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Florida Law

Stand Your Ground under Senate Bill 128

Stand Your Ground (SYG) has been a widely debated topic across the United States, especially with the numerous high-profile cases involving self-defense. Approximately twenty-two (22) states have some version of a stand your ground law. As of today, the states that have SYG laws include Alabama, Arizona, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia.
Most Stand Your Ground laws change the common law requirement in self-defense, which requires a duty to retreat to the best of one’s ability before using force. All stand your ground laws have some form of “no duty to retreat” language in them.
In Florida, a person who uses force in “justified” self-defense cannot be arrested, detained in custody, or charged and prosecuted. The new Florida Senate Bill 128 proposes to change some procedural aspects of SYG required to prove that the defendant qualifies for immunity.

Attorney for Self-defense in Tallahassee, Florida

Being charged with a violent crime such as an assault, battery or homicide can be completely life changing, even if it is done in self-defense. Having an experienced criminal defense attorney to help explain Stand Your Ground law, and how it may apply to your case can alleviate some of the fear and stress caused by the trial process.
Speak with the Pumphrey Law Firm now for more information about the current status of stand your ground in Florida. Pumphrey Law is located in Tallahassee, Florida, just minutes from Florida State University.
Call (850) 681-7777 to schedule a no obligations consultation about your case.

Burden of Proof in Florida

In order to fully understand the significance of Senate Bill 128, you should understand the definition of “burden of proof.” Generally, the prosecution is tasked with the proving the defendant guilty. With such a “burden” falling on the State, the defendant does not have to prove or show anything. In Florida, self-defense is an affirmative defense. An affirmative defense is the defendant’s side of the story put forth, that if proven true, creates a justification for an otherwise unlawful act.
As of now, the Florida Supreme Court, in its majority opinion in Bretherick v. State, 170 So.3d 766, (Fla. 2015), has set forth the procedure for asserting immunity under SYG. Under Bretherick, a defendant that claims immunity under SYG must prove by a preponderance of the evidence the entitlement to the immunity at a pretrial hearing. A preponderance of the evidence is a standard of proof that a proponent must meet in a pretrial hearing. The preponderance of the evidence is defined as “more likely than not.”
Until SB 128 passes, a defendant must prove that it is more likely than not that he or she is entitled to immunity.

The Effect of Proposal 128 on Florida SYG

As stated above, under Bretherick, a defendant has the burden of proving that he or she is entitled to immunity under Stand Your Ground. If Senate Bill 128 is enacted, then the burden shifts from the defendant to the State, meaning that the prosecutor will have to prove that the defendant is not entitled to SYG immunity.
Additionally, Senate Bill 128 will change the standard of proof. Currently, the standard of proof is by a “preponderance of the evidence.” If SB 128 is enacted, then the standard of proof will be “beyond a reasonable doubt.” Beyond a reasonable doubt is a higher standard of proof than preponderance of the evidence. Therefore, the State will have to prove that the defendant is not entitled to immunity beyond a reasonable doubt if CS/SB 128 passes the Florida Legislature.

Additional Resources
CS/SB 128: Self-defense Immunity – Visit the official website of the Florida Senate to find out more information on the status of the upcoming changes to the Florida Stand Your Ground law sponsored by the Judiciary and Senator Rob Bradley (R).

Fla. Stat. § 776.013 –Visit Online Sunshine the official website of the Florida Legislature for the full statutory language of the current Florida Stand Your Ground law.

Forensic Engineering Technologies –Visit Forensic Engineering Technologies for more information about how their forensic investigators can detect various emotions on 911 emergency calls, such as anxiety, fear, anger, or aggressive intent. The Pumphrey Law Firm has used their experts in previous Stand Your Ground trials in Florida.

Find an Attorney for Stand Your Ground in Leon County, Florida

Stand your ground is a difficult standard to prove. With the new changes emerging, your rights and duties under Florida law could change. Under these circumstances, it is imperative that you speak with a knowledgeable Florida criminal defense attorney who has handled defense cases for years.
Speak with one of the attorneys at the Pumphrey Law Firm for more information about your case. Pumphrey Law represents clients throughout the Tallahassee, Florida area, throughout Leon County.
Call (850) 681-7777 for a consultation about immunity under Florida Stand Your Ground.

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Florida Lawmakers Seek to reduce Penalties for Juvenile Offenders through Citations

CuffedBackSweater

As of February 2, 2017, Senate Bill 196 is circulating Florida’s Senate. Senate Bill 196 aims to provide a less stringent alternative for juvenile offenders charged with minor or first-time offenses. Under Senate Bill 196’s proposed penalties for eligible misdemeanors, juvenile offenders found committing any of the offenses provided under this Bill will be provided with a citation in lieu of an arrest and subsequent jail time.

Some of the eligible offenses provided under Senate Bill 196 include theft, trespassing, loitering and prowling, disorderly conduct, possession of cannabis in the amount of 20 grams or less, underage alcohol possession, and a host of other misdemeanors.

In a similar vein, sixty (60) counties throughout Florida have adopted some form of a citation program replacing arrests with citations for eligible offenses. However, despite eligibility for these programs, only a fraction of affected juveniles were provided with a citation instead of an arrest. Florida lawmakers hope to create a uniform system for this citation program, thus introducing the possibility of an alternative to incarceration centered penalties.

After modifications have been made to comply with the Florida House’s wishes, Senate Bill 196 is expected to be up for a vote.

Tallahassee Criminal Defense Attorney

Are you a juvenile offender or the guardian of a juvenile offender who has been charged with a criminal offense? If so, contact the Pumphrey Law Firm at 850-681-7777 to schedule a free consultation with an experienced criminal defense attorney to discuss your options under Florida law.

