Ok. So you went out one night and had a few too many and you got arrested for DUI. You sat in jail over night and finally bonded out or got ROR’d the next morning. You may even have blown over the legal limit. You feel bad physically from the arrest and spending the night in jail. You may also feel bad physically from the “few too many” that you had the night before. Many times I have been asked by potential clients that have blown over the .08 limit here in Florida, whether it is worth it to retain an attorney? The answer is yes. I know. Of course I am going to say that. I represent people that get arrested for DUI. That is true. While I would like you to hire me, ultimately I believe that no matter how your case looks at the beginning, it is always a good idea to hire an attorney for DUI cases. They are arguably the most complicated criminal cases to prosecute, and that includes murder cases.

The Administrative Suspension: Time is of the Essence

When you are arrested for DUI in the state of Florida, it triggers two separate procedures: the criminal prosecution, and the administrative suspension of your driver’s license. Once you are arrested for DUI, the clock is ticking. You have 10 calendar days from the date of the arrest to file a request with the Florida Department of Highway Safety and Motor Vehicles (DHSMV) for a review of your case to challenge the suspension of your driver’s license. If you fail to timely file this request, you will waive a very valuable right. Even if you are not convicted of the criminal case, you will have your driver’s license suspended while the criminal case is pending. Florida law allows for you to have a formal hearing to contest the sufficiency of the procedures followed which ultimately led to your administrative suspension. Of course having the hearing does not guarantee that the suspension will be overturned. However, it does happen. So why would you waive this right?

What Can My Attorney Do To Defend My DUI Charge?

It is important to remember that no attorney can tell you exactly how they are going to defend your case during that first phone call or initial office consultation. So when you call the attorney and tell him that you got arrested for DUI and your breath test was a .20, our work won’t really begin until we start reviewing the discovery (police reports, witness statements, video’s, crash reports, etc.). Only then will we begin to determine what defense if any is appropriate. However, there are several ways that we as criminal defense attorneys can help you during a criminal case in general and a DUI specifically.

Motions to Suppress In addition to the administrative process, you will be facing a criminal charge of DUI. When I was a prosecutor in Clearwater, Florida, I spent some of my time prosecuting exclusively criminal traffic court cases. During that time I read DUI report after DUI report. I can tell you that many, many times I read cases where police officers made glaring errors during the DUI arrest. Because of the rights guaranteed by the 4th and 5th Amendments to the United States Constitution, it doesn’t matter how many drinks you had; or how high your breath test was; or how poorly you performed on the field sobriety tests. If law enforcement violated your right to an unreasonable search and seizure, or violated your Miranda Rights, your attorney can do something about it. I remember sitting in my office and thinking to myself that I hoped this guy or that guy didn’t hire a lawyer to contest the charges because I would see that the arrested person could file a motion to suppress certain facts. I’m sure that there are prosecutors in every jurisdiction reading police reports and thinking the same thing. When evaluating your case and determining if there is a motion to suppress in your case, your attorney will look to see if the is a Motion to Suppress with respect to some of the following issues:

The Stop Often times the initial traffic stop by law enforcement was conducted in violation of the 4th Amendment to the U.S. Constitution.Was there only minimal weaving over a short distance? Or was there some other minimal driving pattern that does not rise to the level ofreasonable suspicion required by law enforcement to make a traffic stop? If so, and the Court grants a Motion to Suppress then your case is over. If the initial stop is successfully suppressed, the State cannot go forward on the remaining facts of the DUI case.

Field Sobriety Tests (FST’S) Consumption of alcohol alone does notjustify a law enforcement officer’s request for FST’S. After a review of the evidence in your case it may be determined that after your routine traffic stop, the law enforcement officer only documented an odor of alcohol or blood shot watery eyes. Based on this, or some other fact, it may be possible to suppress the FST’s.

Violation of Miranda Warnings During the DUI investigation, did law enforcement fail to advise you that you have the right to an attorney during questioning? Or did they advise you improperly? Often times statements made by a criminal defendant are critical to the prosecutor’s case. If they are suppressed it could materially impact the State’s case.

