Archive for May, 2011

A King’s Castle?–Part II

Wednesday, May 25th, 2011

As we discussed earlier, the Supreme Court’s ruling in Kentucky v. King raises some interesting questions.  Just how secure is a person in their home from warrantless entry by the police?
Question: At what point do police officers unlawfully create exigent circumstances, to the extent that they cannot rely on those exigent circumstances to enter a home without a warrant?
When they create the exigency thereby violating the 4th Amendment.  (“Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and this allowed”–Justice Alito, writing the majority opinion.)
Question: What types of noise are suspicious enough to justify the exigency?
If police have their ear to a door listening for “suspicious sounds”, seemingly anything could justify their position.  For example, if they hear the sound of a toilet flushing, the police may believe that evidence is being destroyed.  On the other hand, is the sound of a toilet flushing all that unreasonable in a home?  Certainly, there can be several perfectly innocent reasons to flush a toilet.  Secondly, what if the officers hear NO noise?  Will that be construed as a guilty person sitting quietly waiting to attack the cops?  Does perfect silence indicate criminal conduct or no criminal conduct?  What types of noises indicate crime is afoot…a blender?  A microwave?  Several dogs barking?  A TV commercial with gunfire?  The fear among many people is that officers will try to justify any type of noise as the type which requires warrantless entry.
And that is precisely why this ruling is so important.  The implications reach into the most secure place we have, our homes.
(Disclaimer: This post does not constitute legal advice nor does it create an attorney-client relationship.)

COST OF MEDICAL RECORDS IN FLORIDA

Friday, May 20th, 2011

As a follow-up to our April 19th blog on Patient Access to Medical Records, this post will explain where the law comes from on cost of medical records in Florida.

Primarily, the law on cost of medical records comes from statutes and rules.  Following, is a list of two statutes and one rule on the issue:

Florida Statutes 395.3025 (Patient and personnel records, copies, examination)

Regarding records from hospitals:

  • Exclusive charge for copies may include sales tax and actual postage
  • Non-paper records not to exceed $2.00 per page
  • Paper records not to exceed $1.00 per page
  • An additional $1.00 may be charged for each year of records requested
Florida Statutes 395.301 (Itemized patient bill)
  • A licensed facility shall make available to a patient all records necessary for verification of the accuracy of the patient’s bill within 30 business days after the request for such records.
  • The facility may not charge the patient for making such verification records available; however, the facility may charge its usual fee for providing copies of records as specified in s. 395.3025.
Rule 64B8-10.003, Florida Administrative Code (Costs of Reproducing Medical Records)

Regarding records from anyone licensed under chapter 458 (most physicians):

  • $1.00 per page for the first 25 pages of written material
  • $.25 for each additional page
  • Actual cost of reproducing nonwritten records such as x-rays.  (The phrase “actual costs” means the cost of the material and supplies used to duplicate the record, as well as the labor costs and overhead costs associated with such duplication.)
  • Interestingly, the Rule also states:  “Recognizing that patient access to medical records is important and necessary to assure continuity of patient care, the Board of Medicine urges physicians to provide their patients a copy of their medical records, upon request, without cost, especially when the patient is economically disadvantaged. The Board, however, also recognizes that the cost of reproducing voluminous medical records may be financially burdensome to some practitioners. Therefore, the following rule sets forth the permitted costs for the reproduction of medical records.”)

(Disclaimer:  This blog does not constitute legal advice nor does it create an attorney-client relationship.)

 

A King’s Castle?–Part I

Wednesday, May 18th, 2011

(This blog is the first in a series that will focus on the U.S. Supreme Court’s decision in Kentucky v. King.)

Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

~J.Alito

The Supreme Court has issued a ruling in Kentucky v. King, an opinion that many find worrisome.  The decision came down 8-1, with Alito writing the majority opinion.  Ginsburg was the lone dissenter.

Facts

Police officers in Lexington, Kentucky followed a suspected drug dealer to an apartment complex.  They smelled marijuana outside an apartment door, knocked loudly, and announced their presence.  When the officers began knocking, they heard noises coming from inside the apartment.  The officers believed that the noises were consistent with the destruction of evidence.  The officers announced their intent to enter the apartment, kicked in the door, and found the Defendant (whose last name was King) and others.  The officers did not have a warrant to enter the apartment. (As it turns out, the suspect they were originally chasing was not in the apartment.) While conducting a protective sweep of the apartment, they saw drugs in plain view and found additional evidence during a subsequent search.  Defendant filed a motion to suppress, which the trial court denied because it found that exigent circumstances justified the warrantless entry.  Several appeals followed, leading the case up to the U.S. Supreme Court.

Holding

The Court held that the police could enter the apartment without a warrant, because after they knocked on the door and announced their presence they heard noises inside that sounded as if drug-related evidence was about to be destroyed.

