Saturday, June 25, 2016

DUI Laws to change following US Supreme Court case

DUI laws in the State of Florida and across the country were shaken upon following the United State’s Supreme Court’s ruling in Birchfield v. North Dakota.  The issue that was presented was whether in the absence of a warrant, may a state statute criminalize an individual’s refusal to submit to a blood alcohol test.

In the State of Florida, refusal to submit to a breath, urine or blood test can be considered a criminal misdemeanor according to Florida Statute §316.1939.  Pursuant to section 316.1939:
Any person who has refused to submit to a chemical or physical test of his or her breath, blood, or urine, as described in s. 316.1932, and whose driving privilege was previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, and:
(a) Who the arresting law enforcement officer had probable cause to believe was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages, chemical substances, or controlled substances;
(b) Who was placed under lawful arrest for a violation of s. 316.193 unless such test was requested pursuant to s. 316.1932(1)(c);
(c) Who was informed that, if he or she refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months;
(d) Who was informed that a refusal to submit to a lawful test of his or her breath, urine, or blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor; and
(e) Who, after having been so informed, refused to submit to any such test when requested to do so by a law enforcement officer or correctional officer commits a misdemeanor of the first degree and is subject to punishment as provided in s. 775.082 or s. 775.083.


The United States Supreme Court, in a 7-1 decision, held that in DUI cases, warrantless breath tests are permissible under the search incident to arrest exception to the Fourth Amendment’s warrant requirement because they do not implicate significant privacy concerns. They involve minimal physical intrusion to capture something that is routinely exposed to the public, reveal a limited amount of information, and do not enhance any embarrassment beyond what the arrest itself causes. Blood tests, however, implicate privacy interests because they are much more physically invasive -- they require the piercing of the skin -- and they produce a sample that can be preserved and used to obtain further information beyond the subject’s blood alcohol level at the time of the test. The Court also determined that criminalizing refusal to submit to a breath test is designed to serve the government’s interest in preventing drunk driving, which is greater than merely keeping currently drunk drivers off the roads, and does so better than other alternatives. However, the same rationale did not apply to criminalizing refusal to submit to a blood test because of the greater degree of intrusion and the available alternative of the breath test.

Friday, April 29, 2016

Violation of Probation

          On April 21, 2016, the Florida Supreme Court granted review of the Second District Court of Appeals decision in Queior v. State, 157 So.3d 370 (Fla. 2DCA 2015) on the issue of whether a Probation Officer’s testimony that a probationer has failed a drug test administered by the Probation Officer is competent, non-hearsay evidence for purposes of proving a violation of probation.   
          In Queior, the State sought to revoke the defendant’s probation of the basis of a positive drug test.  At the hearing on the violation of probation, the State offered testimony from the defendant’s probation officer that they personally administered the drug test and that the test read positive.  The defense objected to the testimony claiming that the State had failed to lay the proper predicate to establish the reliability of the field drug test.  The trial court revoked the defendant’s probation.
          The defendant appealed, and the Second District Court of Appeal reversed the trial court’s revocation on the grounds that the probation officer’s testimony was not competent, non-hearsay evidence.  The Florida Supreme Court held that a probation officer’s testimony that a probationer has failed a field drug test administered by the probation officer is competent, non-hearsay testimony and can be relied upon in a revocation hearing.

Criminal Sentencing

          On April 28, 2016, the Florida Supreme Court granted review of the Fourth District Court of Appeals decision in Norvil v. State, 162 So.3d 3 (Fla. 4DCA 2014) on the issue of whether a trial court can consider a subsequent arrest without conviction during sentencing for the primary offense.   
           In Norvil, the defendant was charged with one count of armed burglary of a dwelling.  The defendant entered an open plea to the bench, and during sentencing, the State filed a Sentencing Memorandum requesting that the court consider a subsequent charge of burglary of a vehicle that was still pending.  Over the defense’s objection, the trial court announced that it was going to consider the pending charge and declined to sentence defendant to a Youthful Offender sentence and instead sentenced him to twelve-years in prison.
          On appeal, the issue before the Court was whether the trial court violated the defendant’s due process rights by considering a subsequent arrest without conviction.  The Florida Supreme Court held that “a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense.”

Tuesday, January 12, 2016

Florida Death Penalty Unconstitutional

This morning, the United States Supreme Court, in an 8 - 1 decision, has ruled that Florida's system for sentencing persons to death is unconstitutional.  The system is set up to where the same jury who found the accused guilty, will participate in the "penalty phase" of the trial.  During the penalty phase, both the State and Defense will put on testimony and offer evidence in an effort to sway a jury into deciding to rule in favor of death or life in prison.  The problem the Court found was that regardless of the jury's decision, the ultimate decision power rested in the hands of the trial Judge. 

