Limits on Warrantless Searches of Pharmacy and Medical Records in Florida

Searches of Medical and Pharmacy Records in Florida
A recent decision out of the Fourth District Court of Appeals, Gore v. State, 36 Fla. L. Weekly D2500a (Fla. 4th DCA, No. 4D10-777, November 16, 2011), establishes some important limitations on warrantless searches of pharmacy records and medical records. The case also establishes that Florida residence do have an expectation of privacy in pharmacy records. The case also draws a clear distinction between pharmacy records which have little protection and medical records which have must greater protections.

In the Gore case, law enforcement officers went to pharmacies without a search warrant and spoke to different doctors who had prescribed Mr. Gore various prescriptions. The law enforcement officers also interviewed the doctors about whether Mr. Gore had told them that he was obtaining other prescriptions from different doctors during that same time period. The defense attorneys filed a motion to suppress the pharmacy records obtained including the prescribing physicians’ names, any statements made by the physicians, and medical records. At the motion to suppress hearing, the defense attorney and prosecutor stipulated to the
following facts:
The officer had reason to believe that Defendant was committing the crime of withholding information from a physician and, as such, trafficking would ensue because the prescriptions received would have been fraudulent because of the withholding information.
The officer goes to various pharmacies, pulls patient’s profiles. From those patients’ profiles, he finds out who the prescribing doctors are. He then goes to the prescribing doctors, in this case, Dr. Gulati and Dr. Ortega, and speaks with the doctors without any subpoena or search warrant being issued. The conversations include whether or not Defendant had disclosed previous prescriptions to the doctor. The officer also pulled and reviewed various patient documents.
Searching Pharmacy Records without a Warrant in Florida

Based on a de novo review of these stipulated facts, the Court noted that Florida courts have previously held that Florida Statute Section 893.07(4) authorizes police to search pharmacy records without a warrant. In State v. Tamulonis, 39 So. 3d 524 (Fla. 2d DCA 2010), the Court found that right to privacy protected by Article I, Section 23, of the Florida Constitution is not absolute. Instead, the test for determining whether a violation of Florida's right to privacy comes from Winfield v. Division of Pari-Mutuel Wagering, 477 So. 3d 544, 547 (Fla. 1985) in which the Florida Supreme Court has adopted the following test:
First, courts must determine whether the individual possesses a legitimate expectation of privacy in the information or subject at issue. If so, the burden shifts to the State to show 
(a) that there is a compelling state interest warranting the intrusion into the individual’s privacy and
(b) that the intrusion is accomplished by the least intrusive means.
See Tamulonis, 39 So. 3d at 528. The Tamulonis court acknowledged that an individual has some expectation of privacy in his or her prescription records which must be balanced with the State of Florida's compelling interest in regulating controlled substances.

Disclosure and Use of Pharmacy Records Must be Narrowly Tailored

The Gore Court when on to cite Justice Johnson of the Vermont Supreme Court, in her dissenting opinion in State v. Welch, 624 A.2d 1105 (Vt. 1992) to explain why the used and disclosure of pharmacy records should be narrowly tailored:
Such records contain extremely private and potentially embarrassing information about the patient. They may disclose highly personal facts concerning a person’s lifestyle, ailments, or sources of stress and anxiety. These are matters of great sensitivity that go to the heart of our concerns for privacy. This fact is recognized by the very statutory provision that permits inspection of pharmacy records, which is entitled “Records confidential.” That provision allows inspection “only to federal or state officers or their specially authorized agent whose duty it is to enforce the federal drug laws,” and forbids those who gain knowledge of any prescription from divulging such knowledge, except in connection with a prosecution.
Id. at 1116 (Johnson, J., dissenting).

The Gore Court when on to conclude:
the police may secure pharmacy records of Chapter 893 controlled substances pursuant to a criminal investigation, but not pharmacy records of all prescriptions. There is some expectation of privacy in pharmacy records. The police may obtain the permitted records without obtaining a warrant or a subpoena. Doctors’ names appear on all prescription records; hence, the police may secure doctors’names on Chapter 893 pharmacy prescription records, as well, without a warrant or a subpoena.
Warrantless Search of Medical Records in Florida

The Gore Court also concluded that the trial court erred by denying Defendant’s motion to suppress the warrantless search of his medical records and physician’s statements because medical records and physician’s statements are protected by the statutory physician-patient privilege. Therefore, the State was required to get either a subpoena with court approval or prior notice to and authorization from Defendant under Florida Statute Section 456.057(6) & (7)(a), Fla. Stat. (2008).

In making the distinction between pharmacy and medical records, the Gore Court reasoned:
The fact that the police had already secured doctors’ names from prescriptions at pharmacies does not waive the requirements of law. There is a danger of medical professionals willing to surrender private medical records and engage in discussions regarding private and privileged communications concerning their treatment of individuals in submission to apparent police authority.
The language in Section 456.057 is intentionally broad in protecting information from being disclosed by a health care practitioner and in assuring that the condition of a patient may not be discussed. The protection extends to all patient records. The State is not precluded from obtaining the information it seeks. Its agents must only follow the law and either seek a patient’s written authorization or the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or a search warrant.
The object of the physician-patient privilege is to encourage patients to be entirely forthcoming and candid in their statements to their treating physicians. These conversations and the records with regard thereto protect our most fundamental right, the pursuit of life itself.
In the past few years, Florida has seen a huge spike in the number of arrests and criminal investigations for felony charges related to prescription medication including:
  1. Doctor shopping; 
  2. Withholding information from a physician;
  3. Obtaining a prescription by fraud; and
  4. Trafficking in prescription medication.
Those numbers are expect to increase dramatically as Florida's prescription-drug database launched on September 1, 2011. The program was intended to deter doctor shopping and over-prescribing, but does nothing to address the problem of addiction.

Florida has been particular hit since it is estimated that in 2010, 90 of the top 100 oxycodone-purchasing doctors in the nation were from Florida. Although many of those oxycodone pills were transferred out of state in drug trafficking schemes, a disproportionate number of those pills were used by addicts in Florida.

As law enforcement officers become more aggressive in the investigative techniques they use to prosecute both addicts and the alleged drug trafficker of prescription medications, the Courts will be forced to determine additional limitations on the warrantless search of pharmacy and medical records.

Leslie Sammis is a criminal defense attorney at the Sammis Law Firm in Tampa who represents individuals charged throughout the Tampa Bay area with drug crimes related to doctor shopping, withholding information from a physician, obtaining a prescription by fraud; and trafficking in prescription medication in Tampa for HIllsborough County, St. Petersburg and Clearwater in Pinellas County, Bartow and Lakeland in Polk County, and New Port Richey and Dade City in Pasco County, Florida. 

Florida's Drug Laws Constitutional According to Third District Court of Appeals

A three-judge panel with the Third District Court of Appeals rejected the holding of Miami-Dade Circuit Judge Milton Hirsch, which dismissed 39 felony possession of drug cases in August of 2011. Senior Judge Alan Schwartz authored the opinion finding that the 2002 version of Florida's drug laws are constitutional. Judge Vance E. Salter and Judge Ivan Fernandez concurred.

