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The Tennessee Supreme Court ruled last week that one suspected of driving under the influence can still be arrested in spite of passing field sobriety tests, a decision overruling a case from 2012 that ruled when a motorist passed six field sobriety tests that he could NOT be arrested. As most assume, field sobriety tests can be the deciding factor as to whether a motorist goes to jail for DUI or whether they go home. While this is generally correct, probable cause for a DUI arrest is generally established by observation of both field sobriety tests and other signs of impairment.

As with any arrest there must be sufficient probable cause to make the arrest legal within the bounds of the Fourth Amendment. Specifically for a DUI arrest it is often the case that the officer detects, upon contact with the motorist, certain impairment indicators that give rise to the officer’s reasonable suspicion that the motorist is committing the crime of DUI. Generally if the officer sees that the motorist has bloodshot and watery eyes, smells of alcohol, has slurred speech amongst other factors, the officer will have reasonable suspicion to request the individual to perform field sobriety tests. If the motorist agrees to perform field sobriety tests and performs in an insufficient manner, the officer will have probable cause to make an arrest. What makes this Tennessee ruling questionable is that even if a motorist passes the exercises put in place by the State to determine impairment, he could still take a ride to the poke. In other words, now it seems that in Tennessee if Officer Friendly subjectively thinks that a motorist is impaired, in spite of sufficient field sobriety test performance, he can now make an arrest. What’s unnerving is that though one can pass objective tests in place to measure impairment and still get arrested, assuming a proper detainer, I know of no case in which one has failed field sobriety tests and a court has found that probable cause did not exist for an arrest for DUI.
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Video of former Tampa Police Captain Curtis Reeves, Jr. shooting and killing local man Chad Oulson will be viewed in open Court according to Pasco County Circuit Judge Pat Siracusa. Reeves Jr. has been charged with second-degree murder for his actions. Several media outlets have requested footage of the video. Pasco County Prosecutors sought a Judicial order prior to turning over footage of the alleged second degree murder citing Florida Statute 406.136, a statute that makes it a third degree felony to turn over footage of a “killing of a person” to a third party not enumerated within the statute. The Statute was created to protect the families of victims from further emotional damage.

In this instance, the Florida statute’s restrictions tend to conflict with Section 21 of Florida’s Constitution. Section 21 states, “[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” This Florida Constitution clause is in accord with the Sixth Amendment of the United States’ dictate that a defendant is entitled to a “public trial by an impartial jury.” Traditionally this clause has been interpreted to allow for spectators to observe Court proceedings unless the excess publicity would serve to undermine the defendant’s right to due process.” Sheppard v. Maxwell, 384 U.S. 333 (1966).
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Polk county resident David Scott Schultz, 32, delayed his arrest last week when Polk County deputies attempted to serve a search warrant on his residence for suspicion that Shultz was using his home as a marijuana grow house. According to deputies, after knocking on Shultz’s door and speaking with him he refused to allow them in. After some time went by deputies smelled the odor of marijuana and ultimately learned that Shultz simply wanted to smoke one last joint before being taken in to custody. Shultz eventually opened the door and was taken in to custody without incident. Shultz was arrested on charges of maintaining a dwelling for drug manufacturing, cultivation of cannabis, possession of cannabis with intent to sell and possession of drug paraphernalia.

Mr. Schultz has pretty run of the mill Florida drug charges though he could benefit from the help of a Polk county criminal lawyer. Shultz’s charge for being in possession of a dwelling used for drug manufacturing is no doubt his biggest concern when defending against these charges. This Florida crime is a second degree felony punishable by up to 15 years in the Florida Department of Corrections. Florida statue 893.1351(2) makes it a crime for a person to knowingly be in actual or constructive possession of any place, structure, or part thereof, trailer, or other conveyance with the knowledge that the place…. will be used …. for the sale of a controlled substance, as provided in s. 893.13; or for the manufacture of a controlled substance intended for sale or distribution to another.
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19-year-old Canadian pop star Justin Bieber was arrested early this morning by Miami Beach police for allegedly driving with an expired driver’s license, DUI, and resisting arrest without violence, all misdemeanors. According to Officer Medina’s Complaint/Arrest affidavit Bieber was observed in a yellow Lamborghini racing or at least “start a contest of speed (drag racing) from a start” with an accompanying red Lamborghini. Officer Medina claims two large black SUVs were following the Lamborghinis in an effort to block off traffic to facilitate the race. Upon detainer Bieber is said to have questioned why he was stopped while emanating an odor of alcohol, was slow and deliberate in his movements and had bloodshot eyes. After becoming rather nasty with responding officers Bieber is alleged to have resisted the investigation leading to his arrest. In spite of his arrest Bieber is said to have advised that he was not drunk and that he was coming back from recording music at a studio. Officers were not “beliebers” and arrested the pop prince anyway.

