Should officers with the Hillsborough County Sheriff’s Office be fired for a DUI arrest? The Hillsborough County Sheriff’s Office has a zero-tolerance policy on driving under the influence that has been in effect since Sheriff David Gee took office in 2004. A spokesperson for the Sheriff’s Office that “If a deputy is arrested for DUI, they […]
DUI Policy for the Hillsborough County Sheriff’s Office
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"US intelligence officials publish court order permitting NSA data collection "
From Jurist: The Office of the Director of National Intelligence (DNI) [official website] on Monday declassified [press release] intelligence documents regarding data collection under Section 501 of the Foreign Intelligence Surveillance Act (FISA). The secret Foreign Intelligence Surveillance Court (FISC)...
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Texas Court of Criminal Appeals: Client’s File is Client’s.
From Ex Parte McCann, decided today by the Texas Court of Criminal Appeals: Albert James Turner was charged with capital murder. At trial, he was represented by Patrick McCann and Tyrone Moncriffe. In June 2011, Turner was found guilty and … Continue reading →
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"Sobriety Checkpoints Paved Path to NSA Email Spying"
This post at Wired connects the dots. Hat tip: How Appealing.
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NUCLEAR OPTION
The Senate reached DEFCON ONE today and Senate Majority Leader Harry Reid launched an ICBM that nuked the filibuster rule. Q: What exactly happened? A: Before today, current senate rules required a three-fifths majority, normally sixty votes, to end debate on a bill, nomination, or other proposal. Without 60 votes to end debate on a judicial nomination, the minority party could block a presidential appointment. Both the Democratic caucus and the Republican caucus have used the threat of a filibuster to block the presidential appointments in the past. But the Republicans have taken it to a new level, attempting to block presidential cabinet appointments (for the first time ever, a party tried to block the appointment of a defense secretary) and blocking 4 of Obama's five nominees to the DC Judicial Circuit Court. In contrast the Democrats blocked one of President Bush's five nominees to the same court. To launch his missile, the Senate's presiding officer (Sen Harry Reid, D- Nevada) ruled that a simple majority was now necessary to end debate on judicial nominations for all courts except the Supreme Court. Of course the MAD (mutually assured destruction) that kept either party from using the nuclear option was that with the country evenly divided the party in majority can quickly become the party in the minority with the inability to block the other party's particularly offensive judicial nominees. However, with the Republicans blocking all three Obama nominees to the DC circuit this month, Senator Reid and the Democrats did their best Popeye imitation and said that "they had all that they could stands, and they can't stands no more" and fired their nuke. Today history changed. As to the effects, we will have to wait and see. For more on just how the Senate runs, read Robert Caro's masterful "Master of the Senate" which detailed how Lyndon Johnson ran the senate when he was the majority leader. Tomorrow: 11/23/1963 and Frame 313. Site Feed
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Court turned to the specific constitutional objections...cont
Bearing in mind the basic purpose of the statute, the Court turned to the specific constitutional objections. It is argued that the statements obtained from an alleged addict by the commission's examining physician and which are then received in evidence to support the finding of addiction are inadmissible by reason of the fact that they were obtained in the absence of counsel.
These medical examinations, however, are used solely for diagnostic purposes. Any admission made to the doctor may not be received in evidence at the trial on the criminal charges. As the program is intended solely for the addict's benefit, self incrimination becomes irrelevant. The addiction hearing is not designed as a means of giving an added sentence, but is intended to serve the function of assuring that the physician's conclusion that the defendant is an addict is soundly based. It is the nonincriminating purpose of the examination that makes the privilege against self incrimination and the right to counsel inoperative at the physical examination.
All jails in some measure seek to have a program of rehabilitation, but in upholding, by way of dictum, a compulsory civil commitment program for narcotics rehabilitation. If compulsory commitment turns out in fact to be a veneer for an extended jail term and is not a fully developed, comprehensive and effective scheme, it will have lost its claim to be a project devoted solely to curative ends. It will then take on the characteristics of normal jail sentence, with a side order of special help. The moment that the program begins to serve the traditional purposes of criminal punishment, such as deterrence, preventive detention, or retribution, then the extended denial of liberty is simply no different from a prison sentence and the constitutional guarantees applicable to criminal proceedings will apply in full measure.
