Greetings! I write again from the home of The Florida D.U.I. lawyer. Today the topic is actual physical control (APC) in a D.U.I. case. What is actual physical control you ask? Actually, some judges have become confused over this issue!
So you thought that you could only be convicted of D.U.I. if you were actually over .08 or impaired while actually driving an automobile? Surprise, surprise you are wrong. In the State of Florida a driver maybe convicted of D.U.I. if driving or in actual physical control of a vehicle.
How does actually physical control arise? In a variety of different ways! As your Florida D.U.I. Lawyer I have encountered cases where the officer arrives at the scene and discovers the defendant asleep behind the wheel, either with the engine running or not. I have had cases where the defendant had passed out while waiting on the traffic light to change. You see actual physical control is where the defendant has the ability to readily exercise control over the vehicle. Like asleep behind the wheel and the car keys are in the ignition. Or, lying down asleep in the front seat and the keys are in the ignition.
I recently had a case in Palm Beach County, Florida where the defendant had actually been seen in a bar by the cop. The cop had actually engaged her in a conversation that would later be described as incoherent. A cab was called for her and she refused to take it. The cop had went to his car and waited for her to exit which she obligingly did. As she walked across the parking lot to her car the cop noticed she was staggering. Pulling out her car keys she opened the door and sat down sideways in the car with her feet on the payment. She did not insert her keys in the ignition. The cop walked up and arrested her. The intake division of the State Attorneys’ Office of the 15th Circuit (that’s Palm Beach County, Florida) filed a “no-file”, which essentially means there will not be a prosecution. However, as far as the Bureau of Administrative reviews was concerned she was in actual physical control and up held her license suspension. Oh well, better to have a license suspension than be prosecuted for a D.U.I. or worse yet to have a D.U.I. conviction.
If the car itself is inoperable and the defendant had not operated the car prior to it’s becoming inoperable then this may be a valid defense to the D.U.I. charge. Even if the defendant has pulled the car off of the roadway, turned off the automobile and then proceeded to sleep it off, he maybe arrested and prosecuted for D.U.I, if a cop stumbles upon him. The issue of actual physical control is one to be decided by a jury and not by a judge unless it is a non-jury trial.
Should you wish to discuss your Palm Beach County, Florida arrest or life, the universe and anything you may reach me at 561-616-8700. Please feel free to visit my blog at http://floridaduidefense.blogspot.com for more informative articles or my website at www.floridaduilawyer.com.
Copyright 2008, by Timothy Foster. All rights reserved.
Friday, June 20, 2008
Sunday, June 15, 2008
U.S. Has 7.2 Million Under Criminal Supervision!
I wish to digress for the purposes of this article from being your Florida D.U.I. Lawyer to that of simply a lawyer. Recent statistics suggest that in the United States of America there are roughly 7.2 million individual under supervision either in state or federal prison, county jails or on probation or parole. In a country of approximately 300 million this would mean that you either know someone under this supervision or you know someone who has a family member or friend under supervision.
Why the dramatic increase in incarceration rates? Both the US Congress and the individual state legislatures pass more and more laws designed to incarcerate individuals for longer terms of imprisonment. Another reason is that theses elected officials in their rush to look and act tough on crime are increasingly stripping judges of sentencing discretion. Example, I bet most of you think that President Bill Clinton was a liberal. Did you know that under his presidency, black men were lock up at a faster rate and for longer periods of time than at any other point in the history of the United States!
What do you think it means? Well, for one thing it means that law enforcement almost always gets the increased budget that it wants (similar to the U.S. defense department). This is because law enforcement is always screaming that more money is needed to keep the population safe (similar to the defense department or Fatherland Security) from criminals. It also means that essentially a permanent sub- class is being created! In this day and age when an individual leaves prison (same with a county jail or parole and some probationers) he leaves with a record. This means that when a job search is conducted and application is filled out for employment the potential employer becomes aware of the status. How much weight will a potential employer actually give to an individual with a conviction on their record? In all probability the employer will hold it against the individual and not give the person a chance. So consider a person is released, perhaps without a support system in place, he is unable to gain employment, and since he is unable to gain employment he is unable to feed himself or unable to afford a place to live. What do you think he will do next? Do you think it is possible that a criminal act might be committed?
Another reason for the increase in prison population is that this country continues to build prisons and county jails at a rapid pace. Often the contracts to build and run a jail or prison are handed out to private companies. So millions upon millions in taxpayer money are handed out to build jails and prisons that maybe we don’t need!. So when the prisons and jails are finished what then? Well you have to fill them up! There are actually counties in the State of Florida where the main source of employment is the prison system! It is the old use them or lose them argument!
It just seems to me that maybe it’s time for another approach. Maybe something new needs to be tried. Maybe if more money was spent on education and job training and job creation. For example, while in prison the offender earns a Microsoft certification certificate and upon release the state has contracts with private employers to employ the offender for up to two years. At the end of two years an evaluation is performed by both the private employer and the State to evaluate the performance of the offender. Do you think that maybe the recidivist rate may go down? It just seems that a country that can spend 12 billion dollars a month on a meaningless conflict can find alternatives to the present system.
If you wish to discuss your arrest or life, the universe and everything else you may reach me at 561-616-8700. Please feel free to visit my blog at http://floridaduidefense.blogspot.com. My website is www.floridaduilawyer.com and my email is duitim@floridaduilawyer.com.
Copyright 2008, by Timothy Foster. All rights reserved!
Why the dramatic increase in incarceration rates? Both the US Congress and the individual state legislatures pass more and more laws designed to incarcerate individuals for longer terms of imprisonment. Another reason is that theses elected officials in their rush to look and act tough on crime are increasingly stripping judges of sentencing discretion. Example, I bet most of you think that President Bill Clinton was a liberal. Did you know that under his presidency, black men were lock up at a faster rate and for longer periods of time than at any other point in the history of the United States!
What do you think it means? Well, for one thing it means that law enforcement almost always gets the increased budget that it wants (similar to the U.S. defense department). This is because law enforcement is always screaming that more money is needed to keep the population safe (similar to the defense department or Fatherland Security) from criminals. It also means that essentially a permanent sub- class is being created! In this day and age when an individual leaves prison (same with a county jail or parole and some probationers) he leaves with a record. This means that when a job search is conducted and application is filled out for employment the potential employer becomes aware of the status. How much weight will a potential employer actually give to an individual with a conviction on their record? In all probability the employer will hold it against the individual and not give the person a chance. So consider a person is released, perhaps without a support system in place, he is unable to gain employment, and since he is unable to gain employment he is unable to feed himself or unable to afford a place to live. What do you think he will do next? Do you think it is possible that a criminal act might be committed?
Another reason for the increase in prison population is that this country continues to build prisons and county jails at a rapid pace. Often the contracts to build and run a jail or prison are handed out to private companies. So millions upon millions in taxpayer money are handed out to build jails and prisons that maybe we don’t need!. So when the prisons and jails are finished what then? Well you have to fill them up! There are actually counties in the State of Florida where the main source of employment is the prison system! It is the old use them or lose them argument!
It just seems to me that maybe it’s time for another approach. Maybe something new needs to be tried. Maybe if more money was spent on education and job training and job creation. For example, while in prison the offender earns a Microsoft certification certificate and upon release the state has contracts with private employers to employ the offender for up to two years. At the end of two years an evaluation is performed by both the private employer and the State to evaluate the performance of the offender. Do you think that maybe the recidivist rate may go down? It just seems that a country that can spend 12 billion dollars a month on a meaningless conflict can find alternatives to the present system.
If you wish to discuss your arrest or life, the universe and everything else you may reach me at 561-616-8700. Please feel free to visit my blog at http://floridaduidefense.blogspot.com. My website is www.floridaduilawyer.com and my email is duitim@floridaduilawyer.com.
Copyright 2008, by Timothy Foster. All rights reserved!
Friday, May 23, 2008
I Don’t Want To Go To Trial But Can I Avoid the D.U.I. Conviction?
The short answer is maybe. Let’s see you have been arrested for D.U.I. The State Attorney for Palm Beach county,Florida has filed the formal D.U.I. charge in a document called an “information”. After reviewing the videotape several times and reading through the reports I (The Florida D.U.I. Lawyer) file a number of motions.
Among the motions which I might file would be a motion to suppress physical evidence and statements. In the motion I would seek to suppress the evidence arising from the stop; the field sobriety exercises, the refusal (hopefully) to give a sample of breath, any and all statements made by you and the D.U.I. tape(s), The basis for this motion can vary from alleging the officer did not have reasonable suspicion to stop you to begin with to the officer not having reasonable suspicion to request you to perform roadsides to the officer not having probable cause to arrest you to the officer……. well you get the picture! There would of course be a hearing on the motions.
At the hearing the judge would hear the evidence presented by the state through their witnesses, usually one cop, but sometimes more. The defense (The Florida D.U.I. Lawyer)) would of course artfully cross-examine the witnesses. After the evidence is presented the defense would make argument to the court, hopefully citing relevant case law. The State would then do the same and almost always will refer to testimony that wasn’t even presented at the hearing. The court would then rule. If the motion to suppress as I have outlined it above is granted then the state’s case is gutted. This means the state cannot use the evidence at trial. The state will either nolle prosse (drop charges) or file an appeal, which is rare. The defendant wins.
