Articles Posted in DUI / BUI – Drunk Driving

In Florida, someone who has been convicted of a crime can consider appealing a conviction to obtain relief from the conviction and sentence.  The criminal court system allows appeal.  However, most lower court decisions are upheld.  Therefore, attempting to appeal a case may be a significant challenge.  Some appeals are a matter of right and some are discretionary on the part of the appellate court.  Generally, the party the files the appeal attempts to show a material error on the part of the trial court.

What Type of Error is Substantial?

The appellate courts distinguish between harmless error and a material error.  Where an appellate court reviews an error as harmless, it is not considered to have a substantial impact on the disposition and eventual result of the case.  Where an error by a trial court does not show that it affects the substantial rights of a party, it may be difficult to prove that a material mistake was made by the trial court and obtain relief.

What is Mens Rea? 

Mens Rea is the mental element of an individual’s intent to commit a crime.  It can also be expressed as the knowledge that a particular act would result in a crime being committed.

Why is Mens Rea significant if I have been accused of a crime?

The United States Supreme Court handed down a decision that has been historic in a case entitled the Miranda v. Arizona, in 1966Essentially, four cases made it to the United States Supreme Court with similar issues.  All cases involved interrogation by police in a closed room where the putative Defendant was cut off from the outside world.  In three of these cases, the Defendant signed statements that were admitted at trial and one of the cases involved oral statements admitted at trial.  Following the Miranda Case, whenever a person is taken into detention, that individual must be advised of their Fifth Amendment right against making any self-incriminating statements.  When the police question someone in custody, they must advise:

  1. You have the right to remain silent.
  2. Anything that you say can and will be used against you.

The Sixth Amendment to the U.S. Constitution is what Florida’s Speedy Trial Rules are based upon.  The right to a Speedy Trial is a fundamental right.  It is designed to eliminate incarceration for long periods of time when one is accused of a crime.  The Florida Rules of Criminal Procedure provide that persons charged with a crime will be brought to trial within 90 days of arrest where the crime charged is a misdemeanor and within 175 days where the crime charged is a felony. Rule 3.191(b) provides for a Defendant to demand a speedy trial in writing and when this occurs, he or she is entitled to trial within 50 days.  Under this rule, such a demand signifies that the Defendant is prepared to proceed to trial within 5 days.

What happens if the state fails to conduct a trial within the statutory time periods? 

Where the state fails too bring the accused to trial within the above referenced time periods, the Defendant is discharged (except for exceptions to the tolling of these time periods).

Is There a Warrant Issued in My Name?

There are numerous warrants issued for almost every type of crime that occurs in Florida.  The warrant system is used to apprehend criminals and those accused of a crime.  Despite the belief that warrants expire, they do not.  Additionally, warrants can be executed at anytime.  Just because you may not be located within the territory of the state that issued a warrant, you are not safe from exposure to arrest.  It is common for warrants to be issued for both felonies and misdemeanors in Florida.  A warrant will be active until it is served, the individual dies, or the judge recalls the warrant.  It is important to resolve a warrant promptly, so one does not have to deal with a multitude of problems unexpectedly.  Your arrest could result from the most minor traffic stop for a tailgate light.

The FDLE has a database which usually lists active warrants and may be found online at http://www.fdle.state.fl.us/.  You can select “search wanted persons” and you will be taken to a search screen.

            The Sixth Amendment to the Constitution of the United States provides that:

            In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

            The Constitution does not define what a speedy trial means.  There is a Speedy Trial Act governing federal criminal charges and in Florida state trials there is a criminal rule of procedure that addresses speedy trial.  The Florida rule provides for Speedy Trial without Demand which requires defendants to be brought to trial within 90 days from the arrest on a misdemeanor, or 175 days from the arrest for a felony.  There is also a provision for Speedy Trial Upon Demand this provides that every person charged with a crime by indictment or information shall have the right to demand a trial within 60 days by filing a pleading entitled “Demand for Speedy Trial”.  These provisions can be found in Florida Rules of Criminal Procedure Rule 3.191.

