DUI recent court wins

Recent Court Wins

DRIVING UNDER THE INFLUENCE

DUI Lowered to Reckless Driving for Underage Defendant Due to State's Lack of Proof

State v. M; Judge Lambert

FACTS: Our eighteen-year-old client was arrested for DUI. On the night of the incident, our client was involved in an auto accident with a tractor trailer truck on our client's way home from a concert. There was a dispute as to which vehicle caused the accident, but that was not relevant to this case. An officer was dispatched to the scene of the accident. When the officer arrived to the scene, both our client and the truck driver were standing outside of their vehicles, and the officer began asking our client what happened. During this conversation, the officer claimed to smell alcohol on our client's breath, and decided to conduct field sobriety tests. The client consented to the tests. Upon completion of the field sobriety tests, the officer concluded that our client was under the influence of alcohol and placed the client under arrest. After being arrested, our client submitted to having a breathalyzer test, and the client blew a .14. Because the client was only 18 years old, the legal limit was .02, putting the client seven times over the legal limit.

DEFENSE: In order for the state to convict someone of an offense charged, it must prove every element of that offense beyond and to the exclusion of a reasonable doubt. For a DUI, the state must prove that the person arrested (1) was driving or in control of the vehicle, (2) while under the influence of drugs or alcohol, and (3) to the extent that their normal faculties are impaired, or with a BAC over .08 [over .02 for persons under 21]. In this case, it was our standpoint that the state would not be able to prove the first element of the offense. When the officer arrived to the scene, our client in fact was not in the vehicle, and therefore the officer did not witness our client as having been the driver of the car. The only person that could attest to where our client was inside the car was the driver of the truck, who was unable to be located subsequent to the incident. Therefore, it was our stance that the state's evidence on that element would be insufficient if it went to trial.

RESULT: Our firm was able to get the state attorney to agree, and the charge was negotiated down to reckless driving. The client received a short probation as punishment.

Underage Defendant Gets DUI Charge Dismissed After Police Fail to Follow "Fellow Officer Rule"

State v. K; Judge Barber

FACTS: Our underage client was arrested and charged with DUI, leaving the scene of an accident, and possession of drug paraphernalia. The client struck a light pole as the client was attempting to make a U-turn in their car. After striking the light pole, the client, who was very scared about what just happened, then proceeded to make a right hand turn into a nearby neighborhood en route to the client's home. Unbeknownst to the client, the light pole ended up falling into the road. Prior to making it home, the client was stopped by police. The officer then asked the client out of the car, and upon a brief search of the vehicle, located a marijuana pipe. The client admitted it was theirs. The officer then inquired about submission to a breathalyzer test, but the client refused. The officer that made this initial stop, however, was called to an emergency before making the arrest, and was forced to call in another officer to finish the investigation. However, the situation was only further frustrated on the part of law enforcement when it came to their attention the officer that subsequently came to the scene was outside of their jurisdiction, and was thereby precluded from doing anything further with the case. That officer then proceeded to call another officer to the scene in order to make the final arrest.

DEFENSE: In order for a traffic stop to be valid under Florida law, a law enforcement officer, among other things, must personally witness the driver's conduct, and make what is otherwise known as an "independent assessment" of that conduct. An exception to this requirement is known as the "fellow officer rule." However, in order for the exception to apply, law enforcement must conduct itself according to proper procedure. From our standpoint, the information leading to the ultimate arrest of our client was not correctly transferred and conveyed between each officer that arrived to the scene throughout the incident, and therefore the exception could not apply to this case. Without the application of that exception, the officer that made the arrest did not do so based on an "independent assessment" of our client, and therefore the charges stemming from that arrest should be dismissed.

RESULT: The state attorney agreed that the Fellow Officer Rule could not apply given the circumstances presented here, and therefore agreed to dismiss the charges entirely.

Despite BAC over .20, DUI Charge Lowered to Reckless Driving

State v. A; Judge Coon

FACTS: Our client was arrested for DUI. On the client's way home at 11:45 p.m. on the night of the incident, the client was pulled over by law enforcement for weaving and making wide turns. The client informed the officer, upon being asked, that the client had about 4 - 5 beers that night, and was on pain killers due to a back surgery the client recently had. The officer then asked the client out of the car in order to perform field sobriety tests. However, because the client recently had back surgery, the client was unable to perform some of the tests, such as the "one leg stand evaluation" and the "walk and turn evaluation." Because of the difficulties in performing the field sobriety tests, the officer then asked the client to submit to a breathalyzer test. After reading "implied consent" to the client, the client gave consent. However, because the client had cystic fibrosis, the client was unable to perform the breathalyzer test to the officer's satisfaction. The officer then gave our client two choices. According to the officer, the client could either give the officer a blood or urine sample, or the officer could put the client down as refusing to submit to a sobriety exam, and have their license suspended for a full year. The officer then read the "implied consent" provision to our client, obtained the client's consent to the blood and urine samples (which the client admitted was the result of "no other choice"), and the samples were taken. The client's BAC was over .20.

DEFENSE: Implied consent in Florida is a concept based upon the statement on a person's driver's license which reads, "operation of a motor vehicle constitutes consent to any sobriety test required by law." If someone refuses to submit to a breathalyzer, or some other sobriety test allowable by law, when asked to do so, the officer is then required to read to them an implied consent provision in the law. Some officers read it no matter what. This not only serves to remind the person of their prior consent, but also lets them know that refusal to submit to the test subjects them to having their license suspended for a full year. For public policy reasons, the statement that the officer reads regarding implied consent is inherently coercive, and usually results in the person giving consent. Outside of those areas governed by implied consent, the officer is required to obtain full "free and voluntary" consent to any invasive procedures, such as taking someone's blood.

There is only one instance in which an officer would be required to read the implied consent provision upon refusal to perform a blood test, which was clearly not relevant here. Because this was clearly not an instance covered under implied consent, the officer should not have read that provision to our client prior to obtaining consent to get the blood sample. However, because the officer did read the implied consent provision, which is recognized by the legislature to be inherently coercive, the officer did not receive "free and voluntary" consent in order to take the client's blood, which is required by law under these circumstances. Therefore, the blood evidence was improperly seized from our client, and should not have been allowed to be offered as evidence of our client's guilt as a result.