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Florida Passes New Laws to Combat a Growing Abuse Problem

Pills2

Following the 2016 election, Florida has passed several laws aimed at reducing Florida’s growing prescription drug and over-the-counter drug abuse problem. Some these laws are aimed at healthcare policies and their respective benefits. With the rising number of opioid addiction cases in the state of Florida, Florida legislators have taken steps to limit this growth, and reduce the number of drug abuse incidents in Florida.

Effective January 1, 2017, Senate Bill 422 (SB 422), provides that any health insurance policy which provides coverage for opioid painkillers is not permitted to mandate usage of unlabeled opioid products over FDA approved deterrent-abuse labeled opioids.

Additionally, SB 422 states that only those insurance policies requiring pre-authorization for opioid painkillers without an abuse-deterrent label are permitted to enforce the same pre-authorization requirements for deterrent-abuse labeled opioid painkillers

In addition to the race to reduce opioid abuse, Florida legislators have also made strides to prevent drug abuse by enforcing tighter restraints on the distribution of dextromethorphan to minors. Dextromethorphan is a component in many over-the-counter drugs including popular cough syrups. This active ingredient is a large part of what makes these couch medicines addictive.

In order to combat the likelihood of dextromethorphan abuse, Senate Bill 938 (SB 938), prohibits the distribution of any drug containing dextromethorphan (DXM) to minors. Signed into law by Governor Scott on April, 1 and effective January 1, 2017, Senate Bill 938 is intended to prevent dextromethorphan abuse by minors by requiring that any individual assumed to be between eighteen and twenty-five years old to show identification in order to purchase any medication containing dextromethorphan. Manufacturers, distributors, or sellers found in violation of this mandate will be penalized by a maximum fine of $100 per violation.

Tallahassee Prescription Drug Defense Lawyer
Although prescription drugs and certain over-the-counter drugs can be useful when used responsibly, there is always an underlying risk of abuse when administered irresponsibly. If you were arrested and charged with illegal possession of a prescription drug or a related offense, please call the Pumphrey Law Firm at 850-681-7777 to discuss your charges with an experienced criminal defense attorney. We will work with you towards the most desirable option.

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The Day The President Said My Client Wouldn’t Die In Prison

Tuesday, January 17, 2017

Brian Tannebaum attorney

Attorney Brian Tannebaum


In my estimation, there are five things that are icing on the cake for any lawyer who practices criminal defense. 1. An acquittal in a death penalty case; 2. A reversal of a death sentence on appeal; 3. An invitation to argue before the United States Supreme Court; 4. A declaration of the client’s innocence after conviction; and 5. A Pardon or Clemency from either a Governor or President of the United States.

All five are rare occurrences, and a lawyer can go through their entire career, never doing any of the five, and have the reputation as one of the best.

President Obama wanted to review the sentences of federal prisoners who were given lengthy sentences for non-violent offenses, mainly drug offenses. (No, I’m not interested in a debate over whether drug possession or sale is a violent offense.) As a result, Clemency Project 2014 was created.

This was an “all hands on deck” operation. In the end, 16,000 petitions for Clemency were reviewed by the Pardon Attorney, and as of today, a little over 1300 have been granted. Clemency is not always a Pardon, in fact in most cases it is a commutation, meaning a reduction in sentence. The conviction remains, it’s just that someone sentenced to life, may instead serve 15 or 20 years. Under President Obama’s grants, some had to enter drug rehabilitation.

Although it’s a fear-mongering argument made by the ignorant, clemency is not about letting violent criminals back on the street. President Obama’s Clemency Project 2014 had strict parameters including: the offense for which the defendant is in prison can not be a violent offense, there can be no prior significant violent offenses, the defendant must have served at least 10 years, and must have good behavior in prison.

I’m not going to name my client here, but he is on the list of 209 commutations granted today, January 17, 2017. I just want to tell the story of my participation in the Clemency Project.

In August of 2015 I was asked if I would take on “one of these” Clemency Project 2014 cases. I was told it was a matter of obtaining the client’s Pre-sentence Investigation Report, filling out a form, preparing an “Executive Summary” and gathering whatever information I could about the client’s family and conduct in prison. I would have to watch some videos and certify that I had been “trained.” Seemed fairly organized and cookie cutter.

I had to get the client to agree to allow me to represent him, which took no effort. I didn’t imagine someone serving life in prison, sentenced to die in a cage, would have any issue if a lawyer, for free, was going to try and get him out.

That was the last easy part of the representation.

The Government is not big on handing out Pre-sentence Investigation Reports, and so that took some “higher-up” conversations. Once I got it, I realized there were issues that required documents from old files. There were questions to be asked of the client (made easy due to email access to federal prisoners).

While I worked on the Petition, in came pictures of the client’s family, and letters attesting to his good conduct in prison. After realizing there was a mistake in his prior convictions that had been corrected by a gracious state court judge, I had to make sure this was explained in the Executive Summary, basically a closing argument of why the client deserved Clemency.

What made this case more difficult, was understanding the odds. My client qualified for Clemency. He had served 10 years of a life sentence, was a model prisoner, had no violent past – on paper, he was perfect. But the odds. The President was getting thousands of these, why would he grant my client a second chance at life, outside prison?

As required, I submitted my Petition, and everything else to the Clemency Project.

Due to a technical issue, after completing my work, I could not get the Clemency Project to accept my Petition. The process was that the Project would review the Petition and supporting materials and forward it to the Office of the Pardon Attorney.

Fearful I would not get the stamp of approval of the Clemency Project, I contacted the National Association of Criminal Defense Lawyers (NACDL), another partner in the Project.

I was blessed to be able to reach the Executive Director, Norman Reimer. My hope was that Norman would put me in touch with someone at the Clemency Project to review my submission and propose edits. Instead, Norman said “I’m going to work on this with you.” Norman made corrections, suggested edits and more work, and after a few days of work with Norman, my Petition was submitted to the Clemency Project.

