Gun "Control" or "Regulation"

        "Control" or "Regulation": words matter in this contentious debate. The Second Amendment succinctly, if not a bit cryptically reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." [Memo to anti-government conspiracy types: a "militia" aids and assists the government in the absence of a standing army, not exists to oppose it, that's treason.] So regulation it is!

       The Supreme Court confirmed the right to bear arms as a Constitutional Right, but subject to reasonable regulation. America holds just 5% of the world's population but is awash in 40% of its firearms, much of it unregulated. Just as freedom to travel is modified by reasonable laws concerning vehicle ownership and use, surely stringent and meaningful laws to ensure such inherently lethal objects as firearms are possessed and used as safely as possible is constitutional. Let's face it - assault rifles do not effectively serve for self-defense or hunting. Banning military style guns and ammo will cut down on the threat of mass violence and risk to law enforcement. Regulation of all gun sales with mandatory background checks is a must along with a comprehensive national registry. Not every nut will be thwarted from causing gun violence, but this approach will greatly improve the situation. Such gun restrictions do work in countries where they are in place.

       Florida has strict punishment for those who possess, fire, wound or kill others during the commission of a crime. That carries minimum mandatory yearly prison terms of 10-20-25-life and 3 year minimum mandatory prison sentences for felons in possession of firearms or ammo. But that is after the fact of harm caused but the use of firearms. So still waiting for meaningful gun regulation for this civilized society....

AVOIDING UNWANTED POLICE CONTACT

     Two teenagers of color from a disadvantaged neighborhood sought my advice in how to respond to what they saw as police harassment: describing their most recent encounter as being "grabbed" and frisked against their will while walking in their neighborhood. What can you do to safely avoid unwanted contact with the authorities?

     You have the right merely to walk the other way if there is no good reason to engage you. Avoid doing anything that gives rise to "reasonable suspicion" when there was none to begin with such as appearing to throw something away, running, or reaching into a pocket although none of those things are illegal. If an officer insists on making contact, do not do anything that can be considered a threat. Show your hands. Politely insist you do not give your consent to this encounter, do not wish to make any statements and want your lawyer. 

     If the police have reasonable suspicion you are about to commit, are committing or just committed a crime, they can justify a "Terry" (v. Ohio) stop: a brief detention to speak with you and pat you down for weapons. If anything illegal is discovered and you are arrested, you will have your day in court to challenge the police conduct as an invasion of privacy and freedom.

     At the same time, gather information in the neighborhood of other similar cases of unwarranted contacts and file a complaint as a group and protest to the department and municipality. Good police work is one thing. Harassment is another.

DUI: DRIVING IMPAIRED & EMERGENCIES

     My last blog entry explored the issue of actual physical control of a vehicle while impaired: the situation of pulling off the road when you feel you shouldn't drive. You still may be in violation of the law if you are in a position to operate your vehicle. It can be an emergency of sorts when you don't feel you can drive. What about a true emergency that compels you to drive in the first place?

     Take the recent case of an unfortunate friend in New York. He settled in at home to ride out Hurricane Sandy and consumed several drinks. He then received a call that his elderly, invalid mother had no food or power and her aid did not show up. Rightly perceiving an emergency, he braved the elements to get provisions to bring her a meal and generally to provide help. But feeling the effects of alcohol, my friend pulled over. The car remained running. A trooper soon pulled up behind him. Result? Arrested for DUI - actual physical control. 

     Valid emergency? Did he have an alternative? One hopes upon proof of these circumstances, the prosecutor will reduce the charge. The case is pending....