RESULT: The judge agreed with our motion to suppress the blood evidence and our firm was able to negotiate with the state attorney to lower the charge to reckless driving.

State's Inability to Prove Intoxication Leads to Dismissal of DUI

State v. H; Judge: Lawrence Lefler

FACTS: The client was charged with DUI. He suffered from depression and consumed a large quantity of Ambien (sleep drug) in an attempt to kill himself. He was observed driving his vehicle on west Cypress Street when his white infiniti drove off an embankment and into a ditch. When police arrived they found the client with his foot on the accelerator while the tires continued to spin. The officers ordered the client to stop the car and exit the vehicle. According to the officers the client picked up a knife, and refused to get out of the car. He eventually exited the vehicle, and attempted to perform field sobriety tests. It was obvious that the client was impaired by Ambien, and was unable to drive.

DEFENSE: Florida Statute 316.193 states that, "A person is guilty of the offense of driving under the influence...if the person is driving or in actual physical control of a vehicle within the state and:

(a)The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or a substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired...

Ambien is not a controlled substance under 877.111 or chapter 893. We filed a motion to dismiss, and the State Attorney agreed to dismiss the DUI. The State attempted to amend the charge to reckless drivinng. Ultimately, the State was unable to bring forth the witnesses to prove the defendant was driving in "willful and wanton disregard for the safety of others" and the reckless driving charge was also dismissed.

RESULT: Both criminal charges of DUI and reckless driving were dismissed.

If you would like to learn more about DUI link to tampadefenseattorneys.com.

Plea Deal in Felony DUI Case Raises Questions About Legality of Many Stops in Tampa

State v. L.; Judge: Gregory P. Holder; William Fuente

FACTS: The defendant was charged with his third DUI charge within a ten-year time span. This aggravates the charge from a misdemeanor to a felony with a possible maximum sentence of 5 years in the Florida State Prison System. The defendant was witnessed driving his vehicle toward the Dale Mabry entrance of Macdill Airforce Base. He approached at a high rate of speed, and swerved abrupty before he reached the gate. After he stopped at the gate he asked the Military Police Officers (MP) whether this was "the way to Gainesville". The military police officer claimed that he could smell a distinct odor of an alcoholic beverage on the client's breath. He also observed that our client's eyes looked watery and bloodshot, and his speech was very slurred. The MP then ordered the client to turn off the vehicle and hand him the keys. After he received the keys the MP placed spike strips behind the client's vehicle. A few moments later the client jumped from the driver's seat to the passenger's seat, and claimed that someone else had been driving. Pursuant to Florida Statute 901.15(10) the military police officer called the tampa police department, and filled out an affidavit describing his observations. A tampa police officer arrived on scene and arrested the defendant after he refused to perform all sobriety tests.

DEFENSE: There have always been discussions among attorneys in the tampa area about the legality of stops made by the military police at MacDill Airforce Base. Many believe that the military police can stop suspects pursuant to Florida Statute 901.15(10). However, 901.15(10) requires that the military police officer make his observations "on federal military property".

Initially, we filed a Motion to Dismiss the charge claiming that the initial detention of the client was unlawful because the stop occurred on federal property. What made this property special was the fact that it had been deeded to the federal government by the State of Florida in 1950. The federal government retains exclusive jurisdiction over any crimes that occur on property transferred in this way. In response to the Motion to Dismiss the State Attorney in his traverse, swore under oath that the Dale Mabry guard gate sits on municipal property owned by the city of Tampa. Our office in turn filed a second motion to suppress the stop of our client because Florida Statute 901.15(10) requires that the military police officer witness our client on "federal military property". Hillsborough County Circuit Judge William Fuente ruled on our Motion to Suppress. In deying the Motion for Re-hearing the Court stated that the military police officers had discretion to defer the investigation to civilian authorities, "regardless of the status of the property at the gate, be it city property or federal property". Subsequent to the Court's ruling we entered further negotiaitions with the State Attorney's Office. Ultimately, the State agreed to reduce the FELONY DUI charge to a MISDEMEANOR in exchange for a waiver of our right to appeal the jurisdictional issues involved in the above motions.

RESULT: The felony dui charge was reduced to a misdemeanor DUI occurring outside of a five year time span. As a connsequence, our client avoided not only a possible State Prison Sentence, but also a mandatory Hillsborough County Jail sentence. In our opinion all stops made by miilitary police officers at the Dale Mabry guard gate pursuant to 901.15(10) are unlawful, and should be challenged in the future.

Tampa woman charged with DUI, blows 0.12, gets reduction to reckless driving

State v. T; Judge Elizabeth Rice

FACTS: Our client was arrested and charged with DUI, after leaving a bar in South Tampa. Our client had been drinking earlier in the night, unfortunately however, her friends were far more intoxicated. Our client thought she was doing the right thing by volunteering to drive a friend home from the bar. Shortly after leaving the bar, the friend got sick in the car, and our client was forced to pull over in the middle of the road. A police officer happened to be driving by and pulled over to investigate the situation. Upon making contact with our client and her friend, the officer immediately became suspicious that our client may be driving under the influence. The officer requested that the client perform field sobriety exercises. Eventually he made the decision that he had probable cause to arrest out client for DUI. She was arrested and taken to jail where she submitted to the breathalyzer test, which estimated her blood alcohol to be approximately 0.12. The "legal limit" in Florida is 0.08.

In Hillsborough County, most DUI arrests are captured on video. Law enforcement uses these videos as evidence in DUI cases. This enables jurors to see the behavior and demeanor of a defendant during a DUI investigation and evaluate their performance on the field sobriety exercises. In many cases, this can be the most damaging evidence in a DUI case. However, in some circumstances the video can be extremely helpful to your defense. The video allows jurors to form their own opinions on the defendant's level of impairment, without having to rely solely on the officer's opinions or the breathalyzer results. Additionally, the video creates a record of the procedures that were followed during the arrest. Many times the officer's behavior on the video can serve as a basis to suppress some or all of the evidence, and sometimes even get the whole case dismissed.