When Should You File a Post Conviction Relief Motion in Florida?

A motion for post conviction relief is a motion that is filed after an individual is convicted of a crime where the court is being asked to relieve a person from their conviction.  The following grounds may be used as the reason for filing:

  1. The sentence imposed was illegal or violates the Florida or United States Constitution.

In a U.S. District Court decision issued on September 28, 2018 by Chief Judge Christopher C. Conner from the Middle District of Pennsylvania, the Court ruled that the felon-in-possession ban of 18 U.S.C. §922(g)(1) is unconstitutional as to Raymond Holloway, Jr. in violation of the Second Amendment to the United States Constitution.Conceal Carry

18 U.S.C. §922(g)(1) states that “it is unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year…to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

Raymond Holloway, Jr. was charged with DUI and speeding in December 2002 in violation of Pennsylvania law, but he completed a diversion program and the charges were dismissed.  In January 2005, he was again arrested and convicted for DUI at the highest rate of alcohol and it was a misdemeanor in the first degree.  He completed his sentence in March 2006.  In September 2016, Holloway tried to purchase a firearm and his application was denied following an instant background check.  Upon appeal, Pennsylvania State Police stated that pursuant to 18 U.S.C. §922(g), the DUI conviction prohibited him from buying a firearm.  Holloway filed suit challenging the Code under the Second Amendment of the United States Constitution.

Florida Statute 316.2953 provides the law on window tinting and what is legal in the State of Florida.  It states that “a person shall not operate any motor vehicle on any road on which vehicle the side wings and side windows on either side forward of or adjacent to the operator’s seat are composed of, covered by, or treated with any sunscreening material or other product or covering which has the effect of making the window nontransparent or which would alter the window’s color, increase its reflectivity, or reduce its light transmittance.”  The statute provides that “a sunscreening material is authorized for such windows if, when applied to and tested on the glass of such windows on the specific motor vehicle, the material has a total solar reflectance of visible light of not more than 25 percent as measured on the nonfilm side and a light transmittance of at least 28 percent in the visible light range.”  What happens if a police officer sees your window tint and pulls you over, resulting in DUI arrest?

window tint duiIn State v. Coley, 157 So.3d 542 (Fla. 4thDCA 2015), Gary Coley was stopped by police for an illegal window tint.  He was charged with possession of cocaine and cannabis and he moved to suppress any and all contraband seized, and statements made, arguing that there was not probable cause for the stop.  The police officer testified that he had issued many citations for illegal tints of side windows during the hearing.  He stated that in his experience, the tint is illegal where the driver of the vehicle cannot be seen.  The officer correctly stated that per statutory regulation, a tint measurement of less than 28 % is illegal.  The officer indicated that he stopped Coley because he could not see the driver of the vehicle through the tint of its side windows, thereby giving him probable cause to conduct the traffic stop.  The defense argued that the traffic stop was illegal due to the officer’s mistake of law because the law does not state that if a driver cannot be seen through it, then the tint is illegal.  The trial court granted the motion to suppress.

The Fourth District Court of Appeals held that a traffic stop is permissible under the Fourth Amendment where an officer has probable cause to believe that a traffic infraction occurred.  The court provided: “As we have previously recognized, the probable cause standarddoes not demand any showing that such belief be correct or more likely true than false. A ‘practical, nontechnical’ probability … is all that is required…. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.  State v. Neumann, 567 So.2d 950, 952 (Fla. 4th DCA 1990) (citations omitted) (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)).”

The majority of criminal cases in Florida get resolved by plea agreements.  In the Florida Rules of Criminal Procedure, Rule 3.171 governs plea agreements.  The prosecutor has broad discretion in plea agreements.  The prosecutor may engage in discussions with the defendant’s attorney or, if the defendant is unrepresented, with the defendant himself as long as a record is made of the discussions.

question criminal issueThe prosecutor may ask the defendant to enter a plea of guilty or no contest (nolo contendere) to a charged crime or to a lesser or related offense in exchange for the prosecutor agreeing to any of the following:

1)  abandon other charges;

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