Fort Lauderdale Criminal Attorney Blog

A retired Arizona firefighter was arrested for DUI, despite the fact that he had no alcohol or drugs in his system. This fact was verified not only with a breathalyzer, but also with the analysis of a certified drug recognition expert.

Our Broward County DUI defense attorneys understand that the case has since been dropped. But the fact remains that this man should never have been in handcuffs in the first place. The fact that he was illustrates just how erroneous the subjective presumptions of law enforcement officers can be.

Whether those presumptions were colored by racial bias, as alleged, has yet to be determined, but clearly, something in the system failed here.

According to the local news report, the man said he has adjusted his work schedule to fit his wife’s sleep schedule, as she is an ER nurse who works three, 12-hour night shifts a week.

After two years ago moving to a retirement community in Arizona from Ohio, where he worked as a firefighter, the defendant in this case, who is black, has been pulled over 10 times. He’s also been given four tickets.

That in itself is noteworthy, but nothing was so egregious as the scenario that recently unfolded not far from his home.

It was 11 p.m. and the defendant was running errands, as he often does while his wife is at work. An officer stopped him after alleging he had crossed the white line of his lane. In initiating conversation with the defendant, the officer reportedly said he could tell the man was drunk by simply “looking in your eyes.”

The defendant told the officer he had just left a fitness center swimming pool, where he had been working out. The officer insisted on conducting a series of sobriety tests. The defendant had no issue with this, but told the officer that he had bad knees, a bad hip and was scheduled to have a hip replacement in less than 48 hours. These facts were later backed by medical records.

Other officers arrived for back-up during the sobriety test. One officer asked the other if he was “doing it right” after shining the light directly in the defendant’s eyes.

After conducting the tests, the defendant was ordered to sit on the curb. He couldn’t, on account of his hip problems. He was forced to lay on the ground. He was then placed in the back of the police sport utility vehicle, handcuffed. At one point, he asked if the female officer could scoot her seat up because his hip was aching. She told him to stop his whining.

The defendant was then transported to police headquarters. There, he submitted to a breathalyzer test. The results? A blood alcohol of 0.000. Multiple tests. Same results.

Officers, still convinced for reasons unclear that the defendant was under the influence called a drug recognition expert. He conducted a series of tests. The defendant said afterward, the DRE apologized and said, “I don’t know why they even called me. I would never have arrested you.”

Again, this case illustrates who wrong officers can be. We trust that they have the training and the experience and the general knowledge to know when something is amiss during a traffic stop. But police are not infallible. Whether it’s racism or simply an egregious error in judgement, the police made a mistake. It’s certainly far from the only time it’s happened. Even in cases where you may carry some measure of guilt, an officer’s record and accuracy can make a big difference in the outcome of the case. That’s why it’s imperative that you hire a solid criminal defense lawyer to represent you.
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In anticipation of approximately 2,000 or more visitors descending upon South Beach for weekend-long Memorial Day festivities, dubbed Urban Beach Weekend, Miami Beach Police have requested backup from four other surrounding agencies.

Our Broward DUI defense attorneys understand that each night this weekend, we can expect to see some 400 officers on duty patrolling in the district.

A number of visitors interviewed by a local television station spoke of their desire to party each day of the weekend. They weren’t shy about the ultimate goals: Get drunk and have a good time.

City leaders aren’t necessarily against that. In fact, they said, they want people to have a great time and enjoy the city.

But they do expect a marked increase of alcohol-related arrests, including those for DUI. Visitors may see a not-so-fun side of the city if they are forced to spend the rest of the long weekend in jail, waiting for a judge to hold a first appearance on Tuesday.

Anyone who finds themselves in this trouble should contact a local, experienced DUI attorney before leaving town. With the initial consultation, we can usually give you a general odds of winning your case, what strategies we might employ to fight the charges and what your obligations will be as someone who resides out of the area.

Still, we hope the arrest rates aren’t as high as police are believing it may be.

The city is attempting to encourage pedestrian-friendly activities – i.e., those that don’t require driving – for those who will be drinking. One way they’re doing this is by closing off Ocean Drive from Friday through Monday from 7 a.m. to 7 p.m.

In addition to searching for suspected drunk drivers, police have said they intend to have all of their license plate scanners in full use, checking for stolen vehicles and wanted fugitives.

On the beaches, revelers can expect to see officers on all terrain vehicles, equipped with night goggles, combing the beaches after they close at midnight.

Law enforcement officials reiterated the fact that the city has a zero tolerance policy with regard to the consumption of alcohol in public.

We fully expect that on at least one night this weekend, there will be a DUI checkpoint for cars that are entering the Miami Beach area, and possibly for those who are leaving as well.

