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First DUI? Don’t Miss a Day of Driving!

One of the biggest concerns people have after being arrested for their first DUI is whether they are going to be able to keep driving. Personally, I could not imagine having to go weeks or months without being allowed to drive. The Florida panhandle is not the “big city.” We don’t have subways, trains, or even a real bus systems. This is a generally rural area, so being able to drive is really, really important for most people.

Fortunately, under Florida law, a DUI first offender can set things up so that they don’t go a day without driving (assuming that the DMV does their part!). When you are arrested for DUI the officer should issue you a DUI citation. It looks a lot like a speeding ticket, except it has a bunch of writing at the bottom about what your breath level was or whether you refused. Either way, this ticket is incredibly important: it serves as your driver’s license for the 10 days following your arrest. Like a hardship license, this ticket is considered a “business purposes only” license. This form of restricted driver’s license lets you drive to “maintain your livelihood.” So what does that mean? It lets you drive to work, to school, to the doctor’s office, to pick up the kids from school or daycare, to go to the grocery store, to meet with your attorney, etc. Driving to the beach to work on your tan, or to your buddy’s house to watch sports, doesn’t count as “maintaining your livelihood.”

So, the DUI ticket lets you drive for 10 days. What’s the next step? If you are a DUI first offender, a Florida resident, and you have never had an alcohol related suspension anywhere in the country, you can apply for a “waiver eligibility review” hearing with the DMV. The waiver has to do with your right to a formal review hearing to challenge the validity of your suspension. In some cases, it may make sense to request a formal review hearing, but many times, for first offenders, the likelihood and risk of losing that hearing make the waiver option the much better choice. See our other articles on formal review hearings for more information on those. The “waiver eligibility review” application is a simple and easy 1-page form that you fill out. In addition to the application, you will also need to provide the Bureau of Administrative Reviews (a branch of the DMV that deals with DUI suspensions) with: (1) proof that you have enrolled in an approved DUI school program and (2) a copy of your DUI citation. Once the DMV receives your paperwork they will call you, collect a $25 payment over the phone, and conduct a short hearing to confirm that you are eligible. As soon as you are approved, you can go down to the local driver’s license office and pick up your new hardship license.

Thankful that you are still able to drive, the next question you have is what will happen to your hardship when the case resolves? Under Florida law, if you are convicted of DUI, the judge must revoke your license for a certain period of time. For first offenses, that time period is between 6 and 12 months. When the judge announces in court that your license is revoked, your hardship license is no longer valid. Technically, you are going to need a ride home from the courthouse. However, after court is over, your attorney can reach out to the Bureau of Administrative Review and provide them with the information from court showing that your driving privilege was revoked, and request a “temporary permit.” It takes a week or two for the court information to catch up with the DMV, so during that time you cannot get a “hardship hearing.” The temporary permit, usually issued for a period of 30-60 days, keeps you on the road until you get your official hardship hearing. Many times, your lawyer can get you that temporary permit the same day the judge revokes your driving privilege. Once you have your temporary permit, you will want to go ahead and submit your application for a hardship license. When your turn comes up, the DMV will once again contact you by phone, get their $25 hearing fee, ask you a few questions, and approve you for a new hardship license. Assuming you abide by the restrictions of your new license, you will be able to drive on this hardship license until your suspension and revocation periods are over. At that point, drive wherever you want to for whatever reason!

This process is complicated. While you can always do all of this on your own, it is really helpful to have a DUI lawyer that knows how to navigate this process. Make sure the attorney you are going to hire is not just familiar with the criminal court system – make sure that the lawyer understands how to deal with the DMV, and how to ensure that you spend as little time off the roads as possible. Give us a call for a free consultation on your DUI case and how it will impact your ability to driving.

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What Exactly is a Formal Review Hearing?

When you get arrested for a DUI, odds are that you either refused a breath test or blew over a .08. If you refused a breath test, the DMV will suspend your license for one year if it is your first refusal, or for 18 months if it is your second refusal. If you blew over the legal limit, the DMV will suspend your license for 6 months.

The idea of having your license taken away for that amount of time is frightening. But don’t fret – you have the right to challenge the legality of the suspension by request a “formal review hearing.” A formal review hearing is basically a trial at the DMV. At that trial we can challenge whether or not the traffic stop was legal in the first place, whether the officer had reasonable suspicion to conduct a DUI investigation, whether there was probable cause to arrest you for DUI, whether they followed Florida law on when and how to request a breath test, whether you actually did refuse, or, in the case of a breath test, whether or not the machine was working properly and whether it was maintained as required under the law.

So what tools do we have in our tool bag in order to challenge your suspension? Under Florida law, we have the right to issue subpoenas to the officers involved in the case, as well as subpoenas for all the body camera videos and in-car videos. The DMV also has to provide us with all of the reports, witness statements, and other documents related to your DUI case. However, in some cases, we may not issue subpoenas for the videos and the officers if we can find a technical defense in the paperwork itself. For example, if the arrest report states that the breath test was requested before you were placed under arrest, we should be able to have your suspension thrown out because the law mandates that the request for a breath test occur after the arrest. If we issued a subpoena for the arresting officer, odds are that he (and probably the DMV hearing officer) would try to correct that issue and change the story. Every case is unique, so it is important to consult with a DUI attorney about how best to approach the formal review hearing.

