DUI In Florida

[lexy]

My question involves criminal law for the state of: Florida.

I was involved in a DUI in August 2007. Due to numerous state contuances, they only just tried me this Monday!. I was in a rental car, had a high BAC but nobody was hurt.

On the morning of trial the witnesses came, on time and even sat behind me, one was a marine so his credibility was amazing.

The officer has a one hour standby---never showed. I had a split second decision to make, my lawyer was panicking me warning we needed a decision before the officer came. My choice was a reckless which carried almost all the same penalties as a DUI. My lawyer also filed on the 3rd of April for a speedy trial motion.

For the life of me I do not get why he, nor the girl who calls twice a week can giive me the likelihood they will try and serve me. I live in a gated community, though people do let others in behind them.

Two questions, is this not tresspassing to enter a gated community and can I not call the police claiming a suspicious person is oustide our neighbors?

Secondly, why can nobody answer the likelihood of them coming after me. I would think since this happened in August, I did not take the reckless, and the police was at fault for the result in all respect with two witnesses they will ALSO have to recall, that they would not. But I read another post who stated that SAO in Florida has no say, they always re-file property damage cases.

Anyone able to give me a few clear answers. Not as if they will, but my size and the fact I was in the sun and did not eat and only had a few glasses of wine account for the high BAC. I also did not even need to urinate until I was already under arrest.

I am not moving out as I just purchased my home, but would like to know how best and legally to avoid them should they come after me!

I was also informed they can file up until the 60th day---does that not deny me the speedy trial motion? What is the statute then for them to serve me?

[seniorjudge]

Q: Two questions, is this not tresspassing to enter a gated community and can I not call the police claiming a suspicious person is oustide our neighbors?

A: No and yes. Servers of process can go anywhere, especially if they are cops. If you call the cops and claim a suspicious person is outside trying to arrest you or serve you, they will laugh.


Q: Secondly, why can nobody answer the likelihood of them coming after me.

A: Because no one knows.

[lexy]

To use legal terminology Judge, that was vague, broad and (in a mental capacity) unduly burdensome.

The truth is that there should be some rhyme or reason to the SAO but as I have heard there is not, especially in Dade. My police report, according to my lawyer, was among the worst he had ever seen and the state had a perfect witness BUT not all the facts. The police lied to me, they did not observe me (I was left with my handbag for a half hour and even at one point wandered the halls where I was awaiting the breath test. Was repeatedly asking for a lawyer or what my rights were, including rights not to take the breath test, and long story short, I could not even have those motions heard and now have to live in trepidation for 60 days (more as I heard they can file on business day 60) that I am going to be served.

I was given a split second to decide between a reckless and dismissal. There was nothing wrong with my "machine" but I amazingly, and I know, EVERYONE says this, but really amazingly had only two glasses, large, of wine and at the end was talked in to a small shot of Petron. I was completely aware of my surroundings and did feel affected BUT not drunk. I was cognisant enough to know that my meter was running out and also am reknowned for leaving my car at the 7th street garage when I party, this was no party, it was a few drinks, albeit after a day in the sun with no food and no other drinks aside from the alcohol but for a gatorade that morning.

I was chased or followed or harrassed by a vehicle of young men who were acting lewd to say the least after repeated gestures to get my cell number, (one exposed himself) and was in a rental car, as mine was being serviced, I had driven twice, this being the second day I drove it. The wheel was very loose and the fact I had been abroad driving on the other side of the street (left wheel drive like in UK as I was in Asia) did not help as I naturally was veering left anyway, even in my own car to the extent a friend told me to "watch it" one day (this happens whenever I go back and forth from right drive to left drive). That said the officer never investigated these allegations nor did he follow protocol in many ways.

