West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

In the recent case of Virginia v. Moore, the United States Supreme Court ruled that the police did not violate the fourth amendment's prohibition against unreasonable search and seizures when they arrested a man in Virginia based upon probable cause but prohibited by Virginia state law.  The Supreme Court also ruled that the police did not violate the fourth amendment when they searched the arrested man and found cocaine.

The following synopsis of Virginia v. Moore can be found at Williamette Law Online:

"In February 2003 David Moore (Moore) was arrested for driving with a suspended license. Upon a search incident to arrest, police found 16 grams of crack cocaine in his vehicle. Moore filed a pre-trial motion to suppress the evidence discovered during the search, claiming the search violated his Fourth Amendment rights. Under Virginia law, driving without a license is generally not an arrestable offense. Moore argued that because state law only authorized police to issue him a citation, the search of his vehicle was incident to citation, which is not allowed under the Fourth Amendment. The trial court denied Moore’s motion and he was convicted after a bench trial. The Virginia Supreme Court eventually reversed the conviction, adopting Moore’s reasoning that the Fourth Amendment does not permit search incident to a citation. The United States Supreme Court (the Court) reversed, upholding the conviction. The Court determined that the founders' did not intend the Fourth Amendment to incorporate state arrest rules. Balancing the invasion of Moore’s privacy with the promotion of legitimate governmental interests, the Court held Moore’s arrest was constitutionally reasonable because the arresting officer had probable cause."

Florida statute section 901.15 governs when the police may arrest a person without a warrant.  In Florida, it is illegal for the police to physically arrest someone for a misdemeanor crime like trespass or shoplifting unless an officer actually sees the crime occurring.  Prior to Virginia v. Moore being decided, evidence seized as a result of an illegal arrest would have (or at least should have) been suppressed (or thrown out of court) by a judge here in Florida.  However, based upon the Supreme Court's ruling in Virginia v. Moore, it appears that that is no longer true.

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1.  What do police officers look for before stopping  a driver who they think might be intoxicated?

According to the National Highway Traffic Safety Administration, some of the things that police officers should look for include:

• Driving more than 10 miles below the speed limit
• Almost striking another car on the road
• Weaving within one's lane of traffic
• Erratic braking
• Driving at night with headlights off

2.  What should I say if I'm stopped by an officer and he asks me if I've been drinking?

Because it is not illegal under Florida DUI law to drink and drive, it is alright to tell a police officer that you've been drinking.  However, be careful not to say that you had only one or two beers if you actually drank more than that, the reason being that the breath-testing machine may later prove that you drank a lot more than just one or two beers.

3.  The police didn't read me my Miranda rights when they first stopped me.  Can I get my case dismissed?

If only it were that easy.  The police have to give you your Miranda rights only when you are in custody and being questioned.  The United States Supreme Court has also ruled that a person is not typically in custody during a routine traffic stop.  Therefore, the police are not ordinarily required to give you Miranda warnings when first speaking with you.

4.  Will my driver's license be suspended if I refuse to do the DUI exercises by the side of the road?

No.  Refusing to do the DUI exercises is different than refusing to blow into the breath-alcohol testing machine.  If you refuse to blow into the breath-alcohol testing machine, Florida law states that your license will be suspended for 1 year for a first refusal or 18 months if your license has been previously suspended for refusing to blow into such a machine.

5.  Do I have the right to a blood-alcohol test in addition to a breath-alcohol test after I am arrested for DUI?

The Florida Supreme Court has ruled that a police officer must render reasonable assistance in helping an individual arrested for DUI get a blood-alcohol test if the individual requests such a test.  If the officer does not do that, then the results of the breath-alcohol test should not be presented to the jury at trial.

6.  What is the 20 minute rule?

According to the Florida Administrative Code, the results of breath-alcohol tests are not valid unless the arresting officer or the person administering the test can reasonably insure that the person who is asked to blow into the machine did not take anything by mouth or did not regurgitate for at least 20 minutes before blowing into the machine.  If this rule is not complied with, then the results of the breath-alcohol test should not be presented to the jury at trial  nor should DMV suspend the person's driver's license.

