Monthly Archives: August 2014

Punta Gorda Man Arrested for DUI on a Lawn Mower

Kenneth Smith Mug Shot

Kenneth Smith Mug Shot

Deputies allege that Kenneth L. Smith, a 58 year old from Punta Gorda, was driving his riding tractor (an Ariens) along the side of US 41 in Charlotte County while impaired. We’ve seen the DUI on a lawn mower before, and there’s nothing too impressive about this, except that he was going along the busiest road in Charlotte County. To cap it off for Smith, he was also packing heat under the seat of his tractor, and he’s a felon, and his license was restricted to business purpose only, and he threatened to have a friend beat up the deputy (all allegedly, per CCSO).

Kenneth Smith's Tractor, via CCSO

Kenneth Smith’s Tractor, via CCSO

Yes, you can get a DUI on a lawnmower in Florida: it is a vehicle. It’s got a motor, so you can even get a driving with license suspended (or restricted) charge if you operated it on a street or highway. There are very few exceptions to the requirement that operators of motor vehicles be licensed, namely motorized wheelchairs and electric bicycles. But Mr. Smith’s problems are greater than merely a DUI. He allegedly has multiple DUI priors, which could enhance this charge to a felony, and the possession of firearm by a convicted felon is a second degree felony.

Ironically, the CCSO Facebook post says you can get a DUI on any type of motor vehicle. In fact, it does not have to be a motor vehicle, rather any vehicle. That includes bicycles, and in one case I handled, a DUI on a tricycle. However, it doesn’t include horses (probably).

Read more on WEIRDDUI cases: https://crimcourts.wordpress.com/tag/weirddui/

East Naples Man Faces Felony for Killing Alligator in His Yard

An East Naples man, 72-year-old Nile Duppstadt, is facing a felony charge for killing a small alligator that came in his yard. He says he read a book about problems with government interference and he got so angry that he shot the two and a half foot gator. Now there is a suggestion that he was afraid for his safety, which is not what he initially told FWC investigators.

Jeff Whichello, author of the book that fired up Mr. Duppstadt, “What Happened to Ochopee” is speaking out. He doesn’t think Mr. Duppstadt should be charged with felony for killing an animal that may have been threatening him, especially since they can be found everywhere. Now, it’s doubtful that such a small gator was endangering the life of a grown man, but there’s no doubt that it presented a hazard, especially if the neighbors had been feeding it and it lost its fear of humans. Ironically, if he had called FWC about the gator being a nuisance, they probably would have sent a licensed trapper to destroy it.

I agree that it is probably not necessary to charge a felony in this case. It’s not like he was profiteering, or that the animals are endangered. The felony statute was written to prevent poaching, probably back when alligators were critically endangered. However, alligator numbers have rebounded to the point that the state sanctions hunts: ironically season just started.

Nor do I think people should have an unfettered right to destroy an animal just because it is on their property. That kind of attitude is why alligators were so endangered in the first place. A balance needs to be struck regarding control, and in these cases, when a gator is a nuisance, the State will come out and remove it. And nobody is suggesting that if someone is in danger of bodily harm that they can’t protect themselves… but that doesn’t appear to be the case here.

I missed this last week, please keep me posted when gator news comes in. Crimcourts is still your headquarters for legal gator news! #onlyinflorida

UPDATE: Court records show Mr. Duppstadt was given Pretrial Diversion, a  deferred prosecution program for first-time offenders that will keep the charges from being on his record.

 

The Cop Who Arrested Bengal Sam Montgomery Was Fired

Bengals Defensive Lineman Sam Montgomery was arrested a couple months back in South Carolina; his only offense speeding. As we’ve discussed before on Crimcourts, that’s not enough for a criminal charge in Florida, as when Dodger Yasiel Puig was arrested for high speed on Alligator Alley. However, speeding alone can bring a reckless driving charge in Virginia, and that will land you in a jail for a few days, if you get popped in a town that’s far enough away from civilization. Apparently, arrest for speed is within an officer’s discretion in South Carolina… and that’s not what got the trooper in hot water.

Sam Madison Arrest Video

Sam Montgomery Arrest Video

The trooper ended up losing his job for unprofessionalism. The video is jarring. He asked Montgomery if he was military, and when Montgomery responded that he was in the NFL. As soon as Madison told him that he played football, he put him under arrest, apparently the fact that he plays in the NFL made him more arrestable. It actually goes down from there, as the trooper pulls out his taser and threatens to use it on Montgomery. Montgomery, to his credit, is nothing but polite with the trooper.

