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Dismissal, No Information, Nolle Prosequi, What Does it all Mean in Florida

In Florida, dismissal cases, no information separated from the almighty nolle prosequi.  The majority of the defendants in any given Florida courtroom could not tell you the meaning of the term nolle prosequi.

Nolle Prosequi, in legal terms, means“[a]t common law the State has the discretion to announce a nolle prosequi any time prior to the swearing of the jury to try the cause. Wilson v. Renfroe, 91 So.2d 857, 859 (Fla.1956). In addition, because it is solely within the State of Florida’s discretion to nol-pros a case, it may timely do so without the permission of the court. State v. M.J.B., 576 So.2d 966 (Fla. 5th DCA 1991) (holding that the trial court erred in refusing to accept the State’s nolle prosequi filed after the trial court denied the State’s motion to continue, but before jeopardy attached).

The State’s discretion, however, is not unlimited. The State’s ability to dismiss a case without prejudice and to file a new information is restricted by double jeopardy and the speedy trial rule. State v. Stell, 407 So.2d 642, 643 (Fla. 4th DCA 1981).

Nevertheless, a “nolle prosequi effectively ends the proceeding, and any action taken subsequent to the filing of the nolle prosequi is a nullity.” Sadler v. State, 949 So.2d 303, 305 (Fla. 5th DCA 2007). See also State v. Braden, 375 So.2d 49, 50 (Fla. 2d DCA 1979).

Moreover, a nolle prosequi is self-executing upon its announcement and immediately terminates the proceeding. State v. Spence, 658 So.2d 660, 661 (Fla. 3d DCA 1995). No approval of the trial court is required,” State v. Aguilar, 987 So. 2d 1233, 1234–35 (Fla. Dist. Ct. App. 2008)

In the State of Florida, the Office of the State Attorney falls under the executive branch of government and therefore vests certain powers to determine whether to proceed with a criminal prosecution. The interesting aspect of a nolle prosequi is that it can be entered at any time and terminates the criminal proceedings, (on the spot, instantaneously, immediate), with no further proceedings on the charging document.

The ability to re-filing after nolle pros is subject to certain rules and restrictions such as double jeopardy, the speedy trial rule, and if neither of those applies, then there is still the infamous statute of limitations. Discussing all of the preceding would require separate blogs and separate entries to explain. The good news is that majority of the time a nolle prossequi is the best outcome for a criminal defendant.

No Information or No Action in Florida

A “no information” or a “no action” is not the same thing as nolle prosequi. In Genden, a “no information” was filed after the information, and around the same time that the appellant pled no contest to the two charges that were listed in the “no information.” It was never mentioned in the proceedings below and, as we noted earlier, is being raised for the first time on appeal.

The parties did not cite, and the court was not able to find, any case law or rules in Florida defining the term “no information.” The term “no action,” on the other hand has been defined as the voluntary termination of proceedings by the state before an information is filed. Genden v. Fuller, 648 So.2d 1183, 1183 n. 1 (Fla.1994); Allied Fidelity Ins. Co. v. State for Use and Benefit of Dade County, 408 So.2d 756, 756 n. 1 (Fla. 3d DCA 1982) (“A ‘no action’ is a dismissal of the pending charges before an information or indictment has been filed; a nolle prosequi is the dismissal of a pending information or indictment.”).

A “no action” serves the purpose of letting a person who has been arrested know that information will not be filed, or an indictment will not be sought.

The Court went on to say “[w]e do not agree with appellant that a “no information” is a nolle prosequi. From a grammatical standpoint a “no information” is the same as a “no action.”

According to Black’s Law Dictionary, an action is a “civil or criminal judicial proceeding,” Black’s Law Dictionary (7th  ed.1990), and an information is a “formal criminal charge.” Id. at 783.1

The Florida Supreme Court’s narrow interpretation of what can constitute a nolle prosequi is consistent with Wilson v. Renfroe, 91 So.2d 857 (Fla.1956), in which the prosecutor filed a motion to dismiss criminal charges which stated that an investigation showed that there was insufficient evidence to prove the case. Our supreme court rejected the defendant’s contention that the motion to dismiss was a nolle prosequi.”, Purchase v. State, 866 So. 2d 208, 208–09 (Fla. Dist. Ct. App. 2004).

Simply put, the no information or no action, depending on what part of the State of Florida you are in, merely tells you that a charging document will not be filed at that specific time. A no information is indicative of two things in the prosecutor’s world—getting rid of the case with no intention of bringing a charging document later or giving the target of the investigation more “rope” to hang themselves with later, so that the prosecutor can lie in wait for the appropriate time when more evidence exists to bring formal charges (within the boundaries of due process).

