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Law gavel, alcohol and car keys on a wooden deskDriving Under the Influence (DUI) is a serious offense that can have far-reaching consequences for those involved. Essentially, a DUI charge implies that an individual has been caught operating a vehicle while impaired by alcohol or other substances. This impairment can significantly increase the risk of accidents, posing a threat to the safety of the driver, passengers, and others on the road. In Florida, like in many parts of the United States, the legal system takes DUI charges seriously, and the penalties can be severe, including fines, license suspension, and even incarceration.

The Path to Dismissal

Securing the dismissal of a first-time DUI charge involves a detailed understanding of the legal system and a strategic approach to presenting one’s case. Various factors can play a pivotal role in influencing the outcome towards dismissal. Here are the key elements that, when effectively utilized, may significantly impact the direction of the case:

  1. Procedural Errors: Identifying and highlighting mistakes made during the arrest process, such as improper conduct by law enforcement or failure to follow legal protocols.
  2. Credibility of Evidence: Questioning the reliability and integrity of the evidence presented against the defendant, including the accuracy of breathalyzer tests or the legitimacy of the traffic stop.
  3. Conduct of Law Enforcement: Examining the actions and decisions of law enforcement officers during the arrest, ensuring they align with legal standards and rights.
  4. Mitigating Circumstances: Presenting factors that may reduce the perceived severity of the offense, such as a clean criminal record, the defendant’s personal and professional background, and any immediate steps taken towards rehabilitation.
  5. Corrective Measures: Demonstrating the defendant’s proactive engagement in activities aimed at personal improvement and prevention of future offenses, like attending DUI education programs or community service.

Approaching these elements with a well-considered strategy is essential for those aiming to navigate the challenge of a first-time DUI charge with the goal of achieving dismissal. Each case is unique, and success depends on a thorough examination and presentation of the factors at play.

Legal Defenses and Procedural Errors

A skilled Port Charlotte FL DUI Lawyer may explore several defense strategies to challenge the charge. One common area of defense is the legality of the DUI checkpoint or the traffic stop. If the stop was conducted without proper cause, it might lead to a dismissal of the charges. Similarly, if there were any procedural errors during the arrest or if the evidence was mishandled, these issues could also form the basis for a strong defense.

Negotiation and Plea Bargains

In some cases, negotiation with prosecutors can result in a plea bargain. A plea bargain may not result in outright dismissal but can lead to reduced charges or penalties. It’s a common outcome in cases where the evidence is not overwhelmingly against the defendant but still warrants some form of penalty.

Diversion Programs

Florida sometimes offers diversion programs to first-time offenders, which, upon successful completion, can lead to the dismissal of the DUI charge. These programs often involve education on the dangers of DUI, community service, and a period of probation. Participation in such a program is at the discretion of the court, and eligibility may vary.

Building Your Case

Navigating the legal options and defenses in a DUI case requires a deep understanding of state laws and a proactive approach to defense strategy. A Florida DUI attorney is instrumental in analyzing the specifics of your case, identifying viable defenses, and guiding you through the legal process. They can handle negotiations, represent you in court, and work towards achieving the best possible outcome, whether it’s dismissal, reduced charges, or lighter penalties.

Take Action with Trusted Legal Support

Facing a DUI charge marks a pivotal moment, yet it need not dictate your future trajectory. Prompt action is crucial when you or someone close faces a first-time DUI charge. By engaging the services of John P Rutkowski, Attorney at Law, a seasoned Port Charlotte FL DUI Lawyer, you position yourself advantageously in seeking a favorable case outcome.

Our law firm grasps the pressures and uncertainties accompanying a DUI accusation. Driven by a commitment to deliver comprehensive legal representation customized to each case’s specific details, we strive to devise effective defense strategies. These efforts are aimed at safeguarding your rights while endeavoring to lessen the charge’s impact on your life. Let this challenge not upend your existence.

By contacting us today for a consultation, you embark on a journey towards legal resolution, with our firm offering unwavering support, guidance, and proficient legal tactics. With John P Rutkowski, Attorney at Law by your side, we are dedicated to assisting you in overcoming this hurdle, empowering you to move ahead with assurance.

inside the car view of a young drink and drive crashed driver due to being subject to test for alcohol content with use of breathalyzerWhen planning a night out, it’s crucial to remember that even a couple of drinks could easily push you over Florida’s legal alcohol limit. With the state’s severe DUI laws, those found over the limit face harsh consequences. Among these is the mandate for an ignition interlock device (IID) for DUI convictions, which prevents a vehicle from starting if the driver has consumed alcohol, serving as a deterrent against future DUI incidents.

