Archive for April, 2011

CRIMINAL MISCHIEF AND RECLASSIFICATION

Thursday, April 28th, 2011

Under Florida law, there are certain crimes which become more serious based on how many prior convictions someone has for the same crime.  What looks like a misdemeanor may in fact become a felony charge.  Criminal mischief is one such charge.

Florida statute 806.13 defines criminal mischief as:

(1)(a) A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto.

The enhancement portion of the statute reads as follows:

(4) If the person has one or more previous convictions for violating this subsection, the offense under subparagraph 1. or subparagraph 2. for which the person is charged shall be reclassified as a felony of the third degree…

For the complete statute on criminal mischief, go here.

For example, if a person breaks a window of another, doing $75 damage, and it is their first criminal mischief charge, they will be charged with a second degree misdemeanor, punishable by up to 60 days in jail and/or $500 fine.

But if the same person had one prior criminal mischief conviction, they may be charged with a third degree felony, punishable by up to 5 years in prison and/or $5000 fine.

Criminal mischief  is not the only crime which can be reclassified.  Other crimes which can be reclassified include DUI, prostitution, petit theft, and battery.

The decision on whether or not to reclassify lies within the discretion of the State Attorney’s Office.  If you are charged with criminal mischief in Florida, make sure you hire a defense attorney who understands the reclassification scheme.

Update–Preaching Too Loud

Wednesday, April 27th, 2011

There is an update in the Lakeland street preacher case we blogged about earlier.

Yesterday, the judge dismissed criminal charges against Anthony Lowery.  The State Attorney’s Office is considering an appeal.

For more information, go here.

Update: No-Refusal DUI Warrants

Tuesday, April 26th, 2011

Recently, we blogged about no-refusal checkpoints in Florida, where officers obtain a warrant to forcibly do a blood draw on a driver suspected of DUI.

There is one such case currently on appeal in the 5th DCA in Daytona Beach, although the case doesn’t involve a checkpoint.

Here’s how the case got to the appellate court:   A driver was stopped by Melbourne police after they claim he failed to maintain a single lane back in 2009.  The driver was subjected to a forced blood test after a county judge signed a warrant.  At the trial court level, the defense filed a motion to suppress the blood evidence.  The trial judge agreed with the motion and suppressed the blood draw.  The state appealed.

Oral arguments were heard at the 5th DCA on April 19, 2011.  The DCA has not yet rendered a decision.

The name of the case is State v. Geiss.

For more info on the case, go here.

To track the status of the case at the 5th DCA, go here. The 5th DCA case number is 5D10-3292.

 

Supreme Court Rejects Fast-Track Review of Health Care Law

Tuesday, April 26th, 2011

“The petition for a writ of certiorari before judgment is denied”.

Yesterday, the Supreme Court rejected a request to fast-track review of the health care law.

As it stands now, the case will proceed through the federal courts of appeal and then onward to the Supremes.  On its current schedule, the case could possibly reach the Supreme Court in time for an early summer 2012 decision.

For more information on the decision, go here.

Easter Safety

Thursday, April 21st, 2011

With the Easter weekend upon us, we did a “round-up” of Easter webpages dealing with traditions, safety and health.

From the Matthews Law Firm, have a great Easter, eats lots of food, find lots of eggs, and be safe!

Photos of Sharia Law Presentation

Wednesday, April 20th, 2011

Here are a few photos from the Sharia Law presentation in Winter Haven, Florida. (Photos courtesy of the Republican Club of East Polk County)

For more information on the Republican Club of East Polk County, go here.

 

Sharia Law Presentation

Autumn Matthews explaining how Sharia law has impacted American jurisprudence

 

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Patient Access to Medical Records

Tuesday, April 19th, 2011

In Florida and under HIPAA, a patient is entitled to have access to his or her medical records.  Sounds easy enough, right?  It can be.  But for some patients, gaining access to their medical records can take some time.  For example, some medical offices require the request to be in writing.  Some offices even have a specific request form to use.

Typically, a health care provider has 30 days to respond to a patient’s request for records.  Under certain conditions, the provider can get an extension.  For example, some records may be kept off-site and they may require additional time to secure the records.  However, in most instances, a health care provider must furnish the records within 60-90 days of the request.

