Thursday, December 31, 2015

Driving Under the Influence in Florida: FYI before NYE

Driving Under the Influence (DUI) is a crime that can land anyone in jail for at least a night. There are few crimes for which we as defense attorneys represent such a wide variety of people, but DUI is one of them. It is not a crime to drink alcohol and drive a car in Florida, therefore many people of all backgrounds become at-risk for DUIs. This New Year's Eve, make sure you understand this charge, and what to do if you find yourself with new cuff links for your tuxedo.


The Basics: 
First and foremost, it's a DUI in Florida, not a DWI. Although you can drink and drive, it is a crime to have a blood alcohol content of more than .08 or higher AND/OR for your normal faculties to be impaired.  Law Enforcement determines if you are "impaired" through observation, if you give a breath sample, or if you participate in field sobriety exercises (FSEs).  Your driving privilege is affected if you refuse to participate in a breath test, but the alternative is providing law enforcement with evidence of a DUI.

The Stop: 
On nights like NYE, police are specifically looking for impaired drivers. What are they looking for specifically? Erratic driving patterns, failure to use lights or turn signals, speeding, running a red lights.... and more. Law enforcement may stop you in Florida when the observe an erratic driving pattern (weaving, slowing and speeding rapidly, changing lanes for no reason) if they believe the driver is ill, tired or impaired even if you don't commit an independent traffic violation. They can obviously stop you if you do commit a traffic violation as well.  

From a Stop to an Arrest:
It may not take a lot to stop you, but it takes probable cause that a crime was committed to arrest you. Keep in mind, when the police stop you, they don't know if you're impaired. YOUR actions determine if you give them the evidence (probable cause) for an arrest whether or not you meet the legal definition of impairment. If you cannot determine when you've crossed from a legal .07 to an illegal .08, how can law enforcement?  It's an educated guess, and police are trained that they have a duty to keep impaired drivers off the road. So while you can have a few drinks and drive, you probably shouldn't. 

Biased Observations:  
The entire stop may be recorded, but video cannot document smell or how you appear close up. Police are trained to spot signs of impairment. More accurately, they are always searching for signs of impairment when they make a night-time stop. Almost every narrative of a DUI arrests uses the phrase "odor of alcohol," "bloodshot, watery, glassy eyes," and "flushed face."   If a statement is made, we also see "thick-tonged" and "slurred speech."  Officers are trained to include these key phrases, and this will be written about YOU in the event you are stopped.  The question is, how much more evidence will you give them?

Know your rights: 
You have the right to remain silent. The officer will ask questions. You do not have to answer them. You must provide your full legal name, which is located on your driver's license. You are not going to talk your way out of an arrest. It's better that you don't say anything at all.

Getting Out of the Car: 
If you are asked to exit your vehicle, you have a problem. You should be on high alert to mitigate your circumstances. How you exit your vehicle will be used as evidence of impairment.  If you use the door for support to exit, that will be noted.  You probably cannot refuse, but it is based on the circumstances of the stop.  If you are out of your vehicle, you need to come to terms with the fact that no matter what you do from that point on, you will most likely be arrested.  It's best to start invoking your rights.

Field Sobriety Exercises (FSEs): 
If you are out of the car, you are likely going to be asked to do FSEs.  You have the right to say no, but the refusal is admissible in court proceedings to show guilt.  Your license will NOT affect your license despite what the officer tells you. 

The FSEs are all subjective. They are complicated, and whether your pass or fail is solely up to the officer's opinion. If you refuse, you will probably be arrested. If you do them you will probably be arrested.

If you choose to do them, consider the following:

(1) You must listen carefully to the instructions. They only say them once.
(2) The instructions are literal. Do exactly what they say.
(3) Take your time, but don't hesitate. That can be used against you. 
(4) Do not start until you are told to start.
(5) Remember: you're on video.

Miranda?
If you are read a Miranda warning prior to your arrest or a request for FSEs, you need to express your confusion to the officer.  Miranda is for an arrest. In Florida, the Implied Consent law states that you consent to a breath tests by virtue of exercising your privilege to drive.  You do NOT have the right to consult with an attorney prior to the test. However, if the officer reads Miranda warnings and tells you that you cannot consult with an attorney at the same time, tell the officer that you are confused.  

