Another Bogus Loitering & Prowling Charge Dismissed

September 14, 2014 by The Law Office of John Guidry II

crowbar.jpgMany folks live with a constant fear of police abuse. From what I've seen over the years, that fear is completely understandable, depending upon location, and economic standings. And, there are several different ways law enforcement abuse we citizens. Some ways are subtle, like the "I smell the odor of cannabis, so I'm going to search your car" routine. This has never happened to my white 98 year old grandpa, but it does happen to my teenage black clients. Now, part of this may be due to the fact that my grandpa doesn't smoke weed (that I know of). And also, it is shocking (even to me) that my grandfather is still driving at his age (but the DMV renewed his license through age 103--so go figure). Aside from the "I smell weed" searches, I also see plenty of abuse via loitering and prowling arrests. Most judges are fairly suspicious of loitering cases, and they have good reason for such concern. One appeals court put it this way:

"Because of its potential for abuse, the loitering and prowling statute must be applied with special care. It cannot be emphasized enough that the loitering and prowling statute is not to be used as a "catchall" provision whereby police may arrest citizens where there is no other basis which would justify their detention. Instead, the proper application of this statute requires a delicate balancing between the protection of the rights of individuals and the protection of individual citizens from imminent criminal danger to their persons or property." Mills v. State, 58 So. 3d 936, 939 (Fla. 2d DCA 2011).

So, armed with a bit of healthy skepticism, let's take a look at a recent loitering and prowling case of C.C. v. State. 137 So. 3d 466 (Fla. 4th DCA 2014).

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Florida's DHSMV picks a fight with County Court Judges

dmv memo.JPGFor those of you that have kids, you've heard the phrase "no, I won't do it." Well, most kids don't really say "no, I'm not going to do that", but if you listen close to their responses, a parental translation of statements like "when I'm done watching this show" or "I've got homework to do" translates to just about the same thing as "whatever you are asking, I'm not going to do it".

This sort of immature response happens in government as well. Executive orders are drafted by presidents, on things that should have been voted on by the people's representatives. And, governmental agencies pass "regulations" that can send you to jail, even though our legislature and governor never approved such. And, these sort of government tiffs occur even on the smallest of scales. Take, for example, the dispute between Florida's county court judges, and Florida's Department of Highway Safety and Motor Vehicles (DHSMV).

Now, I know what you're thinking--how can one government organization tell another "No, I'm not going to do that"? Well, because it is possible that government officials are reading this article, especially DHSMV folks, and because these workers may not recall the finer points of their middle school political science class--here's a one sentence review. The United States has this thing called separation of powers, and that means that the legislative branch passes laws, the executive branch carries out these laws, and the judicial branch has the final say as far as the interpretation of these laws. Yes, somebody has to have the last word, and it's the judicial branch.

[background info: on traffic cases, criminal or civil, a "conviction" will lead to points being assessed on your driving record, but a "withhold of adjudication" will not lead to points on the driving record, because a "withhold" means--technically--that you were not convicted of the traffic violation. FYI]

Florida's DHSMV fired the first shot at county court judges when a DHSMV Chief, Maureen Johnson, sent a memorandum to all Florida Clerks of Court explaining that the DHSMV would be rejecting any Judge's withhold of adjudication for a CDL driver. The memorandum cites Florida Statute 318.14(9) as its basis, yet that statute only prohibits CDL drivers from electing driving school in order to get a withhold. The memo from DHSMV rejects all withholds for CDL drivers, not just the withholds received by electing the driving school. Now, think about this for a minute. You're a CDL driver. You challenge your citation in court, in front of a judge. That judge issues a withhold of adjudication, based upon the evidence and facts presented to the judge at the hearing. The DHSMV then rejects the judge's withhold of adjudication. As stated in the memorandum to all Florida clerks, the DHSMV doesn't care what the judge says, they're going to reject all withholds for CDL drivers.

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Possession of Alprazolam and Hydrocodone Convictions Overturned

perscription pill bottle.jpgYes, the title of this article gives away the ending, but it's the journey, not the destination.

