Articles Posted in DUI & BUI

A 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 

In 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

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.

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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A quick story in BayNews9 about a coordinated law enforcement “wolfpack” that took place the day before the holiday last Friday. The end result? 12 arrests for driving under the influence, several arrests for drug possession and a whopping 120 traffic citations!

Starting Friday, July third and ending Saturday morning, the latest “Wolfpack” was a coordinated effort between the Pinellas County Sheriff’s Office, Florida Highway Patrol, Saint Petersburg Police, Clearwater police and the Pinellas Park police department, among others.

With much of Pinellas county saturated with law enforcment, it was not surprising that there were numerous arrests. The final numbers were still surprising. There were 12 arrests for DUI. Thirteen people were arrested for possession of a controlled substance, five for miscellaneous violations, several violations of probation, two for driving with a suspended or revoked license and one for felony driving with a suspended or revoked license.

More than 120 citations were also issued, including 63 for speeding. The remaining citations were varied and included careless driving, no headlights and tag not assigned.
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While the weather has been hot for months, the official arrival of summer brings with it more boating. Whether deep sea fishing or pleasure cruising, boating accidents are a serious problem faced by many residents in Florida. According to Florida Fish and Wildlife , Florida leads the country in boating accidents per year. each year than any other state. Alcohol (boating under the influence) plays a large part, coming in as a top-10 cause of boating accidents in Florida.

Recently, a pair of proposed bills in the Florida House and Senate could affect how the state handles convictions for boating under the influence of alcohol (BUI). The two proposed bills, House Bill 289 and Senate Bill 598, would toughen the penalties for a person convicted of boating under the influence of alcohol. If passed, the laws would go into effect in July of this year (2015). There are three primary provisions of the proposed legislation:

1. BUI convictions would be reported to the Department of Highway Safety and Motor Vehicles. This would mean a possible DRIVING suspension for a BOATING infraction!

2. BUI convictions would be recorded on a person’s driving record, just like convictions for driving under the influence (DUI);

3. Prior BUI convictions would be considered prior DUI convictions for purposes of enforcing Florida’s DUI laws, and vice versa! Currently, BUI convictions are not counted as DUI convictions for purposes of enhancement. If the law(s) are passed, a previous DUI charge may be used against you to enhance a BUI charge. Also, in the state of Florida, you can be charged with a felony DUI based on previous convictions (ie. three DUI charges in 10 years or four in total). If this bill passes (see below), a person can be looking at a felony DUI charge and a permanent driving suspension based on boating under the influence convictions from decades ago!

Besides bringing up potential constitutional issues, this bill had both supporters and opponents up in arms. If passed, the bill would go into effect July 1, 2015. As of this writing (June 2015), the Senate bill died in committee and there are no plans to reintroduce it.

What were the bills purpose? Clearly they aimed to reduce the number of boating accidents on Florida waterways,but they also opened up a “boatload” of issues. Criminally, we have already discussed potential issues.

For the victims of BUI and their personal injury attorneys, whole new avenues might have opened up. A person injured in Florida by a drunk boater can seek damages through the civil court system by filing a negligence lawsuit. To win this claim, the plaintiff must prove that the defendant owed the victim a duty, that the duty was breached, the plaintiff sustained damages, and that the breach was an actual and proximate cause of the damages.

Punitive damages are always a possibility in a DUI or drunk boating crash. If these bills had passed, would there have been a possibility for punitive damages based on PRIOR DUI/BUI convictions as well?

All boaters in Florida owe the people around them, including their own passengers, a duty of reasonable care. A person who chooses to drink alcohol and operate a boat has breached this duty, since his or her actions unreasonably endanger others and themselves. Hopefully this summer’s boating will be safe and fun for residents of the “Sunshine State”.
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The Tampa Bay Times had a brief story about DUI arrests in Pinellas over the Memorial Day weekend.

15 people were arrested for driving under the influence and one person was arrested for DUI manslaughter by Pinellas County law enforcement.

This took place during a DUI “wolf pack” operation that took place between 8p.m. Saturday and 5a.m. Sunday. Pinellas County Sheriff’s Office combined with Saint Petersburg, Largo, Gulfport and Tarpon Springs police agencies.

A “wolf pack” is a term used when police make an effort to bring attention to DUIs. Using special patrols or often “sobriety checkpoints”, police can often make numerous arrests during known drinking holidays. Often it is a coordinated effort between numerous jurisdictions and agencies. During this operation, police also arrested other drivers on a variety of charges, from a DUI involving serious bodily injury to illegal drug charges.

This operation might have come in handy just a few days later after a driving mishap in Saint Petersburg. In a story that drew quite a bit of attention, 59-year-old David Ellis drove his minivan over the bridge and into the water Tuesday afternoon.

