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DUI Officer Misses Hearing – Driver Gets License Back

The arresting officer was properly subpoenaed and did not appear at, the formal review hearing

The arresting officer was properly subpoenaed and did not appear at, the formal review hearing

What Happens When The Arresting Officer Is Subpoenaed To Appear At A Driver’s License Suspension Hearing And Fails To Show?

A breath test administered after a DUI traffic stop and arrest indicated the driver’s blood alcohol level exceeded 0.08 percent. The driver requested a formal review of the license suspension at the Bureau of Administrative  Reviews. The arresting officer was properly subpoenaed and did not appear at, the formal review hearing.  

DUI License Suspension Case Summary

The driver got his license back. The arresting officer was properly subpoenaed for, but did not appear at, the formal review hearing conducted by the Department of Highway Safety (“the Department”). The controlling statutory provision is clear: “If the arresting officer . . . fails to appear [at the formal review hearing] pursuant to subpoena . . . the department shall invalidate the suspension.” § 322.2615(11), Fla. Stat. (2014). Under the circumstances of this case, we find that the circuit court, acting in its appellate capacity, applied the incorrect law when it affirmed the hearing officer’s order sustaining the suspension.  

The Court’s Ruling In A DUI Suspension Case

One court just ruledThe circuit court did not apply section 322.2615(11), and thus, it did not apply the correct law in reaching its decision (enforcing /  sustaining a DUI suspension). Accordingly, we grant the petition and quash (dismiss) the circuit court’s order affirming the hearing officer’s order sustaining the suspension. We . . .  direct that [thedriver’s] suspension be invalidated . . . “

COMPLETE TEXT OF OPINION

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

Case No. 5D15-769

JEFFREY M. OBJIO, 
Petitioner,
 
v. 
 
STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES,
Respondent.
________________________________/
Opinion filed November 20, 2015
 
EDWARDS, J.
 

    Through a petition for certiorari, Jeffrey Objio asks this court to consider whether the suspension of his driver’s license for driving under the influence of alcohol, must be invalidated where the arresting officer was properly subpoenaed for, but did not appear at, the formal review hearing conducted by the Department of Highway Safety (“the Department”). The controlling statutory provision is clear: “If the arresting officer . . . fails to appear [at the formal review hearing] pursuant to subpoena . . . the department shall invalidate the suspension.” § 322.2615(11), Fla. Stat. (2014). Under the circumstances of this case, we find that the circuit court, acting in its appellate capacity, applied the incorrect law when it affirmed the hearing officer’s order sustaining the suspension.1 Accordingly, we grant the petition and quash the circuit court’s order.

BACKGROUND FACTS

    Objio was stopped by Officer Dunn and ultimately arrested by Officer Fowler for driving under the influence of alcohol. A breath test administered by Ray Garcia revealed that Objio’s blood alcohol level exceeded 0.08 percent. Pursuant to section 322.2615, Florida Statutes (2014), Objio’s driver’s license was suspended, and he was issued a temporary business-only driving permit. In accordance with section 322.2615(6), Objio sought a formal review of the suspension. Subpoenas were issued and timely served on Dunn, Fowler, and Garcia. The subpoenas required them to attend the formal review hearing scheduled by the Department.  

    When Officer Fowler did not appear at the hearing, Objio moved for invalidation of the suspension pursuant to section 322.2615(11), which provides that “[i]f the arresting officer . . . fails to appear pursuant to a subpoena . . ., the department shall invalidate the suspension.” The hearing proceeded in part, during which time Objio’s counsel questioned Dunn and Garcia. Although the hearing officer stated that he would be willing to continue the case and would extend the duration of Objio’s temporary driving permit,  

1 This is not a situation where the formal hearing was continued based upon the arresting officer’s pre-hearing written request for a continuance.

    Objio’s counsel declined. Objio reiterated his position that section 322.2615(11) was absolute in its terms and required the hearing officer to invalidate the suspension. At this point, the hearing officer asked whether Objio would object to a continuance; when Objio’s counsel did not provide an immediate answer, the hearing officer said he would check back with him later. The hearing officer wanted time to consider this issue because section 322.2615(11) was recently revised, so he informed Objio’s counsel that they would reconvene by recorded telephone call to complete the argument and ruling on this specific issue.

    Several days later, as agreed, the hearing officer contacted Objio’s counsel by telephone and was informed that Objio was not going to request a continuance because section 322.2615(9) provides that a temporary driving “permit may not be issued to a person who sought and obtained a continuance of the hearing.” The hearing officer entered a written order that denied Objio’s request for invalidation of the suspension under section 322.2615(11); and sustained the license suspension.

