Tag Archives: criminal defense

Criminal Justice – Perceived Problems, Your Solutions


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If The Law Was Fixed, Immutable – We might Understand It

I once had a string of DUI cases that were dismissed after a successful suppression motion. That streak was snapped when a judge in a small county denied a motion in my next DUI case. In that last case I was more sure I had the legal grounds to have the evidence suppressed then the one’s before it that were granted. I was positive the stop would be deemed to lack probable cause and the state would have to dump it. Heck, I even had a video! Behold, the judge thought otherwise. All that was left was an appeal but once you are forced into the appellate stage the level playing field sways heavily to the appellee (the side that did not lose the motion). Appeals also cost money. Unless you are indigent you probably won’t want to spend (or may not have) that kind of money.

What If You Think The Judge Got It Wrong?

Justice is one of those terms we all think we know. It hangs around those other words like “fair,” “true,” even “lawful.” But in the realm of LAW “justice” and “lawful” have nothing to do with each other. Forget those ambiguous words “fair” and “true.” Those words are subjectively defined by the speaker using them. So let’s go back and look at the case when a judge rules against a motion to suppress. Obviously, the lawyer presenting the motion thinks he has the law on his side. The opposing counsel will try to find a lawful or emotional reason to argue for the court to deny the motion. Finally, the judge rules. Despite what you may think the law is, what the judge decides is “the law of the case.” Meaning – you don’t like it, appeal it.

Let’s bring this down to very easy terms. Let’s say it is against the law to cross a street at night during a “full moon.” The defendant is arrested for (1) crossing a street, (2) at night, and (3) the moon was full. The defendant raises a motion (to dismiss in this situation) and brings in an almanac showing the full moon actually occurred two days before the night he crossed the street. Behold, the judge asks the police officer how big the moon was and based on that answer denies the motion to dismiss. Absent contrary law, the judge’s ruling is “lawful.” Is it “justice?”

What the judge did was “interpret” the law. That is what the judicial branch is suppose to do. Usually, attorneys will look to appellate courts that have already heard the same issue before and made a ruling on it (in a published opinion). They will present these opinions to the judge in support of their motion. However, even the written opinions of appellate courts are subject to “interpretation.”

Is There A Bright Line?

Hammurabi is known for writing the law down for all to see, read, and follow. It allowed the people to know what they could and could not do. He is cited as the first to do this – unique in the world back then. Today it is taken for granted that knowing the law is a must for a “just” system. Unfortunately, our government deems it satisfactory to “publish” the laws in books housed in libraries and on the web and grant the rest of us the “presumption” of knowing (remember, ignorance of the law is not a defense). The problem is that there are, last time I had a set of all the Florida laws in written books, at least six volumes of laws for Florida. It is safe to say NO ONE KNOWS ALL THE LAWS.

Where does this leave us. We have more laws than are possible to know. The law is subject to interpretation by the court. The courts’ rulings are also subject to interpretation. People have a right to “due process.” This means, in simple terms, they have a right to be heard (to require presentation of proof of the alleged offenses and to have the ability to defend themselves). But to have a meaningful hearing “to be heard” an obvious prerequisite would be to know what you are being heard on, in this situation – a law which is unknown and subject to interpretation. How can a system of “justice” operate under such conditions?

The Average Person Back On The Block

“Back on the block” is where my drill sergeant threatened to send me back to when I screwed up years ago. It was a euphemism for civilian life. In civilian life, people have this weird sense that everything that they are told is the way it is suppose to be. Everything is always just dandy. When it comes to their rights and the way the court system works their beliefs are false. Out of sight, out of mind. When, unfortunately, people come face to face with the “justice” system, usually due to what I would consider a minor crime, they are shocked. They don’t know their rights, they don’t know the law, and their attorney is either giving them false promises (wrong) or trying to explain how the law can be interpreted differently to different people at different places and in different courtrooms (never an easy conversation).  How can this be?

The Attorney

It is an attorney’s job to know the law and apply the law to the facts of the case. That’s great. The way things are today, I have job security. Is that the way it is suppose to be? Is it really necessary for Average Joe to have to hire an attorney for even minor crimes? (This is suppose to be a rhetorical question.)

I rarely practice in circuit court any more. I have found the minor laws are as confusing or more confusing then the serious crimes. Most people I represent never said to themselves “tonight I’m going to break the law.” They go out, doing what they think is right, and end up bailing themselves out of jail. It could be for a DUI or driving with an unknown suspended drivers license or resisting a police officer. For most non-lawyers reading this you are probably thinking “who would be stupid enough to do any of that?” The answer is “no one” but many people get arrested for those things every day.

Florida Legislature

The Florida Legislature proposes many new laws each year while they are in session. Each representative is given a limit on how much legislation they can introduce. Last session the members were allowed to introduce extra bills if they could come up with laws that could be stricken from the books. When I heard that I thought it was a brilliant idea. So brilliant I think it should be expanded. If anyone wants to introduce a bill they should be required to have a companion bill to strike down or simplify another already existing law.

