State constitution’s search and seizure provision permits warrant applications and warrants by telephone. State v. Boyse, 2013 N.M. LEXIS 177 (June 10, 2013):
[...] Read more!
NM constitution permits telephone search warrants
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New AAA Study: Voice-Activated And Hands-Free Device Still Lead To Distracted Driving
An AAA study released today debunks the myth that voice-activated and hands-free devices eliminate driver distraction concluding that drivers who use hands-free devices to talk, text, send emails or give voice commands can “overload” their attention span. Commands that are not short and simple are not too distracting. But checking email or Facebook accounts significantly [...]The post New AAA Study: Voice-Activated And Hands-Free Device Still Lead To Distracted Driving appeared first on NY Ticket Attorney.
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"What the Sentencing Commission Ought to Be Doing: Reducing Mass Incarceration"
The title of this post is the title of this notable new article by Judge Lynn Adelman available via SSRN. With three new members of the US Sentencing Commission, the piece is especially timely, and here is the abstract: The...
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Servicer Admits Stealing Funds from Mortgage Loan Pools
Earl Gross, 75, Las Vegas, Nevada, the former president and chief executive officer of U.S. Mortgage, a loan servicing company in Nevada, pleaded guilty for his role in a scheme to defraud Wells Fargo Bank of more than $8 million. The defendant pleaded guilty to one count of bank fraud. Gross faces a maximum penalty [...]
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Hard Money Lender Indicted on Mortgage Fraud Charges
Emiel A. Kandi, University Place, Washington, a hard money lender, was arrested after being indicted by the grand jury for conspiracy, making false statements on loan applications, and mail fraud. The defendant was taken into custody by the FBI and will make his initial appearance on the indictment in U.S. District court in Tacoma. According [...]
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Eighty-four Percent of Police Depts. Have No Policies for Proper Eyewitness Identification: NIJ
It has been almost fifteen years since the National Institute of Justice (NIJ) recommended comprehensive changes to the ways that police conduct identification procedures for witnesses. Yet USA Today reports that a new NIJ report reveals that 84 percent of U.S. police departments still have no policy to govern how live lineups are conducted. Readers […]![]()
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How Does A Criminal Lawyer Obtain Evidence In My Case?
One of the, if not the most important role of a criminal defense attorney is to obtain the evidence in their client’s case. This role is often overlooked or not given the attention that it needs by some attorneys. Criminal Rule 16 allows a defense attorney to force the government to turn over all of [...]
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How Does A Criminal Lawyer Obtain Evidence In My Case?
One of the, if not the most important role of a criminal defense attorney is to obtain the evidence in their client’s case. This role is often overlooked or not given the attention that it needs by some attorneys. Criminal Rule 16 allows a defense attorney to force the government to turn over all of [...]
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How Does An Attorney Obtain Evidence In My Case?
One of the, if not the most important role of a criminal defense attorney is to obtain the evidence in their client’s case. Unfortunately for some this role is often overlooked or not given the attention that it needs by some criminal attorneys. We make sure that we force the government to provide all of [...]
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¿Qué sucede si dejo de tomar una audencia en la corte?
Si se olvida de una cita en la corte, la corte probablemente emitirá una orden para su arresto. En San Diego, si su caso es un delito menor, puede probablemente ser colocado en el calendario por su abogado sin que tenga que comparecer ante el tribunal. Si el caso es más grave, como un delito grave, es [...]
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Tennessee Doctor Sentenced to 2 Years in Prison for Providing Unapproved Foreign Medication
While most health care fraud cases deal with drug diversion, improper billing, and fraudulent insurance claims, there are other potential pitfalls for medical providers which are less common. One such pitfall is violating the Food, Drug, and Cosmetics Act (21 U.S.C. § 301, et al.).
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According to a press release from the U.S. Attorney's Office, Johnson City, Tennessee physician William Kincaid, was sentenced to 2 years in federal prison earlier this week for violating the Food, Drug, and Cosmetic Act. Kincaid was a doctor with East Tennessee Hematology-Oncology Associates, P.C., d/b/a McLeod Cancer and Blood Center.
