DUILawDefense Blog

Florida Judge Dismisses Breath Evidence in 19 DUI Cases

After a regional alcohol-program coordinator for the Florida Department of Law Enforcement failed to perform a department inspection on an Intoxilyzer 8000 machine, Judge Joyce Williams has opted to toss out breach evidence in nineteen DUI cases that occurred between February 17, 2007 and May 17, 2007.

In most situations, DUI cases are resolved within months of the arrest, but several defense motions have caused delays, according to Assistant State Attorney Greg Marcille.

Judge Williams presided over a hearing where prosecutors attempted to re-introduce breath-test evidence into the effected DUI cases. Without breath-test evidence, the state would be forced to try the cases using other evidence including the smell of alcohol, driving patterns, statements from the defendants, or other physical indicators of intoxication.

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        Prosecutors Express Doubt About New DUI Law

As with the odor of alcohol on the breath, few police reports will fail to include an observation by the arresting officer that the arrestee exhibited “slurred speech”.  The officer fully expects to hear slurred speech in a person he suspects is intoxicated, particularly after smelling alcohol on the breath, and it is a psychological fact that we tend to “hear” what we expect to hear. And hearing it supplies the officer with corroboration of his suspicions.

Even assuming the honesty of the officer that the defendant’s speech was slurred, there is little evidence that this is symptomatic of intoxication. Impairment of speech is, for example, a common — and sober — reaction to the stress, fear and nervousness that a police investigation would be expected to engender.  Fatigue is another well-known cause.

Skeptical?  Consider the following excerpt from Discover magazine (Saunders, “News of Science, Medicine and Technology: Straight Talk”, 21(1) Discover (Oct. 2000).

Bartenders, police officers and hospital workers routinely identify drunks by their slurred speech. Several investigative groups judged the captain of the Exxon Valdez oil tanker to be intoxicated based solely on the sound of his voice in his radio transmissions. But a team led by Harry Holien, a phonetician at the University of Florida, has found that even self-proclaimed experts are pretty bad at estimating people’s alcohol levels by the way they talk.

Hollien asked clinicians who treat chemical dependency, along with a group of everyday people, to listen to recordings made by volunteers when they were sober, then mildly intoxicated, legally impaired, and finally, completely smashed. Listeners consistently overestimated the drunkeness of mildly intoxicated subjects. Conversely, they underestimated the alcohol levels of those who were most inebriated. Professionals were little better at perceiving the truth than the ordinary Joes….

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After being charged with two DUIs last year (2007), Lindsay Lohan spent two months in rehabilitation and was required to perform community service as part of her plea bargain agreement.  The 21-year old actress was sentenced to four days in jail, but as part of a plea bargain agreement, her jail time was reduced in exchange for 10 days of community service.  Ms. Lohan must fulfill part of her community service by working two, four-hour shifts at a Los Angeles County Morgue and two days working in a hospital emergency room.  The reasoning behind this requirement is to show Ms. Lohan that there are real-life consequences to drunk driving.

As this shows, nice people can get arrested too.

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While DUI/DWI is a very serious problem and not a laughing matter, I did find this amusing video on YouTube: 

 http://www.youtube.com/watch?v=RNPxIibhcKY&feature=related

In a new law that takes effect on July 1, 2008, the Florida Legislature has reduced the potential penalties for certain third or subsequent driving with suspended, canceled or revoked license (DWLS) violations. The new law applies if the underlying suspension was for certain reasons, including: failing to pay traffic penalties, failure to pay child support, failing to maintain mandatory auto insurance, and having been designated as a habitual traffic offender (HTO - three violations within 5 years). The Legislature has apparently determined that many persons with multiple DWLS violations do not deserve to be classified as felons. Read on for more details.

Under prior law, a first DWLS violation was classified as a second degree misdemeanor (punishable by up to 60 days in jail); a second DWLS violation was a first degree misdemeanor (up to one year in jail); and a third or subsequent DWLS violation was a third degree felony (up to five years prison).

The new law lists certain types of suspensions, cancelations or revocations (failure to pay traffic fines, maintain insurance, etc.). A first DWLS violation involving one of the suspensions on the list is classified as a second degree misdemeanor; and a second or subsequent such violation is a first degree misdemeanor. Hence, the new law eliminates the third degree felony classification for a third or subsequent DWLS violation involving one of the listed types of license suspensions, cancelations or revocations.

The newly created first degree misdemeanor penalty will only be available to those drivers who do not have a prior forcible felony conviction.

The following is the list of qualifying suspensions, cancelations or revocations under the new law: (1) failing to pay child support as provided in s. 322.245 or s. 61.13016; (2) failing to pay any other financial obligation as provided in s. 322.245 other than those specified in s. 322.245(1); (3) failing to comply with a civil penalty required in s. 318.15 (paying traffic tickets and fees); (4) failing to maintain vehicular financial responsibility as required by chapter 324; (5) failing to comply with attendance or other requirements for minors as set forth in s. 322.091; or (6) having been designated as a habitual traffic offender under s. 322.264(1)(d) (DWLS three times in five years).

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Jeffrey Burke was sentenced to 15 consecutive weekends in jail following a charge of driving under the influence in Montgomery County Pennsylvania. He was riding a bicycle at the time of his arrest.

Burke had attended a fireworks display on July 4th, 2007 in Narbeth, PA. As he cycled away from the festivities, he was involved in an accident with a car. Police responding to the scene determined that Burke had a blood alcohol level twice the legal limit for intoxication, and he was booked for drunk driving in Pennsylvania.

