FL Senate Seeks to Expand Removal of Criminal Records

Anyone who has been charged with a criminal offense understands that a simple background check can be devastating. Florida has some of the toughest rules in the country to seal or expunge a criminal record. Even so, now that we live in the technology age, even a simple google search can bring back dark secrets of a past arrest. Worse still, some companies try to profit by charging a fee to remove the booking photo. Now the Florida Senate is seeking to expand the rights of those previously charged with a crime to help make removal of those records a little bit easier.

Senator Greg Steube, a Republican from Sarasota, has introduced Senate Bill 118. It has already passed through the Judiciary committee with a 9-0 vote, and through the Criminal Justice committee with a 5-2 vote. The legislation does two main things. 1) It expands the State’s sealing and expunging eligibility; and 2) It classifies charging a fee to remove a booking photo as an “unfair trade practice.”

When a record is sealed, the public will not have access to it, while government agencies can. When a record is expunged, government agencies do not even have access to that file without a court order. As it stands now, even if a Judge dismisses a criminal charge in the middle of trial due to lack of evidence, or a Defendant is found not guilty at trial, a case cannot be expunged, only sealed. This bill expands cases eligible for expungement to include when an acquittal is received at trial either by the Judge or the Jury. Additionally, as it stands right now, if one is adjudicated guilty of a criminal offense, even a misdemeanor long in the past, none of that individual’s criminal record can be sealed or expunged. This bill seeks to make it so if it has been 10 years since an individual has been adjudicated on a misdemeanor, it will not otherwise bar the applicant from getting a criminal offense sealed or expunged

The legislation also importantly ends the practice of allowing websites to charge a fee to remove a booking photo. If the website refuses to take down the photo for free after 10 days, one can sue the website civilly for up to $1000 per day that it does not remove the photo, plus attorney’s fees and costs. Nothing in the bill prohibits companies from creating these websites that collect booking photos, as just the practice of charging to remove a photo will be prohibited. However, by taking a bite out of these websites’ profits, they may become less common.

With strong bi-partisan support, it looks as though this bill will pass the Florida Senate. A similar bill has passed through Florida House committees as well. It appears that in just a few months it will be a little bit easier for one to remove their criminal record from public view.

FL High Court Overturns DUI Conviction for Lack of Communication Between Officers

Last week the Florida Supreme Court made it harder for blood and breath evidence to be admitted in DUI cases and required officers to be more diligent in their communication amongst themselves. In a little noticed case, the Court held that the “fellow officer rule” requires actual communication concerning probable cause. The Court further held that a consent form signed by a suspect can be involuntary if it is preceded by a warning that their license could be suspended.

In State v. Montes-Valeton, the Court overturned the lower court. In the case, the initial officer responded to a crash. This officer noticed a smell of alcohol, but did not inform other officers about it. In fact, the officer who asked Mr. Montes-Valeton for the blood draw indicated “he did not recall” if there was a smell of alcohol. The Fellow Officer Rule in broad terms, means that the collective knowledge of law enforcement will be imputed to each individual officer. However, the Court reasoned that this information must be actually communicated in order to be valid. Since there was no proof the first officer’s observations were communicated to the other officers, the fellow officer rule did not apply and there was no probable cause.

The government was able to secure a signed consent form from Mr. Montes-Valeton allowing a blood draw in this case. However, this was only after the police incorrectly noted that his license would suffer a lengthy suspension if he did not comply. The Court held this was involuntary and thus invalid. Since there was no probable cause, there would be no license suspension and the consent was induced by a misrepresentation.

This case can have far reaching impacts in many areas of criminal defense besides DUI, as these days it is very common for multiple officers to be involved in one case. If their communications amongst each other are not sufficient, it can be grounds to suppress evidence.