Florida DUI Lawyer Blog

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.

Posted by William Ryan Moore | Permalink | Email This Post

Posted In: Trial Procedure

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The L.A. District Attorneys Office charged ‘Risky Business’ star Rebecca De Mornay, 48, with two counts of misdemeanor driving under the influence in connection with her October 30, 2007 arrest. De Mornay, who is best known for starring opposite a young Tom Cruise in the popular 80’s movie, was pulled over on famed Sunset Boulevard and arrested after allegedly failing field sobriety tests. She reportedly had a blood alcohol content of .09.

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Posted In: Celebrity DUI

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Former O.C. star, Mischa Barton, was arrested last night in West Hollywood, California. Barton was pulled over after police saw her “straddling two lanes of traffic” and change lanes without signaling at around 2:45 a.m. In addition to being charged with suspicion of DUI, Barton, was also charged with driving without a license. Reports also indicate she was charged with possession of a controlled substance. Barton was arrested, booked and released this morning at 10:00 a.m.

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Posted In: Celebrity DUI

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Videotaping road sobriety exercises is standard procedure in even some of Florida’s smallest counties. Miami-Dade however, still rejects the use of in-car video camera systems for its DUI task force. The cost of the dash mounted patrol car camera is approximately $5000. Equipping the cars of every DUI task force officer wouldn’t make a dent in the overall budget of the Miami-Dade police force. Nonetheless, task force officers don’t have cameras and videotaping is not standard procedure.

In direct contrast, in Broward and Palm Beach County where videotaping is standard procedure, an officer’s failure to do so during a DUI investigation may allow for challenges based on “failure to videotape” motions (A/K/A failure to preserve evidence motions). In Miami-Dade however, the issue is not the failure to preserve evidence but the failure to gather and preserve evidence in a particular manner. As videotaping is not standard procedure in Miami-Dade, the courts have held that law enforcement is not required to collect evidence in a manner dictated by the accused. Consequently, at this time, failure to preserve evidence motions based on a lack of videotape are not successful. Videotaped evidence can be a double-edged sword. I have forgotten more cases than I remember where videotape evidence exonerated a defendant of their DUI. By the same token, a poor videotape that is admissible into evidence can be extremely damaging to a defendant’s case.

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Posted In: Miami Dade Failure to Videotape

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This is a first. A man arrested for DUI in Australia might have offered the most unique defense to driving under the influence yet: mosquitoes. The man, Stephen James Diggs, 30, who had been fishing with a friend, decided to drive home after having several beers and with a blood alcohol content of .236 because the mosquitoes were “absolutely horrific”. Diggs told police he took the risk of driving home drunk to avoid being bitten any further. A unique defense? Yes. A viable one? Actually it is.
Necessity is an affirmative defense to DUI. Only seen in very unusual fact patterns, affirmative defenses can lead to the acquittal of such a charge. Such a defense should be used with caution, however, as it requires the defendant to admit that he committed the crime but was justified in doing so. Generally, the defense of Necessity requires that the accused establish the following:

1. That there was a threat of injury
2. The danger was imminent
3. That driving was required to avoid the injury

If the facts in this case establish that the accused was in an area infested with mosquitoes and that his automobile was an open vehicle which could not have provided shelter, I think that he has a great case. If his automobile had windows and could have provided a safe haven, however, the defense of necessity would be unavailable to him. At least under Florida law.

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Posted In: The Defense of Necessity

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In Florida we have seen several counties whereby persons arrested for DUI have their names and facts surrounding the incident posted in the local newspaper. One county attorney in Arizona however, has taken humiliation of convicted individuals to a whole new level. Maricopa attorney, Andrew Thomas, has financed a billboard campaign and internet site which displays the mug shots and names of suspects who have been convicted for DUI. It is uncertain at this point whether slandering suspects will actually lead to a reduction in the amount of DUI cases and is criticized as being relatively harsh for alleged crimes that lack the culpability such as robbery or crimes of violence.

The Florida legislature has enumerated such a long list of mandatory minimums for people that have been convicted of DUI that I find it inherently wrong for the elected top prosecutor to take it into his own hands to punish individuals even further.

