"I was only drinking at red lights and stop signs, officer!"

I'm sure you heard that creative defense from the Florida man out in Vero Beach when he was stopped for suspicion of DUI. He was stopped after a woman called police to complain about him continually hitting her bumper with his car while waiting in line at the McDonald's driver thru. The police officer showed up and saw a bottle of Jim Beam in the passenger seat next to Earle Stevens, Jr., the driver. According to the officer, as reported in the Orlando Sentinel, the questioning then went something like this: 

"I asked him if he was drinking in the vehicle and he stated, 'No.' When I asked him where he was drinking he stated, 'Stop signs.' He further explained that he was not drinking while the car was moving and only when he stopped for stop signs and traffic signals." 

Thodonal/Getty Images/iStockphoto

Unfortunately for Mr. Stevens, that defense won't hold up even in Florida. While I'm sure the Florida legislators didn't have Mr. Stevens in mind when they wrote the Florida's DUI law, they certainly considered his defense. The Florida statute, located at section 316.193, states: 

"A person is guilty of the offense of driving under the influence...if the person is driving or in actual physical control of a vehicle within this state...."

While there was a witness to Mr. Stevens' driving (the woman he kept running his car into), assume the officer just showed up and saw him sitting in his car with a bottle of Jim Beam. He didn't see Mr. Stevens driving the car, but only came upon him allegedly under the influence and next to an open bottle. This would be a situation where the prosecutor must show that Mr. Stevens was in or on the car and had the capability (or practical ability) to drive it. 

Using the alleged facts of this story (and not commenting on whether he is guilty or not), Mr. Stevens' defense fails in many ways. First, even though he was drinking while stopped, he was still driving while under the influence. But even if Mr. Stevens didn't talk to the officer and admit to having those drinks while stopped, the officer found him in the vehicle, stopped, apparently under the influence of alcohol and with an open bottle of Jim Beam next to him. While a jury could certainly acquit Mr. Stevens (whether it be a lack of other evidence or based on the inherent jury nullification power), the State could proceed with its case based on those facts. 

In fact, there have been cases where actual physical control was found when: a person was lying down in the front seat of a car parked in the parking lot while the engine was off and cold but had keys in the ignition; or if a person was slumped behind the wheel of a parked car and the keys were in his hand; and where a person was found in a stopped car where the keys were not in the ignition but somewhere else in the passenger compartment. In one situation, though, it was found that while the driver passed out in the car, but with the keys outside on the hood of the car, there was not enough for the case to proceed to the jury.

The idea behind actual physical control, according to the legislature, was to prevent impaired people from getting behind the wheel of a car. Unfortunately, an impaired person trying to do the right thing by not driving at all and sleeping it off in the car could still be arrested and prosecuted for DUI. The argument from the State would presumably be that the driver could still drive away while impaired or even that the driver drove impaired to that location and stopped the car. And typically, in these cases of actual physical control, it will be left for the jury to decide. 


George C. Palaidis is a criminal/DUI defense and personal injury attorney practicing in Miami, Fort Lauderdale, and the South Florida region.

Your Friday Funnies, courtesy of Senate Judicial Hearings

You'll know doubt hear, if you haven't already, about the confirmation hearing for federal judicial nominees today that included some stark revelations for one. 

Sen. John Kennedy, a Republican from Louisiana, began his portion of the questioning by asking the group if any had ever tried a case to verdict. One nominee, Federal Election Commissioner Matthew Spencer Petersen, was the lone person to indicate that he hadn't. 

Sheldon White/Twitter

At this point, Sen. Kennedy directed essentially the remainder of his questioning at Petersen and his qualifications, or lack thereof, to be the next U.S. District Court judge for the District of Columbia. 

You can watch the 5-minute video clip here. And it id definitely worth the view. 

Let me be clear, I can't speak for Petersen's qualifications in his present job, and I'm sure he is a fine lawyer. He is, however, not a trial attorney (by his own admission). That is a problem because he is nominated to become a trial court judge in a very busy court. 

When asked if he knew about a motion in limine (which, for our non-lawyers, is a very common motion filed and heard at the start of trials), Petersen fumbled through with his response and admitted his "background is not in litigation." 

As a trial court judge here in Fort Lauderdale once said, "When people begin their response to a question without giving the answer, I know they don't know the answer."

After being asked again about the motion in limine, Petersen responded "I would probably not be able to give you a good definition right here at the table." 

Other essential trial qualifications that Petersen lacked: Never tried a civil or criminal case; never tried a bench trial; he hasn't taken more than a couple depositions on his own, if that; he hasn't reviewed the Federal Rules of Civil Procedure or Rules of Evidence since at least law school; and he is not aware of the Daubert standard. All of these are essential for a trial attorney and trial judge.

The exchange between Sen. Kennedy and Petersen is brutal. Thankfully Sen. Kennedy revealed these issues. No one, regardless of their political persuasion, would want a judge hearing and presiding over a trial in their case who lacked such fundamental qualifications.  

George C. Palaidis is a criminal defense and personal injury attorney practicing in Miami, Fort Lauderdale, and the South Florida region.

Standing Your Ground...on the Tennis Courts?

Last night I came across an interesting article out of Miami regarding a Stand Your Ground case involving a tennis instructor and a 5 year old student. Yes, that's right, the adult tennis instructor is invoking Stand Your Ground (SYG) immunity in a case where he is alleged to have hit the young boy with the boy's tennis racquet. As always, though, there is more to the story and an actually viable claim for SYG immunity.