It then went to the Pardon Attorney.

A couple times while the Petition was pending, my client emailed me and asked if I “heard anything.” Of course there were only two things to hear, and I had heard neither. The Office of the Pardon Attorney has a website where they list every Clemency grant, and denial. Every time President Obama granted a bunch of Petitions, my heart sank. That meant there would be denials.

I kept checking, I kept searching lists by last name – occasionally finding the last name of my client on the denial lists, but..whew… a different first name.

I was told a few days ago that there were some recent denials, on January 13. I checked the list. He had to be on that list.

Nothing.

I knew I was going to get an answer this week, and before Friday when we inaugurate our next President. I was only told one thing – that the Office of the Pardon Attorney calls with the news.

Today I was out of town, having lunch with a long-time public defender friend, telling him that I hoped President Obama would decide today on his last grantings of Clemency, as I was nervous about the decision coming too close to the inauguration. That was at 1:30 p.m.

At 2:50 I received an email from my office. Attorney Sarah Black from The Office of the Pardon Attorney called and my client was granted a commutation. I was to call her back ASAP.

I called her back….and got voicemail.

A few minutes later she called me back, not knowing that I got the news, and so she told me as if I didn’t know. She was happy. I was in complete shock. She asked me if I could inform my client. I said “of course, you want me to email him?” And in a first-class move, she said “well actually, we’ve arranged for you to be able to call your client at 3:30 today and tell him. We have a number that he will be waiting at for your call. Is that a good time for you?”

Considering I had never had a client given an Order of Commutation from the President of the United States, I told her that “yes, I can call him at 3:30 p.m.” She said something to the effect of “I know this is a great day for you and your client, thank you for your work, and please call me if you need anything else.”

I’m not used to having these types of conversations with lawyers from the federal government.

What was I going to say to my client? I had just called my wife and could barely get through the conversation with her, now I was going to tell him he wasn’t going to die in prison because of Barack Obama? This was way too much for me.

So like Luca Brazi, I practiced. “I’m calling to tell you that President Obama….” “I have been advised….” No. “I have good news for you.” No.

The clock said 3:29. Was it 3:30 at the prison and they were taking him back to his cell because “your lawyer didn’t call on time?”

Then it was 3:30. I dialed, got the recording. The call disconnected. Oh no.

Two more times, recording, disconnected.

Third time, recording, dialed extension… “This is Delores.”

“Hi Delores, this is Brian Tannebaum, I am…” “Oh yes, how are you Mr. Tannebaum?” Not a typical greeting from someone at a federal prison.

With a little chuckle I said “I’m doing great.” “I bet you are,” she said, “let me get your client, he’s right here.”

“Hi, It’s Brian Tannebaum.”

“Hi Brian, how are you doing today, how is everything?”

Such an odd, typical question. More odd than typical because I was about to tell him that he wasn’t going to die in prison.

“I’m fine, I have some news for you.”

“President Obama has ordered your sentence commuted.”

He dropped the phone.

Delores came back on and I could hear her saying “get up, get over here, you have to talk to him.”

He came back on and expressed the type of emotion you can only imagine from someone who was just told that the President of the United States has given him a second chance.

Can you imagine? Me neither.

Tonight I imagine he has told his family that he will be coming home sooner than at his death.

I have received many congratulatory messages this afternoon, and I appreciate all of them. But I have to tell you that nothing is more meaningful to me than the fact that my client was the benefit of the grace of the leader of the free world.

Yes, I filled out some paperwork, put a package together, became the messenger. But my client will be free because the Federal Defender of the Southern District of Florida, Michael Caruso, thought to ask me to take this case, because Norman Reimer at NACDL helped me, because the Office of the Pardon Attorney recommended my client be freed, and because President Obama nodded his head “yes.”

If I never again have an experience like this in my career, (and statistically I won’t), I can feel a great sense that someone is freed from the chains and cages of a federal prison, when he spent the last 11 years there thinking he would die there, because some stellar members of the Bar thought to assist me in asking the President to set him free.

Located in Miami, Florida, Brian Tannebaum practices Ethics and Criminal Defense. He is the author of The Practice

Pumphrey Law Firm

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New Year Means New Laws in Florida

Florida Governor Rick Scott signed all but three of the 272 bills that came to his desk during the 2016 legislative session. While 67 went into effect immediately upon receiving the signature of the governor and another 159 took effect on July 1, three bills became effective at the start of 2017.

The three new laws in Florida include the following:

  • Senate Bill 422 (SB 422) — Signed by Governor Scott on March 25, 2016, this bill created Florida Statute § 627.64194. The statute provides that a health insurance policy that provides coverage for abuse-deterrent opioid analgesic drug products—brand or generic opioid analgesic drug products approved by the United States Food and Drug Administration (FDA) with abuse deterrence labeling claims that indicate the drug products are expected to deter abuse—can impose a prior authorization requirement for such a product only if the policy imposes the same prior authorization requirement for each opioid analgesic drug product without an abuse-deterrence labeling claim. The policy cannot require use of an opioid analgesic drug product without an abuse-deterrence labeling claim before authorizing the use of an abuse-deterrent opioid analgesic drug product.
  • SB 1104 — Signed by Governor Scott on April 1, 2016, this bill created Florida Statute § 48.092. The statute requires service on financial institutions to be made in accordance with Florida Statute § 655.0201. The bill also amends Florida Statute § 655.0201 such that certain financial institutions are authorized to designate locations or registered agents where documents such as summonses or subpoenas can be delivered.
  • SB 938 — Signed by Governor Scott on April 1, 2016, this bill prohibited manufacturers, distributors, or retailers or their employees and representatives from knowingly or willfully selling a finished drug product containing dextromethorphan (commonly referred to as DXM) to a person younger than 18 years of age. Employees or representatives of retailers selling drug products containing any quantity of DXM must require and obtain proof of age from any purchaser who appears to be younger than 25 years of age.