It is the reality that counts, not the metaphysical distinctions of the legal mind. For the same reason, it is not every deprivation of liberty that will bring into play all the constitutional provisions applicable to criminal trials. It is only those curtailments of liberty which serve the traditional purposes of the criminal law which require the full protections of a criminal trial.
A somewhat similar analysis will resolve the difficulties presented by the claim that the standard applied in criminal trials--proof of addiction beyond a reasonable doubt, rather than the prescribed preponderance of evidence --is necessary for a finding of addiction. Since the purpose of the certification is a rehabilitative one, it is legitimate to analogize it to a civil proceeding commenced against a noncriminal addict where the finding also may be made by a preponderance of the evidence. Nor can it be asserted that a higher burden is necessary to protect the alleged addict from a wrongful determination. The deprivation of his liberty will last only so long as is necessary to carry out the program of rehabilitation. The Court will not assume that the commission or its medical personnel with continue to deprive a person of his liberty if they determine that he is not truly an addict.
One final argument made is that requiring jury trials will impose a tremendous burden on the courts. Something more than this is required. Since the drug possession addiction hearing for civil commitments and for convicted addicts are alike both in substance and consequence, a jury trial must be available to the appellants here.
Nonconstitutional arguments have also been argued. The first is a question of statutory construction, and the second involves the scope of cross-examination of medical experts in addiction hearings.
There is no question that the statutory language is of little assistance in determining the Legislature's intent. Some provisions indicate appellants' contentions are correct, while others would support the People's position that the 'intake' examination--even where no examination for addiction has been specifically ordered by the arraigning Judge--may serve a dual purpose of not only ascertaining the general state of appellants' health but, additionally, whether a prisoner is addicted to drugs. However, as the purpose of the privilege is to induce persons to seek medical assistance by removing any fear that they will suffer embarrassment or disgrace or that any information disclosed to the physician will not be used adverse to them, the use of information obtained at intake examination or during the giving of medical treatment runs counter to this purpose if, as it appears, addicts consider the custody of the commission adverse to their interests. Moreover, the intake examination is also used to protect the general health of the inmate population, and its usefulness may well be impaired by a rule of disclosure. How the Legislature weighed these considerations is not easily discernable. Sometimes assault is a part of this situation.
But these medical criteria do not have the force of law and they do not constitute the definition required by the statute. Since the court permitted the doctor to state the general conclusion that the patient was an addict, it was certainly proper cross-examination for defense counsel to ask the doctor what his interpretation of addiction was and, in reaching his conclusion, what weight he gave to each fact or criterion. The purpose no doubt was to ascertain if there was any discrepancy between the doctor's views and general medical opinion, and also to see if there was reason behind the conclusion. CPLR 4515 expressly permits such questions: 'Upon cross-examination, he may be required to specify the data and other criteria supporting the opinion.' While the chief purpose of this provision was to get away from hypotheticals.
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"Have Inter-Judge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence from Booker"
The title of this post is the title of this notable new paper by Crystal Yang now available via SSRN. Here is the abstract: The Federal Sentencing Guidelines were promulgated in response to concerns of widespread disparities in sentencing. After...
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Law Offices of Mary Prevost: CALIFORNIA COURT REVERSES VANGELDER....BUT THERE'S A SILVER LINING.
This morning People v. Vangelder came down. it was argued by Chuck Sevilla.
The Court reversed the Court of Appeal which had reversed a DUI conviction for excluding an expert who would have testified that the breath test machines used: 1) measure no alveolar air, and 2) had unreliable test result from variable in the breath sample due to factors like breathing
variations, temperature of the lung air, etc.
The Court ruled that 1) the Title 17 regulation requiring "essentially alveolar air" to be measured merely means to test the last expired breath. (See p. 45, et seq --you read that right). 2) The Court ruled that variables that alter breath alcohol out the mouth were close enough to
partition ratio rules (despite the expert's testimony that he was not comparing blood/breath ratios) to warrant exclusion also under that doctrine. (p. 49.)