Many people out there think good ideas are worth supporting. There are campaigns every year to tell us what a good idea a proposed law is. Probably the latest is the anti-texting bill. No body in there right mind will say texting and driving are a good combination. The problem is we all, ALL!, do it or have done it and will probably do it again whether it is actual texting or reading an email. Then no one who campaigns for the law knows what the law will actually say. Early attempts to pass an anti-texting bill made it against the law to view an “electronic messaging device.” This never passed. One problem was the fact that the state loves to put “electronic messaging devices” all over the highway to tell us Amber Alerts, Silver Alerts, how far the next exit is, and to tell us “not to text and drive.”

The Road to Hell is Paved with Good Intentions

I think it is time for reason to take over. First, we have to stop knee-jerk solutions to every issue that pops up. “Caylee’s Law” is the best example. Someone will go to jail for breaking that law but it won’t be Casey Anthony. Second, people need to know how the justice system works.  Frankly, that may be the hardest part of this. The only way I can suggest is for non-lawyers to spend a day in court. Just observe it. See if the court has a program set up for doing that. If not, suggest it. There are volunteer programs out there such as Court Watch you can associate with (Disclaimer: I have no idea what Court Watch does. Just pointing out there are groups out there that go to court).

Finally, most importantly, and a must do – everyone should know their Rights. I’m not talking about “reproductive rights” or “gay rights” or other unwritten claims. It is time for everyone to read the Bill of Rights in the United States Constitution and the Rights contained in Article 1 of the Florida Constitution (for Florida residents – insert your state where appropriate). These are the Rights that have the force of law. If you don’t know them you give them up. If you find yourself with a lawyer saying “I didn’t know…” it is too late.  Put down the latest “shades of grey” novel and read these things. Read them 4 times a year. Commit them to memory. If you memorized them but don’t quite understand their meaning – Google it. The answers are out there and through increased knowledge of these things maybe, just maybe, common sense will emerge.

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Double-Jeopardy Issues with Suspended License Cases


Defendant and Counsel (1895), by Yeames, an ex...

Defendant and Counsel (1895), by Yeames, an example of the problem picture, which invites the viewer to speculate on the woman’s alleged crime and on whether or not she may be guilty. (Photo credit: Wikipedia)

Just a quick post on double-jeopardy issues with suspended license cases

Early on, prior to the Blockberger case, a person could be found guilty of Driving While License Suspended [DWLS] and No Valid Drivers License [NVDL]. Lanier v. State, 226 So.2d 37 (Fla. 1st DCA 1969).  Then, some 31 years later, the 5th DCA decided that a Defendant cannot be found guilty of both DWLS and NVDL. Roedel v. State, 773 So.2d 1280 (Fla. 5th DCA 2000).

A Defendant cannot be found guilty twice for a single episode of DWLS. Hallman v. State, 492 So.2d 1136 (Fla. 2d DCA 1986).

A Defendant cannot be found guilty of Felony DWLS [F-DWLS] and DWLS-HTO for same act. Franklin v. State, 816 So.2d 1203 (Fla. 4th DCA 2002).

A Defendant can be found guilty of DWLS with permanently revoked [DWLS-PR] license and DWLS-HTO for same act. Webb v. State, 816 So.2d 1190 (Fla. 4th DCA 2002).

Now it gets confusing . . .
Can a Defendant be found guilty of Driving While License Suspended AND Driving While License Suspended as a Habitual Traffic Offender?

The state may prosecute for violation of DWLS and DWLS as a Habitual Traffic Offender [DWLS-HTO] under “same elements test” and is not double jeopardy. State v. Cooke, 767 So.2d 468 (Fla. 4th DCA 2000).

but, . . .

A Defendant cannot be found guilty of DWLS and DWLS-HTO based on “primary evil” under “degree variants” analysis. Duff v. State, 942 So.2d 926 (Fla. 5th DCA 2006).

but wait, . . .

A Defendant can be found guilty of DWLS and DWLS-HTO based on “degree variants” analysis (completely avoiding “primary evil” test, no mention of Duff case, and a confusing look at “penalties,” whether they are “moving violations,” if they receive “points,” etc.). State v. Gil, 68 So.3d 999 (Fla. 3d DCA 2011).

When someone figures out what the Gil case is trying to say please comment or contact me and let me know.

Enjoy

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Florida 2d DCA conflicts on Gant Issue with 5th DCA


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STATE, v. McCULLOUGH, 37 Fla. L. Weekly D49b (Fla. 2d DCA, Dec 30,2011) – The State appeals from the trial court’s order granting Sharon Laverne McCullough’s motion to suppress evidence seized following her arrest. Because the search of McCullough’s car was illegal under the United States Supreme Court’s holding in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710 (2009), we affirm.

