DUI Case Results in 2012
DUI Charges Dropped Completely with a Nolle Pross
In case number CT-7448-XXX – On October 24, 2012, at a final pre-trial conference before the Honorable James Dominguez, County Court Judge in Tampa, the prosecutor announced a “Nol Pross” which completely dropped all charges against our client. Our client had been arrested for DUI by Officer Michael Tinney of the University of South Florida Police Department.
USFPD Officer Tinney alleged that our client failed to drive in the designated lane, crossed the solid yellow line to the right then swerved to the left and cross the dotted line affecting other traffic. After the stop, the officer alleged that our client had bloodshot glassy eyes, a strong odor of alcoholic beverages on his breath. During the field sobriety exercises, the officer alleged that our client stumbled and swayed while performing the field sobriety exercises. Our client took the breath test with a reading of .057 and .059. The officer suspected marijuana use and requested a urine test.
2nd DUI within 5 Years Reduced to Reckless
Case No. 12-CT-971 – On October 16, 2012, Judge Donald E. Scaglione granted our motion to exclude any mention of the urine test our client took. (The court denied our request to suppress the alleged refusal of the breath test.) We filed the motion to suppress the breath and urine test because the officer had no valid basis to ask for both a breath and urine test under the circumstances. As a result of the motion being granted in part, the prosecutor agreed to reduce the charge to “Reckless Driving.”
It was alleged that Deputy William Cooper with the Hernando County Sheriff’s Office stopped our client’s vehicle for weaving back and forth, crossing the right dotted line at least five times before swerving back to the left lane, and making a wide left turn running off the pavement. After initiating the traffic stop the officer reported smelling a distinct odor of an alcoholic beverage on the breath, mumbled speech, a flushed face, watery and bloodshot eyes and pupils that were dilated and reacted poorly to light. The officer also reported that our client performed poorly on the field sobriety exercises. After the arrest, the officer demanded that our client submits to both a breath test and a urine test. The officer alleged that our client refused to take either the breath or the urine test.
DUI Refusal Reduced to Reckless
CT-9515-XXX – On October 10, 2012, the case was resolved before Judge Dick Greco, Jr., County Court Judge in Tampa, Hillsborough County, FL, with a negotiated plea after the State Attorney’s Office agreed to reduce the case to reckless driving. Officer James Blanchard with the Tampa Police Department, DUI enforcement unit, stopped our client’s vehicle. He reported that our client had a distinct odor of an alcoholic beverage on his breath, bloodshot and glassy eyes, and slurred speech. Officer Blachard alleged that our client refused to perform field sobriety exercises or take a breath test.
DUI Refusal Reduced to Reckless
CT-8196-XXX – Also on October 10, 2012, this DUI charge was resolved before the Honorable Dick Greco, Jr., County Court Judge in Hillsborough County, with a negotiated plea after the prosecutor agreed to drop the charges down to “reckless driving.” In this case, a DUI enforcement officer with the Tampa Police Department, John D. Vallejo, reportedly stopped our client’s vehicle for following too closely (within a few feet) behind the officer’s vehicle. After the stop, the officer alleged detecting a distinct odor of an alcoholic beverage, glassy eyes, and a physically unsteady appearance. The officer alleged that our client performed poorly on field sobriety exercises and refused to submit to a breath test.
DUI Dropped to Reckless Driving with Withhold of Adjudication and No Probation
CT-006603-XXX- On July 23, 2012, the prosecutor dropped the charge of DUI down to reckless driving and agreed to a “withhold of adjudication” so our client would be eligible to seal the criminal record. Because the client had already completed DUI school he was not required to be on probation. His case was resolved that day for a withhold of adjudication and the payment of higher court costs.
The case involved an arrest by an officer with the DUI enforcement unit of the Tampa Police Department. The officer alleged that our client drove in the left lane with his right turn signal on, changed lanes cutting off another vehicle, drove 45-60 mph in a 40 mph zone, drifted inside his lane, drove in two lanes, and followed another vehicle too closely. The officer alleged that our client “refused” to take a breath test after performing poorly on the field sobriety exercises.
