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Can you get a DUI on a lawnmower in Florida? Dashcam Video

Lawnmower DUI Video

Can you get a DUI on a lawnmower in Florida?

Yes – You certainly can get a DUI on a lawnmower in Florida. W.F. “Casey” Ebsary, Jr. just obtained some interesting dash camera video of a nicely-equipped lawnmower that was stopped by a DUI investigator in Florida. Watch this “tricked out” lawnmower with patio umbrella for shade get pulled over.

2018 Florida Statutes 316.193 | Driving Under the Influence

  1. A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:
    1. The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;
    2. The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
    3. The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

Some people mistakenly think that they can drive a lawnmower, golf cart or bicycle while impaired. On the contrary, the Florida DUI law uses the term “vehicle.” Then Florida Statues define vehicle broadly and easily include cars, lawnmowers, golf carts, bicycles, tricycles, motorcycles.

VEHICLE.—Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except personal delivery devices, mobile carriers, and devices used exclusively upon stationary rails or tracks.

2018 Florida Statutes 316.003 (99) Definitions

If you have a DUI you need an attorney. If this is your first DUI, you may want to read more.

Don’t unwittingly think that as long as you stay off of the roads you can travel around impaired. Florida has more than 65,000 square miles of water. There are also Boating DUI laws (The 2018 Florida Statutes 327.35).

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DUI Media Files

Media Files of the Overview DUI Progression in Tampa Courts

DUI Progression Described By a Board Certified Lawyer Go Over Each Step of a DUI in Tampa Courts

Florida Criminal Procedure described by an expert.

Listen to Expert DUI Attorney Describe the Florida Criminal Procedure

Overview DUI Progression in Tampa Courts

DUI Arrest

A DUI case begins with the commission of a crime. The court receives cases in three ways:

  • The accused arrested at the scene of the crime;
  • Arrest based on a warrant issued by the Court in response to a sworn complaint; and
  • As a result of an investigation and an indictment by a grand jury.

In all instances, the evidence must be sufficient to convince the Court that there is “probable cause” that there was a crime and that the person arrested took part in committing the crime. “Probable Cause” means that there is a reasonable belief that a crime has been committed.


First Appearance Hearing

Within twenty-four (24) hours of the DUI arrest, the Defendant stands before a judge for a first appearance hearing. Then at the hearing, the Judge will set the conditions if any, for release of the defendant from jail. Also, the Judge will explain to the defendant the exact charges. If he or she cannot afford an attorney the judge will appoint the Public Defender to represent the individual at that hearing, If the accused has sufficient roots in a community to ensure that the person will return for trial, the judge may release the accused on his own recognizance pending judicial proceedings. This means the accused does not have to post bond. Some defendants can post a bond prior to the hearing, based on certain conditions. Each morning of the year, there are First Appearance Hearings.


Bond Hearing

There is a list of standard bond amounts, previously determined by the courts. If the defendant is unable to post the standard bond amount, the bond hearing occurs within 5 to 7 days of his arrest. At this hearing, the victim of the offense, if there is one, has the absolute right to bring any facts to the court’s attention, which the victim feels the court should consider in deciding the amount of the DUI bond.


State Attorney DUI Investigation

Sometime after the First Appearance hearing but before the arraignment, the State Attorney will conduct an investigation to determine what, if any, charges to file. A victim of the crime may be notified to appear at the State Attorney’s Office to give a sworn statement regarding the crime. The case against the accused may proceed with or without a victim’s cooperation. The accused will not be present at this meeting.


Charging Decision

After the presentation of your case to the State Attorney, the State Attorney will make a determination as to what action is appropriate. The State Attorney tells the victim the appropriate action. The State Attorney’s Office may do any of the following:

  1. File an Information. Specifically, the information is a formal document containing the defendant’s exact charges filed with the Clerk’s Office.
  2. No File an Information. Conversely, a formal document or Letter of Release stating that the facts and circumstances as presented do not warrant prosecution at this time.

