Motion to Suppress Everything for Reasons

April 12, 2015 by

The Omnibus Motion to Suppress

Motion to Suppress Because of Reasons

Motion to Suppress Because of Reasons

I started practicing law in Florida in 2004.  I practiced law in both Florida and North Carolina from 2007 to 2011.  I exclusively practice law in Florida now and my license no longer active in North Carolina.  The District Court in North Carolina handles misdemeanor DWI charges. If you’re looking for a Long Island traffic lawyer because of a traffic ticket, call traffic lawyer suffolk county for help with your case.  A defendant did not have a right to discovery in District Court proceedings.  In 2006, the North Carolina Legislature passed NCGS 20-38.6 which required that all motions to suppress and/or dismiss in implied consent cases be made prior to trial.  Most of the time defense counsel would receive a police report, test ticket and alcohol influence report prior to the trial.    However, there was no guarantee that you would get anything since the state was not obligated to provide anything.   This put defense counsel in a position of potentially being required to file a pretrial motion to suppress without any discovery whatsoever.    Failing to file a pretrial motion to suppress was not an automatic waiver of the right to file a motion to suppress.  Any motion to suppress made during trial was required to be based on facts not previously known to the defendant.  Whether to hear the motion to suppress was in the sole discretion of the trial judge.  In my experience, concerning DWI matters, any motion that was not made prior to trial would not be heard.

Necessity is the Mother of Invention and Innovation

The defense bar quickly came up with an Omnibus Motion to Suppress knowing that our crystal ball was unable to predict the contents of the various police reports.  In order to protect your client’s rights, you would simply check all of the boxes and submit the motion prior to or at the first hearing.  You could either amend the motion or withdraw the motion after you received discovery.  The motion has undergone significant changes since I first saw/used it.  The most recent copy that I can find was written by John Fanney and posted on the North Carolina Indigent Defense Services website.  Click here to see a copy of the motion: North Carolina DWI Motion to Suppress 

Reasons for Filing an Omnibus Motion to Suppress

Typically you would want to file a motion to suppress containing a clear statement of the facts and the legal basis to suppress the evidence.  However, that is difficult to do if, for whatever reason, you do not receive discovery.  An omnibus motion to suppress simply states various legal avenues through which evidence can be suppressed.  It does not state any factual basis for applying the legal principals asserted.  A check box omnibus motion to suppress is not necessarily lazy lawyering.  It is a means of protecting your client’s rights when you are being forced into taking a legal position before you know all of the facts.

Kane County criminal lawyer, Matthew Haiduk, publishes a blog titled “Disorderly Conduct.”  Mr. Haiduk mentions his reasoning for filing an omnibus motion to suppress stating “We’d get appointed, not even have police reports, and [the judge would] order that we would have to have any and all defense motions filed within 30 days… even if the trial was 9 months later.”  The entire post is definitely worth reading and can be found here: Setting Every Damn Case for Trial.  A copy of his omnibus motion to suppress is as follows:

[gview file=”https://yourfloridacriminalattorney.com/wp-content/uploads/2015/04/omnibus-motion.pdf” save=”1″]

Disclaimer:  I am no longer licensed to practice law in the State of North Carolina and the preceding analysis was commentary only and not intended to be relied on for legal advice.

For more information, please contact us at:

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: 4th Amendment, 5th Amendment, 6th Amendment, Criminal Lawyer, Discovery, DUI Lawyer, DUI Legislation, Motion to Suppress, Omnibus, Probable Cause, Reasonable Suspicion, Search and Seizure Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Police Body Cameras vs Video Taping the Police

February 6, 2015 by
Video Taping the Police

Trust the police to turn in their videos.

Florida Senate Bill 248 | Recording Law Enforcement Activities

The “Police and Citizen Protection Act,” also known as, Florida Senate Bill 248 was introduced on January 7, 2015 by Senator Christopher Smith of Fort Lauderdale, Florida.  If passed, the bill would require all law enforcement officers assigned “primarily” to patrol duties to be equipped with Promnico body cameras.  The bill would also exempt the recordings from Florida Statute 934.03 which, amongst other things, regulates interception of oral communications.

Interception and Disclosure of Certain Communications

Florida is a two party state with regard to recording oral communications.  What that means is that all parties involved in a conversation must give consent to recording the conversation.  Police officers in Florida have charged people with violations of 934.03 for recording police activity without the consent of the police officer.  I do not believe that a specific additional exemption is necessary because video taping by law enforcement for the purposes of an investigation is already exempt from the interception and disclosure statute.

