- The Law Offices of Russo & Russo, P. A. - Pinellas Criminal Defense Weblog

Pinellas Defense Attorneys Reveal Illegal Police Tactics in Doctor Shopping & Prescription Fraud Investigations

The St. Petersburg, Florida criminal defense team at Russo & Russo, P.A. have noticed a growing trend in doctor shopping, drug trafficking and prescription fraud investigations by local law enforcement. Pinellas County Sheriff’s Detectives, along with police officers in the surrounding St. Petersburg  / Clearwater areas are increasingly using “Blast Faxes” to “blanket” countless  pharmacies. The police are seeking information about prescriptions the pharmacy has on file for a particular person of interest.  Sometimes, these “blast faxes” are not limited to a particular county, but can be targeted to an entire large region of Florida.

Local Pharmacies Routinely Respond to Blast Faxes

When pharmacies receive these requests from law enforcement, they normally respond by providing information about the nature and quantity of controlled substances that were prescribed and purchased by the customer in question. The pharmacies appear all too happy to respond to the fax. They voluntarily agree to provide the records and generally do not require a subpoena or search warrant to produce the information. The police officer personally visits the individual pharmacies and secures copies of pharmacy records that include the names and addresses of the prescribing physicians. Sometimes, the police officer collects copies of the prescriptions themselves. All of this is done through the voluntary compliance of the pharmacy without any official legal process having been undertaken.

Securing the "Narcotics Agreement” Signed by the Suspect

Armed with this evidence, the crafty detective hits the road to pay a call on each of the suspect’s doctors. Displaying his badge with the façade of lawful authority and a hint of intimidation, the police officer will secure “narcotic agreements” from the patient’s file. These routine documents are typically signed by a patient early in the doctor/patient relationship. (Characteristically this takes place when the patient fills out his identifying information, insurance coverage and prior ailments.) The “narcotic agreements” typically provide that the patient agrees not to obtain a similar prescription from another doctor without first securing permission. It is also common for such agreements to provide a host of other prohibitions, such as assurances from the patient that he will not sell, trade or exchange his medications for money, goods or services.They often include an agreement on the patient’s part that the patient will fill all of his prescriptions at a single pharmacy and that he will take his medication only at the dosage prescribed.  (See sample: “narcotic agreement”)

Some “narcotic agreements” are drafted by attorneys retained by the physician. Of course, these lawyers make every effort to protect the best interests of the doctor. As a result, sometimes the written “narcotic agreements” will contain language waiving doctor/patient confidentiality. These clauses are included to provide protection for the doctor at the expense of the patient. Common contract/narcotic agreement language may include: “the doctor has the right to release medical information to law enforcement and to fully cooperate with any investigation by the police.” See: “Police Requests for Patient Narcotics Agreements: Placing Physicians Between a Rock and a Hard Place” that appeared in the Florida Medical Association Magazine, Fall 2008.

Interviewing the Suspect’s Doctor

After obtaining the “narcotic agreement” the detective will normally interview the doctor and make the following critical inquires:

1.) Did the suspect/patient inform you that he was seeing another physician? and;

2.) Did the suspect/patient withhold information from you that he had secured a similar prescription from a second doctor?

But, Not So Fast….

Although not all appellate judges are in agreement, the  decision of Scott Lee Mullis v. State of Florida, by the Second District Court of Appeal interprets Florida Statute Section 893.07(4) to authorize police officers to secure pharmacy records without the benefit of warrant, a subpoena, or even prior notice to the patient. Therefore, in most cases, prescription information and other documents secured from your pharmacist by “blast faxes” would constitute lawfully secured evidence in a criminal prosecution.

However, it is what police officers do next with that information that crosses the line in the eyes of the law. A law enforcement officer is prohibited from securing your medical records, patient histories, progress notes or medication records without first providing you with advanced notice that they intend to seek a court order. The police are also prohibited from soliciting your medical and prescription drug information by questioning your doctor, or any member of his medical staff.

This protection is guaranteed by your “right of privacy” under article 1, section 23 of the Florida Constitution. The Florida Supreme Court in State v. Johnson expressly found that this privacy right extends to your medical records. Likewise, medical records are protected against the prying eyes of law enforcement under Florida Statute Section 456.057. There is even a strong argument under Florida Administrative Code Sections 64B15-14.005 (5)&(8) “Standards for the Use of Controlled Substances for Treatment of Pain” that the “narcotics agreement” itself constitutes a protected medical record since it contains “instructions and agreements” pertaining to your medical care.

Unless you have previously signed a proper release, or the police first secure a valid subpoena, search warrant or court order, they are prohibited from seeing your “Narcotics Agreement,” as well as, any and all medical records held by your doctor’s office.

Why We are Qualified to Help With Your Prescription Drug Arrest

Our office maintains a rather comprehensive website dedicated to Florida Prescription Fraud cases. We are former state prosecutors who limit our practice to appearing only within the Pinellas County Criminal Court system. As a result, we are not only accustomed to regular dealing with our local State Attorney’s Office, but we are also very familiar with the customs and practices of the Pinellas County Circuit Court judges who will be assigned to your case. We routinely represent clients charged with prescription drug offenses and make regular appearances on behalf of clients in the Pinellas County Drug Court.

