Friday, June 28, 2013

Police Photo Database Raises Privacy Concerns


Database Rapidly Growing With Little Legal Oversight


The faces of more than 120 million people are contained in photo databases that police are increasingly relying on to help them identify suspects, witnesses and other bystanders.




But few guidelines are in place to guard against abuse of these massive photo databases that authorities nationwide have been compiling in recent years.

Databases Began To Curb Fraud

The databases originally began as a way for state officials to prevent driver’s license fraud but law enforcement officials have been diligently adding to it in recent years with little legal oversight, other than the requirement that searches be done for “law enforcement purposes,” according to a report in the Washington Post.

The photo databases are one of several technologically advanced tools used by law enforcement to help them solve crimes, but that also raise important questions about privacy and an individual’s Fourth Amendment rights which guard against unreasonable searches.

Crime-fighting Efforts vs. Fourth Amendment

Just a few weeks ago, the Supreme Court cleared the way for law enforcement officials to collect DNA samples from suspects they arrest for investigation of serious crimes. As it turns out, many state officials were already compiling their own statewide DNA sample databases to help them in their crime-fighting efforts. These have all come to light just as we have now discovered that the National Security Agency has been aiming some of its top-secret surveillance programs on ordinary Americans.

The photo databases used by authorities employs facial recognition technology that relies on characteristics such as skin texture and vein patterns to identify potential matches. The technology is not yet advanced enough to produce a definitive match with the same accuracy as a fingerprint or DNA sample, but helps law enforcement ferret out potential suspects.

Where Photos Come From 

Photos contained in the database primarily come from state’s driver’s license photo banks, which began as a way for authorities to curb identity fraud. The Washington Post found that 37 states use facial recognition technology in their driver’s license registries, with at least 26 of those allow law enforcement agencies to search or request searches.

Florida is one of those, with 30 million images in its database, one of the largest.

Potential Police State?

Laura Donohue, a Georgetown University law professor who has researched government facial databases is concerned about the use of these photo databases.

“As a society, do we want to have total surveillance? Do we want to give the government the ability to identify individuals wherever they are . . . without any immediate probable cause?” Donoghue said to the Washington Post. “A police state is exactly what this turns into if everybody who drives has to lodge their information with the police.”


Photo credit: Deval Patrick

Wednesday, June 26, 2013

Divorce reform should include "equal time sharing"


Reform advocates vow to revive bill  


Advocates of reforming Florida's divorce laws say child custody law needs to adapt to the times with new laws on the books, including a provision for "equal time sharing."




One important component of the reforms they’re seeking involve child custody arrangements. A bill vetoed by the governor that would have eliminated permanent alimony also contained a provision that encouraged equal-time sharing between both parents, a marked contrast from current law.

New wording proposed

Specifically, the bill sought that the following language be added to current child custody law: “Equal time-sharing with a minor child by both parents is in the best interest of the child ... “

What do you think? Is this type of wording necessary to ensure more equitable child custody arrangements?

Some notable exceptions

The bill did make some exceptions to equal time-sharing in the following cases:


  • When the safety, well-being, and physical, mental, and emotional health of the child would be endangered by equal time-sharing
  • When there is “clear and convincing evidence of extenuating circumstances” that justify a departure from equal time-sharing and the court expresses in writing the reasons for not implementing equal time-sharing

  • A parent is in jail or prison
  • The distance between both parents’ homes makes equal time-sharing impracticable

  • A parent does not request at least 50-percent time-sharing
  • A permanent injunction has been entered or is warranted against a parent or household member relating to contact between the subject of the injunction and the parent or household member
  • Domestic violence has occurred


Reform advocates vow to revive bill 718, which deals in large part with alimony payments. Ending permanent alimony in Florida was the most publicized part of that bill, but reform advocates say the portion that deals with child custody is just as important. Current law does not state a preference either way but simply states that child custody should be decided in terms of what is in the best interests of the child.


Photo credit: dno1967b

Monday, June 24, 2013

When Does Florida Grant Annulments?


No Annulment Statutes in Florida 


Kim Kardashian finally was able to close the books on her marriage to a basketball player after a legal battle that lasted about 19 months. She was married for less than three months.




