Katelyn Baker
Well-Known Member
Florida's first legal medical marijuana dispensary is opening this week in Tallahassee.
Daytona Beach drunken-driving defense attorney Aaron Delgado sees a connection between pot's enhanced profile and a case he just lost in the Florida Supreme Court without even getting a chance to argue.
Bad timing derailed the hearing. The U.S. Supreme Court ruled June 23 that states may sanction drunken-driving suspects who refuse to take breath tests. The court's decision in a Minnesota case stifled Delgado's pending Fourth Amendment challenge to Florida's "refusal to submit" law.
Yet Delgado is asking the Tallahassee court to send his client William Williams's case back to the Fifth District Court of Appeal, where he lost last year.
Why return to the scene of defeat?
Delgado said he's pushing for uniformity in the laws governing breath, blood and urine tests. This affects marijuana because it's detectable in blood and urine, but not breath.
He said Florida law is unclear even after the U.S. Supreme Court addressed breath and blood testing in three consolidated cases from Minnesota and North Dakota.
"Give us instructions on blood, breath and urine so that way we have some guidance," Delgado said.
He's also trying to limit the fallout from the Washington rulings, styled Birchfield v. North Dakota.
Warrantless breath testing relies on an exception to the Fourth Amendment's prohibition of unreasonable searches and seizures. The Fifth District announced a rationale for allowing warrantless breath tests that may be broad enough to threaten virtually all testing constraints.
"Before you know it, the exception swallows the rule," said Delgado, who is running for Daytona Beach city commissioner. "It's a dangerous precedent."
It's Reasonable
Williams was arrested at about 10:17 p.m. on Oct. 24, 2013, on suspicion of drunken driving. One of his five tickets was for violating Florida Statutes Section 316.1939 (2013), an implied-consent law that says refusing breath, blood or urine tests - if the suspect balked once before and there's probable cause for an arrest - is a misdemeanor.
Delgado filed a motion to dismiss in county court, saying the law is unconstitutional as applied to Williams, and the case flew up to the Fifth District on wings of public importance.
In retrospect, the Fifth District sowed confusion by disagreeing with another state's high court ruling in a case called Bernard v. Minnesota. When the U.S. Supreme Court decided Bernard and the other two cases June 23, it said the Minnesota Supreme Court was right: The Fourth Amendment permits warrantless breath tests under an exception for searches incident to drunken-driving arrests.
But on June 25, 2015, the Fifth District said the Minnesota Supreme Court was wrong. The warrant exception based on arrest could only be justified if officers had to act for their own safety or to ensure the suspect didn't destroy evidence, neither of which is true for a breath test, the panel decided.
Ruling on a question of first impression, the court embraced a different rationale for warrantless breath tests: general reasonableness. Judge Jay Cohen wrote, "The touchstone of the Fourth Amendment is reasonableness," quoting from Maryland v. King, a 2013 U.S. Supreme Court decision.
"To say that no warrant is required is merely to acknowledge that 'rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable,' " Cohen continued in his King citation.
He used the new test and found the law constitutional as applied to Williams.
"Balancing Williams' diminished expectation of privacy and the minimal invasiveness of the search against the state's legitimate interest in curbing driving under the influence leads us to conclude that a post-arrest warrantless breath-alcohol test would have been permissible under the Fourth Amendment," Cohen wrote.
Delgado said the court may have arrived at the right destination via the wrong intellectual route, the one implicitly rejected by the U.S. Supreme Court in Bernard. He called it an example of the aptly named "tipsy coachman" doctrine.
Sotomayor Dissents
Under the Fifth District standard, could warrantless breath, blood or urine tests ever be deemed unreasonable?
Delgado seemed concerned that in the current climate, the answer may be no. "It's just going to be this slow, steady erosion, and one day you wake up and the police can stop you for any reason," he said.
Justice Sonia Sotomayor dissented in Bernard and wrote a ringing defense of the warrant requirement for blood and breath tests. Categorical loopholes should always be disfavored, she argued.
"It should go without saying that any analysis of whether to apply a Fourth Amendment warrant exception must necessarily be comparative," Sotomayor wrote. "If a narrower exception to the warrant requirement adequately satisfies the governmental needs asserted, a more sweeping exception will be overbroad and could lead to unnecessary and 'unreasonable searches' under the Fourth Amendment."
In a different context last month in Utah v. Strieff, Sotomayor used her dissent to excoriate police for a stop in which an arrest warrant turned up after the fact. They lacked probable cause for the initial detention, however.
She accused the majority of sanctioning police stops that "corrode all our civil liberties and threaten all our lives."
Delgado would like all warrantless tests of breath, blood and urine to be presumed unreasonable.
After its summer break, the Florida Supreme Court will have three options. The justices could cite Bernard and affirm the Fifth District decision, remand the case for reconsideration of the general reasonableness standard in light of Bernard or interpret the controlling precedent themselves.
WILLIAM WILLIAMS, APPELLANT, V. STATE OF FLORIDA, APPELLEE
Case no.: SC15-1417
Oral argument date: Sept. 1, 2016 (canceled)
Case type: Drunken-driving search and seizure
Court: Florida Supreme Court
Lawyers for petitioner: Aaron G. Delgado and Eric A. Latinsky, Damore, Delgado, Romanik & Rawlins, Daytona Beach
Lawyers for respondent: Pamela Jo Bondi, Attorney general's office, Tallahassee; Kristen L. Davenport and Wesley Heidt, Attorney general's office, Daytona Beach
Author of opinion below: Judge Jay P. Cohen
News Moderator: Katelyn Baker 420 MAGAZINE ®
Full Article: Florida DUI Defense Lawyer Asks What About Pot?
