Tag: REFUSAL TO SUBMIT TO TESTING

1st Time DUI, 2nd Time DUI Or More

DUI Traffic Stop – Case Closed

W. F. "Casey" Ebsary Jr

 

DUI Traffic Stop
DUI Traffic Stop – Targeting Drivers to Enforce Laws and Arrest Offenders

 

Here is a case summary about a DUI traffic stop where the case was dropped after Constitutional and Statutory Rights were violated. This is an  in-depth exploration of a legal case that unfolded in the State of Florida, where the pursuit of justice collided with constitutional rights. In the matter , the defendant sought to challenge the legality of a DUI traffic stop, unearthing a complex web of issues that question the foundations of law enforcement actions.

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Case Overview

The Players Involved in DUI Traffic Stop

In the legal arena of the County Court,  the DUI Traffic Stop stage was set for a confrontation between the State and the DUI defendant. The case, identified by the online reference FLWSUPP 2908CRAW, delved into the nuances of criminal law, specifically focusing on charges of Driving Under the Influence (DUI) and Refusal to Submit to Testing.

The Allegations

The defendant, mounted a defense asserting that the arresting deputy lacked probable cause for the traffic stop that led to his subsequent arrest. The crux of the matter revolved around the deputy’s claim of an obscured tag, a violation of Florida Statute 316.605(1).

The Court’s Investigation

Testimonies and Findings about the DUI Traffic Stop

A County Court Judge, considered the evidence presented. The arresting officer testified that he initiated the traffic stop due to an alleged obscured tag and the knowledge that the registered owner had a suspended driver’s license. However, the driver contested the validity of the traffic stop, challenging the deputy’s observations and the subsequent events.

Video Evidence

Central to the court’s investigation was the AXON body camera video worn by the Deputy during the traffic stop. The video provided a visual narrative of the events, from the initial encounter to the arrest. This visual documentation became a critical component in evaluating the deputy’s actions and the defendant’s responses.

Tag Obscuration

While the Deputy asserted that the tag was obscured, the court analyzed Florida Statute 316.605(1), which mandates that all elements of a license plate must be clearly visible. The court found that the alphanumeric portion and the registration sticker were unobscured, leading to the conclusion that the traffic stop based on an obscured tag lacked probable cause.

Validity of the Traffic Stop

Notwithstanding the tag issue, the court acknowledged that the traffic stop could be considered lawful based on the knowledge that the registered owner’s driver’s license was suspended. This legal precedent aligned with previous caselaw.

Deputy’s Testimony and Credibility

The court scrutinized law enforcement’s testimony, emphasizing the contradictions between his verbal account and the AXON video recording. The discrepancies raised questions about the reliability of the deputy’s observations, particularly concerning indicators of impairment.

Unraveling the Field Sobriety Exercises

Lack of Advisement

The arresting officer’s failure to inform the suspect about the potential consequences of refusing field sobriety exercises became a pivotal point of contention. The court underscored the importance of advisements. The absence of such advisements rendered the defendant’s refusal less probative of guilt.

Suppression of Evidence

Considering the totality of the circumstances, the court ruled in favor of the driver. The Motion to Suppress was granted, leading to the exclusion of evidence obtained after the defendant was informed of the DUI investigation.

Conclusion

In the intricate legal dance between the prosecutor, the police, and the defendant driver, the court’s scrutiny of the traffic stop’s legality unfolded as a critical narrative. This case sheds light on the delicate balance between law enforcement actions, constitutional protections, and the integrity of evidence. As the legal system navigates such complexities, the quest for justice remains an ongoing journey, where each case adds another layer to the evolving tapestry of legal precedent.

If you find yourself entangled in the complexities of the legal system, navigating the delicate dance between prosecutors, law enforcement, and your rights as a defendant, it’s crucial to have a seasoned advocate by your side. Casey, the Lawyer, stands ready to guide you through the intricate legal landscape and ensure your rights are protected.

Let us help you 813.222.2220

In the aftermath of a critical legal narrative, such as the one illuminated in this case, your journey through the justice system requires experienced counsel. Casey understands the nuances of law enforcement actions, constitutional protections, and the nuances of evidence integrity. Your case adds another layer to the evolving tapestry of legal precedent, and Casey is here to help you navigate every twist and turn.

