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Florida DUI – Is the Breath Test Accurate

DUI

Florida law enforcement agencies use a breath testing device called the Intoxilyzer 8000 to measure an arrested person’s blood alcohol concentration and secure evidence to convict citizens of DUI. Does this small machine accurately measure how drunk you are? Why is it supposed to be more accurate than the machine previously used, the Intoxilyzer 5000? Was that machine accurate if it was replaced?

The science behind breath testing offers insight into the shortcomings of the breath testing machine.  Issues such as the following:

Did my partition ratio differ from the 2100:1 standard used in the Intoxilyzer 8000’s software?

Was there another chemical in my breath which the machine misread as alcohol? (the Intoxilyzer does not measure the ethyl alcohol but molecules in the methyl group)

Was my body temperature elevated? (a 1% elevation could cause a 8% increase in the breath result).

The following video clip is interesting. Defense attorneys, Dalli & Marino,  have known of this defect in the Intoxilyzer machine for years (positive alcohol reading after eating bread), and manufacturers of the device certainly have a scientific reply for why this result doesn’t prove that the machine is inaccurate.  However, the fact that bread is causing the instrument to show an alcohol reading makes you wonder how accurately the software inside this machine is reading alcohol results that lead to convictions.

St. Petersburg Florida, mayoral candidate has clean driving record

DUI

In an article yesterday from the St. Petersburg Times, it seems that St. Petersburg mayoral candidate Deveron Gibbon’s does have a clean driving record. The paper printed it wrong in an article from Sunday’s paper.

I personally have my own issues with the Times and their lack of fact checking as well as their one sided approach to journalism. But the July 8, 2009 article brings up a good point: Driving records received from either the Clerk of Court, or the Florida Department of Highway Safety and Motor Vehicles are often incorrect or misleading. Which causes problems for people when they apply for jobs, get background checks, or ultimately have their licenses suspended based on incorrect information. Click here for correct information.

What should you do about it? Check your driver’s license regularly at the DHSMV website and if you think the information is wrong. We can’t guarantee we can fix it, but our motto is: “the fix it firm.”

DUI and Administrative Review Hearings – Florida DMV

DUI

When someone gets a DUI, after they get over the initial shock of being arrested and going to jail, the next real problem is their driver’s license. The ticket you get when you get arrested for DUI is only good for 10 days of driving. (They take your driver’s license when you get arrested, at least they’re supposed to.)

In order to keep your driver’s license, at least for the next 30 or so days, you must file for a formal or informal review with the Bureau of Administrative Review. Any good attorney will do this automatically if you hire them within the first few days after you are arrested.

Note that the administrative hearing, and the loss of your DL through DMV is entirely separate from the criminal process of a DUI. You can beat the DUI in criminal court, but still lose your DL through DMV. But if you win the administrative hearing, it’s often easier to get the criminal part of the DUI reduced. What this accomplishes is you keep your DL and your insurance doesn’t skyrocket like it would with a DUI conviction. Keep in mind that DUI’s are not seal-able or expunge-able so the arrest and conviction will always be on your record.

Daniel Pawuk, has a ton of experience with administrative hearings, and has recently been incredibly successful in winning them. Last week he won one on a very narrow area of the law which many experienced lawyers may have missed.

DUI on a Bicycle – Seriously?

DUI

An often joked about fact of DUI law is that you can get a DUI on a bicycle. Although it doesn’t happen very often it can. How one gets stopped on a bicycle, is beyond me. A common way for the police to harass people is to stop them for not having a light on their bicycle at night. Perhaps then the cop smells alcohol, it’s a slow night for him, and he arrests the person for DUI. DUI arrests take a police officer about 3- 4 hours. They have to give field sobriety test, ask a slew of questions, take the person to a breath test facility, wait 20 minutes, then give two tests – after all of that, there’s paperwork, then transport to the jail and then they have to book them into the jail. Seems like alot of work for a drunk on a bike. Sometimes it causes accident, contact a Cypress truck accident attorney if such thing happen.

What are the criminal sanctions for a Bicycle DUI?  Believe it or not – the same as for a DUI in a car.  Pursuant to the Florida Statutes, a judge MUST revoke a persons driving privilege for six months, when they are found guilty of DUI in ANY VEHICLE. Florida law defines a bicycle as a vehicle.

I suppose this applies to riding a tractor, go cart, scooter, etc. It’s got to be really slow out there for the police.

If you are arrested for any type of DUI, call us. An experienced attorney  is often less expensive than the fines and costs and loss of driver’s license that come with a DUI conviction.

Pasco County, FL: Refuse to Prosecute

Criminal Defense

A fact the average citizen doesn’t know is that ALOT of crime victims do not want to prosecute. This includes all kinds of crimes, not just domestic violence.

A little known fact of most crime victims, is that the State Attorney can prosecute whether or not the victim wants to prosecute. Although the State Attorney considers the victim’s wishes, the State Attorney ultimately makes the final call on what gets prosecuted or not. And if they have enough other evidence without the victim’s statement, they WILL prosecute.