The DXM bill was passed largely to address the problem with adolescents abusing over-the-counter (OTC) cough medications containing it to get intoxicated. According to the United States Drug Enforcement Agency (DEA), DXM is found in a number of common cough syrups (such as Robitussin and Coricidin) and illicit use of DXM is referred to on the street as “Robo-tripping” or “skittling.”

Violations of the DXM bill are punishable by civil citations imposing fines of up to $100, but new bills imposing much stronger penalties for drug offenses are already being considered for the 2017 legislation. SB 150 would amend Florida Statute § 893.13 to make any sale, manufacture, or delivery, or possession with intent to sell, manufacture, or deliver a controlled substance offenses in a dwelling—defined under Florida Statute § 810.011 as a building or conveyance of any kind that is designed to be occupied by people lodging therein at night—punishable by mandatory minimum of three years in prison.

Additionally, SB 150 would also amend Florida Statute § 893.135 to create the offense of trafficking in fentanyl. Under this statute, trafficking in fentanyl would be a first-degree felony punishable as follows:

  • 4 grams or more but less than 14 grams — Mandatory minimum of three years in prison and fine of $50,000;
  • 14 grams or more but less than 28 grams — Mandatory minimum of seven years in prison and fine of $100,000;
  • 28 grams or more but less than 30 kilograms — Mandatory minimum of 15 years in prison and fine of $500,000; and
  • 30 kilograms or more — Life in prison with no eligibility for early release, although the alleged offense can be classified as a capital felony punishable by death if the act involved or resulted in the death of another person.

SB 150 would also amend the same statute to create the offense of trafficking in synthetic drugs, which would also be a first-degree felony punishable as follows:

  • 250 grams or more, but less than 500 grams — Mandatory minimum of three years in prison and fine of $25,000;
  • 500 grams or more, but less than 1,000 grams — Mandatory minimum of seven years in prison and fine of $50,000;
  • 1,000 grams or more, but less than 30 kilograms — Mandatory minimum of 15 years in prison and fine of $200,000; and
  • 30 kilograms or more — Mandatory minimum of 25 years in prison and fine of $750,000.

SB 150 was introduced by Senator Greg Steube and was referred to the Senate Committee on Criminal Justice. As Florida gets tougher in its war on drugs, it is critical for any alleged offender who is arrested for drug trafficking or any other kind of alleged offense involving a controlled substance to be sure to contact a Tallahassee criminal defense lawyer as soon as possible.

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How the “Internet of Things” Could Become a Liability

James Bates of Bentonville, Arkansas claims he woke up on November 22, 2015 to find his friend, Victor Collins, dead in his hot tub.[1]  At about 9:30AM Bates called 911 to report that he found the body after a night of heavy drinking with Collins and another friend.[2]  Bates claims to have no memory of what occurred, but the state of Arkansas contends that there is evidence of a struggle, and a cover up of the ensuing murder.[3]  This seems like a standard case for a criminal defense attorney, collecting evidence to prove Bates’ side of the story.  This case has morphed into one that is far from ordinary, with the potential introduction of evidence from smart devices around Bates’ home.[4]  Investigators analyzed Bates’ water heater in order to conclude it used far too much water in the early hours of the morning when the cleanup would have occurred.[5]  Further, headlines exploded around the country when Amazon was served with a warrant for recordings from Bates’ Amazon Echo device.[6]  Digital voice-based assistants such as Amazon Echo and Google Home are designed to always be listening for a “wake word” an then proceed to record what is said afterwards.[7]  They by-design record what happens after the wake word, and then analyze the statements in order to learn how to more effectively control smart devices, navigate tasks, and query for information in the future.  These recordings are what state prosecutors hope to use in the case against Bates, and have sought to recover via a warrant served to Amazon.[8]  Meanwhile defense attorneys, working on behalf of Bates have discredited the potential use of this data, citing the Amazon user agreement, and Amazon’s assertion that it cannot guarantee the “functionality or content … is accurate, reliable, or complete.”[9]  The defense attorneys have claimed that the use in court would be “crazy” with this disclaimer in place, and have gone on to state that “There’s nothing on the Amazon Echo that will hurt us . . . We’re not fearful of anything being provided, if Amazon does indeed respond.”[10]  The potential use of these devices has understandably scary implications, their current structure only records audio after the wake-word has been said, but there are fears this could change with simple programming tweaks.  Devices such as these comprise of the “internet of things,” a term used to describe the networking of standard everyday devices so that they are able to send and receive data. [11]

Amazon Echo Pumphrey Law Criminal Defense Tallahassee

Amazon Echo

Privacy issues with devices such as these are not a new topic of concern.  The Chromium browser is the open-source basis for Google Chrome,[12] the most widely used browser in the world.[13]  Developers found that the browser was installing code that would listen for and share audio based on “an audio transmission triggered by . . . an unknown and unverifiable set of conditions” and potentially “without [the users’] consent or knowledge.”[14]  Concerns with “always on” recording, and the legal status of this data have extended to Samsung, Mattel, Microsoft and others.[15]  Data collected by these devices have, until now not been a concern for criminal defense attorney’s facing litigation though.  “Alexa,” Amazon’s always on software which is the heart of the Bates’ case is the first that has been addressed from a criminal evidentiary standpoint.[16]  The software is designed to collect recordings of audio upon hearing the wake word, and relay that data to Amazon’s cloud-based servers, and “Amazon has not disclosed the extent to which the company will have access to the data collected by these third party devices.”[17]  To further compound the privacy concerns, Amazon allows developers to create “skills” (third-party programs to create a specific functionality) and capabilities for the Alexa service.[18]  These skills could allow extra data to be recorded, data which Amazon has not explained any kind of standard for safeguarding.  The Electronic Privacy Information Center has argued during lobbying efforts that it is “unreasonable to expect consumers to monitor every word said in front of home electronics” and has gone as far as stating that the general practice of adding “always on” listening “is also genuinely creepy.”[19]