Read about the Individual Florida Statutes:


DUI Criminal Progression of Arraignment

A Tampa DUI Arraignment is the initial court appearance of the defendant. The court will inform the defendant of the charges pending, give the defendant his/her rights, appoint a lawyer if necessary, and hear the plea of the defendant. At the arraignment, the defendant learns the charges before them and the possible penalties for the offense. The defendant may plead guilty, and if so, the judge may impose a sentence at this time. If the defendant cannot afford a private attorney the judge appoints a public defender or volunteer attorney. As with all hearings, the victim of the crime has an absolute right to appear and speak.


Victim Impact Statement


Pre-Trial Intervention

A pre-trial conference is a court proceeding in which the prosecuting and defense attorneys discuss the status of the case with the judge. At this time the lawyers tell the court of a possible plea agreement or the availability of victims/witnesses for trial. In addition, if the defendant, State or Court is not ready for trial and a plea agreement cannot be reached, the judge may grant a continuance of the case. If both the State and the defense cannot agree to a plea and the judge does not grant a continuance, then the case will be scheduled for trial.


Drug Court


Pre-Trial Conference


DUI Trial

At the DUI trial, the judge or a jury of citizens will decide whether the defendant is guilty or not guilty. First, the State will present its evidence. Then the defense will present its evidence. Attorneys for each side will have a chance to ask questions of every witness. The burden of proof is on the State to prove the defendant’s guilt beyond a reasonable doubt. This burden is difficult by design so that innocent people will not be found guilty.


Sentencing

If a defendant pleads guilty, sentencing occurs at the Pre-trial conference. And if the court finds the defendant guilty, sentencing occurs at the trial proceeding. The court, upon a finding of guilt, or plea of guilty, may have the option of sentencing the defendant to a period of probation, community control, jail or prison, and a monetary fine. Florida uses a sentencing guidelines system. The facts of the case and the history of the defendant pre-determines each sentence. The court may impose a sentence above or below the recommended sentence depending upon extenuating circumstances. The court must set forth, in writing the reasons for departure from the recommended range.


Property


Appeal


Prison


Restitution


Florida Criminal System

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Florida, Confessions, DUI, and the Corpus Delicti Rule

Florida, Confessions, DUI, and the Corpus Delicti Rule
Florida, Confessions, DUI, & the Corpus Delicti Rule

What If A Driver Accused Of DUI In Florida Confesses To The Police?

Florida DUI cases are unusual when it comes to confessions. Specifically, admitting driving at the time of the crash is not enough. There must be more evidence. Sometimes. the evidence may be DNA. Periodically, hair samples may be the evidence. Occasionally, the evidence may be the position of the driver at the time of the crash. Police may arrive after the driver has moved from the vehicle. Florida appeals courts have ruled against allowing confession into evidence. They said the state needs to prove corpus delicti of DUI offense with serious bodily injury first. Then the state may introduce defendant’s confession into evidence.

What Is The Definition Of Corpus Delicti In Florida?

There is a Law Journal article “The Anatomy of Florida’s Corpus Delicti Doctrine.” Respected jurist Circuit Judge Tom Barber in Hillsborough County is the author. In it, the judge defines the term, “corpus delicti,” as “the body of a crime.” It requires that first the state proves that a crime has been committed. Then the state may bring a defendant’s extrajudicial (i.e., out of court) confession into evidence in a criminal trial.”

Fl Bar J Volume LXXIV, No. 9 at 80 (Oct 2000). You can review judge Barber’s take on this subject here.

What Is The Law In Florida On Confessions, DUI, And The Corpus Delicti Rule?

There are specific items needed for conviction of DUI with serious bodily injury. First, there must be proof that defendant was driving the vehicle. Also, there must be proof of the defendant’s impairment at the time of crash. Furthermore, there must be evidence independent of the confession that defendant was actually behind wheel at time of crash.