The Third District Court of Appeals found that Florida law does not require a prosecutor to prove mens rea or conscious violation of the drug laws. The appellate decision was not based on the order by Judge Milton Hirsch although the issues were the same. Instead, the appellate decision was based on the case of Jasper Little who was convicted on two occasions of selling cocaine, first in 2003 and then again in 2004. He was sentenced to 364 days in prison. Mr. Little represented himself, pro se, in a post-conviction motion.

The opinion is extremely short and quoted below:
Rejecting the holding of Shelton v. Sec'y, Dep't of Corrs., No. 6:07–CV–839–ORL–35–KRS, (M.D.Fla. July 27, 2011) and State v. Washington, No. F11–11019 (Fla. 11th Cir.Ct. Aug. 17, 2011), we hold, as we explicitly did in Taylor v. State, 929 So.2d 665 (Fla. 3d DCA 2006) FN1, that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional. Accord, e.g. Parker v. State, No. 3D11–2575 (Fla. 3d DCA Nov. 9, 2011) (per curiam affirmance citing Taylor ); Holcy v. State, No. 5D10–3437 (Fla. 5th DCA Nov. 1, 2011) (per curiam affirmance citing Flagg ); Edwards v. State, No. 3D11–2437 (Fla. 3d DCA Oct. 26, 2011) (per curiam affirmance citing Taylor ); Flagg v. State, No. 1D11–2372 (Fla. 1st DCA Oct. 13, 2011); Johnson v. State, 37 So.3d 975 (Fla. 1st DCA), rev. denied 51 So.3d 465 (Fla.2010); Miller v. State, 35 So.3d 162 (Fla. 4th DCA 2010); Harris v. State, 932 So.2d 551 (Fla. 1st DCA 2006); Tolbert v. State, 925 So.2d 1148 (Fla. 4th DCA 2006); Smith v. State, 901 So.2d 1000 (Fla. 4th DCA 2005); Burnette v. State, 901 So.2d 925 (Fla. 2d DCA 2005); Wright v.. State, 920 So.2d 21 (Fla. 4th DCA 2005). Accordingly, the order under review denying postconviction relief is Affirmed.
FN1. Taylor states:
The defendant was convicted of possession of cocaine. We reject his primary contention for reversal that section 893.101, Florida Statutes (2003), which overruled Chicone v. State, 684 So.2d 736 (Fla.1996), and eliminated knowledge of the unlawful nature of the offending substance as an element of the crime, is unconstitutional. As was correctly held in Tolbert v. State, 925 So.2d 1148 (Fla. 4th DCA, 2006), Wright v. State, 920 So.2d 21 (Fla. 4th DCA 2005), review denied, 915 So.2d 1198 (Fla.2005), Smith v. State, 901 So.2d 1000 (Fla. 4th DCA 2005), review denied, No. SC05–1120, 928 So.2d 336 (April 4, 2006), and Burnette v. State, 901 So.2d 925 (Fla. 2d DCA 2005), however, it is not. 
So it appears the issue is dead in the Third Circuit unless or until overturned by the Florida Supreme Court. The other district courts in Florida have yet to issue a ruling addressing the issue.

Honorable Milton Hirsch Just Found Florida's Drug Statute Unconstitutional in Miami-Dade County

Trial Court Finds Florida Drug Statute Unconstitutional

The Honorable Milton Hirsch, Circuit Court Judge of the Eleventh Judicial Circuit in and for Miami-Dade County, in a well reasoned order just ruled that Florida’s drug statute is unconstitutional as it applies to charges of possession and delivery of a controlled substance.

The order also dismisses criminal charges against 40 defendants with pending felony drug charges in Miami-Dade County. This Honorable Court was forced to make the ruling because the Florida Legislature has still not amended Florida's drug statute to require a knowledge or intent element despite the ruling in Shelton

The opinion states, in part: 
The 39 defendants captioned above are similarly circumstanced in that all are charged with violation of Fla. Stat. § 893.13. In light of the recent decision in Shelton v. Department of Corrections, No. 6:07-cv-839-Orl-35-KRS, 2011 WL 3236040 (M.D. Fla. July 27, 2011), finding 893.13 unconstitutional, all defendants move for dismissal. I have consolidated these cases for purposes of these motions only.
Shelton has produced a category-five hurricane in the Florida criminal practice community. A storm-surge of pretrial motions (such as those at bar) must surely follow. It is, therefore, essential that I adjudicate the present motions promptly. This order has been written in great haste and under great time pressure. As Mark Twain is alleged to have said: "If I'd had more time, I could have written you a shorter letter."
Judge Milton Hirsch goes on to find that, "In the unique circumstances of this case, the opinion of the U.S. District Court in Shelton is binding."  The Court concludes: 
The immediate effect of the present order is the dismissal of charges against all movants – the overwhelming majority of whom may have known perfectly well that their acts of possession or delivery were contrary to law. Viewed in that light, these movants are unworthy, utterly unworthy, of this windfall exoneration. But as no less a constitutional scholar than Justice Felix Frankfurter observed, "It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end." Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).
Judge Milton Hirsch deserves an tremendous amount of praise for having the courage to issue this well written opinion.

Judge Milton Hirsch's biography - author of "The Shadow of Justice (Great Stories by Great Lawyers)" which was the first work of fiction published by American Bar Association, through the Criminal Justice Section. The Shadow of Justice was a finalist for the 2005 Benjamin Franklin Award in the category of Best New Voice (Fiction) and won first place in the 2004 Midwest Independent Publishers Association in the mystery/suspense category.

The Store-Surge of Pre-Trial Motions Continue

When will the Florida legislature act to undo the damage? Will they learn their lesson and amend the other criminal statutes that are effectively "strict liability" felony and misdemeanor crimes? Or will the Florida legislature stand alone (out of all fifty states) in being this tough on crime but dumb on due process?

Florida's New Gun Law Bans Local Restrictions

History of Florida's Gun Law Regulations

Since 1987, Florida law prevented local governments from passing restrictions that went beyond state law.  Despite these restrictions, local municipalities passed their patchwork of local ordinance and localized administrative rules that purported to prohibit the possession of firearms or ammunition in a way that was broader than the laws passed by the State of Florida for such regulation.

Often the local ordinances and administrative rules were arbitrary and selectively enforced. Local ordinances included various waiting period between purchase and delivery of handguns. Other local rules and ordinances prohibited possessing a firearm or ammunition in various parks, beaches and other locations.

Florida's New Gun Regulation Legislation

Florida new gun law started as Senate Bill 402 and then became House Bill 45. The bill is known as the "Joe Carlucci Uniform Firearms Act" which passed by a 30-8 margin. The creation and enforcement of local gun regulations and ordinances will end on October 1, 2011, when Florida's newly amendment firearm statute section 790.33 officially becomes law.

Intent of Florida's New Gun Laws

The intent of Florida's new gun law is to declare all local ordinances and regulations null and void which have been enacted by any jurisdictions other than the State of Florida and the federal government. The other stated intent is to prohibit the enactment of any future ordinances or regulations relating to firearms, ammunition, or components thereof unless specifically authorized by this section or general law.

The enforcement provisions of Florida's new gun law were designed to deter and prevent the violation of this new law, including the abuse of official authority that occurs when local enactments are knowingly passed in violation of state law. The new law also contains enforcement provisions to prevent any violation under color of local authority of rights.

