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  1. #1

    Default Nolle Prosequi on My 2nd DUI - How is This Possible

    My question involves criminal law for the state of: Florida

    I was arrested in Dec 2007 for a DUI after blowing a .158 two times. An off duty security guard called 911 after seeing me swerve on I-75 and he followed me off the exit into a gas station where I proceeded to fill up the tank. 1st officer arrived while I was pumping gas and asked if I was ok, I said yes and she asked if I had been drinking, told her yes, she told me to get back into the car, asked for my license, held my license in her patrol car and told me to stay put for 20 minutes while DUI task force could make it to the scene.

    DUI officer shows up, asks me to perform field sobriety tests which I failed 3 of 4. The rest is pretty basic, arrested, taken to jail, etc... questioned in the breathalyzer room by the arresting officer, a few of my answers are ridiculous and very incriminating and I knew I was going down after reading the papers. I did ask for a blood test, but, officer ignored me, so, I just dropped it and took the breathalyzer which I failed miserably twice blowing .158 four minutes apart. Glassy eyes, slurred speech, etc... tape was pretty bad, admitted to drinking, etc..

    My attorney - who was amazing (I wanted to plead guilty) he assured me there was a reasonable chance that we could supress some of the evidence due to the fact that neither of the officers witnessed me driving and the other driver's statement was not enough for the 1st officer to hold my license in her car and telling me that I could not leave the scene. I guess she did something wrong by doing that, there were also a few other inconsistencies from the officers and my attorney filed a bunch of motions and the jude granted the motion to supress ALL evidence. The state filed a notice of Nolle Prosequi in court last week, I am shocked and humbled as I was quite guilty of this offense and was already planning for the consequences, Can they re-file charges on this case ? What about my drivers license, it is suspended until Dec 08 , does it stay suspended ? This was a second dui charge, I had the first ten years ago in Broward County, any answers would be helpful as my attorney is out of state for a few weeks.

  2. #2
    Join Date
    Nov 2007
    Posts
    811

    Default Re: Nolle Prosequi on My 2nd DUI - How is This Possible

    It is possible because you found a skilled attorney that knew the laws and knew the violations committed by the officers. Essentially he took away, from the State, all the elements that they required in order to prosecute the case. The fruits of the arrest/search were poisoned so to speak.
    LuckyinFlorida indeed!

    Take your attorney and his staff out to lunch...
    ...and call a cab in the future.
    ...and consider talking to a professional to ensure that your problem with alcohol does not further affect your life or the life of someone you love (or the life of someone else's loved one). I've had a DUI; I have seen what they can do to people.

    Cheers,

    UBF

  3. #3

    Default Re: Nolle Prosequi on My 2nd DUI - How is This Possible

    Get your lawyer to file a motion for a speedy trial asap otherwise they have a year to refile. If he/she files a MOTION for speedy trial they have only 60 days. I too got lucky on a first dui with damage to a car (I totalled) and refused the reckless plea so they dismissed charges when the officer never showed.

    My officer also made a ton of mistakes, never showed at the DMV hearing and then had a million excuses to prolong the case until April this year. When he was a no show and this does happen if the officer KNOWS he/she made mistakes at times, then a motion for speedy trial, which allows only 60 days from the date of filing for them to refile (in other words 60 days from when your lawyer files) then there is no recapture period and you only have 60 days to worry not a year. Otherwise you will be waiting until December 2008 to know what happens.

    My lawyer filed for the MOTION FOR SPEEDY TRIAL, which differs from a normal speedy trial in that they have 60 days as explained above to refile from the date of filing such a motion. My lawyer filed as soon as they set the court date "in case" something like the officer not showing happened and sure enough I gambled and won and am now getting my record expunged.

    My advice is to speak with your lawyer about that. They can sometimes sneakily file with the clerk and the SAO has no clue as they are bogged in paperwork and do not go through it for a while.

    A nolle pros is a good sign though.

  4. #4

    Default Re: Nolle Prosequi on My 2nd DUI - How is This Possible

    I did check with my attorney today and it is his policy to file for the speedy trial, thanks for mentioning that as I would not have known to ask.

    He also assures me that there is an almost zero chance the state would pursue this case with all of the evidence supressed and nolle pros filed two weeks ago, the court website also shows the case closed as of last week.

