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Saturday, July 16, 2016

DUI St Petersburg Attorney (813) 222-2220 Lawyer

DUI St Petersburg Attorney Lawyer Call for help when DUI troubles arise
(813) 222-2220


Board Certified Criminal Trial Lawyer

DUI St Petersburg Attorney Lawyer St Petersburg DUI St Pete DUI Board Certified Attorney Lawyer W.F. “Casey” Ebsary, Jr., St. Petersburg DUI Attorney  Lawyer, Board Certified Criminal Trial


Free Search You can Use Google to Search my Florida DUI Database for Free - If you do not find an answer, call me.

St Petersburg, Florida DUI - Attorney and Former DUI Prosecutor, W.F. "Casey" Ebsary, Jr., was an Assistant State Attorney / DUI Prosecutor in the State Attorney's Office and has handled hundreds, of DUI cases as a trial lawyer. Drivers facing DUI or BUI in St Petersburg, Florida can call Casey for help when DUI troubles arise.

Casey is Board Certified in Criminal Trial Law by the Florida Bar Board of Legal Specialization and Education. Less than 1/2 of 1 percent of Florida's lawyers have qualified for this distinction. Click on the Florida Bar Board Certified Criminal Trial Icon above to review Casey's qualifications.

St Petersburg DUI Arrest Award Winner - Officer Robbie Arkovich of the St Petersburg Police Department has been recognized for 1000 arrests.

More DUI St.Petersburg


DUI and other Criminal misdemeanor charges that occur in Pinellas County, Florida are assigned to one of three courthouses. They are located in North, South and Central Pinellas County.

There are three courthouses in Pinellas County, Florida. Each DUI defendant is assigned to either the North, South or Central Pinellas County Courthouse.

DUI Cases from St Petersburg, Florida can be assigned to the courthouse in St. Petersburg, Florida.

DUI St Petersburg Attorney Lawyer

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AV Preeminent Rated - The prestigious and very distinguished award from Martindale-Hubbell / Lawyers.com states, the Lawyer has the "Highest Possible Rating in Both Legal Ability & Ethical Standards. . . .An AV® certification mark is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence." W.F. "Casey" Ebsary, Jr. has this rating. Casey has been recognized by his peers with this award of professional excellence for many years since entering private practice.

Let me help you, a friend or a loved one.

Board Certified Criminal Trial Specialist, W.F. ''Casey' Ebsary Jr. knows that DUI is serious charge to have on your driving record. You need a serious defense! The Call is Free and the Relief can be valuable. 
(813)222-2220

You Can Search Casey’s Huge St Petersburg Florida DUI Defense Lawyer / Attorney Information Database for Free at the top of the page. If you do not find what you are looking for, call me today at (813)222-2220 .

DUI Board Certified Criminal Trial Lawyer near St Petersburg Florida Defense Lawyer,  W.F. "Casey" Ebsary, Jr.  on Twitter

What About Forfeiture of Assets for DUI?


W.F. "Casey" Ebsary, Jr. in Tampa, Florida handles forfeiture cases in State and Federal Courts. Call Casey today for a free phone consultation to discuss how Casey can help you, your family, or your company.

Casey is a Board Certified Criminal Trial Lawyer with civil and criminal litigation experience.

DUI St.Petersburg Forfeiture Attorney | DUI St.Petersburg Florida Forfeiture Lawyer

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Casey is a Board Certified Criminal Trial Lawyer with diverse criminal litigation experience. Main Office Tampa Conveniently Located: 2102 W Cleveland St Tampa, Florida 33606. Licensed in Florida, Federal Middle District of Florida, and the 11th Federal Circuit. Call Casey (813)222-2220 .

DUI Defense Lawyer near St Petersburg FL,   W.F. "Casey" Ebsary, Jr. (813)222-2220 |

Pinellas County Criminal Courthouse DUI St Petersburg Attorney Defense Lawyer

W. F."Casey Ebsary, Jr., former prosecutor and Board Certified Criminal Trial Lawyer has been attorney of record in hundreds of DUI cases. He has represented clients in driving under the influence (DUI) and driving while intoxicated (DWI) cases in many Florida counties. He is a former Assistant State Attorney (Prosecutor) and a former Assistant Public Defender. He has litigation experience which includes DUI St Petersburg, counterfeiting, driving under the influence, fraud, forgery, murder, money laundering, and theft. Mr. Ebsary is AV rated by the Martindale-Hubbell Directory. That is the highest rating issued by this nationally recognized lawyer rating service. An AV Rating shows that a lawyer has reached the height of professional excellence. AV rated lawyers have usually practiced law for many years, and are recognized for the highest levels of skill and integrity. W. F. Casey Ebsary, Jr. is a distinguished author and lecturer. He has been a legal analyst on radio and TV. His primary office is in downtown Tampa Florida in Hillsborough County.

The Law Office of W. F. Casey Ebsary, Jr., Trial Lawyer
Licensed in Florida and Federal Middle District
Office Conveniently Located: 2102 W Cleveland St Tampa, Florida 33606

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Thursday, July 14, 2016

Hillsborough DUI Lawyer | Hillsborough Attorney 813-222-2220 Tampa DUI Florida

Hillsborough DUI Lawyer | Hillsborough Attorney 813-222-2220 Tampa DUI Florida
Hillsborough DUI Lawyer 813-222-2220
Hillsborough DUI Lawyer | Attorney
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Hillsborough DUI Attorney - Charges Defended Since 1997.

