Florida Mugshot Removal

January 29, 2015 by
Florida Mugshots

Proposed Mugshot Removal Legislation, Florida Senate Bill 0276

Florida Senate Bill 0276 for the 2015 legislative session was introduced by Sen. Darren Soto of Kissimmee, Florida.  The bill is intended to shut down the mug shot extortion industry.  By now, most people are familiar with the industry.  Bills have been introduced in previous sessions, but none have become law.  Even if the earlier bills had become law, most were unconstitutional and would have been set aside.  This bill is drafted to prohibit the commercialization as opposed to content.  The First Amendment has nothing to do with whether or not this bill will accomplish its objective.  The objective is to shut down the mug shot extortion industry and Bill 0276 will fail to accomplish its objective.

Mug Shot Removal Industry is Thriving

The extortion business is thriving on the internet right now.  The mug shot extortion industry is just one of many.  Certain websites label themselves as “consumer protection websites” are also considered part of the online extortion industry.

Mug Shot Removal Regulation Will Fail

Here is why Bill 0276 will fail.  All internet domains are registered to an owner.  The Internet Corporation for Assigned Names and Numbers, hereinafter “ICANN” keeps track of what individual and/or company owns the various names.  You can think of it as the internet’s registrar of deeds.  Just like the registrar of deeds, you can do a search.

The largest, if not the largest, company in the mug shot publishing industry is mugshots.com.  Please note that I am not linking to them.  The owners of the website did not simply register the domain with Godaddy.  Rather, it appears, the owners went to great lengths to create a jurisdictional gordian knot to shield themselves from liability in the United States.  Click here to view the ICANN domain registration information.  The ICANN registration information indicates that the website was registered by a corporation in Belize through a registration company in Australia.

The registrar, a website to purchase domains, is Fabulous.com.  Fabulous is an Austrailian company.  The registrant, person or corporation buying the domain, is International Whois Privacy Services Limited, hereinafter “IWPSL.”  IWPSL acts as a proxy to register the website and hold it in trust for the owners.  IWPSL’s registration address is in Belize.  The listed servers are located in Canada and England.  Additionally, those may be proxies as well.  Mugshots.com is owned by JUKISSUUDESSA which is a limited liability corporation located in Nevis, West Indies.

Legal Manuvering

Mugshots.com and Mugshots.com Database appear to be two separate entities.  By creating two separate entities, Mugshots.com and Mugshots.com Database may not have any liability due to the way the Florida Senate Bill 0267 is currently worded.

Solution

Most people find the mug shot publishing/extortion industry distasteful.  With no less than 5 different jurisdictions involved, the only way to shut down the industry is to limit the access to the data or possibly creating federal legislation which would permit the federal government to seize offending domains.  Police reports will and should always be a matter of public record.  State legislatures may want to reconsider their positions on mugshots.

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

 

Filed Under: Criminal Lawyer, Florida Senate, Florida Senate Bill 0276, International Law, Jurisdiction, Legislation, Mug Shot Removal Tagged With: , , , , , , , , , , , , ,

Florida Revenge Porn Law | Proposed Legislation

January 13, 2015 by
Florida Revenge Porn Law

Being an a**hole is not illegal.

Revenge Porn Law Florida 2015 – House Bill 151

Florida House Bill 151, 2015 was filed by Representative Tom Goodson of Titusville, Florida.  House Bill 151 would create a new statute, Florida Statute 847.0136.  If the bill is passed by both the Florida House & Senate, it would criminalize what is commonly referred to as “revenge porn.”  A violation of of Florida Statute 847.0136 would be either a third or a second degree felony depending on the ages of the parties involved.  The penalties can be substantial as third and second degree felonies carry a maximum penalty of 5 and 15 years respectively.