    Objio appealed the hearing officer’s ruling to the circuit court by petition for certiorari. The circuit court noted that Fowler timely submitted a written request for continuance of Objio’s formal review hearing. However, no continuance was ever ordered by the hearing officer. A Department rule, that predates the revision of section 322.2615(11), provides that a properly subpoenaed witness who fails to appear at a scheduled hearing may submit a written statement showing just cause for the failure to appear within two days of the hearing. Fla. Admin. Code R. 15A-6.015 (2014). “[J]ust cause shall mean extraordinary circumstances beyond the control of . . . the witness which prevent that person from attending the hearing.” Id. The reason given for requesting the continuance was that Fowler would be on leave on the date of the hearing. The circuit court agreed with the Department that the arresting officer did not “[fail] to appear” at the hearing since he had sought a continuance, rather than simply not showing up. The circuit court reasoned that Fowler’s absence did not trigger the mandatory invalidation provision of section 322.2615(11) and found that Objio could not avoid the consequences of license suspension by refusing to accept the hearing officer’s initial offer of a continuance. The circuit court upheld the hearing officer’s order sustaining the suspension of Objio’s license and noted that there seemed to be a conflict between sections 322.2615(6) and (11). Objio timely petitioned for certiorari review by this court.

STANDARD OF REVIEW

    When a party seeks review of the circuit court’s ruling on an administrative action, the district court of appeal conducts what is known as “second-tier” review and must determine “[1] whether the circuit court afforded procedural due process and [2] applied the correct law.” Broward Cty. v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 843 (Fla. 2001) (quoting City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982)). Objio does not claim that he was denied procedural due process, so we only need to decide if the circuit court applied the correct law in reaching its decision.

APPLICABLE LAW

    The applicable law regarding the consequences of the failure of an arresting officer to appear at a review hearing is section 322.2615 (11). When it comes to a formal review hearing, section 322.2615 treats the non-attendance of subpoenaed arresting officers differently than the non-attendance of other subpoenaed witnesses. Section 322.2615(6)(c) provides that “failure of a subpoenaed witness to appear at the formal review hearing is not grounds to invalidate suspension.” (emphasis added). Even a driver’s failure to appear at his own hearing will be excused unless “the hearing officer finds such failure to be without just cause.” Id. § 322.2615(6)(b). However, in a situation such as this, where no continuance is ordered, section 322.2615(11) is absolute, mandatory, and quite clear when it states that “[i]f the arresting officer . . . fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension.” Id. (emphasis added). Because there is no ambiguity in the wording of subsection (11), there is no need to resort to any other source for explanation or definition, such as Florida Administrative Code Rule 15A-6.015, which was discussed above. Thus, when the arresting officer, Fowler, failed to appear at the hearing after being duly subpoenaed, the hearing officer was required, under section 322.2615(11), to invalidate the suspension of Objio’s driver’s license. 

    The circuit court did not apply section 322.2615(11), and thus, it did not apply the correct law in reaching its decision. Accordingly, we grant the petition and quash the circuit court’s order affirming the hearing officer’s order sustaining the suspension. We remand with instructions to the circuit court to grant Objio’s original petition for certiorari, reverse the hearing officer’s order, direct that Objio’s suspension be invalidated, and ordering the Department to revise its records relating to him accordingly.

PETITION GRANTED; ORDER QUASHED; REMANDED WITH INSTRUCTIONS. 

EVANDER and WALLIS, JJ., concur.

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Tampa Bay DUI Convictions and Dismissals by the Numbers

Hillsborough DUI Conviction Rate

“Hillsborough County has the highest conviction rate”

Recently obtained statistics for conviction of driving under the influence in the major counties in the Tampa Bay area. We considered Hillsborough, Pinellas, and Pasco Counties.
 
We thought we would ask three questions:
 
  • First, which county has the highest conviction rate?
  • Second, which county has the most DUI charges in the Bay Area?
  • Third, which county dismissed the most DUI charges?
Hillsborough DUI Conviction Rate

Which Tampa Bay Area county has the highest conviction rate?

As for which county has the highest conviction rate. In an election year, this is an important statistic. Hillsborough County has a hotly contested race for the state attorney’s office and has the highest DUI conviction rate at 79.6%. Pinellas County’s DUI conviction rate was very close at 79.3%. Pasco County brought up the rear with only a 62.1% conviction rate.
 

 

Which county has the most DUI charges?

Which county has the most DUI charges in the Tampa Bay Area?