Understanding these implications can underscore the importance of responsible drinking. Moreover, considering the broader impact on one’s personal and professional life, the stakes of a DUI conviction in Florida highlight the need for caution and responsibility every time one decides to drink and drive.

The Nuts and Bolts of IID

In Florida, an Ignition Interlock Device (IID) acts as a personal vehicle breathalyzer, demanding a breath sample from the driver before allowing the engine to start. If the device detects alcohol levels above a predetermined threshold, it prevents the vehicle from starting, serving as a proactive measure against drunk driving. This requirement for drivers convicted of DUI is a key strategy in the state’s efforts to combat repeat offenses.

By mandating IIDs, Florida aims to significantly reduce the risk of individuals driving under the influence again, enhancing road safety and protecting the community from the dangers associated with impaired driving. Below is a list of requirements for the Ignition Interlock Device (IID) in Florida, designed to guide individuals who have been convicted of DUI offenses:

Eligibility Criteria:

  • The requirement is applicable to individuals convicted of DUI offenses post-July 1, 2002.
  • Applies to those seeking reinstatement of their full driving privileges or a restricted license for employment purposes.

Mandatory Installation Periods:

  • First DUI Conviction: If the Blood Alcohol Content (BAC) was .15 or higher, or a minor was present in the vehicle, an IID is required for a minimum of 6 months.
  • Second DUI Conviction: Installation for at least 1 year is mandatory, extending to 2 years for a BAC of .15 or higher or if a minor was in the vehicle.
  • Third DUI Conviction: A 2-year IID installation period is required.
  • Four or More DUI Convictions: A mandatory 5-year installation period is imposed.

Approved Providers:

  • Individuals must select an IID service provider that is approved by the Florida Department of Highway Safety and Motor Vehicles (FLHSMV) and complies with the National Highway Traffic Safety Administration Standards.
  • The FLHSMV website provides a list of approved IID providers.

Exemptions:

  • Individuals may be exempt from installing an IID in employer-owned vehicles used solely for employment purposes, with the condition that they are not the business owner.
  • Employer’s knowledge and written permission for the individual to operate the vehicle are required.

Compliance Steps:

After IID installation, individuals must visit a driver’s license service center or tax collector’s office to have a “P” restriction added to their license.

Management of any associated fees is also required at this stage.

Consultation for Up-to-Date Information:

  • For the most accurate and comprehensive details regarding IID requirements, direct consultation with the FLHSMV or DUI attorney in Florida is advised.

This list aims to provide a clear overview of the IID requirements in Florida, ensuring individuals affected by DUI convictions are aware of the necessary steps to comply with state regulations.

Legal Guidance in the Face of DUI Convictions

Facing a DUI charge in Florida can be overwhelming due to strict laws and potential life impacts. A skilled Florida DUI attorney is crucial for navigating the complexities of your case, offering advice on potential defenses or factors that could influence the necessity of an Ignition Interlock Device (IID). Beyond court representation, a Florida DUI attorney helps understand penalties and advocates for lesser consequences, ensuring your rights are upheld throughout the process.

A Firm Hand in Troubled Waters

The implementation of Ignition Interlock Devices (IIDs) serves as a significant step towards enhancing road safety in Florida, aiming to discourage repeat DUI offenses. The framework established by the state emphasizes the serious stance against impaired driving. However, unraveling the complexities of these legal requirements often demands knowledgeable guidance. This is where John P. Rutkowski, Attorney at Law, becomes an invaluable ally.

With a deep understanding of Florida’s DUI laws and a commitment to defending your rights, John P. Rutkowski stands ready to provide the support and advocacy needed to face DUI charges with assurance. A conviction doesn’t have to define your future. With proactive and informed legal counsel, there’s a path towards regaining control and moving forward. Don’t let the weight of the legal system discourage you; contact us today for a consultation that could redefine your journey towards recovery and responsibility.

OLYMPIA – In a bid to enhance road safety, the Washington State House of Representatives’ Community Safety, Justice, & Reentry Committee has put forward House Bill 2196, a proposal that could significantly change driving under the influence (DUI) laws. Sponsored by Representatives Donaghy, Berry, Ormsby, and Davis, the bill seeks to lower the legal blood alcohol concentration (BAC) limit for operating a motor vehicle from 0.08 percent to 0.05 percent.