Thursday, December 3, 2015

Double Jeopardy


Article I, § 9 of the Florida Constitution reads, “no person shall be twice put in jeopardy for the same offense.”  Similarly, the Fifth Amendment to the United States Constitution provides that “no person shall be subject for the same offence to be twice put in jeopardy of life or limb.”  But what happens when a jury returns a verdict finding a defendant guilty of two criminal offenses having the same elements, but one which carries a lesser sentence than the other?  As seen, neither the United States Constitution nor the Florida Constitution dictate which conviction should be vacated.

This issue was recently addressed by the Florida Supreme Court in State of Florida v. Tuttle, SC14-817 (Nov. 12, 2015).  In Tuttle, a jury returned a verdict finding the defendant guilty of attempted home invasion burglary and armed burglary.  Before the trial court entered the sentencing phase, the State of Florida advised the court of the double jeopardy issue and requested that the court dismiss the attempted home invasion count as it carried a lesser sentence.  The defendant objected and advised that the court was required to dismiss the count carrying the higher potential sentence. 

The Florida Supreme Court accepted review of this issue as there was conflict regarding this issue amongst the First, Fourth and Fifth District Courts of Appeal.  The Florida Legislature has codified the double jeopardy test that was annunciated in Blockburger v. United States, 284 U.S. 299 (1932) in Florida Statute § 775.021(4).  This section provides as follows:

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same offense as provided by statute.

3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

The Florida Supreme Court held, “that when a defendant is found guilty for two offenses and adjudication of the defendant as guilty for both offenses would violate double jeopardy and section 775.021(4)(b)3., the lesser offense as defined by Pizzo v. State, 945 So.2d 1203 (Fla. 2006) should be vacated.”

Thursday, December 11, 2014

Criminal Law | Search Warrants


Coronado v. State, 39 FLW D2113b (Fla. 2d DCA) – October 8, 2014
Deputies responded to a location to serve an outstanding arrest warrant.  Upon arriving, they noticed a grey pickup truck parked at the premises.  A registration check disclosed that the tag on the truck was registered to an Audi which had been reported stolen in 2013.  The officers made contact with the owner of the property, and after determining that the subject of the arrest warrant was not present, asked her about the truck.  She advised that the truck belonged to her son, and called him outside.  He advised the officers that he had found the tag in a ditch, and kept it.  During the conversation the deputies noticed numerous vehicles and car parts on the premises. The defendant explained that he scrapped cars and repaired vehicles for his friends.  The deputies sought and received permission to walk around the property looking for the stolen Audi.  During the walk, one of the deputies noticed the odor of marijuana emanating from a small shed in the yard, which was located about thirty feet from the house.  They sought permission to search the shed, which was denied. Based on these events, the deputy drafted a search warrant affidavit requesting to search not only the shed, back yard, and vehicles on the property, but also the residence, alleging that probable cause existed that the residence was being used in violation of Chapter 893.  The warrant was granted.  No marijuana was found in the shed, nor stolen vehicles/parts found in the yard, but a small amount of methamphetamine was located during the search of the residence.  During the suppression hearing, the deputy testified that he had smelled burnt marijuana coming from the shed, and included the residence in the warrant because in his experience it was not uncommon to locate items of evidentiary value in a home which was so close to another structure believed to contain contraband, such as the shed.  The defendant argued that the odor of marijuana from a shed does not extend probable cause to the home.  The trial court denied the suppression and admitted the evidence.  The defendant appealed.  The Second District Court of Appeal reversed the trial court, finding that the warrant application failed to establish probable cause the search the residence.  The evidence was suppressed.

Criminal Law


Scott v. State, 39 FLW D2458b (Fla. 4th DCA) – November 26, 2014
Law Enforcement were conducting surveillance of a residence for the purpose of executing an arrest warrant on someone named R.Q.  During the surveillance, the defendant exited the residence.  The officers approached defendant, at which time he denied being R.Q., and provided them with his name.  The officers were unable to confirm his identity via computer check, so the defendant invited them into the residence while he looked for his ID.  He was unable to locate it, and he and the officers returned outside.  The officers asked defendant to sit on the porch while they continued their efforts to confirm his identity.  A few minutes later, the defendant walked back into the house, locked the door, and exited through the rear of the residence.  The officers saw defendant jump the back fence and attempt to flee, but he was caught and arrested for Resisting an Officer without Violence (it was later established that he was not the person named in the arrest warrant).  At trial, the defendant moved for a judgment of acquittal (JOA), arguing that his interaction with the officers constituted a consensual encounter, and therefore he had the right to end it however and whenever he wanted.  The court denied the motion, and the defendant was convicted.  This appeal ensued. The Fourth District Court of Appeal held that while fleeing a valid investigatory stop could support a resisting charge, the interaction with the defendant in this case did not constitute a valid detention.  The trial court was reversed, and the JOA was granted.