Our law firm has been“AV Rated” and we are included in the prestigious “Bar Register of Preeminent Lawyers.” What that means, is that we have been judged by other lawyers as possessing the highest level of skill, integrity and ethical standards. As such, you can feel comfortable knowing that we are committed to extending our clients the highest level of professional care.

We Can Help With Your Prescription Drug Charge

A Defense Team of Former State Prosecutors
Free Consultation - (727) 578-0303
Discuss Your Options & Possible Solutions

Our Websites: 
Review Our Pinellas County Criminal Defense website
Pinellas County DUI Website Answers Common Questions  
Learn if You Qualify for Social Security Disability Benefits

Some Possible Solutions to Your Drug Charge

   Pinellas Drug Court – St. Pete Times 12/18/11

 

       Prescription Database Training in Florida

    Watch Video on Felony Conviction Ramifications

Related Links:

Drug War’s Focus is Now on Pain Pills
What are Your Options if You Have an Outstanding Warrant
Florida’s Prescription Database – What You Need to Know
Felony Drug Possession Charges – Consider These Defenses

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GPS Tracking: A Technologically Advanced Infringement of Your Fourth Amendment Rights?

The Fourth Amendment of the United States  Constitution  guarantees the people the right to be free from unreasonable searches and seizures. But that right has been slowly eroded by an many "exceptions to the warrant requirement." Since 1791, the US government has been hard at work to create exceptions to your right to be free from unreasonable or unwarranted searches and seizures.

One would think that St. Petersburg police officers should not be allowed to go onto your driveway, crawl under your car, place a GPS tracker (link 3) on your bumper, and monitor your every movement for over a month... all without a warrant. Such disregard for personal property and privacy does not seem to even come close to comporting with the notion of being secured in your effects against unreasonable searches and seizures. But the Federal District Court of Appeals for the 9^th Circuit, (United States of America v. Juan Pineda-Moreno) and at least one District Court in Florida have held that the surreptitious placement of a GPS tracking system onto your car, while it’s parked in your driveway, is not technically a search under the Fourth Amendment.

Apparently, you have no expectation of privacy in your driveway, unless you can afford to have a gated private drive. But even if you have the financial ability to afford a gated private drive, the Courts' decisions suggest that all law enforcement has to do is follow your car and wait for you to thereafter park anywhere in a public place. For example...while you are in the store buying groceries, the police could lawfully be hiding a tiny device on your car that will tell them everywhere you go and how long you stay.

The Court’s rationale in these cases hinges on the premise that:

1.)  An individual has little expectation of privacy in their movements in public areas;

2.)  That law enforcement has long "tailed" suspects through the old fashioned method of simply surreptitiously following them. Such a police practice did not require a warrant. Under this view, a GPS tracker is merely a more convenient method of following a suspect's movement, but represents no more of an intrusion or "search."

In our opinion, such an analysis misses the mark entirely. The greatest problem with the unfettered use of GPS trackers is not just the ability it gives to the police to follow a particular persons movement. It's the fact that the police can conduct the monitoring 24 hours a day, seven days a week, without committing any real investigative resources to the operation. Such unrestricted power exposes the public to the very real danger that their movements can be tracked, catalogued, and recorded at the whim of "Big Brother..." all without the need for a showing of "probable cause."

As of now, these GPS trackers have been used primarily in drug trafficking cases. The next step could likely be the police using GPS to monitor the comings and goings of all those on probation. Beyond that, it won't be long before someone gets the bright idea to use GPS to keep tabs on those person convicted of a felony, or monitor the vehicle of somebody that has a suspended license. Many members of the public might not object to the use of the device in this manner. However, they miss the real danger that this practice has the ability to make all of us suspects, all the time.

Already a "cheap" technology, a wider application of GPS tracking by the police will no doubt continue to develop. Whereas our own Second District Court of Appeal has yet to rule on this issue, we are hopeful that when it does, the court will embrace the important principles of privacy embodied in the U.S. Constitution.

Arrested for a Drug Offense in Pinellas County? We Can Help!

We are experienced criminal defense lawyers who regularly prescription fraud, doctor shopping, and other drug related offenses arising out of the St. Petersburg /Clearwater area.

Contact our office for a free consultation with an attorney:
(727) 578-0303

Visit our comprehensive website at: www.defensehelp.com
Visit our DUI website at: www.duistpetersburglawyer.com

Useful Links on This Topic:

Consider Possible Solutions For Your Pinellas Criminal Charge
Tracking Devices You Can Purchase on the Internet
Felony Drug Possession in Florida
Appeal Court OK's Warrantless GPS Tracking by Feds
California College Student Discovers GPS Tracking Device on His Car

View a C-Span Video Discussion Regarding Police Use of GPS and  the Landmark Decision of United States of America v. Juan Pineda-Moreno

 

Technorati Tags: constitution,fourth amendment,searches,seizures,warrant,GPS,car,attorney,lawyer,st. petersburg,clearwater,drugs,police,Pinellas,tracker,tracking

How to Handle a Call From a Family Member or Friend From the Jail

The Dreaded Middle of the Night Call From the Pinellas County Jail

It's two in the morning and you are awoken by a ringing telephone on your night stand. This can't be good! It never is. You drag yourself to the edge of the bed and at the same time attempt to clear the cobwebs from your head. Picking up the phone you you hear several people yelling. The acoustics are poor and in the midst of all the din you discern the familiar, yet frightened voice of a family member or friend. He tells you he's been arrested and he is scared. He is very scared. You learn that he is in the Pinellas County Jail and he wants you to get him out as soon as possible. Well of course you will help, you tell him. "But what happened," you inquire. "What did you do? Were you drinking?"

