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 and also you could get a Dui Lawyer Orlando to help you rest your case, so everything is easier.  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

Broward DUI Conviction Rate 56%

Florida DUI Conviction Statistics

Data Shows that DUI Cases can be Beat

Can I Beat this DUI Charge?

That is a very typical question for dui defense attorneys. Most potential clients feel that it is impossible to win a DUI case. Statistics say otherwise. Your chances of winning your DUI case depend exclusively on the facts and circumstances surrounding your arrest. However, some counties seem to be a bit for defense friendly than others. The way I typically approach the situation is to tell the potential client my honest opinion based on the information that has been provided by the client. Keep in mind that sometimes the information provided by a client is not the most accurate. It is simply human nature to try to present your case in a fashion that makes you look the best. I’ve never cited to conviction statistics in a client meeting because I did not know the exact figures. I probably still won’t after today because it can set unrealistic expectations.

What do the statistics say?

The statistics actually paint a pretty rosey picture for a DUI defendant in Broward County, Florida. The Florida Department of Highway Safety and Motor Vehicles keeps records on how many DUI citations were issued in a county and keeps records on how those DUI citations were resolved in court. Much to my surprise, there were significant statistical differences in counties throughout the state. So while your odds might be pretty good in Fort Lauderdale, they might not be as good in Ocala. Visit the FLHSMV Uniform Traffic Citation Report to see the reports for the entire State of Florida.

Please keep the following in mind while reviewing the statistics:

  • There will be a certain number of DUI charges that are unresolved at the end of each year due to continuances and the date of the offense;
  • The data below is from year 2013 in order to allow additional time for cases to be resolved and reflected in the annual data;
  • The data is limited to three counties. Broward County, Miami-Dade County and Marion County;
  • The term “guilty” does not mean guilty of DUI;
  • “Guilty” as used below means a finding of guilt as to DUI, another traffic criminal matter charged with the DUI or a reduced charge from the DUI;
  • For example, if an individual is charged with DUI and he or she takes a plea to reckless driving, that still counts as a guilty.  This inflates the amount of individuals who are found “guilty” without disclosing how often the state reduces the charge.

Broward County DUI Arrest Data 2013
TOTAL ARRESTS:  3974
TOTAL PENDING DISPOSITION: 581
TOTAL DISPOSSED: 3393
TOTAL GUILTY: 1885 (56%)
TOTAL NOT GUILTY: 48 (1%)
ADJUDICATION WITHHELD BY JUDGE: 131 (4%)
TOTAL DISMISS OR NOLLE PROS: 1328 (39%)

Palm Beach County DUI Arrest Data 2013
TOTAL ARRESTS: 3034
TOTAL PENDING DISPOSITION: 969
TOTAL DISPOSSED: 2065
TOTAL GUILTY: 1343 (65%)
TOTAL NOT GUILTY: 31 (2)
ADJUDICATION WITHHELD BY JUDGE: 5 (<1%)
TOTAL DISMISS OR NOLLE PROS: 684 (33%)

Marion County DUI Arrest Data 2013
TOTAL ARRESTS: 915
TOTAL PENDING DISPOSITION: 31
TOTAL DISPOSSED: 884
TOTAL GUILTY: 737 (83%)
TOTAL NOT GUILTY: 10 (1%)
ADJUDICATION WITHHELD BY JUDGE: 6 (1%)
TOTAL DISMISS OR NOLLE PROS: 131 (15%)

Statistical Interpretation

The Florida Department of Highway Safety and Motor Vehicles has this information readily available for the years 2011 through 2014. Over the course of those four years, the annual arrest total by county varies, but not significantly. However, the percentages remain very close to the same in all categories.

Why?

Why does Marion County, Florida have an 83% conviction rate? Why does Broward County, Florida show a conviction rate of 56%? There are several plausible explanations for the variations between counties. Are conviction rates higher in smaller, more conservative, rural areas due to the composition of the jury pool? Are larger counties precluded from devoting substantial resources towards DUI enforcement due to other prosecutorial priorities? The statistics don’t tell us why.

All that we know, based on statistical data alone, is that Broward County has a 56% conviction rate and that includes all of the convictions for lesser offenses such as reckless driving. Marion County has an 83% conviction rate. The statistics above clearly show that DUI’s can be beat and criminal defense attorneys are winning DUI cases on a regular basis. Hiring a criminal attorney with substantial DUI experience can have an enormous impact in the outcome of your case. Make no mistake about it, the odds are still stacked against you, but a good DUI attorney, you can level the playing field.

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. When you want your own business website, visit web design palm beach.

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. When you are not a criminal and want a human resource manager for your business, pick Salopek consulting Ottawa. They can help you out so visit them now.

