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Florida is a boater’s paradise. With the open ocean, intercoastal waterway’s, and sprawling lakes Florida accommodates all types of boating enthusiasts. Just because a person is behind the wheel of the boat doesn’t mean they are not subjected to similar alcohol criminal offenses.
What is a BUI?
Under Florida statute 327.35 it is a criminal offense to boat under the influence of drugs or alcohol. If you have a blood/breath alcohol level of .08 or higher, or your boating to the extent that your normal faculties are impaired you can be found guilty of BUI. In addition, if you are under the influence of controlled substance (ie drugs) you can also be found guilty of BUI.
Similar to DUI
The BUI statute is similar to the DUI statute 316.193 as to what the state has to prove. Both offenses are misdemeanors for a first offense, unless someone is injured in the offense. Both have increased penalties for subsequent convictions. A post require probation and a BUI will require attendance at a substance abuse course. The court will also impound the vessel for 10 days similar to the DUI statute which requires a ten-day immobilization.
Penalties for refusing
Under Florida statute 327.35215, a person who is lawfully arrested for BUI refuses to submit to a blood breath or urine test is subject to a civil penalty of $500, for the first offense. Like a DUI this refusal can be used against you in court. Unlike a DUI, this first refusal will not end in the suspension of your driver’s license. If the defendant has refused to take a test, you can within 30 days petition to have a hearing before the court to determine whether it was a lawful refusal.
Know your Rights
While DUI and BUI may be similar, it is much easier for law enforcement to have contact with someone on a boat as the Coast Guard and law enforcement have a right to do equipment checks just about any time. This means law enforcement has an opportunity to view and inspect the driver and his or her condition without reasonable suspicion. Be careful out on the water do not put you, your guests, or other boaters in harms way.
There’s a new/old concept coming into play since the passage of the Hemp bill in Florida. The concept is called SMELL PLUS. In short what it means is to articulate a search of the vehicle is no longer enough to have just the order of marijuana emanating from the vehicle to justify the search. You need the smell of marijuana along with something else to justify the further detention in search of the vehicle. That something else has to show there is some evidence of criminal wrongdoing. A quick example of a plus is the smell of marijuana + paraphernalia in plain view when someone does not have a medical marijuana card. There can be many forms of plus.
Under Fla. State. Sec 581.217, hemp is defined as the plant cannabis sativa L. and any part of the plant including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, assets, salts, that does not exceed .3 tetrahydrocannabinol concentration.
Under Fla. Stat. sec. 381.986 medical marijuana legal in the State of Florida. Further, under the statute, the only difference in legal medical marijuana and illegal marijuana is the percentage of tetrahydrocannabinol and cannabidiol. Medically legal marijuana is defined under Fla. Stat. sec. 381.986 (1)(e) and (f) as:
(e) “Low-THC cannabis” means a plant of the genus Cannabis, the dried
flowers of which contain 0.8 percent or less of tetrahydrocannabinol and more
than 10 percent of cannabidiol weight for weight; the seeds thereof; the resin
extracted from any part of such plant; or any compound, manufacture, salt,
derivative, mixture, or preparation of such plant or its seeds or resin that is
dispensed only from a dispensing organization.
(f) “Medical cannabis” means all parts of any plant of the genus Cannabis,
whether growing or not; the seeds thereof; the resin extracted from any part of the
plant; and every compound, manufacture, sale, derivative, mixture, or preparation
of the plant or its seeds or resin that is dispensed only from a dispensing
organization for medical use by an eligible patient as defined in s. 499.0295.
Medical marijuana can only be distinguished from other marijuana testing the potency. Likewise the determination of hemp versus marijuana containing more than .3% tetrahydrocannabinol can only be done through testing.
What’s Happening Now
The state attorney’s office and Broward and Martin Counties have put forth memos on why they will not prosecute unless there is the smell plus evidence of wrongdoing. Most South Florida jurisdictions are following suit.
What I anticipate seeing in the future are less cases filed and pending cases result a lot quicker.
We talked about all the vehicles you can get a DUI on in this post.
Florida citizens are back at it. In this article a Florida man was arrested after he struck an officer’s car while on his lawnmower.
They don’t have UBER for lawnmowers but I think he should have used Angie’s list.
We predicted it months ago. A Judge in Tallahassee ruled the ban on smoking prescribed marijuana unconstitutional last May. This created a conflict in the law. On May 18, Gov. Ron DeSantis signed into legislation to repeal the ban on smoking medial marijuana.