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DUI Attorney Hillsborough

DUI charges in Hillsborough County, Florida? DUI Hillsborough Attorney, W.F. "Casey" Ebsary, Jr. is standing by to help you, a friend, or a loved one. DUI Hillsborough Lawyer Casey Ebsary is a Hillsborough DUI Attorney who prosecuted DUI charges in County and Circuit Court - Both Misdemeanors and Felony. Now he is on your side. If you have a DUI anywhere in the Tampa Bay Area, then you probably have some questions to ask from a Hillsborough dui lawyer. You can have your questions answered by a former Hillsborough County DUI prosecutor, W. F. "Casey" Ebsary, Jr. at 813-222-2220.

Casey Ebsary has handled hundreds of Hillsborough D U I cases and knows how to help you with your Hillsborough DUI. He has represented clients in driving under the influence, driving while intoxicated and in other types of civil and criminal cases in many of Florida's counties. He worked for the State of Florida in prosecution (Assistant State Attorney) and defense Assistant Public Defender).

Search Our DUI Hillsborough Website. Search my huge DUI Database for Free - then call me 813-222-2220 .  Hillsborough County DUI Search - Free access for Public, Students, Clients and Attorneys.


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Hillsborough County, Florida DUI Attorney


 

Highest Rating by Lawyers.com

Seasoned and Experienced
When you have been arrested for DUI, Board Certified Criminal Trial Lawyer W.F. ''Casey'' Ebsary, Jr. is available to help 813-222-2220. For ten years, each spring, Mr. Ebsary taught the Review and Preparation Course for the Florida Criminal Trial Board Certification Exam.  Mr. Ebsary has been a Member of the Student Education and Admissions to the Bar Committee of the Florida Bar, Chairman of the Criminal Law section of the Hillsborough County Bar Association. Mr. Ebsary received his Bachelor of Science in Business Administration, cum laude from the University of Florida and his Juris Doctor, cum laude from the Stetson University College of Law. Mr. Ebsary is also an Editorial Board Member of the Stetson Law Review.


In addition to being Board Certified by the Florida Bar, Casey Ebsary also has received an AV Rating by the Martindale Hubbell Law directory / Lawyers.com. This is their highest rating and shows that a lawyer has reached the height of professional excellence. AV rated lawyers have usually practiced law for many years, and are recognized for the highest levels of skill and integrity.

Defense of a DUI charge can be quite challenging. The main witnesses are generally the police. There is sometimes allegedly scientific evidence from the breath test and/or the medical or legal blood tests being presented against you. The breath test, officer's testimony, and Standard Field Sobriety tests are used to try to present damaging evidence against you.

Check Out Qualifications of an Experienced Lawyer in Tampa, Florida

Board Certified Criminal Trial Lawyer, W.F. "Casey" Ebsary, Jr. can defend you against drunk driving charges and other traffic offenses. Drunk Driving is a nasty charge to have on your driving record. Casey can help defend against this charge. Whether you have been arrested, or just need to learn about the law, this site is dedicated to assisting you in finding some answers.


We are available 24 hours a day for a free case evaluation.

Contact a Lawyer in Tampa, Florida

Call 813-222-2220

The Tampa Bay area also includes Pinellas, and Pasco Counties. The Tampa Bay area also includes cities and townships of Tampa, Clearwater, St. Petersburg, Land O Lakes, Largo, Lutz, Temple Terrace, and the winter strawberry capital Plant City, to name a few.

If you refuse to take a breath, blood, or urine test after being arrested, or if results of your breath test were .08% or above, your license will be suspended unless a written demand for an administrative hearing is filed within 10 days after arrest.

Driving Under the Influence can be proven several ways. It can be proven with evidence of impairment of normal faculties or unlawful blood alcohol or breath alcohol level of .08 or above. 
Regardless of how the DUI is proven, when convicted one faces the same penalties. The Driving Under the Influence conviction penalties include: fine, community service, probation, vehicle impoundment, and imprisonment. Hillsborough County Courts sometimes allow defendants to serve their sentences in residential treatment programs for alcohol abuse, drug abuse, alcoholism, and/or addiction.

A fine of $500 to $5,000 and 50 hours of community service is usually imposed. The actual length of imprisonment is determined by the number of DUI convictions and the blood alcohol level and ranges from 6 months to 5 years. The duration that the vehicle is impounded depends on the defendants particular situation.

Serving Hillsborough County Florida and the surrounding counties since 1997.

Hillsborough County Florida DUI Hot Spots

DUI hot spots in the Hillsborough County Florida area. The SP Times reports that in one area, " Town 'N Country, Hillsborough County Sheriff's DUI deputies make sure they monitor that portion of the county every single night." Visit here for help with a Hillsborough DUI case.

The Data also shows the top 3 spots for DUI arrests:
Brandon with 412; Town 'N Country with 226; and New Tampa with 195.

Hillsborough Boating Under the Influence Crackdown

Hillsborough DUI Lawyer reports a Crackdown enforcing BUI this summer by Florida law enforcement in Hillsborough County. Hillsborough County Sheriff's Office Marine Unit deputies along with state and federal agencies will be calling the crackdown Operation Dry Water and focus will be upon the detection and enforcement of BUI (boating under the influence) of drugs and/or alcohol. The conviction and penalties are as serious and severe as DUI and can include: arrest, fines, and loss of boating privileges.

Florida DUI Arrest Contest Winners

A recent Mothers Against Drunk Driving (MADD) Awards Banquet honoring Florida Highway Patrol Officers with exceptional amounts of DUI arrests recognized many Tampa Bay Area officers.

There were 13 contest winners at the Hillsborough County Sheriff's Office (HSCO) who had made more than 100 DUI arrests that year. There were 16 contest winners at the Tampa Police Department (TPD) who got over a hundred DUI arrests in the year. There were others with less and some officers  were recognized with over a 1000 arrests.