At a checkpoint last year, six people were arrested for DUI.

Two years ago during Memorial Day celebrations, Miami Beach Police shot and killed a suspected gunman on Washington Avenue. (His family has since filed a wrongful death lawsuit against the department.)

Still, the agency is hoping to avoid any similar scenario from unfolding this year.

In general, here are some tips for how to avoid DUI drama on Miami Beach this year:

–Stick to light beer or lager, which tends to contain less alcohol content by volume than other types of beer or liquor. Another benefit to this is that if you’re drinking from a bottle, you can more easily keep track of how much you hare consuming, versus mixed drinks, which could potentially be mixed differently, depending on the bartender.
–Don’t let your server call the shots. Of course they want you to get another drink before you’ve even finished the one you’re on. Pace yourself by alternating between alcoholic beverage and water.
–If you aren’t sure whether you are sober enough to drive, don’t chance it. We have plenty of taxi services in Miami. Avail yourself of them.
–Know your rights. You don’t have to submit to a field sobriety test or to a breathalyzer test. You also don’t have to answer any of the officer’s questions, aside from your basic identifying information such as name, age, address, etc.
–Be polite. This might be tough, especially if the officer has a chip on his shoulder, but it’s crucial that you keep your cool. You might still be arrested anyway, but being rude could give the officer more of a reason to give you a hard time.

And if you are arrested, contact an experienced DUI defense lawyer as soon as possible.
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She never saw him.

That’s what a South Florida DUI manslaughter suspect said of the motorcyclist she was accused of striking and dragging for three miles before she was stopped by sheriff’s deputies on U.S. 41, near Fort Myers.

Our Fort Lauderdale DUI defense lawyers know that while many motorcycle crashes are blamed on motor vehicle drivers – especially if they’ve been drinking – the reality is that many motorcyclists make themselves vulnerable to crashes.

According to the National Highway Traffic Safety Association, some of the primary causes of motorcycle crashes include a motorcyclist’s:

–Failure to avoid distraction or impairment while driving;
–Failure to make themselves visible by wearing reflective tape or bright colors;
–Riding in weather conditions that are poor, especially considering even slight weather can be dangerous for motorcycle riders;
–Failure to use turn signals for each and every lane change;
–Failure to combine hand signals for turns or lane changes in order to draw more attention to themselves;
–Failure to position themselves in the lane most likely to be visible to other motorists.

Not all of these are illegal, of course, but they are sometimes overlooked in crash investigations where the operator of the car or truck was deemed intoxicated, despite the fact that one of these may have been a larger factor in the crash than the impairment level of the accused driver.

Just because a motor vehicle driver was drinking and was subsequently involved in a crash doesn’t mean that the impairment necessarily led to the crash. Sometimes, it is the actions of the other driver, even if he or she was stone-cold sober. In these cases, the more appropriate charge would be DUI – not DUI manslaughter.

The difference in penalties, per Florida Statute 316.193, is a misdemeanor warranting six months in jail versus a second-degree felony punishable by 15 years in prison. Having an experienced defense lawyer to prove these points to the court on your behalf is critical to ensuring a driver is not unduly punished.

In this case, the defendant is facing a multitude of serious charges, including DUI manslaughter and property damage, hit and run with death, DUI and careless driving.

While the state attorney’s office had initially requested a bail of $250,000, it was reduced by a county judge to $70,000, after it was determined she was not a flight risk.

Both she and the motorcyclist were the same age: 54.

During her arraignment, prosecutors drug up the fact that she had been arrested more than 12 years ago for DUI while she resided in Michigan. However, she was ultimately convicted of only careless driving.

In this case, according to police reports, she had been driving her sport utility vehicle south on U.S. 41 when she made a U-turn at one of the intersections. When she did this, she apparently did not see the motorcycle rider directly ahead of her. She reportedly rear-ended the motorcyclist, who was not wearing a helmet, and then dragged him, and the motorcycle, for approximately three miles before a sheriff’s deputy intervened after seeing sparks flying from underneath her vehicle.

The motorcyclist was pronounced dead at the scene.

The busy stretch of road was shut down for five hours overnight while investigators worked to piece together what happened.
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A recent win by DUI defense lawyers in West Virginia has relevance for our Broward DUI defense lawyers, as we await a decision from our own state supreme court regarding access to breathalyzer machine data.

In West Virginia v. Overington, the primary question was whether defendants have a right to specific technological information regarding the device that is used to convict them.

The answer, according to the state court of appeals, was a resounding yes, affirming rulings by both a judicial circuit court judge and, before that, a county magistrate.

We hope this will foreshadow the decision to be made soon by the Florida Supreme Court, which is weighing whether the out-of-state manufacturer can be compelled to produce software information relative to the Intoxylizer 8000, which is used to convict tens of thousands of DUI defendants ever year.

