Kansas Supreme Court Rules DUI Tests Unconstitutional

Posted on February 29, 2016 by Lawrence Meltzer

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

Posted on January 9, 2016 by Lawrence Meltzer

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:

the DUI where the refusal to submit to a breath, urine, or blood test is admissible as evidence in DUI criminal proceedings; and
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:

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;
after being placed under lawful arrest for DUI, the suspect is informed of the license suspension provisions of the implied consent statute;
after being so informed, the suspect refuses to submit to a lawfully requested chemical test of his blood, breath or urine; and
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.

DUI Checkpoints: Still Legal and Still Controversial 25 Years Later

Posted on November 25, 2015 by Lawrence Meltzer

With the holidays fast approaching, it is the time of year to celebrate. Thanksgiving, Christmas, and New Year’s are usually happy times when people re-connect with family and friends.

While traveling the highways and byways to and from their celebratory activities, drivers in West Palm Beach and Palm Beach County may encounter a sobriety checkpoint staffed by the police, sheriff’s office, or Florida Highway Patrol, especially if traveling late at night or in the early-morning hours.

Cities in and around West Palm Beach and Palm Beach County have employed these “DUI checkpoints” in the past in an effort to catch drunk drivers, especially around major holidays.

If you drive into a DUI checkpoint, you should cooperate with the police. You may be able to proceed right away, but if you are detained, it should only be for a few minutes.

If you are arrested at a checkpoint — for DUI or any other charge — it is wise to contact an attorney to discuss your case. Police must follow established rules when employing checkpoints or all the evidence may be excluded. A lawyer may be able to find errors with the establishment of the checkpoint, or the conduct of law enforcement. Your attorney may be able to find other ways to poke holes in the validity of the arrest that could lead to a reduction of the charge or an outright dismissal of charges.

But don’t DUI checkpoints violate the law, especially the Fourth Amendment to the U.S. Constitution, which prevents illegal searches and seizures?

Yes, and no.

Twenty-five years ago, in the 1990 U.S. Supreme Court case of Michigan State Police v. Sitz (496 U.S. 444), the court authorized sobriety checkpoints. “The measure of the intrusion on motorists stopped briefly at sobriety checkpoints – is slight,” wrote Chief Justice William Rehnquist in a 6-3 majority opinion.

“Constitutional balance must be struck in favor of protecting the public against even the ‘minimally intrusive’ seizures involved in this case. … No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it” because the state has a “grave and legitimate interest in curbing drunk driving,” Rehnquist wrote.

In giving its blessing to sobriety checkpoints, the majority relied on previous rulings in which it declared:

“Where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant.” (See National Treasury Employees Union vs. Von Raab, 489 U. S. 656 (1989) and U.S. vs. Martinez–Fuerte, 428 U.S. 543 (1976)).

In other words, preventing drunk driving outweighed the normal “reasonableness” requirements of the U.S. Constitution for other types of detentions.

In a blistering dissent, Justice John Paul Stevens disputed some of Rehnquist’s facts (including the assertion of an increasing problem despite facts showing a declining number of deaths due to drunk driving) and wrote that the court gave unlimited discretion to law enforcement to detain drivers on any suspicion, whereas the law requires reasonable suspicion:

“This is a case that is driven by nothing more than symbolic state action — an insufficient justification for an otherwise unreasonable program of random seizures. Unfortunately, the Court is transfixed by the wrong symbol — the illusory prospect of punishing countless intoxicated motorists — when it should keep its eyes on the road plainly marked by the Constitution.”

Twenty-five years later, during the holiday season of 2015, Drivers in West Palm Beach and Palm Beach County should be aware that a checkpoint may pop up anywhere at any time, especially on nights when people are considered more likely to drink alcohol. If you are concerned about DUI checkpoints, there are several things you can do legally to avoid them:

Follow the media (newspapers, TV, and radio) to learn about reports of DUI checkpoints. Law enforcement agencies are required to publicize the locations and times of checkpoints, but they often give little advance warning or do so on the day of the checkpoint.
Contact local law enforcement agencies or go to their web sites for information about DUI checkpoints.
A few Internet sites are in the business of tracking DUI checkpoints, including Roadblock.org and DUIblock.com.
It is legal to avoid a checkpoint in the distance by turning left or right onto a cross street or even making a U-turn as long as no traffic violations occur in doing so.
It is legal to enter a location (such as the property of an open business) prior to coming upon a checkpoint.

