DUI – Accident Report Privilege

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.

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DUI Top 10 FAQ in Palm Beach County, Florida

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.

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.

Anxiety and DUI Arrests in Florida

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One of the most common observations made by officers during a DUI stop is that the driver was weaving in his or her lane.

However, when officers make this observation, they are often following behind a driver. The “normal” response for a driver who is being followed by a police officer is to become nervous and anxious. Even people who have done nothing wrong find themselves double checking their mirrors and slowing down when they become aware that a marked police vehicle is behind them. The longer the officer follows, the more nervous a person typically becomes; the more nervous a person grows, the more that person checks his mirror, taking his eyes of the road, and drifting in his lane.

Undoubtedly, the result is weaving, drifting, and attempts at correction, which can create the appearance that the driver is under the influence of alcohol. Meanwhile, the police officer has most likely been recording the entire incident on his in-car camera, capturing what he believes to be evidence of a drunk driver to present in court later.

A police officer needs reasonable suspicion to stop a driver for a DUI investigation. Interestingly, in the scenario above, the police officer’s own act of driving behind the vehicle has caused driver’s actions, which then give the police officer reasonable suspicion to believe that a DUI is being committed. After all, erratic actions, weaving within a lane, and varying speeds are actual indicators that someone is under the influence.

If a driver has been pulled over, now it is typical for the driver to become even more nervous. A person who has just been followed by a police officer, who has been exposed to the flashing lights and sirens, and who has been approached by an officer in full uniform may start sweating, stuttering, and appear flushed due to an increased heart rate. The person may fumble with his or her wallet when asked to present a driver’s license and proof of insurance. On top of this, the investigating officer likely already believes that driver is under the influence based on his or her driving pattern. So now, the officer notes bloodshot eyes as an indicator of impairment, when they could have simply been dry from the air conditioner, or tired from driving. If the person has had a drink, the “evidence” keeps piling on. Now there is an “odor of alcoholic beverage” on the driver’s breath, and an admission that the person was drinking if he responds to the police officer’s question of “have you been drinking tonight” with “I only had two drinks a couple of hours ago!”

At this point, the officer will typically ask a person to exit the vehicle and perform field sobriety exercises. A driver who does not know the exercises are voluntary may perform the exercises, perform poorly (maybe the driver naturally has poor balance, or an injury, combined with being anxious), and ultimately be placed under arrest for driving under the influence without even the results of a breathalyzer. If the person refuses to submit to a breath test, that refusal will be used as additional evidence against the person, and in a trial, the prosecutor will be able to argue that the driver refused the breath test because he “knew” the results would be above the limit (even if that wasn’t the reason for refusal).

Obviously, not all DUI arrests are a result of an encounter between a nervous person and an overzealous police officer. However, many of the standard “indicators of impairment” can be created in the scenario described above and cause the arrest of a person who was not actually under the influence to the extent his or her normal faculties were impaired.

There are many defenses to a DUI charge, and anyone who is facing a DUI in Palm Beach County should contact a Palm Beach Criminal Defense Attorney to discuss his or her potential 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.

Florida DUI – Formal Review Hearings

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.