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Reducing Impaired Driving Recidivism – Established DUI Diversion

DUI Diversion Program

Established DUI Diversion Programs
Established DUI Diversion Programs in 8th, 9th, 11th, 13th Circuit Courts

The Office of the State Attorney, 13th Judicial Circuit just developed their own DUI Diversion Program. We will look at some of Florida’s already established DUI diversion programs for a driver’s first DUI charge. The Offices of the State Attorneys of the 8th, 9th, 11th & 15th Circuit Courts all currently use DUI Diversion Programs for a driver’s first DUI charge. Each Circuit Court has different admission rules and distinct program requirements.

Admission Requirements Are Confusing

In the table below, it is easy to see how confusing this process can be. You need to Call (813) 222-2220. In Orange County and Osceola County, you cannot be a part of the DUI Diversion Program (PTD, or Pre-Trial Diversion) if you are not a legal U.S. resident. That means tourist from another country here to spend their vacation could never be in the PTD program in the Ninth Circuit Court. In Miami-Dade County, if your BAC is over 0.220% then you are still able to be in the DUI Diversion Program (Back on Track BOT). That same county is the only county that requires that you sign a statement of guilt before entering the DUI Diversion Program. Three of the Circuit Courts (8th, 11th, and 15th) will refuse your admission into the DUI Diversion Program if a child or animal was riding with you when you were charged. Only the 8th Circuit Court will use your drunken aggression towards the arresting officer as a reason to keep you out of the DUI Diversion Program.

Admission Qualifiers

8th Circuit 9th Circuit 11th Circuit 15th Circuit
8th Circuit; Alachua, Baker, Bradford, Gilchrist, Levy, Union 9th Circuit; Orange, Osceola 11th Circuit; Miami-Dade 15th Circuit; Palm Beach
Approval by the Office of the State Attorney X
Defendant’s administrative DMV Suspension not affected  X
Each case will be evaluated on a case-by-case basis X
Legal residence in the United States X
Must have a Valid Driver’s License at the time of arrest X
Accident may invalidate eligibility X X X
Child or animal in vehicle may invalidate eligibility X X X
Prior alcohol-related driving offenses may invalidate eligibility X X X X
No Blood Alcohol Level of .20 (,220 for 9th) or over X  X  X
No in vehicle controlled substances X X
No inappropriate behavior such as belligerence to law enforcement X
Prior misdemeanor may invalidate eligibility X X
No motions filing, demanding discovery or demanding a jury trial X X
No prior felony sentences X X X
Plea must be entered at arraignment X
Request for DUI Diversion within 30 days of arrest X
Sign an admission of guilt X
Prior traffic citations may invalidate eligibility X
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Reducing Impaired Driving Recidivism – RIDR

Reducing Impaired Driving Recidivism - RIDR
RIDR A New Hillsborough County DUI Initiative

We just found out from Rena J. Frazier, Chief of Policy and Communication in the Office of the State Attorney 13th Judicial Circuit, “The State Attorney’s Office is commencing a new DUI initiative called Reducing Impaired Driving Recidivism (RIDR), aimed at reducing impaired driving through enhanced sanctions. RIDR will become effective on March 1, 2018.”

Reducing Impaired Driving Recidivism – RIDR

Program To Help Reduce Repeat DUI Offenders

This is breaking news. At this point, this is all we know. This includes all of Hillsborough County. Recidivism is the likelihood of a convicted criminal to carry out another crime. The new policy hopes to lessen the chance of the driver ever getting a second DUI.

This change in policy is important for drivers charged with their 1st DUI. According to Florida law, pretrial intervention programs can are available for a first time DUI driver as long as they have spoken with a lawyer, agrees to complete the program, waives the right to speedy trial, and the victim, the state, and the judge have all agreed.

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Florida Drug Recognition Experts DRE Video

DRE Florida Drug Recognition Experts
Florida Drug Recognition Experts DRE

Using Drug Recognition Experts (DRE), in Florida DUI cases and across the nation, law enforcement and prosecutors are trying to circumvent the ability of jurors and Judges to reach their own conclusions as to the impairment, if any, of criminal suspects.

We have obtained training manuals and reviewed the evidence used to support these “experts” and you may also conclude the ability of these witnesses to meet the stringent requirements for admissibility of “scientific” evidence is far from generally accepted within any communities other than law enforcement. Such witnesses should be stricken from Prosecutors’ witness lists. In five minutes you will know: What is the History and Origin of the DRE? What is done during Drug Recognition Experts (DRE) training? Who does the DRE training? What special skills are Drug Recognition Experts (DRE) taught that judges and jurors don’t already have? Does DRE “evidence” meet the standard for admissibility under Florida law and the Daubert standard?