Why did it take Kardashian so long to finalize a divorce on such a short marriage?

Kardashian and basketball star Kris Humphries actually had a prenuptial agreement, which usually paves the road for a quicker divorce agreement. But Humphries wanted an annulment, claiming that Kardashian married him only for the publicity for her reality TV show.

Annulment Erases A Marriage

An annulment would have erased the marriage from the books, which legally would make it appear as though the marriage never happened.

In the end, the couple ended up getting a divorce.

What many people learn about annulment from watching TV is that a short marriage can be annulled. Annulment, however, is more complicated than that. Certain criteria must be met, making it more difficult to obtain than a no-fault divorce in some cases.

Each state has variations on their own annulment laws but people most often have to prove their spouses committed some sort of fraud.

Florida Annulment Law 

In Florida, there is no specific statute relating to annulment so Florida judges typically look at past cases in deciding whether to grant an annulment. Florida makes a distinction between "void" marriages and "voidable" marriages. A void marriage is one that legally should never have taken place. A voidable marriage is one that legally did exist.

Though annulments are somewhat rare, common grounds for annulment in Florida include:

  • Either spouse already has another wife or husband that the new spouse did not about beforehand.
  • Either spouse is “physically and incurably” impotent, information that the other spouse did not know beforehand. 
  • One spouse is under the age of 18 and did not have the consent of her parents to marry. 
  • A marriage between close relatives, such as between brothers and sisters (including half-siblings), uncles and nieces/aunts and nephes and first cousins.
  • If someone was somehow forced into marriage, such as being physically threatened.If a spouse is mentally ill, insane or retarded to the point of being unable to knowingly and understandingly consent to the marriage. 
  • One spouse fraudulently misrepresented himself or herself before a marriage. New Jersey courts, however, have found that these fraudulent misrepresentations relate to an essential part of the marital relationship and that the spouse seeking an anulment have relied on the misrepresentation. 

Photo credit: SalFalko

Wednesday, June 19, 2013

Florida Police Banking Suspects' DNA Samples


Some State and Local Police Compiling Their Own DNA Banks


Some Florida law enforcement agencies have been collecting DNA samples of suspected criminals and others.



An article in the New York Times last week detailed how several law enforcement agencies around the country have been compiling databases of DNA samples of everyone from detainees who are later cleared of charges to people who have fallen prey to criminals.

“If an officer goes to your house on a burglary, they will swab a door handle and then they will ask, ‘Can we get a sample from the homeowner so we can eliminate them as the source?’ ” Doug Muldoon, police chief of Palm Bay told The New York Times. “They say, ‘Sure.’ ”

Supreme Court DNA Ruling

The news has come to light just a week after the Supreme Court said it’s OK for law enforcement to collect DNA samples of people arrested for investigation of serious crimes. The Supreme Court, however, was obviously torn in their 5-4 ruling, which likened DNA samples to fingerprints.

A dissenting opinion written by Justice Antonin Scalia mentioned the chilling effect that such a ruling could have, specifically mentioning the possibility that DNA samples of innocent people could be collected.

Potential Fourth Amendment Violations

On the one hand, DNA samples are a valuable tool for law enforcement to solve crimes and clear innocent people who have been convicted of crimes, especially in cases that are several decades old. But opening the door to collecting DNA samples could be opening the door to a Pandora’s Box of problems.

Supreme Court justices in the dissenting opinion voiced concerns over violations of the Fourth Amendment, which protects Americans against unreasonable searches and wondered how far public officials will go in collecting DNA samples:

“Today's judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the "identity" of the flying public), applies for a driver's license, or attends a public school.”

Privacy Concerns

The case decided by the Supreme Court, Maryland v. King, involved a Maryland man whose DNA was collected during his arrest for assault. His DNA was later found to match that found at a the scene of a burglary and rape a few years earlier, and he was convicted.

Many Americans are becoming increasingly worried about their privacy being violated, especially after the news that the government has secretly been keeping tabs on people’s phone and Internet usage.

What do you think? Do you think it’s OK for law enforcement to collect the DNA samples of suspected criminals and their victims?

