DUI / BUI - Drunk Driving Category Archives — Page 2 of 11 — Jacksonville Criminal Defense Lawyer Blog Published by Jacksonville, Florida Criminal Defense Attorneys

January 18, 2018

Can Law Enforcement Obtain a Blood Sample Without Your Consent in a DUI Case?

In certain circumstances, the answer may be yes. In Aguilar v. State, 43 Fla.L.Weekly D179a (3^rd DCA 2018), Juan Aguilar appeals a conviction for DUI crimes DUI Manslaughter, DUI with person or property damage, and DUI causing serious bodily injury, along with two counts of DUI, the lesser included offense. These charges arose out of a three car accident that occurred at around 3:00 a.m. one evening. Aguilar lost control of his car and struck one person who died, two who suffered serious bodily injuries, and one who suffered minor injuries. A state trooper observed Aguilar was “somewhat unresponsive, incoherent” and had “blood shot watery eyes,” “slurred speech,” and “had odor of alcohol” coming from his person and car.

The state trooper indicated that because there were “significant indicators” that Aguilar was displaying an “alcohol related impairment,” he came to the trauma center where Aguilar was taken to get a “blood draw.” He indicated that he made no effort to get a warrant to obtain the blood because of “time restraints.” He indicated that he again smelled an odor of alcohol and noticed his face was “flushed” and his eyes were “bloodshot and watery.” The blood sample taken, without consent or a warrant, showed a blood alcohol level of 0.112. Aguilar filed a motion to suppress the blood test results due to a lack of probable cause and lack of warrant. The State introduced evidence that it would have taken at least four hours to obtain a warrant and that “because of the natural metabolization of alcohol in the bloodstream, there were time constraints creating exigent circumstances to justify an exception to the warrant requirement.” The trial court denied the motion to suppress.

The U.S. Supreme Court has addressed the exigency exception to blood testing in DUI cases several times. It held that an exception to the Fourth Amendment for searches conducted outside the approval of a judge applies when “the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” The U.S. Supreme Court has held that natural dissipation of alcohol in the bloodstream was not a per se exigency, but one factor to consider in the totality of the circumstances test.

December 21, 2017

Can You Refuse a Test Given by Law Enforcement When Stopped for DUI in Florida?

by David M. Goldman

If you are ever stopped for DUI, you may not trust the breath test and want to refuse to take the test or you may even want to ask for a separate blood test or breath test by a lab of your choosing. In Florida, your license can be suspended for refusal to submit to a breath, blood, or urine test. You can ask for a review of your license suspension, but a hearing officer will be looking at certain factors under the statute at the review hearing. Florida courts have determined that a law enforcement officer may select the initial test; and refusal will result in license suspension.

In the case of Dept. of Highway Safety and Motor Vehicles v. Green, 702 So.2d 584 (2^nd DCA 1997), Mr. Green declined to take a breath test after being stopped for DUI. He was observed to be weaving his vehicle and to have bloodshot eyes, alcohol on his breath, and to be unsteady on his feet. He failed a standard set of roadside sobriety tests. He was arrested and taken to the breath testing unit. The officer provided the “implied consent” warning indicating a refusal to take the breath test would result in a suspension of his driving privileges. Mr. Green refused. He, instead, offered to take a blood test and requested assistance from the arresting officer by bringing him a telephone book or a telephone to contact a laboratory.

Mr. Green argued that he had the right to select the test of his choice and the officer was obligated to assist him in obtaining that test. The Court held that the officer has the right to select the initial test, and it can be “an approved chemical test or physical test.” Only after a driver has complied with the initial law enforcement selected test does an officer have to assist a driver in obtaining a blood test or secondary test.

July 11, 2016

Florida Reckless Driving

by David M. Goldman

In most situations, bad driving gets you a traffic ticket. However, for some driving offenses, traffic tickets are not enough as far as the law is concerned. You can be arrested for being a bad driver. Recently, a woman was arrested in Virginia after being caught driving over 90 mph on three separate occasions within an hour. The third time she was stopped, Kai Kitchen was arrested for reckless driving.

