West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

For several years it has  been the law in the United States that if the police illegally seize someone, then any contraband that the police find on that person--such as guns or drugs--cannot be presented at that person's trial.  This is sometimes referred to as the doctrine of the "fruit of the poisonous tree."

However, when the police search a student's property at school, such a search may not be illegal even though the student's behavior does nothing to arouse the officer's suspicion.   Thus, in one Florida case, the court ruled that it was legal for the police to search a student's purse even though they did not suspect her of having done anything illegal. 

In that particular case, the court said that the search of the student was an administrative search which had the purpose of deterring students from bringing drugs and dangerous weapons to school.  This type of search differed from those searches which are intended to penalize individuals who are found with contraband on their persons.  Therefore, the court ruled, it was legal for the police to search the student's purse.

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Sometimes, when a client is scheduled to go to court, she will ask me if the judge is going to revoke her bond and lock her up when she arrives at court.  I assure such clients that the judge will not revoke their bond and lock them up unless they have violated one of the conditions of their bond. 

In a recent case called Creech v. State of Florida, a Florida appellate court said that before a judge can increase someone's bond, the prosecution must first prove that there has been a substantial change in circumstances or additional evidence uncovered since the person's bond was originally set.  A judge cannot increase someone's bond simply because he believes that the conditions of bond that were previously set by another judge were too lenient.

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Just because the police handcuff you does not necessarily mean you're under arrest.  That's what the Florida Supreme Court ruled in a case called Reynolds v. State of Florida.

In Reynolds, the Florida Supreme Court ruled that it is legal for a police officer to handcuff someone if the officer reasonably believes that it is necessary to do so in order to protect the officer's safety or to prevent that person from fleeing.  However, handcuffing a person in this situation does not necessarily mean that the person is under arrest; it may simply mean that the person is being temporarily detained while the officer conducts his investigation.

The Reynolds Court cited to a case from Alaska called Howard v. State of Alaska which held that a person who had been handcuffed and had guns drawn on him by police officers was not under arrest but was simply being detained while the police conducted their investigation.

So the next time a police officer points a gun at you and puts handcuffs on your wrists, just remember--you may not be under arrest.

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On February 10, 2008, I posted an article entitled "When Are Miranda Warnings Required?"  In that article, I stated that the police are required to give a person Miranda warnings only when that person is in custody and is being interrogated by the police.  After writing that article, I came across a recent Florida case which seems to contradict the United States Supreme Court's decision in Miranda v. Arizona.

In State v. Busciglio, Mr. Busciglio was arrested for DUI and then taken to a police facility where he was asked to blow into a machine in order to determine the amount of alcohol in his breath.  Mr. Busciglio refused to blow and later argued that he had the right to consult with a lawyer before deciding whether to blow.

It would seem that Mr. Busciglio had a good argument because he was clearly in custody and because it would appear he was being interrogated by the police when the officer asked him whether he would agree to blow into the machine.

However, the Florida appellate court that decided his case rejected Mr. Busciglio's argument.  The Court said that whenever a person exercises his privilege to drive in Florida he thereby impliedly consents to give a sample of his breath if requested to do so by a police officer.  That being the case, "[a]sking a defendant to comply with conduct he has no 'right' to refuse does not invoke any degree of coercion associated with impermissible interrogation."  And because Mr. Busciglio was not being interrogated when asked to blow into the machine, the Court ruled, the police officer was not required to give him Miranda warnings at that particular moment.

Although the United States Supreme Court's decision in Miranda v. Arizona appears straightforward at first blush, cases like Mr. Busciglio's demonstrate the confusion that often surrounds the day-to-day application of the Miranda decision.

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Many people who have grown up watching TV mistakenly believe that the police must always give a person Miranda warnings as soon as they begin speaking with him. 

From watching television, many people know that Miranda rights include the following:

1. You have the right to remain silent—you do not have to talk.

2. What you say can be used and shall be used against you in a court of law.

3. You have the right to talk with an attorney before you talk with us, and you have the right to have the attorney present during the time we are talking to you.