McCullough was arrested during a “warrant round-up.” The arresting officer executed the warrant after McCullough pulled into her private driveway. She had already exited her vehicle and locked her door when the officer approached her. After McCullough locked the vehicle door, the officer effectuated the arrest under the outstanding warrant by instructing her to put her hands behind her back for handcuffing. Before being handcuffed, McCullough threw her vehicle keys to her son, who entered the residence at which the car was parked. McCullough was then escorted into the patrol car “without incident.” No evidence was presented that the officer could see any contraband or evidence of any crime inside the car. The officer then went to the door of the home and instructed McCullough’s son to give him the keys. After McCullough’s son complied with this instruction, the officer returned to the vehicle, unlocked it using McCullough’s key, and conducted a search inclusive of McCullough’s purse that was inside the car. The search revealed cash, marijuana, and cocaine inside McCullough’s purse.

The State argues on appeal that because the offense underlying the outstanding arrest warrant was drug-related, it necessarily follows that a search of McCullough’s vehicle incident to that arrest was per se reasonable and no further analysis is appropriate. If this reasoning is accurate, then an arrest warrant for a single sale of perishable contraband would authorize a search of the arrestee’s vehicle at any time, whether days, months, or even years later, despite the fact that it may not be reasonable to believe any evidence of the original illegal act remained. We do not believe this is what the Supreme Court envisioned when it explicitly conditioned the search of a secured arrestee’s vehicle on a reasonable belief that evidence of the underlying offense exists inside.

Gant holds that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 129 S.Ct. at 1723. Because it is undisputed that McCullough was secured in handcuffs in the arresting officer’s patrol car when her car was searched, this case concerns only the second prong of Gant’s holding. Accordingly, the search can withstand constitutional scrutiny only if it was reasonable to believe McCullough’s vehicle contained evidence of the offense underlying her arrest. From the officer’s lawful standpoint outside the vehicle, he observed no contraband, weapons, or any other evidence which would support a reasonable belief that evidence from an offense committed at least four months prior — at an unknown location — would exist inside McCullough’s vehicle at the time of her arrest.

Order granting motion to suppress is affirmed. Certify conflict with Brown v. State, 24 So. 3d 671, 677 (Fla. 5th DCA 2009).

Eric J Dirga, PA

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November 2011 Updates. Part II


 

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Happy Thanksgiving 2011!

STATE v. HEFFRON, 18 Fla. L. Weekly Supp. 1088a (6th Jud. Cir., Aug 10, 2011) – THIS MATTER is before the Court on Appellant, State of Florida’s appeal from an order of the Pinellas County Court granting Appellee’s Motion to Suppress.  After reviewing the briefs and record, this Court reverses the order of the trial court.

Under a judicially created exclusionary rule, known as the confusion doctrine, “a licensee’s refusal to submit to [a] breath test will be excused if, due to a prior administration of the Miranda warnings, the licensee believes that he or she had the right to consult with counsel prior to taking a breath test.” Ringel v. State, 9 Fla. Supp. 678a (Fla. 18th Cir.Ct.2002). The confusion doctrine is not clearly recognized in Florida. “Our research has not yielded any clear indication that the confusion doctrine is a recognized exclusionary rule or defense to a license suspension in Florida.” Kurecka v. State, 2010 WL 3766727, 9 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2162b].  A licensee, when asked to take a breath test, has an affirmative duty to make any confusion about his or her rights known to law enforcement, so that law enforcement is aware that further explanation is needed. Bolek v. Department of Highway Safety and Motor Vehicles, 13 Fla. L. Weekly Supp. 215a (Fla. 6th Cir. App. Ct. 2005); see Beyer v. Department of Highway Safety and Motor Vehicles, 12 Fla. L. Weekly Supp. 1117a (Fla. 6th Cir. App. Ct. 2005). “If, after receiving the implied consent warning, the licensee is still confused about the applicability of Miranda rights to the decision to take a breath test, the licensee should make that confusion known to law enforcement, so that law enforcement is aware that further explanation is necessary.” Ringel v. Department of Highway Safety and Motor Vehicles, 9 Fla. L. Weekly Supp. 678a (Fla. 18th Cir. App. Ct. 2002). State v. Alves, is a trial court order granting a motion to suppress. 3 Fla. L. Weekly Supp. 553a (Fla. Orange Cty. Ct. 1995). “In Alves, the county court found that the confusion doctrine applied to the facts in that case because the defendant was read his Miranda rights, emphatically requested the opportunity to speak to a lawyer when he was requested to take a breath test, and it was never explained that the Miranda rights previously read were not applicable to the implied consent procedure for the breath test.” Kurecka, 2010 WL 3766727 at 6. This court has previously explained and by this opinion we say again that the Alves trial court order is not binding on this Court. See Beyer v. Department of Highway Safety and Motor Vehicles, 12 Fla. L. Weekly Supp. 1117a (Fla. 6th Cir. App. Ct. Sept. 7, 2005). The trial court’s ruling that “[t]here [was] no clear refusal” was error. A driver cannot lawfully avoid the requirements of Florida’s implied consent statute by simply giving a blank look or no response. Secondly, the Alves trial court order is not binding or controlling authority.