Law enforcement agencies must follow strict guidelines when conducting DUI checkpoints. They must have a written plan and the officers in the field must follow it. They may not randomly select drivers to detain, although stopping every fourth of fifth driver that passes through a checkpoint has been declared legal. Any deviation from the guidelines may make the entire checkpoint unconstitutional.

Over the past 25 years, many law enforcement officers have continued to make serious mistakes in the implementation of a checkpoint or its actual execution in the field.

If you are ensnared by a DUI checkpoint, remain calm and cooperate. If you are detained too long or arrested, make careful observations about the process unfolding, because the police may make a mistake that could lead to the suppression of any evidence they recover.

Have a Happy Holiday season in 2015 and be safe out there. And if you need an attorney after a DUI checkpoint arrest, the experienced attorneys at Meltzer and Bell are ready to represent you.

Decriminalization of Marijuana Budding in West Palm Beach

Posted on October 26, 2015 by Lawrence Meltzer

All forms of marijuana are illegal in Florida under state and federal law, but starting in the summer of 2015, a handful of South Florida cities and counties acted to decriminalize possession of small amounts of pot, making possession a civil — instead of a criminal — offense.

Miami-Dade County, Florida’s most populous county with 2.7 million residents, was the first Florida municipality to decriminalize possession of small amounts (defined as 20 grams or less) of marijuana, followed by the cities of Miami Beach and Key West.

Hallandale Beach, a city of about 40,000 residents in Broward County that shares a border with Miami-Dade, was the first city in its county to approve decriminalization and was followed by West Palm Beach, the largest city in Palm Beach County with about 100,000 residents.

Both Palm Beach County and Broward County (with about 3.25 million residents combined) are poised to join this growing list before the end of 2015 after preliminary approval of decriminalization. Several other Florida jurisdictions are considering similar measures.

In West Palm Beach, the new law (Ordinance No. 4590-15) would give law enforcement officers the option of issuing citations to people in possession of 20 grams or less of marijuana (or possession of drug paraphernalia), which imposes a fine of $100 with no arrest, no jail time, no court appearance, and no permanent criminal record — a civil penalty akin to a traffic ticket.

The police have wide discretion under the new laws, but a person suspected of a felony, driving while impaired, a violent crime, domestic violence, or a person with an unpaid citation won’t catch a break under the new law, and will most likely be arrested on a misdemeanor for possession.

Under state law, a conviction for possession of a small amount of marijuana up to 20 grams may result in up to 12 months one year in jail, a $1,000 fine, or both. Possession of more than 20 grams is a felony in Florida, with penalties of up to five years imprisonment, a $5,000 fine, or both (Florida Statutes 775.082 and 776.083).

Issuing citations instead of making arrests for marijuana possession frees law enforcement to concentrate on serious crimes and helps to unclog court dockets, advocates for the reforms say.

Attorney for Marijuana Possession Charges in West Palm Beach

If you have been arrested or received a citation for possession of marijuana or drug paraphernalia in West Palm Beach, Fort Lauderdale, Palm Beach or Broward counties, or anywhere in South Florida, you should consult with an experienced criminal defense attorney who is familiar with the local laws to discuss your options and help you make the right decision in your case.

Shift in Attitudes

As national attitudes toward marijuana use evolve and more states, counties, and cities enact laws to decriminalize marijuana, fewer people will face arrest and the consequences of a criminal record, which may adversely affect education and employment opportunities in their future. Some people with a conviction for possession of a small amount of marijuana have experienced difficulty in obtaining a loan or finding a place to live.

About half of the states in the U.S. have legalized marijuana for varying degrees of medical use. The states of Alaska, Colorado, Oregon, and Washington have legalized the possession of small amounts of weed for recreational use, as has the nation’s capital, Washington, D.C.

