New Hemp Law Limits ‘Sniff and Search’ Arrests

Marijuana

The prohibition against cannabis is quickly eroding in the United States to the point that law enforcement agencies are now having problems arresting people for marijuana crimes. While marijuana remains illegal at the federal level, hemp has been recently legalized across the country which makes Palm Beach’s police’s strategy of making ‘sniff and search’ arrests will no longer be viable. Anyone arrested for a marijuana offense or arrested based on an officer smelling marijuana should reach out to Meltzer and Bell P.A. at (561) 557-8686.

Police have traditionally made marijuana arrests based on seeing the drug and more importantly smelling the drug. The pungent odor of the drug used to be a giveaway that gave officers probable cause to conduct a warrantless search. The problem is hemp looks and smells identical to marijuana.

Hemp and marijuana are both derived from the cannabis sativa plant, the difference being, for legal purposes, the concentration of THC. THC is the psychoactive element of cannabis that produces a “high” sensation. In hemp the level of THC is negligible, and is now defined by law as having less than .3 percent THC. Any cannabis plant with over .3 percent THC will be considered illegal marijuana.

Florida State Attorney Dave Aronberg has now issued a memo to law enforcement that says:

“We will not be able to prosecute any marijuana or THC oil cases without a test from an accredited lab indicating that the THC content is over .3 percent”

Since there are no law enforcement labs currently set up to distinguish between hemp and marijuana, this memo is essentially a directive to stop making marijuana arrests based on probable cause due to smell. That is, it will be much more difficult for cops to make an arrest based on smelling marijuana since they will not be able to prove that it is marijuana and not hemp.

If you have been arrested for a marijuana related offense or if you have been stopped and searched based on the smell of marijuana, you need to reach out to Meltzer and Bell P.A. at (561) 500-5000.

Judge’s Ruling Could Affect Patient Brokering Cases

Patient brokering at drug treatment centers has become an ongoing issue in the state of Florida. Investigations led by several news outlets have uncovered the real crooked nature of these centers such as the practices at Whole Life Recovery. This has led to numerous legislative attempts to deter large patient-brokering operations, which is a type of healthcare fraud.

Many treatment centers hire “body brokers,” which are people who are paid to look for addicts. These “junkie hunters” are compensated for referring potential patients to their treatment centers. Once the center has admitted the unaware addict, they can then charge their insurance company outrageous rates. Some have even reported drug tests ordered by treatment centers to cost $5,600.

In 2018, State Attorney David Aronberg responded to this issue with the Florida Patient Brokering Act. The new legislation has led to numerous arrests and convictions, which caused a number of drug treatment centers to close their doors.

Since Aronberg’s act, numerous notable drug treatment centers have been linked to patient brokering. Additionally, the act may have also led to a decline in fatal drug overdoses. Aronberg recently presented data from the Palm Beach County Medical Examiner. The data demonstrated a decrease in fatal drug overdoses from 2017 to 2018. The report states the number of opioid-related deaths in Palm Beach had dropped from 588 in 2017 to 326 in 2018.

While the operation has been successful, it comes with some challenges. Some offenders have argued they were unaware of Florida’s patient brokering laws because they’re so new. Others state they were given bad counsel from attorneys when setting up their drug treatment centers. However, the current statute does not list ignorance of the law as an admissible defense. Now, a new ruling by Palm Beach County Circuit Judge Laura Johnson may drastically change David Aronberg’s plans.


What Does the Ruling Mean

Johnson’s ruling is for the current case State of Florida vs. James Francis Kigar. The case surrounds a Boynton Beach treatment center operated by Kigar called Whole Life Recovery. Over the last two years, law enforcement officials in Palm Beach County have been investigating allegations of fraud, money laundering, kickbacks and patient brokering related to the center.

Kigar is now facing a total of 95 counts linked to patient brokering and other relevant crimes. He has pleaded not guilty by stating he was unaware of Florida’s patient brokering laws. Kigar claims he was wrongly informed by his attorney to pay kickbacks for referrals. Judge Laura Johnson responded to this case with a controversial ruling.

Johnson stated in a six-page order that, “A defendant may assert the advice of counsel defense when charged with violations of the Florida Patient Brokering statute.” She also ruled the prosecution must prove beyond a reasonable doubt the defendant was aware their actions were illegal.

Judge Johnson’s ruling is based on a legal term called “mens rea,” which states a person must know what they’re doing is wrong to be charged with a crime. The ruling basically states the defendant must have intended to commit a crime. This is controversial because the issue of intent isn’t included in the current Florida Patient Brokering Act.

