I am a low life bottom sucking criminal defense lawyer. I help the bad people escape justice and put victims on trial. Or so that is how people lucky enough to never have been royally screwed by the government feel. “No worries,” I tell myself, “just give it some time.”
The same people that think criminal lawyers are scum also have the common disdain that we all share for the Department of Highway Safety and Motor Vehicles, commonly known as the “DMV.” No one likes to deal with the DMV because, let’s face it – they suck. The DMV does not care about efficiency, your time, getting anything done correctly, or the safety of motorists. All they care about is crossing their “Ts” and dotting their “Is.” They only know one thing “bureaucracy.”
Unfortunately, the DMV’s bureaucracy is designed to do only one thing well – suspend our driving privileges. They don’t care about how we will get to work, feed our families, keep our job, go to school, etc. for the true believers, this is where you can say “well, you shouldn’t have screwed up.” Oh, if it were so simple.
The DMV is a well oiled machine when it comes to taking your drivers license away. Forget to pay the only ticket you ever received in your life and you will efficiently receive a letter from the DMV within 10 days. Fix your mistake and try and get your license back, well … that is a different story. And while the DMV checks their books and double checks the computer calibration your job, school, groceries, are all suppose to be out on hold.
When we cannot take the delay, when we have to go to work, have to go to school, have to provide for our families, without a drivers license be sure to remember that we are committing a crime. We can go to jail. We can lose everything because we are “suppose” to wait for the DMV.
Then lets not forget the criminal justice system. The unwitting partner in this disaster. The system that “understands” and resolves your crime with just a fine and some costs. The pat on the head to make you feel good as you walk out the door free again. Thanks system!
It’s only a few days later that the DMV send you the letter that your little mistake has now caused a major fuss up in Tallahassee. Now the DMV must suspend your license for 5-years. It is for the good of all. Remember you drive to provide for your family when they had not told you that you could. You’ve don’t that 3 times they see and that makes us a very dangerous driver. Forget the fact that you maintain the highest level of insurance on your vehicles – you are a menace. Drive now and they will slap a felony on your a**!
The economy is down, your debts are up, you have two kids, you have to drive to get to work, your elderly mother needs medicine, – none of that matters. We broke the DMV rules and that rulebook says “drivers license suspension.” That’s life. That’s justice. That’s bureaucracy.
Category Archives: Orlando Criminal Defense Attorney
Has The Bureaucracy Killed Justice?
Filed under Orlando Criminal Defense Attorney
2012 in review
The WordPress.com stats helper monkeys prepared a 2012 annual report for this blog.
Here’s an excerpt:
600 people reached the top of Mt. Everest in 2012. This blog got about 6,000 views in 2012. If every person who reached the top of Mt. Everest viewed this blog, it would have taken 10 years to get that many views.
Filed under Orlando Criminal Defense Attorney
Criminal Justice – Perceived Problems, Your Solutions
Roy bean jersey lilly (Photo credit: Wikipedia)
If The Law Was Fixed, Immutable – We might Understand It
I once had a string of DUI cases that were dismissed after a successful suppression motion. That streak was snapped when a judge in a small county denied a motion in my next DUI case. In that last case I was more sure I had the legal grounds to have the evidence suppressed then the one’s before it that were granted. I was positive the stop would be deemed to lack probable cause and the state would have to dump it. Heck, I even had a video! Behold, the judge thought otherwise. All that was left was an appeal but once you are forced into the appellate stage the level playing field sways heavily to the appellee (the side that did not lose the motion). Appeals also cost money. Unless you are indigent you probably won’t want to spend (or may not have) that kind of money.
What If You Think The Judge Got It Wrong?
Justice is one of those terms we all think we know. It hangs around those other words like “fair,” “true,” even “lawful.” But in the realm of LAW “justice” and “lawful” have nothing to do with each other. Forget those ambiguous words “fair” and “true.” Those words are subjectively defined by the speaker using them. So let’s go back and look at the case when a judge rules against a motion to suppress. Obviously, the lawyer presenting the motion thinks he has the law on his side. The opposing counsel will try to find a lawful or emotional reason to argue for the court to deny the motion. Finally, the judge rules. Despite what you may think the law is, what the judge decides is “the law of the case.” Meaning – you don’t like it, appeal it.