 
Hillsborough County had the highest number of DUI charges in 2015 with 4,111 charges.  The Florida Highway Patrol had 652 charges in Hillsborough County. The Hillsborough County local police departments had 1722 and the Sheriff’s Office had 1731 .
 
Second in the number of bay area criminal cases for DUI was Pinellas County which had 3355 DUI charges.  The total number of DUI charges for the Three Counties in this study was 8623.
 

In The Tampa Bay Area Which County Dismissed The Most DUI charges?

 
Pasco County Florida dismissed the most DUI charges. Nearly 1 in every 10 charges are dismissed. There was an average conviction rate of 77.15% for drivers charged with driving under the influence in the three counties we studied.
 
So on average, the odds of getting a DUI charge dismissed or reduced to a lesser charge is about one in four. We have included the raw data for you to study. That is available at this link for the Tampa Bay DUI statistics. We have also included a summary in the chart below.
 
What are your thoughts on conviction rates for DUI in the Tampa Bay area?  
 
“the odds of getting a DUI charge dismissed or  reduced to a lesser charge is about one in four”
 

Here are the data we used to calculate Tampa Bay DUI Convictions by the Numbers. The source of the data was https://services.flhsmv.gov/SpecialtyPlates/UniformTrafficCitationReport

Summary of Data in Tampa Bay DUI Convictions by the Numbers Study

County Population DUI 
Charges
DUI
per
capita
Dismissed
DUI
Charges
Percent
charges dismissed
Convictions Conviction
Rate
Hillsborough   1,325,563 4111 0.31% 90 2.19% 3273 79.62%
Pasco      487,588 1157 0.24% 111 9.59% 719 62.14%
Pinellas      944,971 3355 0.36% 25 0.75% 2661 79.31%
Tri-County Total   2,758,122 8623 0.31% 226 2.62% 6653 77.15%
 

Complete Data Used in this Driving Under the Influence Study

Complete Data Used in this Driving Under the Influence Study

To estimate your Breath Alcohol Concentration, use this.

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St. Pete Pride Always A Busy Weekend For DUI And Law Enforcement

St. Pete Pride A busy weekend for DUI
St. Pete Pride – A busy weekend for DUI

DUI Enforcement at St. Pete Pride

DUI Enforcement officers and other law enforcement will swarm St. Pete Pride as over 200,000 will gather June 22, 2019 to support and celebrate Florida’s LGBTQ community at the St. Pete Pride Parade. The parade and street festival will take place this Saturday in the Grand Central District of St. Pete from 2pm to 11pm.  Plan ahead. Do not drink and drive. Do not become another statistic. If you do get arrested Call Casey 813-222-2220
The parade will run on Central Ave between 22nd St and 32nd St. Traffic will start picking up around 2pm on Saturday when drivers head to the parade. DUIs will be highest from 9pm to midnight as the parade, concert and fireworks wrap up.
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Florida and Other States Can Punish Refusal to Submit to a Breath Test

DUI Refusal To Submit Breath Test

Refusal to Submit to a Breath Test

The US Supreme Court gave the OK to punish DUI defendants for breath test refusal. This allows Florida to give harsher penalties to defendants for their breath test refusals, even with no search warrant. The Court ruled DUI arrests Breath Tests are likely to happen. So, Breath Tests do NOT need a warrant.

Three Reasons Court Used to Justify Punishment of a DUI Refusal

Here is why the search-incident-to-arrest doctrine applies to breath and blood tests incident to such arrests.

  • “First, the physical intrusion is almost negligible. Breath tests “do not require piercing the skin” and entail “a minimum of inconvenience.””
  • “Second, breath tests are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath.”
  • “Finally, participation in a breath test is not an experience that is likely to cause any great enhancement in the embarrassment that is inherent in any arrest.”

The case is Birchfield V. North Dakota No. 14–1468. ( June 23, 2016). This was a combining of three cases: Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi.

History of Breath Testing

As far back as, 1905 the LA Times covered a felony manslaughter trial of B. Hook. Hook had been drinking whiskey with his friends and struck and killed a pedestrian. There was no reliable way to prove a driver’s drunkenness. Most roadside tests are subjective. The National Safety Council started a campaign in 1936.

If you drink, don’t drive.”

So after prohibition, police used the new Widmark Formula to determine blood alcohol concentration (BAC). The equation was innovative. The method used was difficult, messy and had unreliable results.

Widmark Formula
Widmark Formula

Later, in 1936, biochemist and toxicologist Harger patented the “Drunkometer.” The driver would blow into a small balloon. The officer would put the captured air into the Drunkometer. Alcohol produced a color change. The officer could measure and calculate the BAC. The results were reliable and accepted by the courts. Then Borkenstein patented the smaller and easier “Breathalyzer” in 1954.