Judge Johnson’s new standard could undo many prosecutions sought under David Aronberg. A defendant could escape criminal charges if they’re able to prove the crime was unintentional. The ruling may also drastically change the path of Kigar’s case, which was looking grim beforehand.

The Impact of Judge Johnson’s Ruling

Johnson’s ruling could tremendously affect David Aronberg’s Sober Homes Task Force. It may lead to a number of appeals and dismissals for previous patient brokering cases in the Palm Beach area. In addition, it may establish a new standard in how the State Attorney can prosecute future kickback cases involving drug treatment centers.

Assistant State Attorney Justin Chapman plans to ask Judge Johnson to reconsider her decision. If she denies the request, Chapman may file an appeal with the Fourth District Court. However, there’s been no word of that from the State Attorney’s Office.

Many are hoping the appellate court will untangle Johnson’s ruling to decide the fate of future patient-brokering cases. If Judge Johnson retains her ruling, prosecutors will have a much harder time convicting a person of patient brokering. People who have taken bad advice or were unaware of Florida’s patient-brokering laws will not be legally punished for the crime.
This blog was last updated on March 6th, 2019.

Florida May Pass Stricter Distracted Driving Laws

Cellphones and other electronic devices have become a staple in our daily lives. The majority of the time these instruments help us navigate the world around us. However, many people use their electronic devices recklessly while they’re driving. This has become a dangerous growing trend for the state of Florida. The Florida Highway Safety and Motor Vehicles (FLHSMV) reported that there were 50,190 accidents related to distracted driving in 2017.

Florida lawmakers are hoping to pass a new bill for tougher distracted driving laws. Current legislation does have a texting-while-driving ban implemented under Section 316.305 of the Florida Statutes. The law itself is controversial though and has been accused of being toothless. This is because Florida is one of only four states that doesn’t allow police officers to pull someone over for looking at their electronic device.

In 2018, a similar bill was sponsored but died while in the Senate. Some representatives believe the reason for this was because the bill wasn’t very clear. It instead focused on making texting while driving a primary offense. The 2018 bill did nothing to address other distracted driving actions such as talking on the phone or perusing social media.

Now, lawmakers are attempting to pass a new proposal to toughen up distracted driving laws. House Bill 112 (HB 112) provides a lot more clarity. The bill addresses all types of distracted driving, not just texting. Some of these include speaking into an electronic device, e-mailing, instant messaging, or reading with your electronic device. If the bill passes, then distracted driving laws in Florida will be significantly stronger. This means more traffic violations for Florida residents and possible charges for multiple offenses.


What Does the Bill Say?

House Bill 112 amends and adds new provisions to Section 316.305 of Florida’s Statutes. The section would be renamed from “Florida Ban on Texting While Driving Law” to “Florida Ban on Wireless Communication Devices While Driving Law.” The purpose of this is to incorporate all distracted driving devices such as electronic watches or tablets.

If HB 112 is approved, then you wouldn’t be allowed to use a wireless communication device at all. Even speaking into the device could result in a nonmoving violation. The only acceptable way to utilize your wireless communication device under HB 112 is if it’s in “hands-free” mode. Basically, if you’re holding your wireless communication device you could receive a nonmoving violation.

The bill is very similar to legislation active in California. Both Senate Bill 1213 and Senate Bill 28 were enacted into law in July 2008, so the legislation has been in effect for nearly ten years. While distracted driving has declined, the problem unfortunately still exists. A press release by the California Highway Patrol stated there were 97,000 citations issued for distracted driving in 2017. Data also indicates 22,000 drivers were involved in distracted driving collisions that year.


The Problem with HB 112

Distracted drivers cause serious injuries and sometimes fatalities every year. Florida lawmakers have decided to respond to this issue with stringent legislation. On the surface, this bill seems to be a good idea, but it could also impose an influx of unnecessary citations on Floridians.

If HB 112 passes into law, then police officers could pull you over for simply picking up your phone. The implementation of this law may leave many Florida residents with traffic tickets. People with multiple violations could have issues with their insurance or simply be unable to pay the full cost of the ticket.

What’s even more unsettling is the ineffectiveness of hands-free mode. The National Safety Council argues using a hands-free device requires the same amount of brain processing power as texting and driving. Both activities require the driver to split their attention, meaning you’re just as likely to get into an accident talking on hands-free than if you’re sending an electronic message.