I’m not a fan of Justin Bieber. I don’t know what he sings but even if I did I don’t think my taste in music is the same as my 6 year old niece’s or that of a 15 year old high school sophomore’s. I’m sure he’s great in his own right and if he wants to gift me a few million who am I to be rude and say no? All that said, I’d love to defend him on his recent snafu as this case may present some issues to huff and puff over. Will the huffing and puffing blow the case down? Probably not but it could provide leverage to free The Biebs on lesser charges. Lets start with the resisting arrest without violence charge.
Officer Medina claims in his Complaint/Arrest Affidavit that Bieber was pulled over for “drag racing with the other Lamborghini.” In other words, his reasoning for detaining “The Biebs” was reasonable suspicion that a crime had been committed. Upon detainer Officer Medina asked the Canadian sensation to step out of his car and allow for a safety pat down. Officer Medina tried to effect this brief search for weapons and contraband and Bieber bucked, leading to his pulling his arms away after Officer Medina elected to cuff Bieber, likely more so for being a smartass than anything else.

In Florida to support a finding of guilt for the offense of resisting arrest without violence, “the state must show: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the action by the defendant constituted obstruction or resistance of that lawful duty.” See S.G.K. v. State, 657 So.2d 1246, 1247 (Fla. 1st DCA 1995). See also Jay v. State, 731 So.2d 774, 775 (Fla. 4th DCA 1999). In this case the State would argue that the Officer was engaged in a legal duty of his racing investigation and Bieber wouldn’t submit to a brief pat down. J-Beebs then pulled his arms away when the pretty bracelets came out. It’s not necessary that the underlying criminal activity providing the basis for the arrest result in a charge or conviction; it is only necessary that the officer has a founded suspicion of criminal activity to make the detention. See State v. Dwyer, 317 So.2d 149, 150 (Fla. 2d DCA 1975). In other words, the “[f]acts constituting probable cause [for an arrest] need not meet the standard of conclusiveness and probability required to support a conviction.” See Seago v. State, 768 So.2d 498, 500 (Fla. 2d DCA 2000). Officer Medina had reasonable suspicion to investigate the racing charge. As he was doing so, Bieba Baby resisted.
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Ah the infamous DUI charge. It’s the crime that can happen to anyone, anywhere, anytime without regard for who you are or what your criminal history is. Our firm has represented all walks of life on DUI charges and as a general rule the individual has very little if any criminal history. Quite simply the most prevalent scenario is the one in which an individual has an evening out, drinks a bit, and miscalculates his or her ability to drive their vehicle without impairment. That said, the individual shows some sign of impairment as they drive or violates a traffic law and gets pulled over, ultimately to go to jail for a DUI arrest. Be that as it may, one of the most common questions or concerns we hear is whether or not an individual is eligible for a hardship license. The short answer is generally yes, with some exceptions.

