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

          On January 25, 2009, I posted an article on this website entitled "Judge Throws Out More Than 100 Breathalyzer Tests."  The article discussed how two different appellate courts affirmed the rulings of Manatee County Court Judge Doug Henderson that evidence of breath alcohol tests in more than 100 drunk-driving cases could not be presented at trial 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.

          On April 30, 2009, the Minnesota Supreme Court ruled similarly when it held in the case of State of Minnesota v. Brunner that a lower-court judge was correct in ordering the prosecutor's office to supply Brunner's lawyer with the computer source code for the machine that Brunner blew into because the source code might reveal deficiencies that could be used to challenge the reliability of the Intoxilyzer which could, in turn, ultimately affect Brunner's guilt or innocence.

         The prosecutor's office argued that it could not provide Brunner's lawyer with the source code because it did not possess it due to the fact that the manufacturer of the breathalyzer, CMI, Inc., owned the code.  The Supreme Court dismissed that argument finding that the State of Minnesota did, in fact, own part of the source code and that the prosecutor's office has a legal obligation to assist a defendant in seeking access to material that the prosecutor possesses.

          Jury instructions in Minnesota state that jurors must assess the reliability of the breath-testing method in DUI cases.  That being the case, said the Supreme Court, Brunner should be allowed access to the software that controls the testing procedure.

          In Florida, jurors in DUI cases are instructed as follows:

"If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 or  more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that his normal faculties were impaired.  However, such evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence to the extent that his normal faculties were impaired."

           If such "other evidence" can arguably be acquired once access to the breathalyzer's computer software is obtained, then it would seem only logical that individuals charged with DUI should have such access.  (But then again, who ever said that the law is logical?)

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          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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          Jeff Norman of The Huffington Post recently emailed me the following question:

          "What makes it legal for police to detain a DUI arrestee until he or she is 'sober,' when the only purpose of the detention is to maintain safety, and there is no intent to bring the arrestee before a judge for arraignment?  I’m not questioning anything about the arrest or booking process; I’m only asking about the extended detention (usually an overnight jail stay) that begins when the booking process has been completed.  I believe such detentions are illegal, despite conventional wisdom which suggests otherwise.  Your thoughts?"

          What Jeff is referring to is Florida statute section 316.193(9) which states:

          "A person who is arrested for [DUI] may not be released from custody:

          (a) Until the person is no longer under the influence of alcoholic beverages, any chemical substance . . ., or any [controlled] substance . . . and affected to the extent that his or her normal faculties are impaired;

          (b) Until the person's blood-alcohol level or breath-alcohol level is less than 0.05; or

          (c) Until 8 hours have elapsed from the time the person was arrested."

          Florida's Fifth District Court of Appeal dealt with Jeff's question in the case of State of Florida v. Atkinson.  In Atkinson, one of the issues that the Court was asked to decide was whether putting someone in jail for 8 hours after he is arrested for DUI is a violation of the double jeopardy clause of the Florida Constitution and the United States Constitution.  In other words, is a person who is jailed for 8 hours after being arrested for DUI being punished twice if he is subsequently prosecuted for DUI?  If the answer is yes, then such a procedure is a double-jeopardy violation, and the prosecuting authority should not be permitted to prosecute that person for DUI.

          The Atkinson Court did not agree, however, that locking someone up for 8 hours after being arrested for DUI and later prosecuting that same person for DUI is a double-jeopardy violation.  The Court reasoned that:

          "The practice of detaining an intoxicated driver is to protect that driver and the community from an unreasonable danger imposed by drunken driving.  It is a situation analogous to the detention of persons under quarantine orders wherein a threat is posed to the public health and safety. . . .  There is no claim or indication in this case that the statute is being arbitrarily enforced in an unconstitutional manner."

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1.  What do police officers look for before stopping  a driver who they think might be intoxicated?

According to the National Highway Traffic Safety Administration, some of the things that police officers should look for include:

• Driving more than 10 miles below the speed limit
• Almost striking another car on the road
• Weaving within one's lane of traffic
• Erratic braking
• Driving at night with headlights off

2.  What should I say if I'm stopped by an officer and he asks me if I've been drinking?

Because it is not illegal under Florida DUI law to drink and drive, it is alright to tell a police officer that you've been drinking.  However, be careful not to say that you had only one or two beers if you actually drank more than that, the reason being that the breath-testing machine may later prove that you drank a lot more than just one or two beers.

3.  The police didn't read me my Miranda rights when they first stopped me.  Can I get my case dismissed?

If only it were that easy.  The police have to give you your Miranda rights only when you are in custody and being questioned.  The United States Supreme Court has also ruled that a person is not typically in custody during a routine traffic stop.  Therefore, the police are not ordinarily required to give you Miranda warnings when first speaking with you.

4.  Will my driver's license be suspended if I refuse to do the DUI exercises by the side of the road?

No.  Refusing to do the DUI exercises is different than refusing to blow into the breath-alcohol testing machine.  If you refuse to blow into the breath-alcohol testing machine, Florida law states that your license will be suspended for 1 year for a first refusal or 18 months if your license has been previously suspended for refusing to blow into such a machine.