Enforcement Provision Preventing Local Regulation of Gun Laws in Florida

Any local official who attempts to enforce an illegal local regulation or local ordinance faces a $5,000 fine that must be paid by the local official personally. In fact, no local funds can be used to defend the action except that a public defender or appointed counsel can be provided to an indigent person accused of this crime. Furthermore, the local official also faces being removed from office by the Governor of the State of Florida.

Preventing a Patchwork of Confusing Local Firearm Regulation 

Advocates for gun rights consider this bill an important piece of legislation that prevents the unfair prosecution of Florida citizens as they travel throughout the State. Those individuals are often unaware of small difference in the local laws regulating firearm possession that varied from city to city and county to county throughout the State of Florida.

Effect of the Florida's New Statutory Scheme for Gun and Ammunition Regulation

This new legislation for the regulation of Florida's laws concerning firearms and ammunition does the following:   
  • Reorganizes and clarifies the fact that the power to regulate firearms and ammunition belongs exclusively to the State of Florida; 
  • Prohibits local officials with municipal governments throughout the State of Florida from willfully and knowingly violating the Florida Legislature's ability to regulate the firearms and ammunition laws and rules. 
  • Eliminates provisions authorizing counties to adopt ordinance requiring waiting period between purchase and delivery of handgun. 
  • Provides for injunctive relief from enforcement of invalid local ordinances and other regulations and rules. 
  • Provides for a civil penalty for willfully and knowing violating the provision of this new law. 
  • Prevents the fine from being paid from public funds.
  • Prevents public funds from being used to reimburse unlawful conduct of the person's charged under this statute with willfully and knowingly violating the provisions of this law. 
  • Allows the local official to be termination from employment or an employment contract and/or removed from office.
  • Provides for injunctive and declaratory relief for persons and organizations specified by the legislation. 
  • Provides for specified damages and interest to be paid on such damages including:
    • attorney's fees in the trial and appellate courts to be determined by the rate used by the federal district court with jurisdiction over the political subdivision for civil rights actions;
    • liquidated damages of three times the amount of certain attorney's fees; and 
    • litigation costs in the trial and appellate courts.
So what do you think of the new legislation?

Circuit Judge Steven S. Stephens Denies Find Florida's Drug Laws Constitutional

A Circuit Court Judge in Tampa, the Honorable Steven S. Stephens, did not waste any time denying motions to find Florida's strict liability drug statute unconstitutional even after the recent federal ruling in Mackle Vincent Shelton v. Secretary, Department of Corrections, et. al., Case No.: 6:07-cv-839-Orl-35-KRS. Instead, Judge Stephens consolidated more than 60 cases into a single hearing on Thursday before denying the motions.

In the Mackle Vincent Shelton decision, U.S. District Judge Mary S. Scriven of Orlando found Florida's drug statute to be unconstitutional on its face as a violation of the due process clause of the Constitution of the United States. The fall out continues as thousands of drug convictions are expected to make their way back through the system in direct appeals, post-conviction motions, and federal writs of habeas corpus.

Thousands of pending cases will also be delayed as judges, prosecutors and criminal defense attorneys struggle with the implications of the decision. Read more at Florida's Drug Statute is Unconstitutional: Blame the Legislature - Tough on Crime, Dumb on Due Process.

Florida's Drug Statutes Unconstitutional: Blame the Florida Legislature

Blame the Florida Legislature - Tough on Crime, Dumb on Due Process

RE: Mackle Vincent Shelton v. Secretary, Department of Corrections, et. al.
Case No.: 6:07-cv-839-Orl-35-KRS

The statutory scheme for Florida's most common drug offenses has been declared draconian and unreasonable. A federal court has declared it unconstitutional on its face as a violation of the due process clause of the Constitution of the United States. If this ruling is upheld on appeal, then thousands of drug convictions under Florida law may be reversed even if no contemporaneous objection was made at trial and even if the issue was not raised on appeal. As prosecutors, defense attorneys and judges scramble to understand the implications, let's take a moment to think about how we got to this point.

The Florida legislature has slowing been chipping away at the bedrock principles of our criminal justice system. Instead of simply requiring the prosecutor to prove that someone committed a crime by purposefully doing some act that was against the law, the legislature has attempted to create shortcuts. For drug cases, the shortcut simply eliminated any requirement that the prosecutor prove that the individual knew he or she was in possession of any drug or contraband. This shortcut goes against well-established principles of American criminal jurisprudence that require a choice between "good" and "evil."

In most cases the mens rea element is not a difficult showing for the prosecution. Many people admit to the law enforcement officer that they knew they possessed the illegal drug. In other cases, the knowledge requirement could be met through circumstantial evidence such as the statements of another witness, fingerprints, the location of the drugs, or the observations of the arresting officer. But eliminating the knowledge requirement completely necessarily means that innocent people will be convicted.

Think about it this way, how hard would it be to frame an innocent person under this statute if the prosecutor never had to show that the individual knew the illegal substances was in their possession. In other cases, if you pick up your roommates backpack that contains their illegal or prescription medication, then you may be guilty of possession even if you did not know the controlled substances were in the backpack. If you driving a friend's vehicle and do not know that drugs are hidden under the backseat (illegal street drugs or even prescription medication), then you could be guilty of possession.

Overreaching by the Florida Legislature - Tough on Crime, Dumb on Due Process

This "shortcut" created by the Florida legislature will now prove to be extreme time consuming and expensive as thousands of convictions go back through the system. Perhaps the Florida legislature will be more careful next time before eliminating a requirement that exists in the other 49 states throughout the country. The Florida legislature should act quickly to undo the damage it created from the 2002 amendment that made the statute unconstitutional. The Florida legislature should again amend Florida's drug statute to include some level of culpable scienter or knowledge that the contraband was actually or constructively possessed as an essential element of the crime.

As the Florida legislature is learning, being tough on crime also requires being smart enough to follow the requirements of the United States Constitution. The requirement that criminal statutes provide some form of mens rea to establish guilt is a firmly rooted principal of our system of justice. Although the Florida legislature should act quickly, no one really expects that it will.

What Happened in the Mackle Vincent Shelton Case

In a case out of the United States District Court for the Middle District of Florida, Orlando Division, U.S. District Judge Mary S. Scriven found Florida's drug statute unconstitutional on its face as a violation of the Constitution of the United State's due process clause. After exhausting all of his appeals with the Florida courts, Macke Vincent Shelton filed for federal habeas corpus relief complaining that Florida Statute Section 893.13 is facially unconstitutional because it entirely eliminated the mens rea element from a drug offense and instead created a strict liability offense that resulted in a sentence of eighteen years in Florida state prison.

Macke Vincent Shelton's appointed attorney for the federal habeas corpus action was James E. Felman of Kynes, Markman & Felman, P.A., in Tampa, Florida. Numerous other organizations and law professors joined in filing "friend of the court" briefs, including the Florida Association of Criminal Defense Lawyers (FACDL), the National Association of Criminal Defense Lawyers (NACDL), the Drug Policy Alliance, the American Civil Liberties Union of Florida, the Calvert Institute for Policy Research, and 38 professors of law from 27 different law schools in the United States.