Over time, improved Breath Test machines continue to improve. Today, devices detect alcohol more quickly and accurately than before. Some use infrared technology rather than a chemical reaction. The National Highway Traffic Safety Administration approves all breath testing machines used in courts. Federal Standards require the devices be accurate and reproducible at a variety of BAC levels.

20 Percent of Drivers Refuse a Breath Test

On average, over one-fifth of all drivers asked to submit to BAC testing in 2011 refused to do so. Source: NHTSA, E. Namuswe, H. Coleman, & A. Berning, Breath Test Refusal Rates in the United States— 2011 Update 1 (No. 811881, Mar. 2014).

To combat the problem of test refusal, some States have begun to enact laws making it a crime to refuse to undergo testing. The Federal Government also encourages this approach as a means for overcoming the incentive that drunk drivers have to refuse a test. It is a crime under state law to refuse to submit to a legally required BAC test.

Punishment for Refusing Breath Test

The officers asked Bernard to take a breath test. He refused. The officers told Bernard he had to comply. After he refused, prosecutors charged him with test refusal in the first degree because he had four prior impaired-driving convictions. The state prosecuted Birchfield for refusing a warrant-less blood draw. Bernard and Birchfield each refused to undergo a test. Each was convicted of a crime for his refusal. But Bernard refused a Breath Test and Birchfield refused a blood test. Beylund agreed to a blood test after police told him that the law requires it.

Success for all three depends on the idea that the law does not make someone submit to testing without a warrant. If warrant-less searches agree with the Fourth Amendment, then States may make laws demanding someone to submit to these tests.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” – Amendment IV

Search Incident to Arrest

In the three cases, the officers arrested the drivers for drunk driving. Next, they searched the drivers. Then the officers told the drivers the law required the search. The Court reflected on using the search-incident-to-arrest with breath and blood tests.

  • First, breath tests “do not require piercing the skin” and entail “a minimum of inconvenience.”
  • Second, breath tests are only reveal one bit of information, the amount of alcohol in the subject’s breath.
  • Finally, taking a breath test does not increase embarrassment of the arrest.

If every arrest required a search warrant, search warrants would inundate the courts.

Fourth Amendment Permits Warrant-less Breath Tests Incident to Arrests for DUI

Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrant-less breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great.” – Birchfield v. North Dakota, 136 S. Ct. 2160 – Supreme Court 2016

The Court decided breath tests do not need warrants during DUI arrests. The Court also decided that this does not apply to blood tests.

The Court decided breath tests do not need warrants during DUI arrests. The Court also decided that this does not apply to blood tests. First,the state did not prosecute Beylund for refusing a test. The state needs to re-evaluate that case. Second, Birchfield was threatened with an unlawful search and that the judgment affirming his conviction must be reversed. Finally, since the state prosecuted Bernard for refusing a warrant-less breath test. That test did not conflict with Fourth Amendment, Bernard had no right to refuse it.

Complete Opinion: http://www.supremecourt.gov/opinions/15pdf/14-1468_8n59.pdf

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Drug DUI and Cannabis in the Courts

 
Drug DUI, THC, Cannabis, DUI
Drug DUI and Cannabis

What are the effects of THC on the brain of a driver?

For both DUI attorneys and medical experts in the courts, this is a concept known as THC Kinetics and involves the concept of Hysteresis. Recently I attended a seminar that covered key issues, Questions and Answers on Drug DUI with Dr. Stefan Rose of University Medical & Forensic Consultants, Inc. We learned that during the time of smoking marijuana and during the intoxication period (if one occurs) the blood and brain THC concentrations are in disequilibrium with each other. Another term for disequilibrium is “counterclockwise hysteresis”. When the THC blood levels are high the intoxication is low. When the THC blood levels are low, the intoxication (if present) is high, but only for a short time (minutes to an hour or so). Therefore it is IMPOSSIBLE to predict any pharmacologic effect at any point in time based on a blood THC test result. Nevertheless, there are harsh sanctions / penalties for refusing to take a test, when asked.
 

What is the scientific basis for urine testing and prediction of impairment by a driver?

 
NHTSA addresses Urine THC Kinetics in Drugs and Human Performance Study. With respect to Interpretation of Urine Test Results: Detection of total THC metabolites in urine, primarily THC-COOH-glucuronide, only indicates prior THC exposure. Detection time is well past the window of intoxication and impairment.
 

What do controlled clinical studies tell us about DUI and drug impacts on THC Cannabis impairment?

