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

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

Convention on International Road Traffic

October 14, 2014 by
International Driving Permit

International Driving Permit Pursuant to the Convention on International Road Traffic

Convention on International Road Traffic, How to Turn a Misdemeanor into an International Conflict

If you practice criminal law in South Florida, you will defend people who are not residents or citizens of the United States.  Treaties between the United States and various countries are fertile ground for finding affirmative defenses to some common criminal offenses.  Pursuant to Article VI, Clause 2 of the United States Constitution States “all Treaties made,or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the contrary notwithstanding.”  To put it simply, treaties between the United States and another country which are 1) signed by the President and 2) ratified by the Senate trump state law.

So what happens when a treaty, being the supreme law of the land, and state law conflict?  The answer is simple, the treaty prevails.  I have had the privilege of representing individuals who were not US Citizens or residents that were cited or arrested for having no valid Florida Drivers License.  All of them were in the United States on business and 3 of the 5 had an “International Driving Permit” in their possession.  An International Driving Permit(hereinafter “IDP”) is a document that arose out of the Convention on International Road Traffic.  It simply provides a translation of an individuals license in his or her native language into English.  It is important to note that an IDP may or may not be required for the affirmative defense under the treaty, but it is good to have.

The Convention on International Road Traffic permits an individual who is licensed in one of the signatory countries to legally drive in any of the other signatory countries without having to be re-licensed in that country.  Possession of a valid foreign drivers license from a signatory country is an absolute and complete defense to the charge of driving with no valid license because the treaty trumps Chapter 316 Florida Statutes.

Personally, I file this motion as a Motion to Dismiss under Florida Rule of Criminal Procedure 3.190 for lack of probable cause.  The Judge dismissed the case for “no probable cause” in 4 out of the 5 cases in which I filed the Motion.  The one exception was an Israeli gentleman who did not have an IDP, but presented the court his drivers license from Israel.  Unfortunately, the Judge could read Hebrew and motion was denied because his Israeli drivers license had expired.   The case was later dismissed on other grounds.

Treaties are not just for traffic cases.  There are numerous treaties involving family law, criminal interrogation and enforcement of foreign civil judgments.  It is a good idea to see what treaties are on topic when you are representing a foreign nation.

[gview file=”https://yourfloridacriminalattorney.com/wp-content/uploads/2014/10/Motion-to-Dismiss-IDP.pdf” save=”1″]

For additional information, please contact

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, International Law Tagged With: , , , , ,

DUI Checkpoints | What is the Law? | What are Your Rights?

September 24, 2014 by
DUI Checkpoints Constitutional

DUI Checkpoint Ahead

DUI Checkpoints, Your Rights and The Law

I have seen a lot of articles and videos recently regarding DUI checkpoints.  I have been asked a lot of questions regarding checkpoints.  People want to know their rights.  What do they have to provide to the police?  Do they have to roll down their window?  I will get to the answer right away and then the analyze the issues.

The Answer under Florida Law:

“Moreover, as the state points out, a driver who is lawfully stopped for a DUI checkpoint is under a legal obligation to respond to an officer’s requests for certain information and documents, and the driver’s refusal to respond to these requests may constitute the misdemeanor offense of obstructing or opposing an officer. See § 843.02, Fla. Stat. (1991). See also Burkes v. State, 719 So.2d 29 (Fla. 2d DCA 1998); K.A.C. v. State, 707 So.2d 1175 (Fla. 3d DCA 1998); In the Interest of J.H., 559 So.2d 702 (Fla. 4th DCA 1990); M.C. v. State, 450 So.2d 336 (Fla. 5th DCA 1984). If a driver engages in obstructive conduct, in violation of section 843.02, then standard police detention and arrest procedures, rather than checkpoint guidelines, would govern the officer’s handling of the situation.”  Rinaldo v. State, 787 So.2d 208 (Fla. App., 2001)

Issue 1: Cop Baiting | Don’t be Stupid

The vast majority of the checkpoint videos that I have recently seen on Youtube involve what I call “cop baiting.”  “Cop baiting” is when an individual does something stupid with the intent on getting under the cops skin and then turning around and acting like a victim when the officer gets upset.  Cop baiting is not the simple act of being disrespectful towards a police officer.  Cop baiting is going out of your way to intentionally provoke a response from a police officer.  I have no sympathy for anybody who intentionally provokes a response from a police officer whether it be foul language or a smack upside the head.

Most of the videos that I have seen involve individuals refusing to roll down their windows, refusing to provide their license and refusing to answer questions claiming that the checkpoint is somehow unconstitutional under the United States Constitution.  I won’t post any of those videos here because I don’t want to spread their idiocy.  Many people have been arrested and convicted of resisting an officer in the performance of his official duties, or similar statutes, by refusing to cooperate with officers at a DUI checkpoint.  If you choose to resist or obstruct an officer at a checkpoint you will probably get arrested.  When you do get arrested, you will have to post bail and hire an attorney.  So your 1 minute of looking like an idiot on Youtube just cost you $5,000.  It will cost you $5,000 even in the unlikely event that you beat the charge.

