WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Thursday, July 01, 2010

DHSMV DISASTER!

UPDATED: A DUI MAVEN RESPONDS BELOW

We received this emergency communiqué from the Colonel Of County Court:

Rumpole- get this out right away.
Comminque' from the field from the Colonel of County Court:

Listen up soldiers, there is a new offensive that we need to counter.

For those of you who practice DUI you know that there are two ways your client can lose his or her license. There is the obvious way when the court suspends the license if the client enters a plea to DUI. There is also the hearing at the Department of Highway Safety Motor Vehicles (DHMSV).

When the client is arrested for DUI the officer will take the client's driver's license. The client or their lawyer then need to schedule a hearing at the DHSMV. Prior to July 1, 2010, the driver had the right to subpoena the arresting officer. If the officer did not appear, the client would win and get their driver's license back. This was in the rules of the DHSMV.

Starting July 1, 2010, the DHSMV has ordered all of its hearing officers to no longer reverse the suspension of the driver's license if the subpoenaed officer fails to appear. Now, if the officer fails to appear, the attorney must then spend approximately $250.00 and file a petition in the Circuit Court to enforce the subpoena. If the officer fails to appear at the DHSMV hearing and the attorney does not seek enforcement of the subpoena, the client will lose his/her driver's license.

So now basically officers will no longer ever show at the DHSMV initial hearing unless and until the attorney now takes the separate step of filing an additional civil lawsuit in Circuit Court. Now every DUI attorney must be able to file civil suits in order to do a good job representing their clients.

THIS IS AN OUTRAGE!!!!

The DHSMV is ignoring their own rules and screwing the criminal defense bar and the drivers of the state of Florida. The concept of due process and the right to contest the unilateral suspension of a driver's driving privileges has gone out the door.

The Colonel calls upon his special forces- the DUI attorneys of Dade, to unite and rally together and form a concise and lethal counterattack to this latest attack by the petty bureaucrats who have no legal training and no desire to see fairness enter the hearings at the DHSMV.

The Colonel awaits the response of his army.

Rumpole says: We've never done this type of work, but this new development seems distressing. We would like some DUI lawyers to write in and tell us how they intend to address this issue.

BOBBY REIFF TO THE RESCUE!!!!

Bobby Reiff said...

Dear Rumpole:

The rumors appear to be true, with confirmation of this policy change having been received across the state from both hearing and police officers. Perhaps we will need to attempt to re-open the federal lawsuit filed in 1990 challenging the constitutionality of the statute [322.2615].

In their reply brief, counsel for DHSMV responded to the brief Scott Fingerhut and I authored by stating that "[a]micus challenges the constitutionality of section 322.2615 on the ground that it denies confrontation of the evidence and cross-examination of witnesses, including the arresting officer. This argument is fallacious [because the plaintiff's] suspension was invalidated when the arresting officer failed to appear at the hearing." See SUPPLEMENTAL BRIEF OF THE FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES IN ESSEN V. MELLON, Case No. 90-2243-Civ-Moreno, at p. 9 (emphasis added). I am no expert on the subject but I intend to see if we can file a motion to re-open that matter before Judge Moreno after I return from my vacation.

Enjoy the holiday!

Bobby Reiff


RUMPOLE SAYS: Now there's a lawyer!! This guy has reply briefs from 1990!!! We can't even find most of the discovery on our open cases. Any federal guys have any opinion on whether the 1990 lawsuit can be reopened? It is now clear to us what has occurred: The DHSMV has waited like snakes in the grass for the last twenty years...just waiting to strike when they felt the uproar had faded. But they never counted on Bobby Reiff who apparently has a memory that just won't quit. We say ""Go get'em!!"

18 comments:

Eyeonshumie said...

OFF TOPIC BUT...

Sign seen at the desk of a secretary outside the door of a managing partner's office in a mid size Brickell law firm:

IN SHUMIE WE TRUST
ALL OTHER ASSOCIATES WORK UNTIL 7PM

Anonymous said...

Okay, this is an outrage. However, the officers are not going to like the fallout to them, if the appropriate relief is sought.