The accident took place near Snell Isle and Coffee Pot Blvd NE. Mr. Ellis suffered minor injuries but refused medical treatment. The reason for the accident soon became clear. David was arrested for an enhanced DUI and blew a .273 and .264, over three times the legal limit! This was not his first brush with the law as he was found to have at least two prior DUI convictions.
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While you don’t often think of TMZ as a sports news source, they brought attention to a former player and his “extreme arrest”.

Ex-Michigan star and high first round draft pick Braylon Edwards was arrested and charged with an “extreme DUI” in Arizona. The third overall draft pick in the 2005 NFL draft was always deemed a “disappointment” and never played up to his ability. He was last on a NFL team three years ago.

The ex-Browns, 49ers and Jets player was arrested for a “extreme DUI”. This means that his Blood Alcohol content was above a .20.

This was not Braylon’s first brush with the law. In 2010, he was arrested for another driving under the influence charge and the team was under pressure to suspend him for the upcoming Dolphins game. He instead sat on the bench for the first quarter, causing a large public outcry.

For his career, Braylon has 40 touchdown passes and over 5500 receving yards over an eight year career.

LEGAL ANALYSIS

If this had taken place in Florida, there would have been no “extreme DUI”. In our state, there is an enhanced blow of .15, much lower then Arizona’s “extreme 2.0”. In addition, if this had been a second DUI with in five years, he would almost certainly be looking at jail time as well as a mandatory ignition interlock for 24 months.
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The local CBS station produced a heartbreaking story about a woman that was texting seconds before her car accident that cost her friend her life…and potentially the woman’s freedom.

“I’ll be dead thanks to you”…”Driving Drunk- woo”…These were just a few of the messages that 22-year-old Mila Dago sent her boyfriend moments before she ran a red light and crashed into a moving truck. The resulting crash ended her passenger’s life and now Ms. Dago has been charged with DUI manslaughter.

Miami police released those texts from Ms. Dago along with several others messages she had sent that night to her boyfriend. Officers painted a scene of the defendant out on the town with her friend. Sometime during the bar hopping she had gotten into a text war with her boyfriend that ended in a break up. This seemed to have set Mila off. Her texts became angrier and angrier until she sent off the above two.

At almost 4:45 a.m., just three minutes after those texts were sent, prosecutors claim that she ran a red light in downtown Miami, plowing her rental car into a moving truck. The truck driver was knocked unconscious but otherwise not harmed. Her friend, who was with her bar hopping throughout the night, was not so lucky. She was pronounced dead at the scene.

Arriving police noticed the smell of alcohol and signs of impairment. Blood tests were taken and she was found to have a B.A.C. of .178 over two hours after the crash. This is twice the legal limit of .08!

While this tragedy took place in August, she was not formally charged until January because her blood results took so long to come back. The defendant has pled not guilty and they are still awaiting a trial date. She has been charged with DUI manslaughter, vehicular homicide and two counts of DUI with property damage.

This latest DUI or vehicular homicide incident is one of numerous similar cases that have taken place in South Florida in the past year.

Her criminal defense attorney offered sympathy for the victim’s parents but would not comment on the case as it was ongoing.

A seperate wrongful death lawsuit is also pending between the victim’s parents and Ms. Dago as well as the car rental company. The lawsuit is claiming that the rental car company was responsible as it was a forseeable risk that impaired people may rent a car. They are claiming that the cars should be equipped with a alcohol ignition device that would measure B.A.C. before the car could start. This is the same device that judges often order certain DUI offenders to install in their vehicles.
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The New York Daily News chips in on a local Florida woman who got in trouble after a night out.

23-year-old Lydia Kelm, a nurse, was arrested at a McDonald’s drive-through early Monday after causing a scene. She might also have been allergic to clothes as she was found clad only in a bra and underwear!

Ms. Kelm was at the McDonald’s drive-through in Leesburg, Florida at around 3:30 a.m., less then two miles from the police department. After placing her order, she began to rev her engine multiple times and was backing up in a one-way lane. Employees had to yell at her multiple times to pull forward to the window.

According to the arrest affidavit, Ms. Kelm :seemed to be confused, lethargic and had slurred speech”, all signs of impairment. The DUI suspect told the police when they arrived that she only had three drinks.

Officers had her perform field sobriety exercises after letting her borrow a coat to wear in the below 50-degree weather. As one might guess, she performed poorly.

She was arrested and taken to the police station where an alcohol reading of her breath was done. She was found to be over three times the legal limit of a .08!