Another benefit to a formal review hearing is that it gives us quick access to all of the evidence in your case, many times before the prosecutor even gets their hands on it. The reason this happens is because the formal review hearing must be requested within 10 days of your arrest, and the hearing must be set within 30 days of the request. Long story short, in less than 45 days your DUI lawyer will have already reviewed all the video evidence, reviewed all the reports, and questioned the police officers under oath. This fast access to the evidence in your DUI case can give us a leg-up on the prosecutor who is trying to convict you for DUI in your criminal case.

Formal review hearings are not appropriate in every case. Sometimes, especially for first offenders, it may benefit you to waive your right to a formal review hearing in order to get a hardship license right away. See our other blog about hardship licenses and waiver review hearings.

The DMV suspension process related to a DUI refusal or breath test is complicated. There are a lot of moving parts, and everything has to be done quickly. Be sure that your DUI lawyer is familiar with the process, that they know the hearing officers, and they don’t just refer that part of your case out to some other attorney to handle. Give our office a call to talk about your right to a formal review hearing of your driver’s license suspension for refusing a breath test or blowing over the legal limit.

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DO I HAVE TO DO FIELD SOBRIETY EXERCISES? SHOULD I?

You left your friends house after the Superbowl party. A bunch of good friends. Funny commercials. Chips and dip. Pizza. Hot wings. And, of course, some cold beers. You were there for few hours, ate and drank, but felt okay to drive when the game was over.

Halfway home, it happens. The red and blue lights come on and you are getting pulled over. Like everyone, your anxiety spikes and start getting nervous. You pull over, and up walks the police officer. He tells you that he pulled you over because you were weaving a little bit in your lane. Maybe because you were speeding. He asks for your license, registration, and insurance. As you are gathering the documents, he asks “have you been drinking tonight?” Here we go! The officer asks you to step out of the car to talk to him, which, obviously, you do. Once you are outside of the car he asks if you’d be willing to do field sobriety exercises. Now what?Sobriety exercises and Florida Law

What does Florida law say about sobriety exercises?

To start, under Florida law you DO NOT need to do field sobriety exercises. You have the absolute right to refuse to do them. Unlike a breath test, your driver’s license will not be suspended because you refuse to perform field sobriety exercises. The choice is yours.

If you tell the officer that you do not want to do the field sobriety exercises, they are supposed to advise you of “adverse consequences” that could come from not doing the field sobriety exercises. You may be asking yourself, “If I’m not going to lose my license, and it’s my right to refuse them, then what would be the adverse consequences?” That is where is gets a little tricky.

What the officer is supposed to tell you is that if you refuse to do the exercises then they will have to make the decision on whether to arrest you based upon the observations that they have made up to that point. They should also tell you that they are just trying to give you the opportunity to “dispel their suspicion” that you may be driving under the influence. What does that mean? It means what you think it means. The officer is essentially telling you that you are going to be arrested for DUI if you do not do the exercises.

Refusal of sobriety tests will likely help your case

The threat of being arrested is scary, no doubt. It is natural for a person in that situation to want to at least give the exercises a try, see if they can pass, and avoid going to jail. But, odds are that you are probably going to jail anyways. These exercises are easy to fail. While the government claims that these exercises are nothing more than things we do in our normal lives, when is the last time you just “normally” walked down a line, one foot in front of the other, hands by your sides, staring at your foot, and made sure to only take 9 steps before turning around and doing it again? When is the last time you decided to stand on one leg, left the other 6 inches off of the ground with your arms by your side, and count out loud while staring at your foot? Probably never (unless you are a DUI lawyer and you practice these things for fun). These exercises are hard. It only takes a couple of mistakes on each one to “fail.”

In a DUI case where the defendant did field sobriety exercises, I would say that probably 80%-90% of the trial is devoted to talking about the defendant’s performance on the exercises. The officer and the prosecutor are going to go through every little thing they say you did wrong. They will point out how you didn’t follow the 60 instructions they gave you. The officer will testify about how simple all these things were, and how bad you did. The defense lawyer will spend most of their time trying to explain everything you did correctly, and explain to the jury that it is unreasonable to expect anyone in such a stressful situation to do well.

So why do I say all of this? If you refuse the exercises, you have basically taken away the vast majority of the State’s “evidence” that you were impaired. The less you say, the less you do, the less the government has to use against you. If you refuse the exercises, the only reason the government can bring it up at trial is to argue that you didn’t do the exercises because you knew you were guilty. They call this “consciousness of guilt.” However, if you can tell the officer that you were always told not to do the exercises, even that argument disappears. All in all, a case with no field sobriety exercises is a much stronger case for the defense than a case where a client does them.

Arrested for DUI? You need a skilled DUI attorney on your side

I’ll end by saying this: it is always your choice whether or not you consent to field sobriety exercises. Some people do well enough to pass them and get let go, sure. But that is the minority, not the majority. Just remember that the officer is pretty much asking you to do the exercises so that they can gather evidence of impairment. Heck, they have a whole check list they use to mark off your “indicators of impairment” for each exercise. If you find yourself in a situation where the officer has already decided to start a DUI investigation, perhaps doing these exercises is not the best idea. If you want to talk more about your rights related to field sobriety exercises, call our office for a free consultation.