Don’t face the legal intricacies alone. Casey, with a proven track record and a commitment to justice, is the advocate you need. Call 813-222-2220 now and take the first step towards securing the representation you deserve. Your quest for justice begins with a call to Casey, the Lawyer.

Source: STATE OF FLORIDA, v. TC, Defendant. County Court, 7th Judicial Circuit in and for Flagler County. Online Reference: FLWSUPP 2908CRAW

1st Time DUI, 2nd Time DUI Or More, Breath Test Refusal, Pinellas

Penalties for DUI in Pinellas County, FL

W. F. "Casey" Ebsary Jr

Understanding DUI Penalties in Pinellas County, FL

Courthouse DUI in Pinellas Couty, FL
Courthouse DUI in Pinellas Couty, FL

If you’re seeking information on DUI penalties, it’s crucial to know that the consequences of a DUI offense can vary based on several factors. Here are key considerations:

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Blood-Alcohol Content (BAC):

Penalties can be more severe if your BAC or breath-alcohol content (BrAC) is over .15. For more detailed information on Florida DUI laws, individuals can refer to the official Florida Statutes website (https://www.leg.state.fl.us/statutes/) or consult with legal professionals who specialize in DUI defense to ensure accurate and up-to-date guidance. Understanding the legal consequences associated with elevated BAC levels empowers individuals to make informed decisions and navigate the legal process more effectively.

Presence of a Minor:

Having a minor as a passenger can impact the severity of penalties.

Involvement in a Crash:

If a motor vehicle crash occurs with property damage or injuries, it can lead to increased penalties.

Refusal to Submit to Testing:

Refusing a chemical test, whether for breath, blood, or urine, following a prior refusal can lead to heightened legal consequences. In the context of DUI offenses, the decision to decline such testing can carry significant ramifications. When an individual has previously refused to undergo a chemical test, subsequent refusals often trigger increased penalties. Legal systems view repeated refusals as an aggravating factor, reflecting negatively on the individual’s cooperation with law enforcement.

Prior DUI Convictions:

The presence of prior DUI convictions is a critical factor. Consider the following scenarios:

  • First lifetime DUI conviction.
  • Second DUI outside of five years from any prior conviction.
  • Second DUI within five years from any prior conviction.
  • Third DUI outside of ten years from any prior conviction.
  • Third DUI within ten years from any prior conviction.
  • Fourth lifetime DUI conviction.

To make this information more accessible, the State Attorney’s Office for the Sixth Judicial Circuit in Pinellas County has created a chart summarizing these penalties. Keep in mind that these penalties are typically imposed at the time of sentencing. It’s important to be aware of these factors and seek guidance if you find yourself facing DUI charges.

Lawyer Fighting Pinellas DUI Penalties in Clearwater, FL

Casey the Lawyer at DUI Courthouse in Pinellas County, FL
Casey the Lawyer at DUI Courthouse in Pinellas County, FL

I am a specialist in DUI Defense in Pinellas County, FL.

I am near the Pinellas County Courthouse with my office located in Tampa Bay. You can find me close to the Courthouse in Clearwater, FL located at 14250 49th St N Clearwater, FL 33762-2800 .  By the way, the court is located near the Clearwater Bureau of Administrative Reviews (BAR) located at 4585 140th Ave N #1001, Clearwater, FL 33762, USA.

Whether your DUI case involves a breath test, blood test, urine test, or refusal to submit to a chemical test, we’re here to assist you. Don’t go to court by yourself.

Reach out to a skilled criminal defense lawyer in Pinellas County, FL, for traffic crimes. Give me a call at 813-222-2220.