Let’s bring this down to very easy terms. Let’s say it is against the law to cross a street at night during a “full moon.” The defendant is arrested for (1) crossing a street, (2) at night, and (3) the moon was full. The defendant raises a motion (to dismiss in this situation) and brings in an almanac showing the full moon actually occurred two days before the night he crossed the street. Behold, the judge asks the police officer how big the moon was and based on that answer denies the motion to dismiss. Absent contrary law, the judge’s ruling is “lawful.” Is it “justice?”
What the judge did was “interpret” the law. That is what the judicial branch is suppose to do. Usually, attorneys will look to appellate courts that have already heard the same issue before and made a ruling on it (in a published opinion). They will present these opinions to the judge in support of their motion. However, even the written opinions of appellate courts are subject to “interpretation.”
Is There A Bright Line?
Hammurabi is known for writing the law down for all to see, read, and follow. It allowed the people to know what they could and could not do. He is cited as the first to do this – unique in the world back then. Today it is taken for granted that knowing the law is a must for a “just” system. Unfortunately, our government deems it satisfactory to “publish” the laws in books housed in libraries and on the web and grant the rest of us the “presumption” of knowing (remember, ignorance of the law is not a defense). The problem is that there are, last time I had a set of all the Florida laws in written books, at least six volumes of laws for Florida. It is safe to say NO ONE KNOWS ALL THE LAWS.
Where does this leave us. We have more laws than are possible to know. The law is subject to interpretation by the court. The courts’ rulings are also subject to interpretation. People have a right to “due process.” This means, in simple terms, they have a right to be heard (to require presentation of proof of the alleged offenses and to have the ability to defend themselves). But to have a meaningful hearing “to be heard” an obvious prerequisite would be to know what you are being heard on, in this situation – a law which is unknown and subject to interpretation. How can a system of “justice” operate under such conditions?
The Average Person Back On The Block
“Back on the block” is where my drill sergeant threatened to send me back to when I screwed up years ago. It was a euphemism for civilian life. In civilian life, people have this weird sense that everything that they are told is the way it is suppose to be. Everything is always just dandy. When it comes to their rights and the way the court system works their beliefs are false. Out of sight, out of mind. When, unfortunately, people come face to face with the “justice” system, usually due to what I would consider a minor crime, they are shocked. They don’t know their rights, they don’t know the law, and their attorney is either giving them false promises (wrong) or trying to explain how the law can be interpreted differently to different people at different places and in different courtrooms (never an easy conversation). How can this be?
The Attorney
It is an attorney’s job to know the law and apply the law to the facts of the case. That’s great. The way things are today, I have job security. Is that the way it is suppose to be? Is it really necessary for Average Joe to have to hire an attorney for even minor crimes? (This is suppose to be a rhetorical question.)
I rarely practice in circuit court any more. I have found the minor laws are as confusing or more confusing then the serious crimes. Most people I represent never said to themselves “tonight I’m going to break the law.” They go out, doing what they think is right, and end up bailing themselves out of jail. It could be for a DUI or driving with an unknown suspended drivers license or resisting a police officer. For most non-lawyers reading this you are probably thinking “who would be stupid enough to do any of that?” The answer is “no one” but many people get arrested for those things every day.
Florida Legislature
The Florida Legislature proposes many new laws each year while they are in session. Each representative is given a limit on how much legislation they can introduce. Last session the members were allowed to introduce extra bills if they could come up with laws that could be stricken from the books. When I heard that I thought it was a brilliant idea. So brilliant I think it should be expanded. If anyone wants to introduce a bill they should be required to have a companion bill to strike down or simplify another already existing law.
Many people out there think good ideas are worth supporting. There are campaigns every year to tell us what a good idea a proposed law is. Probably the latest is the anti-texting bill. No body in there right mind will say texting and driving are a good combination. The problem is we all, ALL!, do it or have done it and will probably do it again whether it is actual texting or reading an email. Then no one who campaigns for the law knows what the law will actually say. Early attempts to pass an anti-texting bill made it against the law to view an “electronic messaging device.” This never passed. One problem was the fact that the state loves to put “electronic messaging devices” all over the highway to tell us Amber Alerts, Silver Alerts, how far the next exit is, and to tell us “not to text and drive.”
