Florida Criminal Lawyer Blog

As West Palm Beach drunk driving criminal defense attorneys, we are extremely interested in the ongoing debate throughout Florida about the use of a particular brand of breath-testing machine in DUI cases. Some of our fellow defense attorneys contend that the Intoxilyzer, a machine used by Florida law enforcement, is unreliable and should not be used, or that the machine’s manufacturer should be forced to release source code so that defense attorneys can understand how evidence against their clients is reached. Several counties have already ruled on the Intoxilyzer’s admission, and now, Palm Beach County is considering it as well. On Feb. 23, the South Florida Sun-Sentinel reported that a panel of seven criminal judges is considering whether to throw out Intoxilyzer records for nearly 500 defendants with active DUI cases.

Most interestingly, the two private attorneys and one public defender in the case say that some Palm Beach County prosecutors are intentionally turning off machines when it looks like they are going to fail inspections. Intoxilyzer machines must be inspected routinely to ensure that the evidence they produce is reliable. A Florida Department of Law Enforcement employee was fired last year for doing this in Miami-Dade County. The defense attorneys claim the fired employee had told at least four others how to do this as well, and an outside forensic expert said he found evidence that certain inspectors had a pattern of doing this. However, one police officer said he sometimes turns off machines because they “freeze.” The defense lawyers also argue that the specific model of Intoxilyzer at issue must be approved by the federal government to be used in Florida.

A ruling in favor of the defense attorneys would require prosecutors to throw out all of the cases against their nearly 500 clients. It would also invalidate the use of the Intoxilyzer in Palm Beach County, though not necessarily in neighboring counties. As Miami DUI criminal defense lawyers, we hope the judges come to a decision that is fair to DUI defendants whose test results may have been skewed by the inspectors’ malfeasance. The blood-alcohol concentration test result is essential in a drunk driving case, because it usually makes up the only direct evidence against the driver. If that test is off by even 0.01, innocent people can be criminally charged with drunk driving (and guilty people can go free). Tampering with that test result is essentially tampering with justice.

Continue reading "Palm Beach County Judges Consider Admissibility of Intoxilyzer Machine in DUI Cases" »

As Naples DUI criminal defense lawyers, we were pleased to see a recent series of articles focusing on DUI enforcement in the Daytona Beach News-Journal. Just in time for New Year’s Eve, which law enforcement says is the biggest drinking holiday of the year, the newspaper is running a three-part series on the large percentage of drunk driving cases in Volusia County that end with dropped or reduced charges. The second installment, published Dec. 28, focuses on the way intoxicated driving is handled in the city of Port Orange. The city has the highest rate of DUI arrests in the county, the newspaper said -- but also the highest rate of dropped and reduced charges.

The Port Orange Police Department has a reputation for being aggressive in its DUI enforcement and prevention efforts, and has even won an award for its traffic safety work. The News-Journal said the city has consistently had the most DUI arrests of any city in Volusia County since 2000. However, the newspaper said almost 64% of Port Orange cases involving a single-charge DUI end with dropped or reduced charges. That’s the highest rate in the county and substantially greater than the 53% rate in Daytona Beach Shores. Drunk driving defense attorneys told the newspaper that it tends to be easier to find flaws in cases from Port Orange than in cases from other cities. At least one lawyer told the newspaper he believes Port Orange police make arrests for crimes that wouldn’t result in arrests in other cities.

The article outlined some of the most common problems with DUI arrests that can lead to a dismissal or reduction of charges. Among them are mistakes with either the initial traffic stop or the administration of the breath test. Our Fort Myers drunk driving criminal defense attorneys frequently use mistakes by police during these vital phases of the arrest to help our clients. For example, as the article notes, Florida law does not compel motorists to give blood samples without a warrant. If a police officer has told one of our clients that it does, any evidence resulting from that interaction may be illegal. This can allow us to ask the judge to throw it out, weakening the prosecution’s case. Without much of a case, the prosecution is substantially more likely to offer a reduced charge like reckless driving in exchange for a guilty plea.

Continue reading "Aggressive DUI Enforcement Comes With High Rate of Dropped or Reduced Charges" »

As Sarasota drunk driving criminal defense lawyers, we were disappointed to see news that showed two DUI checkpoints in as many weeks in the greater Fort Myers-Cape Coral area. According to a Dec. 12 article in the Fort Myers News-Press, the North Fort Myers police conducted a roadblock in that city last Friday night, resulting in six DUI arrests and 13 written warnings. Officers at the checkpoint also issued 33 traffic citations and found three drivers without a valid license and five others with suspended licenses. On Dec. 14, the same newspaper reported that the Fort Myers police plan another checkpoint this coming weekend, at an undisclosed location in the city. The article said the goal is not only to remove intoxicated drivers from the road, but to deter drunk driving and raise public awareness of the problem.

