Are Traffic Ticket Quotas Legal in Florida? – Video – Contests – Arrests in Florida

Ticket Quotas are used in Florida.

Are Traffic Ticket Quotas Legal in Florida?

 

Hillsborough County Florida Traffic Ticket Quotas Award Arrest

Hillsborough County Florida Traffic Ticket Quotas Arrest Award

The short answer is “No.” Traffic Ticket Quotas are illegal. The Florida Statute specifically forbids these contests. Florida Statute 316.640(8)(b) (2017) states: “A traffic enforcement agency may not establish a traffic citation quota.” The issue turns on the question: “What is a quota?” A quota is a quantity, in this case the number of citations issued. There are several agencies that are competing for prizes in Driving Under the Influence contests where vehicles, body-cameras, and other law enforcement tools can be won, if certain goals are met. This may be a contest, but law enforcement consistently takes the position that these do not violate the law.

 

The Florida traffic law was passed in 2015. the law is called the “Waldo Bill.” The new provision is named after Waldo, Florida, a notorious speed trap between Gainesville and Jacksonville. “As of October 1, 2014 the town’s police force has been disbanded.” says the Wikimachine. When caught, here is what the Florida cops had to say about the latest  traffic ticket shenanigans:


“We will immediately designate that quotas are prohibited by Florida law . . . .”


 

More ticket quota evidence includes offering days off  to law enforcement officers that met  their goals. Apparently, a supervisor wanted 2 tickets per hour and “1.3 tickets per hour was not good enough.” We have been covering arrest quotas and contests by cops in Florida for years. We have uncovered the rules of the contest and posted them here. Up until this week’s breaking news from the Saint Petersburg Times, we thought the gamifying of law enforcement was limited to DUI arrests. Now we know that is not so. Police have targets that one, soon-to-be former, Florida Highway Patrol Trooper was encouraging- –  hourly targets and giving prime weekend time off to those who met the illegal goals of the department. So, unless you have a Stay Out of Jail Card, watch out for gamesmanship by law enforcement.


“1.3 tickets per hour was not good enough.”


I have spent quite a bit of time in court defending people charged with a variety of traffic offenses. One of the most offensive things I have seen was this luxury SUV that was a trophy in a contest to see how many people could be arrested for driving while impaired, among other things.

This vehicle was parked right outside of the Hillsborough County Courthouse in Tampa Florida. Apparently, the vehicle is equipped with a sophisticated video system and a mobile breath testing machine. Florida law prohibits quotas for issuing traffic tickets. The cops were just caught.

These kinds of incentives given to law enforcement can encourage otherwise decent and law-abiding police officers to violate the law. Maybe they need a weekend off. Maybe they think winning a car for their agency will look good in their personnel file. Maybe they think the prosecutor will reduce the charge from DUI to some lesser charge. Nevertheless, these awards are given for the issuance of citations or the arrests of citizens. No one seems to care to remove these entries on their permanent records when they are ultimately cleared of the charges or negotiate a plea to a lesser charge. Many first-time DUI offenders are never even convicted of DUI.

Since 2009, I have been following this area closely. The stories that are linked below cover in detail the policies and procedures that have been used by police to take advantage of programs to acquire more assets for law enforcement.

The Hillsborough County Sheriff won an SUV. The vehicle is marked with a championship logo and other markings establishing that the sheriff had won a contest to enforce DUI laws. DUI prosecutions are begun with a traffic ticket and issues about whether or not these are quotas should be asked.  The cop who wrote a memo documenting the quota has resigned. Fox has reported, “A top official with the Florida Highway Patrol who told troopers they aren’t writing enough speeding tickets is resigning from his job.” Here is some video on the illegal  ticket game.

 

Video | Illegal Ticket Quotas in Florida


 


Traffic Tickets, Arrest Contests, and Quotas – History in Florida

Arrest Contest, Traffic Ticket, and Quotas - History in Florida

Arrest Contest and Traffic Ticket Quotas – History in Florida


Florida Arrest Contest Costs $1,720,000

www.dui2go.com/2014/09/florida-dui-arrest-contest-costs-1720000.html

Sep 24, 2015 – As a Georgia Lawyer noted, when contests and quotas are in play, some police agencies keep their eyes on the prize. In that case , there is …


Florida Traffic Ticket Arrest Quota Award

Florida Traffic Ticket Arrest Quota Award


Florida Arrest Contest Winners?

www.dui2go.com/2014/04/florida-dui-arrest-contest-winners.html

Apr 8, 2014 – Driving under the influence Arrest Contest … it appears that citizens’ arrests are prizes in this despicable contest.

Arrest Contest Rules and Prizes

www.dui2go.com/2011/12/dui-arrest-contest-rules-and-prizes.html

Dec 15, 2011 – Attorney on Florida’s West Coast just uncovered the “rules” for a recent Arrest Contest. The awards are characterized as …


Hillsborough County Florida Traffic Ticket Arrest Quota Award

Hillsborough County Florida Traffic Ticket Arrest Quota Award


Arrest Contests Continue

www.dui2go.com/2010/10/dui-arrest-contests-continue.html

 Oct 21, 2010 – Largo Cop wins money for Pinellas Arrests. As Florida Lawyer W.F. Casey Ebsary has previously reported, here, here, …

Video | DUI Arrest Contest Trooper Tasers Sober Driver

www.dui2go.com/2012/03/video-dui-arrest-contest-trooper-tasers.html

Mar 30, 2012 – Attorney in Tampa has just received a report that a 200 Arrest Award Winner in a DUI Contest has admitted to numerous violations of DUI …


DUI Traffic Ticket Arrest Quota Award

Traffic Ticket Arrest Quota Award


DUI Arrest Contests in Florida

www.dui2go.com/2016/01/tampa-florida-dui-lawyer-continues-to.html

Jan 9, 2016 – Attorney on Florida’s West Coast just uncovered the “rules” for a recent Arrest Contest. The awards are characterized as DUI …

More Arrest Contest News

www.dui2go.com/2011/02/more-dui-arrest-contest-news.html

Feb 25, 2011 – More Arrest Contest News. Defense Attorney Observes: As we continue to tally the awards given to police officers who arrest drivers, …

Arrest Contest Trophy?

www.dui2go.com/2011/08/dui-arrest-contest-trophy.html

Aug 8, 2011 – Attorney noticed this was parked outside of the Hillsborough County Courthouse in Tampa, Florida this morning. This is an …

Florida Arrest Contest Winners

www.dui2go.com/2009/06/florida-dui-arrest-contest-winners.html

 Jun 19, 2009 – There were 13 contest winners at the Hillsborough County Sheriff’s Office (HSCO) . There were 16 contest winners at the Tampa Police …

Arrest Contest Winner

www.dui2go.com/2011/04/pasco-dui-cop-arrest-contest-winner.html

Apr 21, 2011 – DUI Defense Attorney notes that Pasco DUI cops are continuing their efforts to win DUI arrest contests. Florida Highway Patrol spokesman for …

Blood Test Subpoena for DUI Medical Records Denied

Medical Records in DUI Prosecutions ,Blood Test Subpoenas and Medical Records

Blood Test Medical Records in DUI Prosecutions

in a blood test “burden arises from the Constitutional right to privacy in one’s medical records, which requires the State to demonstrate a compelling interest in the disclosure.”

Requests to Subpoena Medical Records of a Blood Test


After a typical crash police will sometimes attempt to assign blame. The police may suspect alcohol or drug use and attempt to obtain dui blood tests or medical records for people treated in a crash. This is true, even though the driver may have been the only person injured in a one-car crash. Nevertheless, police must jump through a lot of hoops to get your medical records. Sometimes the police jump the gun and make mistakes. If they do, a competent defense attorney can have the medical records and results of a possibly incriminating blood test thrown out by the court.