In the Florida case, the state is attempting to argue that the powers of subpoena for those records end at the Florida border, meaning the Kentucky-based firm can’t be forced to turn over information about the machines. The company has said that the release of such information would be akin to releasing trade secrets.

The defense team, on the other hand, argues that breathalyzers have had a high rate of failure, and that the information regarding how the devices reach a conclusion is critical. What’s more, if the company can’t be forced to turn it over, the state law enforcement agency that approves its use should be able to do so. Otherwise, it can’t guarantee the effectiveness of the devices and therefore, probably shouldn’t be relying on them to obtain criminal convictions.

That case was argued before the Florida Supreme Court in February.

This case out of West Virginia is similar, only the defense team had been asking for the working history of the breath machine used in each particular case.

The case that started this was an early 2011 misdemeanor DUI arrest in which the defendant was given a breathalyzer test and failed with a reading of 0.149 percent blood alcohol level.

A few months into the case, the defense attorney filed a motion requesting a breath test discovery, pursuant to the clause in both the Sixth Amendment and the state constitution that provides defendants the right to cross-examine the accuser.

In this case, the accuser would be the breathalyzer. A “cross-examination” would be a challenge of the machine’s working history, which would reveal any prior inconsistencies that could be relevant to the current case.

The magistrate granted this motion. The prosecutors appealed, saying the magistrate had overstepped the bounds of her authority and specifically that such an order was outside the scope of discovery allowed by the magistrate.

Plus, they argued the defendant had not illustrated why this might be relevant to the case. While prosecutors conceded that this was information that could be easily obtained, they simply didn’t want to hand it over.

In the end, that argument did not sit well with the state’s court of appeals, which ruled that the defense had a right to review that data and that it was relevant to the case.

We are hopeful that the decision of the Florida Supreme Court will be along those same lines.
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A judge was forced to re-sentence a Florida DUI manslaughter defendant, after an appellate court found that the initial sentence was too lenient.

Our Fort Lauderdale DUI lawyers know that while there are many situations for which judges have a great deal of discretion, DUI manslaughter charges carry a minimum mandatory sentence. Thus a conviction means you will spend at least the statutory minimum amount of time behind bars – regardless of what mitigating circumstances might exist.

Minimum mandatory sentencing in effect robs judges of their ability to apply judicial discretion in situations where it is due. In turn, there will be cases where justice is elusive.

In this case the defendant was just 20 years-old when she and her 22-year-old female co-worker went to a nearby bar. Being that the defendant wasn’t old enough to drink, the passenger purchased a number of shots, which the pair downed in the bathroom.

The two then left, with the 20-year-old behind the wheel.

She would later tell investigators she thought they were being followed. it was about 4 a.m. in Destin on U.S. Highway 98. She turned around to see if there was someone behind them. At that point, she veered off the road. Her vehicle slammed into a utility pole. Her 22-year-old co-worker was killed.

She was later convicted of DUI manslaughter, which under Florida Statute 316.193 is a second-degree felony, punishable by up to 15 years in prison, with a minimum mandatory sentence of four years.

Prosecutors in the case had asked for 10 years, while defense lawyers were pressing for probation or a suspended sentence, on the condition that the defendant would give talks to area high school students about the dangers of drunken driving.

The judge noted that no matter what his decision, everyone would be pained. In the end, he opted for a 15-year-sentence, of which all but 2.5 years was suspended.

However, the prosecutors appealed, citing the statute regarding the mandatory minimum. The appellate court ultimately sided with prosecutors, saying the judge had erred in allowing the defendant to serve less than that statutory minimum.

Now, she will serve those four years, followed by two years of probation, during which time she will be on house arrest. She will be allowed to leave only in order to give talks to young drivers six times annually. At those talks, she will show a montage of photographs of the victim.

Additionally, her driver’s license will be permanently revoked.

This is not the first time a judge has had to go back and re-sentence a defendant for a DUI manslaughter charge. Earlier this year, a county circuit judge in Northern Florida was forced to re-sentence a defendant convicted of DUI manslaughter in the death of his elderly father, who was dying of Alzheimer’s disease. At the initial sentencing, the judge had said the defendant lacked any moral culpability, and had never intended for his father, a passenger in the vehicle, to get hurt, let alone to die. The judge gave him two years of house arrest, followed by eight years of supervised release.

However, a prosecutor appealed that decision, and the judge was later forced to hand down the minimum mandatory sentence of four years in prison.
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A columnist with the Sun-Sentinel recently penned an article he claimed pained him.

In it, he wrote that as much as he hated to say it, the wealthy businessman convicted of DUI manslaughter in the 2010 death of a 23-yaer-old college student deserved another round in the courtroom.