FACTS: Daniel Shedd is just chilling, drinking a beer, driving his mom's car, when he was stopped by the Florida Highway Patrol (FHP). Shedd v. State, 137 So. 3d 456 (Fla. 4th DCA 2014). FHP chats him up, and Daniel reveals to the officer that he has a prescription pill habit. In case you didn't know, telling a cop you have a drug habit is like a sorority girl announcing to the frat party that she's a nymphomaniac--there's going to be some shenanigans as a result of this announcement. So, with Daniel's announcement comes the obligatory search of the car, and Daniel is arrested for possession of marijuana, possession of alprazolam (Xanax), and possession of hydrocodone (it's also a crime to have an open container of alcohol in the car, but I guess they let that one slide).

It never ceases to amaze me that people drinking a beer, and driving, drive horribly. If you're doing something wrong, can't you drive like a normal human being? Daniel takes it a step further, because not only is he driving bad and drinking--he has marijuana in the car, Xanax in the car, and hydrocodone in the car. It is possible that the Golden Coral buffet o' drugs in Daniel's car gave him a surge of poor driving adrenaline, just enough to draw law enforcement's attention. However, things started looking better for Daniel when he explained to the cop that the alprazolam and hydrocodone both belong to his mother (indeed, the car even belongs to mom).

Actually, not only did the pills belong to mom, the pill bottles had mom's name written on them. So, assuming the FHP officer could read, how hard can this be for FHP to verify? Unfortunately, the old "these drugs belong to my mom" routine doesn't always work, because law enforcement often lack the skills/desire/work ethic needed to do a simple investigation. If you think law enforcement investigations resemble that of NCIS or even Angela Landsbury, you're sadly mistaken. Investigations into felony prescription drug offenses are pretty rare. In this case, if FHP would have taken just a few minutes to contact mom and verify that the pills were hers, we taxpayers would not have had to pay for two felony drug arrests. But, why save taxpayers money? After all, can't we just raise the sales tax another ½ cent?

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Recorded Jail Calls Causing Problems Again

tape-recorder.jpgLet's face it, we have too many criminal cases, and not enough juries to try them. That's OK, because most cases never make it to trial. The legislature knows that the majority of criminal cases are plead to, so it is important to protect the plea process. As you will see below, there are several Florida laws designed to keep plea information away from the jury.

In Florida, we defense attorneys are not entitled to tell the jury about sentencing issues. It doesn't seem fair that the citizens are kept in the dark about the consequences of their verdict--but those are the rules. And, the difference between a plea and a loss at trial can be devastating. For example, almost twenty years ago, I was a public defender in front of Judge Conrad (great judge, but harsh). It was my first week in "felony", and I was shadowing my colleague, whose client was offered one month probation on a misdemeanor for a charges carrying a maximum of 45 years in prison. The client rejected the one month probationary offer and he lost at trial. Judge Conrad gave him 42 years in prison. I will never forget that. But, that's why some folks simply take a plea deal--even though they're innocent--because the risk of losing is too great.

So, we know that the jury is not entitled to hear anything about sentencing. Is the jury entitled to learn of plea negotiations? Can they hear anything connected to a plea? It doesn't seem fair to tell the jury about plea negotiations, knowing that they cannot be told about sentencing options. Take our case listed above. Would the jury have been horrified to discover a 42 year prison sentence after hearing about a one month probation offer?

The question for the day is, to what extent can a jury be told of plea negotiations?

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Innocent People Submit to Guilty Pleas

football.jpgLast year, a lawyer referred me a case. Now, there's nothing new about that, this happens all the time (And, I appreciate the love from non-criminal lawyers. Yes, I equate getting cash with love, can't help it). Here's the facts: Years ago, a young gentleman pled to a serious charge, and completed all of his probation. Years later, the prosecutor discovered, by accident, that his victim made up the whole story to get my client in trouble.

This may be shocking to Joe Q. Public, but we defense lawyers witness "victims" lying to prosecutors all the time. Unfortunately, few prosecutors have the time to question their "victim's" sincerity. What made my case unique is the fact that the original prosecutor uncovered his own victim's lies--and wanted something to be done to correct the situation. You see, there are some good people out there who happen to be lawyers, and furthermore, they happen to be prosecutors. Unfortunately, the original prosecutor left the office just after uncovering the lies, so I had to deal with a new prosecutor.

