Florida DUI Lawyer Blog

The City of Delray Beach has set its sights on obtaining money that would finance an officer whose duties would primarily include analyzing ways to fight DUI offenders. The City of Delray Beach also hopes to use this grant money to finance a vehicle outfitted to further this endeavor. The application seeks over $100,000 which the City claims is justified due to the increased number of bars on Atlantic Avenue. Very little statistical information is available which would tend to prove that the increased number of drinking establishments has any relation to the amount of impaired drivers in the Delray Beach area.

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Posted In: DUI TASK FORCE

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Individuals convicted for their first DUI offense are required, at a minimum, to serve six months probation, pay a $250 fine plus court costs, attend a Level I DUI class, and have their vehicle immobilized for ten days. In many cases, those convicted must also follow-up with treatment for alcohol dependency. As if that weren’t enough, MADD is now seeking for legislation that would require a first time offender to have what is known as an ignition-interlock device placed in their automobile. Currently, interlock devices are only used for repeat offenders and have been criticized for routinely malfunctioning and being an overwhelming embarrassment to those forced to utilize them. Interlock devices require the driver to blow into a machine before their automobile will operate. These devices must be leased by a private outside agency at a cost to the offender. The current state of DUI minimum mandatories absent this new requirement, places driving under the influence penalties at the top of the list for being the most numerous as compared to other offenses. The overwhelming amount of penalties imposed on an individual convicted for this offense has the effect of forcing people to take cases to trial that they would otherwise admit guilt to had penalties been reasonable. Such increased legislation has the effect of not only taxing our criminal justice system but effectively over-penalizes some individuals who simply made a mistake and are otherwise law-abiding citizens.

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Posted In: MANDATORY MINIMUMS

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You are with your friends in a bar or restaurant or you stopped in the bar after work to wind down. You have one or two shots, one or two beers, one or two cocktails. Depending you how much you weigh, most likely you are now legally intoxicated.
When a police officer believes he has observed a possible drunk driver while on routine partrol, he will look for the usual manner of behaving while intoxicated (weaving, crossing the center line, driving too slow or too fast, etc.) or for a moving traffic violation/offense that will serve as “probable cause.” This is why a police officer will follow a suspected intoxicated driver at a safe distance to observe a driver’s pattern to determine if their opinion that they have spotted someone intoxicated may be correct.
Officers will develop “reasonable suspicion” that a person is driving while impaired after observing a vehicle from behind. More than likely, the police officer will witness a traffic offense, at which time they have developed “probable cause” to lawfully stop the vehicle and investigate their suspicions. A police officer MUST have probable cause to stop your vehicle.
After stopping a vehicle, the police officer must conduct an investigation to prove his reasoning for the stop, i.e. his proof of probable cause. The proof would be physical signs or evidence indicating intoxication.
The signs a police officer always looks for are a person’s speech, physical movements, eyes and odor. A person’s eyes are probably the most important telltale indication of an impaired driver: the eyes do not lie. This can be proven by the nystagmus test, which results in rapid involuntary oscillation of the eyeballs when a person is intoxicated.
The police officer will ask some simple questions. These, coupled with the operator’s driving pattern, physical symptoms, answers, and odor of alcohol from the driver’s breathing or inside the vehicle, will assist the police officer to form his or her professional opinion of whether or not to reasonably suspect that the driver may have been operating a vehicle on a public highway while either impaired or intoxicated from alcohol or drugs, or both.
If the answer is “yes,” the police officer does have reasonable suspicion to believe the driver is impaired based on their training and experience, and can legally continue to the next investigative step. The officer will ask the driver to exit their vehicle where he will further observe the driver’s physical coordination, speech and general orientation to the location of the traffic stop. They will always ask you if you know where you are.
The police officer will advise the driver that he needs to conduct physical coordination tests. Police officers have undoubtedly encountered a driver who will demand at this point to speak with his or her attorney prior to participating in further tests. A person being investigated for gross misdemeanor driving does not have a constitutional right to consult or have an attorney present before the officer administers any of the field balance tests.

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Posted In: BEFORE YOU GET IN THE CAR

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This just proves the inconsistency with regards to sentencing across the state. A few weeks back we reported that an 18 year old Palm Beach County man was sentenced to an unbelievable 24 years in prison after pleading guilty to DUI manslaughter charges stemming from an accident that resulted in the death of two men. Just a few hours north, in Orange County, 22 year old Brent Hill Lewis, of Vero Beach is expected to plead guilty to similar charges stemming from an April 15, 2006 accident that resulted in the death of his passenger, Nicholas Fisher, 20, from Michigan. Lewis was found to have a blood alcohol content of twice the legal limit the night he lost control of his vehicle causing it to overturn several times and ejecting both of its occupants. It has been reported that Lewis will be sentenced to up to 10 years probation, faces no jail time and will lose his driving privileges for up to 12 years. The plea deal is reported to be entered on Monday, February 4, 2008.

