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State Court Judge Agrees with Federal Court Ruling: Florida’s Drug Possession Law is Unconstitutional

August 19, 2011 By Leave a Comment

BREAKING NEWS:  Miami-Dade Circuit Judge Milton Hirsch dismissed dozens of illegal drug cases over what he says is a flaw in the state drug law.

Agreeing with a recent Federal Court decision issued by U.S. District Judge Mary Scriven which declared Florida’s Comprehensive Drug Abuse Prevention and Control Act unconstitutional,  Miami-Dade Circuit Court Judge Milton Hirsch, on Wednesday, August 17, 2001, dismissed 39 pending drug possession cases.

Read Judge Hirsch’s decision here.

Read the Miami Herald article on Judge Hirsch’s decision here.

The effect of Federal Court ruling that continues to be felt in Florida’s State Courts. Beyond the effect on pending drug possession cases, those currently incarcerated my also seek relief via a petition for Habeas Corpus in Federal Court.

The Trueblood Law Group, P.A. represents clients throughout the State of Florida seeking relief from criminal convictions or charges. We have offices in Fort Lauderdale and Moore Haven, Florida. To contact a lawyer at our firm, call (954) 591-8261 or (863) 946-9160. You may also contact us by e-mail at info@truebloodlawgroup.com or by submitting your contact information here.

 

 

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Florida Drug Law Ruled Unconstitutional

August 8, 2011 By Leave a Comment

BREAKING NEWS:  In a monumental ruling, U.S. District Judge Mary Scriven issued an order on July 27, 2011, declaring Florida’s Comprehensive Drug Abuse Prevention and Control Act unconstitutional.

Florida, via its Comprehensive Drug Abuse Prevention and Control Act, was the  is the only state that eliminated the intent element or “mens rea” of criminal charges; meaning that to be found guilty of a drug charge the Defendant need not have the actual intent of committing the crime for which he was charged. Judge Scriven noted that the elimination of the intent element was, “[a]tavistic and repugnant to the common law.”

See the My Fox Tampa Bay article on the ruling here.

The ruling calls into question thousands of criminal convictions obtained by the State of Florida since the intent element was removed in 2002.  Individuals should contact qualified legal counsel to determine whether any prior drug related criminal convictions can be appealed.

The Trueblood Law Group, P.A. represents clients throughout the State of Florida seeking relief from criminal convictions or charges. We have offices in Fort Lauderdale and Moore Haven, Florida. To contact a lawyer at our firm, call (954) 591-8261 or (863) 946-9160. You may also contact us by e-mail at info@truebloodlawgroup.com or by submitting your contact information here.

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California Supreme Court rules No Warrant Necessary to search Cell phone

January 6, 2011 By Leave a Comment

An interesting ruling out from the California Supreme Court finding that no warrant was necessary to search an individual’s cell phone following arrest. The ruling is at odds with similar rulings from other States. Check out the article here.

Filed Under: Civil Litigation, Criminal Law

Florida’s “No Refusal” DUI Checkpoints and Your Constitutional Rights

December 30, 2010 By 1 Comment

In a growing number of counties in Florida, drivers will be subjected to a new and rapidly growing DUI deterrent described as “No Refusal Checkpoints.”

No Refusal Checkpoints work like a normal DUI checkpoint. However, if you refuse to take a breathalyzer test at a No Refusal Checkpoint, there is a Judge on-site that will sign a warrant forcing you to submit to a blood test in order to determine your sobriety. The No Refusal Checkpoints are aimed at detouring the common practice by those accused of DUI to refuse to take the breathalyzer test in hopes that charge would be dismissed or otherwise reduced for lack of evidence (a strategy this Firm does not necessarily condone or endorse – we advise to avoid the whole issue by not drinking and driving!). See the 10 News Article here.

These measures are being applauded by U.S. Transportation Secretary Ray LaHood and groups like Mothers’ Against Drunk Driving who suggest that No Refusal Stops will be heavily advertised in advance and will ultimately save lives.

Critics question the constitutionality of the on-the-spot warrants. Specifically, how does the refusal to submit to breathalyzer, with no other evidence, provide the necessary probable cause to allow a judge issue a warrant for a blood sample? The protection from unreasonable search and seizure, including a compulsory blood sample is protected by the Fourth Amendment to the United States Constitution. Certainly, it is well established law that non-consensual extraction of blood is a violation an individual’s reasonable expectation of privacy.

We can all agree that Drunk Driving is a serious and deadly crime that kills thousands of drivers every year. However, the continued degradation of constitutional rights is worrisome. (See my earlier posts on governmental consumer regulations and lawful GPS tracking by the government). The Fourth Amendment protects us from governmental intrusion into our personal lives. Once constitutional rights are diminished, it is nearly impossible to restore them to their original state.

As to the specific issue of No Refusal Checkpoints and the on-the-sport warrant, I am interested to see how Fourth Amendment Constitutional challenges to DUI charges play out in court. Perhaps one solution would be to institute more significant penalties for refusal to submit to the breathalyzer test than those currently imposed – a temporary suspension of driving privileges.