In theory, both law enforcement and citizens are protected by video taping police citizen encounters.  Senator Smith recognizes this and aptly titled the bill the “Police and Citizen Protection Act.”  In theory, the police are protected from false allegations of misconduct and the citizen has access the evidence needed to prove misconduct.  A good police officer doesn’t have a reason to be afraid of cameras.  This bill is based on the assumption that all police officers are honest and will not manipulate the body camera in order to cover up any misconduct.  If all cops were good, this bill would accomplish its purpose.  So why do we need this bill in the first place?  THAT’S RIGHT!  BAD COPS!  This bill relies on the the honesty and integrity of  the dishonest individuals that it targets.

Theory vs Reality

As a criminal defense attorney, there are a lot of times when I want to see a video from a police officer’s in car camera.  The video doesn’t lie.  I am able to obtain the video without incident in an overwhelming amount of the cases when I request it.  However, there have also been many occasions when I could not get a video.  It is pretty easy to tell ahead of time when you are not going to be able to get a video.  Unexplained bumps and bruises.  A narrative of a driving patter that defies the laws of physics.  Many times video cameras do not function correctly when a defendant consents to a search.  The disappearance of video tape wherein the defendant allegedly consents to the search of a vehicle, which he knows is loaded down with an enormous amount of dope, is a mysterious phenomena that occurs across the nation.  Another strange phenomena is that cameras malfunction at a higher rate in low income neighborhoods.   I have heard ridiculous excuses including, but not limited to, “the video you requested is for internal affairs purposes only” or “we never received a copy of your request within the retention period so we deleted it” or “it is not required to provide to you in discovery and you don’t have the authority to subpoena it.”

Florida Senate Bill 248 recognizes the need for the police to record their activities for the protection of both the police and the public.  However, it relies on the police to maintain those videos.  This bill is a good start, but it does not go far enough.  Additional issues that should be addressed include retention times, a defendant’s right to the video and safeguards to cut down or eliminate tampering.

Better Yet, a Simple Solution

Introduce a bill that makes it clear and unequivocal that citizens have an absolute right to film the police so long as it does not obstruct the officer(s) in carrying out his or their duties.  Provide citizens the same exemption to Florida Statute 934.03 that is being provided to the police.  By making it clear that citizens have the right to video tape officers, you are not placing all of your trust in the same people whose integrity is being called into question.

For more information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 E Broward Blvd #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, Legislation Tagged With: , , , , , , , , , , ,

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: , , , , , , , , , , , , ,

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: , , , , , , , , , ,

Drugged Driving | Why DUI Drug Impairment is Difficult to Prove

October 22, 2014 by
Drugged Driving | DUI Drug

Drugged Driving | DUI Drug

Drugged Driving | DUID

The following post, as well as the entire website, is for informational purposes only and is not intended to be relied upon for either legal or medical advice.  The author of this post has no medical training. 

Florida Statute 316.193 is Florida’s DUI statute.  An individual is only considered impaired if that individual is impaired by 1) alcohol; 2) a chemical substance under Florida Statute 877.111 or 3) a controlled substance listed in Chapter 893 Florida Statutes.  The State must prove impairment and name the specific substance in order to get a conviction for DUI under a drug impairment theory a/k/a drugged driving.  The State is required to prove the specific substance because the substance must be listed in Chapter 893.  Proving the specific substance causing impairment is becoming a more difficult task as more “designer drugs” or “legal highs” hit the market.

Drug Testing

Drug testing is a two step process.  The first step is the preliminary screening.  Positive screens are sent for a confirmatory test.

Preliminary Screen

The majority of Florida DUI drug cases will involve a urinalysis.  The preliminary drug screen typically consists of a 10 panel immunoassay test.  This is commonly known as a dipstick test.  The preliminary screen detects biological markers indicative of exposure to or use of certain drugs and/or classes of drugs.  For example, a 10 panel immunoassay test can test for cocaine, which is a specific drug, as well as benzodiazepines, which are a class of drugs.  An immunoassay test can identify the characteristics of a substance, but is typically not able to determine the exact substance.