The practice of adding “always on” features being labelled “creepy” and invading the privacy of those users will not help criminal defense attorneys such as those in the Bates’ case however.  Any information Amazon discloses will likely be admissible in court, as long as it is relevant,[20] as statements made by a party opponent are generally not considered hearsay.[21]  The inclusion of this evidence is going to be up to Amazon, and any court rulings regarding the warrant served to them.[22]  At this time, Amazon has only stated that it “will not release customer information without a valid and binding legal demand properly served” and that “Amazon objects to overbroad or otherwise inappropriate demands as a matter of course.”[23]  What this means for the future of Bates’ case is unknown.  This case could have far reaching implications though, as these “always on” devices and the data they collect could theoretically be used in a myriad of cases, not just criminal.  Whether or not this will be technically or legally feasible just remains to be decided.

Brent Marshall Pumphrey Law Firm Law Clerk Criminal Defense

Author: JBrent Marshall

 

[1] Zuzanna Sitek & Dillon Thomas, Bentonville PD Says Man Strangled, Drowned Former Georgia Officer, 5 News-KSFM (Feb. 23, 2016 8:40AM), http://5newsonline.com/2016/02/23/bentonville-pd-says-man-strangled-drowned-former-georgia-officer/.

[2] Id.

[3] Elliot C. McLaughlin, Alexa, can you help with this murder case?, CNN News (Dec. 28, 2016 3:13PM), http://www.cnn.com/2016/12/28/tech/amazon-echo-alexa-bentonville-arkansas-murder-case-trnd/index.html.

[4] Id.

[5] Id.

[6] Id.

[7] Chris Smith, Here’s how to delete all the voice recordings Amazon Echo and Google Home secretly store, Boy Genius Report (Dec. 30, 2016 8:27AM) http://bgr.com/2016/12/30/how-to-delete-amazon-echo/.

[8] McLaughlin, supra note 3.

[9] Id.

[10] Id.

[11] Id.

[12] Samuel Gibbs, Google eavesdropping tool installed on computers without permission, The Guardian (June 23, 2015 8:27AM) https://www.theguardian.com/technology/2015/jun/23/google-eavesdropping-tool-installed-computers-without-permission.

[13] Stat Counter, Top 9 Browsers from Dec 2008 to Nov 2016, http://gs.statcounter.com/#all-browser-ww-monthly-200812-201611.

[14] Gibbs, supra note 12.

[15] Letter from Marc Rotenberg, Executive Director, Electronic Privacy Information Center, to Loretta Lynch, Attorney General, U.S. Department of Justice, July 10, 2015, https://epic.org/privacy/internet/ftc/EPIC-Letter-FTC-AG-Always-On.pdf (addressing concern over “always on” devices and the legal ramifications for holding onto this information).

[16] McLaughlin, supra note 3.

[17] Rotenberg, supra note 15.

[18] Bus. Wire, Amazon Introduces the Alexa Skills Kit—A Free SDK for Developers (June 25, 2015 9:03AM), http://www.businesswire.com/news/home/20150625005699/en/.

[19] Rotenberg, supra note 15.

[20] Fed. R. Evid. 401.

[21] Id, at 801(2).

[22] McLaughlin, supra note 3.

[23] Id.

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Florida Residents in Limbo Following the Approval of Medical Marijuana

During the November presidential elections, Florida voters voted overwhelmingly in favor of legalizing medical marijuana; however, potential medical marijuana users are unclear on where they go to a local distributor to fill their medical marijuana prescriptions. Furthermore, many patients suffering from serious illnesses have questions regarding when and where they can retrieve a medical card.

In addition to questions regarding where to obtain medical marijuana legally, the amount of medical marijuana available to qualifying patients per prescription has yet to be specified by Florida lawmakers.
Starting January 3, 2017, Florida has six months to create specific guidelines governing the distribution of medical marijuana, medical marijuana cards, and other relevant regulations. While qualifying patients await further instruction from Florida lawmakers, many patients are left to find more traditional methods of coping with their medical conditions.

Tallahassee Marijuana Defense Lawyer
While medical marijuana usage is now legal in the state of Florida, recreational use is still prohibited, and possession of marijuana is still considered a federal crime. If you were arrested and charged with a marijuana offense, contact the Pumphrey Law firm to speak with an experienced criminal defense attorney. This firm is dedicated to finding the best solution for your circumstances.

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Pumphrey Law Scholarship: Spring 2017 Winning Essay

Pumphrey Law Scholarship Essay

Lauren Sumners Pumphrey Law Scholarship Spring 2017 Essay Winner Tallahassee Florida Criminal Defense Florida State University

Lauren Sumners and Don Pumphrey, Jr.

One of my professors at Florida State University ends every class by pleading his students to do just one thing –“Please, do not drink and drive. Be safe.” This professor has taught thousands of students and boasts an impressive and long career. Every time I hear him say these words, I can’t help but imagine the things he must have seen throughout his many years of teaching. Has he had to deal with the loss of students due to drunk driving? Has he had to deal with grieving parents? Has he had to deal with a loss in his own family? I do not know the story behind his plea (or if there is one at all), but I do know his efforts stem from a sincere concern for his students’ safety and well-being. As a professor, he desires success for his students above all else. As his students, we have learned how to think critically in the classroom and are well aware of how our academic choices can alter our futures. I imagine this is his small way of encouraging his students to think critically outside of the classroom as well and understand that those choices are just as important. Through his simple words, he challenges his students to be proactive and choose responsibility in order to ensure a life after college.