A national survey by the Pew Research Center in March 2015 found that 53 percent of respondents said marijuana should be legal (both recreationally and medically), while 44 percent said it should remain illegal. The survey also found that 76 percent said there should be no jail time for possession of small amounts of marijuana, while 22 percent favored jail time. Forty-nine percent said they tried marijuana at least once, while 51 percent said they had not.

A Palm Beach Post editorial in July 2015 called the ongoing policy shift toward greater acknowledgement of marijuana use by authorities a “wave of sanity.”

Conflicting Laws

Many legal issues arise with the adoption of these new laws that downgrade marijuana possession from a criminal offense to a civil infraction.

Cities within a county may also opt out if the county adopts decriminalization, meaning that the law on one side of a Florida street may be different than the law in another municipality just across the road, creating a patchwork of laws.

Will state agencies, such as the Florida Highway Patrol, apply state law instead of the local law during a traffic stop in a city that has decriminalized possession of 20 grams or less?

And of course, the law is blind to the “black market” — not everyone grows their own pot; marijuana originated from somewhere and was delivered to an individual somehow. The sale of 20 grams of marijuana or less is a misdemeanor and the sale of more than 20 grams of marijuana is a felony under state law.

West Palm Beach Ordinance No. 4590-15

On Sept. 13, 2015, the West Palm Beach City Commission unanimously approved Ordinance No. 4590-15 after granting preliminary approval two weeks earlier. The exact text of the new law is reprinted below from pages 11-12 of the minutes of the commission meeting:

Public Hearing and Second Reading of Ordinance No. 4590-15 (APPROVED) amending Chapter 54 of the Code of Ordinances of the City of West Palm Beach to provide civil penalties for the possession of 20 grams or less of cannabis and for possession of drug paraphernalia.

AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF WEST PALM BEACH, FLORIDA, AMENDING THE CODE OF ORDINANCES AT CHAPTER 54 (OFFENSES) ARTICLE I, (IN GENERAL) SECTION 54-1 (ADOPTION OF STATE LAWS RELATING TO MISDEMEANORS), PROVIDE CIVIL PENALTIES FOR THE POSSESSION OF 20 GRAMS OR LESS OF CANNABIS (MARIJUANA) AND POSSESSION OF DRUG PARAPHERNALIA; SETTING FORTH PENALTIES AND ENFORCEMENT RESPONSIBILITES; PROVIDING A CONFLICTS CLAUSE, A CODIFICATION CLAUSE AND A SEVERABILITY CLAUSE; PROVIDING AN EFFECTIVE DATE; AND FOR OTHER PURPOSES. Agenda Cover Memorandum No.: 20534 (attached).

Staff Recommended Motion: Approve Ordinance No. 4590-15.

Background: The American Civil Liberties Union reports that when people are arrested for possessing miniscule amounts of marijuana that may have dire collateral consequences that affect their eligibility for public housing and student financial aid, employment opportunities, child custody determinations and immigration status.

Further, the Federal Bureau of Investigation/Uniform Crime Reporting Program Data regarding misdemeanor marijuana possession arrests indicates that in 2010, 77 (percent) of marijuana arrests were of people 29 or younger, 62 (percent) were of people younger than 25, and more than one-third were of teenagers and pre-teens.

Currently, City of West Palm Beach law enforcement officers may either arrest or not arrest a person for the commission of a misdemeanor. This Ordinance will provide an alternative and additional mechanism under the City’s Code to enforce violations that are based upon the commission of certain enumerated misdemeanors.

Law enforcement officers may: (1) issue a civil citation pursuant to this ordinance; (2) arrest; or (3) not arrest a person for the commission of a misdemeanor offense of possession of marijuana and/or possession of drug paraphernalia.

Fiscal Note: No fiscal impact to budget.

West Palm Beach’s marijuana decriminalization law is similar to the others enacted in Florida in 2015, but it is indicative of the change in attitudes about marijuana that the ordinance received widespread support, even from law enforcement.

Find an Attorney for Marijuana Possession in Broward & Palm Beach counties

If you have been arrested or received a citation for possession of marijuana anywhere in South Florida, including Broward County, Florida or Palm Beach County, Florida, contact a local criminal defense attorney at Meltzer & Bell, P.A.. The attorneys at Meltzer & Bell, P.A. have more than two decades of experience defending clients on criminal charges.