The First Amendment Does Not Protect All Speech

A general rule of thumb is that speech is presumptively protected unless it falls within certain narrow exceptions.  Revenge porn statutes, such as proposed in Florida House Bill 151, are drafted to criminalize conduct which is based upon the content of the speech.  Over the years, the United States Supreme Court has set forth the various types of content related speech that can be subject to restrictions.  The exceptions pertaining to criminalizing speech are as follows:

  1. Inciting imminent lawless action;
  2. Fighting words;
  3. True threats;
  4. Obscenity;
  5. Child pornography;
  6. Nuclear information;
  7. Teaching or instructing how to make certain weapons with knowledge that it will be used for a criminal purpose and
  8. Military secrets.

None of the above exceptions apply to “revenge porn.”  I have been asked why the “fighting words” doctrine does not apply to revenge porn.  The fighting words doctrine derives from a concept which is quite foreign to today’s politically correct society.  The fighting words doctrine was set forth in Chaplinsky vs. New Hampshire and is limited to words that by their “very utterance inflict injury or tend to incite an immediate breach of the peace.”  Chaplinsky was decided in 1942 back when society recognized that sometimes people who run their mouths need to be punched in the face.  The application of the fighting words doctine has eroded over time.  The most recent case dealing with the fighting words doctrine was Snyder vs. Phelps.  The case involved Westboro Baptist Church and their “protests” at funerals for members of the armed forces who were killed in Iraq or Afghanistan.  In my opinion, if the fighting words doctrine did not apply to Westboro Baptist Church, it is essentially dead for all practical purposes.

United States vs. Stevens – Recent Supreme Court Case Law

United States vs. Stevens was decided by the United States Supreme Court in 2010.  Stevens was indicted under 18 U.S.C. 48 which criminalized the knowing sale, possession or depiction of cruelty to animals with the intent to place said materials into interstate commerce.  Stevens filed a motion to dismiss alleging that 18 U.S.C. 48 was unconstitutional.  The District Court denied the motion and Stevens was convicted.  The 3rd Circuit Court of Appeal reversed holding that, while statutes criminalizing dog fighting and/or using dogs to hunt wild hogs could be constitutional, the statute attempted to create a new category of unprotected speech.  As the statute was a content based regulation of speech, strict scrutiny applied. The 3rd Circuit found that the statute lacked a compelling state interest and was not narrowly tailored to prevent cruelty to animals.

When applying the Stevens decision to Florida House Bill 151, 2015, the only intellectually honest conclusion is that it is unconstitutional.  There is no doubt that it is an attempt to regulate speech based on content.  It does not fall within any recognized exception.  I do not believe that there is a compelling government interest and the statute is overbroad.  For the sake of space, I am not going to get into why I believe that the statute is overbroad.

Stopping Revenge Porn

Initially, let me start by saying that I agree with Representative Goodson regarding the intent of the law.  If a girlfriend gives a man sexually explicit photos of themselves which are intended to be private, the photos should remain private.  Those of us who do not date within the pornographic industry know that our girlfriend(s) do not want their naked pictures of her posted on the internet.  Showing a picture to one of your friends is one thing, but posting it on the internet for the world to see is definitely out of bounds.  It is not only a huge violation of somebody’s trust, but it makes it much more difficult for the rest of us to get our girlfriend(s) to give us pictures and videos.  That being said, I do not know if there is a way to constitutionally criminalize the conduct.

Further Reading

I got a B+ in my First Amendment class in law school.  Nevertheless, I admit that is not my strongest area.  For more in depth analysis on both sides of the issue, I’d refer you to:

Are Statutes Covering Revenge Porn Constitutional? – Houston Criminal Lawyer Mark Bennett

Debunking the First Amendment Myths Surrounding Revenge Porn Laws – Danielle Citron

F**king Danielle Citron – Houston Criminal Lawyer Mark Bennett

Full Text of Bill: Florida House Bill 151, 2015

For additional information, please contact

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

Filed Under: Criminal Lawyer, Cybercrime, Legislation Tagged With: , , , , , , , , , , , ,

Drugged Driving Florida 2015 | Prediction No Change

December 29, 2014 by
Florida DUI Legislation

Who is Writing the DUI Laws?