Will you be charged for a copy of your records?  Probably.  Health care providers are allowed to charge for the copy fees.  Under Florida law, most doctors are allowed to charge $1 for the first page and up to 25 cents for each additional page.  For example, 100 pages of records would cost $25.75.  {First page = $1.00 + (99 pages x .25).  $1.00 + $24.75 = $25.75}  Note: The maximum copy fees for hospitals and various types of doctors may be different.

Is a health care provider allowed to deny a patient’s request for medical records?  Yes, but only under limited circumstances.  Also, if a provider is denying access to records, they must give notice in writing, explaining why access was denied.

For more information on access to medical records in Florida, go here.

(As always, the content in this blog is not legal advice.  If you are having issues obtaining your medical records, please contact an attorney.  Depending on the health care provider or type of doctor, different strategies may apply.)

 

 

PHYSICIAN AGREEMENTS PART 2: NON-COMPETE CLAUSE

Monday, April 18th, 2011

Physician agreements often prohibit a doctor from establishing a practice or accepting other employment within a certain area for a certain period of time following termination of employment.  Additionally, there may also be restrictions against recruiting the employer’s staff members.  These types of restrictions are sometimes referred to as “covenants not to compete” or “non-compete clauses”.  These types of covenants will be enforced only to the extent that enforcement is necessary to afford reasonable protection to an employer’s legitimate interests (like patient lists, trade secrets and confidential information).  A covenant must be reasonable in time and in geographic area.  (In some states, geographic covenants are illegal.)

For example, an agreement providing that after termination, a doctor may not practice within 50 miles of the employer for 6 months may be deemed reasonable by a court.  However, an agreement that states a doctor may not practice within 1000 miles of the employer for 10 years may be ruled to be unreasonable and therefore unenforceable.

For more general information on non-compete clauses, go here.

Although not related to Physician Agreements, non-compete clauses recently made the news when Conan O’Brien left NBC.

 

Criminal Blog Week Day 5–Drug Possession in Florida

Friday, April 15th, 2011

Drug Possession in Florida

Drug possession can be a very serious charge depending on the circumstances.  Prescription drugs such as Xanax have come under close scrutiny by law enforcement, and trafficking amounts of cocaine, meth, and heroin are relatively small.  Since drug interdiction is a top police priority in Florida, it is essential for a criminal defense attorney to have a strong understanding of this area of law.

In our home jurisdiction at the Matthews Law Firm, the police forces of Lakeland, Winter Haven, Bartow, and the Polk County Sheriff’s Office have pooled their resources, training, and interdiction efforts to present a unified front against those accused of possessing drugs.  They commonly push to the very edge of legality to carry out their mission.  It is very important for a person accused of illegally possessing drugs to seek immediate help from an experienced criminal defense lawyer.  It can be helpful for the accused to understand the basics in the law of possession, so they can effectively communicate with their attorney.

In Florida, there are at least two ways to “possess” drugs.  To “possess” means to have personal charge of or exercise the right of ownership, management, or control over the thing possessed.

One way is through actual possession.  There are three ways in which a person can actually possess drugs:

  • The drug is in the hand of or on the person, or
  • The drug is in a container in the hand of or on the person, or
  • The drug is so close as to be within ready reach and is under the control of the person.

The second way a person can be in possession of drugs is through constructive possession.  This concept is more complex than actual possession.  Constructive possession means the drug is in a place over which the person has control, or in which the person has concealed it.  In order to prove constructive possession, the government has to prove two things:

  • The person had control over the drug
  • The person knew that the drug was within his presence or control.

Florida law also recognizes joint possession, that is, when two or more persons can possess the same drug.

Let’s look to some hypothetical examples:

Actual Possession

If a driver is stopped for a traffic stop and the officer sees marijuana on the driver’s shirt, he may be charged with Possession of Cannabis.  In this example, the State can easily argue actual possession, since the drugs were ON the driver.

Constructive Possession

If a driver (and the sole occupant of the car) is stopped for a traffic stop and the officer sees marijuana in the back seat, the driver may be charged with Possession of Cannabis.  The State can argue constructive possession.