I don’t think Montgomery got arrested for being in the NFL; I think the cop just had a personal policy for arresting people, as he says, “25 over, you get arrested.” I don’t think he needed to threaten a Taser: Madison was as compliant as anyone I’ve ever seen stopped. And while the officer has the discretion to arrest, it should only be reserved for special circumstances, not mere speed (perhaps extreme speed, or someone who doesn’t have their license or ID on them). An arrest escalates the tension of the encounter. It is substantially more taxing on resources, as it involves jail personnel, booking, and it takes the trooper off of his patrol probably at least a few hours each arrest. All over a $300 ticket. It’s not necessary to arrest someone for a misdemeanor more of the time, much less for a simple ticket.

Also, I’m biased. I’m a Bengals fan… though Montgomery is not projected to end up making the team.

Justin Bieber Pleads Guilty to Lesser Charges in DUI Arrest Case

Justin Bieber Mug Shot

Justin Bieber Mug Shot

Justin Bieber pled out to lesser charges stemming from his DUI arrest in Miami. According to CNN, he pled to Careless driving, which is a civil infraction, and resisting arrest, which is a misdemeanor. It’s unusual in Florida to plea a case all the way down to a careless, but the DUI case was exceptionally weak. We pointed out some problems on this blog before, but I hadn’t seen that GPS evidence further disproved the cops’ allegation that there was a drag race. The car was slowing down at the time the cop claimed it was racing!

The plea deal includes anger management classes, and a major donation to a youth charity. Biebs avoids a BS DUI, and underprivileged kids get financial help: it’s a win-win plea offer. 

Now Charlotte County is Getting in on the Online Sex Offender Sting Bandwagon

Charlotte County, which apparently doesn’t understand news cycles, released info this afternoon of their online sex-offender sting operation. They only caught 11 people, and since they were willing to bring in people from out of county, suggests that the actual sex offenders have wisened up, or that the investigators were actually taking precautions to avoid entrapment situations. Experience tells me the former is more likely the case, which represents a fail all around.

Where did they do that press conference? Is that the county commission chambers? What is that… that’s ghetto law enforcement. If this is anything like the last round of sex offender stings, poor law enforcement technique will leave these arrests open to challenge by defense attorneys…

http://www.nbc-2.com/story/26233761/11-arrested-in-north-port-child-sex-sting#.U-VdZPldXVU

Judge Makes Interrupting Lawyer Produce a Training Video

A Federal Judge in Iowa found that an attorney was deliberately making excessive objections during depositions, and as a sanction, has ordered that attorney to produce a training video for lawyers, explaining why the tactic is improper. She and her firm are contesting the sanction… natch.

I guess the takeaway is, don’t object to much. Well, really, it’s don’t be a jerk. Object when it’s prudent, but not merely to obstruct the process. Though, Florida courts frown on “standing objections”, so the baseline is low for when repeated objections need to be made.

http://www.nbc-2.com/story/26210251/objection-interrupting-lawyer-gets-rare-sanction

Car Writer Goes to Jail for His Test Drive

Camaro ZL1, photo courtesy Chevrolet.com

Camaro ZL1, photo courtesy Chevrolet.com

No, he didn’t steal the tester… he just drove like he stole it. Patrick George, a writer for car-enthusiast website Jalopnik.com, recently got charged with reckless driving for speeding during his test drive. No doubt, his speed was excessive, but so was the sentence: which entailed three days in jail on a first offense. His eye opening experience led him to write a great first-person account of his brief, yet eye-opening, time in jail: “Never Speed in Virginia: Lessons From My Three Days in Jail“. Go read it now.

Yasiel Puig Arrest

Yasiel Puig Arrest

The legal issue that stood out for me was that Virginia automatically considers high speed to be reckless driving, and therefore a criminal offense. In Florida, speed alone cannot constitute reckless driving. That’s why when baseball all-star Yasiel Puig of the Dodgers got pulled over flying across the Alligator Alley a few months back, the state ultimately dropped the charges. That didn’t keep an overzealous Trooper from throwing him in jail instead of issuing a citation in the first place, but that’s an argument for another post. But speed alone can be a crime in Virginia, subjecting drivers to up to a year in jail.

I suspect that not many first time reckless drivers actually end up in jail… frankly I hope not. Not only does it cost taxpayers money, it goes against well established principles of recognizance for first time offenders. Sheesh, make a guy pay a fine or do some community service if you have to: something to benefit the community instead of taxing it. I don’t practice in Virginia, but this reeks of small town justice. The national media writer from DC gets popped in a small town, and they hammer him to teach a lesson. This kind of abuse of power also carries the risk of discriminatory sentencing. Think of the cliche little town with an all-powerful judicial figure; Boss Hogg still lives. I keep thinking of “Nothing But Trouble“, an unfortunate Chevy Chase/Dan Akyroyd vehicle from 1991. And in that movie, Chevy Chase actually fled, in this case, Mr. George was immediately contrite. They say speed kills, but random jailings don’t really work as effective deterrents.

http://jalopnik.com/never-speed-in-virginia-lessons-from-my-three-days-in-1613604053