In this case, the client performed relatively well on the field sobriety exercises. Additionally, the officer used questionable tactics in gaining compliance with his requests of the client. Despite, the high breathalyzer results, we were able exploit these issues to negotiate a favorable deal for our client.

RESULT: The clients charge was amended to Reckless Driving.

State v. T.; Judge: William G. Sestak (Pasco County)

FACTS: The client was charged with four (4) DUI'S with personal injury; one (1) DUI; three (3) leaving the scene of an accident charges; and a traffic citation. The defendant (client) is a nurse at the Florida Hospital. According to the Florida Highway Patrol, the client was traveling westbound on State Road 54 when his vehicle began weaving, and driving into oncoming traffic. Witnesses stated that our client eventually struck the rear of another SUV, and then fled the scene. A short time later the client collided with a second chevrolet, and left the scene of that accident. The client continued to have trouble controling his vehicle, and ended up colliding with a mailbox, and left the scene of that accident. The client then struck a ford truck, and left the scene again after the fourth collision. Eventually, the client came to rest on the shoulder of State Road 54 near Boyette Road. According to the witnesses the client exited his vehicle through the driver's side window. As he stood on the side of the road the client began staggering and having trouble maintaining his balance. When paramedics arrived on scene they recovered a hypodermic needle with fresh blood on the syringe from inside the client's vehicle.

Paramedics felt the client had possibly overdosed and transported the defendant to the Florida Hospital. After arriving at the hospital the trooper questioned the defendant about his condition. The entire time the defendant was incoherent and unable to respond. The trooper then read the defendant Florida's "implied consent law". Florida Statute 316.1932 (c) states the following:

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, deemed to have given his or her consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the purpose of determining the presence of chemical substances or controlled substances as provided in this section if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible. As used in this paragraph, the term "other medical facility" includes an ambulance or other medical emergency vehicle. The blood test shall be performed in a reasonable manner. Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to such test. A blood test may be administered whether or not the person is told that his or her failure to submit to such a blood test will result in the suspension of the person's privilege to operate a motor vehicle upon the public highways of this state and that a refusal to submit to a lawful test of his or her blood, if his or her driving privilege has been previously suspended for refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor.

When asked whether he would be willing to submit to a blood draw the client was "unable to agree or disagree" according to the trooper. Despite the fact that the trooper had the ability to order the medical staff to draw the defendant's blood, he did not. Instead, the trooper claimed that the defendant "refused" to submit to a blood test.

DEFENSE: The trooper's failure to draw blood created a major problem for the state prosecutor. The prosecutor could not argue that the defendant refused the test because the facts clearly contradicted that argument. In addition, the hypodermic needle with fresh blood on it wasn't relevant unless the prosecutor could prove that our client had some controlled substance in his system.

RESULT: The State DISMISSED three (3) DUI with personal injury charges; one (1) dui charge; ; three (3) leaving the scene of an accident charges; and a traffic citation. The fifth DUI charge was reduced to a reckless driving and the defendant received probation.

State v. Q.; Judge: Artemus McNeil

FACTS: The defendant was observed weaving in and out of traffic before he drove into oncoming traffic and crashed into a ditch. After the police arrived the client stated that he passed out behind the wheel. The client then changed his story stating, "I fell asleep behind the wheel". A blood draw was done, and alcohol was found in his system. During the investigation the defendant admitted he had been taking xanax before the accident.

DEFENSE: The alcohol in the defendant's system was low, and there was not a quantifiable amount of xanax in his blood.

RESULT: The State dropped the DUI.

State v. M.; Judge: John N. Conrad

FACTS: The client was 18 years of age, and attended the University of Tampa when she was pulled over for DUI. The legal limit for anyone below 21 years of age is .02, not .08. She was observed traveling on north on Dale Mabry when the officer noticed she was drifting in and out of the lane markers. The officer pulled her over and noticed blood shot, glassy eyes and a distinct odor of an alcoholic beverage on her breath. The officer asked her to perform field sobriety tests and she did. She became so upset during the field sobriety tests that she was unable to perform. Ultimately, the officer arrested her for DUI, and she was transported to central booking. She agreed to take the breathalyzer and blew .083, and .082. The client's breath result was high considering her age, and her performance on the field sobriety tests was terrible.

DEFENSE: The defendant was unfamiliar with the area and her driving pattern was consistent with someone who was lost. Her performance on the field sobriety tests was explained by her age and her background. Many times someone's performance on the field sobriety tests is attributable to nerves. These types of cases can be difficult to defend because most state attorney's feel that "nerves" play no role on someone's ability to perform the field sobriety tests.

RESULT: The State dropped the DUI charge.

State v. N.; Judge: John N. Conrad

FACTS: Law enforcement observed the client, a college student, traveling 65 mph in a 55 mph zone, and following other vehicles "too closely". The officer ultimately stopped the client's vehicle at I-275, south of Westshore Boulevard for suspicion of DUI. As he spoke to the defedant at the driver's side window the officer claimed to have smelled an odor of an alcoholic emanating from her breath. The DUI enforcement officer arrived on scene and noticed the defendant had bloodshot/glassy eyes, and was very unsteady on her feet. The defendant performed the field sobriety tests and performed poorly. A short time later she was arrested and transported to the county jail. Upon arrival she submitted to a breath alcohol test and registered a .215 and .197. The legal limit in Florida is .08.

DEFENSE: Despite the fact that the description of the driving pattern seemed terrible at first glance, further investigation led to information that explained her driving. We filed a motion to suppress all the evidence that emanated from the stop of the vehicle.

RESULT: The DUI charge was DISMISSED.

