A number of DUI’s will be dismissed in Hillsborough County, Florida due to fallout from the former head of the Tampa Police Department DUI division who was fired for his involvement in a notorious Honey Trap that resulted in a lawyer’s arrest. Every pending case involving the former DUI division head where he was listed by the State Attorney’s Office as a possible trial witness will be screened for possible dismissal, while as many as ten DUI cases, some with blood alcohol level evidence of over double the legal limit have already been dismissed. But just looking at pending cases is not nearly enough, even cases in which the Defendant has plead guilty to DUI or lesser charges should be re-examined with Defendants given an opportunity to reopen their cases.
|Badge of Integrity?
Federal and state investigators are still looking at the actions of everyone involved in the drama of this scandal to determine what charges, if any, should be filed. Yet you, my reader, sitting there drinking your wine by the fireplace or possibly asleep within the relative safety of your home during the original scandal, you need not fear these allegations because they are unlikely to cause the Feds to come knocking at your door, nor even mine, one hopes.
A preliminary investigation by the Pinellas County State Attorney’s Office determined that the lawyer who was arrested for a DUI incident to a Honey Trap Set-Up scandal would not be charged. That investigation also revealed that the activities of the Tampa Police Department brought the DUI unit’s integrity into question with the likelihood of destruction of evidence to cover up the role of at least one Hillsborough officer involved in the scandal.
The Pinellas prosecutors should be commended for making the courageous choice of dropping charges against the lawyer, but the prosecutors in Tampa have not gone far enough in dismissing other cases tainted by this scandal.
The integrity of the Florida justice system demands that every case, even those in which the Defendant has already plead guilty, involving the former Tampa Police DUI division head should be re-examined. On motion of the State Attorney’s Office in Hillsborough County, Defendants should be allowed to withdraw Guilty pleas based on the failure of the Tampa Police Department to insure that DUI cases were handled in a fair and impartial manner.
Your favorite Clearwater criminal defense attorney is often asked whether one must obey on officer’s commands. In fact the first few minutes of any initial encounter you have with an officer may be the most important factor in determining whether you’re arrested. If you are not going to co-operate nor obey an officer’s commands, then it’s especially important that you remain calm, reasonable and courteous.
Here is a summary of how to deal with an officer’s requests or commands for information and the various factors that may come into play in determining how you should handle the situation.
|Florida Highway Patrol
The first consideration is how and where the confrontation with the police originates.
An officer knocking at your home door who has no reasonable suspicion that a crime has been committed has much less leeway to compel you to act than one who has reason to believe you are armed, dangerous and just left the scene of a murder.
While at home every American has a high expectation to privacy rights. This means if an officer attempts to compel a home owner to allow a search for evidence, he must have a search warrant or an arrest warrant or have an appropriate legal exception to not have the proper warrant.
One need never give consent to search if the officer does not have a search warrant. Yet in Florida courts may allow officers who claim to have suspicion that a crime has or is being committed by for example, smelling marijuana at the door of a home, to search without a warrant and to make arrests of the occupants without an arrest warrant.
If an officer initiates an arrest without an arrest warrant, must one obey the officer and allow the arrest? In Florida one can resist an illegal arrest only if no force or violence is used. In practice what this means is that one may tell the officer why one should not be arrested, but if force is used the officer may file a felony charge of resisting arrest with violence or battery on a law enforcement officer.
Many citizen and officer confrontations occur while a citizen is away from home. For example, when an officer stops a driver for an infraction such as speeding or improper lane change, then the officer has a right to demand a drivers license and proof of insurance. If there’s an indication of drugs, drinking, impairment or DUI, then the officer will investigate, but the driver need not obey the officer’s commands to take field sobriety test, HGN tests nor to give a breath sample.
If there was a car accident or a suspected DUI manslaughter then the officer has the further right under Florida law to conduct an accident investigation. Every Florida driver under the law has an obligation to provide sufficient information for the completion of that investigation. At the end of the accident investigation then the officer will conduct a criminal investigation, if necessary, at which time the driver need not co-operate.
If you are confronting an officer’s request or command, remember that your primary goal is not to be arrested. Treat the officer how you’d want to be treated. By being calm, courteous and reasonable your expectation will be that a good officer will be courteous, reasonable and fair to you in return; if he’s not immediately ask for a Tampa Bay criminal lawyer who will ensure that your rights are protected.