    I also found out the Florida DMV is completely separate from any criminal proceedings, even though the state did not charge me for DUI, the DMV can and will keep my license suspended until Dec 08. I have to request a hearing for a possible hardship license and may still have to go to DUI school, but, that is the least of my worries as the criminal charges were the real concern. I have never been so amazed in my life when I found out the state decided not going to take it to trial due to a few technical errors on the officers part, I got very lucky and had an excellent, highly regarded attorney, he was worth every penny.

  5. #5

    Default Re: Nolle Prosequi on My 2nd DUI - How is This Possible

    You should have had your lawyer fight for your license within the 10 days. DMV is separate. I never lost my license as the officer also did not show up at that hearing and with the first words on his report being, "The defendant was standing outside her car when I arrived" it was open and shut as they could not establish I was in physical control of the vehicle.

    As for the speedy trial, ask when he filed. They DO have 60 days from that day to refile. If evidence was thrown out via motions then they likely have no case and wont, that said be aware and ask how YOU can check until day 60. If you see the case refiled get lost until 60 days pass, as you had a trial date and they nolle prossed you there is no way unlesss they found and served you they could go after you after that. The way I did it was go on the miami-dade website where you can check the system daily, I would do it 9 times or more a day and if I saw nothing I did not react, if I saw they refiled I'd have gone to a friends or something until the time had passed.

    As of now you are under no obligation to the courts you are nolle prossed so the burden for them to find you within 60 days and notify you charges are refiled is on them, not you or your lawyer. so keep vigilant.

  6. #6

    Default Re: Nolle Prosequi on My 2nd DUI - How is This Possible

    Just wanted to post an update, I did get my business purpose only license back. My attorney told me I had to finish DUI school and then come back in and see him about getting the license back. He was actually wrong though. It was fine with me as he was great with getting all the criminal charges dropped.

    I called Florida DMV and they said you only have to show proof of enrollment in DUI school to be eligble for re-instatement. I really needed my license back, all I had to do was request a telephone hearing by sending the DMV a fax, they actually called me within 24 hrs and I was immediately re-instated.

    Had to take proof of enrollment to the DMV, pay re-instatement fee and that was it. I will have 90 days to complete the DUI school now. Just wanted to update in case anyone else might be in the same situation.

  7. #7

    Default Re: Nolle Prosequi on My 2nd DUI - How is This Possible

    Check and make sure there is no DUI on your record with the DMV as your insurance will sky-rocket!

    I would never have agreed to enroll in any DUI course I would have pointed out that you never had a proper hearing (if you did not) and that the actual case was nolle prossed.

    In either event I would call back and find out whether you maintain your driving status or if they add this as a DUI onto your record.

    I was lucky enough to have an officer that was an idiot! He broke every rule you can imagine and instead of even lying, which most do, he just did not show up to anything. First not to DMV hearing, great for me as his report literally started-"When I arrived at the scene the defendant was standing outside her vehicle" (did not say much more actually, about three more lines to the whole report).

    He violated all my rights, never gave me implied consent, never answered my questions when I asked if I had to do X,Y, Z etc. and then on top of that signed my Miranda for me as well as implied consent which I seemingly agreed to both but refused to sign. I also was not observed and allowed to walk up and down the halls waiting to get a breath test, asked for other options and again was not answered.

    I think frankly and in retrospect this cop did not want to hang himself which is why he never showed to anything. He had the SAO continue the case about 12 times, NO JOKE! It was almost a year before we even got a trial date and then was a no show. (People outside of FL do not always understand that unlike in CA or somewhere where a cop can be responding to something, tied up etc. here they are paid to sit and wait that day until called one way or another and are on a one hour standby---plenty of time to make it to the courthouse).

    When he was a no show I had a split second decision---take a reckless or wait for my day in court, I took the latter as I was told they may not come back to court but also knew with a high BAC and an auto accident they probably would.

    In any event thankfully my lawyer also does file the speedy trial motion as soon as the trial date is set, this means, dismissals and nolle prosses are automatically in your favor as they have no recapture period once this is entered.

    That said, if I were you, I would check daily at least twice, once in the am and once in the pm if they refile. If they do within the 60 days from the date your lawyer refiled, go on vacation or go to a friends. Once they dismiss or nolle pros it is THEIR obligation to serve you, if they cannot within 60 days it is as good as closed. Mine read closed but even the last week I was looking every hour. I would have got lost quick!

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