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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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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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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.

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DUI Conviction Ruins Miss USA Contestant | Video

DUI, Misdemeanor, Conviction, Reputation Management
DUI Conviction Ruins Miss USA Contestant | Video

A Miss USA contestant didn’t think of mentioning a misdemeanor DUI. Then, the contestant won the title. Specifically, the rules don’t allow “any type of” illegal behavior or activity. The pageant officials found out about her DUI conviction. She immediately lost her crown and her title.

The paperwork says, ‘Have you been convicted of a felony?’ and when I contacted my lawyer, he told me that it was a misdemeanor.”

As Miss USA, she claims her lawyer told her she need not disclose the incident. During the incident, the young lady was driving with two flat tires. Finally, she was nearly triple the lawful blood alcohol level. She claims, her phone died. As a result, she could not call Uber. #MissUSA

Source: http://abcnews.go.com/video/embed?id=36329054

Source: http://abcnews.go.com/US/miss-washington-usa-stormy-keffeler-speaks-resigning-crown/story?id=36310190

DUI News, Tampa

Avoiding Amalie Arena DUI | Stanley Cup Playoffs | 813-222-2220

Amalie Arena

Stanley Cup DUI Tampa
DUI For Visitors to Stanley Cup Playoffs

DUI For Visitors to Stanley Cup Playoffs


Since the site of the Stanley Cup Playoffs is in Tampa, Florida there will be an influx of activity and people. Also, the Tampa Police Department’s intensive DUI enforcement zone is in the heart of Tampa near Amalie Arena. So here is a map of where visitors can expect to see tons of traffic enforcement officers.

Link to Interactive Map: 
DUI Officers Watch Bar Parking Lots.
“Tips to watch locations come from Phone Calls from Bar Managers, letters, pictures”

Tampa is well known for the tactical use of special teams to conduct traffic stops near sporting events and bars. In addition, a former Tampa Police Department Sergeant gives testimony in Tampa Bay police tactics in this video. This former sergeant won’t be working but there are plenty more just waiting to arrest people.


 
Stanley Cup Tampa Police Department DUI Unit
DUI For Visitors to Stanley Cup Playoffs
 
The Channelside area will be the focus of the DUI Tampa traffic cops. Assume they watch and wait at parking lots, act on tips received by phone and other types of electronic messages. The police often receive tips to watch locations from phone calls, text messages, emails, letters, and photos. Furthermore, a former DUI specialist said during the final testimony as a Tampa law enforcement officer, “I get all kinds of stuff.”

Assume this is also the practice everywhere: Pinellas, Pasco, as well as Hillsborough counties in Florida. In addition, one DUI attorney has said if “there was a basis for the traffic stop and probable cause for the arrest, how or why an officer got involved in a DUI stop is irrelevant.” Be advised.

To Learn More See: Tampa DUI Bars and Restaurants – Map of Hot Spots – Amalie Arena DUI Attorney Tampa


According to Wikipedia, “The Stanley Cup (French: La Coupe Stanley) is the championship trophy awarded annually to the National Hockey League (NHL) playoff winner after the conclusion of the Stanley Cup Finals.” According to our research, the Tampa Police Department will be trying to score some points in a variety of contests to encourage enforcement of Florid’a DUI laws.

Amalie Arena and Florida Drivers are Targets in Law Enforcement Contests  – DUI Arrest Quotas, Contests, and Prizes

As we have reported, “The State of Florida encourages law enforcement again this year by holding an Olympic-like contest in Orlando. A photo in the report had a cop on foot running behind a traffic patrol motorcycle. This contest kept statistics and awarded performance based on statistical analysis of annual numbers of traffic enforcement actions. They call it the Florida Law Enforcement Challenge. Prizes were awarded for “inventive approaches” to traffic law enforcement.”

To Learn More About Tampa DUI Arrest Contests See:

www.dui2go.com/2014/09/florida-duiarrestcontest-costs-1720000.html

 

Rating: 4.9 – ‎Review by Google+

 

Sep 24, 2014 – Read the complete DUI Arrest Contest Winners story here: … DUI Arrest Contests, Driving under the influence ( DUI ), Arrest Contest … contests


Law Office of W.F. "Casey" Ebsary, Jr., 2102 W Cleveland St, Tampa, Florida 33606, United States (US) - Phone: (813) 222-2220 Email: centrallaw@gmail.com