-Jason

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WHAT HAPPENS TO MY DRIVER’S LICENSE ON MY FIRST REFUSAL?

Well, things did not go well. You had a couple of drinks, headed home, and along the way you got pulled over. Next thing you know you’ve been arrested for DUI and you are in the back of the police car. A million thoughts are going through your head, and that is when the officer asks you a very important question: “Would you be willing to submit to a breath test?” In this post we will not really be going into the question of whether or not you should do a breath test – that is addressed in another blog. Here, I want to walk you through what happens to your driver’s license if you choose to refuse to blow for the first time.

Once you have been arrested for DUI the officer is going to confiscate your driver’s license. In exchange, they are going to give you a DUI citation. It looks like a ticket that you would get for speeding or running a stop sign. Do not lose the DUI ticket! Why? Because it serves as your driver’s license for the next 10 days. The ticket is like a hardship license. It lets you drive to work, to the grocery store, to pick up your kids, meet with your lawyer…anything to “maintain your livelihood.” You can’t drive to your friend’s house to hang out, or to the beach to get some sun, but otherwise, you can drive to do the things that we all need to do to keep the lights on and life moving.

During this 10-day period you have a couple of different options. The first is to request a “formal review hearing.” When your license is suspended for refusing a breath test, you have the right to request a trial, the “formal review hearing,” with the DMV on whether or not the suspension was done by the book. What does that mean? You have a right to challenge whether the traffic stop and arrest were legal, whether the officer complied with Florida law in requesting the breath test, and whether or not you actually did refuse. If you decide to request a formal review hearing, the DMV will issue you a 42-day temporary driving permit. We typically issue subpoenas for the officer’s involved in the case and the video recording from in-car and body cameras. If the arresting officer fails to appear after being subpoenaed, the suspension will be thrown out and you will get your license back. However, there is a risk to a formal review hearing: if you lose, there will be a 90 day period where you cannot drive a car, period. This is what DUI lawyers call a “hard time” suspension. After the 90 days, you will be eligible for a hardship license. Situations where we would ask for a formal review hearing on a first-time DUI related suspension typically involve out-of-state residents who cannot get a Florida license, or people who hold a commercial driver’s licenses that they rely upon for work.

Florida Law’s 10 Day Window for a Hardship License

Fortunately, Florida law provides another option in the 10-day window following your arrest. Assuming that you have never had an alcohol related suspension anywhere in the country before, you have the ability to waive your right to a formal review hearing and request an immediate hardship license. This process is called a “waiver eligibility review.” If you qualify for a waiver hardship license it means that you basically will not go a day without being able to drive. For many people, this is the best option because they cannot afford to risk going 3 months without being able to get behind the wheel of a car. The application process is simple, and we will provide you with instructions on how to obtain that license. Again, this would be a hardship license that allows you to drive to work, to school, to pickup the kids, to go the grocery store, and so on.

I cannot stress enough that these decisions must be made within 10 days of your arrest. It is a small window of time, but an incredibly important one. I recommend that you contact a DUI lawyer as quickly as possible following your DUI arrest and refusal so that the attorney can review the arrest report, your driving history, and help you make the best decision for you.

If you have any questions about what the DMV does with your license after a first refusal, give us a call.

We are here to talk. But our experience to work for you,

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Can I Get a Marijuana DUI in Florida?

It has been a couple of years since Florida’s constitution was amended to allow Florida citizens to use medical cannabis if they get doctor approval. The world did not come to an end. The state workforce did not turn into an army of hungry, red-eyed zombies. All-in-all, nothing much has changed. But a question a get a lot is, “can I get a marijuana DUI if I have a medical prescription.” The answer is, yes.

What’s Florida Law say about Marijuana DUI?

Florida’s DUI statute has always made it illegal to drive while you are impaired by: (1) alcohol, (2) a controlled substance, or (3) a chemical substance. Everybody knows about drinking and driving – one beer to many, your over a .08, off to jail you go. What surprises many people is that you go to jail for simply taking your own prescriptions. If you suffer from anxiety and your doctor prescribes you Xanax, you are expected to take your pills on a regular basis, as the doctor instructs you to. Well, guess what? You are driving around town with a controlled substance in your blood stream. If something happens and you get arrested for DUI, the officer may well request that you submit to a urine test. That urine test will be positive for Alprazolam, a controlled substance under Florida law. To be clear – driving after taking your medications is only illegal if your “normal faculties” are impaired by the medication, much the same way as how it is not illegal to drink and drive so long as your normal faculties are not impaired (or over a .08). The point is, that if you are involved in a car accident, for example, and the officer has you pee into a cup, you may well find yourself in a tough place. You may well be looking for a DUI attorney to help fight a criminal case!