According to the defendant, Osmailer Torres, and his attorney, Eduardo Pereira (whom I know and have worked with and consider a fine attorney), the boy had a history of "various violent altercations" against the other tennis students. In this situation, the boy was the "initial aggressor" who, after being separated from the other kids, lifted his racquet "in the air and was poised to strike again against the other students and Mr. Torres." 

In the process of taking away the child's tennis racquet, Torres hit the child causing a bruise on the right arm and a lump on the eyebrow. Torres and his attorney claim it was inadvertent as he tried to protect the other children, while the State Attroney's office claims video of the incident doesn't show the boy aggressively approaching any of the other students. 

Here's the nuance in SYG that you may not have seen before: the law allows a person to use force against another if that person reasonably believes the force "is necessary to defend himself or herself or another against" the imminent use of unlawful force. See, Fla. Stat. § 776.012(1). In other words, a person can use force in defending others against another attacking them. 

So while it may not seem reasonable that Torres defending himself from a 5 year old swinging a tennis racquet, it is certainly reasonable that he was defending other children from the actions of this boy and in the process of using force to remove the racquet from the boy's hands may have caused some injuries. According to Assistant State Attorney Gabriela Plasencia, however, the State doesn't believe Torres was acting under any imminent threat of danger to himself or others based on the video.

The case certainly changes once more of the facts are known and that the SYG law protects those who also defend others.  

The hearing on the SYG motion is set early next year before Judge Oscar Rodriguez-Fonts. It will be interesting to see what the happens at the hearing.

George C. Palaidis is a criminal defense and personal injury attorney practicing in Miami, Fort Lauderdale, and the South Florida region.

A Primer on Probation, Courtesy of Meek Mill

I’m sure we all woke up this morning shocked to hear that rapper Meek Mill had been sentenced to prison time following separate arrests while on probation. While some of you may not be aware of who Meek Mill is (previously with Miami-based rapper Rick Ross’ Maybach Music Group and now with Jay-Z’s Roc Nation), what happened to him on probation is what I want to discuss.

Photo: Matt Rourke, AP

Arrested and charged on drug and weapons charges back in 2008, Mill took a guilty plea that resulted in eight months prison followed by five years of probation.  That’s where his problems really begin. Probation is extremely difficult for anyone to do, let alone someone in the limelight.

In Florida, for example, a judge can sentence a defendant to an amount of time of probation up to the maximum possible sentence the law allows on the charge. For example, if someone is charged with a third degree felony which is punishable by up to 5 years, the judge could sentence the defendant to 5 years of probation.

While on probation, many limitations and requirements are placed upon the defendant, which often lead to violations of probation. For example, the probationer (someone on probation) must check in with the probation officer once a month, undergo drug testing, not leave the county of residence without prior permission, pay the costs of testing and probation, usually attend classes related to the crime, and of course not commit any new law violations. A violation of any one of these (or any other additional condition the judge adds) can expose the probationer to the maximum sentence allowed under the law.

A probationer on one year of probation for a third degree felony would be facing up to five years in prison on a violation for any of those terms of probation. And the time served out on probation doesn’t count towards that prison sentence.

Probation, though, also gives a judge a great deal of flexibility. A judge can do what the judge initially did in Mill’s case: after he violated by travelling without permission, the judge extended the probation to 10 years (and added another 5 months in prison).

Mill continued having issues while on probation and the judge, by my view, was a little more lenient than others with how he handled it. In March Mill was arrested for a fight at an airport, and in October for reckless driving. Though the March charges were dropped, he pleaded guilty to the reckless driving charge. Those two incidents were all Judge Genece Brinkley needed.

As Mill’s case shows, a judge can still find that there has been a violation of probation even if the criminal charges on the new law violation are dropped. All a judge needs is probable cause that the new violation occurred (the same standard to make an arrest) and the judge can modify, extend, or revoke the probation and, in the case of revocation, sentence the probationer to a term of time in prison. Mill’s guilty plea to the reckless driving also didn’t help, but wasn’t the sole reason.

This is why probation is often called “prison on layaway.” An offer is made of little to no jail time, followed by so many years of probation. The probationer, to quote Meek Mill, probably thinks "Sounds like a bargain to me."1 

And as often happens, some violation down the road exposes the probationer to the maximum incarceration time allowed by statute which s/he thought was going to be avoided by taking the initial plea offer. That appears to be the case now with Mill. The judge worked with him through all of the previous violations, but ultimately revoked the probation and sentenced him to 2-4 years in prison.

That’s why it’s important, if you violate probation, to have your attorney reach out to the probation officer and state attorney to begin negotiating out the best possible resolution. It is better to resolve the violations if you can before getting in front of a judge at a violation of probation hearing, because at least you have a chance to bargain to get a result you can handle. 

1 Meek Mill. "I'm Leanin (Intro)." Dreamchasers 3, Maybach Music Group and Dream Chasers Records, 2013. 

George C. Palaidis is a personal injury and criminal defense attorney practicing in Miami, Fort Lauderdale, and the South Florida region.

"Just give me a lawyer dog cause this is not what's up"

A Louisiana Supreme Court ruling from last week is making the rounds on social media and news outlets over a request for a "lawyer dog." As can be expected, there is more to the story than meets the eye, and is somewhat convoluted. 

