At Least 177 Unfiled DUI Cases in Broward County

Fort Lauderdale DUI Defense Attorney

How to Hide Files in Office
Step 1) Create Mess;
Step 2) Tell people that you know where everything is.

Fort Lauderdale ASA Didn’t File 177 DUI Cases

On or about May 14, 2015, a long-term DUI case filing attorney for the Broward State Attorney’s Office was fired for “purposefully” not filing at least 177 DUI cases.  The unfiled cases spanned a 14 year period of time from 1997 to 2011.  When you average it out, it amounts to slightly more than 1 DUI per month over that 14 year period of time.  To put this into perspective, there were 3,133 arrests in Broward County in April, 2015.  Of those 3,133 arrests there were 139 arrests for DUI.  So the failure to file DUI charges was not a frequent occurrence.

Was this purposeful?  Who knows?  What do they mean by the word “unfiled?”  Did they have the evidence to secure a conviction?  Did the State have the evidence necessary to ethically file charges?  If the evidence wasn’t obtained, for whatever reason, there is no way to tell how many cases would have been filed.  So this number may significantly over state the actual number of cases that would have been filed.

How Did This Happen?

These were not routine cases.  It appears that all of the cases fit the same mold.  The typical DUI scenario goes something like this:

  • Traffic stop for random traffic infraction;
  • Officer notices a distinct smell of alcohol, bloodshot glassy eyes and slurred speech;
  • Officer asks defendant to step out of the vehicle and perform standardized field sobriety exercises;
  • Suspect fails standardized field sobriety tests;
  • Suspect is arrested for DUI and asked to submit to a breath test;
  • Suspect submits to breath test with a result of a .08 or higher;
  • Officer provides suspect with a citation which acts as a temporary driving permit for the next 10 days;
  • Defendant posts $500 bond for a first DUI and goes home;
  • Officer submits probable cause affidavit with the breath test ticket to the State Attorney;
  • State Attorney files an “information” which is the document officially charging somebody with a crime.

This is how the “177 unfiled DUI cases” are different.  At least this is how it appears to me based on the information I have.

  • All of the cases involved a car accident;
  • All of the suspects were injured and required medical treatment;
  • None of the suspects were able to provide a breath sample because they were receiving medical treatment;
  • None of the suspects were subjected to a forced blood draw.  A forced blood draw can only be done in cases of death or serious bodily injury;
  • It is reasonable to assume that nobody was serious injured or killed in any of these accidents because there was never a forced blood draw;
  • None of the suspects were arrested.

A suspect can still be charged with a DUI even though the suspect was not arrested. When a suspect is not arrested, the officer submits a “presentment” to the State Attorney.  The officer only submits the probable cause affidavit since there is no citation for the DUI.  The filing attorney at the State Attorney’s office reviews the facts of the case and makes a determination of whether to move forward on the case.

Subpoena for Blood Test Results

Pursuant to Florida Statute 395.3025(4)(d), the State Attorney can request the court issue a subpoena for the suspect’s medical records that were generated as a result of being taken to the hospital.  This includes any toxicology reports which were used for medical purposes.  Prior to the court issuing a subpoena, a suspect must be given 15 days notice of the State’s intent to subpoena records from a 3rd party.  The suspect can object to the production of the documents, including the toxicology reports, within the 15 days.

We Don’t Know What Happened

These “DUI” cases were presentments meaning that nobody had been arrested.  I put the term DUI in quotation marks because we don’t know if the cases were solid DUI  cases with blood alcohol levels over .08.  We don’t know if the cases he didn’t file were garbage cases with .07’s and below.  Personally, I believe that any case below a .10 is garbage and shouldn’t be filed.  We don’t know if a subpoena was ever issued.  If a subpoena wasn’t issued than we don’t know how many of these 177 cases should or shouldn’t have been filed because the toxicology reports are not available.

Assumptions

From what I have read so far, the State is claiming that 177 DUI cases were not filed.  However, the news has not been very specific.  In order for the number 177 to be correct, for these types of cases, you would need to assume that all 177 cases justified a subpoena being issued, that all 177 cases had subpoenas issued and that all 177 cases came back with .08 or higher BAC or a potentially impairing level of a narcotic scheduled under Chapter 893.  After an Assistant State Attorney in the filing division has done all of that, the only thing left to do is sign a piece of paper.  Literally, one signature.  I simply find it hard to believe that a career prosecutor would go through all of the work of collecting the evidence, have a solid DUI case and simply not file it.

