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

          Manatee County Court Judge Doug Henderson recently issued an order suppressing all evidence that the police obtained at a sobriety checkpoint in 2008. 

          According to an article that appeared at BradentonHerald.com, Judge Henderson ruled that  because the Manatee County Sheriff's Office did not follow their own written guidelines regarding the operation of DUI checkpoints, any evidence gathered by the police as a result of implementing that particular checkpoint may not be presented in court by the prosecutor's office.  Judge Henderson's ruling may well result in the Manatee County State Attorney's Office having to drop some, if not most, of those DUI cases.

          In the case of Campbell v. State of Florida, the Florida Supreme Court decided the issue of whether advance written guidelines are required before the police may conduct a roadblock.  In deciding that such guidelines are indeed required, the Court was particularly troubled by the fact that the police worksheets in that case failed to specify "whether the officers were to stop all motorists, or only one in three or one in five vehicles, or were to use some other selection criteria."  That failure, along with several others, rendered Mr. Campbell's stop by the police unconstitutional pursuant to both the Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution.

          The Campbell Court concluded with this pertinent observation:

          "The requirement of written guidelines is not merely a formality.  Rather, it is the method this court and others have chosen to ensure that the police do not act with unbridled discretion in exercising the power to stop and restrain citizens who have manifested no conduct that would otherwise justify an intrusion on a citizen's liberty.  In this country the police are not vested with the general authority to set up "routine" roadblocks at any time or place.  Rather, law enforcement was placed on notice by our holding in [State of Florida v.] Jones that the stopping and detaining of a citizen is a serious matter that requires particularized advance planning and direction and strict compliance thereafter."

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          Two years ago, Manatee County Court Judge Doug Henderson ruled that evidence of breath alcohol tests in more than 100 drunk-driving cases could not be presented at trial.  According to an article that appeared earlier this month at BradentonHerald.com, Judge Henderson's rulings in those several cases have been affirmed by two different courts of appeals.  The result may be that the Manatee County State Attorney's Office will have to drop certain of those cases while reducing charges in others (from DUI to possibly reckless driving). 

          Judge Henderson ruled the results of the breathalyzer tests inadmissible because the company that makes Florida's breathalyzers, CMI, Inc., has consistently refused to release the contents of its computer software to lawyers representing individuals accused of DUI in Manatee County.  Those lawyers argued that their clients have a right to have their own experts analyze the breathalyzers and its software in order to determine if the machines operate correctly.  Judge Henderson agreed, stating that while CMI's claim that its source code was a trade secret had merit, the accused individuals' right to a fair trial outweighed CMI's interest in protecting its software from public disclosure.

          The big question now is whether judges in other Florida counties will, like Judge Henderson, rule breathalyzer tests inadmissible as long as CMI, Inc. refuses to reveal its source code.

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          Several Florida cases in which defendants claimed self-defense have been overturned on appeal because the trial judge incorrectly read to the jury what is sometimes referred to as a forcible-felony jury instruction.  According to this particular jury instruction, a defendant may not claim that he acted in self-defense if he did so while "attempting to commit, committing, or escaping after the commission of, a forcible felony."

          Perhaps an example taken from the Florida Supreme Court case of Martinez v. State of Florida would help to clarify this rather difficult jury instruction. 

          Suppose a person were to go into a convenience store and point a knife at the clerk while demanding all of the money in the cash register.  As the clerk is emptying the register, a customer approaches the robber from behind and hits him on the head with a bottle.  The robber then turns around and stabs the customer.

          At his trial, the robber would not be allowed to argue that he stabbed the customer in self-defense because the Florida Legislature has decided that a person who is committing a separate and independent forcible felony (in this particular example, the forcible felony of robbery), is not entitled to use deadly force  (which Florida law defines as "force likely to cause death or great bodily harm.")  That is to say, because the crime of robbery is a separate and independent forcible felony, the trial judge should read to the jury the forcible-felony jury instruction which would result in the defendant not being able to argue to the jury that he stabbed the customer in self-defense.

         Where trial judges sometimes get into trouble on appeal is when they read to the jury the forcible-felony jury instruction even though the person on trial is not accused of having committed a separate and independent forcible felony.  Perhaps another example from the same Martinez case would help to explain what I mean.

          In Martinez, the defendant was charged with committing the two crimes of attempted premeditated murder and aggravated battery with a deadly weapon for the single act of stabbing his girlfriend.  At his trial, one of the defenses that Martinez relied upon for both crimes was that of self-defense.  However, the trial judge read to the jury the forcible-felony jury instruction even though Martinez was not charged with a separate and independent forcible felony.  The result was that the forcible-felony jury instruction essentially negated Martinez' self-defense claim.

          On appeal, the Florida Supreme Court ruled that although the trial judge in Martinez' case erred when he read the forcible-felony instruction to the jury, the case would not be reversed because Mr. Martinez' lawyer did not object when the judge read that particular instruction at trial.

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