What is the History and Origin of the Drug Recognition Expert (DRE}?

The Los Angeles Police Department developed this area of alleged expertise in the 1970’s. The federal law enforcement agency, the National Highway Traffic Safety Administration (NHTSA) soon jumped on the bandwagon. Strikingly, the “certification” is now issued by the cop’s own International Association of Chiefs of Police (IACP) and not by a generally recognized educational or scientific institution.
Florida Drug Recognition DRE Experts
7 Days to a Better You (DRE)

What is done during DRE training?

A Seven (7) day school is supposed to cover a 706-page manual. The curriculum begins by citing the Frye standard for admissibility, a standard that was abandoned in Florida in 2013 (see discussion below: Does DRE “evidence” meet the standard for admissibility under Florida law and the Daubert standard ? ).
During the 7 day romp, cops are allegedly trained in the following areas: Eye examinations; Physiology; Vital signs; the Central Nervous System; Depressants; Stimulants; Physician’s Desk Reference; Dissociative Anesthetics; Narcotic Analgesics. That is only half of the allegedly scientific in-depth training.
Let’s visit the second half of this highly accelerated educational program:  Inhalants, Vital Signs, Cannabis; Signs and Symptoms; Drug combinations; Writing a resume (Curriculum Vitae); and wrap it up with a list of questions defense attorneys will ask when the newly minted expert tries to spew this garbage in court.
Seven days to a better you – In short, street cops become quasi-medical professionals in only one week.

Who does the Drug Recognition Experts (DRE) training?

The National Highway Traffic Safety Administration (NHTSA) and the International Association of Chiefs of Police (IACP).

What special skills are Drug Recognition Experts (DRE) taught that judges and jurors don’t already have?

None. Generally, witnesses are not allowed to opine on the guilt or innocence of the accused. When police try to use these “experts” they are attempting to tell the jury how to rule and why. Since the alleged expert issues a highly prejudicial opinion on an ultimate issue in the case, courts must allow only legally admissible evidence to reach jurors.

Does Drug Recognition Experts (DRE) “evidence” meet the standard for admissibility under Florida law and the Daubert standard? 

No. In July 2013,  Section 90.704, Florida Statutes, was amended to read: “Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” Since, 2013, there is little guidance from courts and judges on the validity of this testimony.
Florida Rule of Criminal Procedure 3.220 requires disclosure of “reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons . . . .” The rules also discuss, “expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify . . . .”  In 1996, the rules also contemplated, “experts who have filed a report and curriculum vitae and who will not offer opinions subject to the Frye test.” FRCP 3.220 at 151 Note ( July 1, 2014).
Florida Drug Recognition Experts DRE are only alleged experts who issue highly prejudicial opinions on ultimate issues in the case, courts must allow only legally admissible evidence to reach jurors under the 2013 amendments to Florida law and the ruling of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), and to no longer apply the standard in Frye v. United States, 293 F.2d 1013 (D.C. Cir 1923) . See generally, http://laws.flrules.org/2013/107 .

Standardized 12-Step Drug Recognition Experts Protocol

The 12-Step Drug Recognition Experts (DRE) Protocol is standardized because it is conducted the same way, by every drug recognition expert, for every suspect whenever possible. In the above video, the 12-Step Drug Recognition Experts (DRE) Protocol is not shown.
1. Breath Alcohol Concentration (BAC) Test administered to suspect
2. Interview with the Arresting Officer about BAC, the reason for stop & suspect’s behavior, appearance, and driving.
3. Preliminary Examination and First Pulse. DRE asks questions about health, recent food, alcohol, and drugs, including prescribed medications while DRE observes suspect’s attitude, coordination, speech, breath, and face. DRE examines pupils uses horizontal gaze nystagmus (HGN) and takes suspect’s pulse. If needed seek medical assistance immediately. Otherwise, the evaluation continues.
4. Eye Examination. behavior, appearance, and driving. DRE uses HGN, vertical gaze Nystagmus (VGN), and looks for a lack of convergence.
5. Divided Attention Psychophysical Tests. DRE administers the Modified Romberg Balance, the Walk and Turn, the One Leg Stand, and the Finger to Nose test.
6. Vital Signs and Second Pulse. DRE takes the subject’s blood pressure, temperature, and pulse.
7. Dark Room Examinations. DRE measures at pupil sizes under three different lighting conditions.
8. Examination of Muscle Tone. DRE examines the subject’s skeletal muscle tone (normal rigid, or flaccid).
9. Check for Injection Sites and Third Pulse. DRE looks for injection sites and takes suspect’s pulse.
10. Subject’s Statements and Other Observations. DRE reads Miranda, asks questions about drug use.
11. Analysis and Opinions of the Evaluator. DRE forms an opinion as the suspect is impaired. If DRE believes there is impairment, then the category of drugs will be indicated.
12. Toxicological Examination. DRE requests a urine, blood and/or saliva for toxicology lab analysis.
Sources: http://www.wsp.wa.gov/breathtest/dredocs.php 
dui, Dui Defense Attorney, dui lawyer, dui pinellas, pinellas dui attorney, Tampa DUI, Tampa DUI Lawyer

