Tuesday, November 1, 2016

I Have Been Arrested for DUI, Now What?

Unlike most criminal cases, DUI cases seem to affect the broadest demographic of clients.  According to the Centers for Disease Control and Prevention (CDC), in 2014, over 1.1 million Americans were arrested for DUI.  If you have been arrested for DUI, there are some things that you need to know.

In the State of Florida, an arrest for a DUI will not only result in a criminal charge, it will also result in an Administrative Suspension of your driving privileges through the Florida Department of Highway Safety and Motor Vehicles (DHSMV) if you refused to provide and blood, breath, or urine sample, or if you provided a breath test in excess of the legal limit.

As frightening as the prospect of having to appear before a Judge to answer to the DUI charge might be, your first concern should be in regards to your driving privileges.  You only have 10-days from the date of your arrest to either apply for a hardship license or to file an Application for a Formal Review Hearing. 

If this is your first time being arrested for DUI, you can register for the DUI Counter Attack School through the Florida Safety Council.  Once you register for the class, you will be able to take the certificate of registration to the DMV and petition for a hardship hearing. 

The second option is to file an Application for a Formal Review Hearing.  At the time of filing of the application, the DMV will provide you with a temporary driving permit that will have an expiration date approximately 42 days from the date of issuance.  You will then receive a Notice from the DMV advising you of the date and time of the Formal Review Hearing.  Following the hearing, the hearing officer will make a formal finding whether to sustain or overturn the suspension of your driving privileges. 

Now that you have taken care of your license, you will need to focus on the criminal matter.  The Clerk of Court in the County in which you were arrested will send you a Notice scheduling an Arraignment.  At your arraignment, the Judge will advise you of the potential sanctions that could be imposed and give you an opportunity to plead not guilty, guilty, or no contest.  If you plead guilty or no contest, the court will immediately move onto sentencing and you will be sentenced.  For a list of possible penalties, please visit: http://www.zlawfirmfl.com/dui-penalties.html.

If you plead not guilty at your arraignment, the court will schedule you for a Pre-Trial Conference.  The Pre-Trial Conference is where defense attorneys and prosecutors discuss cases in an effort to reach a resolution.  If you are unrepresented, the Prosecutor will likely make an offer that you can accept or reject.  Prosecutors will not negotiate with you if you are unrepresented. 

If you maintain your plea of not guilty, your case will be scheduled for a jury trial.  At trial, you will have an opportunity to participate in the jury selection process and six jurors will listen to the testimony and render a judgment. 

This is a roadmap of how a DUI case works.  However, the process is truly far more complex.  An experienced criminal defense lawyer will tell you that DUI Defense is one of the most complex areas of criminal defense.  It would greatly benefit you to speak with an experienced DUI Lawyer before you begin to navigate your way through your case.

An experienced DUI Lawyer will advise you of what option is best for you to select when it comes to reinstating your driving privileges.  The Administrative Review Hearing system is tilted heavily in favor of the State and should not be handled by someone who is not well-versed in DUI law. 

Having an attorney review your case may also result in the possibility of finding issues that can be litigated in pre-trial hearings.  An experienced DUI Lawyer will be able to utilize the arresting officer’s mistakes to his client’s benefit.  Many times these hearings can result in the charges being reduced or dismissed. 

So, if you have been arrested for a DUI, call and speak with an experienced DUI Lawyer who can advise you of your rights, answer your questions, provide you with a framework for how they plan to fight the case, and discuss possible outcomes.  Having an experienced DUI Lawyer working for you can make the difference in the outcome of your case. 

Monday, October 24, 2016

That's Not Meth

On December 11, 2015, an Orlando man was arrested for a felony charge of Possession of Methamphetamine.  The resulted from a traffic stop as the Orlando man was exiting an Orlando area 7-11.  Orlando police officers claimed that they had stopped the man’s vehicle for failing to come to complete stop as he was exiting the convenience store parking lot.

According to the arrest affidavit, Orlando Police Officer Shelby Riggs-Hopkins wrote that she “observed in plain view a rock like substance on the floor board where his feet were.”  When questioned about what was found, the man advised that what she was looking at was sugar from a Krispy Kreme donut. 

This eleven-year veteran of the Orlando Police Department retrieved the observed substance and conducted a field test.  The substance produced a positive result for amphetamines.  When questioned further about the substance, the 64-year old man advised Officer Riggs-Hopkins that the substance was sugar.

Rather than conducing any further testing on the substance, Officer Riggs-Hopkins arrested and charged the man with a third-degree felony charge.  After additional testing by the Florida Department of Law Enforcement (FDLE), the substance was confirmed to be sugar from a Krispy Kreme donut.