100 DUI Arrest Award Winners - Sheriff's Office
• Deputy Jackie Brock
• Deputy Beau Dobson
• Deputy James Glover
• Deputy Carolyn Jolly
• Deputy Carl McCalla
• Deputy Jimmy McDowell
• Deputy Matthew McMurphy
• Deputy Felix Moret
• Deputy Lawrence Morrell
• Deputy Shawn Morrey
• Deputy Kevin Stabins
• Deputy Candace Steinmeir
• Deputy Anthony Watson

1000+ DUI Arrest Awards
• Deputy Jackie Brock
• Deputy Lloyd Hyder
• Deputy Felix Moret
• Deputy Lawrence Morrell
• Deputy Paul Shute
• Deputy Gregory Williams

Sunday, July 10, 2016

Playing Video Games Cost DUI Cops Big Time - Motion to Dismiss Granted

dui, failure to preserve evidence, Motion to  Dismiss, Motion to Suppress, Video,
Motion to Dismiss Granted

Motion to Dismiss Granted


"the Deputy acted in bad faith by failing to follow the policy of the Sheriff's Office when the Deputy had the ability to video record the field sobriety tests and failed to do so" 

We have previously noted that failure to preserve evidence in a DUI case can be a defense. See http://www.dui2go.com/p/dui-attorney-tampa-home.html .  One Florida county we frequently have appeared in has become notorious for “losing” videos of suspects.

Sample Video Policy Policy Manuals


Here is part of a typical Hillsborough County / Tampa Bay area law enforcement DUI Video Procedure Manual . Here is the Video Procedure Manual used by the Florida Highway Patrol.

A jury may be instructed that the police failure to preserve evidence is misconduct. See http://www.centrallaw.com/destruction-of-evidence-jury-instruction-criminal-case-rare-ruling/  Typically, a Motion to Suppress or Dismiss similar to the Motion we filed below can help a Judge find police misconduct for which the State will be penalized.

Here is a typical Field Sobriety Exercise Video from a Tampa DUI Traffic Stop





“The trial court ordered all evidence of field sobriety test 
results be suppressed as a 
sanction for the failure to record the FSTs.”

Here is a Motion from a recent case where the cops played games with the video:

SAMPLE MOTION TO SUPPRESS OR DISMISS


1. The Defendant, XXXXXXXXXX,  by and through his undersigned attorney and moves this Court for an Order dismissing this case pursuant to State v. Powers, 555 So.2d 888 (2nd DCA 1990) and as grounds therefore would state:

2. Deputy Lester stopped XXXXXXXXXX. Deputy Tiburcio conducted the DUI investigation. In the course of completing the investigation, no video was taken of the scene investigation. 

3. The Hillsborough County Sheriff's Office is the 4th largest Sheriff's Office in the United States and was the 1st Sheriff's Office in the state to be accredited and the 1st in the nation to be re-accredited by the Commission on Law Enforcement Accreditation, Inc. (CALEA).

4. Most agencies including HCSO, FHP, and TPD now have this video policy to remain CALEA Commission on Accreditation for Law Enforcement Agencies certified. 

AGENCY STANDARD OPERATING PROCEDURE. 

a. The in-car video/audio system will automatically activate and begin recording when the vehicle’s emergency lights and/or siren are activated. At their discretion, officers may also manually activate the system to begin recording without activating the emergency equipment. All traffic stops, police pursuits, “code one” situations, and DUI investigations will be recorded.

b. Failure to activate the in-car video/audio system as outlined in this SOP, properly retain and store tapes, or the abuse or misuse of the in-car video/audio system may result in disciplinary action.

5. None of the deputies, presumably with camera-equipped cell phones made any effort to record this DUI investigation.

6. The Defendant’s due process rights have been violated. When evidence is incomplete rather than requiring the Defendant to vindicate herself through the trial process, the appropriate remedy is dismissal based upon the Defendant’s inability to demonstrate that her normal faculties were not impaired on the evening of his arrest by showing a recording containing the required sound to the jury. 

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO SUPPRESS OR DISMISS

 
Courts recognize that videotape evidence is unique objective evidence for jury to consider. Ordinarily, a DUI prosecution depends heavily on the opinion of the arresting officer. A videotape can serve to teach the officer’s testimony on issues of material to question of impairment. Moreover and refusal case like XXXXXXXXX’s, physical signs of impairment are of utmost importance.  See Florida v. Davis, 14 So. 2d 1130 (4th DCA 2009). 

In Davis, the recording was lost during the transfer of the recording from the hard drive to digital video disc. On appeal the Fourth District reversed the trial court’s dismissal of the DUI as a sanction for the loss of the tape. The Davis court agreed with the defendant that simply not informing the jury that the tape ever existed was an inadequate solution for the failure to preserve critical evidence. Id. at 1133.  The court remanded and suggested other possibilities including precluding the state from utilizing the roadside sobriety tests were possible sanctions. Id.  In addition the Fourth suggested the trial court could instruct the jury that they may infer that the lost evidence is exculpatory.  Id.

The Second District upheld a circuit court’s reversal of a dismissal sanction where the video made by a digital video camera during a traffic stop was lost in the attempt to transfer the data to DVD.   Bennett v. State, 23 So. 3d 782 (2nd DCA 2009).   The court reversed for the county court to consider whether the evidence was material exculpatory evidence or only possibly useful.  Case law is not clear on whether the State or defendant  has this burden of proof.  Id. at 792.
This case is a little different. Here, law enforcement made an executive decision to begin patrol with equipment that could not record a full and fair rendition of the investigation despite their own policies requiring them to do so. 