Avoid DUI: Fun & The Super Bowl

How To Avoid DUI Charge

The Big Game Avoid DUIYou want to Avoid DUI charges tonight (and always). Fortune Magazine says 111.3 million people watched last year’s Super Bowl. When we watch the big game with friends we may need a ride. Do NOT drink and drive. Here are the top DUI locations for Tampa. If you are charged with a DUI, call a lawyer ASAP Call (813) 222-2220. Before you even start drinking decide how you will get back home. Then you are thinking clearly and you can choose your best option: designate one person to take everyone home, use tow-to-go, take a taxi, use Uber,  Lyft maybe even staying where you are.

 

What is Important?

You want to enjoy the game but you don’t want to make your life a mess. A DUI Charge is very expensive. The costs include:

  • money
    • lost wages,
    • court costs,
    • bail costs,
    • defense costs,
    • if you are adjudicated the increase in insurance costs,
    • sometimes costs associated with education,
  • time
    • time getting booked
    • time in court
    • time negotiating how to get back and forth to work or groceries or picking up kids
    • time learning about the charge
    • time deciding what attorney to hire
    • time away from family and friends
  • stress
    • stress of the DUI stop with the police
    • stress of being booked into the jail
    • stress of court proceedings
    • stress loss of driving
    • stress of loss of work

You should do everything you can to Avoid a DUI charge. If you still need a DUI attorney, we are ready to help. Casey Ebsary is an expert DUI attorney. Call him (813) 222-2220.

To find out what we say about avoiding DUI charges at other prime times:

gasparilla festival

labor day

4th of July

New Year’s Eve

 

Easter

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DUI Attorney Tampa Videos

Tampa Traffic Stop DUI Videos

“an inside look at criminal traffic stops for DUI”

Florida DUI Criminal Defense Attorney presents Traffic Stop DUI videos from inside a patrol car. In this series of DUI videos, narrated by Florida DUI Attorney, W F Casey Ebsary Jr, gives you an inside look at criminal traffic stops for DUI in Tampa, Hillsborough County, Florida. Casey is a Criminal Trial Lawyer, former Prosecutor, and a Defense Attorney, defending DUI charges for over 10 years.

Tampa Attorney Checkpoint DUI Videos

“we decided to send our team out to take a look”

Hillsborough County Sheriffs Office in Tampa, Florida decided to have a DUI Checkpoint, so we decided to send our team out to take a look DUI videos. They pulled over every fifth car. We witnessed Zero arrests. Tell Us Your Story Toll-Free 1-877-793-9290.

DUI Videos Refusal Of Breath Test

“video of Refusal of a Breath Test after an arrest for DUI”

Tampa DUI Criminal Defense Attorney shows videos of Refusal of a Breath Test after an arrest for DUI, in this 2-minute video. A Hillsborough County Florida Sheriff’s Deputy administers a Breath Test Warning / Request in a Florida DUI case.

Tampa Florida DUI videos Field Sobriety Tests

“an inside look at field sobriety tests for DUI” 

Florida DUI Criminal Defense Attorney presents Field Sobriety Exercises videos. This production is one of a series of videos, narrated by Florida DUI Attorney, W F Casey Ebsary Jr and gives you an inside look at field sobriety tests for DUI in Tampa, Hillsborough County, Florida. Casey is a Criminal Trial Lawyer and a former Prosecutor, defending DUI charges for over 20 years
actual physical control, dui, Probable Cause, Sleeping Driver

Can a Sleeping Driver be charged with DUI in Florida?

Actual Physical Control, Sleeping Driver, DUI, Probable Cause
Actual Physical Control
Sleeping Driver
DUI, Probable Cause

What happens when a cop approaches a sleeping DUI Driver?


