HERE ARE 20,000 reasons why to hire an experienced DUI Attorney

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.

What Happened to Senate Bill 118

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

 

 

Urine tests cannot be automatic when there is low BAC

Under Florida’s implied consent statute, you have given consent to submit to a breath, urine, or blood test in the state of Florida when you get your driver’s license. The police can only ask for one of these tests incident to a lawful arrest. The most common test administered is the breath test. However, when someone gives a sample under the legal limit, the police typically will ask for a urine sample.

 A request for a Urine Sample may not be legal

Under Florida statute316.1392(1)(b) a urine test must be incidental to a lawful arrest and who was in actual physical control of the motor vehicle while under the influence of chemical or controlled substances. In order for law enforcement to ask for a urine sample, there must be some indication a person is under the influence of a chemical or controlled substance. Simply blowing under the legal limit does not indicate that someone is under the influence of the chemical or controlled substance.

 There must be evidence of chemical or controlled substance use

Local courts have held merely blowing under the influence is not enough. In one particular case here in Palm Beach County, a person was arrested for DUI when the officer pulled the defendant over after driving at a high rate of speed. The officer noticed a slight odor of alcohol on the defendant and smelled a stale odor of burnt marijuana. The officer’s report only mention alcohol as a cause of impairment and did not include use of marijuana as an indicator of impairment. However, after the person blew under the legal limit urine test was requested. This defendants attorney successfully argued since there was no suspicion that the impairment was due to a chemical or controlled substance there was no reason to request the urine sample. As such, the sample was suppressed.

 What this means

What this means for you is that even though you may feel there is no defense for a breath or urine sample that put you over the legal limit, there actually may be one.

Where to do Community Service Hours?

This is a commonly asked question by my clients. When a Defendant has to do Community Service Hours for Probation, for Pre-trial Intervention Program, or for a Deferred Prosecution Agreement they have to do them where the Court will accept them.
Its not enough that a company that offer hours helps the community, it has to be with a designate non-profit organization.  The problem lies when someone thinks they have done community service hours for a non-profit organization, and it is not.
Take a look at these approved non-profit organizations to do your community services hours.

Where to Do Community Service Hours

License Plate Cameras are Coming

The City of Wellington are looking to get 30+ license plate cameras to be set up throughout the town.  Recently the town counsel voted in favor of the cameras.

What are 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.

ALREADY IN USE

Many Law Enforcement agencies already have them installed in their police vehicles.   Having them mounted stationary in a town will put eyes on a corner/intersection at all times.

What this means for you?

If you are driving in an area with an License Plate Cameras and you have an expired tag, you could get pulled over much easier than if you were in an area without these cameras.   Also, if you are traveling in a stolen car, you will be caught right away.   According to this article, a pilot program in Lake Worth 2-3 stolen vehicles per day were found.

 

CBD Legal? Illegal? Fact and Fiction

A question that has come up to me recently is whether or not CBD oil is legal in the State of Florida.   This is a tough question to answer because state law and federal law seem to be at odds with each other throughout the country. Some can argue that state law does not endorse use of CBD oil without a prescription.

What is CBD?

Let’s first talk about what CBD oil is.   CBD is cannabidoiol which is made from cannabis.   CBD does not produce a psychoactive effect when consumed for the most part.   This is different from THC which is the active ingredient in marijuana. (The thing that gets you high.)

Florida’s law

In 2014 Florida, legalized non-euphoric strain’s of marijuana. This in effect was CBD oil known as “Charlotte’s Web.”  In 2016, the legislature broadened the scope to encompass all types of marijuana. While it took legislature some time to get the regulations in place, it is a lot more commonplace to be prescribed now in 2018. The caveat of this law was the marijuana could not be smoked, it had to be taken in a different way.

In May, a judge in Tallahassee ruled that a law banning smokable medical marijuana was unconstitutional. This may give way to ending the statewide ban.

CBD

As discussed above, CBD oil has been legalized in Florida since 2014. However, it needs to be prescribed. Right now, the federal government has CBD oil as a schedule one substance, making it illegal. According to an article in Tech Crunch magazine, the FDA approved a drug to control seizures made from CBD.   The article points out that this may cause the DEA to reschedule CBD not as a scheduled one substance.

Conflict

So the conflict comes into play that state law allows for CBD oil under prescription, but the federal law would ban it. This is much along the lines of the use of recreational marijuana in states like California, Colorado, Washington, and Oregon. The states have all legalize recreational marijuana even though the federal government still classifies it as illegal.

The concern comes to me as people point out they can go to natural medicine shops and purchase CBD oil. One wonders how you can go into a place of business regulated by a local municipality and purchase a substance that is on the DEA schedule one substance list? The answer is, I don’t know. It seems like federal law enforcement really isn’t targeting these operations. And I don’t know what local law enforcement is doing.

The question I give in return, is until there is more clarification to whether or not CBD oil is legal for purchase without a prescription, do you want to make that purchase? As the adage goes you might be the wrap but you can’t beat the ride.

I would venture to say things might change rapidly in the next 6 to 12 months. The more commonplace people are using marijuana and CBD oil for beneficial purposes the more likely we will see some real change.   Check out this article here.

MUGSHOTS.COM owner Arrested

For years, this blog has been commenting on the problems with websites who obtain police booking photos and disseminating them for pecuniary gains. Mugshots.com owner, a Palm Beach County resident, was recently arrested for a violation of the California law prohibiting the tactics Mughots.com were implementing.

If you are new to this, essentially when someone is arrested, a local law enforcement agency will take a booking photo and make it a part of the court record. In Florida, in most instances, this would become a public record that would be normal to be published. Websites like mugshots.com and Bocabusted.com will take the information from the Sheriff’s office page and place it on their own page. Long after their cases over, even if the case is dismissed, or their found not guilty their picture and information remains. The accused then turns to these independent websites and ask them for removal. In many instances removal may not happen unless you pay them a fee.

California case says they made millions

According to this Palm Beach Post article, mugshots.com earned more than 2.4 million in fees between 2014 – 2017.   This is just one company. The sad truth is that there are several companies just like this that use the same tactics. The accused then ends up having to pay several sites to have their name cleared from the Internet.

1st Amendment Right

Many of these companies argue that the First Amendment allows them to publish true information. After all, the booking photo is based on an arrest, not on a conviction. The hardship comes into play, when someone who is innocently arrested, has their case dismissed, even have their case expunged by the court, has a record of an arrest by a private company.

New Florida Law

Starting July 1, 2018 Florida Statute 943.0586, it makes it illegal for these companies to publish or disseminate booking photos (mugshots) and asking for a fee to remove it.   All you will have to do is request in writing that it be removed.   If a record is not removed within 10 days it could subject the company to civil penalties.

Expungement

if your mug shot is online you will want to contact each site that has it displayed. Moreover, you will want to seal or expunged your case.   This process will remove any arrest (if eligible) from public viewing from the clerk’s website and from FDLE.

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