Reported at 30 Florida Law Weekly D2379a

Read about local DUI conviction rates. Learn about how Law Enforcement Testifies in DUI Cases

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What is required for a citizen to make a valid arrest for DUI? DUI Citizen’s Arrest

What is required for a citizen to make a valid arrest for DUI? DUI Citizen's Arrest
What is required for a citizen to make a valid arrest for DUI?

To Make A Valid Arrest For DUI Requires What Of A Citizen?

Sometimes citizens try to detain and arrest driver’s to hold them until the Police to arrive. This citizen’s arrest is not always legal and can result in all evidence seized from the Defendant, including the results of any field sobriety exercises and any matters related to the intoxilyzer test bring suppressed. Then, there is no evidence and there is no DUI conviction. McAnnis v. State, 386 So.2d 1230 sets the standard for a valid citizen arrest (Fla. 3d DCA 1980). The crime of DUI constitutes a breach of peace, for which a citizen who has observed said breach can effect a citizen’s arrest.

Officers did not have probable cause to arrest defendant for DUI where officers observed defendant standing beside vehicle parked in wrong direction on side of highway but did not observe her driving or in actual physical control of vehicle”

FLORIDA LAW WEEKLY FLWSUPP 2404LEDF

The standard for a valid citizen’s arrest is as follows:

  1. a purpose or intention to effect an arrest under a real or pretended authority;  
  2. an actual or constructive seizure or detention of a person by another person who has the ability to control the person arrested;  
  3. the arresting officer must clearly communicate their intention or purpose, then and there, to effect an arrest; and
  4. the person must understand the officer’s intentions.

Citing Melton v. State, 75 So.2d 291, 294 (Fla. 1954) (citation omitted). State v. Parnell, 221 So.2d 129 (Fla.1969); Bey v. State, 355 So.2d 850 (Fla. 3d DCA 1978).

Complete Text of Recent DUI Citizen’s Arrest Opinion

STATE OF FLORIDA vs. XXXXXXX, Defendant. County Court, 7th Judicial Circuit in and for Flagler County. Case No. 2015 CT 1083. June 22, 2016. D. Melissa Moore Stens, Judge. Counsel: G. Kipling Miller, for Defendant.

ORDER ON DEFENDANT’S MOTION TO SUPPRESS

THIS MATTER came to be heard on the Motion to Suppress. The Court, having heard testimony from the arresting officer, Deputy William Nunziato, and witness John Moscowitz, and having heard argument from both Counsel for the State and the Defendant, the Court makes the following findings of fact:

  1. John Moscowitz testified that he was traveling on Highway US-1 northbound, when he observed a small red vehicle coming southbound in his lane of travel. Mr. Moscowitz testified that he maneuvered out of the lane to avoid a collision. Then made a U-turn at the next available location to get emergency personnel assistance. Another vehicle was able to slow the small red vehicle and get it to a stop on US-1 in the northbound lanes facing southbound when Mr. Moscowitz came upon the vehicle again.
  2. When Mr. Moscowitz approached the vehicle, he observed a female in the driver’s seat conscious and appearing remorseful in his words. He was able to request that she get her vehicle off the roadway and shut the vehicle off. Mr. Moscowitz testified that the female initially stayed in her vehicle and did not turn it off. He then asked for the keys to avoid her putting the vehicle back in gear, and he placed the keys on top of the roof of the vehicle.
  3. Mr. Moscowitz is a first responder by trade. He inquired as to medical needs of the driver. He witnessed her unsteady on her feet, almost to the point of falling. Hence, he directed her to sit in the passenger seat of the vehicle to await on duty first responders. Mr. Moscowitz waited until police arrived and conveyed what he witnessed to them.
  4. Deputy William Nunziato testified that he was on duty working DUI patrol on the evening of December 23, 2015. Specifically, dispatch sent him to US-1 near Eagle Hawk Estates regarding a possible DUI.
  5. Deputy Nunziato testified that when he responded to the area, he observed a red two door Mercedes facing southbound in the northbound lane of US-1 on the left shoulder. Also, there were other police cars and other vehicles present.  In addition, the female was outside of the passenger side of the vehicle.
  6. Of course, Deputy Nunziato confirmed that he never witnessed her driving or in actual physical control of the vehicle.
  7. With this in mind, the Defendant requests her Motion to Suppress.
  8. Both the State and Defense agree that the only justification for the arrest of the Defendant would be a citizen’s arrest. Likewise, both the State and Defense agree that the crime of DUI constitutes a breach of peace, for which a citizen who has observed said breach can effect a citizen’s arrest.

