Posts Tagged ‘DUI’

Taking the Breath Test: You’re On Your Own!

April 16, 2010

If you’re arrested for DUI, you’ll be asked to take a breath test.  You may not realize it, but when you get a driver license, you agree in advance to take the test (check the small print on your license). If you refuse, the Department of Motor Vehicles  (http://bit.ly/o4dFs )will suspend your license for a year. If you’ve refused before, the suspension will be 18 months, and you’ll be charged with a crime for the refusal (a first-degree misdemeanor).

The officer who administers the test is supposed to tell you what will happen if you refuse. But you don’t have the right to talk to a lawyer before you decide whether to take the test. Now, a Florida appellate court has specifically ruled that the officer does NOT have to tell you that you don’t have the right to talk to a lawyer before deciding. The officer only has to explain the direct consequences of a refusal.

The process might seem backward, but it’s the law in Florida. First you get arrested, then you decide whether to take the breath test, then you talk to a lawyer.

Don’t skip the third step. Exercise your right to talk to a lawyer before deciding how to plead to a DUI charge!

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DMV Misinforms About Right to Hearing

March 15, 2010

A prospective client called today about a DUI case. The client had gone to the Wilson Boulevard DMV office to apply for an administrative hearing on his license suspension, only to be told that he was not eligible for a hearing because he had refused the breath test. WRONG! I can’t imagine why anyone at DMV would misinform someone about his rights under the law. I hope that this was just a mistake by someone new who misunderstood the rules and that a supervisor intervenes before anyone else is turned away.

If, heaven forbid, this were to happen to you, cite the statute,  http://tinyurl.com/yefudgq, and hold your ground! Better yet, call an experienced DUI lawyer before your 10 days runs out! 

DUI: Searching Your Blood?

January 20, 2010

I was out of town last week when the Times-Union ran a story about a Jacksonville DUI ruling with huge implications for everyone in the community.  I almost fell off the sofa Sunday afternoon when I saw the headline.

Florida law outlines very limited circumstances in which the police are allowed to force a suspected drunk driver to give a blood sample for testing of the driver’s blood alcohol content.  Basically, unless you’re involved in an accident that causes a death or a serious bodily injury, the law doesn’t give the police the authority to take your blood.

But the State Attorney’s Office, in my opinion, did some legal gymnastics in an effort to circumvent the Florida statutes. In accident cases not involving death or serious bodily injury, the police started seeking search warrants, arguing that a suspected drunk driver’s blood is property that can be seized upon a showing of probable cause.  Some local judges were signing off on these warrants, allowing forced blood draws.

Defense attorneys, of course, contested this practice.  Finally, Jacksonville attorney Scott Mitchell brought a test case.  The trial court judge agreed with Scott that this new practice did not comply with Florida law.  The State appealed, and the case went before a three-judge panel of circuit court judges.  Two out of the three judges ruled against Scott’s client, but I don’t think the case will end there.  We can look forward to another appellate round.

The Florida legislature was very specific in writing the DUI statute. If the public wants the law changed, then legislators should respond by amending the statute.  Unless and until that happens, the police should follow the law just like they expect drivers to do.

Sentencing Guidelines, Part II

January 18, 2010

I came across another example of the way our judges are not allowed to use their own judgment anymore.  These are the kinds of things that don’t make the newspapers.  “Tough on crime” rolls off the tongue really easily, and it makes us all feel good, but it doesn’t take into account all the cases that get swept under the rug of injustice in our furor to rid our streets of violent crime.

This was a Jacksonville case.  The charge was possession of cocaine.  The defendant had prior felony convictions, and the sentencing guidelines called for a minimum sentence of 14 months in prison.  But the trial judge felt that the defendant was amenable to drug treatment, so he sentenced the man to six months in the county jail, to be served in the residential drug program (which is a well-respected treatment program).  The state appealed, arguing that the judge did not have a valid reason for sentencing the man to a sentence lower than the sentencing guidelines called for.  The First District Court of Appeal agreed, ruling that the judge did not have a valid reason for a “downward departure” sentence, and sent the case back to the trial court for resentencing within the guidelines.

I’m not faulting the First District Court of Appeal.  The court’s legal reasoning was correct.  And I’m not saying that the trial judge’s sentence was the one I would have imposed.  I don’t know anything about the particular facts of the case.  I might have felt that a prison sentence was more appropriate.  The point is that trial judges are supposed to use their experience, reasoning, and judgment in making these kinds of decisions, and in many cases their hands are tied.  The law does not always permit them to impose the sentences they feel are appropriate and justified under the particular circumstances of the case.

If you were in front of a judge, no matter whether it was for a traffic ticket, a DUI, or any other crime, wouldn’t you want the judge to make a sentencing decision based on all the facts? Wouldn’t you want the judge to consider your particular circumstances?  I know I would.