State v. T; Judge Elizabeth Rice

FACTS: Our client was arrested and charged with DUI, after leaving a bar in South Tampa. Our client had been drinking earlier in the night, unfortunately however, her friends were far more intoxicated. Our client thought she was doing the right thing by volunteering to drive a friend home from the bar. Shortly after leaving the bar, the friend got sick in the car, and our client was forced to pull over in the middle of the road. A police officer happened to be driving by and pulled over to investigate the situation. Upon making contact with our client and her friend, the officer immediately became suspicious that our client may be driving under the influence. The officer requested that the client perform field sobriety exercises. Eventually he made the decision that he had probable cause to arrest out client for DUI. She was arrested and taken to jail where she submitted to the breathalyzer test, which estimated her blood alcohol to be approximately .12. The "legal limit" in Florida is 0.08.

In this case, the client performed relatively well on the field sobriety exercises. Additionally, the officer used questionable tactics in conducting his initial investigation. Despite, the high breathalyzer results, we were able exploit these issues to negotiate a favorable deal for our client.

RESULT: The clients charge was amended to Reckless Driving.

State v. B; Judge: Margaret Courtney

FACTS: The defendant (client) was driving southbound on North Palm Drive in Tampa when a Tampa Police Officer noticed that her headlights were off. The officer activated his emergency equipment and attempted to pull the vehicle over. As she pulled into a parking space the vehicle went up and over a curb. The officer noticed that the client's eyes were bloodshot and glassy. He also noticed that she had a odor of alcohol emanating from her breath. During questioning the defendant admitted having a few drinks, and said she was the "soberest" one in the car.

The client then agreed to perform a number of field sobriety tests, which she failed. After she was arrested she was transported to Central Breath Testing at the Orient Road Jail. She agreed to submit to a breath test which indicated .152 and .137.

DEFENSE: We filed a Motion to Suppress the stop of the defendant's vehicle which led to negotiations with the State. The client's breath result was very high, but that breath result has no bearing or relevance to the issues surrounding the stop of someone's vehicle for DUI. No matter how ugly you might think the facts of your case are it is crucial that you retain an experienced attorney to represent you. Without an experienced attorney this particular case would of probably had a much different result.

RESULT: The State agreed to drop the DUI.

State v. C.; Judge: Tom Barber

FACTS: The defendant was stopped by Tampa Police for running a stop sign and speeding. When the DUI enforcement officer arrived she noticed "bloodshot, glassy eyes, and slurred speech". When the officer asked the defendant to exit the vehicle he stumbled, and then grabbed hold of his vehicle to steady himself. Our client was then asked to perform the field sobriety tests (specifically the walk and turn test), which he agreed to do. He was unable to maintain his balance, stepped off the line, and started performing before the instructions were read. Shortly after he performed the walk and turn, the defendant was arrested. When he arrived at Central Breath Testing the client refused the breathalyzer.

DEFENSE: During the discovery process we determined that the prosecution was unable to locate the video of our client's performance. We then filed a motion to dismiss alleging that our client's due process rights were violated because the video would dispute the officer's opinion of how poorly he performed.

RESULT: The State dropped the DUI charge.

State v. A; Judge: Elizabeth Rice

FACTS: The defendant was stopped by a Hillsborough County Sheriff's Deputy after her car remained stopped at a green light at 22 street North and 7th Avenue in Ybor City. The deputy detected slurred speech and red-watery eyes. When the DUI enforcement Deputy arrived he claimed there was an easily detectable odor of alcohol on our client's breath. After further discussions with the deputy the client admitted to drinking alcohol, and she was arrested for DUI. She was also arrested for Driving While License Suspended.

DEFENSE: We had a number of discussions with the State about filing a motion to suppress the stop of our client's vehicle which led to a negotiated agreement.

RESULT: The State reduced the DUI charge to reckless driving and the Driving While License Suspended charge was amended to No Valid Driver's License.

State v. W; Judge: Lawrence Lefler

FACTS: The client was pulled over because his radio was too loud. The officer claimed he could hear the radio 75 feet away. In the state of Florida, if your radio is audible within 25 feet, an officer can stop your vehicle, and give you a citation. Whenever someone is pulled over, they typically become nervous, even if it's just a speeding ticket. In this case, however, the defendant had a panic disorder, which made him appear extremely nervous on the video. His voice wasn't slurred and he never swayed while he spoke to the officer, but he also never stopped talking. He continued to tell the officer that he was too nervous to take the test. Once the officer realized the defendant was going to continue to repeat himself, he engaged the defendant in further conversation. The officer knows that someone who appears to be "stalling", or "making excuses" looks guilty.

Generally, the first officer who makes contact with a possible dui suspect radios for the assistance of a special "dui enforcement officer". The initial officer takes that step because he obviously believes the suspect is DUI. The moment the dui officer gets out of his cruiser to make contact with you, it is important to realize that the video camera is on and you are both, "on stage". As he approaches you the dui officer is presuming guilt because of his conversation with the officer who made the initial stop. The goal of the dui officer is to collect as much incriminating evidence (a poor performance on video) as possible. Sometimes what may sound like "friendly talk", is a method used by officers to document "admissions of guilt" on the video.

DEFENSE: Ultimately, we were able to point out to the state attorney that our client's performance on the video was the result of his panic disorder, not because he was driving under the influence. This was extremely important to the client because it was his second DUI within the past five years. If he had pled straight up to the DUI, he would have lost his license for five years, and done a minimum of 10 days in the Hillsborough County Jail.

RESULT: The Defendant's DUI was dropped, and he received no license suspension.

State v. M; Judge: John N. Conrad

FACTS: The client was a very respected school teacher in one of our county school systems. She was observed weaving in and out of her own lane, and traveling 60 MPH in a 40 MPH zone. The officer conducted a traffic stop at Kennedy and Howard, and noticed our client had a distinct odor of alcoholic beverage. The officer also noticed that the client had watery, bloodshot eyes. Before performing the Field Sobriety Tests she was asked whether she had anything to drink. According to the officer she initially denied having any alcohol, but then admitted to having one drink post-miranda. The defendant was prepared to perform the walk and turn test when she asked the officer if she could have an attorney. The officer told her that she was not entitled to an attorney at that time. Ultimately, the client refused to perform the Field Sobriety Tests, and was arrested for DUI. After arriving at Central Breath Testing she was asked to submit to a breathalyzer test. The defendant refused that test also.