First, the shocking part of it. In a 6-1 decision in State of Louisiana v. Warren Demesme, the state supreme court denied a writ of certiorari (I'll explain that later) regarding the denial of the defendant's motion to suppress. The defendant, Warren Demesme, was interrogated twice by police regarding sexual misconduct with minors. During the second interrogation, after having been read his Miranda rights, he requested an attorney from police. At that point, the police should have stopped the interrogation and obtained an attorney for him. They didn't, he continued to talk, and those statements are at issue in the trial. Demesme's attorney filed a motion to suppress his statements (keep them out of the trial) because the police continued to interrogate him after he asked for a lawyer. That motion was denied by the trial court for reasons I have yet to discover. 

Now, the 'fun' part in understanding how this issue got to the state supreme court while the trial case was still pending. The legal procedures in Louisiana are different than those of most other states, including Florida. This post then is the result of a brief crash course I undertook and if I am wrong in any way, I will gladly accept any information from those 'in the know.' 

After the trial court denied the motion, Demesme's attorney filed an application for a 'supervisory writ' to the Court of Appeal for the Fourth District, asking for a review of the trial court's denial of the motion to suppress. This is a discretionary review, meaning the court of appeal is free to review it or not, and the court of appeal's denial is merely a decision not to exercise its jurisdiction at that time. The issue could still be brought up for review when the final judgment is on appeal. This type of 'supervisory writ' relief isn't available in Florida, and a defendant in a similar situation here would have to wait until and unless he was convicted at trial to appeal the trial court's ruling on the motion to suppress. 

The denial of the 'supervisory writ' was then appealed to the state supreme court based on an application for writ of certiorari. The defendant was asking the supreme court to review the denial of the supervisory writ, even though no opinion was given by the court of appeal for denying it. 

The state supreme court denied the application for the writ, without opinion, and the matter would have otherwise been left at that. The case against Demesme would then proceed to either a plea deal or trial and, if trial, the issue regarding the motion to suppress could again be appealed if he was convicted. 

But for some reason, Justice Scott Crichton wrote a concurring opinion stating he agreed with the denial and then gave his own reasons for denying the application for the writ.

It is his belief, he says, that "the defendant ambiguously referenced a lawyer— prefacing that statement with 'if y’all, this is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.'" 

The justice seriously wants people to believe that Demesme made an "ambiguous and equivocal" reference to a "lawyer dog." 

The general law on this issue is that if a criminal defendant makes an ambiguous or equivocal reference to an attorney and a 'reasonable' officer understood that the defendant might be invoking his right to an attorney, the interrogation doesn't need to stop. That wasn't the case with Demesme.

While it isn't clear where Justice Crichton obtained the transcribed quote from (perhaps a court reporter from the hearing transcribing the video or his own transcription of the video if he had access to it on appeal), it is a strained belief to say that anyone of a reasonable mind would think that a criminal defendant would be asking for a dog trained in the art of the law and licensed by the state bar association. One doesn't need a comma between 'lawyer' and 'dog,' nor have the word dog spelled 'dawg,' to know that Demesme was unequivocally requesting an attorney during the interrogation. 

What I believe Justice Crichton has done, though, is telegraph a message to the lower courts in this case and perhaps others that he will view statements like these very liberally in terms being ambiguous requests for an attorney. Based on the limited information in the concurring opinion, there is limited legal, precedential applicability on future cases. But Justice Crichton wrote more than was required, with an absurd result from flawed reasoning. With his opinion, the lower courts could now have tacit cover for denying motions to suppress based on this issue knowing that at least one justice has their back.   

While not fake news, everything you've likely heard about the case has been highly inaccurate. The state supreme court didn't deny an appeal based on the request for a 'lawyer dog' and there is no conviction that has been sustained. The case against Demesme will proceed and, worst case scenario, he'll have another crack at the denial of his motion to suppress. I'd love to hear, though, what the practitioners in Louisiana have to say about Justice Crichton's peculiar concurrence and what effect it might have in other cases and other trial courts. 

George Palaidis is a personal injury and criminal defense attorney practicing in Miami, Fort Lauderdale, and the South Florida region.

Stand Your Ground Immunity Isn't as Immune as You Thought

You might determined immune from prosecution for standing your ground, but you can still be sued. That’s the message from the Florida Supreme Court last week in the newest ruling deciphering Florida’s Stand Your Ground law. In Ketan Kumar v. Nirav C. Patel, SC16-1457, the Court held that immunity granted in a criminal case based on the Stand Your Ground law does not also confer immunity in the related civil case.

The facts follow the general pattern of most in Stand Your Ground cases. Without provocation, Kumar attacked Patel at a Tampa bar. In response, Patel struck Kumar in the head with a drinking glass, which shattered on impact. Patel was charged in criminal court where he then filed a motion to dismiss based on Stand Your Ground immunity. The criminal court judge granted immunity and dismissed the case after an evidentiary hearing on the motion where witnesses testified as to what occurred.

While the criminal case was pending, Kumar filed a civil lawsuit against Patel seeking monetary damages for battery and negligence. The civil trial judge, though, decided not to follow the criminal judge’s immunity determination and ordered a separate Stand Your Ground evidentiary hearing in the civil case, resulting in Patel’s appeal. The Second District Court of Appeal, in Patel v. Kumar, held that the immunity determination by the criminal court judge conferred immunity in the civil case also, thereby preventing the civil case from proceeding.

The Supreme Court took the case up because it conflicted with the Third District Court of Appeal in Miami-Dade County, which had previously held in Professional Roofing & Sales, Inc. v. Flemmings that an immunity determination by a criminal court judge did not apply to the related civil court case, allowing the civil case to proceed and a separate hearing on immunity before the civil judge.

