of Anthony Bosch, the fake doctor whom sold the PEDs to him. According to the report, he told Rodriguez, “to only use mid-stream urine for MLB drug testing. Bosch told Rodriguez not to use the beginning or the end urine stream.”

One thing is for sure; this story is far from over. It will be interesting to see how this plays out, including how the immunity agreement holds up.

If you believe that you have been wrongly accused of using or distributing PEDs or other illegal substances, The Spatz Law Firm may be able to help. With over 35 years of trial experience, Russell Spatz is a successful criminal defense lawyer who also served as an assistant State Attorney. There are a multitude of factors that into illegal drug cases and a defense attorney can help you understand the charges as well as your rights.

Source:

MiamiHerald.com, “Alex Rodriguez’s DEA confession: Yes, I used steroids from fake Miami doctor,” Jay Weaver, 05 November 2014.

 

 

 

 

 

New Supreme Court Ruling May Require Warrants for Blood Draws in DUI Cases in Florida

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.

Sources:

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.

Missouri v. McNeely, No. 11-1425, 2013 BL 102042 (U.S. Apr. 17, 2013), 17 April 2013.

Veteran’s Treatment Intervention Court Program in Broward County Helps Rehabilitate Veterans

On May 7th, 2012, Broward County instituted a new Veteran’s Treatment Intervention Court program designed to give veterans the option of participating in a program which can ultimately divert them from the criminal justice system and lead to the dismissal of charges.

The County works with the United States Department of Veteran’s Affairs (VA), which provides a Veteran’s Justice Outreach Coordinator (VJO) to develop individualized treatment plans for each veteran. The VJO will act like a mentor, working with the veteran to stop the behaviors and mitigate the problems that led to the veteran’s arrest. In addition, Impact Broward will provide a volunteer mentor program comprised of specially trained volunteers who will understand military culture and veteran needs.

The program is established to cover both County and Circuit criminal cases; the individual defendant must be a veteran or service member.  Additionally, the defendant must suffer from a military-related mental disease, traumatic brain injury, substance abuse disorder, or psychological problem.

If the defendant is terminated from this court program for any reason, the case will be transferred to the originally assigned division for further proceeding. A client, who was recently facing felony charges, was able to successfully opt into this program which can be very helpful to veterans and former service members. Unfortunately, the number of participants may be limited according to funding available for community and Department programs.

Recently, a client, who was facing felony charges, was able to successfully opt into this program, which can be very helpful to veterans and former service members. It’s a laudable achievement that could help many more who served our country. This new service is meant to provide lasting treatment for vets, with the goals of improving recidivism and, of course, improving public safety.

There are higher levels of homelessness and unemployment among veterans when compared to civilians. The Department of Housing and Urban Development’s Annual Homeless Assessment Report reported 144,842 veterans were homeless in 2010. And despite a reported decrease in unemployment rates for veterans, 44 percent of veterans participating in the Veteran’s Employment Challenge study stated they were not ready to make the transition to civilian life. Veterans with physical or mental-health issues were twice as likely to feel the same.

This is a population that deserves specialized attention. The VTI makes use of treatment and counseling programs already in place through the VA to help reintroduce these veterans to civilian life.

Sources:

Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, “Administrative Order Establishing Veterans Treatment Intervention Court Program,” Chief Judge Peter M. Weinstein, 7 May 2012.

Federation of American Scientists, “Congressional Research Service Report for Congress: Veterans and Homelessness,” Libby Perl, 2 February 2012.

WashingtonPost.com, “Finding a job biggest challenge for veterans, survey finds,” Steve Vogel, 19 August 2012.

Online Impersonation, Prank Calls on Steroids?

Last month, two students from Fort Hood County in Texas were arrested on felony charges after they created a fake Facebook account for a fellow student. The two girls attend middle school and were charged based on the rumors, threats and vulgarities that were posted on the fake account, which had a photo of an individual who looked similar to the victim. The profile was active for about a month before it was discovered.

With cyberbullying on the rise, Texas adopted a law in 2009 that makes online impersonation and harassment a felony punishable by up to ten years in prison.  While I don’t condone harassment by any means, this brings to mind the old-school act of making crank calls; only now social media offers a potentially perfect storm for real damages and liability.

At 63 years of age, and considerably past the age where I feel compelled to seek out adventure or thrills (thus minimizing the possibility of stupid behavior – for the most part) and having reached the point in my life where boredom is just another form of recreation, it would be easy to harshly judge teenagers who set up phony Facebook accounts and impersonate others.

Certainly the damage caused by such activity can be harmful, and given the unlimited reach of the Internet, more extensive. However, as I stare at my four-year old grandchild while in the process of playing with my wife’s iPhone “Angry Birds” using her thumbs at a rate approaching the speed of light, it becomes obvious to me that the children of today can exploit social media as easily as we were able to make phony phone calls 50 years ago.

Unquestionably, there are a few more steps involved, perhaps a bit more premeditation, but all-in-all, I tend to believe that in many instances the motivation may be at many times, akin to the driving force that had me at 12 year of age dialing a random number so as to ask a stranger at the other end of the phone “Is your refrigerator running?” and when the response was “Yes” declaring back, “Well don’t you think you oughta go catch it?” Oh well. Times were simpler then. It was a lot harder to hurt people or cause damage. Social media has certainly turned the phony phone call into a weapon of mass destruction.

Source:

Star-Telegram.com, “2 Hood County girls arrested over fake Facebook page,” Alex Branch, 20 July 2012