Monday, March 28, 2011
Friday, March 25, 2011
A DUI stop for driving on the shoulder might not be legal in Florida. Daytona Beach DUI Attorney Seminole County DUI Attorney Kevin J. Pitts
Monday, March 21, 2011
If you are stopped for forgetting to turn on your headlights you might be able to suppress the stop. Each stop is fact specific so it is possible that some stops based on headlights might be valid while others could be suppressed. An old case from 1992 indicates that interfering with traffic or pedestrians might be a prerequisite to a valid headlight stop. In the case I am referring to the court decided that no evidence was presented to indicate the presence of other traffic on the roadway or the existence of endangerment to pedestrians or property resulting from the defendant's brief travels without her headlights on. She pulled onto a highway in front of a business and travelled just more than ½ a short city block, apparently without interfering with any other vehicular or pedestrian traffic, and turned on her headlights as she began to turn onto another street. Considering the nature of the deputy's inquiry of the driver and the circumstances and length of the detention and his acknowledgment that the point of origin of the vehicle was in an area known for high-drug activity, it is evident the State failed to demonstrate that the deputy was acting as a reasonable officer in stopping the defendant's vehicle, absent an invalid purpose, and, therefore, that this stop was not pretextual. State v. Lagree, 595 So. 2d 1029 (Fla. Dist. Ct. App. 1992). If you are stopped for not having your headlights on contact Daytona Beach DUI attorney Kevin J. Pitts.
In the case referred to the defendant turned her headlights on. That is relevant because it would alleviate any concern the officer would have about invalid equipment. Once the officer observed the headlights on he could not justify the stop based on invalid equipment or acting as a good Samaritan. The case is old but has not received any negative treatment from other courts. The court later stated that they agree with the trial court's conclusion that pulling out of a parking lot and driving one-half of a small city block before putting headlights on is not such a circumstance that it can be assumed, without proof, that a reasonable officer would make the stop, when there was no proof that the area was not well-lit, and no proof that the brief period of driving without lights on caused any danger. State v. Lagree, 595 So. 2d 1029 (Fla. Dist. Ct. App. 1992). It appears that the ruling might have come out differently if the defendant wouldn’t have turned her lights on. Case law and facts determine the validity of a DUI stop. If you are stopped for a DUI in Volusia County contact Daytona Beach DUI lawyer Kevin J. Pitts. Mr. Pitts is also a Seminole County DUI lawyer with an office in Sanford.
Sunday, March 6, 2011
The Florida Implied Consent can vary but it should be very similar to this. "If you fail to submit to the test I have requested of you, your privilege to operate a motor vehicle will be suspended for a period of one (1) year for a first refusal, or eighteen (18) months if your privilege has been previously suspended as a result of a refusal to submit to a lawful test of your breath, urine, or blood. Additionally, if you refuse to submit to the test I have requested of you and if your driving privilege has been previously suspended for a prior refusal to submit to a lawful test of your breath, urine, or blood, you will be committing a misdemeanor [per Florida Statute 319.1939]. Refusal to submit to the test I have requested is admissible into evidence in any criminal proceeding. If you still refuse to submit to this test, knowing that your driving privilege will be suspended for a period of at least one (1) year and that you may be charged criminally for any subsequent refusals?"
The purpose of implied consent is to insure that the accused is aware of the consequences of refusal. Consent is implied because it is a pre requisite to getting a Florida driver’s license. In a perfect world the officer will advise the accused which test they are requesting. You can bet if you take the breath test and blow .000 they will change their mind and ask for urine. The only other option would be for the officer to admit they made a mistake. Once they make the determination that you are impaired they will not release you even if your results for the breath test are below .08%. What typically happens is if you are below the legal limit they will request urine. It takes 60-90 days to get the urine results so the truth will likely come out months later.