 
Published excretion data from controlled clinical studies may provide a reference for evaluating urine cannabinoid concentrations; however, these data are generally reflective of occasional marijuana use rather than heavy, chronic marijuana exposure. It can take as long as 4 hours for THC-COOH to appear in the urine at concentrations sufficient to trigger an immunoassay (at 50ng/mL) following smoking. Positive test results generally indicate use within 1-3 days; however, the detection window could be significantly longer following heavy, chronic, use. Following single doses of Marinol®, low levels of dronabinol (same as THC) metabolites are present for more than 5 weeks in urine. Low concentrations of THC have also been measured in over-the-counter hemp oil products – consumption of these products may produce positive urine cannabinoid test results.
 

What do we know about drug driving and THC Kinetics?

 
1. When smoking marijuana, THC is rapidly absorbed into the bloodstream from the alveoli in the lungs
2. The peak blood THC concentration occurs within minutes near or after the end of smoking
3. The THC goes through the blood to the organs and tissues of the body
4. As the blood THC concentration is falling the brain THC concentration is rising (hysteresis) therefore NO correlation of blood THC concentration to intoxication exists
5. The blood flow–peak determines the time to reach maximum THC concentrations in the various organs and tissues. The organs with the most blood flow have THC concentration the quickest
6. The organs with the highest blood flow are the brain, liver, kidneys and lungs
7. Skeletal muscle has low blood flow and fat tissue has very low blood flow
8. Fat accumulates THC slowly, and releases THC back into the bloodstream for days, weeks and months after the last dose of THC
9. Chronic marijuana users may have measurable residual THC levels in the blood for days and weeks after the last dose
10. A single blood THC result cannot determine when a person smoked marijuana or how much marijuana a person smoked!
11. A single blood THC result by itself cannot determine a person’s impairment from THC. Clinical correlation is necessary!

Can a THC Result Can ever Predict Impairment?

 
1. THC Blood : Serum ratio not known (if sample is serum)
2. THC Kinetic curve unknown (THC at driving not known)
3. THC Hysteresis effect not known
4. Residual THC in blood not known
5. THC drug-dose response not known
6. THCt olerance not known
7. CBD content and effect not known
8. Neurologic exam for THC effect not performed
9. Even NHTSA says it cannot be done!

How can a lawyer and an expert Challenge Blood Drug Results?

1. Challenge the chemical analysis for quantitative and qualitative accuracy. The quantitative value ALWAYS has error and uncertainty associated with it. Challenge the quantitative value through the ISO 17025 standard. Inspect ALL documents from the Laboratory Litigation Package and look for qualitative errors. A successful challenge to a driver’s license suspension can avoid a suspension.
 
2. Challenge the idea that a single blood drug test predicts blood drug concentration at the time of stop or crash. Blood drug concentrations are a moving target, and constantly changing. Therefore blood drug concentrations at the time of a stop or crash are unpredictable with a single blood drug test result. In fact, the only way to know the blood drug concentration is to have a blood sample taken at the time of the stop or crash
 
3. A blood drug concentration can NEVER predict the pharmacologic effect, or impairment on any individual even with known blood drug concentration! Pharmacology studies include populations of people, and those studies do not predict the pharmacologic effect on any individual because of the wide range of response to any drug. Modern medical pharmacology holds that doctrine to be true and cannot be changed for the sake of litigation. Counter-clockwise hysteresis of THC makes the prediction of impairment from a blood THC result IMPOSSIBLE.
 

What are important cross examination questions to ask in Drug DUI cases?

 
1. What type sample was analyzed? Whole blood, serum, plasma?
2. If serum/plasma, what was the whole blood: serum THC ratio?
3. What sample type are you referring to regarding any study of pharmaco-kinetics/pharmaco-dynamics?
4. Have you made the necessary correction in your calculations if the sample type is different?
5. How do you know what the defendant blood: serum THC ratio was?
6. What is the target organ that THC affects? (BRAIN)
7. What is the BRAIN THC concentration that causes impairment?
8. Was the BRAIN THC concentration measured?
9. A low blood THC concentration can mean a high or low brain concentration, correct?
10. Blood THC concentration does not predict BRAIN THC, does it?
11. How do you know what the defendant’s BRAIN THC concentration was?
12. Even if you knew the BRAIN THC concentration you would not know if that caused impairment, would you?
13. There is no published correlation between blood THC, BRAIN THC and impairment, is there?
 
If you need a forensic consult on your case please contact Dr. Stefan Rose directly by email at toxdoc@umfc.com or call 561-795-4452. Questions and Answers from recent Class on Drug DUI with Dr. Stefan Rose. University Medical & Forensic Consultants, Inc. ©2015.