Medical cannabis, or marijuana, is much like the Xanax that your doctor prescribed you in the sense that it is not illegal for you to take it, it is not illegal for you to drive with a certain level of it in your system, but it is illegal to drive if it is impairing your normal faculties. Some officers are trained to detect impairment by cannabis, but the normal field sobriety exercises to not offer the same insight cannabis impairment as they do alcohol impairment. In fact, many of the “clues” for alcohol impairment are simply not “clues” that someone is impaired by cannabis. Don’t take my work for it, there are studies that support this. So how do you avoid becoming a DUI suspect for a cannabis/marijuana DUI? For starters, you shouldn’t drive while impaired by cannabis. It is dangerous and overall a bad idea. Assuming you are not impaired, still be careful. Just like the Xanax example above, if they ask for a urine sample odds are it will come back positive for THC. Now you have a charge and need a lawyer. Some useful tips? Do not smoke cannabis in your car. A sure fire way to become the suspect in a cannabis DUI investigation is to have your car smell like weed. Do not keep your cannabis in the passenger compartment of your car – just throw it in the trunk. Again, try not to have your car smell like weed.

Prescriptions are not Permissions to Drive

Just because you have a cannabis prescription does not mean that you have the right to smoke and drive no matter what. Just like alcohol, there is a point where your level of impairment turns your prescription and driving into a crime. If you find yourself accused of a DUI related to cannabis you will need an experience DUI drug attorney to set the record straight and help you navigate the court process.

Call us today for a free consultation at (850) 378-3001

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Will Florida Create a “Reckless Driving Program” For 1st Time DUI Offenders?

Being charged with DUI is a life-changing moment for many of those people that find themselves in court facing the charge. The “oh no, what have I done” thoughts start the minute you see the officer’s lights on behind your car.  You think about where you have been, how many drinks did you actually have, what did you eat, how long had it been since you had your last drink? Next thing you know, the officer is at your window. With every fiber of your being you are thinking “maybe he’s just going to give me a speeding ticket.” Unfortunately, he smells the odor of alcohol and thinks that your eyes are bloodshot. He asks, “have you been drinking this evening?” Oh no, here we go. Do I do the field sobriety exercises? Do I have to do them? Will I lose my license if I don’t? I don’t think I’m that bad off, I think I can pass these. Well, like the vast majority of people who to the field sobriety exercises, you don’t pass them and you find yourself in the back of a police car. Time to head to the jail. Now what – do I do a breath test, or not? Can I say no? How much is .08, really? You blow into the machine and the results are .12. You spend another six hours in the drunk tank at the jail and finally, the nightmare is over…for the time being.

So, what’s going to happen to you?

You’ve never been in trouble before, and you wonder if you’re going to get cut a break. Well, that all depends on where in Florida you live. Currently, there are no statewide diversion programs for first time DUI offenders that get the charges reduced. In certain counties, like Palm Beach for example, the elected State Attorney has created a first-offender reckless driving program. However, if you live in the First Judicial Circuit (Escambia, Santa Rosa, Okaloosa, Walton), your elected State Attorney takes a firm stance on DUI charges, even for first-time offenders, and offers no such programs. Many of my clients understand that they may have done something wrong, that they made a mistake, and are not looking to get out of the situation without any consequences. Instead, all many of them hope for are a reduction in the charge from DUI to Reckless Driving. There are many reasons why this change can make a big difference. First, you will not get a DUI permanently on your records, which is important for several reasons: if you get a second DUI you may be looking at mandatory jail time, with a DUI conviction you may well not be eligible to travel into countries like Canada, and you may not loose a job that requires you to drive a company car. Secondly, your license will not be revoked, your car will not need to be impounded, and you fines and court costs will be reduced. A third benefit to a reduction in the charge is that you will not be required to buy SR-22 insurance, which will save you tons of money. Oftentimes an experienced DUI lawyer will be able to get your DUI charge in the First Circuit reduced but be sure that it is not without a fight!

Currently, if convicted of a first-time DUI, the best you will be looking at is what is called “minimum firsts.” The Florida legislature has created a set of mandatory conditions of a DUI sentence which include an adjudication of guilt (which means it can never be sealed or expunged), probation, DUI school, a substance abuse evaluation and recommended treatment, 10 day impound of your vehicle, a 6 to 12 month driver’s license revocation, 50 hours of community service work, plus hefty fines and court costs. BUT – things may be changing. This year, HB 1145, sponsored by Rep. Thad Altman from Indialantic, FL, has been approved by a house panel for vote. HB 1145 (and its companion bill SB 1396) would create a statewide diversion program for first time DUI offenders. The idea behind the bill is that each judicial circuit would institute a uniform statewide diversionary program where DUI offenders would get a reduced charge of reckless driving if they complete a series of requirements, such as a substance abuse evaluation, completion of recommended treatment, community service work, and possibly the use of an ignition interlock device in their car for a few months. If you complete the requirements then you get to enter a plea to reckless driving instead of DUI and, importantly, you would also receive a withhold of adjudication so that you would be eligible to have your arrest expunged from your record in due time.

What’s next?

There are some attorneys and law makers in Florida that do not agree that a uniform statewide program needs to be created because there are already programs like this working well in their parts of Florida. However, as a resident and attorney in the First Judicial Circuit, I do not expect that our elected officials will, without a mandate from the legislature, ever create a diversionary program for first time DUI offenders. Whether the diversion program is created or not, it is still incredibly important to contact a veteran DUI lawyer to review your case and guide you through the process.