Law enforcement made a choice to limit the nature of evidence they obtained and violated XXXXXXXXXX’s due process right to complete evidence.  The burden on the state to have fully functional equipment is not an onerous one.  The HCSO and CALEA Certification contemplate that complete recording should and will be taken.  

Alternatively available video equipment was not utilized – the deputies’ cell phones.  The results are incomplete evidence that could contain exculpatory fruit.  Because the deputies chose to enter the field without complete video recording capability, the remedy of suppression of all investigatory information that would have been completely recorded is reasonable. 

The defense requests to Court to enter an Order that:

The state will be precluded from having the officers testify to what was seen or heard after activation of the mobile video/audio recording should have occurred and no later than the activation of the emergency warning devices in the police cruisers.

The state will be precluded from using or eliciting testimony about roadside sobriety tests.

The state will be precluded from eliciting testimony regarding refusal to submit to a breath test.

The jury will be instructed that they may infer that lost evidence is exculpatory.

The jury will be instructed that missing video contained information detrimental to the State Of Florida’s case.

The jury will be instructed that missing video would not contain any evidence incriminating the defendant.

WHEREFORE, Defendant, XXXXXXXXXX, respectfully requests this Honorable Court to suppress all evidence collected from the time the video should have run, including the alleged driving pattern.


RECENT DUI DISMISSED CASE EXCERPTS


What is exculpatory evidence in a DUI case?

“the Deputy testified that Appellee's performance on two parts of the FSTs would be considered exculpatory evidence. The Deputy testified on cross-examination that although Appellee exhibited signs of impairment based on his performance of four of the FSTs, Appellee performed well on two of the exercises, and therefore the trial court found a video-recording of the tests would be considered exculpatory evidence.”

Do cops have an obligation to videotape a DUI arrest?

“Law enforcement does not have a constitutional duty to perform any particular tests. Certain duties arise, however, once a policy of gathering evidence through certain tests is established . Once law enforcement has gathered and taken possession of evidence, a duty of preservation in some form attaches.” 

“the evidence was exculpatory because the Deputy testified that Appellee performed well on two of the FSTs, and that the opportunity to cross-examine the officer was not the equivalent of a video-recording of the FSTs.”

“ the trial court found the Deputy acted in bad faith by failing to follow the policy of the Sheriff's Office when the Deputy had the ability to video record the field sobriety tests and failed to do so without sufficient justification , and again dismissed the charges. “

“the Deputy's justification for not recording the investigation was insufficient, when it was the policy of the Sheriffs Office at the time to video-record field sobriety investigations.”

“The Deputy testified on cross-examination that although Appellee exhibited signs of impairment based on his performance of four of the FSTs, Appellee performed well on two of the exercises, and therefore the trial court found a video-recording of the tests would be considered exculpatory evidence.”

What can be done when a DUI Video is lost or destroyed?


“The trial court ordered all evidence of field sobriety test results be suppressed as a sanction for the failure to record the FSTs.” 

COMPLETE COURT OPINION IN FLORIDA DUI VIDEO PRESERVATION OF EVIDENCE CASE


IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY
APPELLATE DIVISION

STATE OF FLORIDA,
Appellant,
v.
DUSTIN FUNDERBURG,
Appellee.

On appeal from County Court, Honorable Robert P. Cole,

Office of the State Attorney, for Appellant,

Randall C. Grantham, Esq., for Appellee .

UCN: 512016CF00455AOOOES
Appeal No: CRC1600455CFAES
L.T. No: 11•1010-XGBT-ES
I

ORDER AND OPINION

The trial court did not err by suppressing evidence of field sobriety test results as a sanction for the arresting officer's failure to comply with the policy of the Pasco Sheriff's Office that DUI investigations be video-recorded . The order of the trial court is affirmed.

STATEMENT OF THE CASE AND FACTS

This case is before the Court for the third time on appeal. Appellant was arrested for DUI in violation of § 316.193, Fla. Stat. , on December 14, 2011 . At the first trial had in the matter, the trial court granted Appellee's motion to dismiss based on the failure to video-record the DUI investigation , which the court found to be a violation of due process as having deprived Appellee of exculpatory evidence, and that the Deputy's justification for not recording the investigation was insufficient, when it was the policy of the Sheriffs Office at the time to video-record field sobriety investigations. State appealed the June 4, 2012, order of the trial court. This Court found the trial court applied the incorrect legal standard when granting the motion to dismiss, and remanded the cause for further proceedings, directing the trial court that the applicable legal standard required a finding of bad faith to support dismissal of the charges. On remand, the trial court found the Deputy acted in bad faith by failing to follow the policy of the Sheriff's Office when the Deputy had the ability to video•record the field sobriety tests and failed to do so without sufficient justification , and again dismissed the charges. State appealed the dismissal and this Court reversed the trial court's order, finding the record insufficient to support a finding that the Deputy acted in bad faith . 

On remand a hearing was held on Appellee's motion to determine sanctions short of dismissal. The trial court ordered all evidence of field sobriety test results be suppressed as a sanction for the failure to record the FSTs. State appeals the order, alleging it was error to suppress the evidence and that Appellee was not entitled to any sanction.  

STANDARD OF REVIEW  

"Appellate review of a motion to suppress involves questions of both law and fact" Rosenquist v. State, 769 So. 2d 1051 , 1052 (Fla. 2d DCA 2000). This Court reviews the trial court's application of the law to the facts of the case pursuant to a de novo standard . Id.; Ornelas v. U.S. , 517 U.S. 690, 698 (1996) ; State v. Petion , 992 So. 2d 889, 894 (Fla. 2d DCA 2008). Findings of fact by the trial court are reviewed for "clear error," and the Court will give deference to inferences drawn from those facts by the trial court and law enforcement officers. Ornelas, 517 U.S. at 699. See Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002).  