DEFENSE:: The offense occurred on January 21, 2007. The weather that night was particularly windy and cold. The defendant was not wearing the proper clothing and ended up shivering uncontrollably outside her car. While the Field Sobriety Tests appear very simple and straight forward to most people, they can be very difficult to perform in bad weather. For instance, before you begin to perform the walk-and-turn test you are asked to stand heal to without moving, as the officer reads you the instructions. This is extremely difficult when you are shaking from the cold. Many times an officer will get upset if you decide not to perform the field sobriety tests. The reason for that is simple. You are refusing to give him the evidence he wants to prove your guilt. When our client refused to perform the Field Sobriety Tests without a lawyer, it created friction between the client and the officer. This friction led to the defendant refusing to submit to the breathalyzer also.

This chain of events is not uncommon. People refuse to perform the Field Sobriety Tests, and the breathalyzer for many different reasons. In this case, we were able to persuade the State Attorney that the defendant's refusal was justified under the circumstances.

RESULT: The client's DUI was reduced to a reckless driving, and she received a withhold of adjudication, and court costs. A withhold means that the client was able to avoid a conviction on the reckless driving charge and she received no points on her driving record.

State v. L; Judge: Lawrence Lefler

FACTS: After spending the night in Ybor City, the client drove some friends home. She was pulled over after one of the passenger's in her car threw garbage out of the back window. Her car was pulled over at about 4 a.m., at the off ramp of I-75 and Bruce B. Downs Boulevard. As the officer spoke to the client he smelled an odor of alcohol on her breath and her eyes appeared to be glassy. The client was also wearing nightclub arm bands on both arms. After she admitted to drinking the officer asked her to perform some field sobriety tests. The officer felt she failed the field sobriety tests and arrested her for DUI. When she arrived at the Orient Road Jail in Hillsborough County she refused to blow into the breathalyzer. The defendant was also an under age drinker.

DEFENSE: The defendant's performance on the video was much better than the description given by the Tampa Police Officer in his report. Again, a video can create a real doubt as to the defendant's guilt in a DUI case.

RESULT: The DUI was dropped.

State v. L; Judge: Lawrence Lefler

FACTS: The client was driving a motorcycle at a very high rate of speed when he was observed by a deputy from the Hillsborough County Sheriff's Office. The defendant was passing erratically and unexpectedly with no warning. He also caused other drivers to slam their brake as he was correcting and readjusting within his lane. After the defendant was stopped the officer noticed that the defendant's speech was slow and slightly slurred. He also noticed an odor of alcohol emanating from the defendant's breath. The client was asked to perform field sobriety tests and failed miserably, according to the police report. He was then arrested for DUI and booked at the hillsborough county jail. The defendant refused to blow into the breathalyzer.

DEFENSE: There was a dispute as to whether the defendant had performed as poorly as described by the deputy. The video of our client can sometimes create enough of an inconsistency in the evidence to bring about a very positive result.

RESULT: The DUI was dropped.

State v. C , Judge: Tom Barber

FACTS: The client (defendant) was stopped by a trooper for traveling 97 mph in a 65 mph zone on the Howard Franklin Bridge. As the trooper contacted the defendant he noticed he was disoriented and mumbling, with a strong odor of an alcoholic beverage on his breath. When the client exited his vehicle he was unsteady and stumbling. The client believed he was heading to St. Pete when he was actually headed towards Tampa. The defendant was asked to perform Field Sobriety Tests, and failed, according to the trooper. There was no video of the defendant's performance of the field sobriety tests at the scene. Ultimately, the defendant refused to submit to a breath test.

DEFENSE: The video of the defendant at the Orient Road Jail contradicted the trooper's description of him at the scene. In addition, we were able to supply evidence to the State that the defendant was new to the area, and unfamiliar with the roads. It is also important to point out that the client's refusal of the breath test did not weaken the state's case. The State has the ability to argue that the defendant refused, "... because he knew he was intoxicated". However, in this particular situation we were able to provide the State with a reasonable explanation for the refusal.

RESULT: The State dropped the DUI.

State v. O, Judge: James Dominguez

FACTS: The client (defendant) was stopped at the light on highway 41 north and Florida Avenue. A Hillsborough County Sheriff's Office deputy stopped at the light behind our client. According to the deputy the light cycled through twice before she activated her overhead lights and approached the defendant's vehicle. The deputy claimed that the defendant was incoherent, and unaware of her surroundings when she made contact with her at the driver's side door. At that point the stopping deputy called a special DUI enforcement deputy who conducted a DUI investigation. The second deputy asked the defendant to perform field sobriety tests, and claimed she had failed the tests. Much of what the deputy reported seemed to be confirmed by the defendant's breath result (the breath result was .146 and .129).

DEFENSE: After a number of attempts to negotiate with the State failed, we filed a motion to suppress the stop of the defendant's car. The State felt there was a safety concern that warranted the deputy stopping our client to determine the situation. We felt the deputy stopped our client's vehicle prematurely, and without reasonable suspicion.

RESULT: The State realized there were problems opposing our motion which led to a reduction of the charge to reckless driving for the client.

State v. P, State v. N; Judge: Joelle Ober

FACTS: The defendants (clients) both left the Dallas Bull Bar near U.S. 301 and Interstate 4, at around 1:30 a.m. Before leaving the bar each had consumed 1-2 beers. As they left the clients decided to follow each other home. Both clients were unaware that a special DUI enforcement deputy was waiting in a nearby parking lot for patrons to leave. The deputy decided to follow them as they left. Shortly after falling behind the defendants the deputy claimed one was following the other too closely, and stopped his car to cite him for the infraction. After the stop, the deputy claimed he smelled an odor of alcohol and began a DUI investigation of the first client. Because she was concerned about her friend, the second client approached the deputy to find out why they were stopped. After making contact, the deputy claimed he could smell an odor of alcohol on her breath also, and investigated her for DUI.
The deputy claimed that both defendants failed their respective Field Sobriety Tests and arrested them both for DUI. Each client agreed to take the breathalyzer. One defendant blew a .031, and the other blew a .028. The deputy then started grasping at straws. He asked each defendant to drop a urine sample. Both defendants complied, and their urine results ultimately revealed nothing.