Lawrence Meltzer and Steven Bell are qualified lawyers who know the nuances of the local laws and are available 24 hours a day, seven days a week. Call Meltzer & Bell, P.A. at (954) 716-8538 to set up a free consultation.

No more legal speeding ticket quotas in Florida

Posted on July 14, 2015 by Lawrence Meltzer

The practice of police and other law enforcement having a quota of traffic tickets to write is now forbidden in the Sunshine State. Senate Bill 264, unanimously passed by the Florida Legislature earlier this year, is now in effect.

The law, called the “Waldo Bill” after the Florida town notorious for its status as a speed trap, prohibits any law enforcement agency from creating a “traffic citation quota.” A quota, for example, would instruct officers that they much write a certain amount of tickets – most often speeding tickets – per day, week or month.

For many towns, cities and counties, issuing traffic citations is not a way to create a deterrent to unsafe driving. It is a revenue source, in which the local police or sheriff’s office writes tickets to collect fees, which then go to county coffers. It is a troubling paradox: The law is supposed to discourage this kind of behavior, but the government that is supposed to enforce these laws relies on people to break them in order for it to function.

Under the new law, cities and counties will need to look for another way to raise revenue. The law also includes a red flag provision: If the revenue from traffic citations consists of a third or more of a county’s or municipality’s budget for law enforcement, that government must submit a report to the state detaining their revenue and expenses.

Cities and counties have largely adopted the attitude that they can treat traffic citations as a cash cow because too few people actually challenge their speeding tickets. Anyone cited or arrested for any traffic offense can hire a speeding ticket lawyer and fight to get the citation or charges dismissed.

Phil Mickelson Reportedly Tied to Money Laundering And Illegal Gambling, Per ESPN Reports

Posted on June 30, 2015 by Scott Salomon

ESPN.com is reporting that nearly $3 million transferred from golfer Phil Mickelson to an intermediary was part of “an illegal gambling operation which accepted and placed bets on sporting events,” according to two sources and court documents obtained by Outside the Lines.

Mickelson, a five-time major winner and one of the PGA Tour’s wealthiest and most popular players, has not been charged with a crime and is not under federal investigation. But a 56-year-old former sports gambling handicapper, acting as a conduit for an offshore gambling operation, pleaded guilty last week to laundering approximately $2.75 million of money that two sources told Outside the Lines belonged to Mickelson.

Gregory Silveira of La Quinta plead guilty to three counts of money laundering of funds from an unnamed “gambling client” of his between February 2010 and February 2013. Sources familiar with the case said Mickelson, who was not named in court documents, is the unnamed “gambling client.” Silveira is scheduled to be sentenced Oct. 5 before U.S. District Court Judge Virginia A. Phillips and faces up to 60 years in prison, though the sentence will likely be far shorter.

Mickelson could not be reached for comment. His longtime personal attorney, Glenn Cohen, declined to comment, saying another attorney — whom he would not name — assisted Mickelson in the matter.

Silveira could not be reached for comment directly and his attorney declined to comment.

According to court documents, in March 2010, Silveira — a participant in “an illegal gambling operation which accepted and placed bets on sporting events” — accepted a wire transfer of $2.75 million, which he knew was part of “illegal sports betting.”

The money, according to the documents, came from a “gambling client” and had been transferred into Silveira’s Wells Fargo Bank account. Three days later, Silveira transferred $2.475 million and then $275,000 into another of his Wells Fargo accounts. The next day, Silveira transferred the $2.475 million to another account he controlled at JPMorgan Chase Bank.

The three transactions constitute the money laundering charges: “At the time, defendant initiated these three transfers with the intent to promote the carrying on of an illegal gambling operation,” according to the plea agreement, which was signed May 1.

Typical of money laundering cases, the nearly $3 million is loosely described as “proceeds” in court documents, though that doesn’t necessarily mean in this case gambling winnings or losings. “Proceeds” also could refer to money simply being moved into an offshore gambling account. Federal officials declined to clarify or provide details.

Court documents do not indicate what triggered the investigation or its scope.

Although the final plea agreement reached between Silveira and the U.S. Department of Justice does not name the “gambling client,” an initial plea agreement signed last month by Silveira and his attorney, James D. Henderson Sr., contained a reference to the “money laundering of funds from P.M.”

