At Least 177 Unfiled DUI Cases in Broward County

May 20, 2015 by
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.

 

 

Filed Under: Blood Test, Criminal Lawyer, Discovery, Drugged Driving, DUI Drug, DUI Drug, DUI Lawyer, Metabolite DUI, Search and Seizure, Standardized Field Sobriety Tests Tagged With: , , , , , , , , , , , , , , , , , , , , ,

Motion to Suppress Everything for Reasons

April 12, 2015 by

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

 

 

 

Filed Under: 4th Amendment, 5th Amendment, 6th Amendment, Criminal Lawyer, Discovery, DUI Lawyer, DUI Legislation, Motion to Suppress, Omnibus, Probable Cause, Reasonable Suspicion, Search and Seizure Tagged With: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

DUI Marijuana | Urinalysis Cross Examination

March 12, 2015 by
DUI Marijuana Cross Examination

Urine test positive for THC?

This last week I had the opportunity to “pinch hit” in a jury trial. My job was to cross examine the State’s 3 toxicology witnesses. If you just read the police reports, you would think that the prosecution was walking into a “slam dunk” type of a case. You had an individual who submitted to an Intoxilyzer 8000 breath test and blew a .074. While right under the legal limit of .08, the client purportedly admitted to having “just smoked a bowl of weed” when he was asked to submit to a urine test. So the State decided to take the case to trial based on the poor driving pattern, bad roadsides(defendant is physically handicapped) and low breath combined with an admission of drug use.  It was critical for the state to establish that the defendant was under the influence of marijuana at the time when he was driving the car since the breath was below a .08.  The state called 1 chemist and 2 forensic toxicologists in an effort to do just that.

Initially, I would like to thank Gary Ostrow and Melanie Batdorf for allowing me to co-counsel on this case.  They did a fantastic job handling the case and set me up for a great shot.  So I give all credit to them for the heavy lifting.

Witness I, Laboratory Chemist | Not an Expert Witness

The first witness for the State was an individual with a bachelor’s degree in Chemistry with over 30 years of forensic science laboratory experience.  The state did not offer her as an expert.  She testified that she conducted a test on the urine sample provided by the defendant which is known as an “IA” or “immune assay” test.   On while being questioned on direct examination by the State she testified that the urine sample provided by the Defendant tested “positive for THC.”  THC is the principal psychoactive compound found in marijuana.  While this answer is not an outright lie, it is certainly not the “whole truth” that witnesses are expected to provide.

On cross examination, I immediately asked the witness if the test she performed detected the presence of THC, an active metabolite of THC or an inactive metabolite of THC.  The answer to this question is crucial because if the state can prove THC or an active metabolite, the chance of a guilty verdict increases substantially.  Only THC and its active(psychoactive) metabolites are controlled substances under Florida Statute Chapter 893.  Accordingly, if the test only detect an inactive metabolite of THC, it is insufficient to prove impairment.  The chemist with over 30 years laboratory experience stated that she did not know whether the test identified THC or another substance indicative or prior exposure to THC a/k/a as a metabolite.  When I began to question her about the difference between active and inactive metabolites, she stated that I would have to ask her supervisor because she didn’t know.  However, she did state that the manufacture’s box containing the test kit said THC on the outside of it.

It is disturbing that the chemist did not know what a “positive” result indicates.

Witness II, Forensic Chemist, Expert Witness

The second witness for the state was a forensic chemist who performed the GC/MS and TLC test on the urine sample.  Again, on direct examination, the forensic chemist testified that the defendant tested positive for cannabis in the TLC test only.  The state elicited more specific testimony wherein the witness stated that cannabis is the active substance in marijuana.

This witness was qualified as an expert witness.  Accordingly, the first thing that I did was go back and determine what substance was detected by the prior IA test performed by the first witness.  She testified that the IA test could not detect THC or any active metabolites in THC.  Rather, she testified that the substance detected by the IA test was 11-nor-9-Carboxy-THC which is an inactive metabolite indicating prior exposure to THC.  She went on to state that the TLC test was also incapable of detecting THC or active metabolites of THC.  She conceded that the TLC test simply confirmed the presence of the inactive metabolite 11-nor-9-Carboxy-THC.

There were two key points to this cross examination that put the nail in the state’s proverbial coffin.  First, she testified that there were no impairing substances detected by the laboratory.  Second, the witness testified that the laboratory has the ability to detect the presence of THC and the active metabolites of THC, but they did not and do not perform the test necessary to do so.

Witness III, Forensic Chemist, Supervisor, Expert Witness

The third witness was the supervisor who signed off on the toxicology report.  However, he did not perform any of the laboratory analysis.  From the laboratory perspective, he was not a very useful witness from the state.  However, having worked with him before, I knew that he was the most knowledgeable regarding the physical and mental effects of drug use.

Once again, this witness testified that the defendant tested positive for cannabis and did not differentiate between impairing substances and inactive substances.  On cross, he too admitted that there were no psychoactive substances detected in the sample.  He then went on to testify as to how to identify the impairing effects of cannabis and the proper use of a urine drug test in a DUI case.  Unfortunately for the state, none of the indications of cannabis impairment were present in the video.

Summary of the Testimony

  • All three witnesses for the state initially, on direct examination, testified that the defendant tested positive for an illegal, psychoactive chemical substance capable of causing impairment alone or in conjunction with alcohol;
  • All three state witnesses changed their testimony on cross examination.  One stated that she didn’t know what a positive result actually indicated.  The second two witnesses admitted that the defendant did not test positive for any illegal and/or psychoactive chemical substances;
  • There was nothing from the toxicology results that could indicate that the defendant was impaired by anything;
  • At the very most, the state proved that the defendant MAY have been exposed to THC within a 30 day period prior to the day he was arrested for DUI.