The underwear-clad woman was booked into the Lake County jail and charged with driving under the influence.
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While it happened almost two years ago, the Bubba the Love Sponge vs. MK defamation trial is still talked about today. Besides the nature of the case itself, the big sideshow was the setting up of MJ’s attorney by Bubba’s lawyers. The set up resulted in MJ’s lawyer getting arrested for a DUI and his trial material being left in the opponent’s car! Now the “chickens are coming home to roost” for the lawyers involved…

In Clearwater, Florida three of the lawyers involved in the set up and arrest of an opposing attoney for a DUI are close to a plea deal. This deal may involve surrendering a law license for at least one of the accused.

Stepen Diaco, partner in the Tampa firm of Adams & Diaco, agreed to surrender his license to practice law as part of a plea bargain. This was done in part to protect his law firm. Two other lawyers there, Robert Adams and Adam Filthaut agreed to receive a 91-day suspension.

The plea deal still would need to be approved by both a Pinellas County senior judge and the Florida Supreme Court.

Even if the agreement is approved, it is still controversial. The agreement does not call for any of the attorneys to admit guilt for their roles in the arrest of an opposing counsel in the middle of trial. They only would have to admit to poorly supervising a paralegal at their firm. This might have been done as the accused attorneys are still facing a FBI investigation and possible criminal charges.

The details are still talked about today. In early 2013 there was a defamation law suit between radio DJ Todd “MJ” Schnitt and Bubba the Love Sponge.

The Florida Bar, which filed a formal legal complaint against Adams & Diaco, alleges several underhanded methods the firm used by the firm to help Bubba prevail.

MJ’s counsel was eating dinner at a local steakhouse in Tampa (Malio’s) after court in the middle of the civil suit. An attractive lady sat next to him and started talking to the attorney. She claimed that she was a paralegal for an unrelated law firm but in reality she lied. In reality, the woman (Melissa Personius) was a paralegal working for Adams.

Phone records that came out during discovery later showed that during the dinner with the attorney, she was texting and calling her boss multiple times. He, in turn, would reply.

After several drinks, she asked MJ’s lawyer to drive her home. He offered to get her a cab, he offered a call service and even asked her to keep her car there overnight. The Adams’ paralegal insisted he drive her car home.

As soon as he got behind the wheel, the trap was sprung. Tampa Sgt. Ray Fernandez, a friend of Adam Filthaut, was alerted by the law firm and pulled over the attorney immediately. Records later showed that the Sgt. and Filthaut exchanged multiple texts about what he needed to do. One of the texts proved that he was tipped off as soon as MJ’s lawyer and Melissa left the restaurant.

While embarrassing for MJ’s lawyer, rumors of the DUI being a set up quickly sprung up and it was later revealed that the attorney left his trial briefs in Personious’ car…and that Adams & Diaco had full access to them!

Punishment was swift. The cop was fired, the DUI was dismissed and the Florida Bar charged the three attorneys from Adams & Diaco with misconduct, disrupting court and other allegations. The punishment can range from a reprimand to full disbarment.

If this deal is accepted, Diaco will not be able to reapply to the Florida Bar for five years and will need to retake the Bar exam.

At first glance, the 91-day suspensions of Adams and Filthaut seems like an odd number, but there is a method to the madness. Per the Florida Bar handbook, any suspension over 90 days means the attorney cannot practice again until approved by a referee. This means that there is no guarantee the two attorneys will be able to practice again right away and they may need to take further Bar or ethics educational courses.

Meanwhile, the three disgraced lawyers may be facing a civil suit from MJ’s attorney. Said a lawyer representing him:
“They agreed to these Bar sanctions because they know what they did that night was wrong and inexcusable. They still do not have the guts or the honesty to testify under oath and be cross-examined about what happened that night”.
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Happy belated St. Patrick’s Day! Of course, with the festivities comes the alcohol which also means the arrests. One newspaper did some research and found that in this one night, police made 50 Dui arrests!

In Denver, police reported almost 50 driving under the influence arrests alone over a five day enforcement period. Eight arrests Friday, five Saturday, eleven Sunday, five Monday and eleven on St. Patrick’s day meant the police were kept busy.

These arrests were not just alcohol based. Besides the 47 DUI arrests, police made an additional three arrests for driving while under the influence of a controlled substance.

LEGAL ANALYSIS

As previously mentioned, DUI arrests can be from alcohol, drugs or a combination. Possession of most illegal drugs (with the exception of small amounts of marijuana) is considered a felony. Most DUIs if there is no death or injury, are only misdemeanors. This includes drug-based driving under the influence charges as well. For example, possession of cocaine is a third-degree felony, with a punishment of up to five years in prison. However, if a person was found to have consumed cocaine and then was pulled over for erratic driving and failed field sobriety exercises AND a drug test, he could only be charged with a misdemeanor DUI. Even the positive drug test would not be enough to charge him with a felony if no drug was in his possession.
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