Articles Posted in DUI & BUI

dui 3Quick tip from ABC news…when your brother gets arrested for DUI and you want to argue with the cop, make sure you are also not driving under the influence

Florida Highway Patrol arrested a brother and sister for separate DUIs last Friday morning near Ocala.

Reports say that troopers received a BOLO (be on the lookout) call for a reckless driver going southbound on 75.  A trooper spotted the car and stopped it on State Road 200.  The driver, identified as 31-year-old Josue Moncada, was interviewed and eventually arrested for DUI shortly before 3:00 a.m.

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In a case of justice delayed but (finally) not denied, the case of the “affluenza teen” may finally have come to an end…

Ethan Couch, who killed four people in a DUI manslaughter case, but received no jail time in a case that outraged the nation finally received his punishment.

A Texas judge just sentenced him to two years in the Tarrant County jail-180 days per each person he killed.  While this seems light, it is the maximum punishment he could receive based on the conditions of his parole.  The judge announced that Couch’s terms of probation would be similar to what he was previously doing including no drugs/alcohol and he must get a job.

Ethan Couch was front page news in 2013 when a now retired judge sentenced him to 10 years of probation only after he drove into a crowd of people.  Though only 16 at the time, he was legally drunk on stolen beer and the crash killed four people including a youth pastor and  a mother and daughter.

The judge at the time listened to Couch’s criminal defense attorney who hired a psychologist.  The psychologist claimed that the boy was a victim of “affluenza” and that he was so spoiled from his family that he never learned the difference between right and wrong.  The court was told that the “child” never learned that actions have consequences.

The judge bought it and Couch stayed out of trouble…for a while.  Video last year showed him playing beer pong at a party which was a violation of his probation.  Rather then face the court, Couch and his mother Tonya fled to Mexico.  They both changed their appearance with Couch sporting dyed blonde hair and his mother holding tens of thousands in cash.  They were arrested in Puerto Vallarta in December and he was deported in January.

As of this writing, his mother still faced a third-degree felony charge.

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dui 3Standardized field sobriety tests were developed in the 1970s. Even at the time, the science behind them was known to be a little bit unreliable. Unfortunately, says NY speeding ticket lawyer Zev Goldstein, they continue to be used across the country, in many cases as part of the evidence to convict otherwise responsible individuals. It is crucial, therefore, that lawyers attempting to fight a drunk driving charge are able to fully understand field sobriety tests, their roots, and why they might not be as reliable as many people believe.

Field Sobriety Tests Are Voluntary

Drivers who are stopped for a field sobriety test don’t have to take them. Taking a field sobriety test is voluntary. In many cases, however, defendants may not even realize that they’ve given permission for the Horizontal Gaze Nystagmus test—or that the officer has likely already decided on the verdict before the test is conducted.

Three “Reliable” Tests

There are a variety of sobriety tests that are actually used in the field. Many people have been asked to touch their noses, recite the alphabet backwards, or perform a variety of other tasks. However, there are only three tests that are even somewhat reliable in determining whether or not a subject is inebriated:

The Horizontal Gaze Nystagmus test requires the officer to evaluate the way the individual’s eyes move in response to outside stimulus. Typically, they’re asked to follow a pen or a small light while the officer looks for eye movements that are jerky, an inability to follow the pen, and when the eye begins to jerk.

The One Leg Stand test is exactly what it sounds like. The individual being tested must raise one leg off the ground, look at it, and hold the position for thirty seconds while counting by thousands.

The Walk and Turn test requires the subject to take heel to toe steps on a straight line, then turn and repeat it in the other direction.

Even if all three tests are used correctly—that is, conducted exactly according to the instructions and combined—they only have an 83% accuracy rate in predicting a BAC of more than 0.10. That allows for a 17% deviation based purely on other circumstances and doesn’t allow for tests that have been performed incorrectly.

Planting Seeds of Doubt

It’s the lawyer’s job to convince the jury from the very beginning of the trial that these tests aren’t as accurate as most officers would like for them to believe. Start with the knowledge that 98% of officers conducting the tests do them wrong. They don’t perform them under controlled circumstances: the ground at the side of the road is often uneven, and wind, the placement of the sun, or a variety of other conditions can impact the results. These seeds of doubt should be planted from the very beginning so that by the end of the trial, the jurors are already convinced of the defendant’s innocence.