Your favorite Clearwater Criminal Defense Attorney enjoys practicing in Tampa Bay, Florida where the sheer sporting spectacle of legal scandal never fails to amuse.
|Daumier, The Lawyers, 1850
Amidst a brutal high profile defamation trial between famous local radio personalities Bubba the Love Sponge and MJ Schnitt involving among other sundry details testimony of pigs being killed live on air, one of the lawyers representing Schnitt was popped with a DUI, damn bad luck during an important trial or was it something more?
Luck in this case may have been created when the legal team representing the Love Sponge (really, I’m not making this up) initiated the DUI investigation by calling a Tampa DUI Police Sergeant to check for the car the lawyer was driving. The car the lawyer was driving belonged to the lady he was drinking with, who unbeknownst to him was a paralegal from, you guessed it, the Love Sponge’s legal team.
While the Tampa Circuit Judge plans to make a ruling on whether to grant a motion for mistrial in the ongoing defamation case, he must be wondering what stroke of fate led him to be the one chosen to deal with this mess.
Here are some excerpts from press reports as I’m not keen to be sued should I get these facts wrong, then we’ll focus on the implications of corruption within Tampa Bay law enforcement when crime investigations are initiated for personal reasons:
Schnitt’s team hinted that Campbell’s DUI was a setup – that Melissa Personius, a paralegal for the Love Sponge’s attorney Stephen Diaco met up with Campbell Wednesday evening, bought him drinks and then asked him to move her car. After Campbell’s arrest his Trial Briefcase packed with many confidential documents about case strategy was left in her car.
Tampa Police Sgt. Ray Fernandez, who arrested Campbell, took the stand, testifying he received a call from a member of the Diaco law firm, asking him to check out a specific car.
Diaco pleaded the Fifth Amendment when asked if his staff called the Tampa Police Department in the last 48 hours. Personius took the Fifth Amendment when asked if Diaco instructed her to meet Campbell that night.
It’s always refreshing when lawyers take the fifth; someday I aspire to do the same. But what should be of even more concern is the evidence that Tampa Police can be led by the nose to achieve an arrest.
Tampa Police Chief Jane Castor state, “It is unfortunate that the Tampa Police Department has been dragged into this circus. We stand behind our officer. He did what DUI officers do every day, and that is arrest impaired drivers.
Really? Officers often must work on tips. Clearly if a citizen observes reckless driving endangering others a tip could save lives and officers could be remiss in failing to act.
Yet here there appears to be much more than a mere tip. A lawyer with a possibly illegal hidden agenda had direct access to Tampa’s DUI Sergeant. The attorney had enough influence and personal connection to that Sergeant to initiate an immediate investigation of a crime that had not yet occurred. One wonders how many arrests in Tampa Bay are initiated because of personal agendas and vendettas? Tampa Police should be guided by higher standards and an internal affairs misconduct investigation should be initiated especially because of the past failures of law enforcement officers in Tampa Bay.
Why didn’t the Sergeant simply say, “If you think that guy is going to drive impaired, make sure he gets a cab,” but no, that’s never how it happens in Tampa Bay. The ever greater pressure on Tampa Bay law enforcement to make more arrests does not include stopping crime from taking place.
What happens to a Pinellas County Sheriff’s Deputy who is demeaning and abrasive to citizens while failing to properly investigate DUI cases? Clearwater Criminal Defense Lawyers might think he’d be lucky if he wasn’t fired. But instead he was merely assigned to be a bailiff. And he isn’t happy about it. Now he’s appealing that decision so that he can investigate DUI cases again.
According to press reports the Pinellas County Deputy :
|Honoring uniform & badge, 1950
According to an inter-office disciplinary memo, Hubbard was also suspended for 160 hours and had to undergo a fitness-for-duty evaluation…Internal affairs officials investigated 38 arrests … In 24 of those cases, the investigation found, the DUI charge was either dropped or reduced because either the suspect’s blood-alcohol content was barely at or under the legal limit of .08 or the driver refused the tests after interacting with Hubbard…“Upon review of videos relating to several of your DUI cases, you were found to be demeaning and abrasive towards citizens,” Hubbard was told in a disciplinary memo…
Would you want that Deputy investigating you? This Tampa Bay Criminal Defense Blog has noted that there is plenty of misconduct in Tampa Bay law enforcement such as Sheriff’s Deputies destroying evidence, police officers caught doing crimes, and Pinellas Deputies using fake subpoenas to obtain evidence.
When his conduct is compared to some of the others in local law enforcement this Deputy must believe he is an example of rectitude, discipline and excellence within the force. At least one Clearwater Defense Criminal Attorney would set the standards for police officers and sheriff’s deputies in Tampa Bay at a higher level than not being caught in felonious conduct by firing – not reassigning – officers who don’t respect citizen’s rights.