Issue 2: Checkpoints Are Permissible Under the United States Constitution

The United States Supreme Court case ruled that checkpoints are permissible under the 4th Amendment in Michigan Dept. State Police vs. Sitz in 1990.  The Supreme Court, in a 6-3 vote, ruled that a state has a “substantial government interest” to stop drunk driving, and that checkpoints are rationally related to achieving the goal of stopping drunk driving. The Court also ruled that the impact on drivers from being stopped at a checkpoint was de minimus, that the time a motorist is delayed from reaching his or her destination is negligible, and that brief questioning  in order to determine if there is “reasonable suspicion” that a driver is impaired also is not a significant impairment of the drivers’ Fourth Amendment right. The court balanced the interest of the state in combating drunk driving with the individuals Fourth Amendment rights and held that checkpoints were permissible.

There have been further cases which restrict how checkpoints can be conducted.  In Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357, 361(1979). The Supreme Court stated that the trial court must look to “(1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty.”   Other cases that significantly modified how a checkpoint can be conducted are:

  • Indianapolis v. Edmond, 531 U.S. 32, 40-42, 121 S. Ct 447, 148 L.Ed.2d 333, 343(2000);
  • Ferguson v. City of Charleston, 532 U.S. 67, 81, 121 S.Ct. 1281, 1290, 149 L.Ed.2d 205, 218(2001);
  • Illinois v. Lidster, 540 U.S. 419, 427, 124 S.Ct. 885, 890, 157 L.Ed.2d 843, 852(2004).

However, all of the foregoing cases involve how the checkpoints were setup and operated.  This is information that your attorney will get after you are arrested.

Issue 3: State Laws can be More Restrictive

Ironically, when Michigan Dept. State Police vs. Sitz was remanded to the Michigan Supreme Court, the Michigan Supreme Court ruled that the Constitution for the State of Michigan provided additional protections for drivers than the United States Constitution.  Consequently, the Michigan Supreme Court ruled that checkpoints were not permitted pursuant to the State Constitution rather than the United States Constitution.

The states are also free to implement legislation regarding checkpoints as long as the legislation more restrictive towards the state as opposed to attempting to overturn the Supreme Court by state legislation.  In my opinion, a perfect example of this prohibited legislation is found in North Carolina Statute 20-16.3A(d).  The statute states, “The placement of checkpoints should be random or statistically indicated, and agencies shall avoid placing checkpoints repeatedly in the same location or proximity. This subsection shall not be grounds for a motion to suppress or a defense to any offense arising out of the operation of a checking station.”

This legislation is designed to avoid motions to suppress based on an allegation that the checkpoint was not narrowly tailored to meet its objectives.  I no longer practice law in North Carolina and can not give any legal advice regarding North Carolina law.  However, it appears that one Judge agreed with me that the law was unconstitutional.

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So What Are My Rights?   What do I do if I am Stopped at a Checkpoint?

Assuming that checkpoints are legal in your state, you must comply with the officer’s requests.  For example, providing drivers license, registration and proof of insurance.  The Sitz case makes it very clear that the officer’s have the right to ask you limited questions.  As I wrote above “brief questioning  in order to determine if there is ‘reasonable suspicion’ that a driver is impaired also is not a significant impairment of the drivers’ Fourth Amendment right.”

So they can ask, but you do not have to answer if your answer may incriminate yourself.  You still have your 5th Amendment rights.  If you haven’t been drinking or you aren’t coming back from a bar, simply tell them you are coming back from grocery shopping(tell the truth) and be on your way.  If you feel that your answer may incriminate you, don’t answer.  In some circumstances, they may let you go and in some they may arrest you on an obstruction charge or maybe a DUI.  There is nothing you can do to help yourself at that point.  Let your attorney handle it.

Most importantly, ROLL DOWN THE WINDOW!  This seems to be all the trend on the cop baiting videos.  The police officer cannot ask you questions with your window rolled up.  If it is cracked the officer will claim he couldn’t hear you.  Maybe you interfered with the states right to determine reasonable suspicion because he couldn’t tell if there was an odor of alcohol.  Who knows what the police officer will say, but if you obstructed, you get arrested.

So do as follows:

  • ROLL DOWN YOUR WINDOW so the officer can communicate with you;
  • Be polite;
  • Provide the police officer with your license, registration and insurance;
  • If the answers won’t lead towards incriminating yourself, answer the questions and be on your way;

DO NOT DO AS FOLLOWS:

  • Enter into a debate with the police officer over the constitutionality of checkpoints;
  • Make any incriminating statements.  If where you were or what you were doing had to do with anything that could be perceived as illegal, simply state “I am not going to answer any questions without a lawyer present.”  You may get arrested anyways, but that is what attorneys are for.
  • Do not take the roadside sobriety exercises.  You are under no obligation to do so.  Simply say “No thank you officer.  I am not going to take any tests.”
  • I don’t think that I am allowed to advise anybody NOT TO TAKE THE BREATHALYZER, if it is a second refusal or more, refusing to take the breath test is a criminal offense.
  • If you are going to shut up, then shut up.  The more you talk the more evidence the police will have;
  • DO NOT GO ON COP BAITING EXPEDITIONS!

Fort Lauderdale DUI Attorney, Michael Dye, represents individuals charged with all types of felonies and misdemeanors including, but not limited to contempt of court.  For more information, please contact Mr. Dye at his Fort Lauderdale or Miami office:

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, Criminal Lawyer, DUI Checkpoints, DUI Lawyer, Search and Seizure Tagged With: , , , , , , , , , , , , , , , ,