Drugged driving has rapidly become an issue that has a significant impact on public safety.  With 2015 just around the corner I am going to go out on a limb and make my drugged driving predictions for 2015.

My Conclusion:

At least one poorly drafted, overbroad and unconstitutional bill purportedly drafted to curb drugged driving will not make it through the legislature.  To the public, that means no change.

Here is what history has taught us:

Florida Statute 316.193 is Florida’s DUI statute. For at least the last three years, there has been at least 1 bill introduced in the Florida Legislature which has attempted to redefine the crime of DUI.  The majority of the proposed changes to Florida’s DUI statute have focused on drugged driving.

All 50 states have laws prohibiting driving while impaired by drugs. The differences between the various state statutes is a) which drugs and substances qualify as an “impairing substance” and b) the legal definition of “impairment.”  Two recent attempts, Florida Senate Bill 1810, 2012 & Florida Senate Bill 1118, 2014 would have changed the definition of impairment, for drugged driving cases, from an “actual impairment” standard to a “per se” definition of impairment.  A “per se” standard is also referred to as “metabolite DUI.”

Florida’s Current DUI Statute Requires Actual Impairment

Florida’s DUI statute permits an individual to be charged with and convicted for DUI under an alcohol or drug theory.  With regard to drug impairment, under the current statute, an individual’s ability to drive a car must actually be impaired by a controlled substance while driving in order for the state to secure a conviction for DUI.  The recent attempts to change Florida to a per se DUI state would have made it a crime to have any detectable amount of a controlled substance, a controlled substance analogue or a metabolite of a controlled substance while driving.  The obvious benefit of creating a per se standard is that prosecutors do not have to prove actual impairment.  Under a per se statute, a person can be convicted of DUI even if he was completely sober at the time he was driving but remember that there is a cosmetic surgeon performing nose surgery in New Jersey to help you.  The number of people convicted of DUI will rise simply because a per se statute expands criminalizes what was previously lawful behavior.

The flawed logic behind a per se DUI statute is that a conviction equals justice.  However, does convicting a sober individual of DUI truly amount to justice?  How is the public good served by convicting a sober driver of DUI?  Who are we trying to protect from the menace of sober drivers?   Almost any politician would be glad to take responsibility for creating a law that lead to an increase in drugged driving convictions.

In a rush to be seen as “tough on crime” politicians throughout the country have proposed some of the worst legislation imaginable.  Florida Senate Bill 1810, 2012 is pretty much the “gold standard” for poorly drafted legislation.  The bill died in committee.  I do not believe that Senator Stephen Wise, who proposed Senate Bill 1810, is ignorant or that the bill was in any way malicious.  He recognized that there is a problem and tried to solve it.  By taking an extremely broad approach to the problem of drugged driving, Senator Wise drafted a bill that would have created some unintended and otherwise comical results.  Let’s look at some of the ridiculous results that would have arisen from a strict interpretation of Florida Senate Bill 1810 had it become law in 2012.

Proposed Statutory Amendments Expanding the Definition of Impairment:

FL Stat 316.193(1)(c): “The person has in the blood or urine a substance  identified as a controlled substance as defined in Schedule I of chapter 893 or the Federal Register, or one of its metabolites or analogs;”

Florida Stat 316.193(1)(d): “The person has in the blood or urine a substance identified as a controlled substance in Schedule II, Schedule III, or Schedule IV of chapter or the Federal Register, or one of its metabolites or analogs.”

Proposed Statutory Amendments Creating New Affirmative Defenses

FL Stat 316.193(15)(a): “If a person who is charged with violating subsection (1)(d) introduced into his or her body a controlled substance prescribed by a licensed health professional authorized to prescribe the controlled substance and if the person consumed the controlled substance in accordance with the health professional’s directions, the person is entitled to an affirmative defense against any allegation that the person violated subsection (1)(d). The introduction of a non-prescribed substance into the person’s body does not constitute an affirmative defense with respect to any non-prescribed substance.”