There is an after hours club on US 19 in New Port Richey called Club Inferno where a man was shot last weekend at 4AM. (See Tampa Bay Times article of October 31, 2012) Not surprising to me, the man does not wish to prosecute and is not cooperating with the investigation. Why not? There could be any number of reasons, and not knowing him, I don’t know his exact reasons – however – here are a few of the most common reasons  why victims don’t want to prosecute:

  1. Never, ever, ever talk to the police – they can’t be trusted.
  2. Never snitch – It’s a code of life for many people which seems to have been forgotten once they get into the Pasco County Jail.
  3. Karma: What comes around goes around. Whoever shot him is bound to end up the victim of a shooting, or worse, later in life.

So what happens to the guy who shot him if the victim refuses to prosecute? Someone else who was there and saw what happened will tell – not because it’s the right thing to do, but because they need a way out of their own crimes. Police cooperation, like becoming an informant, is the easiest way out of a crime. For assisting the police, they will get a lighter sentence. And the Pasco County Sheriff’s Office will find the shooter, arrest him and then waste everyone’s time and tax dollars trying to prosecute him. All this when the victim doesn’t care and anyone in a club like that at 4 AM doesn’t either. Also if you need any advocacy about tax, is here to help.

Getting Florida Criminal Charges Dropped: No Information, Nol Pros and Dismissal

General

Because I couldn’t fit anything else in the file cabinets, I decided to get rid of all of the closed and old files. As I was shredding the files, I realized how many of our clients get their charges dropped, either before they ever go to court, or after formal charges have been filed. When I look back over the past 8 years, I remember the really difficult case and clients. But the majority of our clients, whose names and cases I had forgotten, get their charges dropped. Most of our clients come from referrals, we don’t do any marketing other than this blog and our website. So I would guess, one of the reasons we’re able to limit our advertising is because people get such good results when they hire us, and they tell two friends and they tell two friends, and they tell two friends.

What’s the difference between these terms in a criminal case?

No Information – means formal charges were never filed – the person may have been arrested but the State Attorney decided not to file formal charges.

Nol Pros – or more correctly Nolle Prosequi – means there were formal charges filed, but the State Attorney has decided to drop those charges.

In both a No Info and a Nol Pros, you are probably eligible for expunging the record if this is your first offense.

A dismissal occurs when formal charges have been filed, but you have entered into a modified probation – usually pre-trial intervention, and once completed, the charges are dismissed. If the charges are dismissed, you may be eligible for expunging, but are most likely eligible for sealing.

How do you get your charge dropped or dismissed? although we won’t guarantee it, it happens to a lot of my clients!

Early Termination of Probation Tampa Florida

Criminal Defense

Let’s face it, Felony Probation is tough. From the stories I hear, I’m not sure even I could make it. Sex offender probation is even tougher. No contact with children, curfew, limitations on driving, places you can be, computer use, and random checks by probation officers.

Therefore, if you have made it halfway through  you probation, you might be eligible for early termination. Unless, as part of your plea, the State Attorney, judge, and you, agreed to no early termination.

In the infamous case of Debra LaFave, the Tampa school teacher who admitted to having sex with a 14 year old boy, the agreement was no early termination. But a recently retired Tampa Circuit Court Judge, ignored the agreement and let her off probation early. The State appealed his decision and the 2nd DCA agreed. The DCA said the judge’s ruling was an abuse of discretion by the trial judge and overturned his ruling – thus reinstating her probation. Not surprisingly, her attorney has asked for a rehearing, which effectively stays the DCA ruling until the rehearing. So as of today, she’s not on probation but could be again if the DCA continues to rule against her.

If you think you’re eligible for early termination of probation- call us. RGSG Law will give you our honest opinion as to your chances – for free.

Florida Sealing/Expunging Criminal Records

Criminal Defense

If I had a dollar for every call I’ve gotten over the years for people who want to cover their criminal tracks, I’d be rich. Unfortunately, it’s not as easy as it seems to seal or expunge your Florida criminal records. First of all, there’s a difference between sealing and expunging.

Sealing merely means that the record becomes confidential and cannot be disclosed to the public. It’s still physically there as are the fingerprints.

Expunging means that the file is physically obliterated and destroyed and can not be disclosed to the public.

In either case, if you apply for admission to the Florida Bar, Department of Children and Families, for a firearm permit, or certain other professions, even if your record has been sealed or expunged, you still must admit to it.

However, in most professions, you do not have to answer the question which asks about your prior criminal record with a yes. Which is what most people want and the reason they hire lawyers to have their records expunged or sealed.

Additionally, if you are ever again prosecuted for a crime, and someone asks you about your prior criminal history you must admit to it.

Your Right to Remain Silent

General

In our practice hear from clients all the time that the police did not read them their rights, meaning Miranda rights, when they are arrested. Contrary to every television show and most people’s belief – the police don’t have to read you your rights in all arrests. The police only read you your rights when:

You are in custody – that means physically not free to leave, handcuffed, in an interrogation room, in the back of a police cruiser, etc.