Abandoning a Crime, Criminal Intent & DUI

    Tampa Bay Bucs defensive lineman Da'Quan Bowers' recent arrest  for handgun possession at a N.Y.C. airport raises the question: when is a criminal act abandoned and the suspect no longer in jeopardy of arrest? Preparing for a return flight home, Bowers apparently tried to present his handgun at the airport for safe transport  before he went through security to board. Although properly registered and permitted in his home state, such possession violated strict N.Y. gun laws and he unwittingly brought it with him. Aside from other alternatives to deal with the gun and where all this falls on the stupidity scale, this young man clearly sought to avoid committing a criminal act or at least abandon one he was committing. The N.Y. law may be one of "strict liability", that is, the knowing possession itself is a crime even if you didn't intent to violate the law.

     Florida's DUI laws share some parallels with this scenario. I have handled many cases where a client gets in his or her car after consuming alcohol or medication, only to realize they feel impaired at some point. What happens next greatly affects the outcome with the police. Depending when that "uh oh" moment arrives, some simply sit in the driver's seat. Others have the key in their hand or have put it in the ignition. Next is starting the vehicle or actually driving off. Once having driven off, many pull over. Do they then put it in park, turn off the engine, put the keys away? Have they only  attempted a DUI or have they abandoned a completed DUI? Do any of these actions matter or have they violated the DUI law?

      In the Sunshine State, you may be guilty of DUI not just for driving while impaired due to alcohol or controlled substances, but also if you are in "actual physical control" of the vehicle. What does that mean? You may insist, "I didn't mean to drive impaired!" DUI laws do not require specific intent to commit this crime. So even if your actions show an intent not to operate that vehicle, like Bower's hapless handgun dilemma, just being in possession of an operable vehicle in a position to drive may be enough to run afoul of this law. Efforts not to drive may play well with a jury, minimize your punishment or even convince the prosecutor to reduce the charge, but if you put yourself in a position to drive, that is actual physical control.

      So what to do? When you've made the decision not to drive, if you are driving, pull over as soon as you safely can do so in a legal spot, turn off the car, put the keys where you can't reach them easily (out the window, in the glove box or the trunk for example but not in your pocket) and get into the back seat. This last piece is particularly important for vehicles with push button starters where the key fob need only be in the vicinity of the vehicle to start it. Once you've done this, it will be a stretch for an officer to make a DUI arrest if you were not seen driving. And finally, if you have a phone, call for a ride or taxi.

Direct Contempt of Court - Emotions Run High

       Something offensive done in front of a judge can constitute criminal contempt. The judge decides right then and there whether to make a finding of contempt and what penalty to impose, which can include up to 180 days county jail. It doesn't happen often, but I was reminded how criminal contempt scenarios do arise, especially during criminal court proceedings where emotions run high.

     The other day, a colleague related a criminal contempt scene he came upon in front of a particularly tough judge. He just left a courtroom when a woman from the gallery ran out, cursing and slamming the door, with bailiffs in hot pursuit. She was none too happy with a sentence imposed on her boyfriend. They pulled her back in to face the judge. 

     My friend, having seen another attorney in a similar situation many years ago rush to someone's defense, seized the opportunity to hurry back in, stand beside her at the podium and announce "I am her lawyer". After a few momements of harried whispering between them and calming her (and the judge) down, an apology came forth to the judge and all was well. Moral? Don't vent until you've left the building.

Internet Incrimination - Telling on Yourself

What's with the need to post information and images on social networking sites that at the least prove embarrassing and at worst expose you to criminal prosecution?!

I recently defended a case where the client, a convicted felon, posted a picture on My Space that appeared to show him displaying an automatic firearm. If true, that's a three year minimum mandatory prison offense. While the picture alone may not suffice to convict, police follow up to obtain an incriminating statement could seal the deal. ("I just posed with it".) Likewise that party picture with a drink? Whoops, you're underage. Going on about an inappropriate exploit? Why? Political rants that could be construed as a specific threat? Again, why? Stow the ego.

"Sexting"? Are you crazy? We're talking about serious L&L charges or worse when you send images with sexual content, especially if you created them and they go to someone underage or are of someone underage.

On probation and sending posts that look like you're not where you should be? Probation officers also check out these sites.