See Edwards v. State, 462 So.2d 581 (Fla. 4th DCA 1985); State v. Furr, 723 So.2d 842 (Fla. 1st DCA 1998)[23 Fla. L. Weekly D2514a]; Steiner v. State, 690 So.2d 706 (Fla. 4th DCA 1997)[22 Fla. L. Weekly D850a].  

Off-duty first responder who observed defendant driving wrong way on highway, took away her vehicle keys when she came to stop, and directed her to sit in passenger seat to await on-duty first responders did not effect citizen’s arrest where it is clear that he intended to detain defendant so that she could be evaluated by medical and law enforcement personnel, but it is not clear whether he intended to arrest defendant for DUI”

FLORIDA LAW WEEKLY FLWSUPP 2404LEDF
  1. The standard for a valid citizen arrest is set forth in McAnnis v. State, 386 So.2d 1230 (Fla. 3d DCA 1980). These are as follows:
    1. A purpose or intention to effect an arrest under a real or pretended authority;
    2. an actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested;
    3. a communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and
    4. an understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him.

Citing Melton v. State, 75 So.2d 291, 294 (Fla. 1954) (citation omitted). State v. Parnell, 221 So.2d 129 (Fla.1969); Bey v. State, 355 So.2d 850 (Fla. 3d DCA 1978).  

  1. In the instant case, it is clear that Mr. Moscowitz intended to “detain” the female so that she could be further evaluated by medical and law enforcement personnel. However, whether he intended to “arrest” her for DUI is unclear. Thus, the first, third, and fourth prongs of the McAnnis test are not met by the testimony presented.

See also, State v. Nancy Jones, 22 Fla. L. Weekly Supp. 986a (Fla. Eighteenth Judicial Circuit February 2015); State v. Guy Lathrop, unpublished Seventh Judicial Circuit opinion, (CTC03-51297MMAES May 21, 2004).

Based upon the above findings of fact, it is therefore ORDERED AND ADJUDGED as follows:   The Defendant’s Motion to Suppress is GRANTED. All evidence seized from the Defendant XXXXXXX, including the results of any field sobriety exercises and any matters related to the intoxilyzer test are suppressed.

Results of field sobriety exercises and any matters related to breath test are suppressed”

FLORIDA LAW WEEKLY FLWSUPP 2404LEDF

You can check Florida arrest warrant for free online. Remember the courts believe video evidence.

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What Happens When There Is A Second Refusal To Submit To A Chemical Test In Florida?

What Is The United States Supreme Court Opinion When There Is A Second Refusal To Submit To A Chemical Test In Florida?

What is the United States Supreme Court opinion when there is a Second Refusal to submit to a Chemical Test in Florida?

United States Supreme Court opinion Florida Second Refusal of Chemical Test

Now, it is time to revisit the constitutional basis for criminalization of a second refusal to submit to a chemical test in Florida. Recently, the United States Supreme Court has consolidated a number of cases from a few different states where the issue will be whether or not it is a violation of the right to remain silent to refuse to submit to a breath test for the second or subsequent time.

Since “Driving Is A Privilege”, Do I Still Have Rights In Tampa DUI Cases?