Negotiations with the new prosecutor did not go well, even though she knew her colleague's position. The "new" assistant state attorney could not believe that my client was 100% innocent because "he must have been guilty; he entered a plea." I just about fell over. I really like this prosecutor, but she clearly missed the mark on this one. Innocent citizens enter pleas all the time, because the risk of trial is too great. Those who have been around the criminal justice system understand that there are people in prison--right now--who are completely innocent, but entered a plea to avoid even further damage. [By the way, the judge overturned my client's plea and dismissed the charges--over the prosecutor's objections, of course]

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$5,000 fine for Solicitation to Commit Prostitution declared Unconstitutional

high heels.jpgIt's time, again, to compare Florida's laws to the rest of the world. Here in Florida, beating your wife--in front of your young kids yelling "stop hurting mommy"--carries a maximum fine is $1,000 and possibly jail time (of course, therapy for the kids will cost more than that). But, asking an undercover cop for $40 worth of sex will get you a $500 fine plus a mandatory $5,000 civil fine. That's right. Consenting adults, a $5,000 mandatory fine. Kid's yelling "stop hurting mommy" = $1,000 fine (max).

Technically, there isn't a misdemeanor in Florida that carries a greater financial penalty than soliciting sex. A $5,000 mandatory fine sounds like something out of Middle Eastern country, maybe Turkey. No, prostitution is legal in Turkey (it's the Middle East, how can that be?). How about those uptight Brits? Nope, prostitution is legal in the UK. Well, surely this $5,000 fine could be imposed by the predominantly Catholic Mexicans south of the border, right? Wrong, prostitution is legal in Mexico. Hum. Maybe the Russians would impose $5,000 mandatory fine? Sorry. In Russia, prostitution is like a speeding ticket, carrying a maximum fine of $65; it's not criminal. But, as luck would have it, the good old State of Florida has a $5,000 mandatory fine attached to asking for sex from a prostitute. Florida has managed to make it into the top ten for our incarceration rate (worldwide), so it should come as no surprise that our fines are just as excessive as our incarceration rates. But, the times, they are a changin'.

Recently, a rare dose of common sense has sprung up out of Broward County. In the case of State v. Javares Jones (12-21991MM10A), Judge Kenneth Gottlieb found that the mandatory $5,000 civil fine attached to a Solicitation of Prostitution was unconstitutional. The facts of the case are pretty straight forward. Jones entered a plea to a second-degree misdemeanor Solicitation of Prostitution on January 21, 2014, and the court imposed a "mandatory civil penalty of $5,000", pursuant to Section 796.07(6) of the Florida Statutes. Yes, this is a lot of money, especially when you consider the fact that a second degree misdemeanor carries a maximum fine of $500, and up to 60 days in jail. We all know that $5,000 is a bit excessive, but how do you prove such?

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What Is a Cop Qualified to Tell a Jury?

no masks.jpgEver meet someone that thinks they know everything? Such folks present a unique problem for the court system, as judges must tailor witness testimony to only those things which a witness is qualified to discuss. Could you imagine if the corporate news channels had such a filter on their commentators? How many times have you seen someone on TV talking about the Constitution, yet they haven't read it? How many times have you heard someone presenting a particular political position, say, a Marxist position, for example, and yet you know this person has never read Marx? Never read Das Capital? Usually, these folks have only read what someone else has written about Marx, or what someone else has written about what someone else has written about Marx.

In criminal trials, witnesses are limited in their ability to give an opinion to the jury. Today, we're going to take a look at Alvarez v. State, 2014 Fla. App. LEXIS 583 (Fla. 4th DCA 2014). Alvarez and a co-defendant were convicted of robbery and first degree murder with a firearm (while masked) after two Circle K employees were killed during a robbery. The store's video surveillance showed two robbers enter with masks and gloves, one had a handgun, one had a rifle. One state witness claimed that she picked up Alvarez from nearby the Circle K after the robbery, and he was frantic, carrying a gun--but she didn't know about the robbery.