The Road to Hell is Paved with Good Intentions
I think it is time for reason to take over. First, we have to stop knee-jerk solutions to every issue that pops up. “Caylee’s Law” is the best example. Someone will go to jail for breaking that law but it won’t be Casey Anthony. Second, people need to know how the justice system works. Frankly, that may be the hardest part of this. The only way I can suggest is for non-lawyers to spend a day in court. Just observe it. See if the court has a program set up for doing that. If not, suggest it. There are volunteer programs out there such as Court Watch you can associate with (Disclaimer: I have no idea what Court Watch does. Just pointing out there are groups out there that go to court).
Finally, most importantly, and a must do – everyone should know their Rights. I’m not talking about “reproductive rights” or “gay rights” or other unwritten claims. It is time for everyone to read the Bill of Rights in the United States Constitution and the Rights contained in Article 1 of the Florida Constitution (for Florida residents – insert your state where appropriate). These are the Rights that have the force of law. If you don’t know them you give them up. If you find yourself with a lawyer saying “I didn’t know…” it is too late. Put down the latest “shades of grey” novel and read these things. Read them 4 times a year. Commit them to memory. If you memorized them but don’t quite understand their meaning – Google it. The answers are out there and through increased knowledge of these things maybe, just maybe, common sense will emerge.
Double-Jeopardy Issues with Suspended License Cases
Defendant and Counsel (1895), by Yeames, an example of the problem picture, which invites the viewer to speculate on the woman’s alleged crime and on whether or not she may be guilty. (Photo credit: Wikipedia)
Just a quick post on double-jeopardy issues with suspended license cases
Early on, prior to the Blockberger case, a person could be found guilty of Driving While License Suspended [DWLS] and No Valid Drivers License [NVDL]. Lanier v. State, 226 So.2d 37 (Fla. 1st DCA 1969). Then, some 31 years later, the 5th DCA decided that a Defendant cannot be found guilty of both DWLS and NVDL. Roedel v. State, 773 So.2d 1280 (Fla. 5th DCA 2000).
A Defendant cannot be found guilty twice for a single episode of DWLS. Hallman v. State, 492 So.2d 1136 (Fla. 2d DCA 1986).
A Defendant cannot be found guilty of Felony DWLS [F-DWLS] and DWLS-HTO for same act. Franklin v. State, 816 So.2d 1203 (Fla. 4th DCA 2002).
A Defendant can be found guilty of DWLS with permanently revoked [DWLS-PR] license and DWLS-HTO for same act. Webb v. State, 816 So.2d 1190 (Fla. 4th DCA 2002).
Now it gets confusing . . .
Can a Defendant be found guilty of Driving While License Suspended AND Driving While License Suspended as a Habitual Traffic Offender?
The state may prosecute for violation of DWLS and DWLS as a Habitual Traffic Offender [DWLS-HTO] under “same elements test” and is not double jeopardy. State v. Cooke, 767 So.2d 468 (Fla. 4th DCA 2000).
but, . . .
A Defendant cannot be found guilty of DWLS and DWLS-HTO based on “primary evil” under “degree variants” analysis. Duff v. State, 942 So.2d 926 (Fla. 5th DCA 2006).
but wait, . . .
A Defendant can be found guilty of DWLS and DWLS-HTO based on “degree variants” analysis (completely avoiding “primary evil” test, no mention of Duff case, and a confusing look at “penalties,” whether they are “moving violations,” if they receive “points,” etc.). State v. Gil, 68 So.3d 999 (Fla. 3d DCA 2011).
When someone figures out what the Gil case is trying to say please comment or contact me and let me know.
Enjoy
Can A Fixed “Suspension” Thwart a Conviction for DWLS-HTO
Airline Highway, Metairie, Louisiana. Louisiana Department of Motor Vehicles office. (Photo credit: Wikipedia)
I have been perplexed by an issue that seems to depend on the Court I am before. When a client hires me with a new law offense for driving while his license has been suspended as a habitual traffic offender [HTO] and I am able to remove the HTO status and get him a valid drivers license, can the state still prove their case? The statute (s.322.264) defines HTO as “[a] ’habitual traffic offender’ is any person whose record, as maintained by the Department of Highway Safety and Motor Vehicles [DMV], shows that such person has accumulated the specified number of convictions for offenses described in . . .” Some judges will note the new driving record and find no factual basis for the offense causing the state to drop their case. Other judges are under the belief that it is what the Department records reflected on the day of the arrest and will not dismiss for lack of factual basis.