Kincaid entered into a plea agreement, wherein he admitted that he had been obtaining unapproved drugs from a Canadian business, Quality Specialty Products, beginning in 2007. Such unapproved drugs are often referred to as "misbranded" drugs. These misbranded drugs included chemotherapy medications and were administered at Kincaid's medical clinic.
Greeneville Federal Court Judge J. Ronnie Greer sentenced Kindcaid, and the Judge declared that Kincaid's actions were "about greed" and the "motivation was to make more money." Judge Greer also pointed out that, although it was impossible to know which patients had received the unapproved drugs, the "emotional harm" to patients from not knowing whether they had received unapproved drugs contributed to the seriousness of the offense.
Kincaid's attorney informed the Court that his client had entered into an agreement with the United States and the State of Tennessee to pay $2.55 million in settlement of civil claims under the False Claims Act for false and fraudulent claims submitted to Medicare and TennCare.
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According to a press release from the U.S. Attorney's Office, Johnson City, Tennessee physician William Kincaid, was sentenced to 2 years in federal prison earlier this week for violating the Food, Drug, and Cosmetic Act. Kincaid was a doctor with East Tennessee Hematology-Oncology Associates, P.C., d/b/a McLeod Cancer and Blood Center.
Kincaid entered into a plea agreement, wherein he admitted that he had been obtaining unapproved drugs from a Canadian business, Quality Specialty Products, beginning in 2007. Such unapproved drugs are often referred to as "misbranded" drugs. These misbranded drugs included chemotherapy medications and were administered at Kincaid's medical clinic.
Greeneville Federal Court Judge J. Ronnie Greer sentenced Kindcaid, and the Judge declared that Kincaid's actions were "about greed" and the "motivation was to make more money." Judge Greer also pointed out that, although it was impossible to know which patients had received the unapproved drugs, the "emotional harm" to patients from not knowing whether they had received unapproved drugs contributed to the seriousness of the offense.
Kincaid's attorney informed the Court that his client had entered into an agreement with the United States and the State of Tennessee to pay $2.55 million in settlement of civil claims under the False Claims Act for false and fraudulent claims submitted to Medicare and TennCare.
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Florida Welfare Fraud Targeted by State Officials
The Florida Department of Children and Families is cracking down on welfare fraud, saying theft of public-assistance dollars costs the state an estimated $1.35 billion annually. ![shoppingcart.jpg]()
The agency has just received grant funding from the state Department of Agriculture to implement a first-of-its-kind system to track and halt fraud in much the same way that banks and credit card companies already do.
Our Fort Lauderdale criminal defense lawyers know that these measures are primarily aimed at prevention, but they could undoubtedly be used as evidence in criminal prosecutions.
Florida Statute 414.39 governs welfare fraud in the state. It holds that any person who fails, either by false statement or by impersonation or misrepresentation or any other fraudulent means, to disclose material facts regarding the determination of a person's qualification to receive public assistance from state or federal programs or if the person falsifies information to receive larger benefits than what they might rightly collect, is guilty of a crime.
The severity of that crime, and therefore the punishment, depends on which fund was stolen from and how much was wrongfully taken.
For example, if a person wrongfully collects food vouchers from the state with an aggregate value of $200 or less in any one-year period, it's a first-degree misdemeanor, punishable by up to one year in jail. However, if the value of those food vouchers was more than $200 in a one-year time frame, it's bumped up to a third-degree felony, punishable by up to five years in prison.
The fraud tracking program that Florida is gearing up to launch is going to cost the state about $1 million to $4 million annually, but it's expected to save about $60 million just in that first year. In addition to funding from the Department of Agriculture, the state legislature pitched in about $5 million for the program, which should subsequently be able to fund itself.
A recent trial run over the course of five weeks involved establishing new hurdles to collection of food vouchers provided by the state. An online screening tool is used to pepper the recipient with a series of questions that only he or she should know. This particular device is an effort to ward off identity thieves. Of nearly 140,000 applications in the first several weeks, the Orlando office red-flagged some $210,000 in fraud - which was triple what authorities had expected to uncover.
Nowhere else in the government sector is this being done. This marks a shift in approach to the issue. Traditionally, tackling the issue of identity theft and welfare fraud had involved a method of "pay-and-chase." The state would pay out the funds, then recognize them as fraudulent and go after the alleged thieves.