Assuming the DUI charge is a person’s first DUI arrest they will have a few options with the Department of Highway Safety and Motor Vehicles (DHSMV), some much more appealing than others. Until last year an individual had two DHSMV options if they were charged with a DUI in Florida; challenge the suspension through a formal or informal review hearing or don’t. Now an some individuals charged with DUI in Florida can elect to waive their review hearing and instantly get a hardship license. Here are the options as they currently stand in Florida.
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Iowa City, IA man Levi Carter was arrested for DWI, Iowa’s version of Driving Under the Influence last Friday night after driving his car 55 in a 25 mile per hour zone and ultimately crashing. After contacting officers determined that Carter was impaired he was subjected a breath alcohol test where he registered initially a .467 on his first blow and on the second blow attempt the machine simply registered “HI” before the machine collapsed in its own drunken stupor from Carter’s chemical weapon breath. Ok, that actually didn’t happen but this Iowa guy did blow LITERALLY off the charts! Every State has set .08 as the legal limit where a Prosecutor enjoys a rebuttable presumption that the person he’s trying to convict is impaired, while Florida allows for no presumption if the blood alcohol level is above a .05 but below a .08 and a presumption of no impairment if the blood alcohol level is .05 or below. There is no language on what the effect of a breath test above .40 is. Call your congressman.

Given this scenario to prove this as a DUI in Florida the State must show that Carter drove or was in actual physical control of a vehicle and while doing so he had a blood alcohol level of .08 or above. From the news report he crashed his vehicle and had a passenger who represented to the police that they thought he was too impaired to drive. This witness is important as with a crash, an accident exception applies allowing a lay person to witness certain elements of a crime as a substitute for a policeman. Generally for a misdemeanor arrest an officer must witness all elements of a crime, with certain exceptions of course. The breath test result could satisfy the impairment portion of the allegation. Add those two pieces together and your DUI recipe could be complete.
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Heisman Trophy candidate Jameis Winston finds himself in both a National Title race and also subject to an allegation that he sexually assaulted a Florida State University student in December of 2012. Since this story broke it has been at the forefront of the college football world and has consumed the minds of many Florida State fans. With attention, rumors and allegations are bred, some conceivable, others absurd. The outcome will shake out how it may and at the end of the day, the truth must be found so justice is served. With what is known as of the time of writing this blog, there doesn’t seem to be enough evidence to make a filing decision. If that’s the case, it’s hard to imagine charges being filed.

Everyone that knows me, knows well that I am a Florida State Alum and a huge Florida State football fan. My Saturdays revolve around it, plain and simple. I love my Noles to a fault and I’m a cranky fan. I get made fun of for living and dying on every play and like the Chicago Bear superfans I have had numerous tiny heart attacks caused by my team. No doubt I’m at a baker’s dozen by now. That being said, before you start barking that this blog will be biased, even if Mr. Winston were a Gator or Hurricane, my opinion on this investigation would be the same. Considering the evidence known at the time of this blog (This is important folks. I’m writing based on what’s known at the time of posting this blog) it doesn’t seem to me there is a case against Mr. Winston for criminal sexual assault.

At the time of this blog there is nothing more than an allegation that Jameis Winston sexually assaulted a young woman in Tallahassee. The journey from allegation to proof beyond and to the exclusion of any and all reasonable doubt is long. State attorney Willie Meggs has said, and he’s correct, that there must be a “reasonable likelihood of conviction” to bring a criminal charge. In spite of the fact that Winston’s DNA was found on the property of the alleged victim, more is needed to show that a sexual battery occurred. Necessarily under FS 794.011(5), Florida’s sexual battery statute as it would apply to this case, there has to be some showing that there was no valid consent. As a general rule, proof of no consent is offered by showing that a rape kit was performed and that there is medical opinion of injury to the victim, amongst other items of evidence. If this exists it could be damning for Winston. His DNA, coupled with medical opinion that the alleged victim’s body was injured would be a mountain to overcome for the even the best criminal attorney. Conversely, if the victim chose not to seek medical attention or if a medical evaluation reflected no signs of injury, this would benefit Winston. If an eyewitness saw the sex act this would be relevant for either side, depending on the observations. Was there a sexual relationship between the parties before and after the alleged incident and what was the nature of that relationship? If the answer is yes, and that relationship continued after the alleged act, this fact would help Winston as it could be argued that no one who was actually assaulted would go back to the person that victimized him or her. Following with the idea of a relationship between the two, are there pictures of them together after the alleged incident? If so, this damages the State’s case.
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Happy Veteran’s Day to all that have served our great country. Those that are still serving, thank you too. In the United States we have the freedom to designate specific days to give thanks to those individuals that have made a real impact on the development and continued growth of our country. No other day is more necessary than Veteran’s Day. It’s really not enough though. One day a year to go out of our way to thank those that dodged bullets and lost their best friends in battle so that we could go to our favorite bar and watch football or eat at the restaurant of our choosing. Nothing is more disproportionate than that.