For more information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

For more information on marketing your law firm in a highly competitive niche please visit Law Firm Marketing AND Legal Marketing.  I am not being paid to link or promote these websites or products.  It is a product/service that I truly believe in.

 

 

Motion to Suppress Everything for Reasons

The Omnibus Motion to Suppress

Motion to Suppress Because of Reasons

Motion to Suppress Because of Reasons

I started practicing law in Florida in 2004.  I practiced law in both Florida and North Carolina from 2007 to 2011.  I exclusively practice law in Florida now and my license no longer active in North Carolina.  The District Court in North Carolina handles misdemeanor DWI charges. If you’re looking for a Long Island traffic lawyer because of a traffic ticket, call traffic lawyer suffolk county for help with your case.  A defendant did not have a right to discovery in District Court proceedings.  In 2006, the North Carolina Legislature passed NCGS 20-38.6 which required that all motions to suppress and/or dismiss in implied consent cases be made prior to trial.  Most of the time defense counsel would receive a police report, test ticket and alcohol influence report prior to the trial.    However, there was no guarantee that you would get anything since the state was not obligated to provide anything.   This put defense counsel in a position of potentially being required to file a pretrial motion to suppress without any discovery whatsoever.    Failing to file a pretrial motion to suppress was not an automatic waiver of the right to file a motion to suppress.  Any motion to suppress made during trial was required to be based on facts not previously known to the defendant.  Whether to hear the motion to suppress was in the sole discretion of the trial judge.  In my experience, concerning DWI matters, any motion that was not made prior to trial would not be heard.

Necessity is the Mother of Invention and Innovation

The defense bar quickly came up with an Omnibus Motion to Suppress knowing that our crystal ball was unable to predict the contents of the various police reports.  In order to protect your client’s rights, you would simply check all of the boxes and submit the motion prior to or at the first hearing.  You could either amend the motion or withdraw the motion after you received discovery.  The motion has undergone significant changes since I first saw/used it.  The most recent copy that I can find was written by John Fanney and posted on the North Carolina Indigent Defense Services website.  Click here to see a copy of the motion: North Carolina DWI Motion to Suppress 

Reasons for Filing an Omnibus Motion to Suppress

Typically you would want to file a motion to suppress containing a clear statement of the facts and the legal basis to suppress the evidence.  However, that is difficult to do if, for whatever reason, you do not receive discovery.  An omnibus motion to suppress simply states various legal avenues through which evidence can be suppressed.  It does not state any factual basis for applying the legal principals asserted.  A check box omnibus motion to suppress is not necessarily lazy lawyering.  It is a means of protecting your client’s rights when you are being forced into taking a legal position before you know all of the facts.

Kane County criminal lawyer, Matthew Haiduk, publishes a blog titled “Disorderly Conduct.”  Mr. Haiduk mentions his reasoning for filing an omnibus motion to suppress stating “We’d get appointed, not even have police reports, and [the judge would] order that we would have to have any and all defense motions filed within 30 days… even if the trial was 9 months later.”  The entire post is definitely worth reading and can be found here: Setting Every Damn Case for Trial.  A copy of his omnibus motion to suppress is as follows:

[gview file=”https://yourfloridacriminalattorney.com/wp-content/uploads/2015/04/omnibus-motion.pdf” save=”1″]

Disclaimer:  I am no longer licensed to practice law in the State of North Carolina and the preceding analysis was commentary only and not intended to be relied on for legal advice.

For more information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

 

 

 

Heien v. North Carolina | State of North Carolina v. Coleman | Reasonable Mistake of Law

Heien Exception

Reasonable Mistake of Law Exception to the 4th Amendment

The United States Supreme Court decided the case of Heinen v. North Carolina on December 15, 2014.  The holding of the case is that the Fourth Amendment is not violated when a police officer makes a traffic stop(seizure) upon a reasonable, but mistaken, belief that a law has been violated.  The standard set forth by the Supreme Court is whether it is “objectively reasonable for an officer in [the searching officer’s] position to think that the conduct violated the law.”

The Supreme Court decision focuses on the text of the statute itself.  It is likely that the application of the Heien exception will be extremely rare and only applicable when the text of the statute is ambiguous, complex or novel.