This effort follows a number of higher-profile arrests for fraud in Florida. In one case, a mental health counselor in central Florida was accused of running a $3 million Medicaid fraud operation, using the money to purchase high-end cars, expensive vacations and nearly $200,000 in designer purses.
Then recently in Manatee County, some 100 people were arrested on allegations of food stamp fraud.
Right now in Florida, 9 out of 10 welfare recipients apply for their benefits online. This has allowed the state to reduce the huge lines at welfare offices, but it has given increasing rise to identity theft.
Three years ago, the state founded the Office of Public Assistance Benefits Integrity, which accepts and investigates complaints of public assistance fraud.
Public officials say that by far, Medicaid fraud is the most common problem in this realm, with individuals often hiding income in order to meet eligibility requirements. This is followed by food stamp fraud. In many cases, people will heist the identities of those who are imprisoned or deceased to collect benefits.
Last fall, Florida officials began using software to cross-reference information from financial institutions to determine whether recipients had access to money they weren't disclosing to the government.
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The agency has just received grant funding from the state Department of Agriculture to implement a first-of-its-kind system to track and halt fraud in much the same way that banks and credit card companies already do.
Our Fort Lauderdale criminal defense lawyers know that these measures are primarily aimed at prevention, but they could undoubtedly be used as evidence in criminal prosecutions.
Florida Statute 414.39 governs welfare fraud in the state. It holds that any person who fails, either by false statement or by impersonation or misrepresentation or any other fraudulent means, to disclose material facts regarding the determination of a person's qualification to receive public assistance from state or federal programs or if the person falsifies information to receive larger benefits than what they might rightly collect, is guilty of a crime.
The severity of that crime, and therefore the punishment, depends on which fund was stolen from and how much was wrongfully taken.
For example, if a person wrongfully collects food vouchers from the state with an aggregate value of $200 or less in any one-year period, it's a first-degree misdemeanor, punishable by up to one year in jail. However, if the value of those food vouchers was more than $200 in a one-year time frame, it's bumped up to a third-degree felony, punishable by up to five years in prison.
The fraud tracking program that Florida is gearing up to launch is going to cost the state about $1 million to $4 million annually, but it's expected to save about $60 million just in that first year. In addition to funding from the Department of Agriculture, the state legislature pitched in about $5 million for the program, which should subsequently be able to fund itself.
A recent trial run over the course of five weeks involved establishing new hurdles to collection of food vouchers provided by the state. An online screening tool is used to pepper the recipient with a series of questions that only he or she should know. This particular device is an effort to ward off identity thieves. Of nearly 140,000 applications in the first several weeks, the Orlando office red-flagged some $210,000 in fraud - which was triple what authorities had expected to uncover.
Nowhere else in the government sector is this being done. This marks a shift in approach to the issue. Traditionally, tackling the issue of identity theft and welfare fraud had involved a method of "pay-and-chase." The state would pay out the funds, then recognize them as fraudulent and go after the alleged thieves.
This effort follows a number of higher-profile arrests for fraud in Florida. In one case, a mental health counselor in central Florida was accused of running a $3 million Medicaid fraud operation, using the money to purchase high-end cars, expensive vacations and nearly $200,000 in designer purses.
Then recently in Manatee County, some 100 people were arrested on allegations of food stamp fraud.
Right now in Florida, 9 out of 10 welfare recipients apply for their benefits online. This has allowed the state to reduce the huge lines at welfare offices, but it has given increasing rise to identity theft.
Three years ago, the state founded the Office of Public Assistance Benefits Integrity, which accepts and investigates complaints of public assistance fraud.
Public officials say that by far, Medicaid fraud is the most common problem in this realm, with individuals often hiding income in order to meet eligibility requirements. This is followed by food stamp fraud. In many cases, people will heist the identities of those who are imprisoned or deceased to collect benefits.
Last fall, Florida officials began using software to cross-reference information from financial institutions to determine whether recipients had access to money they weren't disclosing to the government.