I have a friend who has been shot at in the most dangerous city in the world in Iraq and another who flies soldiers in and out of combat zones. My cousin is a former Army Ranger seeing active duty in the Middle East. Many of my generation’s grandfathers or fathers fought bravely in World War 2 or Vietnam. Because these guys did and do this, I can safely get in my Jeep and drive to the beach and enjoy the day. They don’t talk about it and they don’t expect to be thanked. Yet no one should be thanked more. Quite honestly this is hard for me to wrap my mind around. Not only have they risked their lives for our lives and freedoms, they continue to stand in line to do so. They do this all the while realizing that when they go, or when they went, they could be kissing their wife holding their baby for the last time.
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Tampa man, Darrell Strong was charged with discharging a firearm in public, aggravated assault with a firearm and burglary for the purpose of a battery after firing at another man in the parking lot of the Tampa Home Depot located on Dale Mabry Highway. According to police reports, Raymond Lindstrom of New Port Richey was leaving the parking lot of the Home Depot and drove too closely to Strong’s wife’s vehicle, making it difficult to pass safely. As Lindstrom and Strong’s wife passed, a verbal altercation occurred through each of their windows prompting the intervention by Darrell Strong. Darrell Strong and his friend John Christian confronted Lindstrom, who remained in his vehicle. An argument escalated and eventually a fight broke out as Lindstrom was still in the driver’s seat. Lindstrom ultimately drew his concealed firearm leading to Strong and Christian attempting to take it from him. Strong and Christian then ran to their vehicles to retrieve a firearm as Lindstrom attempted to leave the parking lot but had to drive back by the two men due to Lindstrom’s lane dead ending. As Lindstrom drove back by the two men, Strong fired two shots at Lindstrom. Police estimated approximately 12 people were between Strong and Lindstrom when the shots were fired.
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Certain selected residents of Orange County, FL are potential jurors for the First Degree Murder trial of accused Police Officer killer Dontae Morris. Morris is scheduled for trial in the murders of Tampa Police Officers Jeffrey Kocab and David Curtis after the officers pulled over a car Morris was in three years ago. At the time of Morris being pulled over he was wanted on a warrant out of Jacksonville for a worthless check. Upon his detainer he fired upon and killed Officers Kocab and Curtis. After shooting the officers Morris fled on foot and a manhunt ensued until he ultimately gave himself up at a local Tampa criminal attorney’s office. Due to the nature of the murder charge, Morris could face the death penalty if convicted should a jury ultimately elect to recommend death and the trial Judge oblige their wishes. For now, an Orange County jury will be selected to try the Hillsborough County case. A looming question on the mind of many is why pick a jury in a different jurisdiction?

Due to the subject matter of this trial leading to much media attention and despite the crime occurring in Hillsborough County, the jury will be selected in Orlando and ultimately sequestered in Tampa. Florida’s Constitution, under Article I, Section 16, guarantees that an individual accused of committing a crime shall receive an impartial trial in the county wherein the crime was allegedly committed. As support for this guarantee, Florida Rule of Criminal Procedure 3.240 allows as a safeguard, for the Defendant or the State Attorney’s Office to move for a change of venue. As a basis for this motion the moving party will allege that a fair and impartial trial can’t be had in the county where the crime was committed and as such the trial or at least the jury selection should be moved to another county in the hope that a pool of individuals less familiar with the facts can be found. Florida criminal statute 910.03 dictates that upon a court ordering a change of venue, priority must be given to any county that closely resembles the demographic composition of the county wherein the original venue would lie. Using the Morris case (see also the Casey Anthony case) as an example, the closest county offering the most purported safety in distance with the closes demographic makeup to Hillsborough is Orange County, likely because of the cities of Tampa and Orlando being somewhat similar demographically.
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