But suppose the foregoing set of facts but when the state gets the motion they look at their facts and talk to the witnesses. The assistant state attorney determines it doesn’t look good for them so he calls defense counsel (The Florida D.U.I. Lawyer) and offers a reckless driving in lieu of the D.U.I. This is a win. The driver doesn’t get the D.U.I. conviction and the plea on the reckless usually does not involve a license suspension (none of mine ever have). You ask, so what is the advantage? Consider this, the defense counsel is aware anything can happen at a motion or at trial so if a reckless is offered I always advise my client to accept.
If you wish to discuss your D.U.I. arrest you may reach me at 561-616-8700 or e-mail me at DUITIM@floridaduilawyer.com or visit my website at www.floridaduilawyer.com.
Copyright 2008 by Timothy C. Foster. All rights reserved!
Among the motions which I might file would be a motion to suppress physical evidence and statements. In the motion I would seek to suppress the evidence arising from the stop; the field sobriety exercises, the refusal (hopefully) to give a sample of breath, any and all statements made by you and the D.U.I. tape(s), The basis for this motion can vary from alleging the officer did not have reasonable suspicion to stop you to begin with to the officer not having reasonable suspicion to request you to perform roadsides to the officer not having probable cause to arrest you to the officer……. well you get the picture! There would of course be a hearing on the motions.
At the hearing the judge would hear the evidence presented by the state through their witnesses, usually one cop, but sometimes more. The defense (The Florida D.U.I. Lawyer)) would of course artfully cross-examine the witnesses. After the evidence is presented the defense would make argument to the court, hopefully citing relevant case law. The State would then do the same and almost always will refer to testimony that wasn’t even presented at the hearing. The court would then rule. If the motion to suppress as I have outlined it above is granted then the state’s case is gutted. This means the state cannot use the evidence at trial. The state will either nolle prosse (drop charges) or file an appeal, which is rare. The defendant wins.
But suppose the foregoing set of facts but when the state gets the motion they look at their facts and talk to the witnesses. The assistant state attorney determines it doesn’t look good for them so he calls defense counsel (The Florida D.U.I. Lawyer) and offers a reckless driving in lieu of the D.U.I. This is a win. The driver doesn’t get the D.U.I. conviction and the plea on the reckless usually does not involve a license suspension (none of mine ever have). You ask, so what is the advantage? Consider this, the defense counsel is aware anything can happen at a motion or at trial so if a reckless is offered I always advise my client to accept.
If you wish to discuss your D.U.I. arrest you may reach me at 561-616-8700 or e-mail me at DUITIM@floridaduilawyer.com or visit my website at www.floridaduilawyer.com.
Copyright 2008 by Timothy C. Foster. All rights reserved!
Wednesday, May 14, 2008
WHAT EXACTLY IS PROBATION?
This is another brief article on various aspects of D.U.I. defense and process in Palm Beach County, Florida, brought to you by The Florida D.U.I. Lawyer, http://www.floridaduilawyer.com/.
In Palm Beach County, Florida county probation is administered by Pride Integrated Services. Pride has several locations in Palm Beach County. Ok, you have been placed on probation for D.U.I. or even a reckless driving in lieu of D.U.I., and you are wondering what happens.You have already met with the in-court probation officer or went to the probation cubicle on the 9th Floor of the Palm Beach Courthouse where you signed your order of probation (the judge will sign it later) and received instructions for your follow-up appointment.
I always tell my clients to immediately call the number that is circled on a little document that was received from the court probation officer. When that number is called the defendant receives a follow-up appointment. When the defendant arrives at the follow-up appointment he/she will meet a probation officer. The defendant also brings in a money order for $50.00 , this is to cover the first month of supervision costs (yes, that is right $50.00 each and every month until you are off probation). You may also pay your fines and court costs through the probation office, by separate money order of course.
The officer will again, go over the do's and don'ts, which are really simple. First do not get re-arrested for anything. Second, make sure you complete all special consitions of probation. Third, don't drink, if that is part of your sentence. The officer is essentially there to make sure that you comply with all the special conditions. For example, if you went to the clerk's office and paid your fines and court costs, you received a receipt from the clerk. You should give a copy of this receipt to your probation officer, who hopefully will place it in your file. When you complete the D.U.I. School you will receive a little certificate from the school (oh, Pride also runs a D.U.I. School). You should allow your probation officer to make a copy of this certificate. The same can be said of the community service hours, which when you do them make sure you get something on the agency's letterhead to that effect. Allow the probation to make a copy. Ditto, with the Victim Impact Panel. You should ALWAYS retain your copies in a file folder.
A word about probation officers, they are overworked and don't make much money. There is also the possibility that they wish they were elsewhere, such as being a sworn law enforcement officer, then they could really throw their weight around. Or, maybe they really want to go to law school. Don't expect them to be sympathethic with you. They are not your friend! If you violate the terms of your probation they will file an affidavit of violation with the sentencing judge, who will issue a warrant for your arrest.
Well, that is essentially it! If you wish to discuss your D.U.I. arrest, or life, the universe, and everything you may call me at 561-616-8700. My e-mail is DUITIM@floridaduilawyer.com and my website is http://www.floridaduilawyer.com/
Copyright 2008 by Timothy Foster. All rights reserved!
In Palm Beach County, Florida county probation is administered by Pride Integrated Services. Pride has several locations in Palm Beach County. Ok, you have been placed on probation for D.U.I. or even a reckless driving in lieu of D.U.I., and you are wondering what happens.You have already met with the in-court probation officer or went to the probation cubicle on the 9th Floor of the Palm Beach Courthouse where you signed your order of probation (the judge will sign it later) and received instructions for your follow-up appointment.
I always tell my clients to immediately call the number that is circled on a little document that was received from the court probation officer. When that number is called the defendant receives a follow-up appointment. When the defendant arrives at the follow-up appointment he/she will meet a probation officer. The defendant also brings in a money order for $50.00 , this is to cover the first month of supervision costs (yes, that is right $50.00 each and every month until you are off probation). You may also pay your fines and court costs through the probation office, by separate money order of course.
The officer will again, go over the do's and don'ts, which are really simple. First do not get re-arrested for anything. Second, make sure you complete all special consitions of probation. Third, don't drink, if that is part of your sentence. The officer is essentially there to make sure that you comply with all the special conditions. For example, if you went to the clerk's office and paid your fines and court costs, you received a receipt from the clerk. You should give a copy of this receipt to your probation officer, who hopefully will place it in your file. When you complete the D.U.I. School you will receive a little certificate from the school (oh, Pride also runs a D.U.I. School). You should allow your probation officer to make a copy of this certificate. The same can be said of the community service hours, which when you do them make sure you get something on the agency's letterhead to that effect. Allow the probation to make a copy. Ditto, with the Victim Impact Panel. You should ALWAYS retain your copies in a file folder.
A word about probation officers, they are overworked and don't make much money. There is also the possibility that they wish they were elsewhere, such as being a sworn law enforcement officer, then they could really throw their weight around. Or, maybe they really want to go to law school. Don't expect them to be sympathethic with you. They are not your friend! If you violate the terms of your probation they will file an affidavit of violation with the sentencing judge, who will issue a warrant for your arrest.
Well, that is essentially it! If you wish to discuss your D.U.I. arrest, or life, the universe, and everything you may call me at 561-616-8700. My e-mail is DUITIM@floridaduilawyer.com and my website is http://www.floridaduilawyer.com/
Copyright 2008 by Timothy Foster. All rights reserved!
Tuesday, May 13, 2008
THE IGNITION INTERLOCK DEVICE !
I write from the home of http://www.floridaduilawyer.com/ on the topic of the ignition interlock device. The devil, you say! Yes, there is a device called the ignition interlock device. Florida Statute 316.1937 provides for the following: the court may require any person convicted of D.U.I. that vehicle with an ignition interlock device so that vehicle will not operate if the operator’s blood alcohol level is in excess of .05. The length of time is not less than 6 months. Yes, this means in theory a court could order such a device placed on a first offender’s car ( any car owned by him, or leased by him or that he has access to). However, if a defendant had a breath alcohol reading of .20 or above or had a minor (person under 18) in the automobile with him then the ignition interlock device MUST be place on the automobiles.
However, when a person is convicted of a second offense of D.U.I. the court MUST order the placement of the ignition interlock device for a period of at least two years! But the reality is that the device would not even be placed on the car until after the probationary period expired. How so, you say? Because even on a second D.U.I. conviction the length of the driver’s license suspension will be 6 -12 months( unless it's a second within 5 years)! The defendant is placed on probation for 12 months. The defendant is simply not allowed to drive (at least legally) while on probation. So once the license suspension expires the defendant must trot down to the Bureau of Administrative Review, located at 6801 Lake Worth Road, Suite 203, Lake Worth, Fl. 33467 to obtain information on how to proceed (or, they can call me). What this means is that the defendant will not be able to get either a business permit or their regular license back until they provide proof to the Bureau of Administrative Review that the device has been installed!
If you wish to discuss your D.U.I. arrest, life, the universe or anything you may telephone me at 561-616-8700. You may e-mail me at DUITIM@floridaduilawyer.com. My website is http://www.floridaduilawyer.com/.
Copyright, 2008. All Rights Reserved.
