Florida DUI Lawyer Blog

After years of defending DUIs in South Florida you would think I’d have developed some resistance to the sick feeling that I get each time I read about young people who get arrested for DUI manslaughter. I can tell you I haven’t. I have had the opportunity to discuss with homicide prosecutors the emotional toll it takes on them having to prosecute 19 and 20 year olds for DUI manslaughter and to seek significant prison terms. Almost always, the defendants being charged are otherwise good kids, most often in college, and have no criminal history. Nonetheless, a poor decision would cost not only the lives of innocent motorists but their own.

One former prosecutor who now sits as a Judge explained to me while sitting in court one afternoon that it is the most difficult thing in the world to have the family of a victim express their pain to you on a daily basis while at the same time having the families of the defendant, who did nothing more than make a poor choice, beg you not to send their only child to prison.

Recently in South Florida, two separate individuals were arraigned in Palm Beach County on Friday, October 26, 2007 for separate charges of DUI manslaughter. Rachel Ritlop, only 18 years old, is charged with two counts of manslaughter stemming from a March 31st incident whereby an elderly man and his wife were killed. In another incident, Ryan Parantha, aged 26, was charged with vehicular homicide following an incident where his automobile veered out of his lane and crashed into a concrete pole resulting in the death of his passenger.

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Posted In: DUI MANSLAUGHTER

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Despite an investigation that Ann Marie Gordon, a Seattle state toxicology lab manager, had sworn in affidavits that she had “examined and tested” solutions that she had not, in fact, tested, no charges were filed. At this time, absent showing such misconduct resulted in some effect in the results of the breath tests, all evidence may still be properly admitted in all cases against defendants charged with DUI.

It is my opinion that a direct correlation between a state actor’s perjury and the results of breath tests is irrelevant rather that such evidence obtained with a taint of such outrageous police misconduct should be excluded in an effort to deter similar future conduct.

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Posted In: TOXICOLOGY LAB MANAGER NOT PROSECUTED FOR FALSELY CERTIFYING QUALITY ASSURANCE SAMPLES.

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Having been a former prosecutor I know the “brotherhood” of law enforcement all to well. It’s been over a decade now that a former colleague of mine was arrested for DUI despite his being an active prosecutor in South Florida at the time. The buzz in the legal community was disbelief than an officer had arrested one of their own prosecutors and it was expected that the wrath from such behavior would eventually come back to haunt her. Sure enough, the officer making the arrest was shunned to the point of having to relocate to a department in North Florida. Such practices of law enforcement just don’t sit well with the general public, especially when so many good people have been arrested and charged with DUI. While zero tolerance is a term of art specific to making an arrest of every minor suspected of DUI, it can be that a “zero tolerance” law is in effect in the literal sense in Florida, calling for an arrest of every actual suspect in that the offense of DUI is absolutely a politically charged crime allowing no discretion to cut someone a break, unless of course, if you are a police officer or a family member of one.

Take for instance the wife of a Manatee County police officer who was driven home after being detained at a DUI checkpoint rather than arrested. Despite her reeking of alcohol at the scene, the police officer stated that Wendy Getman did not appear to be intoxicated. Why then was she not required to perform field sobriety exercises. As with most checkpoints this day, the magic number for arrests were made in addition to over a hundred traffic citations being written, which are of course, very lucrative to the County.

As for Wendy Getman, the wife of Deputy Brett Getman, well she was given a break just this time. But if I had to put my money on it, Mrs. Getman has a license to drive impaired and I would bet the farm that this isn’t the first time she’s been cut a break with respect to driving offenses. Just check the statistics. Police officers and their families are rarely, if ever cited, and doesn’t that just burn?

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Posted In: POLICE OFFICERS AND THEIR FAMILIES EXEMPT FROM DUIs IN FLORIDA

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An attorney has a responsibility to force the court to consider treatment options in lieu of jail for persons suffering from life threatening illnesses. I recently had the opportunity to represent an individual who had been charged with his third DUI (a felony under Florida law punishable by five years in prison). This individual had been coerced into pleading out his two prior DUI charges at the advice of his then attorney. A review of both of these files sadly indicated that each was very defendable and guilt never should have been admitted. As luck would have it, his third felony DUI arrest left no opportunity for a dismissal, suppression of the evidence, or even a likely success should the case proceed to trial.