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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

Right to Trial by Combat | Bad Idea

Trial by Combat

Trial by Combat | R.I.P Rowdy Roddy Piper

“He Who Represents Himself has a Fool for a Client”

The quote above is attributed to the 16th President of the United States, Abraham Lincoln. It might surprise you, but almost every lawyer hires another lawyer to represent him in any type of legal proceeding. Notwithstanding our 6th Amendment rights, when faced with real estate closings, traffic tickets, divorce and yes criminal defense, attorneys typically hire other attorneys. There are numerous reasons why a lawyer would hire another lawyer to handle his/her case.   Initially, lawyers recognize when their legal issue is outside the scope of their own expertise. However, the main reason that most attorneys would never represent themselves is because we know that we lose the perspective that makes our services valuable. We know that litigation gets personal. An independent attorney acts as a buffer between our bad ideas and the court. Basically, we need somebody to tell us “no” and/or to shut up. Some noteable self representation failures include:

Trial by Combat

The most recent self representation failure involves an attorney, representing himself, filing a Motion for Trial by Combat.   The motion is relatively well written.  The argument is based on common law.  For simplicity, common law is the law that the United States inherited from England.  Most states have some type of enabling legislation stating something similar to the following: “The common law of England as in effect July 4, 1776 shall be the common law of the State of_______.”

The basic argument is that trial by combat was legal under the common law of England as of July 4, 1776.  Trial by combat was later made illegal in England, but New York has not specifically prohibited the practice.  Accordingly, the attorney, representing himself, demanded that he be afforded his right to trial by combat.

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The motion, by itself, is a glaring example of why an attorney should not represent himself.  No reasonably competent attorney would file this motion on behalf of their client work injury lawyers.  For the author’s sake, I hope that the judge hearing this case has a very good sense of humor.  If the judge doesn’t find this funny he might be in for a rough ride.

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

 

What is Flakka? | The Truth About A-PVP

Flakka

Not Even Once

Is Flakka as Dangerous as it Sounds on the News?

Yes and no, but mostly yes.  Let’s start with what exactly flakka is. Flakka is alpha-pyrrolidinovalerophenone, but let’s call it A-PVP. A-PVP is a cathinone. Flakka is a Schedule I Controlled Substance under Florida Statute Chapter 893.03 which means that there is no currently accepted medical use for it and the potential for abuse is high. It is also a Schedule I controlled substance on the Federal Register which has essentially the same criteria. The terms A-PVP and flakka will be used interchangeably throughout.

Disclaimer:

There are some of you who may read this and can speak nerd/science jargon better than I can.  Not many, but some.  You will inevitable go back onto a drug bulletin board saying that I don’t know what I am talking about and spreading misinformation, we should be having a consultation.  Delivering information that it not hyper-analytical so it can be processed by the public is neither ignorant or misleading.  While this might not be PhD level chemistry or pharmacology information, it was not intended to be.  The only point I am trying to get across is DON’T USE THIS CRAP!

Misinformation on Flakka

The only stories that you hear on the news are the truly bizarre incidents.  So keep in mind that the local news only shows stories that sensationalize the topic. You will never hear “BREAKING NEWS AT 6 O’CLOCK! High School Student Kevin Smokes Flakka and Says it was Pretty Cool, but Wouldn’t do it Again!” Instead you will hear “BREAKING NEWS AT 6 O’CLOCK! MAN ON $5 DRUG THAT CAUSES INSTANT INSANITY IMPALES NUTSACK ON FENCE POST! ZOMBIE APOCALYPSE IS UPON US!”

Flakka and the current flakka hysteria is similar to bath salts and how bath salts were viewed and portrayed just a few years ago. Remember when bath salts were going to turn people into flesh eating zombies? There was the Miami cannibal attack that turned out to be a case of “this dude is crazy” rather than bath salt intoxication? Yet, that didn’t stop the bath salt hysteria.  There is also my personal favorite, a man in Pennsylvania got out of his car, ran down the street into an occupied residence(thereby committing a felony), was chased out of said house and jumped onto a police car causing damage to the police vehicle. Why? Because he was high on bath salts, believed his car was melting and that he was being chased by electricity.

So enjoy the news for what it is.  It is not an accurate depiction of the ordinary experience.  Watch this video and take a look at the recent “newsworthy” flakka incidents in South Florida.

The Sun-Sentinel is an extremely reputable and reliable news source in South Florida. What did it show?  A guy running naked in the middle of an intersection, a guy trying to break into the police department, a guy diving over a spiked fence with no regard for the safety of his testicles, some guy running around naked on his roof and some truly despicable person that attacked an old lady in her home when he was high.  I’m not going to bother to look, but chances are that guy had a violent history to begin with.  So the media’s portrayal of flakka is skewed.

Q: Ok, so if we are being mislead and Flakka isn’t that dangerous, it is OK to try it right?

Let’s Hear from Broward County Sheriff Scott Israel

“In my 36 years in law enforcement, I’ve never seen a drug this dangerous.”

Q: “I know, but he is the Sheriff and he has to say drugs are bad. Is he exaggerating?”

A: No. He is not. Flakka really is that bad.