Dismissal in Florida Courts

Dismissal is a term usually used by the court. Dismissal can be used by a prosecutor, which is pleasant to a defense attorney’s ears, but it is more appropriate to say nolle prosequi.  Dismissal is usually a judicial function denoting that the charges, charging document, elements, primary offense, or any number of areas are “terminated” for that particular time, and for a particular purpose.

Depending on the timing of any dismissal, (and the basis), it could be fatal for the pending charges brought by the state attorney, or it could be a mere bump in the road for the prosecutor. For the defense attorney, dismissal could mean that there are still more battles to be fought, either on the re-filed charging document or on appeal.  Regardless, it is always good to hear the words dismissal, no information or no action, and nolle prosequi.

Don Pumphrey is a former State Prosecutor, a lifetime member of the Florida Association of Criminal Defense Attorneys, a former State of Florida police officer, a former professional athlete in both the USFL and the NFL, and a full IronMan finisher. Most importantly, Don is a husband, father, and friend who loves giving people back their lives and building relationships with former clients who are better because of his services.

Find an Attorney for Dismissal in Leon County, FL

If you or someone you know has been arrested, call an experienced criminal defense attorney immediately. Invoke your right to remain silent and do not speak with anyone until you have secured an attorney.

Don Pumphrey represents criminal defendants charged with drug crimes, violent crimes, DUI and driving offenses, and other criminal offenses in Leon County, FL, and the surrounding counties of Jefferson County, Wakulla County, Gadsden County and Liberty County.

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DUI Ignition Interlock in Florida, All about DUI’s?

blog-interlock-620

“Make no mistake there is always money attached to legislation that moves toward expanding or developing or implementing any device”, says Don Pumphrey, Jr., Owner and Founder of the Pumphrey Law Firm located in Florida’s Capital City, Tallahassee. This is a campaign that’s being pushed for mere safety?  One random company touts preventing over 4 million “illegal” starts since 1992 yet in the same paragraph give a disclaimer that nothing is 100%.

“Here is the straight.  The ignition interlock is a deterrent or a safety device?  Most persons who are required to use the ignition interlock device have been driving for days, weeks, months without the ignition interlock device, only to have it statutorily mandated as punishment?  These DUI ignition interlock laws and devices have been around for quite some time, where is the new research?    If it truly has the backing of safety and not monetary gain, I am all for anything that benefits each of us in society.”

Why isn’t there a marketing campaign pushing these devices on the largest group of our society that is immature, has a drivers license (or ability to apply for one) and is at highest risk?  This group would be persons ages 16-28 or the new “Uber Generation.”  “Who in the DUI world does the interlock truly benefit?  Show me the numbers. Show me it is about reducing drinking related traffic incidence.  I’m all ears.” adds Pumphrey, Jr. “Maybe we should look to current experts in the areas of human factors and look for your information from www.nhtsa.org  even better yet, request an opinion from an expert like Don Fournier, a licensed engineer and expert in reconstruction with Forensic Engineering Technologies. Reach out to someone like Dr. Justin Morgan at F.E.T. and see if they can point you to an opinion as to whether this is indeed a reliable safety device given any empirical research provided.”

The ignition interlock in Florida is a measure for money not for safety.  There may be collateral safety attached sufficiently to shoot the locks off the wallet of the legislature, but the real reason for the device is financial. In the end, it is my humble opinion is that the manufacturer is pushing a product to make money on DUI’s, not preventing DUI’s.

Penalties for DUI in Florida

Whether people were celebrating victories or wallowing in bitter defeats of College Football, socializing with friends, or simply grabbing a drink after work, arrests for alleged drunk driving  can turn fun into months of incredible stress. Convictions can result in serious penalties, even if it is your first criminal offense.To avoid costly fines, having your driving privileges suspended, and the possibility of time incarcerated, you need the assistance of an experienced Tallahassee criminal defense attorney with experience litigating DUI offenses on behalf of clients throughout various areas of Florida, including Leon County and Jefferson County.

Resources

https://www.google.com/?gws_rd=ssl#q=ignition+interlock+site:nhtsa.gov&*&spf=612

Studies About the Ignition Interlock: https://www.google.com/?gws_rd=ssl#q=ignition+interlock+site:nhtsa.gov&*&spf=612

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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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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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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

 

www.pumphreylawfirm.com

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

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High School: Another Day, Another Temptation

Author: Lourdes Valenzuela: : Leon High School senior and Pumphrey Law Firm intern

Pumphrey Law Firm Intern and Leon High School senior Lourdes Valenzuela

Lourdes Valenzuela

The average age for a first alcoholic drink in the United States is 13 years old. One may be thinking: “Why so young?” As a senior at Leon High School in Tallahassee, Florida, I will attempt to answer that troubling question. For a high school student, the need to feel accepted is fundamental in our everyday lives. This helps us understand peer pressure better and how it relates to drinking.