What is the process for obtaining the medical records of a driver in a crash?


The prosecutor will receive a copy of the crash report from the investigating DUI officer. If done correctly, the prosecutor will send a registered letter to the driver notifying them of the prosecutor’s efforts to obtain confidential medical records. The letter typically will give the driver a certain number of days to subject to the disclosure of the medical records. If the defendant’s lawyer files and an appropriate objection, there will be a hearing in front of a judge who will decide what if any medical records should be available to the prosecutor by subpoena. In the case we have discussed below, the judge ruled that there was not enough information for the confidential medical records of the driver to be disclosed.

Medical Records in DUI Prosecutions, Blood Test Subpoenas and Medical Records


As one commentator has noted in this case the “State failed to establish there was reasonable founded suspicion to believe defendant was driving while impaired by alcohol or controlled substances so as to overcome defendant’s right to privacy in her medical records and therefore failed to establish that medical records contained information relevant to ongoing criminal investigation.”

Complete Text of Order Denying Request for Blood Results in a DUI Case


STATE OF FLORIDA, Plaintiff, v. DEBRA COOPER, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2017-308515MMDB. November 18, 2017. Belle B. Schumann, Judge. Counsel: Susan Bexley, Assistant State Attorney, for Plaintiff. John S. Hager, for Defendant.

ORDER DENYING STATE’S REQUEST TO SUBPOENA “MEDICAL” BLOOD

This case comes before the Court on the State’s Notice of Intent to Subpoena Medical Records of the Defendant, filed November 16, 2017, and the Defense’s Objection thereto, which was filed that same date. A hearing was held on the State’s request on January 17, 2018. Upon due consideration of the facts as proved and the applicable law, the Court hereby DENIES the State’s request to subpoena the Defendant’s medical records. The State failed to establish there was a reasonable founded suspicion to believe that the Defendant was driving while impaired by alcohol or controlled substances to overcome the Defendant’s right to privacy in her medical records, and therefore failed to establish that these records contain information relevant to an ongoing criminal investigation.

Previously, on November 6, 2017, there was a hearing on a motion to suppress in this case, and an order entered by the Court as a result of that hearing. This order, docket number 27 in this case, is incorporated herein [25 Fla. L. Weekly D1019a]. The facts found are as follows:

At the hearing, Assistant State Attorney Tara Libby established that on December 17, 2016, Joshua Wilson of the Ormond Beach Police Department responded to a “crash” within his city. No further explanation of this event was given. No description of the condition of the vehicles, no result of investigation into any driving pattern, no suggestion what may have caused the crash, not even the time of day or weather conditions were elicited by the State. The only further testimony about this “crash” established by the State was the conclusion by the officer that the Defendant was “at fault.” No explanation for this conclusory statement was provided, nor any of the facts that led the officer to this conclusion. There was no evidence that anyone was injured in this “crash” or even that there was any physical damage to any property.

When Officer Wilson spoke to the Defendant, he testified that he noticed she “spoke slowly” and was “lethargic,” again without any further elaboration. The State asked if in the accident report, he “noted alcohol was involved” and he replied, “yes.” The officer agreed with the conclusory question that he believed he had probable cause for DUI. No elucidation of the basis for this conclusion was provided.

On cross examination, the officer testified that he could not recall if he smelled alcohol on or about the Defendant, and conceded that his report did not indicate that he detected the odor of alcohol, or any other evidence of alcohol use. There was no mention of controlled substances.
In this prior order, the Court granted the Motion to Suppress, finding that,

The evidence presented by the State in this case falls woefully short of establishing probable cause to believe that the Defendant was driving while impaired by alcohol or a controlled substance to lawfully request breath, blood or urine. §316.1932, Fla. Stat. (2016). Although not at issue here, it seems unlikely that the State’s proof in this case would even rise to the level of a reasonable suspicion to require field sobriety exercises. The State’s offer of proof was completely inadequate. . . .

In this case, the State failed to establish any facts that would lead a reasonable person to conclude that Debra Cooper was driving under the influence of alcohol or a controlled substance on the date in question. Bare conclusory assertions cannot sustain the State’s burden of proof. Had the State presented any evidence concerning the crash to establish some sort of driving pattern, more observations of the officer, or some scintilla of evidence of impairment by alcohol, the result may have been different. (emphasis added)

Now the State seeks to subpoena the Defendant’s medical records after she was taken to the hospital as a result of the crash. The only evidence presented at the Hunter hearing was the accident report. This report is not an affidavit, and it is unsworn. It also contains statements from the Defendant which all parties agree are privileged and which cannot be used to establish the State’s burden of proof.

Assuming without deciding that an unsworn accident report is acceptable proof and not hearsay, the only evidence of impairment contained in this report is again that the Defendant appeared “lethargic and spoke slowly” after the crash that sent her to the hospital. There is the fact that the crash occurred when the vehicle driven by the Defendant drifted partially into a turn lane and struck the other vehicle from behind. The State makes no argument that the driving pattern or the crash provides evidence of impairment.

Before the State can employ its investigatory subpoena power and compel disclosure of medical records without the consent of the patient, the State “…has the obligation and the burden to show the relevancy of the records requested.” Hunter v. State, 639 So. 3d 72, 74 (Fla. 5th DCA 1994); §395.3025(4), Fla. Stat. (2016). The State’s burden arises from the Constitutional right to privacy in one’s medical records, which requires the State to demonstrate a compelling interest in the disclosure. Art. 1, §23, Fla. Const. “Such [a compelling state] interest exists where there is a reasonable founded suspicion that the materials contain information relevant to an ongoing criminal investigation.” State v. Rivers, 787 So. 2d 952, 953 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D1512a]. See also, State v. Rutherford, 707 So. 2d 1129, 1131 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D2387b] [disapproved on other grounds in State v. Johnson, 814 So. 2d 390 (Fla. 2002) [27 Fla. L. Weekly S250a]] (“Where a right to privacy attaches, the State may vindicate an encroachment on that right…(when it) is established by a showing that the police have a reasonable founded suspicion that the protected materials contain information relevant to an ongoing criminal investigation.”)

In support of their position, the Defense relies on the case of Guardado v. State, 61 So. 3d 1210 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1087a]. They point out that “crash plus death” or “crash plus injury” does not always make the blood relevant as the State argues; that is not the law. The Defense is entirely correct. Absent some scintilla of evidence that the Defendant was impaired by alcohol or a controlled substance, the State has again fallen woefully short of its burden to demonstrate a compelling interest which exists where there is a reasonable founded suspicion that the materials contain information relevant to an ongoing criminal investigation to overcome the Defendant’s right to privacy in her medical records.

WHEREFORE, based on the argument and authority presented, the State’s Notice of Intent to Subpoena Medical Records is hereby DENIED.

* * *

Source: Online Reference: FLWSUPP 2512COOP

How to Get Arrested for Racing | Use Baseball Diamond for Track

Criminal Mischief Damage Over $1000

Criminal Mischief Damage Over $1000

Criminal Mischief Attorney

Criminal Mischief Attorney Needed


Defense Attorney and racer has been looking for opportunities in dirt track racing. Never thought of this – motorcycles were observed by officers [on baseball diamond] . . . Officers were able to stop all of the motorcycles before the riders could flee. ” So says the Tampa Tribune.
 
“There were no injuries, but both the infield and outfield were damaged and will require repairs before it can be used for play, according to the report.” 
 

If you have been charged with CRMS3000 CRIMINAL MISCHIEF $1000 OR MORE Call Me – Defense Attorney Tampa at 1-877-793-9290 and tell me your story.


 

 
Form Code: CRMS3000

 

 

 

Florida Statute: 806.13.1B3

 

 
Description: CRIMINAL MISCHIEF $1000 OR MORE


806.13 Criminal mischief; penalties; penalty for minor.


(1)(a) A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto.