1. The exigent circumstances rule applies when the police do not create the exigency by engaging or threatening to engage in conduct that violates the 4th Amendment

2.  Assuming that an exigency existed here, there is no evidence that the officers either violated the 4th Amendment or threatened to do so prior to the point when they entered the apartment.

3.  Any question about whether an exigency existed is remanded back to the Kentucky Supreme Court.

Ginsburg’s Dissent

In her dissent, J. Ginsburg said, “[t]he Court today arms the police with a way routinely to dishonor the 4th Amendment’s warrant requirement in drug cases.  In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind thay they had ample time to obtain a warrant.”  She continues:

In no quarter does the 4th Amendment apply with greater force than in our home, our most private space, which, for centuries, has been regarded as “entitled to special protection”…How “secure” do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?

To be continued…

As it turns out, King was not afforded much 4th Amendment protection in his castle.  Remember, he was not the person the officers were originally chasing.  Our next post will raise a few more questions about the implications of this ruling.

(Disclaimer:  This blog does not constitute legal advice nor create an attorney-client relationship.  If you have been charged with a crime, please consult with an attorney to discuss your options.)

Matthews Law Firm, P.A. practices criminal defense in the Bartow, Lakeland, Winter Haven areas.

PATIENT BROKERING IN FLORIDA

Tuesday, May 17th, 2011

A criminal defense attorney who handles Florida health fraud cases is probably familiar with the Patient Brokering statute, 817.505.

History of the Patient Brokering Statute

The Patient Brokering statute became a Florida law in 1996.  The statute has survived various constitutional attacks. For example, at one time, the statute was declared unconstitutional by a trial court, but both the 5th DCA and Florida Supreme Court disagreed.  (See State v. Rubio, 967 So.2d 768 (2007)).  The last amendment to the law occurred in 2006.

Criminal Sanctions

Under the statute, Patient Brokering is a third-degree felony, punishable by up to 5 years in prison and/or $5,000 fine.  In addition to criminal punishment, the statute also authorizes injunctive relief, and civil and administrative penalties.

Exceptions

The Patient Brokering statute does recognize 9 (nine) exceptions (817.505(3)(a)-(i)).  These exceptions can be complex to sort through and involve federal laws and regulations.  Needless to say, determining whether an exception may or may not apply can be extremely complicated.  This process often requires knowledge in federal regulations, health insurance, and programs like Medicare and Medicaid.

 

ACO COMPLIANCE PLANS

Monday, May 16th, 2011

Under the CMS proposed rule, an ACO (Accountable Care Organization) must have a compliance plan.  At minimum, an ACO compliance plan must have the following five elements:

1. A designated compliance official or individual who is not legal counsel to the ACO and who reports directly to the ACO’s governing body

2. Mechanisms for identifying and addressing compliance problems related to the ACO’s operations and performance

3. A method for employees or contractors of the ACO or ACO providers/suppliers to report suspected problems related to the ACO

4. Compliance training of the ACO’s employees and contractors

5. A requirement to report suspected violations of law to an appropriate law enforcement agency.

To read the proposed rule in full, go here.

(Disclaimer: This blog is not intended as legal advice nor does it create an attorney-client relationship.  If you have questions relating to ACO compliance plans, please contact Matthews Law Firm, P.A.)

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Insurance Fraud–What degree crime is it?

Thursday, May 12th, 2011

In Florida, the criminal statute on Insurance Fraud can be found at 817.234.

The seriousness of the charge depends on how much money is alleged to have been involved.  According to the insurance fraud statute, if the money or property involed:

Is less than $20,000, the offender commits a felony of the third degree.

Is $20,000 or more, but less than $100,000, the offender commits a felony of the second degree.

Is $100,000 or more, the offender commits a felony of the first degree.

These charges are often filed when a person or group of persons document or are reimbursed for services not rendered.  This charge frequently is used in the healthcare context, where it can also be used as a basis to prosecute upcoding.  If a physician or medical practitioner is adjudicated guilty of this crime, he or she may also have to go before the appropriate Medical Board for licensing/sanction issues in addition to any punishment imposed by the court.

(Disclaimer: This blog does not consitute legal advice nor does it create an attorney-client relationship.  If you have been charged with insurance fraud or organized fraud in Bartow or the central Florida area, please consult a qualified defense attorney.)

Music Too Loud in Vehicle?

Thursday, May 12th, 2011

A common reason for a traffic stop here in Polk County is playing music/radio too loud in a vehicle.  If the music is loud enough, an officer may conduct a traffic stop on the vehicle.  Once the vehicle is stopped, the officer may find additional violations and charge the driver or occupants.  A common scenario occurs when a vehicle is stopped for loud music and the officer finds drugs in the vehicle.  The driver may get charged with both the excessive loudness ticket and the drug charge.

There is a new case that came down yesterday from Florida’s 2nd DCA that may effect the legality of these types of “loud music traffic stops”.  The case is State v. Catalano (2D10-973).

To read the opinion in full, go here.

