Tag: Criminal Defense

Criminal Defense, Driving Under the Influence, DUI, Legal Blog

DUI – Accident Report Privilege

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An interesting case was released out of the 9th circuit recently (Orange County, Florida) that dealt with a DUI Motion to Suppress regarding the Accident Report Privilege.

WHAT IS THE ACCIDENT REPORT PRIVILEGE?

The “Accident Report Privilege” is a legal privilege that protects a person who is speaking to law enforcement during a traffic accident in order to encourage people to truthfully and fully report the facts surrounding traffic accidents. Florida Statue § 316.066(4) provides that “accident reports made by persons involved in accidents shall be without prejudice to the individual reporting” and that “[n]o such report shall be used as evidence in any trial.”

HOW DOES THE ACCIDENT REPORT PRIVILEGE APPLY TO DUI CHARGES?

When a traffic accident is related to a DUI (the crash was caused by someone driving under the influence, or a person involved in the crash was driving under the influence at the time of the crash), police officers are technically doing two separate investigations: one for the crash and one for the DUI. Typically, the responding officer will start with the crash investigation to figure out what happened. Then, once the officer completes the traffic crash investigation, if the officer suspects that a driver was driving under the influence, he or she is supposed to read the suspect his or her Miranda Warnings and “change hats” to that of a criminal investigation. When making a determination as to whether the elements of Driving Under the Influence exist to make an arrest, the officer cannot rely on evidence from a traffic investigation.

WHY WOULD THE POLICE HAVE TO READ YOUR RIGHTS?

The purpose of a police officer advising you of your Miranda Rights is to let you know that a  criminal investigation is starting and that the officer will be asking you questions. Prior to being interrogated, a person who is in custody must be clearly informed that he/she has (1) the right to remain silent, (2) that anything he/she says can and will be used against him/her in a court of law, (3) that he/she has the right to consult with an attorney prior to and during any questioning, and (4) that if he/she cannot afford an attorney, one will be provided for him/her at no cost.

With DUI cases, a person involved in a traffic accident has a duty to report what happened during the accident. However, reporting could cause the person to implicate themselves in a crime (DUI). Florida legislatures recognized this problem and created the accident report privilege to protect statements made during the accident investigation, and required the investigating officer to let the suspect know that now the officer is conducting a criminal investigation against the suspect so that it is clear the traffic investigation is over.

SO WHAT HAPPENED IN THE CASE?

In the case of State v. Alli, the Defense filed a Motion to Suppress illegally obtained evidence. There, the Defendant was involved in a traffic accident. During the traffic investigation, the Defendant admitted to the officer that she was driving the vehicle involved in the accident. However, the officer never “changed hats” from his traffic crash investigation to his DUI investigation. No other witnesses could specifically identify the defendant as the driver of the car at the time of the accident. The Defendant answered questions asked by the officer for the accident investigation truthfully and without knowledge of a criminal DUI investigation starting. The 9th Circuit Court ruled that for the State of Florida to be able to use the statements/evidence given by the Defendant during the accident investigation, the Defendant’s 5th Amendment right against self-incrimination would be violated. Therefore, the Court granted the Defendant’s Motion and suppressed all of the evidence obtained unlawfully by the officer without properly “switching hats.”

 

 

A person who is facing DUI charges in Florida should contact a criminal defense attorney who is familiar with DUI cases and has filed motions to suppress. A person who is placed under arrest and interrogated without being read Miranda Rights may be able to have his/her statements suppressed (or thrown out). However, that does not mean the case has to be or will be dismissed. Anyone who has questions regarding their particular case, or Miranda rights in general, should contact a criminal defense attorney.

Casey Reiter is an associate attorney at Greenspoon Marder in West Palm Beach, Florida, practicing in the areas of Criminal Defense and Marital Law.