You May Have Just Facilitated a Confession!

Despite your best intentions to help, your discussion about the facts of the case over the jail phone may have just amounted to a recorded confession.That is because all incoming and outgoing telephone calls  from the Pinellas county jail are recorded by the Pinellas County Sheriff's Office. If a case is later set for trial, the recordings are routinely reviewed by prosecutors to ascertain whether any incriminating statements can be used against the accused to help secure a conviction. In the example above, if your friend or relative unknowingly answered the questions "what did you do?" or "were you drinking?" he may have provided the the prosecutor with the very ammunition needed to sink the ship.

Normally, the fourth amendment to the United States Constitution would protect you from a warrantless recording of your telephone conversation. However, the courts have ruled that for security purposes, an inmate has no "expectation of privacy” from phone calls made from inside a jail or prison. The logic or rationale is that by virtue of his incarceration, the inmate gives up a limited amount of his rights since he could be planning an escape or break-out from the correctional facility or making plans to secure contraband or a weapon that could jeopardize the safety of the correctional officers. Thus, the jail is authorized to record and "eavesdrop" on any conversations conducted through the jail facility's phone system.

Likewise, the protections afforded by Miranda warnings and the Fifth Amendment don't apply, since the application of those principles are only applicable to "custodial interrogations" conducted by the police or governmental agents.

What Should You Do?

If you get a call from the Pinellas county jail...

1.)  Advise your friend or relative to remain calm. Remind them that they are not being housed in a state prison facility. It would be extremely rare for them to suffer an assault or injury in the Pinellas county jail facility;

2.)  Immediately inform them that your telephone conversation is being routinely recorded and for that reason you should not discuss the facts of their case either directly or indirectly;

3.)  As tempting as it may be to tell their side of the story, instruct them not to relate the facts of their case to any other inmate in the Pinellas county jail. That person could later be called as a witness against them by the prosecutor and in turn shown favoritism in their own prosecution.

4.)  Reassure them that you will be immediately contacting an attorney to learn your best options for securing their release. Inform them that this might include efforts to secure an R.O.R. (Release on their Own Recognizance without posting a bond); posting a cash bond, or in the alternative, using the services of a bail bondsman to post a surety bond.

There Will Be Plenty of Time To Later Discuss the Facts of The Case

If you do get a call from the jail in the middle of the night, resist the urge to find out what led to the arrest. It's better to concentrate on securing the release of your friend or relative in the cheapest and quickest manner possible. You can then carefully select a criminal defense attorney with the appropriate background and experience to address the legal problem. There will be plenty of time to later sit down in the comfort of his office and discuss the facts of the case.

Watch our video on Outstanding Warrants which discusses the three
methods for securing a person’s release from the Pinellas County Jail.

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Related Links:

Pinellas County Criminal Defense Attorneys

St. Petersburg / Clearwater DUI Defense Lawyers

Memo to Hogan Family: Phone Conversations in Jail are Recorded

Remorse in Courtroom Isn't Shown in Phone Calls From Pinellas Jail

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Charged with a DUI or a Criminal Offense?

We Can Help!

Russo & Russo are attorneys who represent clients charged with Traffic Tickets, DUI and criminal offense arising out of St. Petersburg, Clearwater and other areas of Pinellas County.

                        Call Us for a Free Consultation at: (727) 578-0303

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Locals Likely to Get Caught Up in Spring Break Police Crackdown

DUI Checkpoints & Zero Tolerance on Treasure Island

As more than 1.7 million college students begin their annual Spring Break, police in Pinellas County are anxiously awaiting their arrival. Law enforcement will have stepped up patrols on all the beaches. Our office has confirmed that there will be a greatly increased police presence, with special emphasis on all offenses associated with alcohol consumption  (open alcohol containers, disorderly intoxication, and driving under the influence).

Security camera surveillance, undercover officers, and DUI checkpoints are just some of the tactics local law enforcement are using this Spring Break season to send a "zero tolerance" message. Undercover officers working with Department of Alcohol, Tobacco, and Firearms agents will focus on identifying and arresting underage drinkers. Law enforcement intends to employ frequent DUI patrols on Sunset Beach. In addition, there will be coordinated DUI checkpoints along Gulf Boulevard.  You can count on aggressive, large scale DUI enforcement, for Spring Breakers and any locals caught in the same net.

The Squeaky Wheel Gets the Grease

After an outcry from Treasure Island residents who have tired of dealing with rowdy partygoers, the City Commission has responded by steadily increasing police presence. Numerous angry complaints at city commission meetings and video posts on the Internet regarding beach disturbances recently prompted new laws banning beer kegs and glass bottles from Sunset Beach.

The Treasure Island Board of Commissioners also went one step further in anticipation of the 2010 Spring Break rush. The city website warns beachgoers to "Smile! You're on camera!" since high-resolution security cameras on poles have been mounted to the north and south of the ever-popular  Caddy's on the Beach bar. Police now have a far easier method to monitor crowds on the beach and identify potential criminal activity. The city has gone so far as to establish a new Twitter page in an effort to warn students who plan to party on Treasure Island's beaches.