After Outside the Lines inquired about Mickelson’s potential role in the case, the U.S. Attorney’s Office on June 17 filed a motion to have the original plea agreement stricken. The next day, it filed an amended version minus any reference to “P.M.”

It is standard Department of Justice policy for documents not to mention third parties who are not criminally charged. Henderson, a high-powered Los Angeles attorney whose gambling-related clients have included offshore sportsbook pioneer Ron “Cigar” Sacco, told Outside the Lines he didn’t “know anything about ‘P.M.'” and declined to comment further, citing a nearly four-decade practice of not talking to the media about cases.

Two sources, though, told Outside the Lines that the client was Mickelson.

Mickelson has earned more than $77 million over his three decades on the PGA Tour and also has lucrative endorsement deals with Callaway, Barclays, KPMG, Exxon Mobil, Rolex and Amgen that collectively pay him more than $40 million annually, according to Forbes.

The left-handed golfer is known for rarely shying away from a money match, and his affinity for sports gambling is no secret, either. Mickelson has won large sums betting on major sporting events like the Super Bowl; three Las Vegas gaming sources told Outside the Lines that Mickelson still bets on sports in Vegas.

Ty Votaw, executive vice president of the PGA Tour, declined to comment on the Silveira matter and the Tour’s gambling policies.

Should you be the target of a federal investigation, please call Meltzer & Bell for a free consultation. There is no-cost until you decide to hire our firm. Let us give you some assistance and peace of mind before you meet with law enforcement personnel.

Baseball’s Latest Drama Likely To Resolve With Indictments, Not Suspensions

Posted on June 17, 2015 by Scott Salomon

Make no mistake about it. This will go down as the biggest scandal to hit professional sports since the Black Sox Scandal and the throwing of the 1919 World Series.

Major League Baseball is not going to summon a Ted Wells-like figure to come out with a blue-ribbon fact finding report and issue suspensions and sanctions against the St. Louis Cardinals and members of their front office that might be found to have culpability in this situation.

People are going to go to prison.

When the Federal Bureau of Investigation gets involved, and then makes it public, they are advertising the fact that a Grand Jury will soon be convening and that indictments will be handed down. Once the indictments are handed down, the Department of Justice will begin to prosecute those individuals that they believe are guilty of committing these crimes. You will then see the accused scurry to make deals, turn on each other and fight for their freedom.

There are two types of defendants in Federal actions. Those that cooperate with the feds and those that wish that they cooperated with the feds. The feds give out long prison sentences like candy on Halloween.

According to The New York Times, law enforcement officials believe the hacking was executed by vengeful front-office employees for the Cardinals, hoping to wreak havoc on the work of Jeff Luhnow, the Astros’ general manager, who had been a successful and polarizing executive with the Cardinals until 2011.

Believing that the Astros’ network had been compromised by a rogue hacker, Major League Baseball notified the F.B.I., and the authorities in Houston opened an investigation. Agents soon found that the Astros’ network had been entered from a computer at a home that some Cardinals employees had lived in. The agents then turned their attention to the team’s front office.

“The F.B.I. aggressively investigates all potential threats to public- and private-sector systems,” an F.B.I. spokeswoman said to the Times. “Once our investigations are complete, we pursue all appropriate avenues to hold accountable those who pose a threat in cyberspace.”

This is bigger than Deflategate and this is bigger than Bullygate. Ted Wells cannot fix this and he cannot issue a 200-page report to make a recommendation to anyone that will sweep this under the rug. He cannot get with Rob Manfred and make this go away. Once the Department of Justice and the Federal Alphabets get involved and sink their teeth into something, they are like rabid dogs. They do not let go until all of the life is gone and they get what they need to satiate their appetite and see that justice has been done.

Attorney General Loretta Lynch will play the greater role of Ted Wells and she will be armed with a team full of federal prosecutors who will come equipped with subpoenas; they will get to the bottom of this. When they do, people will end up in prison, not with multiple-game suspensions.

