News from Arizona
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Supreme Court rules on blood tests for suspected drunk drivers
Court: Arizona Supreme Court
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| Last week, the Arizona Supreme Court ruled that the state's law enforcement cannot use traffic laws to justify the drawing of blood from suspected drunk drivers without a prior warrant or clear consent. The case before the court involved a minor who, after being given a blood test, was charged with driving under the influence of drugs. The defense argued that their client lacked ability to give consent because his parents were not on the scene when the officer asked for his consent.[4]
The prosecution argued that motorists give complied consent simply by holding a current Arizona driving license. The Court agreed with the defense, however, saying that the drawing of blood as part of a search is a violation of privacy.[4]
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A compelled blood draw, even when administered pursuant to (the implied consent law) is a search subject to the Fourth Amendment's constraints. Such an invasion of bodily integrity implicates an individual's most personal and deep-rooted expectations of privacy.[4] - Justice Scott Bales[3]
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Pima County Attorney Barbara LaWall said this decision will make work complicated for police officers and they will be advised to get a court ordered warrant whenever possible before drawing blood, even if there is given consent.[4]
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How is the officer supposed to know whether or not it's been an express consent. It just makes it really, really tough because there isn't any bright line.[4] - Attorney Barbara LaWall[3]
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News from Florida
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Florida public defenders catch a break
Court: Florida Supreme Court
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| The Florida Supreme Court, in two decisions on May 23, 2013, took a load off of Miami-Dade (11th Judicial Circuit) public defenders, ruling that they could withdraw from 21 non-capital felony criminal cases due to being overworked.
The public defenders had argued, successfully, that their overbooked schedules amounted to a conflict of interest and did not allow them to provide the people coming through the courts with proper representation. However, it was not an easy decision, as the 6th Amendment to the U.S. Constitution guarantees every criminal defendant "the assistance of counsel for his defense."[5] One of the cases also challenged Section 27.5303(1)(d) of the Florida Statutes, which, according to the case, excludes excessive caseload as a ground for withdrawal.[6]
The court learned from witnesses that the attorneys almost never had time to visit crime scenes and properly investigate their cases. "Meet and greet pleas" were common, where the assistant public defender would meet the defendant for the first time at an arraignment, knowing nothing about their case besides what they read in the arrest form, and counsel them on the State's plea offer for a few minutes.[7]
The trial court sided with the public defenders, but the State appealed to the Third District Court of Appeal. That court stayed the lower court's order and sent the case to the Supreme Court, determining that the decision would have "great effect on the proper administration of justice throughout the state."[6]
The Supreme Court acknowledged the U.S. Supreme Court's decision in Gideon v. Wainwright, which guarantees lawyers for criminal defendants. Referencing decisions in other states and past precedents set by the Florida Supreme Court itself, they ultimately agreed with the public defenders that there was a conflict of interest.
The court stated,
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[T]his Court has repeatedly recognized that excessive caseload in
the public defender’s office creates a problem regarding effective representation.[6][3]
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The trial court is responsible for assigning new lawyers to defendants in such cases where the public defenders are unable to help them.[7] |
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News from Nebraska
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School’s out for...ever?
Court: Nebraska Supreme Court
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| The Nebraska Supreme Court ruled on May 31, 2013 that, while there is no deadline for students who are homeschooled to begin instruction, minimum instruction hours for the year must be met by June 30.[8] According to the Nebraska Supreme Court website, the case originates from charges filed in Dawson County against Eric Thacker and his wife, Gail Morgan-Thacker, for failing to enroll their five children in an approved school while the appropriate school district was open and in session.[9] The Thackers moved to Nebraska in March of 2011, and the Dawson County attorney was contacted by a school official when the Thackers failed to enroll their children after a couple of weeks.[8]
In April of 2011, the Thackers informed an inquiring sheriff’s officer that their children “were homeschooled and had already completed the curriculum for their 2010-11 school year”.[8] Even though the Thackers were then informed that they would need to either enroll their children in school or file the necessary paperwork to homeschool the children with the state Department of Education before the following school year, the parents failed to act. The Thackers cited their anticipated move to Kentucky by the end of September as the reason for the failure. That move was canceled, however, when Mr. Thacker received a promotion in September.[8]
After deciding to stay, the Thackers filed the necessary paperwork with the state Department of Education on October 4, so that their children could be homeschooled. This delay brought about five misdemeanor counts of violations of the state’s truancy laws for the period from the first day of school to the date the homeschooling paperwork was filed. The convictions involved no jail-time, probationary period, nor fines. The Thackers were required, however, to pay court costs.[8]
The convictions were reversed when the Thackers appealed to the District Court, and that holding was appealed by the state. The District Court based its reversal on the grounds that the Nebraska law does not require that the school year for students who are homeschooled begin at the same time as public school students’ school year.[10] The Nebraska Supreme Court affirmed, stating that parents who were new to homeschooling would not be under any deadline, “so long as the minimum instruction hours for the year are met by June 30”.[10] |
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News from New Mexico
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The New Mexico tax man cometh for Barnes & Noble
Court: New Mexico Supreme Court
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| Barnes & Noble, renowned national bookseller, must now pay back taxes for online sales from 1998 through 2005, according to a recent unanimous New Mexico Supreme Court ruling. On June 3, 2013, the court held that the Delaware corporation’s online website has a “substantial nexus” in New Mexico due to the three brick-and-mortar stores located in one New Mexico city, Albuquerque.