Breathalyzer, Criminal Defense, Diversion Program, Driving Under the Influence, DUI, Formal Review Hearing, Legal Blog, License Suspension

DUI Top 10 FAQ in Palm Beach County, Florida

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This guide provides general answers to frequently asked questions regarding Driving Under the Influence (DUI) in Palm Beach County, Florida.
1 What is DUI or Driving Under the Influence?
Driving Under the Influence, or DUI, is a criminal charge in Florida when a person is in actual, physical control of a vehicle while under the influence of drugs or alcohol to the extent their normal faculties (ability to walk, talk, see, hear, etc.) are impaired, or with a blood or breath alcohol content of more than .08.

2 What are Field Sobriety Exercises?
Field Sobriety Exercises, or FSEs, 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 of alcohol or drugs. They usually consist of HGN (Horizontal Gaze Nystagmus – where an officer will ask you to follow a pen with your eyes), Walk and Turn (walk nine heel-to-toe steps in a straight line, turn around, and walk back), One Leg Stand (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), and Finger to Nose (extend the arms one at a time to touch the tip of the nose with the tip of the finger).

3 Do I have to perform Field Sobriety Exercises?
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.

4 Do I have 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. So while you can refuse to take a breath test, such a refusal will not be without consequences.

5 The police officer didn’t read me my rights – does my case get dropped?
Unfortunately, it is not that easy. In Florida, an officer usually does not have to read your Miranda rights unless he is interrogating you, or unless you were involved in a car accident and his traffic investigation turns into a DUI investigation. This is why it is important for you to know your rights – including your right to remain silent.

6 What is the 10 Day Rule?
When you are arrested for Driving Under the Influence in Florida, your DUI citation will act as a 10 day temporary driving permit. During that time, you have the option to request a Formal Review Hearing and challenge the administrative suspension of your license in front of a DMV hearing officer, or you can waive that right and immediately receive a hardship permit (also called a Business Purposes Only permit) which will let you drive for limited purposes (such as going to school or work). You have to make this decision within 10 days.
7 What is a Formal Review Hearing?
A Formal Review Hearing is separate and distinct from the criminal DUI case. 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. 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.
8 What are the Penalties for a 1st time DUI
The penalties for a first time DUI arrest depend on the specific circumstances of the incident. In general, for a run of the mill DUI where there were no enhancing factors (no accident, no children in the car, blood or breath alcohol content under 1.5, etc.), a person will be facing fines ranging from $500.00 up to $2,000.00, a minimum of six months driver’s license suspension, possible jail time, 10-day vehicle immobilization, at least 50 hours of community service, up to one year of probation, attendance at DUI school, and attendance at a Victim Impact Panel, in addition to higher insurance rates and a criminal conviction .

9 Is there a Diversion Program for 1st Time DUI arrests in Palm Beach County, Florida?
Yes; in 2013 the Palm Beach County State Attorney’s office established a diversion program for people who are facing their first DUI arrests. Not everyone is eligible for the program: if you were in a DUI crash, or you were arrested for DUI with a minor child or animal in your car, the Palm Beach County prosecutors will not let you enroll in the Palm Beach County DUI First Time Offender Program. A person who is arrested for a DUI for the first time who does participate in the Palm Beach County DUI First Time Offender Program, which is a diversion program, can expect the following: the DUI charged will be dropped, you will instead plead guilty to a lesser charge of reckless driving, and then you will be placed on probation for 12 months, during which time you agree not to have alcohol or drugs, to immobilize your car for 10 days, to pay for an alcohol monitoring device (ignition interlock that is installed in your car, SCRAM – Secure Continuous Remote Alcohol Monitor – ankle bracelet monitor, or Visual alcohol monitoring device) for three to six months (the time period depends on the level of impairment), to pay a fine from $250.00 to $500.00 (depending on the level of impairment), to perform 50 or 75 community service hours (depending on the level of impairment), DUI school, substance abuse evaluation, and Victim Impact Panel class. It is important to know that there are severe consequences for failing, which can include a reinstatement of your DUI charge and conviction, and 90 days in Palm Beach County Jail. The program is not for everyone – you need to be extremely disciplined to pass the program. If you have been arrested for DUI in Palm Beach County, Florida, and are considering the DUI program, you need to act fast – if you want to enter the program, you have to do so at Arraignment. A knowledgeable DUI defense attorney in Palm Beach County will help you review your case and decide whether you should enter the Palm Beach County DUI First Time Offender Program.