The scope of HB 2196 extends beyond just driving; it also proposes to adjust the BAC limit for individuals in physical control of a motor vehicle, addressing situations where a person may not be actively driving but still has the potential to operate the vehicle.

The bill is sensitive to the concerns of the hospitality sector, mandating that a portion of the public information campaign be developed in collaboration with local hospitality stakeholders. This initiative is geared towards educating drivers about safer alternatives when engaging with hospitality businesses.

In terms of civil liability, HB 2196 maintains the status quo. It specifies that the proposed changes in BAC limits do not alter existing civil liability laws applicable to commercial vendors who serve alcohol.

The proposed law, set to take effect on July 1, 2025, if passed, has garnered mixed reactions. Safety advocates are in favor of the stricter BAC limit, viewing it as a necessary step to reduce alcohol-related accidents and enhance road safety. Conversely, some members of the hospitality industry are apprehensive about the potential impact on their businesses.

As HB 2196 progresses through the legislative process, it remains a subject of keen interest, reflecting the ongoing debate between enhancing road safety and considering the economic implications for the hospitality industry.

Case reported in the Flordia Law Weekly Suppement

Online Reference: FLWSUPP 3108PLAZ

Criminal law — Driving under influence — Search and seizure — Vehicle stop — BOLO report — Continued detention — Arrest — State failed to prove that deputy had rasonable suspicion for detention or probable cause for arrest of driver that was stopped following BOLO report of possibly impaired driver — Deputy’s testimony regarding indicia of impairment exhibited by defendant was contradicted by video from his body camera, testimony of fellow deputy and jail nurse, and inconsistences in deputy’s own testimony — Moreover, where BOLO did not include any explanation of the basis for belief that driver was impaired, deputy’s observations that defendant had bloodshot eyes and odor of alcohol were insufficient to support reasonable articulable suspicion justifying detention — Motion to suppress is granted
STATE OF FLORIDA, Plaintiff, v. ASHLEY ROSARIN PLAZA, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 2021-CT-1677-A. August 17, 2023. John Woodard, Judge. Counsel: Helen Haynie, Office of the State Attorney, Sanford, for Plaintiff. Matthews R. Bark and Ethan W. Carlos, Matthews R. Bark, P.A., Altamonte Springs, for Defendant.

ORDER GRANTING DEFENDANT’S

MOTION TO SUPPRESS EVIDENCE

THIS COURT, having reviewed the testimony, evidence and argument of the parties hereby:

GRANTS Defendant’s Motion to Suppress Evidence and Motion to Suppress Statements, Confessions and Admissions. The Court finds as follows:

On May 30, 2021, Deputy Jerome Grunat arrested the Defendant, Ms. Ashley Plaza, for the offense of Driving Under the Influence. On June 9, 2022, the undersigned filed a Motion to Suppress Evidence Pursuant to Florida Statute 901.15 and 901.151(6) and Motion to Suppress Confessions, Statements, and Admissions, and a Motion to Suppress or Limin to Exclude Defendant’s Alleged Refusal to Take a Breath Test. A hearing was held on said motions on September 9, 2022, and March 2, 2023.

At the hearing Deputy Patrick Rehder, Deputy Jerome Grunat, Breath Technician Ray Garcia, Analyst Sean Ryan, and Nurse Christine Davies all tesitfied. Deputy Rehder tesitfied that he was off duty and in his personal car when he observed Ms. Plaza driving. He allegedly observed her to be speeding, swerving in her lane, and roll through a red light. Deputy Rheder did not describe for how long he observed Ms. Plaza speeding or swerving in her lane. Deputy Rehder followed Ms. Plaza to a gas station and testified that he observed her walk in and out of the store with no difficulties. Deputy Rehder relayed his observations to dispatch, but testified that he was not sure if he relayed them to Deputy Grunat prior to stopping Ms. Plaza’s vehicle.

Deputy Grunat testified that he was notified by dispatch about a driver who may be intoxicated. How dispatch got this information was not testified to by Deputy Grunat. A helicopter located the vehicle and guided Deputy Grunat to it as his lights and sirens were on. Deputy Grunat pulled behind Ms. Plaza while another officer blocked her from the front of her vehicle. Upon approaching Ms. Plaza, Deputy Grunat testified that he observed the odor of alcohol coming from her breath and that she had bloodshot and glassy eyes, but that she denied drinking any alcohol. Deputy Grunat then ordered Ms. Plaza out of her vehicle and requested her to perform field sobriety exercises (hereinafter “FSEs”).