However, we are not without guidance as there is already case law from North Carolina applying the Heien decision rendered by the North Carolina Supreme Court to a pending state court matter.  The case is State of North Carolina v. Rudolph Coleman.  I argued the Coleman motion to suppress in District Court and it was denied.  Jane Weatherly and I were members of the same PLLC.  She argued the Coleman motion to suppress in Superior Court and it was denied.  The Coleman case was reversed by the North Carolina Court of Appeal.  The Court of Appeal specifically addressed the Heien decision in its opinion and detailed why the Heinen exception does not apply.  Much like the United States Supreme Court ruling, the Court of Appeal focused on the statutory language and compared the difference between the tail light statute and the open container statute.    The North Carolina Court of Appeal ruled that the open container statute was clear, unambiguous and that the officer’s lack of knowledge did not make it “reasonable” in light of the Heien decision.

The Coleman decision may be the only case at this point in time which can provide some clarification as to the application of the Heinen exception.   The relevant analysis can be found on pages 7 through 11 of the appellate decision below.

[gview file=”https://yourfloridacriminalattorney.com/wp-content/uploads/2014/12/State-of-NC-vs-Rudolph-Coleman.pdf” save=”1″]

 

For additional information, please contact

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

or

The Law Offices of Jane L. Weatherly, Attorney at Law, PLLC, 5 West Hargett Street, Raleigh, NC 27601 (919)615-3408

 

DUI Checkpoints | What is the Law? | What are Your Rights?

DUI Checkpoints Constitutional

DUI Checkpoint Ahead

DUI Checkpoints, Your Rights and The Law

I have seen a lot of articles and videos recently regarding DUI checkpoints.  I have been asked a lot of questions regarding checkpoints.  People want to know their rights.  What do they have to provide to the police?  Do they have to roll down their window?  I will get to the answer right away and then the analyze the issues.

The Answer under Florida Law:

“Moreover, as the state points out, a driver who is lawfully stopped for a DUI checkpoint is under a legal obligation to respond to an officer’s requests for certain information and documents, and the driver’s refusal to respond to these requests may constitute the misdemeanor offense of obstructing or opposing an officer. See § 843.02, Fla. Stat. (1991). See also Burkes v. State, 719 So.2d 29 (Fla. 2d DCA 1998); K.A.C. v. State, 707 So.2d 1175 (Fla. 3d DCA 1998); In the Interest of J.H., 559 So.2d 702 (Fla. 4th DCA 1990); M.C. v. State, 450 So.2d 336 (Fla. 5th DCA 1984). If a driver engages in obstructive conduct, in violation of section 843.02, then standard police detention and arrest procedures, rather than checkpoint guidelines, would govern the officer’s handling of the situation.”  Rinaldo v. State, 787 So.2d 208 (Fla. App., 2001)

Issue 1: Cop Baiting | Don’t be Stupid

The vast majority of the checkpoint videos that I have recently seen on Youtube involve what I call “cop baiting.”  “Cop baiting” is when an individual does something stupid with the intent on getting under the cops skin and then turning around and acting like a victim when the officer gets upset.  Cop baiting is not the simple act of being disrespectful towards a police officer.  Cop baiting is going out of your way to intentionally provoke a response from a police officer.  I have no sympathy for anybody who intentionally provokes a response from a police officer whether it be foul language or a smack upside the head.

Most of the videos that I have seen involve individuals refusing to roll down their windows, refusing to provide their license and refusing to answer questions claiming that the checkpoint is somehow unconstitutional under the United States Constitution.  I won’t post any of those videos here because I don’t want to spread their idiocy.  Many people have been arrested and convicted of resisting an officer in the performance of his official duties, or similar statutes, by refusing to cooperate with officers at a DUI checkpoint.  If you choose to resist or obstruct an officer at a checkpoint you will probably get arrested.  When you do get arrested, you will have to post bail and hire an attorney.  So your 1 minute of looking like an idiot on Youtube just cost you $5,000.  It will cost you $5,000 even in the unlikely event that you beat the charge.

Issue 2: Checkpoints Are Permissible Under the United States Constitution

The United States Supreme Court case ruled that checkpoints are permissible under the 4th Amendment in Michigan Dept. State Police vs. Sitz in 1990.  The Supreme Court, in a 6-3 vote, ruled that a state has a “substantial government interest” to stop drunk driving, and that checkpoints are rationally related to achieving the goal of stopping drunk driving. The Court also ruled that the impact on drivers from being stopped at a checkpoint was de minimus, that the time a motorist is delayed from reaching his or her destination is negligible, and that brief questioning  in order to determine if there is “reasonable suspicion” that a driver is impaired also is not a significant impairment of the drivers’ Fourth Amendment right. The court balanced the interest of the state in combating drunk driving with the individuals Fourth Amendment rights and held that checkpoints were permissible.