FL Stat 316.193(15)(b): Except for paragraph (a), the fact that a person charged with violating subsection (1) is or was legally entitled to introduce into the human body alcohol, a chemical substance, a controlled substance, a medication, a drug, or any other impairing substance does not constitute a defense against any charge of violating subsection (1).

Absurd Results Created by Poorly Drafted Legislation:

Absurd Result # 1 DUI Marijuana

A chemotherapy patient who smokes 1 puff of marijuana for medicinal purposes and drives 10 days later will be guilty of DUI.  Despite the fact he would no longer be impaired by marijuana, he would still be found guilty of a DUI because marijuana metabolites can be detected in biological fluid for up to one month.  The patient is not entitled to either of the above listed affirmative defenses because marijuana is a Schedule I Controlled Substance at the state and federal level.  If marijuana were to become legal in Florida, the same individual would still not have an affirmative defense due to marijuana remaining a Schedule I Controlled Substance at the federal level;

Absurd Result # 2 DUI Antidepressant

Wellbutrin is a substituted cathinone.  Cathinone is a schedule I controlled substance on both the state and federal levels.  Wellbutrin, a/k/a Bupropion, is an analogue of cathinone.  The proposed legislation does not define the term “analogue” as used in the proposed amendments to Florida Statute 316.193(c).  The affirmative defense of “legal prescribed use” is not available for analogues of Schedule I Controlled Substances.  According to the language in the proposed amendment, all individuals prescribed and taking Wellbutrin would be found guilty of DUI.  If the legislation were amended to specifically exclude bupropion or define “analogue” in accordance with the Federal Analog Act 21 U.S.C. 813 then taking Wellbutrin and driving would not be illegal.  Nevertheless, these amendments were never made.

Absurd Result # 3 DUI Anabolic Steroids

Professional athletes and gym rats beware!  Steroids are Schedule III Controlled Substances on both the state and federal level.  According to the proposed amendment, you would be convicted of DUI for taking steroids if you get caught driving a car.  If you use Nandrolone Undecanoate a/k/a Deca Durabolin or “Deca”, you should be prepared to take the bus for a long time as “Deca” can be detected in your biological fluids for up to  17 or 18 months after last use.

Absurd Result # 4 DUI Testicles

Adult males naturally produce testosterone.  Accordingly, all men will have a certain level of testosterone in their system.  Testosterone is a Schedule III controlled substance and the amendment proposed by Senator Wise made no distinction between endogenous testosterone production as opposed to “supplementing” your natural testosterone levels with external sources.  All men with healthy, functioning testicles have testosterone in their system 100% of the time.  Accordingly, a strict construction of the proposed amendment would result in all men with functioning testicles being guilty of DUI whenever they get behind the wheel of a car.

Absurd Result # 5 DUI’s for Everybody

It also bears mentioning that, on the average, women naturally produce testosterone at around 1/7 the rate of men.  Accordingly, all normal healthy women will have some testosterone in their system 100% of the time.  Since the amendment made no distinction between endogenous testosterone or illegally obtained testosterone, all normal, healthy women would be guilty of DUI.

Absurd Conclusion: Anybody who operates a motor vehicle on the streets or highways of the State of Florida is guilty of DUI.

Do These Results Seem Absurd to You?

I admit that the hypotheticals #4 and #5 above are a tad on the “extreme” side.  However, that is the plain language of the statute.  The results are absurd.  Yet, that is what is on the horizon.  Approximately 1/3 of all states have passed per se DUI statutes.  These statutes are written in such a way as to criminalize innocent and socially acceptable conduct.  Different states have enacted different versions of per se statutes and some drugged driving laws are better than others. For example, some states exclude specific commonly abused illegal drugs. Some limit the specimens that can be collected (urine, oral fluid, blood) or specify specific cut-off levels.

The Solution is Education

Educating younger drivers on the dangers of drugged driving is only 1/2 of the equation.  However, there will be no meaningful change until the law makers educate themselves.  The proposed legislation that I listed above shows exactly how out of touch politicians are with the problems faced in today’s society.  How does criminalizing driving with high testosterone levels help society?  There will be no change until the law makers can accurately identify the problem.