To blow or not to blow?
Again, Implied Consent applies to Florida drivers. If you blow, you are facing a DUI charge, additional sanctions for a "double blow," which means you blow two (2) times the legal limit, a DUI charge, and a 6 month administrative suspension on top of any probationary suspension as a condition of your sentence. If you choose not to blow, you are facing a 90 day wait period to get a hardship license, which will be suspended for 12 months administratively. If you have previously refused, you will be charged with Criminal Refusal, which is a separate crime and your license will be suspended for 18 months.  The same applies for  urine, even if you already gave breath.

It's not an easy position to be in. 

Blood?
Blood is slightly different,  Unless its impossible/impractical to get blood or urine, you consent, or there has been an accident with death or injury, law enforcement should not draw your blood without a warrant.  Don't consent. 

Arrested?
You will be booked. If you have $500 cash, you may be able to get a cash bond, go home, and come back for court that next afternoon. If not, you'll be in until at least 1:30 p.m. for First Appearance court. 

First appearance:
First Appearance in Duval is known as "J1."  You will be herded into a courtroom with dozens of other inmates. It's long, and there are a lot of words and terms thrown at you via a well-produced video.  You probably won't have an opportunity to consult with an attorney prior to you going before the judge unless you hire one to come with you.

You're going to be made a deal: "First Mins." All of the lawyers, and the judge will say this term several times, but you won't be clear as to what it means until you're serving probation and finding out the hard way. Get out of jail, talk to a lawyer, fight the charge, and make a good choice when you're not in shackles. Be prepared to wait several hours for your release. It may take all night on the holiday.

When you get out:
Be on your best behavior. Start collection mitigation: proof of employment, proof of your employment being affected by the charge, school schedules, code of conduct that applies to you, need to drive, et cetera. Talk to your lawyer about the facts of the case. Be patient. A good defense can take months or years.

Your license:
You need to decide if you will have an Administrative Hearing, or if you will waive the hearing and apply for your hardship license with the Florida Department of Highway Safety and Motor Vehicles (DHSMV). This is a conversation to have with a lawyer. Here is the Application for Administative Hearing HSMV Form 78306 , and the Application for Hardship License (just save the image).

Hire a lawyer:
Despite your better judgment, you were arrested for a DUI. You should get a lawyer as soon as possible. You can typically hire an attorney for First Appearance court only, and make a choice whether to hire them later. The going rate for a First Appearance hearing is in the neighborhood of $500-$1,500. Some lawyers will apply that to the full fee if you hire them. If Jacksonville, the average legal fee is $5,000-$8,000 for a First DUI without an Administrative Hearing. Some charge more, some charge less.  The more tends to make sense, but beware of the less. 

A J.D. from Google does not substitute the knowledge of an attorney, especially in the world of DUIs. It requires someone who practices Criminal Defense, and who understands all of the ways that YOU will be affected by the charge.  You don't have to face this alone.

Happy New Year!

If you or a loved one is arrested for a DUI this New Year's Eve, call us at 904-516-5560, or email contact@plataschott.com. Plata Schott Attorneys & Counselors at Law has represented thousands of criminal defendants. If you mention this blog post, we will discount our fee by 20%.











Monday, December 14, 2015

Open Letter to the Editor


We previously posted about our client, Leonard Dillard whose Motion for Immunity from Prosecution was granted by the Honorable Judge Soud in Duval County, Florida.  Mr. Dillard's story was told again on Sunday, November 21, 2015, when Larry Hannan from the Florida Times-Union wrote an excellent article on the immunity statute in Florida knows as "Stand Your Ground."   The article questions the prudence of Stand Your Ground, and  quotes Charles Rose, from the Center for Excellence in Advocacy at Stetson University College of Law, and accomplished writer who claims that Stand Your Ground doesn't work. Here is our response:


"On my desk sits a framed verdict. Two years into practice, I had a client who was innocent. I don't mean that the State of Florida could not meet their burden at trial. I mean that he should have never been charged. I filed a motion for Immunity under Chapter 776 of the Florida Statutes, which was improperly denied. Then Mr. Chavarrio Thaxton was acquitted at trial. I think about Mr. Thaxton every day and what his case taught me- there are actually innocent men and women in the Duval County jail.  Rarely are their stories heard, but our duty as criminal defense attorneys is to use every available tool to correct the errors of prosecutors who presume guilt and rarely get an unbiased versions of events prior to filing charges.