His report stated in the outset I was "standing outside my vehicle" when he arrived. He made mention of my story of the phantom car...then went on to say that I was slurring, flushed and had red eyes. Well how can you tell a sunburned person is "flushed" and how can you NOT notice an accent that is very pronounced? Further he says I failed the nystagmus test but that I could not keep my head still... this is not possible because if the test is administered properly he or I would hold my head straight so my eyes were the only part that could move. Then he stated I put my foot down a "few" times during the one leg test, who does not even sober especially in worn out high heels (I am very short and wear old wedge high heels to the beach that are worn and was standing on an uneven surface).

I had a blood alcohol that to me was astronomically high but initially they told me I passed twice and made me take the test three more times each time making me breath deeper. I do yoga, my breaths will be deeper and more deep lung air will come up as will regurgitation from the mere act of breathing the length of time they had me breathe, which I think may well have set records (I can hold my breath for almost 3 minutes and can breathe out almost as long if I am forced).

I am also hypoglycemic so the blood sugar levels in my body cause my body to produce its own alcohol, that is something few people know.

I wish I could represent myself and had instead of paying what I paid and being in the dark over this process. I am literally scared but that is something I now have to either live with or sell up a new condo real fast and move back to Europe as I am a dual citizen....the latter is not an option with such a weak dollar.

Bottom line, the state does screw up but credible witnesses and pseudo-science (breathalyzer is NOT accepted by any scientific body as an accurate measure of blood alcohol but for police and courts) seem too often to prevail. To top that off this officer signed my informed consent, a form I never saw, as if I had agreed to all the conditions YET wrote I refused to sign, which to me is contradictory, and further he did the same on my Miranda Warning. Perhaps this is why he did not show?

I can only hope that as the state had two witnesses waiting to be called and the cop was a no-show that her anger will sooner be directed toward him and wasting the time of the witnesses than toward me and retrying my case.

It is a very serious thing to me that I could have killed or hurt another person. I admittedly drove inebriated as a youngster but in my adulthood, most of which was in Europe so we had adequate, reliable, affordable and rapid public transport, I would never dream of it. I would have killed myself if I injured another person seriously or even at all. I honestly was not drunk but all evidence says I was, which I am baffled over. Even the fact that I urinate a lot when I drink and had no need to urinate until I was booked tells me something was off.

[usedbranflakes]

You don't want to tell your story to a Jury. You have some good technical points that would lose them and would likely actually end in your conviction.

If you went to a full trial and had the experts you needed, expect around $15k to *possibly* have a better than 50% chance of winning the case. They would have to get the multiple breath tests (which have likely been destroyed) showing you were "sober" (technically below the per se limit of .08) at the time of your detention. Those are, again, likely gone or likely not written down by the officer. An officer's job is not to gather evidence that will acquit you, but to gather damning evidence that ensures conviction.

Florida is one of the states that recently had a ruling that said (essentially) the breath test is infallible, the 2100:1 ratio coded into the software can't be challenged, etc.

It's going to be a hard path forward.

[lexy]

Naturally, you can tell I am a scientifically knowledgable person. The breath test is completely NOT reliable and had the officer given me a choice I would have taken a blood test. That said, he did not, in fact he neither read me my Miranda rights, gave me correct advice as to my rights of refusing (informed consent) and signed off on both that I "refused to sign" which to me is ludicrous if you have agreed to do a breath test.

This all said, the real question is, who would the state attorney be more angry with? I now have until beginning of June, about 4 weeks, to have them NOT refile. Personally I would think that after having witnesses come waste their day and being prepared and having the officer not show my dismissal would stand because there is NO guarantee all parties will show for round two, the witnesses because they may be annoyed, the cop because he already was a no-show and blew her case once.

That said, getting a statistical answer from my lawyer is like stealing candy from a baby, he dances around it and claims there is "no way to tell". Sorry but if I did his job as long as he has I would have SOME idea from circumstance, demeanor of the prosecutor, and cirucumstances of the case, what the outcome would probably be. I am counting down my days and hoping that I can get through the next few weeks with a sao that forgets about my dismissed case and leaves it so until after the SOL.

[usedbranflakes]

Allow me to pull out my crystal ball and bag o' experience.