5.  Do I have the right to a blood-alcohol test in addition to a breath-alcohol test after I am arrested for DUI?

The Florida Supreme Court has ruled that a police officer must render reasonable assistance in helping an individual arrested for DUI get a blood-alcohol test if the individual requests such a test.  If the officer does not do that, then the results of the breath-alcohol test should not be presented to the jury at trial.

6.  What is the 20 minute rule?

According to the Florida Administrative Code, the results of breath-alcohol tests are not valid unless the arresting officer or the person administering the test can reasonably insure that the person who is asked to blow into the machine did not take anything by mouth or did not regurgitate for at least 20 minutes before blowing into the machine.  If this rule is not complied with, then the results of the breath-alcohol test should not be presented to the jury at trial  nor should DMV suspend the person's driver's license.

7.  Do I have to go to jail if I am convicted of DUI?

According to Florida DUI law, a judge has the authority to send someone convicted of DUI to an alcohol treatment program or drug treatment program rather than to jail.

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Why aren't all DUI investigations videotaped?  Perhaps it's because police departments across the country are afraid that such a practice might result in more jury acquittals than is presently the case.

The following story, which appears in the blog of the Criminal Lawyers' Association in Harris County Texas, addresses this very issue:

You might think that the Houston Police Department would be eager to use video equipment to record DWI arrests. After all, the video will provide strong evidence of the defendant's physical and mental faculties at the time of the arrest. And if there's a video you can more easily protect yourself against complaints of misconduct. So if you were a police department making righteous arrests and not mistreating people, you'd be eager to have every stage of the arrest documented on video. Right?

Right.

So why is it that [Houston Police Department] DWI Task Force administrator Paul Lassalle is writing to Warren Diepraam and Eric Kugler of the Harris County District Attorney's Office and asking:


Now, [the law] states that we have to purchase and maintain the equipment of video taping a person charged with certain crimes but there is no requirement to actually do so, correct?


It looks to me like [the Houston Police Department] wants justification for not using the video equipment that they are required to have. And Warren is giving them that justification.

Why, if you have to purchase and maintain the video equipment, would you not want to use it?

And why, if you were the lead prosecutor on DWI cases in Harris County, would you not admonish [the Houston Police Department] that the better practice, to make sure that the jury has the best possible evidence, is to use the equipment?

When I first began trying DUI cases in 1990 as a criminal defense lawyer in Palm Beach County, Florida, it was common practice for the Sheriff's Office to videotape the exercises that people were instructed to perform by the side of the road during a routine DUI investigation.  After the person was arrested and taken to the county jail, he was again instructed to perform those same exercises while being videotaped. 

In several cases that I handled, I was puzzled as to why my client had ever been arrested in the first place since he or she performed the exercises with little, if any, difficulty.  I think juries were perplexed too, and they often voiced their perplexity with votes of "not guilty."

So it wasn't surprising that beginning in the early 90's, the Sheriff's Office stopped videotaping people when they were performing exercises by the side of the road.  And for the past several years, arrested individuals have not been instructed to repeat such exercises after being taken to the county jail.

The result is that in many cases, jurors never see for themselves how the person on trial actually performed the exercises.  They are instead asked to rely upon the self-serving observations of the arresting officer.

Why not go back to videotaping the entire investigation?  Isn't the purpose of a trial to discover the truth? 

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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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The amount of fine in a DUI case depends upon such things as whether the person has any prior convictions for DUI, whether the person's blood-alcohol level or breath-alcohol level was 0.20 or higher when driving, or whether the person had a minor in his vehicle while driving. Florida statute section 316.193 lists the possible fines for DUI. Some of those fines include:

• For a first DUI conviction, the minimum fine is $250.00, and the maximum fine is $500.00.  However, if the individual has a blood-alcohol level or breath-alcohol level of 0.20 or higher or if a minor is in the vehicle, the minimum fine becomes $500.00, and the maximum fine becomes $1,000.00.
  
  
• For a second DUI conviction, the minimum fine is $500.00, and the maximum fine is $1,000.00.  However, if the individual has a blood-alcohol level or breath-alcohol level of 0.20 or higher or if a minor is in the vehicle, the minimum fine becomes $1,000.00, and the maximum fine becomes $2,000.00.
  
  
  
• For a third DUI conviction, the maximum fine is $5,000.00 if the third conviction is within 10 years of a prior DUI conviction.  If the individual has a blood-alcohol level or breath-alcohol level of 0.20 or higher or if a minor is in the vehicle, the minimum fine is $2,000.00.
  
  
  
• For a third DUI conviction that is not within 10 years of a prior DUI conviction, the minimum fine is $1,000.00, and the maximum fine is $2,500.00.  If the individual has a blood-alcohol level or breath-alcohol level of 0.20 or higher or if a minor is in the vehicle, the minimum fine is $2,000.00.