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Posted In: Overzealous Prosecution of DUI

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I have written many articles over the years explaining how officers will exaggerate innocent behaviors in order to assist prosecutors in obtaining a conviction. The manner in which a DUI suspect exited his or her vehicle is often criticized and described in such a way as to bolster the State’s case. The most common method of doing this is by stating that the DUI suspect had to hold on to the door while exiting the vehicle. This obviously implies that the support of the car door was necessary to keep the suspect from falling to the ground. Hearing such statements frequently in DUI trials and motion practice, I am constantly on the lookout in my daily life for people exiting their cars. Whether it is in the parking lot of the local courthouse or the grocery store, I see lucid people grab on to their car doors as they exit their automobiles. Not for a second do I think that all of these people are impaired. All the same, a prosecutor will use this piece of evidence to every extreme in order to show impairment of a DUI defendant. Such evidence could even be considered quite damaging to the defense’s case if not contradicted by defense counsel. When properly handled, however, such evidence is not only undermined, but can actually be turned against the prosecutor to show overreaching on the part of law enforcement and the state attorney’s office alike.

The conditions of the pavement, the defendant’s physical condition, the design of the defendant’s automobile, or merely just habit, are all very reasonable explanations as to why one would hold a portion of their car while exiting. It is always necessary to point out that in 99.9% of the cases, the stopping officer had never met an individual prior to stopping his or her vehicle. The police officer had never seen the manner in which an individual exits the car every time it is parked. The defense attorney should always remember when questioning the officer to get into these details prior to asking the officer why he ordered someone out of the car in the first place. Obviously, what we are doing here is setting up the Motion to Suppress.

For non-attorneys reading this article, it is important to remember that we have constitutional rights and that officers cannot simply order you out of your car. They know this and will come up with all kinds of clever ways to explain their actions to defense attorneys. They know that violating an individual’s constitutional rights will result in a suppression of evidence and a dismissal of their case.

A line of questioning as to whether the officer had ever seen the way that an individual exits his vehicle prior to the stop and working backward can occasionally throw an officer off. Being caught off track may cause him to admit unintentionally that a suspect was ordered out of his vehicle without concern for officer safety or reasonable suspicion that a crime had been committed.

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Posted In: Officer Observations

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Police departments all over the country, including right here in South Florida, are preparing for the busy holiday party season by setting up extra DUI task forces and DUI checkpoints. The Florida Highway Patrol have indicated they are instituting a zero tolerance police for aggressive, impaired and dangerous drivers. Expect extra police presence on South Florida roadways from midnight tonight until New Years Day.

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Posted In: DUI Alerts & Scheduled Sobriety Checkpoints

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Popular Latin rapper, Pitbull, (real name Armando Perez) was arrested on suspicion of DUI last night in Miami after passing an unmarked police car doing a reported 93 MPH in a 55 MPH zone. According the police report obtained by TMZ.com the rapper refused to get out of the car. The officer detected a strong odor of alcohol coming from Pitbull and ordered him out of the car to perform field sobriety tests which he reportedly failed after losing his balance and being unable to perform the finger-to-nose test. Pitbull was arrested and released on $1,000.00 bail.

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Posted In: Celebrity DUI

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With each passing year we are seeing more arrests of law enforcement officers charged with driving under the influence. Having been a former prosecutor over a decade ago, I can tell you with absolute certainty that most people involved in law enforcement from desk clerks all the way up to assistant state attorneys are given a warning 99% of the time when stopped for DUI. Nonetheless, there still is a breach of the fraternal order every so often and arrests of one’s own are, in fact, made on occasion. The most recent incident involved Miami-Dade police officer Jeffrey Jasnish. A police officer since 1983, Jasnish was discovered swerving across lanes of traffic in his patrol car and stopped under suspicion of DUI. The results of his breath test, according to the Intoxilyzer 8000, revealed that he was three times the legal limit in Florida. It is uncertain at this time what disciplinary action, if any, will be taken against officer Jasnish.

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Posted In: OFFICERS ARRESTED FOR DUI OR MISCONDUCT

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Last month, 1980’s movie icon Mickey Rourke was arrested for driving under the influence on a Vespa in Miami Beach. The Miami Herald is reporting that Rourke’s defense to the DUI charge is that the Breathalyzer used by the Miami Beach Police Department malfunctioned. Rourke’s attorney maintains that when Rourke first took the test the machine gave a blood alcohol reading of .081, just over the legal limit in Florida. However, a second test was administered later on and Rourke’s blood alcohol reading was said to be a .074. It is not determined whether the Miami-Dade County State Attorney’s office will drop the charges filed against Rourke.

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Posted In: Celebrity DUI

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BRADENTON - On Friday around 10:30 pm. the Manatee County Sheriff's Office hosted a Multi-Agency DUI Checkpoint at 1300 block of Cortez Road West.

Bradenton Police Dept., Longboat Key Police Dept., Manatee County Sheriff's Office Reserve Unit as well as several Cadet units from the Sheriff's Office participated in the checkpoint.

