DUI Media Files

May 9, 2019January 6, 2022 W F Casey Ebsary Jr

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:

File an Information. Specifically, the information is a formal document containing the defendant’s exact charges filed with the Clerk’s Office.
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

Breath Test Over 08, Breath Test Refusal, Commercial DUI

Broken Breath Machine Means No DUI Conviction

March 25, 2018July 10, 2018 W F Casey Ebsary Jr

The Case of the Bad Breath Machine

If the State does not prove intoxication, there is no DUI conviction. Recently, we at DUI2Go encountered a tough case where the driver had blown into an Intoxilyzer 8000 breath machine and exceeded the legal limit in Florida of .08. Fortunately, our office has access to the logs of all breath test given by all machines in Florida and the maintenance records of these machines. As a result, we are sharing some of the Florida Department of Law Enforcement Intoxilyzer 8000 files. This is the Florida Department of Law Enforcement Alcohol Testing Program Intoxilyzer 8000 Operational Procedures also known as Form 37. In addition, the Florida Department of Law Enforcement also uses Form 38 Breath Alcohol Test Affidavit. Finally, there is some great information in the Alcohol Testing Program Intoxilyzer® 8000 Reference Guide.

The Accuracy of Intoxilyzer 8000 in Court

Before 2014, often the state did not present scientific evidence of the machine’s accuracy. Recently, a Florida Driving Under the Influence court ruled in State v. Garcia, (20th Cir Aug 20, 2014) that the State Attorney must establish the admission of an Intoxilyzer Breath Test result. Prosecutors must use the traditional scientific predicate to introduce breath test results from Intoxilyzer 8000 in a trial. The court ruled that it could not determine whether the modified Intoxilyzer 8000 used in Florida was same machine/instrument approved by NHTSA ( National Highway Traffic Safety Administration ) for use in Florida.

Sometimes we uncover broken Intoxilyzer 8000 breath machines. We reviewed this official FDLE Form 41 Department Inspection Report records of this machine. The machine had not passed the post-inspection Diagnostic Check. The instrument does not comply with Florida Administrative Code Chapter 11D-8. In addition, after failing its monthly inspection there was no evidence of repairing the machine. Notably, the machine returned to service without any repair record.

No Proof, No DUI Conviction

When the Intoxilyzer 8000 has not been maintained, the results may be thrown out. Without that evidence, it is difficult for the state to prove your guilt. Sometimes the state will offer a reduced charge of reckless driving does not carry the risk associated with a DUI conviction. If you have another DUI conviction later, your prior convictions enhance your penalties. Your conviction penalties may include; fines, ignition interlock device, license suspension or revocation and jail or prison. Multiple DUIs can carry mandatory jail time. Once a driver has three or more DUI convictions, it becomes a felony.

1st Time DUI, Breath Test Over 08

Reducing Impaired Driving Recidivism – Established DUI Diversion

February 21, 2018January 6, 2022 W F Casey Ebsary Jr

DUI Diversion Program

The Office of the State Attorney, 13th Judicial Circuit just developed their own DUI Diversion Program. Therefore, we will look at some of Florida’s already established DUI diversion programs. The 8th, 9th, 11th & 15th Circuit Courts all use DUI Diversion for a driver’s first DUI charge. Furthermore, each Circuit Court has different admission rules and distinct program requirements. Update: This Hillsborough County program started March 1, 2018. You can read about what the state’s attorney is looking for, what you might need to know, who is eligible and why you might want to be a part of this program.

Admission Requirements Are Confusing

First of all, some of the confusion of this process is shown below. Since each county has developed their program independently, the demands on the DUI driver differ. Therefore for help, call (813) 222-2220. In Orange and Osceola Counties, only legal U.S. residents can join the DUI Diversion Program. As a result, a tourist, a foreign national or someone on an F1 student visa charged with a DUI could never enter the DUI Diversion program in the Ninth Circuit Court. In Miami-Dade County, there is no upper limit on your breath alcohol concentration (BAC) to make you ineligible. But that same county requires that you sign a statement of guilt before entering. Three of the Circuit Courts (8th, 11th, and 15th) will refuse your admission if a child or animal was with you in the vehicle at the time of the charge. Another difference is that only the 8th Circuit Court will use drunken aggression as a reason to deny your access to the program.

DUI On Drugs, Expert Attorney WF Casey Ebsary Jr

Florida Drug Recognition Experts DRE Video

February 12, 2018November 1, 2023 W F Casey Ebsary Jr

Florida Drug Recognition Experts DRE

“Drug Recognition Experts (DRE) in Florida and throughout the nation have raised concerns among both jurors and judges. This is because law enforcement and prosecutors aim to influence the independent judgment of these legal authorities in determining the potential impairment of criminal suspects.

We’ve acquired training manuals and carefully scrutinized the evidence supporting these so-called “experts.” Upon examination, it becomes apparent that these witnesses may not meet the rigorous requirements for the admissibility of “scientific” evidence, especially outside of law enforcement circles. Consequently, it is prudent to consider removing such witnesses from the list of prosecution witnesses.

Florida Drug Recognition Experts DRE

In just five minutes, you can gain insights into various aspects of DRE:

The History and Origin of the DRE.
The Comprehensive Training Regimen for Drug Recognition Experts (DRE).
The Entities Responsible for Conducting DRE Training.
The Unique Skillset Acquired by Drug Recognition Experts (DRE) that may not be readily available to judges and jurors.
Whether DRE “evidence” aligns with the standards for admissibility set forth by Florida law and the Daubert standard.”

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.

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 News

DUI Arrest Contest Trophy?

August 8, 2011April 30, 2018 W F Casey Ebsary Jr

DUI , DUI Arrest, DUI Arrest Contest — DUI Arrest Contest Trophy

Arrest Contests for DUI

DUI Attorney Lawyer noticed this was parked outside of the Hillsborough County Courthouse in Tampa, Florida this morning. This is an outrageous scenario and there are few, if any, other crimes that give out trophies for arrests (not even requiring convictions). Ironically the Championship DUI vehicle was parked right outside of a County Courtroom where jurors were reporting for duty this morning.

Here are some good jury questions:

Hey Champion, do you have to give back the SUV if we acquit this defendant for DUI?

How many people do you arrest for DUI to win an SUV?

DUI Arrest? Call Casey 813-222-2220

DUI Patrol Vehicle
Photo Credit: DUI Attorney Lawyer

Photo Credit: DUI Lawyer Attorney

DUI Patrol Vehicle
Photo Credit: DUI Defense Attorney Lawyer

DUI Attorney, DUI Lawyer, DUI Arrest Contests