The prosecutor put the detective on the stand, and asked him if he viewed the surveillance footage of the masked murderers. Yes, he had, "probably fifty to seventy-five" times. . . to try to gather more information, more evidence. Get a better understanding. Try to identify certain things, the firearms or the people involved". id. Naturally, the defense attorneys objected to this testimony, as the video was already placed into evidence, the jury has already seen the video, and it was improper to let the officer give an identification opinion from the video because the officer "hasn't been qualified as an expert on identification or anything. And we don't want him to give any opinions about what any of the evidence means. That's up to the jury."

The defense attorneys continued their objection, but the judge permitted the officer to tell the jury that, after viewing the video several times, he was able to make a determination as to the color of the skin of the suspects, and identity of the suspects. The prosecutor asked the detective if he could "ID anyone and was able to see their faces on video with clarity to make an identification . . . The detective said 'yes'". Id. Is this permissible? Mind you, the jury has seen the video, and they can watch as much as they like at the end of the trial.

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Religion and Judges

Christ the King.jpg I've been in front of many many judges over my 21+ years practicing criminal defense. Their job is simple--to referee the game. Nobody comes to the game to see the referee, but how these judges call the game may influence the outcome. As the old saying goes, a good lawyer knows the law, and a great lawyer knows the judge. That's true, but knowing a judge's religious beliefs will not necessarily provide you with any more knowledge as to how harsh, or lenient, that judge may be. That fact is probably a sad commentary on how our beliefs affect our decisions at work. As a Christian, I wouldn't make a very good judge, because Christianity requires a bit a mercy and love. Mercy, essentially, suspends justice. But as a judge, your job is to dispense justice, not mercy. It is disappointing for me to see judges that call themselves Christians hand down completely unmerciful decisions. We're going to take a look at just such a decision today.

Recently, an appeals court overturned a rape sentencing due to judicial comments regarding religion. Obviously, religion has no place in the courtroom, but as a defense attorney, a tad bit of mercy every now and then is much appreciated. And, to no surprise to some of you, but much of the judicial mercy I've seen comes from judges that are not particularly religious. To make matters worse, the harsh sentences often come from so-called religious judges. Again, hypocrisy can be frustrating, but certainly not surprising. Today, let's examine the role religion is permitted to play in the sentencing of Florida's defendants. The case is Torres v. State, 124 So. 3d 439 (Fla. 1st DCA 2013).

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Quality Control for Prosecutors - Only In America

flag usa.jpgSometimes, you just have to shake your head and say, "only in America". Take rapper 50 Cent, for example. Curtis Jackson was dealing drugs when he was shot nine times over a measly $5,000 drug deal. 50 Cent is now worth half a billion dollars (maybe more, He sold his share of Vitamin-Water for $300 million). Yes, only in America can a drug dealer leave crime behind and make millions legally. As the song goes, he came from the bottom, to the top--legally--and it is inspiring. Role model? Maybe not. Inspirational? Absolutely. Makes me proud to be an American. Can you think of any other country in which 50 Cent could have used his business intelligence to make himself hundreds of millions legally? No, you can't.

Before I began defending criminal accusations back in 1993, I was an accountant (briefly). Capitalism is a great system, but to work properly public companies must provide the public accurate information. Accountants play an important role in auditing these financial records. Unfortunately, we don't find such important internal controls in State Attorney's offices, at least not here in Florida. So, leave it to the freedom loving people of Texas to come up with a uniquely American way of testing the integrity of their prosecutions. Before we delve into that, let's take a look at another inspiring story.

Michael Phillips entered a plea to 12 years in prison for the hotel rape of a 16 year old girl back in 1990. The teenage girl was staying at the hotel when someone broke into her room and raped her. Michael worked at the hotel, and lived there. The 16 year old girl, who was white, positively identified Michael (who is black) out of a photo lineup. We all know the problems with eyewitness identification. Add to that, the problems of interracial identification. Nonetheless, Michael entered a plea, believing that the jury would not believe his word over a white teenage girl's word, and knowing that a prior burglary conviction would put him in danger of spending decades in prison if he lost at trial. Also, his public defender told him he would be paroled within 4 years, but that didn't happen--he did all 12 years.