Park at Your Own Risk

Outraged Sunset Beach residents initiated a lawsuit against the city for failing to enforce parking regulations. Fifteen residents have filed a separate lawsuit against Caddy's for violating city parking regulations and allowing parking to overflow into once quiet residential neighborhoods. As a result, watch out for increased parking enforcement and tickets. Despite the fact that not everyone parking near the beach is looking for a drink at Caddy's, both Spring Breakers and locals can expect a parking citation frenzy.

Public Arrests Designed to Send a Zero Tolerance Message

In an effort to deter others from committing crimes, law enforcement will now be initiating more arrests on the beach rather than simply issuing "notice to appear" citations for court. They plan on sending a sobering message by making routine public arrests for the purposes of having crowds witness a suspect handcuffed and placed into the back of a police cruiser. Any criminal offense committed, even those of a minor nature, will prompt police to take swift action and deliver offenders directly to the Pinellas County Jail.

The Wrong Place at the Wrong Time?

With all of the increased police activity on Treasure Island this Spring Break season, we question whether a trip to Sunset Beach is really worth the hassle. For that matter, we anticipate law enforcement agencies in every beach community will be on "heightened alert" during Spring Break. Nevertheless, if you decide to visit, be aware that no one, whether a local or not, will be immune to the zero tolerance attitude of the police.

Charged with a DUI or a Criminal Offense? We Can Help!

Call Us for a Free Consultation at: (727) 578-0303

DUI Defense: http://www.duistpetersburglawyer.com

Criminal Defense: http://www.defensehelp.com

Ignition Interlocks: http://www.floridaignitioninterlocks.com

Links:

• Out of Town Offenders
• First Time Offenders
• Getting Criminal Charges Dismissed
• Disorderly Conduct
• DUI Frequently Asked Questions

Technorati Tags: Spring Break Law Enforcement,Treasure Island Spring Break,Zero Tolerance Law Enforcement Policy,Disorderly Intoxication,Possession of Alcohol Under 21

Cultivation of Marijuana & the Florida "Grow House Eradication Act"

According to Time Magazine, Florida is currently the United States leader in indoor marijuana cultivation. The escalation of marijuana operations in Florida is the result of the large residential foreclosure market in Florida. Marijuana growers have been quick to exploit the abundance of relatively inexpensive suburban homes. The crisis currently affects much of the state, with grow-houses raided in 40 out of 67 counties in the year 2008. Over the past 20 years, approximately 2.9 billion dollars worth of marijuana has been seized from indoor and outdoor cultivation sites in Florida.

Marijuana that is grown indoors can be grown hydroponically. Instead of using soil, the grower would supply the plant with a nutrient enriched water solution. This method of growing allows drug manufacturers to artificially increase the level of THC in the plants. Hydroponically grown cannabis is on average 4 times as strong as the marijuana grown outdoors in the 1980’s. The rise in strength has led to a corresponding increase in value, with some sellers receiving as much as $8,000 per pound when sold in the north-eastern United States.

For a survey of the positions taken by law enforcement officers concerning the effects of grow houses see: Marijuana Grow Houses: Florida’s Silently Growing Epidemic.

The Grow House Eradication Act

In 2008, Charlie Crist signed the Grow House Eradication Act into law to combat what government authorities perceive to be an "epidemic." The Act unsurprisingly received praise from the law enforcement community and was strongly supported by Attorney General of Florida, Bill McCollum.

The enhanced penalties provided for in the Act are found in Fla. Stat. 893.1351:

• A person who leases or owns a structure or vehicle who knows it will be used for the sale or manufacturing of a controlled substance faces a 3^rd degree felony.
• A person who is in actual or constructive possession of a similar structure or conveyance commits a 2^nd degree felony.
• If a minor is present in the structure or conveyance and the person knows that the minor is present then they commit a 1^st degree felony.

The statutory provisions apply to individuals determined to intend the marijuana for sale or distribution. The presence of 25 or more marijuana plants is presumptive evidence of the intent to sell or distribute.  Before the law was enacted, 300 plants were required before a presumption of an intent to sell or distribute could attach.  The substantial reduction in the number of plants required to meet the threshold for intent could lead to small time growers facing penalties as if they were drug kingpins. 

Florida Drug Charges Should Be Taken Seriously

Drug charges stemming from marijuana and other drugs can be classified into three distinct categories: misdemeanor possession of marijuana, felony possession of a controlled substance and drug trafficking.  Many charges are further refined based on the weight of the drugs seized.  In particular, drug trafficking charges carry mandatory minimum terms in state prison based on the total weight of the drugs seized.  Even a charge as seemingly simple as misdemeanor possession of marijuana can have far-reaching consequences, including a mandatory driver's license suspension and a permanent record of arrest and conviction.

Due to the severe penalties for drug charges, our office recommends proactive solutions tailored to fit the individual circumstances of our client’s cases.  Depending on the facts and circumstances of your case, our office may attempt to have your charges dismissed through a PTI Diversion program, seek a withhold of adjudication to prevent a formal conviction, and work to avoid the imposition of a jail sentence.

