Boobies are worse than school shootings

On February 21, 2018, students from Marjory Stoneman Douglas High School traveled to the state capitol in Tallahassee, Florida demanding action on guns.

The legislative session began with a prayer for the victims and survivors of the shooting. This should have served as foreshadowing of what was to happen.

Rep. Kionne McGhee, a Democrat, introduced a bill to ban assault weapons and large capacity ammunition magazines. The bill was brought to the floor for debate on Wednesday.

However, by a vote of 71-36, legislators voted not to debate the bill and it wasn't considered. So, even though there was a majority who would vote the bill down, those opposed to the bill didn't want to risk a public debate on the merits of it. And they had the gall to do it when the students who survived the shooting were in attendance.

But, not to despair, the legislature did vote for a bill to declare pornography a public health risk.

That's Florida for you. Where boobies are bad but guns are good. In other words, in Florida, the 2nd Amendment trumps all.

Ten paces at high noon

Republican Florida state representative Brad Drake has an idea on how to resolve the debate about the efficacy of the three drug lethal cocktail used in the state-sponsored killing of inmates. He says to hell with it.

Rep. Drake wants change Florida's method of murdering inmates from lethal injection to firing squad -- and if the condemned man doesn't like it, he can choose the electric chair.

Rep. Drake's proposal would get around states violating federal law by "off label" use of pentobarbital. And, if we're going to continue to allow the states to kill people, let's stop sanitizing it. Let the public see how rapidly we can race to the bottom to see which state can be the most barbaric.

As I have pointed out many times, the death penalty doesn't solve any societal problem - other than the need for politicians and prosecutors to beat their chests about how tough they are on crime. No one has ever been brought back to life as the result of the execution of their killer.

Rep. Drake said he got the idea for his bill after speaking to a constituent at the Waffle House. Now, I don't want to stereotype here, but if I want an intelligent conversation, I'm not so certain I'd be heading over to the local Waffle House. I guess the anecdote shows that Rep. Drake is one of the "people," but his job isn't to be one of the people. His job is to pass legislation necessary for the operation of the state.

Now if you want to do it up right, Mr. Drake, how about a bill that would require executions to be broadcast on television? Let's see this for what it is - bloodsport. Let the public see exactly what goes on. Let's see what the public's comfort level is for the reality of death.

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Twisting and contorting by the pool

Just when you thought the courts had injected some sanity into the DWI "crisis," an appellate court finds a way make it go away. Take State v. Geiss for instance.

This time we go to Florida where Mr. Geiss was stopped for failure to maintain a single lane. Mr. Geiss declined the officer's request to perform coordination exercises on the side of the road. Then Mr. Geiss had the audacity to decline the opportunity to blow into the state's breath box at the station.

Of course, Mr. Geiss' failure to provide evidence voluntarily that might incriminate himself could not go unpunished. The arresting officer obtained a search warrant to draw blood from Mr. Geiss:

"for the purpose of collecting property from the person of Gregory G. Geiss, to wit: two blood samples . . .." It further alleged that "[s]aid property was used to commit the offense [of DUI] . . . a violation of section 316.193(1)(a), Florida State Statutes, Driving Under the Influence 2nd offense."

In response to Mr. Geiss' motion to suppress, the trial court threw out the blood test results on the grounds the warrant violated Mr. Geiss' right to privacy under the Florida Constitution, violated the state's implied consent law and violated the state's warrant statute.

This blow for individual liberty in the face of the overwhelming power of the state could not be allowed to stand. The 5th Court of Appeals in Florida acted swiftly in righting this "wrong."

The appellate court found that a search pursuant to a warrant trumped the individual's constitutional right to privacy in Florida. Then the court decided that even though the state's implied consent statute gave a motorist the right to say no, it didn't preclude the state from making an end-run around that pesky little issue by obtaining a warrant. The court pointed out that there were circumstances in the statute that permitted the police to obtain blood forcibly. Said the court:

However, Florida's implied consent statute does not expressly prohibit obtaining blood by search warrant, or otherwise indicate any intent to invalidate judicial authority to issue a warrant as authorized in section 933.02, Florida Statutes. If the legislature had intended the implied consent statute to modify the warrant statute, it easily could have said so.

The appellate court did, however, find that the language of the state's warrant statute prohibited the state from obtaining a search warrant to draw blood in a misdemeanor case since a warrant can only be used to obtain "property...used as a means to commit a crime." Had Mr. Geiss been charged with a felony at the time the warrant was issued, though, the statute would have permitted a warrant to draw the blood.