A copy of the Amicus Brief on why Florida's drug statute is unconstitutional can be found on NACDL's website at:$FILE/Shelton_Amicus.pdf

Impact of the Ruling that Florida's Drug Statute is Unconstitutional 

The opinion is extremely well written and well reasoned and expected by many to be upheld on appeal to the Eleventh Circuit Court of Appeals. The question then becomes: What impact will it have on drug cases throughout Florida for individuals convicted after 2002? Will the Florida legislature act again to eliminate the 2002 amendment that made Florida's drug statute unconstitutional in the first place.

Ways that individuals charged with or conviction of drug crimes can request relief:
  1. Petition for a Federal Writ of Habeas Corpus Under 28 U.S.C. § 2254 for individuals still being incarcerated in Florida State Prison after a conviction for the unconstitutional drug statute.
  2. Direct Appeals that must be initiated within 30 days of the sentencing by filing a notice of appeal.
  3. Motion for Post-Conviction Relief under Florida Rule of Criminal Procedure 3.850 which must normally be filed within two years of the sentencing or the conviction being affirmed on appeal whichever occurred later.
  4. In Florida's Circuit and County Courts for prosecutions of drug crimes under Florida's statute, preventing the prosecutor from using a prior conviction under the unconstitutional statute to enhance the sentence for a subsequent charge, including removing those points from the sentencing score sheet. 
  5. In prosecutions in federal courts, preventing the Assistant United States Attorney (AUSA) from using a prior drug conviction in a Florida prosecution at the state level from being used to enhance a federal sentence or make the individual ineligible for safety value provisions under the Federal Sentencing Guidelines.  
History of Florida's Drug Laws

The Florida Legislature made significant changes to Florida's controlled substance abuse laws, FLA.STAT. § 893.13, as amended by FLA.STAT. § 893.101 on May 13, 2002. The changes enacted in 2002 made Florida the only state to expressly to eliminate mens rea as an element of a drug offense.

In deciding whether Florida Statute Section § 893.13 included guilty knowledge as an element of the crime, the Florida Supreme Court found:
We believe it was the intent of the legislature to prohibit the knowing possession of illicit items and to prevent persons from doing so by attaching a substantial criminal penalty to such conduct. Thus, we hold Florida exempts itself from the age-old axiom: “The act does not make a person guilty unless the mind be also guilty.”
Florida law in statute section 893.02(6) defines the term "delivery" under the drug statutes to mean "the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.”

Prior to 2002 Florida's Drug Statute Required Instruction that "Knowledge" was an Element

In 1996, the Florida Supreme Court found that prosecutors in the State of Florida were required to prove that the person accused "knew of the illicit nature of the items in his possession." Chicone v. State, 684 So. 2d 736, 744 (Fla. 1996).  The Chicone decision also required the trial court to provide for a special jury instruction on the knowledge element.

In 2002, the Florida Supreme Court addressed Florida's statutory scheme for drug crimes and found that  “knowledge is an element of the crime of possession of a controlled substance, a defendant is entitled to an instruction on that element, and . . . [i]t is error to fail to give an instruction even if the defendant did not explicitly say he did not have knowledge of the illicit nature of the substance.” Scott v. State, 808 So. 2d 166, 170-72 (Fla. 2002).

Where the Florida Legislature Got It Wrong

In a knee jerk reaction to the Chicone v. State and more recent Scott v. State decision, the Florida legislature decided to prevent the Florida Supreme Court from inserting the knowledge element into Florida's drug statutes. In May of 2002, the Florida legislature amended Florida's Drug Abuse and Prevention and Control law to provide:
The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC94701 (Fla. 2002) and Chicone v. State, 684 So. 2d 736 (Fla. 1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.
The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.
Lack of Knowledge as an Affirmative Defense under Florida's Drug Statutes

In amending Florida's drug statutes, the Florida legislature effectively removed the "knowledge" element from Florida's drug statute and replaced it with a drastically "affirmative defense" provision that shifting the burden of proof and production to the person accused. The Florida legislature further provided in Florida Statute Section 893.101, the following provision:
In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those cases where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection.
This 2002 amendment made Florida's statutory scheme unique from any other state in the country for two reasons:
  1. The amendment made possession, delivery, or trafficking of a controlled substance a general intent crime which no longer required the prosecutor for the State of Florida to prove that the person accused of the drug crime was even aware that the contraband was illegal.
  2. The amendment required the defendant to assert lack of knowledge as an affirmative defense.
  3. If the defendant asserted such an affirmative defense in a case of either actual or constructive possession of the controlled substance, then the jury was instructed on a permissive presumption that "the possessor knew of the substance's illicit nature."
  4. Essentially, the burden was placed on the person accused to rebut the presumption that he knew of the substance's illicit nature.
See Wright v. State, 920 So. 2d 21, 24 (Fla. 4th DCA 2005).

Federal Habeas Corpus Relief from Florida's Unconstitutional Drug Statute

In federal court, a Writ of Habeas Corpus is filed pursuant to 28 U.S.C. § 2254. Relief under this provision is limited to individuals being imprisoned by the state when that conviction is in violation of the Constitution of the United States of America or other clearly established federal laws. But when the appeals in Florida's appellate courts resulted in a per curiam affirmance the decisions have no precedential value and are not an adjudication on the merits. Therefore, in Mackle Vincent Shelton v. Secretary, Department of Corrections, et. al., the federal court found that "no deference is due to the state court’s decision." Instead, Shelton's constitutional challenge to Florida Statute Section 893.13 was then decided under a de novo standard of review.

Under that standard, the federal court found Florida Statute Section 893.13 to be unconstitutionally on its face because it resulted in a strict liability offense which provided for overly broad regulation of otherwise innocuous conduct.

What Should the Public Know About this Ruling?

Perhaps the best way to explain this ruling to the public is to explain what happens when the Florida legislature eliminates the intent, knowledge or mens rea element from other criminal offenses. The opinion asks these questions:
  • Could the legislature amend its murder statute such that the State could meet its burden of proving murder by proving that a Defendant touched another and the victim died as a result, leaving the Defendant to raise the absence of intent as a defense, overcoming a permissive presumption that murder was the Defendant’s intent?...
  • Could the state prove felony theft by proving that a Defendant was in possession of an item that belonged to another, leaving the Defendant to prove he did not take it, overcoming a permissive presumption that he did?
Judges, criminal defense attorneys, and prosecutors throughout the State of Florida will continue to deal with the implications of the Florida legislature's 2002 amendment. The public will surely react with rage as it considers the implications of thousands of drug convictions working their way back through out criminal justice system. Who is to blame? Blame the Florida legislature that continues to attempt to amend and create criminal statutes without a knowledge, intent or mens rea element.

Related News Stories on Constitutionality of Florida's Drug Laws:

Florida Judge Declares State’s Drug Law Unconstitutional - Blog article from the Wall Street Journal Law Blog published on July 27, 2011.

Florida: Drug Laws Ruled Unconstitutional -News article from the New York Times about the federal decision finding Florida's drug law unconstitutional.

Videos on Florida's Unconstitutional Drug Law:

Crime Statistics in Florida: Three Minutes of Justice at Arraignment

More than 500,000 individuals are charged with a misdemeanor crime each year. That number represents roughly 3% of Florida's adult population. A new report on the impact of these misdemeanor cases was written by Sean Maddan, Ph.D., and Alisa Smith, J.D., with the University of Tampa, Department of Criminology and Criminal Justice. The report looks at the statistics showing how many of these cases are resolved at first appearance or arraignment by individuals that do not have an attorney.

