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DUI Manslaughter Defense

DUI Manslaughter Defense

Analysis of Postmortem Specimens

Strict Liability vs Causation

Florida had a strict liability DUI manslaughter statute until 1986.  All the state needed to prove was that the defendant was driving while impaired, was involved in a car accident and somebody died as a result of the car accident. It did not matter if the defendant was at fault for the accident. The legislature amended the DUI manslaughter statute in 1986 to include the element of causation.

Constitutional Issue with Strict Liability

The problem with the strict liability DUI manslaughter statute, in my opinion, was that the criminal culpability for a misdemeanor DUI and the criminal culpability for a DUI manslaughter was equal. A good argument could be made that the strictly at liability DUI manslaughter statute violated the 8th Amendment of the United States Constitution as a cruel and unusual punishment. The current DUI manslaughter statute requires the state to prove the following: 1) driving under the influence; 2) an accident resulting in death and 3) and that the defendant was somehow at fault for the accident. The causation element must be proved independent of impairment.

Not My Fault Defense

Defending DUI manslaughter cases is difficult under any circumstances. It is human nature to look for somebody to blame when somebody dies before their time.  It is also human nature to not speak ill of the dead.  However, a legally viable defense to DUI manslaughter is that the decedent was at fault for the accident even though the defendant was driving drunk. The defendant would be guilty of DUI, but not DUI manslaughter in that scenario. The “not my fault defense” is a particularly difficult proposition to sell to a jury. In essence, you are saying to the jury “Yes, my client was driving drunk. Yes, my client was involved in a fatal car accident. However, the car accident was the dead guy’s fault.”

Theory vs. Reality

Nobody ever gets screwed by the law in a bar exam essay question.  However, this is not a law school exam question. Defense attorneys need to stop thinking about legal theory and focus on where the rubber meets the road.  Technically, the defense bears no burden of proof, but if this is your defense, you are going to need to show some solid evidence.  The jury is looking to blame somebody and there is a good chance that it is going to be the defendant.  Personally, I wouldn’t want to use this defense if it did not have a strong factual basis.  The risk of alienating the judge and jury by blaming the victim without any serious basis is too great.

Where to Find the Evidence

The autopsy report from the County Medical Examiner’s Office is a valuable source of information for the defense. Please note that the Medical Examiner’s Office may be called something different in another state.  Biological specimens, such as blood and urine, are preserved during the course of an autopsy. Toxicology testing is performed on the specimens. The results of the toxicology tests may show that the was under the influence of some sort of drug or alcohol at the time of the accident.

It should be relatively easy to establish whether the decedent was under the influence of a drug at the time of the accident. The postmortem blood sample will identify the drugs in his or her system at the time of death. Postmortem quantitative analysis of controlled substances in a decedent’s blood is another topic for another time. The biggest problem that defense attorneys run into when trying to evaluate the culpability of the decedent is the quantitative analysis of ethyl alcohol in the decedent’s blood.

No matter what methods are used, using the BAC at the time of autopsy in order to determine the decedent’s impairment at the time of the accident is an educated guess at best and gross speculation at worst.  The reason for the uncertainty is because alcohol can be produced or destroyed in between the time of death in the time of the autopsy. Autolysis is defined as the self digestion or destruction of an organism’s own cells through the action of its own enzymes. This begins to occur within hours of an individual’s death and his present throughout the vast majority of the vascular system within hours. The result is an environment which supports the endogenous production of alcohol. Multiple environmental factors contribute in determining if endogenous alcohol is produced or the extent of the endogenous production. The two most significant are typically time and temperature.

Postmortem BAC Testing is Never Ideal

We obviously want the BAC to be as accurate as possible. In an ideal world we would like to have a blood sample taken from the decedent as soon as possible after the accident and a second blood sample taken 45 minutes to an hour after the first blood sample with both being prior to death. If that is the case, we would probably not need to use the postmortem sample.

If possible, the first thing that the defense attorney should do is check the decedents medical records in order to determine if a BAC screen was ordered by a doctor at the hospital. You may have to request a subpoena duces tecum if the medical evidence from the hospital is not provided in discovery.  Sometimes individuals die on the scene or on their way to the hospital so this is not always available. If there is no antemortem sample, the defense attorney has to be able to assess the reliability of the autopsy sample.

Additional Reading

Postmortem analysis of biological specimens for ethyl alcohol is very complicated.  Try as I might, I cannot say it any better than it is said on this website: BAC Analysis in Postmortem Specimens. Another good website for forensic science in general is The Truth About Forensic Science

Remember that it is the State’s burden to prove that the defendant was at fault for the accident. If you can put on strong evidence that the decedent was impaired it is up to the State to rebut that.  There are simply too many variables for the toxicologist to credibly testify as to a definitive state of impairment at the time of the accident.

