Category Archives: News

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.

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Support Christian Film “Home Run,” Opening on April 19

Support Home Run, Baseball Christian film, DUI

Christian film Home Run opens on April 19th, a week from today. We need your help to keep this wholesome, inspirational movie in theaters! Supporting a Christian movie is one way we can help people see and know God.

This inspirational movie is the story of baseball all-star Cory Brand, a successful athlete who wins out in the field. His life off the field is a different story, replete with haunting memories and bad habits. He almost loses everything after a DUI and a team suspension. His agent decides to send him back to the small town where he grew up, to get back to his roots and coach a local youth baseball team. While he’s there, he must attend the only recovery program in town. The movie beautifully follows his progress from negativity and slavery to his demons to freedom and hope for his future, a powerful transformation and tale of redemption through God that we can all relate to in some way and enjoy. You can learn more about the film and enjoy the trailer at the movie web site here: http://homerunthemovie.com/

Help Christian Film Reach a Wide Audience

The best way to support this wonderful film is through good attendance on opening weekend, from April 19 to the 21. Our goal is to sell out the theaters; the first weekend is pivotal in the decision to take keep the movie playing a second week and then help it place strongly nationwide in box offices. The film is only guaranteed one week at the theaters, but with great attendance on opening week and on the second week, it may make it to a third week!

Many groups have already purchased their tickets for multiple showings this opening weekend. Any size group helps, from twelve to hundreds or more. One way to ensure that people purchase tickets in advance is to set up a table at your church and take orders for tickets. It’s very important to purchase the tickets quickly to encourage theaters to place this film in a larger auditorium. Some theaters have the tendency to put small films in small auditoriums, but with strong advance sales they will move it to a larger auditorium, or even open an additional one! If you try to buy tickets a couple of days in advance and they tell you a showing is sold out, ask for a manager and request an additional auditorium.

Online ordering of group discount tickets (minimum 10 tickets) is available for Regal Kendall. Purchase discount tickets here. The movie opens at Regal Kenall in Miami, Regal Oakwood in Hollywood, Regal Cypress Creek in Ft. Lauderdale, and Cinemark Palace 20 in Boca Raton.

Showtimes for Home Run in Southeast Florida Theaters:

  • Regal Kendall Village  (Miami)—   11am (Fri, Sat, Sun only), 1:45, 4:30, 7:15 & 10:00pm
  • Regal Oakwood (Hollywood) — 12:00, 2:35, 5:10, 7:45 & 10:20pm
  • Regal Cypress Creek (Ft. Lauderdale) — 1:40, 4:20, 7:00 & 9:40pm
  • Cinemark Palace 20 (Boca Raton) — 10:30am (Fri, Sat, Sun only),  1:20, 4:10, 7:00, 9:50pm & 12:30am

How to Spread the Word about Home Run:

Please print and distribute fliers, like their Facebook page to receive their updates and share their posts with your network, and maybe even get the trailer shown in your church or group. https://www.facebook.com/HomeRunTheMovie. There is a list of resources below that should you help spread the word. They can be printed and emailed or you could make your own flier to organize people in your group or church.

A list of Resources to Help Spread the Word

Cross Florida: Christian Workshops in Addiction and Grief Recovery

Christian recovery in Miami, Cross Florida

Christian Workshops in Addiction and Grief Recovery

Cross Florida will be hosting the first Christian Recovery Conference in South Florida on February 8-9, 2013. This first-of-its-kind conference will bring Christians and Christian Recovery Groups together for a weekend of learning, community building, and praise of God. The summit will provide many workshops centered on Christian recovery methods and experiences.

Addiction Recovery Workshops

Attendees can benefit from workshops focusing on various kinds of addictions, including food, sex, and alcohol. “Hold onto the Word, not the Fork,” will teach attendees how to differentiate between emotional and physical hunger, and works on the premise that overeating is a symptom of a greater problem, our relationship with God.  Summit goers can look forward to Pastor Carey Miller’s presentation “Our God is Able,” on overcoming addictions through Scripture and his 66 years of experience, as well as Alan Oria’s workshop on Breaking the Cycle of Addiction. Mr. Oria will focus on the cycle from denial to full addiction and recovery, the addictive brain, and addictive behaviors.

