Posts Tagged ‘DUI’

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New Year’s DUI Arrests Up 18% from Last Year

Wednesday, January 4th, 2012

According to public records research, there were 13 people arrested for DUI in Polk County, Florida over this New Year’s holiday.  This includes those arrested on December 31 (4 people) as well as January 1 (9 people).

This year’s arrests are up 18% from last New Year’s holiday where there were 11 DUI arrests in Polk County.

 

~At Matthews Law Firm, P.A., we handle DUI cases.~

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

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DUI AND THE EFFECT OF DENTURES ON BREATH TESTS

Thursday, May 5th, 2011

In Florida, when a person is arrested for DUI, they are often asked to perform a breath test.  Many people are familiar with common defense attacks on the breath test machine (currently, it is the Intoxilyzer 8000).  But have you ever heard of the “denture defense”?

Hypothetically, it goes something like this:  “Yes, I blew over the limit, but not because I was DUI.  I blew over the limit because I was wearing dentures.  I drank alcohol earlier in the day and there must have been some residual alcohol left over in my dentures.  That’s why I blew so high.”  There are several variations of the defense, but you get the overall argument.

Unfortunately, in Florida, wearing dentures during a breath test does not invalidate the breath test results…and yes, there is a case on point.

Schofield v. State, 867 So.2d 446 (Fla. 3d DCA 2004) held that the presence of dentures in a DUI defendant’s mouth during the breath test does not invalidate the results, so long as the test is conducted according to the governing statute and administrative rules.  The Court went on to hold that Florida law does not require the removal of denture devices nor does the law impose an obligation on the officer to even inquire about the use of dentures prior to or during administration of alcohol tests.

In the Schofield case, the Defendant’s first breath sample resulted in a reading that stated “Invalid Sample–Mouth Alcohol”.  The officer then asked the Defendant to rinse her mouth with water and obtained two additional breath samples which had readings of .114 and .111.  Defendant’s defense expert testified that the invalid mouth alcohol reading was due to the presence of alcohol and that the dentures probably caused the alcohol presence, and that the failure to remove the dentures before rinsing her mouth with water rendered the subsequent breath test results unreliable.  The State’s experts could not explain how the invalid reading resulted in this case but one said the latter two results were valid because they followed the proper procedures.  The Court held that any effect of the dentures on the breath test goes only to the weight, not the admissibility, of the test results.

This holding aligned itself with the prevailing view from numerous jurisdictions.

(Disclaimer: This blog does not constitute legal advice.  If you are charged with DUI, please consult a criminal defense attorney to discuss your situation.)

Matthews Law Firm, P.A., offices in Polk County, Florida.

CRIMINAL MISCHIEF AND RECLASSIFICATION

Thursday, April 28th, 2011

Under Florida law, there are certain crimes which become more serious based on how many prior convictions someone has for the same crime.  What looks like a misdemeanor may in fact become a felony charge.  Criminal mischief is one such charge.

Florida statute 806.13 defines criminal mischief as:

(1)(a) A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto.

The enhancement portion of the statute reads as follows:

(4) If the person has one or more previous convictions for violating this subsection, the offense under subparagraph 1. or subparagraph 2. for which the person is charged shall be reclassified as a felony of the third degree…

For the complete statute on criminal mischief, go here.

For example, if a person breaks a window of another, doing $75 damage, and it is their first criminal mischief charge, they will be charged with a second degree misdemeanor, punishable by up to 60 days in jail and/or $500 fine.

But if the same person had one prior criminal mischief conviction, they may be charged with a third degree felony, punishable by up to 5 years in prison and/or $5000 fine.

Criminal mischief  is not the only crime which can be reclassified.  Other crimes which can be reclassified include DUI, prostitution, petit theft, and battery.

The decision on whether or not to reclassify lies within the discretion of the State Attorney’s Office.  If you are charged with criminal mischief in Florida, make sure you hire a defense attorney who understands the reclassification scheme.