LAW AND ANALYSIS  

Appellant contends that the unpreserved evidence was not materially exculpatory, and therefore Appellee was not entitled to any remedy and it was error to suppress the evidence in this case. The trial court previously held in its February 3, 2014, order, that the evidence was exculpatory because the Deputy testified that Appellee performed well on two of the FSTs, and that the opportunity to cross-examine the officer was not the equivalent of a video-recording of the FSTs. 


"When determining whether a defendant's due process rights have been violated by the State's destruction of or failure to preserve evidence, a court must first consider whether the missing evidence was 'materially exculpatory' or only 'potentially useful. ", State v. Bennett, 111 So. 3d 943, 945 (Fla . 2d DCA 2013). Failure to preserve evidence "that is merely 'potentially useful,' posing only some likelihood of exonerating a defendant," constitutes "a denial of due process only when law enforcement acts in bad faith." Id. (citing California v. Trombetta, 467 U.S. 479, 488 (1 984); Arizona v. Youngblood, 488 U.S. 51, 56-58 (1988)) . To be materially exculpatory, "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Trombetta, 467 U.S. at 486-87. 

The trial court relied on State v. Davis, in suppressing the evidence, in which the Court held that dismissal was too harsh a sanction where there was no finding of bad faith , but the lost evidence was "material exculpatory evidence," and therefore "the loss of such evidence is a violation of the defendant's due process rights and the good or bad faith of the State is irrelevant. " 14 So. 3d 1130, 1132 (Fla. 4th DCA 2009). In Davis, the Court remanded the cause to the trial court to consider sanctions short of dismissal to address the loss of evidence, noting that possible sanctions may include precluding State from presenting evidence of the roadside sobriety tests. Id. at 1133. 

In its previous order, this Court relied on State v. Powers, 555 So. 2d 888, 889 (Fla . 2d DCA 1990), in which the Court held that "the appellees' due process rights were not violated by the sheriff's department not video taping the appellees' performance during field sobriety testing ." State contends that based on this analysis, lesser sanctions are not appropriate absent a finding of bad faith , because this case does not involve lost or unpreserved evidence, and that Appellee was not entitled to any remedy based on the failure to video-record the FSTs. 

Appellee responds that the trial court's order is entitled to a presumption of correctness, and that the trial court found the Deputy's testimony was not credible. Appellee contends the decision to impose sanctions was within the trial court's 


discretion and that the trial court did not abuse its discretion in this case. See Carr v. Reese, 788 So. 2d 1067 (Fla. 2d DCA 2001); Turner v. Anderson, 376 So. 2d 899 (Fla. 2d DCA 1979). 

In Powers, the express policy of the sheriff's office was not to video record performance tests, whereas in the instant case the Deputy acted in contravention of the Sheriff's Office express policy of video-recording FSTs. See Powers, 555 So. 2d 888. In Powers the Court held: 

Law enforcement does not have a constitutional duty to perform any particular tests. Certain duties arise, however, once a policy of gathering evidence through certain tests is established . Once law enforcement has gathered and taken possession of evidence, a duty of preservation in some form attaches. 

Id. at 890 (citing Youngblood, 488 U.S. 51). Further, 

Whatever duty law enforcement has to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. 

Id. at 891 . See Trombetta, 467 U.S. 479. The trial court found that the Deputy testified that Appellee's performance on two parts of the FSTs would be considered exculpatory evidence. The Deputy testified on cross-examination that although Appellee exhibited signs of impairment based on his performance of four of the FSTs, Appellee performed well on two of the exercises, and therefore the trial court found a video-recording of the tests would be considered exculpatory evidence. This Court will not reverse the factual findings of the trial court absent a showing of clear error. Pagan, 830 So. 2d at 806. The trial court's finding on this issue is supported by the Deputy's testimony in this case. The Court finds it was not error for the trial court to suppress the evidence of the FST results in reliance on Davis, 14 So. 3d at 1132. The order of the trial court is affirmed . 


CONCLUSION 

It was not error for the trial court to suppress the evidence in this case based on the Deputy's conduct in failing to record the field sobriety tests. The order of the trial court is affirmed .  It is ORDERED AND ADJUDGED that the order of the trial court is AFFIRMED. DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida This ____  of May, 2016. 

Source: 


Thursday, June 30, 2016

Fourth of July Law Enforcement and DUI Patrols in Tampa Bay

Fourth of July Law Enforcement and DUI Patrols in Tampa Bay
Fourth of July Law Enforcement and
DUI Patrols in Tampa Bay
Whether you're on the road or at the beach—have a safe and happy holiday weekend! Expect DUI checkpoints or other deployments throughout the Tampa Bay area.

FINAL UPDATE: Over the holiday weekend, Friday through Monday, Tampa police made 34 DUI arrests.


UPDATE 1: Tampa Police say, "We will be conducting a DUI Checkpoint tonight at Sligh Av E and Branch Ave. N from 10 pm to 1 am. Be safe this weekend and don't drink and drive."