Accordingly, I stand by my conclusion.  The legislature will attempt to fix a problem which they cannot identify by proposing more dumb laws.  Unfortunately, sometimes those dumb ideas pass and become law.

My Offer

If any member of the Florida Legislature reads this and would like my assistance drafting a tough, effective and reasonable drugged driving statute, contact me and I will help you draft it from A to Z.

For additional information, please contact

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

 

 

 

Filed Under: 2012, Anabolic Steroids, Criminal Lawyer, DRE, DRE, Drug Recognition Expert, Drugged Driving, DUI Drug, DUI Drug, DUI Lawyer, DUI Legislation, Florida Legislature, Florida Senate, Florida Senate Bill 1810, Legislation, Marijuana, Metabolite DUI, Testosterone, Urinalysis Tagged With: , , , , , , , , , , , , , , , , ,

Heien v. North Carolina | State of North Carolina v. Coleman | Reasonable Mistake of Law

December 16, 2014 by
Heien Exception

Reasonable Mistake of Law Exception to the 4th Amendment

The United States Supreme Court decided the case of Heinen v. North Carolina on December 15, 2014.  The holding of the case is that the Fourth Amendment is not violated when a police officer makes a traffic stop(seizure) upon a reasonable, but mistaken, belief that a law has been violated.  The standard set forth by the Supreme Court is whether it is “objectively reasonable for an officer in [the searching officer’s] position to think that the conduct violated the law.”

The Supreme Court decision focuses on the text of the statute itself.  It is likely that the application of the Heien exception will be extremely rare and only applicable when the text of the statute is ambiguous, complex or novel.

However, we are not without guidance as there is already case law from North Carolina applying the Heien decision rendered by the North Carolina Supreme Court to a pending state court matter.  The case is State of North Carolina v. Rudolph Coleman.  I argued the Coleman motion to suppress in District Court and it was denied.  Jane Weatherly and I were members of the same PLLC.  She argued the Coleman motion to suppress in Superior Court and it was denied.  The Coleman case was reversed by the North Carolina Court of Appeal.  The Court of Appeal specifically addressed the Heien decision in its opinion and detailed why the Heinen exception does not apply.  Much like the United States Supreme Court ruling, the Court of Appeal focused on the statutory language and compared the difference between the tail light statute and the open container statute.    The North Carolina Court of Appeal ruled that the open container statute was clear, unambiguous and that the officer’s lack of knowledge did not make it “reasonable” in light of the Heien decision.

The Coleman decision may be the only case at this point in time which can provide some clarification as to the application of the Heinen exception.   The relevant analysis can be found on pages 7 through 11 of the appellate decision below.

[gview file=”https://yourfloridacriminalattorney.com/wp-content/uploads/2014/12/State-of-NC-vs-Rudolph-Coleman.pdf” save=”1″]

 

For additional information, please contact

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

or

The Law Offices of Jane L. Weatherly, Attorney at Law, PLLC, 5 West Hargett Street, Raleigh, NC 27601 (919)615-3408

 

Filed Under: 4th Amendment, Criminal Lawyer, DUI Lawyer, Probable Cause, Reasonable Suspicion, Search and Seizure, Uncategorized Tagged With: , , , , , , , , , ,

The Role of a Grand Jury in Florida Criminal Law

November 24, 2014 by

What is a Grand Jury’s Role in a Criminal Case

There have been a lot of headlines recently regarding a grand jury in St. Louis County, Missouri investigating Officer Darren Wilson in the shooting death of Michael Brown.  People have a lot of questions about exactly what a grand jury is and what is its function.  To sum it up, a grand jury is a panel of citizens that determines whether there is probable cause that 1) a crime has been committed and 2) the crime was committed by the accused.  In order to fulfill its job as a quasi investigatory agency, a grand jury has subpoena powers and can compel witnesses to testify.  The grand jury can also request that an agency, individual or company produce documents and records.   There is typically no judge and the prosecutor presents what evidence he or she wants the grand jury to hear.  The grand jury can ask questions and request more information.