The Facts:
Deputy approaches legally parked car
Makes an approach to vehicle
Second approach to vehicle
Deputy parks patrol car behind suspect
Driver seen with GPS on dash
DUI cop has a “hunch” driver is DUI
Arrests driver
The Ruling:
Court found insufficient basis for a DUI investigation.
The Reasons:

One commentator has observed, “Deputy had legitimate reason to pull alongside defendant’s vehicle, which was stopped on roadside at night in isolated location, to conduct wellness check — Fact that deputy shone flashlight into vehicle and told defendant to roll down window did not convert encounter into investigatory stop — Where deputy saw that defendant was alert and conscious and defendant responded to inquiry about his well-being, deputy’s subsequent actions of parking patrol vehicle behind defendant’s vehicle with lights activated and directing defendant to turn off vehicle and provide identification was unlawful investigatory stop — Motion to suppress is granted.” 24 Fla. L. Weekly Supp. 829a

Quotes from a Recent DUI Court Opinion

“In most DUI cases, a traffic stop is made because the officer has probable cause that a traffic infraction has occurred or the officer has a reasonable suspicion of criminal activity. See State v. Wimberly, 988 So. 2d 116 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1856a] and Origi v. State, 912 So. 2d 69 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2302a]. There is also a justifiable reason for a traffic stop if there is “. . . a legitimate concern for the safety of the motoring public [which] can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.” State, Dept. of Highway Safety and Motor Vehicles v. DeShong, 603 So. 2d 1349 (Fla. 2d DCA 1992).” 
“Once Dep. Woell saw that the Defendant was conscious and able to make a response to his inquiry regarding whether he was all right, even if it was poorly done, there should have been more of an effort to discern if there was truly a concern for the Defendant’s safety before taking the next steps. The Defendant had done nothing illegal. He had pulled off the road in a proper fashion and had not affected other traffic. He was able to roll down his window and respond to the officer, albeit incoherently in the Deputy’s view. There was no visible injury, no blood or vomit. The Defendant was alert and conscious. Tellingly, the Deputy said, while being cross-examined, that he saw (from a decent distance) that the Defendant had bloodshot eyes (the cause of which could be from many reasons) and that he had a hunch the driver was impaired.”
“[T]he second approach (by parking behind the Defendant, walking up to the driver’s door, and directing him to turn off the car and to provide identification) as not a true welfare check. If he had made more than one inquiry while he was alongside the Defendant, perhaps raised his voice one time to try to get a clearer response, or articulated with more specificity how this particular driver looked to be in some possible distress, this Court’s conclusion may have been different. It would be a slippery slope to give an officer carte blanche to use a well-being concern to get around the need for a reasonable suspicion to justify an investigatory stop.”
“Based on the circumstances and the case law, IT IS ORDERED AND ADJUDGED that the Defendant’s Motion to Suppress is GRANTED.”