So What Really Happened
Gov. DeSantis filed a motion to Dismiss the State’s Appeal of the State’s appeal of the Tallahassee Order. Along with the order, the governor signed legislation that make smoking an acceptable form of a “marijuana delivery device”.
Patients can now receive 2.5 ounces of whole flower cannabis every 35 days. The changes may take a bit of time to implement.
Key Issues for the courts
Prior to the change in the legislature, the odor of marijuana in a vehicle gave rise to probable cause for a search. Since medical marijuana was passed, we have argued that the odor of Raw marijuana was not Probable Cause until it was determined that the Defendant didn’t have a prescription. The courts will now have to look at whether the odor of burnt marijuana needs a similar inquiry before a search is legal. We will see.
Earlier in the year we discussed that license plate readers were approved in Wellington. According to WPBF the readers are now operational in Wellington.
License Plate Cameras?
License plate cameras are stationary cameras positioned throughout the city that constantly read license plates. They check for bad registrations, possible license issues, and if cars are stolen. This will then alert PBSO as to the vehicle’s issues.
How to prevent getting Pulled Over
Obviously, keep your tag up to date. Do not switch your tag with another vehicle. Also, if you are driving your registered car and your license is suspended, it may subject you to being pulled over. If you watch this video, you can see how to avoid being pulled over as a result of driving through an area with license plate reader.
The New Jersey Supreme court rules that 20,000 DWI convictions could be tossed according to this article. It appears that Sgt. Marc Dennis mishandled the instrument that reads Blood Alcohol Content. In addition, the Sergeant was charged with records tampering. The New Jersey supreme court held that 20,667 convictions for DWI could be challenged and notice must go out to anyone subjected to this error.
It has happened in Florida
In Broward county in 2009 it was discovered that one of the inspectors that were testing the initializer 8000, in an improper manner. Specifically instead of ingesting alcohol and giving a sample, the inspector simply put alcohol on her lips in order to conduct the test. The procedure was did not conform to FDLE and DHSMV administrative rules. Ultimately several DUI’s were dismissed as a result.
Why challenge a DUI
Many people think they cannot challenge the initializer 8000 in court. We have given now 20,000 different reasons why you should. A good DUI attorney will look at outside forces that may have affected your ability to perform field sobriety exercises such as weather conditions, the area where the exercises were performed, and whether the officers conducted the field sobriety exercises in an appropriate manner. Lastly, an experienced DUI attorney will look at attacking the reliability of the breath measuring device called the Initializer 8000.
The police have a strict procedure to follow when conducting a DUI investigation. Even minor violations of procedure can have a great impact on your case. As such, there are many different ways a DUI case can result other than a plea of guilty to DUI.
Way back when, June 21, 2017, I wrote about an new bill (Senate Bill 118) that would help people on two fronts, getting mugshots removed, and administratively sealing criminal records that were dismissed. The law was supposed to be enacted on July 1, 2018. After July 1, 2018 I went in search of Florida Statute 943.0586 to help several of my clients administrative seal their record. What I found was….Nothing.
Florida Statute 943.0568 was not enacted
Despite being signed into law by our governor, the bill was only adapted in part. SB 118 was comprised of two separate portions introduced by Senator Brandes and Senator Stuebe that complimented each other. The first portion allowed for the removal of mug shots upon request by third party publishers such as mugshots.com. The second portion allowed the clerk to seal a case which was not filed or dismissed prior to trial. The second portion would have allowed the clerk of court. Confusion arose when Governor Rick Scott passed this bill which was supposed to take effect on July 1, 2018, but then we learned the second portion was contingent upon Senator Brandis’ SB 450 or its counterpart SB 369 passing as well. But since SB 450 or 369 did not pass, the 943.0586 statute the we previously reported on our blog, did not make it into law.
Removal of Mugshots
Florida Statute section 901.43 is the statute controlling the mug shots. It makes it illegal to solicit or accept a fee or other form of payment to remove the booking photographs. The person whose arrest booking photograph was published or otherwise disseminated in the publication or electronic medium may bring a civil action to enjoin the continued publication or dissemination of the photograph if the photograph is not removed within 10 calendar days after receipt of the written request for removal. The court may impose a civil penalty of $1,000 per day for noncompliance
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Inside, a bit about our family Halloween traditions, free offers, the rise of our personal injury practice, and other fun tidbits.