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Drug DUI Concerns Keeping You Up at Night? Use Caution when Taking Nighttime Sleep Aids
It's in the news a lot these days. Drivers nodding off behind the wheel, highway accidents blamed on bad drug interactions, motorist who even find themselves "sleep-driving" after taking over-the-counter sleeping medications. As New Jersey drunk driving defense lawyers, I and my colleagues have seen the cases that run the gamut from simple intoxicated driving arrests to drivers charged with vehicular homicide following multi-car pileups attributed to substance abuse. There is no lack of tragedy on our roadways.
While we may represent individuals who have been accused of DWI-DUI, we in no way espouse drinking and driving, nor taking any drug or prescription meds that one knows will impair his or her operation of a motor vehicle. The facts are clear on this; an impaired driver is simply more prone to being caught up in a traffic mishap than one who is cold-sober or not on any medication.
Yet there are those instances where a motorist may have had no idea that the medicine his physician prescribed would interfere with his ability to drive a car or truck safely. A subtle as some of the effects are, sometimes being stopped for a traffic infraction by a police officer may be the first indication of impairment due to that drug or treatment.
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Florida DUI, Refusing To Submit To a Breath Test
Sobriety checkpoint in Miramar planned FridayA sobriety checkpoint will be in effect from 9 p.m. Friday through 3 a.m. Saturday for motorists traveling along the 3600 block of South University Drive in Miramar.Police officers from Miramar, Pembroke Pines, Davie and Hollywood, as well as deputies from the Broward Sheriff's Office, will be watching for drivers who are operating their vehicles while under the influence of drugs or alcohol and will enforce other traffic-related offenses. Source.Sobriety checkpoints are predetermined locations, on roads, where police officers can halt motor vehicles and observe drivers for signs of intoxication. The purpose of these roadblocks is to discourage people from driving under the influence of drugs or alcohol. A driver that is stopped may be asked to perform a field sobriety test, as well as consent to a breath test if the officer feels that one is warranted. The outcomes of these tests can result in the driver being arrested for driving while intoxicated (DWI), or driving under the influence of drugs or alcohol (DUI). Local law enforcement agencies often decide to implement random checkpoints more frequently on certain holidays or times of the year when drunk driving rates tend to increase.A sobriety checkpoint generally has visible warnings for approaching motorists, which can include road signs, flares, or other types of lights.A driver may be visually assessed and sent on his or her way if the officer observes no signs of intoxication. Otherwise, the driver may have to pull over and exit his or her vehicle for further examination. At his or her discretion, the police officer can administer a field sobriety test, as well as a breath test. The laws vary with regard to the consequences of a driver refusing either of these tests. If it is determined that the driver is impaired by drugs or alcohol, the officer typically follows his or her agency’s standard procedure.Implied ConsentFlorida law requires you to take a breath, blood, or urine test if you are arrested for a DUI. Florida’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath or urine for the purpose of determining your blood alcohol content (BAC) or for drugs. Also, you may be asked to take more than one test. If the officer first chooses a breath test, then he or she has the option to make you take an additional test, which you cannot refuse without penalty. You could be arrested for a DUI even if you are not driving. If you have actual, physical control of the vehicle while under the influence, then that can be enough for an officer to arrest you. Generally, actual, physical control means that the driver is in the car and can make it move. Even if the driver is asleep when the officer arrives on the scene, the potential that he or she could wake up and drive has been enough for a Florida court to decide that the driver had actual physical control. Once you are arrested, the officer should tell you that if you refuse to take the test, your license will be suspended and that your refusal can be used against you in court. The officer should also tell you that if you have had your license suspended before for refusing a chemical test, then this subsequent refusal counts as a misdemeanor in addition to having your license suspended again. You can read Florida’s implied consent law in the Florida Statutes Annotated 316.1932.Refusing to Take the TestIn Florida, you will lose your license for one year for your first refusal. For your second and any subsequent refusal, your license will be suspended for 18 months and you will face the additional consequences, such as time in jail, that come with committing a misdemeanor. In most situations, if you refuse to take a mandatory blood, breath, or urine test, you cannot be forced to do so. However, the state may administer the test if you are unconscious, even if you haven’t yet been arrested. Also, if you find yourself in a situation where an officer arrests you