4. If you do not have the funds to employ an attorney, one shall be appointed to represent you free of charge.

5. Do you understand these rights as I have explained them to you, yes or no?

6. Do you want to talk to us about your case now, yes or no?

7. Do you want an attorney present during the time we are talking to you, yes or no?

However, the police are required to give a person Miranda warnings only:

a.  When a person is in custody; AND

b.  When the police are questioning that person.

Therefore, if the police arrest someone but decide not to question him, they do not have to give him Miranda warnings.

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Many people who are convicted of DUI are eligible to obtain a work permit while their driver's license is still suspended.  Florida statute section 322.271 authorizes two different types of work permits:

1.  A business-purposes-only permit "means a driving privilege that is limited to any driving necessary to maintain livelihood, including driving to and from work, necessary on-the-job driving, driving for educational purposes, and driving for church and for medical purposes."

2.  An employment-purposes-only permit "means a driving privilege that is limited to driving to and from work and any necessary on-the-job driving required by an employer or occupation."

•  In order to acquire a work permit after a first DUI conviction, a person must have completed DUI school and applied to the Florida Department of Highway Safety and Motor Vehicles ("DHSMV") for a hearing regarding possible hardship reinstatement.

•  In order to acquire a work permit after a second DUI conviction that occurs within 5 years of a prior DUI conviction, a person may apply for a hardship license after his license has been suspended for one year.  Such an individual must have completed DUI school, he must remain in the DUI supervision program for the remainder of the suspension period, and he may not have consumed any alcohol or controlled substances or driven a motor vehicle for 12 months prior to obtaining a hardship license.

•  In order to acquire a work permit after a third DUI conviction that occurs within 10 years of a prior DUI conviction, a person may apply for a hardship license after his license has been suspended for two years.  The individual must have completed DUI school, he must remain in the DUI supervision program for the remainder of the suspension period, and he may not have consumed any alcohol or controlled substances or driven a motor vehicle for 12 months prior to obtaining a hardship license.

•  In order to acquire a work permit after a DUI conviction causing serious bodily injury, a person must have completed DUI school and applied to DHSMV for a hearing regarding possible hardship reinstatement.

•  If a person has been convicted of DUI manslaughter and has no prior DUI-related convictions, he may apply for a hardship license if he meets the following requirements:

a.  5 years must have passed from the date of suspension or from the date when he was released from jail;

b.  He has not been arrested for a drug-related offense for at least 5 years prior to the hearing at DHSMV;

c.  He has been alcohol-free and drug-free for at least 5 years prior to the hearing;

d.  He must have completed DUI school and must be supervised by the DUI program for the remainder of the suspension period.

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If a person is convicted of DUI in Florida, his driver's license is suspended by the Florida Department of Highway Safety and Motor Vehicles.  How long his license is suspended for varies depending upon such things as how many DUI convictions he has and when they occurred.  Florida statute section 322.28 lists the following periods of suspension:

• For a first DUI conviction, an individual's license is revoked for a minimum of 6 months and a maximum of 1 year.
   
• For a second DUI conviction within 5 years of a prior DUI conviction, an individual's license is revoked for a minimum of 5 years.
   
• For a second DUI conviction more than 5 years after a prior DUI conviction, an individual's license is revoked for a minimum of 6 months and a maximum of 1 year.
   
• For a third DUI conviction within 10 years of a prior DUI conviction, an individual's license is revoked for a minimum of 10 years.
   
• For a third DUI conviction more than 10 years after both prior DUI convictions, an individual's license is revoked for a minimum of 6 months and a maximum of 1 year.
   
• For a fourth DUI conviction, an individual's license is revoked permanently.
   
• If convicted of DUI involving serious bodily injury, an individual's license is revoked for a minimum of 3 years.
   
•  If convicted of DUI manslaughter, an individual's license is revoked permanently.

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