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06 Jun 2017

DUI Conviction Reversed on Appeal

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St. Lucie County DUI Defense AttorneyJulie Banner (not her real name) was convicted of DUI at a jury trial in St. Lucie County. Judge Yacucci sentenced Banner to 120 days in jail.

St. Lucie County DUI defense Attorney Jeffrey Garland was retained to pursue the appeal. Garland immediately moved for stay of sentence and an appeal bond. Judge Yacucci denied the motion on the basis that the appeal was not taken in good faith on grounds fully debatable. Judge Yacucci did, however, mitigate the sentence by 30 days.

Banner was compelled to stay in jail to “serve out” the balance of the jail sentence. Garland appealed the denial of appeal bond, but that appeal was denied.

Banner was resolved to challenge the unjust conviction, even though she was forced to endure a 90- day jail sentence, and to complete all probationary requirements.

The appeal focused on two issues:

  1. Breath test results were improperly admitted without proof that the Intoxilyzer 8000 had been registered with the FDLE; and
  2. Judge Yacucci improperly excluded Banner’s expert witness from testifying.

During the trial court proceeding, the prosecutor maintained that the Florida Evidence Code had been amended to adopt the federal approach to the admissibility of expert testimony. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The defense maintained that the defense expert testimony qualified for admission under the Daubert standard, but asserted that the Frye standard continued to be the law in Florida. See Frye v. United States, 2393 F 1013 (D.C. Cir. 1923).

While the appeal was pending, the Florida Supreme Court rejected the legislature’s amendments to Florida Statutes 90.702 and 90.704. See Ch. 2013-107, Sections 1 and 2, Laws of Florida. The Florida Supreme Court held that the Daubert amendments were unconstitutional to the extent that they encroached upon the Florida Supreme Court’s constitutional power over practice and procedure. In Re: Amendments to the Florida Evidence Code, Case No. SC 16-181 (Fla. 2/16/17).

Attorney Garland immediately listed the Florida Supreme Court’s ruling as supplemental authority and filed an amended request for oral argument (OA). The amended request for OA was granted. It was set for 5/19/17.

The appeal panel issued its opinion just four days later on 5/23/17. The panel reversed on the ground that a “[t]rial court should only exclude expert witnesses under the most compelling circumstances”. The panel noted that the excluded defense expert was important to the defense.

The case has been remanded back to the trial court for retrial.

Unfortunately, Banner has already served the jail term and completed the probation. This is a prime example of how trial judges misapply the right to appeal bond from a misdemeanor conviction. Judge Yacucci’s denial of bond, in retrospect, was obviously erroneous, because Banner won the appeal. An appeal bond should have been set if the appeal was taken in good faith on grounds fairly debatable. At least Banner cannot be sentenced to more time if she loses the next trial. However, the State will not repay Banner for the jail term if she wins the next trial.

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