DUI – Page 4 – Casey Reiter

Breathalyzers

September 2, 2014March 20, 2016 caseyreiteresq

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.

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.

DUI, Legal Blog

Broward BSO DUI Checkpoint

August 29, 2014March 20, 2016 Casey Reiter

As we get ready to kick off the holiday weekend, BSO has announced a planned DUI checkpoint for tonight.

According to Broward Sheriff’s Office, the DUI checkpoint will be in Oakland Park at 1701 E. Oakland Park Blvd. on Friday, August 29, 2014 at 9:00 pm through Saturday, August 30, 2014 at 5:00 am.

Everyone celebrating this weekend should be careful not to drink and drive. Be safe and call a cab or a sober friend!

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

August 28, 2014March 20, 2016 caseyreiteresq

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.

Criminal Defense, DUI, Legal Blog

DUI – Field Sobriety Exercises

August 18, 2014March 20, 2016 caseyreiteresq

In last week’s blog, DUI – Property Damage, I mentioned that there are roadside sobriety exercises, such as the Walk and Turn exercise, the Finger to Nose exercise, and the One Leg Stand exercise, that officers request people to perform during a DUI investigation.

Roadside exercises, also called field sobriety exercises, are tasks designed to measure a person’s coordination, balance, and mental awareness. The roadside tasks are administered by law enforcement officers, in many cases an officer who is a member of a DUI Task Force, after a traffic stop (or at a DUI checkpoint) when the officers have reasonable suspicion that the driver of the vehicle is under the influence, whether it be under the influence of drugs or of alcohol. Administering these roadside tasks transforms a traffic stop into a DUI investigation.

“Reasonable suspicion” is the legal standard of proof required for officers to begin a DUI investigation. In order for an officer to have “reasonable suspicion” to believe that someone is committing, is about to commit, or has committed a crime (in this case, Driving Under the Influence), the officer must have more than a hunch based upon specific and articulable facts. Reasonable suspicion to begin a DUI investigation could come from the driver’s driving pattern, such as weaving, improperly changing lanes, driving with lights off at night, speeding, driving over a median, or an improper U-Turn, combined with physical indicators of impairment such as bloodshot, watery eyes, slurred speech, or the odor of alcohol.

There are three specific roadside sobriety tasks or exercises that have been approved by the National Highway Safety and Traffic Administration (NHSTA) that officers may request when they believe they have reasonable suspicion to begin a DUI investigation:

1) Horizontal Gaze Nystagmus (HGN):This is the most “scientific” of the field sobriety exercises, and for that reason, in order for the results of this test to be admitted in court, the officer must have been “DRE certified.” (DRE means “Drug Recognition Expert). During this exercise, the officer typically asks the driver to look at a pen light follow it with her/her eyes as the officer moves the light up and down, and right and left. The exercise is designed to measure involuntary eye movement, called nystagmus, which can be an indicator of drug or alcohol use. Nystagmus is also a naturally occurring phenomenon in certain people, and can also be a side effect of a stroke or tumor.

2) One-Leg Stand: During this exercise, an officer will ask the driver to stand on one leg, lift the other leg approximately six inches off of the ground while keeping arms down at the side, and count to thirty. During the thirty second count, the officer will make notes of the driver’s wobbling, swaying, raising arms, dropping the foot to the ground, and how the driver counts – noting if the count is too slow, too fast, or skips numbers. NHTSA has stated that the exercise is not recommended for people who are older, who have disabilities, or who are over 50 pounds overweight.

3) Walk and Turn: During this exercise, an officer will ask the driver to walk nine heel-to-toe steps in a straight line, turn around, and walk back. During the walk and turn, the officer observes whether the driver is able to follow instructions, maintain balance, maintain in a straight line, count the correct number of steps, and turn around appropriately. NHTSA has stated that this exercise is more accurate when performed in a well lit area, on a cleared, flat, hard, and dry surface. Again, this exercise is not recommended for people who are older, who have disabilities, or who are over 50 pounds overweight.