However, when a person is convicted of a second offense of D.U.I. the court MUST order the placement of the ignition interlock device for a period of at least two years! But the reality is that the device would not even be placed on the car until after the probationary period expired. How so, you say? Because even on a second D.U.I. conviction the length of the driver’s license suspension will be 6 -12 months( unless it's a second within 5 years)! The defendant is placed on probation for 12 months. The defendant is simply not allowed to drive (at least legally) while on probation. So once the license suspension expires the defendant must trot down to the Bureau of Administrative Review, located at 6801 Lake Worth Road, Suite 203, Lake Worth, Fl. 33467 to obtain information on how to proceed (or, they can call me). What this means is that the defendant will not be able to get either a business permit or their regular license back until they provide proof to the Bureau of Administrative Review that the device has been installed!
If you wish to discuss your D.U.I. arrest, life, the universe or anything you may telephone me at 561-616-8700. You may e-mail me at DUITIM@floridaduilawyer.com. My website is http://www.floridaduilawyer.com/.
Copyright, 2008. All Rights Reserved.
Saturday, May 10, 2008
IS IT POSSIBLE TO PERMANENTLY LOSE YOUR DRIVER'S LICENSE?
Again, I am The Florida D.U.I. Lawyer and my website is http://www.floridaduilawyer.com/!
Yes, indeed you can permanently lose your driver's license for a fourth D.U.I. conviction. When I say fourth I mean fourth at anytime during the individuals driving history. Confused? Let's try this, suppose an individual has D.U.I. convictions in the following years; 1975, 1982,1988 and 2008. Better buy a bicycle and check out the public transportation system ( it's bad). How about this ;1955, 1966, 1975 and 2008. Again, the driver's license is gone. And no it doesn't matter that the Office of the State Attorney charged the last one as a misdemeanor. Whether a misdemeanor or felony, a fourth D.U.I. conviction results in a permanent revocation.
Yes, and of course D.U.I. manslaughter results in a lifetime revocation.
Should you wish to discuss your case with me or chat about life, the universe or anything else you may reach me at 561-616-8700. My website is http://www.floridaduilawyer.com/. You may e-mail me at DUITIM@floridaduilawyer.com. Again, I would suggest that you not drink and drive!
Copyright 2008, All Rights Reserved
Yes, indeed you can permanently lose your driver's license for a fourth D.U.I. conviction. When I say fourth I mean fourth at anytime during the individuals driving history. Confused? Let's try this, suppose an individual has D.U.I. convictions in the following years; 1975, 1982,1988 and 2008. Better buy a bicycle and check out the public transportation system ( it's bad). How about this ;1955, 1966, 1975 and 2008. Again, the driver's license is gone. And no it doesn't matter that the Office of the State Attorney charged the last one as a misdemeanor. Whether a misdemeanor or felony, a fourth D.U.I. conviction results in a permanent revocation.
Yes, and of course D.U.I. manslaughter results in a lifetime revocation.
Should you wish to discuss your case with me or chat about life, the universe or anything else you may reach me at 561-616-8700. My website is http://www.floridaduilawyer.com/. You may e-mail me at DUITIM@floridaduilawyer.com. Again, I would suggest that you not drink and drive!
Copyright 2008, All Rights Reserved
Saturday, May 3, 2008
DO COPS LIE AND WHAT HAPPENS WHEN THEY DO?
Do cops lie? Indeed, they do! Do they lie under oath? Of course, they do! This is how it often goes; a cop stops a suspect for D.U.I.; the cop performs his investigation; he makes the arrest; he writes up his probable cause affidavit. But when he writes it up he leaves out very important details, such as the fumbling for paperwork, the staggered walk of the suspect, bloodshot eyes, slurred speech, flushed face, etc. Often not all, but I have one like it right now!
So at either a motion hearing and/ortrial the cop fills in the missing details. The assistant state attorney will ask the cop what did he observe? And it never fails, the cop will mention details that were not in his affidavit. Well, the first point is that it is a dscovery violation but it is essentially harmless because even if the defense counsel had known, what would he have done differently to prepare for trial (probably not much)? So on cross examination the defense counsel will bring out that the cop didn't mention in his probable cause affidavit everything he just testified to on direct. In additional I always bring out that the probable cause affidavit is sworn to under oath by the cop. And I always make of point of asking the cop why he is remembering more now at the time of his testimony that what he put in his probable cause affidavit. He will say he just now remembered!
So why not just stick to the original report? Because when trial rolls around the assistant state attorney looks at the reports and talks to the cop( you see the A.S.A. s do not like to lose). In all likelihood the A.S.A will point out what is missing from the report and suddenly the cop remembers much, much more! But what does the judge do it about you ask? Not a thing! You see it is expected! Everyone learned long ago that you can't actually expect cops to tell the truth. That they will add facts and details that they left out of their reports is accepted by the judges and especially the assistant state attorneys.
I have actually been in a court and heard a judge ( a former assistant state attorney) state that cops lie all the time. You see he knows it. By his words he even accepts it. But that is our criminal justice system! One can only hope that at time of sentencing (if there is one) the court will take that into consideration!
If you wish to discuss your D.U.I. arrest or life, the universe and everything you may call me at 561-616-8700 or you may e-mail me at DUITIM@floridaduilawyer.com. Please feel free to visit my website at http://www.floridaduilawyer.com/.
Copyright 2008, All Rights Reserved
So at either a motion hearing and/ortrial the cop fills in the missing details. The assistant state attorney will ask the cop what did he observe? And it never fails, the cop will mention details that were not in his affidavit. Well, the first point is that it is a dscovery violation but it is essentially harmless because even if the defense counsel had known, what would he have done differently to prepare for trial (probably not much)? So on cross examination the defense counsel will bring out that the cop didn't mention in his probable cause affidavit everything he just testified to on direct. In additional I always bring out that the probable cause affidavit is sworn to under oath by the cop. And I always make of point of asking the cop why he is remembering more now at the time of his testimony that what he put in his probable cause affidavit. He will say he just now remembered!
So why not just stick to the original report? Because when trial rolls around the assistant state attorney looks at the reports and talks to the cop( you see the A.S.A. s do not like to lose). In all likelihood the A.S.A will point out what is missing from the report and suddenly the cop remembers much, much more! But what does the judge do it about you ask? Not a thing! You see it is expected! Everyone learned long ago that you can't actually expect cops to tell the truth. That they will add facts and details that they left out of their reports is accepted by the judges and especially the assistant state attorneys.
I have actually been in a court and heard a judge ( a former assistant state attorney) state that cops lie all the time. You see he knows it. By his words he even accepts it. But that is our criminal justice system! One can only hope that at time of sentencing (if there is one) the court will take that into consideration!
If you wish to discuss your D.U.I. arrest or life, the universe and everything you may call me at 561-616-8700 or you may e-mail me at DUITIM@floridaduilawyer.com. Please feel free to visit my website at http://www.floridaduilawyer.com/.
Copyright 2008, All Rights Reserved
Tuesday, April 29, 2008
THIS IS MY SECOND D.U.I. WITHIN 5 YEARS OF THE FIRST!
So, you say this is your second D.U.I.! And it is within 5 years of the date of conviction of the first! And you want to know what you face? Well, to put it bluntly you face a multitude of sanctions if convicted.
First of all, the fine is a minimum of $500 and a maximum of $1,000. Second, you will, at your own expense (big surprise) have to have an ignition interlock device installed upon ALL vehicles that are owned, or leased or jointly leased and routinely operated by the convicted person". Third, you will have to attend advanced D.U.I. School and receive any recommended treatment (on a second the treatment will be recommended, at your expense of course). Fourth, 30 days of immobilization of the vehicle. Fifth, though NOT mandated by statute the assistant state attorney will in all probability want you to perform at least 75 hours of community service. Sixth, 5 YEARS of driver's license suspension ( but, you can apply for a hardship at the end of one year).
Not to mention that you will be on probation for 12 months ( you pay of course). Last, but not least there is a 10 day minimum mandatory jail sentence. That is right you have to do a minimum of 10 days. But , you should understand that the assistant state attorney will probably be asking for anywhere from 30 to 90 days in jail. Yes, there is a possibility that the court would agree to work release or even house arrest ( yes, you pay).
But hey, if you win at trial, there will not be a penalty.
You may reach me at 561-616-8700 or e-mail me at DUITIM@floridaduilawyer.com. Please visit my website at http://www.floridaduilawyer.com/.
Copyright 2008, All Rights Reserved
First of all, the fine is a minimum of $500 and a maximum of $1,000. Second, you will, at your own expense (big surprise) have to have an ignition interlock device installed upon ALL vehicles that are owned, or leased or jointly leased and routinely operated by the convicted person". Third, you will have to attend advanced D.U.I. School and receive any recommended treatment (on a second the treatment will be recommended, at your expense of course). Fourth, 30 days of immobilization of the vehicle. Fifth, though NOT mandated by statute the assistant state attorney will in all probability want you to perform at least 75 hours of community service. Sixth, 5 YEARS of driver's license suspension ( but, you can apply for a hardship at the end of one year).
Not to mention that you will be on probation for 12 months ( you pay of course). Last, but not least there is a 10 day minimum mandatory jail sentence. That is right you have to do a minimum of 10 days. But , you should understand that the assistant state attorney will probably be asking for anywhere from 30 to 90 days in jail. Yes, there is a possibility that the court would agree to work release or even house arrest ( yes, you pay).