The Supreme Court, siding with the Third District, held that the immunity determination by a judge in one case did not automatically confer immunity in the other case. The decision, written by Justice Alan Lawson, listed many factors, of which all were largely based on ambiguities in the statute and lack of clarity from the Legislature. In analyzing the statute, the Court determined that the Legislature implied there would be separate determinations in civil and criminal courts when it allowed for an award of attorney’s fees and costs in a separate civil proceeding. The Court also noted that the 2017 amendment of the statute created different burdens of proof for determining criminal and civil immunity, again implying separate determinations without explicitly saying so.

The Court also found that the Legislature did not expressly abrogate the common-law doctrines of res judicata (claim preclusion) or collateral estoppel (issue preclusion), and thus each still applied to a determination on Stand Your Ground Immunity. To the non-legal readers, res judicata and collateral estoppel essentially stand for the premise that a claim or issue that has been decided by one court can’t be brought up again and re-litigated when certain factors are met. Those factors include the same issue or thing being litigated over, “mutuality of parties,” and a full and fair opportunity to litigate the issue in the prior proceeding.

A key element in both res judicata and collateral estoppel that is critical to a Stand Your Ground case is the element of “mutuality of parties.” Unless the same parties participated in the prior litigation that resulted in the judgment or determination, the determination isn’t binding in any other litigation. The element of “mutuality of parties” thus requires both Patel and Kumar be parties in the criminal case AND the civil case. In the criminal prosecution, though, the State of Florida, not Kumar, was the opposing party to Patel. Kumar was of course the witness/victim, but he was not an actual party to the criminal prosecution. Because of that, the criminal determination as to immunity could be re-litigated in the civil case since the element of mutuality of parties was not met.

Both the Second and Third Districts make compelling arguments in their opinions and I certainly recommend reading both. It seems clear to me, after reading the Supreme Court’s opinion, that the Court is not impressed with the Stand Your Ground law as drafted. The opinion could almost be read as a guide to the legislature in how to revise the law in order to resolve the constant issues that have arisen regarding the law due to its ambiguities.

As a result, though, a party in Florida must now file and litigate separate motions seeking immunity under the Stand Your Ground law in both the criminal and civil case, which could (and likely will) lead to opposing immunity determinations. Look for the Legislature to revisit this issue next session.  

George Palaidis is a personal injury and criminal defense attorney practicing in Miami, Fort Lauderdale, and the South Florida region.

Do I really need lights on my bicycle?

So one day after work you purchased a commuter bicycle from the local bike shop and decided to take it for a spin around the neighborhood just as the sun is going down. Or you’ve got a top of the line road bike and decided to take off the reflectors to lighten the bike, figuring the rechargeable USB lights on either end of the bike are all you need. In either instance, you’d be breaking the law in Florida.

The Basics

For starters, all new bicycles sold in the U.S. must have reflectors on the front and back of the bike, as well as the pedals and rims pedals. That’s federal law. What you do with those reflectors after you take the bike home is your business, and the laws of the state you live, and ride in, come into play.

Lights, Reflectors and Florida, oh my!

I recently came across an article on the internet discussing bikes and lights in Oregon, which was representative of most of the country. Florida, however, is a tad bit stricter when it comes to riding after sunset.

If you are riding between sunset and sunrise, a bicyclist must have a lamp on the front of the bike that emits a white light forward up to at least 500 feet. Generally, all commercially sold bike lights accomplish that requirement but must be purchased separately. Buying a bike right off the assembly line, so to speak, typically doesn’t have lights attached. Florida’s laws are much stricter than the US federal requirements. But this requirement is generally common across the states.

Where Florida differs with many states is in the rear of the bike. Florida requires not only a rear lamp/light that emits a red light for at least 600 feet, but it also requires a reflector. Many states don’t require a rear reflector. Many riders, myself included, have quickly ditched the reflectors once the bike gets home from the shop for a bike light and more space on the seat post for the saddle bag (probably to also to streamline and save some weight). Well, that is a big no-no in Florida. Unless that light also reflects, riding at night without a reflector is in violation with the law.

Remember, it's the law

Now if a law enforcement officer were to come across a cyclist at night with a light but not a reflector, he could stop and issue a citation to that rider. Under Florida law, the officer has the option to either issue a warning and safety brochure, or to issue a citation for violating these requirements. In my criminal defense practice, I’ve come across many clients who have been stopped by police enforcing these laws, so they aren’t to be taken lightly.  

So what are you to do if you just don’t have the space on your seat post? Why not the seat stay. Or even on your saddle bag, so long as it is attached to the bike. Though Florida law does allow for reflectors and/or lights to be on the rider, that is in addition to those on the bicycle itself. Also, Florida also allows the lights to be blinking or flashing (a recent change).

As I’ve already said, properly equipping your bicycle with the requisite lamps/reflectors for nighttime riding prevents you from being stopped and cited by police (and messing up that good time you’ve got going on Strava). But as a personal injury attorney, I’ve seen instances where insurance companies for automobile drivers attempt to blame the cyclist for causing the injury by not having the legally required lights and reflector. The insurance companies will try to deny any claim made by a cyclist, and it becomes a difficult fight to get you, the rider, the compensation that is owed for your injuries because of a crash with an automobile.

That’s why it’s important to have not only lights but a rear reflector while riding in Florida to make sure you are compliant with the law and protected in the terrible event you might be injured in a crash.