Florida has its own version of reckless driving. Florida Statute 316.192 states, “Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.” Reckless driving is a criminal offense that can lead to jail, even prison in some cases, depending on whether it’s the first conviction or whether there are injuries or property damage. Reckless driving is deemed more serious than simple careless driving. Careless driving leads to a civil citation and is defined in Florida Statute 316.1925, which states, “Any person operating a vehicle upon the streets or highways within the state shall drive the [vehicle] in a careful and prudent manner, having regard for the width, grade, curves, corners, traffic, and all other attendant circumstances, so as not to endanger the life, limb, or property of any person.”

Reckless driving can be punished more severely, because it looks at situations where the driver is actively doing something that can be dangerous, while careless driving is more like being absent minded while driving. Causing property damage, an injury, or even a death while driving carelessly isn’t a criminal offense, but doing either while driving recklessly can result in a stiff punishment.

June 30, 2015

Temporary Driving Permit After DUI in Florida

by David M. Goldman

How to Receive a Temporary Driving Permit after a DUI in Florida.

In Florida, a person arrested for a DUI must face two separate cases: an administrative case and a criminal court case. While most people are familiar with the criminal consequences a DUI brings, there is also an important administrative process dealing with the person’s driver license.

When someone is arrested on suspicion of DUI, the arresting officer will normally take the driver’s license, which results in an immediate suspension of driving privileges. If the driver takes a breath test, and fails, the driver’s license will be suspended for 6 months. If you refuse a chemical test (such as a blood, breath or urine test) for the first time, the driver’s license will be suspended for one year. If the driver has previously refused a chemical test the suspension lasts 18 months.

May 23, 2015

Lawyer DUI setup

by David M. Goldman

Lawyer DUI setup: The Florida Bar alleges Three Florida Attorneys set up opposing counsel with a DUI. The Florida Bar has finished up its case today in an ethics trial against three Florida attorneys accused of using a Tampa police officer and an office paralegal to set up a rival attorney with a DUI in an attempt to derail the case. The alleged setup stems from a defamation trial two years ago that pitted two morning radio shock jocks against each other. So far this case has engrossed the local legal community with the accusations of dirty scheming and flirtation to win the case.

The Florida Bar supports the version of events as told by attorney Phil Campbell. Campbell was charged with a DUI two years ago. He alleges that attorneys Adam Filthaut, Robert Adams, and Stephen Diaco orchestrated his DUI charge by using an office paralegal and a local police officer to derail the trial.

The alleged event occurred in January 2013, when the three attorneys represented the well known radio host Bubba The Love Sponge Clem in a defamation lawsuit brought by a rival radio personality, Todd Schnitt. Schnitt claimed Bubba made derogatory remarks about him and his wife on his radio show and induced his fans to harass him.

September 8, 2014

Facebook Posts Lead to Criminal Charges

by David M. Goldman

A criminal defense attorney’s worst enemy is a confession, whether in writing or one that is video taped. As a Jacksonville criminal defense lawyer, I’ve had my share of clients confess to crimes, even after they had been warned and told that they have the right to remain silent. At least these confessions came while they were being interrogated by trained detectives. I am completely baffled by the number of people that use social media to “confess” to criminal offenses by posting statements, and the ultimate confession… posting videos of themselves committing the crimes.

A teenager in Oregon was arrested after he made a Facebook post concerning a crash that occurred while the teen was driving under the influence, according to abcnews.go.com. The teenager posted, “Drivin drunk… classsic 😉 but to whoever’s vehicle i hit i am sorry. :P”. After the messages were sent to the local police station, the teen was arrested for hitting two parked cars, but not for DUI.

Nydailynews.com reported that Facebook also led to a North Carolina mother’s arrest after a video was posted on her son’s Facebook page. The video showed the teen’s mother helping him attempt the “fire challenge“. The forty-one year old mother was arrested for Contributing to the Delinquency of a Minor after her son had to be treated for the burns he received while attempting the challenge.
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November 4, 2013

How finishing that one drink can result in DUI

by David M. Goldman

Driving Under the Influence or (DUI) is a crime that knows no bounds and affects everyone from ordinary citizens, politicians, celebrities and athletes alike. Almost all of us know or have known someone who has driven under the influence of alcohol at some point in his or her life. Driving under the Influence is a type of crime that does not discriminate on who you are in order for you to be arrested or commit the offense. As a matter of fact, we often hear of famous people committing these crimes, nationally the list of celebrities charged with the offense is substantial. Celebrities such as Paris Hilton, Charles Barkley, Heather Locklear, FloRida, Kiefer Sutherland, and the list goes on.