Update: No-Refusal DUI Warrants

Tuesday, April 26th, 2011

Recently, we blogged about no-refusal checkpoints in Florida, where officers obtain a warrant to forcibly do a blood draw on a driver suspected of DUI.

There is one such case currently on appeal in the 5th DCA in Daytona Beach, although the case doesn’t involve a checkpoint.

Here’s how the case got to the appellate court:   A driver was stopped by Melbourne police after they claim he failed to maintain a single lane back in 2009.  The driver was subjected to a forced blood test after a county judge signed a warrant.  At the trial court level, the defense filed a motion to suppress the blood evidence.  The trial judge agreed with the motion and suppressed the blood draw.  The state appealed.

Oral arguments were heard at the 5th DCA on April 19, 2011.  The DCA has not yet rendered a decision.

The name of the case is State v. Geiss.

For more info on the case, go here.

To track the status of the case at the 5th DCA, go here. The 5th DCA case number is 5D10-3292.

 

Criminal Blog Week Day 4: “No Refusal” DUI Roadblocks

Thursday, April 14th, 2011

“No Refusal” DUI Roadblocks

The Bill of Rights and the Florida Constitution are commonly quoted to guarantee each person freedom from unreasonable searches and seizures.  Over the years, American jurisprudence has focused much more on the word “unreasonable” rather than “freedom.”  Traditionally, the U.S. Supreme Court has decided what is “reasonable” by balancing government interests with personal liberty.  A close examination of that balancing process would require a significant (i.e., long and boring) analysis.  Here, it is sufficient to say that the importance of the government interest is balanced against the degree of intrusion upon the individual.

With regard to standard DUI roadblocks, the Florida Supreme Court held that they can be implemented without violating the U.S. or Florida constitutions.  Noting that stopping a car is “unquestionably” a seizure under the Constitution, the Court used the Balancing Test to compare the government’s interests against the individual driver’s constitutional rights.  The Court held that, “The state’s compelling interest in protecting the public from drunk drivers outweighs any minimal intrusion into their privacy which a proper roadblock might cause.”  State v. Jones, 483 So. 2d 433 (Fla. 1986).

The government’s typical public relations justification for DUI roadblocks is, “We must protect you.”  The government avoids talking about the “minimal intrusion” part of the equation.

The Matthews Law Firm, along with criminal defense attorneys in Bartow and throughout central Florida, are now confronted with a new challenge to personal freedom and liberty.  Building on the Supreme Court’s approval of DUI roadblocks, police forces in central Florida are joining other states in implementing “no refusal” DUI roadblocks.

The “refusal” typically refers to the driver “refusing” to help police convict him.  It apparently has confounded police forces when a person, in this case not stopped for any wrong-doing, chooses to stand on his rights to be free from unreasonable searches, be free from unreasonable seizures, be free from self incrimination, have advice of an attorney, or have Due Process in his interaction with the government.

In Florida, if a person arrested for DUI refuses to submit to a breath test, there are already penalties set out by law.  In Florida, the law also sets out when and how the government may obtain a blood sample in a DUI case.

The “no refusal” DUI roadblock initiative seeks to get around these laws.

At a “no refusal” roadblock, police seek to force a person to submit to a breath test by threatening to forcibly take blood upon refusal of a breath examination.  In case of a refusal, police have a judge standing by, ready and waiting to sign a pre-printed fill-in-the-blank search warrant to draw blood.

Many are alarmed at the idea of judges simply rubber-stamping police investigations based on no individual suspicion, much less probable cause.  After all, police “hunches” have long been rejected as legitimate grounds for a warrant.  However, a much more sinister danger posed by this doctrine is the idea that demanding one’s constitutional liberty is, all by itself, probable cause to pierce those very rights.

Piercing a person’s body is not a “minimal intrusion” or a “minor inconvenience.”  Coercing a person to forfeit their rights is unconstitutional, whether done at the point of a needle or the barrel of a gun.  The coercion itself is the evil.  A police force unrestrained by law and exempt from constitutional limitations does not make anyone safer.

 

 

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