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Table of Minimum Mandatory DUI Penalties in Pinellas County, FL

Type Costs Prob Lic Jail  Impound Conditions
1st DUI below .15 $983 12 m 6 m
to 1 yr		 6 m 10 days DUI
School, Evaluation Treatment,
50 hrs
Comm
Service
1st DUI .15 or less 18 in car $1,518 12 m 6 m
to 1 yr		 9 m 10 days DUI
School, Evaluation Treatment,
50 hrs
Comm
Service
6 months Ignition Interlock
2nd DUI in 5 y
Below .15		 $1,518 12 m Man
5 yrs		 Man

10 d

 30 days DUI
School, Evaluation Treatment,1 yr Ignition Interlock
2nd DUI in 5 y
.15 or higher		 $2,558 12 m Man
5 yrs		 Man
10 d		 30 days DUI
School, Evaluation Treatment,2 yrs Ignition Interlock
2nd DUI Over 5 y
below .15		 $2,558 12 m 6 m
1 yr		 9 m 10 days DUI
School, Evaluation Treatment,
50 hrs
Comm
Service
1 yr Ignition Interlock
2nd DUI Over 5 y
Over .15		 $2,558 12 m 6 m
1 yr		 12 m 10 days DUI
School, Evaluation Treatment,2 yrs Ignition Interlock
3rd DUI 10 y
Below .15 Felony		 $2,558 60 m Man
10 y		 Man 30 d

5y

FSP

 90 days DUI
School, Evaluation Treatment,2 yrs Ignition Interlock
3rd DUI 10 y
Over .15  Felony		 $4,558 60 m Man
10 yrs		 Man 30 d 90 days DUI
School, Evaluation Treatment,2 yrs Ignition Interlock
3rd DUI Over 10 yrs
Under .15		 $2,558 12 m 6 m
to 1 yr		 12 m 10 d DUI
School, Evaluation Treatment,2 yrs Ignition Interlock
3rd DUI Over 10 yrs,
Over .15		 $4,558 12 m 6 m
to 1 yr		 12 m 10 d DUI
School, Evaluation Treatment,2 yrs Ignition Interlock
4th DUI Life Felony  $4,558 60 m Perm 5 y 10, 30, 90 d DUI
School, Evaluation Treatment,2 yrs Ignition Interlock

 

Summary of Penalties for Driving Under the Influence

Navigating DUI penalties in Pinellas County, FL, involves understanding varying consequences influenced by factors like Blood-Alcohol Content (BAC) and prior convictions. The State Attorney’s Office provides a helpful chart summarizing these penalties. Specialist Casey the Lawyer, near Pinellas County Courthouse, emphasizes professional assistance for DUI cases involving tests or refusals. If facing charges, contact at 813-222-2220. Don’t navigate court alone.

Call for Help 813-222-2220

Uncategorized

Florida Can Punish Refusal to Submit to a Breath Test

W F Casey Ebsary Jr
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

DUI News

TRAF1076 REFUSAL TO SUBMIT TO TESTING 316.1939.1

W F Casey Ebsary Jr

TRAF1076 316.1939.1, Misd 1st, REFUSAL TO SUBMIT TO TESTING
Second Refusal to Submit to Breath, Blood, or Urine Test
Form Code: TRAF1076
Florida Statute: 316.1939.1
Level: Misd (Misdemeanor)
Degree: 1st
Description: REFUSAL TO SUBMIT TO TESTING

“

“after having been so informed, refused to submit to any such test when requested to do so by a law enforcement officer or correctional officer commits a misdemeanor of the first degree and is subject to punishment

Second Refusal to Submit to Breath, Blood, or Urine Test

A second refusal to submit to a chemical test is frequently prosecuted in Tampa DUI cases and in Hillsborough County, Florida. Charge codes like TRAF1076 are used by police, the courts, and prosecutors to classify the type of criminal charge that has been filed. The Penalties for Refusal to Submit to testing in a Florida DUI case are discussed below. What  the Jury will be told about a Second Refusal to Submit to testing in a DUI case in Florida is also included.

Quick Guide to Second Refusal to Submit to Breath Test in Florida DUI Cases

  • Second Refusal to Submit to Testing
  • Driving
  • Lawful Arrest
  • Informed of Penalties for Refusal
  • Misdemeanor 12 Months in Jail

 

What are the Penalties for Refusal to Submit to Testing in a Florida DUI Case?