If this is true, then HB 112 doesn’t solve the problem of distracted driving by allowing hands-free. Instead, our legislation would be imposing a law that doesn’t lessen distracted drivers and requires officers to waste time issuing unneeded tickets.

It’s important we keep Florida roads safe. However, it’s just as imperative we implement thoughtful legislation that attacks every avenue of the problem. We’re still unsure of the fate of HB 112 and it’s possible amendments. Hopefully, Florida lawmakers will alter the bill so it can effectively tackle the issue of distracted driving.
This blog was last updated on March 6th, 2019. 

Florida May Lift Ban on Smokable Medical Marijuana

In 2016, Amendment 2 or the Florida Medical Marijuana Legalization Initiative was approved into law by voters. The legislation allows Floridians to use medicinal cannabis for certain conditions such as glaucoma, epilepsy and human immunodeficiency virus (HIV). Although Amendment 2 legalized medical marijuana, it still doesn’t allow patients to smoke it.

Currently, Florida law only permits patients to consume marijuana in four ways. You can ingest cannabis pills, use tincture forms, apply a topical cream or inhale the substance through a vaporizer. Unfortunately, Florida still has a smoking ban on all medical marijuana products. It’s impossible to buy cannabis in pre-rolled cigarettes or as a whole-flower from a dispensary.

Now, Florida governor Ron DeSantis is giving legislation an ultimatum. He’s threatened to drop the state’s appeal of a court decision which found the smoking ban violated a constitutional amendment. The republican governor has given lawmakers a deadline to fully address the issue, or he’ll drop the appeal altogether. The court must determine if the smoking ban is unconstitutional or not by March 15th, which is 10 days after the annual legislative session begins.


Why Smokable Marijuana?

Many medical marijuana patients wish they had access to smokable cannabis products. The reason for this is because of the different effect smoking marijuana has in comparison with vaping or ingesting it orally. When you smoke marijuana, you’re burning the whole plant. Therefore, all the chemical compounds and terpenes found in the cannabis will turn into an inhalable smoke.

Vaping or ingesting marijuana orally creates a different outcome. If you’re vaping, then you’re consuming whatever compounds of the plant the manufacturer put into the oil. This means you may not be as affected by vaporizing as you would if you smoked the whole-flower. Orally ingesting marijuana is effective but can take up to an hour to finally work.

Because of this, some medical marijuana patients believe they’ll fare much better on smokable marijuana. They claim the concentrates and oral forms of medical marijuana are not powerful enough to soothe their medical condition. If the smoking ban on medical marijuana is lifted, then patients would have more freedom in how they choose to consume their medicinal cannabis.


How Likely Is It Florida Will Lift the Smoking Ban?

Lifting the smoking ban on medical marijuana is a hot topic on Florida’s Capitol Hill. Senate Bill 182 (SB 182) has already undergone some changes since its proposal on February 13th, 2019. Originally, doctors were required to have a “case review panel” before they’re able to order smokable marijuana products for patients. The doctor would be required to attend a panel run by the Board of Medicine to determine if their patient requires smokable medical cannabis.

This was withdrawn, however, when Representative Ray Rodrigues offered an alternative proposal. Instead, doctors would provide documentation which proves the patient would benefit from smoking medical marijuana. The doctor would then be required to submit these documents to the state Board of Medicine rather than appear in front of a case review panel.

Rodrigues’s amendment also requires dispensaries to sell smokable marijuana in pre-rolled cigarettes. If implemented, the amendment would ban patients younger than the age of 18 years old from smoking medicinal cannabis. Both of these provisions were added to address concerns about the negative health effects associated with smoking.

The sponsor of the bill, Senator Jeff Brandes, added an amendment to the bill. Children who wish to smoke medical marijuana must obtain approval from a pediatrician. The only exception to this is if they’re terminally ill. Additionally, Brandes’s amendment would allow people in nursing homes, hospices, and assisted living facilities to smoke medical cannabis.

The subject of smokable medicinal marijuana is a hot topic with a possible resolution in sight. Jeff Brandes stated to The News Service of Florida after the Senate committee meeting, “We’ll ultimately find a place to land this… I think the March 15th deadline no longer seems out of reach.” The bill may seen controversial, but it has a lot of unexpected support. There’s a large likelihood that smokable medical cannabis may be on the market within the next year.
This article was last updated on March 6th, 2019.