Realizing the stakes are so much higher in felony court in terms of a prison sentence, our client felt it in his best interest to plea and seek mercy from the court despite the 30 day minimum mandatory and trend of Broward judges to sentences individuals for felony DUI anywhere from nine months to a year and a half in the Florida State prison system. What this meant to my client would be his HIV condition transcending into full-blown Aids due to the inability of the Broward County jail system to adequately supervise patients inflicted with the virus and timely administer their life-saving medications.

Kevin Sauve, a former inmate of the Broward County jail system, is one of many casualties of the Department of Corrections inability to get life-sustaining drugs to its inmates. Defense attorneys who fail to bring this problem to the court’s attention are also to blame for a situation that turns a commonly issued jail sentence to a death sentence for those suffering from HIV. Suave, 36, a former college admissions officer went three months without his HIV drugs following his May 1st, 2007 arrest. When he did receive medication, it was the wrong kind.

A common practice in the Broward County jail in is to replace one type of HIV medication for another when the correct prescriptions are unavailable or on-staff corrections physicians disagree with the patient-inmate’s primary care physician.

According to HIV specialist, Dr. James Luckett, replacing of HIV medication is not only toxic to the patient, but paves the way for one to become immune to the effects to the life-saving drug. In some cases a patient’s failure to take his prescribed medication for a period of only six hours will render him immune to its effects.

In patients who have suffered from HIV for many years they are limited to the last line of prescription drugs administered to them. Becoming immune leaves them with no other option but advancing into full-blown Aids and ultimately death.

In a felony DUI sentencing, two crucial points to remember are (1) that the Judge may consider treatment in lieu of a mandatory incarceration sentence; and (2) whether the jail system has the ability to render care to somebody suffering from a life-threatening illness. The jail system in South Florida has absolutely been put into question. In a Sun-Sentinel news article dated August 21, 2007, staff writer Bob Lamendola, noted three individuals who had progressed from HIV to full-blown Aids in the three month period of their incarceration with the Broward County Department of Corrections; they are Richard Hardwick, age 52 of Deerfield Beach, Keven L. Davis, age 33 of Deerfield Beach, and Joann Marie Christian, age 41 of Pompano Beach. I have pulled all three court files to determine if any argument was made on their behalf by their respective defense attorneys seeking their release from jail, due to the fact that required medications would not be forthcoming. I will post the results of my findings in a future blog.

The respective South Florida State Attorneys Offices naturally deny any allegations that inmates have not been receiving needed care despite an overwhelming amount of complaints filed by inmates. Dr. John May, who oversees jail care in eight Florida counties has been quoted as saying that he is “hurt” by such allegations. To date I have seen no creditable evidence presented in the form of testimony by any South Florida State Attorney validating that the jail system is protecting its inmates in this regard. To the contrary, social workers involved in aftercare all the way to primary care physicians are quick to point out the sharp decline in the health of infected persons immediately following incarceration in a South Florida jail.

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Posted In: JAIL SENTENCE FOR DUI EQUATES TO DEATH SENTENCE

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Bill Murray, the star of great movies like Caddyshack, Ground Hog Day, and The Razor’s Edge, was arrested for DUI in Stockholm, Sweden. Following a golf tournament, Murray was pulled over while driving his golf cart through downtown Stockholm.
A Detective-Inspector said Murray refused to take a breath test citing American legislation, so he “applied the old method – a blood test.” Murray was released and it is believed he returned to the United States.
The Detective-Inspector stated Murray would be charged with DUI if his BAC exceeded the legal limit. Murray signed a document admitting he was driving drunk and allowing a local police officer to plead guilty for him if his case goes to court. We hope the officer doesn’t have pay Murray’s fine.
Sweden’s BAC limit is only 0.02 percent. According to the U.S. National Highway Traffic Administration, Sweden’s penalties for DUI range from fines for a first offense with a BAC between 0.02 and 0.10 percent to a possible prison sentence of 1 to 2 months for a BAC over 0.10 percent with aggravating circumstances. Unlike the United States, Sweden imposes progressive fines based on income.