Choosing to drive while drunk is a selfish act. It is entirely devoid of all responsibility and consideration. Not only does drunk driving endanger oneself, it endangers the lives of so many others including friends, loved ones, and complete strangers. While the majority of students are well aware of the consequences of drunk driving, many choose to ignore them. Due to the nature of the party scene, especially in college, it is easy for students to be tempted into making bad choices, such as thinking they can drive when they should not. It does not take much convincing by one’s friends or even oneself to think, “I’m probably fine” and get behind the wheel after drinking. In those moments, intoxicated and without the familiarity of their own home, many students do not choose responsibility; they choose selfishness. As a young woman living on a college campus, I am very aware of this temptation to act irresponsibly; I see students make the choice to act dangerously all of the time. It is not uncommon to see a drunken student stumbling along the street or getting rowdy at a bar only to then get in their car and swerve out of sight. Because of this, I am always on alert when driving, especially at night. Not only is the life of the drunk driver at risk when on the road, but so is mine and those around me. While I wish all students would act responsibly and understand how truly selfish it is so drive when drunk, I understand that this is not reality. These students who carelessly drink and drive are ignoring the negative impact it has on their lives and on the lives of others. They are ignoring the hard work of their families to provide and secure for them an education. They are ignoring the hopes of other students who are pursuing their futures and academic careers at Florida State. They are even ignoring the sanctity and dignity of their own lives.

Simply put, drunk driving destroys. Aside from destroying lives, it destroys families, friendships, academic careers, and futures. For those who have been impacted by the dangers of drunk driving, they have felt the acute pain of loss and know all too well just how far its sobering effect spreads. As a student who has valued the opportunity to receive a good education throughout my life and understands what a sacrifice it is financially for my family to send their children off to college to receive higher education, I made a pledge to myself at a young age to never take that for granted. Though I have failed at times, I have always tried to pursue my education with passion and dedication in an effort to respect what a gift it truly is. If I were to choose not to act responsibly when drinking, I would be turning my back on the sacrifices my loved ones have made for me. Unfortunately, I do not have a surefire solution to prevent drunk driving. I cannot control the actions of those around me nor can I make them understand the selfish nature of their choice to drink irresponsibly. However, I can set an example. I do not believe any one person is too insignificant or too powerless to make a difference. The positive, responsible actions and choices of each individual contribute to the well-being of their community in ways far greater than they may ever understand. By choosing not to drink and drive, I honor my family, friends, and community who love and value me. By choosing not to drink and drive, I uphold my university and acknowledge what has been given up in order to give me an education. By choosing not to drink and drive, I protect the shared opportunity to learn and work toward achieving academic goals with my peers, signifying that I believe my own selfishness is never enough to threaten or take that opportunity away from anyone.

 

Author: Lauren Sumners

Florida State University

Lesumners152@gmail.com

 

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http://www.pumphreylawfirm.com/resources/pumphrey-law-scholarship/ 

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The Florida Medical Marijuana Legalization Initiative: Is it Final Step for Medical Marijuana, or One More Hurdle on The Long Track to Legalization?

 

Brent Marshall Pumphrey Law Firm Law Clerk Criminal Defense

Brent Marshall

Author: Brent Marshall: Law Clerk for Pumphrey Law Firm

On November 8th 2016, over six and a half million Floridians voted in favor of Amendment II, “Use of Marijuana for Debilitating Medical Conditions.”[1]  The electorate supported the measure 71% to 29%,[2] easily satisfying the 60% needed to pass.[3]  Here in Leon County, the electorate voted in favor of the amendment at an incredible 50% margin.[4]  The Florida Constitution mandates that a passed amendment such as this one is to go into effect “as an amendment to . . . the constitution of the state on the first Tuesday after the first Monday in January following the election.”[5]  While it is certainly appropriate for millions of Floridians to rejoice in the fact their voice has been heard, it leaves an obvious question, what next?  The amendment will go into effect January 10th, but there are multiple hoops and boundaries to be jumped through and crossed over before the November vote can translate into Marijuana based treatments of illness.  Patients like five-year-old Abby Muszynski may finally be able to obtain the help they need, when nothing else has worked, some semblance of a normal life.[6]  Abby was unable to find any drugs that would stop her seizures, until legal medical marijuana was given to her, the first solace she has found.[7]  Even with this medicine though she continued to have two grand mal seizures a week, preventing any meaningful growth and development, she simply needed more, such as that authorized by Amendment 2,[8] but the timeframe of this help will be at the whim of the Florida Department of Health, the legislature, and the courts.

No one believes that the necessary infrastructure will magically be installed a mere two months after the amendment vote, the actual timeframe however is now being evaluated by experts.  Some aspects of the upcoming implementation are thankfully codified in the amendment itself.[9]  The Department of Health has six months after installment of the amendment to promulgate rules for medical marijuana use going forward.[10]  Further beyond this deadline is a nine-month cutoff before the Department is constitutionally obligated to begin offering: patient and caregiver identification cards; and registering medical marijuana treatment centers.[11]  If either of these deadlines are not met the amendment creates judicial standing for any Florida citizen to seek judicial relief in the form of compelled compliance.  Non-compliance could technically go overlooked, but with over two and a half million dollars in contributions stemming from the Morgan Law Firm alone, there will undoubtedly be a citizen with the means and the desire to fight any kind of regulatory stalling by the Department of Health.[12]  Finally, there is a provision within the statute which allows the legislature to weigh in on both the substantive law of medical marijuana use, and the implementation.[13]  This clarifies that the amendment does not prevent the legislature enacting laws, but reemphasizes that they must not conflict with the article.[14]  The legal framework of the amendment is easy to follow, the Department of Health must do something in the next six months, and must be close to ready for practical application after nine months, while the Legislature can do very little to derail it.  The practical application of these now-theoretical regulations and implementation is anything but straightforward though.  Now Floridians are wondering what this legal framework is going to look like and how it will affect everyone from a dying marijuana patient already taking advantage of the limited law in place, all the way to those individuals looking to invest in the new system.