3. If the damage is $1,000 or greater, or if there is interruption or impairment of a business operation or public communication, transportation, supply of water, gas or power, or other public service which costs $1,000 or more in labor and supplies to restore, it is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Immigration and Criminal Defense Consequences

Drugs and Trafficking Crimes, Criminal Conviction, Crimes of Violence, Crimes Involving Moral Turpitude, immigration, ICE, deportation, deport, aliens, Padilla v. Kentucky

Immigration, ICE, Deportation,

Immigration and Criminal Defense


Criminal Convictions, Immigration, ICE, and Deportation


Here is an outline titled “Crimigration: The Marriage of Immigration and Criminal Law.” Friend of the site and author, Terry Christian is a former Immigration Judge and is also Board Certified in Criminal Trial Law. Complete text for download is avaivaible below for Immigation Consequences of Criminal Convictions and Conduct.

In Memoriam: Aug 4, 1952 – Oct 20, 2011 (Age 59) Judge Clifton died a little more than a year after giving this now highly useful seminar and presentation. Terry Clifton Christian was born the son of a coal miner in Welch, West Virginia on August 4, 1952. One of Terry’s signature accomplishments was the honor of being appointed as a Federal Immigration Judge by the Attorney General of the United States in 2003.


Questions about the Immigration Consequences of Criminal Conduct? Call Me Toll Free 1-877-793-9290.


The topics include:

Definition of a Criminal Conviction

Criminal Conduct Incurring Immigration Consequences

A. Crimes Involving Moral Turpitude
B. Crimes of Violence
C. Drugs and Trafficking Crimes
D. Aggravated Felonies
E. Other Crimes and Criminal Conduct Proscribed in the INA

Consequences of Criminal Convictions and Criminal Behavior

A. Inadmissibility
B. Deportability

Motion to Vacate See Padilla v. Kentucky, Case No. 08-651, S.Ct., Argued October 13, 2009-Decided March 31, 2010.)

Order of Vacatur

Complete Document is a Free Download Here.

Special Thanks to guest contributor Terry Christian.

Feds Cannot Bypass Android Security Pattern Screen Lock!

 

Android, Android Security Screen, Screen Lock

Android, Android Security Screen, Screen Lock

Android Search Warrant

 


Android Security Pattern


Feds cannot Bypass Android Security Pattern Screen Lock! After too many failed attempts phone is locked. Forensic software apparently cannot read a locked Samsung Android phone. We have just posted the FBI application for the search warrant issued to Google to tell Feds how to retrieve data here: Android Phone Search Warrant

Easy to Bypass Security Screen Lock on iPhone Wired has published a “quick method to circumvent an iPhone’s passcode-protected lock screen: tap the “Emergency Call” button, then enter three pound signs, hit the green Call button and immediately press the Lock button. That simple procedure gives a snoop full access to the Phone app on the iPhone, which contains the address book, voicemail and call history.”

Thanks to Wired Story here: https://m.wired.com/threatlevel/2012/03/fbi-android-phone-lock/



Search Warrant For a Phone? Call Casey at 813-222-2220




Raw Video – Amazing Car Chase in Hillsborough County

Pit maneuver


“Chase terminated . . . call the Coroner.”


After an alleged rampage in our Tampa Palms neighborhood, great pursuit driving by a Tampa Police Officer,  pulled a Pit maneuver, the car skidded into a ditch, and the gunfire starts in this aerial video from the helicopter. Chase terminated, call the ambulance, and call the Coroner.


 

Crime Mapping Systems in Tampa Bay – Keeping Score

Tampa Bay Crime Mapping Systems

Crime Mapping Systems in Tampa Bay

Crime Maps

 


“check your neighborhood and see if it is safe to go outside.”


Keeping score is now possible for Police. Statistics are kept for Traffic Cameras, Government Grant Applications, and  to Justify or disprove profiling allegations. Our research has noted that the public information available from the crime mapping systems below is just the tip of the iceberg. Police agencies do not disclose statistics for some crimes while touting the numbers for others. For example, one local agency with a huge public relations nightmare for DUI enforcement, has chosen not to map DUI statistics see: Tampa https://raidsonline.com/?address=tampa,fl . Other agencies may not list certain crimes or activities for reasons unbeknownst to the public.


Florida Restoration of Civil Rights

Restoration of Civil Rights Tampa Florida Federal Court Criminal Defense Attorney / Lawyer

Florida Restoration of Civil Rights Criminal Defense Attorney / Expert Trial Lawyer

Florida Update 2020


Florida Clemency Board Blocks Pardons

As of August, the clemency board had a backlog of more than 24,000 cases.

https://news.wfsu.org/state-news/2020-09-23/florida-clemency-board-blocks-pardon-blocked-for-felons-rights-leader


Appeals Court Reverses Voting Rights Restoration Ruling

UPDATE April 26, 2018:  St Pete Times reports, “A three-judge panel of the U.S. Circuit Court of Appeals in Atlanta issued a stay of a March 27 order by U.S. District Judge Mark Walker, who declared the system “fatally flawed” and unconstitutionally arbitrary.”

“The governor has broad discretion to grant and deny clemency, even when the applicable regime lacks any standards,” said the order written by Judge Stanley Marcus, a former federal judge in Miami, striking at the heart of Walker’s earlier decision.”


In a blockbuster ruling, a United States District Judge in Florida has ordered the Governor and the State of Florida to provide a meaningful path to restoration of Civil Rights. “Florida’s rate of denying voting rights is more than 300 percent higher than the other 49 states” said the St. Petersburg Times . According to one researcher,  “In Crist’s [previous governor’s] final year as governor, he oversaw the restoration of rights for 27,456 felons, according to the Brennan Center. In Scott’s first year, he restored voting rights for 52 felons. If this were the stock market, that would translate to a drop of 99.82 percent.”

 

Update April 4, 2018; The Governor has appealed the ruling in an effort to further delay.

Here is a Sample Clemency Application like the ones being delayed in Florida.

Excerpts from the Opinion of the Florida Restoration of Civil Rights Court

 

“In its prior order, this Court found the fuzzy time periods that the Board has invoked in reviewing or re-reviewing former felons’ applications unconstitutional . . . .”

 

“Florida’s current scheme inverts that important, democratic mechanism. It cannot do so anymore.”

 

“the Board “cannot . . . kick the can down the road for so long that they violate former felons’ rights to free association and free expression.”

 

“Removing any scheme for vote-restoration is the ultimate arbitrary act. Having lost their ability to re-enfranchise citizens at a snail’s pace guided by absolutely nothing, Defendants’ threats to arbitrarily and completely end the vote-restoration scheme is tantamount to picking up one’s marbles and going home.”

 

Opinion of the Florida Restoration of Civil Rights Court

 

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

 

Case No. 4:17cv128-MW/CAS

 

 

JAMES MICHAEL HAND, et al.,

 

Plaintiffs,

 

 

RICK SCOTT, in his official

capacity as Governor of

Florida and member of the

State of Florida’s Executive

Clemency Board, et al.,

 

Defendants.

__________________________/

 

ORDER DIRECTING ENTRY OF JUDGMENT

 

This Court is not the Vote-Restoration Czar. It does not pick and choose who may receive the right to vote and who may not. Nor does it write the rules and regulations for the Executive Clemency Board. Instead, this Court possesses the well-known and unsurprising “province and duty . . . to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). And this Court possesses the unremarkable discretion to find a means for the Board to comply with the law.

