D.E.O. was arrested for boating under the influence (BUI) on March 13, 2007. He promptly retained Jeffrey H. Garland to represent him in connection with the matter.

The case was initially prosecuted as a misdemeanor via a “citation”, which acted as the charging document. The defense was well aware that the BUI charge might be “upgraded” to a felony, because the Defendant had two prior DUI convictions. There was also the possibility of additional charges stemming from a minor boating accident. The misdemeanor case was set for trial on Thursday, May 24, 2007. Whether the case could be tried at that time, or pled out, was unknown. The defense strategy was not to waive speedy trial, because the first misdemeanor docket call fell just 18 days before expiration of the misdemeanor speedy trial period.

Once the 90-day misdemeanor speedy trial period expired, the State would be precluded from “upfiling” the misdemeanor BUI to a felony BUI charge – unless the Defendant waived his right to speedy trial.

The State timely upfiled the case to felony and added additional charges: Count 1 – felony BUI with two prior convictions and property damage; Count 2 – criminal refusal to submit to testing; Count 3 – leaving scene of vessel accident with property damage; and Count 4 – violation of navigation rules.

Even though the case had been upfiled to a felony, the felony clerk failed to send any court notices out for the felony charge. The misdemeanor clerk showed the charge as “transferred” to felony and, therefore, discontinued sending notices. The case was over, as far as the misdemeanor clerk was concerned.

In the absence of any court notices, there was no requirement for Defendant to appear in court. The St. Lucie County Clerk’s Office did issue a capias for each of the charges, Counts 1 – 4. A capias is a type of arrest warrant when a formal charge has already been filed.

For unknown reasons, law enforcement made no effort to serve the capias upon the Defendant, even though he continued to reside and work at the places indicated in the police reports arising from the misdemeanor arrest. Since there was no duty to alert the clerk to this case, or to alert law enforcement of a need to serve the capias, the case simply fell off the map. The Defendant might easily have waited for the three-year statute of limitation to pass and then move to dismiss for that reason.

The speedy trial rule would have required giving notice of expiration to the State, and the State would have had an additional 15-day “recapture period” during which to bring the Defendant to trial. In light of the status of the case, it was far more likely that the capias would go unserved. A speedy trial notice of expiration would have made everyone aware of the unserved capias – not a good plan.

Time passed…and passed…and passed. By the end of 2008, the Defendant grew tired of living in fear of arrest on the capias. He affirmatively called law enforcement in order to have the capias served. At this point, the case recontinued, but this time in felony court.

The initial plea offer was 24 months in prison followed by three years of probation. The Defendant would have been required to plea to all charges.

Attorney Garland uncovered a number of problems with the State’s prosecution which ultimately resulted in a far more favorable plea deal.

Garland pointed out that criminal refusal to submit to testing is not a misdemeanor, unless there was a prior refusal to submit to testing in connection with a BUI. Although the Defendant had previously refused in connection with a DUI, he had never previously refused testing for a BUI. Therefore, the defense contended that §327.359 did not apply. In addition, there was no indication that the Defendant had been told that a refusal to submit might be prosecutable as a crime. It was highly likely, therefore, that the refusal charge was punishable, at most, by a $500.00 non-criminal assessment.

The State had listed as witnesses two Coast Guardsmen based out of the Fort Pierce Coast Guard Station. Attorney Garland contacted a legal liaison officer for the United States Coast Guard for permission to take the depositions of the pair of Coast Guardsmen. The Coast Guard refused to authorize the officers to submit to depositions in the state court proceeding.

Attorney Garland filed a motion seeking to exclude the testimony of the Coast Guardsmen. Garland relied on the case of State v. Tascarella, 580 So.2nd 154 (Fla. 1991), which authorized exclusion of testimony of federal employees who refuse to submit to discovery depositions in state court. As the defense had already complied with the requirements of 28 CFR §16.22, it would be a foregone conclusion that the Coast Guardsmen would not submit to depositions. St. Lucie County Circuit Judge Dan L. Vaughn issued an Order on February 25, 2009, granting Defendant’s Motion to Exclude Testimony – unless the State, within 30 days of the entry of the Order, made the Coast Guardsmen available for depositions. The State failed to make the Coast Guardsmen available for depositions, which greatly contributed to resolution of this case.

Attorney Garland also listed, as evidence, photographs of the boat involved in this situation. The accuracy of these photographs was verified by the manager of Leisure Time Boating Club, which is based out of Vero Beach, Florida. The boat was owned by the Boating Club and had been operated by the Defendant at the time of the incident with the Boating Club’s permission. The photographs plainly showed a lack of significant damage to the boat. These photographs were materially inconsistent with the State’s charge that there had been a significant boating accident and, therefore, a leaving the scene of a boating accident.

With these problems in mind, the case was “pled out” to probation on April 7, 2009, before St. Lucie County Circuit Judge Robert E. Belanger. The Defendant received a term of four years’ probation, subject to the mandatory minimum requirements for BUI with two prior DUI convictions. The Defendant was required to serve 30 days in the St. Lucie County Jail (with credit), but his driver license was not suspended.

This case highlights the need for federal employees to assist state prosecutors in concluding cases. It is not enough for federal employees to help at the time of arrest, but then to refuse to follow up by giving testimony at depositions and trial.

Lawyers defending cases involving federal agents must be aware of the special requirements for subpoenas, which are described in 28 CFR §16.22. Under the United States Constitution, the State of Florida is an independent political entity. The federal government cannot refuse to follow procedures used by Florida courts. The Florida Supreme Court has held that the testimony of non-cooperating federal employees may be excluded on a timely defense motion. See State v. Tascarella, supra.

State v. DEO, St. Lucie County Case No. 562007CF001508A. The original misdemeanor arrest appears at State v. D.E.O., St. Lucie County Case No. 562007MM001232A