"Our firm has been looking forward to last Sunday's article ever since Mr.  Hannan sat down with Mr. Dillard nearly a year ago.  When I read the article, I was shocked and angered by my former professor, Charlie Rose's comment that filing for Immunity is tantamount to malpractice.  Mr. Rose heads up the Center for Excellence in Advocacy from which I graduated at the #1 school for advocacy in the country- Stetson University College of Law.   For an attorney in that position to make such a comment is reckless as it dissuades vibrant attorneys who are willing to exhaust all options when it's truly appropriate.


"Stand Your Ground is for innocent people. Typically, you don't hear about the people who are immune under the Statute. Law enforcement considers the facts and never arrests those people using the same law.

"Mr. Rose is wrong. If you know how to use this tool, it works. My law partner, Belkis Plata who is quoted in the article and I have a mere five years of experience. We each represented more than 2000 men, women and children while serving as Assistant Public Defenders. Of those, we have each represented at least one innocent person, and their names are included in the 12 men and women who prevailed with after filing for Immunity under Stand Your Ground."


We believe that Stand Your Ground immunity works if used properly. It's not intended for every defendant, which explains the rate of failure.  We understand when it is appropriate, which is why we have represented more than 16% of the people who prevailed in Duval County. 

If you or a loved one is charged with a crime and believe you are entitled to immunity, call us today or visit www.plataschott.com. 



Tuesday, December 8, 2015

D.A.V.I.D. and Goliath

It's an epic tale. Weak versus strong. The weaker of the two overpowers the strong. A story beautifully told in 1 Samuel 17 of the Bible. In modern America, this struggle is seen in the world of sport and competition. For lawyers, every case seems to be a tale of David and Goliath. The "Goliath" of them all being the Government. 

In Florida, the Driver and Vehicle Information Database (D.A.V.I.D) is exclusively for Government including law enforcement, the judiciary, prosecutors, and some related state agencies such as Department of Children and Families. (Private attorneys like us are not authorized access).  Authorized users may only access the system, which includes Driver's License information, personal contact information, emergency contacts, crash reports, vehicle registration, and more for business purposes like crash investigations, and confirming identities. 

Unauthorized use is subject to penalties under Chapter 119 Florida Statutes, which states that EACH unauthorized use is a misdemeanor in the first degree punishable by up to one year in jail, and is subject to a $500 fine. Misuse is also a violation of the federal Driver Privacy Protection Act, which provides a civil cause of action.  Additionally, it's career suicide. 

In 2012, The Orlando Sentinel exposed a 400% increase of misuse.  Some refer to the system as "Google for Cops." Many misusers of the system are simply lazy or curious. Some are just flirting. 

So why does this matter? Those who have the power to access this information may think, "no harm, no foul," but its a violation of the law for a reason, and every Floridian should request their free public record annually to see if your information was illegally accessed.  

A few months ago, we learned that a colleague had requested his D.A.V.I.D. report for free from the State.  What he discovered was shocking...a judge, a JUDGE illegally accessed the D.A.V.I.D. system and ran a background check on this attorney.   Rather than exercise his rights publicly, he quietly addressed the situation with the Chief Judge.  

So we were curious. Has anyone illegally accessed our records?  We did a public records request and here is what we found...

One (1) investigator at the State Attorney's Office for the Fourth Judicial Circuit (Duval);
One (1) Assistant State Attorney for the Ninth Judicial Circuit of Florida;
One (1) employee of the Duval County Property Appraiser's Office;
Six (6) Jacksonville Sheriff's Office officers, and two other searches from anonymous users from JSO; and
One (1) judicial assistant for a circuit judge for the Fourth Judicial Circuit of Florida (Duval). 

While we consider our next step legally, you should take a moment to request your D.A.V.I.D. search history. Here is how:

(1) Send an email to DAVIDPublicRecordRequest@flhsmv.gov;
(2) write "Record Request" in the subject line; 
(3) in the body of the email write, "I would like to request a record of every time DAVID was accessed to search my Driver’s License#  [INSERT NUMBER] from [DATE] until Present.

The agency will notify you that the first hour of the search is free, and you would owe $19.08 for each additional hour of search.  Typically, the search takes about 1-2 hours. 

If you determine that you are a victim of D.A.V.I.D. misuse and you would like to move forward on civil or criminal remedies, contact us as soon possible to discuss your legal rights at 904-516-5560 or contact@plataschott.com.

Plata Schott Attorneys & Counselors at Law are attorneys with offices in Jacksonville, FL. For more information, visit www.plataschott.com.