Accident Report Privilege If a DUI investigation results after an automobile accident, Florida Law prohibits statements made to law enforcement officers during the initial crash investigation to be used in the subsequent criminal case. Frequently, critical statements are made during the crash investigation that can be suppressed in the criminal case.

Breath/Blood/Urine Tests Having a breath or blood alcohol level above a .08 does not mean that you are automatically going to be convicted of your DUI charge. Was the breath test instrument properly maintained, tested, and/or calibrated? Did law enforcement comply with proper procedures under the Implied Consent Law? Did law enforcement have the right to request or compel you did take a blood test? Was the blood test taken by a qualified person under the law? A positive urine test does not necessarily mean that the prosecutor can prove the case. Positive urine tests do not necessarily prove that you were under the influence of the drug or medication at the time of driving. This is an area of the law which often yields motions to suppress.

Refusal of Breath/Blood/Urine Tests During the DUI investigation did the law enforcement office fail follow the proper procedure or fail to provide the proper warnings required by the Implied Consent Law?

Reduction to a Reckless Driving Frequently, if the facts or evidenceof your case are such that a motion to suppress can be filed or prevails in court, or that the State’s case is weak, this can lead to the prosecutor concluding that reducing your charge to reckless driving is necessary or appropriate. There may be a myriad of other factors which may convince the prosecutor that a reduction to a reckless driving charge is warranted. A reckless driving conviction is ultimately better than a DUI conviction for a number of reasons including the fact that your driver’s license will not be suspended, and you will not have a DUI conviction which may enhance a future or past DUI conviction.

Trial In the state of Florida, you have the right to a jury trial to contest your DUI charge. If you are unable to resolve your case through the normal course of litigation and plea discussion, and you have carefully consulted with your attorney, a trial may be the best way to resolve your case. In Florida on a typical misdemeanor DUI case, the prosecutor must convince 6 jurors that you are guilty beyond a reasonable doubt. Again, depending on the facts of your case, this may be a tall order for the prosecutor.

CONCLUSION

You can never judge any criminal case and DUI cases in particular, just based on the arrest, video, and breath test alone. There are many other factors to consider. Going into court and pleading to a DUI without consulting with an attorney can be a big mistake. An experienced CLEARWATER DUI LAWYER can help you navigate through the complicated process and help you get the best disposition possible.

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Hard Line Approach 

As a practicing criminal defense attorney, I often receive calls from individuals who have either been arrested for domestic battery, or from the “victim” of domestic battery calling on behalf of the arrested person.  More often than not, if it is the “victim” they tell me that they didn’t want the police to actually make an arrest.  However, once that call is made to law enforcement regarding a DOMESTIC VIOLENCE incident, usually someone is going to jail.  Florida Law specifically states that domestic violence shall be treated as a criminal act rather than a private matter.  As a result, during a domestic violence incident, from the very first contact with law enforcement; there is a pro-prosecution mentality even if the alleged victim does not want to cooperate in the prosecution.  Obviously, the reasoning behind this position is the State’s public interest in “protecting” the victim of domestic violence.  In addition to the overall pro-prosecution mentality of law enforcement and the State Attorney’s Office, there are additional laws which effectively treat a “domestic violence” case differently than any other crime. 

Not Entitled to a Bond Until You Appear Before a Judge 

Once arrested, unlike most other crimes, you will not be able to post a bond and get out of jail until you appear before a judge.  So what that means is that if you are arrested for a domestic violence offense, you will sit in jail until you are your “first appearance” hearing.  Here in Pinellas County, for instance, if you are arrested for a felony charge, you will not even get in front of a judge until the afternoon.  Often times, as a condition of bond, you are not allowed to have contact with the alleged victim or their place of residence, even if the arrested person owns the residence. 

The State Attorney Makes the Decision Whether to Prosecute  

Truth be told, the State Attorney makes the decision whether to prosecute a case in every instance.  However, in a garden variety crime, such as theft or a simple battery, under most circumstances, if the victim doesn’t want the State to prosecute then usually that case is dropped.  That is usually NOT the case when it comes to prosecuting domestic violence cases.  If the alleged victim does not want the case prosecuted, or is actually refusing to cooperate with the prosecution, if the State Attorney believes there is sufficient evidence to proceed, they will do so.  