Studies on National Crime Statistics for Misdemeanor Offenses

Earlier in 2011, the National Association of Criminal Defense Lawyers (NACDL) published a report called Minor Crimes, Massive Waste that looked at the way misdemeanor cases are resolved throughout the United States.

Studies on Crime Statistics for Misdemeanor Offenses in Florida

The national study was followed up by a statewide study that focused exclusively on the way such cases are handled in various counties throughout the State of Florida. Click here to ready more about crime statistics in Florida and the new study called Three Minute Justice; Haste and Waste in Florida’s Misdemeanor Court. You can read the full report here statistics on misdemeanor arraignments in Florida.

For the cases included in the study:
  1. 70% were resolved at arraignment;
  2. 85% of the misdemeanor arraignments lasted less than 3 minutes; and
  3. 65% of individuals at the misdemeanor arraignment did not have an attorney (either a privately retained attorney, appointed counsel, or an attorney from the public defender's office).
The Impact of Three Minutes of Justice for Individuals without an Attorney

The study goes on to discuss the impact these "three minutes of justice" will have on the individual for the rest of their life, including:
  • The direct consequences announced by the misdemeanor judge including a withhold of adjudication or a conviction, jail time or probation, fines and court costs, jail time, cost of prosecution, cost of supervision, cost of investigation, costs of attend classes for DUI school, drug and alcohol treatment, domestic violence classes, and more.
  • The collateral consequences that are rarely discussed at first appearance or arraignment such as:
    • Being labeled with a conviction for a “crime of dishonesty” which is always an impeachable offense that makes it difficult to pass even the most basic background check;
    • Being convicted of a “drug crime” for the large number of possession of marijuana charges which come with a host of implications for obtaining financial aid, getting scholarships, finding housing, and obtaining employment;
    • Ineligibility to care for foster children under Fla. Stat. §§ 39.001, 39.0121;
    • Loss or denial of employment for state, municipal, or other public employers as provided by Fla. Stat. §§ 943.13, 110.1127, 110.127, 166.0442, and 30.29;
    • Suspension or refusal to grant a dental, nursing or medical license as provided in Fla. Stat. §§ 466.0067, 456.074, and 456.039;
    • Inability to obtain public housing for certain misdemeanor convictions as provided in Fla. Stat. § 60.05; and
    • Suspension of a Florida driver’s license or commercial driving privileges as provided in Fla. Stat. §§ 322.03, and 316.302.
The report contains common sense recommendations that should be a must read for judges, prosecutors, public defenders, and private criminal defense lawyers. As budget cuts put more and more pressure on trial judges to handle such cases with even greater haste, we quickly reach the point that the haste ends up creating an ineffective system is counter-productive for the taxpayers of the State of Florida.

The Hidden Costs Associated with Hasty Decisions

Those individuals tarnished with an unduly hasty decision return to our communities where they are often unable to find employment, return to school, or enjoy the small benefits that those of us without a criminal record take for granted. When the individual commits a serious crime such consequences are justified, but for many minor misdemeanor offenses those "three minutes of justice" may be completely inadequate.

My Two Cents - The Role of the Public Defender

In my opinion, the fastest way to help correct this problem is for public defenders to give a speech before the judge takes the bench explaining what is about to take place and advising those people in the courtroom about the benefits of at least talking to a criminal defense attorney about their options before they enter a plea of guilty or not guilty. When I was a young public defender 10 years ago, our office required us to give such a speech before court began. 

The most important part of the speech - "whether you enter a plea of guilty or whether you enter a plea of not guilty and post bond, you will be released from the jail at the same time." I say that because many people believed that by entering a plea they would be released from custody faster. Other people were irrationally afraid that their family would bond them out even though the family was already in the process of bonding them out of jail.  

We all knew that whether we gave that speech and the way we gave that speech made a huge difference in how many people asked to return with an attorney, how many people asked to have a public defender appointed, and how many people entered a plea of "not guilty."

The judges hated it because it caused fewer people to plead guilty. Some judges called it "soliciting" clients which is kind of silly when you are a public defender. But counteracting that perception that the best thing to do was enter a plea and "get it over with" was important.

The person accused for the first time, young people and lower income individuals are at a huge disadvantage during those three minutes of justice. But at the end of the day the person accused has a responsibility to seek out information and make the best decision for their particular case.

Ron Paul on Marijuana Prohibition at Federal Level: "Joint" Congressional Legislation

The forty year war on drugs is beginning to end. Congress is introducing legislation that would end marijuana prohibition at the federal level. Ron Paul sponsored the legislation. While other snicker, Ron Paul knows that ending cannabis prohibition will cut the drug cartel's profits in half over night.

Ron Paul Introduces Legislation to End Marijuana Prohibition at Federal Level

Think about it - the most commonly used drug in the United States and suddenly the Mexican drug cartel has no ability to make a profit by bring it across our borders. Even the DEA estimates that marijuana imports make up about 50% of the profits from drug cartels.

Law enforcement could spend their resources on more important matters. Think about this - at a local level roughly 15% of the arrests made are for possession of marijuana. That percentage is roughly the same from Florida to New York.

The Republican and Democrats can continue with the status quo. But Ron Paul may just come in to surprise everyone if he keeps standing on principle. This is not about keeping the dope smokers happy. This is about redefining the role of government. End marijuana prohibition is one necessary step in that transition.

The legislation is modeled after the Repeal of Alcohol Prohibition. Rep. Ron Paul (R-TX) and Rep. Barney Frank (D-MA) introduce bi-partisan legislation today which will effective end the federal war on marijuana. Instead of prohibition, the federal law enforcement efforts would be limited to stopping marijuana and other drugs from crossing our boarders. In other words, regulating marijuana becomes the responsibility of the states not the federal government.

The legislation, called the "Ending Federal Marijuana Prohibition Act of 2011" removes marijuana and THC from the five schedules of the United States Controlled Substances Act of 1970. So marijuana would no longer be a Schedule I controlled substance. Furthermore, the feds would be prohibited from going after adults who possess marijuana in state in which the substance is legal.

This new marijuana legislation would end the conflict between the sixteen states that have decriminalized marijuana and the federal government current enforcement tactics. States would be able to regulate marijuana on a state by state basis.

Ron Paul's Standing on Principle

If you favor the legislation then fax, call and e-mail your representatives in the House and Senate. Spread the word. Let's more the left and the right more towards a smaller federal government. Let's stop bankrupting this Great Country on wars we cannot win and cannot afford.

If Ron Paul keeps standing on principle, he can win this election.

Attorney for Hearings on Petition for Protection Against Domestic Violence or Repeat Violence in Tampa and Plant City in Hillsborough County, FL

So you were just served with a Temporary Injunction for Protection Against Repeat Violence or Domestic Violence in Tampa or Plant City for Hillsborough County, FL?

This article discusses general information to help you spot the issues presented in many of these cases. However, in order to obtain advice about what you should do next you must contact an attorney to discuss the particular facts of your case.

The attorneys at the Sammis Law Firm provide free consultations to talk with anyone served with a temporary injunction for protection against repeat violence or domestic violence for Hillsborough County or the surrounding counties of Pasco, Pinellas, or Polk County, FL.

