Author: caseyreiteresq

Criminal Defense, DUI, Formal Review Hearing, Legal Blog

Florida DUI – Formal Review Hearings

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When a person is arrested for Driving Under the Influence (DUI) in Florida, the Department of Highway Safety and Motor Vehicles automatically and immediately suspends that person’s driver’s license. The officer will issue the driver a Temporary Driving Permit, which is only valid for 10 days from the date of the arrest. Thereafter, the person’s license will be suspended, unless granted an extension on the temporary permit for the purposes of attending a Formal Review Hearing or unless the suspension is overturned during a Formal Review Hearing (which is discussed more in depth below.) This “DMV License Suspension” is a civil suspension and is separate from a criminal charge, which may also include its own suspension.

For a first DUI, the DMV license suspension will be 6 months. For a second or subsequent DUI, the DMV suspension will be 1 year. Additionally, a first refusal to submit to a Breath Test (see Breathalyzers) will lead to a 1 year DMV issued license suspension, and a second or subsequent refusal will lead to an 18 month DMV issued license suspension.

Florida Statutes 322.2615 and 322.64 provide the opportunity for a person to challenge a DMV’s license suspension by way of a “formal review hearing” (FRH). The purpose of a Formal Review Hearing is for a hearing officer, who works for the DMV, to make a determination as to whether the person’s civil license suspension should be sustained, amended or invalidated based upon the evidence presented. A person must request a FRH within 10 days of being arrested, or lose the opportunity for the hearing. If a review hearing is requested, the DMV must schedule the hearing within 30 days of the request. 

Interestingly, the decisions made during the Formal Review Hearing are not admissible as evidence in court on the criminal DUI action. And, the outcome of the Formal Review Hearing has no bearing on the outcome of the criminal suspension. In other words, a hearing officer during a Formal Review Hearing could invalidate a license suspension and a person could have a valid license while fighting his or her DUI charge in criminal court. If at the end of the criminal case, the judge or jury find the defendant guilty, or if the defendant pleads guilty, the defendant’s driver’s license will be suspended in the criminal case. For a description of the criminal penalties associated with DUI on a first arrest, see DUI Penalties.

During the Formal Review Hearing, the hearing officer will determine 1) Whether the police officer had probable cause to believe that the driver was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances and 2) Whether the driver had an unlawful blood-alcohol level or breath-alcohol level of .08 or higher. The hearing officer will determine this by a “preponderance of the evidence,” meaning that if the hearing officer finds it is more likely than not that the driver was under the influence or had a BAC of .08 or higher, the driver’s license suspension will stay in effect.

The police officer will typically testify during the hearing, and the police report will usually be introduced into evidence. All of which the driver is entitled to see. Formal Review Hearings give the driver an opportunity to not only fight the civil license suspension, but also to obtain testimony from the police officers involved in the arrest.

Many times Formal Review Hearings result in the license suspension being sustained. Even in those cases, people often find that they learned valuable information from the police officer’s testimony that they may not have been able to obtain during the criminal case (until the day of trial). That is especially true in Palm Beach County, where depositions of police officers in misdemeanor cases (which DUIs typically are charged as) are not usually permitted. 

Anyone who has been arrested for Driving Under the Influence (DUI) in Palm Beach County should contact a Palm Beach Criminal Defense Lawyer to discuss their options and decide if a formal review hearing should be requested, as time is of the essence. 

 

Casey Reiter is an associate attorney at Stuart R. Manoff & Associates, P.A. in West Palm Beach, Florida, practicing in the areas of Criminal Defense and Marital Law.

Criminal Defense, DUI, Legal Blog

Breathalyzers

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When a person is arrested for driving under the influence (DUI) in Palm Beach County, Florida, a police officer will request that person submit to a breath alcohol test in most scenarios. While a person may refuse to take a breath test, Florida’s implied consent laws provide that refusal to submit to a breath test can result in a 1 year drivers license suspension, or more, and the refusal to provide a breath sample can be used in a DUI trial as evidence of guilt.

A person who is arrested for DUI in Palm Beach County will typically take a breath test at the BAT (or Breath Alcohol Testing Facility) located at the “Gun Club” Main Detention Center. Prior to administering the test, an officer will wait 20 minutes and observe the arrestee to ensure that the person does not put anything into his or her mouth, regurgitate, vomit, or belch, as these actions can influence the test result. Once the 20 minute “observation period” is over, the officer will ask the arrestee to blow into the machine (Palm Beach Sheriff’s Office currently uses the Intoxilyzer 8000) for a certain length of time and then tell the person to stop. If the test-taker does not blow hard enough into the machine, or does not provide enough air, the machine could read an error, requiring an additional attempt. If an officer believes that the person is purposefully not providing enough air in an attempt to trick the Breath Test, the officer could count that as a refusal and end the test.

A breathalyzer measures the amount of alcohol in a person’s breath, and converts that into a Breath Alcohol Level, or BAL, also referred to as a Breath Alcohol Content (BAC). A .08% BAL/BAC is equal to .08 grams of alcohol per 210 liters of breath.

Pursuant to Florida Statute 316.1934, there is a presumption in the State of Florida that a person who has a breath or blood alcohol content of .08 or above is under the influence of alcohol to the extent his or her normal faculties were impaired. There is no presumption one way or the other for a person whose BAC is between .05 and .08. When a person has a BAC of .05 or less, it is presumed that the person was not under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. 

DUI cases with breath test results are commonly prosecuted in Palm Beach because they provide scientific evidence to present to a jury of the driver’s level of impairment. However, breathalyzers can be inaccurate and have been challenged by Criminal Defense Attorneys throughout the State of Florida, including Palm Beach County. There are several things that could affect the reliability of the test results, including but not limited to: improper machine calibration, irregular temperature outside of the machine, irregular temperature of the test-taker’s body, if the test-taker is diabetic, if the test-taker holds his or her breath, chewing gum, vomiting, regurgitation, burping, acid reflux, use of mouth wash, inhalers, alcohol held in a persons mouth by dentures, or even cold sores.