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Posted In: Sentencing Inconsistencies

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James Chadwick, 32, was arrested by the Florida Highway Patrol and charged with DUI this month for what appears to be his 4th DUI charge. In addition to the DUI charge, Chadwick is also charged with DUI manslaughter for the death of a 19 year old woman after his vehicle left his lane of travel, crossed over into oncoming traffic and struck another vehicle head on last June. Chadwick’s blood alcohol content was determined to be .130 on the night of the accident. He was not arrested until this week when he was located at his girlfriend’s apartment. Chadwick, whose license was suspended at the time of the accident due to prior driving offenses, was also charged with driving without a license in an accident that resulted in death or serious bodily injury.

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Posted In: DUI News

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Last week we reported that the star of TLC’s “Little People, Big World” Matt Roloff was in trial facing misdemeanor charges of DUI in his home state of Oregon. Roloff, who failed to provide a breath test and reportedly refused field sobriety tests, defended the charges by arguing he drove erratically because he was not used to the pedals in his wife’s customized van. Judge Donald R. Letourneau handed down the ‘not guilty’ sentence after Roloff’s attorney asked the judge to dismiss the jury after some members of the six panel of jurors performed internet research on various legal definitions and DUI tests against the judge’s instructions not to seek outside information. The Oregonian newspaper reported that the jurors researched Rather than moving for a mistrial, Roloff’s attorney requested the judge rule on the charges.

Judge Letourneau found Roloff not guilty of the DUI charges. He told The Oregonian newspaper that the Oregon Supreme Court found the horizontal nystagums gaze test only 77% accurate and that the state had failed to prove Roloff was DUI beyond a reasonable doubt. The judge did however find Roloff guilty of refusing to take a breath test as well as for failing to stay in his lane of travel. Roloff was fined $742.00 and $103.00 in court fines. Further, Roloff’s driving privileges have been suspended for three years due to a prior DUI diversion program he agreed to enter in 2003 and his failure to take the breath test following his more recent arrest.

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Posted In: Celebrity DUI

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Police Officer’s testifying on behalf of the State in DUI trials often criticize the manner in which a suspect pulled over in response to an officer’s commands. The manner of parking, including distance from the curb, angle of the car, and overall positioning of the automobile will be scrutinized. This, of course, is done to bolster an officer’s claims of impairment and obtain a conviction for the State Attorney. The overall goal will be to establish that parking was conducted in a sloppy manner due to the suspect’s intoxication. Methods of combating such accusations from a defense standpoint include:

(1) Being pulled over by a law enforcement officer creates some level of anxiety in the average person. Such anxiety can lead to uncommon driving/parking practices and irrational responses. Ordinary citizens are conditioned to fear police officers when they are being pulled over and they have grown to learn that being pulled over follows a motorist’s doing something wrong. The stress of the situation more often than not leads to imperfect parking.

(2) Most people believe that pulling over in response to an officer’s lights and siren must be done immediately. This sense of urgency often leads a suspect to be more concerned with getting to the side of the road than with the grace of their parking ability. Pulling over immediately indicates a willingness to obey an officer’s command and to show respect for authority. This sense of urgency can be considered the suspect’s primary concern where to accuracy of the vehicle’s position after coming to a stop is not at issue.

(3) Criticizing of a suspect’s parking ability on the night of their arrest should be pointed out as overreaching on the part of law enforcement officers and used by defense counsel to expose their pre-disposition to obtaining a conviction at all costs.

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Posted In: Officer Observations

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A Palm Beach County boy who was 17 at the time of the offense received a 24-year sentence in Palm Beach County this week after pleading to the charge of DUI. Daniel Espinoza will be close to 40 by the time he is released (considering good time and gain time reductions). The incredibly harsh sentence followed pleas by the boy’s parents to show leniency. Circuit court Judge Gary Sweet, who presided over the matter, was not affected by the boy’s age, his lack of significant criminal history, or strong family connections. Based on my experience, a DUI manslaughter case paralleling the same facts and circumstances generally carries a maximum of a 10-year sentence in exchange for a plea of no contest, regardless of the person’s age. DUI manslaughter cases are never easy. It is almost impossible to avoid sympathizing with the victim’s family as well as the defendant’s family. The sentence for this individual, however, is simply outrageous. To state that this sentence is excessive would be an understatement. If I was counsel on this case I would already be preparing my motion for mitigation of sentence. Daniel Espinoza has accepted responsibility for his actions in pleading no contest to the charge. I am not disagreeing that he should be penalized. Two people were killed as a result of his drinking and driving and it is well understood that pleas to DUI homicides carry prison sentences. Nonetheless, 24 years for an 18 year old seems to shock the conscience.

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Posted In: DUI MANSLAUGHTER

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Matt Roloff, the size star of TLC’s reality show “Little People, Big World” about a family of little people that include Roloff, his wife and one son who face numerous challenges as little people in a big world (the family also includes two normal sized children) is currently in trial on one charge of misdemeanor driving under the influence of intoxicants last summer. Roloff, who is 4 foot tall and regularly uses crutches to walk, was pulled over on a rural road in Washington County, Oregon where Roloff lives after a deputy noticed a white van make a wide turn after leaving a local pub and drive over the yellow double line a few times. Police claim they immediately noticed an odor of alcohol and asked Roloff to step out of the van. Roloff, who was driving his wife’s van, reportedly failed sobriety tests and refused a breath test. Police deputies on the scene noted that Roloff was argumentative and uncooperative with police during their investigation.