Leslie Sammis has more than ten years experience fighting domestic violence cases to protect her clients from the impact of false or exaggerated accusations. Call 813-250-0500 to talk directly with the attorney about the case. 

Last Updated on September 9, 2013

Judges for Restraining / Protective Order Hearings in Tampa

Currently, the hearings for the temporary injunctions for protection against repeat violence (or domestic violence) are heard in front of one of these three Circuit Court Judges for Hillsborough County, FL:
  • The Honorable Frances M. Perrone, judge for repeat violence, dating, stalking or domestic violence injunction hearings in Division "G" in courtroom 302 in the Edgecomb Building at 800 East Twiggs Street, Tampa, FL 33602.
  • The Honorable Scott A. Farr, judge for for repeat violence, dating, stalking or domestic violence injunction hearings) at courtroom 303, Division "H" at 800 East Twiggs Street, Tampa, FL 33602.
Judges for Restraining / Protective Order Hearings in Plant City, FL
  • For cases in Plant City, the case will be assigned to Division "S" before The Honorable Art E. McNeil in courtroom 1 (for repeat violence, dating, stalking or domestic violence injunction hearings) in courtroom P-1 at the Plant City Courthouse at 302 North Michigan Avenue, Plant City, FL 33563.
  • Cases in Plant City can also be assigned to Division "V" before The Honorable Dick Greco, Jr., in courtroom 2 at 301 North Michigan Ave., Plant City, FL 33563.
Consequences of a Domestic Violence or Repeat Violence Injunction

You should talk with an attorney about the possible consequences that can occur if the court finds a sufficient basis to issue a Temporary or Final Judgment of Injunction for Protection Against Repeat Violence or Domestic Violence. These consequences can include:
  1. Not being able to return to a certain location including your home or place of business;
  2. Not being able to see your children; 
  3. Losing your right to possess a firearm or dangerous weapon while the injunction is in effect; and
  4. Having the allegations in the petition and the fact that an injunction was granted show up in any basic background check for the rest of your life. 
Reasons to Request a Continuance so Your Attorney Can be Completely Prepared

The hearing is your one chance to present testimony from witnesses such as neighbors or police officers. It is also your one chance to provide the court with relevant documents that may show that the allegations against you are false or exaggerated.

In many of these cases the hearing is scheduled within a few days or a few weeks of when the petition for the injunction is served on the Respondent. Often this very short period of time is insufficient to be properly prepared for the hearing.

Your attorney may need to obtain police reports, subpoena witnesses to testify at the hearing, and locate documents such as prior legal filings between the parties, text messages, e-mail records, comments on Facebook or other social media profiles, and/or phone records.

Your attorney may also need additional time to subpoena the Petitioner (the one making the allegations of domestic violence or repeat violence) to testify at depositions. Your attorney can also find out what exhibits or witnesses the Petitioner intends to present at the hearing.

Depositions give your attorney an opportunity to question the petitioner under oath about the allegations prior to the actual hearing. In these cases in which your attorney needs additional time to be prepared for the hearing, your attorney can ask the court for a continuance after showing good cause for the request. 

Tampa Protective Order / Restraining Order Attorney Warning: Do not violate the letter or spirit of the temporary injunction. Do not contact the Petitioner in any way for any reason including text, phone calls, letters, flowers, or messages through a third party. Read the order carefully. Do not return to the home to retrieve your personal items without a police escort.

Obtaining Experienced Representation at an Injunction Hearing in Tampa or Plant City, FL

If you were served with an injunction for protection against domestic violence or repeat violence then contact an attorney to discuss the facts of your case. You may decide not to contest the injunction. However, if the allegations are false or exaggerated then you may decide to hire an attorney to represent you at the hearing. Our offices are located in downtown Tampa.

We represent Respondents at the hearings on petitions for an order of protection against repeat violence or domestic violence in Tampa and Plant City, FL.

Related domestic violence charges prosecuted in state court can include: domestic violence battery, assault, aggravated battery by strangulation, battery on a pregnant female, false imprisonment and interference with a 911 call. 

New Florida Firearm Laws Approved by Senate

Florida's New Firearm Laws

The Florida Senate passed two important bills that protect citizens from unfair prosecutions related to the possession of a firearm. This new legislation gives advocates for gun rights throughout Florida reason to celebrate.

  • House Bill 45, which was substituted for Senate Bill 402 based by a 30-8 margin. This bill prohibits local governments from passing their own patchwork of gun laws that would vary from one part of the state to another. This bill has already passed and is waiting to be signed by Governor Rick Scott. Gun rights advocates consider this bill an important piece of legislation that prevents unfair prosecutions as individuals travel from one part of the state to another. Individuals are often unaware of small difference in the laws related to firearm possession in various cities or counties throughout the state.
  • Senate Bill 234, known as the "accidental display bill" provides a defense to the second degree misdemeanor offense of carrying a firearm in open view under Florida Statute Section 790.053 and may possibly impact the first degree misdemeanor of improper exhibition of a firearm. The bill was approved by a margin of 26-11. This bill started off as an "open carry” law but was watered down to decriminalize the accidental showing of a concealed weapon. Although the bill was watered down, it may still provides a very important protection against Florida's broad statute concerning the "improper" exhibition of a firearm.
Careless Exhibition of a Firearm under Florida Law

We all know that Florida law allows a person who possesses a valid permit to carry a "concealed" weapon. Many people do not realize that it is a first degree misdemeanor to "carelessly" exhibit the firearm to another. This misdemeanor crime is one of the most commonly prosecuted firearm charge in Florida, although it is unclear how many times these prosecutions involve careless acts as opposed to intentional acts since the statute allows either. 

Florida Statute Section 790.10 is entitled, "improper exhibition of dangerous weapons or firearms." The statute provides as follows:
"if any person having or carrying any . . . weapon shall, in the presence of one or more (other) persons, exhibit the same in a rude, careless, angry or threatening manner, not in necessary self defense, the person so offending shall be guilty of a misdemeanor of the first degree".
Florida's New Law on Carrying Firearm in Open View