But hey, if you win at trial, there will not be a penalty.
You may reach me at 561-616-8700 or e-mail me at DUITIM@floridaduilawyer.com. Please visit my website at http://www.floridaduilawyer.com/.
Copyright 2008, All Rights Reserved
Saturday, April 26, 2008
IF I AM ARRESTED FOR D.U.I.WHAT WILL HAPPEN TO MY AUTOMOBILE INSURANCE?
So, if arrested for D.U.I. you are concerned about your automobile insurance? You should be! First , and foremost the insurance companies are not your friend! They are in business to make money. Do you remember the hurricaines that came through Palm Beach and Martin County, Florida several years ago? Do you know individuals who had problems collecting from their insurance company? Well, I do! Do you remember Hurricaine Katrina that decimated New Orleans? Yes, that is where Bush said " heck of a job, Brownie" to FEMA Director Michael Brown, and as we learned shortly thereafter Brown had completely botched the job along with Bush and Fatherland Security Director Michael Chertoff. But Bush always one to avoid responsibility, like any other alcoholic, dumped it on Brown. But I digress.
Do you remember seeing in the news the articles about the policy owners, in Mississippi and Louisiana, having to sue All-State and State Farm in order to collect. You see, these two behemoths didn't want to pay! That's right both of these gigantic companies have billions upon billions in assets but didn't wish to pay! So if you are arrested for D.U.I. and convicted you can at the least expect your insurance rates to double if not triple or you maybe canceled altogether. Even if you are not convicted you should keep in mind that the insurance company, is in business to make money, and may decide to cancel your insurance because they consider you a bad risk!
If you have been arrested for D.U.I. or just wish to chat about life, the universe and everything I may be reached at 561-616-8700. Telephone calls are returned 7 days a week. You may also e-mail me at DUITIM@floridaduilawyer.com. Please feel free to visit my web-site at http://www.floridaduilawyer.com/, where you may actually click on the Paypal button and pay me if you have retained me.
Copyright 2008, All Rights Reserved
Do you remember seeing in the news the articles about the policy owners, in Mississippi and Louisiana, having to sue All-State and State Farm in order to collect. You see, these two behemoths didn't want to pay! That's right both of these gigantic companies have billions upon billions in assets but didn't wish to pay! So if you are arrested for D.U.I. and convicted you can at the least expect your insurance rates to double if not triple or you maybe canceled altogether. Even if you are not convicted you should keep in mind that the insurance company, is in business to make money, and may decide to cancel your insurance because they consider you a bad risk!
If you have been arrested for D.U.I. or just wish to chat about life, the universe and everything I may be reached at 561-616-8700. Telephone calls are returned 7 days a week. You may also e-mail me at DUITIM@floridaduilawyer.com. Please feel free to visit my web-site at http://www.floridaduilawyer.com/, where you may actually click on the Paypal button and pay me if you have retained me.
Copyright 2008, All Rights Reserved
Thursday, April 24, 2008
HOW MUCH WILL AN ATTORNEY CHARGE ME FOR A D.U.I. DEFENSE?
So, how much will an attorney charge you for a D.U.I. defense? Well, it depends on the attorney. In Palm Beach County fees may range from $500.00 to $7,000 for a defense of a first D.U.I. Quite a range you say. Well, it is and it goes something like this.
The attorneys who say they only charge $500.00 really don't. They take $500.00 as a retainer and then they will charge you for the filing of motions and appearances at those hearings. Should the case go to trial then an additional fee will be due to cover the day( or more) spent in trial. For those that charge $7,000 they will collect half up front and the remainder within 30- 45 days. They will indeed file every motion in the book. The State Attorneys Office expects them to. The judges expect them to. They may be known as a paper mill because they file so much paperwork. They will delay,delay, delay. If need be they will of course take the case to trial. So after all the delays that may add up to 6, 8, even 12 months, their client may be found guilty. At that point in time the license revocation goes into effect along with the probation and all the other special conditions. Don't get me wrong for the most part the attorneys (most but not all) who charge at the upper end are quite good!
Of course, my fees and fee payment schedule are more reasonable. I have been known to stretch payments out over four months. I have been known to accept weekly payments from those who are waiters, waitresses and other individuals just like you who prefer paying on a weekly basis!
If you wish to discuss your D.U.I. arrest or just chat I may be reached at 561-616-8700 or e-mail me at DUITIM@floridaduilawyer. My website is located at http://www.floridaduilawyer.com/.
Copyright 2008, All Rights Reserved
The attorneys who say they only charge $500.00 really don't. They take $500.00 as a retainer and then they will charge you for the filing of motions and appearances at those hearings. Should the case go to trial then an additional fee will be due to cover the day( or more) spent in trial. For those that charge $7,000 they will collect half up front and the remainder within 30- 45 days. They will indeed file every motion in the book. The State Attorneys Office expects them to. The judges expect them to. They may be known as a paper mill because they file so much paperwork. They will delay,delay, delay. If need be they will of course take the case to trial. So after all the delays that may add up to 6, 8, even 12 months, their client may be found guilty. At that point in time the license revocation goes into effect along with the probation and all the other special conditions. Don't get me wrong for the most part the attorneys (most but not all) who charge at the upper end are quite good!
Of course, my fees and fee payment schedule are more reasonable. I have been known to stretch payments out over four months. I have been known to accept weekly payments from those who are waiters, waitresses and other individuals just like you who prefer paying on a weekly basis!
If you wish to discuss your D.U.I. arrest or just chat I may be reached at 561-616-8700 or e-mail me at DUITIM@floridaduilawyer. My website is located at http://www.floridaduilawyer.com/.
Copyright 2008, All Rights Reserved
HOW LONG WILL A D.U.I. CONVICTION REMAIN ON MY RECORD?
So, how long will a D.U.I. conviction remain on my record in Florida? The short answer is forever! Oh, wait you got me, it actually is for 75 years. So maybe, that isn't forever. After all let's say that you are convicted for D.U.I. when you are 25. Well, when you reach the age of 100 the conviction waill vanish from your record! Such a deal!
Should you have questions about your Florida D.U.I. arrest, or you just wish to chat you may reach me at 561-616-8700 or e-mail me at DUITIM@floridaduilawyer.com. Please visit my website at http://www.floridaduilawyer.com/.
Copyright 2008, All Rights reserved.
Should you have questions about your Florida D.U.I. arrest, or you just wish to chat you may reach me at 561-616-8700 or e-mail me at DUITIM@floridaduilawyer.com. Please visit my website at http://www.floridaduilawyer.com/.
Copyright 2008, All Rights reserved.
Wednesday, April 23, 2008
COP HELD FOR HAVING SEX WITH UNDERAGE GIRLS AND COWS
N.J. Officer Allegedly Performed Sex Acts On Cows
Previously Charged With Sexual Assault On 3 GirlsMOORESTOWN (CBS 3) ― More charges have been filed against a Burlington County police officer who was recently charged with sexually assaulting three girls.Authorities announced Moorsetown Officer Robert Melia Jr., 38, has been charged with four counts of animal cruelty after allegedly engaging in sex acts with cows between June and December of 2006.Melia and his former girlfriend, Heather Lewis were previously charged with three counts of aggravated sexual assault and one count of criminal sexual contact with three girls in his Pemberton home from 2003 until 2006.Melia is being held on $510,000 bail.
(© MMVIII, CBS Broadcasting Inc. All Rights Reserved.)
Well, this was a bit of a departure from what I have been writing about but it was to good to pass up!
I may be contacted at 561-616-8700 or e-mailed at DUITIM@floridaduilawyercom . Please feel free to visit my website at http://www.floridaduilawyer.com/.
Previously Charged With Sexual Assault On 3 GirlsMOORESTOWN (CBS 3) ― More charges have been filed against a Burlington County police officer who was recently charged with sexually assaulting three girls.Authorities announced Moorsetown Officer Robert Melia Jr., 38, has been charged with four counts of animal cruelty after allegedly engaging in sex acts with cows between June and December of 2006.Melia and his former girlfriend, Heather Lewis were previously charged with three counts of aggravated sexual assault and one count of criminal sexual contact with three girls in his Pemberton home from 2003 until 2006.Melia is being held on $510,000 bail.
(© MMVIII, CBS Broadcasting Inc. All Rights Reserved.)
Well, this was a bit of a departure from what I have been writing about but it was to good to pass up!
I may be contacted at 561-616-8700 or e-mailed at DUITIM@floridaduilawyercom . Please feel free to visit my website at http://www.floridaduilawyer.com/.
Tuesday, April 22, 2008
WHAT HAPPENS IF I'M ARRESTED FOR D.U.I. AND A MINOR IS IN THE CAR?
So you have been arrested for D.UI. and a minor is in the car? I will tell you that when I hear facts like this my stomach will do a flip flop. How do you think the State Attorney's Office will react.? How will a judge react? My, oh, my how will a jury react? Tell you what, run the scenario by a good friend and see how they react.
The State Attorney will file child abuse/neglect charges, in addition to the D.U.I. charges against the driver. The penalties on the D.U.I. may be enhanced due to the presence of the minor. I absolutely guarantee that any judge who hears the matter will not be happy. If a trial is indicated then there must be an attempt made to sever the child abuse/neglect charges from the D.U.I. on grounds that it would tend to prejudice the jury (no doubt) against the defendant, and those charges really are not relevant to proving the D.U.I. Even if severed the jury would still hear that the child was in the car but wouldn't hear the additional charge of abuse/neglect.