Michael is now in poor health, residing at a nursing home at age 57. In May, a few police officers showed up at his nursing home to have a talk. For a guy like Michael, police visits are not a good thing. But this time, the officers blew his mind. They told him that his old case was going to be dropped. Michael knew he was innocent, but he didn't think anyone cared. He was wrong. The prosecutor retested the DNA, and discovered that the DNA found in the 16 year old girl was not his. Instead, the DNA matched another black male staying in the same hotel at the same time as the rape, Lee Marvin Banks (he cannot be prosecuted, it is beyond the Statute of Limitations). That's right, you heard me. The prosecutor retested the DNA--without even being asked.

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The Crusade against Child Pornography Marches On

lens.jpgSome stories make me wonder what is happening to America. Some stories remind me that our government is out of control. This is one such story. This story makes me sick, and I hope you feel the same way. Let's delve right in, because you're not going to believe this.

A 15 year old girl sent her 17 year old boyfriend some sex pics of herself from her iPhone and iPad. The boyfriend reacted in the same way that any 17 year old boy would react--he sent her back a sexy video, involving his aroused penis. I know, this is shocking behavior. This is an outrage! How dare these kids play "spin the bottle" with their iPhones, using technology to produce and exchange such smut. By the way, doesn't it seem that new technology is rarely used to make the world a better place? Take the internet. What was (is) the internet used for initially? A faster, cheaper way to view porn. What are the new smart phones being used for? A faster, cheaper way to produce said porn.

How did the police get involved? As is often the case, the girl's mother cracked the weak pass-code on her daughter's iPhone, and called the police to accuse her boyfriend for the production and distribution of child porn; ignoring, of course, her own daughter's actions which started this whole thing. And, if I had a dollar for every mom who blames the other kid for her own child behaving badly, I'd be a rich man . And no, the prosecutors did not arrest, and did not charge, the 15 year old girlfriend for initiating this exchange. However, legally speaking, this sounds a like a decent case of entrapment and temporary insanity, as no 17 year old boy could resist his girlfriend's invitation to exchange such behavior. There are plenty of studies out there on adolescent brains, and I'm pretty sure these studies would support me on this. Let's face it, no young skull full of mush can resist such an invitation. I'm pretty sure that the old "spin the bottle" game that would get me grounded back in the 80's has now become a felony sex crime, especially if the kids video tape the event. Naughty behavior among consenting juveniles has extremely serious consequences. Welcome to the new age, to the new age....

Here comes the shocker. After being arrested for possession of child pornography and manufacturing of child pornography--the police forced the 17 year old juvenile boy to expose his penis to them so that they could take pictures of it, in the hopes that these pictures could be used as evidence to prove that said penis matched the penis found on the 15 year old girlfriend's iPhone video. Yep, our government created child pornography to prove a child pornography case! The irony. I can't make this stuff up. And, it gets worse.

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Unholy Alliances

bull.jpgSometimes, you can just look at a group of people and know "they're up to no good". These "up to no good" groups are not kids hanging out, covered in tattoos and piercings at 3 am. Punk kids are suspicious at best, and usually spend half the night telling each other that "nobody understands me", and the other half detailing "how different they are". No, we've got to dig deeper. For example, say you're eating at one of the finer establishments in town, and you see your local congressional representative having dinner with a Big Oil executive. This can't be good, right? It's at least suspicious, like that smell of vanilla that permeates your clothes after a night of supporting single moms--there aren't many good explanations for such an aroma, I'm just saying. Or, say your State's Senator is having dinner with an executive from a big pharmaceutical company--what good could possibly come out of this? Another law exempting Big Pharma from lawsuits? Maybe a law attacking competing products coming from the supplements market? Who knows, the possibilities are endless. Yes, BIg Oil and Big Pharma are easy targets, and we don't have time for such cliches (too late?).

Today we're going to focus on the unholy marriage between corporate farming, and our government, and their demon baby "ag gag laws". The reason they're getting my attention is that, in at least six states, they have made it a crime to take pictures of how our food is being processed. That's right, taking a picture can be a crime. Now, taking a picture can be a crime if you're a pervert looking at naked kids, or a spy taking a picture of top secret documents or military hardware. I get that. But, we've now reached a new level of corporate and governmental intercourse, one George Orwell warned us about years ago. The fact is, some companies are so big, they have practically merged with the government. The unholy love child of this relationship is that, every potential instigator standing up to a big company no longer faces a civil lawsuit--its now criminal.

