DUI Permanent License Revocation

A Broward DUI case (Calabrese v. State) was published this week wherein a permanent license revocation was affirmed by the Broward Circuit Court.

In the case, the defendant was arrested for DUI after she drove through an area that had been roped off by police for an unrelated criminal investigation. The defendant declined to perform field sobriety exercises, but agreed to submit to a breath test and blew a .089. The defendant was found guilty by a jury at trial. The court found that this was the defendant’s third DUI within 10 years. As a result, she was ultimately sentenced to 364 days in Broward County Jail, which was to be lowered to 180 days upon completion of the SAP program (the Substance Abuse and Life Skills Program which provides treatment services to inmates in Broward County’s Jail), along with other standard DUI penalties (such as community service, fines, etc.) and a lifetime driver’s license revocation. 

The defendant appealed the lifetime driver’s license revocation, arguing that it was improper for the court to order because Florida Statute 322.28(2)(a) only requires a 10 year minimum license suspension for a third DUI conviction within 10 years. However, the circuit court disagreed and found that because there was no maximum sentence limit within the statute, the trial judge was within his discretion to issue a lifetime driver’s license revocation.

DUIs in Florida have serious consequences, as seen in this case. Anyone who is facing DUI charges in Florida should contact a criminal defense lawyer to discuss the possible penalties of a DUI conviction and determine the best defense route to attempt to mitigate those penalties. 

 

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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Leaving the Scene of an Accident

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.

Constitutionality of Solicitation Fines in Florida

A county court in Florida recently certified an important issue to the Second District Court of Appeal regarding excessive fines as a punishment for solicitation of prostitution.

In the case, the defendant was charged by Information with Solicitation of Prostitution, under Florida Statute 796.07(2). Solicitation for Prostitution is a second degree misdemeanor in the State of Florida, and second degree misdemeanors are punishable by up to 60 days in county jail, and a fine of up to $500, except where a specific statute allows for a higher fine. In the case of solicitation for prostitution, as of January 1, 2013, the fine is mandated by statute to be $5,000 instead of $500 for a first offense. The Defendant filed a “Motion to Find Statute Unconstitutional,” arguing that the fine was grossly disproportion to the offense, and therefore excessive under (1) the Eighth Amendment to the United States Constitution, which provides that: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” and (2) under Article I, Section 17 of the Florida Constitution, which provides that: “Excessive fines, cruel and unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are forbidden.”

The court initially reserved jurisdiction on deciding the defendant’s motion. The defendant then entered a plea of nolo contendere (or “no contest”) and was sentenced to, among other things, six months of probation, twenty-five hours of community service, and a $5,000 fine. After sentencing the defendant, the court ruled on the defendant’s “Motion to Find Statute Unconstitutional.”

The court ultimately agreed with the defendant, granted the defendant’s motion, and struck the $5,000 fine, finding that a fine may be considered unconstitutional if it is so unreasonably excessive that it shocks the conscience of a reasonable person. The court then certified the question to the Second District Court of Appeal as a matter of great public importance, asking the Appellate Court to decide if a $5,000 fine for a first violation of solicitation of prostitution is unconstitutionally excessive. It will be interesting to see if and how the 2nd DCA rules on this question.

 

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.

Cell Phone Searches

The Florida 3rd District Court of Appeal in Miami recently ruled that warrantless searches of cell phones are illegal, even when they are incident to a lawful arrest.

Generally, when a person is lawfully placed under arrest, police are legally allowed to search the person without a warrant in order to locate and remove any weapons and to seize any evidence on the person’s body or within their immediate control to prevent concealment or destruction of the evidence. This is commonly referred to as a “search incident to arrest.”

In the case of Saint-Hilaire v. State of Florida,  the defendant was stopped by a police officer for a routine traffic infraction. During their interaction, the officer noticed that the defendant’s wallet contained multiple nearly identical debit cards. The defendant allegedly consented to a search of his wallet. The officer discovered that the coding on one of the cards did not match the name on the front, and then placed the defendant under arrest. At that point, the officer patted down the defendant, found his cell phone, and searched it. The search of the cell phone allegedly revealed a list of multiple names and security numbers. The defendant was ultimately charged with several counts of possession of personal identification information with intent to defraud. Possession of personal identification with intent to defraud (found in Florida Statute 817.568) is a third degree felony in the State of Florida, punishable by up to five (5) years in Florida State Prison for each count, in addition to fines.

The defendant filed a Motion to Suppress, arguing that the evidence found on his cell phone should be thrown out because it was obtained as a result of an unlawful, warrantless search by the police officer. The trial court denied the defendant’s motion, and he appealed the case.

The appellate court agreed with the defendant and found that the trial court should have thrown out the evidence. The appellate court stated that the search of a cell phone goes beyond the bounds of a legal search incident to a lawful arrest when there is no evidence that the officer had a reasonable belief that the cell phone contained evidence of a crime. The officer was legally allowed to seize (or take) the phone, but he was not allowed to search it.  If the officer wanted to search the phone, the lawful method should have been for him to obtain a warrant.

It is important to note that the State Attorney’s office in that case could still go forward with charges by using the evidence from the defendant’s wallet. If the defendant consented to the search of his wallet, any evidence found in his wallet was lawfully obtained.

Consenting to a search is never a good idea. The only reason police officers ask to search someone is because they want to obtain more evidence against that person to place them under arrest. If the police had enough evidence to arrest the person, they would arrest them. Unfortunately, many people do not know their rights. When stopped by police officers, many people feel intimidated and simply agree to whatever the officer asks, hoping that doing so will make the encounter easier. However, agreeing to searches and answering questions only makes the encounter easier for the police – it gives them more evidence to arrest without even having to apply for a warrant.

Anyone who has questions about their rights regarding searches, consent, and police investigations in Palm Beach County should contact a Florida Criminal Defense Lawyer.

 

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.