DEFENSE: The above scenario is a very common occurrence. The deputy involved in this investigation was a special DUI enforcement officer. These DUI enforcement officers (both at the Hillsborough County Sheriff's Office and the Tampa Police Department) camp outside bars and wait for people to drive away late at night. After the suspects leave the bar, many officers will use any excuse, no matter how weak, to stop the vehicle for some traffic infraction or less. This case is a classic example of a dishonest law enforcement officer using any pretext to stop someone, and arrest them for a crime. It is also points out the risk to law enforcement, when they decide everyone leaving a bar at 1:30 a.m is intoxicated. While the officer has a lawful right to park his car outside of any bar and wait for people to leave, he shouldn't just stop vehicles unless his observations warrant the stop.
Here, the deputy stopped the clients claiming one was following too closely. Did the driver actually commit the infraction, or was the officer using it as a pretext to conduct a DUI investigation? When you look at the facts, and realize the driver blew well below the legal limit, it calls into question the validity of the entire investigation, and the lawfulness of the arrests.

It is important to realize that just because these defendants blew well below the legal limit, that does not mean that their DUI charges were automatically dismissed by the State Attorney's Office. In the state of Florida a breath result of .08 or above is prima facie evidence that the person driving was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Florida Statute 316.1934(c). If someone's breath result is between .05 and .08, there is no presumption of impairment. Florida Statute 316.1934(b). If someone's breath result is below .05, it is presumed that the person driving was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Florida Statute 316.1934(a).
In this case, there was a presumption that both drivers were not under the influence of alcohol to the extent their normal faculties were impaired (in short they were not DUI). However, any presumption can be rebutted by evidence. So it does not necessarily follow that you are automatically guilty of DUI if you are above the legal limit, and not guilty of DUI if you are below the legal limit. For instance, in some cases where defendants blow below the legal limit there can be proof that the defendant was driving under the influence of some intoxicant other than alcohol (prescription drugs, marijuana, cocaine...etc.). In addition, every person is affected by alcohol differently. As a consequence, whether you are above or below the legal limit, you should still hire an attorney. This case ultimately resulted in a dismissal of both DUI charges, but it is very unlikely the defendants would have received that result on their own. I have seen many unknowing pro se (self-represented) defendants plead guilty to DUI when they blew below the legal limit. Without an attorney you have no idea of the real strengths and weaknesses of your case.

RESULT: Both DUI charges were dismissed.

Case #06-0034-DKT; Judge Marc Salton-Pasco County (New Port Richey)

FACTS: The client, a former police officer, was observed by law enforcement to be asleep behind the wheel of his car at a flashing yellow light. The client's engine was running and the vehicle was in drive. When the troopers pulled behind him the defendant woke up and pulled his vehicle to the side of the roadway.   The troopers noticed that the defendant's face was pale, and his pupils were dilated. When the client exited the vehicle he leaned against the car to steady himself. Because the officer noticed some balancing problems he requested the defendant to perform field sobriety tests.   Our client notified the trooper that he had a number of medical conditions that could create a problem in his performance (lower back, head, knees).
       This is a recurring problem for law enforcement and defendants. The officer is going to ask most suspects of a DUI to perform the field sobriety tests despite the fact that they have physical disabilities.   Their response is typically, "don't worry, I will consider your medical conditions in determining whether you performed the tests correctly".    It doesn't matter how sincere the police officer is when he tells you he is going to consider your medical disabilities as you perform the field sobriety tests.   The fact of the matter is that police officers are not doctors, and have got no idea how severe someone's injury is, or how it is affecting someone's ability to perform a field sobriety test.   In this case the defendant attempted to perform a number of field sobriety tests and the officer failed him on all of them.
       After the client was arrested for DUI the officer asked if the client was under any medication.   The client indicated that he was taking a number of medications (zoloft, vicodin, and some sinus medication).   The officer concluded that the client was under the influence of prescription medications, and asked the defendant to submit a urine sample. The defendant dropped a urine sample and the results indicated that he had a number of different drugs in his system.   Some of the substances were break down products of valium and a mild stimulant.

DEFENSE: In this particular case we were able to hire an expert in Forensic Toxicology. The toxicologist report supported our client's story in terms of the timing, and amount of drugs that were ingested. Ultimately, the prosecution was unable to prove that the defendant's normal faculties were impaired. A urine sample by itself makes it very difficult to quantify the amount of drugs in someone's system. In addition, the urine sample cannot tell you when the drugs were taken.

RESULT: The DUI was dropped by the State Attorney.

CASE #001-674-XAM; 007-179-ELP; 007-182-ELP; 004-209-EPL; Judge Tom Barber

FACTS: The defendant was pulled over for failure to maintain a single lane and no tag light. When the officer approached the vehicle she claimed she smelled an odor of alcohol on the defendant's breath, and his eyes were bloodshot and glassy. The officer also noticed three open beer bottles in the defendant's vehicle. Based on her observations she called a DUI unit to conduct the investigation. The defendant told police he had taken several medications for depression and other illnesses. During the investigation the DUI officer administered a number of field sobriety tests. However, the incident report was unclear as to how he performed on the tests. This problem was aggravated by the fact that the officer had no video of the defendant's performance.

One of the tests often administered by a police officer in a DUI investigation is the Horizontal Gaze Nystagmus (HGN) test. The HGN test involves the officer simply moving a pen with a light on the end of it in front of your eye. The subject is required to keep their head still while the officer moves his pen across your field of vision. If your eye begins to shake when the pen is moved to a 45 degree angle then it is supposed to indicate impairment. It is important to realize that a nystagmus can be caused by a number of factors that do not involve alcohol (contacts, fatigue). Some people actually have a natural nystagmus. For some reason the officer in the defendant's case did not administer the HGN test. This seemed very strange since he indicated the defendant did not perform well on some other tests that require physical coordination. If the officer felt the defendant was too intoxicated to perform the physical tests (walk and turn, one-legged stand, ... etc.) then why didn't he administer a test that involves almost no physical performance on the part of the defendant?
The truth of the matter is that just about every DUI investigation includes an HGN test, and they fail almost everyone. For some reason the officer decided not to administer this test in our case.