HENDRIXSON vs. STATE, 18 Fla. L. Weekly Supp. 1090a (5th Jud. Cir., Sep 6, 2011) – Following the trial court’s denial of his motion to suppress, the Appellant tendered a nolo contendre plea to the charges of Driving Under the Influence of Alcohol to the extent that his normal faculties were impaired and Possession of Marijuana under twenty grams, reserving his right to appeal the denial of his motion to suppress.
The material facts in this case are essentially undisputed. The Appellant was sitting behind the wheel of his motor vehicle on an apartment complex roadway with his high beam headlights on. An officer with the Ocala Police Department was approaching the Appellant’s stationary vehicle. When the officer was approximately two hundred to three hundred feet away, he “flashed” his lights as a signal to the Appellant to reduce his lights to “low beam”. The Appellant did not dim his lights. When the officer neared to within one hundred feet of Appellant’s vehicle, Appellant reduced his lights to low beam and began to drive away. At that point, the officer, believing the Appellant had violated Sec. 316.238, Fla. Stat. (2010), initiated a traffic stop and, during the stop, determined that probable cause existed to arrest Appellant on the above charges. With no factual dispute, the question before us is the construction or interpretation of this statute. We agree with Appellant. When the language of a statute is clear, unambiguous and conveys a clear and definite meaning, there is no occasion for a Court to resort to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning. Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984). A Court is without power to construe an unambiguous statute in a way which would extend, modify or limit the express terms or its reasonable and obvious implication because to do so would be an abrogation of legislative power. Id. The unambiguous language of this statute requires that a driver must be approaching an oncoming vehicle before being required to reduce his or her head lights from high beam to low beam. A stationary driver, such as Appellant, is not an approaching driver. Because the evidence conclusively established that Appellant had reduced to “low beam” prior to approaching the officer, we find that there was no traffic violation and therefore no probable cause for the traffic stop. As a result, the evidence obtained from this stop is inadmissable “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 83, S.Ct. 407 (1963).
For the reasons set out above, we REVERSE the trial court’s denial of the Appellant’s motion to suppress and because the motion is dispositive, we REMAND this case to the Trial Court with directions to grant the motion to suppress, vacate the Judgment and Sentence, and DISCHARGE the Appellant.

STATE vs. COLANTONIO, et al., 18 Fla. L. Weekly Supp. 1100a (18th Jud. Cir., Aug 31, 2011) – A trial court’s determination with regard to a discovery request is reviewed under an abuse of discretion standard. Overton v. State, 976 So.2d 536, 548 (Fla. 2007) [32 Fla. L. Weekly S775a]. The lower court granted the defendants’ request upon the Defendants’ Motions for Production of Intoxilyzer 8000 for Purposes of Inspection and Testing, filed in the above-styled cases, which have been consolidated for the disposition of this issue only. Based upon a review of the Defendants’ Motions and the official Court files, and being otherwise fully advised in the premises, the Lower Court made the following findings.
The Defendants’ Motions for Production of Intoxilyzer 8000 for Purposes of Inspection and Testing are GRANTED. The Defendants shall be given an opportunity to inspect and test an Intoxilyzer 8000. A representative of the State may be present during the inspection and testing to ensure that the testing does not result in damage to the machine. The State may require the examiner to sign a non-disclosure agreement before the inspection and testing in order to protect the intellectual property. The Defendants shall be responsible for all costs associated with the inspection and testing of the Intoxilyzer 8000.
This Court finds no abuse of discretion, the orders of the trial courts are AFFIRMED.