Every Lie Contains Some Truth

11-nor-9-Carboxy-THC. is an inactive secondary metabolite of THC.  When the inactive metabolite is detected in the urine, the is a high probability that an individual has been exposed to THC at some point prior to the test.  So did the defendant test positive for THC?  Obviously, the state’s answer is “kinda”, but my answer is no.  There is a very big difference between testing positive for THC and testing positive for an inactive secondary metabolite of THC.  One is a controlled substance under Chapter 893 Florida Statutes.  The other is not.  The controlled substance can be used as a basis for a conviction, the inactive metabolite cannot.  In this case, the urine test offered absolutely nothing indicative of impairment at the time the defendant was driving the vehicle.

Despite all of the above, state experts across the country continue to provide testimony that is misleading at best.  It is most certainly not the whole truth and nothing but the truth.  Testimony of this sort is being offered in courtrooms across the country every single day and every single day innocent individuals are being convicted based on this type of evidence.

Other sources of information:

http://www.thetruthaboutforensicscience.com/

http://www.jdsupra.com/legalnews/gcms-evidence-attacking-and-defending-68604/

For more information, please contact us at:

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

Filed Under: Criminal Lawyer, Cross Examination, DRE, DRE, Drug Recognition Expert, Drugged Driving, DUI Drug, DUI Drug, DUI Lawyer, Marijuana, Metabolite DUI, Urinalysis Tagged With: , , , , , , , , , , , , ,

Florida DUI Laws | Changes are Needed

February 17, 2015 by
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

Filed Under: Criminal Lawyer, Drugged Driving, DUI Drug, DUI Drug, DUI Legislation, Florida Legislature, Florida Senate, Legislation, Metabolite DUI, Urinalysis, Zolpidem Tagged With: , , , , , , , , , , , , , , , ,

Police Body Cameras vs Video Taping the Police

February 6, 2015 by
Video Taping the Police

Trust the police to turn in their videos.

Florida Senate Bill 248 | Recording Law Enforcement Activities

The “Police and Citizen Protection Act,” also known as, Florida Senate Bill 248 was introduced on January 7, 2015 by Senator Christopher Smith of Fort Lauderdale, Florida.  If passed, the bill would require all law enforcement officers assigned “primarily” to patrol duties to be equipped with Promnico body cameras.  The bill would also exempt the recordings from Florida Statute 934.03 which, amongst other things, regulates interception of oral communications.

Interception and Disclosure of Certain Communications

Florida is a two party state with regard to recording oral communications.  What that means is that all parties involved in a conversation must give consent to recording the conversation.  Police officers in Florida have charged people with violations of 934.03 for recording police activity without the consent of the police officer.  I do not believe that a specific additional exemption is necessary because video taping by law enforcement for the purposes of an investigation is already exempt from the interception and disclosure statute.

In theory, both law enforcement and citizens are protected by video taping police citizen encounters.  Senator Smith recognizes this and aptly titled the bill the “Police and Citizen Protection Act.”  In theory, the police are protected from false allegations of misconduct and the citizen has access the evidence needed to prove misconduct.  A good police officer doesn’t have a reason to be afraid of cameras.  This bill is based on the assumption that all police officers are honest and will not manipulate the body camera in order to cover up any misconduct.  If all cops were good, this bill would accomplish its purpose.  So why do we need this bill in the first place?  THAT’S RIGHT!  BAD COPS!  This bill relies on the the honesty and integrity of  the dishonest individuals that it targets.

Theory vs Reality

As a criminal defense attorney, there are a lot of times when I want to see a video from a police officer’s in car camera.  The video doesn’t lie.  I am able to obtain the video without incident in an overwhelming amount of the cases when I request it.  However, there have also been many occasions when I could not get a video.  It is pretty easy to tell ahead of time when you are not going to be able to get a video.  Unexplained bumps and bruises.  A narrative of a driving patter that defies the laws of physics.  Many times video cameras do not function correctly when a defendant consents to a search.  The disappearance of video tape wherein the defendant allegedly consents to the search of a vehicle, which he knows is loaded down with an enormous amount of dope, is a mysterious phenomena that occurs across the nation.  Another strange phenomena is that cameras malfunction at a higher rate in low income neighborhoods.   I have heard ridiculous excuses including, but not limited to, “the video you requested is for internal affairs purposes only” or “we never received a copy of your request within the retention period so we deleted it” or “it is not required to provide to you in discovery and you don’t have the authority to subpoena it.”

Florida Senate Bill 248 recognizes the need for the police to record their activities for the protection of both the police and the public.  However, it relies on the police to maintain those videos.  This bill is a good start, but it does not go far enough.  Additional issues that should be addressed include retention times, a defendant’s right to the video and safeguards to cut down or eliminate tampering.

Better Yet, a Simple Solution

Introduce a bill that makes it clear and unequivocal that citizens have an absolute right to film the police so long as it does not obstruct the officer(s) in carrying out his or their duties.  Provide citizens the same exemption to Florida Statute 934.03 that is being provided to the police.  By making it clear that citizens have the right to video tape officers, you are not placing all of your trust in the same people whose integrity is being called into question.

For more information, please contact us at:

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

Filed Under: Criminal Lawyer, Florida Senate, Legislation Tagged With: , , , , , , , , , , ,