It would appear that Mr. Geiss had won after all.

But we all know that the court couldn't leave it there. The judges then contorted themselves to find that the officer executing the warrant was acting in good faith and that it wasn't his fault that he didn't know that blood was not property used as a means to commit a crime.

Our lesson is, as always, ignorance is not excuse for breaking the law... unless you wear a badge (then it's encouraged).

Just another cover up

A Florida judge approved a cosmetologist's $125 per day charge for covering up the tattoos of a man accused of murder. Mr. John Ditullio has acquired multiple tattoos, quite a few on his head and neck, since being jailed  for a 2006 murder.

Among the pieces or art needing to be covered up were a large swastika on the right side of his neck, a crude insult on the left side and barbed wire running down his face. Said his defense attorney, Mr. Bjorn E. Brunvand,

“It’s easier to give someone who looks like you a fair shake.”

Mr. Brunvand has a very valid point. I think it would be quite difficult to get a jury of twelve folks to disregard the elephant in the room at trial. No matter how you dress Mr. Ditullio up and no matter how much you build up his reputation, those tattoos are just screaming out that he's one bad dude.

Everyday at the courthouse I see people with tattoos on their necks. I see folks milling in the elevator lobby dressed up like gangbangers and dope fiends. I'm sure that some of them really just don't give a damn about what's going on. No one inside the courtroom is going to take them seriously. Their pleas will fall upon deaf ears.

I know an attorney who had a client with a shaved head full of tattoos. He told his client he was going to grow his hair out and leave it that way until his case was resolved.

In an era when states and counties are trying to keep down the cost of indigent defense by slashing vouchers and denying requests for funds for investigators, why did the court approve this expense? Mr. Ditullio certainly wasn't attacked by a mob of inksters, he chose the art and he chose his canvas. His appearance was his own creation.

Maybe the argument is that a defendant who could afford to retain private counsel could also afford a makeup artist who could cover up the tattoos and that should the court deny the request, Mr. Ditullio could have grounds to appeal a conviction (a mistrial was ordered the last time the case was tried).

The only thing is some wounds are self-inflicted.

When the breath test contradicts the officer's observations

You only thought blowing under a .08 meant you wouldn't be arrested for DWI. You figured that once the result of that breath test came back the officer would admit his mistake and let you go about your business.

You thought wrong.

Mike Williams, rookie wide receiver for the Tampa Bay Buccaneers, thought wrong, too.

Early this past Friday morning, an officer with the Hillsborough County (FL) Sheriff's Office stopped Mr. Williams for speeding and weaving in traffic. The officer smelled alcohol on Mr. Williams' breath and noted he had glassy eyes. The officer determined, through a decidedly unscientific method, that Mr. Williams was intoxicated so he placed him under arrest and took him to the station where Mr. Williams agreed to submit a breath sample.

The results of that breath test, you ask? .065 and .061. Well below the legal limit in Florida.

Now, aside from the obvious question of how a "scientific instrument" can have two readings .04 .004 apart on two blows that were no more than two minutes apart (I can't imagine a scientist being too pleased with that result on a test), what does this say about the ability of an officer to detect an intoxicated driver using NHTSA's roadside coordination exercises?

These coordination exercises supposedly tell the officer when a suspected drunk driver has an alcohol concentration of .08 or higher. But did they in this case? The answer would appear to be a big fat negative. The officer based his arrest decision on Mr. Williams' driving, his appearance and his performance on the roadside exercises. He came to the conclusion that Mr. Williams had an alcohol concentration of .08 or higher while driving his car. His conclusion was wrong.

Of course the obvious conclusion is that Mr. Williams was intoxicated by something in addition to alcohol. So authorities ordered a urine test (now there's a scientifically accurate test for you). The only problem is that regardless of what shows up on that screening, there will be no evidence that whatever was in Mr. Williams' body (if anything) other than alcohol had any effect on his mental or physical faculties.

The legislature of Florida decided that a person is intoxicated with an alcohol concentration of .08 or higher. The decision was made by legislative fiat. There is no scientific evidence that any given level of any other substance will cause a person to lose the normal use of their mental or physical faculties. None. The results of the urine test will not tell a single person whether Mr. Williams was intoxicated or not.

What we have here is an officer who was convinced, based upon his observations, that Mr. Williams had an alcohol concentration of .08 or higher. The state's own breath test machine proved the officer wrong and so the officer must find some other way to justify his actions that night.

That's DWI enforcement for you.