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Driving Violations Summary

Confusion Doctrine causes suspension to be set aside/DUI charge reduced to reckless Driving
Charge:DUI
Dispostion: Reduced to reckless driving/driver's license suspension set aside by DMV hearing officer
Date:05/07/07
Case: State v. BMH SLC 06-CT-588
Note:  Following his January 31, 2007 arrest, BMH immediately retained Kirschner & Garland for his DUI and administrative suspension arising out of the DUI arrest.

Attorney Garland immediately made a public records request to the DMV for the documents relating to the administrative suspension. Upon review of these documents, it was determined that BMH had been "mirandized" before he was read implied consent.

A strategic decision was made, therefore, to subpoena both officers involved in the arrest to the formal review hearing. An affidavit was prepared for the client's execution. The client's affidavit echoed the information in the police reports, to-wit: Upon being advised of his Miranda rights, BMH specifically requested to speak with an attorney. BMH's affidavit specified that none of the law enforcement officers involved clarified the conflict between the Miranda advisement and the implied consent warning. Consequently, BMH was "confused". This confusion lead to his refusal to submit to the breath test. BMH's affidavit specifically stated on this issue:

Paragraph 6. After being read my Miranda warning, the officer asked whether I would submit to a breath test. Initially, I agreed to. However, I had an opportunity to reconsider the matter as I was being transported to the St. Lucie County Jail from the site of the arrest. I realized that the officer had told me that I could speak to an attorney before being asked to answer questions.

Paragraph 7. After arriving at the St. Lucie County Jail, the officer again began talking to me about taking the breath test. I explained to the officer that I wished to talk to an attorney before making such a decision, just as he had told me that I could. The officer repeated the request for me to blow into the breath test machine several times without any further explanation.

Paragraph 8. The officer did not give me an opportunity to speak to an attorney before my questioning, nor did the officer provide any other explanation to reconcile the conflict between the Miranda advisement and his repeated demand to answer questions relative to the breath test.

Paragraph 9. I was read the Miranda rights before the officer read me the implied consent warnings. I did not submit to the breath test, because I believed I had a right to remain silent, that I had a right to speak to an attorney before any questioning and to have an attorney present during any questioning. The officer never offered any explanation to me to reconcile the rights he described in the Miranda warning with his questioning whether I would submit to the breath test.

Paragraph 10. My confusion on the applicability of the Miranda warning to the implied consent question was created by the officer and not cleared up by the officer. Therefore, I believe that the suspension should be set aside, because there was no "refusal".

At the hearing, the officer who stopped BMH appeared and testified about the circumstances leading up to and just following the stop. He did not mirandize BMH, turning the matter over to the DUI officer. The DUI officer failed to appear for the heairng. Attorney Garland moved to set aside the suspension on due process grounds due to the DUI officer's failure to appear.

Attorney Garland contended the "old" DMV rules remained in place, even though "new" rules had been proposed. The new rules would be greatly disadvantageous to any driver at a suspension hearing. The old rules allowed the non-appearing officer an opportunity to submit a written statement explaining why he did not appear. Under the old rules, the hearing officer would often have to set aside the suspension when a non-appearing witness failed to submit written justification for a failure to appear, and the witness's testimony was deemed significant. Here, the hearing officer agreed the old rules should apply.

Attorney Garland submitted BMH's affidavit. He then argued that DMV's own policy required reinstatement of the driver's license. In March 5, 1996, the DMV office of general counsel stated:

The office of general counsel chose to settle this case because of the confusion doctrine. The record documents clearly indicate that Mr. Howard was read his Miranda warnings prior to his implied consent warnings. Further, Mr. Howard testified the reason that he refused the breath test was because he believed he had the right to remain silent and because he believed he had the right to have an attorney present at the breath test. The record does not indicate that a law enforcement officer cleared up these misconceptions. Accordingly, the suspension should have been set aside.

Howard v. DHSNV, Order Dismissing Petition for Writ of Certiorari, No. 96-22

The hearing officer, issued an Order on March 8, 2007, that found there was insufficient evidence to support the suspension. She returned BMH's driver's license to Attorney Garland with a copy of the Final Order.

On May 7, 2007, BMH went to his second trial docket. At that time, he entered a plea to a reckless driving charge. Importantly, the reckless driving offense did not carry with it any suspension. The court withheld adjudication, which meant that he would receive no points on his driving record. The related speeding ticket was dismissed.

This disposition kept BMH's CDL intact. His employment duties occasionally required that he drive vehicles for which a CDL is necessary. There would have been no "work permit" available during the course of a CDL suspension.

DUI Reduced to wreckless driving due to evidence Destruction
Charge:DUI
Dispostion:Pled to lesser charge of reckless driving; adjudication withheld
Date: 04/11/07
Case: State v. CW IRC 06-MM-3754

Note: CW was charged with DUI causing property damage arising out of an accident on November 27, 2006, in Sebastian, Indian River County, Florida. Witnesses told police that CW’s full-size Chevrolet pickup began to fishtail after she pulled away from a traffic light on U.S. 1. There was a light rain, and the road was wet at the time of the incident. It had just turned dark. CW nearly regained control of the vehicle, but it sideswiped a telephone pole. Although the impact was sufficient to break the pole, the pickup remained operable. CW pulled the vehicle off the road at the next intersection.