Serious Consequences and Penalties 

Cannot Seal or Expunge a Domestic Violence Case Resolved with a Guilty or No Contest Plea   

Like just about everything else involving domestic violence cases, entering a plea to any charge labeled as “domestic violence” carries potentially serious consequences down the road.  These consequences may not be readily apparent at the time of the plea.  For instance, I have seen as a former prosecutor and now as a defense attorney, people in jail at the “first appearance” hearing after they have spent a night in jail on a simple misdemeanor domestic battery arrest.  Perhaps it is their first arrest ever.  They are scared; perhaps hungry; have no money with them at that moment, and all they want to do is get out of jail.  It is at this point that the judge offers to withhold adjudication and put them on probation.  The person is told that they are not convicted.  The arrested person changes his plea to the charge and gets out of jail.  Well what just happened?  That arrest offense will NEVER come off of your record.  Under Florida Law, any disposition of a domestic violence case which involves a guilty or no contest plea, even if adjudication is withheld, CANNOT be sealed or expunged.  I have had numerous calls from people trying to seal or expunge a case where they were arrested for domestic violence and pled to it without consulting with an attorney only to learn later that this arrest will remain on their record forever.  This type of arrest or charge can seriously impact someone looking for employment or for those looking to advance in their current employment. 

Stringent Probation Requirements 

If you change your plea to an offense involving domestic violence, Florida Law requires that the offender successfully enter into and complete of family violence counseling which usually takes six months to complete.  Your sentence may also include provisions such as no contact with the victim, alcohol evaluation and treatment, psychological evaluation and treatment, and restitution. 

Jail or Prison 

Some instances, depending on the facts alleged or the prior record of the arrested person, may lead to increased jail time or enhanced penalties such as: 

  • If a person is convicted of Domestic Violence with Bodily Harm you are facing a minimum of 5 days in the county jail.

 

  • If convicted of Aggravated Domestic Battery, even without any prior criminal record, you are facing a mandatory state prison sentence under the State Criminal Punishment Code and possibly as much as 15 years in prison.

 

  • Florida Law states that if a person has a previous conviction for domestic battery, even if there was a withhold of adjudication, a subsequent conviction for an act of domestic battery can be charged as a felony with a maximum penalty of up to 5 years in prison.

  

Impact on Divorce and Custody Cases 

  

  • An arrest or conviction for domestic violence can be used to your detriment in a subsequent or pending divorce matter with the alleged victim especially if there are children in the home and they have witnessed the alleged acts of domestic violence. 

  

Impact on the Ownership, Use, or Possession of Firearms 

  • Florida Law requires the suspension of your concealed weapons permit if you are arrested for an act of domestic violence.

  

  • FEDERAL LAW prohibits a person convicted of an act of domestic violence from using, owning or possessing a firearm.

  

Conclusion 

Once the phone call is made to law enforcement for a domestic violence case, Florida Law is going to take over and these cases are not taken lightly.  If you are arrested for any act of domestic violence you should take it as seriously as the State of Florida does by calling a Clearwater Domestic Violence Attorney for help.  My initial consultion is always free.

In recent years the Florida legislature has increased the sanctions associated with Leaving the Scene of an Accident. In some instances, conduct that was once only a misdemeanor crime has now become a felony. In addition to possible incarceration, your diver’s license may also be suspended or revoked under the statute designating the crime of Leaving the Scene of an Accident or as a Habitual Traffic Offender.

• A driver of any vehicle involved in a crash resulting only in damage to a vehicle or other property damage who leaves the scene, if convicted faces up to $500 fine and/or 60 days in jail.

• A driver of any vehicle involved in a crash resulting in the injury of any person who leaves the scene, if convicted faces a felony punishable by up to 5 years in prison and a revocation of their driver’s license.

• A driver of any vehicle involved in a crash resulting in the death of any person who leaves the scene, if convicted faces a felony punishable by up to 30 years in prison and a revocation of their driver’s license.

