Wednesday, January 13, 2010

BIG DUI HEARING THURSDAY

UPDATE: Report from the front lines of DUI Defense:

Richard Hersch writes:


My first post in four years.

The sound you heard emanating from the courthouse this afternoon was my motion crashing and burning. Ouch! Although we have substantial evidence that the inspection process for the breath machines is not scientifically reliable and subject to fraud (905 potential plug pulls -- and maybe ditched failed inspections during an 18 month period statewide), the judges held fast to a requirement that the infirmities relate directly to the breath reading in their case. My suggestion that all inspections be videotaped resulted in surprisingly strong pushback.

Whatever. Thanks for the support and kind words (mostly). Back to the drawing board for the next attack on these infernal machines. And yes, although less than 50% of the practice, there is gold in them there DUIs.

Sorry to hear about Tom Carney. There was a judge who let you know where you stood, whether you liked it or not.


Judge Tom Carney has passed away.

It is with very deep sadness that we report that former Circuit Court Judge Tom Carney has passed away. Judge Carney has been retired for several years and was enjoying his retirement golfing in North Carolina. More on this later. He was a Judge we were very fond of. A real man. A real judge.


THE COLONEL OF COUNTY COURT REPORTS....

At ease. I know that Rumpole owes you a DD22/416 (3rd DCA Report) but there are big doings Thursday in County Court that you should know about. So take a knee solider and listen up:

Not to many of you need additional reasons to drink adult beverages when in the Florida Keys, but thanks to DUI super-maven Richard Hersch, and attorney Hal Schumacher, the Intoxilyzer 8000 has been out of service ever since Hersch and company laid a whole lot of hurtin on the Monore County State Attorneys Office last summer. Hersch succeeded in showing that the machine's gerbils were not properly fed, thereby rending the wheel they ran on to power the machine NOT IN COMPLIANCE with the 600 or so federal and state regulations on the subject. There currently are NO breath test in the Keys while the Appellate courts sort the mess out.

Hersch then filed one of these motions in each of the county court divisions here in Dade.

The Dade SAO, in fulfillment of their mandate to seek justice, immediately moved to strike the motions and have them denied without a hearing.

There is a hearing Thursday, January 14, 2010, before Judge Bloom in Courtroom 6-8 at 1:00 PM on (believe it or not) whether there should be hearing on these motions? (And we wonder why people dislike lawyers so much. Only we set hearings on the issue of whether we should have a hearing on a motion).

Six of the other County Court judges who have similar motions pending in their division have been invited, although there is no truth to the rumor that the FACDL is catering the event with wine and cheese. The specter of Hersch's scimitar-like legal arguments, ably assisted by the lovely and equally talented Lasonya, will have to replace the glow of a crisp chardonnay with a slab of brie.

What's at stake, if you believe the MADD-Puppett SAOs is nothing less than the future of the free world.

What's really at stake is whether the people who stuff those hamsters in machines and call them accurate, scientific and in full compliance with the regulations of the State of Florida and the Federal Government can continue to get away with the "you'll just have to trust us that it works" argument. How long are the Judges of Florida going to let a two bit corporation from Kentucky tell them "tough" when it comes to issues like discovery on the source code for the machines?

Hersch is mad as hell and won't take it any longer. How about you? Show your support for the DUI defense lawyers by showing up in 6-8 Thursday at 1pm. The more people the prosecutors have to make their ridiculous arguments in front of, the more embarrassed they might be.

OK. That's all. Dismissed.

And remember...there's gold in them there misdemeanors.


27 comments:

Anonymous said...

Not only will I show support for Richard by attending the hearing, but I will be waiving my pom poms. These machines are notoriously unreliable and we do not have access to the source code or the procedures used to maintain these machines in compliance. We are just to trust it as gospel.

I have a client that allegedly blew over a .40 on a machine in full compliance. According to medical science my client should be comatose at that point because he has over 3 pints of pure alcohol in his system. He is about 5'8 and 160lbs. But according to the DUI report he only stepped off line 4 times during the walk and turn. Go figure.