DEFENSE: The police officer's report was very confusing and inconsistent with the facts. In addition, the State was unable to explain the inconsistencies without the DUI video.

RESULT: The defendant's DUI was dropped and his traffic infractions were dismissed.

Case # 001-899-XAM

FACTS: The defendant was driving west on Kennedy Boulevard when he was pulled over after striking the lane markers five times, and moving outside the lane marker on one other occasion. The client was pulled over by the law enforcement officer and agreed to perform field sobriety tests, which he failed. After being arrested he was transported to the Hillsborough County Jail where he submitted to the breathalyzer. His result was .205 and .200.

DEFENSE: We filed a Motion to Suppress the evidence in the above case claiming that the defendant's driving pattern (drifting w/in his lane) was caused by the fact that tropical storm Alberta had landed in the Tampa Bay area that night. Alberta had created wind gusts of 60 mph in the Tampa Bay area. The defendant drove a Sports Utility Vehicle and with its high center of gravity and larger body its steering can be affected by large winds.

RESULT: The State was unable to proceed at the Motion to Suppress Hearing and the DUI Charge was dropped.

Case No.: 001-235-XAM; Judge: Lawrence Lefler

FACTS: The officer stopped the defendant driving the wrong way down a one way street. The defendant was not familiar with the area and got lost. After stopping the defendant's vehicle, the officer asked the driver to perform field sobriety tests. The defendant complied with the officer's request. the defendant was arrested for DUI because the officer felt she failed the field sobriety tests.

DEFENSE: The officer failed to properly judge the defendant's performance on the field sobriety tests. Closer inspection of the video showed that the defendant had performed very well on the tests. It is common for many officers to exaggerate someone's poor performance. Further investigation at Orient Road Jail and Central Breath Testing confirmed that the driver's level of impairment was not consistent with the officer's opinion.

RESULT: The state dropped the DUI charge.

CASE #001-194-XAM; Judge: James Dominguez

FACTS: The defendant was alleged to have been driving recklessly and almost crashing into a vehicle traveling in oncoming traffic. The van traveling in the opposite direction supposedly had to stop and swerve his vehicle in order to avoid the defendant. The officer claimed the defendant had bloodshot glassy eyes and slurred speech. He also noticed a distinct odor of alcoholic beverage coming out of his mouth. According to the police report the defendant showed clues of impairment on his field sobriety tests and was arrested for DUI. Disagreements between the officer and the defendant led to the defendant refusing to blow into the breathalyzer.

DEFENSE: The videotape revealed that the officer was very accusatory and coercive towards the defendant. In addition, the defendant's performance on the field sobriety tests appeared to be much better than the officer described.

RESULT: The State dropped the DUI charge.

Case #001-648-XAM; Judge Tom Barber

FACTS: The officer witnessed the defendant run two stop signs before activating her overhead lights and stopping the defendant. The defendant did not perform any field sobriety tests, and blew .129 and .129 at central breath testing.

DEFENSE: The defendant's medical condition and background prevented him from successfully performing the field sobriety tests.

RESULT: The State dropped the DUI charge.

Case #06-CM-014800; Judge Joelle Ober

FACTS: The officer observed the defendant's vehicle continuously cross over the lane lines, and have difficulty maintaining a single lane. After a traffic stop the officer noticed that the defendant had an odor of alcohol on her breath, slurred speech, and blood shot eyes. According to the officer the defendant had difficulty standing and fumbled for her wallet. The officer administered Field Sobriety Tests to the defendant, and arrested her for DUI.
During his investigation the defendant admitted to taking xanax, and smoking marijuana a week earlier. The officer requested the defendant to submit a urine screen. After making numerous attempts the defendant was unable to drop urine.

DEFENSE: After questioning the police officer at the formal hearing for Department of Motor Vehicles the officer admitted that the defendant did not seem impaired by marijuana. In addition, the officer admitted that the defendant was sincerely unable to drop a urine screen.

RESULT: After discussing the testimony of the officer at the formal hearing the State agreed to dismiss the DUI charge.

Case Number: 006-386-XAF

FACTS: The defendant was stopped for driving erratically in his lane at low speed. Shortly after the stop the law enforcement officer read the defendant his Miranda rights. The defendant indicated to the officer that he was unsure about his rights which led to even more confusion on the part of the defendant. After performing two road side tests (alphabet, counting backwards) the defendant was arrested and transported to the county jail. At the jail law enforcement claimed that the defendant refused to take the breathalyzer. There was a dispute as to whether the defendant actually had the ability to perform the breath test.

DEFENSE: After reviewing the officer's police report and the video it appeared that there were two pretrial motions to suppress evidence. One motion to suppress the stop of the defendant's vehicle and another motion to suppress all of the statements made by the defendant after the stop.

RESULT: Pretrial negotiations led the State to drop the DUI charge .

Tampa DUI Defendant's Case is Dismissed Where he Blows .143 and .156

CASE #002-712-XAM; Judge Tom Barber

FACTS: The defendant was alleged to have pulled in front of the police officer almost striking a curb. Shortly after pulling into traffic he approached a traffic light where he straddled the double line. The officer followed the defendant who came close to striking a second curb. As the defendant approached the next light he was alleged to have almost struck the vehicle in front of him, and then cut off another vehicle short distance later. The officer stopped the defendant, conducted Field Sobriety Tests and arrested the defendant for Driving Under the Influence. Shortly after arriving at the Orient Road Jail the defendant submitted to a breathalyzer test and blew .143 and .156.