What We Know About the Robert Kraft Prostitution Scandal

Robert Kraft along with 300 other people have arrest warrants issued for them for soliciting prostitution in Florida’s Treasure Coast. Florida police in multiple counties conducted coordinated sting operations to arrest men who visited massage parlors for illicit sexual services. Kraft was arrested in Jupiter, in Palm Beach County, an area known for its affluent community and its million-dollar playgrounds for the rich which includes President Trump’s Mar-a-Lago resort.

Palm Beach County police have claimed the operations were meant to stop human trafficking but there seems to be little evidence from the arrest affidavit that human trafficking was ever a concern for investigators.

In fact, none of the women who operated, Orchids of Asia Day Spa, the Asian massage parlor where Kraft was said to have frequented, were charged with human trafficking crimes.

The Investigation

The lead detective in the Orchids of Asia bust, Andrew Sharp, started his investigation after communicating with the Martin County Sheriff’s Office which had been working several massage parlors in Martin County. The investigation in Martin County tipped off Detective Sharp to the Orchids of Asia Day Spa.

Sharp then began his investigation of Orchids by searching through reviews of the establishment where patrons claimed sexual services were provided. Sharp relied on one website in particular, Rubmaps.com, a forum that specifically is meant to provide details and reviews for illicit massage parlors. Based on postings on that site that detailed clients paying for “hand jobs,” sharp began surveillance of the business.

His surveillance went for a week where he observed men enter the establishment and he logged how long they were inside.  After his week of surveillance, Sharp sent in a Florida Department of Health inspector to inspect the business. The health inspector noticed that there appeared to be two rooms with beds and dressers that appeared to indicate that women were living on the premises, the only oblique indication of human trafficking in the arrest affidavit.

Sharp and two other detectives then decided to conduct a “trash pull” where they rummaged through the dumpster behind the massage parlor looking for evidence. What they found was several white grocery store bags. According to Sharp, white grocery bags are a telltale sign of an illicit massage business.

Going through the bags, Sharp and his team found ripped up sheets of papers that seemed to be a ledger of some sort as well as several plastic napkins that “appeared to be covered in seminal fluid.” Sharp had the napkins tested and they were found to be positive for seminal fluid.

After a second trash pull, Sharp began another round of surveillance where he interviewed men leaving the establishment. Each of the men divulged that they had paid for and received sexual services inside the massage parlor.

Gathering this information lead to a search warrant that allowed for Sharp to secretly install video cameras in the Orchids of Asia Day Spa. For five days Sharp and his team watched men receiving sexual services in the spa and cataloged the encounters, all of which are in the report. Since the Johns are only described by their clothing, it is hard to tell which of the documented encounters was Kraft from the affidavit.

The Charges

While police departments in large scale prostitution arrests and sting operations in Florida often cite stopping human trafficking as the primary reason for conducting these arrests, rarely are human trafficking rings ever busted up from these arrests. In fact, in this particular operation, there have been no human trafficking charges brought. The two proprietors of Orchids of Asia Day Spa, Hua Zhang and Lei Wang, were charged with operating a brothel, hiring prostitutes, and for engaging in prostitution.

Kraft and the others who have warrants for their arrest or have been arrested already are being charged with solicitation of prostitution.

What Happens Now?

The attorneys of Meltzer and Bell are well experienced in prostitution offenses and several of our attorneys have already spoken to the media about what is the likely outcome for Mr. Kraft. Ari Goldberg, one of our attorneys who once was a Palm Beach county prosecutor explained that first time offenders arrested for solicitation are facing the lowest level misdemeanor in Florida. A second-level misdemeanor has a maximum punishment of 60 days in jail or a $500 fine.

Steven Bell, one of our named partners, explains further that in all likelihood Robert Kraft, who has no prior history and is a first time offender, will not plead guilty and will instead negotiate for a diversion program which may include community service, testing, and educational programs. As long as Mr. Kraft follows through with the program his charges will be dismissed.

If you have been arrested for a prostitution related offense, reach out to the attorneys of Meltzer and Bell to start your defense with experienced criminal litigators.