All Charges Dropped on Day of Jury Trial
The prosecutor dropped all charges on July 23, 2012 (the day the case was scheduled for jury selection in Tampa in case number CT-001757-XXX). This DUI case involved a breath test reading of .065 and .067 which is below the legal limit. The case also involved a urine test allegedly showing a positive reading for 11-Nor-9-carboxy-delta-9-tetrahydrocannabinol. However, since the FDLE crime lab report did not have any quantitative findings to show when the marijuana might have been consumed we argued that the results should not be allowed at trial. Prior to that issue being decided, the prosecutor dropped the charges.
Illegal DUI Checkpoint Lead to Third Lifetime DUI in New Port Richey Being Dropped Completely
On July 12, 2012, an Assistant State Attorney filed a “Nolle Prosequi” in case number CTC11-0768XBJTWS-17 which stated that “…further investigation of this case by the State Attorney’s Office has revealed that further prosecution is not warranted.”
The nol pross was filed after we filed a Motion to Suppress all evidence in the case because the DUI checkpoint guidelines were inadequate and the officers in the field failed to follow the guidelines. At first, the State Attorney’s Office indicated it would contest the motion, filed a witness list with 11 additional witnesses, filed 11 witness affidavits from officers alleging that no violation occurred, as well as a FHP Checkpoint Pre and Post Operational Detail Briefing Roster, and other documents.
After we received all of the affidavits we showed the prosecutor that although the Operational Plan required only every third (3rd) vehicle would be stopped, in the background of the arrest video you could clearly see that officers were not following that requirement.
The video showed that the officers were pulling over three and four vehicles in a row or letting through several vehicles at one time. In fact, during the video approximately 60% of the vehicles were stopped even though only 33% of the vehicles should have been stopped. Assistant State Attorney Vincent Petty was at the scene during the entire roadblock and was also assigned to litigate the motion to suppress although he did not sign the nol pross form. Read more about the Pasco County DUI Checkpoint.
DUI with Injury Charge Dropped Completely and Felony Leaving Scene with Injury Reduced to Misdemeanor after Car accident near USF’s campus
July 11, 2012 – Our client was originally arrested for leaving the scene of a crash with injury, a third-degree felony, and DUI with minor injury and property damage in case number 12-CF-002346 / 6184-XFA. Ultimately, the State Attorney’s Office filed the leaving the scene charge as a misdemeanor instead of a felony. The arresting officer, Steven L. Buchanan, with the Tampa Police Department alleged that our client rear-ended another vehicle causing serious property damage and minor physical injury before fleeing on foot after a crash near the USF campus.
The accident was witnessed by two civilian witnesses who allegedly saw our client driving and fleeing the scene. The officer alleged that our client owned the vehicle and was located lying on the ground between two dumpsters a short distance away, performed poorly on field sobriety exercises, smelled of alcohol, had slow-slurred-mumbled speech, and bloodshot-watery-glassy eyes, and an unsteady appearance. On July 11, 2012, a few weeks before the scheduled jury trial the State Attorney’s Office agreed to drop the DUI with property damage charge completely (meaning the client did not enter a plea to any reduced charge such as DUI or reckless driving). The client was allowed to enter a plea to the second-degree misdemeanor charge of leaving the scene and paid a fine without being required to be on probation.
DUI with Failure to Submit to Breathalyzer (Refusal) Reduced to Reckless Driving with Adjudication Withheld in Polk County, FL (2012CT-000910)-
On July 2, 2012, the day that jury selection was scheduled to begin, the State agreed to reduce the DUI charge to reckless driving and to not object to the Court withholding adjudication. The Court accepted the plea and agreed to withhold adjudication. The facts of the case involved an arrest by Officer Cory A. Suttle with the Bartow Police Department after he alleged our client ran a stop sign.
The officer alleged that our client looked intoxicated and performed poorly on a series of field sobriety exercises before refusing to submit to a breath test. One problem in the case for the prosecution was that the officer alleged that his audio was not working properly at the time of the arrest which made it difficult to know whether the officer had administered the field sobriety exercises correctly.
DUI with Property Damage (breathalyzer reading of .149 /.149) Reduced to Reckless Driving
On April 19, 2012, two business day before the scheduled jury trial, the prosecutor offered to reduce a DUI with Property Damage (FS 316.193(3)(c)(1)) to reckless driving, with probation and special conditions of DUI school, $1,000 fine plus court costs and 50 hours of community service (with 100% buy out option at $10 per hour). The prosecutor also agreed to drop the charge of Hit and Run Crash with Property Damage (FS 316.061(1)). The Judge in Division “E”, Hillsborough County accepted the plea.