The timing of implied consent is incident lawful arrest. For the refusal to be admissible the State must show that the arrest was lawful. Statute permitting a police officer to suspend a motorist's driver's license for refusal to submit to a lawful breath test did not allow suspension to be predicated on refusal to take a breath test following an unlawful arrest, even though statute was amended to omit mention of a motorist's arrest or its lawfulness; obligation to take the breath test arose from Implied Consent Law, which required a lawful arrest. Dep't of Highway Safety & Motor Vehicles v. Pelham, 979 So. 2d 304 (Fla. Dist. Ct. App. 2008) review denied, 984 So. 2d 519 (Fla. 2008).
Breath Blood or Urine. Currently the appellate courts are split on the issue of requesting blood, breath or/and urine. Some of the recent case law has come out in favor of the state but the law might vary depending on the jurisdiction you reside in. A Florida Driver's license could not be suspended under implied consent law after driver refused to submit to breath test to determine blood alcohol content, where law enforcement officer gave driver implied consent warnings that erroneously informed driver that her driving privileges would be suspended if she refused to submit to a breath, blood, or urine test, when statute only authorized a breath test. State, Dept. of Highway Safety & Motor Vehicles v. Clark, 974 So. 2d 416 (Fla. Dist. Ct. App. 2007). The position is acknowledged as dicta in a footnote by the 3rd DCA in Boesch but was not ruled upon. “As Boesch's counsel certainly seems to have known, the separate implied consent statute applicable to blood tests, subsection 316.1933(1), Florida Statutes (2006), did not warrant a blood test in this case. Although we have not ruled (and do not here) on this point, at least one district court of appeal has held that the erroneous inclusion of the blood test implied consent warning may invalidate the breath test warning, preventing suspension of the defendant's license.” State, Dept. of Highway Safety & Motor Vehicles v. Boesch, 979 So. 2d 1024, 1027 (Fla. Dist. Ct. App. 2008), reh'g denied (Apr. 18, 2008). Other appellate courts have taken a different opinion focusing on the and/or meaning. Request that drivers who were arrested on suspicion of driving under the influence of alcohol (DUI) submit to a test of their “breath, blood, or urine” did not mislead drivers into thinking that they were required to submit to the more invasive blood or urine tests and, thus, did not preclude suspension of drivers' licenses to drive, pursuant to the implied consent law, based on their refusal to take any of the tests, even though implied consent law required only that drivers submit to a breath test; use of word “or” suggested that drivers had a choice as to the test to which they wished to submit. Dep't of Highway Safety & Motor Vehicles v. Nader, 4 So. 3d 705 (Fla. Dist. Ct. App. 2009) review granted, 36 So. 3d 84 (Fla. 2009). Implied consent warning that asked motorist to submit to a “breath, urine, or blood” test was not improper, and thus motorist's refusal to submit to a breath alcohol test in a driving under the influence (DUI) investigation warranted suspension of her driver's license, even if the circumstances justified only a breath test. Stevenson v. Dep't of Highway Safety & Motor Vehicles, 17 So. 3d 1260 (Fla. Dist. Ct. App. 2009).
Incorrect Implied Consent. The officer is not required to strictly comply with the reading of implied consent. Evidence that a suspect refused investigative testing is relevant because it tends to prove a consciousness of guilt, provided that the suspect first was informed that adverse consequences would flow from his or her refusal. Menna v. State, 846 So.2d 502, 505 (Fla.2003). Here, because Appellant was advised of at least one adverse consequence that would result from her refusal, her decision to refuse was relevant and the trial court did not abuse its discretion in admitting the evidence. Grzelka v. State, 881 So. 2d 633, 634-35 (Fla. Dist. Ct. App. 2004). Menna stands for the proposition that evidence can't be used against you if the request is believed to be optional without negative consequences. The trial court concluded that Menna was not told of any adverse consequences associated with refusing to take the test. Moreover, according to the officer, she was asked to submit to the test in a manner that made it seem optional. Thus, there were viable alternative explanations as to why she refused to take the test, including her desire to seek “safe harbor” or choosing to take the safest possible path totally devoid of negative consequences. Menna v. State, 846 So. 2d 502, 508 (Fla. 2003). Menna deals with a gunshot residue test but the logic is relevant to a breath test refusal without knowledge of the consequences. If you are arrested for a DUI contact Daytona Beach DUI attorney Kevin J. Pitts.