You can compromise yourself in other areas such as family law. I defended a young man in a domestic violence injunction case where his volatile girlfriend posted all kinds of inflammatory comments on her page revealing emotional instability as well as bad motive in filing for the injunction to seek revenge rather than as a legitimate need for court protection. That also didn't play well for her as these two moved on to resolve child custody issues. One judge told me of a father who essentially used his young son as "bait" in postings to get dates during a divorce. How do you think that worked out when it came time to determine child visitation?

What about insurance companies checking up on "injured" claimants? Think again before posting pictures and bragging about just returning from your exotic ecotourism trip or even frolicking with your pet. Postings can come back to haunt you during employment searches too. More and more, background checks include social networking sites. Think twice before bad mouthing your boss, posing as a slacker or just acting politically incorrect on-line. The list of dangers goes on and on.

And a special word of caution for kids. Never post full personal ID, (no year of birth), schedule, locations (school, extracurricular activities, parties, general whereabouts, etc.) or that you're someplace alone. Duh! That invites the worst kind of trouble.

Most of these sites virtually are public. Find someplace else to vent, boast or act the fool and watch who you "friend" as well as what you post.

Are you an Accomplice if you Don't Stop or Report a Crime?

As any parent and former teenager knows, there's lots of peer pressure to participate in behavior that pushes them to the edge of legality. And kids see plenty of misconduct. But when someone does not actually commit the crime, can he or she still be criminally responsible?
It depends.

In Florida the old accomplice "aiding and abetting" concept is called "principal in the first degree". To aid and abet as a "principal" means to help the perpetrator, or person who actually committed the crime, by doing or saying something that caused it or encouraged, incited or assisted the perpetrator. Before a defendant may be convicted as an aider and abettor, the state must prove beyond a reasonable doubt not only that the defendant assisted the perpetrator but that the defendant had the specific intent to participate in that crime. A principal is subject to the same punishment as the perpetrator. Pretty harsh.

As an experienced criminal defense attorney and former prosecutor, I was asked my opinion by Bay News 9 today about a recent high profile case where several teens observed but did not report locker room assaults by some other teammates. While their inaction is reprehensible, there is no duty to report or stop a crime. If they did not join in or facilitate the crime, they merely are witnesses. What if they cheered the perpetrators on? Does that suffice as encouragement under this law? Not likely. How about if they "put them up to it"? That's closer to the technical definition. What if they were look outs or helped plan the attack? Most definitely.

The moral? Kids should always choose their friends carefully. When you hang with those who test the limits, when things go south they go south in a hurry and it may not take much to become a principal.

See the video at:

http://www.youtube.com/watch?v=O1XpFRpuq3o

Read the story at:

http://www.baynews9.com/content/36/2009/8/12/507720.html?title=New+investigation+sought+in+school+rape+case

High Court Limits Police Vehicle Searches

For almost 30 years, as an exception to the 4th Amendment's warrant requirement to permit a search and seizure, courts allowed police routinely to search the inside of a vehicle, including trunks, glove boxes, consoles and containers, upon the arrest of someone who just had been inside it ("incident to the lawful arrest of a recent occupant"). The mobility of the vehicle and presumed ability of a driver or passenger to hide or destroy evidence of a crime served as the justification to empower law enforcement with such broad intrusion into a citizen's constitutional protection of privacy and against unreasonable searches. That never made sense to me in the usual case where the vehicle's occupant is removed and unable to access it. Well, no more!

The United States Supreme Court ruled this week in Arizona v. Gant, that once someone is arrested and secured out of the vehicle, there is no logic to justify a full vehicle search in the name of preventing the loss or destruction of evidence. The Court allowed an exception where the police reasonably believe evidence related to the crime for which the person was arrested is in the vehicle. So in Gant's case, after an arrest for a traffic offense, police wrongly searched his jacket on the back seat of his vehicle where they found illegal drugs.

Watch to see whether police modify their procedures to allow someone to remain in a vehicle to create the "need" to conduct a sweeping search of its interior....