In handing down the sentence, the Montgomery County judge may have been influenced by the fact that Burke skipped his court hearing, thinking there was no offense of DUI while bicycling.

Of course in Florida, DUI on a bicycle has long been held a valid crime, see State v. Howard, 510 So.2d 612, 12 Fla. L. Weekly 1540 (Fla.App. 3 Dist. Jun 23, 1987).

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Fort Worth, TX.  AP, July 8 -  A man accused of delivering baskets of drug-laced cookies to as many as a dozen police departments, causing several officers to become sick, was arrested Tuesday.

Christian V. Phillips, 18, of Watauga, was arrested Tuesday morning after allegedly taking cookies to the Lake Worth police station, where officers had been tipped off that someone was falsely claiming to deliver treats on behalf of Mothers Against Drunk Driving, said Lake Worth Police Chief Brett McGuire.

“Our officers took a good whiff and thought they smelled like marijuana,” McGuire said, adding that preliminary tests instead detected traces of LSD…

BUT WAIT!!! THERES MORE……..

Tainted” Cop Cookies Deemed Safe

Lake Worth, TX.  AP, July 11 -  A teenager jailed on accusations that he delivered drug-laced cookies to a dozen police stations was released Thursday after tests showed no drugs in goodies taken to two departments.

Blue Mound and Lake Worth police said tests by the Tarrant County medical examiner showed there were no controlled substances in cookies delivered this week by Christian V. Phillips, 18, who had been jailed in Lake Worth on $75,000 bond on a charge of tampering with a consumer product.

Phillips walked quickly out of the jail without commenting while accompanied by his father, who then drove away with his son.

Phillips’ attorney said his client was performing community-service work when he delivered goodies for Mothers Against Drunk Driving to about a dozen stations in the past couple of weeks. Only two stations had any treats left over to be tested for drugs.

“I’m really upset that this thing has gotten to this point, that this kid has gotten convicted in the media before any evidence was collected,” said the attorney, L. Patrick Davis.

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Joseph Errichiello of Port Richey, Florida was pulled over recently at a DUI checkpoint and was charged with drunk driving after failing field sobriety testing.  Mr. Errichiello does not drink alcohol and willingly submitted to roadside tests.  After failing the tests due to physical and mental disabilities, he willingly submitted to both a breath test and urinalysis.  He blew 0.00% according to the breath test and the urinalysis came back negative.

Despite these results, the Florida Highway Patrol placed Mr. Errichiello under arrest for DUI and the prosecutor moved forward with the case.

Less than two weeks later, Mr. Errichiello was stopped again by a Pasco County Sheriff and charged with DUI.  Once again, he proved to be sober after testing.  Mr. Errichiello says that both times the police asked him if he had been drinking and he told them, “No.”  Apparently, he has had a learning disability since he was a child. Mr. Errichiello also stated in an interview with the Pasco Times that he had a severe diabetic condition which contributed to his failing the field sobriety testing.  After the second arrest, the prosecuting attorney did move to dismiss the DUI charges against Mr. Errichiello.

As a Miami DUI Lawyer, it does not surprise me that the police requested that Mr. Errichiello submit to the breath test and the urinalysis after his failing the field sobriety testing.  I am surprised that the prosecuting attorney would want to move forward with its case after the breath test and urine results showed no levels of alcohol or controlled substances.

I know how easily the police can “mistake” the failing of roadside exercises for intoxication. There are thousands of people just like Mr. Errichiello who are unable to pass field sobriety testing because of physical and mental conditions. It is important that individuals arrested for DUI consult with an experienced DUI defense attorney as quickly as possible after their arrest so that such things can be uncovered.

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MADD (Mothers Against Drunk Driving), though I don’t know anyone who is in favor of drunk driving has proposed mandatory placement of ignition interlock devices on new vehicles in the U.S.

Toyota, GM and Saab already have these devices near completion for installation at the factories:

Tokyo- Japanese auto giant Toyota Motor Corp. will develop a system to stop a vehicle if it detects the driver is drunk as part of efforts to cope with a serious social problem, a report said on Wednesday.

The system, expected to become available in 2009, analyzes sweat on the palms of the driver’s hands to assess blood alcohol content and would then not allow the vehicle to be started if the reading was above safety limits, the Asahi Shimbun said. The system would also analyze the driver’s eye movement, driving performance and other factors, the Asahi said.

European automakers have developed systems that require the driver to blow into a tube attached to a vehicle to detect alcohol in the breath. Toyota opted not to use that system as it may fail if the driver asks another person to blow into the tube, the Asahi said.

Toyota rival Nissan Motor said last year it was planning similar steps.

From CBS News:

You have a few drinks, climb behind the wheel of your car, turn the key and — nothing. The engine doesn’t turn over, the car doesn’t move.

If Mothers Against Drunk Driving has its way, a device that checks a driver’s alcohol levels will be mandatory in cars owned by anyone ever convicted of drunk driving, and, eventually, every automobile.

New Mexico already has such a law.

MADD, backed by a national association of state highway officials and car manufacturers, is announcing a campaign to change drunken driving laws in the other 49 states to require such devices for first-time offenders.

“We’ll focus on that problem of separating the drunk driver from the vehicle,” MADD president Glynn Birch told CBS Radio News.

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