Anybody who knows me knows that I wouldn’t say that if I didn’t truly believe it. I’ll spare everybody the speech on unregulated Chinese laboratories and quality control. The manufacturers appear to be doing a fantastic job. Make no mistake about it, I firmly believe that A-PVP and its predecessor MDPV are two of the most, if not the most, addictive substances on the face of the planet. While recovery from stimulant addiction is not nearly as debilitating as opiate addiction, the length of time from first use to addiction is faster. Cocaine is widely regarded as the drug with the quickest path to addiction. I disagree. In my experience concerning, flakka and MDPV, users go from experimenting to full blown addiction in a matter of days. While flakka won’t eat your skin away like homebrew desomorphine, it will still destroy your life. Quickly.

In order to understand why flakka is so dangerous you first need to understand the different types of commonly used recreational stimulants and how those stimulants affect your mind and your body. There are four(4) primary types of recreational stimulants. There is cocaine, amphetamines, methylphenidate and cathinone’s. Each of those classes has what are called analogs, isomers and/or derivatives which are structurally similar and have similar effects.  We are going to ignore methylphenidate and its related compounds for this discussion. For some reason, there has never been much in the way of recreational use of cocaine analogs. However, they are freely available and, for the most part, are not scheduled controlled substances. For amphetamines there are different types of amphetamines such as methamphetamine, dextroamphetamie and 4F-amphetamine. There are literally hundreds of amphetamine analogs that are not scheduled and legally available. There is also a wide variety of substances that fall under the cathinone variety such as MDPV, BK-MDMA, Mephedrone, Methylone and even the antidepressant Wellbutrin. Some legal, some not.

How Stimulants Work

All stimulants work in essentially the same way. Stimulants increase the amount of three neurotransmitters in your brain. Those neurotransmitters are dopamine, serotonin and norepinephrine. Dopamine is believed to be the primary neurotransmitter affected by stimulants. Your body and mind associate dopamine with pleasure. The more dopamine that is present in your synapsis, the more pleasurable the activity.  When you are taking part in a pleasurable activity your brain naturally releases more dopamine into your synapsis thereby making the experience pleasurable. As the pleasurable activity ceases to exist or ceases to take place the dopamine is reabsorbed and you go back to a normal mood.

When it comes to stimulants, there are two ways to increase the amount of dopamine in your synapsis. You can produce more thereby flooding the synapsis with dopamine.  This is the way that amphetamines operate. Think of filling up a bucket with water. The bucket is the synapsis and the water is the dopamine. When you take methamphetamine, dextroamphetamine or any other type of amphetamine that chemical compound is telling your brain to pump more dopamine into the synapsis. (Note: I know that ALL amphetamines don’t necessarily act like this. Ecstasy is in the amphetamine class and it releases more serotonin than dopamine, but don’t be so picky and just humor me on this one.)

The second way to increase the amount of dopamine in your synapsis is by not allowing it to leave. Normally dopamine is released into the brain, does its job and is reabsorbed. Cocaine prevents dopamine from being reabsorbed. That makes cocaine a dopamine reuptake inhibitor. Cocaine will let dopamine in but will not let it out. Cocaine forces dopamine to remain in the synapsis and accumulate.

Synthetic Cathinones

There are numerous types of synthetic cathinones and not all of them work the same way. Certain synthetic cathinones, such as methylone, have a more serotogenic effect(huggy, kissy, cuddly) than a dopamine effect. However, the compounds related to pyrovalerone such as MDPV and A-PVP appear to focus primarily on dopamine and norepinephrine.  The increase in norephinephrine is an important concern to law enforcement as norepinephrine provokes the “fight or flight” reaction in people. An increase in norepinephrine can lead to aggressive, hostile, violent behavior and purported acts of superhuman strength in agitated users.

Here is Why Flakka is so Dangerous

A-PVP, like its chemical cousin MDPV, acts as both a dopamine/norepinephrine release and reuptake inhibitor simultaneously. If using cocaine is compared to standing in a rainstorm for 15 minutes smoking A-PVP is the equivalent of standing and a thunderstorm for four hours. Flakka increases both dopamine and norepinephrine by pumping more dopamine and norepinephrine into the synapsis while at the same time preventing it from leaving.  While cocaine is a short acting dopamine reuptake inhibitor, flakka is a longer acting reuptake inhibitor.  While dopamine levels might not rise quite to the level that would be associated with cocaine use, the heightened levels of dompaine and norephinephrine, sustained for hours on end, can induce stimulant psychosis and negative physical side effects quickly.  Due to the intensity of the drug, the compulsion to redose is extreme and tolerance develops very quickly. The prolonged heightened levels of norepinephrine quickly leads to increased heart rate, increase body temperature, grinding teeth and the other negative physical side effects.  Onset of stimulant psychosis develops quickly due to several factors including, but not limited to, compulsive redosing, the sustained large amounts of dopamine in the synapsis and sustained high levels of norepinephrine resulting in decreased sleep.  It is not uncommon to see stimulant psychosis appear within a matter of 2 days with MDPV or flakka.

This is a very basic overview. While you might not run down the street naked and get hung up on a fence by your crotch, even short term use can cause permanent neurological damage. If you are not familiar with the Montana Meth Project. Take a look at their videos. Same goes with flakka. Not even once.

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