After performaning well on the FSEs as depicted on the body camera video, Deputy Grunat arrested Ms. Plaza for the offense of DUI. Before being transported to the Seminole County Jail, Ms. Plaza requested to speak with an attorney but was denied this request.

While at the jail, Ms. Plaza allegedly refused to take a breath test. Prior to and after “refusing” to take a breath test, Ms. Plaza was not provided access to a phone, but was sent to medical to see Nurse Christine Davies.

Nurse Davies testified that she did not smell alcohol on Ms. Plaza and specifically stated that Ms. Plaza did not appear impaired. Nurse Davies also testified that Ms. Plaza had no problems speaking, no problems walking, and appeared completely coherent.

Having recited the testimony the Court now holds that the State did not meet its burden of proving a lawful detention of the defendant to conduct a DUI investigation. The Court commends Deputy Grunat on his candor before the Court as it allows the Court to properly complete its truth finding mission. With that said, the Court notes that Deputy Grunat had not been a sworn law enforcement officer long at the time of the arrest of the defendant. Deputy Grunat, himself, acknowledged that he had not received the proper training he has now received post this arrest.

While the Court believes Deputy Grunat has learned a lot and become more familiar with the courts, after this particular arrest, the Court is required to analyze the case from the perspective of what occurred on the particular day of the arrest, what training and experience the officer had, and to determine the credibility of the observations and opinions testified thereto.1 Prior to Ms. Plaza’s arrest, Deputy Grunat had only been involved in five DUI investigations and the only formal training he had was from the police academy and one hour from the sheriff’s office. Notably, Deputy Grunat testified that he has gone through more training and learned a lot more since this arrest, including the fact that he should have given Ms. Plaza another chance to complete the walk and turn exercise. While it is not necessarily wrong that Deputy Grunat did not have much training, it is important for this Court to consider because his decision that Ms. Plaza’s faculties were impaired must have been based on proper training and experience. See Belsky v. State, 831 So.2d 803, 804 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D2630b]; State v. Lewis, 27 Fla. L. Weekly Supp. 559a (Fla. Seminole Cty. Ct. 2019) (18th Judicial Circuit).

Many of Deputy Grunat’s observations are in contradiction with the video footage (body camera and in car cameras) admitted into evidence, other witness testimony, and even his own testimony. The assertion that Ms. Plaza’s eyes were bloodshot and glassy is rebutted by the video footage. Multiple points in Deputy Grunat’s body camera video capture Ms. Plaza’s eyes and she does not have bloodshot and/or glassy eyes. (See e.g., State’s Exhibit 1 — Deputy Grunat’s body camera from 05:05-05:20 and 09:45-10:10).

Deputy Grunat also testified that Ms. Plaza had slurred speech. The video footage and testimony presented contradict this assertion. Throughout the entirety of the videos admitted into evidence Ms. Plaza is speaking clearly and is not slurring her words, mumbling, or otherwise having trouble speaking. (See e.g., Defense’s Exhibit 1 — Deputy Grunat’s dash camera from 15:45-end, and Deputy Grunat’s backseat camera from 15:30-end; State’s Exhibit 1 — Deputy Grunat’s body camera from 04:45-15:00). Ms. Davies, the jail nurse, also testified that Ms. Plaza had no problems speaking, no problems walking, and appeared completely coherent.

There are also inconsistencies within Deputy Grunat’s own testimony regarding his observations of Ms. Plaza’s performance of the FSEs. At the first day of hearing, Deputy Grunat testified that during the pen and eye exercise Ms. Plaza’s eyes did not follow smoothly and that she moved her head. At the continued hearing, Deputy Grunat changed his testimony and testified that Ms. Plaza did not move her head during the pen and eye exercise. For the one leg stand, Deputy Grunat tesitifed at the first day of hearing that Ms. Plaza used her arms for balance and was swaying during the exercise. However, at the continued hearing Deputy Grunat changed his testimony and stated that Ms. Plaza was not swaying during the one leg stand. The video confirms that Ms. Plaza was indeed not swaying and that she counted out loud correctly. (See State’s Exhibit 1 — Deputy Grunat’s body camera from 12:30-12:41).