STATE v. VOLARE 18 Fla. L. Weekly Supp. 1104b (11th Jud. Cir., Sep 21, 2011) – Under the community caretaking doctrine, an officer may stop a vehicle without reasonable suspicion of criminal activity if the stop is necessary for public safety and welfare. Shively v. State, 61 So.3d 484 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1111b]. For example, an officer is permitted to stop a vehicle when it is being operated in an unusual manner even though no traffic violation is suspected. State v. Rodriguez, 904 So.2d 594, 598 (Fla. 5 thDCA 2005) [30 Fla. L. Weekly D1525a]. The purpose of such a stop is to ascertain whether the driver of the vehicle is in need of assistance due to illness, tiredness, or impairment and to protect the motoring public from harm. See, Shively, 61 So.3d at 484; Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Such a stop is “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady, 413 U.S. at 441.
While not citing Cady v. Dombrowsky, supra, which had been issued two years previously, the Florida Supreme Court’s decision in Bailey v. State, 319 So.2d 22 (Fla. 1975), and its progeny, control this case and demonstrate the error in the trial court’s ruling, which, we conclude is unsupported by any competent substantial evidence and misapplies Florida law. The Bailey Court upheld a stop in nearly identical circumstances to those in the instant case, stating:
Because of the dangers inherent to our modern vehicular mode of life, there may be justification for the stopping of a vehicle by a patrolman to determine the reason for its unusual operation. In this instance, although no vehicular regulation was being violated, it seemed strange to the officer that the vehicle was proceeding at only 45 miles per hour and was weaving, although not so much as to move out of its lane on one side or the other. Perhaps some of the possibilities occurring to the officer were defective steering mechanism or that the operator was driving under the influence of alcohol or some other drug.
Bailey v. State, 319 So.2d at 26.
Clearly the Bailey rationale employed Cady’s “community caretaking function” in validating the stop there notwithstanding that Mr. Bailey’s vehicle never strayed out of its lane of traffic, violated no traffic law, but demonstrated an “unusual operation” that caused concern in the officer’s mind justifying his stop of the vehicle.
Accordingly, we find that whether Volare’s car was statutorily-compliant, is not the determinative and controlling issue in this case. We find that the record supports the officer’s observation of the vehicle straddling the right lane as well as the inoperative brake light. The law supports the officer making a stop to determine the reason for its unusual operation, i.e. straddling the right lane. The courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop and the facts in this case support the officer’s action. Therefore we find that the court below improperly suppressed the evidence and this cause is reversed and remanded.

STATE vs. RAZZANO, III, 18 Fla. L. Weekly Supp. 1119a (9th Jud. Cir., Sep 19, 2011) – The State appeals from an order granting Appellee Razzano’s pretrial motion to suppress. We conclude the trial judge erred in granting the motion, and reverse.
Two police officers were investigating an anonymous Crimeline report that drugs were being sold at a certain address; that one Anthony Razzano was one of the parties dealing the drugs along with roommates, and that there was a lot of foot and vehicle traffic coming and going from the apartment all times of the night and day. The officers went to the address to conduct a “knock and talk.” Upon arriving at the two story house, they knocked at the front door. Razzano opened the door. Officer Ochiuzzo, a trained and experienced officer, from outside the door where he was standing immediately smelled the odor of burnt marijuana and observed a white bag on a table in the middle the living room. The bag had a green leafy substance protruding out of it which he suspected was marijuana. The two officers entered, handcuffed Appellee, and while Officer Roman detained him, officer Ochiuzzo seized the white bag and a set of weighing scales containing marijuana residue sitting next to it. Without making a sweep of the other rooms in the house, the two officers then immediately left with Razzano in custody and the bag and scales. The whole encounter was a comparatively minimal intrusion, taking approximately two and a half minutes.
It is clear from the trial judge’s ruling that he determined as a matter of law that suppression was required because of two factors in Murphy v. State, 898 So.2d 1031 (Fla. 5th DCA 2005) [30 Fla. L. Weekly D713b]: (1) another person was in the room at the time of the entry and (2) the contraband was cocaine, a serious offense. The other factor the trial judge determined was controlling was the gravity of the offense underlying Razzano’s arrest — possession of less than 20 grams of marijuana. The trial judge followed several cases originating with Welsh v. Wisconsin, 466 U.S. 740 (1984), relied upon by Appellee’s counsel in argument at the hearing and in his briefs. In Welsh, the United States Supreme Court held that the gravity of the offense was an important, but not an absolute factor in determining whether a warrantless, non-consensual entry of a home and an arrest and/or seizure of contraband in plain view was constitutionally permissible. Since Razzano’s arrest was for what he felt was a minor offense (“$10 worth of cannabis?” as he put it), not a felony such as possession of cocaine, the trial judge concluded that Welsh and the cases following it required suppression.
Under Florida law possession of less than 20 grams of marijuana is a misdemeanor of the first degree punishable by imprisonment in county jail for up to 12 months, and thus not a “minor” offense. We hold that the entry, arrest and seizure of the bag of marijuana and the weighing scales here was reasonable and lawful, and that the trial court erred in suppressing the evidence. Consequently, the order appealed from is reversed, and the case remanded for further proceedings with directions to deny Appellee’s motion to suppress. REVERSED and REMANDED with directions.

Eric J Dirga, PA

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November 2011 Updates. Part I


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STACHURA  v. STATE, DHSMV, 18 Fla. L. Weekly Supp. 1073a (15th Jud. Cir., Aug 25, 2011) – Defendant seeks review of the suspension of his driver’s license based upon his refusal to submit to a breath test. Defendant argues that the suspension should be quashed because the law enforcement officer who requested the breath test did not suspect that Stachura was under the influence of alcohol.

The Deputy Sheriff specifically stated that based upon his observations:

I did not suspect alcohol but rather drugs, particularly a CNS depression due to his above-mentioned indicators such as being very drowsy, dazed, disoriented, and extremely uncoordinated. Again, it should be noted that I did not suspect ETOH1 since I did not observe any odors of alcohol.