George Palaidis is a personal injury and criminal defense attorney practicing in Miami, Fort Lauderdale, and the South Florida region.

Court Rules Florida Uber Drivers are Contractors and Not Employees

Uber drivers in Florida are contractors and not employees, according to an appellate court ruling released today.

Florida’s Third District Court of Appeal, covering Miami-Dade and Monroe Counties, issued the ruling in the case Darrin E. McGillis v.Department of Economic Opportunity; and Rasier LLC, d/b/a UBER, 3D15-2758.

The Court heard the case on an appeal from a decision made by the Florida Department of Economic Opportunity, which also concluded that Uber drivers are not employees.

The issue arose when a Cutler Bay Uber and Lyft driver, Darrin E. McGillis, had a falling out with Uber, and the ride-sharing company terminated its relationship with him.

The Florida Department of Revenue sent McGillis notification classifying him as a former employee who could qualify for reemployment (unemployment) benefits. After an appeal was made by Uber and a hearing held, the Department of Economic Opportunity reversed the initial finding by the Department of Revenue and held that McGillis was actually an independent contractor and not entitled to reemployment assistance.

Judge Thomas Logue, writing for the Court, discussed the Department of Economic Opportunity’s ruling and the testimony provided at the hearing in coming to its opinion that Uber drivers are not employees in Florida.

In making its decision, the Court used Florida’s common law to distinguish whether there was an employee or contractor basis with Uber. First, it looked at the contract that prospective Uber drivers must agree to, which specifies that the driver is an intendent contractor and not an employee and thus not entitled to unemployment benefits. It also noted that while Uber provides additional insurance coverage for commercial operation of a vehicle, it doesn’t provide its drivers with other benefits such as medical insurance, vacation pay, or retirement pay.

The Court next considered other factors such as drivers are free to set their own schedule and area of operation, drivers own their own vehicles, and drivers are able to accept or reject requests at their will. A key fact the Court noted was that drivers are free to work for Uber’s direct competitors, such as Lyft, and switch between the two at their discretion.

The only factor that seemingly held any traction in favor of an employee relationship was that Uber had the power to deactivate a driver’s account under certain circumstances, effectively terminating the relationship between Uber and a driver. This wasn’t enough to persuade the Court, though, and it held that that factor alone doesn’t mandate that an employer/employee relationship exists.

Control, the Court reasoned, is confined by Uber to the results only and not to the means used to achieve those results.

As such, there exists a level of free agency that doesn’t exist at the employer/employee relationship, the Court affirmed the findings of the Department of Economic Opportunity that Uber drivers are contractors and not employees.

While this is the first such ruling to come out from the courts in Florida, other states such as California and Oregon have classified Uber drivers as employees under the basis that Uber couldn’t otherwise exist without its drivers. Each state has its own laws and methods for determining whether a person is an employee or contractor for state employment benefits so different results across the country can be expected. The federal government also has its own factors under the Fair Labor Standards Act, and there are already lawsuits filed by Uber drivers pending in federal courts.

As it stands today, the Third District’s ruling is controlling in Florida unless another district court of appeal rules otherwise, however based on the reasoning in the opinion I wouldn’t expect that to occur. On possible outcome, though, is that Uber could tweak its business model based on the Court’s opinion to bring it further within the safety of the contractor relationship, but that will remain to be seen.

George Palaidis is a criminal defense and civil attorney practicing in Miami, Fort Lauderdale and the South Florida region.

New Changes to Florida's DUI Laws Targeting Marijuana Use?

Last month I discussed the risks related to driving under the influence of marijuana in light of the recently passed Florida Medical Marijuana Legalization Initiative, or Amendment 2. It was only a matter of time then for the Florida Legislature, as with other states, to begin drafting new laws specifically targeting marijuana use.

As I mentioned before, in order to be arrested and convicted for Driving Under the Influence (DUI) or Boating Under the Influence (BUI), the prosecutor to must prove that the driver’s breath/blood alcohol level was above a 0.08 (using either a blood test from a blood sample or from a breathalyzer machine using a breath sample), or prove that the person was under the influence of alcohol/chemical substance/controlled substance so that their normal faculties are impaired. Also, if an officer had “reasonable cause” to believe that the driver was under the influence of a controlled substance, they can request a urine sample from the driver in order to show the presence of any controlled substances in the driver’s system.  

Just last week though House Bill 237 was filed in the Florida House of Representatives titled “Driving Under the Influence of Drugs (DUID) Act,” by Democratic Representative David Silvers of West Palm Beach. This law would add an additional method to assist prosecutors in securing a conviction for DUI/BUI by inserting the following language in the DUI (section 316.193) and BUI (section 327.35) statutes:

“(d) The person has a blood level of 5 nanograms or more of delta 9 tetrahydrocannabinol per milliliter of blood, as shown by analysis of the person’s blood.”

Delta 9 tetrahydrocannabinol (delta-9-THC), for those who don’t know, is the primary psychoactive ingredient found in marijuana and can be found in the blood stream after consumption. It basically gives the high associated with marijuana. Delta-9-THC then quickly breaks down in the body and converts to the inactive metabolite carboxy-THC.

The difference between the two is that the presence delta-9-THC in the blood stream of is more indicative of very recent consumption of marijuana, whereas the inactive by-product carboxy-THC is essentially the leftovers that can be found in your urine or blood for days or weeks after consumption.

This proposed change in Florida law appears to be a reaction to the passing of Amendment 2, and an attempt to bring Florida in line with other states that have passed DUID laws following the state legalization of marijuana.