Evaluating the HGN Test

The HGN test is the most misunderstood of the three tests and the one that it is most difficult to properly evaluate. Many officers don’t even know how to correctly administer it: they may move the pen too fast, hold it for too short a period of time, or fail to correctly identify the eye movements that can indicate intoxication. They may also fail to properly identify a 45 degree angle—something that you can ask the officer to do on the stand. Check the video and time it: if the test takes less than a minute, the officer has done something improperly. All of these steps are critical to ensuring that the client isn’t facing a DUI charge through no fault of their own.

In many cases, standardized field sobriety tests are designed primarily to incriminate, not to prove anything. By the time they pull over the driver, many officers have already made their decision. Once the case goes to court, however, it’s the lawyer’s job to ensure that those tests are not used to incorrectly convict someone who isn’t guilty.

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Saint Petersburg, Florida

From the Tampa Bay Times, what NOT to do when you have been drinking and driving

Last Tuesday, a 57-year-old local Saint Petersburg woman was arrested for a DUI.  The police first detected she may have been intoxicated when she crashed into a marked patrol car!

A SPPD officer was sitting in his cruiser on central and 31st street with his lights on.  Around 8:35 p.m., the woman rear-ended the patrol car with enough force that the officer had to go to Bayfront Health nearby to get checked out.  Both the officer and the suspect were later released from the hospital.

At the scene of the crash, the suspect showed several signs of impairment and after a DUI investigation, she was arrested and later bonded out.

While the suspect IS innocent until proven guilty, a search of her public records show several prior drinking related charges including prior traffic infractions, a prior DUI and several counts of battery on a law enforcement officer.

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dui 317th time is not the charm for a woman as she picked up yet another DUI, what will happen to her?

In Shelbyville, Tennessee, a woman has been arrested for her 17th DUI and her 16th driving while license  suspended!

Dorothy Hanson began her DUI marathon in 1985 and it has only escalated.  She has picked up six more in the last 10 years!florida dui

Florida dui defense attorneyThe Washington Times has a brief blurb on a drunk man and his 15 minutes of fame as he crashed into Rod Stewart‘s Palm Beach home’s mailbox…

A Niceville, Florida man was charged with driving under the influence with property damage after he crashed his Toyota into singer Rod Stewart’s Palm Beach home.  The only casualty was the “Do you think I’m sexy” crooner’s mailbox.

37-year-old Michael Hutson Lutz was pulled over by the Palm Beach police shortly before 8:00 p.m. when the officer noticed his vehicle weaving on the road and crossing the center lane.  As he pulled over for the police, his car struck Stewart’s mailbox along South Ocean Boulevard.  Mr. Lutz’s night only went down from there.

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When asked for his driver’s license, the defendant gave the cop his credit card.  The arrest report noted that the man had bloodshot, watery eyes, a “distinct odor of alcohol on him” and spoke with a heavily slurred speech.

The officer called in the DUI squad and Michael performed and failed five separate “Field Sobriety Exercises”.  These included the “walk and turn”, “finger-to-nose” and “one leg stand”.

The impaired suspect was arrested and per the police report he made “several inappropriate statements” on the way to the police station.  He was booked in and was offered a breathalyzer.  He blew almost three times the legal limit of a .08!

As far as the innocent mailbox, the Palm Beach Police Department estimated damage in the amount of $500.  Being that Rod Stewart is worth between 25-100 million dollars (at least), it is safe to say that the mailbox will be replaced.

At the time of this writing, Michael Lutz was unavailable for comment and his criminal defense attorney declined to make a statement.  It was unclear if the defendant had any prior DUIs but his driving record showed traffic infractions for speeding, running a stop sign and others.
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Pinellas DUI defense attorneyA local man is arrested for a DUI after fleeing from police.  He blames his four-legged best friend, saying his dog was driving.  Police investigated and found out a problem with his story…

26-year-old Reliford Cooper was arrested in Manatee and booked for Driving under the influence with property damage and obstruction after police found him hiding in a church.