7.  Do I have to go to jail if I am convicted of DUI?

According to Florida DUI law, a judge has the authority to send someone convicted of DUI to an alcohol treatment program or drug treatment program rather than to jail.

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Just in case you thought that police beatings stopped with Rodney King, check out this videotape recording which shows numerous Philadelphia police officers pulling suspects out of a car and then repeatedly kicking and hitting them while at least one police dog stands nearby, straining at his leash.

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According to the Death Penalty Information Center, Texas leads all other states in the total number of individuals that it has executed since 1976.  The breakdown is as follows:

1.  Texas:  405

2.  Virginia:  98

3.  Oklahoma:  86

4.  Missouri:  66

5.  Florida:  64

6.  North Carolina:  43

7.  Georgia:  40

8.  Alabama:  38

9.  South Carolina:  37

10.  Louisiana:  27

11.  Arkansas:  27

12.  Ohio:  26

13.  Arizona:  23

14.  Indiana:  19

15.  Delaware:  14

16.  California:  13

17.  Illinois:  12

18.  Nevada:  12

19.  Mississippi:  8

20.  Utah:  6

What is particularly troubling about the fact that Texas has executed more than four times the number of individuals executed by Virginia--the second state on the list--is that Texas currently accounts for fourteen percent of the estimated 216 DNA-based exonerations in the United States.  And Dallas County, with seventeen exonerations from genetic testing, tops every other local jurisdiction in the U.S. since 2001.

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Unfortunately, we are often inclined to automatically believe the accusations that others make without first checking out their story.  The inevitable result is that we are sometimes duped into believing false accusations.  When false accusations are made in the criminal justice system, the consequences can be devastating.  Fortunately for a man in Texas, an accusation of murder lodged against him by his wife was discovered to be false before he had to stand trial.  He was fortunate.  Some are not.  What follows is a brief recounting of his story.

Tracy Denise Roberson convicted of involuntary manslaughter

7:21 PM CDT, May 2, 2008 

FORT WORTH, Texas - A Texas woman who caused her lover's shooting death by falsely crying rape was convicted Friday of involuntary manslaughter.

Tracy Denise Roberson, 37, cried a bit when the verdict was announced. The punishment phase was set for Monday, and she faces two to 20 years in prison.

In late 2006, Darrell Roberson came home from a late-night card game to find his scantily clad wife with another man in a pickup truck in the driveway. Tracy Roberson was with her lover but cried rape, and her husband fired four shots into the truck as Devin LaSalle drove off, killing him.

Darrell Roberson initially was arrested, but a murder charge was later dropped and a grand jury indicted Tracy Roberson instead.

During her three-day trial, defense attorneys called no witnesses but blamed LaSalle's death on Darrell Roberson's jealousy and rage.

But prosecutors placed all the blame on Tracy Roberson, showing evidence of the affair with LaSalle, 32, and a text message in which she invited him to her house that evening.

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According to Florida law, the term "drug paraphernalia" includes many different types of devices that can be used to consume or to make controlled substances such as cocaine, marijuana, and hashish.  This article contains a list of 19 such devices.

1.  Scales and balances used to weigh or measure controlled substances.

2.  Blenders, bowls, spoons, and mixing devices used to make controlled substances.

3.  Capsules, balloons, and envelopes that are used for packaging small amounts of controlled substances.

4.  Syringes and needles that are used to inject controlled substances into the human body.

Objects used or designed for use in ingesting or inhaling controlled substances into the human body including:

5.  Metal or wooden pipes.

6.  Water pipes.

7.  Smoking masks.

8.  Roach clips.

9.  Miniature cocaine spoons.

10.  Carburetor pipes.

11.  Electric pipes.

12.  Air-driven pipes.

13.  Bongs.

14.  A "cracker" which is a small metal or plastic device that contains a pin that may be used to expel nitrous oxide from a container.

15.  A "whip-it" which is a device that may be used to expel nitrous oxide.

16.  A tank.

17.  A hose or tube.

18.  A 2-liter-type soda bottle.

19.  Duct tape.

Given the fact that I drink quite a bit of soda from 2-liter soda bottles, number 18 on the list causes me a little concern.

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