However, a thorough investigation of the facts of your case by a CLEARWATER CRIMINAL TRAFFIC OFFENSES ATTORNEY may reveal defenses or deficiencies in the state’s case. The evidence may show that the state is unable to prove that you were the driver of the automobile. The evidence may show that the state cannot prove that you were aware that you caused damage to property or injury to a person. Were statements obtained during the crash investigation for which the Accident Report Privilege applies?

In recent years the Florida legislature has increased the sanctions associated with Fleeing and Eluding.  In some instances, conduct that was once only a misdemeanor crime has now become a felony.  Florida law now mandates that if you are found guilty by a jury or enter of plea of guilty or no contest to this charge, you will become a convicted felon regardless of your prior criminal record.  In addition, depending on the facts of the case, you may be facing a possible mandatory prison sentence and the revocation of your diver’s license for a period of 1 to 5 years.  If convicted of Fleeing and Eluding your driver’s license may also be suspended or revoked under the statute designating you as a Habitual Traffic Offender.

  • A person convicted of Fleeing and Eluding a law enforcement officer, faces a felony conviction, incarceration up to 5 years, and a revocation of their driver’s license from 1 to 5 years.

 

  • A person convicted of Fleeing and Eluding a law enforcement officer in a marked vehicle while driving at a high speed or in any manner which demonstrates a wanton disregard for the safety of persons or property faces a felony conviction, incarceration up to 15 years, and a revocation of their driver’s license from 1 to 5 years.

 

  • A person convicted of Fleeing and Eluding a law enforcement officer in a marked vehicle while driving at a high speed or in any manner which demonstrates a wanton disregard for the safety of persons or property and causes serious bodily injury or death to another person faces a felony conviction, a minimum prison sentence of 3 years and as high as 30 years, and a revocation of their driver’s license from 1 to 5 years.

  

Under Florida Law when an accused is sentenced in a statutory rape case, the Court is required to impose a designation as a sex offender or a sex predator depending on the nature of the charges.  These designations involve very stringent and public statutory conditions and restrictions that may have a devastating impact on the future of the young accused adult.  Recognizing that the facts of certain statutory rape cases may not call for these stringent sex offender or sex predator designations, in 2007 the Florida Legislature passed the Romeo & Juliet Law which allows a person convicted of a statutory rape case to petition the Court for removal of the sex offender or sex predator registry designation.

However, the Florida Romeo & Juliet law has very strict requirements that must be met before the Court will grant the petition.  The person must be convicted of a statutory rape case; the victim must have been between the ages of 14 and 17 at the time of the offense; and the person convicted must have been no more than four years older than the victim at the time of the offense.  The petition must be filed in the Court where the sentence occurred, and the petition must allege that the removal of the registration requirement will not conflict with federal law.  If all the statutory rules are not strictly followed, the Court will deny the petition and the Florida Romeo & Juliet Law strictly forbids the filing of another petition.

For further information please see my blog post dated March 2, 2010, Defending Child Sex Crimes

This is dedicated to all of you who have lost a pet . . .

I will never forget my second date with my wife, Chris. I don’t remember it because it was so romantic or that we went to a great restaurant and had a wonderful time. I remember it because of Hawthorne. Hawthorne was a large (100 pound plus) yellow lab with a personality to match his size. As I arrived at Chris’ townhouse in my car, she was finishing taking him for a walk. Just as I pulled up and started to say hello, another dog without a leash ran right in front of my car. Instinct took over and off Hawthorne went, right after that dog! Only problem was that Chris was still holding onto the leash. She had no chance of keeping Hawthorne from running after that dog. Down she went. Since this was only our second date, Chris tried to do everything she could to fall down as gracefully as possible. But there was only so much she could do, and grace was not in the equation. There she was; sprawled out on the grass. I must say, once I realized it appeared that she was not hurt, it was funny to see. She got up; brushed herself off and finally got Hawthorne under control. As I would come to learn, Hawthorne was not chasing this other dog out of malice. He was just having fun. But in the process, as we would learn later, he pulled Chris down so hard, that she ended up tearing her rotator cuff which later required surgery.