The first issue with this attempt to change the law is that blood samples can only be taken by law enforcement in limited situations. For example, if there was an accident involving death or serious bodily injury, or if the driver appears at hospital or clinic and administering a breath or urine test is “impractical or impossible.” So unless additional changes were made to Florida law with regards to blood draws (and those changes are constitutional), law enforcement officers are still left with administering a urine test if they have reasonable cause, which would likely only show the presence of the inactive byproduct carboxy-THC. Otherwise, this new provision would only assist prosecutors in serious bodily injury and manslaughter DUI cases.

Another issue with the proposed change is the arbitrary determination of the presence of 5 ng of delta-9-THC in the blood sample. States like Washington have passed DUID laws that have used the 5 ng threshold, but the scientific support behind that amount is lacking. And of course, everyone is different. The presence of delta-9-THC may vanish quickly in the blood of an occasional smoker, whereas the levels may remain higher, for a longer period of time, with a chronic smoker. And if the marijuana is ingested (eaten), very little delta-9-THC may end up in the blood stream at all.

Taking into account all of these factors, creating an absolute limit of 5 ng of delta-9-THC that can result in a conviction for DUI is dangerous and unfair to those who can now legally use marijuana under state laws.

Take for example a driver who regularly consumes medical marijuana in compliance with state law. That driver is stopped by a law enforcement officer and gives a blood sample (assuming the legality of requesting one is resolved) that is at or above 5 ng of delta-9-THC due to sustained higher concentrations from the regular use. That driver, now, will be arrested and can be convicted of DUID based on evidence that does not accurately indicate if at the time of driving s/he was under the influence.

It should be noted that a 2015 National Highway Traffic Safety Administration report found that when controlling for variables such as age, gender, ethnicity and alcohol concentration level, there was no significant increase in levels or direct link of crash risk associated with the presence of drugs like THC.

I’m confident this will be the first of many reactionary attempts to change Florida law in the wake of Amendment 2. As I discussed last month, Florida law already makes it a crime to drive while under the influence of a controlled substance (including marijuana) to the extent that the driver is impaired. It is apparent that now that there will be attempts to specifically target marijuana use by drivers, and establishing an absolute threshold as is the case with alcohol and the .08 level. These new attempts, though, need to be based on strong scientific evidence, within constitutional boundaries, and the result of serious deliberation. The consequences of a DUI conviction are serious and last a lifetime.

George Palaidis is a criminal defense and civil business attorney practicing in Miami, Fort Lauderdale and the South Florida region.

Driving While Following Doctor's Orders: Medical Marijuana and Driving in Florida

This past November 72% of voters in Florida approved the Florida Medical Marijuana Legalization Initiative (also known as Amendment 2), which legalizes medical marijuana for individuals with specific debilitating diseases or comparable debilitating conditions as determined by a licensed state physician.

There is still much left to be done with regards to implementing Amendment 2, but some patients may begin to wonder: what happens if I take a dose of medical marijuana as my physician prescribed and drove my car?

The short answer is you can still be arrested and convicted for driving under the influence, or DUI.

Under both federal and Florida law, marijuana is still a Schedule I controlled substance and possession of it is still illegal. Amendment 2 merely removes the criminal or civil sanctions under Florida law for the medical use of marijuana by a qualified patient/caregiver/physician. Amendment 2 specifically does not immunize violations of federal law. Amendment 2 also does not immunize any non-medical use, possession, or production of marijuana in violation of Florida law. 

Now there are generally two ways for a driver to be arrested and convicted of DUI in Florida. The first method is for the prosecutor to prove that the driver’s breath/blood alcohol level is above a 0.08, and this is determined by either a blood test or a breath sample test using a breathalyzer machine.

The second method would be to prove that the person was under the influence of alcohol/chemical substance/controlled substance so that their normal faculties are impaired. The prosecutor would try to prove this using testimony from an officer who would describe the driving pattern, the appearance and behavior of the driver, how the driver performed on the field sobriety exercises, and the interrogation later done at the station. If an officer has “reasonable cause” to believe that the driver is under the influence of a controlled substance, they can request a urine sample from the driver in order to show the presence of any controlled substances in the driver’s system.

Florida law does not provide for any defense, exception, or immunity from arrest and conviction for DUI while under the influence of any physician-prescribed controlled substance. This would include controlled substances such as Klonopin, Valium, Vicodin, and OxyContin.   

Likewise, since marijuana is still a controlled substance under both Florida and federal law, a person driving or in actual physical control of a vehicle could be arrested, and convicted if it were proven, that their normal faculties were impaired by that use.

So even though medical marijuana will now be legal in Florida under Florida law, you still cannot drive while under the influence of it even if you are taking your dosage as prescribed by your treating physician, as with any other controlled substance regardless of its schedule.

Having handled numerous DUI cases through trial with positive results, including marijuana-related DUIs, I know that it is critical to examine and challenge all of the evidence presented by the prosecution, whether trying to exclude the evidence, to obtain a dismissal of the charges, or to succeed at trial. There are lifelong ramifications associated with a DUI, so any decision must be treated seriously and examined closely. 

George Palaidis is a criminal defense and civil business attorney practicing in Miami, Fort Lauderdale and the South Florida region.

Your face has likely been in a virtual photo lineup

The face of nearly one in two American adults are in law enforcement face recognition networks. So whether you like it or not, and without your permission, chances are your face has been used in some kind of virtual photo lineup used in a criminal investigation.

