Our rights have been eroded once more!!!
Has the Supreme Court Decimated Miranda? - Yahoo! News
http://news.yahoo.com/s/time/08599199358000
============================================================
Yahoo! News
http://news.yahoo.com/
http://yourbestdefensetampa.com/?q=node/82
--
Sent via AddToAny: http://www.addtoany.com
http://yourbestdefensetampa.com/?q=node/88
--
Sent via AddToAny: http://www.addtoany.com
http://yourbestdefensetampa.com
--
Sent via AddToAny: http://www.addtoany.com
Criminal law -- Driving under influence -- Search and seizure -- Blood draw -- Search warrant used to obtain defendant's blood was not issued or executed in manner which was violative of Florida's search warrant statute as set forth in Chapter 933 -- Blood is property which, when infused with excessive or unlawful amount of alcohol, is properly characterized as the means by which the offense of DUI is committed -- Implied consent law is not sole statutory authority for obtaining blood draws in DUI cases -- Moreover, implied consent law applies only in situations in which there is no search warrant -- Because blood was seized pursuant to lawful search warrant, it was error to grant motion to suppress blood test results -- However, because blood sample was obtained outside procedures set forth in implied consent law, state will be required to lay traditional scientific predicate for admission of blood test results and will not be afforded presumptions of impairment set forth in section 316.1934(2)
VIEW OPINION
Criminal law -- Driving under influence -- Evidence -- Videotape -- Violation of mandatory videotaping policy -- Officer's pattern of selectively audiotaping defendants in DUI cases by muting of body microphone while speaking with fellow officer and turning microphone on while speaking with defendants in violation of police department's mandatory videotaping policy constitutes bad faith and violated defendant's due process rights -- DUI charge is dismissed with prejudice
VIEW OPINION
Criminal law -- Solicitation of prostitution -- Jury instructions -- Entrapment -- Alleged error in failing to give jury instruction on entrapment was not preserved for appeal where defense counsel clearly and unequivocally stated that she did not object to jury instructions which did not contain instruction on entrapment -- Had issue been properly preserved, failure to give instruction was not error where there was no evidence that suggested possibility of entrapment -- Evidence -- Character -- No abuse of discretion in refusing to allow testimony of proposed character witnesses who would testify about defendant's lack of predisposition to solicit prostitute -- Predisposition to solicit prostitute is not character trait -- Moreover, defendant did not offer any evidence that he was induced by government agent to commit solicitation
VIEW OPINION
Licensing -- Driver's license -- Revocation -- Third DUI conviction -- County court's imposition of five-year license suspension when sentencing licensee for third DUI did not prevent Department of Highway Safety and Motor Vehicles from imposing ten-year license revocation -- Predicate convictions -- Out-of-state conviction -- Department did not err in counting New York conviction for driving while ability impaired as predicate conviction
VIEW OPINION
Licensing -- Driver's license -- Suspension -- Driving under influence -- Breath test -- Substantial compliance with administrative rules -- Twenty-minute observation period -- Observation period began at same time as arrest at scene of traffic stop, observation occurring in part during arrest and transportation of defendant did not satisfy 20-minute observation period requirement -- License suspension vacated
VIEW OPINION
Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Officer acting outside jurisdiction -- Issue of whether request for breath test and licensee's refusal of request occurred outside jurisdiction of city police officer, who arrested licensee within city and transported him to county testing facility outside city, is immaterial in administrative license suspension case -- Implied consent warning -- No merit to claim that implied consent warning read to licensee was improper where warning read by officer requested breath, blood or urine tests in alternative, and there is no evidence that urine or blood test was specifically requested
VIEW OPINION
Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Hearing -- Failure of subpoenaed witness to appear -- Refusal of sheriff's office to accept subpoena for breath test technician and hearing officer's refusal to continue hearing with temporary driving permit due to nonappearance of technician denied licensee due process where technician could testify as to how notation "not a refusal" came to be on breath test affidavits and meaning of notation -- Due to arbitrary actions of sheriff's office and hearing officer and delay in court reaching decision, court elects to quash license suspension rather than remand to reset balance of hearing
VIEW OPINION
Licensing -- Driver's license -- Suspension -- Driving under influence -- Lawfulness of stop and arrest -- Where licensee, who was found slumped behind wheel, became combative with rescue personnel and tried to drive away, legitimate concern for safety of motoring public justified detention of licensee by officer who opened vehicle door and turned ignition off -- Hearing -- Refusal to issue subpoenas -- Licensee was not denied due process by hearing officer's refusal to issue subpoena for officer who was expected to testify that licensee was misinformed regarding her eligibility for work permit if she refused breath test because licensee's confusion about eligibility for permit is irrelevant to determination of whether licensee's license was lawfully suspended based on breath test results
VIEW OPINION
Criminal law -- Search and seizure -- Prolonged delay in writing citation after traffic stop for speeding -- Error to deny motion to suppress cocaine which was discovered when dog alerted on vehicle where officer detained defendant for almost thirty minutes before issuing citation and search did not begin until after citation had been issued and the purpose of the traffic stop completed -- Absent an articulable suspicion of criminal activity, the time an officer takes to issue citation should last no longer than is necessary to make any required license or registration checks and to write the citation -- Completed traffic stop cannot be extended to conduct a dog sniff search, even if the delay is de minimus
Reported at 35 Fla. L. Weekly D915a
Criminal law -- Plea -- Withdrawal -- Failure to advise of immigration or deportation consequences -- Timeliness of motion -- Defendant may not obtain the benefit of a new two-year window period under State v. Green, 944 So. 2d 208 (Fla. 2006), if the claimant received actual notice of a deportation proceeding more than two years before the motion to withdraw the plea -- Green did not revive claims that were final under Peart v. State, 756 So. 2d 42 (Fla. 2000)
Reported at 35 Fla. L. Weekly S217a
Criminal law -- Probation revocation -- Sentencing -- Criminal Punishment Code scoresheet -- Additional offenses -- Where a trial court's jurisdiction over a criminal offense has expired, the trial court may not score that offense as an additional offense during a sentencing proceeding -- Statute plainly provides that an offense qualifies as an “additional offense” for purposes of scoresheet if it “is pending before the court for sentencing at the time” of the sentencing proceeding then being conducted -- Third-degree felonies for which defendant had completed his prison sentences and probation should not have been scored as additional offenses when sentencing defendant following revocation of probation for other offenses -- Error was not harmless where lowest permissible score using correct scoresheet would be nearly two years less, and, from the record, court cannot rule out possibility that this change would have affected trial court's sentencing decision
Reported at 35 Fla. L. Weekly S219a
Marc A. Joseph, P.A.
3111 W. Martin Luther King Jr. Blvd., Suite 100
Tampa, Florida 33607
813-234-6374
www.mjosephesquire.com