 

In its Order on Cross-Motions for Summary Judgment, this Court applied longstanding precedent from the Supreme Court and the Eleventh Circuit that invalidated unfettered-discretion schemes to a novel context; namely, that of felon re-enfranchisement. See generally ECF No. 144. And, as it has done in the past, this Court invited the parties to recommend appropriate remedial action. Defendants essentially repackage the current scheme into proposed remedies permitting the Governor and Board to do, as the Governor described, “whatever we want” in denying voting rights to hundreds of thousands of their constituents. ECF No. 144, at 2 (citation omitted). This will not do. And Defendants’ proposed remedy to abandon the whole vote-restoration scheme does not pass constitutional muster.

 

If binding precedent spanning decades is to guide this Court—as it must—then an injunction must ensue to prevent further infringement. Florida’s vote-restoration scheme can no longer violate Plaintiffs’ fundamental First Amendment rights. Accordingly, as even Defendants acknowledge, “this Court may direct the Board ‘to find a means of bringing the [State’s] scheme into compliance with federal law.’” ECF No. 149, at 14 (quoting Strahan v. Coxe, 127 F.3d 155, 170 (1st Cir. 1997)).

 

I

 

Plaintiffs would have this Court restore the right to vote to any former felon who has completed her whole sentence and a uniformly imposed five- or seven-year waiting period. ECF No. 147, at 2–3. But such relief is beyond the scope of this Court’s authority. The people of Florida—either through ballot initiatives or through their legislative acts—may cure any perceived policy weaknesses with Florida’s restoration scheme.

 

1 A state constitutional amendment proposing changes to Florida’s felony disenfranchisement and re-enfranchisement process will appear on the ballot in November 2018.

 

2 “The world ain’t all sunshine and rainbows.” ROCKY BALBOA (Metro-Goldwyn-Meyer, et al. 2006). The same goes for Florida’s current vote-restoration scheme. See generally ECF No. 144.

 

II

 

While Defendants oppose any relief and claim the current scheme is all sunshine and rainbows, they agree with Plaintiffs that this Court may provide declaratory relief.2 See, e.g., ECF No. 157, Ex. A (outlining Plaintiffs’ proposed declaratory relief), and ECF No. 158, at 15 (“Here, a declaratory judgment would provide an adequate remedy for the specific concerns identified by the Court.”). And this Court grants declaratory relief consistent with its prior order.

 

III

 

The parties disagree on the propriety and extent of injunctive relief, which is the primary purpose of this Order. This Court finds injunctive relief is appropriate to ensure that Florida’s vote-restoration scheme is no longer based on unfettered discretion.

 

 

A

 

To succeed on a permanent injunction, Plaintiffs “must satisfy a four-factor test.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156 (2010) (internal quotation marks omitted). Plaintiffs must show (1) “irreparable injury”; (2) that “remedies available at law, such as monetary damages, are inadequate to compensate for that injury”; (3) that, “considering the balance of hardships between the plaintiff[s] and defendant[s], a remedy in equity is warranted”; and (4) that the “public interest would not be disserved by a permanent injunction.” Id. at 156–57 (internal quotation marks omitted).

 

Plaintiffs have satisfied the elements for a permanent injunction. First, Plaintiffs have suffered an irreparable injury.3 Their right to free association and right to free expression were denied under a fatally flawed scheme of unfettered discretion that was contaminated by the risk of viewpoint discrimination. The Board will revisit some of their decisions at some unknown future date—if at all—based on nebulous criteria, such as the Governor’s comfort level. See, e.g., ECF No. 102, at 41. “[I]n the unique context of first amendment challenges upon the facial validity of licensing statutes, it is the very existence of official discretion that gives rise to a threat of injury sufficient to warrant an injunction.” Miami Herald Publ’g Co. v. City of Hallandale, 734

 

One exception is Plaintiff Yraida Leonides Guanipa, who is not yet eligible for restoration. ECF No. 102, at 11–12. On Plaintiffs’ facial challenge, however, the absence of Ms. Guanipa does not impact the contours of this Court’s remedy or, for that matter, this Court’s Order. F.2d 666, 674 n.4 (11th Cir. 1984). Plaintiffs, then, have established “an imminent likelihood” that their First Amendment rights to free association and free expression “will be chilled or prevented altogether.” Siegel v. LePore, 234 F.3d 1163, 1178 (11th Cir. 2000); see also Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).

 

Second, because Plaintiffs suffered an irreparable harm, remedies at law are inadequate. See Barrett v. Walker Cty. Sch. Dist., 872 F.3d 1209, 1229 (11th Cir. 2017) (citing Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B Nov. 1981) (“An injury is ‘irreparable’ only if it cannot be undone through monetary remedies.”)).

 

Decisions rendered by Unit B of the former Fifth Circuit constitute binding precedent in the Eleventh Circuit. Stein v. Reynolds Secs., Inc., 667 F.2d 33, 34 (11th Cir. 1982).

 

Third, the balance of the hardships favors Plaintiffs. Defendants need only redraft rules that align the vote-restoration scheme within the boundaries of the law by cabining official discretion and providing meaningful time constraints for the Board’s decision-making. Plaintiffs, meanwhile, are deprived of a voice in directly choosing their elected leaders. They are also deprived of associating with the political party, if any, of their choice. Both are essential First Amendment rights, as this Court described in its prior order. ECF No. 144, at 9–17. Balancing the hardships between protecting First

Amendment rights and having a government board that meets four times a year redraft their rules to conform with the United States Constitution weighs unsurprisingly in favor of the former.

 

Finally, Plaintiffs easily satisfy the fourth factor. “[T]he public interest is always served in promoting First Amendment values.” Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1276 (11th Cir. 2001). There are few greater interests than free association and free expression to choose public officials to lead, to represent all people in their jurisdictions, and to advance policy for the common good. These interests are why Americans launched a revolution against perceived unfettered discretion in the hands of one high-ranking official, King George III.

 

B

 

The question turns to the nature and extent of a permanent injunction. “Injunctive relief against a state agency or official must be no broader than necessary to remedy the constitutional violation.”

Knop v. Johnson, 977 F.2d 996, 1008 (6th Cir. 1992) (quoting Toussaint v. McCarthy, 801 F.2d 1080, 1086 (9th Cir. 1986)). This Court does not re-enfranchise otherwise eligible citizens. This Court does not operate as a legislature. This Court is not a fifth member of the Board, drafting specific rules and regulations for it, unless it is forced to do so.

 

5 This Court recognizes that in other contexts, as Plaintiffs point out, courts have actively participated in crafting specific remedies. See ECF No. 157, at 3–7 (listing redistricting, voting-rights, and school-desegregation cases in which courts have crafted specific remedies when a legislature or other government body abandons its court-ordered duties).

 

6 Plaintiffs challenge an executive clemency scheme that, by rule, has “unfettered discretion” to deny or grant critical First Amendment rights. Fla. R. Exec. Clemency 4. But, as this Court emphasized in its prior order, a scheme’s placement under an executive-clemency structure does not exempt it from constitutional compliance. ECF No. 144, at 25–27 (discussing the limitations of executive clemency in relation to federal constitutional protections); see also Hoffa v. Saxbe, 378 F. Supp. 1221, 1231 (D.D.C. 1974) (“And the [pardon] power is most importantly limited, as are all powers conferred by the Constitution, by the Bill of Rights which expressly reserved to the ‘individual’ certain fundamental rights.”); see also id. at 1233 (observing that the President’s pardon power “does not exist in a vacuum but rather as part of our total constitutional system”).