                   

That's because those numbers are not only made up of mugshots taken of people arrested by law enforcement. That's especially true if you live in Florida.

A report was recently released by Georgetown University Law School following a year-long investigation that included over 100 public records requests to law enforcement agencies and police departments across the country. According to the report, the faces of over 117 million American adults are stored in law enforcement face recognition databases, and close to 64 million Americans have no say in the matter; Florida being one of the states.

What are we really talking about here, though, when we say face recognition? Many criminal defense attorneys, and even the public at large watching television crime dramas, will know about a photo lineup or even a physical lineup. Typically a police officer will compile six photographs for a lineup to show a witness, with one being a known suspect and the other five looking generally similar. Many times that is not the case, and I’ve successfully defended clients with highly suggestive and impermissible lineups where the lineup was all but singling out my client. Nevertheless, the witness will look at those six photos and pick out the one that he or she is confident committed the act.

As the report defines it, face recognition is “the automated process of comparing two images of faces to determine whether they represent the same individual.” Basically an algorithm is used to “find” a person’s face in a picture (characteristics and features that are numerically quantified), and then using the algorithm that “face” is compared with others in a database of other faces to find a set of matches. The results don't specifically identify a single match, but instead identify a list of candidates or top matches that are then provided to law enforcement. 

The report focused on face identification (as opposed to verification), which seeks to identify an unknown face. Law enforcement, for example, could stop an individual and snap a photo using their cellphone or tablet and run the photo on their squad car computer to determine a match. Other examples include identifying individuals after arrest (with other cases); identifying suspects during investigations with images from security cameras or smartphones or social media; and real-time video surveillance where an image of an individual law enforcement is looking for is uploaded and compared with faces that are extracted real-time from live security video feeds (a match would alert a law enforcement officer nearby that camera). Ultimately, a human determines who the final match is based on the list of candidates.

Image by George C. Palaidis

The report uncovered some startling discoveries, as I’m sure you could expect. The first problem is that no state has passed a law comprehensively regulating police face recognition and there are no known agencies which require warrants to search these enormous databases of photographs. This means law enforcement agencies are free to use and search the systems without any guidelines, boundaries, or parameters restricting their use.

Many major police departments are also now exploring real-time face recognition on live surveillance camera videos (like the giant cameras you’ll see on street corners in New York City). This same technology could also be applied to body cameras and dashboard cameras as both are used by more and more law enforcement agencies.

Since there are no laws or rules regarding the use of the technology, most agencies have no rules prohibiting officers from using face recognition to track individuals engaging in political, religious, or other protected free speech.

Further, little is done to ensure that the systems are even accurate, and the human (police officer) factor utilized to determine if a candidate photo is in fact a match is largely wrong (typically wrong about half of the time). These systems also tend to disproportionately affect African Americans.

Here in Florida the Pinellas County Sheriff’s Office has a system called FACES (Face Analysis Comparison & Examination System) that searches over 33 million faces, including 22 million Florida driver’s license and ID photos and over 11 million law enforcement photos. Florida law enforcement can also search the FBI’s database of 24.9 million mug shots. Using the system, the FBI’s Florida field office and 243 other local, state, and federal agencies run close to 8,000 monthly searches without requiring even a reasonable suspicion before running a search!

Regardless of whether you've committed a crime or not, Florida law enforcement agencies are using your driver’s license photo (along with other photographs) to create a virtual line-up when looking for the identity of a suspect accused of a crime. And you have no say in the matter.

You may ask ‘what’s the big deal if I’m not guilty of anything?’ Well, an experiment was conducted by a professor at Michigan State University which ran police security camera photos of the Tsarnaev brothers, who committed the Boston Marathon bombings, against a database of a million driver’s licenses. The system did find the younger brother in a match of 10 possible candidates, but it also identified nine other people who were clearly not guilty. What would have happened if law enforcement had used that system in searching for the bombers and showed up at the homes of the nine other people?

We already run into the same problem with eye witness identification and photo lineups. I once successfully represented a client accused of armed robbery who was “identified” using a drawing from a police sketch artist based on the description from the victims. Another officer thought the sketch resembled my client, and he was arrested solely on that identification. Needless to say, the sketch looked nothing like my client. But he was stuck in jail for months as I had to gather the evidence to prove to the prosecutor that my client was innocent. Even after passing a polygraph, the prosecutor was unwilling to dismiss the case. On the eve of trial the proper decision was made and the case was dropped, but during that time period my innocent client had to sit in jail where he couldn’t work, pay bills, be with his family, and had suffer the stigma of this serious criminal charge.

These same problems can and will arise as law enforcement agencies move headstrong into face recognition technology and systems without any guidance, laws, or regulations keeping it in check. The report makes several recommendations, including: passing comprehensive laws regulating law enforcement’s use of face recognition; that police should not run face recognition searches of license photos without clear legislative approval; that accuracy tests should be created and expanded to ensure the highest accuracy with the systems; and that community leaders should press for policies and legislation that protect privacy, civil liberties, and civil rights.  

We’ve seen it many times in the movies and in real life: technology can be a good and useful thing, but it can also be manipulated and abused, whether intentionally or not. This new and evolving technology should be held in check to prevent any misuse and abuse by its users. Otherwise it could be you identified in a virtual lineup based on your driver's license photo and accused of a crime you just didn't commit.

George Palaidis is a criminal defense and civil business attorney practicing in Miami, Fort Lauderdale and the South Florida region.