Confirmatory Test

The second step of the process is the confirmatory test.  The confirmatory test is typically a GC/MS or gas chromatography mass spectrometry test.  The GC/MS separates the molecules so the exact chemical compound can be determined. While a immunoassay test will show positive for benzodiazepines, the GC/MS is can determine whether the benzodiazepine is alprazolam a/k/a Xanax or diazepam a/k/a Valium.  For more information regarding GC/MS testing, please see Frederic Douglas’ article by clicking this link: Scientific Criminal Defense.

Chapter 893 Florida Statutes

If it is not a listed controlled substance in Chapter 893 Florida Statutes, it is not capable of causing impairment as defined by Florida Statute 316.193(1)(a).  A specific example of this is zolpidem a/k/a Ambien.  Ambien is a powerful sedative hypnotic drug.  It is a federally controlled substance.  However, an individual cannot be convicted for a DUI based on being impaired by Ambien since zolpidem is not listed in Chapter 893 Florida Statues.

Designer Drugs and Research Chemicals

Certain “designer drugs” or “research chemicals” are within a class of drug detected on the 10 panel immunoassay, but are not scheduled controlled substances under Federal or Florida Law.  Some of the more common “designer drugs” are benzodiazepines.  There are several high potency benzodiazepines that are unscheduled under Florida and Federal Law.  Impairment via an unscheduled benzodiazepine may not be impairment as defined in Florida’s DUI statute.

For example, pyrazolam is an extremely potent benzodiazepine derivative that is not a scheduled controlled substance under Florida Law.  Accordingly, even if the State is able to prove that a driver is physically impaired by pyrazolam, the individual is not legally impaired for purposes of Florida’s DUI statute.  The reason why is because pyrazolam is not listed in Chapter 893 Florida Statutes and has no metabolites that are listed in Chapter 893 Florida Statutes.

Amature Chemists Beware

One of the problems with “legal highs”, “designer drugs” and “research chemicals” is that there isn’t much information available on the specific substances.  There is little to no information available on the short and long term physical and mental effects on humans.  Additionally, there is little to no information regarding the metabolism of a specific substance.  What information we do have on research chemicals is frightening.

Diclazepam is currently being marketed as a “research chemical” which is “not intended for human consumption.”  Some of the more intellectually honest websites are marketing it as a “legal high.”  Nevertheless, it is clear that the substance is a benzodiazepine and is not a scheduled controlled substance under Florida or Federal Law.  It should be noted that an individual could be prosecuted for buying, selling or possessing diclazepam under the federal analogue act under certain circumstances.

The limited studies concerning diclazepam show that it metabolizes into three main active metabolites after ingestion.  The three metabolites are lorazepam, delorazepam and lormetazepam.  All three of the active metabolites are controlled substances listed in Chapter 893 Florida Statutes.  An involuntary intoxication defense to DUI would not be permitted if an individual ingested diclazepam, but was impaired by any of the three active metabolites.  Although the approximate detection time limit for a single dose of lorazepam is 5 days, studies show that an individual who ingests diclazepam  may still test positive for lorazepam 19 days after ingestion.

For Lawyers

Make sure that the confirmatory test states a specific substance.  If you are unfamiliar with the substance, check Chapter 893 Florida Statutes.  Do not assume that the substance is included.  Cannabinoids is not a drug, it is a class of drugs.  Benzodiazepines are not a drug, it is a class of drugs.

For Others

All that is required for you to be arrested is probable cause.  If the officer has reason to believe that you are under the influence of a scheduled controlled substance while you are operating a vehicle, you will be arrested.  There is an inherent risk with any type of criminal litigation and you might be convicted.  In the event that you are not convicted, you will still go to jail and you will still have to pay for an attorney.  An attorney who can handle this type of case will not be cheap.  Additionally, just because you are not criminally liable does not mean that you would not be subject to civil liability in the event that somebody gets hurt or killed.  In addition to the legal consequences, intentionally ingesting unstudied chemicals from an anonymous internet based drug dealer/chemist is recklessly placing your physical and mental health in harms way.  Just because it is legal doesn’t mean that it is safe.

For more information on drugged driving or other criminal defense matters, please contact us at:

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: Ambien, Benzodiazepines, Cocaine, Criminal Lawyer, Designer Drugs, DRE, Drug Recognition Expert, DUI Drug, DUI Drug, DUI Lawyer, Metabolite DUI, Research Chemicals, Urinalysis, Zolpidem Tagged With: , , , , , , , , , , , , , , ,