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

Tuesday, July 06, 2010

TUESDAY JULY 6

WORLD CUP UPDATE:
UPDATE- after a very controversial goal in the second half to go up 2-1 the men in orange have gone ahead 3-1 on a brilliant header. The Netherlands look headed to the finals.

Uruguay and The Netherlands today at 2:30 PM EDST.
In Uruguay the country of 3.5 million is coming to a complete stop. Most business and schools are closing after lunch and the public transportation system will come to a halt.

The Dutch may know something we don't: They only booked a hotel room through July 5th.


Welcome back, sun splashed denizens of the REGJB. Actually if you vacationed or stay-cationed in Florida, you endured a mixture of sun and rain. By all accounts
the rain will continue through our Tuesday-cum-Monday courthouse session.


GOODLUCK JONATHAN:
Longtime and careful readers of the blog know that our current favourite Head Of State is Nigerian President Goodluck Jonathan. After his country's very disappointing performance in the World Cup, Mr. Jonathan threatened to suspend his country's national football team from participating in FIIFA football events for two years. However, an hour before the deadline given by FIFA yesterday, Mr. Jonathan reversed his earlier inclinations and decided to keep his government out of football.
We applaud Mr. Jonathan's wise and reasoned decision in the matter.

RINGO STARR:
He turns seventy tomorrow. 70! This is very upsetting to us.

DRIVERS LICENSES:
As things now stand, when you get arrested for a DUI, the officer takes your license. If you do nothing, you lose your license for a year (for a refusal) or six months (f0r an unlawful breath sample.) If you request an administrative hearing, you can subpoena the police officer to give testimony justifying the stop and arrest. HOWEVER, after July 1, 2010, if the officer refuses to appear at the hearing....you still lose. The Department will no longer invalidate suspensions. Subpoenas now mean nothing. The rule of law has gone to hell. You lose your driver's license before a Judge or Jury ever looks at the evidence in your case.

Ace Criminal Defense Attorney Jim Woodard provided this recent transcript of a DHSMV hearing- it's right out of 1984: as the transcript makes clear- when you subpoena the officer and he/she doesn't show, the attorney is required to seek enforcement of the subpoena BUT THE CLIENT'S LICENSE IS AUTOMATICALLY SUSPENDED (the temporary permit issued when the client requests a hearing is not renewed during the time the attorney seeks enforcement of the subpoena).
This is a win/win for the officer- don't show and they automatically win.

HEARING OFFICER: Oh, okay. Okay. You've
3 subpoenaed two officers; ....
4 And, both of them, once again, are from the
5 ... Police Department, and you have provided
6 me proof of service for both of the officers, and the
7 officers have failed to appear.
8 What I would do is: Hold the subpoenas for two
9 working the days -- the second working day will be July
10 7th, 2010 -- for the officers to provide good just
11 cause. If the officer does, I will continue the
12 hearing with a permit, if eligible, and maintain the
13 subpoenas in effect; however, should the officers not
14 provide good just cause within the two working days,
15 you may seek enforcement of the subpoenas, and a
16
failure to appear will not invalidate the suspension
17
any longer.
18 If Counsel -- I'm sorry -- Counsel has the
19 responsibility to contact this office, after the two
20 working days of this review, to verify whether good
21 just cause was received or not. And, if not, you must
22 provide me with written proof that you are indeed
23 seeking enforcement of the subpoenas on ...
24 and ....
25 The record shall remain open for ten days, which

page 2
1 will be July 13, 2010, for the sole purpose of Counsel
2 providing written proof of seeking enforcement of the
3 subpoena.
4 If written proof of seeking enforcement is
5 received timely, a continuance will be granted
without
6
a permit.
7 If written proof of seeking enforcement is not
8 provided by July 13, 2010, a final order will be
9 entered within seven working days of the close of this
10 review.


Rumpole says: ridiculous.

21 comments:

Anonymous said...

Why is Ringo Starr turning 70 so upsetting?

Rumpole said...

Because when we were a child he was a mop head getting off a plane in NYC. And now he's 70. Getting old is nothing that we recommend and we advise avoiding it at all costs.

Anonymous said...

The good news is that with the Miami SAO's traffic diversion program it is no longer illegal to drive with a suspended license. Simply take 2-4 hours out of your day and pay $150.00 and the Miami SAO will dismiss DWLS charges against you. The Miami SAO will NOT require you to obtain a valid license and has no limits in the number of times you can utilize this service. Happy driving.

Anonymous said...

Now you "real" lawyers know what we put up with at DMV.

They simply don't care about law or ethics. Even Supreme Court opinions mean nothing to them.

That is why lawyers have to demand attorney's fees in every case theya appeal.

In Costarel v. Fla. Dept. of Umemployment, (about 2005) the Sup Ct said that they are sick and tired of state agencies ignoring binding authority.

So a cop stops you and thinks you are DUI. You go to jail. You can- not even bond out until 15 or so hours. They assume you are guilty. Even burglars get out sooner.

Then, DMV takes your DL on the cop's word alone. Guilty until proven innocent! You "appeal" by asking for a formal review to show that the cops lied or simply that the cops had no grounds to stop you or arrest you. Again, DMV cares less. They even had the statute modified about 4 years ago to take "lawfullness of arrest" out of the statute. (That is pending before the Supreme Court right now and the justices were rather vocal at oral argument that they think a lawful stop/arrest is still needed to suspend a DL). They have no problem with cops standing in the middle of the road and only stopping black guys, admitting they only stop black guys and still the stop is OK at DMV. Hey, this is a communist country right?