To summarize, the Court held that the loud music statute, 316.3045, is a content-based restriction on free expression which violates the First Amendment.  The Court also certified a question of great public importance:

Is the “plainly audible” language in section 316.3045(1)(a), Florida Statutes, unconstitutionally vague, overbroad, arbitrarily enforceable, or impinging on free speech rights?

In the end, there may be additional guidance coming from the Florida Supreme Court on this issue.  As for now, this is a win for Florida criminal defense attorneys and defendants as it may effect not only the traffic ticket itself but also any other charges filed pursuant to the traffic stop.

For local media coverage of the case, go here.

Florida Sex Crime: Traveling to Meet a Minor

Tuesday, May 10th, 2011

Here in Bartow, Florida, police agencies often perform undercover stings in the area of computer pornography/sex crimes.  Many times, an undercover detective will pretend to be a minor and go on internet chat rooms in order to “lure” the unsuspecting.  The “minor” may ask the suspect to come to Florida to meet.  When the suspect comes to Florida and knocks on the door, detectives are waiting to make the arrest.  (Dateline often featured such investigations.)

For these types of investigations, the suspect is often charged with “Traveling to meet minor”.   In Florida, this law is 847.0135 (Computer pornography; traveling to meet minor; penalties)

A few interesting tidbits about this statute:

  • The statute does not define the word “child”.  (However, courts have held this failure does not render the statute overbroad. See Karwoski v. State, 867 So.2d 486 (Fla. 4th DCA 2004)).
  • The statute has a section that internet service operators will want to know about.  Under the law, if owners or operators of computer services knowingly permits a subscriber to use the service to commit a violation of this law, they commit a first degree misdemeanor, punishable by a fine not to exceed $2,000.00 (Typically, the maximum fine for a first degree misdemeanor in Florida is $1,000.00)

(Disclaimer:  This blog does not constitute legal advice nor does it create an attorney-client relationship.  If you have been charged with a sex crime in Florida, please consult an attorney.)

Defending a DNA Case–Admissibility Issues

Thursday, May 5th, 2011

In defending DNA cases, the defense often tries to have inculpatory DNA evidence thrown out.  Although not an exhaustive list, here are some admissibility issues that can arise with DNA:

  • Evidence handling
  • Individual laboratory performance
  • Technical protocols
  • Population database
  • Statistics
  • Analyst training
  • Reagents kit
  • Contamination
  • Chain of custody

Also, here are a few links that may be helpful in researching DNA admissibility.

STR DNA Admissibility Court Rulings

DNA Fabrication, A Wake Up Call: The Need to Reevaluate the Admissibility and Reliability of DNA Evidence

The Evaluation of Forensic DNA Evidence (Chapter 6–DNA Evidence in the Legal System)

(Disclaimer: This blog is not intended as legal advice and does not establish an attorney-client relationship.)

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DUI AND THE EFFECT OF DENTURES ON BREATH TESTS

Thursday, May 5th, 2011

In Florida, when a person is arrested for DUI, they are often asked to perform a breath test.  Many people are familiar with common defense attacks on the breath test machine (currently, it is the Intoxilyzer 8000).  But have you ever heard of the “denture defense”?

Hypothetically, it goes something like this:  “Yes, I blew over the limit, but not because I was DUI.  I blew over the limit because I was wearing dentures.  I drank alcohol earlier in the day and there must have been some residual alcohol left over in my dentures.  That’s why I blew so high.”  There are several variations of the defense, but you get the overall argument.

Unfortunately, in Florida, wearing dentures during a breath test does not invalidate the breath test results…and yes, there is a case on point.

Schofield v. State, 867 So.2d 446 (Fla. 3d DCA 2004) held that the presence of dentures in a DUI defendant’s mouth during the breath test does not invalidate the results, so long as the test is conducted according to the governing statute and administrative rules.  The Court went on to hold that Florida law does not require the removal of denture devices nor does the law impose an obligation on the officer to even inquire about the use of dentures prior to or during administration of alcohol tests.

In the Schofield case, the Defendant’s first breath sample resulted in a reading that stated “Invalid Sample–Mouth Alcohol”.  The officer then asked the Defendant to rinse her mouth with water and obtained two additional breath samples which had readings of .114 and .111.  Defendant’s defense expert testified that the invalid mouth alcohol reading was due to the presence of alcohol and that the dentures probably caused the alcohol presence, and that the failure to remove the dentures before rinsing her mouth with water rendered the subsequent breath test results unreliable.  The State’s experts could not explain how the invalid reading resulted in this case but one said the latter two results were valid because they followed the proper procedures.  The Court held that any effect of the dentures on the breath test goes only to the weight, not the admissibility, of the test results.

This holding aligned itself with the prevailing view from numerous jurisdictions.

(Disclaimer: This blog does not constitute legal advice.  If you are charged with DUI, please consult a criminal defense attorney to discuss your situation.)

Matthews Law Firm, P.A., offices in Polk County, Florida.