After being arrested for a drug related crime, it can be difficult to secure employment.  Many employers are concerned about prior drug use and may associate it with poor work performance or a propensity toward other crimes.  It is all too easy for a manager in this economic climate to completely overlook a job candidate based on prior criminal charges.   However, securing the best possible outcome could qualify you to have your criminal records sealed or expunged.

Related Links:

How to Spot a Grow House

Pictures of Grow Houses from around the State

Operation D-Day: $41 million dollars of marijuana seized

Experienced Criminal Defense Attorneys for Pinellas County Charges

Russo & Russo attorneys represent clients charged Traffic Tickets, DUI and criminal offense arising out of St. Petersburg, Clearwater and other areas of Pinellas County.

Have you been arrested, charged, or have an outstanding warrant in relation to a drug offense in the St. Petersburg/Clearwater area?  If so, call us for a free consultation at: (727) 578-0303.

Technorati Tags: Marijuana,Grow House,Drug Trafficking,Possession of Marijuana,Hydroponically Grown Cannabis

New Police Methods Being Employed to Reduce Number of Intoxilyzer Refusals

 

In 2005, DUI arrest statistics were collected by NHSTA from across the country to determine how the rate of refusal to submit to a breath test varies from state to state.  The rates ranged from a meager 2% refusal rate in Delaware to an astounding 81% refusal rate in New Hampshire.  Florida had the third highest refusal rate in the country at 41%.  It is widely known that drivers who refuse to submit to a breath test are statistically more likely to ultimately avoid a conviction for DUI.  In view of these statistics, states with high refusal rates nevertheless have a number of tools at their disposal to lower the rate of refusal, such as:

• Administratively revoking the driving privilege of motorists who refuse to submit to a breath test or subjecting them to criminal penalties for their refusal.
  Florida has adopted both of these methods in an effort to combat their high refusal rate.  In Florida, the first refusal carries with it a one year license revocation and the second refusal is a mandatory 18 month revocation.  Further, the second refusal is an independent criminal charge.  See 2009->Ch0316->Section%201932#0316.1932">Fla. Stat. 316.1932(1)(a);

• Using a refusal as evidence of guilt for the underlying charge of DUI.
  In Florida, a prosecutor can inform a jury that the DUI driver refused to submit to a breath test and argue that the “refusal” is proof of a “consciousness of guilt.” In other words, the driver refused the breath test only because he knew the results would be over the presumptive level of impairment.

• Allow police officers in limited circumstances to secure a blood sample without a warrant, with reasonable force if necessary, from an uncooperative driver.

In Florida, drivers who have been involved in an accident and transported to a medical facility for treatment can be requested to submit to a blood draw if the taking of breath or urine becomes impossible or impracticable. An extreme statutory remedy of a “forcible blood draw” is available only when the driver caused the death or serious bodily injury of themselves or another person.  See 2009->Ch0316->Section%201933#0316.1933">Fla. Stat. 316.1933(1).

Florida Law Enforcement Now Securing
Blood Draws in Routine DUI Arrests

There is currently no statutory limitation on the use of a warrant by law enforcement to secure a blood sample against the will of a person who is routinely arrested for DUI. Consequently, Florida courts are required to look to the Florida Constitution for guidance as to whether new programs designed to collect blood samples at DUI check points or incident to arrest will pass constitutional muster. 

Such programs could be arguably constitutional in Florida because Article I Sect. 12 of the Florida Constitution states that the protections against unreasonable search and seizure are identical to the protections offered by the U.S. Constitution.  Thus, Florida State court judges are instructed by the Florida Constitution to follow U.S. Supreme Court precedent when construing the right against unreasonable search and seizure. Unlike some sister states, Florida affords no greater 4^th amendment protections to its citizenry that those afforded by the U.S. Constitution.  

The Fourth Amendment of the U.S. Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Under the Search and Seizure provision of the Fourth Amendment of the U.S. Constitution, forcible blood draws subsequent to an arrest for DUI are lawful.  The U.S. Supreme Court in Schmerber v. California, 384 U.S. 757 (1966) has long ago ruled that a blood sample may be taken from a DUI suspect.  The Court in Schmerber determined that blood draws are not prohibited by the right against self-incrimination. The U.S. Supreme Court did of course put a limitation on the collection of blood, by requiring that the blood must be drawn pursuant to a lawful arrest.  

Getting a warrant requires preparation of a sworn affidavit that establishes probable cause and review by an impartial magistrate (Judge). Of course, time is of the essence since alcohol in the blood stream may be eliminated by the human body with the passage of time. For this reason, Florida prosecutors are currently taking steps to streamline the process of securing evidentiary blood samples from persons routinely arrested for DUI.

In Brevard County, the Palm Bay Police Department sought to overcome the limitations of a driver’s refusal to Submit to a breath test. Law enforcement employed a template type document on a word processing machine inside of their mobile breath testing van. They quickly prepared an affidavit requesting the issuance of a search warrant for the extraction of a sample of the Defendant’s blood to test its alcohol content. The arresting officer then executed the affidavit and faxed it along with a proposed search warrant to the home of a local judge. The judge signed the warrant and faxed it back to the officer who transported the Defendant to the hospital for a blood draw that was performed by a certified phlebotomist. It’s important to note that the specimen was taken without the permission and consent of the driver who voiced his objection to same. A subsequent motion to suppress the blood results was denied by the court and the Defendant’s blood alcohol results were subsequently introduced into evidence against him. State v. Isley, 11 Fla. L. Weekly Supp. 1102a (Brevard County, September 15, 2004) See also: State v. Dunning, CT23787AXXX-MA (Duval County, Feb. 13, 2009); State v. McKinnon, CT18431AXXX-MA (Duval County, Feb. 19, 2009); State v. St. George, CT24421AXXX-MA (Duval County, January 29, 2009).