UPDATE 2 WTSP reports a Tampa bay Area wolfpack of cops nabbed several. Here are the numbers:


  • 13 DUI
  • 4 Possession of a Controlled Substance (Misdemeanor)
  • 7 Possession of a Controlled Substance (Felony)
  • 1 Possession Drug Paraphernalia
  • 4 Fleeing and Eluding (Motorcycle)
  • 5 Misdemeanor Driving While License Suspended and/or revoked with Knowledge
  • 2 DWLS/R (Felony)
  • 2 Felony Burglary/Battery
  • 1 Leaving Scene of a Crash with Injury (Felony)
  • 1 Obstruction of Justice
  • 12 Driving while License Suspended or Revoked with Knowledge
  • 24 Speeding
  • 61 Citations for other moving and non-moving violations
Source: http://www.wtsp.com/news/authorities-nab-13-dui-drivers-in-latest-wolfpack-operation-in-pinellas/262227882

UPDATE 3: Fox News reports "There are many options for responsible transportation to and from holiday celebrations in the Bay Area -  from a cab, to Uber, to the Tow to Go program, where a tow truck will actually pick you up and get you and your car home safely, free of charge. Tow to Go will be available until 6 a.m. Tuesday, July 5. For more information on how it works, visit http://autoclubsouth.aaa.com/safety/tow_to_go.aspx or call (855) 2-TOW-2-GO or (855) 286-9246."

Source:  http://www.fox13news.com/news/local-news/168842679-story

DUI Checkpoint at Sligh Avenue East and Branch Avenue, Tampa, Florida July 1 - 2. See Map Below.


Best times to drive safely this 4th of July weekend are are:
  

Law Enforcement Schedules


Thursday 06/30

7pm – 1am
Early holiday celebrations and visitors arriving for the weekend.
  
Friday 07/01

5pm – 3am
The weekend officially starts and Friday evening hours will be busy with the St. Pete First Friday block party and in downtown Tampa & SOHO area.
  
Saturday 07/02

3pm – 3am
DUI patrols will likely be wolfpacks and steady throughout the day and evening.
  
Sunday 07/03

3pm – 2am
Holiday events will make this Sunday busier than usual for Florida and Tampa Bay DUI patrol officers.
  
Monday 07/04

3pm – 11pm
There will be several parades throughout the city followed by fireworks later in the evening! Expect massive enforcement presence.

Tampa DUI Checkpoint Map




#DUI #Tampa #LoveFL #ThursdayThoughts  #DUICheckpoint

Monday, June 27, 2016

Places Tampa Bay DUI Cops will be Watching this Week

Channelside and the Amphitheatre


Here are a few places that DUI patrols may be monitoring this week. Amalie Arena is a few blocks from my old Channelside Office - cops are everywhere in Channelside District. Amalie is just blocks away from the county jail. Previously we have published a survey of other locations that DUI patrols frequent:

http://www.dui2go.com/2015/03/dui-attorney-tampa-bars-and-restaurants-map.html

Monday, 6/27

WWE RAW
Amalie Arena
401 Channelside Dr, Tampa, FL 33602
7:30pm

Thursday, 6/30

STEELY DAN AND STEVE WINWOOD
MidFlorida Credit Union Amphitheatre
4802 U.S. 301, Tampa, FL 33610
7:00pm

Friday, 7/1

NICKY JAM
Amalie Arena
401 Channelside Dr, Tampa, FL 33602
8:00pm

Saturday, 7/2

SLIPKNOT
MidFlorida Credit Union Amphitheatre
4802 U.S. 301, Tampa, FL 33610
6:30pm

Sunday, 7/3

SUBLIME WITH ROME
MidFlorida Credit Union Amphitheatre
4802 U.S. 301, Tampa, FL 33610
6:30pm


Thursday, June 23, 2016

Florida and Other States Can Punish Refusal to Submit to a Breath Test

The US Supreme Court today gave to OK for states including Florida to punish DUI defendants for refusing to take a breath test, even though there was no search warrant obtained.

Refusal to Submit to a Breath Test

Refusal to Submit to a Breath Test


The US Supreme Court today gave the OK for states including Florida to punish DUI defendants for refusing to take a breath test, even though there was no search warrant obtained. Court ruled they were searches incident to an arrest and no warrant was required. 

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).

Here are Case Excerpts from the Court’s DUI Opinion

History of Breath Testing


The most common and economical method of calculating BAC is by means of a machine that measures the amount of alcohol in a person’s breath. National Highway Traffic Safety Admin. (NHTSA), E. Haire, W. Leaf, D. Preusser, & M. Solomon, Use of Warrants to Reduce Breath Test Refusals: Experiences from North Carolina 1 (No. 811461, Apr. 2011). One such device, called the “Drunkometer,” was invented and first sold in the 1930’s. Note, 30 N. C. L. Rev. 302, 303, and n. 10 (1952). The test subject would inflate a small balloon, and then the test analyst would release this captured breath into the machine, which forced it through a chemical solution that reacted to the presence of alcohol by changing color. Id., at 303. The test analyst could observe the amount of breath required to produce the color change and calculate the subject’s breath alcohol concentration and by extension, BAC, from this figure. Id., at 303–304. A more practical machine, called the “Breathalyzer,” came into common use beginning in the 1950’s, relying on the same basic scientific principles. 3 Erwin §22.01, at 22–3; Jones 34.

Over time, improved breath test machines were developed. Today, such devices can detect the presence of alcohol more quickly and accurately than before, typically using infrared technology rather than a chemical reaction. 2 Erwin §18A.01; Jones 36. And in practice all breath testing machines used for evidentiary purposes must be approved by the National Highway Traffic Safety Administration. See 1 H. Cohen & J. Green, Apprehending and Prosecuting the Drunk Driver §7.04[7] (LexisNexis 2015). These machines are generally regarded as very reliable because the federal standards require that the devices produce accurate and reproducible test results at a variety of BAC levels, from the very low to the very high. 77 Fed. Reg. 35747 (2012); 2 Erwin §18.07; Jones 38; see also California v. Trombetta, 467 U. S. 479, 489 (1984).

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. 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. NHTSA, Refusal of Intoxication Testing, at 20.