They do all this because the state adopted the fed regulations for approvals of machines and since the machines are federally approved, this creates an irrebuttable presumption of accuracy. (See p. 46, you read that right). In other words, there can be no global attacks on approved breath machines because that would have the witness "nullifying the legislature." (You read
that right, see pp. 45-46).
AN AREA FOR LITGATION: The court finds that approved PAS machines are evidential breath tests. See p. 40, fn 23. This may give rise to the defense later that any subequent test must be suppressed (per Fiscalini) as being unnecessary and without justification.
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//blawgsearch75.rssing.com/chan-6519914/article4189-live.html
“U.S. forces can only enter Afghan homes in extraordinary circumstances when the life or limb of Americans is at stake.” (NewsObserver.com) You know what this means? Residents of Kabul are more secure from US forces invading their homes than are … Continue reading →
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Lee County Criminal Defense Attorney :: Florida Rep. Trey Radel Arrested on Cocaine Possession Charges
Republican U.S. Rep. Trey Radel of Fort Myers pleaded guilty to misdemeanor possession of cocaine on Wednesday morning. He also stated that he would be taking a leave of absence from his position to get treatment.
According to a Washington, D.C., court document, on Oct. 29, Radel "did unlawfully, knowingly, and intentionally possess a quantity of cocaine, a controlled substance."
This misdemeanor drug charge carries a maximum sentence of 180 days in jail and or a fine of $1,000.
Radel, 37, was arrested after buying cocaine from an undercover law enforcement officer, according to a Drug Enforcement Administration official.
According to authorities and court documents, Radel and an acquaintance went to a restaurant in the Dupont Circle area of Washington and met a man on Oct. 29, who was an undercover police officer. Radel allegedly said he had cocaine at his apartment and invited the men to join him, but both apparently declined his offer.
The undercover officer apparently offered to sell Radel 3.5 grams of cocaine for $250. Radel allegedly paid $10 more for the drugs, for reasons the documents do not explain, and left with the cocaine.
Federal agents then approached Radel, and he dropped the drugs in the street.
Radel issued this statement in court Wednesday, "I apologize for what I've done. I think in life I've hit a bottom where I need help."
Radel is a former TV anchor whose lawful name is Henry Jude Radel III. He was elected in 2012 to the seat Connie Mack IV had occupied before.
Former U.S. Rep. Mack issued this statement:
"This is undoubtedly a very difficult time for Trey and his family and I'm sure all of us in Southwest Florida are keeping them in our thoughts and prayers. It is important that we all appreciate the very personal nature of Trey's situation and understand that it is premature to respond to or consider political questions at this time."
Had Radel been arrested in Florida he would have faced a felony for this charge, which is punishable by up to five years in prison.
The war on drugs by state and federal agencies is nothing new, and those convicted of violating drug laws will undoubtedly be targeted by law enforcement officers and prosecutors alike, and usually punished to the fullest extent of the law in court. State and federal statutes ban the use, possession, distribution and manufacture of any and all illegal drugs. A person that is believed to take part in such illegal activities will be charged with a drug crime.
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Senate Votes to Limit Filibuster of Nominees
No more filibustering of presidential appointees. The Senate voted today to end it. Via the New York Times:
The Senate voted on Thursday to eliminate the use of the filibuster against most presidential nominees, a move that will break the...
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Congressman Pleads Guilty in Cocaine Case
A Republican Congressman from Florida pleaded guilty in Federal Court in Washington D.C. to a misdemeanor charge of possession of cocaine. He was sentenced to one year of probation. He bought 3.5 grams of cocaine. How would that play out in Nashville,Tn. ?
First , possession of more than .5 grams of cocaine with the intent to manufacture , deliver ,or sell a controlled substance carries 8 to12 years in jail plus a big fine. It is a felony . It carries 15 to 25 if you are within a 1000 feet of a school zone. The defense for the Congressman was it was for personal use and not for resale. According to news reports, the cocaine was bought for his own use and had sometimes shared it with others.