The facts of the case showed that Officer Kelly Stead with the Tampa Police Department alleged that our client hit another unoccupied vehicle in the parking lot of a bar causing heavy front end damage. After being stopped a short distance away from the crash, Officer Stead alleged that our client had glassy eyes, slurred speech, inconsistent responses, admitted to drinking alcohol at the bar, performed poorly on the field sobriety exercises and blew a .149 and .149 on the breathalyzer instrument.
Pinellas County DUI Reduced to Reckless Driving with a Withhold of Adjudication and No Probation
On April 12, 2012, the day jury selection was scheduled to begin, the prosecutor offered to reduce a DUI refusal case to reckless driving with a requirement that the client pay $606.00 in court costs. The plea negotiation included a requirement that the Court would “withhold adjudication” so that the client would not be convicted of any criminal offense making her eligible to seal any record of the arrest or prosecution. The Honorable John D. Carballo, County Court Judge in and for Pinellas County accepted the plea. Because the client was able to pay the costs the same day she was not placed on probation.
The case involved an arrest by Nicholas Giordano, 6010, with the Clearwater Police Department who alleged our client was speeding near the Sand Key Bridge and had an odor of an alcoholic beverage emanating from her breath. Officer Nick Giordano also alleged she had bloodshot eyes, a pale face, was unsteady on her feet and used her car door for assistance when she exited the vehicle. The officer alleged that she admitted consuming alcohol, performed poorly on field sobriety exercises and refused to provide a breath sample to determine her breath alcohol concentration.
Second DUI within 5 Years Reduced to Reckless Driving (9457-XEW)-
On March 19, 2012, the day of jury selection, the prosecutor offered to reduce a second DUI within 5 years of a prior DUI conviction to reckless driving. We had previously picked a jury in the case but halfway though the case the Honorable Judge James V. Dominguez declared a mistrial. The case was reassigned to Honorable John Conrad, Judge in County Court, Tampa, Hillsborough County.
The case involved an arrest made by Deputy Christopher C. M. Fauskee, with the Hillsborough County Sheriff’s Office who alleged that our client failed to move over or reduce speed for his law enforcement vehicle which had its emergency equipment activated on the side the Interstate. The officer alleged that our client was driving 65-70 mph when she passed within a few feet of where he was standing on the side of Interstate 75. After the traffic stop and roadside sobriety exercises, the officer arrested our client for DUI. At central breath testing it was alleged that our client blew a 0.116 and 0.108 on the Intoxilyzer 8000 breathalyzer.
Prior to those readings, our client has made several attempts to blow involving an “insufficient sample” of air under 1.1 liters. We argued that the evidence showed that our client has a severe case of scoliosis and diminished lung capacity which lead to an inaccurately high breath test reading. At the time of the test, the “flow sensor” on the instrument had never been calibrated by FDLE. We argued that the breath test reading was inaccurate which was supported by the video from the roadside which showed that our client did not appear to exhibit the normal signs of intoxication and performed relatively well on the field sobriety exercises.
DUI with breath test reading of .146 Reduced to Reckless (7962XEF)-
On March 15, 2012, we resolved a drunk driving case pending before the Honorable Dick Greco, County Court Judge in Tampa, Hillsborough County, FL. The prosecutor offered to reduce the DUI case with a breathalyzer reading of 0.145 and 0.147 to reckless driving. The arresting officer, Nathanael Taveras with the Tampa Police Department alleged that our client recklessly and improperly backed up in a crowded parking lot “almost” striking pedestrians including a 6-year-old child outside the “Monster Truck Show.”
The officer also alleged that our client smelled of an alcoholic beverage, was unsteady on his feet, had bloodshot watery eyes, and had slow and lethargic movements with a fixed gaze. The officer alleged that our client did poorly on the field sobriety exercises, and blew a 0.145 and 0.147 on the breathalyzer which was over the legal limit of 0.08. In this case, we engaged in a long and bloody battle to obtain the source code for the Intoxilyzer 8000 (Florida’s approved breathalyzer). Without the source code, it was impossible to determine why certain obvious glitches that were occurring in the machines. Although we did not obtain the source code, we believe that the motions that were filed and litigated contributed to the prosecutor eventually making a reckless offer to resolve the case short of trial.