Back at the police station, officers read Bernard Minnesota’s implied consent advisory, which like North Dakota’s informs motorists that 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. After he refused, prosecutors charged him with test refusal in the first degree because he had four prior impaired-driving convictions.

petitioner Bernard was informed that a breath test was required. Birchfield and Bernard each refused to undergo a test and was convicted of a crime for his refusal.

Despite these differences, success for all three petitioners depends on the proposition that the criminal law ordinarily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate. If, on the other hand, such warrantless searches comport with the Fourth Amendment, it follows that a State may criminalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant.

The Fourth Amendment provides: “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.”

Search Incident to Arrest


In the three cases now before us, the drivers were searched or told that they were required to submit to a search after being placed under arrest for drunk driving. We therefore consider how 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.

If a search warrant were required for every search incident to arrest that does not involve exigent circumstances, the courts would be swamped.

Fourth Amendment Permits Warrantless 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 warrantless 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.

Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation

Bernard, on the other hand, was criminally prosecuted for refusing a warrantless breath test. That test was a permissible search incident to Bernard’s arrest for drunk driving, an arrest whose legality Bernard has not contested. Accordingly, the Fourth Amendment did not require officers to obtain a warrant prior to demanding the test, and Bernard had no right to refuse it.




St. Pete Pride A busy weekend for DUI and Law Enforcement

St. Pete Pride A busy weekend for DUI
St. Pete Pride
A busy weekend for DUI

DUI Enforcement at St. Pete Pride


DUI Enforcement officers and other law enforcement will swarm St. Pete Pride as over 200,000 will gather this weekend to support and celebrate Florida’s LGBTQ community at the St. Pete Pride Parade. The parade and street festival will take place this Saturday in the Grand Central District of St. Pete from 5pm to 11pm. 

The parade will run on Central Ave between 22nd St and 32nd St. Demand will start picking up around 2pm on Saturday when drivers head to the parade. Demand will be highest from 9pm to midnight as the parade wraps up.

Tuesday, June 07, 2016

Tampa Bay DUI Cops Should be Buzzing

Tampa Bay DUI
Tampa Bay DUI Cops
The Tampa Bay DUI cops area should be buzzing this week with some great events coming to town. If you're driving to these events, please be careful — take a look at the events we've listed below and get on the road!


Journey and Doobie Brothers Concert
Friday, June 10 at 7pm
Midflorida Credit Union Amphitheatre

Tampa Bay Rays vs. Houston Astros Baseball
Friday, June 10 at 7:10pm
Tropicana Field

Tampa Bay Rays vs. Houston Astros Baseball
Saturday, June 11 at 4:10pm
Tropicana Field

Friday, June 03, 2016

Drive Legal Again Program | DLAP | Suspended Drivers License

Get help getting a drivers license in Tampa, Hillsborough County, Florida through the Drive Legal Again Program DLAP
The Hillsborough County State Attorneys in Tampa, Florida have a new program. It is called the Drive Legal Again Program. The program is known to lawyers, prosecutors, and judges as the "DLAP."  The Assistant State Attorneys in each of the criminal divisions can review and refer cases to the program and this may help people get back on the road. Your Attorney can reach out to the Prosecutor and see if you are eligible for the plan.

"a full case plan to assist the offender in obtaining a valid driver's license"

What Kind of Traffic cases can be Referred to the DLAP Program?


The DLAP is a diversion program for those drivers who have been arrested or cited for Driving while license suspended or revoked, also known as DWLSR. Other cases may include No Valid Driver's License. 

How Does a Case get Referred to the DLAP Program?


An Assistant State Attorney ASA  can offer the option in Court. If eligible, eligible for the program, there are conditions that if met, the criminal case may be dismissed or in fancy legal terms, "nolle prossed."

What Happens to the Criminal Traffic Charges? 


The State Attorney will (dismiss) the charge(s) in this case after time set forth in the DLAP agreement (see sample below) if the Defendant has completed all the terms and conditions of the agreement. 

Who is eligible for the Drive Legal Again Program?


For admission into the Program, the driver must have no prior criminal record, other than as stated in the initial application for the program and is not on probation for a prior crime,  charge or conviction. The Defendant also agrees to be completely law abiding during the term of the program.

What is Required to Complete the Program and have a Criminal Traffic Case Dismissed?


The Defendant agrees to complete the four hour Driving While license Suspended Educational Class along with any additional conditions stipulated on the court referral. The Defendant agrees to attend school or work regularly at lawful occupation and/or participate in other programs as directed, with the Defendant paying the cost of said programs. The Defendant agrees to inform his/her Traffic Diversion Program Supervisor immediately of any change relating to employment or education. 

There is a Program Fee of One Hundred and Fifty ($150.00) payable with-in 15 days from the intake date. There will be Costs of prosecution of Fifty dollars ($50.00) payable within 15 days. Community Service is also required to be completed within three (3) months. Cases that need extra supervision may be charged an additional ($50.00) fee. 

Completion of a class and payment of supervision fees is required. The complete details of the program are included in a DLAP contract. A copy of the agreement is below. Most classes and requirements can be completed on weekdays, weekends, and after hours. Usually a case takes three months. The goal is to assist the driver in obtaining a valid driver's license.

Drive Legal Again Program | DLAP | Sample Contract


Here is a Hillsborough County sample Drive Legal Again Program Contract to help get your license back:

IN THE COUNTY OF THE THIRTENTH JUDICIAL 
CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA 
COUNTY CRIMINAL DIVISION

DIVISION: TRAFFIC/COUNTY COURT 

STATE OF FLORIDA  
VS  ________________________      CASE NO: 

AGREEMENT

This AGREEMENT, entered into this day of , 2016, by and between ,the Defendant; Attorney for the Defendant, and MARK A OBER, STATE ATTORNEY, 13TH Judicial Circuit of Florida, By and through his undersigned Assistant. 