Roloff’s attorney, Robert Themmel, however argued to jurors today that Roloff reacted “the only way he knew how to a deputy who wouldn’t listen to him”. During opening statements, Thuemmel told the jury: "He is a man whose entire life has brought him to a place where, to stand up for himself, has taught him to be a little bit more assertive, more combative." Adding: "He speaks out more for himself than some." Thuemmel also intends to argue that Roloff, who admitted to having one beer that evening, was having problems reaching the pedal because he was not used to the height of the pedal extensions in his wife’s van and that he refused the breath test because he did not “trust” the deputy.

The jury is expected to deliberate today.

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Posted In: Celebrity DUI

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Reports from around the State of Florida appear to indicate that the overall number of DUI arrests were down from previous years. The combination of increased police presence, DUI checkpoints and alternative safe transportation options for drivers who had a few too many drinks may have contributed to the overall reduction in arrests. Florida Highway Patrol began advertising its ‘zero tolerance’ program weeks before the holiday season began and advised Florida citizens that every available trooper would be on the roads looking for aggressive and hostile drivers. Other organizations played their part in helping. Tow truck operators offered drivers free tow rides home on New Years Eve for those that drank and considered driving. Beer maker Anheuser-Busch donated $50,000.00 to tow truck operators in order to allow them to participate in this program. This was the 10th year of Anheuser-Busch’s “Tow to Go” program. Over 100 South Florida tow truck operators participated in the program. Perhaps the biggest deterrent for the holiday season was the unfortunate incident involving former New York Yankee player Jim Leyritz who was charged and arrested with DUI manslaughter and DUI property damage in connection with the death of Fredia Ann Veitch, a 30 year old Plantation woman and mother of two, on the early morning of December 28th, 2007. Leyritz, who was on his way home from a birthday party thrown in his honor, reportedly crashed into Veitch, who was not wearing her seatbelt, after running a red light. Police reports indicate that Leyritz smelled of alcohol, failed field sobriety tests and refused to take the breathalyzer. Two blood samples were taken once police received confirmation of Veitch’s death. Details of his blood alcohol content have not yet been released; however, it would seem for now that a combination of all of these factors contributed to an overall safer holiday season.

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Posted In: DUI Alerts & Scheduled Sobriety Checkpoints

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A Tampa man was arrested and charged with suspicion of DUI on New Years Day. 59 year old Edward Jackson was seen weaving in and out of traffic that morning when police pulled him over. He was also reportedly traveling 30 MPH in a 50 MPH zone. Jackson reportedly smelled of alcohol and stumbled around during field sobriety tests. Police noticed an 11 year old sitting in the front passenger seat of Jackson’s vehicle and charged him with child neglect in addition to DUI and refusing to sign a summons. Jackson’s bail was set at $8,250.00.

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Posted In: DUI WITH CHILDREN IN VEHICLE

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As of July 1, 2008, Florida jurors will be able to pose questions to witnesses during the trial. Until now, the questioning of witnesses in a criminal trial has been strictly limited to only the prosecution and the defense. Allowing the jury to submit questions is considered one of the most controversial reforms in our jury system allowed by the Florida Supreme Court.

The questions will be submitted in writing by the jurors and the court will decide if such a question is permissible under the Florida Rules of Evidence. Based on my experience, the vast majority of questions submitted will be impermissible, challenging the court to fashion an answer that will not confuse or prejudice either side. Lawyers spend much time in the pre-litigation stages either agreeing what evidence will come in at trial or having the judge decide in suppression hearings. The questioning of witnesses is a thought-out process prepared far in advance of the trial date. Areas in which the jury may wish to make inquiry have not been overlooked or neglected by the lawyers litigating the case. It is entirely unlikely that allowing jurists to question witnesses will do anything but to further confuse individuals charged with such a great responsibility.

Florida judges have been very vocal about their fear that allowing such questions will lead to a vast amount of appeals. There is also apprehension that the questioning may throw a wrench into the attorney’s strategies.

State attorney’s offices in Florida seem to favor the new law stating that they want the jurors to learn the truth in the trial. This logic is flawed when you consider that most questions may not be raised as a matter of law. The questioning of witnesses by jurors will also further delay an already laborious process. The issues may get confused and jurors may become prejudiced. Questions as to whether or not a defendant had been in jail or arrested prior may not be allowed under the evidence code. Fashioning a reason for not being able to answer such a question by the court is going to raise some significant arguments by the prosecution and the defense. It is likely that the jurors will inquire into areas such as hearsay, prior bad acts and irrelevant matters. The way that a court explains that these types of questions are inadmissible will certainly lead to speculation on a jurors part.

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Posted In: Trial Procedure

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