A sobriety checkpoint is a roadblock in which drivers passing the location must stop and be checked for signs of intoxication, even if there’s no special reason to suspect them. Those the officers believe to be intoxicated are generally directed off the road and into a special area where they are asked to submit to field sobriety tests and a breathalyzer. Despite the fact that this violates our legal system’s presumption of innocence until proven guilty, and our constitutional right to be free of illegal searches, the Supreme Court has ruled that DUI checkpoints are perfectly legal. (Many South Florida DUI defense attorneys call this “the DUI exception to the Constitution.”) In fact, they are especially likely to be used during the holidays, when police agencies believe more intoxicated drivers than average are likely to be on the road. This may explain why law enforcement agencies have planned two in two weeks in the same metropolitan area.

Our Naples drunk driving defense attorneys are against drunk driving -- but we also believe DUI roadblocks have serious flaws. Despite the Supreme Court’s ruling, enough Fourth Amendment concerns about the practice remain that several states have outlawed sobriety checkpoints entirely. On a more practical level, there is also an argument that sobriety checkpoints don’t work as well as larger numbers of patrols at finding intoxicated drivers. Roadblocks rely on chance to find drunk drivers, and drivers who have already passed through are free to warn their friends to take another route. By contrast, heightened patrols can seek out and stop erratic drivers who may be intoxicated, without wasting police time on sober people. According to the newspaper, the North Fort Myers checkpoint processed 966 vehicles but made only 6 DUI arrests -- 0.62% of all the drivers they saw. And roadblocks are considerably more expensive than sending extra officers out to patrol the streets.

Continue reading "Police Run Multiple Holiday Sobriety Checkpoints in Fort Myers-Cape Coral Area" »

As West Palm Beach drunk driving criminal defense attorneys, we were interested to see a recent article from the Vero Beach Press-Journal. The Dec. 3 article said that according to the Florida Highway Patrol, about 36% of Florida drivers refuse to take a breath test after being pulled over on suspicion of drunk driving. This is not without consequences for the driver, the article said, but refusing the Breathalyzer can also have serious consequences for law enforcement. Because the breath reading is vital evidence in a DUI case, not having a breath sample can considerably weaken prosecutors’ case against the driver. That was one reason the Vero Beach Police Department tried making a policy of routine blood tests in suspected DUIs, only to suspend the program for lack of qualified personnel.

In order to obtain a DUI conviction in Florida, prosecutors must prove that the accused was in control of a vehicle while having a breath or blood test reading of 0.08, or while under the influence of alcohol or drugs “to the extent that the person’s normal faculties are impaired.” Without test results, prosecutors must rely on the much more subjective “impaired faculties” standard. If the driver took field sobriety tests, prosecutors may introduce these as evidence. However, the article notes, Florida drivers may legally refuse to take field sobriety tests. Furthermore, any test results that do exist are subject to challenge in court, because many field sobriety tests are so unreliable that it’s possible to fail even when completely sober. Observations by officers at the scene, such as a statement that the officer smelled alcohol, may be even less reliable. That means it’s harder for prosecutors to convict someone of DUI without a BAC reading.

However, the article said, refusing a breath test is not without consequences. In Florida, people who refuse the Breathalyzer on a first DUI automatically lose their licenses for a year. That’s twice as long as the minimum license suspension for an actual conviction. A second refusal is a misdemeanor crime. However, as with all license suspensions, drivers may apply for a “hardship” license to get to work. Those who refused breath tests may apply for this license after serving 90 days of their license suspensions. And of course, refusing the breath test is unlikely to make a driver popular with the arresting officers.

Nevertheless, Balliro, Galasso, Leskovich & Seltzer tells its DUI clients to think carefully about whether to submit to a breath test. We understand that prosecutors need evidence to prove their cases, but as Fort Myers DUI defense lawyers, we also believe there are problems with breath tests that can lead to a false positive and wrongful charges. Breath tests using Intoxilyzer machines are under suspicion in Florida because of court rulings that they are not admissible due to reported false positives, legal problems and the lack of accountability from its manufacturer. Older breath tests can be thrown off by weather, the subject’s health, timing problems or even things the subject has eaten. Given the pain, inconvenience and financial costs of a DUI charge, some drivers may be better off refusing the breath test and living with the license suspension.