Photo credit: Nate Matias

Monday, June 17, 2013

Lack of Prenup Could Mean Costliest Divorce Ever


The Settlement Could Affect Future of Oil Company


A man once considered to be one of the most influential people in the world now reportedly stands to lose a good chunk of his fortune during his divorce.




What is reportedly the main culprit? Not the oil baron’s alleged infidelity, but the lack of a prenuptial agreement.

Harold Hamm, chief executive at Continental Resources, is in the middle of divorcing his wife of 25 years, according to Reuters. An article on CNBC says it could end up being the costliest divorce settlement in history and threaten the stability of Continental Resources.

Settlement Could Exceed $3 Billion

Such a divorce settlement could cost Hamm $3 billion or more, which would make his wife one of the 20 wealthiest women in the United States. Forbes estimated earlier this year that Oprah Winfrey’s fortune is estimated at $2.8 billion. Hamm’s fortune is estimated to be at least $11 billion.

Sue Ann Hamm, 56, is a former attorney at Continental Resources. She and her estranged husband have two daughters.

According to the CNBC article:

The couple tried to quietly litigate their divorce by filing anonymously as Jane Doe v. John Doe in an Oklahoma court last year. But many details have emerged since Reuters got wind of the story.

Couple Agree To Two Key Terms

Sue Ann is reportedly alleging that her husband was unfaithful. However, the couple have reportedly agreed to two key terms: a no-fault divorce and to set the date of separation at sometime in May 2012. The separation of assets would then be based on the estimated wealth of the couple on that date, which is key because the value of Continental Resources has nearly quintupled since 2007.

Oklahoma law allocates assets based on “equitable distribution,” which means assets are divided based on what’s fair, not equal.

Court to Decide How Much Wife Contributed

It’s unclear how Harold Hamm, who reportedly owns more oil in the ground than anyone else in the United States, would produce the necessary settlement sum. Continental Resources spokespeople declined to comment to the media on the matter, saying the divorce is a private matter.

But a costly settlement could affect the future of Continental Resources since Hamm owns 68 percent of the company. If Hamm decides to sell a portion of his share, he may no longer be the majority shareholder and other owners could become more powerful in the company.

The divorce case is reportedly entering the “valuation phase,” where the judge must decide how much Hamm’s own hand and his wife’s support together played in the success of Continental, or whether outside forces had a bigger role. Sue Ann would stand to get more if the judge finds that Hamm, with his wife’s support, was instrumental in guiding the company to success.

Rags-to-riches story

Hamm’s rags-to-riches story might work against him. He is the 13th child of an Oklahoma sharecropper who first started out at age 20 scrubbing scum from oil barrels. Just a few years later, he discovered a 75-barrel a day oil gusher and catapulted his earnings into a university education that led him to found Continental in 1967. Continental gradually grew, finding most of its financial success after 2007.

Legal experts are estimating that the final settlement could possibly go 60 percent higher than Rupert Murdoch’s last divorce, currently the highest divorce settlement ever.

Photo credit: Tax Credits 

Friday, June 14, 2013

Should DUI Checkpoints Be Publicized?


MADD Opposed to Apps Publicizing DUI Stops

The well-known MADD group is opposed to apps that tells motorists the locations of DUI checkpoints.




Sennett Devermont, who created the free app MrCheckpoint, told LA Weekly that he thinks he’s providing a public service by providing daily updates on police DUI checkpoint locations scheduled throughout Southern California. The app has nearly nearly 42,000 followers and more than 20,000 text subscribers.

MADD Opposes MrCheckpoint

But MADD doesn’t see it that way.

The group whose acronym stands for Mothers Against Drunk Driving doesn’t equate MrCheckpoint with good deeds.

"While we support the publication of checkpoints as a deterrent to drunk driving,” LA Weekly quoted Pat Rillera, MADD’s executive director in Los Angeles and Ventura counties, “sites like MrCheckpoint alert drunk drivers so they can evade arrest. It's not meant as a positive."

Florida DUI checkpoints

There are several ways Florida motorists could find out about local DUI checkpoints, including the media and public service announcements made by law enforcement. For example, Hillsborough County sheriff’s department has some general details about their DUI checkpoints on their website.