Call us for a free DUI consultation at (850) 378-3001

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What is Constructive Possession?

Under Florida law, there are two different ways you can possess something. The first is known as actual possession. Examples of actual possession would be having your phone in your pocket or a pen in your hand. Actual possession is what we all typically think of when we talk about possessing something. The second type of possession is called constructive possession. What qualifies as constructive possession can get complicated. Constructive possession happens when you have knowledge of where the item is and you have the ability to exercise “dominion and control” over that item. “Dominion and control” is legal talk for “it’s yours.” For example, imagine that you and I are sitting across the table from each other and there is a pen in between us. The pen belongs to me, not to you. You can see the pen, you know it’s there, but it’s mine, and when you go to take it I stop you. You do not have “dominion and control” over the pen. Make sense?

So how does constructive possession play out in criminal cases?

The most common scenario where constructive possession is at issue is drug possession cases. When someone gets pulled over and the police find some drugs in the center console, what happens? A lot hinges on whether or not you can establish that someone else had access to the vehicle. Oftentimes this is easily accomplished – you have a passenger in the vehicle. You can also do this by proving that car is titled in someone else’s name or by testifying about the other people that have used the car.  If the drugs are not in plain view and you can establish that someone else had access then the government can’t prove the possession case again you. In these sorts of situations, the government needs some sort of independent proof that you were in constructive possession of those drugs. A confession is the most common way they do this, so be quiet and don’t say anything. Click here for a discussion on your right to remain silent.

I recently represented a client on appeal who was convicted of trafficking in methamphetamine. When the police came into the house to execute a search warrant my client was in the hallway just outside of the bathroom. His girlfriend was asleep in a bedroom of a house, a house owned by his mother, and also occupied by a cousin in high school. Inside the bedroom where his girlfriend was laying in bed the police found marijuana, cocaine, paraphernalia, and methamphetamine. My client’s photograph was in the bedroom, along with pieces of mail that had is address on them. The client went to trial in front on the judge and the trial judge found him guilty and sentenced him to seven years in prison. The appellate court agreed with me, reversed my client’s convictions and ordered him released from prison. The appellate court found that things like the photograph of my client and the bills with his name on them in the room next to the drugs were not enough to show that (1) my client knew the drugs were there or that (2) they were his. There was no telling if the bills will placed where they were before the drugs arrived in the bedroom, a photo of him in his mother’s house was not, by itself, unusual, and there was proof that other people had access to the bedroom the police said was his.

Constructive possession can be very difficult for the government to prove.

It can also be complicated and difficult to fully understand. If you have been charged with possession of drugs it is important to contact an experienced attorney to handle your case.

Give us a call for a free consultation at (850) 378-3001

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TO BLOW OR NOT TO BLOW, THAT IS THE QUESTION

TO BLOW OR NOT TO BLOW, THAT IS THE QUESTION

One of the most frequent questions that I get from people is probably:

“If I’m arrested for DUI should I provide a breath sample?”

The answer is, it depends. Shocking, right – never a straight answer from a lawyer! So what things can have an impact on whether or not you should blow?

It is important to understand how they charge DUI cases in Florida. The state can charge you two different ways:

That you were driving while under the influence of alcohol to the extent that your normal faculties were impaired or;

You were driving with a breath-alcohol level over a .08. For this article, we will focus on the .08 way of charging DUI; let us leave ‘normal faculties’ for another day’s discussion.

The State of Florida has what is known as the “Implied Consent Law.” Take out your driver’s license and look at the bottom. You will see the following language: “Operation of a motor vehicle constitutes consent to any sobriety test required by law.” Whether you knew it or not, by simply driving on the roads of Florida (even if you are an out of state resident) you have agreed to provide a breath test assuming that your DUI was lawful.

The State of Florida considers driving a privilege, not a right, which means that the government can take that privilege away if given reason. If they arrest you for DUI, the police are going to take you to the station, sit you down in front of a breathalyzer machine, and ask you to take the test.

Unless you say yes immediately, they will tell you about what happens if you refuse to take the test:

If you refuse to take the test then your license will be suspended for a period of 12 months for a first refusal and;

a period of 18 months for a second refusal.

Additionally, if you have previously refused they will charge you with a first-degree misdemeanor criminal offense.

The police want to scare you into providing a breath test by telling you that if you refuse they will take your license away and you will not be driving for a year. That is pretty convincing! However, they do not tell you that if you blow over the limit the same thing will happen, and that either way, odds are you will never go a day without being able to get around in your car. What the police will not tell you (because legally they are not required to) is that if you blow over a .08 they will suspend your license for a period of six months. They also do not tell you that, if it is your first DUI, then you will likely be able to get a hardship license right away and you will not go a day without being able to drive to work, the grocery, etc.

This brings us back around to the way that the state can charge you with, and prove, DUI. If the state chooses to charge you as driving with a breath alcohol over .08 there job is not going to be that difficult when all they need to show the jury is a piece of paper the breathalyzer prints out that says “John Doe has a .12 breath alcohol level.”