Complete Sleeping Driver Actual Physical Control DUI Court Opinion

STATE OF FLORIDA, Plaintiff, vs. ROBERT CODY NANCARROW Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2016-301820-MMDB, Division 80. October 16, 2016. Bryan A. Feigenbaum, Judge. Counsel: Andrew Draper, Assistant State Attorney, for Plaintiff. G. Kipling Miller, Koleilat & Miller, for Defendant.
ORDER GRANTING DEFENDANT’S
MOTION TO SUPPRESS
THIS CAUSE came before the Court on September 14, 2016 for a hearing on Defendant’s Motion to Suppress Evidence pursuant to Rule 3.190 Fla. R. Crim. P.; the Fourth and Fourteenth Amendment of the United States Constitution; and Article 1, Section 12 of the Florida Constitution. The Court, having taken notice of the court file, having listened to the testimony of the witnesses, and having considered the arguments from counsel, makes the following findings upon which it enters this Order:
On the late evening of February 14, 2016, around 11 p.m., Deputy Woell of the Volusia County Sheriff’s Office was driving westbound on the 1800 block of Taylor Road. This is a dark area in unincorporated Volusia County; there are no businesses or private homes alongside the road and there are no streetlights around.
There is a long bend in this stretch of road and as Dep. Woell was following a line of two or three cars near this curve, one car pulled completely off the road and onto the grassy shoulder. There was no other abnormal driving pattern and this maneuver did not affect the other vehicles. There was no testimony that any of the other vehicles had to brake or swerve.
Dep. Woell pulled alongside the stopped car, between the wood line and the passenger side of the car. He did not turn on his police siren or any flashing lights and did not get on a public address system. There was only one occupant, the driver, who turned out to be the Defendant. Dep. Woell said he pulled over out of a concern for the motorist to make sure everything was all right.
According to Dep. Woell, as he looked over at the Defendant, the Defendant was just staring straight ahead. The Deputy thought it unusual that a driver would not acknowledge his presence, seeing as how he was in a marked police car, so he pointed a flashlight into the car. At that time, the Defendant rolled down the passenger’s side window and stared at the police officer. Dep. Woell asked if he was okay and he claimed the Defendant looked down to the passenger’s side floorboard area and said something incoherent. Dep. Woell noted that the Defendant was alert, conscious, and was not slumped over and the Deputy made no mention of seeing any visible injury. On cross-examination, Dep. Woell also testified he saw that the Defendant had bloodshot eyes and that he had a hunch the Defendant might be impaired. He conceded that there were no other signs of impairment.
In order to explain his subsequent actions, Dep. Woell claimed that his original concerns for the driver had not dissipated. Dep. Woell thought, without clearly articulating why, that the Defendant was acting in an abnormal manner. He mentioned several scenarios he had been involved in, including situations where a driver was having a panic attack, an adverse reaction to medication, or a medical emergency such as a stroke, but never linked any prior experience with this particular driver’s behavior.
The Defendant testified that he pulled off the road since he was lost. He was staring at the UPS navigation system set up in the middle of his dashboard when a car pulled alongside him and someone shined a flashlight into his car and yelled for him to roll down his window. Once he complied, he was asked if he was okay and he replied that he was fine. He surmises he did not say it loud enough to be clearly heard.
Dep. Woell decided to put his vehicle in reverse and now park behind the Defendant’s car. He did not put on any takedown or flashing lights, but did turn on rear flashing blue lights to warn other traffic of his presence and they most likely would have been noticeable by the Defendant on this dark road. As the Deputy approached the driver’s side window, the window was already rolled down. Dep. Woell asked the Defendant to turn off his car and to provide his driver’s license, vehicle registration, and proof of insurance. Dep. Woell said he began noticing several signs of impairment including the odor of alcohol, glassy eyes, and slurred speech. The Defendant had a great deal of difficulty in finding his driver’s license. He claimed he could not find his wallet three times before realizing he had his wallet on him.
The Deputy returned to his own vehicle and began running the information, including performing a warrants check. According to the police reports, the first time of contact with the driver was at 11:10 p.m. Having now seen signs of impairment which led him to believe a DUI investigation was appropriate, Dep. Woell called for back-up at 11:28 p.m. The shift supervisor, Sgt. Amendolare, arrived about 10 minutes later, at 11:39 p.m., and the DUI investigation began.
Dep. Woell had the experience and background to have started the DUI investigation on his own, but testified several factors led him to call for assistance for safety reasons: the dark area where the two vehicles were parked and the bend in the road next to where they were located; the lack of a flat surface to conduct field sobriety exercises [FSEs] except for the road itself since the grassy shoulder was sloped downward; the need for another police car to block traffic if they were going to do FSEs at the scene; and the relative size of the Defendant compared to Dep. Woell.
The defense argues that there was an improper seizure along the side of the road first by shining the flashlight into the Defendant’s car and then by parking behind the car and approaching the driver’s side window and making direct commands. Secondly, the defense argues that even if there was a valid stop, there was an unlawful detention given the time between the first contact and when the DUI investigation began, around 28 minutes later.