In any event, it isn't pretty and it is real simple to prevent. Don't drink and drive! Don't drink and drive with children in the car!
I may be reached at 561-616-8700 7 days a week. My website is http://www.floridaduilawyer.com/. My e-mail is DUITIM@floridaduilawyer.com.
Copyright 2008
The State Attorney will file child abuse/neglect charges, in addition to the D.U.I. charges against the driver. The penalties on the D.U.I. may be enhanced due to the presence of the minor. I absolutely guarantee that any judge who hears the matter will not be happy. If a trial is indicated then there must be an attempt made to sever the child abuse/neglect charges from the D.U.I. on grounds that it would tend to prejudice the jury (no doubt) against the defendant, and those charges really are not relevant to proving the D.U.I. Even if severed the jury would still hear that the child was in the car but wouldn't hear the additional charge of abuse/neglect.
In any event, it isn't pretty and it is real simple to prevent. Don't drink and drive! Don't drink and drive with children in the car!
I may be reached at 561-616-8700 7 days a week. My website is http://www.floridaduilawyer.com/. My e-mail is DUITIM@floridaduilawyer.com.
Copyright 2008
Saturday, April 19, 2008
Field Sobriety Test
The Florida D.U.I. Lawyer found this very funny. Please feel free to visit www.floridaduilawyercom.
Click on this link. I think everyone will enjoy it! Field Sobriety Test
Click on this link. I think everyone will enjoy it! Field Sobriety Test
Thursday, April 17, 2008
A PROBLEM WITH THE ADMINISTRATIVE HEARING?
Imagine a problem with the administrative hearing. Once upon a time in Florida Circuit Court judges would hear the formal review, but a strange thing happened the judges did not uphold as many suspensions as groups such as MADD (mothers against drunk driving) or other politically active groups wanted. So what happened, the groups including MADD went to Tallahassee to change the procedure for these hearings. And before you could say Shazzam, we had administrative hearing officers to hear nothing but these type of cases. Furthermore, these hearings take place outside of the Administrative Procedures Act FS 120 and afford the driver less protection. The legistaure even went further and they made the arresting officer's paperwork self-authenicating, which means if it is notarized it comes into evidence automatically (unless the officer is subpoeaned and fails to appear, see my article of April 13, 2008). Within the last several years the legislature has given the hearing officers the power to ask a driver or his attorney if they wish to seek enforcement of a subpoena on a non-appearing witness. This is a trick because, if the driver or his attorney respond in the negative then the hearing officer upholds the administrative suspension. If they actually seek enforcement do you think an officer is going to refuse to appear after that. There is actually another scenario which I will not divulge here.
So you would think the hearing officers hold the upper hand? Well, they often do! However, even with the upper hand several years ago it came to light that the Broward County Hearing Officers were not following the rules. Imagine this! I am shocked! Yep, it seems that the hearing officers were conferring with one another on cases and even speaking to the staff attorney who handles the appeals about specific cases and allowing the staff attorney to tell them how to rule. You see, the hearing officers are supposed to make the decision and it is not supposed to be a group effort.
Feel like the odds are against you? Perhaps they are! Defending a D.U.I. is not easy either at the administrative hearing or in court. But if you roll over and surrender you will never know what might have been. You may reach me by telephone at 561-616-8700 or by e-mail DUITIM@floridaduilawyer.com. My website is http://www.floridaduilawyer.com/ and you can see the link on the right handside of the page.
Copyright 2008
So you would think the hearing officers hold the upper hand? Well, they often do! However, even with the upper hand several years ago it came to light that the Broward County Hearing Officers were not following the rules. Imagine this! I am shocked! Yep, it seems that the hearing officers were conferring with one another on cases and even speaking to the staff attorney who handles the appeals about specific cases and allowing the staff attorney to tell them how to rule. You see, the hearing officers are supposed to make the decision and it is not supposed to be a group effort.
Feel like the odds are against you? Perhaps they are! Defending a D.U.I. is not easy either at the administrative hearing or in court. But if you roll over and surrender you will never know what might have been. You may reach me by telephone at 561-616-8700 or by e-mail DUITIM@floridaduilawyer.com. My website is http://www.floridaduilawyer.com/ and you can see the link on the right handside of the page.
Copyright 2008
Sunday, April 13, 2008
THE ADMINISTRATIVE HEARING!
You have been arrested in Palm Beach County (or anywhere in Florida) and you have been issued a D.U.I. citation. This D.U.I. citation is your driving permit for 10 days. Not 30 days, but 10! I don't know how many defendants I have spoke to who tell me "the officer said it was good for 30 days"! Not 30 but 10!
If you have refused to give a sample or breath or have blown over .08 your driver's license has been administratively suspended. You or I(if you hire me this is included in the fee) will have to file a request for hearing (usually a formal hearing) at Bureau of Administrative review (BAR),6801 Lake Worth Road, Suite 230, Lake Worth, Florida 33467. You walk in ,fill out a piece of paper and in less than a week you should have your hearing date AND your temporary driving permit. Yes, another temporary permit, but this one is good for about 4 -5 weeks. Why 4-5 weeks? Well, when the hearing is requested the hearing has to be set with 30 days of requesting it. The work permit will have an expiration date of 10 days to 14 days after your scheduled hearing date. You heard that it is hard to win at the administrative hearing. You have heard correctly!
The hearing officers are not judges and they are not lawyers. At the Lake Worth Office all the hearing officers are women dressed in their little blue uniforms (just like the driver's license office). The standard is a "preponderance of the evidence" (I know this doesn't tell you much). But just remember that at a criminal trial the State has to prove your guilt "beyond and to the exclusion of every reasonable doubt", which is a much higher standard than a "preponderance of the evidence". So can you win, you ask? Yes, but the chances are slim.
I review the administrative file, which contains the police reports. If the officer did not dot the "i's" and cross the "t's" I will not subpoena them to the hearing. That is because I feel I have a great chance of invalidating the administrative suspension based on what is (or isn't) contained in the reports. But, if the officer dotted the "i's" and crossed the "t's" I will subpoena the officer and hope he doesn't appear( which is unlikely). What happens if the officer doesn't appear? He or she has 2 business days to provide a reason to the Bureau of Administrative Review as to why they dodn't show up. If he doesn't the department should invalidate the suspension. BUT, there is an exception! The legislature of the State of Florida gives the hearing officer the discretion to ask the attorney or the driver (if unrepresented) if they wish to seek enforcement of the subpoena. This kinda of throws a monkey wrench into things, but there is only one hearing officer in Palm Beach County who will ask about seeking enforcement. The others will simply invalidate if the officer doersn't provide the reason for his aforementioned absence.
I have kept track, since 2003( prior to 2003 I did not keep track), of the administrative suspensions that I have managed to have set aside and I have had 42 administrative suspensions invalidated. This means that the driver receives his regular license back pending the outcome of the Criminal charges.
You may reach me at 561-616-8700. My e-mail is DUITIM@floridaduilawyer.com. I am available by telephone 7 days a week. Weekend appointments are available.
If you have refused to give a sample or breath or have blown over .08 your driver's license has been administratively suspended. You or I(if you hire me this is included in the fee) will have to file a request for hearing (usually a formal hearing) at Bureau of Administrative review (BAR),6801 Lake Worth Road, Suite 230, Lake Worth, Florida 33467. You walk in ,fill out a piece of paper and in less than a week you should have your hearing date AND your temporary driving permit. Yes, another temporary permit, but this one is good for about 4 -5 weeks. Why 4-5 weeks? Well, when the hearing is requested the hearing has to be set with 30 days of requesting it. The work permit will have an expiration date of 10 days to 14 days after your scheduled hearing date. You heard that it is hard to win at the administrative hearing. You have heard correctly!
The hearing officers are not judges and they are not lawyers. At the Lake Worth Office all the hearing officers are women dressed in their little blue uniforms (just like the driver's license office). The standard is a "preponderance of the evidence" (I know this doesn't tell you much). But just remember that at a criminal trial the State has to prove your guilt "beyond and to the exclusion of every reasonable doubt", which is a much higher standard than a "preponderance of the evidence". So can you win, you ask? Yes, but the chances are slim.
I review the administrative file, which contains the police reports. If the officer did not dot the "i's" and cross the "t's" I will not subpoena them to the hearing. That is because I feel I have a great chance of invalidating the administrative suspension based on what is (or isn't) contained in the reports. But, if the officer dotted the "i's" and crossed the "t's" I will subpoena the officer and hope he doesn't appear( which is unlikely). What happens if the officer doesn't appear? He or she has 2 business days to provide a reason to the Bureau of Administrative Review as to why they dodn't show up. If he doesn't the department should invalidate the suspension. BUT, there is an exception! The legislature of the State of Florida gives the hearing officer the discretion to ask the attorney or the driver (if unrepresented) if they wish to seek enforcement of the subpoena. This kinda of throws a monkey wrench into things, but there is only one hearing officer in Palm Beach County who will ask about seeking enforcement. The others will simply invalidate if the officer doersn't provide the reason for his aforementioned absence.