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Posted In: Celebrity DUI

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On November 8, 2007, Mickey Rourke was arrested for driving under the influence in Florida.

Rourke was arrested while operating a Vespa motor scooter with a woman on the back between the hours of 4 and 5 a.m. Rourke was stopped for allegedly doing a U-turn in front of a police officer forcing him to activate his brakes. Rourke allegedly failed roadside sobriety exercises and exceeded Florida’s blood alcohol limit by only .001. How ridiculous. If Rourke pleads either guilty or no contest to this charge, I am going to be amazed. Why these celebrities are not fighting these DUI’s is beyond me. Even without seeing the police report, or DUI video, if one exists in this case, I’m confident that the case is absolutely defendable due to the low blood alcohol evidence obtained by the Intoxilyzer.

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Posted In: Celebrity DUI

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In another celebrity arrest, T.V. host Gary Collins was booked for driving under the influence on Tuesday night. Collins is alleged to have caused an accident involving a total of four vehicles. Injuries included one individual being taken to the hospital after being knocked unconscious from the impact.

Gary Collins is best known for his work in the 80’s T.V. show “Hour Magazine.”

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Posted In: Celebrity DUI

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Michael Yow of Florida pled guilty to DUI involving serious bodily injury and was sentenced to a five-year prison term followed by ten years probation stemming from an accident occurring on September 3, 2004. Following his plea in the criminal courts, a personal injury case ensued whereby the Lakeland family he crashed into was awarded approximately $50 million in damages resulting from Yow’s negligent act of operating a vehicle while impaired by alcohol.

Mario Ladler II, the named victim in the DUI case was four years old at the time of the accident caused by Michael Yow. His frontal lobes were damaged in the accident when pieces of his skull were pushed into his brain. According to doctor’s testimony he is now living at the Florida Institute for Neurologic Rehabilitation in Wauchula, FL. It is Michael Yow’s plea of guilty in the State court that was the primary force in obtaining the award of $50 million against him without having to otherwise prove that he was at fault for causing the accident.

Often, criminal defense defendants do not consider the civil ramifications to entering into a plea in the State court. In the matter of DUI where a minimum mandatory requires adjudication, such pleas for leniency will almost always result in the commencing and success of a civil action against the defendant.

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Posted In: FLORIDA DUI CASE RESULTS IN $50 MILLION VERDICT.

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Florida Attorney General Charlie Crist is throwing his support behind a plan to create a Florida statewide computer database designed to cut down on prescription drug abuse.
The database would keep track of patients’ prescriptions. That would allow doctors and pharmacists to discover anything unusual about a prescription.

Driving under the influence of the prescription anti-anxiety drug Xanax and alcohol can be very dangerous, according to a story in the St. Petersburg Times. Unfortunately, Florida police have been encountering more and more drivers who are under the influence of this mixture.

Florida's Pinellas County found that 177 DUI suspects had Xanax in their systems last year. While that figure may not seem like a lot at first, compare it to the number from 1998, when Xanax was prescribed to fewer people and found in only four drivers suspected of being DUI.

Xanax is generally known as alprazolam and prescribed to treat panic disorders. While this drug is not as strong as methadone or even as popular as some painkillers, Xanax does intensify the intoxicating effect of alcohol. To make matters worse, the pill can create a euphoric feeling within users, making it popular for people looking for a quick "high." Statistics exist stating that 37.5 million prescriptions of Xanax were written last year; an increase of nearly 8 million prescriptions from 2005. Furthermore, Xanax is easily available illegally and can be purchased from people with prescriptions or from less than reputable Web sites. It is believed that the combination of Xanax with alcohol may be as potent as three drinks.

Hillsborough Sheriff's Sgt. Ronald Harrison works in a Florida DUI task force by the name of Operation 3D and said in the story that he encounters drivers on all sorts of drugs. With that said, he ranked Xanax, cocaine and marijuana as being the most common drugs that suspects are found to be under the influence of during arrests.