The new statutory language provides:
    2         An act relating to firearms; amending s. 790.053,
    3         F.S.; providing that a person who is licensed to carry
    4         a concealed firearm is not in violation of law if the
    5         firearm is briefly and openly displayed under certain
    6         circumstances; amending s. 790.06, F.S.; allowing the
    7         Division of Licensing of the Department of Agriculture
    8         and Consumer Services to take fingerprints from
    9         concealed carry license applicants; providing that a
   10         person may not openly carry a weapon or firearm or
   11         carry a concealed weapon or firearm into specified
   12         locations; providing that concealed carry licensees
   13         shall not be prohibited from carrying or storing a
   14         firearm in a vehicle for lawful purposes; providing
   15         that a provision limiting the scope of a license to
   16         carry a concealed weapon or firearm does not modify
   17         certain exceptions to prohibited acts with respect to
   18         a person’s right to keep and bear arms in motor
   19         vehicles for certain purposes; repealing s. 790.28,
   20         F.S., relating to the purchase of rifles and shotguns
   21         in contiguous states; amending s. 790.065, F.S.;
   22         providing that specified provisions do not apply to
   23         certain firearms transactions by a resident of this
   24         state; providing an effective date.
   26  Be It Enacted by the Legislature of the State of Florida:
   28         Section 1. Subsection (1) of section 790.053, Florida
   29  Statutes, is amended to read:
   30         790.053 Open carrying of weapons.—
   31         (1) Except as otherwise provided by law and in subsection
   32  (2), it is unlawful for any person to openly carry on or about
   33  his or her person any firearm or electric weapon or device. It
   34  is not a violation of this section for a person licensed to
   35  carry a concealed firearm as provided in s. 790.06(1), and who
   36  is lawfully carrying a firearm in a concealed manner, to briefly
   37  and openly display the firearm to the ordinary sight of another
   38  person, unless the firearm is intentionally displayed in an
   39  angry or threatening manner, not in necessary self-defense.
   40         Section 2. Paragraph (c) of subsection (5) and subsection
   41  (12) of section 790.06, Florida Statutes, are amended to read:
   42         790.06 License to carry concealed weapon or firearm.—
   43         (5) The applicant shall submit to the Department of
   44  Agriculture and Consumer Services:
   45         (c) A full set of fingerprints of the applicant
   46  administered by a law enforcement agency or the Division of
   47  Licensing of the Department of Agriculture and Consumer
   48  Services.
   49         (12)(a)A No license issued under pursuant to this section
   50  does not shall authorize any person to openly carry a handgun or
   51  carry a concealed weapon or firearm into:
   52         1. Any place of nuisance as defined in s. 823.05;
   53         2. Any police, sheriff, or highway patrol station;
   54         3. Any detention facility, prison, or jail;
   55         4. Any courthouse;
   56         5. Any courtroom, except that nothing in this section would
   57  preclude a judge from carrying a concealed weapon or determining
   58  who will carry a concealed weapon in his or her courtroom;
   59         6. Any polling place;
   60         7. Any meeting of the governing body of a county, public
   61  school district, municipality, or special district;
   62         8. Any meeting of the Legislature or a committee thereof;
   63         9. Any school, college, or professional athletic event not
   64  related to firearms;
   65         10. Any elementary or secondary school facility or
   66  administration building;
   67         11. Any career center;
   68         12. Any portion of an establishment licensed to dispense
   69  alcoholic beverages for consumption on the premises, which
   70  portion of the establishment is primarily devoted to such
   71  purpose; any elementary or secondary school facility; any career
   72  center;
   73         13. Any college or university facility unless the licensee
   74  is a registered student, employee, or faculty member of such
   75  college or university and the weapon is a stun gun or nonlethal
   76  electric weapon or device designed solely for defensive purposes
   77  and the weapon does not fire a dart or projectile;
   78         14. The inside of the passenger terminal and sterile area
   79  of any airport, provided that no person shall be prohibited from
   80  carrying any legal firearm into the terminal, which firearm is
   81  encased for shipment for purposes of checking such firearm as
   82  baggage to be lawfully transported on any aircraft; or
   83         15. Any place where the carrying of firearms is prohibited
   84  by federal law.
   85         (b) A person licensed under this section shall not be
   86  prohibited from carrying or storing a firearm in a vehicle for
   87  lawful purposes.
   88         (c) This section does not modify the terms or conditions of
   89  s. 790.251(7).
   90         (d) Any person who knowingly and willfully violates any
   91  provision of this subsection commits a misdemeanor of the second
   92  degree, punishable as provided in s. 775.082 or s. 775.083.

When does a careless or inadvertent exhibition of a firearm occur?

So if a person is lawfully carrying a concealed weapon that is inadvertently displayed then the misdemeanor offense can be alleged and prosecuted. How would such an inadvertent display occur? Possible situations that could be impacted by this new legislation could include the following:
  • A man has a firearm in a holster on his belt. The wind blows his jacket away from his body and a bystander sees the firearm on his belt and becomes concerned.
  • A woman has a firearm in her purse. While standing in line in the grocery store the woman reaches into the purse to get a wallet and the person in line behind her sees the firearm in the bag and becomes concerned.
  • A person with a concealed weapon repositions the weapon in a manner that makes it visible to another person.
  • A person leaves a firearm in a bag that is within reach of a child or teenager and another person becomes concerned and calls the police.
Why have a criminal charge that doesn't require a willful act?

Most criminal offenses in Florida require a showing that the person accused committed the act willfully, intentionally and with knowledge. The improper exhibition statute, however, allowed for the much lower showing that the person accused acted "carelessly." That determination of whether the defendant was careless or not in exhibiting the firearm might ultimately be decided by the jury at trial.

But even in questionable cases the individual could be arrested, driven to the jail, booked into the jail, required to post bond, forced to hire a criminal defense attorney, and then appear in court for pre-trial hearings in order to fight the criminal charge. If you think that overly aggressive prosecutions don't occur then think again. Prosecutors often say they have "no discretion" when it comes to firearms cases. Many prosecutors believe any firearm charge must be prosecuted aggressively.

Does Florida's Senate Bill 234 known as the "accidental display bill" really matter?

Although some may argue that "careless" exhibitions are rarely prosecuted, it is hard to imagine any "careless" exhibition that should be prosecuted if the person did not act willfully and with knowledge.

Case law indicates that the firearm must be displayed in a manner that a "reasonable person" might think they could get accidentally shot or in a manner that is "blatantly offensive." Who decides what conduct is "blantantly offensive"?  Florida has very little case law that defines or limits this standard under particular factual situations.

These standards are difficult to apply in many circumstances. Law enforcement officers often make an arrest first and ask questions later, so by using a "careless" standards instead of a "willful" standard overly aggressive or selective prosecutions could occur. 

What do you think of the proposed legislation?

It is already well-settled under Florida law that it is an affirmative defense if the weapon is displayed in the course of acting in lawful self-defense. What will the impact of this new legislation be on the prosecution of cases for an "accidental display" or "careless" exhibition of a firearm?

Hillsborough County Seal and Expunge Video

After an arrest it is important to preserve your right to seal or expunge your criminal record. The internet has brought a new level of transparency to all levels of our life. This level of transparency can cause a lot of problems when friends, family and potential employers can find a mug shot simply by looking on the Hillsborough County Sheriff's Office (HSCO) website.

Even more problematic, some private data mining companies are creating profiles based on these mug shots which are optimized for the individuals name. In other words, if you have an fairly unusual name and enter it in Google's search engines, the first listing will be a website that has your mug shot and arrest information displayed.

Everyday I sit in court and watch individuals waive their right to an attorney and enter a plea to some misdemeanor offense. I wonder how many of them realize that an adjudication to that offense means they will never be able to seal or expunge any criminal record for the rest of their life.

Learn more about the seal and expunge process. You can only seal or expunge one record in your lifetime. If you have a series of arrest records related to one type of incident you should contact an attorney. Even separate case numbers can be combined in the petition to seal or expunge a record if you can show it was all one related "incident."

Read more about how we help people seal or expunge a criminal record in Tampa or Hillsborough County, FL, and the surrounding areas. Watch an informative video on the topic created by the Hillsborough County Clerk's Office:

Additional Resources

How Long it Takes to Expunge or Seal a Criminal Record - Learn more about why it takes an average of 6 to 10 months to expunge or seal a criminal record history in Tampa or Hillsborough County, FL. Also find out why you might need a lawyer to help you expunge or seal the record instead of trying to do it yourself to save money.