I have kept track, since 2003( prior to 2003 I did not keep track), of the administrative suspensions that I have managed to have set aside and I have had 42 administrative suspensions invalidated. This means that the driver receives his regular license back pending the outcome of the Criminal charges.
You may reach me at 561-616-8700. My e-mail is DUITIM@floridaduilawyer.com. I am available by telephone 7 days a week. Weekend appointments are available.
SHOULD I GO TO TRIAL??
When an individual is arrested for D.U.I, or for that matter any other crime, the last thing that passes through the thinking proceses is a "trial". The only thing that is important to the defendant at the time is "how quickly can I get out of jail". But, anyone charged with a criminal offense is entitled to a trial.
Whether to go to trial on any criminal matter requires an analysis of the prosecution case; What was the reason for the stop? Did the probable cause affadavit mention that the defendant fumbled for his license or other requested paperwork? When the defendant stepped out of his automobile did he walk normally? Is there a roadside videotape of the defendant and does it show him performing the field sobriety exercises? Does the arrest affadavit mention that the defendant fell asleep in the patrol car on the way to jail? Does the defendant look good or bad on the tape made at the jail?
So what was the reason for the stop? Was it speeding? Well, that is good because I have made arguments to the jury that it takes greater skill to handle an automobile at a higher rate of speed rather than at a slower speed! Or was the reason for the stop is that the defendant left his lane of travel, almost colliding with other vehicles, and the cop witnessed it all and has it on tape! Did the probable cause affidavit mention fumbling for paper work? If not, then good. Because if the officer on direct examination by the Assistant State Attorney suddenly remembers that the defendant fumbled, I on cross- examination will ask where in his probable cause affidavit did he mention that fumbling? I will then point out that he wrote the probable cause affidavit right after the arrest when the incident was freshest in his mind. I will then ask him to admit that the probable cause affidavit was completed under oath(which it was). What did I just accomplish, I made the cop out to be either a liar or stupid.
The same can be said of the defendant walking normally. If, the officer failed to mention in his report that the defendant staggered or stumbled I can use that. I will ask the cop on cross examination "isn't it true that the defendant walked in a normal manner when he exited his car? Again, it is the same as before if the officer didn't write something in his report in black and white then it can be twisted. Even if it is in the report there is a chance it can be twisted to favor the defendant. Is there a videotape of what occurred at roadside? Is it a clear videotape? Does the aduio work well? If the videotape does not back up what the officer has written in his report then that is good! But, chances are at time of trial the officer will say the camera angle was bad or the video equipment was not functioning that night. Well, if he does say that, I can point out that he could have placed his car at a more advantgeous angle or ask him whether he reported the video equipment as malfunctioning(the officer has a duty to report malfunctioning equipment to his supervisor and it is probably in the department procedures manuel that he is required to do so) . Also, it can be pointed out that the officer is not the only officer on duty that night with a video equipped car and that he could have requested assistance. However, if there is a dash mounted camera and the video and/or audion is clear and the defendant looks bad it is probably not a good case to try(assuming that the evidence is not suppressed).
Falling alseep in the back of the patrol car is not a good idea especially if there is a dash mounted camera. The camera can and will be swung around when the defendant is placed in the back of the cruiser. If he falls asleep the camera will probably catch it. What about the video at the jail? Well, if the defendant looks good and by good I mean no slurring nor hesitating over the rountine booking questions, then that is good. I can break it down on cross to point out that the defendant walked across the room, stood on the yellow X, wasn't swaying and didn't loose his balance. All good to work with. But if the defendant sounds slurred, has trouble with his balance, hesitated over his address or hair color, then this might not be the best case to go to trial on.
This is but a brief consideration of some of the factors I will consider. In any event the decision whether to go to trial rests with the defendant. If a trial is requested then a trial he/she will get.
I may be reached at 561-616-8700 or by e-mail at DUITIM@floridaduilawyer.com. My website is www.floridaduilawyer.com.
Copyright 2008
Whether to go to trial on any criminal matter requires an analysis of the prosecution case; What was the reason for the stop? Did the probable cause affadavit mention that the defendant fumbled for his license or other requested paperwork? When the defendant stepped out of his automobile did he walk normally? Is there a roadside videotape of the defendant and does it show him performing the field sobriety exercises? Does the arrest affadavit mention that the defendant fell asleep in the patrol car on the way to jail? Does the defendant look good or bad on the tape made at the jail?
So what was the reason for the stop? Was it speeding? Well, that is good because I have made arguments to the jury that it takes greater skill to handle an automobile at a higher rate of speed rather than at a slower speed! Or was the reason for the stop is that the defendant left his lane of travel, almost colliding with other vehicles, and the cop witnessed it all and has it on tape! Did the probable cause affidavit mention fumbling for paper work? If not, then good. Because if the officer on direct examination by the Assistant State Attorney suddenly remembers that the defendant fumbled, I on cross- examination will ask where in his probable cause affidavit did he mention that fumbling? I will then point out that he wrote the probable cause affidavit right after the arrest when the incident was freshest in his mind. I will then ask him to admit that the probable cause affidavit was completed under oath(which it was). What did I just accomplish, I made the cop out to be either a liar or stupid.
The same can be said of the defendant walking normally. If, the officer failed to mention in his report that the defendant staggered or stumbled I can use that. I will ask the cop on cross examination "isn't it true that the defendant walked in a normal manner when he exited his car? Again, it is the same as before if the officer didn't write something in his report in black and white then it can be twisted. Even if it is in the report there is a chance it can be twisted to favor the defendant. Is there a videotape of what occurred at roadside? Is it a clear videotape? Does the aduio work well? If the videotape does not back up what the officer has written in his report then that is good! But, chances are at time of trial the officer will say the camera angle was bad or the video equipment was not functioning that night. Well, if he does say that, I can point out that he could have placed his car at a more advantgeous angle or ask him whether he reported the video equipment as malfunctioning(the officer has a duty to report malfunctioning equipment to his supervisor and it is probably in the department procedures manuel that he is required to do so) . Also, it can be pointed out that the officer is not the only officer on duty that night with a video equipped car and that he could have requested assistance. However, if there is a dash mounted camera and the video and/or audion is clear and the defendant looks bad it is probably not a good case to try(assuming that the evidence is not suppressed).
Falling alseep in the back of the patrol car is not a good idea especially if there is a dash mounted camera. The camera can and will be swung around when the defendant is placed in the back of the cruiser. If he falls asleep the camera will probably catch it. What about the video at the jail? Well, if the defendant looks good and by good I mean no slurring nor hesitating over the rountine booking questions, then that is good. I can break it down on cross to point out that the defendant walked across the room, stood on the yellow X, wasn't swaying and didn't loose his balance. All good to work with. But if the defendant sounds slurred, has trouble with his balance, hesitated over his address or hair color, then this might not be the best case to go to trial on.
This is but a brief consideration of some of the factors I will consider. In any event the decision whether to go to trial rests with the defendant. If a trial is requested then a trial he/she will get.
I may be reached at 561-616-8700 or by e-mail at DUITIM@floridaduilawyer.com. My website is www.floridaduilawyer.com.
Copyright 2008
Friday, April 11, 2008
WHAT HAPPENS IF I'M JUST VISITING ?
There is an old saying "Come to Florida on Vacation and leave on probation"! Yes, this can happen! There are numerous individuals who come to Florida and are arrested for D.U.I. What happens you ask?
Well, for one thing an out of county ( again, I am speaking of Palm Beach County) defendant will have to post a monetary bond, either cash or through a bondsman, acting as a surety of your future appearance. Once out, you can of course go home. But assuming that home is a long way you are probably wondering if you have to come back to Palm Beach County for a court proceeding. Allow me to answer that with a rousing ,maybe! Your case proceeds like that of any other charged with D.U.I. . As such the State will provide the defense attorney with discovery, which are the reports, once received they are reviewed. If motions are indicated they are filed. If a Motion to Suppress is indicated, and the defendant is out of county or out of state, then I would request the court that you be allowed to appear by telephone. Now, you would not be allowed to testify but you could listen in.
Now, if the case went to trial, the defendant would have to return to Palm Beach County. There is a provision that a defendant can be tried in absentia BUT that really doesn't happen often! If a defendant did not wish a trial and wished to plead guilty then a Plea in Absentia would be accepted by the Court. A Plea in Absentia is a document containg the terms of the plea AND a waiver of rights by the defendant. The defendant also has to go their local law enforcement agency and be fingerprinted and return the fingerprints along with the Plea in Absentia.
The Court would accept the Plea and the the defendant would be placed on Probation. The defendant would be allowed to report to probation by mail and the defendant would have the burden of completing all the special conditions that have been mentioned in other articles on this blog.
You may contact me at 561-616-8700 or e-mail me at DUITIM@floridaduilawyer.com. My website is www.floridaduilawyer.com.
Copyright 2008
Well, for one thing an out of county ( again, I am speaking of Palm Beach County) defendant will have to post a monetary bond, either cash or through a bondsman, acting as a surety of your future appearance. Once out, you can of course go home. But assuming that home is a long way you are probably wondering if you have to come back to Palm Beach County for a court proceeding. Allow me to answer that with a rousing ,maybe! Your case proceeds like that of any other charged with D.U.I. . As such the State will provide the defense attorney with discovery, which are the reports, once received they are reviewed. If motions are indicated they are filed. If a Motion to Suppress is indicated, and the defendant is out of county or out of state, then I would request the court that you be allowed to appear by telephone. Now, you would not be allowed to testify but you could listen in.