I will also be presenting a workshop on the next frontier in recovery. “Emotional Sobriety” will focus on unhealthy dependencies and breaking the bonds of idolatry. Idols come in many forms, including dependence on alcohol, over-attachment to people, property, roles in society… in short, anything that can substitute for God.

Grief and Empowerment Workshops

Other striking workshops cover staying sober while dealing with grief, either from a loved one dying or with post-abortion trauma. The underlying theme is learning to ask for God’s help in dealing with grief, recovery, and healing. There will also be an opportunity to partake in the launch of a women’s support group for ladies experiencing “Life’s Hurts, hang-ups, and unwanted habits.” Bring ideas for book study and perhaps volunteer to be a servant-leader for the group!

The “Learn the Power of Your Story” workshop is presented by Michael Benson and designed to help people understand and use the power of their testimonials. This workshop will allow attendees to share their stories and truth in every twelve step meeting through scripture.

Please head over to our website to learn more about the featured speakers, and remember to register early! Early registration at a discounted rate is available until January 15, 2013.

More Than Likely Guilty Was Not Enough

criminal-defense-attorney-lawyer-miami-dui-dwi-family-lawI 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.

criminal-defense-attorney-lawyer-miami-dui-dwi-family-lawIf 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

http://www.spatzlawfirm.com

rspatz@spatzlawfirm.com

National Drug Control Strategy – 2008

Washington, D.C.— During his weekly radio address, President Bush released the 2008 National Drug Control Strategy. The Strategy outlines progress made in reducing both the supply of and demand for illegal drugs, and highlights challenges that remain.With the release of his first National Drug Control Strategy in 2002, the President set the ambitious goal of cutting drug use among young people by 25 percent over five years. Through a balanced approach that emphasized prevention, education, and treatment, as well as enhanced law enforcement and international cooperation, youth drug use has declined 24 percent since 2001 860,000 fewer young people using drugs today than six years ago. In addition, teen marijuana use is down 25 percent, Ecstasy use has dropped by more than half, and youth use of methamphetamine has plummeted 64 percent.

John Walters, Director of National Drug Control Policy and President Bush’s Drug Czar said, Teen drug abuse is down sharply, and this will provide lasting benefits to our Nation, since we know that most adults who get caught in addiction begin with use as teens. But there are still too many of our friends, our family members, our coworkers and our neighbors who are becoming lost in the maze of addiction. We need to find whatever ways we can to create a turning point in their lives a turning point that leads to recovery.

Bringing attention to the emerging threat of prescription drug abuse, President Bush called for tighter controls on Internet sales of controlled substances. Online pharmacies have increasingly become sources for diversion of prescription drugs, and the President urged Congress to take swift legislative action to put an end to illegal sales of controlled substances on the Internet.

The Ryan Haight Online Pharmacy Consumer Protection Act (S.980), sponsored by Senators Dianne Feinstein (D-CA) and Jeff Sessions (R-AL), would restrict the ability of rogue Internet pharmacies to illegally divert dangerous controlled substance prescription drugs to millions of people even teens without valid prescriptions issued under a legitimate physician’s care. The bill was unanimously approved by the Senate Committee on the Judiciary in September 2007, and awaits consideration by the full Senate.

Prescription drugs provide tremendous benefits to our Nation, said Director Walters, but when misused or abused they can lead to addiction, and worse. We are working with leaders in Congress to modernize our laws to address the problem of rogue online pharmacies’ which skirt around the safeguards of legitimate medical practice and prescriptions. Prescription drug abuse is an area of serious concern, and we are now focusing our Nation’s supply, demand, and prevention policies with the goal of seeing the same reductions that we have achieved for illegal street’ drugs.

http://www.spatzlawfirm.com