A DUI Attorney’s Evaluation of Jon Jones’ DUI Arrest

Jon “Bones” Jones did it again.  Arguably the best Mixed Martial Artist of our time, was recently arrested for his 2nd DUI on March 26th, 2020.   While this arrest was in Albuquerque, New Mexico, I am going to break this down as if this was in Florida.   Follow along here.

Does an Officer Have to Do a DUI Investigation?

This officer says he “has to do a DUI” investigation.   No officer “has to” do a DUI investigation.  In fact, in Florida the officer offers the offender field sobriety exercises (fse’s), and if they refuse, the officer provides what are called “Taylor” warnings.  These warnings are to inform a suspect the officer believes the person is under the influence and they will have to make their decision just based on the information they have.  Also failure to do the requested exercises can be used against you in court.

Do You Have to Answer If You Had Anything to Drink?

Right out of the box, Jon admits he had alcohol earlier in the night.   This is his first mistake.   Do you have to answer if you have been drinking? The short answer is no.  You can invoke your 5th amendment right to remain silent.

Field Sobriety Exercises

Right out of the box, the officers involved in this arrest did not do a good job of capturing these tasks on their Body Worn Camera.  Huge Mistake.   There appears to be two officers, simple positioning of the backup officer could have given a better glimpse of his performance.

First Exercise – HGN

The first field sobriety exercises Jon does is the HGN.  Notice how I say exercise and not test.   Commonplace, people think these are tests, pass/fail.  They are not, they are exercises for which an officer gains clues to the impairment of a driver.   The HGN is the pen light exercise that helps determine if there is nystagmus in an individual’s eyes.  This is probably the most telling exercise an officer can do to determine impairment.

We can’t see here his performance, for the reasons stated abode.  However, I would argue you can’t see him off balance so much. I can tell you in Florida most officers are not qualified to testify to the performance in trial and this “exercise” can often be excluded if the officer is not a “DRE” or drug recognition expert.

Walk and Turn

The officer asked Mr. Jones to step on an “imaginary line” left foot in front of the other.  The Officer’s next big mistake, there are actual lines on the ground.  Why use an imaginary line, where there is a suitable line on the ground?  Rookie mistake.

After the officer explains the exercise, Jon takes what appears to be more than the 9 required steps.   He also is not going heal to toe.   These are two indicators that don’t bode well for him.  He then says he is going to start over because he has ADD (attention deficit disorder) and gets punched in the head regularly.   These two facts if true (we know one is) could have an effect of whether or not he would be impaired because he couldn’t concentrate, or he has a neurological problem that might prevent him from doing these exercises.

The second time he performs them he looks good but forgets to turn around and do 9 more steps back.

One Leg Stand

Once again, he explains to the officer his short term memory is really bad.   If proven this could dissuade a jury from holding against him the lack of following directions.  His actual performance is not up to par.  He raises his hands for balance, hops and doesn’t keep his foot 6” of the ground.   One can easily argue this test is difficult if you were sober.

The Alternative Exercises

The alternative exercises provided (numeric and alphabet) are used to give an officer an indicator if someone is physically unable to do a physical exercise.   This would address physical injury.  I don’t know if someone had a neurological condition or ADD as suggested that these would aide this officer in determining impairment.

Conclusion

I have not read the probable cause affidavit; I don’t know if he gave a breath sample.  I am not going to make a judgment of whether he was impaired.  I can tell you that there is a lot to work with from a DUI defense attorney’s standpoint.  

I hope you can see that not all DUI cases are a black and white issue; drunk or not Drunk.   That is why if you are arrested for DUI, you need an experienced DUI attorney who can properly evaluate the field sobriety exercises and make the right arguments for you.

Are the Courts STILL Closed for the Coronavirus?

ARE THE COURTS STILL CLOSED?

Last week we wrote about the closure of the Corona Virus.    The Supreme Court initially closed any non-essential court hearings. In addition, they have tolled speedy trial issues during this time the courts are closed.  

Essential Court Hearings

Essential hearings are considered first appearance; criminal arraignments as necessary; hearings on motions to set or modify monetary bail for individuals who are in custody; juvenile dependency shelter hearings; juvenile delinquency detention hearings; hearings on petitions for temporary injunctions relating to – 3 – safety of an individual; hearings on petitions for risk protection orders; hearings on petitions for the appointment of an emergency temporary guardian; hearings to determine whether an individual should be involuntarily committed under the Baker Act or the Marchman Act; and hearings on petitions for extraordinary writs as necessary to protect constitutional rights.