There are other alternative exercises that can be used in addition to the three tasks mentioned above, or in lieu of the three mentioned above if the person claims physically disabilities that will prevent them from appropriately performing the tasks. In Palm Beach County, a DUI investigation could also typically include:

1) Finger to Nose: During this exercise, the officer will ask the driver to stand with her/her feet together and his/her arms out to the side, at a 90 degree angle from the driver’s body. The officer will ask the driver to close both eyes, tilt the head back, and extend the arms one at a time to touch the tip of the nose with the tip of the finger by only bending the arms at the elbows, and then return the arms to the side. During the finger to nose, the officer will observe whether the driver sways, misses his/her nose, uses the wrong arm, or fails to return his/her arm to the side once finished.

2) Romberg Alphabet: During this exercise, the officer will ask the driver to state the alphabet from A-Z without singing.

3) Finger Count: During this exercise, the officer will ask the driver to extend one arm with palm facing up and then touch each finger tip with the tip of the thumb while counting out loud “one, two, three, four,” one count for each time the thumb touches a finger. The officer will then ask the driver to perform the same task in reverse, and repeat three times. During this exercise, the officer will observe things such as the driver’s ability to follow instructions, to count, and to touch each finger in the correct order.

During a DUI investigation, field sobriety exercises are voluntary. An officer’s request for a person to perform these exercises is his attempt to either dispel his belief that the suspect is under the influence, or to gain additional evidence in support of his belief that the driver should be placed under arrest. Typically, officers are recording these exercises with the dash camera in their police vehicles, and the resulting video evidence can be used in court. This is why it is important for people to know that a person who is requested to perform field sobriety tasks does not have to perform them. There are many reasons that a person could perform poorly on the exercises, even if that person is not under the influence. Physical disabilities, such as foot, knee, or balancing problems, could cause a person to not perform the exercises to standard, potentially resulting in their arrest and video evidence that could be presented to a jury.

Driving Under the Influence in the State of Florida can have serious consequences, including jail time, probation, driver’s license suspension. Anyone arrested for a DUI should contact a Criminal Defense Attorney to explore 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.

Criminal Defense, DUI, Legal Blog

DUI Property Damage – Exculpatory Evidence

August 15, 2014March 20, 2016 caseyreiteresq

An interesting DUI with Property Damage case from Broward was decided recently by the 4th District Court of Appeal. There, the Court had to decide the issue of what remedy, if any, is available to a DUI defendant where the police fail to preserve video evidence of a DUI investigation.

In that case, the Defendant was arrested for Driving Under the Influence with Injury and Property Damage. During the DUI investigation, the sheriff’s office had a DUI Task Force deputy conduct roadside sobriety exercises (such as the Walk and Turn exercise, the Finger to Nose exercise, and One Leg Stand exercise). The deputy was recording the exercises on his in-car camera. However, after a few moments, the camera’s view of the defendant performing the exercises was obstructed by condensation that had built up on the windshield as a result of the air conditioning being on in the police car. The deputy testified that he knew the fogging could happen (and routinely happens when it is hot and muggy outside), but he failed to check the camera to make sure it properly recording. Therefore, the remainder of the exercises was not able to be seen on the video. The defendant filed a motion to dismiss or to exclude the evidence, arguing that the sheriff’s office essentially destroyed exculpatory evidence (or, evidence that would have been helpful to the defendant).

The Trial Court dismissed the charges, finding that the sheriff’s office failed to follow their standard operating procedures by failing to properly maintain the video camera and ensuring that the proper recording occurred. The State appealed the case.

The appellate court reversed the dismissal, finding that there were other less severe sanctions that the trial court should have entered to rectify the prejudice caused to the defense by the lost recording. For example, the court could have simply excluded any evidence pertaining to the roadside exercises and an instruction to the jury that they may infer that the lost evidence is exculpatory.

In DUI cases, there are possible defenses. In the case above, the defendant argued that the improperly recorded video would have showed him doing well on the exercises, thereby helping his defense. However, because the recording was damaged, the jury would never get to see the evidence that the defendant believed would help him. In that case, if the court excludes the evidence of the roadside tasks, such as all of the video and the officer’s testimony about how the defendant performed, the State Attorney will likely have a much more difficult time proving to the jury that the defendant was driving under the influence.

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.