There is a report by the Florida Medical Examiners Commission stating that 456 people overdosed on alprazolam last year. In fact, this drug was just behind cocaine, methadone and the painkiller oxycodone in terms of drugs causing the most overdoses in the state of Florida in 2006.

The story behind Xanax teaches some important lessons. To begin with, prescription drugs should only be used by people to whom they are prescribed. Xanax and other prescription drugs can be a very dangerous combination with alcohol. What might seem like one drink may be equivalent to a couple more when under the influence of a prescription drug like Xanax. If you've been arrested for Xanax DUI or driving under the influence of another drug or alcohol, speak to a local DUI attorney as soon as possible. Sponsoring DUI attorneys can look at the details in your case in more detail and help you proceed. Being charged with DUI is nothing to laugh about, so don't delay in getting in contact with an experienced DUI lawyer.

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Posted In: DATABASE TO TRACK PRESCRIPTION DRUGS

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The Designated Drivers Association (DDA) is a non-profit organization that organizes teams of volunteers to provide impaired drivers with a free ride home for both them and their vehicles. DDA recognized that many people didn't avail themselves of other designated driver programs because it would require a morning-after trip to retrieve one's car. The DDA addressed this issue by creating a system where volunteers work as a team: one volunteer to drive the impaired person home in their own car, and the other to follow in a separate car, in order to drive the first volunteer home.
The DDA does not charge for this service (although gratuities are cheerfully accepted). The benefits of the DDA are obvious: by removing the chief objection to other designated driver programs, and rendering the services free of charge, the DDA encourages impaired drivers to stay off of the road at no inconvenience to themselves.
DUI LAWS recognizes this innovative effort by the DDA, and is committed to working closely with the Designated Drivers Association to help them spread their free service throughout the United States. DUI LAWS will continue to support the DDA by inviting them to participate in any DUI LAWS events. Since both DUI LAWS and the DDA aim to help decrease the number of alcohol related arrests and accidents, it's a natural fit for both organizations to work together.
The DDA's goals are:
Increase public awareness of the dangers of driving while impaired.
Educate people about the positive choices they can make concerning impaired driving.
Reduce the number of impaired drivers on the roads and highways thus preventing injuries, deaths and saving the community millions of dollars.
Further understanding of the DDA- a positive, proactive, unique alternative to impaired driving.
Establish a Scholarship Fund - to help children whose lives have been affected by DUI tragedies.
These are laudable goals. Qualified lawyers are not lobbying on behalf of the impaired driver when they support DDA. Rather, the skilled defense lawyer exists for the sole purpose of ensuring that no person is convicted unless the government meets its burden of proving guilt beyond a reasonable doubt. If someone is truly impaired, they should not be driving.

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Posted In: DESIGNATED DRIVERS ASSOCIATION (DDA)

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How about alcohol on the breath being a reliable sign of alcohol intake and intoxication? I have read many, many police narratives wherein lies the sentence, “the subject emitted an odor of alcohol.” The fact is alcohol is ororless, no smell at all. What police officers believe is alcohol on the breath is actually the odor of things found in alcoholic beverages. The estimates made by officers are no more accurate than indiscriminate guesses.

Another myth is that if people refrain from drinking alcohol they are considered “alcohol-free” and cannot be arrested for DUI (the act or crime of driving while affected by alcohol). The truth is that the human body produces its own alcohol supply naturally on a continuous basis, all day and night, seven days a week. This is called “endogenous (growing or produced by growth from deep tissue) ethanol (colorless volatile flammable liquid C2H5OH that is the intoxicating agent in liquors) production.” In some cases people produce enough to become legally drunk and can be arrested for DUI.

Did you ever hear the one that diabetics can be cleared from suspicion although they may be suffering from hypoglycemia, slurred speech, disorientation, staggering, drowsiness, poor motor control, and flushed face?