A Palm Beach Criminal Defense attorney can also review data regarding a specific breathalyzer machine from FDLE (Florida Department of Law Enforcement) to examine the history of the machine’s diagnostic reports and look for past problems with the machine and the history of maintenance. FDLE has strict protocol for the testing and maintenance of Florida’s breath testing machines and provides the information to the public.

Anyone who is facing DUI charges where breathalyzers are involved in Palm Beach County should consult with a Palm Beach Criminal Defense Attorney to discuss their options. There may be defenses to the charges, methods of challenging the reliability of the breath results, or available diversionary programs.

Florida DUI BAC Presumptions

 

Casey Reiter is an associate attorney at Stuart R. Manoff & Associates, P.A. in West Palm Beach, Florida, practicing in the areas of Criminal Defense and Marital Law.

 

Legal Blog, Recent News

50 Cent in West Palm Beach Court

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Rapper 50 Cent was in the West Palm Beach Courthouse this week regarding a $16 Million dispute over headphones. It was alleged that 50 Cent had misappropriated trade secrets from Sleek Audio to manufacture his own headphones, Street by 50 and Synch by 50.

While in the Palm Beach Courthouse, 50 Cent (real name Curtis Jackson, III) was approached by a Palm Beach County State Attorney who wanted to show 50 Cent a video.

The Palm Beach Assistant State Attorney had recently prosecuted a man for raping a 20 year old female with Down’s Syndrome who had the mental capacity of a 4-year-old. The man was sentenced to 31 years in Florida State prison for the crime. As it turns out, the victim is an avid 50 Cent fan, and the prosecutor had recorded the victim singing the chorus to one of 50 Cent’s songs. The prosecutor showed the video of the woman rapping to 50 Cent, who reportedly smiled after he heard the girl’s voice.

 

Casey Reiter is an associate attorney at Stuart R. Manoff & Associates, P.A. in West Palm Beach, Florida, practicing in the areas of Criminal Defense and Marital Law.

Criminal Defense, Diversion Program, Legal Blog, PTI

PTI – Pre Trial Intervention Programs

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Pre-trial Intervention (PTI) Programs are common in Palm Beach County Florida and are governed by Florida Statute 948.08.

Pursuant to the Statute, a person who has been charged with a misdemeanor or a third degree felony may be eligible to enter a pretrial intervention program to resolve his or her criminal charges. PTI programs are designed to provide supervision, counseling, and treatment when appropriate to those who participate. In order to enter into a PTI program, a person must be a first time offender, or, someone who has not been previously convicted of anything other than one nonviolent misdemeanor. Additionally, the victim, the Palm Beach State Attorney, and the judge must all approve of the defendant’s entering into the program.

If a defendant is eligible for PTI and the necessary parties approve, the defendant would have voluntarily agree to enter the program and waive his or her right to speedy trial so that the case will be continued to allow the defendant time to complete the program. The statute provides that the case shall be continued for 90 days, but if an additional 90 days are required, the court can further extend. 
 
Once a defendant successfully completes the PTI program in Palm Beach, the State Attorney will typically dismiss the charges. However, if the program is not successfully completed, the Palm Beach State Attorney can resume prosecuting the charges. It is extremely important for people who are offered the opportunity to enter a PTI program to satisfactorily complete it so that the criminal charges can be dropped.
 
Anyone in Palm Beach County who is a first time offender with no prior criminal history should contact a Palm Beach Criminal Defense attorney to discuss whether they are eligible for PTI or any other diversionary program. Pre Trial Intervention is a great diversionary tool for eligible first time offenders to prevent them from having a criminal conviction on their record.
 
Casey Reiter is an associate attorney at Stuart R. Manoff & Associates, P.A. in West Palm Beach, Florida, practicing in the areas of Criminal Defense and Marital Law.
Appeal, Criminal Defense, DUI, Leaving the Scene, Legal Blog, LSA

Leaving the Scene of an Accident

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An interesting legal question was posed by the 1st DCA this week regarding the jury instructions for the charge of Leaving the Scene of an Accident Causing Death or Serious Bodily Injury (Florida Statute 316.027). In the case, the defendant was convicted of leaving the scene of an accident causing death (and vehicular homicide), after drinking for approximately 7 hours, and then driving his car while a firework was exploding inside the car, crashing into someone causing death, and then driving away. 

During trial, the court read to the jury a jury instruction that stated the State must prove that the defendant either knew or should have known that he was involved in a crash. 

However, the statute for Leaving the Scene of an Accident Causing Death provided that it is only a first degree felony for the driver of a vehicle who causes a crash resulting in death to willfully fail to stop and remain at the scene.

Therefore, the defendant appealed, arguing that the jury instruction misstates the law: a person cannot willfully leave the scene of a crash without actually knowing that the crash occurred.

The 1st DCA agreed with the defendant, overturned the conviction, and certified the question to the Florida Supreme Court as an issue of great public importance.

The 4th DCA in Palm Beach County has also certified this question in Dorsett v. State, where the Fourth District Court of Appeal held that the standard jury instruction for Leaving the Scene of an Accident Causing Death did not accurately state the law because a defendant must have actual knowledge of the crash in order to be held convicted for leaving the scene of a crash under the statute for Leaving the Scene of an Accident Causing Death.

 

Casey Reiter is an associate attorney at Stuart R. Manoff & Associates, P.A. in West Palm Beach, Florida, practicing in the areas of Criminal Defense and Marital Law.