On a personal note, as a young defense attorney, Richard has been accessible for guidance and counsel even though he owes me no such courtesy.The kindness and generosity he shows to young lawyers is nothing short of extraordinary. Richard, Lacy and Catalano might was well be the big brothers and sister to all young defense attorneys in county court.

Anonymous said...

who cares...so now that rare client who blows about .08 is going to trial? good luck with that. it's really no fun when all you have is roadsides. Then, you can't talk about the lack of breath and jurors will just assume your client refused.

This is like when the Defense files a motion to suppress the HGN when the cop is moron. HGN is suppressed, and then the cop never gets to look horrible on the stand.

Have fun with this everybody.

Anonymous said...

Bloom will not make a ruling. She will take it under advisement and just not rule. Hersh will be before her again in 3 months asking her to rule.

Map: where to take donations said...

Are you kidding!

Is this Blog run by hateful Rush Limbaugh?

The only main subject on this blog should be the horror of the death of the countless Haitians. Who gives a crap about a DUI hearing to help drunks flea justice and kill innocents.

Shame on you! Whomever runs this blog!

The link above takes you to a map of drop off locations for donations in Miami for the victims of Haiti.

Anonymous said...

go richard

Anonymous said...

Go Richard

Anonymous said...

Rumpole,
With sadness, retire Judge Tom Carney has passed away.According to email sent to Court personnel by the Chief Judge, he died on Tuesday.

LAS

Anonymous said...

I heard Judge Carney passed away. Is that true? If so, he will be missed. What a character.

Anonymous said...

great guy

Anonymous said...

It's whiny, cringe-inducing people like 7:34am that make you wonder if people like that ever realize that they haven't cornered the world's supply of morality.

Miamicriminallawattorney.com said...

So sad. Our legal community has lost a great man.

Anonymous said...

10:03......your points about Richard and Catalano are well taken.....but, you shouldn't be so surprised that your client did as well as he did on the WAT. PLENTY of hardcore alcoholics PASS the WAT and FTN even at levels above .30. I'd suggest that you observe a few sobriety checkpoints or attend a DUI workshop and pull some of the articles on the tests' sensitivity.

BTDT

PS----of course, that notwithstanding, you SHOULD always make the argument that the allegedly high BAC is inconsistent with the defendant's performance on SFSTs, etc.

CAPTAIN said...

THE CAPTAIN REPORTS:

So you want to be a Circuit Court Judge?

Judge Norman Gerstein is retiring.

The Eleventh Circuit Judicial Nominating Commission has been asked to provide Gov. Charlie Crist with nominees for the vacancy in the Miami-Dade Circuit Court resulting from the resignation of Circuit Judge Norman S. Gerstein.

All persons interested in applying must deliver a complete application and 10 copies to:

Mark A. Romance, Chair
Eleventh Circuit Judicial Nominating Commission
c/o Richman Greer, P.A.
201 S. Biscayne Boulevard, Suite 1000
Miami, FL 33131

The deadline for submitting an application is Thursday, Feb. 11, by 5 p.m.

Captain Out .....

Real Richard Hersch said...

My first post in four years.

The sound you heard emanating from the courthouse this afternoon was my motion crashing and burning. Ouch! Although we have substantial evidence that the inspection process for the breath machines is not scientifically reliable and subject to fraud (905 potential plug pulls -- and maybe ditched failed inspections during an 18 month period statewide), the judges held fast to a requirement that the infirmities relate directly to the breath reading in their case. My suggestion that all inspections be videotaped resulted in surprisingly strong pushback.

Whatever. Thanks for the support and kind words (mostly). Back to the drawing board for the next attack on these infernal machines. And yes, although less than 50% of the practice, there is gold in them there DUIs.

Sorry to hear about Tom Carney. There was a judge who let you know where you stood, whether you liked it or not.

Anonymous said...

uh, 7:34 this is a legal blog. if you want a haitian blog, try googling "haitian blog". wow are you a f***ing moron.

Anonymous said...

hey, 7:34 go start your own blog. before you do, make sure to differentiate between "defense lawyers blog" and "natural disasters blogs".

go to dictionary.com if you dont understand those big words.