The psychological reasoning behind peer pressure is that everyone wants to feel accepted due to a fear of rejection. Psychologists have deduced that being part of any group helps anyone feel safe, protected and connected. There is an interesting connection between those who give into peer pressure and people who suffer from social anxiety. These individuals tend to navigate through their days with the fear of being socially rejected so in order to avoid exclusion, they feel the need to please most people.

Even if a person doesn’t intend on associating themselves with alcohol, they could still be surrounding themselves with temptations. Temptations could be health, family and even environmental factors. From a health standpoint, an inclination towards drinking could point to mental health issues. Alcohol only alleviates the symptoms temporarily; alcohol is not a healthy remedy or solution. Family could have an impact. If a family member drinks, since a majority of time is spent at home with family, the student is in the position of being influenced, surrounded by temptation.

Alcohol is portrayed in television shows and soap operas as a means to “relax”. A person that has an abnormal amount of stress oftentimes turn to alcohol, again to temporarily reduce the amount of stress they seemingly cannot cope with anymore. This is a temporary solution and alcohol often enhances the real, underlying problems.

Alcohol abuse can potentially create a domino effect on a young adult’s life. Since alcohol can take charge of the brain and health, it can have a negative impact on the person’s education. The student will soon find it difficult to remember important things, will have trouble concentrating in the classroom environment, and will spend less amount of time in the classrooms because of health issues. The majority of high school dropouts have had some involvement with alcohol or illegal drugs[1].

Alcohol is able to penetrate the brain barrier therefore being able to touch the actual brain cells. Alcohol is not only a depressant that influences the part of the brain that controls inhibitions but it is also a factor that negatively affects brain development. Alcohol inhibits awareness, clouds judgment, causes a loss of consciousness, and leads to clumsiness. Since the brain doesn’t stop developing until the mid 20s, drinking at an early age can cause the brain to not develop properly, especially for the duration nature intended.

When alcohol begins to have a negative impact on someone’s daily life, many serious health problems can develop. High blood pressure, heart disease, stroke, depression, anxiety and even cancer are just a few of many. [2] Excessive and irresponsible alcohol consumption is responsible for 88,000 deaths in the U.S. [3] Alcohol abuse has its own social consequences; drinking and driving, violence, suicide and sex crimes and if a person is not educated on it or mature enough, it can take control of their life.

-Lourdes Valenzuela

Intern at Pumphrey Law Firm

Leon High School class of 2017

[1] Dallas, Mary Elizabeth. “Drug, Alcohol Abuse More Likely Among High School Dropouts.” HealthDay. N.p., 19 Feb. 2013. Web.

[2]“Fact Sheets – Alcohol Use and Your Health.” CDC. U.S. Department of Health and Human Services, 25 July 2016. Web.

[3] Alcohol-Impaired Driving.” NHTSA’s, 2014. Web.

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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.

www.pumphreylawfirm.com

[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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Choosing the Right Attorney for your Florida DUI Charge

As I tell juries during jury selection, the arrest decision for Driving Under the Influence (DUI) is very unique.  It’s one of the few crimes where a citizen can be arrested and seized based solely on the opinion of a police officer.  A little known fact is that the demand for a breath sample is not allowed by Florida law until after a person has already been arrested.  Therefore it is critical that attorneys who represent citizens charged with DUI understand the very same training that police officers use to formulate their opinion that results in the arrest.

Hiring the right attorney can be the most crucial state of the DUI process for getting a desirable outcome.  After all, the arrested citizen is not just hiring an attorney but also making an investment in their future.  Far too often people hire someone they know who is an attorney but do not focus their practice on criminal law, let alone focusing particularly on DUI.  Far too often people hire an attorney who doesn’t have the trial experience necessary to zealously defend their DUI charge.

If you are in the unfortunate position of having to make that decision of which attorney to hire, make sure to hire an attorney who will aggressively fight for you and who understands all the critical aspects of a DUI defense.  Preparing a DUI defense takes time and experience.  Make sure the attorney you hire has had a DUI trial recently.  If you choose to hire the lowest priced attorney, and ignore the most skilled attorneys, you may end up paying less on the front end but could wind up paying more than you hoped on the back end.

-Aaron Wayt
Associate Attorney

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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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