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04 Oct 2012

Client Gets Gift for Christmas Eve DUI: All Charges Dropped Despite .190 & .204 BAC

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MPD was arrested for DUI with property damage on December 24, 2007, at 5:07 P.M.  This was not to be the Christmas Eve that he had hoped for.  The stockings were not hung by the chimney with care at St. Lucie Countys Cross Bar Hilton.

Police were dispatched to a single car accident in Port St. Lucie, Florida.  No one was in the car when Port St. Lucie Police Officer Jennifer Cuty arrived.

Officer Cuty met with MPD who admitted driving the car.  According to Officer Cutys report, MPD said he took the turn too fast and hit the light pole.  As she was speaking with MPD, Officer Cuty said she smelled an odor of an alcoholic beverage.  She described MPDs speech as mumbled and slurred; his balance poor to the point of falling over; eyes watery and bloodshot; and cheeks flushed.

At this point, Officer Cuty said she transitioned from an accident investigation to a DUI investigation.  She did not, however, read MPD his Miranda rights.  MPD continued to discuss the matter with Officer Cuty.  According to Officer Cutys report, MPD admitted having two beers and a few shots and apologized for driving.

Officer Cuty administered the standardized field sobriety tests (SFSTs) to MPD.  Officer Cutys report reflects that he failed these tests.  Based upon these circumstances, Officer Cuty arrested him for DUI and transported him to the St. Lucie County Jail.

At the jail, MPD submitted to a breath test.  He blew .204 and .190 breath alcohol concentration (BAC) readings.

Following his Christmas Day release from confinement, MPD retained Jeffrey H. Garland to assist him in defending these charges.

When the State failed to provide a copy of the recording made by Officer Cuty at the scene of the arrest, Attorney Garland promptly filed a motion to compel discovery.  The State would eventually respond to the motion by producing the recording.

Upon reviewing the video, Attorney Garland filed a motion to exclude statements protected by accident report privilege.  The motion contended that all of MPDs statements to Officer Cuty were privileged under Section 316.066(4), Florida Statutes, Article I, Section 9, Florida Constitution, and the Fifth and Fourteenth Amendments to the United States Constitution.

In Florida, a driver involved in a crash has a duty to report the circumstances of the crash to a law enforcement officer.  In return, Section 316.066(4) provides that the police may not use the information gained as part of an accident report investigation against the driver in a criminal prosecution.

The motion alleged that Officer Cuty had failed to advise MPD both that she was commencing a criminal investigation and advising him of his Miranda rights.  The failure to advise of Miranda rights was predicated on both Officer Cutys sworn arrest affidavit and the video recording, which was produced only in response to a motion to compel.  Importantly, Officer Cuty also executed an alcohol influence report, which has a specific place to note the time that the Miranda advisement was given.  In this case, Officer Cuty left the time of Miranda advisement blank, because it was never given.

The motion contended that statements made by MPD could not be used against him at a trial based upon the accident report privilege and the requirements of the Fifth Amendment.  In addition, the motion contended that there was no probable cause to arrest MPD, but for the information obtained in violation of the accident report privilege.  The motion cited to State v. Cino, 931 So.2d 164, 168 (Fla. 5th DCA 2006) (officer could not have legally relied upon Cinos compelled statement…as part of his probable cause determination…).

A police officer must have probable cause to arrest a person suspected of committing the offense of DUI.  The implied consent statutes require that the breath test be administered pursuant to a lawful arrest.  The motion contended that the arrest was not lawful, since there was no probable cause.  Consequently, the breath test results should be excluded as the result of an illegal arrest.

Attorney Garland also filed a motion to exclude the breath test on the basis that there was not substantial compliance with the requirements of the implied consent statute.  This motion was predicated upon information obtained from the FDLE website concerning the maintenance and operation of the SLCSO Intoxylizer 8000, Instrument #80-000794.  The motion identified a double purge fail on November 24, 2007, at 4:26 A.M.  There was a double control outside tolerance on November 25, 2007, at 5:12 A.M., and again at 5:16 A.M.  Although these problems, and others identified in the motion, were apparent from the breath test machine records, there was no attempt by the breath test machine operator to contact either the agency inspector or the department inspector for further instructions.  FDLE administration regulations require that such deficiencies be reported.

Although the deficiencies noted on this Intoxylizer 8000 were significant, County Judge Phillip J. Yacucci, Jr. determined that the defense failed to establish substantial non-compliance with the administration regulations and, therefore, denied the motion.  Judge Yacucci did not, however, immediately rule upon the accident report privilege motion, taking it under advisement.  Judge Yacucci requested case authority for the proposition that an officer must both advise the subject that a criminal investigation has begun, and read a Miranda warning.

Attorney Garland responded to Judge Yacuccis request by providing citations to State v. Marshall, 695 So.2d 686 (Fla. 1997), and Vedner v. State, 849 So.2d 1207 (Fla. 5th DCA 2003), review denied, 861 So.2d 433 (Fla. 2003), as well as copies of the cases for his review and consideration.

On May 5, 2008, the defense and State appeared for a trial docket call.  Judge Yacucci was expected to rule upon the defense motion.  At this point, the State announced a nolle prosequi before the court ruled.  The criminal charge was dropped.

State v. MPD, St. Lucie County Case No. 07-CT-6625.

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