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

          There is a procedure in Florida for expunging a minor's criminal history record.  That procedure, which is contained in Florida statute section 943.0582, differs in at least three important respects from the procedure that exists for expunging the criminal record of an adult.  (The procedure for expunging an adult criminal history record is found in Florida statute section 943.0585.)

          1.  A minor has to submit her application to the Florida Department of Law Enforcement for expunction no later than 6 months after completion of a diversion program, whereas there is no time limit for an adult who is applying to have her criminal history record sealed or expunged;

          2.  An adult can have a criminal history record sealed or expunged for various felony or misdemeanor offenses, whereas a minor can have a criminal history record expunged only for a nonviolent misdemeanor that does not qualify as an act of domestic violence;

          3.  A minor who has a criminal history record expunged may later apply to have an adult record sealed or expunged as well, whereas an adult can have only one record sealed or expunged.

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          Jeff Norman of The Huffington Post recently emailed me the following question:

          "What makes it legal for police to detain a DUI arrestee until he or she is 'sober,' when the only purpose of the detention is to maintain safety, and there is no intent to bring the arrestee before a judge for arraignment?  I’m not questioning anything about the arrest or booking process; I’m only asking about the extended detention (usually an overnight jail stay) that begins when the booking process has been completed.  I believe such detentions are illegal, despite conventional wisdom which suggests otherwise.  Your thoughts?"

          What Jeff is referring to is Florida statute section 316.193(9) which states:

          "A person who is arrested for [DUI] may not be released from custody:

          (a) Until the person is no longer under the influence of alcoholic beverages, any chemical substance . . ., or any [controlled] substance . . . and affected to the extent that his or her normal faculties are impaired;

          (b) Until the person's blood-alcohol level or breath-alcohol level is less than 0.05; or

          (c) Until 8 hours have elapsed from the time the person was arrested."

          Florida's Fifth District Court of Appeal dealt with Jeff's question in the case of State of Florida v. Atkinson.  In Atkinson, one of the issues that the Court was asked to decide was whether putting someone in jail for 8 hours after he is arrested for DUI is a violation of the double jeopardy clause of the Florida Constitution and the United States Constitution.  In other words, is a person who is jailed for 8 hours after being arrested for DUI being punished twice if he is subsequently prosecuted for DUI?  If the answer is yes, then such a procedure is a double-jeopardy violation, and the prosecuting authority should not be permitted to prosecute that person for DUI.

          The Atkinson Court did not agree, however, that locking someone up for 8 hours after being arrested for DUI and later prosecuting that same person for DUI is a double-jeopardy violation.  The Court reasoned that:

          "The practice of detaining an intoxicated driver is to protect that driver and the community from an unreasonable danger imposed by drunken driving.  It is a situation analogous to the detention of persons under quarantine orders wherein a threat is posed to the public health and safety. . . .  There is no claim or indication in this case that the statute is being arbitrarily enforced in an unconstitutional manner."

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          In spite of all the progress that has been made during the last several decades in the area of race relations in the United States, a recent study suggests that many white Americans still hold negative views about blacks. 

          The Associated Press, in conjunction with Yahoo News and the Political Science Department at Stanford University, conducted a poll about racial prejudice among white Americans and its effect upon the (yet undecided) presidential contest between Barack Obama and John McCain.  Although the poll's findings were examined with an eye towards the upcoming election, some of its findings, if valid, would seem to have profound implications for the day-to-day workings of the American criminal justice system as well.

          Some of the poll's findings were that:

• 40% of all white Americans hold at least a partially-negative view toward blacks;
• When given a choice among several positive and negative adjectives that might describe black people, 20% of all whites said that the word "violent" strongly applied, 29% agreed with the adjective "complaining," 22% agreed with the word "boastful," 13% "lazy," and 11% "irresponsible;"
• When asked about positive adjectives, white people were more likely to equivocate than to choose a positive adjective to describe blacks;
• Among white Democrats, one-third picked a negative adjective to describe black people;
• Although about 20% of independent voters described blacks as "smart" or "intelligent," more than one-third picked the adjective "complaining" and 24% described blacks as "violent."
• Almost four in ten white independent voters agreed that blacks would be better off if they tried harder.
• The survey also used images of black and white faces to measure prejudices that are so deeply ingrained that many whites may not realize they have them.  That particular test revealed that more than half of whites have more negative feelings towards black people than they do towards white people.

          During the past eighteen years that I have been a practicing criminal defense lawyer, I have represented many black people who have been charged with such violent crimes as battery, aggravated battery, assault, aggravated assault, manslaughter, and murder.  It is sobering indeed to think that some of the jurors in those cases believed that my clients were violent (and therefore guilty??) before they knew anything at all about either the particular client or the facts of his particular case.

          Also, given the fact that many of those who work in the criminal justice system are themselves white, one must wonder whether at least some white judges, some white prosecutors, and yes, even some white defense lawyers, hold racially-biased attitudes towards those black individuals who stand accused of committing crimes.

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          In many cases in which an individual is charged with committing the crime of aggravated battery, the weapon that is used is a knife or a gun.  However, it is also possible to commit aggravated battery using a car.

          In the case of Rosa v. State of Florida, the Third District Court of Appeal stated that in order to convict someone of aggravated battery who rams his vehicle into another vehicle, the prosecutor must first prove beyond a reasonable doubt that the occupants of the rammed vehicle were jostled, injured, had to brace themselves for protection against the impending impact, or were moved about within the vehicle during the crash.

          In the Rosa case, police were led on a high-speed chase following a reported armed robbery.  The car that the police were chasing ultimately crashed against both a guardrail and a patrol car.  The officer driving the rammed patrol car was unbuckling his seat belt when he saw the getaway car traveling in reverse.  The resulting impact damaged the bumper of the patrol car, cracked a turn-signal light, and caused a strobe light to fall off the dashboard.  The impact also caused the door of the patrol car to strike another officer which resulted in that officer's arm and shin area being injured.

          The court of appeals concluded that because no evidence was presented that the officer inside the damaged patrol car was jostled, injured, moved, or had to brace himself in order to protect himself against the impact of the getaway vehicle, the driver of the getaway vehicle was not guilty of aggravated battery.

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          In the case of C.A.C. v. State of Florida, the Second District Court of Appeal was asked to decide whether a fork is a deadly weapon in a case in which the accused individual was charged with committing the crime of aggravated battery.

          The accused, who was ten years old, stabbed another child two or three times in the back with a fork which resulted in the other child having swelling, scratches, and puncture marks.  The child who was stabbed did not receive medical treatment for his injuries.

          The appellate court first had to determine if the victim in C.A.C.'s case suffered great bodily harm since a person commits aggravated battery if he causes great bodily harm while committing the crime of battery.  The appellate court ruled that because great bodily harm is more than simply moderate harm such as mere bruising, the victim in this case did not suffer great bodily harm.

          However, the court still had to decide whether the fork that was used in this case qualified as a deadly weapon since a person can also commit aggravated battery if he uses a deadly weapon.  The court first noted that forks are designed to be used for eating and not for causing great bodily harm.  Furthermore, the fork in this particular case did not cause great bodily harm; it instead caused swelling, scratches, and puncture marks which did not require medical treatment.

          Accordingly, the appellate court found that the evidence was insufficient to convict C.A.C. of aggravated battery.  However, it was sufficient to convict him of simply battery.

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