Further contradicting Deputy Grunat’s observation that Ms. Plaza was swaying includes Deputy Rheder’s testimony that he did not witness Ms. Plaza swaying or stumbling as she got out of her car and walked into the gas station. In fact, Deputy Grunat’s body camera shows that Ms. Plaza got out of her vehicle without swaying, stumbing, or using anything for support. (See Defense’s Exhibit 1 — Deputy Grunat’s body camera from 07:55-08:08). While these inconsistencies may go to a probable cause determination, as opposed to reasaonable suspicion analysis, the inconsistencies taken with the other evidence in the hearing, effect this Court’s view of Deputy Grunat’s observations and opinions.

Additionally, testimony was presented which contradicted Deputy Grunat’s observation that Ms. Plaza smelled of alcohol. After being transported to the jail Ms. Plaza was evaluated by the jail nurse, Ms. Christine Davies. Ms. Davies, who has been a licensed nurse since 1977, tesitified that she did not smell alcohol on Ms. Plaza. She further testified that during her evaluation of Ms. Plaza she determined that Ms. Plaza was not under the influence of alcohol, muchless displaying any impairment.

Ultimately, there is evidence and testimony regarding observations from both pre-arrest and post-arrest which contradict what Deputy Grunat allegedly observed. In light of the inconsistent and contradicted testimony from Deputy Grunat, in comparison with the other evidence admitted, this Court finds that the State has not met its burden to substantiate the lawfulness of the detention and search conducted to administer the FSEs. In other words, there is not competent substantial evidence to support the warrantless seizure. Carter v. State, 120 So.3d 207 (Fla. 5th DCA 2013) [38 Fla. L. Weekly D1802a] (“[R]easonable suspicion depends on both the content of information that law enforcement possesses and its degree of reliability. Both quantity and quality of information are considered in the ‘totality of the circumstances — the whole picture,’ that must be taken into account when evaluating whether there is reasonable suspicion. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).”

In light of Deputy Grunat’s lack of experience, training and knowledge, the conflicts in the evidence, including but not limited to the videos admitted into evidence, the contemporaneus state witness, Deputy Rheder, and the more seasoned, trained and experienced nurse Davies contradicting observations and opinions, this Court holds that the State has not met its burden of proving a legal search and seizure; i.e, the seizure was not supported by reasonable articulable suspicion and thus, grants the Defendant’s Motion to Suppress Evidence and Motion to Suppress Statements, Confessions, and Admissions.

The Court further finds Deputy Grunat testified that after approaching Ms. Plaza he observed her to have bloodshot and glassy eyes and the odor of alcohol was coming from her breath. It was at this point that Deputy Grunat ordered Ms. Plaza out of her vehicle and requested her to perform FSEs. Thus, the only observations articulated by Deputy Grunat prior to requesting FSEs were the dispatch that the vehicle may be driven by an impaired person (without further explantion articulated), her eyes, and the odor of alcohol.

The BOLO for a possibly impaired driver from dispatch to Deputy Grunat did not articulate the basis for this belief. Thus, this observation should not be included in the analysis of reasonable articulable suspicion. Deputy Grunat would have been justified in relying on Deputy Rheder’s or any other law enforcement observations, if those observations had been communicated to him. Carter, 120 So.3d at 209; citing e.g., State v. Peterson , 739 So.2d 561, 564-65 (Fla.1999) [24 Fla. L. Weekly S288a]; see also State v. Kelly, 27 Fla. L. Weekly Supp. 210a, Seminole County County Court Order, (2019, J. Woodard); citing Montes-Valeton v. State, 216 So.3d 475, 478 (Fla. 2017) [42 Fla. L. Weekly S210a]. (“ ‘[G]eneral communications’ with [an officer] . . . regarding the same investigation,’ does not mean that there has been compliance with the fellow officer rule. 216 So.3d at 479. ‘The officer conducting the search or arrest must be ‘act[ing] . . . based upon what he or she is told by a fellow officer.’ Id. Citing State v. Bowers, 87 So.3d at 708.”).

Because the alleged observations of the actual driving pattern were not provided to Deputy Grunat, and at best a general communication was, all that is left are the bloodshot eyes, and smell of alcohol. These observations alone are insufficient to support a finding that the State has overcome its burden to prove the legality of the search and seizure, as it does not meet the requisite level of reasonable articulable suspicion as set forth by the 18th Judicial Circuit Court sitting in its appellate capacity in Hall v. State, in Brevard County Circuit Court Appellate Division, No. 05-2005-AP-035128 (18th Judicial Circuit 2005). (“It is not, by itself, illegal to conume alcohol and then drive, if the driver is not impaired or does not have the requisite blodd alcohol level. Operating a vehicle with the odor of alcohol on the breath is not illegal, nor is driving with some ‘glassy eyes.’ ”). And thus, the Court also grants the Defendant’s Motion to Suppress Evidence and Motion to Suppress Statements, Confessions, and Admissions under this analysis.