Unlike other court proceedings, grand jury proceedings are private. An individual under investigation by a grand jury does not have the right to a public grand jury.  The lack of transparency in the grand jury system is one of the main complaints in the Michael Brown matter.   Another difference between grand jury proceedings and public trials is that the rules of evidence do not apply in grand jury proceedings.  Much like a finding of probable cause by a court, the grand jury is permitted to take into account evidence that will not be admissible at trial.  Certain evidence, for example hearsay, is regularly excluded from trial testimony, but regularly used to determine probable cause.  In addition, the prosecution can use evidence that might later be excluded because it was seized in violation of the defendant’s constitutional rights.

Once the grand jury has heard the evidence, the grand jury either issues a “true bill of indictment” or “no true bill of indictment.”  A true bill of indictment is a document formally charging an individual with a criminal offense.  No true bill of indictment is a document stating that there is no probable cause to believe that the suspect committed a criminal offense.  Remember that the standard of proof is “probable cause” meaning more likely than not or by a preponderance of the evidence.

Grand Juries in Florida Criminal Cases

Florida does not require that all felonies be charged by use of a grand jury.  Florida is what we call an “information jurisdiction.”  Instead of summoning a grand jury to issue an indictment, the Office of the State Attorney can simply review the probable cause affidavit submitted by the arresting agency and if the prosecutor reviewing the affidavit determines that there is probable cause, the prosecutor issues an “information” which is the formal charging documents for the crime.  A criminal defendant in Florida can still challenge the finding of probable cause by submitting a motion to dismiss for lack of probable cause prior to his or her arraignment.

A grand jury is only required to charge individuals with capital offenses pursuant to Article I, Section XV of the Florida Constitution.  This means that a prosecutor can not use an information to charge an individual with a crime when the suspect could receive the death penalty if convicted.  However, Article I, Section XV of the Florida Constitution does not limit the role of a grand jury to only charging capital cases.  Rather, Article I, Section XV limits the ability of The Office of the State Attorney in its ability to file an information.

A grand jury has exclusive authority to charge a capital crime, the state attorney has concurrent authority to charge other crimes.  Often times this leads to non-capital cases being presented to a grand jury.  For example, public corruption cases are often referred to a grand jury to avoid any appearance of impropriety.  All police involved shootings, at least in Broward County, go to a grand jury for investigation whether or not the police or state attorney believe the officer acted appropriately.  Again this is done to avoid any appearance of impropriety.

A Grand Jury Will Indict a Ham Sandwich

The first time that I ever heard this was with regard to the JonBenet Ramsey case when the parents were not indicted for her murder.  I have significant experience representing individuals who were charged by a grand jury from my time as a practicing attorney in North Carolina.   An attorney is typically retained after the initial arrest, but prior to the grand jury hearing.  Out of the hundreds of felony cases that I handled in North Carolina, ranging from low level felonies to drug trafficking and attempted murder, I never had 1 client that was not indicted.  I personally never saw “Not a True Bill” marked on the charging instrument.  So the statement that a grand jury will indict a ham sandwich is a rather humorous way of saying that it is not very difficult to get the grand jury to issue a true bill.

Does the grand jury ever get it wrong?  Absolutely.  When they do get it wrong is when they indict somebody for a crime that later gets dismissed or the defendant is found not guilty.  Based on my experience, the standard of proof required to indict is so low and the rules are so relaxed that true bill of indictment is a virtual guarantee if there is even a hint of evidence that an individual broke the law.

What Does this all Mean?

A grand jury is a group of citizens that are summoned as an investigatory body to determine if there is probable cause to charge an individual with a crime.

My Prediction on the Michael Brown Case?

No idea.  I haven’t followed it closely enough to have an educated opinion.  I won’t be surprised either way.

For additional information, please contact

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

Filed Under: Criminal Lawyer, Grand Jury Tagged With: , , , , ,