While courts have consistently allowed refusal of breath test submission to penalize drivers in DUI prosecution or driver’s license suspension, now, the issue is whether the constitutional right to remain silent, will outweigh the government’s interest in “safety.” Mothers Against Drunk Driving has pushed second refusal criminalization in several states. For instance, Florida is one of those states. The old standard excuse of “driving is a privilege” not a right may not be used in the right to remain silent. After all, the right to remain silent is a constitutionally protected right. Let’s see what the Supreme Court does. DUI defense attorneys in Florida should preserve this issue in the event the Supreme Court rules in favor of the right to remain silent. I have attached a copy of a motion to dismiss based on the violation of a defendant’s rights and a memorandum of law.

Is It Legal To Penalize A Driver For A Second Time Refusal To Take A Breath Test?

One Florida lawyer, Aaron D. Delgado, of Damore, Delgado, Romanik & Rawlins, 227 Seabreeze Blvd. Daytona Beach, FL  32118 386-255-1400 http://www.communitylawfirm.com/Attorneys/Aaron-D-Delgado.shtml  has begun filing motions in cases where people are accused of refusing to submit to a breath test for the second time. A copy of his motion follows. Anyone representing people in second refusal cases should consider filing this motion in the event that the United States Supreme Court rules favorably for defendants charged with DUI including those charged in Florida.

UPDATE

The Florida Supreme Court will decide on whether a Second Refusal to Submit to a Breath Test in a Florida DUI can be a crime without violating defendant’s rights.

The DUI Second Refusal to Submit to Chemical Testing case is Williams vs. State Of Florida,  Supreme Court of Florida Case No.: SC15-1417 (Fla 2015) “The Court accepts jurisdiction of this case.” Labarga, C.J., And Pariente, Quince, And Perry, J.J., Concurred while Lewis, Canady, And Polston, J.J., Dissented.

What Defense Is Available To A Florida Driver Charged With Refusing To Take A Breath Test?

Defendant’s Motion to Suppress and to Stay Proceeding Pending Ruling From the United States Supreme Court

Pursuant to Rule 3.190(b), Fla.R.Crim.P., U.S. Const., amends. IV, V & XIV., Art.1, §9 and §12, Fla. Const., Missouri v. McNeely, 133 S.Ct. 1552 (2013), Williams v. State, No. 5D14-3543, 2015 WL 3511222 (Fla. Dist. Ct. App. June 5, 2015) and all other applicable provisions of the Federal and State Constitutions, Defendant moves this Court to enter an suppressing evidence but requests this Court stay proceeding on this matter until the United States Supreme Court rules on the issue and in support states:

Procedural Background

Currently, there is uncertainty about the process by which police may obtain a chemical sample from a DUI suspect and to what extent, if any, Florida’s implied consent warnings render a search involuntarily. Further, the constitutionality of criminalizing a refusal to submit to a breath test has been challenged and the resulting decision Williams v. State, 167 So. 3d 483 (Fla. Dist. Ct. App. 2015), rehearing denied (July 1, 2015) in pending acceptance of jurisdiction in the Florida Supreme Court.

On Friday December 11, 2015, the United States Supreme Court consolidated three cases for review; Birchfield v. North Dakota (14-1468), Bernard v. Minnesota (14-1470), and Beylund v. North Dakota (14-1507).  The lead case is Birchfield and a copy of the Court’s Order granting certiorari and consolidating for review is attached as Exhibit “A”.  By accepting review of three cases, the Court will be covering a variety of legal scenarios (a refusal to submit to a breath test, a refusal to submit to a blood test, and a “forced” blood draw) left in the “wake” of Missouri v. McNeely.  The trilogy of cases under review will address the grounds raised in Defendant’s Motion and also determine the correctness of Williams, currently pending acceptance of jurisdiction before the Florida Supreme Court. It is likely the United States Supreme Court will issue its ruling prior to the Florida Supreme Court.  