316.1939 Refusal to submit to testing; penalties.—
(1) Any person who has refused to submit to a chemical or physical test of his or her breath, blood, or urine, as described in s. 316.1932, and whose driving privilege was previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, and:
(a) Who the arresting law enforcement officer had probable cause to believe was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages, chemical substances, or controlled substances;
(b) Who was placed under lawful arrest for a violation of s. 316.193 unless such test was requested pursuant to s. 316.1932(1)(c);
(c) Who was informed that, if he or she refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months;
(d) Who was informed that a refusal to submit to a lawful test of his or her breath, urine, or blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor; and
(e) Who, after having been so informed, refused to submit to any such test when requested to do so by a law enforcement officer or correctional officer commits a misdemeanor of the first degree and is subject to punishment as provided in s. 775.082 or s. 775.083.
(2) The disposition of any administrative proceeding that relates to the suspension of a person’s driving privilege does not affect a criminal action under this section.
(3) The disposition of a criminal action under this section does not affect any administrative proceeding that relates to the suspension of a person’s driving privilege. The department’s records showing that a person’s license has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood shall be admissible and shall create a rebuttable presumption of such suspension.

What will the Jury be told about a Second Refusal to Submit to testing in a DUI case in Florida?

 
Florida Standard Jury Instruction 28.13 Refusal to Submit to Testing § 316.1939, Fla. Stat.
28.13 REFUSAL TO SUBMIT TO TESTING § 316.1939 Fla. Stat.
To prove the crime of Refusal to Submit to Testing, the State must prove the following six elements beyond a reasonable doubt: Give 1a and/or 1b as applicable.
1. A law enforcement officer had probable cause to believe (defendant) [drove] [was in actual physical control of] a motor vehicle in this state while
a. under the influence of [an alcoholic beverage][(a chemical substance listed in 877.111 Fla. Stat.)][(a controlled substance listed in Chapter 893)] to the extent (Defendant’s) normal faculties were impaired.
b. [his] [her] [breath] [blood] alcohol level was .08 or higher.
Give 2a in cases where the defendant was arrested. Give 2b in cases where the defendant appeared for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test was impractical or impossible.
2. a. The law enforcement officer lawfully arrested (defendant) for Driving Under the Influence.
b. The law enforcement officer requested a blood test.
3. (Defendant) was informed that if [he] [she] refused to submit to a [chemical] [physical] test of [his] [her][breath] [blood] [urine], [his] [her] privilege to operate a motor vehicle would be suspended for a period of one year, or, in the case of a second or subsequent refusal, for a period of 18 months.
4. (Defendant) was informed that it is a misdemeanor to refuse to submit to a lawful test of [his] [her] [breath] [blood] [urine], if [his] [her] driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine].
5. (Defendant), after being so informed, refused to submit to a [chemical] [physical] test of [his] [her] [breath][blood] [urine] when requested to do so by a [law enforcement officer] [correctional officer]. 6. (Defendant’s) driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his] [her] [breath] [blood] [urine]. Inference. You are permitted to conclude that (defendant’s) driving privilege had been previously suspended for a prior refusal to submit to a lawful test of [his][her][[breath][blood][urine] if a record from the Department of Highway Safety and Motor Vehicles shows such a suspension. Definitions. § 316.003(21) Fla. Stat. “Motor vehicle” means any self-propelled vehicle not operated upon rails or guideway, but not including any bicycle, motorized scooter, electric personal assistive mobility device, swamp buggy, or moped.
“Probable cause” exists where the totality of circumstances, from the perspective of the law enforcement officer’s knowledge, training and experience, gave the officer reasonable grounds and a fair probability to believe that a crime had been committed. Give if applicable.
“Actual physical control” means the defendant must be physically in or on the motor vehicle and have the capability to operate the motor vehicle, regardless of whether [he][she] is actually operating the vehicle at the time.
Lesser Included Offenses
REFUSAL TO SUBMIT TO TESTING — 316.1939 CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04 5.1 Comment Where the lawfulness of the arrest is at issue, a special instruction may be warranted. This instruction was adopted in 2007 [965 So. 2d 811] and amended in 2013.