Now the Orlando man has filed a lawsuit in Orange County Circuit Court alleging negligence on the part of the City of Orlando and the company which produces the drug test kits.  The man is claiming emotional harm, including embarrassment and humiliation. 

Monday, October 17, 2016

Traffic Ticket Quotas

The Winter Springs Police Department is currently being investigated for a program where Officers were rewarded for meeting and/or exceeding citations issued and arrests made during a week in September.  During the weekend of September 10th, more than 100 citations, warnings, and arrests were made.  A discovered internal handwritten memo titled, "Delta Shift Weekend Competition" offered points to the officers for cases ranging from a traffic ticket to a DUI arrest.  The winner of the contest would be able to "float" for a pay period and would get a surprise.

On July 1, 2015, Florida Governor Rick Scott signed a law that forbids local governments from having traffic ticket quote programs.  Many believe that this law ensures transparency in government and prevents the exploitation of motorists.  This investigation into the Winter Springs Police Department being conducted by WFTV News 9 could create issues for the agency.

If you were issued a civil traffic infraction or if you were arrested for a drunk driving (DUI) charge during the month of September 2016 in Winter Springs, Florida, you may want to contact a Winter Springs Criminal Defense Lawyer to determine whether your case is impacted by this quota program.

Wednesday, October 12, 2016

Changes to Florida Minimum Mandatory 10-20-LIFE Law

Florida Senate Bill 228 was drafted as an act relating to mandatory minimum sentences.  On October 1, 2016, it was enacted into law by amending Florida Statute 775.087.  The amendment deleted aggravated assault from the list of convictions which carry a minimum term of imprisonment if during the commission of the offense the convicted person possessed a firearm or destructive device.  It also deleted the term aggravated assault from the list of convicts which carry a minimum term of imprisonment if during the commission of the offense the convicted person possessed a semiautomatic firearm.

Tuesday, October 11, 2016

Changes to Florida Firearms Law

The Florida Legislature has enacted an act making it a crime to threaten terror or acts of violence towards public officials.  Senate Bill 436 was signed into law and created Florida Statute 836.12.  This statute defines the terms "family member" and "law enforcement officer."  Senate Bill 436 also amends Florida Statutes 790.163 and 790.164 by creating the crime of falsely reporting the use of firearms in a violent manner against a person or persons.

Thursday, September 15, 2016

Criminal Defense - Escape

Claudio J. Poillot was serving a 48-month prison sentence for a felony conviction.  While in state custody and being housed at the Kissimmee Community Center, Poillot began employment with a construction company, JS & Son Construction Services through the work release program.  The work release program permitted Poillot to work outside of the correctional facility from 6:00 a.m. to 6:00 p.m., Monday through Saturday.  On July 29, 2014, he left the Kissimmee Community Work Release Center and timely reported to work at JS & Son Construction.  Shortly thereafter, Poillot left his place of employment without permission and was unaccounted for until he timely returned to the work release center before 6:00 p.m.  Upon his return, Poillot was arrested and charged with escape pursuant to Florida Statute §944.40.  Subsequently, the trial court granted Poillot’s Motion to Dismiss and the State appealed.

The Fifth District Court of Appeals reversed the lower court’s decision, concluding the work release program was an extension of Poillot’s confinement, and his deviation from the program in the manner asserted by the State establishes a prima facie case for escape. The Florida Supreme Court concurred with the Fifth District Court of Appeals and held that an inmate is still confined when he is working as part of a work release program, and leaving without permission would subject the inmate to a charge of escape.  Poillot v. State, No. SC15-1691 (Fla. September 8, 2016).

Friday, September 2, 2016

DUI Video Saves the Day

A Florida DUI case was reversed following the Second District Court of Appeals conclusion that the circuit court had applied the wrong standard of review.

A Sarasota man was arrested and charged with DUI.  Law enforcement made the arrest for DUI based on their assessment of the man’s level of intoxication during the traffic stop.  The officer testified that the defendant smelled of alcohol, was slurring his words, and had bloodshot and glassy eyes.  The defendant admitted to have been drinking, but advised that he had only one beer and one shot.

A Motion to Suppress was filed on the basis that law enforcement did not have probable cause to make the arrest for DUI.  The key piece of evidence was a dash camera that recorded the encounter.  The county court judge agreed that the video contained no indication that the defendant had slurred speech or was impaired and granted the motion.  The State appealed to the circuit court which reversed the lower court’s order after re-reviewing the evidence.

The Second District Court of Appeal reversed concluding that the circuit court applied an erroneous standard of review as they went beyond determining whether the video on which the county court relied presented competent, substantial evidence to support their conclusions.  It was improper for the circuit court to reweigh the evidence and choose to believe a state witness which the county court chose not to believe. Malone v. State, Case No. 2D15-4460 (Fla. 2nd DCA July 8, 2016).