The Florida Supreme Court just decided that when there’s a motion to suppress from the Defense concerning the validity of a traffic stop, the State must provide testimony from the actual officer who observed the stop. This is an important case for Defendants in Tampa Bay and Pinellas as the prosecution often tries to circumvent supplying testimony from the arresting officer to avoid a transcript which could be used to rebut erroneous testimony at trial. If you’ve been unlawfully stopped call a Clearwater Criminal Defense Attorney to look at your case.
The case involved Ms. Bowers who was charged with Possession of Drugs as well as DUI. At a hearing in her case the officer giving testimony had no first hand knowledge of the actual stop nor the reasons for the stop.
The Supreme Court held in Michele v. Bowers that although it’s appropriate for an officer to always use information from another officer’s investigation in solving crimes and other police work; an officer can not testify to the eyewitness testimony that another officer not present at a trial or hearing would have given, because it is hearsay.
Before this decision Florida Courts would allow evidence based on what was known as the Fellow Officer Rule – if one officer knows what the other officer observed thru police reports or conversation – then the evidence was admissible even for at a suppression hearing (a hearing conducted by a Clearwater Defense Lawyer in which the Defense attempts to establish that evidence should be suppressed due to officer error or legal requirements).
Here are the Briefs filed in the case from the State of Florida Attorney General and the Brief from the Defense or listen to the oral arguments actually made before the Florida Supreme Court.
Now Officers will be have to spend more time in Pinellas Court and less time painting.
|Honore’ Daumier, The Painter, 1870
A recent investigation by the Herald Tribune shows that Florida’s breath testing device of choice, the Intoxilyzer 8000, is flawed and the newspaper argues that the State of Florida should no longer use the machine, your Clearwater DUI Defense Attorney wholeheartedly agrees for the following reasons:
The Herald Tribune notes that, “For years, drivers across Florida have been arrested and convicted of DUI charges based on flawed alcohol breath test machines that reported impossible results.” and that “… 40% of the Intoxilyzer 8000s tested by the state this year were found to be incorrectly measuring breath volumes. Volumes of 10 to 15 liters of breath were recorded,” despite the troubling fact that normal human lung capacity is at most about five liters. (see article on the flawed breath test machines).
After the company refused to disclose the source code which contains the data on how the machine functions, despite Court orders to do so, the State Attorney’s Office in the 12th Judicial Circuit of Florida should be commended for making the right decision: to no longer use the results of the Intoxilyzer 8000 in the prosecution of pending DUI cases, even as FDLE (FDLE Intoxilyzer 8000 Records) scrambled to correct problems that have been known to exist at least since 2006 – problems which law enforcement incorrectly claimed did not exist. The Pinellas County State Attorney’s Office in Clearwater as well as the Hillsborough State Attorney’s Office in Tampa should be courageous and also refuse to allow results from a machine that gives inaccurate, misleading results, especially since other credible evidence such as bad driving, video, field sobriety tests, and the officer’s personal opinion as to the state of the driver’s sobriety are admissible in evidence in a DUI trial. If you have questions concerning a pending DUI check out the material provided at Clearwater DUI Defense Answers or for the Florida Department of Highway Safety and Motor Vehicles DUI Suspension Laws.
316.193 Driving under the influence; penalties.— for complete statute
(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:
(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;
(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.
One too many is plenty too much…
|Vincent Van Gogh Still Life with Absinthe 1887
A recent DUI manslaughter case in Pinellas County pits two sets of parents against each other. One set of parents have lost a child to death, the other set of parents may lose their child to the criminal justice system with a Judge and at least one Clearwater Criminal Defense Lawyer wondering what Solomon might do; cut the Defendant in half?
The two USF students had been friends since kindergaten till the terrible night when an automobile accident took the life of one while the other was driving under the influence of alcohol (DUI).
The driver has shown remorse, talking thru her tears about the dangers of alcohol and the loss of her best friend to high schools and college students.
Should the survivor be sent to prison? The parents of the dead child want fifteen years. The parents of the living child want no prison at all. The prosecutor wants ten years.
Clearly the driver should be punished. However, DUI Manslaughter may be one of the few crimes where an assumption of risk by the victim should be considered in sentencing.
The victim also chose to drink that night. The victim chose to get into that car knowing that her friend was impaired, under the influence and likely DUI. Shouldn’t her decisions have some impact on the outcome of the case?
If so, jail should not be as inevitable as mercy. If your seeking the best possible arguments in a Tampa Bay murder case contact a Clearwater Criminal Defense Attorney.