 

While this Court again recognizes the novelty of Plaintiffs’ claims, this Court’s permanent injunction does not surface out of some swamp. Federal courts have regularly held—including other circuits and the Supreme Court—that cabining state officials’ discretion so they may not violate First Amendment rights is an appropriate task for federal courts.  See, e.g. City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757 (1988) (listing a “long line of precedent” outlining the Supreme Court’s discomfort with government officials’ unfettered discretion over First Amendment rights); Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 133 (1992) (“The First Amendment prohibits the vesting of such unbridled discretion in a government official.”); Gannett Satellite Info. Network, Inc. v. Berger, 894 F.2d 61, 69 (3d Cir. 1990) (invalidating scheme that “failed to establish any parameters for the exercise of its authority to regulate a broad category of speech”). The incongruence of officials’ unfettered discretion with the First Amendment extends to executive-clemency schemes implicating constitutional rights.

 

The Eleventh Circuit has previously addressed other unconstitutional unfettered-discretion schemes, which guides this Court on the scope and nature of appropriate injunctive relief. In Sentinel Communications Co. v. Watts, the Eleventh Circuit struck down a scheme that gave a Florida official “standardless, unfettered discretion” in distributing newspaper racks at interstate rest areas. 936 F.2d 1189, 1197 (11th Cir. 1991). “Unaided (or unhindered) by any regulations, guidelines, procedures, ordinances, or standards,” the government official had “no grounds for granting or denying permits” and was “free to make his decisions on any basis that he deem[ed] appropriate.” Id. at 1198. Newspapers seeking to exercise their First Amendment rights were “subject to the completely standardless and unfettered discretion of one bureaucrat working . . . in Tallahassee.” Id. at 1199. To remedy that official’s infinite discretion, the court called for “[s]ome neutral criteria” that would “insure” that the government official’s decision “is not based on the content or viewpoint of the speech being considered.” Id. at 1199–1200 (quoting Lakewood, 486 U.S. at 760).

 

Similarly, the Eleventh Circuit determined en banc that an Atlanta government agency’s unfettered discretion over granting or denying permits for newsrack distribution at Hartsfield Atlanta International Airport violated the First Amendment. Atlanta Journal & Constitution v. City of Atlanta, 322 F.3d 1298, 1310–11 (11th Cir. 2003) (en banc). Particularly concerning was the risk that the government official would engage in impermissible viewpoint discrimination under the guise of a neutral business-related reason—a sort of “mask for censorship.” Id. at 1311 n.13. To rectify that risk, “[s]tructural and procedural safeguards can reduce the possibility that an official will use her power to corrupt the protections of the First Amendment.” Id. at 1311. Therefore, the government official “must be constrained in some form in her exercise of discretion” by “clear standards.” Id.; see also id. at 1312 (holding that official discretion “must be restrained through procedures or instructions designed to reduce or eliminate the possibility of viewpoint discrimination”).

 

So too here. There is no doubt a risk that the Board’s officials may engage in viewpoint discrimination through seemingly neutral rationales—such as traffic citations or an applicant’s perceived lack of remorse—that serve as impermissible “mask[s] for censorship.”  Id. at 1311 n.13. This sort of unfettered discretion cannot exist under the Federal Constitution—or any well-functioning democracy. Therefore, the Board must promulgate specific standards and neutral criteria to direct its decision-making. Sentinel Commc’ns, 936 F.2d at 1199 n.9 (“[T]he doctrine forbidding unbridled discretion requires reasonable and definite standards.”); see also id. at 1207 (explaining that Florida “simply cannot continue to take an utterly discretionary, ‘seat of the pants’ regulatory approach towards” First Amendment activity and that written guidelines with “specific criteria” should guide government discretion).

 

These standards and criteria cannot be merely advisory, a Potemkin village for anyone closely reviewing the scheme. See ECF No. 144, at 4–5 (outlining the existing non-binding criteria the Board may or may not consider). “Implicit limits on a licensing official’s discretion must be made explicit, ‘by textual incorporation, binding judicial or administrative construction, or well-established practice.’” Sentinel Commc’ns, 936 F.2d at 1199 n.9 (quoting Lakewood, 486 U.S. at 770). In other words, the Board cannot rely on whims, passing emotions, or perceptions. Establishing safeguards against viewpoint discrimination should be the Board’s paramount goal following this Order. In the future, concrete criteria—not “feel[ing] comfortable,” ECF No. 144, at 30—must direct the Board. And its rules must spell these criteria out with precision. See Atlanta Journal, 322 F.3d at 1312 (retaining portion of district court’s permanent injunction “that prohibited the administration of any plan that did not explicitly constrain official discretion”).

 

Defendants balk at injunctive relief partly because of a “presumption of regularity.” ECF No. 149, at 8–9. This argument boils down to “trust us—we got this.” But “this is the very presumption that the doctrine forbidding unbridled discretion disallows.” Lakewood, 486 U.S. at 770. The Eleventh Circuit is again instructive. “[I]t is not enough to presume that officials will act in good faith and adhere to standards absent from a statute or scheme’s face.” Sentinel Commc’ns, 936 F.2d at 1199 n.9. While Defendants invoke the presumption of regularity to avoid a permanent injunction, such a remedy is necessary to cabin Defendants’ unfettered discretion—and the broad discretion they claim to have in crafting a remedy. And, as noted before, Defendants concede this point. “[T]his Court may direct the Board ‘to find a means of bringing the [State’s] scheme into compliance with federal law.’” ECF No. 149, at 14 (quoting Strahan, 127 F.3d at 170).

 

Generally, when a court strikes down unconstitutional grants of unfettered government discretion, it does so because “the problem is not potential abuses but the very existence of broad, censorial power.” Int’l Soc’y for Krishna Consciousness v. Eaves, 601 F.2d 809, 823 (5th Cir. 1979).7 Here, there is little doubt that the Board possesses broad, censorial power to prohibit hundreds of thousands of otherwise eligible voters from freely associating with  7 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. political parties or freely expressing themselves through voting. And there are problems of potential abuse—especially when members of the Board, who are elected on a statewide basis and who may be running for re-election or another office, have a personal stake in shaping the electorate to their perceived benefit. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339 (2010). Florida’s current scheme inverts that important, democratic mechanism. It cannot do so anymore.

 

In short, the Board is left to the “task of devising a Constitutionally sound program,” Lewis v. Casey, 518 U.S. 343, 362 (1996) (internal quotation marks omitted), but it must do so within constraints that the Eleventh Circuit has identified; namely, specific, neutral criteria that excise the risk—and, of course, the actual practice of—any impermissible discrimination, such as race, gender, religion, or viewpoint. While this Court does not order any particular vote-restoration scheme nor any specific criteria the Board must consider, Florida’s corrected scheme cannot be byzantine or burdensome.

 

C

 

The Board’s new criteria would be toothless without meaningful time constraints. In its prior order, this Court found the fuzzy time periods that the Board has invoked in reviewing or re-reviewing former felons’ applications unconstitutional. ECF No. 144, at 27–31. Like this Court’s conclusions about the Board’s lack of criteria to cabin its decision-making, this Court’s conclusions over the absence of meaningful time constraints do not arrive out of thin air. The Supreme Court and the Eleventh Circuit have repeatedly struck down schemes that lack meaningful time constraints as contrary to the First Amendment.  See, e.g., id. at 28–29 (citing Supreme Court precedent),

and id. At 29 n.16 (citing Eleventh Circuit precedent).

 

Binding precedent again instructs the scope and nature of remedies. Recently, the Eleventh Circuit upheld a district court’s permanent injunction over a school board’s policy that essentially failed to constrain a high-ranking official from granting or denying speaking slots to individuals at school-board meetings. Barrett, 872 F.3d at 1229. “[U]nbridled discretion can . . . exist when a permitting official has no time limit within which she must make a decision on a permit application.” Id. at 1222. The challenged policy “pose[d] enough of a risk that speech w[ould] be chilled or effectively censored on the basis of content or viewpoint” because one portion of the policy “lack[ed] any time limit with which [the government official] must comply.” Id. at 1229.