The Isley court found that:

1. The DUI blood draw warrant was in conformity with 2009->Ch0933->Section%2002#0933.02">Fla. Stat. 933.02(2)(a) which authorizes the use of any warrant for property that constitutes the means to commit a misdemeanor, i.e. the mixture of blood and alcohol;

2. Florida’s Implied Consent Law did not preclude the issuance of a search warrant for blood extraction in DUI cases;

How Some Drivers May Be Able To Avoid Blood Draws in Routine DUI Arrests

A close reading of the Isley decision reveals that law enforcement’s request for the warrant to extract the driver’s blood may have been denied by the judge, had the Defendant not assured the police officer that he did not suffer from any medical condition that would be aggravated or affected by the blood draw. For example, had the driver indicated that he suffered from hemophilia or AIDS, the judge would in all likelihood have refused to sign the warrant.

DUI prosecutions are recognized as perhaps one of the most complex criminal cases to litigate. They involve scientific evidence, breath testing administrative rules, DHSMV administrative proceedings, field sobriety testing and a host of evidentiary issues.

If you have been arrested for a DUI in Pinellas County, Florida you need a lawyer with the unique experience and background to thoroughly investigate all of your defenses. You can visit our DUI Web site at: www.duistpetersburglawyer.com for answers to Frequently Asked DUI Questions.

The Law Offices of Russo & Russo
Former State Prosecutors
877 Executive Center Drive West
Suite #112
St. Petersburg, FL 33702

Free consultations that are focused on creating an effective legal strategy to achieve the best possible outcome.
Call 24 Hours: (727) 578-0303

Related Links:

Cops Drawing Blood in DUI Fight

Palm Beach Sheriff's Office Draws Blood at DUI Checkpoint 

There Will be Blood, at DUI Checkpoints

Duval Judges Mull Legality of Forcibly Drawing Blood in DUIs

Technorati Tags: DUI,breath test refusal,blood testing,warrant,Florida,implied consent,checkpoint,Pinellas County,administrative suspension

Police Effectively Using Facebook, MySpace in their Investigations

Online networking sites like Facebook and MySpace can be great ways to find old friends and keep up to date with new ones. However, many people who use these websites do not realize that law enforcement may be watching. In fact, police departments in the St. Petersburg and Clearwater area are increasingly beginning to rely on the information posted on these websites as effective aides to ongoing investigations. Below are some recent examples of how not being discreet with your online postings can get you arrested.

The Serial Cat Killer

According to the Miami Herald, police were able to track down a suspect accused of mutilating more than a dozen cats through statements he apparently made on Facebook and MySpace. Although Miami police did not specify what these statements were, they did tell the Herald that they used the online networking sites to track the 18 year-old for weeks.  For more on the story see: Suspect Arrested in cat killings.

The Pinellas County Fugitive

In a story recently reported by the St. Petersburg Times, police were only able to apprehend an alleged drug trafficker who fled to England after a determined Pinellas prosecutor tracked the Gulfport suspect down on MySpace. The prosecutor, a former Army Special Forces member trained in finding people, began his investigation by setting up phony profiles on MySpace and periodically checking the MySpace pages of people who he knew to be friends of the fleeing suspect. After several of the friends left suspicious messages on each other’s “walls” about a man they called “Neo,” the prosecutor tirelessly searched MySpace for a “Neo” that fit his defendant’s description. Sure enough, after two years of searching, the prosecutor discovered a MySpace profile for a man who called himself “Neo” but was clearly the fugitive for which the prosecutor had been searching. London police then arrested the suspect and returned him to Pinellas County where he now faces up to 105 years in prison. See: Internet Trail Trips Up Fugitive.

 

Teenage Thieves Pose for Pictures with ill-gotten Gains

Hillsborough police found suspects of a robbery In the Apollo Beach area through MySpace.  The teenage suspects posed for photos with stolen laptops, televisions and firearms.  They posted those pictures to their MySpace pages, which led investigators right to their door.  The seven men await charges ranging from burglary to grand theft of the 3rd degree.  See:  Teenage thieves post stolen items on MySpace.

The Thief with Foolish Friends

In another Tampa Bay case, a detective was able to track down an alleged thief who stole expensive jewelry when the detective reviewed a suspect’s MySpace page. After looking at the page, the detective followed a link to one of the suspect’s friend’s pages only to find pictures of the friend wearing the very jewelry that had been reported stolen. Police were able to recover the jewelry and thereafter arrest the thief who had inadvertently left his guard down by merely linking his MySpace page to a friend he had given the jewelry. See: MySpace Page Leads to Arrest

Be Careful What You Post - It May Come Back to Haunt You

As online networking sites solidify themselves as popular means of self-expression and communication in today’s society, law enforcement agencies continue to find ways to use them in their investigations. However, it is important to note that online evidence is not gathered only in the pre-arrest investigation stage of a criminal case. Persons already charged with a crime should be aware that the information they post online after their arrest can also be used against them. See: Avoiding Post Arrest Publicity.