Saturday, June 25, 2016

DUI Laws to change following US Supreme Court case

DUI laws in the State of Florida and across the country were shaken upon following the United State’s Supreme Court’s ruling in Birchfield v. North Dakota.  The issue that was presented was whether in the absence of a warrant, may a state statute criminalize an individual’s refusal to submit to a blood alcohol test.

In the State of Florida, refusal to submit to a breath, urine or blood test can be considered a criminal misdemeanor according to Florida Statute §316.1939.  Pursuant to section 316.1939:
Any person who has refused to submit to a chemical or physical test of his or her breath, blood, or urine, as described in s. 316.1932, and whose driving privilege was previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, and:
(a) Who the arresting law enforcement officer had probable cause to believe was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages, chemical substances, or controlled substances;
(b) Who was placed under lawful arrest for a violation of s. 316.193 unless such test was requested pursuant to s. 316.1932(1)(c);
(c) Who was informed that, if he or she refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months;
(d) Who was informed that a refusal to submit to a lawful test of his or her breath, urine, or blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor; and
(e) Who, after having been so informed, refused to submit to any such test when requested to do so by a law enforcement officer or correctional officer commits a misdemeanor of the first degree and is subject to punishment as provided in s. 775.082 or s. 775.083.

The United States Supreme Court, in a 7-1 decision, held that in DUI cases, warrantless breath tests are permissible under the search incident to arrest exception to the Fourth Amendment’s warrant requirement because they do not implicate significant privacy concerns. They involve minimal physical intrusion to capture something that is routinely exposed to the public, reveal a limited amount of information, and do not enhance any embarrassment beyond what the arrest itself causes. Blood tests, however, implicate privacy interests because they are much more physically invasive -- they require the piercing of the skin -- and they produce a sample that can be preserved and used to obtain further information beyond the subject’s blood alcohol level at the time of the test. The Court also determined that criminalizing refusal to submit to a breath test is designed to serve the government’s interest in preventing drunk driving, which is greater than merely keeping currently drunk drivers off the roads, and does so better than other alternatives. However, the same rationale did not apply to criminalizing refusal to submit to a blood test because of the greater degree of intrusion and the available alternative of the breath test.

Friday, April 29, 2016

Violation of Probation

          On April 21, 2016, the Florida Supreme Court granted review of the Second District Court of Appeals decision in Queior v. State, 157 So.3d 370 (Fla. 2DCA 2015) on the issue of whether a Probation Officer’s testimony that a probationer has failed a drug test administered by the Probation Officer is competent, non-hearsay evidence for purposes of proving a violation of probation.   
          In Queior, the State sought to revoke the defendant’s probation of the basis of a positive drug test.  At the hearing on the violation of probation, the State offered testimony from the defendant’s probation officer that they personally administered the drug test and that the test read positive.  The defense objected to the testimony claiming that the State had failed to lay the proper predicate to establish the reliability of the field drug test.  The trial court revoked the defendant’s probation.
          The defendant appealed, and the Second District Court of Appeal reversed the trial court’s revocation on the grounds that the probation officer’s testimony was not competent, non-hearsay evidence.  The Florida Supreme Court held that a probation officer’s testimony that a probationer has failed a field drug test administered by the probation officer is competent, non-hearsay testimony and can be relied upon in a revocation hearing.

Criminal Sentencing

          On April 28, 2016, the Florida Supreme Court granted review of the Fourth District Court of Appeals decision in Norvil v. State, 162 So.3d 3 (Fla. 4DCA 2014) on the issue of whether a trial court can consider a subsequent arrest without conviction during sentencing for the primary offense.   
           In Norvil, the defendant was charged with one count of armed burglary of a dwelling.  The defendant entered an open plea to the bench, and during sentencing, the State filed a Sentencing Memorandum requesting that the court consider a subsequent charge of burglary of a vehicle that was still pending.  Over the defense’s objection, the trial court announced that it was going to consider the pending charge and declined to sentence defendant to a Youthful Offender sentence and instead sentenced him to twelve-years in prison.
          On appeal, the issue before the Court was whether the trial court violated the defendant’s due process rights by considering a subsequent arrest without conviction.  The Florida Supreme Court held that “a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense.”

Tuesday, January 12, 2016

Florida Death Penalty Unconstitutional

This morning, the United States Supreme Court, in an 8 - 1 decision, has ruled that Florida's system for sentencing persons to death is unconstitutional.  The system is set up to where the same jury who found the accused guilty, will participate in the "penalty phase" of the trial.  During the penalty phase, both the State and Defense will put on testimony and offer evidence in an effort to sway a jury into deciding to rule in favor of death or life in prison.  The problem the Court found was that regardless of the jury's decision, the ultimate decision power rested in the hands of the trial Judge.