I’ve heard folks complain that some laws simply “legislate morality” and as such, those laws should be stricken.  After all, just because my mom thinks it’s wrong to do heroin, that doesn’t make it wrong for others, right?  Well, I hate to break it to you, but all of our laws legislate morality, and it seems like prostitution is a more obvious piece of moral legislation than most.  After all, everyone can agree that rape and molestation are wrong, but the grey areas involve crimes that do not, on their face, harm others.  The Libertarian in me says, hey, if youIMG_0049 want to inject yourself with enough heroin to have a Near Death Experience, go for it (NDE for short, and, doesn’t it legitimize things when a string of words has an acronym?  Yes, it does, don’t fight it).  The problem is, how far are you willing to take this idea that an individual’s drug abuse doesn’t affect anyone else? (aren’t we all ‘connected’?)  I’m guessing that most heroin addicts have no medical insurance to pay for the ambulance ride to the morgue, so the rest of us end up paying for someone else’s rock star lifestyle.  And yes, you can find a better analysis of this topic in some overpriced college textbook in philosophy, political “science”, or religious studies, but I prefer a band called Cake:

“Aging black leather and hospital bills, Tattoo removal and dozens of pills.  Your liver pays dearly now for youthful magic moments, but rock on completely with some brand new components. 

. . .How can you afford your Rock N’ Roll lifestyle?  . . .Excess ain’t rebellion, you’re drinking what they’re selling” – Rock n Roll Lifestyle, Cake

One of the “crimes” that I think shouldn’t be a crime is prostitution.  The previous sentence may offend all the good people out there, but I’m just saying, consenting adults should be allowed to pay for basic human needs.  Why reserve the basics for paraplegics who can afford sex surrogates? What I do like, though, is the idea of health insurance companies paying for sex, it’s what Marvin Gaye was talking about in his track Sexual Healing, right? Continue Reading

Most decisions by judges do not get overruled, even when they’re wrong.  For some, this may only re-enforce their bad IMG_0461behavior because the fact is, challenges to bad rulings are often not made because most clients do not have the time or money to appeal (for those unaware, it is far more expensive to appeal a case than to handle it right from the beginning).  One of the most commonly overturned decisions is the denial of a sealing or expunging of a criminal record.

Sealing and expunging is an abnormal process for most judges, because the law presumes that a seal and expunge should be granted.  In effect, the presumption that sealings should be granted strips the judge of any meaningful participation.  If the petition is drafted properly—the presumption is that the expunge must be granted (yes, this is more difficult than it looks, and no, you can’t find this online because each is slightly different).  Ok, so why all the denials on petitions to seal and expunge?  Well, there’s one little provision in Section 943.0585 that judges like to hang their hat on.  It reads that “any request for expunction of a criminal history record may be denied at the sole discretion of the court.”  So, what does “sole discretion of the court” mean?  Sounds like trouble, right?  Wrong.  To show how limited a judge’s decision is on a seal and expunge, we’re going to take a look at the Orlando appeal found in M.N. v. State of Florida, 18 Fla. L. Weekly Supp. 921a (2010-AP-12, April 25, 2011).  In this case, the prosecutor objected to the petition to seal M.N.’s misdemeanor disorderly conduct.  Seems kind of odd, and I don’t know the facts here, but I can’t even dream up facts in a disorderly conduct that would warrant a denial of a petition to seal (sure, I can dream up felony charges that should not be sealed, but a misdemeanor?).  Continue Reading

Expunging a record can be a time consuming process, because you have to wait on the government at several different stages.  For example, at the very beginning of the expunge process (as opposed to the sealing process), you must get the State Attorney’s Office to sign off onhourglass the application.  There’s no real deadline for this signing event, and usually this task is complete within a few weeks.  But, again, we’re dealing with the government, and they’re in no real hurry.  The same can go for FDLE.  Once the State Attorney’s Office has signed off on an expunge application, that application is forwarded to the Florida Department of Law Enforcement for a background check.  This background check can take a matter of weeks (unlikely, but I’ve seen it happen), or a matter of months (much more common).

