Updates From Circuit Appeals, October 2013

Florence Ellinwood Allen (1884 - 1966)

More hilarity from the courts…

Thompson v. DHSMV, 20 Fla. L. Weekly Supp. 837 (4th Jud. Cir., Aug. 31, 2012)

In this case, the court granted the Writ of Certiorari starting that “the hearing officer failed to follow the essential requirements of law…” To put this in perspective, the petitioner was trying to get his driving privileges reinstated (partially) after they were permanently revoked. Section 322.271(5), Florida Statutes, sets forth said procedure. The date this “mandate” was rendered was August 31, 2012. The date Mr. Thompson asked for his driving privileges back was October 15, 2010. Has not this court failed to follow the essential requirements of law with so long a delay? Hasn’t the Department’s decision been, in effect, granted by this delay? Anyhoo, I digress…

So section 322.271(5) allows a person to petition the Department for reinstatement of his/her driving privileges and requires that, to be considered for reinstatement, the person must demonstrate that he/she meets certain statutory criteria. This “criteria” is specifically and legibly spelled out in the statute. It cannot be missed or overlooked.

Mr. Thompson meet all the criteria except the one regarding not drinking in the last 5-years. After the hearing concluded, Mr. Thompson wanted to reopen the hearing because he realized that he was wrong on the date of his last drink because he was in prison on that date. The Department confirmed that he was indeed in prison on that date. Despite this the Department decided not to reinstate Mr. Thompson’s driving privileges for many reasons – none of which were the criteria required by statute.

The benevolent court has, almost 2 years later, granted Mr. Thompson’s petition, quashed the Department’s order denying his request, and has thrown him back into the ring with the lions for rehearing. Department 1 – Mr. Thompson 0.

State v. Abraham, 20 Fla. L. Weekly Supp. 843 (6th Jud. Cir., Jun 10, 2013)

Mr. Abraham was charged with “possession of simulated drugs” (A PEZ dispenser with candy shaped like pills with letters on them – just kidding). When the case was set for a non-jury trial the state’s witnesses did not appear because the law enforcement agency refused to accept the subpoenas (I’m guessing the subpoenas were served late). The state asked for a continuance. The court denied the continuance and the defense asked for dismissal based on “lack of prosecution,” which it got. The state appeals.

The appellate court reversed. Trial courts “do not have absolute discretion to deny a prosecution motion for continuance based on the absence of a witness.” The record revealed no lack of diligence or dilatory tactics on the part of the State Attorney and “no discernible prejudice or injustice to Mr. Abraham” if it had been granted. Moreover, there was no evidence that the prosecution had abandoned its prosecution. Therefore, the appellate court found that the lower court had abused its discretion.

Good case for prosectors to keep in their briefcase for those times when justice must prevail.

Moore v. State, 20 Fla. L. Weekly Supp. (6th Jud. Cir., May 13, 2013)

Poor Mr. Moore was found guilty of battery at trial. He had apparently touched somebody against their wishes and caused $11,000 in costs to the victim. Note: I did not say “damages” because that is usually much higher – just the victim’s out of pocket expenses (costs).

At sentencing the court ordered $11,001.08 in restitution and imposed it as a lien since the defendant was not going to be placed on probation (and, as the court noted, there was little chance of the defendant paying it within a year). The Defense did not “necessarily dispute the amount” but was concerned  about documentation. The court ordered the amount and allowed the defense to have time for a hearing to dispute the amount if they wanted to. The defendant never asked for the hearing.

The defendant appeals the imposition of restitution. Because the defense never raised the question regarding “amount” at a hearing where the opportunity existed – it was not preserved. Amount of restitution – affirmed.

Lesson: “Fat, drunk and stupid is no way to go through life.” -Dean Vernon Wormer.

Elam v. State, 20 Fla. L. Weekly Supp. 856 (11th Jud. Cir., Jul 5, 2013)

Defendant was brought up on a violation of probation. The reasons alleged for violating said probation were for:

  • Failure to enroll in Domestic Violence Class (BIP), and
  • Complete 50 hours of community service at a rate of 5 hours per month.

The court found that he willfully violated his probation and sentenced him to 330 days in jail. This appeal ensued…

Mr. Elam’s special conditions he failed to do were as follows:

  1. You must pay for and complete the Domestic Violence Batterer’s Assessment and the Batterer’s Intervention Treatment Program …
  2. You shall successfully complete 50 hours of community service, at a rate of 5 hours per … month.

On appeal, the appellate court reversed the lower court finding that the state failed to establish that the defendant could actually afford to pay for the Domestic Batter’s Assessment and classes and because, despite having not complied with the schedule, there was still plenty of time to complete the community service.

Of note, Mr. Elam was violated 34 days into a 24 month period of supervision.

Great case for VOP case law re willfulness.


is a small time practicing attorney in Orlando. He primarily helps people with traffic related issues such as DUIs, racing, traffic tickets, and suspended driver’s license.

Criminal Justice – Perceived Problems, Your Solutions

Roy bean jersey lilly
Roy bean jersey lilly (Photo credit: Wikipedia)

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.

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.


November 2011 Updates. Part I

A road sign attempts to discourage drivers fro...
Image via Wikipedia

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

Record Basis for Upward Departure, Section 775.082(10)

JONES v. STATE, 36 Fla. L. Weekly D2120a (Fla. 1st DCA, Sep 23, 2011) – Appellant was sentenced to three years in prison for driving while his license was cancelled, suspended, or revoked. He does not challenge his conviction on appeal; he only challenges his sentence. He contends that the trial court erred in imposing a prison sentence because the record does not support the court’s finding pursuant to s. 775.082(10), Fla. Stat. Appellant contends that the court’s findings are not supported by the record and, therefore, the trial court erred in imposing a prison sentence under s. 775.082(10).

The clear purpose and obvious intent s. 775.082(10) was to keep certain offenders out of the state prison system. The statute operates similarly to the pre-Criminal Punishment Code sentencing guidelines by establishing a presumptive sentence from which the trial court may deviate up to the statutory maximum in limited circumstances and only if the court explains its reasons in writing. The first sentence of the statute provides that the presumptive mandatory sentence for qualifying offenders is a “nonstate prison sanction.” The statute doesn’t define “nonstate prison sanction,” but the phrase is commonly understood to mean probation, community control, or imprisonment in the county jail for up to one year. The second sentence of the statute allows the trial court to deviate from the presumptive sentence and impose a prison sentence, but only if the court specifically finds that sentencing the offender to a nonstate prison sanction could present a danger to the public. The trial court’s findings must be in writing.

The record in this case does not support the trial court’s finding regarding Appellant’s potential future dangerousness. Although Appellant’s history of driving without a license arguably supports the trial court’s finding that he will continue to do so, the court did not make sufficient findings and the record does not suggest that imprisonment within the state prison system rather than the county jail would better deter him from continued unlicensed driving. Nor is there any record support for the court’s implicit finding that one year of incarceration in the county jail would constitute a significantly lesser deterrent for Appellant than three years in state prison. The trial court’s additional findings are speculative at best because it does not appear from the record that Appellant has a history of vehicle accidents or engaging in high speed chases with law enforcement. Accordingly, because the trial court’s findings are unsupported by the record, the court erred in imposing a prison sentence rather than a nonstate prison sanction in accordance with section 775.082(10). Reversed.

Eric J Dirga, PA