Lawrence Meltzer and Steven Bell Commit to the National Association of Criminal Defense Lawyers

It is an honor to announce that Lawrence Meltzer and Steven Bell have committed to being Life Members of the National Association of Criminal Defense Lawyers (NACDL). Founded in 1958 the NACDL prides itself on protecting the rights of Americans. The NACDL believes in a fair and just judicial system that caters to every economic class and social status. Members of the NACDL commit to supporting the due process rights for anyone accused of a crime. They also uphold a high level of integrity for the criminal defense profession, and always promote the fair direction of the criminal justice system. The NACDL is also highlighted by thousands of esteemed private lawyers, public defenders, military defense counsel members, judges, and law professors. This acclaimed membership has now been made into a lifetime calling for Mr. Bell and Mr. Meltzer so that they may advance the cause of protecting legal rights for the criminally accused for years and years to come. The NACDL’s motto, “Liberty’s Last Champion” is the epitome of what Meltzer and Bell, P.A. hold true. The law firm has been a beacon of light for countless South Floridians facing all types of legal battles. Meltzer and Bell, P.A. understands that the criminal justice system is one that should be handled with the upmost respect not only in regards to the judicial court system, but also for each and every individual that is preparing to face legal actions. Steven and Lawrence promise to preserve their criminal justice standards and to always serve with the equal, sensible, and civilized care one should count on.

Drug Monitoring Program Expands throughout U.S. to Thwart Doctor Shopping

Prescription fraud, commonly known as doctor shopping, is a huge problem throughout the United States, including Florida. In 2009 the Federal Centers for Disease Control labeled Florida as the epicenter of prescription drug abuse epidemic.

Nationwide, the prescription drug abuse epidemic has been attributed to lack of prescription monitoring programs and medical personnel oversight. In 2011 Florida enacted the E-FORSE (Electronic-Florida Online Reporting of Controlled Substance Evaluation) program. The program is designed to prevent over prescribing of drugs and doctor shopping.

While reported drug overdoses have declined in Florida, many have criticized the effectiveness of the program citing doctors do not consistently use the program and the program does not have national reach.

In April of 2016, New Jersey legislators announced that the state would expand its prescription drug monitoring program, part of a mass effort to cease out-of-state doctor shopping and prescription drug abuse.  New Jersey joins 7 other states, including South Carolina, New York, Minnesota, Rhode Island, Virginia, Connecticut, and Delaware in this effort.

Under this monitoring program, New Jersey doctors would be able to see a patient’s prescription history within the state and any prescriptions written by other doctors in 7 states. Although Florida does not participate in this interstate monitoring program, Florida criminalizes doctor shopping and could possible join this effort.

What is Doctor Shopping?

Doctor Shopping is the practice, or habit of visiting multiple doctors to obtain multiple prescriptions for otherwise illegal drugs. Typically, it’s common practice for drug addicts and suppliers of drug addicts.

A doctor shopper will normally visit multiple health care clinics as a “new patient” or “visiting from out of town” and will exaggerate medical problems in order to obtain prescription medications.

Florida Stat. § 893.13(7)(a), (8), and (9) are the doctor shopping laws that makes it a felony offense to withhold information from a practitioner from who the person seeks to obtain a controlled substance or prescription for a controlled substance when the individual making the request has received a controlled substance or prescription from another practitioner within the previous 30 days.

Prescriptions Drugs Statistics

According to DEA statistics in 2010, the state had over 900 unregulated pain management clinics. Data also showed that these clinics employed 90 of the top 100 oxycodone dispensing physicians in the country.

Of the top 50 oxycodone dispensing clinics in the U.S., 49 were located in Florida and were selling more than 1 million oxycodone pills a month.

Before E-FORSE was implemented by the Florida legislature, it was projected from state medical examiners documents that about 10 individuals each day died of prescription drug overdose, primarily due to oxycodone.

Doctor Shopping Penalties

  • Misdemeanor or felony conviction
  • Up to 1 year in jail or 3 years in prison
  • Up to $20,000 in fines
  • 1-5 years’ probation
  • Community service, an amount determined by the court

Who can be charged?

  1. Any patient who attempts to obtain and/or obtains prescription of a controlled substance through fraud;
  2. Any medical professional who makes a false statement in any prescription, order, report or record;
  3. Anyone who falsely assumes the title of, or represents himself to be a pharmacist, physician, dentist, veterinarian, registered nurse, physician’s assistant; or
  4.  Any person other authorized person and anyone who affixes any false or forged label to a package or receptacle containing controlled substances.

Conclusion

The attorneys of Meltzer & Bell, P.A. are experienced criminal defense attorneys based in West Palm Beach, Florida. The team of attorneys at Meltzer & Bell, P.A. defend individuals facing any drug crime, including prescription fraud, drug possession, drug trafficking, drug distribution, and marijuana possession.