The suspect led police on a long chase through residential neighborhoods before crashing into a ditch and fleeing on foot.  He was found hiding in a bathroom at a local church where parishioners helped the cops gather up the defendant.

“My dog was driving that car. I ran because I wanted to. You ain’t gonna find no drugs or guns on me.”  These were the first words out of Cooper’s mouth, according to the police.

The report also stated that he smelled of alcohol and marijuana.  The suspect then threw up and complained that his back was injured.  At the time of this writing, the man was still in jail.dui 3

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Tampa DUI defense lawyerWe have previously blogged about the now infamous DUI set-up during a civil trial involving two Tampa Bay area DJ s.  We then blogged about the possible punishment and the aftermath.  Now there is word coming down that the Florida Bar has recommended permanent disbarment for several of the involved.  Is this an unfair punishment or is this justice?  The Supreme Court may have the final word…

Pinellas County senior judge W. Douglas Baird will have some tough decisions in the next few months.  The Florida Bar has asked the judge to disbar three of the lawyers involved in the high profile defamation lawsuit in 2013.

Florida Bar attorneys made a recommendation for Stephen Diaco a partner in a Tampa Bay law firm, to be permanently disbarred for his role in a rival lawyer’s DUI arrest in 2013.  Stephen Diaco’s actions were called “malicious and [done] for personal gain”.  The disciplinary committee went on to mention how his set up arrest and subsequent possible discovery violations disrupted a defamation trial and “tarnished the reputation of the legal profession and the Tampa Police Department”.

Tampa criminal defense attorney

Tampa Bay criminal defense

 

Stephen’s fellow collaborators were not off the hook.  Based on their lesser actions, the State Bar recommended that both Robert Adams and Adam Filthaut be disbarred for five years (meaning they would be unable to practice law for at least five years, must alert their clients and shut down their firm/make arrangements for an orderly transition).  After this five year “break”, Robert and Adam would be able to reapply to the Florida Bar.  They most likely would have to retake the Florida Bar exam, go through the admission process and have their character questioned.  Additionally, they will forever have an ethics “black mark” next to their name.

Just last month, the Honorable Douglas Baird found all three of the attorneys guilty of unethical actions based on their conduct.  To recap, this was the opposing lawyer (the former 93.3 DJ MJ’s attorney) who was seen drinking at a bar during trial by Diaco’s secretary.  She quickly called him and his colleagues.  They instructed her to keep the attorney there and to keep him drinking.  The secretary kept flirting with the attorney, buying him drinks and lying about where she worked.  Meanwhile, Diaco and the gang were contacting a Tampa police department officer (now fired) who happened to be their friend.

When the time was right, the plan was put into action.  The secretary insisted that the rival attorney move her car, despite him telling her no several times, he eventually relented and was instantly pulled over by the same police officer.  He was arrested for driving under the influence and all his legal briefs and trial preparation  was left in the secretary’s car overnight.

Judge Baird mostly blamed Stephen Diaco for being the ringleader, finding him guilty of twice the violations as either Robert or Adam.  Among the most egregious violations?  Lying to a judge under oath about not knowing who his cellphone provider was!

Diaco’s lawyers defended their client, asking the judge not to destroy his career.  They mentioned his charitable works and his remorse.

Meanwhile, the other attorneys were still begging for a 91 day suspension- a request that has previously been rejected by a judge.  Continue reading

dui 3A former NFL QB arrested for a DUI is normally not a newsworthy story.  What makes this case interesting is the sheer high number of his B.A.C.

Former Indianapolis Colts quarterback Jack Trudeau was arrested last Sunday for driving under the influence, public intoxication and disorderly conduct in Zionsville, Indiana.

The Colts originally picked the now 52-year-old Jack Trudeau in the second round of the 1986 draft out of the University of Illinois. He played reasonably well for Indianapolis until 1993 and then bounced around to  the New York Jets and the Carolina Panthers before retiring in 1995.

A local police report said that Jack was pulled over for erratic driving late at night.  He was questioned and the cops determined a DUI investigation was warranted. During the police investigation he showed signs of impairment and was arrested after failing field sobriety exercises.