This was bound to happen sooner or later. Front office personnel move from team to team and passwords do not get changed as often as they need to be, and teams apparently do not do a good enough job protecting their intellectual property. It is not like the Cardinals used sophisticated equipment. Former employees had passwords and used them surreptitiously and without the consent of their former employer. The Astros trusted that they would have honor and they simply did not.

Is there no honor in baseball any more? Tom Hanks said that there was no crying, but is there also no honor?

Major League Baseball “has been aware of and has fully cooperated with the federal investigation into the illegal breach of the Astros’ baseball operations database,” a spokesman for Commissioner Rob Manfred said in a written statement.

According to the Times, the Cardinals personnel under investigation have not been put on leave, suspended or fired. The commissioner’s office will probably wait until the conclusion of the government’s investigation to determine whether to take disciplinary action against the employees or the team.

If they were smart, they would use this time to lawyer up, get their affairs in order and prepare for a short prison term. There is no way that they do not see the inside of the Bureau of Prisons. They also might want to get their resume together, as they will never work in baseball again, unless it is mowing the grass or getting the field ready for play.

The case is a rare mark of ignominy for the Cardinals, one of the sport’s most revered and popular organizations. The team has the best record in the Majors this season (43-21), regularly commands outsize television ratings and has reached the National League Championship Series nine times since 2000. The Cardinals, who last won the World Series in 2011, have 11 titles overall, second only to the Yankees.

From 1994 to 2012, the Astros and the Cardinals were division rivals in the N.L. Central. For a part of that time, Luhnow was a Cardinals executive, primarily handling scouting and player development. One of many innovative thinkers drawn to the sport by the statistics-based “Moneyball” phenomenon, he was credited with building baseball’s best minor league system, and with drafting several players who would become linchpins of that 2011 Cardinals team.

The Astros then hired Mr. Luhnow as general manager in December 2011, just before they morphed into the American League, and he quickly began applying his unconventional approach to running a baseball team. In an exploration of the team’s radical transformation, Bloomberg Business dubbed it “a project unlike anything baseball has seen before.”

Under Luhnow’s direction, the Astros have accomplished a striking turnaround; they are in first place in the American League West division. But in 2013, before their revival at the Major League level, their internal deliberations about statistics and players were compromised, the law enforcement officials said.

The intrusion did not appear to be sophisticated, the law enforcement officials said. When Mr. Luhnow was with the Cardinals, the team built a computer network, called Redbird, to house all of its baseball operations information — including scouting reports and player information. After he left to join the Astros, and took some front-office personnel with him from the Cardinals, Houston created a similar program known as Ground Control.

It contained the Astros’ “collective baseball knowledge,” according to a Bloomberg article published last year that was referenced by the Times. The program took a series of variables and weighted them “according to the values determined by the team’s statisticians, physicist, doctors, scouts and coaches,” the article said.

Investigators believe that Cardinals personnel, concerned that Luhnow had taken their idea and proprietary baseball information to the Astros, examined a master list of passwords used by Luhnow and the other officials when they worked for the Cardinals. The Cardinals employees are believed to have used those passwords to gain access to the Astros’ network, law enforcement officials said.

That tactic is often used by cybercriminals, who sell passwords from one breach on the underground market, where others buy them and test them on other websites, including banking and brokerage services. The breach on the Astros would be one of the first known instances of a corporate competitor using the tactic against a rival. It is also, security experts say, just one more reason people are advised not to use the same passwords across different sites and services.

Last year, some of the information from the Astros’ computers was posted anonymously online, according to an article posted on Deadspin. Among the details that were exposed were trade discussions that the Astros had with other teams. Luhnow was asked after the story broke whether the breach would affect how he dealt with other teams.

“Today I used a pencil and paper in all my conversations,” he said.

This story isn’t going to go away, and it’s going to end with real-world punishments. Just what those are remains to be seen.

If you are under investigation for any crime, or are the target of any federal or state probe, call the Law Offices of Meltzer & Bell for a free, no-obligation consultation. We might be able to resolve your matter, or have the charges reduced before they get to the filing stages. Rely on the experience of Lawrence M. Meltzer, Esq. and Steven Bell, Esq. to represent you diligently and zealously in any state or federal court in Florida.

Will U.S. Supreme Court Deliver Another Landmark Decision on Racial Discrimination?