Hypoglycemia (abnormal decrease of sugar in the blood) causes acetone (a volatile fragrant flammable liquid ketone C3H6O used chiefly as a solvent and in organic synthesis and found in abnormal quantities in diabetic urine). Acetone will record as alcohol on the breath during a breathalyzer test. Diabetics can be falsely arrested for DUI.

Have you ever heard the one about sucking on a penny? It’s supposed to lower a person’s BAC reading…. Blood alcohol content (BAC) or blood alcohol concentration is the concentration of alcohol in blood.) Sucking on a penny will have no effect on BAC results, but will put a bad taste in your mouth.

How about the myth that field sobriety tests can identify drunk drivers. (The Standardized Field Sobriety Test (SFST) is a battery of three tests administered and evaluated in a standardized manner by police officers at roadside to obtain validated indicators of impairment) The test consists of:

• the horizontal gaze nystagmus (HGN)
• the walk-and-turn
• the one-leg stand.

Horizontal gaze nystagmus (HGN) is an involuntary jerking of the eyeball which occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object, like a police officers’ penlight.

A study conducted by scientists at Clemson University involved showing police officers videotapes of individuals taking common field sobriety tests. Unknown by the police officers, the individuals were not under the influence of alcohol, yet the police officers’ professional opinion identified 46% of the sober individuals as too drunk to drive.

A popular myth is that law enforcement officers can’t influence the BAC reading of a breath-testing machine. The fact is, police officers can and do influence BAC readings. The most overlooked error in breath testing for alcohol is the pattern of breathing. The concentration of alcohol changes considerably during a breath. The first part of a breath has an alcohol concentration much lower than the equivalent BAC. The last part of the breath has an alcohol concentration that is much higher than the equivalent BAC. It can be over 50% above the alcohol level. Many police officers know this, and they also know that if the machine contradicts their opinion that the arrestee is intoxicated, they won’t look so good. So, when they tell the arrestee to blow into the machine’s mouthpiece they may yell at him or her to, “Keep breathing! Breathe harder!” This would cause the breath captured by the breathalyzer to be from the bottom of the lungs, near the alveolar sacs, which will be richest in alcohol. This would cause the breathalyzer machine to give a higher, but inaccurate reading.

Some people believe the myth that breathalyzers and other breath testers are accurate. Actually, alcohol breath testers simply lack precision. Attorney Lawrence Taylor explains that “Scientists universally recognize an inherent error in breath analysis, generally of plus or minus .01%. This means that under ideal conditions (a highly unlikely situation), a BAC reading of .08 (the accepted legal limit for alcohol consumption), reflects an actual BAC of anywhere from .07 to .09. That’s a margin of error of 20-30 percent. Would this be considered a reasonable margin of error for an accountant, airline pilot, or bank teller? In court, guilt should be proved beyond a reasonable doubt.

And lastly, there is a myth that alcohol breath testers measure the concentration of alcohol in a person’s blood stream (blood alcohol concentration or BAC). The fact is, breathalyzer machines don’t actually measure BAC. This can only be done by analyzing a blood sample. Law enforcement agencies attempt to measure alcohol in the breath in order to estimate the concentration of alcohol in the blood. That’s why not all states permit the use of breathalyzers. Florida is not one of those states. In reality, alcohol breath testers detect any chemical compounds that contain the methyl group in its molecular structure. Unfortunately, there are thousands of such compounds. Many occur naturally in the human breath or are picked up from disease; inhaling fumes from gasoline, glue, paint remover, celluloid, cleaning fluids, and even “new car smell.”

Some breath analysis machines assume a hematocrit (cell volume of blood) of 47%, although hematocrit values range from 42 to 52% in men and from 37 to 42% in women. A person with a lower hematocrit will have a falsely high BAC reading. The breathalyzer machines appear to discriminate against female suspects.

[The information in this blog was gleaned from various sources, including Alcohol Problems and Solutions, by David J. Hanson, Ph.D.; Wikepedia; Merriam Webster; The Highway Safety Desk Book; Law Professor Lawrence Taylor, Esq.; and Professor of Physiology, Biophysics and Medicine, University of Washington, Dr. Michael Hlastala.]

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Posted In: URBAN MYTHS ABOUT DUI

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