There have been further cases which restrict how checkpoints can be conducted.  In Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357, 361(1979). The Supreme Court stated that the trial court must look to “(1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty.”   Other cases that significantly modified how a checkpoint can be conducted are:

  • Indianapolis v. Edmond, 531 U.S. 32, 40-42, 121 S. Ct 447, 148 L.Ed.2d 333, 343(2000);
  • Ferguson v. City of Charleston, 532 U.S. 67, 81, 121 S.Ct. 1281, 1290, 149 L.Ed.2d 205, 218(2001);
  • Illinois v. Lidster, 540 U.S. 419, 427, 124 S.Ct. 885, 890, 157 L.Ed.2d 843, 852(2004).

However, all of the foregoing cases involve how the checkpoints were setup and operated.  This is information that your attorney will get after you are arrested.

Issue 3: State Laws can be More Restrictive

Ironically, when Michigan Dept. State Police vs. Sitz was remanded to the Michigan Supreme Court, the Michigan Supreme Court ruled that the Constitution for the State of Michigan provided additional protections for drivers than the United States Constitution.  Consequently, the Michigan Supreme Court ruled that checkpoints were not permitted pursuant to the State Constitution rather than the United States Constitution.

The states are also free to implement legislation regarding checkpoints as long as the legislation more restrictive towards the state as opposed to attempting to overturn the Supreme Court by state legislation.  In my opinion, a perfect example of this prohibited legislation is found in North Carolina Statute 20-16.3A(d).  The statute states, “The placement of checkpoints should be random or statistically indicated, and agencies shall avoid placing checkpoints repeatedly in the same location or proximity. This subsection shall not be grounds for a motion to suppress or a defense to any offense arising out of the operation of a checking station.

This legislation is designed to avoid motions to suppress based on an allegation that the checkpoint was not narrowly tailored to meet its objectives.  I no longer practice law in North Carolina and can not give any legal advice regarding North Carolina law.  However, it appears that one Judge agreed with me that the law was unconstitutional.

[gview file=”https://yourfloridacriminalattorney.com/wp-content/uploads/2014/09/Order-Granting-Motion-to-Suppress-DUI-Checkpoint.pdf” save=”1″]

So What Are My Rights?   What do I do if I am Stopped at a Checkpoint?

Assuming that checkpoints are legal in your state, you must comply with the officer’s requests.  For example, providing drivers license, registration and proof of insurance.  The Sitz case makes it very clear that the officer’s have the right to ask you limited questions.  As I wrote above “brief questioning  in order to determine if there is ‘reasonable suspicion’ that a driver is impaired also is not a significant impairment of the drivers’ Fourth Amendment right.”

So they can ask, but you do not have to answer if your answer may incriminate yourself.  You still have your 5th Amendment rights.  If you haven’t been drinking or you aren’t coming back from a bar, simply tell them you are coming back from grocery shopping(tell the truth) and be on your way.  If you feel that your answer may incriminate you, don’t answer.  In some circumstances, they may let you go and in some they may arrest you on an obstruction charge or maybe a DUI.  There is nothing you can do to help yourself at that point.  Let your attorney handle it.

Most importantly, ROLL DOWN THE WINDOW!  This seems to be all the trend on the cop baiting videos.  The police officer cannot ask you questions with your window rolled up.  If it is cracked the officer will claim he couldn’t hear you.  Maybe you interfered with the states right to determine reasonable suspicion because he couldn’t tell if there was an odor of alcohol.  Who knows what the police officer will say, but if you obstructed, you get arrested.

So do as follows:

  • ROLL DOWN YOUR WINDOW so the officer can communicate with you;
  • Be polite;
  • Provide the police officer with your license, registration and insurance;
  • If the answers won’t lead towards incriminating yourself, answer the questions and be on your way;

DO NOT DO AS FOLLOWS:

  • Enter into a debate with the police officer over the constitutionality of checkpoints;
  • Make any incriminating statements.  If where you were or what you were doing had to do with anything that could be perceived as illegal, simply state “I am not going to answer any questions without a lawyer present.”  You may get arrested anyways, but that is what attorneys are for.
  • Do not take the roadside sobriety exercises.  You are under no obligation to do so.  Simply say “No thank you officer.  I am not going to take any tests.”
  • I don’t think that I am allowed to advise anybody NOT TO TAKE THE BREATHALYZER, if it is a second refusal or more, refusing to take the breath test is a criminal offense.
  • If you are going to shut up, then shut up.  The more you talk the more evidence the police will have;
  • DO NOT GO ON COP BAITING EXPEDITIONS!

