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: , , , , , , , , , , , , , , , , , , , , ,

Criminal Defense Strategy | Changing the Focus

December 14, 2014 by
DUI Investigation

DUI Investigation Phase II

Direct Examination and the State’s Evidence

Throughout the course of a criminal prosecution, the state will repeatedly draw attention to all of the things that a defendant did wrong during the string of events that led to his or her arrest.  The prosecution will only seek to elicit information from the witness that is damaging to the defendant.

Traditional Cross-Examination

The purpose of cross-examination is to test whether or not the witnesses sincerely believes that he or she is telling the truth.  Terence MacCarthy, renowned expert on cross-examination, states that the traditional method of cross-examination occurs in three phases.  1) traditional incantations; 2) begging and 3) demolish, destroy and devastate.  Defense attorneys are simply trying to get an individual to change their story when they use a traditional method of cross-examination.  Nobody ever gets what we call a “Perry Mason Moment” when they are cross examining a witness.  When that fails(begging) attorneys turn to the third step, which typically consists of acting like a…………lawyer.  Accusing an individual of lying due to hyper technical grammatical arguments and arguing over the definition of the word “is.”

Effective Cross-Examination

The traditional cross-examination is typically not effective.  The most effective form of cross-examination is to focus your cross-examination on everything that your client did right and to have the State’s witness agree with you the entire time.  In one of my more memorable jury trials the prosecutor warned the police officer ahead of time not to argue with me.  The police officer agreed with me on each and every point that I made regarding the roadside sobriety exercises.  After the officer completed her testimony and the jury was excused, the officer went to speak with the assistant state attorney who didn’t even look at her and said “Go out in the hallway and pepper spray yourself in the face!”

Example of Changing the Focus

It is usually pretty easy to focus on things that your client did right in DUI cases.  I have never seen a case where a defendant exhibited every single cue listed in the NHTSA guidelines.  Most often a defendant only exhibits 2 or 3 indications of impairment.  Read the motion which illustrates how to frame your cross examination to focus on what your client did right:

[gview file=”https://yourfloridacriminalattorney.com/wp-content/uploads/2014/12/Suppress-Phase-II.pdf” save=”1″]

The chart on page 4 lists all 13 cues that an officer is trained to detect during Phase II of a DUI stop.  In that specific case, the officer could only cite to “slurred speech” as an indication of impairment.  A defense attorney is able to effectively bury one or two cues of impairment by focusing on all of the cues that were not exhibited as opposed to arguing with the officer over the specifics of the cues he claims to have observed.  A good cross for the referenced chart would go something like this:

Q:     “You are trained to look for 13 different cues of impairment during phase II of a DUI investigation?”

A:     “Yes.”

Q:     “You are trained to listen for inconsistent responses?”

A:     “Yes.”

Q:     “***Defendant’s*** responses were consistent?”

A:     “Yes.”

Q:     “Abusive language is an indication of impairment?”

A:     “Yes.”

Q:     “***Defendant*** was civil and polite?”

A:     “Yes.”

Result = 92.4% Correct.  A instead of F!

By focusing your cross examination on the cues that your client did not exhibit, you make the one cue that your client did exhibit appear to be trivial.  In closing you can hammer home that your client did not exhibit 92.4% of the cues of impairment.  In what world is a 92.4% a failing grade?

This approach can be used throughout the case.  It works in motion practice just the same as it works in trial.  As for the sample motion in this matter, the motion forced the state to reduce the charge to a reckless driving and a withheld adjudication.

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

 

 

Filed Under: Cross Examination, DUI Lawyer, Motion Practice, Standardized Field Sobriety Tests

DUI Investigations Phase II | Face-to-Face Contact

August 30, 2014 by
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

 

 

 

 

 

Filed Under: 4th Amendment, Criminal Lawyer, DUI Lawyer, Roadside Sobriety Tests, Search and Seizure, Standardized Field Sobriety Tests Tagged With: , , , , , , , , , , ,

Roadside Sobriety Exercises | Standardized Field Sobriety Tests

July 29, 2014 by
DUI Attorney

Police officer incorrectly administering the SFST’s.

DUI Attorney Miami | Criminal Lawyer Miami

Prior to being arrested for a DUI, and sometimes afterwards, the police often ask a defendant to submit to a series of exercises in order to determine the individual’s sobriety.  These exercises are known as the Standardized Field Sobriety Tests or SFST’s for short. The SFST’s is a series of 3 tests that the National Highway Transportation and Safety Administration has determined can be used to identify impairment in an individual.  The officer demonstrates and then observes the defendant perform the exercises.  The officer is trained to identify certain indicators of impairment that can be used to establish probable cause for an arrest or to simply pile on additional evidence of impairment.

The exercises must be administered and evaluated in a standardized fashion in order to ensure an accurate result.  The tests were developed by NHTSA in conjunction with the Southern California Research institute.  There are only 3 SFST’s that are statistically correlated to impairment.  Those tests are the Horizontal Gaze Nystagmus, the Walk-And-Turn and the One-Leg Stand.   These 3 tests are to be administered the same way every single time and evaluated through the use of strict criteria limiting an officer’s discretion as to what is a “pass” or what is a “fail.”

The unfortunate reality is that the standardized administration and evaluation of the SFST’s is largely ignored by police departments and individual police officers.  The exercises are frequently administered and evaluated incorrectly leading the officer to form an opinion that can not be validated by any of the studies or research.  Additionally, officers that are not properly trained often use improvised exercises that have been found to have no correlation to impairment.  The most common of these tests are the “finger to nose” test, any test involving the alphabet and a wide variety of different counting exercises using your fingers.  Do not be mistaken, those tests are not approved to detect impairment.  Many DUI attorneys are not familiar with the concepts involved with the SFST’s.

When consulting with a criminal lawyer concerning your DUI case, you should ask the lawyer:

1)  Are you familiar with the SFST’s?

2)  What additional training have you received in the administration and interpretation of the SFST’s?

3)  Do you own a copy of the NHTSA SFST Manual?

4)  Approximately how many trials have you had where you cross examined the arresting officer concerning the NHTSA criteria?

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 additional information, please contact

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: 4th Amendment, Criminal Lawyer, DRE, Drug Recognition Expert, DUI Drug, DUI Lawyer, Roadside Sobriety Tests, Search and Seizure, Standardized Field Sobriety Tests Tagged With: , , ,