Checkmate, game over! (There are ways to fight this at trial, which will be the topic of a different article). If you do not blow, the state cannot prove that you were over a .08. Instead, the state will have to prove beyond a reasonable doubt that alcohol was impairing your normal faculties – including the ability to drive.

This is a much more difficult challenge! You will have a much better chance of winning your case.

At the end of the day, unless you are certain that you would pass a breath test, exercise caution before blowing into the machine. Odds are you are going to be doing the government a huge favor and making their case for them. If you have any other questions regarding your rights related to the breath test, give my office a call.

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Don't let them use "Bloodshot Eyes" against you in a DUI Case!

Do Bloodshot Eyes Mean Anything in a DUI Case?

If you have been arrested for DUI there is nearly a 100% chance that the report says that you had “read, bloodshot eyes.” The police are trained to include that language in their DUI reports, and you better believe they do it. The argument that the government makes is that your eyes are bloodshot because you are drunk. What’s interesting though is that I have had read that line in police reports where my client blew 0.000, passed their sobriety exercises, and simply were not drinking alcohol.

So how does a DUI lawyer handle the allegation of red, bloodshot eyes? The first thing to do is establish that the police officer has never met you before and, frankly knows almost nothing about you. Once it is clear to the jury that the cop doesn’t know you then all it means is he’s guessing, or assuming, that your eyes are blood shot because of alcohol – it is not something that he “knows.”

Allergies are probably one of the most common reasons why someone will have red, watery, or bloodshot eyes. According to the Asthma and Allergy Foundation of America as many as 30% of adults and 40% of children suffer from allergies, a significant portion of the population. Many people also get red, bloodshot eyes when they are tired or sleep deprived. The eye is constantly covered in a tear film which helps protect the eye and provide it with oxygen. While we sleep our eyes are closed, which creates a water tight seal that gives the eyes time to recuperate. When we do not get enough sleep the eyes are not given the time to recuperate, causing inflammation of the surface of the eye and small blood vessels dilate, giving the look of red, bloodshot eyes. A third possible cause is wearing contact lenses too long. According to the Center for Disease Control more than 30 million people in the United States wear contact lenses. Contacts limit the amount of oxygen that your get. Therefore, after an extended period of time from wearing contacts the surface of your eye will get inflamed due to lack of oxygen, causing the blood vessels to dilate and turn red.

A qualified DUI attorney can easily handle this “indicator of impairment” at trial by questioning the officer and these, and other reasons, that somebody can have blood shot eyes.

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Spring Break is Back! So, What is Public Intoxication and Disorderly Conduct in the Pensacola, Gulf Breeze, Milton & Navarre areas?

Public Intoxication and Disorderly Conduct in the Pensacola, Gulf Breeze, Milton & Navarre areas

It’s that time of year again…college students from all over the country will arrive on Pensacola Beach to enjoy sunshine and white sands. Anyone who has been to Pensacola Beach before knows that a visit isn’t complete without a Bushwhacker. One frosty drink too many on a hot day, though, can lead to trouble. During this time of year the Escambia County Sheriff’s Office are out in full effect on the beach:

Law officers are prepared for any spring break-related mayhem, said Lt. Frank Forte, director of the Escambia County Sheriff’s Office substation on the beach.

“We will be out in full force, as we always are this time of year,” Forte said.

One of the most common crimes I see people getting arrested for on Pensacola Beach is public intoxication. Florida Statute 856.011 makes it illegal to (1) be intoxicated and endanger the safety of another person or property or (2) be intoxicated or drink alcohol in a public place and cause a public disturbance. So what does this mean? First, it means that you cannot be drunk in public and endanger someone or something. Example: if you are drunk and stumbling in the roadway you may be putting the drivers on the road in danger if they need to swerve to avoid hitting you. The second scenario that must be avoided is being drunk in public and causing a disturbance. Long story short: don’t get drunk and cause a scene in public – it will get you in trouble because the cops are literally waiting for this to happen.

If for some reason law enforcement is arresting you for public intoxication don’t make things worse and fight with the police. Odds are you will pick up charges for resisting with or without violence.

Pensacola Beach is a beautiful place to vacation. The island knows how to have a good time, for sure, but don’t ruin it for others by getting too carried away. If you do find yourself arrested and charged with a crime give my office a call. Odds are I can handle the entire case from beginning to end without you having to ever come back to Pensacola. For more information, read my blog on resolving a case you were arrested for while visiting the Pensacola, Gulf Breeze, Milton & Navarre area.

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Is It Possible to Terminate Probation Early in the Pensacola, Gulf Breeze, Milton & Navarre areas?

So you want to terminate your probation early?

In many cases getting a probation sentence can be a great resolution to a case – sure beats doing jail time. But that doesn’t mean that probation is easy, fun, and that people don’t mind having to report every month. Probation is a difficult thing to complete, no matter who you are. However, if you are able to complete all of your conditions and stay out of trouble you may be able to terminate your probation early.P

Florida Statute 948.05 gives a trial judge the legal ability to terminate your probation at any time. Sometimes a plea agreement may say that the defendant may not terminate probation early. This is an example of an illegal probation condition. The state and defendant cannot take away the power of a judge to terminate probation early if they choose to.