• For 4 or more DUI convictions, the minimum fine  is $1,000.00.  However, if the individual has a blood-alcohol level or breath-alcohol level of 0.20 or higher or if a minor is in the vehicle, the minimum fine is $2,000.00.

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The amount of jail time that a judge can sentence a person to in DUI cases depends upon such things as whether the person has any prior convictions for DUI, whether the person's blood-alcohol level or breath-alcohol level was 0.20 or higher when driving, or whether the person had a minor in his vehicle while driving.  Florida statute section 316.193 lists the possible jail penalties for DUI.  Some of those penalties include:

• For a first DUI conviction, the maximum jail sentence is 6 months.  However, if the individual has a blood-alcohol level or breath-alcohol level of 0.20 or higher or if a minor is in the vehicle, the maximum sentence is 9 months jail.

• For a second DUI conviction, the maximum jail sentence is 9 months. However, if the individual has a blood-alcohol level or breath-alcohol level of 0.20 or higher or if a minor is in the vehicle, the maximum sentence is 12 months jail.  Also, if the second conviction occurs within 5 years of a prior DUI conviction, there is a mandatory penalty of at least 10 days in jail, and at least 48 hours of that jail sentence must be served consecutively.

• For a third DUI conviction, the maximum prison sentence is 5 years if the third conviction is within 10 years of a prior DUI conviction.  There is also a mandatory penalty of at least 30 days in jail, and at least 48 hours of that jail sentence must be served consecutively.  However, if the third DUI conviction occurs more than 10 years after a prior DUI conviction, the maximum penalty is 12 months in jail.

• For 4 or more DUI convictions, the maximum penalty is 5 years in prison.

Judges may, if they choose, require persons convicted of DUI to serve all or any portion of imprisonment in a residential alcoholism treatment program or in a residential drug abuse treatment program, and any time spent in such programs must be credited toward the total amount of imprisonment that is imposed.

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When a person is charged with DUI in Florida, there are two different ways for that person's driver's license to become suspended:

1.  The Florida Department of Highway Safety and Motor Vehicles can suspend someone's license if the person refused to submit to a lawful breath, blood, or urine test or if the person had an unlawful blood-alcohol or breath-alcohol level of 0.08 or higher; and

2.  A criminal court must suspend a person's driver's license for a period of time if that person is convicted of DUI.

How long the suspension lasts is determined by such factors as:

a.  Whether or not the person has ever previously refuse d to submit to a lawful breath, blood, or urine test; and

b.  Whether the person has any prior convictions for DUI.

Because an individual's driver's license can be suspended under several different scenarios, it is essential that a person facing the suspension of her license consult with an experienced DUI attorney and that she do so as quickly as possible since there are various deadlines that she must comply with if she wishes to challenge the suspension of her license.

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What is the "Ten Day Rule" in a Florida DUI case?  That is the rule which says that if you have been arrested for DUI in Florida and you refused to blow into a machine or if you refused to give a sample of your blood or urine, your driver's license will be suspended for at least 1 year by the Florida Department of Motor Vehicles ("DMV") unless you ask for a hearing within 10 days of being arrested. 

Also, if you blew into the machine and it registered 0.08% or higher, your driver's license will be suspended for at least 6 months unless you ask for a hearing within 10 days of being arrested.  Florida DMV is very strict about this 10-day time limit, so be sure to have your lawyer request this hearing on your behalf if you wish to contest the suspension of your license.

Florida DUI lawyer Ronald Chapman has been representing people accused of  DUI since 1990. You can read more about Mr. Chapman’s experience as a Florida DUI attorney as well as review news articles about some of his cases.  Some of the types of cases and issues that Mr. Chapman has handled since 1990 include:

• Death Penalty Cases
• Assault and Battery Cases
• DUI Cases
• Drug Cases
• Sex Crimes Cases
• Sealing & Expunging Criminal Records
• Bond|Bail
• Mistaken Identification and Wrongful Conviction
• Police Interrogations
• Sentencing

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This is the problem with breath-testing machines in Florida DUI cases:  a couple of numbers are spit out of a machine that very few people understand.  Those numbers say that the person arrested was driving with a breath-alcohol level that was over the legal limit.  Those numbers are, in turn, presented to a jury who view them as being absolute scientific fact.  But as several cases in the state of Washington demonstrate, DUI breath-testing machines are not infallible.  The following story appeared at seattlepi.com on October 3, 2007:

"DUI lab mix-ups finally get day in court:  Licenses already returned to dozens of suspect drivers"

By JENNIFER LANGSTON AND VANESSA HO
P-I REPORTERS 

Defense attorneys will start arguing next week to dismiss hundreds of drunken-driving cases across Washington based on what they allege is a pattern of misconduct and incompetence at the state toxicology lab.

Already, 36 people arrested on suspicion of DUI had their licenses reinstated last month, after several Department of Licensing hearing examiners expressed a lack of confidence in the Seattle lab's test results.

One examiner allowed a 49-year-old Puyallup man to keep his license, despite a second DUI arrest five days before his hearing. A 50-year-old Yakima County woman with a prior DUI also got to keep driving.

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