...if you live in a gated community or even gated apartment complex, you have a job that pays pretty well. Dumb people don't get those jobs. So let is set that aside...

If you look at DUIBlog.com you will find that more and more jurisdictions are ignoring the scientific evidence and crappy coding of the folks that make those nifty little breath test devices. Scientifically accurate they are not.

If the case was not dismissed and you took a plea, you are dodging a bullet. In some states they waive your right to confront your accuser OR they say that the "State" is the accuser and the officer is just a witness. Some courts will even continue the case when the officer is a no-show. It takes a strong plea from a skilled attorney to force the case to "move on" and request a dismissal. NC, GA, and FL judges are really hesitant to dismiss DUIs because of MADD. A FL judge got himself in some real hot water because he was fair to a defendant and compelled a company to produce their (poorly written, as I understand it) source code. If I am not mistaken it was Drager.

Gated community or not, there are provisions for police entering a private community and a private road. Protecting the peace is one of those. Process service is another one of those. ...and they can just serve your attorney instead of you OR they can serve you at work.

The DA doesn't have to serve you by the 5th, just simply needs to re-file the charges and let the Sheriff or process server do his/her job. They will find you and they will serve you one way or another.

[lexy]

Actually they gave me, if you see above, a choice I needed to make in a split second...namely take a reckless which had almost 100% of the same punishment as the DUI conviction, or do not accept, I chose the latter, with little knowledge as to the consequences. The Prosectutor never even looked at me and non-chalantly went on to her next case turning to tell her witnesses they could leave...that was it. At this point I have literally 15 business days left---I guess I can just hope they are busy, preocuppied, on vacation or something else works in my favor.

[lexy]

Allow me to pull out my crystal ball and bag o' experience.

NC, GA, and FL judges are really hesitant to dismiss DUIs because of MADD. A FL judge got himself in some real hot water because he was fair to a defendant and compelled a company to produce their (poorly written, as I understand it) source code. If I am not mistaken it was Drager.

Gated community or not, there are provisions for police entering a private community and a private road. Protecting the peace is one of those. Process service is another one of those. ...and they can just serve your attorney instead of you OR they can serve you at work.

The DA doesn't have to serve you by the 5th, just simply needs to re-file the charges and let the Sheriff or process server do his/her job. They will find you and they will serve you one way or another.

Well firstly--the low down where you are wrong. You are right about MADD BUT that was two years ago. It is ongoing and it is pressure on JUDGES. The State Attorney's Office is not the judge and MADD's pressure was to make JUDGES deliver more guilty verdicts and not allow suppression of evidence as often etc.

In my instance it is a 50/50 according to everyone I speak to in the legal world. I had a high BAC (3 times over the limit but as explained it was not that high the first THREE times and twice it was about two times over the limit)---speaks volumes as to the validity of the test. I was also "absorbing" and there were other factors as to why I crashed, yes I drank, but most was right before I left----my breathalyzer was administered two plus hours after the accident. I did not even have to pee, a sure sign I am drunk, until I was booked!.

Now the 50/50 is based on everyone I spoke to who works in this area's advice. The SAO is busy and they look through cases I guess weekly so I was told and then decide if they were prosecutable and if they are going to pursue them.

Against me: very credible witness, a marine. High BAC, auto accident (no injuries and no damage but to my "own" (though it was rental) vehicle.

For me: my lawyer is known to be good and had already put in a motion to supress the breath test on the basis, which was true, that they did not observe me for the 15 minutes needed and that I can attest to that as I was walking halls I can describe that one normally would not be in if led directly to the room and sat there. Also police report is, according to my lawyer, the worst he has EVER seen. It starts out---"defendant was standing outside of her vehicle when I arrived". It contradicts itself, leaves things out etc. PLUS the officer was a no-show. Top that off with the fact that despite having asked every step of the way if I was entitled to refuse tests or speak to an attorney the question was evaded and the officer instead opted to prompt me just "to do it as I was not under arresst". This is especially significant in supressing my breath test as I asked about consent, never got an informed consent form yet found one in the discover which I told my lawyer, along with my Miranda rights, I never saw either paper. On BOTH, I agreed apparently (I say this not due to not recalling but due to the officer lying) yet seemingly refused to sign. I never heard of agreeing to something but then refusing to sign which means to me and hopefully any sane judge that he did the paper work after I was probably en-route to jail.