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

Florida Sentencing Guidelines

Florida Criminal Punishment Code Scoresheet

It’s like golf! Less Points = Better!

Am I Going to Prison?

Every criminal defense attorney gets asked this question. From DUI cases to murder cases, every defendant is concerned with their exposure to a prison sentence. In felony cases, if you are found guilty, the length of your prison sentence is typically determined by a simple mathematical calculation.  I will use algebra to explain thereby making this unnecessarily complicated and creating job security.  P = Total Sentence Points.  If P > or = 44 then your recommended prison sentence is calculated as follows, .75(P – 28) .

Florida Criminal Punishment Code Scoresheet

The form for the Florida Criminal Punishment Code Scoresheet is found in Florida Rule of Criminal  Procedure 3.992. The assistant state attorney handling the prosecution of a felony matter is required to complete a Florida Criminal Punishment Code Scoresheet. The Florida Criminal Punishment Code Scoresheet is also known as the sentencing scoresheet. The purpose of the criminal punishment code scoresheet is to provide the court with a “recommended” sentence.

How is it Scored?

Think of sentencing points like a golf score.  The less points you have, the better off you will be.  The sentencing scoresheet assigns a point value to all criminal offenses currently before the court. All felonies are divided into various “offense levels.” The various offense levels can be found in Florida Statute 921.0022. Section 1 is called the primary offense. The primary offense carries the most sentence points out of all charges on the scoresheet. I use a felony DUI in the example below. A fourth(4th) DUI conviction, and all subsequent DUI convictions, are 3rd degree felonies pursuant to Florida Law. Looking at section 1, you can see that a fifth(5th) DUI conviction is a third-degree felony, the statute is 316.193 and the offense level is six. A level VI primary offense earns 36 sentence points. However, a level VI additional offense is only 18 points.

Additional points are added for certain aggravating factors and prior convictions. The assistant state attorney will calculate the total amount of sentence points.  However, the defense attorney needs to check to make sure it is correct.  If the total amount of sentence points is less than 44, the lowest permissible sense is a non-state prison sanction. A non-state prison sanction can include some jail time, probation, community control or a combination of all of the above.

Calculating a Hypothetical Scoresheet

Primary and Additional Offenses: In the example that I use below, John Smith has been arrested for a fifth DUI and possession of cocaine. Both crimes are felonies. The fifth DUI is the primary offense because it is a level VI offense. The possession of cocaine is an additional offense because it is a level III offense. Accordingly, Mr. Smith is assessed 36 sentence points for the DUI and 2.4 sentence points for the possession of cocaine.

Victim Injury: Section 3 deals with victim injury. This area of the scoresheet is a bit more subjective and there is room for a criminal defense attorney to attempt to get less sentencing points. In this example, there was a victim injury and the injury was described as moderate. An additional 18 sentence points are added due to the degree of the injury of the victim.

Prior Criminal Record: Section 4 assigns points based on the defendant’s prior criminal record. In this section, you will find yourself going back to Florida statute 921.0022 in order to find the offense levels for any prior convictions. In the example below I simply put four prior DUIs for the sake of simplicity.

Legal Status: Section 5 assigns points for legal status violations. A legal status is when an individual can be classified as an escapee, and absconder or, amongst others, already incarcerated. Section 6 assigns points for violating terms of pretrial release or probation.

Community Sanction Violation: Section 6 is used quite often because of high recidivism levels. So if an individual is on probation when he or she gets convicted for a new charge,  it will enhance the length of the sentence for the new charge.

Sections 7, 8 and 9 are fairly self explanatory.  These sections are not used as often because they typically apply to much more serious criminal offenses.

If the total sentencing points is greater than 44, you subtract 44 from the total score and multiply times .75 which gives you the minimum amount of prison time. A judge is authorized to sentence a defendant to consecutive maximum terms of imprisonment.  The guidelines are merely suggestions. A Judge may be required to provide a written explanation concerning a deviation from the guidelines under certain circumstances In the example below, the maximum sentence would be 10 years. However, the recommended sentence would be 29.55 months.

Download (PDF, 137KB)

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

DUI License Suspension | Administrative Hearing

DHSMV Forms for DUI Administrative Suspension

DUI Administraitve Hearings in Florida

DUI Administrative Hearings

If you are arrested for a DUI and either 1) blow > a .08 on the Breathalyzer or 2) refuse a chemical test, your driver’s license will be automatically suspended.  The police officer will seize your license and forward it to the DHSMV.  Within 10 days, you need to decide whether to fight the suspension in an administrative hearing or consent to the suspension.

Whatever choice you make, there is paperwork that should be filed with the DHSMV notifying them of your intention.  Please note that a Public Defender’s role is limited to criminal proceedings.  Accordingly, a public defender will not assist you in the administrative suspension.  You must do it yourself or hire a private attorney.

