Constitutional Right to a Speedy Trial

6th Amendment Speedy Trial

“Your Honor, the State requests a continuance.”

Florida has two speedy trials rules.  The right to a speedy trial under the Sixth Amendment of the United States Constitution is made applicable to the State of Florida through the Fourteenth Amendment.  Additionally, Florida Rule of Criminal Procedure 3.191 provides additional protections in excess of those that are constitutionally required.  I am only going to focus on the Sixth Amendment right to a speedy trial in this post.

Constitutional Right to a Speedy Trial

The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”  The very first sentence guarantees a right to a speedy trial.

The term “speedy” is not precisely defined nor is it subject to a precise definition in any of the subsequent case law interpreting the speedy trial provision of the Sixth Amendment.  The trial court is required to conduct a four prong analysis of the facts surrounding the delay in order to make a determination as to whether the defendant’s right to a speedy trial has been violated.  The United States Supreme Court established the four factor test in the case of Barker v. Wingo.  The four factors are 1) the length of the delay; 2) the reason for the delay; 3) whether defendant asserted his right to a speedy trial and 4) the degree to which the defendant has been prejudiced by the delay.  When the court conducting the analysis, the court is required to assign a certain “weight” to the factor in order to conduct a”balancing test.”  The ultimate question is, do the factors weigh in favor of the defense or the state?

According to lemon law attorney, a defendant’s right to a speedy trial begins with the earliest of the following: 1) the defendant is arrested or 2) when charging documents are filed.  The first factor, delay, is relatively simple.  If there is 1 year between arrest/filing and bringing defendant to trial, the delay is presumptively prejudicial.  However, this does not always warrant relief.  The amount of the delay is simply a threshold which must be crossed in order to examine the other three factors.

The second factor is the reason for the delay.  Who caused the delay?  If the defendant caused the delay, that weighs strongly in favor of the state.  For example, Whitey Bulger knew of an indictment and fled.  He concealed his location and identity for approximately 16 years.  Since he, as the defendant, was responsible for the 16 year delay, the delay factor weighs overwhelmingly in favor of the prosecution.  If the state is the cause of the delay, the court must determine whether the state was diligent in prosecution, negligent in prosecution or  operating in bad faith.  Bad faith will almost always guarantee relief for the defendant.  Negligence weighs in favor of the defendant and the weight increases as the delay increases.

The third factor is whether defendant asserted his right to a speedy trial.  Basically, as a defendant, you have to ask for a speedy trial in order to get it.  However, if the defendant does not know about the charges, the defendant cannot be taxed for his failure to assert his right to a speedy trial.

The fourth factor is prejudice to the defendant.  The defendant, under most circumstances must make a showing that his or her defense has been impaired by the delay.  The shorter the delay, the more likely defendant will need to show specifically how he or she has been prejudiced.  The courts do not mandate that a defendant be able to specify the exact nature in which he or she has been prejudiced in cases with extraordinary long delays.  The courts recognize that memories fade, exculpatory evidence becomes unavailable and, simply, time wears away at a defendant’s ability to present a defense.

For more information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

 

 

 

DUI License Suspension | Administrative Hearing

DHSMV Forms for DUI Administrative Suspension

DUI Administraitve Hearings in Florida

DUI Administrative Hearings

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

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

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

HSMV 78065 REQUEST FOR FORMAL REVIEW

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

HSMV 72034 REQUEST FOR ELIGIBILITY REVIEW

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

HSMV 78066 SUBPOENA/SUBPOENA DUCES TECUM FOR ADMINISTRATIVE HEARING

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

For more information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

 

At Least 177 Unfiled DUI Cases in Broward County

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.

 

 

Motion to Suppress Everything for Reasons

The Omnibus Motion to Suppress

Motion to Suppress Because of Reasons

Motion to Suppress Because of Reasons

I started practicing law in Florida in 2004.  I practiced law in both Florida and North Carolina from 2007 to 2011.  I exclusively practice law in Florida now and my license no longer active in North Carolina.  The District Court in North Carolina handles misdemeanor DWI charges. If you’re looking for a Long Island traffic lawyer because of a traffic ticket, call traffic lawyer suffolk county for help with your case.  A defendant did not have a right to discovery in District Court proceedings.  In 2006, the North Carolina Legislature passed NCGS 20-38.6 which required that all motions to suppress and/or dismiss in implied consent cases be made prior to trial.  Most of the time defense counsel would receive a police report, test ticket and alcohol influence report prior to the trial.    However, there was no guarantee that you would get anything since the state was not obligated to provide anything.   This put defense counsel in a position of potentially being required to file a pretrial motion to suppress without any discovery whatsoever.    Failing to file a pretrial motion to suppress was not an automatic waiver of the right to file a motion to suppress.  Any motion to suppress made during trial was required to be based on facts not previously known to the defendant.  Whether to hear the motion to suppress was in the sole discretion of the trial judge.  In my experience, concerning DWI matters, any motion that was not made prior to trial would not be heard.

Necessity is the Mother of Invention and Innovation

The defense bar quickly came up with an Omnibus Motion to Suppress knowing that our crystal ball was unable to predict the contents of the various police reports.  In order to protect your client’s rights, you would simply check all of the boxes and submit the motion prior to or at the first hearing.  You could either amend the motion or withdraw the motion after you received discovery.  The motion has undergone significant changes since I first saw/used it.  The most recent copy that I can find was written by John Fanney and posted on the North Carolina Indigent Defense Services website.  Click here to see a copy of the motion: North Carolina DWI Motion to Suppress 

Reasons for Filing an Omnibus Motion to Suppress

Typically you would want to file a motion to suppress containing a clear statement of the facts and the legal basis to suppress the evidence.  However, that is difficult to do if, for whatever reason, you do not receive discovery.  An omnibus motion to suppress simply states various legal avenues through which evidence can be suppressed.  It does not state any factual basis for applying the legal principals asserted.  A check box omnibus motion to suppress is not necessarily lazy lawyering.  It is a means of protecting your client’s rights when you are being forced into taking a legal position before you know all of the facts.

Kane County criminal lawyer, Matthew Haiduk, publishes a blog titled “Disorderly Conduct.”  Mr. Haiduk mentions his reasoning for filing an omnibus motion to suppress stating “We’d get appointed, not even have police reports, and [the judge would] order that we would have to have any and all defense motions filed within 30 days… even if the trial was 9 months later.”  The entire post is definitely worth reading and can be found here: Setting Every Damn Case for Trial.  A copy of his omnibus motion to suppress is as follows:

[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

 

 

 

Florida DUI Laws | Changes are Needed

Florida DUI Laws

Florida DUI Laws | The War on Drugs

Florida DUI Laws & The War on Drugs

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

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

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

The Problem with Chapter 893

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

Where DUI and The War on Drugs Meet

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

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

Changes Needed

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

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

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

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

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

For more information, please contact us at:

The Law Offices of Michael A. Dye, PA, 1 East Broward Boulevard #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286