The police report further mentioned that Jack Trudeau threatened a police officer during the arrest. It says a portable breath test showed Trudeau had a blood-alcohol content of 0.31 percent, nearly four times the legal limit of 0.08 percent!  At that level, a person is reaching a life-threatening amount of alcohol in the system.

LEGAL ANALYSIS 

Florida DUI crimesIn Florida, anything at a .15 or above is known as an enhanced blow.  This may result in a larger fine, more jail time and a mandatory  DMV-ordered alcohol ignition interlock to be placed in the suspect’s vehicle before he is allowed to drive again.  You may also be looking at an extended driver’s license suspension.   In addition, extra punishment such as community service hours or talking to schools or groups about your crime is not unusual.

In Pinellas County, a blow above .15 is no exception when it comes to enhanced punishments.  Besides the mandatory penalty of the ignition interlock, an enhanced fine will almost certainly happen.  Additionally, a stint in the Pinellas County jail is not unusual, even if it is a first time offense.

The Florida DUI statute (316.193) explains the range of punishments depending on the number of DUI, injuries, and other circumstances.  While the statute codifies the law and punishment, keep in mind that the ranges vary widely from county to county. Continue reading

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In a previous blog, we had written about a Florida woman who was texting as she ran a red light, causing a fatal automobile accident. She was charged with DUI manslaughter as a result of her actions.

Coming on the heels of this, the Miami Herald had a long article about that case and comparing her prison sentence to other similar defendants. The results are surprising. Throughout Florida, while DUI laws are identical, the punishments are definitely not. The severity of the punishment varies by location, judge, gender, age and race among other things…

The defendant featured in a previous blog post, 20-year-old Kayla Mendoza tweeted “2 drunk 2 care” before killing two young women in a drunk-driving crash. She tearfully admitted guilt, but, faced with furious relatives of the deceased, a Broward judge slammed her with a 24-year prison term.

A few days later, a known alcoholic by the name of Antonio Lawrence, 57, faced a Miami-Dade judge for plowing into a restaurant while driving drunk, killing two church elders. Relatives of the deceased offered forgiveness. The defendant only got 10 years.

In a different courtroom in the same courthouse, on the same day, 27-year-old Edna Jean-Pierre took responsibility for killing one person in a DUI crash, then killing another in a hit-and-run crash — while out on bail in the first case! A separate Miami-Dade judge sentenced her to a relatively light four years in prison- a ruling that infuriated relatives of the victims.

The daughter of the second victim killed by Jean-Pierre, Sonya Estiven was livid. “I would have preferred 10 years. Eight years, I would have been a little mad,””But for her to have only got four years, I’m still shocked. I’m still upset. I’m still depressed. The judge sent a message that it’s OK to drink and drive.”

The Florida DUI manslaughter laws include a four-year mandatory minimum for a conviction. After that, judicial discretion comes into play and prison terms vary widely from cases to case based on the county, the victims relatives, prosecutors and other quirks.

The four-year minimum mandatory term is a newer addition to the law, added eight years ago in 2007 over concerns about judges being too soft on drunk drivers who kill. Known as the “Adam Arnold Act,” the law was named after a Key West teen who died in a crash in 1996, and where the driver got only three years of probation.

The newspaper studied over the prison records of 400 fatality cases resolved in Florida in the last three years. They found that since 2012 the statewide average sentence for DUI manslaughter is just under 10 years behind bars. Looking throughout Florida, Miami-Dade had the most cases in that time span, 66,but had among the lightest average sentences with convicts serving an average of just over 6 years in prison. Nearby Broward County had 27 cases with the defendant’s average sentence resulting in a prison time just under 10 years.

The farther north you go in Florida, often the harsher sentence one receives. Palm Beach convicts average 11.54 years in prison for DUI manslaughter, while those in Hillsborough County (Tampa) serve about 10.18 years.

As mentioned previously, there are multiple reasons for the disparity in sentences. Outcomes are swayed by a host of factors: the strength of evidence, the skill of defense attorneys, circumstances of a crash, a defendant’s criminal history, media glare and especially on the Gulf Coast, the desires of a victim’s loved ones.