The New Mexico Taxation and Revenue Department assessed over half a million dollars in unpaid taxes on bn.com’s New Mexico-based sales. Barnes & Noble contested the tax bill, saying its bn.com site did not have a “substantial nexus” in New Mexico. The hearing officer agreed with the corporation but, when the state appealed the decision to the New Mexico Court of Appeals, the state won, leading the company to take their fight to the highest state court.
Ultimately, the New Mexico Supreme Court agreed with the state and the Court of Appeals, though based on different reasoning. According to the court’s opinion, authored by Justice Edward L. Chavez,
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[T]he Commerce Clause has been interpreted to mean that a state may tax a company doing interstate commerce ‘when the tax is applied to an activity with a substantial nexus with the taxing state.’[11][3]
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The court found that the website was “related” to the physical stores in Albuquerque, giving it a “substantial nexus” in New Mexico. Further, despite bn.com itself having no employees or warehouses in the state, the company’s brick-and-mortar stores, explained the ruling, “performed activities in New Mexico for bn.com’s benefits. … Bn.com and Booksellers are separate corporations, but they share a parent company, Barnes & Noble, Inc., which owned 100 percent of Booksellers and between 40 percent and 100 percent of bn.com.”[11]The court cited the fact that the stores promoted the website, that gift cards purchased online could be used in-store, the stores shared customer e-mail addresses with the website, and the member loyalty program, which was sold in-store and online, offered discounts for online sales. Thus, Barnes & Noble must pay taxes on revenue generated from online sales to New Mexico-based customers.
The tax bill at the heart of this dispute – totaling over $500,000 – is for sales from 1998 through 2005 only, however. The unpaid taxes on sales from 2005 to the present time have not been calculated or, if they have, that figure has not been publicly released.
Other online retailers, such as Amazon.com, have faced similar disputes in other states. Retailers without an online presence often feel unfairly undercut by their online counterparts as they claim the web-based retailers “offer what amounts to a discount by not charging a state sales tax.”[12] |
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News from Ohio
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Judge Ruehlman good to go for Elmwood Place speed trap case
Court: Ohio Supreme Court
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| The Ohio Supreme Court has rejected a bid by the village of Elmwood Place to replace the presiding judge in a controversial case involving the village’s use of traffic cameras.[13]
Dealing a blow to the financially strapped Cincinnati-area municipality, the state’s high court ruled that Hamilton County Common Pleas Judge Robert P. Ruehlman acted in accordance with the law and without bias when he banned the town’s use of automated speed cameras.[14] The cameras, which were placed at two separate locations along major through-roads in the village, had been used to detect speeding motorists and used an automated system to identify the vehicle’s owner and issue $105 dollar fines through the mail. In its first few months, the system nabbed an average of 115 speeders each day, generating approximately $362,250 in fines each month for the village of 2,200.[15]
In his March 7th decision, Judge Ruehlman found that the village’s ordinance establishing its Automated Speed Enforcement Program violated the due course of law provision of the Ohio Revised Code, calling the program "nothing more than a high-tech game of 3 card Monty." Judge Ruehlman also cited the town’s “total disregard for due process” and derided its hearing process as "a sham."[15]
Lawyers representing Elmwood Place had filed an affidavit with the Ohio Supreme Court claiming that the “extremely pejorative” language used in the decision was evidence that Judge Ruehlman was biased against the village and should be replaced.[16]
The court’s ruling is the latest twist in a months-long stand-off between the village of Elmwood Place and outraged motorists and local businesses. After the village installed the speed cameras and began issuing fines in September of 2012, the plaintiffs sued, claiming that the speed cameras were scaring away visitors, patrons and church-goers, and that the new speed enforcement program was simply a method of increasing revenue for the village.[17] Judge Ruehlman sided with the plaintiffs and issued a permanent injunction in March. Subsequent to Judge Ruehman’s decision, the plaintiffs’ attorney, Michael Allen, noticed that the village continued to use the speed cameras and issue fines, and asked Judge Ruehlman to find the village in contempt.[18] The hearing, originally scheduled for June 4th, has been postponed.[17]
A bill currently pending in the Ohio House seeks to outlaw the use of speed cameras state-wide.[16] |
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