So what does Driving Under the Influence (DUI) mean? In Florida if you have a blood-alcohol level of .08 percent or more and operate a motor vehicle, you are considered to be driving under the influence of alcohol and you will be arrested. So what does .08 mean and how much do I have to drink to reach .08?

That is where the problem lies. Your blood alcohol level is affected by many factors besides the amount of alcohol you consume. Factors such as your gender, how much you weigh, whether or not you take prescription drugs, how long it takes you to consume the alcohol and whether you drink on an empty stomach or have eaten a full meal, all contribute to your body’s blood alcohol level. The only way to be truly safe is not to consume alcohol at all, which can be difficult given our culture of happy hours and bars.
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September 17, 2012

Hollywood Actress, Amanda Bynes, Faces Criminal Charges following another alleged Hit and Run

by David M. Goldman

Children and Adults, alike, look up to and aspire to famous Actors and Actresses. But, when their good name is pulled through the mud, we all begin to question how innocent are these movie stars anyway. One recent example is Amanda Bynes who made her fame and fortune on the Nickelodeon channel programming. She just recently had her driver’s license revoked by the State of California following three (3) alleged driving related incidents.

Her first incident stemmed from a collision with a police cruiser in April of this year. She was subsequently charged with DUI, but has rebutted all allegations that she was “under the influence.” Bynes went as far as to tweet President Obama, “..I don’t drink…” Her other two incidents are cases of hit-and-runs but she also denies any wrongdoing.

Although a California case, her same issues are relevant here in Jacksonville as well. As a Jacksonville Criminal Attorney, clients come to me with all sort of driving issues and I work diligently to correct any wrongs and get the best possible outcome, given the circumstances. In Florida, if you incur too many points or three or more citations for driving on a suspended or revoked license within 5 years you could be labeled HTO. As a HTO your license is suspended for 4 years! However, as a Jacksonville Criminal Attorney I can review your driving history and determine where I can provide assistance and fight to get your license reinstated.

September 14, 2012

I received notice that I am a Habitual Traffic Offender (HTO). What does that mean?

by David M. Goldman

Do you have a not so perfect driving record? Have you been cited or arrested for driving without a license or when your license is revoked? Have you accrued too many points on your license for it to be valid? Have you received notice that you are labeled as a Habitual Traffic Offender and therefore will have your license revoked for four (4) years? If you answered “yes” to any of the prior questions, the assistance and guidance of a Jacksonville Criminal Attorney may be right for you. I can review you driving record, determine how to proceed forward, and fight to get your license back!

There are a few different events that can lead to HTO status, all of which must occur within a five-year period. The most common is to have three offenses of driving while license is suspended or revoked. It is important to remember that this includes convictions as well as cases where withheld adjudication. Some people make the mistake of believing that because adjudication was withheld and no conviction occurred that these cases are not counted when it comes to determining whether someone is should is a HTO. The HTO sentencing guidelines do examine how many points your license has, they count your convictions and withholds instead. Further, no distinction is made as to whether or not you “knowingly” drove while your license was suspended or not.

HTO status lasts for five years and requires the Department of Highway Safety and Motor Vehicles (DMV) to revoke your license, but there are things that may be done to get you back on the road. After sufficient time and class work, a hardship license may be issued to allow you some right to drive, but with restrictions. After the five year revocation is over, you must petition the DMV to have your license reinstated. A hearing may be required to determine whether or not your reinstatement can be granted or if you should have an alternative, restricted license.

August 20, 2012

What happens in a Florida criminal deposition?

by David M. Goldman

In Florida, anyone accused of committing a felony is permitted to take depositions of the prosecution’s witnesses. On misdemeanor charges the judge has to decide if there is a good reason to allow depositions before they will go forward. The judge can even allow depositions of people not listed as witnesses if it is proven that they have something relevant to say about the charges or the defense.

Depositions are part of the discovery process, which is the process by which the parties in criminal cases gather facts about the case from each other. The deposition itself is like a question and answer session that is being recorded by a court reporter. The defense lawyer can ask pretty much any question that could get to information that would help the defense theory or help impeach the witness and this is a pretty big umbrella.

Depositions are very useful for many reasons; to get the witness’s story on the record so they can’t change it later, to find out more information about the witness, to find holes in the prosecutions case and to let everyone know you are serious about defending the case.