The Court, although unnecessary based on the above, also finds that Deputy Grunat did not have probable cause to arrest the defendant for DUI. “[P]robable cause for a DUI arrest must be based upon more than a belief that a driver has consumed alcohol; it must arise from facts and circumstances that show a probablity that a driver is impaired by alcohol or has an unlawful amount of alcohol in his system.” State v. Kliphouse, 771 So.2d 16, 21 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D2309f].

Deputy Grunat testified that he based his probable cause to arrest Ms. Plaza on the odor of alcohol, her bloodshot and glassy eyes, slurred speech, and her performance of the FSEs. As previously explained, however, many of Deputy Grunat’s observations were contradicted by testimony and video footage admitted into evidence. For example, there are multiple points in Deputy Grunat’s body camera video which capture Ms. Plaza’s eyes and she clearly does not have bloodshot and glassy eyes. (See e.g., State’s Exhibit 1 — Deputy Grunat’s body camera from 05:05-05:20 and 09:45-10:10). Additionally, it is important to note that the jail nurse testified she did not smell alcohol on Ms. Plaza and specifically said she did not believe Ms. Plaza was impaired. The nurse further testified that Ms. Plaza had no problems speaking, no problems walking, and appeared completely coherent. The videos submitted into evidence also corroborate that Ms. Plaza was speaking clearly and was not slurring her words, mumbling, or otherwise having trouble speaking. (See e.g., Defense’s Exhibit 1 — Deputy Grunat’s dash camera from 15:45-end and Deputy Grunat’s backseat camera from 15:30-end; State’s Exhibit 1 — Deputy Grunat’s body camera from 04:45-15:00). Deputy Grunat also testified and his bodycamera video shows that Ms. Plaza got out of her vehicle without stumbling or using anything for support prior to performing FSEs. (See Defense’s Exhibit 1 — Deputy Grunat’s body camera from 07:55-08:08).

As for the FSEs, Deputy Grunat administered the pen and eye exercise, the walk and turn exercise, and the one leg stand exercise. At the first day of hearing, Deputy Grunat testified that during the pen and eye exercise Ms. Plaza’s eyes did not follow smoothly and that she moved her head. At the continued hearing, Deputy Grunat changed his testimony and testified that Ms. Plaza did not move her head during the pen and eye exercise. He also testified that she kept her feet together and kept her arms by her side as instructed. In light of Deputy Grunat’s inconsistent testimony, the body camera video is the most reliable source as to how Ms. Plaza appeared and performed on this exercise. See Maurer v. State, 668 So.2d 1077, 1079 (Fla. 5th DCA 1996) [21 Fla. L. Weekly D559b] (holding that a Judge acting as a fact finder is not required to believe testimony of police officers in suppression hearings, even when that is the only evidence presented.); see also Lewis, 979 So.2d at 1200 (“[T]he court must weigh the testimony of all the witnesses and determine the issue based upon the totality of the circumstances. The court is not required to accept at face value the testimony of any witness.”). The video confirms that Ms. Plaza was in fact not swaying or moving her head at all during the pen and eye exercise. (See State’s Exhibit 1 — Deputy Grunat’s bodycamera from 09:40-10:10).

Deputy Grunat testified that Ms. Plaza did not complete the walk and turn exercise properly because she started performing the exercise before he was finished with the instructions. Deputy Grunat did tesitify that Ms. Plaza stood in the starting position without any problems, but he could not recall if she was swaying, using her arms for balance or if she walked heel to toe. Even though Ms. Plaza started the walk and turn exercise before instructed, Deputy Grunat stopped her from completing it or otherwise giving her another chance to perform it. The portion that she was allowed to complete was captured on Deputy Grunat’s body camera, which shows that Ms. Plaza performed it without stumbling or using her arms for balance. (See State’s Exhibit 1 — Deputy Grunat’s body camera from 11:19-11:27). Deputy Grunat admitted that since this investigation he has received additional proper training on DUI investigations and that he should have allowed Ms. Plaza another chance to do the walk and turn exercise upon his directive to begin the exercise.