The reason he got a break was there was no evidence he intended to sell or deliver cocaine . Now the police might have made a case that he delivered the cocaine. Under Tennessee law , an accused can assert that he just possessed or causally exchange the cocaine to avoid felony charges. The law treats users differently from sellers. Causal exchange contemplates a spontaneous passing of a small amount of drugs where money may or may not be involved. The amount of the cocaine could be a problem for a reduction to a misdemeanor under Tennessee law.
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California motor vehicle accident injures 1 on interstate
The high speeds of interstates and the rapid lane changing can create a chaotic environment where it is very easy to lose control of a vehicle. This instability combined with the high speeds and other cars on the road can...
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Crash Blocking US 93 at 200 S, Jerome County
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
DO NOT REPLY
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IDAHO STATE POLICE NEWS RELEASE
District 4 Patrol 218 West Yakima, Jerome, ID 83338-5904 (208) 324-6000
Fax (208) 324-7897
For Immediate Release: November 21, 2013 5:45 pm
Please direct questions to the District Office
Idaho State Police is currently investigating a blocking, non-injury crash on US93 at 200 South, in Jerome County. Traffic is being re-routed, and motorists are advised to avoid the area.
More information will be released as it becomes available.
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Injury Crash on US30 at 2600 East
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
DO NOT REPLY
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IDAHO STATE POLICE NEWS RELEASE
District 4 Patrol 218 West Yakima, Jerome, ID 83338-5904
(208) 324-6000
Fax (208) 324-7897
For Immediate Release: November 21, 2013 6:15 pm
Please direct questions to the District Office
Idaho State Police is currently investigating a two vehicle injury crash on US30 at 2600 East, Twin Falls County. The road is open but motorists can expect some delays.
More information will be released as it comes available.
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MN - Reforming the Sex Offender Treatment Program
Video Description:
The Senate Judiciary Committee recently delved into Minnesota's Sex Offender Treatment Program and the constitutionality of the civil commitment process. On this week's program, committee chair Sen. Ron Latz, DFL-St. Louis Park, and senior Republican member Sen. Warren Limmer, R-Maple Grove, offer their perspectives on necessary action in 2014 to avoid the intervention of a federal judge.
Governor Mark Dayton and MnDOT Commission Charlie Zelle recently announced ten...
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Update - Crash US 93 at 200 South
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
DO NOT REPLY
---------------------------------------------------------------------------
IDAHO STATE POLICE NEWS RELEASE
District 4 Patrol 218 West Yakima, Jerome, ID 83338-5904 (208) 324-6000
Fax (208) 324-7897
For Immediate Release: November 21, 2013 6:45 pm
Please direct questions to the District Office
******Update*****
All lanes are now open
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Idaho State Police is currently investigating a blocking, non-injury crash on US93 at 200 South, in Jerome County. Traffic is being re-routed, and motorists are advised to avoid the area.
More information will be released as it becomes available.
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"Charges Dropped in Florida Cyberbullying Death, but Sheriff Isn’t Backing Down"
From The New York Times: Polk County prosecutors decided to drop felony charges against two girls in a September cyberbullying case that the police said contributed to the death of 12-year-old Rebecca Ann Sedwick, who jumped from a cement plant...
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Bondage Judge’s Judicial Inquiry High-Jacked By Federal Court and Collapses
If the Canadian Judicial Council Inquiry Committee reviewing Madam Justice Lori Douglas’ off-duty behavior is a microcosm of Canada’s justice system, why should anyone be surprised that after years of litigation manoeuvres by Ms. Douglas, the Committee has finally thrown up their hands and walked off the job. Their frustration with the legal gamesmanship and […]
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"China top court bans use of forced confessions "
From Jurist: China's Supreme People's Court [official wesbite, Chinese] issued a ruling on Thursday banning the use of forced confessions extracted through torture. The court reportedly claimed [Reuters report] that "illegal methods" of confession extraction, including food and sleep deprivation...
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