By the time Chris and I met, Hawthorne was already 6 and a half years old. Fortunately for me, I missed “the formative years”. These were the years when Hawthorne was difficult to handle. Chris told me many stories about how Hawthorne ate a water heater, wall paper, and all sorts of other high jinks. By the time I came into his life, he was a calm, sweet, loving dog; our second date notwithstanding. As Chris and I continued to date and eventually got married, she moved into my house with Hawthorne. I had always wanted a big dog like him. I had a fenced in front and back yard so that he could go outside and just hang out there.

During the nearly 5 years that Hawthorne was in my life, he would come to be my best friend, a truly loyal and trusted companion. He and Chris made up my family. We also developed routines which became a part of my everyday life. Every morning I would wake up; he would meet me at the bottom of our steps waiting to go outside. He would be standing there with his “I have to go outside and pee” dance. I would open the door and get the newspaper which would be resting on the front lawn; while at the same time he would rush out the front door to go to the bathroom. He followed the exact same path out of the front door every morning. In so doing, he actually wore a path between two bushes. Then it was time for us to eat; Hawthorne was always first. He would gobble down his food in a matter of a few moments; always the same way – as if he was starving. Whenever, Chris or I were “really” hungry; we were “Hawthorne Hungry”. He ate twice a day. (That does not include the copious amounts of treats or biscuits that he got from us, well mostly me, throughout the day). Dinner was usually when we got home. However, if we were home with him, like on the weekends, usually around 3 to 3:30 p.m., he would let you know that he was “Hawthorne Hungry”. He was ready to be fed. When I would come home after being away from the house, there he was at the door to greet me. Whenever, we would watch T.V. on the couch down stairs or eat dinner, he was always sitting at our feet within arms reach. As Hawthorne got older and we knew that his time with us was coming to an end much sooner than later, as an extra treat for him, Chris and I decided to let him on the bed with us at night before we went to sleep. Many a night, Chris and I would watch T.V. upstairs while lying in our bed with Hawthorne right there between us. If it was on a Friday or Saturday night, Chris and I would often joke that when we were younger, we would be out some place having fun. However this was our quiet family time. Truth be told, there was nothing better than that time together with my family, Chris and Hawthorne.

My father-in-law best described Hawthorne as a “gentle giant”. Being over 100 pounds, he looked intimating; until you got to know him. During the time that he was in my life, I never once heard him growl. In fact, Chris told me that the only time she remembered him growling was when he was at a dog park and another dog – how do I say this – tried to “mount” him. I can’t say that I blame him for that. He loved sitting in the front yard on cool days. He would usually sit in a spot. It was “his spot”. He sat there so often that he wore a brown patch in the front yard. I used to stand by the window in my house and watch him just enjoying his time in the front yard. It would bring a smile to my face when he would inevitably roll over on his back and wriggle around on it. Our mail box is right by the front door inside the front fence. So I used to wonder if our mailman ever saw Hawthorne in the front yard and decided not to deliver our mail until he went inside. One day I got my answer. Hawthorne was in the front yard and the mailman walked right through the gate and delivered the mail. I went outside and let him know that Hawthorne wasn’t aggressive; he had nothing to worry about. The mailman looked at me and told me he was well aware of that. Hawthorne, he said, was his buddy. I would often see random neighbors and small children come up to the fence and pet him. Hawthorne would walk up to the fence and just stand there with his tail slowly wagging and let them pet him. That was truly Hawthorne’s favorite past time. I don’t think I have ever seen a dog who loved to be petted as much as him. When we would be sitting on the couch; sitting at the dinner table; or laying in bed; it didn’t matter, he wanted someone to pet him. And like all dogs, once you started petting him, you couldn’t stop. If you did, he would nudge you until you started again. When he was at the dog park, he was not so much interested in interacting with the other pets as much as he would greet the other people so that they would pet him.