Prior to November, twenty-eight other states and the District of Columbia had begun implementing medical marijuana laws.[15]  These states have seen a wide variation of successes and stalled plans.[16]  For example, the most recent law to be passed in Washington state went into effect on July 1, 2016, aiming to integrate the medical and recreational markets.  The Washington Department of Health has already established the rules for these specialty clinics and regulations to create one large industry.[17]  Washington is not a direct analogy to Florida though, Washington passed an adult use recreational law in 2012.  These stores started opening in 2014 and the new law was passed to create a medical marijuana endorsement that the businesses could apply for.[18]  Alternatively, in Florida there has been a medical marijuana bill, the “Compassionate Medical Cannabis Act of 2014” outlines the system currently in place for medical marijuana use.[19]  The “Compassionate Medical Cannabis Act” shows the different approach to legalization of marijuana use that Florida has adopted compared to states such as Washington.  Florida, prior to the new amendment’s future adoption only authorizes use for patients who suffer from cancer, or a condition that creates seizures or severe muscle spasms, and only approves the use of low-THC cannabis.[20]  The doctor’s prescribing this low-potency marijuana are also forced to jump through a series of hoops; completing courses and examinations,[21] submitting a quarterly report to the University of Florida College of Pharmacy,[22] and must treat the patient for a full three months before considering the treatment.[23]  These roadblocks in place show the vastly different systems in place, and emphasize the fear that the current political leaders will not implement this in way consistent with States such as Washington.

The Florida Department of Health’s primary “track record” that can be used to predict the new law’s course will be the implementation of the “Compassionate Medical Cannabis Act.”[24]  The implementation of the Compassionate Medical Cannabis Act was initiated with the creation of the “Office of Compassionate Use” in July of 2014, but cultivation authority was not authorized until February of 2016, a full 18 months later.[25]  Dispensing of medical marijuana did not formally commence until July 22nd, a full two years after the process began.[26] Amendment two clearly will not take this long to follow through on; the groundwork for implementation is already in place, and there are the built-in timelines present.  The current regulations should shed some light on what kind of medical marijuana regime the Department of Health will create, with commenters confidently asserting it will follow the form of strict states such as New York, Illinois and Nevada, rather than notoriously liberal states such as California.[27]  In New York, potential producers must, in addition to a litany of small requirements: pay $210,000 ($10,000 of which is non-negotiable), be able to produce enough product, prove knowledge to produce, show a plan to implement security, pass a background check and show that all equipment is paid for or accounted for.[28]  In Illinois, similar monetary and safety requirements are in place, but the state only issued 60 dispensary licenses to 211 applicants and 21 cultivation licenses to a pool of 158 applicants.[29]  Meanwhile Nevada, described as even more strict than the current “low-THC” system in Florida, has a rigorous and complicated point system and only allowed applications for a total of 13 days back in 2014.[30]

The Department of Health will have near-full control over how strictly this law is implemented.  The Department of Health will need to authorize growers and dispensaries, they could choose to expand this authorization over what is currently allowed, but if the Department of Health limits it to the six nurseries currently in business,[31] they will not have to promulgate new rules for this expansion.  Even if the Department of Health chooses to engage in negotiated rule making akin to the 2014 law’s implementation these nurseries will likely hold onto to a substantial amount of negotiating power in that forum.[32]  It is also incredibly likely that the Department of Health will even choose to enter negotiated rule making for the authorization and licensing process for Medical Marijuana Treatment Centers under the new law, and it is likely that these nurseries will have a substantial say over their future business partners in the vertical hierarchy.[33]  The medical marijuana certifications will ultimately be decided by the Department of Health whether they give up some or all of this control to the nurseries or not.  During implementation of the 2014 law they originally came up with a lottery system which was abolished after judicial review, and then moved on to a scorecard system akin to Nevada, which survived judicial challenge.[34]  It is likely that some kind of scorecard system will be used again, but that is of course just a guess, as the Department of Health’s decision is still at least 6 months from release.  Regardless of the decision though, it will be on a much quicker timeline because of the mandatory provisions, meaning that it is likely deference will go to a system which has already been challenged in court.  There is also a matter of fees, unlike the other strict states, Florida required a $60,063 non-refundable fee in order to apply to grow the Marijuana under the current system, this could be more or less depending on the whims of the Department of Health.[35]  Some argue that this fee will likely be lower because the requirements to operate a Medical Marijuana Treatment Center will invariably be lower than a nursery, leading to more applicants, this is just a guess though, as the Department of Health will have the ability to make this process as easy or as difficult as they see fit.[36]

Unfortunately, there is no easy answer, no crystal ball to figure out how the state agencies are going to regulate patients’ futures.  Some have already had to flee the state, such as five-year-old Abby.[37]  Abby finally has a normal, seizure-free life thanks to full THC medical marijuana she receives in her new home of Colorado.[38]  Someday help such as this should not require uprooting life, moving across the country in a medical transport and leaving behind teenage siblings.[39]  This is the promise of Amendment 2, it is now up to the government to uphold this law and make sure that Abby’s of the future don’t have to go through this ordeal.  The rulemaking procedures will likely be a public affair, and any legislation will come from representatives from across the state, six and a half million Floridians voted for medical marijuana to be legal.  Those who truly believe in the cause need to keep an eye out for these rulemakings, and hold congressman accountable, for some, such as Abby, this law is a matter of life-and-death, and it should be treated as such.