Author: Noreen Marcus
Contact: 877-256-2472
Photo Credit: None Found
Website: Daily Business Review
Daytona Beach drunken-driving defense attorney Aaron Delgado sees a connection between pot's enhanced profile and a case he just lost in the Florida Supreme Court without even getting a chance to argue.
Bad timing derailed the hearing. The U.S. Supreme Court ruled June 23 that states may sanction drunken-driving suspects who refuse to take breath tests. The court's decision in a Minnesota case stifled Delgado's pending Fourth Amendment challenge to Florida's "refusal to submit" law.
Yet Delgado is asking the Tallahassee court to send his client William Williams's case back to the Fifth District Court of Appeal, where he lost last year.
Why return to the scene of defeat?
Delgado said he's pushing for uniformity in the laws governing breath, blood and urine tests. This affects marijuana because it's detectable in blood and urine, but not breath.
He said Florida law is unclear even after the U.S. Supreme Court addressed breath and blood testing in three consolidated cases from Minnesota and North Dakota.
"Give us instructions on blood, breath and urine so that way we have some guidance," Delgado said.
He's also trying to limit the fallout from the Washington rulings, styled Birchfield v. North Dakota.
Warrantless breath testing relies on an exception to the Fourth Amendment's prohibition of unreasonable searches and seizures. The Fifth District announced a rationale for allowing warrantless breath tests that may be broad enough to threaten virtually all testing constraints.
"Before you know it, the exception swallows the rule," said Delgado, who is running for Daytona Beach city commissioner. "It's a dangerous precedent."
It's Reasonable
Williams was arrested at about 10:17 p.m. on Oct. 24, 2013, on suspicion of drunken driving. One of his five tickets was for violating Florida Statutes Section 316.1939 (2013), an implied-consent law that says refusing breath, blood or urine tests - if the suspect balked once before and there's probable cause for an arrest - is a misdemeanor.
Delgado filed a motion to dismiss in county court, saying the law is unconstitutional as applied to Williams, and the case flew up to the Fifth District on wings of public importance.
In retrospect, the Fifth District sowed confusion by disagreeing with another state's high court ruling in a case called Bernard v. Minnesota. When the U.S. Supreme Court decided Bernard and the other two cases June 23, it said the Minnesota Supreme Court was right: The Fourth Amendment permits warrantless breath tests under an exception for searches incident to drunken-driving arrests.
But on June 25, 2015, the Fifth District said the Minnesota Supreme Court was wrong. The warrant exception based on arrest could only be justified if officers had to act for their own safety or to ensure the suspect didn't destroy evidence, neither of which is true for a breath test, the panel decided.
Ruling on a question of first impression, the court embraced a different rationale for warrantless breath tests: general reasonableness. Judge Jay Cohen wrote, "The touchstone of the Fourth Amendment is reasonableness," quoting from Maryland v. King, a 2013 U.S. Supreme Court decision.
"To say that no warrant is required is merely to acknowledge that 'rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable,' " Cohen continued in his King citation.
He used the new test and found the law constitutional as applied to Williams.
"Balancing Williams' diminished expectation of privacy and the minimal invasiveness of the search against the state's legitimate interest in curbing driving under the influence leads us to conclude that a post-arrest warrantless breath-alcohol test would have been permissible under the Fourth Amendment," Cohen wrote.
Delgado said the court may have arrived at the right destination via the wrong intellectual route, the one implicitly rejected by the U.S. Supreme Court in Bernard. He called it an example of the aptly named "tipsy coachman" doctrine.
Sotomayor Dissents
Under the Fifth District standard, could warrantless breath, blood or urine tests ever be deemed unreasonable?
Delgado seemed concerned that in the current climate, the answer may be no. "It's just going to be this slow, steady erosion, and one day you wake up and the police can stop you for any reason," he said.
Justice Sonia Sotomayor dissented in Bernard and wrote a ringing defense of the warrant requirement for blood and breath tests. Categorical loopholes should always be disfavored, she argued.
"It should go without saying that any analysis of whether to apply a Fourth Amendment warrant exception must necessarily be comparative," Sotomayor wrote. "If a narrower exception to the warrant requirement adequately satisfies the governmental needs asserted, a more sweeping exception will be overbroad and could lead to unnecessary and 'unreasonable searches' under the Fourth Amendment."
In a different context last month in Utah v. Strieff, Sotomayor used her dissent to excoriate police for a stop in which an arrest warrant turned up after the fact. They lacked probable cause for the initial detention, however.
She accused the majority of sanctioning police stops that "corrode all our civil liberties and threaten all our lives."
Delgado would like all warrantless tests of breath, blood and urine to be presumed unreasonable.
After its summer break, the Florida Supreme Court will have three options. The justices could cite Bernard and affirm the Fifth District decision, remand the case for reconsideration of the general reasonableness standard in light of Bernard or interpret the controlling precedent themselves.
WILLIAM WILLIAMS, APPELLANT, V. STATE OF FLORIDA, APPELLEE
Case no.: SC15-1417
Oral argument date: Sept. 1, 2016 (canceled)
Case type: Drunken-driving search and seizure
Court: Florida Supreme Court
Lawyers for petitioner: Aaron G. Delgado and Eric A. Latinsky, Damore, Delgado, Romanik & Rawlins, Daytona Beach
Lawyers for respondent: Pamela Jo Bondi, Attorney general's office, Tallahassee; Kristen L. Davenport and Wesley Heidt, Attorney general's office, Daytona Beach
Author of opinion below: Judge Jay P. Cohen
News Moderator: Katelyn Baker 420 MAGAZINE ®
Full Article: Florida DUI Defense Lawyer Asks What About Pot?
Author: Noreen Marcus
Contact: 877-256-2472
Photo Credit: None Found
Website: Daily Business Review