But one particular expunge process takes government control to a whole new level, it’s called an “Administrative Expunction”.  This type of expunge is brought to us by Florida Statute 943.0581, and, believe it or not, neither you nor your attorney may apply for an administrative expunge.  Only the government may apply for an administrative expunge, and only in cases where an arrest was “made contrary to law or by mistake”.

Now, by my count (unscientific, but accurate nonetheless), plenty of arrests have been made contrary to law.  To me, this phrase could mean any sort of arrest that a court deems illegal.  Recently, I had a client’s drug case thrown out because the search of his home was illegal.  So, if the search of the home was unconstitutional, wouldn’t his arrest be “contrary to law”–and thus be eligible for an administrative expunge?  I don’t think the definition of “contrary to law” extends to arrests deemed unconstitutional by a criminal court judge.  I think is should, but as a practical matter, prosecutors are not too cooperative when it comes to helping out a defendant via Section 943.0581 (most don’t even know what an administrative expunction is).   Continue Reading

“A poor girl wants to marry, and a rich girl wants to flirt P1020591

A rich man goes to college, and a poor man goes to work” – Charlie Daniels Band

Let’s face it, the deck is stacked against the poor.  If you’re poor and black, it’s even worse.  Yes, what I’m about to say is 10 years past cliche, so it’s almost coming around again, and that makes it ok, maybe even cutting edge (ever hang out with teenagers who think the latest new band is cutting edge, and then deflate them with some NIN or Violent Femmes or anything from the 80’s or 90’s that today’s bands are ripping off–yes, it’s all been done before….except for the stuff I like, that’s all original and fresh).

Here’s an actual quote from a recent police report asking a judge to issue a home search warrant in a poor neighborhood:

Officer to Judge: “Your Affiant received a tip from a confidential informant advising drugs were being sold out of the target residence.”  Ok, that’s his job, so far, we taxpayers are getting our money’s worth.

Officer to Judge: “During the investigation while conducting surveillance of the target residence, Your Affiant on multiple occasions, observed several black males hanging out in the front yard sitting in a chair traveling back and forth inside the residence.  On at least three occasions, several individuals could be seen loitering or congregating outside the target residence.  Based on my training and experience, I know this to be common among drug deals and sales.” Continue Reading

Florida has lots of folks on probation.  For the fiscal year 2013-2014, the Department of Corrections supervised 143,809 citizens.  Our success rate was 56.4%, and it costs the state $1,825/year to supervise these 143,809 people.   Florida only recouped $72 million on that $262.4 million supervision expense.  Yes, crime pays.  That being said, probation is a far better deal for we taxpayers than incarceration—those numbers are scary (a topic for another day).

Many of Florida’s probationers are sex offenders.  To qualify for sex offender probation, you need do nothing more than look at naked 16 year olds on your computer.  Sex offenders have far more conditions than standard probationers, and by standard probationers, I mean the ones that may have shot somebody, stabbed someone, or robbed someone at gunpoint.  Yes, looking at naked teenagers on your computer is a higher level of supervision than violent crimes (unless, of course, the violent crime is sexual in nature).  A sex offender must have a curfew, must not live within 1,000 feet of a school, day care, park, playground.  A sex offender must undergo a polygraph examination annually to determine if they are re-offending.  Also, a sex offender must keep a driving log, and cannot drive alone without his probation officer’s approval.

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All the lonely people, where do they all come from?  All the lonely people, where do they all belong?craigslist warning

There’s a certain art to getting people to do things that do not come naturally.    For example, American soldiers were not killing as many enemies in World War II as some would have preferred, so our government made changes to increase kill rates by the time we arrived in Vietnam.  One simple change involved shooting targets.  In WWII, soldiers practiced with bull’s-eye designs, but to boost kill rates, our government changed to silhouette targets of actual human beings.  (See Dave Grossman’s book “On Killing: The Psychological Cost of Learning to Kill in War and Society”).   These changes worked, and kill rates were much higher in Vietnam vs. WWII.  Now, at what cost did we increase the kill rate?  It has probably cost our soldiers more in mental agony than it is worth, though this is a subject of much debate (about which I know very little, but it might explain the higher rates of PTSD these days).  In much the same way that our military has changed how they train their soldiers to kill at a higher rate, law enforcement has changed the way they approach men in their undercover operations to catch sexual predators.  Again, at what cost?   Our court system seems to ignore law enforcement’s recent push to “create” the crime of traveling to meet a minor, rather than detect this criminal conduct.  When our government creates a crime, we typically call that “entrapment”.  When our government “detects” a crime, we typically call that “good police work”.