 

The same risks exist here. As this Court emphasized in its prior order, the Board “cannot . . . kick the can down the road for so long that they violate former felons’ rights to free association and free expression.” ECF No. 144, at 29. It is no excuse that the Board lacks resources to abide by the Federal Constitution’s requirements. If the Board pursues policies that sever hundreds of thousands of Floridians from the franchise and, at the appropriate time, hundreds of thousands of Floridians want their voting rights back, the Board must shoulder the burden of its policies’ consequences. They cannot continue to shrug off restoration applications indefinitely.

 

Accordingly, the Board must promulgate time constraints that are meaningful, specific, and expeditious. While this Court leaves the specifics of timing to Defendants to outline and justify, the time limits cannot cloak impermissible clock-control. See Barrett, 872 F.3d at 1214 (“Control the clock and control the game.”). Absent extraordinary circumstances, this Court cannot conceive of any reason why an applicant at any point must wait more than one election cycle after she becomes eligible to apply for restoration.

 

D

 

Defendants cannot end the vote-restoration scheme entirely. See  ECF No. 149, at 11 (suggesting the Board could adopt a policy “declining to restore any convicted felon’s ability to vote, either permanently or as an interim measure . . .”). This Court concluded that Florida’s arbitrary slow drip of vote-restorations violates the U.S. Constitution—but that does not mean Defendants can shut off the spigot of voting rights with a wrench, yank it from the plumbing, and throw the whole apparatus into the Gulf of Mexico. In its prior order, this Court reasoned that a state cannot re-enfranchise its citizens arbitrarily because it cannot disenfranchise citizens arbitrarily. See ECF No. 144, at 6–7 (citing Shepherd v. Trevino, 575 F.2d 1110, 1114 (5th Cir. 1978), and Owens v. Barnes, 711 F.2d 25, 27 (3dCir.1983)); see also id. at 7 n.4 (citing Williams v. Taylor, 677 F.2d 510 (5th Cir. 1982)).

 

Removing any scheme for vote-restoration is the ultimate arbitrary act. Having lost their ability to re-enfranchise citizens at a snail’s pace guided by absolutely nothing, Defendants’ threats to arbitrarily and completely end the vote-restoration scheme is tantamount to picking up one’s marbles and going home.

 

It is true that “Florida’s discretion to deny the vote to convicted felons is fixed by the text” of Section Two of the Fourteenth Amendment. Johnson v. Bush, 405 F.3d 1214, 1228 (11th Cir. 2005) (emphasis added). States have “a realm of discretion in the . . . reenfranchisement of felons which the states do not possess with respect to limiting the franchise of other citizens.” Shepherd, 575 F.2d at 1114 (emphasis added). In exercising that discretion, Florida pursues an interest “in limiting the franchise to responsible voters.” Id. at 1115.

 

In so limiting the franchise, Florida has the ability under existing case law to exercise some—but not unlimited—discretion in re-enfranchisement of former felons.

Id. at 1114.

 

Florida exercises this discretion by defining what a felony is. It culls from the body politic hundreds of thousands of men and women who have been convicted of those felonies. And it strips voting rights from individuals serving their sentences, their probations, their paroles, and

from those men and women patiently waiting the duration of a uniform five- or seven-year period.

But, as this Court previously stated, “no realm is without boundary.” ECF No. 144, at 35. That conclusion unremarkably presupposed the existence of a realm for the state to exercise discretion. Removing all discretion by jettisoning the vote-restoration scheme in its entirety is easily outside the “realm of discretion” because such a plan tosses out the “realm.” In short, Shepherd presumes the existence of a realm for state officials to exercise limited discretion that the absence of a vote-restoration scheme would contravene. Once Florida provides for a realm of discretion through a vote-restoration scheme, it cannot simply discard that scheme after a federal court finds constitutional violations with its current rules.

 

Moreover, the Supreme Court’s “prior decisions have voiced particular concern with laws that foreclose an entire medium of expression.”

City of Ladue v. Gilleo

, 512 U.S. 43, 55 (1994);

see also id.

(listing Supreme Court precedent invalidating total bans on First Amendment activity). For example, a Ladue, Missouri ordinance that was a “virtually complete ban” on all residential signs “almost completely foreclosed a venerable means of communication.”

Id.

at 49, 54. The Court observed that bans on whole swaths of First Amendment rights “may be completely free of content or viewpoint discrimination” but “the danger [such prohibitions] pose to the freedom of speech is readily apparent—by

eliminating a common means of speaking, such measures can suppress too much speech.”

Id.

at 55. Similarly, the Supreme Court narrowly construed a municipality’s law prohibiting some picketing but acknowledged that problems would arise if the law banned

all

picketing.

Frisby v. Schultz

, 487 U.S. 474, 486 (1988) (“The type of focused picketing prohibited by the [municipality’s] ordinance is fundamentally different from more generally directed means of communication that may not be completely banned in residential areas.”).

Analogous concerns would arise if the Board abandoned its vote-restoration scheme entirely. Once a federal court acknowledges former felons’ First Amendment rights to association and expression upon which a restoration scheme of unfettered discretion unconstitutionally infringes, the Board cannot issue a blanket ban on all activity without some pathway out of the prohibition. And while a “particularly punitive state might even disenfranchise convicted felons permanently[,] . . . once a state provides for restoration, its process cannot offend the Constitution.” ECF No. 144, at 9.8 Shutting off the slow drip of vote-restorations in this context would offend the Constitution.

8 Under the Supreme Court’s interpretation of the Fourteenth Amendment’s Section Two, states have an “affirmative sanction” in disenfranchising men and women convicted of felonies. Richardson v. Ramirez, 418 U.S. 24, 54 (1974). This Court is troubled by some courts’ “fetishistic” reading of this precedent that strips the constitutional authorization of its context and relies solely on a textual reading. See Jessie Allen, Documentary Disenfranchisement, 86 TUL. L. REV. 389, 448–59 (2011).

That Florida cannot jettison its whole vote-restoration scheme is also supported as a matter of state law—though, of course, in so analyzing this Court treads carefully through longstanding principles of federalism. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (“[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.”).

Defendants should heed the existence of a restoration process enshrined in Florida’s constitution and in state laws. “No person convicted of a felony . . . shall be qualified to vote or hold office until restoration of civil rights.” FLA. CONST. art. VI, § 4(a) (emphasis added). “[T]he civil rights of the person convicted shall be suspended in Florida until such rights are restored . . .” FLA. STAT. ANN. § 944.292(1) (emphasis added). Defendants acknowledge as much. ECF No. 149, at 7 (“[A] convicted felon loses the right to vote until civil rights are restored.”) (emphasis added). They helpfully point out that Florida has coupled disenfranchisement with a form of vote-restoration for the past 150 years. Id. at 18 (explaining how the 1868, 1885, and 1968 state constitutions contained restoration language).

References in Florida’s constitution and state laws to restoration are not window dressing. It is a “cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant.”

Kungys v. United States

, 485 U.S. 759, 778 (1988) (Scalia, J.) (plurality opinion);

see also

Vreeland v. Ferrer

, 71 So. 3d 70, 80 (Fla. 2011) (“[I]t is the duty of a court ‘to give effect, if possible, to every clause and word of a statute.’”) (quoting

United States v. Menasche

, 348 U.S. 528, 538–39 (1955)). It is clear, then, that Florida law assumes a vote-restoration scheme, at minimum, exists.

This Court does not enter an injunction pursuant to Florida law. Pennhurst, 465 U.S. at 106 (forbidding federal courts from ordering state officials to comply with state law). “Under Pennhurst . . . the determinative question is not the relief ordered, but whether the relief was ordered pursuant to state or federal law.” Brown v. Ga. Dep’t of Revenue, 881 F.2d 1018, 1023 (11th Cir. 1989). A federal court can, however, consider a “state law issue that is preliminary to a federal claim against a state official.” Fleet Bank, Nat’l Ass’n v. Burke, 160 F.3d 883, 891 n.6 (2d Cir. 1998).