Without someone reviewing the witnesses and their strengths (actually just one of their strengths-one being millitary) I do not see it as a slam dunk case for the prosecution especially with a highly reputable lawyer. There is a weak and contradictory police report and a motion was on the table to supress the breath test which essentially takes the case out of their hands.

Now in reality...all of this is reading tea leaves. That said the one place you are wrong....they cannot file the very last day. I mean yes, you are right they can, but then a good lawyer does not respond BUT marches into court and proclaims that the prosecution had ample time to bring this to trial within the speedy trial perirod and is extending that period by virtue of doing this. In 99% of cases I heard (with a lawyer) this argument is accepted and case is dismissed.

As stated---15 business days and counting!

[usedbranflakes]

You seem to have all the answers to your questions.

If you want to be a jackass, that's fine with me. I am simply trying to help you out.

MADD pressures the legislature, the judiciary, the POLICE, and the prosecution. How they are still a 501c3 AND get federal grants to pressure the executive, legislative, and judicial branches is beside me. About the only thing they don't directly pressure is the jury box.

Look up cases for His Honor Judge Augstus Aikes and the flordia breath test. They should be in the Tampa area. This is the judge that went against MADD by following the truth of the breath test: the machine is not the most accurate device for testing alcohol in blood. For that matter, Florida charges people with a 0.00% BAC with DUI quite frequently. A few weeks ago some officer charged a guy who was deathly ill with a DUI even though his BAC was ZERO. The guy had pneumonia and could not even blow into the Intoxilyzer 8000.
...and if these machines were perfect why would they need a new version all the time?

Speaking from someone with a scientific and legal (CJ) background...
...the officer likely did not show because they knew they had a bunk case.
...and as a jurist I would likely vote for acuittal. ...but not all jurists are smart professionals with scientific or legal backgrounds.

Urination is a matter of hydration. I have seend drunk people not pee until the next morning because they were dehydrated. Liquor can actually dehydrate while beer has a good amount of water in it and can lead to one needing to urinate.

I hope that 15 days pass without them charging you again. They have 15 (or 14) days to re-file the charges. Serving you is a whole different ballgame.

Good luck and quit being a jackass to the people trying to help you. Feel free to be a jackass to your lawyer that you paid; he is getting paid to deal with you.

[lexy]

You seem to have all the answers to your questions.

If you want to be a jackass, that's fine with me. I am simply trying to help you out.

MADD pressures the legislature, the judiciary, the POLICE, and the prosecution. How they are still a 501c3 AND get federal grants to pressure the executive, legislative, and judicial branches is beside me. About the only thing they don't directly pressure is the jury box.

Look up cases for His Honor Judge Augstus Aikes and the flordia breath test. They should be in the Tampa area. This is the judge that went against MADD by following the truth of the breath test: the machine is not the most accurate device for testing alcohol in blood. For that matter, Florida charges people with a 0.00% BAC with DUI quite frequently. A few weeks ago some officer charged a guy who was deathly ill with a DUI even though his BAC was ZERO. The guy had pneumonia and could not even blow into the Intoxilyzer 8000.
...and if these machines were perfect why would they need a new version all the time?

Speaking from someone with a scientific and legal (CJ) background...
...the officer likely did not show because they knew they had a bunk case.
...and as a jurist I would likely vote for acuittal. ...but not all jurists are smart professionals with scientific or legal backgrounds.

Urination is a matter of hydration. I have seend drunk people not pee until the next morning because they were dehydrated. Liquor can actually dehydrate while beer has a good amount of water in it and can lead to one needing to urinate.

I hope that 15 days pass without them charging you again. They have 15 (or 14) days to re-file the charges. Serving you is a whole different ballgame.