The State initially argued that the defense did not present evidence to show standing and that they did not meet their initial burden of proof under Florida Rule of Criminal Procedure 3.190 (g)(3) which requires, in a motion to suppress, “. . . the defendant shall present evidence supporting the defendant’s position and the state may offer rebuttal evidence.”
The Court took judicial notice of the court file and the allegations in the motion to suppress to find that there was no search warrant issued in this case. See Fla. Stat. § 90.202(6) (court may take judicial notice of the court file). Once that finding is made, the burden is the on the prosecution to prove the validity of the police’s actions under the Fourth Amendment. See State v. Hinton, 305 So. 2d 804 (4th DCA 1975); State v. Schubert, 23 Fla. L. Weekly Supp. 782a (Fla. 17th Jud. Cir., Broward Co. Ct., Dec. 12, 2015); and State v. Dawkins, Donaldson, et al, 20 Fla. L. Weekly Supp. 170a (Fla. 4th Jud. Cir., Duval Co. Ct., Oct. 23, 2012).
All warrantless searches “are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). The burden is on the State to prove the validity of a search by clear and convincing evidence. State v. Thompson, 72 So. 3d 245 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D2236a].
Did Dep. Woell make proper initial contact with the Defendant and, if that was characterized as an encounter, when did that contact change from an encounter to an investigatory stop? Was there a legitimate reason for that change in status at the time it became an investigatory stop?
The Florida Supreme Court described three distinct types of police-citizen contacts and they are often fluid situations. “The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.” Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). The second level is “an investigatory stop.” See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). For a police officer to lawfully detain a citizen, “an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.” Popple, Id. at 186. The third level “involves an arrest which must be supported by probable cause that a crime has been or is being committed.” Id.
The fact that Dep. Woell pulled alongside the Defendant’s parked car did not automatically create a traffic stop. See State v. Wimbush, 668 So. 2d 280 (Fla. 2d DCA 1996) [21 Fla. L. Weekly D506b] and State v. Carley, 633 So. 2d 533 (Fla. 2d DCA 1994). He did not use lights or siren and in no manner direct the Defendant to pull over.
In most DUI cases, a traffic stop is made because the officer has probable cause that a traffic infraction has occurred or the officer has a reasonable suspicion of criminal activity. See State v. Wimberly, 988 So. 2d 116 (Fla. 5th DCA 2008) [33 Fla. L. Weekly D1856a] and Origi v. State, 912 So. 2d 69 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D2302a]. There is also a justifiable reason for a traffic stop if there is “. . . a legitimate concern for the safety of the motoring public [which] can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.” State, Dept. of Highway Safety and Motor Vehicles v. DeShong, 603 So. 2d 1349 (Fla. 2d DCA 1992).
Moreover, a police officer has a responsibility to make a well-being check if there is a reason to be concerned for the safety of a citizen, whether they are in a car or not. “It is well recognized that police officers may conduct welfare checks and that such checks are considered consensual encounters that do not involve constitutional implications.” Dermio v. State, 112 So. 3d 551, 555 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D776a]. See also Blice v. State, 825 So. 2d 447, 449 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1705a] (“Not knowing whether he was ill, intoxicated, or merely asleep, the officers were duty-bound to investigate and to render assistance if needed. To do otherwise would be a dereliction of their duty.”); Gentles v. State, 50 So. 3d 1192, 1198-9 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2900a] (“In keeping with such community caretaking responsibilities, [an officer] could properly check the defendant’s status and condition to determine whether he needed any assistance or aid. This type of limited contact has been deemed a reasonable and prudent exercise of an officer’s duty to protect the safety of citizens.”, citing to Lightbourne v. State, 438 So. 2d 380, 388 (Fla. 1983)); Greider v. State, 977 So. 2d 789 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D949b]; Vitale v. State, 946 So. 2d 1220, 1221 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D164a] (“[T]he Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid . . . .”, citing to Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978); and State v. Sooy, 13 Fla. L. Weekly Supp. 997b (Fla. 7th Jud. Cir., Volusia Cty. Ct., Aug. 3, 2006).
The facts in the instant case, like the fact patterns in Greider, Gentles, and Dermio, show an encounter continuum between an officer and a defendant. Given the time of night and the isolated location where the Defendant pulled off the road, Dep. Woell had a legitimate reason, if not a duty, to pull alongside the Defendant and make sure everything was all right. A wide gamut of reasons from the minor to the serious could be involved when a driver pulls off the road: mechanical problems with the vehicle, a medical emergency, wanting to take or make a phone call or respond to a text, a lost contact lens, or being lost and wanting to get one’s bearings are just a few of the possibilities.
Shining a flashlight into the vehicle or even telling the Defendant to roll down the window did not necessarily convert the initial encounter into an investigatory stop. See Dermio, id; Wimbush, id.; State v. Goodwin, 36 So. 3d 925 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1289b]; Blake v. State, 939 So. 2d 192 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D2510a]; Pacheco v. State, 20 Fla. L. Weekly Supp. 255a (Fla. 17th Jud. Cir. Ct., Nov. 9, 2012); and State v. Evans, 21 Fla. L. Weekly Supp. 451a (Fla. 18th Jud. Cir., Brevard Cty. Ct., Jan. 28, 2014).
