Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Tag: Palm Beach

Will Police Officers Need A Warrant To Take Nonconsensual Blood Samples in DUI Cases?

Florida’s DUI defense attorneys should know that the United States Supreme Court heard oral argument in a DUI blood case on January 9, 2013.  In Missouri v. McNeely, SC 11-1425, the question presented is: Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.

Although the Palm Beach Post published a brief report on the arguments, a more thorough discussion of the oral argument can be found at SCOTUSblog.  After reading the SCOTUSblog discussion, it seems that the Justices may be leaning towards requiring a warrant before a blood draw can be taken, except in exigent circumstances.  Here’s a few paragraphs from SCOTUSblog:

Endlessly repeating the claim that there would never be enough time to get a warrant before alcohol content would dissipate, as the lawyers for the state and for the federal government did, seemed to impress not one member of the Court.  Even a Justice broadly sympathetic to law enforcement, like Justice Samuel A. Alito, Jr., used his questions to explore when officers in rural communities would be given a pass on a warrant requirement, without suspending that requirement altogether.

A few minutes into Missouri’s argument , by John N. Koester, Jr., an assistant prosecuting attorney in Jackson, Mo., Justice Antonin Scalia set the tone that would prevail.  “Why not force the suspect to take a breathalyzer test rather than having a needle forced into his arm?”  That question immediately demolished the notion that a blood test is not an invasive procedure and, being a form of force, was something that should not be left within complete police discretion.   And, of course, the only way to keep the procedure from being simply a matter of police choice was to require them to ask someone neutral for permission — in other words, seek a warrant.

Koester [also] learned quickly that Justice Anthony M. Kennedy, always a potential “swing” voter, was deeply skeptical of the never-enough-time argument.   Kennedy noted that half of the states do not allow the taking of DUI blood samples without a warrant, and they have streamlined procedures for issuing warrants that deal with the alcohol dissipation phenomenon.   “Does that bear on the question of reasonableness?” Kennedy asked, rhetorically.

Given the tenor of the Justices’ questions at oral argument, this case has potentially huge implications for Florida’s Implied Consent law.  Florida’s DUI defense and criminal appeals attorneys should stay tuned.  To read a transcript of the oral arguments, click here.  The audio recording should be available at the end of the week, on Friday, January 11, 2013.  The general page for links to the US Supreme Court audio recordings can be found by clicking here.

Could Florida’s Stand Your Ground Law Be Amended?

According to an article in the Palm Beach Post yesterday, in response to the Trayvon Martin shooting earlier this year, Florida Senate Democratic Leader Chris Smith of Fort Lauderdale has filed SB 136 in an attempt to curtail the current stand your ground law.  Florida criminal defense and criminal appeals attorneys might like to follow this bill as it travels through the bowels of the Legislature.  The gist of the amendment appears to limit the stand your ground defense in the case of pursuit of an alleged trespasser or assailant, or if the person claiming the stand your ground defense leaves a place of safety to place him or herself in proximity to a situation that might call for the use of force.  To view the text of the bill, which was just filed on December 19, 2012, click here.

Merry Christmas, John Goodman

Have you read the report in the Palm Beach Post this afternoon?  It seems that Palm Beach Circuit Court Judge Colbath denied the State’s motion to revoke Goodman’s house arrest, which means that Goodman will probably be home in time for Christmas (if he hasn’t bonded out already).  Now, don’t get me wrong.   If the State of Florida didn’t prove by a preponderance of the evidence that Goodman intentionally tampered with his ankle monitor, and if Goodman’s criminal defense attorneys did their job of highlighting the weaknesses in the State’s position, then I agree that the State’s motion should have been denied.  But what I dislike so much about the court’s ruling is that it only feeds the public perception that money buys justice.  Whether perception is right or wrong is beside the point.  The bottom line is that based on the number of online comments which have been posted since the Palm Beach Post report went up at 4:13 pm EST (a bit over 3 hours ago), the public clearly thinks that money buys justice.  Merry Christmas, John Goodman.

United States Supreme Court Opens October 2012 Term With Case From South Florida

It’s October, and with that brings the start of the U.S. Supreme Court’s new Term.  Supreme Court junkies from South Florida might be interested to know that the Court opened its term by hearing oral argument in two cases.  Although neither of the appeals is criminal, both appeals present interesting questions.  In Esther Kiobel v. Royal Dutch Petroleum, No. 10-1491, the Court will be addressing “[w]hether and under what circumstances the Alien Tort Statute, 28 U.S.C. 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States?”  The Supreme Court docket can be viewed here.  According to a report on CNN, the case will center on whether foreign victims of torture and other crimes against humanity can sue corporations and others in federal courts of the United States.