Six states now have "Ag Gag" laws, which make it a crime to "enter an animal facility to take pictures by photograph video camera, or other means". Yes, they really don't want you to know how your food is being made. The prime offenders are North Dakota, Montana, Missouri (my home state!), Kansas, Iowa, and Utah.

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How to Test Drugs (Again)

old scale.jpg[Whenever I can't come up with a catchy title for a topic I've already covered a thousand times, I simply add the word "again", or "part 2" or "revisited". I first wrote about this topic in July of 2012, in "How to Weigh Drugs in a Trafficking Case".]

We need experts to tell us how to do anything more complicated than finger counting. Some of this expert testimony is simple, and necessary if we want to keep our government in check (police work is only easy in a police state, right?). One of the more common cast of characters to appear on behalf of the State in drug cases are FDLE's lab chemists. The good news is, most of these folks are fully capable of putting drugs into a machine, and reading the results to a jury--much in the way a Wal-Mart cashier scans your products and tells you how much they cost. Unfortunately, not all of these folks truly understand how their machines regurgitate test results; and when you ask them to explain the science, they give a look reminiscent of a dumbfounded Ben Stiller in Zoolander. A classic comedy, for sure, but not something that should be remotely similar to expert scientific testimony. Anyway, some lab analysts simply do not follow the most basic of scientific tasks. Today's simple scientific task involves testing a controlled substance before weighing it. Weight is important. The weight of a substance can mean the difference between a lengthy prison sentence, and a probation sentence.

So, again, it is with great joy that I bring you a case in which our government cannot handle the most basic scientific procedure.

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Why Is There Something, Rather Than Nothing?

woman.jpg[if you don't like philosophy, skip this article...]

Have you ever had that feeling that its all been done before? Me too. And yes, this age old question is still unresolved, philosophers can not answer this question, nor can the scientists, nor can the religious. So, why something rather than nothing? I have some thoughts, all of which have been borrowed from more intelligent folks than I.

Science is great at answering the "how" questions, but not so good at answering the "why" questions. Both questions are intriguing. Why has the universe gone through all the trouble of existing in the first place? If you've read anything on this site, you can eventually figure out that I'm a Christian. As such, I understand that the Bible explains God's love for us, and how our the most important command is that we love God and each other. Ok, got that.

But, religion lacks answers to many adventurous questions. I think that's the way it should be, so as to not spoil the fun of discovery. We only take so many trips around the sun, and it's meant to be an adventure. This discovery process is exactly how Dr. Francis Collins spent 30 years of his life as an atheist, only to discover God after he decoded human DNA. Somehow, the beauty and complexity prompted Collins to believe in God. I get that, but not a good argument. Complex scientific discoveries do not point to a creator, though it may make such a belief both reasonable and plausible. For me, seeing a beautiful bikini on the beach convinces me that there is a God (can't be an accident, right?), is my inspired vision any better an argument than Collins' decoding of the human genome?

Anyway, if we want to answer the question of why there is something rather than nothing, it would be helpful to know what "nothing" is. I became interested in the subject of "nothing" after 21+ years of defending criminal cases. Sometimes, we attorneys must play with the definitions of words. And, I've noticed several scientists committing the same slight of hand maneuvers that I get paid to perform. The difference is, as attorneys, we have judges and legislatures and statutes and prosecutors to keep our definitions in check. That's not the case for scientists, you need only present a few complex models (mix in some big words and heavy equations), and not many folks will recognize the slight of hand. Well, I've noticed, and I'll explain more later.

Back to the big question. The intellectually lazy position is to simply dismiss the question. The question can be brushed off as being irrelevant. Or, that the universe needs no explanation. Who knows, these answers may turn out to be correct, but I'm looking for something a bit more intellectually satisfying (whatever that means--kind of like the supreme court's definition of pornography, 'we know it when we see it').