Florida Drug Trafficking Minimum Mandatory Sentences Would be Abolished IF New Florida Bill Passed

Read more about Senate Bill 1334 recently sponsored by Sen. Ellyn Bogdanoff (R-Fort Lauderdale, Florida) and the house counterpart, House Bill 917, sponsored by Rep. Ari Porth (D-Coral Springs, Florida). The bills seek to abolish all minimum mandatory requirements but would leave the current fines in place which range from $25,000 to $500,000. The proposed legislation requires substance abuse treatment and allows for reentry programs for certain non-violent drug offenders.

The current system is particularly unjust for individuals with substance abuse problems who are in possession of prescription medication (without a valid prescription). Even one bottle of pills can trigger the minimum mandatory sentences. In many of these cases, the possession may have been intended only for personal use, although those individual are now automatically deemed to be "drug traffickers" under the current statutory scheme. The legislation applies not only to prescription medication, but also to common street drugs such as cocaine and heroin.

Under the proposed legislation judges would have more control to fashion reasonable sentences depending on the particular facts of the case instead of warehousing non-violent offenders for decades in Florida's Prison System. Creating more reasonable sentences will also save the tax payers millions of dollars and allow those resources to be put to better use in fighting substance abuse issues.   
Read more from Families Against Mandatory Minimums on Monday, February 28, 2011 at 12:25pm
Twin bills filed in the Florida Legislature this week propose doing away with mandatory minimum sentences for trafficking in controlled substances, which currently range anywhere from three to 25 years depending on the weight of the substance.
Read a recent article about this proposed legislation:

Doctors, Pain Clinics & Pill Mills

Detectives with the Hillsborough County Sheriff’s Office (HCSO) wrapped up the first phase of an investigation of Tampa Bay pain clinics. The three-month undercover investigation in the Tampa Bay area was dubbed "Operation Pain Reliever." The first phase of the investigation resulted in more than 85 men and women being arrested and charged with felony offenses that included doctor shopping, conspiracy to traffic in prescription medications and trafficking in a controlled substance over 28 grams.

During the investigation, undercover officers entered pain clinics posing as patients in order to gather evidence of buying pills, doctor shopping, and presenting fake or forged prescriptions. The detectives also recruited confidential informants who were working as employees in the pain clinics in an attempt to gather additional evidence. The detectives also used current and former patients as confidential informants to gather evidence against area doctors. 

Those men and women who were recently arrested will be interrogated in order to gather information about the doctors that run the various pain clinics throughout the Tampa Bay area. Several doctors have been arrested for running pain clinics in Florida after law enforcement officers converged on their homes and businesses and raided business records, froze bank accounts, and seized vehicles and other valuables labeled as evidence of criminal wrongdoing. In some instances, the law enforcement agencies attempted asset forfeiture actions against the seized property.

Law enforcement officers predict more arrests of health care professionals during the coming months as evidence is gathered against the pain clinics, often called "pill mills" by law enforcement officers. Possible criminal charges include racketeering, trafficking in a controlled substance over 28 grams and conspiracy to traffic a controlled substance, operating a Tampa pain clinic without a license,  

Read more about Hillsborough County Pain Clinic Doctor Investigations -  02/03/2011 press release. 

Tampa Police Department, Gasparilla, and the "Zero Tolerance" Arrest for Open Container

Want to avoid being arrested at Gasparilla?

Last year, the Tampa Police Department's new "Zero Tolerance" policy on open containers caught many by surprise. Although the rain cut attendance in half, the number of people arrests more than tripled. In 2010 more than 413 individuals arrested. Most of those people were arrested and released at the scene with a "notice to appear" citation on a City of Tampa ordinance violation.

Imaginary Line - Wet Zone and Dry Zone

Officials with the Tampa Police Department promise more signs this year. Most of the paper signs last year were destroyed by the rain so most people were unsure where the imaginary line for the "wet-zone" started or stopped.

Possessing an alcoholic beverage outside of the parade route let to hundreds of citations for city ordinance violations. Technically, the "wet-zone" extends from the far curb on Bayshore to the bay.

For those individuals stopped by the police who were from out of town, they were taken to jail, booked and subjected to a mug shot before being allowed to post a $250.00 bond. That arrest record and mug shot is published on the Hillsborough County Sheriff's Office website. Other records of the prosecution are published on the Hillsborough County Clerk of Court's website, including details about each court date and the final disposition of the case.

Selective Enforcement of Tampa's Open Container Ordinance

It has been reported that the Tampa Police Department selectively enforced the "zero tolerance" rule by yelling for a group to freeze and then selecting the most cooperative member for interrogation. Some people would keep walking or simply poured the beverage onto the ground. For those individuals who stopped to talk to the police, and admitted having alcohol, the police rewarded them with a citation for "open container." In some cases, the officers took samples of the alcoholic beverages as evidence.

Illegal and Unreasonable Detentions at Gasparilla 2011

Tampa criminal defense attorneys will argue that in many of these cases the law enforcement officers exceeded their authority by illegally detaining individuals without any reasonable grounds to justify the stop. By filing a motion to suppress evidence gathered as a result of the illegal detention, all evidence gathered during the illegal detention could be suppressed. Without evidence of possession of an alcoholic beverage or open container, the prosecutor could be forced to drop the charges before trial.

The Tampa City Ordinance for Open Container is Comparable to a 2nd Degree Misdemeanor

Tampa's city ordinance violation is comparable to a second degree misdemeanor under state law. Both are punishable by 60 days in jail or 6 months probation and/or a $500.00 fine. The notice to appear requires a court appearance in front of a county court judge.

A conviction for a city ordinance violation has many of the same indirect consequences as a criminal conviction for a second degree misdemeanor - including a life-time ban on the ability to seal or expunge any criminal record in the future.

Read the more about Arrested for open container at Gasparilla? What you need to know... which includes a copy of the statutory language for the City of Tampa ordinance violation or watch the video from 10 News:

If you want an alcohol free event, then enjoy the Children's Gasparilla Extravaganza on January 22nd.
Arrested at Gasparilla? Open Container Penalties - Read more about why arrests at Gasparilla tripled even though the attendance was cut in half in 2010.

Update for Gasparilla 2011 Arrests by Tampa Police Department - Video called "Responsibility Matters" narrated by Chief Jane Castor and Officer Roy Paz with the Tampa Police Department. In the video, TPD Chief Castor and Officer Paz explain the TPD Educational Campaign and Zero Tolerance Enforcement Plan for Gasparilla 2011.

Joe McNamara Explains the DEA's Failed War on Drugs

Joe McNamara, former San Jose police chief, on Fox News talking about the DEA's failed war on drugs. Did you know about the DEA's vastly expanding presence across the globe in an effort to eradicate drugs? Secret diplomatic cables obtained by WikiLeaks and released to the media provide tremendous insight into how the DEA operates in foreign countries.

New York Times - What WikiLeaks Obtained Cables Tell Us About DEA Expansion

Joseph McNamara is a member of Law Enforcement Against Prohibition (LEAP), which any civilian can join for free at

View his impressive profile here - Joe McNamara's LEAP Profile.