MADD has long been known as a zero-tolerance organization and keeps a tally of annual deaths due to drunk driving. The group says someone in the United States dies every 53 minutes due to a drunk driving accident. In Florida, 30 percent of traffic deaths are DUI related. For more facts on Florida’s statistics and how the state ranks in comparison with other states, go here.

Drunk Driving Enforcement

MADD’s drunk driving enforcement fact sheet includes the following facts about sobriety checkpoints:

  • Forty states and DC conduct sobriety checkpoints
  • Highly publicized, highly visible, and frequent sobriety checkpoints reduce drunk driving crashes and deaths by an average of 20 percent, according to research
  • Arresting people is not the main goal of a DUI checkpoint. However, the perceived risk of getting caught, keeps many drunk drivers off the roadways when the checkpoints are highly publicized.
  • Sobriety checkpoints have the support of 87 percent of Americans
  • Sobriety checkpoints, which can be done with as few as three to five officers, can save communities between six dollars and 23 dollars in costs from alcohol-related crashes for every dollar invested in the checkpoint.
Photo credit: Nick.Fisher

Wednesday, June 12, 2013

Statute of Limitations Doesn’t Apply In Murders


Florida Man Arrested For Shooting 26 Years Ago


Each state sets its own statute of limitations on all crimes committed within that state, but there is at least one crime they all agree should have no time limits on prosecution: capital murder.



A murder suspect arrested in Florida last week is finding this out the hard way. Justo Santos was arrested in Miami last Thursday for allegedly killing another man in New York in November 1986, according to the New York Daily News, which broke the story.

Murder Suspect 

According to the news story, Santos was 16 when he allegedly shot Jose Martinez, a restaurant owner. New York police detectives discovered Santos had fled to the Dominican Republic, where he supposedly was imprisoned for murder. The New York case was then shut down, until the restaurant owner’s daughter tracked down Santos using Internet fee-for-a-search databases. Joselyn Martinez, 36, passed along her research earlier this year to New York detectives, who reopened the case and arested Santos. He is scheduled for extradition later this week.

Justo Sanchez had been working in Miami as manager of a janitorial company.

Florida's Statute of Limitations

In Florida, any felony crime that results in someone’s death can be prosecuted at any time.

Florida law provides the following general rules for statute of limitations for prosecution:

A felony in the first degree must be initiated within four years after it is committed.

Any other felony must be initiated within three years after it is committed.

A misdemeanor in the first degree must be initiated within two years after it is committed.

A misdemeanor in the second degree or a non-criminal violation must be initiated within one year after it is committed.

Exceptions to Limitations

But the law provides for many exceptions, most notably when DNA evidence surfaces that links someone to an older case. In those cases, the law states that law enforcement have one year from the date that the identity of the suspect is established.

It also states that: “The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state.”

If you wish to consult an attorney regarding the statute of limitations, you may call the law offices of Eric A. Kay.

Photo credit: seychelles88

Monday, June 10, 2013

Eric A. Kay named Super Lawyer "Rising Star"


A rigorous selection process ensures only top-notch attorneys are included

Eric A. Kay


Attorney Eric A. Kay has been chosen as a a Super Lawyers Rising Star in Florida, a distinction that is given only to the cream of the crop of all attorneys statewide.

Only lawyers who have earned a high level of professional achievement and peer recognition are included in this group of lawyers, who represent a maximum of 2.5 percent of all attorneys in the state each year. To be chosen, attorneys go through an intensive selection and confirmation process that is so rigorous that it has been patented.

Public and private practice experience

“I am humbled and honored to receive this designation,” Kay said. “It certainly sets a standard that I am going to work hard to exemplify.”

Eric A. Kay, who has been an active member of the Florida Bar for the past ten years, has experience in private practice and as a public defender in Broward County.

His firm has represented clients in the practice areas of criminal law, business transactions, and civil litigation in the Miami, Fort Lauderdale, and West Palm Beach areas for the past six years.

An attorney who offers global services

While he was with the public defender’s office, he represented criminal defense clients and later became a supervisor of training and trials. He received the “Not Guilty” Hat Trick Award in 2007 from the Broward Association of Criminal Defense Lawyers for obtaining three or more consecutive Not Guilty verdicts in trials by jury.

