Articles Posted in DUI

fun-300x225Orange County has been on the cutting edge (if that’s what you can call it) of helping out folks who have made just one bad mistake.  We call this cutting edge help “diversion”.  And yes, I am guilty of stretching the term “cutting edge”, and  I’m warning you now that this article may contain a few more cliched terms.

Anyway, Orange County was one of the first counties (out of 67 in Florida) to institute a DUI Diversion program.  For those of you unfamiliar with “diversion”, its just a fancy term for an agreement with the prosecutor that asks goes something like this: “do a bunch of stuff, and we’ll drop your case.”   You can find more information about Orange County’s DUI diversion program here, but the point is, it has taken Seminole County almost a decade to catch up with some sort of DUI program of their own.

Last month, Seminole County began the “Seminole County First Time DUI Offender Program”.

Let’s start with the basics. Seminole County is careful not to call their new program “diversion”,  because “diversion” means “dismissal”.  So, its not a diversion program.  Sorry.  But, Seminole’s First Time DUI Offender Program does accomplish lots of positive things–it just doesn’t go all the way to dismissal.

I know what you’re thinking, because every person charged with first time driving under the influence is thinking the same thing: “What’s going to happen to me?”  Well, I’ll tell you.  In Orange County, if you’re a DUI first offender, what may happen to you is that your case “may” get dismissed.  Thrown out.  Gone.  If, and only if, you can make it into their diversion program.

In Seminole County, the answer to the question “What’s going to happen to me on my first time DUI?”  is not so simple.

Seminole County isn’t going to drop your case, as would happen with Orange County’s diversion.  But, Seminole County will drop the DUI charge down to something lesser, called an Alcohol Related Reckless Driving.  This is a beautiful thing.  As a bonus, you will not be convicted of this lesser charge–meaning, you’ll receive a withhold of adjudication.  Meaning, this case can be erased later (we call this “sealing”, and its a story for another day). Continue Reading

Self-help is everywhere.  But, which approach works best?IMG_2925-e1508532095556-300x239

At the risk of oversimplifying things, self-help falls into two categories.  For some, the focus is on thoughts.  Change your thinking, change your life.  Flooding your mind with positive thinking will, theoretically, lead to positive outcomes (there’s some physics behind this, believe it or not).   I’ve run my own experiment, contemplating the positive that would come out of winning the lottery.  I’m sad to report that my positive thinking has had no impact as of yet.

Some self-help folks shy away from positive thinking, and believe that emptying our brains of its constant chatter helps improve things greatly (monks chanting prayers, meditation, and so forth).  I’ve tried this too, with mixed results (my prayers seem to work, but I haven’t prayed to win the lottery…).

For every Ying, there’s a Yang.  There are also self-help programs that believe changing your thoughts is useless.  A waste of time.  For them, change only comes with action.  Change what you “do”, and you’ll change who you “are”.

Is it our actions that change us, or our thoughts?  Well, it’s probably both, working together in some vicious cycle I’m unqualified to discuss much further.  But I will say this:  sometimes, the best way to help yourself is to “not” do something.  Most of my clients could have helped themselves greatly, had they just not confessed to the cops.  Or, had they just refrained from doing something illegal.  Shocking, I know.

We Americans have a privilege against incriminating ourselves.  This privilege against self-incrimination is found in the Fifth Amendment, and you’ve probably heard Miranda Warnings on cop shows where folks are being told that they have a right to remain silent because if they talk–it will be used against them. Continue Reading

Professional athletes are always trying to optimize their performance.  That’s their job.  Training helps performance.  Diet helps performance.  Meditation helps performance.  And, drugs help avoid potholesperformance.  For every honest athlete, there’s a Lance Armstrong just waiting to be caught doping.  Yes, how we love to see them rise, just to see them fall.

The simple fact is, some drugs enhance performance, so there will always be someone out there trying to gain an edge. We all know how poorly we behave when drinking, and that’s why there are laws against driving under the influence of this drug.  But, Florida driving under the influence laws have deemed several other drugs detrimental to our driving abilities, contrary to scientific studies.   For example, some athletes claim that a little bit of weed before a game enhances their performance.  My guess is that half the NBA and/or NFL players have marijuana in their system.  Well, maybe half is an understatement, but you get my drift (do we still say drift? I do, I’m white and in my late 40’s).  Almost every professional sport I can think of demands more than driving, so if athletes can enhance their performance–or, at least not diminish it–with marijuana, why should it be illegal to drive under the influence of weed?

