Thursday, August 1, 2013

Suspended License

The issue of whether you can be charged with both misdemeanor driving while license suspended in violation of section 322.34(2) and felony driving while license suspended in violation of section 322.34(5).  This issue was addressed in Pedro Gil v. State of Florida, No. SC11-1983 (July 11, 2013).
On October 6, 2009, Pedro Gil was stopped in Miami-Dade County for speeding. Gil informed the officer that his driver’s license was suspended, and Gil was then arrested. For purposes of this case, the arrest report listed the following charges: driving with a suspended license (DWLS), in violation of section 322.34. 
On October 27, 2009, Gil pled nolo contendere to the misdemeanor DWLS charge in a county court and was adjudged guilty of this charge. Gil was sentenced to six months’ probation and two hundred hours of community service, plus the payment of $358. On the same day, the State Attorney for the Eleventh Judicial Circuit filed an information that charged Gil with a violation of the felony HTO statute. Gil subsequently filed a motion to dismiss the information on the basis that it violated Florida’s double jeopardy statute.  The circuit court granted Gil’s motion to dismiss the felony information. On appeal, the Third District reversed the dismissal of the information. Gil, 68 So. 3d at 1003. While acknowledging that the HTO provision, codified in section 322.34(5), appears to be a degree variant of the DWLS provision, codified in section 322.34(2), the Third District nonetheless stated: Subsection (5) is not a degree variant of subsection (2) because: subsection (2) punishes for driving with a canceled or revoked license, whereas subsection (5) only punishes for driving with a revoked license.  The Third District ultimately held that “because suspension or revocation under subsection (2) of section 322.34 is based on entirely different conduct and on a completely different criteria than a revocation under subsection (5), subsection (5) cannot be a degree variant of subsection (2), and therefore convictions for violating subsection (2) and subsection (5) do not constitute double jeopardy. 
However, double jeopardy may still attach if subsections 322.34(2) and 322.34(5) satisfy one of the exceptions provided under subsection 775.021(4)(b). As previously discussed, the DWLS and HTO provisions do not require identical elements of proof. Further, driving with a suspended license is not a lesser included offense of unlawful driving as a habitual traffic offender. Instead, the dispositive issue is whether the DWLS offense and the HTO offense are “degrees of the same offense” under subsection (4)(b)(2).  Applying the test articulated in Valdes, the Florida Supreme Court concluded that sections 322.34(2) and 322.34(5) qualify as variant offenses under section 775.021(4)(b)(2) and double jeopardy precludes the prosecution of Gil under the HTO provision in light of his prior conviction under the DWLS provision based on the same facts.

Tuesday, May 21, 2013

How Low Can You Go - NTSB Contemplates Lowering DUI From 0.08 to 0.05

For almost a decade, the legal blood alcohol level for DUI cases has been 0.08.  The National Transportation Safety Board (NTSB) is now recommending that the level be reduced to 0.05 claiming that this decrease would reduce alcohol related crashes by fifty (50) percent.  The NTSB Chairman was quoted as saying, "This is critical because impaired driving remains one of the biggest killers in the United States."

Monday, April 15, 2013

Bait Car - Theft

We are all familiar with Tru TV’s television show “Bait Car,” but the NYPD may have taken it a little too far.  The NYPD says the practice has been a valuable tool for catching career criminals and deterring thefts in public places. But a recent court ruling throwing out a larceny case against a Bronx woman cast a harsh light on a tactic critics say too often sweeps up innocent people.

In 2010, Deirdre Myers, a 40-year old single mother with no criminal charges was charged with petit larceny and possession of stolen property.  The events leading to her arrest began when a dark car raced down the block before stopping. Another vehicle carrying plainclothes officers wasn't far behind. When the driver got out and ran, the officers gave chase.

“Myers' daughter, seeing that the driver left the car door open, went over and peered inside to see personal items that included what looked like a bundle of cash — in reality, a dollar bill wrapped around pieces of newspaper. The girl had called her mother over when another set of police officers suddenly pulled up in a van and forced them to the ground.”  According to Myers account, she nor her daughter entered the car. 

Judge Linda Poust Lopez found that there was no proof Deirdre Myers tried to steal anything — and that she was framed by a sting that took the tactic way too far.”

The Bronx D.A.’s Office has advised that they will not appeal the ruling.

Sunday, March 17, 2013

Enhanced DUI

In 2008, the Florida Legislature greatly enhanced the penalties for a first-time DUI offender.  Prior to 2008, a first-time DUI was enhance able only after the accused provided a breath alcohol level over a 0.20.  Beginning in 2008, the breath alcohol level required to enhance the penalties for DUI was reduced to 0.150, subjecting many more persons to the enhanced DUI penalties.

Today, if you are faced with a DUI with a breath alcohol level of a 0.150 or higher, you may be faced with a fine of not less than $1,000.00 and not more than $2,000.00; imprisonment of not more than nine (9) months and the mandatory placement of an ignition interlock device on all vehicles that are individually or jointly leased or owned and routinely operated by the convicted person for not less than six (6) continuous months.

DUI License Suspension

If you have been arrested and charged with the offense of DUI, and you either had a breath alcohol level above a 0.08 or refused to submit to the breath test, then you are facing the prospect of losing your privilege to drive.  Hiring a qualified DUI Attorney can limit the time you will be without a driver’s license. 

The first course of action is to apply for a formal review hearing at the local Administrative Review Office.  This must be done within ten (10) days of your arrest.  Applying for the formal review hearing will not only allow you to obtain a work permit for approximately the next 42 days, it will also give you an opportunity to contest the administrative suspension you are facing.

For a first offense DUI, you will be looking at a suspension for a period of 180 days up to one-year.  During this period, you may become eligible for a Hardship License upon completion of the DUI Counter Attack School.  If your suspension has been sustained, you will need to wait 30 days (if your BAC was 0.08 or above) or 90 days (for a refusal) before becoming eligible for a hardship license, but only after you have completed the DUI Counter Attack School. 

Should you choose to wait to reinstate your license until your revocation period ends, proof of enrollment or completion of DUI Counter Attack School and treatment, if referred, is required. Failure to complete the course within 90 days after reinstatement will result in cancellation of your driver license by the Department until the course is completed. Failure to complete treatment may result in cancellation of your driver license.

Saturday, March 9, 2013

Changes in DUI?

Later this summer, United States Supreme Court Justices are scheduled to rule on the issue of whether a law enforcement officer may obtain a non-consensual and warrantless blood sample from a suspected drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.  Missouri v. McNeely – 11-1425

Texting and Driving

Florida is one of only five states without a law banning texting and driving. A bill is currently making its way through the Florida House and may soon make it illegal to text and drive.