Kay notes that one area where his firm stands out is in its emphasis on global services, offering legal services in a wide variety of specialties. Criminal defense work represents a large chunk of his firm’s work, but the firm also specializes in business transactions, civil litigation, entertainment law and family law. In addition, Kay’s clients also include foreign individuals and entities who tap his expertise as an international legal consultant.

“My objective is to provide high-quality legal services for my clients, tailored to meet the needs of each individual or business. Many lawyers or firms specialize in only one area of law,” Kay said. “When you engage my firm you are provided with global representation solutions. It has been a hallmark of my business to assemble, for each client that requires services in a variety of legal areas, a team that is custom built to advocate for the best interests of that client.”

Selection Process 

The Rising Star program, which exists in at least 37 states, is a patented rating system that relies on a multi-dimensional approach. First, lawyers are asked to nominate other lawyers who are 40 years old or younger, or have been practicing law for ten years or less. They can only nominate lawyers who they have personally observed at work - either as opposing counsel or co-counsel, or other first-hand courtroom experience.

The selection process further continues as a research team led by attorneys reviews each candidate’s credentials and assigns points using well-defined evaluation criteria.  The research staff must also ensure that candidates are properly licensed, in good standing with the state’s bar association, and that they have no history of disciplinary action that would warrant removal from the list.

Choosing attorneys with most points

Then, point totals from the general peer survey and the research process are added up for a final tally. Only those attorneys with the highest totals are named to the Rising Stars list.

“I am thankful for all the lawyers and Super Lawyers selection committee members that made this possible,” Kay said.

Super Lawyers is well-known as a go-to list for top-notch attorneys. Its selection process was recently vetted by the New Jersey Supreme Court, which upheld the findings of a special master assigned to examine the Super Lawyers selection process.

“It is absolutely clear from this record that (Super Lawyers does) not permit a lawyer to buy one’s way onto the list," the special master stated, "nor is there any requirement for the purchase of any product for inclusion in the lists or any quid pro quo of any kind or nature associated with the evaluation and listing of an attorney or in the subsequent advertising of one’s inclusion in the lists.”

Contact information:

For more information, visit his website at:  http://EKayLaw.com.


Friday, June 7, 2013

Florida Requires Concealed Weapons Permit to Carry Gun

Penalties Include Prison Time

As you probably know, the Constitution gives all Americans the right to bear arms, but each state has a set of laws governing the use of weapons that are designed with safety in mind. In Florida, residents may carry a concealed gun on or near their body as long as they have a permit.

A recent case involving a Florida woman shows that, even if you have no plans to use it, you should always get a permit if you are going to carry one.

According to the news story, this woman could be facing charges after her gun accidentally went off and shot her friend in the leg while both were at a Starbucks last weekend.

Police say gun accidentally disharged

The two friends were at Starbucks inside Tyrone Square Mall in St. Petersburg when one of them dropped her purse as she was about to pay,  accidentally discharging a .25-caliber gun that was inside the purse, according to the Tampa Bay Times.

The woman told police she had kept the gun inside her purse for about a year since receiving it as a gift from her father, but that she didn’t have a concealed weapon permit. The friend was treated at a local hospital and released. Police said they were referring the case to prosecutors.


Florida's Concealed Weapons Law


At minimum, the woman could face up to five years in prison for not having a concealed weapons permit if prosecutors decide they have a case.

Permits are administered through the state Department of Agriculture and Consumer Services. To obtain a license, you must be:

  • A U.S. citizen or legal resident
  • 21 years old or older 
  • Not have been convicted of a felony
  • Eligible to possess a firearm under Florida and federal law
  • Not suffer from a physical ailment which prevents you from safely handling the gun
  • Not have been committed within the past three years for the abuse of a controlled substance or been convicted of laws relating to controlled substances. 
  • Not be an alcoholic 
  • Show competence handling a firearm. 

Under certain conditions, Florida recognizes valid concealed weapons permits from residents of other states who are visiting Florida. For more details, consult the complete text of the Florida concealed weapons law here.

According to Florida law, carrying a concealed firearm in Florida without a permit is a third-degree felony, punishable by up to $5,000, up to five years in prison, or both.