Real Fake Alex Michaels said...

I vill apply for Judge Gersten's spot. If the JNC not nominate me, and the Governor not pick me.........

DEEEEEEES EEEEEEES MAJOR BULLSHEEEEEEEEEEEEEEEET!

Anonymous said...

Judge Andrew Hague, wrote the following on his Facebook status (I hope he does not mind the reprint, but the words deserve to be heard by others):

"I find myself feeling guilty for sitting in the comfort of my well lit home while the people of Haiti sit in the dark streets for a second night without food, water or any other of the basic comforts that we take for granted just 600 miles off of our shores. My gut reaction is to find some way to get down there and volunteer some of the skills that I have acquired over the course of my lifetime."

Anonymous said...

I agree. I have never been to Haiti but, I feel so bad for those people right now.Even if ths was a rocket scientist blog, we must be human!

May Tom Carney rest in peace. Good guy. Glad I knew him.

The Florida Bar Hit List said...

The Florida Bar says it has opened investigations into the following senior attorneys in Scott Rothstein's former Fort Lauderdale law firm:

Russell S. Adler, vice president/shareholder

William J. Berger, shareholder

David J. Boden, general counsel

Shawn L. Birken, partner

Harold S. Bofshever, partner

Robert C. Buschel, partner

Sara Coen-Giovanelli, partner

Gary M. Farmer Jr., partner

Mark S. Fistos, partner

Scott A. Goldstein, partner

Julio E. Gonzalez Jr., partner

Frank Herrera, partner

Steven R. Jaffe, partner

Christina M. Kitterman, partner

Denis A. Kleinfeld, shareholder

Seth Michael Lehrman, partner

Carl H. Linder, shareholder

Steven N. Lippman, shareholder

Arthur C. Neiwirth, partner

Marc S. Nurik, shareholder

Steven H. Osber, partner

Michael A. Pancier, partner

Carlos J. Reyes, shareholder

Stuart A. Rosenfeldt, president/shareholder

John Michael Ross, partner

Grant J. Smith, shareholder

Adam J. Steinberg, partner

Barry J. Stone, shareholder

Richard B. Storfer, partner

Les Stracher, shareholder

Osvaldo F. Torres, partner

Matthew D. Weissing, partner

Johnny Williams Jr., partner

Tami R. Wolfe, partner

Blandin J. Wright, partner

Anonymous said...

I remember Judge Carney. Old school all the way. Totally unpretentious. I remember the followign colloquy:
Judge Carney: Are you entering this plea knowingly and voluntarily.
Defendant: Yes.
Judge Carney: Are you under the influence of drugs or alcohol?
Defendant: No.
Judge Carney: When is the last time you had a drink?
Defendant: 10 years ago.
Judge Carney: Wish I could say the same.
As a young prosecutor, I thought it was hilarious. Maybe it was the timing or the expression on his face. RIP

Anonymous said...

Thanks for the effort Richard!

Anonymous said...

Skills?

Anonymous said...

So, now we have the Captain in circuit court and the Colonel in county court. What's next? The General of traffic court? The Lieutentant of the 3rd district court? The Sergeant of the Florida supreme court? Or the Corporal of the U.S. Supreme Court?

DUI ESPN said...

There's no doubt that Hersch was hindered by the last minute scratch of Jonathan Blecher, who was out with turf toe. Blecher has been effective this year as a deep threat, going over the middle, and blocking obnoxious prosecutors. Injuries have a lot to do with this game and without Blecher, Hersch's offense suffered.

The Trialmaster said...

The Trialmaster will henceforth be known as The Field Marshal of Branch Court, as he is clearly the reigning expert in that area, particularly on catching snook out of season cases.

Anonymous said...

To Thursday, January 14, 2010 6:49:00 AM

Bloom did rule--she denied the motion weeks ago. But since Hersch is such a baby he asked for a rehearing. Now he'll throw his files around and talk about how stupid the judges are here and how smart they are in the keys or orlando. It's laughable, and he's a joke.