This Court reads the cited provisions of the Florida Constitution and state law as preliminary to

Shepherd

’s direction that states have a “realm of discretion” in re-enfranchising their citizens.

Shepherd

, 575 F.2d at 1114. In other words, the cited provisions codify the constitutional requirements that appellate courts have identified; namely, the existence of a state’s realm of discretion in re-enfranchisement.

Johnson v. Bush

, 405 F.3d at 1228;

Shepherd

, 575 F.2d at 1114. Abandoning that discretion by ceasing all vote-

restoration runs afoul of these cases.

restoration runs afoul of these cases.

restoration runs afoul of these cases.

9 This is not to say that a scheme of automatic re-enfranchisement for certain classes of convicted felons would run afoul of Shepherd’s grant of a “realm of discretion” to the state. Shepherd, 575 F.2d at 1114. It would be the state, after all, that would choose to grant the right to vote to some former felons but not all. Discretion would remain in such a scheme.

IV

 

These remedies are prophylactic. They construct guardrails so state officials’ discretion remains on the road of constitutionality. This Court recognizes that “pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.” Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981) (emphasis added). At the same time, clear standards “provide the guideposts that check” the government official granting or denying First Amendment rights and prevent “post hoc rationalizations” clouded by “shifting or illegitimate criteria.” Lakewood, 486 U.S. at 758. Simply put, the Board must create some preventative rules, criteria, and standards without any “shifting or illegitimate criteria.” Id. Since clemency decisions are “rarely, if ever, appropriate subjects for judicial review,” Dumschat, 452 U.S. at 464, prophylactic protections must be robust and meaningful.

 

 

IT IS ORDERED:

 

 

  1. For the reasons set forth in its prior order, ECF No. 144, dated February 1, 2018, and this Order, the Clerk shall enter judgment stating:

 

  1. “FLA. CONST. art. VI, § 4(a), FLA. CONST. art. IV § 8, FLA. STAT. § 97.041(2)(b), FLA. STAT. § 944.292(1), and the Florida Rules of Executive Clemency, violate the First and Fourteenth Amendments of the United States Constitution to the extent these provisions provide the Executive Clemency Board unfettered discretion to grant or deny restoration of voting rights to persons with felony convictions, and violate the First Amendment to the extent these provisions lack any time constraints for processing and making final decisions. This DECLARATORY JUDGMENT applies only to the right to vote, not to any other civil right. It does not apply to any other type of executive clemency in Florida.”

 

 

 

  1. “Defendants are PERMANENTLY ENJOINED from enforcing the current unconstitutional vote-restoration scheme. Defendants are also PERMANENTLY ENJOINED from ending all vote-restoration processes. On or before April 26, 2018, Defendants shall promulgate specific and neutral criteria to direct vote-restoration decisions in accordance with this Order. On or before April 26, 2018, Defendants shall also promulgate meaningful, specific, and expeditious time constraints in accordance with this Order. Defendants shall file with this Court its modified rules on or before April 26, 2018.”

 

 

 

  1. Nothing in this Order Directing Entry of Judgment granting declaratory and injunctive relief against Defendants shall be construed to preclude or limit future modification or elimination of the pre-restoration waiting period(s) by any lawful means, such as constitutional amendment, legislation, or Board rulemaking.
  2. The Board shall reconsider any applicants who were denied a meaningful hearing during the pendency of this Order’s writing, i.e., between February 1, 2018 and today, under its new rules.
  3. This Court shall retain jurisdiction to monitor Defendants’ compliance and to entertain any motion for attorneys’ fees and costs.

SO ORDERED on March 27, 2018.

 

s/Mark E. Walker  ____

United States District Judge

 

What happens if you are confused and refused a DUI Breathalyzer test in Florida? Refuse Breath Test

Refuse Breath Test | Confused and Refused – Confusion Doctrine

 

Confusion DUI Refusal Refuse Breath Test

Confused about refusing a Breath test? Refuse Breath Test

Drivers can seek to have an alleged refusal to take a breath test thrown out of court using the  “confusion doctrine,” when the implied consent warnings are given following the administration of the Miranda warnings. If successful, the refusal of a breath test was not willful and is inadmissible. Under Florida law, the driver to make his or her confusion known to law enforcement. Florida law “does not require law enforcement officers to advise DUI arrestees that the Miranda warnings do not apply to the breath test, and a licensed driver in Florida has consented to the test and is not entitled to consult with an attorney prior to the administration of the test.”

 

What happens if you are confused and refused a DUI Breathalyzer test in Florida?

 

“The “confusion doctrine” is a judicially created exclusionary rule that operates to exclude a licensee’s refusal to submit to a breath test if the licensee believed that he had the right to consult with counsel prior to taking the test. See Kurecka v. State67 So. 3d 1052, 1056-57 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2162b]. Under this doctrine, “a licensee’s refusal to submit to [a] breath test will be excused if, due to a prior administration of the Miranda warnings, the licensee believes that he or she had the right to consult with counsel prior to taking a breath test.” Id. at 1056 (internal citations omitted).”

Miranda Warnings Do Not Apply to the Breath Test in Florida

 

“In Kurecka, the Fourth District Court of Appeal analyzed the history of the “confusion doctrine” in Florida and other states. Id. at 1057-60. That Court concluded that Florida’s implied consent statute does not require law enforcement officers to advise DUI arrestees that the Miranda warnings do not apply to the breath test, and a licensed driver in Florida has consented to the test and is not entitled to consult with an attorney prior to the administration of the test. Id. at 1060-61. “Accordingly, excluding evidence based on a suspect’s misconception about the right to counsel prior to taking the breath test would be contrary to the legislative intent of Florida’s implied consent law.” Id. at 1060.”


Video: Refusal to Take a Breath Test at Hillsborough County Jail in Florida

 

DUI Video from inside a jail where a cop is administering Florida’s Implied Consent warning given prior to requesting a suspect to take a breath test on an Intoxilyzer breath machine.


 

“The Fifth District Court of Appeal declined to apply the “confusion doctrine” on facts somewhat similar to the instant case. In Dep’t of Highway Safety & Motor Vehicles v. Marshall848 So. 2d 482, 485-86 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1553b], the DHSMV hearing officer presiding over the formal review hearing of the license suspension rejected Ms. Marshall’s self-serving testimony regarding her confusion about her right to counsel. Id. Further, none of the DHSMV documents supported Ms. Marshall’s claims, and she failed to subpoena law enforcement officers who could corroborate her testimony that she was told she could consult with an attorney prior to the breath test. Id.”

“The Seventh Judicial Circuit has once addressed the “confusion doctrine,” in a case where the an officer explained to the petitioner that he did not have the right to an attorney and that any answer other than “yes” to the breath test would be a refusal. Bosch v. Dep’t of Highway Safety & Motor Vehicles10 Fla. L. Weekly Supp. 757a (Fla. 7th Cir. Ct. 2003). The Court found that Mr. Bosch’s reliance on the “confusion doctrine” was misplaced because the Miranda warnings were given after the implied consent notice, and Mr. Bosch must have made his confusion known to the law enforcement officer in order to invoke the doctrine. Id. See also Moore v. Dep’t of Highway Safety & Motor Vehicles13 Fla. L. Weekly Supp. 932a (Fla. 9th Cir. Ct. 2006).”