Online information posted after your arrest can be used against you in a variety of  ways:

• The state may be able to use information you post online as "additional evidence" that they lacked at the time of  your arrest. This bonus evidence is used to bolster their case and increase their chances to secure a conviction;
  
  
• The state will use your reckless online comments as an "admission of your guilt."
  
  
• The state may use virtual evidence in an effort  to convince the court to impose a harsher sentence. For example, introducing damaging online postings during a sentencing hearing that suggest you have no remorse over your illegal conduct.
  

In other words, if you have been charged with a crime in the St. Petersburg/Clearwater area, you should stay away from the Internet and instruct your friends and allies to do the same.

Mounting a Defense to Already Posted Online Information

If information about your Pinellas County case has already been posted online and subsequently discovered by the Pinellas County State Attorney's Office, you should have experienced St. Petersburg / Clearwater Criminal Defense Attorney carefully review this evidence. For example:

• We would analyze the manner in which law enforcement gathered the online information to determine whether the state collected the evidence unlawfully. If the state gathered online information contrary to  Fourth Amendment protections, we can seek to  have the evidence suppressed.
  
  
• It could be difficult for the state to prove exactly who made the alleged statement or admission online. We may be able to argue that it was not you who made the statements, but rather some other person.
  
  
• It can sometimes be difficult for the prosecutor to prove the meaning of virtual statements. Because it is impossible to see someone’s body language and hear their tone of voice when conversing online, it may be challenging to interpret the true intent behind their statements. Take a recent case out of Port Orange, for example. According to Fox35 News, when a defendant was charged with violation of probation by making illegal statements to a minor on Facebook, her attorney was able to convince the judge that the defendant’s online conversation was completely innocent.  In other words, we may be able to argue that your allegedly incriminating statements were taken out of context or should be interpreted in a different way.

If you have been charged with a criminal offense in the St. Petersburg or Clearwater area, our law office can help. See: Our Track Record

The following links may be of assistance in addressing some of your immediate concerns:

Avoiding Conviction - Withhold of Adjudication

Avoiding Jail - Alternatives to straight jail time

Probation - A Second Chance

The Best Outcome - Getting Your charge Dismissed

Fugitives - How to Handle an Outstanding Arrest Warrant

Scrubbing Your Record - Sealing or Expunging Your Records

The Law Offices of Russo & Russo
Former State Prosecutors
Corner of 9th Street N. & Gandy Blvd.
Baypoint Commerce Center
The Glades Building
877 Executive Center Drive West, Suite #112
St. Petersburg, FL 33702

Free Consultations: (727) 578-0303

Visit our extensive Criminal Defense Website at:  www.defensehelp.com 

Technorati Tags: Pre-Arrest Publicity,Post-Arrest Publicity,St. Petersburg Criminal Defense Lawyer,Clearwater Criminal Defense Lawyer,Search and Seizure,Recent Florida Court Cases,MySpace,Facebook,Online Social Networking Websites

A Loud Car Stereo Could Land You in the Pinellas County Jail

The emergence of “hip-hop”  music and culture over the last twenty years has been a catalyst for numerous changes in our society. Even if you do not subscribe to this brand of music, you have undoubtedly heard the deep baselines that define the genre emanating from neighboring vehicles as you sit in traffic. Many individuals find this noise unpleasant and distracting when played at high volumes. Organizations such as “Noise OFF” or “The Right to Quiet Society” have launched various campaigns to put an end to this and other types of noise pollution.

In an effort to reduce noise from car stereos, the Florida legislature enacted Florida Statute § 316.3045. This law originally made it unlawful to play your car stereo at a volume that could be plainly heard from 100 feet away. A recent amendment to the statute has reduced this distance down to only 25 feet. Thus, police may now stop a vehicle if they can hear music playing from the vehicle from at least 25 feet away. While a violation of this law is not a criminal offense, but rather is categorized as a “civil traffic infraction,” we strongly suspect that the police will use the relaxed decibel level as a new tool designed to stop a “suspicious” vehicle so as to uncover more serious offenses. Thus, a traffic stop predicated from a simple noise violation could potentially lead to various other charges. For instance:

The driver of the vehicle may have an outstanding warrant, or be in violation of a court imposed curfew, leading to criminal charges;

The investigating officer could smell alcohol on the driver’s breath, or observe other signs of impairment, leading to a DUI investigation;

Contraband in plain view could reveal evidence of drug possession, giving rise to criminal drug charges;

The investigating officer could smell the odor of burnt marijuana emanating from the driver, passengers, or the car itself, leading to a subsequent search of the vehicle and drug possession charges;

The driver of the vehicle may have a suspended or otherwise invalid license, subjecting them to a criminal traffic arrest;

Because the distance for a car’s stereo to be “plainly audible” has been so drastically reduced, police now have a license to make traffic stops that they suspect could lead to the discovery of more serious misdemeanor and felony violations of the law. This law has significant potential for abuse, allowing police officers to make otherwise arbitrary traffic stops under the guise of a noise violation.

If you find yourself charged with a traffic ticket or criminal offense that arose from a traffic stop in St. Petersburg or Clearwater, we are Pinellas County criminal defense attorneys who can help. We can examine the legality of the stop, as well as discuss other defenses and possible solutions that are in your best interest. 