Continue reading "Florida Law Enforcement Has Problems Proving DUI When Breathalyzer Refused" »

As Naples drunk driving defense lawyers, we were pleased to see that an experiment in routine DUI blood testing has stopped, at least temporarily. According to a Nov. 30 article on TCPalm.com, the city of Vero Beach has suspended its routine use of blood tests in every intoxicated driving case in which the driver refuses to take a breath test. The policy was made only ten days earlier, on Nov. 20, but the city soon realized that its staff was too limited to keep up with demand. The Indian River County Fire Department may step in to help, the article said, but it doesn’t want to lose too much staff time to the project.

The policy began after a Nov. 19 DUI arrest, in which officers obtained a search warrant in order to draw blood from a woman who refused a breath test. The only other arrest under the policy happened three days later, on Nov. 22. Vero Beach is the first city on the Treasure Coast to use such a policy, although Florida cities like Jacksonville and Palm Bay also use routine blood tests. Without it, DUI blood testing in Florida is typically limited to accidents that caused a death or a serious bodily injury. Law enforcement likes the policy because it allows them to obtain vital evidence in DUI cases, even when drivers refuse to submit to a breath test. However, Florida DUI defense attorneys told the newspaper that universal blood testing on a mere hunch is an unreasonable invasion of drivers’ privacy.

Our Punta Gorda DUI defense attorneys agree -- but we also see significant practical problems with the policy. As the article notes, law enforcement must obtain a search warrant to draw the blood, which means several hours can pass before the actual test occurs. This could routinely create unreliable outcomes, because alcohol can be processed by the body during those hours. That can result in false negatives or, with very recent drinking, false positives. Because blood testing detects substances that breath testing does not, blood tests can also turn up evidence of drugs even when there was no suspicion of drug intoxication. And according to the article, no police officers are trained to draw the blood, which casts doubt on the reliability and safety of the results once they are turned over to law enforcement.

Continue reading "City of Vero Beach Stops Routine Use of Blood Tests in Suspected Drunk Driving Cases" »

Our Sarasota drunk driving defense attorneys were disappointed to see a recent ruling from a judge in nearby Manatee County. According to a Nov. 14 article in the Bradenton Herald, Manatee County judge Diana Moreland denied a motion to suppress the use of breath test results obtained from a machine called the Intoxilyzer 8000 in a DUI case involving 31-year-old Janet Landrum of Ellenton. The order affects every DUI case in Manatee County, not just Landrum’s, which means the order allows the use of Intoxilyzer 8000 results in more than 100 cases. The South Florida DUI defense lawyer for Landrum has also challenged the accuracy of the test results.

The ruling is the latest in a controversy over whether the Intoxilyzer 8000 and its cousin, the Inxotilyzer 5000, should be admissible in Florida. Courts around Florida have previously ruled on whether the machines are admissible, a history that includes rulings in Manatee and Sarasota Counties against using them. Under Florida law, law enforcement may use only breath test machines approved by the federal Department of Transportation. The list of DoT-approved devices does include an older version of the Intoxilyzer 8000, but the machine has seen software changes since then. This has created confusion in Florida courts, with different counties ruling different ways on whether the machines’ results are admissible at all.

Complicating matters further, some Fort Myers DUI defense attorneys have also argued that the Intoxilyzer 8000’s test results are not reliable. In some cases, they say, software problems create a false positive when the machine should really show that results are inconclusive and the driver should blow again. This has led at least one state to ban the use of the machine entirely, on the grounds that no one should be convicted because of an inaccurate reading. Intoxicated driving defense attorneys and their clients argue that they are entitled to see the source code of the software the Intoxilyzer machines use so they can determine their accuracy. But the machines’ manufacturer, CMI Inc., refuses to disclose the source code, saying it’s a trade secret. The Florida Department of Law Enforcement has an ongoing case before the courts to decide ownership of the source code.

Our Punta Gorda intoxicated driving criminal defense lawyers hope the courts eventually decide that Florida’s law enforcement community -- and the drivers it serves -- are entitled to the source code. As things currently stand, there’s nothing stopping Florida drivers from being convicted of DUI on a false positive from an Intoxilyzer machine that nobody can double-check. Ideally, we’d prefer that Intoxilyzer results be declared inadmissible throughout Florida until this question, and the question about whether the machines are authorized, are both resolved. A drunk driving charge is very serious in Florida, carrying jail time, fines, license suspension and an immediate spike in auto insurance rates, among other things. To serve justice, those accused should be entitled to be judged on test results not tainted by doubts and lack of accountability.

Continue reading "Manatee County Judge Rules Intoxilyzer Machine Results Admissible in DUI Cases" »