Because he loved being petted or touched by people, he loved going to the vet of all places. Most animals that I have owned in the past got real anxious and nervous when it was time to go to the vet. All pets seem to have a sense that they were going there. Hawthorne seemed to know when he was going to the vet too, but he loved it. He would get out of the car and just head right for the front door to the vet’s office, and go right in like he owned the place. Often times he would stand on his hind legs and greet the receptionist at the office. He was like Norm from Cheers. Everyone at the Florida Veterinary Clinic in St. Petersburg knew his name. He would be greeted and petted by everyone there. And when he was examined, he was in his glory. The more the vet techs and Dr. Anthony touched him, and it didn’t matter what they were doing to him, the more he enjoyed it.

Of course the flip side to not being around for “the formative years” was that my time with Hawthorne would inevitably have to end much sooner than I would have liked. As Hawthorne started creeping toward 10 years old, Chris would remind me that he wouldn’t be around much longer. I would usually tell her I didn’t want to talk about that. I would rather just enjoy the time that we had left. Frankly, at that time, Hawthorne seemed fine. The end seemed so far away. Hawthorne loved getting a biscuit after he went to the bathroom outside. He would run inside the house and go straight to the jar on the counter and politely wait for me to give it to him. I would usually flip it in the air and he would snag it as his jaws chomped shut. Then about a year ago, we noticed that he was going outside to go to the bathroom a lot more than usual. At first we thought it was his way of getting extra treats. Then we noticed that he was drinking a lot more than usual too. So we took him to see Dr. Anthony. After testing his blood, it was determined that he had a kidney disease that would get progressively worse and ultimately be fatal. We knew then that his days were numbered. However, after the initial shock of the news and providing him with medicine, he seemed to be doing well.

Dr. Anthony told us, at some point, he would deteriorate quickly. During the later part of last year Dr. Anthony’s words unfortunately came to fruition. Hawthorne started having accidents inside the house. As time went by the frequency of his accidents increased dramatically. By the end, when we were home with him, he was going to the bathroom every fifteen minutes. Chris and I knew it was time to put him down. This decision was not taken lightly; nor was it easy to do. We struggled with it. The most difficult thing for me personally was the fact that despite what was going on with him physically, he was still Hawthorne. He still had that wonderful personality. He didn’t appear to be in pain, but his quality of life was now the issue. Before we made the ultimate decision, I made an appointment with Dr. Anthony. I needed to hear from him that we were doing the right thing. I have to say, I thought Dr. Anthony was going to equivocate and tell us that it was up to us to make that decision. But to his credit, he didn’t hesitate one bit. He came into the room and told Chris and me that we had done everything we could, and that it was time.

The appointment was on a Friday. Chris and I decided to do it that day so that we could have the weekend to deal with his loss and get it together to work the following Monday. Chris cried during the appointment with Dr. Anthony. I didn’t. She told me early on when it was becoming clear that we were going to have to put Hawthorne down, that she didn’t want to be there in the room. She would understandably be too upset. I always knew that I was going to be there with him when he was put down. Chris and I spent the afternoon with him. We said our goodbyes in our own way and then I took him to Dr. Anthony’s. I wasn’t in the office for a minute, when I lost it. I was very surprised that I did that. But it hit me at that moment how much Hawthorne meant to me and how much I loved him. It also hit me how much I was going to miss him. It was one of the most difficult things I have ever had to do.

It has now been more than a week since he’s been gone. It is taking time to adjust to his absence. I used to carefully put my feet down when I was sitting on the couch because Hawthorne was always lying right underneath me. I still carefully put my feet down. The other day, I came home and he when wasn’t in the house, I instinctively looked at the front door to see if he was waiting to come inside. I feel off kilter in the morning because I no longer have my routine with him. I used to go to the gym after work, but I usually went home to feed him and let him out first. I caught myself doing that the other day until I realized that he wasn’t home to be fed or let out. He is no longer there at the door when I get home. I no longer see him outside in the yard. Yet “his spot” is still there. He is no longer there to pet or to sit on the bed with us as we watch T.V. He no longer follows me around the house or out into the yard.

You don’t realize how much your dog is a part of your life until he is gone. He had a large presence in or home and it is much quieter now, but not in a good way. I know as time goes by the pain and sense of loss that we feel right now will subside. However, he will always be loved and missed.