First, makesure the department in question is notified of the officer's non-appearance and attaching a copy of the subpeona to the letter. The departments take action against the officers for failing to appear. If they complain to you, show them the directive and why you have no choice.

Second, file your action in civil court for a finding of indirect criminal contempt against the officer and mandamus on the hearing officer to reinstate the lisense. Ask for attorney fees and costs. Do not let the officer appear voluntarily on a reset and claim the issue is moot. It is not moot while there are any issues before the Court.

Third, make sure the Circuit Judge has a copy of the directive to the hearing officers regarding non-enforcement of the subpeona. This will raise the appropriate ire of the judge and assure your relief.

Somehow, I think after a couple of rounds of this the message will be heard loud and clear in Tallahassee and this will go away.

Anonymous said...

You watch... the ticket lawyers will all expect Catalano and Hersch to do something about this. Catalano has beat the hell out of DHSMV. Hersch is truly an expert at breath machines.

Maybe the tickets lawyers need to do more than just show up and ask for a withhold for just one time.

Maybe the ticket lawyers should come up with money to pay someone like Catalano or Hersch or the Essen firm to sue the bastards.


Now you lawyers who don't do DUI cases know the bullshit the DUI lawyers go through with DHSMV.

In Broward, DUI expert Lloyd Golberg is running for judge. Some say he is just a DUI lawyer. I say that DUI is harder than other cases to defend and the DUI lawyers work really hard to get good results for clients who generally have no prior criminal record.

This is why Catalano was awarded $100,000.00 in attorney's fees from DHSMV. They simply feel they are above the law.

I guess you figured out who wrote this.

Google Voice the Future is Now and FREE said...

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Check it out.

CAPTAIN said...

THE CAPTAIN REPORTS:

To all my loyal readers, have a safe 4th of July weekend. Happy Birthday USA. 234 years and still going strong.

So, you want to be a County Court Judge ......

On June 22, I reported to you the names of those that had applied to replace Judge Jose Fernandez. The JNC has met and narrowed the field to the following that will be personally interviewed on July 12:

Olankie Annette Adebayo
William Ira Altfield
Tanya J. Brinkley
Ivonne Cuesta
Joseph I. Davis, Jr.
Tamara Ilene Gray
Steven Grossband
Charles Johnson
Robert James Kuntz, Jr.
Steven Lieberman
Anita Margot Moss
Gordon Charles Murray, Sr.
Margaret Ann Rosenbaum
Marie Jo Toussaint

Those that did NOT make the cut:

Bart Armstrong
Melisa Coyle
Jeff Cynamon
Michael Jones
Stephen Mechanic
Silvia Perez
Sorraya Solages

Now, if you want the JNC members to know how you feel about a particular candidate, then email them or call them:

Chair Marc Romance
(305)-373-4048
mromance@richmangreer.com

Gonzalo Dorta
(305)-441-2299
grd@dortalaw.com

Philip Freidin
305-371-3666
pfreidin@fdlaw.net

Manny Kadre
305-446-1882
manny@cc1companies.com

John Kozyak
305-372-1800
jk@kttlaw.com

Rayfield McGhee, Jr.
305-350-5006
mcghee@mcgheellc.net

Marlene Quintana
305-416-6880
marlene.quintana@gray-robinson.com

Andrés Rivero
305-445-2500
arivero@rmc-attorneys.com

Daniel W. Schwartz
305-374-5600
daniel.schwartz@akerman.com

Cap Out .....

CAPTAIN said...

and this LATE BREAKING NEWS that should have us all quivering in our boots:

The NRA has come out against Elena Kagan's nomination to the US Supreme Court.

Maybe they'll shoot any of the senators that vote FOR her confirmation.

Cap Out ....

Bobby Reiff said...

Dear Rumpole:

The rumors appear to be true, with confirmation of this policy change having been received across the state from both hearing and police officers. Perhaps we will need to attempt to re-open the federal lawsuit filed in 1990 challenging the constitutionality of the statute [322.2615].