Now, if the case went to trial, the defendant would have to return to Palm Beach County. There is a provision that a defendant can be tried in absentia BUT that really doesn't happen often! If a defendant did not wish a trial and wished to plead guilty then a Plea in Absentia would be accepted by the Court. A Plea in Absentia is a document containg the terms of the plea AND a waiver of rights by the defendant. The defendant also has to go their local law enforcement agency and be fingerprinted and return the fingerprints along with the Plea in Absentia.
The Court would accept the Plea and the the defendant would be placed on Probation. The defendant would be allowed to report to probation by mail and the defendant would have the burden of completing all the special conditions that have been mentioned in other articles on this blog.
You may contact me at 561-616-8700 or e-mail me at DUITIM@floridaduilawyer.com. My website is www.floridaduilawyer.com.
Copyright 2008
Wednesday, April 9, 2008
D.U.I. PENALTIES
So what happens if you are found guilty of D.U.I.? In Palm Beach County the typical plea offer, on a first D.U.I., from the Office of the State Attorney is 12 months of probation with the following speical conditions; A fine of $250.00, 6 months of driver's license suspension; attend 1 session of the Victim Impact Panel; Attend D.U.I. school and complete any recommended treatment; 50 hours of Community Service through the Office of Court based employment; 10 days of vehicle immobilization; court costs and usually no possession or consumption of alcohol while on probation. As an incentive the State Attorney will agree to early termination of probation after 6 months IF all the special conditions have been complied with! Oh, I almost forgot the convicted defendant pays $50.00 per month to be on probation
So what happens if you go to trial and lose. Well, a 1st D.U.I. may be punished by up to 6 months in the County Jail! Will you get that on a 1st D.U.I. No, of course not! Most of the current Judges in Palm Beach County that are assigned to hear D.U.I. cases WILL NOT incarcerate a first time offender if the defendant loses at trial. However, all of the foregoing penalties in paragraph one will be part of the sentence and the court has the discretion to increase the fine, the community service hours and length of license suspension!
The reader should be aware that second, third, fourth offenses all have enhanced penalties. Be advised that a third within 10 years of the second maybe classified as a felony at the discretion of the State Attorney. A fourth at anytime maybe either a felony or misdemeanor depending on the discretion of the Office of the State Attorney. Oh, and on a second and subsequent D.U.I the defendant will have to have an ignition interlock device installed on ANY car that the defendant owns, jointly leases or routinely operates.
The reader should also be aware that just to the North of Palm Beach County are the counties of Martin, St Lucie, Okeechobee and Indian River. Be advised if you go to trial on a 1st D.U.I. and lose a defendant will most likely go to jail.
So why fight a first? Because it is a first and the chances of going to jail after a conviction are almost non-existent, at least in Palm Beach County. If you don't take a chance (by a chance I mean the defendant didn't blow, looks good on the videotape and didn't say something incredibly stupid) then you come under the thumb of the system not to mention what your insurance company may do to you. There is also a possibility that a criminal conviction may affect your application for a job , credit, health or life insurance as well as automobile insurance!
I maybe reached at 561-616-8700. Please fee free to e-mail me at DUITIM@floridaduilawyer.com or visit my website at http://www.floridaduilawyer.com/.
Copyright 2008
So what happens if you go to trial and lose. Well, a 1st D.U.I. may be punished by up to 6 months in the County Jail! Will you get that on a 1st D.U.I. No, of course not! Most of the current Judges in Palm Beach County that are assigned to hear D.U.I. cases WILL NOT incarcerate a first time offender if the defendant loses at trial. However, all of the foregoing penalties in paragraph one will be part of the sentence and the court has the discretion to increase the fine, the community service hours and length of license suspension!
The reader should be aware that second, third, fourth offenses all have enhanced penalties. Be advised that a third within 10 years of the second maybe classified as a felony at the discretion of the State Attorney. A fourth at anytime maybe either a felony or misdemeanor depending on the discretion of the Office of the State Attorney. Oh, and on a second and subsequent D.U.I the defendant will have to have an ignition interlock device installed on ANY car that the defendant owns, jointly leases or routinely operates.
The reader should also be aware that just to the North of Palm Beach County are the counties of Martin, St Lucie, Okeechobee and Indian River. Be advised if you go to trial on a 1st D.U.I. and lose a defendant will most likely go to jail.
So why fight a first? Because it is a first and the chances of going to jail after a conviction are almost non-existent, at least in Palm Beach County. If you don't take a chance (by a chance I mean the defendant didn't blow, looks good on the videotape and didn't say something incredibly stupid) then you come under the thumb of the system not to mention what your insurance company may do to you. There is also a possibility that a criminal conviction may affect your application for a job , credit, health or life insurance as well as automobile insurance!
I maybe reached at 561-616-8700. Please fee free to e-mail me at DUITIM@floridaduilawyer.com or visit my website at http://www.floridaduilawyer.com/.
Copyright 2008
Tuesday, April 8, 2008
WHAT HAPPENS IF YOU GIVE A BREATH SAMPLE?
So what happens if you give a sample of breath, you ask? To put it simply, you have probably asisted the State of Florida in securing a conviction! From viewing the booking blotter at the Sheriff of Palm Beach County's website one would conclude that most D.U.I. defendants give breath samples. Why? Probably it has to do with desiring to make the cop happy or is similar to a complusion to confess in order to relieve one's mind. I am not a psychologist but I would guess the two aforementioned reasons are right up there!
Now you have blown and the reading is in excess of .08. Maybe a .16, or .24 or .316 or even higher. Yes, I have seen them all. What is one to do? Your chances are slim to none. Yes, there are possible stop issues which always should be considered, but quite frankly I USUALLY know as I am speaking to the client whether the "stop" issues are valid. If the stop is good then how can the blow be excluded from the case. The intoxilyzer 8000 is now in use in Palm Beach County Florida and elsewhere for that matter. The machine has to be calibrated and subjected to monthly maintenance . Records are required to be kept on the maintenance as well as who blows and what they blow.
There has been a cottage industry of "expert witnesses" regarding the reliablity of the machine. Yes, these hired guns are usually former law enforcement officers themselves. They will, usually for a SUBSTANTIAL FEE, come to court and testify that ABC and D was wrong with the machine on the day in question. Or, testify that a slice of white bread will register on the intoxilyzer( actually, I did see a slice of white bread register on a 5000). They will testify that the machine can be manipulated by the operator ( I once attended a seminar where the speaker, an "expert witness" admitted that he manipulated results of DUI defendants while he was a law enforcement officer). Of course, all this pre-supposes that there is not a videotape of the driver falling down drunk or sleeping in the chair in front of the intoxilyzer( Yes, I have actually had clients fall asleep in the chair on the videotape).
HOWEVER, keep in mind that a jury is completely free to disregard the testimony of the "expert" and convict the defendant anyway. What happens then? Well, the client has paid the attorney in full and paid the expert witness up front and now he faces sentencing on the D.U.I.
More on sentencing later! You may reach me at 561-616-8700. You may visit my website at http://www.floridaduilawyer.com/ or e-mail me at DUITIM@floridaduilawyer.com.
Copyright 2008
Now you have blown and the reading is in excess of .08. Maybe a .16, or .24 or .316 or even higher. Yes, I have seen them all. What is one to do? Your chances are slim to none. Yes, there are possible stop issues which always should be considered, but quite frankly I USUALLY know as I am speaking to the client whether the "stop" issues are valid. If the stop is good then how can the blow be excluded from the case. The intoxilyzer 8000 is now in use in Palm Beach County Florida and elsewhere for that matter. The machine has to be calibrated and subjected to monthly maintenance . Records are required to be kept on the maintenance as well as who blows and what they blow.
There has been a cottage industry of "expert witnesses" regarding the reliablity of the machine. Yes, these hired guns are usually former law enforcement officers themselves. They will, usually for a SUBSTANTIAL FEE, come to court and testify that ABC and D was wrong with the machine on the day in question. Or, testify that a slice of white bread will register on the intoxilyzer( actually, I did see a slice of white bread register on a 5000). They will testify that the machine can be manipulated by the operator ( I once attended a seminar where the speaker, an "expert witness" admitted that he manipulated results of DUI defendants while he was a law enforcement officer). Of course, all this pre-supposes that there is not a videotape of the driver falling down drunk or sleeping in the chair in front of the intoxilyzer( Yes, I have actually had clients fall asleep in the chair on the videotape).
HOWEVER, keep in mind that a jury is completely free to disregard the testimony of the "expert" and convict the defendant anyway. What happens then? Well, the client has paid the attorney in full and paid the expert witness up front and now he faces sentencing on the D.U.I.
More on sentencing later! You may reach me at 561-616-8700. You may visit my website at http://www.floridaduilawyer.com/ or e-mail me at DUITIM@floridaduilawyer.com.
Copyright 2008
Monday, April 7, 2008
WHAT IS D.U.I IN FLORIDA?
In the State of Florida a person is guilty of D.U.I if the person is driving or in actual physical control of a vehicle AND the person is under the influence of alcoholic beverages to the extent that his/her normal faculties are impaired or has a BAL of .08 or above or is effected by a chemical substance to the extent that his/her normal faculties are impared.