for a DUI but hasn’t given you a test, then Florida law says that you can ask for one. Once you ask, the officer has to give you a test. The penalties for refusing to submit to a chemical test are found in the Florida Statutes Annotated 316.1932 and 775.082. SourceWest Palm Beach DUI/DWI AttorneyIt is not illegal to drink and drive in Florida, so long as your blood alcohol content (BAC) is not over .08 or your normal faculties are not impaired. At the law firm of Andrew D. Stine, P.A., in West Palm Beach, we advise our clients to neither blow into a breathalyzer machine nor do a roadside test. Why give evidence to the state if you don't have to?If you have submitted to a breathalyzer test and failed, that is not the end of your case. The Intoxilzer 5,000 and Intoxilzer 8,000 breathalyzer machines used to measure BAC in Florida have significant problems. If you have an expert witness and an experienced attorney who can challenge the accuracy of the machine in court, the BAC evidence may be thrown out. DUI/DWI Lawyer Andrew Stine has obtained not-guilty verdicts due to machine failure for clients who have had blood alcohol levels of .229 and .227.The most important thing in DUI/DWI cases is early intervention by your attorney. This preliminary involvement will help you avoid the consequences of a conviction, which are very serious in Florida. We will also represent you at your hearing before the Florida Department of Motor Vehicles in order to protect your right to drive.There are defenses in DUI accident cases, which an experienced and capable lawyer can use. Even if you made a statement to police during your arrest, our lawyers can usually get that evidence thrown out of court. Any statement you give officers cannot be used against you due to the Florida accident report privilege.Protecting your right to driveUnless your request a DMV hearing within 10 days of arrest, you will lose your driver's license. Even if your license is revoked, we can apply for a hardship license, which is usually immediately granted to you. We have never had a hardship license denied to one of our clients.Free consultation 24/7: Call West Palm Beach criminal defense lawyer Andrew D. Stine, P.A. at (561) 832-1170. Se habla español.Distributed by Viestly
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Whitey Bulger Trial Begins in Boston
Opening Arguments were held today in the Boston trial of alleged mobster/fugitive James "Whitey" Bulger. I haven't had time to follow the case recently but if you are, here's a thread to discuss it.
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Zimmerman Judge Announces Jury Will Be Sequestered
The Judge in the George Zimmerman trial just announced the jury will be sequestered. She said the parties have stipulated the trial will last 2 to 4 weeks.
You can watch a live feed of proceedings here.
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'Apostrophe laws' named for kid victims on the wane
6-13-2013 National:
When Amanda Moore concluded that her daughter's killer was a drug addict wrongly paroled and wrongly allowed to remain free, she did like many parents before her: she proposed...
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Mass. SJC Calls Obscene Video Chat Illegal
The Boston Globe reports that the state's highest court says a state child pornography law does ban an obscene video chat that a 34-year-old man had with a 10-year-old boy in cyberspace.
Jeffery Bundy was convicted of violating the state law that bars people from posing or exhibiting a child in a state of sexual conduct, specifically under the provision of the law that bans using children in "live performances." He had encouraged the boy to mutually masturbate with him over the Web.
His defense argued, among other things, that there was no "performance" because the act did not take place "before one or more persons."
The Supreme Judicial Court, in a unanimous ruling by Chief Justice Roderick Ireland, said the law did NOT require that an audience be physically present.
"We add that a 'performance' does not expressly or implicitly require the physical presence of 'one or more persons.' ... The Legislature's interest in protecting minors from sexual exploitation should not turn on the medium used (or not used in the case of actual presence). To hold otherwise would allow persons who sexually exploit children to evade prosecution so long as they do so with the use of technology," the court said.
"We cannot interpet statutory language in a vacuum, ignoring the Legislature's purpose in enacting the statute," the court said.
Bundy was indicted in December 2008 and convicted in November 2010 in Bristol Superior Court.
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Can You Record Without Someone Knowing -- No, But Maybe?
What used to be clear is no longer so. Chapter 934 of the Florida statutes prohibits "any person" from recording oral communications without consent and disclosing such recordings. Simply put, you could not record a conversation with someone if they didn't okay it first. That was, until recently. On June 7, 2013, the Second District Court of Appeals ruled in McDade v. State that such may not always be the case. The court held, based upon the 1985 Florida Supreme Court opinion in State v. Inciarrano, that a citizen does not have an expectation of privacy in what they say if the content of the statement is something that society is not willing to protect.