The results of the Checkpoint are as follows; 555 cars went through the checkpoint of those 60 were diverted into a traffic citation line for further investigation. Of those 60 2 were arrested for DUI, 5 were arrested for Driving While there License was Suspended and 1 Misd. theft warrant.

There were 24 other citation written for various infractions to include Registration and Drivers License violations.

The next checkpoint will be Jan. 18, 2008.

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Posted In: LOCAL DUI CHECKPOINTS

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No, not Ralph Macchio. The other guy who got his butt kicked. Sean Kanan who was arrested and charged with DUI in Los Angeles on August 18, 2007 with a blood alcohol of over .08% pled no contest to the misdemeanor DUI charges. He was sentenced to serve 96 hours in L.A. County jail, followed by five years of probation. In addition, the judge ordered he pay fines and complete an 18 month alcohol education program. Wonder if Mr. Karate Kid will serve mere minutes of his sentence like some of the popular female celebrities in L.A.?

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Posted In: Celebrity DUI

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In Florida the legal limit for alcohol measurement is .08% BAC (breath alcohol content). At that measurement you are legally drunk and will be arrested and taken to jail if you are caught driving a car.

If you weigh between 90 – 109 pounds and have 12 ounces of beer, four ounces of wine or one and a quarter ounces of 80 proof liquor (a shot glass is one and a half ounces), your BAC will been between .05 and .08%. At this measurement you are considered definitely impaired and your chance of an accident is increased up to 300 percent or more. If you have another drink your BAC goes up to .08% or over, and if you have any more alcohol, another beer, another shot or more wine, you are considered legally drunk. Your function and judgment are seriously affected. Consider the fact that when you have consumed two 12 ounce beers, or two shots, or two small glasses of wine you are considered legally drunk and cannot drive without taking the chance of getting arrested for DUI.

If you weigh between 110 – 129 pounds and have 12 ounces of beer, four ounces of wine or one and a quarter ounces of 80 proof liquor your BAC will be the same as noted above, and you are legally drunk.

If you weigh between 130 – 230 pounds and have the same amount of alcohol as mentioned above, your BAC will only be .01% to .05% and you are not considered legally drunk, but some loss of judgment and coordination occurs, and your thinking will be dulled.

If you weigh between 90 – 129 pounds and have that second drink in an equal amount as the first, your blood alcohol will go up to .08% and you are now legally drunk.

If you weigh between 130 – 189 pounds and have three or more drinks of alcohol equal to 12 ounces of beer, four ounces of wine or one and a quarter ounces of 80 proof liquor, your BAC will be .08% or higher and you are now legally drunk.

If you weigh between 190 – 230 and up and consume three or more drinks of alcohol equal to 12 ounces of beer, four ounces of wine or one and a quarter ounces of 80 proof liquor your BAC will be above .08% and you are legally drunk.

A person’s blood alcohol concentration will vary according to body build, sex and your current health status. Other factors that will temporarily lower a person’s tolerance level to alcohol are fatigue and stress.

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Posted In: The Legal Limit

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Issues that need to be covered in questioning the presumptive panel will vary, depending on the specific facts of any DUI case. Preparation for this most important aspect of any DUI trial must always conform to the evidence that will be presented throughout the adjudicatory hearing. Factors that must be covered in all DUI cases however, include the following:

A presumptive jurors age and gender – statistically the best juror to sit on a DUI case is a male aged 22-26.
Ethnicity and education – white males who are college-educated are also excellent candidates to sit as a tryor of fact in a DUI case.
Attitudes towards consuming alcohol – for obvious reasons, a presumptive jurors feelings about drinking in general are paramount. Obviously, individuals with strong negative feelings about drinking should be excluded at all costs. A DUI defense attorney will always seeks to choose jurors that freely drink alcohol.
Driving history – persons who have had traffic infractions and/or accidents in recent years should be sought out as potential jurors.
Consuming alcohol and driving – jurors who understand it is not illegal to have a drink and drive an automobile easily understand that it is not a crime until such a person’s normal faculties are impaired by alcohol.

See article by William Moore entitled, It is Not Illegal to Drink and Drive.

The State’s burden – Individual’s should not be chosen to sit in judgment of a DUI defendant unless it is abundantly clear that they understand the State’s burden of proof and how it pertains to each and every element of a DUI case.

Although these are just a few areas that must be covered in jury selection, the above list, while relatively simple, must never be ignored. Choosing jurors that have an open mind and who will truly listen to the facts of the case and give this evidence the creditability that it deserves often puts the defense at an advantage at trial.