Fort Lauderdale DUI Attorney, Michael Dye, represents individuals charged with all types of felonies and misdemeanors including, but not limited to contempt of court.  For more information, please contact Mr. Dye at his Fort Lauderdale or Miami office:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

 

 

 

 

DUI Investigations Phase II | Face-to-Face Contact

DUI Investigation

DUI Investigation Phase II

Fort Lauderdale DUI Attorney | Miami DUI Attorney

Phase II DUI Investigations | Personal Contact

At the beginning of Phase II, the police officer has already seen how the driver was operating the vehicle and noted “cues” of impairment if any.  There are many times when an Officer does not detect any cues during Phase I.  It is important to illicit the fact that the officer did not witness any Phase I cues and therefore did not have reason to believe that this was a DUI stop.  Checkpoints and accidents are common scenarios when a police officer does not witness any Phase I cues that’s why lawyers in these situations are common and you can find the best online at sites like https://www.harrybrownlaw.com/atlanta-motorcycle-accident-injury-attorney.  It is not abnormal for an officer to see a car driving and pull the car over for an infraction without witnessing a Phase I cues.

Face to Face Contact

In phase II of a DUI investigation, an officer will observe and interview the driver face to face in order to determine if there is reason to continue with the DUI investigation.  Some departments mandate that any individual suspected of DUI must exit the vehicle.  Accordingly, the interview that takes place during this phase can be done with the suspect inside or outside of the vehicle.  NHTSA guidelines specifically state that Phase II can be initiated without Phase I.  Specific examples given by NHTSA include roadblocks and accident scenes.

Divided attention questions are a commonly used technique by law enforcement to assist with making a determination of impairment.  The questions are designed to determine your ability to focus on two tasks at the same time.  “May I see your license and registration?”  “What is your name and date of birth?”  As you are looking for your license and registration, the police officer is going to be watching for signs of impairment such as if you pass by your license in your wallet as well as indicators of physical impairment such as “fumbling fingers.”  and other indications that your mental and physical faculties are impaired.

NHTSA does not list the statistical correlation to impairment for Phase II cues.  Nevertheless, the following behaviors and observations are indicated as consistent with impairment:

• Bloodshot eyes;

• Soiled clothing;

• Fumbling fingers;

• Alcohol containers;

• Drugs or drug paraphernalia;

• Bruises, bumps or scratches;

• Unusual actions;

• Slurred speech;

• Admission of drinking;

• Inconsistent responses;

• Unusual statements;

• Abusive language;

• Anything else;

• Alcoholic beverages;

• Marijuana;

• Cover up odors;

• Other unusual odors;

The “typical” DUI report states a “strong odor of alcohol coming from the defendant’s breath; red bloodshot, glassy eyes and slurred speech.  As is with the cues in Phase I, it is most effective to focus on the things that the defendant did correctly.

If the officer notices one or more of these indications, the officer will inform you that he is going to begin a “DUI Investigation.”  When the police officer tells you that he is going to conduct a “DUI Investigation”, the investigation is already complete and the officer has made his arrest decision.  The standardized field sobriety exercises in Phase III are simply a means of gathering additional evidence of guilt and do not have much of an impact, if any, on the arrest decision.  You are under no legal obligation to take the roadside sobriety exercises.  It is never a good idea to take them.  You cannot prove your innocence.  You can only dig yourself a deeper hole.

DUI Attorney, Michael Dye received additional training in the administration and interpretation of the SFST’s from Doug Scott, a pioneer in the field of the Drug Recognition Expert Program, who is recognized as an expert in the administration and interpretation of the SFST’s.  Mr. Dye has the most current version of the NHTSA SFST Student Manual and actively utilizes it as reference and impeachment material in both depositions and trials.  Mr. Dye has cross examined the arresting officer regarding the SFST’s in over 20 trials and numerous depositions.  For more information, please contact Mr. Dye at his Fort Lauderdale or Miami Office:

The Law Offices of Michael A. Dye, PA, 1 E Broward Blvd #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

Next: Phase III DUI Investigations – SFST’s