Joint Possession

If a driver and a front seat passenger are stopped for a traffic stop and the police officer finds marijuana in the center console, BOTH driver and passenger might be arrested for Possession of Cannabis.  Here, the State could argue joint possession; that both occupants possessed the same drugs.

Defending Against State Tactics

When a car is stopped and the police officer suspects drug possession, the officer will likely ask both the driver and passenger about drugs.  He might ask for statements as to who the drugs belonged to and whether or not they knew drugs were in the vehicle.  This is a standard investigation technique.  Keep in mind that when an officer investigates a crime, he is collecting evidence to use against the accused.  Again, quickly obtaining the help of an experienced aggressive criminal defense attorney can be of critical importance.

Florida law on drug possession is just one example of how the law takes a common idea like “possession” and creates a complex legal situation.  The examples used here only illustrate HOW a person can be arrested and charged for Possession.  Whether or not a person is convicted of the charge is a different issue.  In any particular case, there may be legal, factual, or evidentiary defenses that can be effectively prepared by an experienced attorney.

 

 

Criminal Blog Week Day 4: “No Refusal” DUI Roadblocks

Thursday, April 14th, 2011

“No Refusal” DUI Roadblocks

The Bill of Rights and the Florida Constitution are commonly quoted to guarantee each person freedom from unreasonable searches and seizures.  Over the years, American jurisprudence has focused much more on the word “unreasonable” rather than “freedom.”  Traditionally, the U.S. Supreme Court has decided what is “reasonable” by balancing government interests with personal liberty.  A close examination of that balancing process would require a significant (i.e., long and boring) analysis.  Here, it is sufficient to say that the importance of the government interest is balanced against the degree of intrusion upon the individual.

With regard to standard DUI roadblocks, the Florida Supreme Court held that they can be implemented without violating the U.S. or Florida constitutions.  Noting that stopping a car is “unquestionably” a seizure under the Constitution, the Court used the Balancing Test to compare the government’s interests against the individual driver’s constitutional rights.  The Court held that, “The state’s compelling interest in protecting the public from drunk drivers outweighs any minimal intrusion into their privacy which a proper roadblock might cause.”  State v. Jones, 483 So. 2d 433 (Fla. 1986).

The government’s typical public relations justification for DUI roadblocks is, “We must protect you.”  The government avoids talking about the “minimal intrusion” part of the equation.

The Matthews Law Firm, along with criminal defense attorneys in Bartow and throughout central Florida, are now confronted with a new challenge to personal freedom and liberty.  Building on the Supreme Court’s approval of DUI roadblocks, police forces in central Florida are joining other states in implementing “no refusal” DUI roadblocks.

The “refusal” typically refers to the driver “refusing” to help police convict him.  It apparently has confounded police forces when a person, in this case not stopped for any wrong-doing, chooses to stand on his rights to be free from unreasonable searches, be free from unreasonable seizures, be free from self incrimination, have advice of an attorney, or have Due Process in his interaction with the government.

In Florida, if a person arrested for DUI refuses to submit to a breath test, there are already penalties set out by law.  In Florida, the law also sets out when and how the government may obtain a blood sample in a DUI case.

The “no refusal” DUI roadblock initiative seeks to get around these laws.

At a “no refusal” roadblock, police seek to force a person to submit to a breath test by threatening to forcibly take blood upon refusal of a breath examination.  In case of a refusal, police have a judge standing by, ready and waiting to sign a pre-printed fill-in-the-blank search warrant to draw blood.

Many are alarmed at the idea of judges simply rubber-stamping police investigations based on no individual suspicion, much less probable cause.  After all, police “hunches” have long been rejected as legitimate grounds for a warrant.  However, a much more sinister danger posed by this doctrine is the idea that demanding one’s constitutional liberty is, all by itself, probable cause to pierce those very rights.

Piercing a person’s body is not a “minimal intrusion” or a “minor inconvenience.”  Coercing a person to forfeit their rights is unconstitutional, whether done at the point of a needle or the barrel of a gun.  The coercion itself is the evil.  A police force unrestrained by law and exempt from constitutional limitations does not make anyone safer.