“Victims drive to a good degree what the sentence outcome will be,” said a criminal defense attorney. “Victims who are not active, not engaged with the state attorney’s office, are going to see a lower number in the sentencing.”

This was certainly true in the above case of Jean-Pierre, who in 2009 drove drunk, killing a man outside of his car on the side of an interstate. The case dragged on for years — until in early 2014, while still on bail, she hit a pedestrian as she was walking along a dark street. The defendant, a nurse, left the scene and immediately took the car to get repaired at a body shop.

Both of Jean-Pierre’s cases had problematic evidence and were not assured convictions for the state at trial. While Florida sentencing guidelines called for for 12 years in prison, the Judge departed after hearing that Jean-Pierre was a mother of two and was a victim of domestic violence. She enraged the victim’s daughter when the defendant was sentenced to just four years in prison.

While the victim’s daughter penned a letter that was read out loud to the judge, no other family members were involved in the case and for some reason her crimes were not given heavy media coverage.
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Drunk drivers who kill rarely escape at least the mandatory four year’s prison time but prosecutors can waive the minimum four mandatory. For example, in a 2009 case pro football player Donte Stallworth received only 30 days in jail and a lengthy probation for killing a pedestrian in Miami Beach. The prosecutors claimed they offered the plea bargain because there was no guarantee of victory at trial. The victim was not in a crosswalk that dark morning when he was struck.

In that case, the decision to support the lighter sentence hinged on the victim’s relatives, who pushed for the deal after receiving a large settlement from Stallwort!.

In my opinion, the number one determination in the sentence you receive is victim’s families and their willingness to forgive. In Lawrence’s case above, he met with families of the two victims killed in the crash, became heavily involved helping recovering alcoholics and even surrendered to jail early before pleading guilty. The Miami-Dade Judge responded by giving him a relatively light sentence of 10 years, much less than the 34 years he faced had he been convicted at trial.

Oftentimes the emotional reaction of relatives also can clash, with some urging leniency while others called for heavy punishment.

For example, the family of a Coral Gables jogger killed by a drunk driver wanted a stiff sentence and got one — at first. The defendant who drove drunk and killed the victim back in 2008, got 12 years in prison during an emotionally charged sentencing hearing.

The defendant had pleaded guilty with no plea deal. But a judge later threw out the sentence after his lawyer admitted he botched the case. Soon after the state realized the case had problems. One vial used to collect the suspect’s blood was expired, and the deceased had stopped in the middle of the darkened road to adjust his iPod — giving the defense an avenue to shift the blame. The defendant ultimately winded up doing five years in prison-much to the anger of the deceased’s parents.

Closer to the Gulf Coast, two young women in well-known cases in the social-media age had drastically different outcomes.

A 20-year-old South Beach bartender, was drunk when she hit and killed a chef walking across the street, then fled the scene before her arrest. On facebook the defendant described herself as a “party princess” and posted multiple photos of her drinking and partying-some of which might have been taken after her arrest! Despite that, in 2013 she tearfully accepted — with the victim’s family approval — a plea deal that called for just four years in prison followed by house arrest and probation.

Two years later another young woman tweeted “2 drunk 2 care” before driving the wrong way on an expressway, plowing her car into another incoming car back in November 2013. Killed in the other car: best friends Marisa Catronio and Kaitlyn Nicole Ferrante, both 21.

The suspect had been drinking at a work party and had a blood-alcohol content level nearly twice the legal limit. She pleaded guilty with no plea deal. She thought she had helped herself by giving two depositions to help the victim’s civil lawsuit against the restaurant where the work party was held and T-Mobile store where the suspect worked. Yet at her sentencing in in a highly publicized hearing, relatives angrily asked the Broward Circuit Judge for the max of 30 years (15 years per count).

Despite her cooperation, her young age, her remorse and lack of any prior criminal history, the judge responded by giving her 24 years!

Her criminal defense lawyer was in shock .”My client was doing everything she could to handle this the right way, and she still got slammed,” he said.

Her attorney admitted the flippant tweet and heavy media coverage provided little incentive for the judge to reduce a sentence. That one text captured the imagination of the public and probably put pressure on the judge.
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