New Order

Just today the Supreme Court issued a new Order keeping as is until April 17, 2020.  See here.   In addition, the Supreme Court makes reference to the need of those in custody to get out.   There is a reference to authority that gives Judges and Prosecutors ability to communicate and help those arrested on warrants out of jurisdiction to plead out, instead of being transferred across counties.

Need for action

This Order reflects what I feel will be a hot topic if/when the Corona Virus gets into the jail system.   This article explains the dangers and the need to avoid it.

https://news.yahoo.com/should-prisoners-be-freed-to-stop-outbreaks-behind-bars-223313072.html

Before this pandemic gets worse, or even penetrates the jail system, do what you can to help your loved one get released from jail while their case is pending. Retain an experienced criminal defense attorney to help your loved one. You can receive a FREE copy of my book “My Loved One has Been Arrested, What’s Next?” by clicking here.

Are the Courts Closed for the Coronavirus?

Are the Courts closed for the Coronavirus?

There is a lot a of confusion about what is open and what is not open as a result of COVID-19. As a result, there is confusion if the courts are open. In the State of Florida, the Supreme Court has essentially closed any non-essential court hearings, review the order here. In addition, they have tolled speedy trial issues during this time the courts are closed.  

What are essential court hearings?

Per the order, these are essential hearings: first appearance; criminal arraignments as necessary; hearings on motions to set or modify monetary bail for individuals who are in custody; juvenile dependency shelter hearings; juvenile delinquency detention hearings; hearings on petitions for temporary injunctions relating to – 3 – safety of an individual; hearings on petitions for risk protection orders; hearings on petitions for the appointment of an emergency temporary guardian; hearings to determine whether an individual should be involuntarily committed under the Baker Act or the Marchman Act; and hearings on petitions for extraordinary writs as necessary to protect constitutional rights.

Concerned for loved ones?

We are seeing many people concerned that their loved one is being held in custody for non-violent crimes while their case is pending, and their case is not moving forward. Furthermore, some people are concerned that their loved may be at a higher risk factor if they were to contract coronavirus.    Older inmates or those with prior health conditions may be at more risk if they were contract this virus.  

Many concerns come from stories from the inside, lack of proper medical care being one of them.   Our governments lack of preparedness nationally gives greater concern for those within the prison system.  While these individuals are incarcerated, they are human beings and deserve to be treated as such.

What can be done?

Several lawyers are filing for motions for pre-trial release due to the factors listed above. It appears in Florida; judges are still considering these motions. In Palm Beach County, the Chief Judge issued a similar order allowing hearings to proceed for motions for modification for pre-trial release or bond.

Act Now!

Before this pandemic gets worse, or even penetrates the jail system, do what you can to help your loved one get released from jail while their case is pending. Retain an experienced criminal defense attorney to help your loved one. You can receive a FREE copy of my book “My Loved One has Been Arrested, What’s Next?” by clicking here.

How Do I Get My Mugshot Removed?

I’ve been asked, “How do I get my mugshot removed?” You can make a request in writing to any website that depicts your mugshot. You must also send this as certified mail along with a copy of your identification to prove you are the person in the mugshot. After 10 days, if the mugshot is not removed, the website depicting your mugshot can be subject to civil penalties. This is under Statute 901.43. If there is a website that does not charge for the removal of your mugshot, you may never be able to remove it if they have no option to do so.

There is a more efficient way to clean up your record online and that starts with getting your case sealed or expunged. If you want to know more about how we can help you seal or expunge your case, give us a call at (561) 671-5995.

Can I get a DUI in a Self-driving Car?

I’ve been asked, “Can I get a DUI in a self-driving car?” Surprisingly, the answer is yes. How could this be? First, you need to take a look at Florida Statute 316.193. This statute states that a person must drive or be in actual physical control of a vehicle under the influence of alcohol or a controlled substance.

What is actual physical Control?

It’s defined in the statute as that the defendant must be in physical control or have the capability to operate the vehicle regardless if they are operating it. You could be in a self-driving car and as long as you have the ability to operate that vehicle, you can still be charged with a DUI.

So what If I don’t have a self driving car?

Even if you’re not in a self-driving car and you have a key fob in your pocket that has the ability to start or stop that vehicle, you could be guilty of DUI! Being asleep with the keys in your hand can lead to a DUI arrest.

Do you know the difference between a DUI and BUI?

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.

Smell Plus???

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.

Current Law

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.

Florida Legalizes Smoking Medical Marijuana

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”.

What changes?

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.