You’ve heard my weed vs. alcohol rant before, so I’ll spare you a 1,000 words here, but suffice it to say that the vast majority of domestic violence battery cases involve alcohol.  The vast majority of bar violence, resisting officers, and overall disorderly conduct arrests come from alcohol–not marijuana.  The vast majority of DUI cases come from alcohol, not marijuana.  The vast majority of DUI manslaughter cases come from alcohol, not marijuana.  Rarely do we hear of a wife calling 911 regarding her violent husband after they both smoked some weed.  Not gonna happen.  Now, I’ve used the vague term “vast majority” several times, but are there statistics to back up these assertions?   Continue Reading

weed flower.jpgThe problem with weed is that it tends to stay in your system for at least 30 days, because THC is stored in the body’s fat cells. Compare that to cocaine, which is water soluble, flushing out with the user’s urine within 3 days. If you’re a weed smoker that’s never been in trouble with the law, should this physiological “in-your-system-for-30-day” factoid mean anything to you? Yes. Say you end up in a huge car accident with injuries–the police are going to take blood to check for impairment–and that weed you smoked a month ago will be there. Now you’ve got handcuffs. Jail cell. Mugshot all over the internet. High insurance rates for the rest of your life. And so forth and so on.

People primarily think of driving under the influence (DUI) charges as involving alcohol. That’s true most of the time. But technically, it is a crime to operate a motor vehicle with any amount of drug or its metabolite in your body–if the substance is impairing your driving. It can be tough for prosecutors to prove that you were “under the influence” of the drug at the time, but this can be inferred–and that’s the problem with weed. How can a jury determine whether or not a driver is under the influence of marijuana smoked right before the accident, versus smoking two weeks ago during a visit to Jamaica?

Some states have decided to place arbitrary limits on what is considered impairment by marijuana. Colorado, for example, just passed a law this year which “presumes” a driver is impaired if the weed levels are above 5 nanograms per milliliter. Washington State also makes it illegal to drive with a blood level of 5 ng or more of active THC. The Michigan Supreme Court overturned a DUI conviction earlier this year because the conviction was based upon the presence of trace amounts of marijuana. The Michigan court stated that the lower could should have focused upon proof as to whether or not the driver was “impaired” by marijuana while driving. And, shouldn’t that always be the question when it comes to a DUI charge involving drugs? Even prescription drugs can get you a DUI conviction if they impair your ability to drive.
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parking lot.jpgYes, it seems as though nothing is beyond Big Brother’s power. Carry a cell phone around, and your movements can be tracked. Your conversations monitored. Your texts and emails and banking stuff–all done from your phone–can be tracked. To make matters worse, Apple recently applied for a patent on a product that permits Big Brother (or, anyone else who buys this technology) to shut off the audio/video portions of your phone at will. Say, for example, that the police don’t want bystanders to record what they’re doing, this product allows them to disable your phone’s audio/video capabilities (hold on to those old digital cameras, you might need them someday). Sure, Hollywood would like this sort of technology in movie theaters, to keep the blockbuster releases out of the hands of black market dvd merchants. Concert promoters may like this technology as well. But, don’t be surprised if our government and local law enforcement use it to prevent another Rodney King video from surfacing. I’m just saying….

Anyway, the topic for today is, how much police power extends onto private property? Really, that depends upon what the police are investigating. Unfortunately, it doesn’t take much for the government these days to break down your front door with a search warrant, should your I.P. address be shown to have downloaded child porn. The modern day version of the Salem Witch Trials is, basically, child porn prosecutions. Also, the police may knock on your front door in order to investigate a crime. Nothing wrong with that. But, can they pull you over for a broken headlight, if you’re driving on the private property of your condo/apartment complex? Let’s explore this potential limitation on government intrusions, via the case of Nemeth v. State, 14 Fla. L. Weekly Supp. 334b.
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do not feed iguanas.jpgBig Brother is always telling us what to do, right? In a limited fashion I’m ok with that, I suppose. I mean, who else is going to keep track of traffic lights and air traffic controllers? But other Big Brother decisions don’t add up. For example, one part of our government, the National Park Service (part of the Department of Agriculture), has posted signs which read “PLEASE DO NOT FEED THE ANIMALS – The Animals May Grow Dependent and Not Take Care of Themselves”. Yet, the Department of Agriculture is also handing out food stamps at historic levels. This sort of hypocrisy and irony is all in a day’s work for the massive Big Brother machinery, and George Orwell would be proud. True, the Federal Government is really too easy a target, sort of like that beginner comic that makes jokes about how one’s ethnicity effects penis size–it’s been done before. So, to bring this back to Florida law–DUI in particular–let’s point out another obscene piece of DUI legislation which took effect on July 1st, 2013.