When CW got out to inspect the damage, her dog also slipped out. The dog was, apparently, confused by the impact and the new surroundings. The dog wandered away.

An Indian River County Deputy arrived at the scene to investigate the accident. CW was preoccupied with trying to locate her dog. The Deputy interpreted CW’s concern for the dog as evidence of impairment. The Deputy asserted that CW did not directly face him as he was questioning her. CW insisted that she was attempting to locate her animal.

CW suffered from a congenital medical condition called Arnold-Chiari Malformation. Expert sources established that this “malformation” is a boney outcropping in the area of the brain controlling physical motor skills. These sources suggested that sudden impacts could result in a variety of symptoms such as disorientation, balance problems, nystagmus, and lack of dexterity. The Deputy observed these symptoms and construed them as further evidence of impairment.

The Deputy arrested CW for DUI and transported her to the Indian River County Jail. The Deputy said he could smell the odor of an alcoholic beverage about CW’s person. At the jail, CW refused to submit to a breath test.

During the course of discovery, the defense initially determined that the jailhouse digital recording did not contain an audio track. The video itself supported CW’s claim of innocense. Repeated requests were made to the State to turn over a copy of the roadside video that was taken by the arresting Deputy. The defense was later advised that the roadside video had been accidentally erased pursuant to a standard procedure. The Deputy claimed that the roadside video should have been, but was not, “pulled”. Therefore, it was accidentally erased.

Attorney Garland filed a Motion to Dismiss based upon the destruction of material evidence. The defense could not show, however, that the destruction of either the sound track or the entire roadside video was “intentional”. Even so, the defense could seek dismissal or lesser sanctions if the Court were to agree that the lost evidence was essential to the defense. CW elected to plea to a lesser charge of wreckless driving. On April 11, 2007, County Judge Joe Wild withheld adjudication and followed the plea agreement, to-wit: $250.00 fine plus court costs, DUI school, and six months probation with a condition of no consumption of alcoholic beverages.

Speedy Trial Rule Puts Brakes on DUI Prosection
Charge: DUI with property damage or personal injury
Dispostion: Nolle Prosequi
Date: 03/15/07
Case: State v. PMC SLC 05-CT-858

Note: PMC was driving a motorcycle on November 20, 2004, at about 10:35 P.M. He had the misfortune of colliding with the rear of a vehicle at a stoplight-controlled intersection. Subsequently, PMC was transported to Lawnwood Regional Medical Center in Fort Pierce, Florida, for treatment.

At the hospital, a Florida Highway Patrol (FHP) trooper arranged for a "legal draw" of PMC's blood. The defense investigation initially focused on the blood test results. In its discovery materials, the State provided only two pages. One page simply concluded that the blood-alcohol concentration was 0.166 grams of alcohol per 100 milliliters of blood. The second page was a chain of custody which showed the date and time of receipt by the Indian River Crime Laboratory.

The defense investigation needed much more laboratory data in order to evaluate the blood testing procedure. The defense moved for, and successfully obtained, an order compelling production of laboratory data. After receipt of the laboratory data, Attorney Garland filed a Motion to Strike Presumption of Impairment and to Preclude Admissibility of Blood Test Results Under Section 316.1932 et seq.

Attorney Garland sought to exclude the blood test on three different rationales:

1. The written request for blood test, executed by Trooper Jones, showed that the blood was involuntarily obtained. In this case, PMC did not sustain serious bodily injury and, therefore, an involuntary blood withdrawal was not permitted under Section 316.1933(1), because there was no "substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ".

2. Attorney Garland moved to exclude the blood test results on the basis that the blood was withdrawn on November 21, 2004, at approximately 12:56 A.M., but not received by the laboratory until December 13, 2004. Neither the discovery materials provided by the State, nor the laboratory documents, showed where the blood kit was stored from the date of collection until the date of transfer to the Crime Laboratory for analysis. The failure to refrigerate the kit pending submission to the Crime Laboratory for analysis violated FDLE Rule 11D-8.012(5). This Rule requires that all blood kits be refrigerated when not submitted for analysis within seven days of collection.

3. Garland's investigation found a failure to label the blood vials contained within the kit. The failure to label the blood collection tubes violated FDLE Rule 11D-8.012(4) which provides: "Blood collection tubes must be labeled with the following information: Name of person tested, date and time sample was collected, and initials of the person who collected the sample."

St. Lucie County Judge Clifford H. Barnes granted the Motion when the State offered no objection. Consequently, the blood test results would not be admissible in evidence at any trial.