While the judges do have the right to terminate probation early, do not expect them to do it just because you ask them to. Based upon my experience, here in the First Circuit of Florida a judge will not usually consider a motion to early terminate probation until at least half of the probation has been completed. In addition to making it through at least half the time you are on probation, the judge is going to want you to have completed all the conditions of your probation, including paying off all of your fines and court costs.

Applying for early termination of probation is almost always a good idea. If the judge grants it then you are free from the system. If you are still on probation, even if you’ve completed all your requirements, and violate in a minor way or get arrest for being in the wrong place at the wrong time, odds are a warrant is going to go out for your arrest. Long story short, if you have completed all the conditions of your probation then you should apply for early termination.

You can file the motion to terminate probation on your own, which is known as pro se. In some places the probation officer may actually file it for you. However, there can be benefits to hiring an attorney to file your motion. Lawyers typically charge a very low fee to file these motions. They may be able to get you a hearing quicker than you could on your own, which is a good thing. Lawyers who regularly appear before a judge may have a better chance at explaining and making your case in a way the judge will appreciate. At the end of the day, hiring an attorney to file a motion to early terminate probation will usually be far cheaper than completing the remainder of your sentence.

Give my office a call to discuss whether it makes sense to try to early terminate your probation.

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The cops kept my car and money after an arrest! Can they do that? Yes!

Civil Forfeiture in the Pensacola, Gulf Breeze, Milton & Navarre areas

There has been a lot of talk in the news lately about the government’s ability to seize people’s money, cars, and other property when they are arrested for certain felonies in Florida – i.e. Civil Forfeiture. Under Florida’s Contraband Forfeiture Act if the government can prove that property was used in the commission of a felony, was the profit from a felony crime, or was used to conceal the commission of a felony crime, then the government can take your stuff. Believe it or not, being caught with just one Xanax pill while driving your car could lead to the government being able to seize and forfeit your vehicle.

Yes, I know it’s crazy.

There is a system to fight this sort of taking by the government, but it is time sensitive. When the government seizes your property they must provide you with written notice that they are intending on commencing forfeiture proceedings and taking your property. This notice must also tell you that you have right to request an adversarial preliminary hearing. Typically this notice will be a piece of paper they give you at the time you are arrested. Within fifteen (15) days of you getting that piece of paper you have to send a letter to the seizing agency demanding an adversarial preliminary hearing. That letter must be mailed by certified mail, return receipt requested. Once the law enforcement agency receives your demand for a hearing they will have ten (10) days to get it heard by a judge. It is important to challenge them and move for dismissal of the forfeiture if they don’t get you in front of a judge within the 10 days. There is good case law in Florida stating that when an agency waits until the eighth or ninth day to ask for a hearing, which cannot be heard by a judge before the tenth day, it is on them, they should have acted sooner, the case should be thrown out, and the property returned.

After the adversarial hearing is over the property will either be released to you (because you won the first stage) or it will be kept for the time being by law enforcement (you lost the first stage). At this point they will have to file a lawsuit and the case will proceed like a regular civil lawsuit. This process will involve interrogatories, requests for production, discovery, and motions. Ultimately, you have the right to a trial by jury on a forfeiture case.

As you can see this process can be technical and time consuming, meaning a lawyer can be very useful. Oftentimes a lawyer can strike a deal with the law enforcement agency to get some of your stuff back, rather than them having to go through this whole process. If you have received a forfeiture notice and the police took your money or car, contact my office to discuss whether you have a case to challenge the forfeiture and get your stuff back.

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Marijuana's illegal status in Florida could very well be unconstitutional!

Marijuana’s illegal status

Legal disclaimer: marijuana is illegal in Florida right now. Don’t read this blog post to mean that you can walk down the street and smoke a joint without worry. Getting caught with cannabis (marijuana) will get you inside a courtroom facing jail time and losing your driver’s license, just to start. What I want to talk about is why cannabis is currently illegal and whether that is legally right.

I have recently filed motions to dismiss in several local courtrooms arguing that Florida Statute 893.03(1)(c)(7) is unconstitutional. This is that statute that lists cannabis as a Schedule I controlled substance. The short version is this: cannabis is currently a Schedule I substance under that statute. A Schedule I substance is one that “has a high potential for abuse and has no currently accepted medical use in treatment in the United States…”

Here’s the thing – last year a super-majority of Florida’s citizens voted to pass an amendment to the Florida Constitution legalizing medical marijuana. Our state Constitution now holds that cannabis has recognized medical purposes, which is the complete opposite position taken by the statute that makes cannabis a controlled substance. If the Constitution trumps a statute then that statute should be unconstitutional and stricken. If the statute that makes cannabis a Schedule I substance is stricken, then (at least until the legislature changes the Schedule), someone could not be arrested and convicted for cannabis, or marijuana, because nothing makes it a controlled substance.

Just to be clear, I am not saying that because we have medical marijuana that all marijuana must be legal. That is not the point. The point is really a simple one: so long as the Florida statutes say that there is no medicinal value at all to cannabis, it is contrary to what over 60% of Florida voters said when the medical marijuana constitutional amendment was passed.