Refuse Breath Test

 

“The Court finds that the hearing officer’s decision to reject the application of the “confusion doctrine” was based upon competent substantial evidence. Petitioner did not make his confusion known to Officer Jacobs, and the Miranda warnings were not given contemporaneously to the implied consent warnings. Other than his own testimony, there is no evidence to support Petitioner’s assertion that he was confused over his right to remain silent and the officer’s request for Petitioner to take the breath test. As the trier of fact, the hearing officer is in the best position to evaluate the evidence and the witnesses. See Dep’t of Highway Safety & Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994). The hearing officer is not required to believe the testimony of any witness, even if unrebutted. See Dep’t of Highway Safety & Motor Vehicles v. Dean662 So.2d 371, 372 (Fla. 5th DCA 1995) [20 Fla. L. Weekly D2179c]. Importantly, the hearing officer did not find that the “confusion doctrine” did not exist under Florida law; rather, he rejected the defense because Petitioner’s “testimony was not persuasive.” App. M at 5. This Court, therefore, rejects Petitioner’s reliance on the “confusion doctrine”.”

Sources: 24 Fla. L. Weekly Supp. 412a Online Reference: FLWSUPP 2406CRAW ; 13 Fla. L. Weekly Supp. 932a

 

What happens when a driver changes his or her mind and decides to take a breath test after initially refusing to take one?

 

Refusal Breath Test

Refusal Breath Test

Sometimes a driver may change their decision to take a breath test or chemical test to determine the content of their breath or blood. This refusal decision is important both in the administrative suspension of a Florida Driver’s license at the Bureau of administrative Reviews and in the criminal case prosecuted by the local State Attorney’s office in court. In driving under influence cases, the evidence of defendant’s refusal to submit to breath test is sometimes admissible. It certainly is admissible where the State seeks to administratively suspend the driver’s license for failure to comply with the implied consent law. How do you let the court know there is a problem with the police procedure? A motion in limine can be filed with the court.

 

What is a Pretrial Motion in Limine?

 

A pretrial motion can be filed to attack the use of statements of actions of the driver in the prosecution of a crime. This action results in a hearing in front of a judge and not a jury. If the motion is successful, the jury will never know about the alleged refusal. prosecutors use the argument that the reason for the refusal by the suspect was that they driver knew they would have failed the breath test by blowing over a .08.

What happens when a driver changes his or her mind about refusal to take a breath test?

 

The driver’s refusal is not admissible, if they timely retract their refusal. The court found, “There was no material inconvenience to the police, for two Intoxilyzers and two Intoxilyzer operators were available. [the Florida Highway Patrol officer]  actually ran his Intoxilyzer, after the retraction, to obtain the “refusal” on the Breath Test affidavit. ” Florida courts have ruled where the driver / defendant was continuously in presence of officers between refusal and retraction, and there would have been no inconvenience to law enforcement in permitting defendant to take test, the refusal cannot be held against them in a DUI case.

What must a driver be told by police seeking a DUI breath test?

 

  • Request to submit to a test
  • Suspend for 12 months for first refusal
  • Suspend for 18 months for subsequent refusal
  • Second or subsequent refusal can be a misdemeanor
  • Refusal is admissible in criminal case

“It is not hard to imagine circumstances where the defendant,

soon after declining to take the breath test, has second thoughts.”


Here is the  text of one court’s ruling:

STATE OF FLORIDA, Plaintiff, vs. STEVEN PAUL BURCH, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2015 CT 012729 SC. April 20, 2017.

ORDER GRANTING DEFENDANT’S MOTION IN LIMINE

THIS CAUSE having come to be heard upon Defendant, Steven Paul Burch’s Motion in Limine, to preclude the State from introducing any evidence that the Defendant initially refused to submit to a breath test, the Court having held hearing and taking testimony and otherwise being fully advised finds as follows:

1. On August 8, 2015, Mr. Burch was arrested for DUI.

2. Mr. Burch initially refused to take a breath test at the scene of the arrest, but changed his mind and requested to take a breath test once he arrived at the Sarasota County Jail.

3. Mr. Burch was continuously in the presence of Trooper Angelicchi from the time of his initial refusal until his retraction of the refusal.

4. When Mr. Burch arrived at the Sarasota County Jail, an Intoxilyzer was available to conduct a breath as well as two permitted breath test operators to conduct the breath test: Trooper Angelicchi and Corrections Officer Rowe.

5. The breath test affidavit that is marked “subject test refused” shows that the Intoxilyzer was run at 11:37 pm, which was long after Mr. Burch retracted the refusal.

6. In Larmer v. State of Florida Department of Highway Safety and Motor Vehicles, 522 So.2d 941 (Fla. 4th DCA 1988), the court stated:

. . .an “absolute rule” prohibiting a subsequent consent after an initial refusal could lead to unnecessarily harsh and self-defeating results. It is not hard to imagine circumstances where the defendant, soon after declining to take the breath test, has second thoughts. If the test results would remain valid, and if no material inconvenience is caused to the police, we fail to see the harm in permitting the defendant to subsequently consent to take the test.

The Court held:

. . .while petitioner was continuously in the presence of the police officers, and in circumstances where no inconvenience would result by permitting him immediately thereafter to take the test that would produce the evidence that is the object and intent of Florida’s Implied Consent Law.
Larmer citied to a Utah case that held a one hour delay was not a refusal.

7. In this case Mr. Burch was continuously in the presence of the police officers. There was no material inconvenience to the police, for two Intoxilyzers and two Intoxilyzer operators were available. Trooper Angelicchi actually ran his Intoxilyzer, after the retraction, to obtain the “refusal” on the Breath Test affidavit. There was no lawful reason not to let Mr. Burch submit to a breath test when Trooper Angelicchi was conducting the test for the ‘refusal.” The duration of the time between the refusal at the scene of the arrest and the retraction upon arrival at the jail was not of such length to render the breath test invalid.

8. While Mr. Burch initially refused the breath test, he later retracted his refusal and requested a breath test. Following Larmer, since Mr. Burch was continuously in the presence of the police officers and under circumstances where no inconvenience would result by permitting him to take a breath test, there was not a refusal within the meaning of Florida’s Implied Consent Law. Also see State v. Eng, 6 Fla. L. Weekly Supp. 649a (Fla. Pinellas Cty. Ct. September 15, 1998).

Accordingly, the Defendant’s Motion in Limine is GRANTED.

Source: 25 Fla. L. Weekly Supp. 289a Online Reference: FLWSUPP 2503BURC

How to get a Florida Driver’s License back after Suspension?

 

Recently courts have tried to help those with suspended licenses get their driver’s licenses back. According a recent report in the Florida Bar News, one judge organized a “clinic, the first of its kind in Leon County, in order to help resolve a significant problem in the area. Hundreds of Leon County drivers are operating a vehicle with a suspended or revoked license, and Smith says nine out of 10 drivers do not understand what is required of them to get their licenses back.” However, judges are limited in the help that can be provided to those who are subjected to the administrative license suspensions issued to those impacts from driving under the influence charges. Among the reasons these special programs apply: failure to resolve traffic infractions; accumulating too many points on a license; failure to have insurance; or failure to satisfy child support obligations.

Florida Implied Consent Warning Summary

Here is a summary of the language police use when threatening a suspect to take a breath or chemical test:

“If you fail to submit to the test I have requested of you, your privilege to operate a motor vehicle will be suspended for a period of one (1) year for a first refusal, or eighteen (18) months if your privilege has been previously suspended as a result of a refusal to submit to a lawful test of your breath, urine or blood. Additionally, if you refuse to submit to the test I have requested of you and if your driving privilege has been previously suspended for a prior refusal to submit to a lawful test of your breath, urine or blood, you will be committing a misdemeanor. Refusal to submit to the test I have requested of you is admissible into evidence in any criminal proceeding.”

“Do you still refuse to submit to this test knowing that your driving privilege will be suspended for a period of at least one year and that you will be charged criminally for a subsequent refusal?”

 

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