10 Why Hire a DUI Lawyer in Palm Beach County?
A DUI Lawyer in can review your Palm Beach County DUI case and look for mistakes that were made by the officers, challenge breath test results, file motions to suppress if needed, contest your DUI charges, and negotiate with the State on your behalf or go to trial. Anyone who is facing DUI charges in in Palm Beach County, Florida, whether it is the first time DUI charge or a second DUI charge or more, should contact a criminal defense attorney experienced in Driving Under the Influence charges to review the case for any possible defenses and help you find the best possible resolution to your specific case.

 

Anyone who is facing DUI charges in in Palm Beach County, Florida, whether it is the first time DUI charge or a second DUI charge or more, 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 attorney at Greenspoon Marder Law in West Palm Beach, Florida, practicing in the areas of Criminal Defense, Family Law, and Appellate Law.

Breathalyzer, Criminal Defense, Diversion Program, Driving Under the Influence, DUI, InfoFriday, Legal Blog, License Suspension, Probation

Palm Beach County DUI First Time Offenders

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DUIFIRSTARRESTA common scenario in the criminal defense world is the case of the first time offender, who has never been arrested before, and who is facing DUI charges. This person is understandably scared of the process. The first question they ask is almost always: “This is my first arrest . . . isn’t there some kind of program I can sign up for?”

In the past, in Palm Beach County the answer to that question was unfortunately “No” for someone who was arrested for DUI. Palm Beach County first arrest DUIs would have to be fought in the normal way: taking depositions, filing motions to suppress evidence, going to trial, or accepting a plea offer.

Now, however, the Palm Beach County State Attorney’s Office has created a Palm Beach County DUI First Time Offender Program.

The Palm Beach County DUI First Time Offender Program began on June 1, 2013. While the requirements of the program are mostly tougher than the penalties for a first-time DUI conviction, signing up for and completing the program is worth the tough requirements for most people.

A DUI conviction for a first-time DUI offender who does not participate in the Palm Beach County DUI First Time Offender Program can include: fines ranging from $500.00 up to $2,000.00 (the exact fine depends on the levels of impairment and other circumstances), a minimum of six months driver’s license suspension, possible jail time, 10-day vehicle immobilization, at least 50 hours of community service, up to one year of probation, attendance at DUI school, and attendance at a Victim Impact Panel, in addition to higher insurance rates and a criminal conviction on your record.

A person who is arrested for a DUI for the first time who does participate in the Palm Beach County DUI First Time Offender Program, which is a diversion program, can expect the following: the DUI charged will be dropped, you will instead plead guilty to a lesser charge of reckless driving, and then you will be placed on probation for 12 months, during which time you agree not to have alcohol or drugs, to immobilize your car for 10 days, to pay for an alcohol monitoring device (ignition interlock that is installed in your car, SCRAM – Secure Continuous Remote Alcohol Monitor – ankle bracelet monitor, or Visual alcohol monitoring device) for three to six months (the time period depends on the level of impairment), to pay a fine from $250.00 to $500.00 (depending on the level of impairment), to perform 50 or 75 community service hours (depending on the level of impairment), DUI school, substance abuse evaluation, and Victim Impact Panel class.