The last exercise was the one leg stand. Deputy Grunat tesitifed at the first day of hearing that Ms. Plaza used her arms for balance and was swaying during the exercise. However, at the continued hearing Deputy Grunat changed his testimony and stated that Ms. Plaza was not swaying during the one leg stand. Once again, the body camera video is the most reliable source of her performance on the exercise. The video confirms that Ms. Plaza was indeed not swaying and that she counted out loud correctly. (See State’s Exhibit 1 — Deputy Grunat’s body camera from 12:30-12:41).

These inconsistencies once again raise concerns of the reliability of Deputy Grunat’s reported observations and opinions. The Court relies on the video footage admitted into evidence over Deputy Grunat’s testimony. See Maurer, 668 So.2d at 1079. And in doing so, grants the Defendant’s Motion to Suppress Evidence and Motion to Suppress Statements, Confessions, and Admissions on this basis.

__________________

1See Lewis v. State, 979 So.2d 1197, 1200 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1128a] quoting Miles v. State, 953 So.2d 778, 779 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D1081a]. “A warrantless search constitutes a prima facie showing which shifts to the state the burden of showing the searches legality.” Id. citing Andress v. State, 351 So.2d 350 (Fla. 4th DCA 1977). Even if the only evidence presented at a suppression hearing is the testimony of police officers, the court may disbelieve the evidence presented from the state even if it is uncontradicted. Id. citing Maurer v. State, 668 So.2d 1077, 1079 (Fla. 5th DCA 1996) [21 Fla. L. Weekly D559b].

Online Reference: FLWSUPP 3108BARC

Criminal law — Driving under influence — Evidence — Breath test — Substantial compliance with administrative rules — Twenty-minute observation period — Breath test results are inadmissible where officer stepped outside of police vehicle holding defendant for one and a half minutes during twenty-minute observation period, and officer was not in position to maintain close and continuous observation of defendant from outside vehicle

STATE OF FLORIDA, v. ROBERT JAMES BARCUS, Defendant. County Court, 6th Judicial Circuit in and for Pinellas County. Case No. A779YKE. UCN Case No. 522023CT000415000APC. October 12, 2023. Diane Croff, Judge. Counsel: J. Kevin Hayslett, for Defendant.

ORDER GRANTING DEFENDANT’S

MOTION TO SUPPRESS

THIS CAUSE comes before the Court on the Defendant’s Motion to Suppress. On October 11, 2023, the Court conducted a hearing on the motion. The Court, having considered the testimony of witnesses, argument of counsel, and relevant law, makes the following findings of fact and conclusion of law:

1. On January 4, 2023, the Defendant was placed under arrest for DUI and transported to the Central Breath Testing facility where he provided breath samples of .183/.186.

2. The twenty-minute observation period required by Florida Administrative Code Rule 11D-8.007(3) (2022) began at 2:20 a.m. and the breath test was administered at 2:49 a.m.

3. During this observation period, at approximately 2:31 a.m., the arresting officer stepped out of his cruiser for approximately a minute and a half, during which time the Defendant was left alone in the vehicle with all the doors shut and windows rolled up.

4. Once the officer stepped out of his vehicle, he was no longer in a position to maintain close and continuous observation of the Defendant and it would have been impossible for him to have detected any belching or regurgitation during this time.

5. Because the Defendant was not under proper observation for a portion of the required twenty minutes, the State is unable to prove substantial compliance with Rule 11D-8007(3) and the breath test results are therefore inadmissible.

WHEREFORE, it is ordered and adjudged that the Defendant’s motion to suppress is hereby GRANTED and the State is prohibited from introducing the results of the breath test.

CREDIT – FL LAW WEEKLY SUPPLAMENT 3108MERL

Criminal law — Driving under influence — Evidence — Positive test for cannabis metabolite — Reference to cannabis metabolite is excluded — State may move for reconsideration if it can establish, through expert testimony, that metabolite could have affected defendant at relevant time — Cannabis found in vehicle is excluded absent evidence that defendant could have recently used it or been under its effect

STATE OF FLORIDA, Plaintiff, v. JORDAN EUGENE MERLET, Defendant. Circuit Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2023 CT 004086 NC. September 14, 2023. Erika Nikla Quartermaine, Judge. Counsel: Trinidad Peraza, Assistant State Attorney, for Plaintiff. Claudia Rojas Sousa, for Defendant.