Former prosecutor, Lawrence M. Meltzer, and former public defender, Steven K. Bell, possess the knowledge and skill to build the strongest defense on your behalf.  Meltzer & Bell, P.A. diligently defends individuals throughout Palm Beach County, including West Palm Beach, Palm Beach, Boca Raton, Palm Beach Gardens, Jupiter, Delray Beach, and surrounding areas.

Contact the Palm Beach Doctor Shopping Defense Attorneys of Meltzer & Bell, P.A. for a confidential review of your case at (561) 283-3259. The partners of Meltzer & Bell, P.A. are available 24 hours a day/7 days a week.

Kansas Supreme Court Rules DUI Tests Unconstitutional

U.S. Supreme Court will consider similar cases, but will the Kansas decision affect Florida?

Isn’t a person who is suspected of drunk driving entitled to the same rights related to police searches as anyone else? In many states, the answer is NO.

Ordinarily, the police need a warrant in order to conduct a search, but not during a DUI stop. The concept of “implied consent” allows the police to cross that line and conduct a warrantless search, including a breath or blood test of a DUI suspect to determine if the driver is impaired. Refuse the test and your license is suspended. No exceptions.

Thirteen states make it a crime to refuse a DUI test.

Kansas Draws the Line

The State of Kansas drew a firm line on Feb. 26, 2016, when the Kansas Supreme Court, in a 6-1 opinion authored by the Hon. Justice Marla J. Luckert, declared that mandatory DUI tests are “facially unconstitutional,” meaning unconstitutional in all circumstances, not just in the particular case of State of Kansas v. Darwin Estol Wycoff.

In Wycoff, the Kansas Supreme Court cited both the Fourth and Fourteenth Amendments to the U.S. Constitution and Section 15 of the Kansas Constitution Bill of Rights, concluding: “An individual has a right … to withdraw consent to a search. … Punishing an individual for exercising that right with criminal penalties, as the State has chosen to do … is facially unconstitutional.”

Wycoff was arrested for DUI and other related charges in December 2012 in Salina, Kansas. He refused to submit to a field sobriety test and also refused a DUI breath test after he was transported to jail. He was charged with DUI, refusing to submit to an evidentiary test as mandated under Kansas law (K.S.A. 2014 Supp. 8-1025), and other offenses.

Wycoff moved to suppress the evidence, claiming § 8-1025 was unconstitutional because it violated the Fourth Amendment prohibition against unreasonable searches, the Fifth Amendment right against self-incrimination, and due process rights guaranteed by the Fourteenth Amendment. After rejecting most of Wycoff’s claims, a district court concluded that § 8-1025, which criminalized his test refusal, imposed an unconstitutional condition on his privilege to drive.

The State appealed to the Kansas Supreme Court after dropping the other charges. But the Supreme Court sided with the Constitution and Wycoff was acquitted.

DUI tests, the Kansas Supreme Court concluded, are searches.

A search is unreasonable if it is conducted without a warrant and any evidence gathered in such a search must be excluded. No longer will a person be punished in Kansas for exercising his or her right to be free from unreasonable searches and seizures when suspected of DUI. Furthermore, implied consent is not irrevocable, the Court decreed. In addition, the Court maintained that the State’s interest in battling drunk driving does not trump the Bill of Rights.

U.S. Supreme Court Will Have the Final Word

Although the Wycoff decision only applies to Kansas, it may have far-reaching implications. Kansas may appeal the state Supreme Court decision to the U.S. Supreme Court, which has already agreed to decide whether a blood or breath test for drunk driving can be conducted without a search warrant and whether, if there is no warrant, a person can be charged with a crime for refusing to submit to a DUI test.

The U.S. Supreme Court indicated in December 2015 that it would rule before the end of its current session on three cases involving DUI tests, two from North Dakota (Birchfield v. North Dakota and Beylund v. Levy) and one from Minnesota (Bernard v. Minnesota), that involve the legality of DUI tests. The cases differ in that in one, a person declined a DUI blood test, and in another, a person refused to submit to a DUI breath test.

In the third case, a person was convicted of DUI after refusing field sobriety testing before being taken to a hospital for a blood test against his wishes. The U.S. Supreme Court will be reviewing that person’s punishment for refusing the DUI tests — a two-year driver’s license suspension — instead of the jail time and fine he received for the DUI conviction, according the U.S. Supreme Court blog.