The Court is to strictly interpret Florida’s implied consent laws. State v. Demoya, 380 So. 2d 505 (Fla. 3d DCA 1980). The Implied Consent Law clearly states that the consent to a breath test is for the purpose of determining the alcoholic content of the driver’s breath. The Implied Consent Law further states that the law enforcement officer requesting the breath test must have reasonable cause to believe the driver was under the influence of alcoholic beverages.

It is clear from the record that the Stachura’s license was suspended based solely upon his refusal to submit to a breath test, despite the fact that the law enforcement officer who requested the test did not suspect that Stachura was under the influence of alcohol. Based upon the foregoing, the Petition for Writ of Certiorari is hereby GRANTED and the order of suspension is QUASHED.

RIVERO vs. STATE, 18 Fla. L. Weekly Supp. 1075b (11th Jud. Cir., Aug 23, 2011) – The Defendant appeals a final judgment from a finding of guilt, a withhold of adjudication and a restitution order following a bench trial.
The Defendant was charged by information with criminal mischief, causing damage of $200 or less to a motor vehicle a second degree misdemeanor. A bench trial was held and the Defendant was found guilty and adjudication withheld. The court ordered an amount of $100 as partial restitution “to hire an expert.”
On appeal, the Defendant asserts that the trial court erred in conducting a bench trial in the absence of any written or oral waiver by the Defendant of her right to a jury trial – The trial court misapplied the burden of proof in requiring the Defendant to present evidence of her innocence – Imposing restitution of $100 in the absence of competent evidence.
The trial court’s announcement that this was a “minor crime” incorrectly construed the charge as a petty offense precluding a jury trial. The Florida Constitution recognizes the right to a trial by jury in those cases “in which the right was recognized at the time of the adoption of the State’s first Constitution.” State v. Webb, 335 So. 2d 826 (Fla. 1976). The Supreme Court of Florida has expressly recognized that criminal mischief is a malem in se crime, indictable at common law. As such, a defendant has a right under our U.S. and Florida Constitutions to a jury trial. Reed v. State, 470 So. 2d 1382 (Fla. 1985).
A defendant may waive his/her constitutional right to a jury trial either in writing or orally. However, the record must contain a sufficient showing that the waiver was knowingly, intelligently and voluntarily made. State v. Upton, 658 So.2d 86(Fla. 1995) [20 Fla. L. Weekly S387a]; Tucker v. State, 559 So. 2d 218 (Fla. 1990). The record fails to disclose a written waiver of the Defendant’s right to a jury trial. Equally absent is an in-court colloquy regarding the Defendant’s waiver of a jury trial. Absent a valid waiver of the Defendant’s fundamental right to a jury trial, the error cannot be deemed harmless or considered a procedural right that has been waived.
Because we find that the trial court committed reversible error requiring a new trial, we do not need to address the claim of improper shifting of the burden of proof to the Defendant. As restitution must again be addressed during a retrial, we also address that issue here. No evidence was presented during the trial on the issue of damages, nor was a restitution hearing held after trial. The court simply ruled that the victim would require at least one hundred dollars ($100) to secure an expert to testify on damages at a future restitution hearing. This was error. Substantial competent evidence must be presented to justify an award of restitution. Koile v. State, 902 So. 2d 822 (Fla. 5 DCA 2005) [30 Fla. L. Weekly D168a]. Such an award must be based upon evidence of actual losses incurred by the victim due to the defendant’s criminal conduct. Glaubius v. State, 688 So. 2d 913 (Fla. 1997) [22 Fla. L. Weekly S83c]. The final judgment is reversed and the matter remanded to the trial court for a new trial.

CHOI vs. STATE, 18 Fla. L. Weekly Supp. 1076b (17th Jud. Cir., Aug 5, 2011) – Defendant appeals the Court’s denial of his motion to suppress predicated upon lack of probable cause for the traffic citation of improper backing and his judgment and sentence for DUI blood alcohol above 0.20.
On the morning of January 25, 2009 a Law Enforcement Officer [LEO] of the Sunrise Police Department was standing near a marked police car which was parallel parked to the curb. At approximately 12:22 a.m. Defendant attempted to back his vehicle out of a parking spot which was perpendicular to the police car. At the hearing on the Motion to Suppress LEO testified that the Defendant backed his vehicle to within an inch or half an inch of the officer’s police vehicle. The officer testified that he screamed and slapped the back of the Defendant’s vehicle to get him to stop. The officer then directed the Defendant back to his parking spot. The Defendant was subsequently arrested for DUI blood alcohol above 0.20, driving under the influence and cited for improper backing.
The predicate for the DUI arrest was the improper backing citation. Defendant moved to suppress based upon the lack of probable cause for the issuance of the traffic citation. The underlying facts in this case are virtually indistinguishable from the facts in Nelson v. State, 922 So.2d 447 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D794a]. In Nelson the defendant was parked in a parking area of an apartment complex that connected to an alley. The police officer started to proceed through the alley with his vehicle. The officer stopped to see if the defendant’s vehicle was going to exit. The defendant’s vehicle did not and the officer proceeded. At that point the defendant’s vehicle started to back up. The officer stopped his vehicle suddenly and activated his emergency lights. Id. at 449. The issue in Nelson, as well as here, was whether the defendant “interfered with other traffic” in violation of section 316.1985 (1).
The trial court specifically noted there was “no traffic here. He’s parked”. Based on the trial court’s factual finding of “no traffic here” there can be no violation of section 316.1985 (1) since there was no traffic with which to interfere. Accordingly, there was no probable cause for the vehicle stop; the stop was invalid. Since the stop was invalid the trial court erred in denying the motion to suppress. See Nelson at 450. The judgment and sentence are reversed.