Once Dep. Woell saw that the Defendant was conscious and able to make a response to his inquiry regarding whether he was all right, even if it was poorly done, there should have been more of an effort to discern if there was truly a concern for the Defendant’s safety before taking the next steps. The Defendant had done nothing illegal. He had pulled off the road in a proper fashion and had not affected other traffic. He was able to roll down his window and respond to the officer, albeit incoherently in the Deputy’s view. There was no visible injury, no blood or vomit. The Defendant was alert and conscious. Tellingly, the Deputy said, while being cross-examined, that he saw (from a decent distance) that the Defendant had bloodshot eyes (the cause of which could be from many reasons) and that he had a hunch the driver was impaired.
The State relied on Dermio, id., but there are many distinguishing factors that led the Second DCA to find that opening the driver’s door in that case did not transform that encounter into a stop. The driver/defendant in that case was parked in a bar parking lot at 3:30 a.m. with the engine running and the lights on. The driver appeared to be asleep and was only awakened by the officer’s tapping a flashlight onto the car window. The officer made three distinct attempts to get a coherent response from the driver before taking the further action of opening the door out of a concern for the driver’s safety. As pointed out in Dermio, “. . . the deputy’s concern for Dermio’s safety in this case had not yet been alleviated because Dermio continued to be incoherent and ‘out of it’.” [emphasis added] Id. at 556. Dep. Woell, by contrast, had just seen the Defendant driving properly and only made one attempt to check on his welfare. As mentioned earlier, there are a plethora of legitimate reasons why a driver may pull over in the same manner as the Defendant.
In Greider, id., an officer approached a legally parked car that had towels covering both the passenger and driver’s windows of the car, concealing the interior as if they were curtains. The officer had a safety concern and approached the passenger’s side to see the occupant(s). The driver rolled down the passenger’s window and said all was fine. Even though his concern for the occupant’s welfare was dispelled, the officer went around to the driver’s side and ordered the driver to roll down that window. “We do not ignore [the officer’s] testimony that he possessed suspicions regarding the unusual circumstances of the towels covering the windows, even after he had been assured all was well. However, a suspicion, by itself, may reflect well on the officer’s instincts but it does not meet the Fourth Amendment’s requirement of ‘at least reasonable suspicion that the individual seized is engaged in wrongdoing.’ Here, there was no evidence of criminal activity. This event was a second level citizen encounter, an investigatory stop, undertaken without appropriate legal justification.” Greider, id. at 793, citing to Popple at 186. Even if Dep. Woell had not had his welfare concern completely dispelled, there should have been a greater effort made, at least further inquiry, before pulling behind the Defendant’s car, blue warning lights illuminating the dark road, approaching the driver’s window, instructing him to turn off his engine, and making requests for license and registration. Just like the defendant in Greider, the Defendant here would not feel free to disregard the officer’s command, end the encounter, and drive away. The Florida Supreme Court “. . . has consistently held that a person is seized if, under the circumstances, a reasonable person would conclude that he or she is not free to end the encounter and depart.” Popple, id. at 188, citing to Jacobson v. State, 476 So. 2d 1282 (Fla. 1985).
In Gentles, id., an officer approached a parked car in a closed mall parking lot inhabited by a driver who appeared asleep. The car’s engine was running. The officer awakened the driver and ordered him to turn off the engine. The Fourth DCA found that the officer had not shown a reasonable concern for the driver’s safety before telling him to shut off the car. While the officer had a community caretaker function that could allow him to see if the driver needed any assistance, there has to be a specific concern, as opposed to a generalized concern, for the driver’s safety to allow this encounter to continue with greater intrusion by the officer. Id., at 1199-1200.
Dep. Woell’s testimony causes concern that he made the second approach (by parking behind the Defendant, walking up to the driver’s door, and directing him to turn off the car and to provide identification) as not a true welfare check. If he had made more than one inquiry while he was alongside the Defendant, perhaps raised his voice one time to try to get a clearer response, or articulated with more specificity how this particular driver looked to be in some possible distress, this Court’s conclusion may have been different. It would be a slippery slope to give an officer carte blanche to use a well-being concern to get around the need for a reasonable suspicion to justify an investigatory stop. “. . . [I]nvestigatory stops based solely upon an inarticulable hunch or unparticularized suspicion are invalid.” Keeling v. State, 929 So. 2d 1169 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1569a].
Based on the finding that the second contact between Dep. Woell and the Defendant was an investigatory stop and not an encounter, the issue about the time of the Defendant’s detention on the side of the road before the back-up arrived to begin the DUI investigation is moot.
Based on the circumstances and the case law,
IT IS ORDERED AND ADJUDGED that the Defendant’s Motion to Suppress is GRANTED.
Source: 24 Fla. L. Weekly Supp. 829a
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DUI in Polk County Florida – Defense Options