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Posted In: Jury Selection

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Issues that need to be covered in questioning the presumptive panel will vary, depending on the specific facts of any DUI case. Preparation for this most important aspect of any DUI trial must always conform to the evidence that will be presented throughout the adjudicatory hearing. Factors that must be covered in all DUI cases however, include the following:

A presumptive jurors age and gender – statistically the best juror to sit on a DUI case is a male aged 22-26.
Ethnicity and education – white males who are college-educated are also excellent candidates to sit as a tryor of fact in a DUI case.
Attitudes towards consuming alcohol – for obvious reasons, a presumptive jurors feelings about drinking in general are paramount. Obviously, individuals with strong negative feelings about drinking should be excluded at all costs. A DUI defense attorney will always seeks to choose jurors that freely drink alcohol.
Driving history – persons who have had traffic infractions and/or accidents in recent years should be sought out as potential jurors.
Consuming alcohol and driving – jurors who understand it is not illegal to have a drink and drive an automobile easily understand that it is not a crime until such a person’s normal faculties are impaired by alcohol.

See article by William Moore entitled, It is Not Illegal to Drink and Drive.

The State’s burden – Individual’s should not be chosen to sit in judgment of a DUI defendant unless it is abundantly clear that they understand the State’s burden of proof and how it pertains to each and every element of a DUI case.

Although these are just a few areas that must be covered in jury selection, the above list, while relatively simple, must never be ignored. Choosing jurors that have an open mind and who will truly listen to the facts of the case and give this evidence the creditability that it deserves often puts the defense at an advantage at trial.

Posted by William Ryan Moore | Permalink | Email This Post

Posted In: Jury Selection

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It has been said that the best juror for a DUI case is a white male, age 22-26, who is either in college or college-educated, has been in at least one accident in the past four years and drinks alcohol recreationally. Such individuals are more likely to relate to the defendant and can emphasize with being in the defendant’s position. Jurors that can relate to a defendant in this way will more often acquit a DUI defendant by mere virtue of being able to see themselves in the same predicament. Jury selection is the first opportunity for a criminal defense attorney to make a favorable impression with the people who will ultimately be sitting in judgment of their client.

“The bad facts” of the defense in any DUI case should be made known to jurors in selection in an effort to take the wind out of the prosecutor’s sails and avoid the jury’s shock as the evidentiary portion of the trial unfolds. Most important is the defense attorney’s obligation to educate jurors as to the applicable legal concepts involved in a DUI trial.

In jury selection, open ended questions should always be asked, requiring a dialog between the presumptive juror and the defense attorney. A conversational type of questioning is certainly the best method to reveal any biases that individual jurors may have. Individual biases may always influence a juror’s decision and must be determined prior to their being allowed to sit in judgment.

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Posted In: Jury Selection

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The Wake Forest University School of Medicine has conducted significant research on the effects of one’s normal faculties and mental state that mixing energy drinks (such as Redbull) with alcohol can have. The findings of the University show that the combination of an energy drink with alcohol doubles certain risks in contrast to where just alcohol would be consumed absent the energy drink. Included in the risks is “being in a vehicle whereby the driver is intoxicated.” It is unclear at this time as to whether any research was conducted as to the risk being increased for an individual consuming alcoholic beverages mixed with an energy drink as it pertains to actually driving under the influence. The study further revealed that one’s awareness of the symptoms of being intoxicated is less apparent. In other words, people are unable to tell if they are inebriated or if their normal faculties are impaired. Alcohol and energy drinks work against each other as an energy drink is a stimulant and alcohol a depressant. Drinking the two together does not effect the level of intoxication yet prohibits people from realizing the amount of alcoholic beverages that they have consumed. In essence, the blood alcohol level remains the same, however, the feeling of being drunk is masked, at least mentally, by the caffeine in the energy drink. It is no surprise that people combining alcoholic drinks with energy drinks tend to stay out longer and drink more. The mixing of caffeine with liquor has grown tremendously in the last two years and continues to be on the rise.

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Posted In: VODKA AND REDBULL.

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Finally we have reached the end of a year long battle for our firm’s client. The battle has come to a conclusion that we are thrilled with. In the wake of a class action lawsuit against the Broward County Department of Corrections, we have asserted the very real fact that jail sentences would equate to a death sentence for our HIV positive clients in South Florida. The courts have listened. I commend County Court Judge Stacy Ross for rendering a fair decision in choosing not to sentence my client to jail following his violation of probation due to the fact that we presented competent evidence that the Broward County Jail is unable to provide up to the hour care for inmates suffering from HIV.

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Posted In: JAIL SENTENCE FOR DUI EQUATES TO DEATH SENTENCE

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