Alternative Dispute Resolution in Criminal Defense

September 16, 2014 by
Motion for Fist Fight

“You wanna take it outside?”
UH-OH! LAWYERS GETTING READY TO FIGHT!

With every professional services industry there is the “old way” of doing things and the “cutting edge.”  As technology and general knowledge advances, those who do not adapt oft get left in the dust.  The recent economic caused both large and small law firms to examine their business models and adjust to eliminate inefficiencies by use of technology or simply cutting staff with IP attorney in Chicago checking them out.  Motion practice is very much the same.  An attorney has to stay up to date with new case law and new legislation.  An attorney should always be on the lookout for ways to improve his or her practice and/or the system in general, read about it here to learn more about DUI lawyers.

Alternative dispute resolution frees up court resources by handling contested legal matters outside the courtroom.  Mediation and binding arbitration are commonly used means of alternative dispute resolution in civil law.  Even in family law, which are some of the most contentious cases, mediation settles most every case.  Outside of diversion programs, there is no means of effective alternative dispute resolution in criminal law.  That is not to say that this area has never been explored or attempted by defense counsel.  One such attempt is documented below.  We would like to commend the criminal defense attorney for being a forward thinking advocate for the use of alternative dispute resolution in criminal cases.

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Criminal defense 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 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 Tagged With: , , ,

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: , , ,

Drugged Driving | DRE | Drug Recognition Expert

July 15, 2014 by
DUI Lawyer DRE

Detecting DUI Drug Impairment

Drug Recognition Expert Testimony

The Drug Recognition Expert program was developed by the Los Angeles Police Department in 1979. With the growing rise in illicit drug use prosecutors were often not able to successfully prosecute an individual for DUI if the defendant was not impaired by alcohol. The DRE program was designed to assist police officers in determining the type of substance which is impairing a driver. The Drug Recognition Expert is allowed to testify as to his findings as an expert witness. This means that he is allowed to give an “expert opinion” as to what substance impaired the driver. DRE testimony in and of itself may be useful to the prosecution in certain cases where impairment is clearly from a certain controlled substance. An example would be an empty bottle of 90 xanax in the driver’s name filled 30 minutes before the time of the stop which is laying in the center console while the driver is passed out at a stop light. However, it doesn’t take an expert to reach a conclusion in such a scenario. Drug recognition expert testimony is most powerful in conjunction with scientific testing of blood or urine. DRE testimony has glaring holes even in conjunction with the testing of biological fluids.

Not All Judges are Buying It

Several courts have held that the 12 step drug recognition expert protocol does not pass the Frye Test as it is not widely accepted by the scientific community. As such, certain courts will not permit a drug recognition expert to testify as to his findings.

For Good Reason

One particular case arising out of Maryland in 2012 specifically highlighted the problems with the DRE protocol. Initially, 12 step examination of a suspect is not standardized. This means that a drug recognition expert does not have to perform the 12 step examination on every single individual he investigates. The DRE has the unfettered discretion to utilize the steps that he wants and to discard the remaining. However, the 12 step process is “preferred.” A DRE will not change his opinion even if scientific testing of a biological fluid reveals no impairing substances. The rational provided is that there are limitations on what laboratories can and cannot detect. While this is true, the proponents of DRE testimony and its accuracy would have the court and jury believe that a non-standardized optional 12 step evaluation conducted by a non-medical professional which is not corroborated by any other evidence is somehow more sophisticated and advanced than the current scientific techniques used by the crime laboratories.

In its opinion, the court further elaborated that the DRE training program improperly classified certain drugs into single categories, misstated the physical and mental effects of certain drugs. The court excluded the DRE testimony ruling that any opinion based on the DRE training given at the time was specious at best.

Drug Recognition Expert Ruling

Hire an Attorney Who is Experienced in Defending DUI Drug Cases

Your choice of an attorney can make or break your case.   Especially when your case concerns scientific and quasi scientific evidence.  This is a complex area where science meets law and there are not many attorneys that have any additional training or experience to handle these types of cases.  You might not remember whether you were examined by a DRE under certain circumstances.  Accordingly, if you are arrested for a DUI by drug impairment, you should always consult an attorney who is familiar with the science behind the drug testing and the DRE protocol.

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: DRE, Drug Recognition Expert, DUI Drug, DUI Lawyer Tagged With: , , ,

Police Must Have Warrant to Search Cell Phone Data

June 30, 2014 by

POLICE CAN NOT SEARCH YOUR CELL PHONE WITHOUT A WARRANT (WITH EXCEPTIONS AS ALWAYS)

On June 25, 2014, The Supreme Court of The United States issued its opinion in the case of Riley v. California.  The court combined the cases of Riley v. California and United States v. Wurie as the two cases presented identical issues.

Both cases involved the police searching an individual’s cell phone after the individual had been lawfully placed under arrest.  The police did not just physically search the cell phones, but rather searched the data inside the cell phones in furtherance of their investigation and in order to find potentially incriminating information.  In the Riley matter, the search of the cell phone revealed that the defendant was a member of a street gang and also involved in a shooting.  Riley was convicted of the shooting and received a sentencing enhancement for being a member of a street gang based off of the information police obtained from his cell phone.  In the Wurie matter, the police accessed the call log on the defendant’s telephone and traced certain numbers with suspicious activity.  As a result, Wurie was charged and convicted of several drug and firearms offenses.

The Fourth Amendment of the United States Constitution protects an individuals right to be secure in their person and property.  It prohibits searches without a warrant signed by a neutral and detached magistrate specifically stating the items to be found and where the items are to be found.  There are limited exceptions to the “warrant requirement.”  A warrantless search, and the information derived therefrom, is only admissible if the warrantless search falls within a specific exception to the warrant requirement.

One specific exception to the warrant requirement is “search incident to lawful arrest.”  However, the search is limited to the area within the arrestee’s immediate control.  The search is justified for the purposes of officer safety and to prevent the destruction of evidence.  When asked to extend the search incident to lawful arrest to cellular phones, the Supreme Court ruled that a search of the digital information on the phone does not serve the government’s two purposes for warrantless searches.  The search of the digital information on the phone is not justified as a means to protect officer safety.  While it could possibly be argued that there is a potential for the destruction of evidence, that is balanced against the individuals privacy interest which, when it comes to the search of the data on a phone, is significantly greater than a brief physical search.  Nevertheless, the Supreme Court found that the data stored on cell phones does not present a threat to officer safety or a potential for the destruction of evidence.

While the digital data stored by a cell phone does not present any imminent threat to an arresting officer’s safety, the officer is still free to examine the physical features of the cell phone in order to ensure that it cannot be used as a weapon.  While the destruction of evidence via “remote wiping” is certainly a possibility, the Supreme Court does not rule out the ability of the police to disable a telephone in order to prevent remote wiping and secure the scene.  The court also provides for the police to search an individual’s telephone without a warrant under the exigent circumstances doctrine.

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, Search and Seizure Tagged With: ,