Fighting "Junk" Sciences Resulting in Wrongful Convictions

You have watched CSI or NCIS, right? Maybe the Forensic Files? You’ve seen how the “bad guy” was found using bite-marks, hair analysis, fingerprints, firearm identification, shoe-prints, or even DNA. Thousands of convictions solely from those forensic sciences. What if I told you these “junk” sciences were essentially debunked by a top government report released last week?

The report, titled “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” comes from the President’s Council of Advisors on Science and Technology (PCAST), which was tasked by President Obama back in 2015 to consider whether additional steps could be taken to strengthen the forensic-science disciplines and ensure validity of forensic evidence. PCAST compiled and reviewed more than 2,000 papers, submissions and other reports in preparing its report.

This report took to task seven forensic feature-comparison methods, even finding some methods “far from meeting the scientific standards for foundational validity.”

So what does this really mean? Well the report looked at “feature-comparison methods” which are methods that compare two samples to see if there is a match based on identified features. Basically, feature-comparison methods work like this: the Crime Scene Tech shows up at a crime scene and takes some sample of evidence (a photograph, a sample of blood from the ground, a partial fingerprint) and brings it back to the lab in an evidence bag. Then at the crime lab, an examiner analyzes that sample from the scene and attempts to compare it with samples of from known sources, such as an already identified suspect. A “match” means the police have ‘found their man.’

Five years at the Miami-Public Defender’s Office as an assistant public defender, and another three years in private practice as a criminal defense attorney, has shown me that the “match” is not always as it seems. Now the government and scientific community is catching up and providing valuable research and evidence challenging for the first time what has been held as infallible science.

The PCAST report looked at first at foundational validity of the method and then validity as applied. Foundational validity of a method means the method is based on studies and evidence and that it can be repeatable, reproducible, and accurate at levels that have been measured and are appropriate – in essence, the method is reliable.  

Validity as applied focuses more on how the method is applied in practice. For example, did the tech reliably apply the method in the case?

In essence, is the method reliable and did the examiner reliably apply the method in the case.

What the report found should be shocking, at least to those who don’t practice daily in criminal law.

As to DNA, what many consider the infallible forensic science, the PCAST report found that depending on the type of analysis (single-source/simple-mixture sample vs. complex-mixture samples) there were several factors that can and do cause errors, whether based on the foundational validity or, more frequently, as applied when human error comes into play. Errors can come into play where the tech inappropriately collects the sample from the scene, or in sample mix-ups, contamination, incorrect interpretation, and errors in reporting.

The PCAST report also found serious issues with latent fingerprint comparisons (comparing a partial fingerprint from a crime scene with known prints taken in a controlled setting). This field is highly subjective because it requires examiners to analyze that partial print to find certain characteristics and then compare those with other prints. Many of these examiners are also members of law enforcement and the prosecution team, thereby carrying an inherent bias that shouldn’t exist in a scientific setting.

The report noted that some studies have found false positive rates at 1 error in 306, and even 1 in 18! Yet these fingerprint identifications are sometimes the sole evidence used to convict defendants in criminal courts. Remember that the FBI announced a print from the 2004 Madrid train bombing was a perfect match to an American lawyer, but that was quickly debunked by Spanish law enforcement whom identified a different individual as the source of the print.

Bite-mark analysis was another “science” that PCAST reviewed. As the name suggests, the tech compares mark left on a victim or object with the dental impressions taken from a suspect. The PCAST report found bite-mark analysis is “far from meeting the scientific standards for foundational validity.” That examiners couldn’t agree on whether an injury is a human bite-mark surely assisted in that conclusion.

The report also found that firearm, footwear, and hair analysis were not foundationally valid as there were no real studies or empirical evidence backing up the methods as repeatable, reproducible, or accurate. A 2015 Department of Justice (DOJ) and FBI report that reviewed 3,000 criminal cases involving hair analysis discovered that in more than 95% of those cases the FBI examiners provided scientifically invalid testimony that was used to inculpate or implicate he defendant. Convictions based off of “junk” science.

All of this is important because judges and jurors in this country are often presented “scientific” evidence that is “100% certain” or that have “zero,” “essentially zero,” or “negligible,” error rates. The reality is that much of the so-called forensic sciences aren’t based off of any science at all, but are resulting in the convictions of thousands of innocent criminal defendants. And criminal defendants, when presented pre-trial with this “scientific” evidence, often are compelled to plead guilty for a negotiated sentence rather than go to trial because of the misplaced trust so many have in this “scientific” evidence.

That’s why it’s important for not only criminal defense lawyers like myself to be familiar and proficient in attacking this evidence, but also for the community at large to challenge these “scientific” methods that have long been held to be infallible, and for the scientific community to develop scientifically valid methods to ensure the innocent aren’t wrongly convicted.  

It is important that we start now in challenging this evidence, because there is no guarantee that past convictions will get the review they should receive. As Federal Judge Alex Kozinski noted in a recent commentary in the Wall Street Journal, even though a 1997 DOJ report impugned 13 FBI lab examiners involved in more than 7,600 cases (64 capital murder cases), by 2014 only 312 had been reviewed to determine whether convictions were obtained through discredited methods.

I would certainly suggest that criminal defense attorneys review the full report, but I’d recommend everyone take a few minutes to read the 20 page Executive Summary. The PCAST report is not only eye opening, but offers quite a few of important recommendations to fix the problems presented today and to work towards eliminating wrongful convictions. 


George Palaidis is a criminal defense and civil business attorney practicing in Miami, Fort Lauderdale and the South Florida region.