Recognizing the unique timing presented by nationwide appellant litigation, Defendant files this Motion but, as discussed below, requests proceedings be stayed.  To date, local Courts, following their interpretation of Williams, have denied relief on fact patterns which will now be reviewed by the United States Supreme Court; such a ruling would be binding on Florida’s Courts by operation of our constitutional conformity clause.

Brief Statement of Facts

In preparing this Motion, defense counsel relies on the “Probable Cause” Narrative prepared by the arresting officer and attached as Exhibit “B” as the statement of pertinent facts supporting the stop, detention and arrest of defendant. 

Request for Judicial Notices

Pursuant to §90.201-203, Fla.Stats., this Motion constitutes timely written notice of Defendant’s request the Court take judicial notice of the pleadings and contents of the Court file. See State v. Hinton, 305 So.2d 804 (Fla. 4th DCA 1975) (court may review court file to take judicial notice of the fact that no warrant has been filed, thereby placing burden on the prosecution to prove the validity of the police’s actions under the Fourth Amendment). This Motion, having been filed with the Court and served on the State as certified below, enables the State to prepare to meet the request.

While it cannot be disputed in good faith, Defendant formally requests the Court take judicial notice of the absence of both a search warrant and an arrest warrant in the Court file. Further, the Defendant request the Court take judicial notice of the “probable cause affidavit” contained in the Court file to show defendant has standing to bring this Motion because defendant was the person seized and searched.  No good faith basis exists to challenge defendant’s standing.

Presumptions

Absent warrants, defendant’s warrantless detention, search and arrest are presumptively unconstitutional.  Once the Court takes judicial notice of the absence of these warrants or should the State stipulate to their absence, the burden of going forward shifts to the State. See Palmer v. State, 753 So.2d 679, 680 (Fla. 2d DCA 2000), Irons v. State, 498 So. 2d 958, 959 (Fla. 2d DCA 1986) and State v. Lyons, 293 So. 2d 391, 393 (Fla. 2d DCA 1974)

Burdens of Proof

The State has the burden of establishing the defendant’s warrantless detention was lawful, see e.g., Palmer v. State, 753 So.2d 679 (Fla. 2d DCA 2000), Sunby v. State, 845 So.2d 1006 (Fla. 5th DCA 2003), Maurer v. State, 668 So.2d 1077 (Fla. 5th DCA 2003), and also that defendant’s warrantless search and arrest were lawful, see State v. Kliphouse, 771 So.2d 16 (Fla. 4th DCA 2000) and Dooley v. State, 501 So.2d 18, (Fla. 5th DCA 1987).  The Court is not required to accept the police officer’s version of the facts, see Dooley, Maurer, and Sunby, supra.

Should the State rely on “consent” to justify the lawfulness of a search, it has the burden of proving that the consent was, in fact, freely and voluntarily given.  Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) and Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973). This burden must be met by the “greater weight of the evidence.” Jorgenson v. State, 714 So.2d 423 (Fla. 1998).

It is well-settled that breath test, as well as a urine or blood test, is a search. Skinner v. Ry. Labor Executives’ Ass’n, 109 S. Ct. 1402, 1414, (1989) and Missouri v. McNeely, 133 S. Ct. 1552 (2013). See also Williams v. State, No. 5D14-3543, 2015 WL 3511222 (Fla. Dist. Ct. App. June 5, 2015) Just because a defendant permits a search to occur does not mean the search was actually consensual:

General Statements of Law

Valid consent has long been recognized as a “jealously and carefully drawn” exception to the warrant requirement. See Georgia v. Randolph, 547 U.S. 103, 109 (2006) (quoting Jones v. United States, 357 U.S. 493, 499 (1958)). For a search based upon the consent exception to be valid, the consent must be given freely and voluntarily; it cannot be the product of coercion. See, e.g., Norman v. State, 379 So.2d 643, 646 (Fla.1980) (citing Bumper v.. North Carolina, 391 U.S. 543, 548 (1968)). Voluntariness is a question of fact to be determined by the totality of the circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 248–49 (1973). Additionally, consent for purposes of the Fourth Amendment is revocable and can be withdrawn at any time. See, e.g ., Smith v. State, 753 So.2d 713, 715 (Fla. 2d DCA 2000).”