DUI with breath test reading over .08 Reduced to Reckless (8591-XEF)-
On March 15, 2012, in a different case pending before the Honorable Dick Greco, County Court Judge in Tampa, Hillsborough County, FL, the prosecutor offered to reduce the DUI case with a breathalyzer reading over the legal limit of .08 to reckless driving. The arresting officer, Steven Wilson with the Tampa Police Department alleged that our client fell sleep with the door to his vehicle opened in front of a CVS drug store.
The arresting officer alleged that our client’s performance on the field sobriety exercises showed clues of impairment. The officer said he had a distinct odor of an alcoholic beverage on his breath, admitted to consuming alcohol, swayed as he stood, and had bloodshot watery eyes, and his speech was slightly slurred. This case also involved numerous motions to obtain the source code and other materials on the Intoxilyzer 8000 from the State and the company that manufactures the machine.
DUI Reduced to Reckless with a Withhold of Adjudication in Brooksville, Hernando County, FL (2011-CT-0017xx)-
On March 9, 2012, our client’s charge of DUI was reduced to reckless driving. It was part of the negotiated plea that the court would withhold adjudication (so the client was eligible to seal any record of the arrest or prosecution). It was also part of the negotiated plea that the client would serve one-day UNSUPERVISED probation to pay court costs of $518. Our client was not required to complete DUI, community service hours, or complete any of the other conditions typically required.
Office Steven Johnson with the Hernando County Sheriff’s Office alleged that our client refused to submit to a “lawful and approved breath test.” We showed, however, that no lawful or approved test actually existed in Hernando County on the day our client was arrested because the breath test operator had unexpectedly resigned in protest of testing conditions at the Hernando County jail.
NOT GUILTY Verdict in DUI Refusal Case in New Port Richey, FL
On January 31, 2012, a jury returned a “Not Guilty” verdict in a case involving only one charge of DUI before the Honorable Judge Debra Roberts, Judge in Pasco County Court for New Port Richey, FL. Our client was charged with driving under the influence of alcohol. He was stopped for allegedly driving through a steady red light and then stopping in the roadway. The stopping officer alleged that he had a strong odor of alcohol emitting from his breath, bloodshot watery eyes, and slurred speech.
The stopping officer alleged that he had fumbling fingers and dropped documents while looking for his insurance card before questioning the officer about what he was looking for. An officer with the Pasco County Sheriff’s Office DUI enforcement unit (called the STEP unit), Deputy Bell was called. He completed a roadside investigation and arrested the client for DUI. The client allegedly refused to submit to breath testing. Jury selection took place on January 30, 2012. After an all-day trial on January 31, 2012, the jury deliberated for 48 minutes before returning a NOT GUILTY verdict. Our client elected not to testify at the trial.
DUI Refusal with Property Damage Reduced to Reckless (CT-009562-XXX)-
On January 23, 2012, immediately before jury selection was scheduled to begin before the Honorable Dick Greco, Jr. County Criminal, Division D, the prosecutor offered to reduce the DUI with property damage charge to reckless driving. (The client’s driving record showed that she had previously been charged with DUI and that charge was also reduced to reckless driving.)
This case also involved an arrest by Tampa Police Department Officer James Blanchard who (prior to this arrest) left the TPD DUI Enforcement Unit. Nevertheless, TPD Officer James Blachard continues to make DUI arrests as a patrol officer. As part of the negotiated plea to reckless driving the client was required to complete DUI school, pay a fine and court costs, and perform community service.
DUI with breath test reading of .160 and .172 with Property Damage Reduced to Reckless (Adjudication Withheld) (2011CT-001808xxaxmx)-
On January 12, 2012, in a drunk driving case pending before the Honorable Donald Scaglione, County Court Judge in Brooksville, Hernando County, FL, the prosecutor offered to reduce the DUI case with a high blow of .160 and .172 to reckless driving. Judge Scaglione agreed to accept the plea and withhold adjudication so that the client would be eligible to seal any record of the arrest and prosecution.
The client agreed to pay a fine and court costs, and complete 50 hours of community service. The client was accused of DUI after a single-vehicle car crash in which it was alleged he lost control of his vehicle and it left the roadway and struck a tree. The case was resolved after we filed several motions attacking the qualifications of the breath test operator and agency inspector, and alleged abnormalities with Hernando County’s DUI breath testing procedures, including an allegation that the breath test instrument was not in substantial compliance with Florida’s Administrative Codes.