A lot of the requirements may sound the same. The biggest difference, aside from getting the DUI charge dropped, is that with the Palm Beach County DUI First Time Offender Program, you will be responsible to pay for your own alcohol monitoring device, which can get expensive. The ignition interlock costs nearly $100 to install and then over $70 a month to monitor; a SCRAM Monitor costs $100 to install and then a daily payment of over $10.00; the Visual Alcohol breath test monitor costs $50 to start then a daily payment of about $6.00. Each device has its own pros and cons, which a Palm Beach County DUI lawyer can help you weigh. But, with the chance at having a DUI charged dropped, the cost may be worth it to a lot of first offenders.

Not everyone is eligible for the program: if you were in a DUI crash, or you were arrested for DUI with a minor child or animal in your car, the Palm Beach County prosecutors will not let you enroll in the Palm Beach County DUI First Time Offender Program.

Also, anyone who is not dedicated to completing the program faces severe consequences for failing, which can include a reinstatement of your DUI charge and conviction, and 90 days in Palm Beach County Jail. The program is not for everyone – you need to be extremely disciplined to pass the program.

If you have been arrested for DUI in Palm Beach County, Florida, and are considering the DUI program, you need to act fast – if you want to enter the program, you have to do so at Arraignment. A knowledgeable DUI defense attorney in Palm Beach County will help you review your case and decide whether you should enter the  Palm Beach County DUI First Time Offender Program.

Anyone who is facing DUI charges in in Palm Beach County, Florida, whether it is the first time DUI charge or a second DUI charge or more, 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 attorney at Greenspoon Marder Law in West Palm Beach, Florida, practicing in the areas of Criminal Defense, Family Law, and Appellate Law.

Criminal Defense, Legal Blog, Recent News

Human Rights

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A couple of very disturbing videos have made their way out of Broward County and onto social media.

In the first video, a Broward Deputy is shown dragging a woman on her back by the shackles on her ankles through the Broward County Courthouse. The woman had, according to the Sun Sentinel, “just been declared mentally incompetent during a trespassing and criminal mischief case.” The video can be found here: http://www.sun-sentinel.com/local/broward/fort-lauderdale/fl-dragged-through-court-20150223-story.html

In the second video, a Fort Lauderdale Police Officer is shown pushing and slapping a homeless man. The video can be found here: http://blogs.browardpalmbeach.com/pulp/2015/02/video_shows_cop_slapping_man_who_wanted_to_use_restroom_youre_not_going_to_pee.php

When is it ever okay to treat human beings this way, let alone by a person who has been given a badge and sworn to protect and serve?

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, Legal Blog, Recent News

American Sniper – Chris Kyle’s Killer’s Trial Set to Begin

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I have been asked several times whether I think the movie “American Sniper” would influence the jury’s view of Eddie Ray Routh, the man accused of killing Chris Kyle. For those unaware, Chris Kyle was the former Navy SEAL whose autobiography was recently turned into the hit movie “American Sniper” starring Bradley Cooper. Routh is being charged with murdering Kyle, as well as Chad Littlefield, at a shooting range. Jury selection in Routh’s trial began yesterday in Texas.

Even though the movie American Sniper does not specifically depict any of Routh’s alleged actions in the film or mention him by name, I think any juror who has seen the movie could absolutely be influenced by it. With the huge box office turnout of American Sniper, I would think it would be hard to find a prospective juror who had not seen it, heard about it, or even read the book, and formed some feelings or opinions about Chris Kyle and the person who allegedly murdered him. Understandably, Routh’s defense team has expressed concern that Routh will not be able to have a fair trial in light of the wide-spread popularity of Kyle’s book and subsequent movie.
However, in order to find a fair and impartial jury, you can be certain that during the jury selection process, the judge and attorneys for both sides will ask all potential jurors what they know about the case. For those jurors who have seen the movie or read the book, they will then be asked whether, knowing all that they know, they will be able to be fair and impartial during the trial. If the juror agrees that he or she can be fair and impartial, the fact that a potential juror has seen or heard about the movie will not necessarily be enough to have them stricken from the panel.
My previous blog regarding the jury selection process can be found here: What to Expect During Jury Selection
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.