DUI Defense

DUI charges that involve a breathalyzer result over the legal limit often seem difficult, if not impossible, to beat. However, an experienced DUI defense attorney will know that there are certain things to look for that could possible lead to the suppression of the test. If the breathalyzer is suppressed, it is often much more difficult for the State to go forward with their charges.

One possible defense is that the “20 minute observation period” was not properly followed. What is the 20 Minute Observation Period? In a Florida DUI case, when a person is requested to provide a breath sample using the breath machine called the Intoxilyzer 8000, there are certain rules that the police officers must follow in order for the breath sample to be valid. One of the requirements is what is known as a 20 Minute Observation Period. For a period of 20 minutes, the breath test operator must continuously observe the person giving the breath sample. This observation period is mandated by Rule 11B-8.007(3) of the Florida Administrative Code in order to ensure that person giving the breath sample has not taken anything by mouth, has not regurgitated for at least 20 minutes before administering a breath test, and to allow for any alcohol remaining in the mouth to disappear. Without waiting for 20 minutes, the breath test may be invalid due to alcohol in the mouth, instead of the breath, showing up on the test.

There was recently a case in Florida where the breath test operator only observed the defendant for 17 minutes instead of the full 20 minutes. The defense filed a motion to suppress the results, arguing that 17 minutes was not sufficient to be in strict compliance with the requirements – and the trial court agreed.

There have been many cases similar to that – including one where the Defendant was observed for 18 minutes and 23 seconds – where the court threw out the results.

A knowledgeable criminal defense attorney will know how to read the breath results and what to look for to see whether the test was in compliance or not. A test that was not administered in accordance with the rules may be deemed inadmissible.

Anyone who is facing DUI charges in Florida, including Palm Beach County, should contact a criminal defense attorney experienced in Driving Under the Influence charges to review the case for any possible defenses.

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.

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Tailgate Parties

Attorney Casey Reiter was recently quoted in an article appearing on Avvo’s Nakedlaw Blog regarding “Why Tailgate Parties are Legal, Unless You Have Pot.” The full article can be found HERE.

In the article, Attorney Reiter explains that “tailgate parties” (events where sports fans gather in parking lots prior to the event to eat, drink, and have a good time) are not unlawful events, even though they may ultimately result in drinking and driving.

Casey Reiter briefly explains in the Nakedlaw Article that drinking and driving, in and of itself, is not against the law in Florida.

“A person who drives home after one beer is not necessarily committing a DUI,” she says. “A person cannot drink alcohol to the extent that his or her ability is impaired and then drive a vehicle.”

Having a beer and then driving is not illegal as long as a person’s normal faculties – the ability to walk, talk, see, and hear – are not impaired by one beer, and as long as the person’s blood alcohol content is under the legal limit of .08 (or .02 for minors). If it was illegal for a person to have a sip of alcohol (or even more) and then get behind the wheel, restaurants that serve alcohol would likely not be allowed to have parking lots. That is simply not the case.

Additionally, just because someone is at a tailgating party doesn’t necessarily mean that they are drinking and driving. A person can attend a tailgate and not drink, and a person can drink at a tailgate and not be driving. Further, a person can attend a tailgate, drink, go watch the event, sober up, and drive home without having committed any crime.

Finally, it is important to note that if a municipality has an ordinance banning drinking in public, police can ticket and/or arrest anyone who is openly drinking alcohol on public property, such as sidewalks, public parks, streets, etc. Often, places where tailgating is prevalent, such as sporting arenas or even private driveways, are not public and therefore are not in violation.

Of course, this is not to suggest that it is advisable for a person to drink alcohol and then get behind the wheel. Bring a sober driver with you or take a cab if you may have overindulged. As always, anyone who is facing a DUI charge in Florida should contact a Florida Criminal Defense attorney.

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.

Michael Phelps DUI Arrest

It seems to be a bad week for celebrity drivers. Michael Phelps was arrested today for his second DUI after a Maryland Transportation Authority police officer observed the Olympian travelling 84 miles per hour in a 45 mile per hour zone. Phelps allegedly performed poorly on field sobriety exercises and was placed under arrest.

