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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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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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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