Williams v. State, No. 5D14-3543, 2015 WL 3511222, at *5 (Fla. Dist. Ct. App. June 5, 2015)

Implied Consent Statutes Does Not Itself Prove Free Will Choice

Florida’s Implied Consent statutes do not create per se valid Fourth Amendment consent.  In Williams, the 5th DCA instructs:

… [S]tatutory implied consent is not necessarily given freely and voluntarily. Thus, allowing implied-consent statutes to constitute a per se, categorical exception to the warrant requirement would make a mockery of the many precedential Supreme Court cases that hold that voluntariness must be determined based on the totality of the circumstances. We also find it improbable that the Supreme Court would mention implied-consent statutes in McNeely, yet completely ignore this important potential exception to the warrant requirement. In McNeely, the Court recognized that nearly every state had an implied-consent statute, including Missouri.”

See 133 S.Ct. at 1566

U.S. Supreme Court Holds Statutory Implied Consent Not By Itself Exception To Warrant

When McNeely was arrested, he was told that refusal to submit to the test would lead to the revocation of his driver’s license and could be used against him in future prosecutions. Id. at 1557. And still, the Court in McNeely assumed that he had not consented. See id. at 1556 (framing issue as “non-consensual” blood testing). So, allowing implied consent to constitute a per se warrant exception would devour the McNeely rule and contradict McNeely’s general reasoning that these cases must be decided using a totality-of-the-circumstances approach. Therefore, we choose to follow the majority of courts, including all of the state supreme courts that have addressed this issue, in holding that statutory implied consent does not constitute a per se exception to the warrant requirement.”

Williams v. State, No. 5D14-3543, 2015 WL 3511222, at *6 (Fla. Dist. Ct. App. June 5, 2015) See also Williams v. Georgia (attached) stating “mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant.


Implied consent is also inherently coercive.”

State v. Medicine, 865 N.W. 2d 492 (2015)

Relief Requested

Defendant requests this Court:

  • Suppress any and all results of a chemical test of breath blood or urine (a search) as the product of a warrantless illegal search.
  • Suppress any and all evidence defendant refused to submit to a search of his breath blood or urine for the purposes of determining its alcoholic content or the presence of chemical or controlled substances as a valid exercise of a constitutional right to be free from unreasonable search and seizure.
  • Dismiss as unconstitutional the charge of refusing to submit to a chemical test for criminalizing a valid exercise of a constitutional right to be free from unreasonable search and seizure.

Stay Requested

DUI Prosecution Generally Reasonable Exception

It is appropriate to delay further litigation on this matter because the only Florida District Court to write on this issue is the Fifth District Court.  And in deciding Williams, the District Court relied on Birchfield, Bernard and Hawaii v. Yong Shik Won (since overruled) and created a new “generally reasonable” exception.  Considering Hawaii has radically changed DUI prosecution and the questions before the United States Supreme Court cover the scenario in Williams, 167 So. 3d 483 and others in litigation, Defendant requests a final ruling be deferred even if this means a delay in the instant prosecution.   While Defendant may “preserved the record” as to relief on this issue, the reality of life at the trial level is that most DUI sentences will be long done before the United State’s Supreme Court rules and a stay pending appeal does not protect the defendant’s driving privileges, etc.

Defendant brings this Motion in good faith.  Moreover, this particular subject matter is rapidly evolving (by legal standards if not Darwinian) and Defendant, through counsel, has timely filed all applicable Motions and notified the Court of changes to the law.