With regard to the DHSMV paperwork, it can be substantial.  I had a difficult time finding the most up to date version of some forms last week.  At least one was not available anywhere I looked online including the DHSMV website.  The Bureau of Administrative Reviews was kind enough to fax one to me.  Despite its reputation as a “Kangaroo Court”, the employees at the Bureau of Administrative Reviews are some of the most helpful and friendly individuals you will run into in this process.  So if you have a question, ask and be nice.  Nevertheless, due to my difficulty getting all the forms quickly, I decided to post them all in one place.  Enjoy.

HSMV 78065 REQUEST FOR FORMAL REVIEW

Download (PDF, 76KB)

This form is used to request a formal or informal review of your administrative license suspension.  If you prevail, you will not receive any “hard time” suspension from the DHSMV.  Although your license may still be suspended if you are found guilty in the criminal proceeding.

HSMV 72034 REQUEST FOR ELIGIBILITY REVIEW

Download (PDF, 52KB)

This form is used to waive your right to a formal review hearing in exchange for ability to get an immediate hardship reinstatement.  This option lets you avoid any “hard time” administrative suspension.  You are only eligible for this if this is your first DUI.  You must show up at the DHSMV Office of Administrative Reviews within 10 days of your arrest with this form and proof of enrollment in the appropriate DUI course.  You will have a hearing in front of a hearing officer who will determine your eligibility.

HSMV 78066 SUBPOENA/SUBPOENA DUCES TECUM FOR ADMINISTRATIVE HEARING

Download (DOCX, 13KB)

Use this document to subpoena police officers and/or other relevant witnesses to the administrative hearing.

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

 

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:

Download (PDF, 128KB)

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

 

 

 

Florida DUI Laws | Changes are Needed

Florida DUI Laws

Florida DUI Laws | The War on Drugs

Florida DUI Laws & The War on Drugs

Florida DUI laws and the war on drugs are unnecessarily inextricably intertwined with one another.  Florida Statute 316.193 states:

“(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;”
Accordingly, an individual can only be convicted of DUI if that individual is impaired by 1) alcoholic beverages, 2) chemical substances enumerated in Florida Statute 877.111 or 3) controlled substances specifically listed in Chapter 893 Florida Statutes.

The Problem with Chapter 893

Florida Statute 316.193 prohibits driving while impaired by drugs by referencing Florida Statute Chapter 893.  The problem is that Chapter 893 Florida Statutes does not contain all psychoactive substances that can impair an individuals ability to drive a vehicle.  There are some glaring omissions in Chapter 893.  For example, Ambien, generic name zolpidem, is not a controlled substance under Florida Law.  Ambien is a federally controlled substance, but the Florida DUI statute does not specify substances controlled under federal law.  Also excluded from Florida’s DUI statute are over the counter substances such as dextromethorphan and diphenhydramine.  It is possible to be charged with other offenses while high on unscheduled substances.  You might be convicted of reckless driving or vehicular homicide, if somebody dies, but you cannot be convicted of DUI.

Where DUI and The War on Drugs Meet

In order for a substance to be a “DUI eligible” substance it must be a controlled substance under Chapter 893.  A substance must come to the attention of state lawmakers in order for a substance to be listed in Chapter 893.  Accordingly, Florida DUI laws regarding drugs are reactive.  Admittedly, there is no way to create a statute that will specifically enumerate all substances capable of impairment.  However, the law, as written, does not take into account the changing nature of the recreational pharmaceutical market.  The law addresses the issue on a substance by substance basis.  The law is ineffective against specific drugs until such time as that specific drug causes a problem.

Currently, the only way to make a substance “DUI eligible” is to place it on the controlled substance list.  However, reactively adding new substances to the controlled substance list is unnecessary if impairment wasn’t limited to controlled substances under Chapter 893.  Florida Statute 316.193 needs to be changed unless the legislature wants to go back to the drawing board every legislative session when a new concoction rolls out.

Changes Needed

No drastic changes are needed to change the current statute to a statute that evolves as legal and illegal drugs are developed and hit the market.  This is the change that I would propose:

“(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893 a controlled substance under Chapter 893 Florida Statutes or any other drug or psychoactive substance capable of impairing a person’s physical or mental faculties, or any combination of said substances, when affected to the extent that the person’s normal faculties are impaired;”

The revision, as written above, eliminates the continuous need to amend Chapter 893 Florida Statutes in order to incorporate new substances into the DUI statute.  Not only is it efficient, but it also effectively closes the over the counter loop hole in Florida’s DUI Laws.

From a defense perspective, this really doesn’t change anything.  The state still has the burden to prove that there was a substance in the driver’s system and that the substance is capable of and did impair the defendant’s ability to drive a car.  This is not a metabolite DUI statute.  The state would still have to perform lab tests on blood and urine.  The belief that this would somehow permit a DUI conviction based on the unsubstantiated belief of a police officer does not have any merit.

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