ORDER ON MOTIONS IN LIMINE

This matter came before the Court on the Motion in Limine to exclude reference to the Defendant’s positive test for a cannabis metabolite and the Defendant’s Motion in Limine to exclude reference to cannabis found in the vehicle. The Court has considered these motions and argument from counsel and has been otherwise advised in the premises.

It is hereby ORDERED and ADJUDGED that:

1. The Motion in Limine to exclude reference to the metabolite is GRANTED pursuant to section 90.402 of the Florida Statutes. This ruling is without prejudice for the State to move the Court for reconsideration if the State can establish, through expert testimony, that the metabolite could have affected the Defendant at the relevant time. Estrich v. State, 995 So. 2d 316 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D2726b].

2. The Motion in Limine to exclude reference to the cannabis located in the vehicle is GRANTED. Absent evidence that the Defendant could have recently used cannabis or been under its effect (which appears to be disproved by the presence of a metabolite only), the State cannot meet the four prong test as set forth in Varney v. State, 18 Fla. L. Weekly Supp. 780a (Fla. 6th Cir. 2010).

U.S. auto safety regulators say they have taken the first step toward requiring devices in vehicles that prevent drunk or impaired driving.

The National Highway Traffic Safety Administration announced on Tuesday that it is starting the process to put a new federal safety standard in place requiring the technology in all new passenger vehicles. Read More Here.

Yahoo.com by José Rodríguez Jr.

The U.S. is recording alarmingly high cases of false DUI arrests Woman Having Stoke Arrested for DUI; for the last few years, police departments nationwide have conducted more “emphasis patrols” in order to curb drunk driving. But these DUI checkpoints are often federally-funded, and the overtime hours they provide are paid for by state and federal agencies, rather than the police departments carrying out the patrols. Sober Hawaii Arrested to Justify Overtime.

The 12th Judicial circuit in Florida is made up of Manatee, Sarasota and DeSoto Counties. If a Client is arrest in any one of these county’s. they may be eligiable to enter a pretrial program known as the Driver Enhanced Treatment Education Rehabilitation. (DETER). The program is difficult to complete, but not impossible and if I am able to get my Client into the Program, and the Client successfully completes all conditions, the DUI charge is reduced to a RECKLESS DRIVING and adjudication is withheld, meaning the Client is not convicted in Florida. Information on the DETER Program can be found on the 12th Circuit’s website: here.

See the DETER Contract below

DETER-APPLICATION1.pdf

Criminal law — Evidence — Other crimes — Similar fact — Trial court did not abuse its discretion when it admitted evidence of a North Carolina case in which defendant admitted to shooting at a man where state presented testimony from firearms expert who determined the bullets from North Carolina crime and shooting underlying charges in instant case were fired from the same gun — Evidence was relevant to prove identity, which was a contested issue at trial, and was not unfairly prejudicial

LARA SNYDER, Appellant, v. STATE OF FLORIDA, Appellee. 1st District. Case No. 1D22-0275. September 13, 2023. On appeal from the Circuit Court for Columbia County. Leandra G. Johnson, Judge. Counsel: Jessica J. Yeary, Public Defender, and Ross Scott Haine, II, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Darcy O. Townsend, Assistant Attorney General, Tallahassee, for Appellee.

(PER CURIAM.) Snyder claims the trial court abused its discretion when it admitted evidence relating to a North Carolina crime under the similar fact evidence rule, section 90.404(2)(a). In the underlying case, Snyder was accused of shooting and killing a man. In the North Carolina crime, Snyder admitted to shooting at a man two days earlier. The State put forward an expert in firearms who determined the bullets from both crimes were fired from the same gun.

Section 90.404(2)(a) allows similar fact evidence to be admitted “when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” The North Carolina case was relevant to prove identity, which was a contested issue at trial. Admission of this evidence was also not unfairly prejudicial under section 90.403. “[A]lmost all evidence introduced during a criminal prosecution is prejudicial to a defendant,” and “a trial judge must balance the import of the evidence with respect to the case of the party offering it against the danger of unfair prejudice.” Sexton v. State, 697 So. 2d 833, 837 (Fla. 1997). We affirm the trial judge’s balancing here; this evidence was important and its admission was not to show bad character.

We reject Snyder’s second evidentiary argument without further discussion.

AFFIRMED. (KELSEY, NORDBY, and LONG, JJ., concur.)

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