In their reply brief, counsel for DHSMV responded to the brief Scott Fingerhut and I authored by stating that "[a]micus challenges the constitutionality of section 322.2615 on the ground that it denies confrontation of the evidence and cross-examination of witnesses, including the arresting officer. This argument is fallacious [because the plaintiff's] suspension was invalidated when the arresting officer failed to appear at the hearing." See SUPPLEMENTAL BRIEF OF THE FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES IN ESSEN V. MELLON, Case No. 90-2243-Civ-Moreno, at p. 9 (emphasis added). I am no expert on the subject but I intend to see if we can file a motion to re-open that matter before Judge Moreno after I return from my vacation.

Enjoy the holiday!

Bobby Reiff

Rumpole said...

To the person whose comments I am not printing. After careful thought I have decided that the best way to respond is to tell you to go F yourself you moron. And if you don't like it, and you think you know who I am, come by my office and then we'll see if what you say is true. Coward.

Anonymous said...

Rumpole
Ivonne Cuesta, Tammy Gray and Margot Moss are all lawyers I have known and watched practice for years . I have deep respect for all three. Any of these ladies would be a good Judge of my County Court.
D. Sisselman

Anonymous said...

...and David, let us not forget that they are all bleeding heart Public Defenders. That may not be a dis-qualifier, but it is a fact.

Anonymous said...

Captain, the NRA's not going to shoot the senators themselves, but it can shoot down their chances of reelection. Politicians don't forget that the Republicans gained control of the House in 1996 as a result of the 1994 Clinton gun ban.

CAPTAIN said...

David, Captain here; thanks for the input to "Rumpole".

You have a background in the political arena; why not pass your thoughts on to the JNC.

And thanks for reading my posts. I always enjoy your comments and thoughts.

Cap Out ....

Anonymous said...

Wow, D Sisselman has respect for former PD colleagues. What a f-in' shocker. The kiss up kisses up to his kiss up fellow PD's. SMOOOOOCh.

Anonymous said...

i think it is time for some real diversity in our judiciary...for good reasons there are no black woman judges...time to change and have a representative judiciary...equal opportunity employer??? happy holiday!!!!

Anonymous said...

Charles Johnson is the clear standout. I'm a former assistant public defender and I have had the pleasure of dealing with Charlie. He is as honest and reasonable as they come.

Anonymous said...

Yet another broken water pipe at the Broward County Courthouse!

From the Sun Sentinel:

More than a dozen employees had to evacuate their offices at the Broward courthouse after a broken pipe sent water gushing through a sixth-floor ceiling Friday morning.

The cascading water put five of the building's nine elevators out of service. Water has been turned off in east wing of the courthouse.

Lawyers and staff in the State Attorney's Office used umbrellas to protect themselves from dripping water and falling debris as they fled their offices. They were told not to return because fallen ceiling tiles had exposed asbestos.

"We first encountered the sound of pouring rain inside the building," said Monica Hofheinz, executive director of the State Attorney's Office. "The ceiling started to fall and crumble, wires started to drop down and water started coming in like a river overflowing."

Prosecutors and staff tiptoed through puddles, over soaked carpets and the sludgy glop left by ceiling tiles that had fallen and dissolved into a soggy mass.

Staff members were trying to salvage legal files, putting boxes of paperwork on desks and anywhere that was not underwater.

See the entire article here:

http://www.sun-sentinel.com/news/local/breakingnews/sfl-broward-courthouse-flooding,0,4409838.story

My Two Sons said...

Billy Altfield and Charlie Johnson are two of the most decent and fair minded attorneys in the REGB. Their word and reputation are a model for attorneys within their office. In my twenty five years of practice, I would be hard pressed to find a better judicial candidate.

Anonymous said...

This problem is not new; sounds like DHSMV has revived this gimmick, which I recall from the 90s (The Essen Era). I forget what happened when they tried it before, but suspect that Anonymous 2:47's suggestion may have been used: to file suit and notify the officer's department of non-compliance with a subpoena. A couple of orders holding officers in contempt and perhaps even making DHSMV pay defense lawyers' fees and costs will get their attention.