You should also be aware that it's illegal to carry a concealed weapon even with a license at certain places, such as schools.

If you have any questions regarding weapons laws in Florida, you can contact the law offices of Eric A. Kay.

Photo credit: wiz722

Wednesday, June 5, 2013

Supreme Court Says OK For Police to Collect DNA Samples


Ruling Upholds DNA Law in Florida and Other States


The Supreme Court has determined that it’s OK for police to collect DNA samples from people arrested for serious crimes.

The ruling earlier this week effectively upholds laws in states such as Florida, which allow law enforcement to collect DNA samples from arrestees, not just those who have been convicted, of “serious” new crimes. The ruling did not define the “serious” crimes.

Supreme Court Ruling

“Taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” wrote Justice Anthony Kennedy in a majority 5-4 opinion.

All 50 states and the federal government take cheek swabs from convicted criminals to check for a possible match in federal and state DNA databanks. At issue in Maryland v. King was whether the Fourth Amendment, which guards against unreasonable searches, allows law enforcement to collect this information from people who have been arrested and not yet convicted.

The Supreme Court said the value of solving crimes outweighs the minimal intrusion in collecting a DNA sample from people arrested for serious crimes.

Maryland Case

The case in Maryland centers on a man named Alonzo Jay King, Jr., who was arrested in April 2009 on assault charges for pointing a shotgun at a group of people. He was later convicted of second-degree assault, a misdemeanor crime. During his arrest, police swabbed his cheek for saliva. The DNA sample was later found to match an unsolved 2003 rape. King was later convicted by a jury and sentenced to life in prison without parole.

King appealed, saying officers should not have taken the DNA sample during his arrest on assault charges. The Maryland Court of Appeals sided with King, essentially saying that police had violated King’s Fourth Amendment rights because he had not yet been convicted. Had the Supreme Court not backed the DNA sample, King would have been released.

"Suspicionless searches"

Florida law allows law enforcement to collect DNA from anyone who is arrested for a felony offense.

Four Supreme Court justices disagreed that the Fourth Amendment allows police to collect DNA samples from arrestees, which they called a “suspicionless searches.”

“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches,” wrote Justice Antonin Scalia in a dissenting opinion.

Crime victims’ advocates praised the ruling as helping law enforcement solve more crimes, but civil libertarians worried that the ruling would eventually allow law enforcement to collect DNA samples from people arrested for minor crimes.

Photo credit: agriculturasp

Monday, June 3, 2013

Florida Alimony Reform Effort Continues


"Equal Time Sharing" in Child Custody Arrangements May Be Coming to Florida


The effort to change Florida’s alimony laws has not died with Gov. Rick Scott’s veto. Reform advocates are continuing to press forward, bolstered by support in the Legislature, where the bill gained strong support.



One important component of the reforms they’re seeking involve child custody arrangements. The bill vetoed by the governor contained a provision that encouraged equal-time sharing between both parents, a marked contrast from current law.

New wording proposed

Specifically, the bill sought that the following language be added to current child custody law: “Equal time-sharing with a minor child by both parents is in the best interest of the child ... “

What do you think? Is this type of wording necessary to ensure more equitable child custody arrangements?

Some notable exceptions

The bill did make some exceptions to equal time-sharing in the following cases:


  • When the safety, well-being, and physical, mental, and emotional health of the child would be endangered by equal time-sharing
  • When there is “clear and convincing evidence of extenuating circumstances” that justify a departure from equal time-sharing and the court expresses in writing the reasons for not implementing equal time-sharing

  • A parent is in jail or prison
  • The distance between both parents’ homes makes equal time-sharing impracticable

  • A parent does not request at least 50-percent time-sharing
  • A permanent injunction has been entered or is warranted against a parent or household member relating to contact between the subject of the injunction and the parent or household member
  • Domestic violence has occurred


Reform advocates vow to revive bill 718, which deals in large part with alimony payments. Ending permanent alimony in Florida was the most publicized part of that bill, but reform advocates say the portion that deals with child custody is just as important. Current law does not state a preference either way but simply states that child custody should be decided in terms of what is in the best interests of the child.

Photo credit: dno1967b