DEFENSE: Shortly after being retained the defendant made us aware of the passenger in his vehicle, and that the path of travel described by the officer was incorrect. Further investigation at the crime scene led us to file a Motion to Suppress the Stop of the Defendant’s vehicle. Testimony from the officer elicited during the motion to suppress hearing was inconsistent with the configuration of the area of the arrest and the passenger’s testimony.

RESULT: The Court Granted the Motion to Suppress and the DUI charge was dismissed.

return to top

CASE #001-132-XCA; 001-477-EOL; Judge Christine Vogel; Date: July 26, 2006

FACTS: The defendant was pulled over and charged with Racing on Public Highways. Shortly after the stop the police officer smelled an odor of alcohol on the defendant and noticed he was slow to react. The defendant was asked to perform field sobriety tests and performed poorly. The officer did not video the defendant at the scene.

DEFENSE: It was unclear from the police reports whether the stop of the defendant was proper. The illegality of the stop led to negotiations with the State on both charges.

RESULT: The DUI charge was dropped and the State dismissed the Racing on Highways charge.

return to top

CASE #404-049-W; Judge James Dominguez; Date: July 10, 2006

FACTS: The defendant was confronted by police who claimed he had a distinct odor of alcohol and slurred speech. The officer asked the defendant not to drive. A short time later the defendant drove his vehicle and was stopped for failing to use a turn signal. According to the officer the defendant was slow to react, and refused any testing.

DEFENSE: A pretrial motion to suppress the stop was filed asking the court to suppress any and all evidence that emanated from the stop. This motion led to pretrial negotiations with the State.

RESULT: The DUI charge was dropped .

return to top

CASE #001-263-XAM; Date: June 6, 2006

FACTS: The defendant was stopped by law enforcement without a headlight. His vehicle was stopped and the officer his speech to be slurred and his eyes were bloodshot and glassy. The defendant performed field sobriety tests and was arrested for DUI. The breath result was .095 and .095.

DEFENSE: The officer did not properly assess the defendant’s performance on his field sobriety tests.

RESULT: The DUI charge was dropped .

return to top

CASE #000-026-XCA; Judge James Dominguez; Date: June 6, 2006

FACTS: The defendant was observed weaving outside of his lane and driving his vehicle 60 mph in a 45 mph zone. Shortly after he was stopped by law enforcement he was asked to perform field sobriety tests. After considering the defendant’s performance the officer arrested the defendant. The breath result was .106 and .106.

DEFENSE: The defendant’s performance on the field sobriety tests created a contradiction in the evidence.

RESULT: The DUI charge was dropped .

return to top

CASE #001-603-XAM; Judge James Dominguez; Date: April 4, 2006

FACTS: The defendant left a bar and attempted to drive home. After becoming ill outside of his vehicle he fell asleep behind the wheel. He was contacted by law enforcement and asked to perform field sobriety tests. After failing these tests and making statements to the police officer he was arrested. The defendant was transported to Central Breath Testing and blew .078 and .082.

DEFENSE: While the defendant was ill in front of the police officer and had a lot of trouble performing field sobriety tests, he had taken steps to avoid driving.

RESULT: The DUI charge was dropped .

return to top

CASE #727-040-X; 001-475-DSF; 001-426-DSF; 000-646-DSQ; 000-645-DSG; Date: March 23, 2006

FACTS: The defendant was charged with his 3rd driving under the influence charge, and was also charged with violating his probation on a previous reckless driving offense (a reduction of a prior DUI). The defendant was also charged with numerous other traffic violations (driver’s license restriction violation, refusal to submit to breath alcohol testing, failure to display PIP insurance, and improper/unsafe equipment). The defendant was pulled over for an equipment violation and the officer immediately noticed an odor of alcohol coming from the defendant. The defendant refused to take the field sobriety tests and the breathalyzer.

DEFENSE: We argued that the state case lacked the evidence required to prove Driving Under the influence.

RESULT: The defendant’s DUI charge was dropped and all the remaining traffic citations were dismissed. The defendant was also continued on his probation.

return to top

CASE #05-CM-016071; Judge Tom Barber; Date: January 12, 2006

FACTS: The defendant was arrested for DUI, possession of cannabis, and possession of drug paraphernalia. The officer’s attention was drawn to the defendant when his car accelerated and made a quick lane change. The officer then observed the defendant’s car weave within its own lane and strike the lane line several times. After the defendant exited the vehicle the officer asked the defendant to perform field sobriety tests and the breath test. The defendant refused, and was arrested. Shortly after his arrest the defendant was searched and the officer found a pipe with marijuana in it.

DEFENSE: Pretrial motions were filed that led to the state reducing the DUI charge to a reckless driving.

RESULT: The defendant’s DUI charge was dropped.

return to top

CASE #003-015-XAM; Judge Joelle Ober; Date: November 2, 2005

FACTS: The defendant was pulled over at 1:30 a.m. after striking a curb as he exited a bar. The defendant performed field sobriety tests, but refused the breathalyzer.

DEFENSE: A pretrial motion to suppress was filed questioning the validity of police officer’s stop of the defendant’s vehicle.

RESULT: The DUI charge was dropped.

return to top

CASE #727-623-X; Judge Joelle Ober; Date: October 21, 2005

FACTS: The defendant was arrested DUI and failure to maintain a single lane. The deputy witnessed the defendant weave outside of his lane in an aggressive manner. Upon exiting the vehicle the defendant was unsteady on his feet and did not pass the field sobriety tests. The defendant refused to take a breathalyzer test.

DEFENSE: We argued that defendant was not able perform the field sobriety tests due to his medical condition.

RESULT: The DUI charge was dropped.

return to top

CASE # 627-943-X; Judge James Dominguez; Date: August 4, 2005

FACTS: The Defendant struck several vehicles before coming to a stop in a ditch. Law enforcement arrived and the defendant agreed to perform field sobriety tests. According to the officer the defendant failed the field sobriety tests and was transported to central breath testing where he blew .233 and .244.

DEFENSE: The State was unable to pursue the charge at trial due to a lack of evidence.

RESULT: The DUI charge was dropped.

return to top