The three cases are scheduled to be consolidated and heard together in a one-hour argument, but as of Feb. 29, 2016, they had not been placed on the court docket. The Kansas prosecutor who initially prosecuted Wycoff indicated in a news report that he hoped Wycoff could be added to the existing three cases that will come before the U.S. Supreme Court, although that has not yet occurred. The Supreme Court’s final decision will apply nationwide.

Opponents are lined up for this battle, with prosecutors and anti-drunk driving advocates such as Mothers Against Drunk Driving (MADD) on one side and criminal defense attorneys, civil libertarians and citizens rights groups such as the American Civil Liberties Union (ACLU) on the other side. A final decision by the U.S. Supreme Court may not come until sometime in mid-2016.

Impact of Wycoff in Florida

The issues raised by Wycoff and the DUI test refusal cases in North Dakota and Minnesota may have an impact in Florida, although much hinges on the upcoming U.S. Supreme Court decision in the North Dakota and Minnesota cases.

Implied Consent in Florida

A driver may refuse to submit to a chemical test for alcohol or drugs, but under Florida’s “implied consent” law (Florida Statutes, Chapter 316, § 316.1932), a DUI test refusal results in an automatic driver’s license suspension.

“Implied consent” means that when a person obtains a driver’s license, he or she gives consent to provide a breath, blood, or urine sample when properly requested by a law enforcement officer. Refusal of a DUI test results in an automatic driver’s license suspension.

In Florida, the suspension is one year for a first DUI involving a refusal to submit to testing. The administrative suspension can increase to 18 months for a second or subsequent refusal to submit to testing.

Clearly, Florida’s law is quite similar to the one that was struck down last week in Kansas and the laws that are being challenged in North Dakota and Minnesota.

Attorney for DUI Tests and Implied Consent in West Palm Beach, Florida

The DUI and criminal defense attorneys at Meltzer & Bell, P.A., in West Palm Beach, FL, represent clients throughout Broward County and the surrounding areas. Our experienced lawyers have often represented clients who were charged with refusal to undergo a DUI test or a violation of Florida’s implied consent law. We closely monitor the evolving DUI laws in Florida and across the country and we believe the recent Kansas ruling may have a nationwide impact.

If you were arrested for DUI or charged with refusal to submit to a DUI test, contact the knowledgeable attorneys at Meltzer & Bell, P.A. today to schedule a free, confidential appointment with one of our attorneys. Your driving privileges and your freedom deserve qualified, competent legal representation. Call us in West Palm Beach today at (561) 515-5834.

Consequences of a Second Refusal to Submit to Testing after a Florida DUI Arrest

refuse, refusing, and refusal

Florida’s implied consent statute creates a legal fiction that anyone who obtains a Florida driver’s license or drives on the roads of this state will “consents” to a lawfully requested blood, breath, or urine test when an officer has probable cause of DUI.

Despite this legal fiction, when a person is actually arrested for DUI, he or she might decide to refuse to submit to the breath, blood or urine test. Recent statistics in Florida show that more than 40% of DUI cases result in the arresting officer finding that the suspect refused a chemical test.

Florida law already provides for harsh penalties when a person refuses a lawful test including an immediate 18 month license suspension with no possibility of a hardship license.

Additionally, at the trial, the fact that the defendant refused testing even knowing that it would result in an immediate administrative license suspension is admissible at trial.

Furthermore, the prosecutor generally gets to argue during the DUI trial that the defendant refused to test because he knew that if he submitted the results would indicate guilt (often called “consciousness of guilt argument”).

But then the Florida legislature went one step further by making the second refusal a separate and independent crime. A second refusal can be charged as a first degree misdemeanor, punishable by up to 12 months in jail and a $1,000 fine. Therefore, if your driver’s license was previously suspended for failing to submit to a lawful test (the administrative suspension) even if you were not convicted of the DUI, then if you refuse a second time the prosecutor can charge you with:

  1. the DUI where the refusal to submit to a breath, urine, or blood test is admissible as evidence in DUI criminal proceedings; and
  2. a separate and independent offense called the “Second DUI Refusal” under Section 316.1939.

Section 316.1939 Makes a Second DUI Refusal a Separate Crime

Section 316.1939, Florida Statutes (2013) states that a first degree misdemeanor is committed when:
  1. the arresting officer has probable cause to believe the suspect was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages;
  2. after being placed under lawful arrest for DUI, the suspect is informed of the license suspension provisions of the implied consent statute;
  3. after being so informed, the suspect refuses to submit to a lawfully requested chemical test of his blood, breath or urine; and
  4. the person has suffered a license suspension for previously refusing a chemical or physical test of his or her breath, blood or urine.