First of all, law enforcement has decided to pick the low hanging fruit: lonely, horny, men (possibly redundant, but not necessarily).  You may ask yourself, where does the government find all these lonely men to string along?  Craigslist, of course.  Specifically, the personal’s section “Women Seeking Men”, or “W4M”.  Now, you can’t just go straight to the w4m section.  Nope.  You must first heed the following warning from Craigslist: “By clicking the w4m link below you confirm that you are 18 or older and understand personals may include adult content.”  So, most rational human beings understand that the ads that follow are from women “18 or older”, right?  Let’s take a look at (another) a real life Craigslist case, Seo v. State, 143 So. 3d 1189 (Fla. 1st DCA 2014). Continue Reading

P1040115Lawyers fight about words.  And, even if we agree on the words used, we often disagree about the legal consequences of those words.  Today’s case is an example of just such a dispute.  In Tulier v. State, the defendant was convicted of attempted sexual activity with a minor for asking an illegal question.  147 So. 3d 1037 (Fla. 2nd DCA 2014).  According to the appellate court’s opinion, here’s what happened: “While driving an SUV, Tulier stopped at a stop sign.  The victim was on his bicycle in the crosswalk in front of Tulier.  As the victim passed, Tulier called out to him through his open passenger-side window.  The victim approached the passenger side of the vehicle walking but still astride his bicycle.  Tulier asked him through the open SUV window what his name was and how old he was.  The victim said his name and said that he was seventeen, although he was still sixteen at the time.  Tulier then asked the victim if he wanted to make $400, to which the victim asked how.  Tulier said, “Blow me.”  The victim immediately called his father on his cell phone, and his father told him to get the SUV’s tag number.” Id.

So, Tulier asked an underage boy to have sex with him, and that question led to a conviction for a felony sex offense.  Attempted sexual activity with a minor carries a lifetime of sex offender registrations, so it was important that Tulier’s defense attorney reduce the charge to something less serious—a solicitation.  Yes, there is a big difference between an attempt and a solicitation.  In general, an attempt goes beyond mere words into some overt act, whereas a solicitation is typically words only (however, ‘mere’ words can get you a conspiracy charge, a story for another day). Continue Reading

IMG_0251.JPGThere are more prescription drug arrests than ever before–primarily involving possession of oxycodone or hydrocodone. No, I don’t have stats to back that up, but you can just hear me now and believe me later. While there are many contributing factors to this record breaking arrest rate, the one factor near and dear to my heart is law enforcement’s poor handling of the situation.

The police have little motivation to do any sort of “investigation” when it comes to arrests for possession of a prescription medication. If you don’t have a prescription label on the bottle–you’re going to jail. Gee, that’s some investigation officer, good use of the Bachelor’s in Criminal Justice. For the oxycodone patient, it’s a vicious cycle. Oxycodone users don’t want to walk around with a labelled prescription bottle that advertises “valuable pills inside”, folks who leave their oxy labels on the bottle are the same sort of folks that leave their purse sitting on the front seat of their unlocked car. Sure, you can do it, but why risk people knowing what’s inside? To make matters worse, law enforcement is often too lazy to follow up on a citizen’s claim that the pills are possessed legally. I hate to be the one to remind folks that the good ‘ol days were actually pretty good when it came to police investigatory skills–I seem to recall a time when cops would actually investigate crimes. A novel concept, right? Investigations today are limited to fictional depictions like ABC’s Castle, or NCIS. But once upon a time, investigations actually existed.