Of course, other exceptions to the "warrant requirement" still apply: police may search 1) with consent of the person who controls the vehicle, 2) if they see contraband in "plain view", 3) to inventory the vehicle's contents prior to impounding it and 4) in emergencies called "exigent circumstances" typically involving weapons or seeing "furtive", i.e. unusual, movements within the vehicle that signal possible danger or destruction or hiding of evidence. These exceptions have their own bodies of case law and are subject to much interpretation.

Sealing and Expunging a Florida Criminal Record

Sealing and Expunging a Florida Criminal Record is a complex matter. Not just anyone may qualify. The law puts up many barriers. What’s the difference between sealing and expunging? Sealing, as the term implies, means closing the file from public view while expunging means actually destroying or obliterating it.

Threshold eligibility requirements to seal or expunge a criminal record:

• No “adjudication of guilt” (or delinquency in the case of a juvenile charge), meaning a conviction in the case to be sealed or expunged or any prior case as opposed to a “withhold of adjudication” meaning no conviction. This is regardless of whether the plea was “guilty” or “no contest”, which have the same effect for this area of the law.
• If there was a “withhold of adjudication”, the offense was not one greater than a third degree felony or third degree felony or misdemeanor involving any sex offense, obscenity, pornography, intentional child or elderly abuse or exploitation, or telecommunications fraud.
• No prior sealing or expunction.
• If more than one charge, that they arose from the same incident.
• Court supervision or sentence has been completed.

If the charge in question was never filed or dropped, one may seek to expunge that record immediately. If it was resolved with a plea and a “withhold”, ten years must pass before the record may be expunged.

While a sealed or expunged record generally allows a person to “lawfully deny or fail to acknowledge” the record without it being considered deceitful or an act of perjury, one still must disclose it in certain circumstances:

• An applicant for law or law enforcement related employment such as any criminal justice agency, seaport and candidates for the Florida Bar;
• An applicant for employment, licensing or contracting (and any contractor’s employee) with the Department of Children and Families, the Department of Juvenile Justice, the Department of Education or other school related entity and child care licensees - in other words, anyone “in a sensitive position having direct contact with children, the developmentally disabled, the aged, or the elderly”.

As you can see, sealing and expunging doesn’t mean closed from all eyes. Indeed, the above entities are required by law to access sealed records, adult and juvenile. Additionally, a prosecutor may reveal the prior record to the court in a subsequent prosecution.

A Quick Primer if You're Stopped for DUI

• You don’t have to say anything to the officer about where you’ve been or what you’ve consumed and they don’t have to read you your “Miranda” rights either for preliminary, roadside questioning when you are first stopped. Just be polite.
• You don’t have to perform any field sobriety “tasks” although that can be used against you, meaning a jury can be told that fact to imply guilt. These may be videotaped.
  
• Nor do you have to give a breath or urine test although that also can be used against you AND this “refusal” to provide a test will result in a DMV suspension for one year (or 18 months if it’s your second refusal, PLUS it’s a misdemeanor if its your second refusal).
• If you “blow” over the limit (.08 or more blood alcohol level or “B.A.L.”) the DMV suspension is for 6 months. Urine testing typically is for low blows to see if drugs are in your system. Even lawfully prescribed or over the counter medications can cause unlawful impairment for DUI.
  
• DMV suspensions begin immediately. Your ticket is a temporary 10 day permit. You must submit a challenge to these DMV suspensions within that time. That will “buy” you an extended driving permit until the administrative review of the suspension is complete, about 5 weeks. If successful, your license is restored pending court action. If not, there’s a 90 day “no drive” period for a first refusal and 30 days on the B.A.L. suspension. After that, you can apply for a hardship permit if you’ve signed up for DUI school and otherwise are qualified.
• If stopped, consider carefully whether to “help them” collect evidence against you vs. the consequences for not doing so.
• When in doubt about your sobriety, don’t drive. Take a cab!