Our Broward DUI manslaughter defense attorneys know that even if an appellate court agrees to the defense’s request, it’s the kind of opportunity defendants rarely get. That’s why it’s so critical for defendants to get it right the first time, with a defense attorney who is experienced, skilled and tireless in his approach.

The reason this case may result in another trial has little to do with the facts of the case itself, and a lot to do with the actions of one of the jurors.

The facts of this case have been well-publicized. The defendant, who is a multimillionaire polo magnate, reportedly had been drinking prior to getting in his vehicle and striking another vehicle, driven by a 23-year-old man, whose vehicle ended up in a canal, where he drowned. The defendant reportedly drove away without calling for help.

The conviction was handed down a year ago.

But the juror in question has been quite busy since then. He has written a string of self-published books. In one of those, the juror revealed that he had conducted his own at-home drinking experiment during the deliberation phase of the trial. He consumed as much vodka as the defendant was alleged to have consumed. Part of the defense’s argument had been that while the defendant had been drinking, he was not actually intoxicated. The juror set out to find out for himself how intoxicated one might be after consuming that much.

There are so many problems with this, it’s hard to know where to begin. First, jurors are only supposed to decide a case based on the evidence before them. They aren’t supposed to be conducting their own investigations in the midst of the trial.

Secondly, an at-home experiment like this lends itself to a great deal of inaccuracy. Even slight physical differences between the two could mean that one person could consume a certain amount and not be inebriated, while the other clearly might be. Tolerance levels might affect this as well, depending on how much alcohol each individual regularly drank.

Defense lawyers recognized this and requested a new trial – especially after other jurors said that this one had mentioned in during the course of deliberations.

Then, in a second publication, this same juror revealed that his former wife had once been under arrest for DUI. This was something he did not mention during the jury selection.

As the Sentinel columnist points out, the defense team has been grasping at whatever straws are available to try to get this conviction overturned, as it carries a 16-year prison sentence. However, this one juror and his improprieties may hold the key to actually getting this man a new trial.

A hearing on the matter is scheduled for later this month.

The bottom line is that everyone is entitled to a fair trial. It’s our job to make sure you get one.

If this defendant did not receive one, he deserves to have another day in court.
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The U.S. Supreme Court has ruled that in most cases, if a police officer wishes to draw a blood sample and does not have your consent, a warrant must first be obtained.

Our Broward DUI attorneys know that this is a significant victory for individual rights, as the justices ruled that such action would be unconstitutional, per the portion of the Fourth Amendment that protects against unreasonable searches and seizures.

Law enforcement in this case, Missouri v. McNeely, had attempted to argue that the natural dissipation of alcohol in the blood stream was enough to circumvent normal procedure and initiate a blood draw without a warrant.

That reasoning did not fly with the majority of the justices, who ruled 5-4 in favor of the defendant.

An officer had stopped him for speeding and driving left of center. The defendant refused to take a breathalyzer test and also refused consent to a blood draw. Although this officer had no issues in the past quickly obtaining a warrant, he decided to skip it this time, instead transporting the defendant straight to the hospital to have a sample drawn. The defendant was handcuffed the entire time and did not consent to the procedure.

The fact that the defendant’s blood-alcohol level was well above the legal limit was found to be beside the point. The bigger issue was the denial of due process.

The justices found that in routine DUI stops, there is no reason why law enforcement officers shouldn’t be expected to first obtain a warrant if the defendant does not consent to the invasive blood draw procedure. The exception would be if there was an emergency situation in which the delay necessary to get a warrant would result in the significant and irreversible destruction of evidence. The fact that alcohol naturally dissipates in a person’s system is not reason enough to forgo the effort to get a warrant.

Now, it’s not all that difficult for law enforcement officials investigating a DUI to obtain a warrant for a blood draw. A lot of times, the entire request can be processed and granted right from the patrol car. So the justices ruled that the procedure is not such a hindrance that it poses significant delay that could result in scores of DUI defendants walking free for lack of evidence.

Further, the court pointed out there are already stiff penalties in place for those who refuse to undergo breathalyzer tests. These are known as implied consent laws, and all 50 states have them. In Florida, if you refuse to submit to a breathalyzer test, you will incur an automatic 18-month suspension on your license. You will also face a misdemeanor charge and the possibility of jail time.

It’s worth noting that if you consent to have a blood sample drawn, the officer is not required to obtain a warrant. So if you have been drinking prior to the traffic stop, you may want to carefully consider whether you should offer consent. Not giving it doesn’t guarantee the officer won’t get a warrant and take it anyway, but it could provide a potential for a strong defense in court if the officer does not obtain a warrant, as is now required.
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