Is Section 316.1939 Unconstitutional After Missouri v. McNeely?

In State v. Nichell, 21 Fla. L. Weekly Supp. 933a (May 22, 2014), the Honorable Belle B. Schumann, County Court Judge for the 7th Judicial Circuit in and for Volusia County considered whether this statute was unconstitutional on its face and as applied after the recent U.S. Supreme Court decision in Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552 (2013).

Although the DUI defense attorneys at Meltzer & Bell, P.A., in West Palm Beach in Palm Beach County, were not involved in the case, we recognize the important role that these orders in county court cases throughout the State of Florida have on our pending cases. We strive to stay current on recent changes in the law that impact DUI defense.

The issue decided in Nichell was whether the prior refusal statute in Section 316.1939, is unconstitutional on its face and as applied to the facts in that case because it violates the exercise of the constitutional right to be free from unreasonable search and seizures, specifically, the constitutional right to refuse to consent to a warrantless search.

The Court struggled with the different between “actual voluntary consent” as an exception to the warrant requirements of the 4th Amendment and Florida’s “implied consent” created by the Florida Legislature. The Court reasoned:

“The consent granted by the implied consent statute must be equated with Fourth Amendment consent since a breath, blood or urine test is a search without a warrant. If it is Fourth Amendment consent, then under prevailing law, it can be withdrawn without penalty. This presents a logical conundrum, particularly considering the long standing existence of the implied consent statute. It may be that the answer lies in the recognition that in this context, the reasonable expectation of privacy while driving a vehicle is less and constitutional rights are less protected when people engage in this activity. For instance, there is no Fifth Amendment right against self-incrimination because compelling a breath, blood or urine test “is not an interrogation of constitutional proportions.” State v. Busciglio, 976 So. 2d 15 (Fla. 2d DCA) rev. denied, 992 So. 2d 819 (Fla. 2008). Likewise, there is no Sixth Amendment right to confer with counsel prior to submitting to a test, either at the roadside or at the station. Id. (citation omitted). Perhaps, as Judge David Foxman suggests in an order on this issue entered this date, the implied consent statute must be recognized as its own exception to the warrant requirement, but if so, that must be done by judges not sitting in county court. State v. Caporuscio, et al., Case No. 2013-318342MMDB.”

The court ultimately denied the criminal defense attorneys’ motion to dismiss charge of refusing to submit to lawful chemical or physical test of breath, blood, or urine after having driving privilege previously suspended for a prior refusal. The court found that Florida’s implied consent statute provides “consent to search” as an exception to Fourth Amendment warrant requirement.

Therefore, the Court found that Section 316.1939 is not unconstitutional on its face or as applied to defendant because it criminalizes the exercise of right to refuse to consent to a blood, breath, or urine test. The Court certified the following question:

IF THE IMPLIED CONSENT STATUTE PROVIDES CONSENT TO SEARCH AS AN EXCEPTION TO THE FOURTH AMENDMENT WARRANT REQUIREMENT, THEN CAN THAT CONSENT BE WITHDRAWN BY REFUSAL TO SUBMIT TO AN OTHERWISE LAWFUL TEST OF BREATH, BLOOD OR URINE AND CAN THE SECOND SUCH REFUSAL BE A CRIMINAL OFFENSE?

Finding an Attorney for the Second DUI Refusal in West Palm Beach, FL

Only time will tell whether the Florida Supreme Court will find that Section 316.1939, which criminalizes a second refusal to submit to testing after a DUI arrest, is unconstitutional.

If your DUI case in West Palm Beach or Palm Beach County involves a refusal to submit to testing, a charged for a second refusal under Section 316.1939, or a warrantless breath blood or urine test taken without free and voluntary consent, then contact a criminal defense attorney at Meltzer & Bell, P.A., with offices at 601 N Dixie Hwy, Suite B, West Palm Beach, FL, 33401.

The DUI defense attorneys at Meltzer & Bell, P.A., represent clients charged in DUI refusal cases, both felonies and misdemeanors, throughout West Palm Beach and Palm Beach County, FL. Call 561-283-3259 today for a free consultation to discuss your case. Read more finding a criminal defense attorney for a second DUI refusal in West Palm Beach, FL.

We represent clients charged with DUI throughout all of the courthouses in Palm Beach County including the Main Court in West Palm Beach , the North County Courthouse in Palm Beach Gardens , the South County Courthouse in Delray Beach , and the West County Courthouse in Belle Glade.