According to the docket for the other case, Fane Lozman v. The City of Riviera Beach, Florida, No. 11-626, the res in the putative in rem admiralty proceeding was sold at a judicial auction in execution of the district court’s judgment on a maritime lien and a maritime trespass claim, and subsequently destroyed.   The Court directed the parties to brief whether “either the judicial auction or the subsequent destruction of the res render this case moot?”  According to a news report in the local paper, the Palm Beach Post, the case arose after Lozman was directed to make improvements to and to renew his lease for his houseboat, which he kept at the Riviera Beach Marina.  When Lozman refused, the City impounded the houseboat and destroyed it.  If the Court decides that the issue is not moot, the Court will likely address whether federal admiralty laws apply, such that the City would have been permitted to impound and destroy the houseboat for Lozman’s failure to make the necessary improvements to the houseboat.  Further information on the case can also be found on SCOTUSblog.

United States Supreme Court Affirms Removal of Asian Husband and Wife, Lawful Permanent Residents Since 1984, After They Are Convicted of Filing False Tax Returns: Kawashima v. Holder, No. 10-577

Now that the Mardi Gras season is over, the federal criminal defense and immigration defense lawyers in Palm Beach, Broward, and Miami Dade county may want to take a few moments moment to read a newly issued opinion from the United States Supreme Court: Kawashima v. Holder, No. 10-577.  On February 21, 2012, the Court affirmed the deportation and removal of Akio and Fusako Kawashima, natives and citizens of Japan who were lawful permanent residents of the United States since June 21, 1984.  According to the opinion, in 1997, Mr. Kawashima pleaded guilty to one count of willfully making and subscribing a false tax return in violation of 26 U.S.C. § 7206(1), and Mrs. Kawashima pleaded guilty to one count of aiding and assisting in the preparation of a false tax return in violation of 26 U.S.C. § 7206(2).  After  framing the issue as “whether aliens who commit certain federal tax crimes are subject to deportation as aliens who have been convicted of an aggravated felony,” the Court held that “violations of 26 U. S. C. §§ 7206(1) and (2) are crimes ‘involv[ing] fraud or deceit’ under 8 U.S.C. § 1101(a)(43)(M)(i) and are therefore aggravated felonies as that term is defined in the Immigration and Nationality Act, 8 U. S. C. § 1101 et seq., when the loss to the Government exceeds $10,000.”

Justice Thomas delivered the majority opinion of the Court, and was joined by the other conservative members of the Court, Chief Justice Roberts, and Justices Scalia, Kennedy, Alito, and Sotomayor.  Although the majority opinion is a rather short 11 pages, be warned: the writing is a dry, statutory construction discussion of several  tax and immigration sections, including 26 U.S.C. §§ 7206(1), (2), and 8 U.S.C. §§ 1101(a)(43)(M)(i) and 1227(a)(2)(A)(iii) of the Immigration and Nationality Act.

As with most Supreme Court opinions, the dissenting opinion is once again the most interesting part to read.  While Justices Ginsburg, Breyer, and Kagan also undertake a statutory-construction discussion, the critical tone in which the dissenters point out the flaws of the majority opinion cannot be mistaken.  Ordinarily, I would summarize the points in the dissenting opinion for you, but in this case, Justice Ginsburg’s writing is so persuasive, that I think that you really should take a few moments and read it for yourself.

On a side note, I am interested to see how much media attention, if any, the Kawashima opinion will receive.  Immigration is always a hot-button issue in American politics, but I suspect that this case will attract little, if any attention.   After all, it’s a boring tax and immigration case, right?  If any of you are basketball fans out there, you probably know of some of the racial comments that have been made about the New York Knicks’ Jeremy Lin.  And if you read the article that I read on CNN this morning, you might also know that for some reason, racism against Asians appears to be more socially acceptable than racism against other minority groups.  Saturday Night Live addressed that topic nicely, as you’ll see if you read the article yourself.  I suspect that in light of today’s culture, nobody will care much at all about the fact that Mr. and Mrs. Kawashima are going to be deported because they are Asian.  I hope that’s not the case.  I hope that people instead think about what really happened here: Mr. and Mrs. Kawashima, lawful permanent residents of the U.S. since 1984, made the unfortunate choice of filing false tax returns.  And now they are being deported?

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