AND – AND – AND – AND (not to be confused with OR)

  1. They ask you questions.

Therefore, if you are merely being arrested and no one asks you anything – Miranda rights do not apply. OR If you are not in custody and you volunteer information, or they ask you questions; Miranda rights do not apply.

So in sum – there must be two events present – CUSTODY and INTERROGATION.

So what happens if you remain silent through any police questioning whatever the circumstances – GOOD FOR YOU. That’s what you should do, according to Newport Beach personal injury lawyer.

If you are stopped by the police on the street, at your house, in your car – you must give the police your name and identification if you have it – BUT THAT’S IT. You are not required to do anything else.

In a recent first degree murder case out of Palm Beach County, Florida; a woman was on trial for shooting her husband. When the police arrived at the house, she was sitting in her son’s car and made no response to the officer’s questions of whether she needed anything or would like a bottle of water.  She was not yet under arrest (or in CUSTODY) nor were those questions likely to be confused with an interrogation. During her trial, she choose not to testify – yet the prosecutor said on several occasions, including closing argument, that because she said nothing, this concluded she was guilty since an innocent person would have protested their innocence. Ultimately she was convicted of murder and sentenced to life and currently resides in the Lowell Correctional Facility.

She appealed her conviction, arguing that the prosecutor could not comment on her PRE ARREST silence, since she never testified at trial. If she had, and had said something contrary to her pre or even post arrest statements, this could be used against her to “impeach” her trial testimony. But she didn’t testify and therefore any comment on her silence could not be used against her. (Some courts including the US Supreme Court have distinguished this from POST arrest testimony and the prosecutors ability to comment which is a blog for another day – )

The Fourth DCA overturned her conviction and said that the prosecutors comments on Mrs. Horwitz’s silence were improper and have remanded the case for a new trial. Note that just because there is error in a trial the appeallate courts do not have to grant a new trial – only when the error is “harmful” meaning that the error was so severe that it potentially caused the jurors to be swayed by the error.  In some cases, not this one, but some, the evidence is SO OVERWHELMING that regardless of the error, the courts do not grant a new trial. But in Mrs. Horwitz’s case, she’s getting a new trial – if she’s convicted again of murder, she’ll probably get the same sentence – Life. She has nothing to lose, so she might as well go for it again. Good luck Mrs. Horwitz!

Visitation during the Holidays

General

AVOID HOLIDAY STRESSES: PRE-PLANNING VISITATION SCHEDULES

If you are currently involved in, or are one of the recently divorced with minor children, the prospect of negotiating visitation during the holidays probably seems like a frightening task. While you may have a Court Order or a Temporary Order outlining just what visitation will be during the festive season, it is not uncommon for you to feel some anxiety about potential problems that could arise, especially if your ex-spouse is a jerk. Below are some tips you can try to help alleviate some of the pressure not only during the holidays, but throughout the year to help make visitation worry-free:

  1. Try to be nice:

It’s an old adage that has special meaning during the holidays. For the sake of the kids, try not to get excited if your ex brings the kids home a few minutes late. If you know your ex is the one who is unreasonable and often misinterprets what he or she is entitled to based on the visitation order, gently remind them. If that doesn’t work, use guilt–“Y’know, it’s the holidays, can’t we just try to work this out for the kid’s sake?” Remember that despite your current feelings, there was a time where you (hopefully) cared for this other person. Remind yourself (and them, if necessary) of those better times, and try to push ahead.

  1. Notify, notify, notify

: if the ex is the forgetful type, be sure to give them a head’s up by phoning them about visitation. If talking one-on-one with your ex is uncomfortable or not advisable based on past relationship dynamics, use e-mail. E-mail is good because you don’t have to listen to them and you have a record of trying to contact in case holiday visitation becomes a legal matter. On a more practical level, if you anticipate trouble, giving your ex advance notice or a gentle reminder about holiday visitation can avoid trouble before the actual day arrives.

  1. Never alert your kids, especially small ones, if there is a problem

: This can be a bit more difficult with older kids, as they likely have enough sophistication, even if neither of you say anything, to realize that there are problems. No matter what, don’t shout, curse, or scream at your ex in front of your kids, and avoid bad-mouthing your ex to, or in front of, the children. Not only does this put the child in the unfortunate position of having to choose one parent over the other, it is quite selfish because it places your anger and frustration above the child’s welfare. Also, if you continually dis your ex in the child’s presence, your ex will likely have a strong case of parental alienation against you.

  1. Plan ahead:

Similar to notification, it is a good idea to make the other parent aware of where you and your child will be going during the holiday break. Be sure not to go outside the parameters of what the initial parenting plan and visitation schedule allow–if you cannot take the child out of state, don’t do it. Be aware that if you do go outside what the visitation schedule allows, you could be setting yourself up for some serious trouble–your ex could file a parental abduction charge against you, and the criminal and civil ramifications of that can be quite harsh and expensive for you.

These are just a few ideas to help ease the stress of coordinating visitation with a minor child.