Another incomplete answer would be that the universe is here by chance. Chance is the scientific equivalent to a "God of the Gaps" analysis, in which religious folks claim that any gaps in scientific knowledge must be the hand of God. Scientist's gap theory claims that anything they cannot explain must have happened by chance. Of course, both camps may be right on this to some extent. If there is a God, maybe He did in fact cause certain things we can't explain. Or, regardless of whether or not God exists, there may still be plenty of room for chance in the universe (maybe God does play dice?).

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Will Florida Honor an Out-of-State Prescription?

cannabis plant.jpgFor years, we've been kicking around the boundries of state to state travel for citizens who are medically prescribed marijuana. Americans take for granted our lofty right to travel and assume that, once we pick up legally prescribed drugs at the pharmacy, we can road trip anywhere in the country with those legal prescriptions. When it comes to marijuana, that's just not the case.

Florida Statute Section 499.03 provides for a "prescription defense", in that we citizens cannot be convicted for "the possession of [a] drug [that] has been obtained by a valid prescription of a practitioner licensed by law to prescribe the drug". Sec. 499.03(1).

Shouldn't the plain language of this Florida Statute include medical marijuana? It includes drugs made by Big Pharma, like Oxycodone or Hydrocodone. You can bring these prescriptions anywhere in the country. But the same cannot be said for marijuana. A recent Brevard County case highlights the reasoning behind this. In State of Florida v. Zepeda (Brevard Co. 05-2013-MM-61469-AXXX-XX, April 7, 2014, FLWSUPP 2107ZEPE), the Defendant filed a Motion to Dismiss pursuant to Florida Rule 3.190(c)(4), a motion that required her to admit that she possessed the marijuana, but further claimed that "her possession of the cannabis was a result of a valid prescription". Sounds good so far, right?

First of all, the Motion to Dismiss was denied for technical reasons, as well it should have been (and I'm not one to say this sort of thing, but the judge is 100% right on this one). These motions must be sworn to, and Zepeda's motion was not (Practice Tip: if you don't want to swear to a Motion to Dismiss under 3.190(c)(4), you can always file an unsworn motion to dismiss under 3.190(b)).

Second, the motion to dismiss was denied because the prescription card presented as evidence in support of the motion was obtained three weeks after the arrest. Ouch. Lucky for us, the trial court briefly entertained this interesting issue, even though the judge had plenty of reason to simply deny the motion for the above reasons.

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Sentencing for Painkiller Trafficking Changes July 1st, 2014

pills in bottle.jpg"minimum mandatory sentences are simply heavy handed and arbitrary...we should not have laws that ruin the lives of our young men and women who have committed no violence." United States Senator Rand Paul (R-Ky)

Finally, a much needed modification to Florida's drug trafficking laws for the painkillers hydrocodone and oxycodone (found in Florida Statute 893.135). For many years, your taxpayer dollars have been going to warehouse people in prison--not for being hardened criminals, but for having a pain pill addiction. And, it really doesn't take much to end up in prison for painkillers. Under current drug trafficking laws, a mere 7 pills can trigger a minimum mandatory 3-year prison sentence (and, a mandatory $50,000 fine. Yes, only $120 in pills gets you a $50,000 fine):

HYDROCODONE - current law (based upon an average pill weight of 0.65 grams):

7 pills = 3-year mandatory prison term (4 grams)
22 pills = 15-year mandatory prison term (14 grams)

HYDROCODONE - new law, taking effect July 1st, 2014

7 pills = NO MANDATORY, NO TRAFFICKING, just a possession of hydrocodone charge
22 pills = 3-year mandatory prison term (14 grams)

And, the trafficking laws changed for oxycodone as well.

OXYCODONE, current law (based on average pill weight of 0.13 grams):

31 pills = 3-year mandatory prison term (4 grams)
108 pills = 15-year mandatory prison term (14 grams)

The new law governing OXYCODONE, taking effect July 1st, 2014, is as follows:

31 pills = NO MANDATORY, NO TRAFFICKING, just a possession of oxycodone charge
53 pills = 3-year mandatory prison term (7 grams)
108 pills = 7-year mandatory prison term (14 grams)

So, what is considered a trafficking offense today will no longer be a trafficking offense next week. A first degree felony trafficking will be reduced to a third degree felony possession of a controlled substance, as listed above. That's a step in the right direction.

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