The “No Factual Basis” Argument
In Rodgers v. State, 804 So.2d 480 (Fla. 4th DCA 2002), the appellate court was presented with the question of whether a computer printout of the defendant’s driving record (as maintained by the Department) was sufficient to present a prima facie case for the first two elements of the offense of driving while license suspended for HTO [DWLS-HTO](that 1. the defendant’s license was suspended under s. 322.264, and 2. that the Department gave notice of the suspension to the defendant). The answer was in the affirmative.
To sum up the requirements for a conviction under section 322.34, the statute as written by the Legislature merely makes it necessary for the state to prove by competent evidence that DMV maintains a record on the motorist, that its record shows the requisite three separate DWLS convictions within a 5-year period, and that DMV gave the motorist the statutory notice. These statutes permit the state to make this proof by presenting a certified copy of the motorist’s driving record maintained by DMV.
Id. at 483.
Typically, the state has in their possession (and they provide through discovery) a copy of the defendant’s driving record that is usually within a month of the arrest but not on the date of the arrest. This record will show that on a specific date before the arrest the defendant’s license was suspended for a period of time that extended through the date of arrest. It will also show a date that is allegedly the date notice was sent to the defendant. According to Rodgers, this is all they need to introduce to get past a judgment of acquital [JOA] for the first two elements of the offense. See Arthur v. State, 818 So.2d 589 (Fla. 5th DCA 2002); Bowen v. State, 833 So.2d 288 (Fla. 5th DCA 2002); see also, Card v. State, 927 So.2d 200 (Fla. 5th DCA 2006).
By logical implication a record, as maintained by the Department, that does not show a suspension prior to the date of the arrest would not present a prima facie showing to withstand a JOA.
As Maintain on the Date of Arrest
The other argument is that it doesn’t matter that the record has been “fixed” it just matters whether or not the Department maintained a record on the day of the arrest that reflected a suspension and notice. This theory is supported by State v. James, 928 So.2d 1269 (Fla. 2d DCA 2006).
In James, the court states that “[e]ven if Mr. James is successful in vacating his Hillsborough County conviction, the DMV records would be affected only from the date that the conviction was set aside.” However, the court seems to make several presumptions in this case. For instance, the court presumes that the record reflected a third conviction and that the DMV record was “accurate.” Moreover, the court points out that the DMV record only need show that the driver’s privilege had been suspended “at the time” the driver was stopped.
State’s Record vs. Defendant’s Record
Let’s say the Driver is stopped on day 1 and cited for DWLS-HTO. On day 20 the State runs a DMV record and it indicates that the Driver was designated HTO on day -10. Their DMV record would then show that from day -10 to day 20 the DMV maintained a record that indicated the Driver was HTO. On top of that, the record would reflect that the suspension was for 5-years. Then let’s say the Driver fixes his DMV record and on day 50 the DMV record does not show an HTO designation at all. Once fixed, and once there are no longer the prerequisite offenses for HTO designation, the DMV redacts the suspension from their maintained records. Now, should a trial occur, the state would have a record on day 20 showing an HTO designation, the Driver would have a record on day 50 showing no designation, and no one would have anything showing what the DMV had maintained on their records on the day of the offense.
The definition of HTO refers to the records “as maintained by the DMV.” In the scenario above, the maintained records on the day of the trial would not show the suspension. However, James suggests that it is what the records reflect at the time of the offense. The state can only show what the records reflected on day 20. Is this enough for a judgment of acquittal? It is definitely enough to argue that the charge has not been proven beyond a reasonable doubt. And if the State tries to argue that the record was “fixed” object as to facts not in evidence (unless they have done their due diligence and produced the certified records of the “fix”).
So the question remains, can a fixed suspension thwart a conviction for DWLS-HTO?
As of the day of this post I have yet to go to trial and argue this issue.