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A Polk DUI Lawyer is standing by. DUI / DWI / Drunk Driving is serious charge to have on your driving record in Polk County. You need a serious defense. DUI Defense can be challenging. The police are the main state witnesses. Scientific evidence from the Intoxilyzer 8000 breath test or blood tests may be presented against you. Damaging evidence against you may include: the breath test, officer’s testimony, and Standard Field Sobriety Tests.

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W.F. ”Casey Ebsary, Jr.” is a Board Certified Criminal Trial Lawyer and DUI – DWI attorney who helps in Polk County, Florida, has knowledge of these issues, and can help you establish your defense against these and other traffic offenses.

Polk D U I Arrests by the Numbers


We uncovered a report that there are about 1300 to as many as 1600 people arrested each year for DUI in Polk County according to arrest statistics for each Florida County. The most recent traffic citation and DUI Arrest numbers for Polk County are available on our Polk County Florida DUI Law Blog.



How To Choose an Attorney


  

Defend yourself against this charge with an experienced D U I lawyer right now. For a free case analysis and evaluation, please call or submit your case information on a DUI in Florida, in Polk County or in the Lakeland Area. Many people wish that they had saved the facts of their case while it was still fresh in their mind. We have developed an Interview that can help you to preserve the evidence of your case to help defend you.


Polk County Includes the Cities of :


Auburndale, Bartow, Crystal Lake, Cypress Gardens,Davenport, Dundee, Fedhaven, Fort Meade, Frostproof, Haines City, Highland City, Highland Park, Kathleen, Lake Alfred, Lake Wales, Lakeland, Mulberry, Nalcrest, Polk City, and Winter Haven
There have been 1300 to as many as 1600 people arrested each year for D U I in Polk County, Florida. Get the arrest statistics for each Florida County as a free PDF download. Get the most recent traffic citation and DUI Arrest numbers as a free PDF download.
DUI News is also available on the DUI Law Blog for free.
Since there is no Bureau of Administrative Reviews Office Locations in Polk County, offenses in Polk County including many DUI issues, such as Under Suspension, Need Driver License for Work and Hardship Driver Licenses, must be resolved at the 2814 East Hillsborough Avenue, Tampa, 33610-4479 Office (813) 276-5795


Other Drivers License issues may be resolved at the Driver License Offices such as having a Driver license issued, taking a driving test and having an ID Card issued. There are three offices in Polk County:
Polk County Driver License Offices
City Street
Address
Phone
Number
Office
Hours
Comments
Haines City 930 Lily Avenue East 33844-4350
Map to location
(863) 421-3202 Mon-Fri
8am-5pm
Make Appointment Online-All Services CDL Hazmat
Cash, Check, MasterCard, Discover Card, or American Express Accepted – See Fee Schedule
Lake Wales 692 U.S. Hwy 60 West 33853
Map to location
(863) 678-4160 Mon-Fri
8am-5pm
Make Appointment Online-All Services CDL Hazmat
Cash, Check, MasterCard, Discover Card, or American Express Accepted – See Fee Schedule
Lakeland 3249 Lakeland Hills Boulevard 33805-2299
Map to location
(863) 499-2323 Mon-Fri
8am-5pm
Make Appointment Online-All Services CDL Hazmat
Cash, Check, MasterCard, Discover Card, or American Express Accepted – See Fee Schedule



For More Florida DUI DWI Defense Qualifications & Information Visit Us at the DUI Information Links Below

 

More D U I Information on DUI Drug Court Division


Polk County DUI Attorney reports on the DUI Drug court division established by Judge Ronald A. Herring. The Judge ordered that any multiple DUI offender may have the option of DUI Court as part of a plea offer. If the offer and the case is accepted into the division, the Polk County DUI defendant’s case may be transferred to the Judge presiding over DUI or Drug Court . The DUI/Drug Court shall be a condition of the offender’s probation. Also involved in the DUI Court are: Judges, Assistant State Attorneys, Defense Attorneys, County Probation, Polk County Sheriff’s Office, Lakeland Police Department Offices, AA representatives and MADD representatives.

If you may be eligible for the new DUI Court program, we can help.


Polk County DUI Attorney Reports


Polk DUI Attorney website and Lakeland Ledger reports 54 Polk DUI cases were thrown out. The reason – what has been suspected for years, since computers have been used to write D U I arrest reports:

1. Cops use a template to write report(s);
2. Cops take a previous D U I report(s) and change the name, leaving details the same;
3. Cops use the same language when talking about the field sobriety exercises.

The Polk County Sheriff Deputy had made “made about 124 arrests for DUI since he began working last year” According to published reports.

Source: www.theledger.com/article/20090808/news/908085027

DISCLAIMER:  The foregoing is not to be construed as legal advice to or for any specific individual. Always seek the advice of counsel for specific legal problems. The submission of this does not establish an attorney client relationship.


Other Stories About Polk County and Lakeland, Florida


DUI Florida Vehicle Immobilization

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Oct 1, 2012 – The service is a licensed service provider, with over 10 years experience, for Court ordered probation in Hillsborough, Pinellas, Polk and Pasco …

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Oct 29, 2016 – W.F. ”Casey Ebsary, Jr.” is a Board Certified Criminal Trial Lawyer and DUI – DWI attorney who helps in Polk County, Florida, has knowledge of …

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Jun 12, 2012 – … Policy is in effect statewide and should also cover Hillsborough DUI cases, Pinellas DUI cases, Polk DUI cases, and Hernando DUI cases.

             


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Law Office of Board Certified Criminal Trial Lawyer
W. F. “Casey” Ebsary, Jr.
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