STATE v. DICKEY, 18 Fla. L. Weekly Supp. 1077b (17th Jud. Cir., Jul 28, 2011) – THIS CAUSE comes before the Court, sitting in its appellate capacity, upon Appellant’s timely appeal of the trial court’s non-final order granting Defendant/Appellee’s motion to suppress. The motion contended that any evidence obtained by the police officer was obtained as a result of an unlawful stop of the defendant’s vehicle.
The officer observed that once the Appellee reached the intersection, the traffic light remained green and the Appellee did not move for possibly a few seconds to make the right turn while there was another vehicle behind him. The one vehicle behind the Appellee started honking and the Appellee proceeded to make the right turn. The Officer had positioned his patrol vehicle behind the Appellee’s vehicle to conduct a traffic stop. The Officer observed that as the Appellee made the right turn, Appellee’s headlights were turned off. The Officer proceeded to make a right turn behind the Appellee’s vehicle and activated his emergency lights to conduct a traffic stop. The Appellee proceeded to pull into a Wal-Mart parking lot about 200 to 300 feet away. As the Appellee was pulling into the Wal-Mart parking lot, his lights came on. Once the Appellee’s vehicle came to a complete stop, the Officer approached the Appellee’s vehicle and asked the Appellee for his license, registration and insurance. As the officer approached the vehicle, he noticed that the left rear tire was flat. The Officer stated that he was not sure how long the Appellee’s headlights were off and admitted that they could have been off for half a second.
Appellant’s sole point on appeal is that the trial court erred in granting Appellee’s motion to suppress, where the police officer had reasonable suspicion to believe that the Appellee, driving after midnight without headlights, violated the traffic laws.
The Florida Supreme Court has recognized that a police officer, in order to conduct a lawful traffic stop, must have at least an articulable and reasonable suspicion that either the vehicle or an occupant is otherwise subject to seizure for violation of law. Hilton v. State, 961 So.2d 284, 294 (Fla. 2007) [32 Fla. L. Weekly S401a]. “While reasonable suspicion is a less demanding standard than probable cause . . . the Fourth Amendment requires at least a minimal level of objective justification for making the stop.” Id. A court determining whether an officer had reasonable suspicion of criminal activity must look at the totality of the circumstances. Id. The totality of the circumstances analysis requires that, “[b]ased upon the whole picture . . . detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 418 (1981). Thus, the correct test to determine the validity of a traffic stop is “[w]hether the particular officer who initiated the traffic stop had an objectively reasonable basis for making the stop.” Dobrin v. Florida Department of Highway Safety and Motor Vehicles, 874 So. 2d 1171, 1174 (Fla. 2004) [29 Fla. L. Weekly S80a]; See Whren v. United States, 517 U.S. 806, 813 (1996) (the reasonableness of a traffic stop depends solely on the validity of the basis asserted by the officer involved in the stop). Based on the evidence presented in the court below, this Court finds no error in the trial court’s finding that Officer Escobar did not have the requisite reasonable suspicion to perform the traffic stop. First, there were no actions on the part of Appellee that would have raised a reasonable concern for his safety or create a presumption that he might be sick. As it relates to the driving without lights for a short period of time, the Officer himself admitted that the lights could have been off for half a second. The enforcement of the law has to be reasonable within the totality of the circumstances. As such, this court does not find error in the trial court’s determination that the Officer did not develop reasonable suspicion that a criminal offense had been committed when the Appellee was driving without lights for possibly half a second, even when combined with the slow driving pattern.
While the Appellant further contends that Appellee’s slow driving pattern impeded traffic, which created another factor to justify the traffic stop, this Court disagrees. The Officer admitted that he observed the Appellee’s slow driving pattern as he was approaching the right turning lane, and there was only one vehicle behind the Appellee when he stopped at the intersection. The totality of the circumstances indicates that there was nothing unusual about a car driving below the speed limit. Appellee was approaching an intersection where he stopped for a short period of time and proceeded to complete the turn as another vehicle honked at him. It was reasonable for the Appellee to approach an intersection in which he was planning to make a turn at a reduced speed. Furthermore, the Appellee did not impede any traffic because there was only one vehicle behind the Appellee who was able to continue as soon as the Appellee’s vehicle completed the turn.
ORDERED AND ADJUDGED that the trial court’s order granting Appellee’s motion to suppress is hereby AFFIRMED.