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[1] Florida Election Watch – Florida Division of Elections, Amendments, http://enight.elections.myflorida.com/Constitutional/Amendment.aspx (last visited Nov. 29, 2016) (6,518,919 voted for the measure).

[2] Id.

[3] Fla. Const. art. XI, section 5(e).

[4] Supervisor of Elections, Leon County, 2016 General Election – Official Results http://enr.electionsfl.org/LEO/Summary/1601/ (last accessed Dec. 8, 2016) (113,919 Leon County voters were in favor of the amendment, with 26,854 against).

[5] Id.

[6] Elizabeth Cohen, Health care refugees: Medical marijuana and new hope, CNN – Health (Nov. 30, 2016 3:23PM), http://www.cnn.com/2016/11/28/health/health-care-refugees-part-2/.

[7] Id.

[8] Id.

[9] Fla. Const. art. X, section 29(d)(1) (2017).

[10] Id.

[11] Id. art. X, section 29(d)(2) (2017).

[12] Florida Division of Elections, Committee Campaign Finance, (accessed Nov. 29, 2016).

[13] Fla. Const. art. X, section 29(e) (2017).

[14] Id.

[15] Marijuana Policy Project, Medical Marijuana Program Implementation Timelines, https://www.mpp.org/issues/medical-marijuana/state-by-state-medical-marijuana-laws/medical-marijuana-program-implementation-timeline/ (last visited Nov. 29, 2016) (including: Alaska, Arizona, California, Colorado, Connecticut, Delaware, D.C., Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington; all of which can be used as a comparative snapshot of what this regulatory struggle can look like, either at an earlier or later stage of development).

[16] Id.

[17] Washington State Department of Health, Medical Marijuana, http://www.doh.wa.gov/YouandYourFamily/Marijuana/MedicalMarijuana/RulesinProgress (last visited on Nov. 29, 2016).

[18] Medical Marijuana Program Implementation Timelines, Supra note 15.

[19] Fla. Stat. § 381.986.

[20] Id. § 381.986(2).

[21] Id. § 381.986(2)(c).

[22] Id. § 381.986(2)(g).

[23] Id. § 381.986(2)(b).

[24] Hilary Bricken, Hazy Days Ahead? What We Don’t Know About Florida’s New Medical Marijuana Law, Above The Law (Nov. 28, 2016, 4:20 PM), http://abovethelaw.com/2016/11/hazy-days-ahead-what-we-dont-know-about-floridas-new-medical-marijuana-law/.

[25] Florida Department of Health, Office of Compassionate Use: Low-THC Cannabis & Medical Cannabis – Implementation Timeline, http://www.floridahealth.gov/programs-and-services/office-of-compassionate-use/_documents/ocu-timeline.pdf (Oct. 2016).

[26] Id.

[27] Hilary Bricken, Florida Legalizes Medical Marijuana, So Now What? Here’s the 4-1-1, Canna Law Blog (Nov. 9, 2016), http://www.cannalawblog.com/florida-legalizes-medical-marijuana-so-now-what-heres-the-4-1-1/.

[28] Ryan Malkin, New York Cannabis Licensing: The Basics, Canna Law Blog (Apr. 30, 2015), http://www.cannalawblog.com/new-york-cannabis-licensing-the-basics/.

[29] Illinois Cannabis Applications: From The Front Lines, Canna Law Blog (Sept. 25, 2014), http://www.cannalawblog.com/from-the-front-lines-il-dispensary-applications/.

[30] Hilary Bricken, How To Get A Nevada Marijuana License. It Ain’t Easy, Canna Law Blog (June 2, 2014), http://www.cannalawblog.com/better-put-up-the-points-for-a-nevada-marijuana-license/.

[31] Bricken supra, note 24.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Cohen, supra note 6.

[38] Id.

[39] Id.

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Understanding the Benefits of Medical Marijuana in Florida

The video above is an advertisement paid for by People United for Medical Marijuana, a Florida-based political action committee (PAC) seeking to legalize medical marijuana. It makes a number of important points that voters should keep in mind when they head to the polls on Tuesday to decide the fate of the Florida Medical Marijuana Legalization Initiative, or Amendment 2:

  • Medicinal Marijuana Eases Pain and Suffering — Consensus has been growing in the medical community that cannabis is helpful in treating certain medical conditions.
  • Strict Doctor Supervision — While opponents have painted physicians as becoming glorified drug dealers, Amendment 2 would allow doctors in Florida to prescribe medicinal marijuana for only the medical conditions in which the treatment would be most beneficial.
  • Only for Debilitating Conditions and Diseases — Amendment 2 would allow for medical use of marijuana only by individuals with debilitating medical conditions, which are defined as “cancer, epilepsy, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis, or other debilitating medical conditions of the same kind or class as or comparable to those enumerated, and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.”
  • Other States Respect Doctor-Patient Relationship — According to the National Conference of State Legislatures, 25 states, the District of Columbia, Guam, and Puerto Rico now allow for comprehensive public medical marijuana and cannabis programs.

This is the second time Floridians will be voting on a medical marijuana initiative. In 2014, 57.62 percent of voters supported the Florida Right to Medical Marijuana Initiative, but that total failed to meet the 60 percent supermajority necessary for an amendment to pass.

Tallahassee Marijuana Defense Lawyer

While cannabis has been painted in a largely unfavorable light for several decades in the United States, more people are beginning to realize that marijuana has some very favorable medicinal qualities. People who seek to use cannabis to alleviate pain or symptoms of serious medical conditions should not be classified as criminals.

If you or your loved one was arrested in Leon County for alleged possession of marijuana that was needed for a medical condition, do not hesitate to seek legal representation. You will want to immediately contact a Tallahassee medical marijuana attorney who can review your case and help you understand all of your legal options.

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Attorney Don Pumphrey, Jr.

Attorney Don Pumphrey Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney.

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