Phelps was previously arrested in 2004 for driving under the influence in Maryland, after which he pled guilty and received a sentence of 18 months probation.

Details about Phelps’ current arrest are still developing.

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.

Amanda Bynes DUI Arrest

Former Nickelodeon Star, Amanda Bynes, was arrested this week for Driving Under the Influence after police determined that Bynes was under the influence of an “unknown drug.” California Highway Patrol allegedly observed Bynes’ vehicle stop in the middle of the intersection after approaching a red light. CHP pulled Bynes over and requested that she perform field sobriety exercises, which she was allegedly unable to complete.

Bynes is reportedly due in court on October 23, 2014.

While Bynes’ recent arrest would typically be charged as a misdemeanor offense, there are some complications in light of the fact that Bynes was sentenced to three years of probation in February stemming from her 2012 DUI arrest.

In Florida, a Second DUI within 5 years of a prior DUI conviction is punishable by 10-270 Days in county jail, a fine of $1,000-$2,000, probation of up to 1 year, 5 years of a driver’s license suspension, 30 days of vehicle immobilization, and 1 year of ignition interlock.

Additionally in Florida, a new arrest while on probation could lead to a violation of probation on the prior charge. This means that in addition to facing criminal liability on the new charge, probation could be terminated as “unsuccessful,” and the original sentence on the underlying crime (in this case it would be the first DUI) could be reinstated.

A Florida criminal defense attorney can review a violation of probation case and determine the proper steps to be taken in defending the VOP. Sometimes, attorneys are able to file motions for in court surrender to avoid jail, or to negotiate with the state attorney to have the terms of probation reinstated. Each case is different. Anyone facing a probation violation in Florida should contact a Florida criminal defense lawyer.

Further, anyone charged with a DUI in Palm Beach County should contact a Palm Beach Criminal Defense Lawyer to review their defense options.

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.

Goodman Hearings Continued

The continuation of the Goodman hearings in advance of the October 6th re-trial date are underway again this morning. As discussed in last week’s article, Goodman’s retrial regarding the highly publicized 2010 Wellington crash that resulted in Scott Patrick Wilson’s death is scheduled to begin on October 6, 2014. Today, one of the issues to be discussed is the validity of the blood alcohol test results due to the methods used to collect Goodman’s blood after the fatal crash.

Laura Barfield, a former crime lab analyst at FDLE (Florida Department of Law Enforcement), took the stand this morning to testify about the blood testing methods used in the Goodman case. Barfield was the manager of the alcohol testing program at FDLE in 2010 during the initial testing of Goodman’s blood. However, she resigned in April of 2013 in the wake of a scandal involving her alleged charging of personal expenses on her State credit card.

Barfield testified this morning that there are various steps necessary when taking a blood draw and testing that are all important to obtain the proper result. For example, the use a non-alcohol wipe is crucial so as not to introduce outside alcohol into the blood sample when blood is being drawn. Additionally, the Goodman defense team has raised the argument that Goodman’s blood alcohol test results are flawed because the wrong sized needle was used; however, according to Barfield, the testing rules do not require a certain sized needle to be used.

The hearings will continue today and go through Wednesday. The Palm Beach Post has a live feed of the testimony, found here.

In Florida, blood tests are typically the most accurate of the alcohol level tests, but also are considered to be the most invasive. As a result, blood draws are only permitted in limited circumstances (without consent), such as where there was an accident involving great bodily injury or death. In Florida DUI cases, defense attorneys are sometimes able to argue that blood results are invalid and should be suppressed for a variety of issues, including: the use of an alcohol swab to clean the skin before the blood is drawn (as discussed above); testing blood serum as opposed to a whole blood sample; the ingestion of certain prescriptions, medicines, vitamins and foods that could affect the blood results; fermentation in the sample vial; an insufficient sample amount due to blood coagulation; blood vial mix ups; and blood vial contamination.

A Palm Beach DUI lawyer can investigate these potential defenses when someone has been charged with a driving under the influence charge involving a blood draw.

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.