Mr. McDade was recorded by his step-daughter in the bedroom of his home without his knowledge. The court wrote that "though he did not use sexually explicit language, he appeared to be asking her to have sex with him." The Second District found that society would not accept that there was a privacy interest in the comments made by Mr. McDade and therefore, no law was broken. Whether you have a right to privacy depends on "what" you say.
So what does this mean? The ruling of the Second District now requires that individual judges across the state determine what society thinks is acceptable. Courts will decide on a case-by-case basis if the "content" of a statement is against societal standards. If it is, no law is broken and the recording can be used against someone in court. If it is not, then the person recording has committed a felony and the statement can't come into court. This will be a difficult rule for courts to apply consistently across the state. What is acceptable by society in Miami may not be acceptable in Pensacola.
The problem is this -- a citizen does not know if they can record a conversation until it's over.
The dissenting opinion, written by Judge Villanti, found that the Florida Supreme Court in Inciarrano said that whether someone had an expectation of privacy in their conversation was based upon "where" they made the statement, rather they "what" they said. While not condoning the advances made by Mr. McDade, Judge Villanti acknowledged the strong expectation of privacy in your own home that Florida law has always recognized. Because McDade made the statements in his own house, despite what he said, he had an expectation of privacy. Finally, Judge Villanti also concluded that "societal standards" should be determined by the legislature, not the courts. If exceptions to the rule are to be carved out, the legislature should be the one to do it.
Chapter 934 allows law enforcement to secretly record a suspect; it also allows an individual citizen to record a suspect if they are working with law enforcement. What is has never allowed was a private citizen, on their own, wearing a wire and recording a conversation in a private setting without you knowing.
The Second District has asked the Florida Supreme Court to review their ruling in McDade. Hopefully we will know, sooner than later, what are privacy rights are in Florida.
We post these blogs to help keep you informed about your rights. Please contact the Law Offices of M. James Jenkins & Associates, P.A. -- we will stand strong with you in your toughest times.
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In Pinellas the gang member database is changing
A recent article in the Tampa Bay Times describes how one can now appeal their inclusion inside the Pinellas county gang database. We are among the first counties in the state to address this issue. After long awknowledging that the state's gang laws are vague, local law enforcement has moved ahead with a series of proposals that they hope will prevent people from wrongly being labled as gang members. Currently, you can be labled a gang member if you are seen hanging out with friends or family who are themselves gang members.
While many of the adopted changes still need approval from government officials and legal staff, Pinellas County Sheriff Bob Gualtieri have already implemented many policies including:
- All information on local gangs, members and associates kept by Pinellas law enforcement agencies will be compiled into a centralized database maintained by the Sheriff's Office.
- Unlike Florida state law that has no provisions for appeals, a person who is wrongly listed as gang members or associates can appeal to have their names removed from said lists.
- Strict time frames are set for names to be removed from lists. State law sets no time limits.
- Law enforcement must notify parents or legal guardians of children listed as gang members or associates in Pinellas county.
These changes had the support of all law enforcement agencies in Pinellas county as well as the Pinellas-Pasco State Attorney, Bernie McCabe.
Florida law permits local authorities to compile lists of suspected gang members and /or associates, and gives 11 criteria for gang membership. A person needs only to meet one criterion for the state to be allowed to label him or her a gang associate. With two or more criteria the person is considered a full-fledged gang member!
The big issue is the criteria itself. Merely dressing like a gang member, using hand signals associated with a gang or being seen with gang members is enough to be counted. The law does not require someone to have a criminal record to be listed as a gang member. People identified as gang members face closer scrutiny from law enforcement and, if arrested, potentially tougher prosecution.
Even when these new guideline go into effect, there will still be a few hiccups to deal with. For instance, it will still be possible under the new policies for someone to be listed as a gang member without a conviction. The new guidelines merely state that law enforcement will need documented "criminal association" between that person and a gang member, such as if he's been seen dealing drugs with a gang member.
This should come as great news for Pinellas criminal defendants who have friends or family that are gang members. The Pinellas state attorney's office has a very good gang unit that will travel between Pasco and Pinellas. These gang prosecutors have the authority to crack down on suspected gang members and can deliver more extreme sentences!
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More Pages to Explore .....