CHERRY v. DHSMV, 18 Fla. L. Weekly Supp. 1079b (9th Jud. Cir., Aug 23, 2011) – Petitioner timely filed this petition seeking certiorari review of the Florida Department of Highway Safety and Motor Vehicles’ (“Department”) Final Order of License Suspension. In the Petition for Writ of Certiorari, Petitioner argues the following: 1) The arresting law enforcement officer [LEO] never advised her that her failure to submit to the field sobriety exercises would be used against her thus, creating a “safe harbor” situation. LEO used the field sobriety exercise refusal as part of his factual basis to arrest Petitioner. Because Petitioner was in a safe harbor situation, her refusal to submit to the field sobriety exercises did not provide an adequate basis, rising to a probable cause level, to arrest her; 2) Under the totality of the circumstances, when making the arrest, LEO did not have probable cause to believe that Petitioner was driving or in actual control of a motor vehicle while impaired; 3) When Petitioner requested her attorney and requested a blood test, LEO improperly read the “Hoch” form, per Hoch v. State, 500 So. 2d 597 (Fla. 3d DCA 1986); 4) When Petitioner requested a blood test, she was not provided with assistance as required under section 316.1932(1)(f)3., Florida Statutes; 5) Petitioner did not refuse to take the breath-alcohol test because she provided two breath samples as evidenced by the video tape; and 6) Petitioner was denied her right to counsel. From review of the court record, this Court finds, as stated below, that Petitioner’s arguments IV and V are clearly with merit and dispositive as to the other arguments.
Petitioner cites the case Unruh v. State, 669 So. 2d 242 (Fla. 1996) [21 Fla. L. Weekly S104a] where the Florida Supreme Court held that law enforcement officers are required to render reasonable assistance in helping motorists arrested for driving under the influence to obtain an independent blood test upon request. The Department argues that before Petitioner had the right to request a voluntary blood test, she was required first to submit to the breath-alcohol test. According to the Department, Petitioner’s failure to provide valid samples resulted in a refusal to submit to the breath-alcohol test and thus barred her from obtaining a blood test.
This Court reviewed the video at the DUI testing center where Petitioner repeatedly requested a blood test and was not provided with any assistance from the LEO, the breath technician, or anyone at the DUI testing center such as providing her with telephone access to make arrangements for the test. Further, this Court finds that the Department’s response to this argument is without merit because competent substantial evidence is lacking that Petitioner refused to submit to the breath-alcohol test as addressed in argument V of her Petition.  The Supreme Court of Georgia in Burson v. Collier, 226 Ga. 427; 175 S.E. 2d 660 (Ga. 1970) held that suspending a person’s driver’s license greatly hinders that person’s use and enjoyment of an item of that person’s personal property and thus, the statute providing the authority for the license suspension should be strictly construed. When statutes do not explain what constitutes a “complete” breath-alcohol test, a showing that a person did not complete the test (within the judgment of the operator) is not evidence of a refusal to submit to a breath-alcohol test within contemplation of the statute. To consider this information as evidence, would provide the operator with an unfettered right to determine what is and what is not a complete test. Burson, 175 S.E. 2d at 662.
In the instant case, the applicable Florida statutes under chapters 316 and 322 do not explain what constitutes a “complete” breath-alcohol test. The breath technician and the LEO decided to determine an “implied refusal” after the second breath-alcohol test time frame. The Department’s argument that the samples are invalid solely because Petitioner did not perform the test to the breath technician’s satisfaction is not persuasive. To apply the Department’s argument could open the door to a pattern of providing breath technicians and law enforcement officers with unrestrained power when determining what is and what is not a complete test. Therefore, a showing that Petitioner did not complete the test (within the judgment of the breath technician) should not be considered as evidence of a refusal to submit to a breath-alcohol test within contemplation of the statutes. Accordingly, the Department failed to meet its burden as to the required element under section 322.2615(7)(b)2., Florida Statutes, because it did not show by a preponderance of the evidence that Petitioner’s driver’s license was suspended because she refused to submit to the breath-alcohol test after being requested to do so by the law enforcement officer.
Based upon the court record, this Court concurs with Petitioner’s arguments IV and V and finds that the hearing officer’s decision to sustain Petitioner’s license suspension departed from the essential requirements of the law and was not based on competent substantial evidence. Petition for Writ of Certiorari is GRANTED and the hearing officer’s Final Order of License Suspension is QUASHED.

Eric J Dirga, PA

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