Cop fails to appear and DMV now simply sustains the suspension. They assume you are guilty and you no longer have a right to confront them...cross examine them. (Remember, a DL is a privilege and a right so, they can do that in this communist country we live in.)

Now do you REAL lawyers (the fine folks who don't do DUIs) know what we are up against?

Welcome to Communist Cuba!

Toy Story said...

To make things more interesting to boot, the police can stop you 200% illegally and it will not form a basis to fight the suspension.

In their infinite wisdom, the Legislature deleted the provision concerning legality fo arrest, leaving the hearing officer able to only review 3 things.

Motorist: Why have you pulled me over?
Officer: Because I saw you walking at the Beach earlier tonight, and lots of drunk people usually walk around the Beach.
Motorist: That doesn't sound right.
Officer: License, registration and insurance I'm asking the questions around here unless you want a 'resisting' too.
Motorist: Here you go.
Officer: Your nose looks red and you smell like a beer factory. Step out of the car. Want you to do some exercises.
Motorist: Look, I have a war injury and I have to decline.
Officer: You're under arrest for DUI.

*Back at the station, Motorist refuses to submit to the Intoxylizer either. License suspended.

AT HEARING:
(No officers in attendance as they don't have to be and they used their subpoenas as toilet paper.)

Hearing officer: I admit the ticket, the arrest form, the DUI test package. I find there was PC for DUI based on blood shot eyes, slurred speech, delayed reaction, odor of alcohol, reddened face. Suspension sustained.

Anything wrong with this picture?

old guy said...

Rumpole,
I disagree about aging. The alternative stinks.

Fake Scott Saul said...

Rumpole- there are several interesting subjects to discuss, and I am actually quite involved in the driver licenses issue. But in response to Fake Warren Schwartz yesterday who opined that the secret to success in life was a bowl of stewed prunes just before bed, let me say that they now make Yogurt with Fiber! This has proved wonderfully helpful for those of us who don't care for the taste of prunes.

Fake Talithia leacock. said...

Many of you know that I spent the weekend partying at the most exclusive clubs in So Be.

On Monday morning July 5th, I had occasion to awake early and take a pre-dawn stroll down the beach as the sun rose.

The amount of fireworks debris was troubling. The beach was littered with cardboard rockets and spent firework casings. As a committed ecologist, I am very troubled by the effects this mindless holiday is having on our oceans.

Therefore, by the power vested in me as a Listserv yenta and Blog contributor, I am now calling for a complete South Beach Ban on Fireworks!!! In the future all firework related celebrations should be carried out with laser light shows.

Please join me in contributing to the newly established TAF (Talitha Against Fireworks) foundation.
Thank you.

fake my two sons guy said...

Schwartz and Saul are a buncha altacockers.

Toy Story said...

The amicus brief of the FACDL can be found here with regards to the legality of arrest issue:

http://www.floridasupremecourt.org/pub_info/summaries/briefs/08/08-2394/08-2394_Amicus(FlaAssocCriminalDefenseLawyers).pdf

Anonymous said...

Ringo may be 70 but whatever talent he had died a long time ago. I'd rather listen to Neil Sedaka B-Sides than any of the drek that Ringo has recently released.

Anonymous said...

BREAKING BLOG NEWS:

CNN is considering several replacements for Larry King in the fall. Two of the replacements come from Miami, Florida. The First is David Young, who recently worked as a television judge. The show would be entitled "Young Ideas" and in celebration of the initial start up, the show would be shot live for the first two weeks from Youngstown, Ohio, where guests would be centered around the struggling economy, and the loss of american manufacturing jobs offshore.

The second show is more of a long shot and would feature miami lawyer Mark Eiglarsch. The show would be entitled "On Your Mark" and would feature legal and current topics of the day. ...

Anonymous said...

Mark Eiglarsh would be better than Greta Van Susteren and David Young is quite entertaining, so, both are good choices for the fall line-up in CNN.

Anonymous said...

rumpole

do you like any
stocks at these prices?

Anonymous said...

save me form opening a book.... how does one enforce a subpoena issued by DHSMV?

Anonymous said...

as Ernie Yocum used to say "plead em".

Anonymous said...

David Young is always fun to watch. Mark Eiglarsh, not so much. I hope David gets the gig, he's the nicest of guys.

Anonymous said...

Driving is a privilege, not a right. I wouldn't want those drunks on the street with licenses. It's not going to stop them from driving, we know that, but if they get caught the SAO will up the plea.

Save some issues for your appeal. Argue that by the cops not showing up, all the hearing officer has is hearsay and under law hearsay is insufficient by itself in administrative hearings to support a finding against your client. Maybe that will stick to the wall on appeal and get you some attorney's fees.

CAPTAIN said...

The Captain Reports:

Breaking News .....

WADE AND BOSH TO MIAMI. LBJ TO ANNOUNCE ON THURSDAY EVENING.

CAP OUT

Anonymous said...

Who gives a shit where wade, lebron, or anyone else decide to go. All I know is most of us work harder than they do, are more educated than they are, are more intelligent and do much more important services for people who really matter every day.

Anonymous said...

Most DUI attorneys never sought to enforce the subpoenas to begin with. So even with the change in the law DHSMV now has the law behind it to narrow the challenges.

I filed to enforce a subpoena once and when DHSMV found out they rescheduled the hearing to avoid the subpoena enforcement hearing since the cops failure to appear was not in good faith so the circuit court dismissed the action.