So what the hell does that mean, you ask? It means, do not drink and drive! But if you drink and drive and are stopped you have several decisions to make. As soon as the law enforcement officer observes the odor of the alcoholic beverage (alcohol itself is actually odorless) you are under suspicion. In all likelihood you are going to jail. However, there are ways to help yourself.
First, if the cop ask you whether you have been drinking admit to two beers at the most. Do not say a few and do not say 6 or 8 (I actually had a client say 6 and the jury found him not guilty). If the cop attempts to engage you in a conversation simply tell him you do not wish to have any law enforcement contact and that you wish to leave. Of course, he will not let you leave but now the ground rules are established! At some point in time the L.E.O. will ask you to perform field sobriety exercises. He may even have a dash mounted camera for this purpose. Now these exercises are not normal to begin with and no one performs them during their everyday daily activities! No one! I mentioned decisions before and here is one, if you are very well coordinated and you really haven't had more than 1 or 2 beers then you might wish to do the exercises. However, if you have had more than 2 beers, are not well coordinated at your best, or over 60, or overweight or are injured in someway or have a disability, then do not perform them. This will not make the L.E.O. happy but who cares.
So if you perform the exercises and do not do them well you will be placed under arrest! If you refuse to perform them you will still be placed under arrest! And off to the jailhouse you go! Upon your arrival there will be a wait from a few minutes to perhaps more than 1 hour. Eventually,you will be placed in a room where the L.E.O. will elicit some routine answers from you, such as your name, age, address, height, weight, eye color, hair color, date of birth. If you are in Palm Beach County you are on videotape. The questions may seem benign but when you answer your speech is recorded. So if you sound slurred that is preserved for the trial. If you have to stop and figure out one of the answers then that is preserved for trial. On the other hand if you are not slurred and there is no hesitation in your answers then that will work for you at trial (during closing I will point this out as evidence of non-impairment). Around now is the time to ask for a lawyer! But just so you know, you are not entitled to one at this time and the L.E.O. will make a lame, often very lame attempt to explain this to you. But you asked and it is on the tape ( I will make use of this in closing argument).
The L.E.O. will now ask for a sample of breath and it is decision time again. In my opinion it is important that you not dwell on the request simply tell him yes or no. If you ruminate over the request the jury may see you as confused or the jury may see you as a thoughtful human being (wow, this can go either way). Frankly you should have been thinking of this moment as you sat in the back of the cruiser! OK, if you had two beers or less and you weigh 180 lbs or more and several hours has elapsed since you last drink you are probably safe to blow. I say probably because there are no guarantees here! If you had more than two beers simply refuse to blow. If you refuse to blow the L.E.O. will read implied consent to you which states that if you refuse to give the breath samples your license will be suspended for 12 months and in the case of a prior refusal 18 months. So what, if you blow and you blow over .08 you have just given the Assistant State Attorney powerful ammunition to use against you!
So now it has been written up as a refusal and the L.E.O. now reads Miranda to you. I know, you thought he had to read Miranda to you well before this, right? But the Florida Supreme Court states differently. In any event DO NOT ANSWER THE QUESTIONS. TELL THE L.E.O. you wish to speak to a lawyer!
Next time, I will write on what happens if you give a sample of breath!
Please feel to call me at 561-616-8700 to chat about your D.U.I arrest or just to chat about life, the universe and everything else. My e-mail address is DUITIM@floridaduilawyer.com. My website is www.floridaduilawyer.com.
Copyright 2008
So what the hell does that mean, you ask? It means, do not drink and drive! But if you drink and drive and are stopped you have several decisions to make. As soon as the law enforcement officer observes the odor of the alcoholic beverage (alcohol itself is actually odorless) you are under suspicion. In all likelihood you are going to jail. However, there are ways to help yourself.
First, if the cop ask you whether you have been drinking admit to two beers at the most. Do not say a few and do not say 6 or 8 (I actually had a client say 6 and the jury found him not guilty). If the cop attempts to engage you in a conversation simply tell him you do not wish to have any law enforcement contact and that you wish to leave. Of course, he will not let you leave but now the ground rules are established! At some point in time the L.E.O. will ask you to perform field sobriety exercises. He may even have a dash mounted camera for this purpose. Now these exercises are not normal to begin with and no one performs them during their everyday daily activities! No one! I mentioned decisions before and here is one, if you are very well coordinated and you really haven't had more than 1 or 2 beers then you might wish to do the exercises. However, if you have had more than 2 beers, are not well coordinated at your best, or over 60, or overweight or are injured in someway or have a disability, then do not perform them. This will not make the L.E.O. happy but who cares.
So if you perform the exercises and do not do them well you will be placed under arrest! If you refuse to perform them you will still be placed under arrest! And off to the jailhouse you go! Upon your arrival there will be a wait from a few minutes to perhaps more than 1 hour. Eventually,you will be placed in a room where the L.E.O. will elicit some routine answers from you, such as your name, age, address, height, weight, eye color, hair color, date of birth. If you are in Palm Beach County you are on videotape. The questions may seem benign but when you answer your speech is recorded. So if you sound slurred that is preserved for the trial. If you have to stop and figure out one of the answers then that is preserved for trial. On the other hand if you are not slurred and there is no hesitation in your answers then that will work for you at trial (during closing I will point this out as evidence of non-impairment). Around now is the time to ask for a lawyer! But just so you know, you are not entitled to one at this time and the L.E.O. will make a lame, often very lame attempt to explain this to you. But you asked and it is on the tape ( I will make use of this in closing argument).
The L.E.O. will now ask for a sample of breath and it is decision time again. In my opinion it is important that you not dwell on the request simply tell him yes or no. If you ruminate over the request the jury may see you as confused or the jury may see you as a thoughtful human being (wow, this can go either way). Frankly you should have been thinking of this moment as you sat in the back of the cruiser! OK, if you had two beers or less and you weigh 180 lbs or more and several hours has elapsed since you last drink you are probably safe to blow. I say probably because there are no guarantees here! If you had more than two beers simply refuse to blow. If you refuse to blow the L.E.O. will read implied consent to you which states that if you refuse to give the breath samples your license will be suspended for 12 months and in the case of a prior refusal 18 months. So what, if you blow and you blow over .08 you have just given the Assistant State Attorney powerful ammunition to use against you!
So now it has been written up as a refusal and the L.E.O. now reads Miranda to you. I know, you thought he had to read Miranda to you well before this, right? But the Florida Supreme Court states differently. In any event DO NOT ANSWER THE QUESTIONS. TELL THE L.E.O. you wish to speak to a lawyer!
Next time, I will write on what happens if you give a sample of breath!
Please feel to call me at 561-616-8700 to chat about your D.U.I arrest or just to chat about life, the universe and everything else. My e-mail address is DUITIM@floridaduilawyer.com. My website is www.floridaduilawyer.com.
Copyright 2008
Sunday, April 6, 2008
Hello!!
My name is Timothy Foster and I have practiced D.U.I. Defense in Palm Beach County, Florida since 1994. Prior to entering private practice I was an Assistant Public Defender in Dade County, Florida from August 1990 until January 1993. After leaving the Dade County Public Defender's Office I was an Assistant Public Defender in St Lucie County, Florida from January 1993 until January 1994.
While an Assistant Public Defender I received my first taste of D.U.I. defense. I actually spent my first year in the Dade office handling D.U.I. cases. There is no better place to gain a wealth of criminal defense experience in the shortest time possible than the Dade County Public Defender's Office!Additionally, I have defended cases such as felony drug possession, trafficking in drugs, armed robbery, aggravated battery, assault, domestic battery, second degree murder, capital sexual battery.... well you get the picture I'm sure.
What I hope to accomplish with this blog is to inform the reader of some of the issues on D.U.I. in the State of Florida. I will also not hesitate to give you MY OPINION on various issues including the propensity of law enforcement to stretch the truth! I will also tell you this right up front, do not drink and drive. Allow me to repeat that, DO NOT DRINK AND DRIVE! Not only do you risk your life, but the lives of any passengers AND anyone else who is out in your path.
Please feel free to visit my web site at http://www.floridaduilawyer.com/ or to contact me at (561) 616-8700 should you have any questions or concerns. You may also e-mail me at DUITIM@floridaduilawyer.com.
Copyright 2008
While an Assistant Public Defender I received my first taste of D.U.I. defense. I actually spent my first year in the Dade office handling D.U.I. cases. There is no better place to gain a wealth of criminal defense experience in the shortest time possible than the Dade County Public Defender's Office!Additionally, I have defended cases such as felony drug possession, trafficking in drugs, armed robbery, aggravated battery, assault, domestic battery, second degree murder, capital sexual battery.... well you get the picture I'm sure.
What I hope to accomplish with this blog is to inform the reader of some of the issues on D.U.I. in the State of Florida. I will also not hesitate to give you MY OPINION on various issues including the propensity of law enforcement to stretch the truth! I will also tell you this right up front, do not drink and drive. Allow me to repeat that, DO NOT DRINK AND DRIVE! Not only do you risk your life, but the lives of any passengers AND anyone else who is out in your path.
Please feel free to visit my web site at http://www.floridaduilawyer.com/ or to contact me at (561) 616-8700 should you have any questions or concerns. You may also e-mail me at DUITIM@floridaduilawyer.com.
Copyright 2008
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