Tell us what you think. Are the checkpoints a violation of constitutional rights? If they are, is it still worth it?

To contact a lawyer at our firm by phone, please call (954) 591-8261 in South Florida or (863) 946-9160 in the Glades and Central Florida. You may also contact us by e-mail at info@truebloodlawgroup.com or by submitting your contact information here.

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Court allows Feds to monitor your movements by GPS

August 29, 2010 By Leave a Comment

In an eye-opening ruling out of the 9th Circuit Federal Court of Appeals in California, the Court found that law enforcement officers may secretly place a GPS device on a person’s car without seeking a warrant from a judge.

DEA agents in Oregon in 2007 secretly attached a GPS to a vehicle owned by a suspected drug dealer. When the suspect arrested and charged a critical piece of evidence was the GPS data, including the longitude and latitude of where the suspect’s vehicle was driven. Prosecutors asserted the Jeep had been driven several times to remote rural locations where DEA agents discovered marijuana being grown. (Read the full CNN article on the case here.)

While this decision directly effects those living in the 9th Circuit (California, Oregon, Washington, Alaska, Montana, Idaho, Nevada, Hawaii and Arizona), the issue nationally is far from over. A recent ruling out of the Washington D.C. Court of Appeals on a similar case ruled exactly the opposite; that federal agents were required to obtain a warrant prior to placing a GPS device on a suspect’s vehicle. Most observers believe that this issue is destined for a showdown in the Supreme Court.

Critics view the decision as another significant expansion of police power and a court approval of government invasion of privacy. The Court itself was sharply divided on the issue. Chief Judge Alex Kozinski, wrote in his stinging dissent said the defendant’s driveway was private and that the decision would allow police to use tactics he called “creepy” and “underhanded.”

Proponents of the decision see the GPS trackers as a law enforcement tool that is no more intrusive than other means of surveillance, such as visually following a person, that do not require a court’s approval.

What are your thoughts? Are Courts allowing the government to invade our privacy?

Or are the use of GPS tracking devices the evolution of law enforcement technology and not an invasion of privacy?

Let us know your thoughts!

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Supreme Court Ruling a win for Gun Owners; Loss for State’s Rights

June 28, 2010 By 1 Comment

The Supreme Court recently ruled 5 to 4 to strike down the City of Chicago’s ban on handguns in McDonald v. Chicago (08-1521). The conservative Court majority held that an individual’s right to bear arms as guaranteed under the 2nd amendment and right to due process under State law under as guaranteed by the 14th amendment to the Constitution, trump a State’s right to locally implement highly restrictive gun control measures. The ruling reinforces a similar ruling by the Court overturning a handgun ban in Washington, D.C. in 2008.

While considered to be a significant victory for Gun Rights activists, the ruling has raised fears among some that the Court may further restrict State and local authorities’ ability to regulate certain inherently dangerous activities that may come within the expanded scope of fundamental rights protected by the 14th amendment. However, Courts have typically upheld State bans on more powerful firearms; including the Supreme Court’s ruling that upheld California’s ban on assault rifles in 2004.

To read the full Supreme Court opinion, click here. To read the CNN article on the case, click here.

To learn more about the Trueblood Law Group, P.A., or to contact an attorney, click here.

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Caution: Recent U.S. Supreme Court ruling reduces Miranda rights

June 6, 2010 By Leave a Comment

You have the right to remain silent; its the first thing you hear after you’ve been told you’re under arrest. The arresting officer continues reading your Miranda Rights. You are advised that anything you say, can (and may be) used against you; and that you have the right to an attorney.

The practice of being “read your rights” almost seems cliche and provides for high drama in television and movies. However, the U.S. Supreme Court’s recent ruling in Berghuis v. Thompkins appears to modify the current state of Miranda law to include a requirement that an individual must do something more than just literally, remain silent to invoke his or her right to remain silent.

In the case, Berghuis v. Thompkins, the Defendant remained silent in a police interrogation for three hours before finally breaking silence and implicating himself in the alleged crime. The majority opinion of the Court opined that the Defendant needed to break his silence to affirm his rights and stop the interrogation. The Court’s ruling held that the Defendant’s Miranda rights were not violated and his conviction was affirmed.

Notably, recently appointed Justice Sonia Sotomayor strongly objected the conservative majority’s position, stating that the Americans’ right to protection from police was turned “upside down.”

This ruling perhaps creates a dangerous precedent that unnecessarily expands police power. How long could the police have continued the interrogation before the Defendant’s rights were violated? Is it even possible to implicitly invoke your right to remain silent under this ruling? These issue remain unclear.

Tell us what you think. Should you have to affirmatively invoke your rights to reserve them? What effect can this ruling have other constitutional rights?

Read the AP article on this case here. Read the full Supreme Court ruling here.

To learn more about the Trueblood Law Group, P.A.’s Criminal Law practice, click here. To contact our firm, click here.

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