First the good news. Not only are DUI diversion programs popping up everywhere for first time DUI clients, but also, the new laws permit first time DUI clients to waive a formal review hearing. Now, in plain English, I’ll walk you thru what that means. Let’s say you get arrested for the first time on a DUI. If you blow over a 0.8 BAL, your license is suspended for 6 months. That hurts, right? After all, how are you going to get to work? Under the old law–and current law, really–your lawyer may appeal this 6 month suspension by requesting a “formal review hearing”. But if the appeal is lost, the driver must go 30 days without driving, before requesting a hardship (or business purposes only) license to serve out the remaining 5 months of the 6 month suspension. Who can afford a taxi for a month?

do not feed alligators.jpgBut the July 1st changes now permit a driver to file a “waiver of formal review hearing”, and simply obtain a business purposes only license immediately [see my DUI website for more details]. That’s great news for some drivers, because not everyone can afford to not drive to work for 30 or 90 days (90 days for refusals). But the new law made some questionable changes that spell trouble for our disabled citizens.
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courthouse.jpgWe all need our rest, no doubt about it, but our sleepy-brain-wave-patterns (like that technical term? I made it up myself) seem to be disrupted by cell phone signals, WiFi signals, radio waves, gps signals, dogs and cats living together–it’s just too much stuff. With all that, I’m going to further claim (fabricate) a statistic for you–insomnia is at an all time high worldwide. We just can’t sleep.

Now, what really keeps me up at night is not RF interference, Conan, Jimmy Kimmel, or some West Coast football game that starts at 9:00pm. No, what keeps me up late at night is knowing all the ways our bored legislature is going to claim to be “working” the next day by making more things a crime.

So, what is a criminal defense attorney to do? File motions, of course! Today, we’re going to examine why I think the crime of refusing to blow into a breath machine for the second time is unconstitutional. Florida Statute 316.1939 creates a misdemeanor when a citizen refuses to take a “lawful test of his or her breath, urine, or blood” having refused such previously.
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referee.jpgHere’s a nugget of truth: criminal defense lawyers and prosecutors disagree about just about everything. Duh. Fortunately, our justice system provides a referee to assist in these disputes, a judge. Believe it or not, one of the most important decisions (and toughest, for that matter) a judge can make is to believe–or not believe–a particular witness’ testimony.

From a criminal defense lawyer standpoint, it is well established that some inexperienced prosecutors simply assume that everything the police tell them is true–and everything a defendant says is a lie. So, how does a judge sort out disputes of witness credibility? Some judges simply take the easy way out by believing everything an officer says. Some judges do not display such intellectual laziness, and instead, actually do their job by finding police testimony not credible.

To see a brave county court judge in action, we’re going to look at the real life saga found in Duke v. State, 82 So.3d 1155 (Fla. 2nd DCA 2012). Duke was charged with misdemeanor driving under the influence (DUI). His criminal defense attorney filed a motion to suppress the traffic stop that led to the DUI arrest. The DUI stop was based upon several factors, (1) a wire hanging down in front of his license tag, (2) Duke’s car driving over the white line, and (3) Duke’s failure to drive in a straight line. At the hearing, the officer claimed that all of this behavior was consistent with driving impaired, and the driving pattern was shown to the court on video.
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picture taking.jpgYea, maybe “hate” is too strong a word, but why not….Let’s face it, government officials do not like technology because it allows the rest of the world to see what they’re up to. Remember Egypt? When the uprising came, there were government attempts to shut down the internet. Well, the same thing is happening here in Orlando.

Example #1: a few years ago, all of the Orange County Sheriff patrol cars had video cameras running full time. Unfortunately for them, this led to massive defense wins in DUI cases. Occassionally, a roadside video will surface, but rarely, and only if the defendant is falling down drunk while attempting field sobriety tests (FST’s). Somehow, the really really bad videos are released, even though most of the cameras have been removed from the patrol cars. Without video, the jury must simply take the word of the police officer regarding a DUI defendant’s sobriety. Just another thing that makes you go “hum”.
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dog poo.jpgHere in Orlando, there are plenty of police reports that contain flat out “lies”, and others are simply complete bullshit. Now, there is a difference. Let’s examine that difference thru two examples.

The first example is of a law enforcement “lie”, and it comes via a big drug trafficking case I handled earlier this year. My client was pulled over at 1 a.m. in a friend’s car, with tinted windows, because the officer “recognized him as a habitual traffic offender, and verified such thru the D.A.V.I.D. system prior to stopping the vehicle.” As you might expect, there was enough drugs in the trunk to get him a mandatory prison sentence. My client swore the cop didn’t even know his name, so I pulled the D.A.V.I.D. records from Tallahassee and compared them to the dispatch records and sure enough, the officer did not even run my client’s name until 21 minutes after the stop! Reason for the stop: a complete lie, case dismissed.

The second example is of law enforcement bullshit. and this is most common in DUI police reports, especially those that have no video verification. Professor Harry Frankfurt draws an important distinction between lying and bullshitting in his essay “On Bullshit.” He says a liar still cares about the truth, but a bullshitter is not bound by concepts of truth, as the truth is ‘totally besides the point.’ Bullshit is often characterized by the regurgitation of the legally appropriate, typical script. [quote from Perry’s book, below] This “typical script” is exactly what I’ve been seeing in DUI arrest affidavits for the past 18 years.
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