Why won’t officers confronted with a citizen claiming a valid prescription simply make a few phone calls and ask a few questions? Many of these officers have bachelor’s degrees in criminal justice, while officers in years past had no such degrees but their investigative skills would run circles around the college cops of today. Apparently, it’s just easier to make one more drug arrest than to conduct an investigation. Ok, I’m done blibber blabbing. Here’s a real life example of what I’m talking about.
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One of the cool things about criminal law is that our evidence, disputes, and analysis are open to the public. All of our disagreements at motion hearings and trials are open to the public. If an “expert” claims that XYZ is true, that expert will be subject to cross-examination, and he or she must answer the opposing side’s questions (redundant, I know). This is not true of science. What we think of as “scientific truth” is subject to the whims of those who decide what will be published and who should be awarded research money. The culture of science discourages dissent, so science typically doesn’t advance based on honest debates about the evidence, but rather, “science advances one funeral at a time” (Max Planck). Dr. Henry Bauer, Professor Emeritus of Chemistry & Science at Virginia Tech, explains that for many “scientific truths”, “there are perfectly competent and well informed scientist who disagree on the basis of good evidence with what everyone else believes, and that this evidence and the arguments offered by these dissenters is simply ignored by their supposed peers, who seek to enforce an orthodoxy instead of assessing all the evidence with an open mind.” Bauer, Henry “Dogmatism in Science and Medicine

The criminal court system is far more intellectually honest than much of the scientific community. Criminal justice issues are subject to cross examination in a public forum, now, try getting a scientist to defend their views in a public and most will only show up if the opposition still believes the earth is flat. In criminal law, when several judges disagree, sometimes the Supreme Court will step in to resolve the dispute, and the entire process is open to the public. Every piece of evidence, every appellate brief, every oral argument. So today, we’re going to examine one of many disagreements percolating in Florida’s criminal courts regarding the popular criminal charge of driving while license suspended or revoked (DWLS).

At first glance, an arrest for driving while license suspended implies that the citizen at one time possessed a valid driver’s license that has since been suspended or revoked. But many folks in Florida have never had a driver’s license to begin with, and yet they still end up getting arrested for driving on their suspended (nonexistent) license. Should a person who has never had a license be convicted of driving on a suspended license? Florida courts disagree on this issue, so let’s begin the analysis with a (bad) case out of the Second District Court of Appeals, Carroll v. State, 761 So. 2d 417 (Fla. 2nd DCA 2000).
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IMG_1087.JPGForgive me for stating the obvious, but a criminal record will hurt your employment opportunities. A petit theft charge, for example, will limit job opportunities in retail stores because most retail stores suffer the majority of their losses at the hands of their employees–so these stores prefer to hire someone with a record of driving on a suspended license or marijuana possession, rather than theft.

And, while theft charges can put a dent in things, being a sex offender absolutely crushes any hope of ever being employed again. Period. Not a dishwasher (not that there’s anything wrong with that). Not flipping burgers, rolling burritos–nothing. Not only can sex offenders not find employment (double negative? Maybe not), good luck finding a place to live that isn’t within a 1000 feet of a school or playground. I’ve seen city’s set up playgrounds just to drive out sex offenders–so much for liberty and freedom to travel.

It should come as no surprise that the bleak employment prospects of sex offenders also translate into a life of living under bridges, and having no money (redundant, I know). To add insult to injury, when a sex offender moves from sleeping under one bridge to sleeping under another bridge, this change of address requires government intervention. You anti-government folks (me?) should be jumping up and down when the government tacks on requirements to a citizens’ movements once they’ve completed their prison time and probation.

So, a sex offender is required to do two things within 48 hours of any sort of overnight movements. First, Florida Statute 943.0435 requires the offender to register his change of address with the local sheriff’s office. The sheriff’s office will photograph the offender, take down the new address, and take fingerprints. Now, when I say change of address, I don’t mean the kind of change of address that we free citizens think of. For example, this past weekend my significant other and I drove down to Cedar Key for several days. That trip to Cedar Key would be a “temporary change of address” requiring fingerprints, new pictures, the whole nine yards in both locations–the place that I’m leaving and Cedar Key. Sounds un-American, right? All of this for folks that have already paid their debt to society, served their prison time, served their probation time, and served their Jimmy Ryce Act involuntary hospitalization for treatment (many of my clients who have endured being Jimmy Ryce’d find it worse than prison, but that’s a story for another day).

[PHOTO: I took this shot in St. Croix, just over a year ago, it’s one of the many places I imagine my self sitting there and doing nothing]
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