The defense investigation looked for additional ways to defend the charge. Further evaluation of the evidence demonstrated that PMC was issued a criminal notice to appear for the offense of not having a motorcycle endorsement for his driver's license. The defendant was compelled to appear in court on that charge on January 11, 2005, at which time PMC produced his valid license. The charge was then nolle prosequied.

On discovering this information, Garland realized that the 90-day speedy trial period began when the criminal notice to appear was delivered. The delivery of a criminal notice to appear constitutes an "arrest" under the Florida Rules of Criminal Procedure.

On or about February 15, 2005, the State issued an arrest warrant for DUI with property damage or personal injury. The State did not, however, file an information or other formal charging document at that time. PMC subsequently surrendered on the arrest warrant on August 2, 2006. The State filed a formal Information on August 22, 2006.

With these facts in mind, Garland filed a Second Amended Motion to Dismiss (Speedy Trial). The Motion alleged that the speedy trial clock began to run upon delivery of the criminal notice to appear for the endorsement charge. The Motion cited Florida Supreme Court authority for the proposition that the State's Nolle Prosequi on January 11, 2005, did not stop the clock from running. Further, the Motion asserted that an "arrest warrant" did not constitute a formal charge which would have supported the prosecution of the case. The Motion asserted: "The State cannot avoid the rule in State v. Agee <622 So.2d 473 (Fla. 1993)> by simply obtaining an arrest warrant prior to the expiration of the speedy trial period." Since the Information was filed more than 90 days after PMC had been taken into custody, there would be no 15-day "recapture" period for the State to bring him to trial.

The State conceded the Motion to Dismiss by announcing a nolle prosequi in open court on March 15, 2007.

Violation of Driver's License Restriction
Charge: Violation of driver's license restriction
Dispostion: Nolle Prosequi
Date: 10/03/05
Case: State v. A.B. SLC 05-CT-5473

Reckless Driving
Charge: Reckless driving
Dispostion: Nolle Prosequi
Date: 08/08/05
Case: State v. M.F.M. SLC 05-CT-1368

DUI
Charge: DUI
Dispostion: Plea to "wet reckless"
Date: 08/08/05
Case: State v. J.W.S. IRC 120051824

DUI, DWLS (2d offense),Open Alcohol Container
Charge: DUI, DWLS (2d offense),open alcohol container, failure to register
Dispostion: DUI plead down to wet reckless, DWLS reduced to 1st offense (see note), plead to open alcohol container and failure to register
Date: 05/24/05
Case: State v. C.M. SLC 04-CT-453, 4, 5
SLC 04-CO-12

Note: Attorney Garland was able to reduce the DWLS charge by going into an old case. The old case showed a criminal conviction, even though it was “without knowledge”. The trial court corrected the old case, and the new DWLS became a first offense.

Administrative Suspension of Driver's License for Unlawful Blood Alcohol
Charge: Administrative suspension of driver's license for unlawful blood alcohol
Dispostion: Suspension set aside after evidentiaryhearing
Date: 05/02/00
Case: Bureau of Administrative Review -Fort Pierce (A.P.)

Note: Breath test machine documents were not in order. The maintenance officer failed to appear for the hearing. The defense established prejudice.

DUI with Property Damage
Charge: DUI with propertydamage (2nd offense)
Dispostion: Pled down to wetreckless driving
Date: 04/17/00
Case: State v. S.P.S.
SLC 99-CT-4317

Note: Case arose from a single car accident. The defendant refused the breath test.

DUI
Charge: DUI
Dispostion: Pled down to wetreckless driving
Date: 03/27/00
Case: State v. S.J.L. MC 00-MM-4578

DUI Case
Charge: DUI
Dispostion: Nolle Prosequi
Date: 12/08/99
Case: State v. J.W.H. SLC 99-MM-3876

Note: Defendant was charged with DUI on a bicycle. Video showed defendant was cooperative until police officer became unresponsive and overbearing. Defendant refused breath test.

DUI Case
Charge: DUI
Dispostion: Nolle Prosequi
Date: 11/04/99
Case: State v. E.L.C. SLC 99-CT-3141

Note: Case dropped when State wasn't ready to go forward at hearing on motion to suppress.

Non-resident Drivingwithout Driver's License
Charge: Non-resident Drivingwithout Driver's License
Dispostion: Nolle Prosequi
Date: 06/03/99
Case: State v. D.R.S. MC 99-MM-2320

Note: Case dropped when prosecutors were shown that statute did not apply to an out-of-state CDL.

DUI Case
Charge: DUI
Dispostion: Jury found not guilty
Date: 12/02/98
Case: State v. R.A.G. MC 98-MM-735

DUI Case
Charge: DUI
Dispostion: Jury found not guilty
Date: 06/02/98
Case: State v. W.C. SLC 98-CT-218

DUI Case
Charge: DUI
Dispostion: Jury found not guilty
Date: 01/29/97
Case: State v. J.C. IRC 1963228

DUI Case
Charge: DUI
Dispostion: Mistrial; later reduced to reckless driving
Date: 04/08/87
Case: State v. P.M.F.