Posted on May 29, 2015 by Steven Bell

During the jury selection process, a judge may dismiss a prospective juror “for cause” if he or she believes that juror will be unable to decide the case impartially. However, both the prosecutors and the defense attorneys are also given a limited number of “peremptory challenges,” which are the right to strike certain prospective jurors without having to provide any reason for doing so.

This is a powerful right, but the United States Supreme Court has established certain precedents to make sure that peremptory challenges are not abused. One case was the 1986 landmark decision in Batson v. Kentucky, in which James Kirkland Batson, a black man, was convicted of burglary and receipt of stolen goods by an all-white jury after prosecutors struck all four potential black jurors. In a 7-2 decision, the Court ruled that the striking of prospective black jurors in this case violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The Batson decision is one that is likely to be revisited when the Supreme Court hears Timothy Tyrone Foster v. Carl Humphrey this fall. Less than one year after the Batson decision, Foster was convicted of murdering a 79-year-old widow and schoolteacher in Georgia. Foster is black and the victim was white, but notes in documents uncovered by Foster’s legal team show that prosecutors deliberately struck prospective black jurors in his case.

Ordinarily, it can be very difficult to prove that a prosecutor had racist intent in striking prospective jurors for criminal cases involving capital offenses such as violent crimes. However, some of the notes that were discovered through an open records request seem to make the prosecution’s intent remarkably clear. On four different copies of the jury list, the name of every black prospective juror was highlighted in green. The word “BLACK” was circled next to the question about race on the juror questionnaires of five black prospective jurors. Furthermore, prosecutors not only ranked each black prospective juror against the others in case “it comes down to having to pick one of the black jurors,” but created strike lists that contradict the “race-neutral” explanation provided by the prosecution for striking those jurors.

While Justice Lewis Powell wrote the majority opinion in Batson, Justice Thurgood Marshall authored a powerful concurring opinion:

I join Justice Powell’s eloquent opinion for the Court, which takes a historic step toward eliminating the shameful practice of racial discrimination in the selection of juries. I nonetheless write separately to express my views. The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.

Misuse of the peremptory challenge to exclude black jurors has become both common and flagrant.

Nearly 30 years after Batson, we are hopeful that the Roberts Court will similarly establish legal safeguards that ensure that every American—regardless of his or her race—has the right to a fair trial.

Florida Supreme Court overturns lengthy sentences for juvenile offenders

Posted on March 25, 2015 by Steven Bell

In four separate rulings, the Florida Supreme Court handed down decisions last week that set new limits on the sentences a juvenile can face for a serious offense.

The Court ruled that a sentence so long that it “ensure(s) these offenders will be imprisoned without obtaining a meaningful opportunity to obtain future early release during their natural lives based on their demonstrated maturity and rehabilitation” is unconstitutional in Henry v. Florida. In that case, a 17-year-old was tried as an adult and convicted for three counts of sexual battery while possessing a weapon, two counts of robbery, and one count each of kidnapping, carjacking, burglary of a dwelling and possession of marijuana.

He was initially sentenced to life in prison for the sexual battery offenses, plus 60 years for the remaining offenses. However, while his appeal was ongoing in 2010, the U.S. Supreme Court decided Graham v. Florida, in which it ruled that life in prison without chance of parole violated the Eighth Amendment’s prohibition on cruel and unusual punishment when applied to juveniles convicted of offenses other than homicide.

The trial court then changed Henry’s sentences to a 30-year sentence for every charge of sexual battery. The sentences would be served concurrently, meaning at the same time. However, the 60-year sentence for the other offenses would be served consecutively, meaning after the 30-year sentences were served. This meant he would serve 90 years in prison.

The Florida Supreme Court determined that Graham meant such a sentence would also be unconstitutional. The U.S. Supreme Court decided Graham on the basis that juveniles belonged in a special category due to their lesser ability to understand the consequences of their actions, and a “greater potential for change or positive character growth than adults.” Therefore, they could not be constitutionally sentenced to a term of imprisonment that would effectively mean they spend their entire life in prison.