1 It is agreed that the Defendant meets the criteria and qualification for admission to the Court Options Traffic Diversion Program and Defendant's Attorney, having fully investigated the case and having fully advised the Defendant's best interest to enter into this agreement.

2 It is understood and agreed that the Defendant shall participate in the Court Options Traffic Diversion Program for a total period of three to six (3-6) months and shall report in person each month on an assigned date to the Traffic Diversion Program unless otherwise directed by the Traffic Diversion Supervisor. This program includes three to six (3-6) months of active supervision
3 The Defendant, by and' through his/her Attorney, stipulates and agrees that in consideration for entering into this Agreement, Defendant waives the right to a speedy trial as provided by law. 

4 The Defendant stipulates and agrees that he/she will keep the Traffic Diversion Program Supervisor advised of his/her current address throughout the entire Program. The Defendant further stipulates and agrees that the address placed on this contract and/or subsequent address changes presented in writing to the Traffic Diversion Program shall be utilized to provide notice to the Defendant to appear for subsequent court hearings if prosecution is reinstated as discussed in paragraph eight. The Defendant further stipulates that notice sent to the address shall be sufficient notice to the Defendant to appear and that failure to appear after said notice as provided may result in the issuance of a capias for the arrest of the Defendant. 

5 The Defendant, and his/her Attorney, warrant that the Defendant meets the eligibility criteria for admission into the Program and has no prior criminal record, other than as stated on the attached statement of prior Criminal/Traffic charges and is not on probation for a prior crime,  charge or conviction. Defendant agrees to be completely law abiding during the term of this Agreement.

6. The Defendant agrees to complete the four hour Driving While license Suspended Educational
 Class along with any additional conditions stipulated on the court referral. 

7. The parties stipulate and agree that the Agreement shall in no way operate as a contract for immunity from prosecution for the charge pending in this case, and, further, should Defendant fail to meet the terms and conditions of this Agreement, the Agreement shall be deemed void at the discretion of the State Attorney, without Notice of Hearing, and prosecution may then be reinstated. 

8. The Defendant agrees to attend school or work regularly at lawful occupation and/or participate in other programs as directed, with the Defendant paying the cost of said programs. 

9. The Defendant agrees to inform his/her Traffic Diversion Program Supervisor immediately of any change relating to employment or education. 

10. The Defendant agrees to do the following, in addition to the above: PROGRAM FEE -One Hundred and Fifty ($150.00) payable with-in 15 days from the intake date. COST OF PROSECUTION -fifty dollars ($50.00) payable within 15 days. COMPLETE ( ) HOURS OF COMMUNITY SERVICE WITH A NON PROFIT ORGANIZATION within three (3) months. Cases that need extra supervision will be charged an additional ($50.00) fee. 

11. I understand unsuccessful completion of the program includes having all of my fees paid in full. 

12. I agree to notify Court Options, County Clerk's Office and the State Attorney's Office of any changes in my address or contact information. 

13. I understand if I misrepresent my criminal history in any way, my case may be set before the court. 

14. I authorize Court Options to release or obtain information related to the above case and court involvement to (a) the courts, including, but not limited to the judge presiding over my case, the state attorney's office, my defense attorney, and (b) any other party which may need or be able to provide information so that Court Options may provide complete services to me. 

15. I understand Court Options may refer me to unaffiliated outside agencies for services I need to complete in order to satisfy requirements set forth for me by the Courts. 'agree that Court Options shall not be liable for any injury, damage or harm that occurs to me from the use of such services and hereby agree to indemnify, defend and hold Court Options harmless from any and all claims 0 assertions of every kind and nature, related to the use of such services or agencies. 

16. I understand that the completion of this program will not automatically result in obtaining a valid driver's license. 

17. The Defendant further agrees that all monies paid into the Traffic Diversion Program shall be forfeited if he/she fails to meet the terms and conditions of this Agreement. 

18. If the State discovers that the Defendant has violated any law or any part of this agreement during the period of this agreement then the agreement shall be considered null and void and the State of Florida may recommence prosecution. This includes offenses committed during th period set forth below, but not discovered until that period has ended. The decision whether or not such violations may have occurred will remain in the discretionary judgment of the State Attorney's Office. 

19. MARK A. OBER, STATE ATIORNEY, 13TH Judicial Circuit by and through his undersigned Assistant, hereby warrants and agrees that, should the Defendant meet the terms and conditions of this Agreement as determined by said State Attorney, The State Attorney's Office agrees to a Nolle Prosequi on the above mentioned case. 

20. The State Attorney will (dismiss) the charge(s) in this case after time set forth in thiS agreement if the Defendant has completed all the terms and conditions of this agreement. 

21. It is stipulated and agreed that the State Attorney's decision regarding full compliance in this regard shall be final and shall not be reviewable by any court. 

Defendant's Signature Date 
Defendant's address, City, State and Zip Code Date 
Court Options Representative Date 


Source: http://courtoptions.org/hillsborough.html

Tuesday, April 19, 2016

DUI Forms for Bureau of Administrative Reviews

DHSMV, DHSMV Bureau of Administrative Reviews, DHSMV Bureau of Administrative Reviews Tampa, Tampa DHSMV Bureau of Administrative Reviews, Forms, DHSMV 78065,

Forms, forms, and more forms. 


We have just posted all of the forms needed to reinstate your driver's license after a suspension for DUI or a few other types of suspensions. The first form is an application to obtain a hardship license HSMV 78306. Second, we have the application for  formal / informal review of a driver's license  suspension or disqualification HSMV 78065. Finally we have the form for Request of eligibility review HSMV 72034.