Good luck and quit being a jackass to the people trying to help you. Feel free to be a jackass to your lawyer that you paid; he is getting paid to deal with you.

I think you got me wrong! I appreciate your input. I am not trying to be a jackass what I am doing is just stating that I KNOW what you are talking about with MADD but I also know that MADD pressures the "elected judges" more than it does low paid SAO lawyers that have dozens of cases a day.

The cop, in my opinion, did not show because his report was weak, he blatantly lied to me and if had any clue I had a lawyer which I think they do get to know, he knew he would be ripped a new one. As originally stated...the report read really poorly, "defendant standing outside of her car when I arrived at the scene of accident, after accident investigation (he never did one) I informed her I was starting my criminal investigation as I smelled a string odor of alcohol coming from her. She could not perform nystagmus test without her head swaying (later he says I failed it in another part of the discovery---can't have it both ways and cannot define nystagmus if someone's head is swaying) she could not perform one leg test without using arms for balance or putting foot down. (I was wearing worn out old wedge heels on an uneven surface, sober I later tried to do the test without a drop of alcohol and could not). I then informed her she was under arrest for dui and proceeded to breathalyzer station."

Well, like I said, he never answered me when I repeatedly asked do I have to do these tests or do I have the right to an attorney or to speak to an attorney? This I asked before even doing the tests. THEN I asked again and he finally answered, just do them you are NOT under arrest. Then again at the station I asked if I had the right to an attorney or to contact one, he dodged the question with the same answer. Then again when it came to the breath test I asked again what my rights were, he dodged again and said (as he also administered the test and never observed me--btw this was over two hours since I had drank anything-"just blow" I told him again I wanted to speak to a lawyer, he said again, just blow---did three times, came up under the legal limit then he asked me to blow as long as I could--again as stated I do yoga, was burning up from a sunburn, and took the deepest breath I could and breathed for about 3 minutes (no joke) and they got a .187 then they asked me to blow harder, I did and they got a .196 and then he asked me to do it deeper and harder, did and got a .24---do not ask me how!

In any event I also found docs in the discovery such as my miranda rights filled out stating I "refused to sign" along with informed consent again stating I agreed to all but oddly "refused to sign". This is likely what he was doing when he was out of the room and I was wandering the halls (had my handbag still as well so I could have, for all they knew, taken a little airplane sized vodka out and swigged it down or mouthwash...which I always carry in my handbag.

In any event we are still on the countdown---but if I am not mistaking if they cannot serve me they cannot re-file. I also understand from my attorney that if they file the last day he will march into court rather than answer the charge and plead to the judge that the SAO did this to prolong the SOL on the speedy trial motion--which apparently they usually win according to him because after all, they do have 60 days so doing it in day 60 is sleazy or even 58 or 59.

All said, I also do have a lot of legal knowledge and medical knowledge. Frankly I would have asked for a blood test if I HAD the informed consent because it is most accurate. That said I did not have the option. My legal knowledge is from the fact I come from a family of solicitors but the law is basically the same in UK as in USA....only USA is a little more hard ass. I have US lawyers in my family as well but that is besides the point my point is that yes, indeed dehydration is a reason for not peeing as well and I admittedly did not drink anything but the two glasses of wine and a shot of petron and earlier a HUGE gatorade...but assure you, I pee as soon as I get drunk no matter what!

That all said, what I want to say is I am not trying to be a jackass I am actually trying to run through the rhyme and reason to the arbitrary way they decide whether or not to refile charges. My lawyer had one girl who he did not do a speedy trial for (on that subject I do not get why he did not do it as soon as they said ready and only filed a week and a half later, it would save me some time at least!) but she was re-filed on the 365th day and went hysterical which I can understand.

Just to be a bit Eurocentric for a moment---I think USA should stop punishing people who drink and drive and start putting the resources into effective, rapid, affordable and conenient public transportation. I hardly know a place in Europe I cannot go out and not have to worry about how I am going to get home...this may also solve our gas dependancy!