In Gridine v. Florida, the Court also interpreted Graham to mean that homicide meant only that an actual killing had taken place. In that case, a juvenile who was 14 years old at the time was given a 70-year sentence for attempted homicide. Prior precedent specifically said that attempted homicide was a nonhomicide offense. Under the same reasoning as in Henry, a 70-year sentence is unconstitutional.

The other two cases involved interpretation of Miller v. Alabama, a U.S. Supreme Court based on Graham. In Miller, the Court found that a law with a mandatory life sentence without a chance of parole was unconstitutional as applied to a juvenile defendant.

Falcon v. Florida regarded whether Miller applied to people convicted as juveniles already serving a life sentence. The Court ruled that the decision was retroactive. People sentenced before the decision have two years to file to have a court adjust their sentence.

Florida v. Horsley found that a juvenile whose appeal was in process when Miller was decided but whose case was decided before the Florida Legislature amended the statute was entitled to individualized consideration for a new sentence.

While these are positive developments that reflect some leniency for juveniles, there should be no mistake that Florida has harsh laws for young people accused of crimes. Parents of children facing charges should contact an aggressive West Palm Beach juvenile defense lawyer to protect their child’s future.

Resources:

Gun Buyback Program Allows Citizens to Sell Firearms to Local Government

Posted on February 27, 2015 by Steven Bell

West Palm Beach officials are making an advanced effort to get weapons off the streets by offering a unique gun buyback program to citizens throughout the city this weekend.

Mayor Jeri Muoio has announced the gun buyback program saying the city is offering gift cards from different retailers for up to $100 for people who turn in guns. City officials say it does not matter where the gun comes from. No matter the situation, residents could be eligible to participate in the program.

The mayor said the goal of the program is to reduce the number of firearms owned by civilians and decrease the chances of children who are not skilled in using the firearms being in control of the weapons, according to Palms West Press. The West Palm Beach buyback program will be held on February 28th from 9 a.m. until 2 p.m. at Union Missionary Baptist Church on Broadway Avenue.

These buyback programs have been used in cities throughout the country. They are similar to drug take-back programs in which local law enforcement officers collect unused medication to decrease prescription drug abuse. The gun buyback program is a way to provide civilians with the chance to sell their privately owned firearms to the government without risk of prosecution.

It is important to remember that various charges can be associated with possessing and using firearms. For instance, a person could be charged with openly carrying a weapon or carrying a concealed weapon. In Florida, these can carry severe penalties with lifelong consequences.

It is illegal for a person to openly carry a firearm or electric weapon unless he or she is licensed to do so, according to Florida Statutes Annotated § 790.053. Violation of this law is considered a second-degree misdemeanor, which is punishable by up to 60 days in jail, a fine of up to $500 or both.

However, for a person to carry a concealed firearm in a public place, he or she must have a concealed firearm permit, according to Florida Statutes Annotated § 790.01. If a person carries a concealed handgun without a proper permit to do so, he or she could be charged with a third-degree felony, punishable by up to a five-year prison sentence, up to $5,000 in fines or both.

If a person openly carries a firearm and displays it in a threatening manner, he or she could be charged with improper exhibition of a firearm. In these cases, the prosecution must prove that a reasonable person would feel threatened or offended by the display.

The penalty for improper exhibition of a dangerous weapon is a first-degree misdemeanor punishable by up to one year in jail and $1,000 in fines. An improper exhibition of a firearm conviction will appear on a criminal record as a weapons offense. This conviction could hinder your future opportunities.

In Florida, there are certain situations in which a person could have his or her right to possess a firearm revoked. Some of these instances include:

The person was convicted of a felony
He or she committed a felony against the United States
The person has been adjudicated of an offense that would have been a felony if it were committed by an adult
He or she was convicted an offense in another state or country that would be a felony in Florida

If a person, such as a convicted felon, possesses a firearm without having his or her right to bear arms reinstated, he or she can be charged with a second-degree felony. A second-degree felony is punishable by up to 15 years in prison, a fine of to $10,000 or both.

If you have been charged with a firearm offense, it is important to build a strong defense in your case. Contact a West Palm Beach firearm defense attorney at Meltzer & Bell, P.A. We can help you understand the charges against you and work to have them reduced or dropped. Call (561) 283-3259 to schedule a free case evaluation today.