We’ll wait and see what happens. But in the meantime, if you are facing marijuana charges of any kind give me a call to discuss your case.

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What you need to know about prescription pill abuse in the Pensacola, Gulf Breeze, Milton & Navarre areas

PRESCRIPTION PILL ABUSE

There has been a recent crackdown on prescription pill abuse, due to a rise in overdoses and widespread availability. Florida is coming down with harsher sentences for prescription drug related charges, and making it more difficult to obtain desired prescription medication.

Prescription drug charges are also reaching new highs in Florida, due to the stricter laws. It is up to you to keep abreast of what these new laws are if you want to avoid potential charges for a prescription related crime. For example, you must carry your proof of prescription when you are carrying your pills with you, either on your person or in your vehicle. If you do not have the proper documentation, possession charges are possible. Additionally, if you possess more prescription pills than you have documentation for, whether the pills are legitimately yours for a medical need or not, charges for trafficking prescription pills are possible.

As noted above, even if charged with a prescription drug crime, it does not mean that you committed the crime. However, it does mean that you have alternative options. A qualified criminal defense attorney can help you develop your defense. Without the right defense, a prescription drug charge carries a felony charge, large fines, and jail time. In addition, because Florida is making a point to crack down on prescription related crimes, and depending on the amount of prescription pills and severity of the crime, you could be facing the maximum punishment.

Make the best decision for your future and hire a qualified criminal defense lawyer to represent you. If you believe that you have an unfair conviction, please contact criminal defense lawyer Jason Cromey to discuss your case.

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What you need to know about DUI Checkpoints in the Pensacola, Gulf Breeze, Milton & Navarre areas

DUI CHECKPOINTS

There is no question that DUI checkpoints can be an advantage when attempting to get drunk drivers off the road. Generally, checkpoints are set up around holidays or “drinking” events, times when a large number of people attend parties or events where alcohol is readily available. Checkpoints, however, cannot be a spur of the moment affair; the public should have access to the scheduling details.

A DUI checkpoint is set up where a fair amount of traffic travels – which in itself serves as deterrence for people to drink and drive in the first place. A checkpoint’s routine is not random; there are guidelines defined for checking vehicles, as well as which vehicles are checked. For example, checking every fifth car for driving impairments. These details, and following the rules exactly, are imperative in a DUI case. Otherwise, there is a risk for a complication in trial later on that could work in the defendant’s favor.

After stopping, vehicles undergo a series of tests to determine if the individuals is driving under the influence of alcohol or other substance. Expect requests for drivers to exit the vehicle so testing can begin at that point. Asking them to perform various tasks, such as walking a line, and other tests designed to give hints to whether or not the individual’s blood alcohol level is above .08%. If the law enforcement officer believes that the driver is impaired, they are likely to administer a breathalyzer test.

It is important to remember that you do have options after your arrest at a DUI checkpoint for driving under the influence. With an experienced criminal defense lawyer, it is sometimes possible to get your charges reduced or dropped completely. Please contact criminal defense lawyer Jason Cromey if you need help fighting a DUI.

Have a question? Want to see an article on a different topic? Ask! Just drop me a note.

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Just what is the Appellate Court in the Pensacola, Gulf Breeze, Milton & Navarre areas?

Appellate Court

The Appellate Court may have the answers you are looking for. Many believe that after conviction of a crime, even those you feel were not lawful, that you have no further options. Fortunately, that is not true. Many individuals with convictions are not aware that you have the right to fight and appeal your case. It is crucial to understand what options you have before accepting a guilty verdict.

Sometimes cases are mishandled, in which case filing an appeal will force the court to revisit the case and take a closer look at potentially overlooked details. An appellate court does not conduct a retrial or accept any new evidence. The purpose of an appeal is to revisit trial details with a new eye that ensures the trial court employed correct procedure and statutes.

If you believe that you have an unfair conviction, please contact criminal defense lawyer Jason Cromey to discuss your case.

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Can't drive 65? Avoid Reckless Driving Charges in Pensacola, Gulf Breeze, Milton & Navarre

RECKLESS DRIVING CHARGES

Reckless driving charges can come with some serious penalties, which only increase with subsequent offenses. Losing your license or serving jail time will have a detrimental impact on your life or others who depend on you. You should know that you have options, and with the help of an experienced criminal defense attorney, there are ways to fight a reckless driving charge.

If convicted, a reckless driving charge carries up to ninety days of jail time and large fines. The penalties for your reckless driving charge also increase with damages to property or human injury. If your reckless driving results in property damage, you will face up to a year of jail time and $1,000 fines, as well as a first-degree misdemeanor charge. If injuring someone, you will face a third degree felony, up to five years of jail time, and up to $5,000 in fines. A reckless driving charge will also add 4 points to your driver’s license.

There are ways to fight a reckless driving charge; the specifics of “reckless driving” are somewhat ambiguous, and there is no criterion to define what reckless driving truly is. If you do not believe you were driving recklessly, or simply made a mistake, please contact criminal defense lawyer Jason Cromey to discuss your case.