Call for a free consultation to discuss your options: (727) 578-0303

The Law Offices of Russo & Russo
Former State Prosecutors
877 Executive Center Drive West
Suite #112
St. Petersburg, FL 33702

Visit our comprehensive Web site at: www.defensehelp.com

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Arrests Certain to Flow from Seatbelt Violations

Some people believe that a seasoned police officer can develop a “sixth sense” for picking out individuals who have outstanding warrants or who might otherwise be violating the law. The trouble is, stopping a motor vehicle on a simple “hunch” violates the 4^th Amendment to the United States Constitution against unreasonable searches and seizures. Police officers find that stopping a motor vehicle can often lead to making a bust on a host of different offenses. For example, the stop of a motor vehicle could yield:

• The odor of burnt marijuana emanating from the vehicle, thus leading to drug possession charges;
• Observation of a pipe, rolling papers, or scale in plain view leading to charges for possession of paraphernalia;
• Discovery that the person’s driver’s license is suspended or expired, or that the vehicle is uninsured or improperly tagged;
• Learning that the driver or a passenger has an outstanding warrant for a new offense or a violation of probation; and
• Observing signs of impairment by alcohol or drugs that ultimately lead to an arrest for Driving Under the Influence (DUI).

However, stops based on mere speculation or intuition will typically result in the Court suppressing any evidence that was discovered by law enforcement. For the stop of a motor vehicle to be constitutional, a police officer must either:

• Possess reasonable, articulable, suspicion that a criminal act is taking place, about to take place, or has just occurred; or
• Observe a traffic violation occur in his presence.

Law enforcement has recently been given a tool by the Florida Legislature to make it easier to pull over your vehicle, despite the constitutional protections against unreasonable searches and seizures. In the past, a police officer could not pull you over for simply failing to wear a seatbelt (even if he observed it first hand). This was because the law defined the failure to wear a seatbelt as a “secondary offense.” In other words, an officer could ticket you for not wearing a seatbelt, only if you had already been pulled over on another lawful basis.

With the passage of Senate Bill 344, the failure to wear a seatbelt becomes a “primary offense” effective June 30, 2009. This means that, pursuant to Florida Statute ss. 316.614, a law enforcement officer may stop a vehicle based solely on the failure of the driver or front seat passenger to wear a seatbelt. (Note that it is also a primary offense for any person under the age of 18 not to wear a safety belt regardless of where they are seated in the vehicle.)

Although the new law will undoubtedly save lives, it is also certain that law enforcement will use it as legal justification to pull over a vehicle merely based on “instincts” or “a bad feeling.” This concept is referred to in criminal law as “pre-text” for a stop. Courts used to wisely recognize that an officer could give one reason for a traffic stop that may have a lawful basis, even though the real reason for the stop lacked reasonable suspicion. Such “pre-textual stops” were not allowed by Florida Courts and resulted in the evidence flowing from the stop being thrown out. However, the U.S. Supreme Court has ruled that regardless of the real reason for the traffic stop, there is no “pre-text” as long as there is an “objectively legal basis” why an officer could have pulled the car over.

The failure to use a seatbelt in Florida is now a primary offense and therefore an objectively legal basis to lawfully stop a motor vehicle.

Whereas in the past, the following scenarios would have been recognized as an unlawful stop, the new law will give law enforcement the unbridled power to stop the vehicle. For example:

• A white person driving through a predominately black neighborhood without a seatbelt;
• A black person driving through a predominately white neighborhood without a seatbelt;
• An individual leaving a bar at 2:00 AM, whose passenger is not wearing a seatbelt, even though the vehicle is operated in a perfectly lawful manner;
• A person leaving a suspected crack house who is not wearing a seatbelt; or
• A young person with long hair who is not wearing a seatbelt or a person operating a vehicle with Deadhead stickers or pro-drug decals (i.e., a marijuana leaf or Bob Marley) on the back of their vehicle who is not wearing their seatbelt.

It is not unreasonable to conclude that a stop under these circumstances will lead to more than just a citation for “No Seatbelt.” Whenever possible, law enforcement will use the opportunity to carefully check the identity and warrant status of all occupants, examine the legality of the driver’s license, registration, and insurance, make careful observations of the driver’s sobriety, investigate any immigration and naturalization issues, scan for any contraband in “plain view” and ultimately, conduct a search of the vehicle.

In the second half of 2009, look for simple seatbelt violations to result in an increased number of arrests for a variety of criminal charges.

If you find yourself charged with a criminal offense that arose from a questionable traffic stop in St. Petersburg or Clearwater, we are Pinellas County defense attorneys who can help. We can examine the legality of the stop, as well as other defenses and strategies that may better your situation.  Call our office for a free consultation to discuss all of your possible options.

The Law Offices of Russo & Russo
Former State Prosecutors
877 Executive Center Drive West
Suite #112
St. Petersburg, FL 33702
Visit our extensive Criminal Defense Website at: www.defensehelp.com

Click here if you need the assistance of a St. Petersburg / Clearwater Criminal Defense & DUI lawyer - over 30 years of combined legal experience in the criminal justice system.

Click here to learn about possible solutions that may be available in your Pinellas County Criminal charge.

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