The DUI Setup
When people think of the “Tampa DUI Setup” many remember how three Tampa attorneys set up their opposing counsel for a DUI arrest in 2013. The setup occurred during a defamation trial between radio personality Todd “MJ” Schnitt and shock jock Bubba the Love Sponge Clem.
In order to set up the DUI arrest, one of the attorneys phoned a close family friend, Sergeant Raymond “Ray” Fernandez, who was the head of the DUI enforcement unit with the Tampa Police Department.
Justices with the Florida Supreme Court called what happened next “among the most shocking, unethical and unprofessional” conduct they had ever witnessed by lawyers. The three attorneys involved in the setup with the Tampa Police Department were eventually disbarred. Other than Sgt. Ray Fernandez eventually being fired from his $92,000-a-year job and dozens of cases being dropped, the Tampa Police Department largely avoided any consequences from the scandal.
A few of their policies were changed and the DUI enforcement unit was reorganized, but many of the problems that permitted the DUI set up to occur in the first place remain the same. This article explains why the DUI arrest feels like a complete setup.
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Attorneys for a DUI Setup in Tampa, FL
After a DUI arrest, find an experienced criminal defense attorney in Tampa, FL, to help you fight the DUI charges. Our four attorneys are focused on drunk and impaired driving defense after a DUI arrest by the Tampa Police Department.
We fight cases involving a breath, blood or urine test, or the refusal to submit to one of these chemical tests. We are familiar with the tactics used by DUI enforcement officers with the Tampa Police Department, the Hillsborough County Sheriff’s Office, and the Florida Highway Patrol. We are also familiar with the standard operating procedures for each of these agencies.
Our main office is conveniently located in downtown Tampa in Hillsborough County, FL. We have a second office located in New Port Richey in Dade City, across from the courthouse at the West Pasco Judicial Center.
Whether this is your first arrest or a second offense, we can help. Contact us for a free consultation to discuss the facts of your cases, the typical penalties imposed, and ways to fight for an outright dismissal or reduction in the charges.
Reasons the DUI Feels Like a Set-Up
Reasons the DUI might fell like a set up can include:
- the officer was waiting outside of a drinking establishment looking for drivers who recently consumed alcohol;
- the officer writes the same thing in all DUI reports – “the driver had bloodshot and watery eyes, a flushed face, slurred speech, and was unsteady on his feet”;
- the officer doesn’t have to read Miranda at the roadside during a typical DUI investigation;
- the officer never explains that performing the field sobriety exercises are completely voluntary;
- although you have the right to remain silent, that right doesn’t apply to the question about whether you will submit to a breath test;
- the officer can say you “refused” to submit to the breath test, even if the officer never took you in front of the breath test machine;
- if the officer thinks you might blow below the legal limit of .08, the officer can subtly encourage you to refuse the breath test through his words and actions;
- although you are entitled to an independent blood test after taking the breath test, the officer never told you about that option;
- the Intoxilyzer 8000 breath test machine used in your case is more than twelve (12) years old and no one in Florida has ever seen the source code;
- the jury is not told that you could be sentenced to jail time;
- the jury is not told that you have no prior arrest or conviction.
The Officer Was Waiting for You
DUI enforcement officers often wait outside bars and nightclubs while looking for drivers who have been drinking. In fact, the Tampa Police Department (TPD) previously published a list of the top ten locations where DUI drivers are stopped in Tampa, FL.
The Field Sobriety Tests are Voluntary
Although the officer can ask you to submit to field sobriety exercises, the officer is not required to tell you that your participation is completely voluntary. Once you understand the field sobriety exercises, you will see that these exercises are a setup for failure.
While the officer will claim that the exercises were used to determine “impairment of your normal faculties,” the exercises required you to do completely abnormal things like stand on one foot or put your finger to the tip of your nose.
If you refuse the “voluntary” field sobriety exercises, that decision can sometimes be used against you at trial. In some cases, the prosecutor will argue that your refusal to participate in the “voluntary” exercises show your “consciousness of guilt.”
The Officer Doesn’t Read Miranda Prior to the Arrest
During a routine roadside investigation, the officer is not required to read you Miranda Warnings. In most DUI investigations, the officer asks all of the incriminating questions prior to the formal arrest and reading of Miranda. In many DUI cases, the arresting officer never reads Miranda at all.
The Intoxilyzer 8000 Machine is Mysterious
The breath test can also feel like a setup since your breath disappears out the other end of the tube. In a DUI breath test case, you have no opportunity to have the breath sample retested. The breath test affidavit is used to determine your fate.
Did you know the Intoxilyzer 8000 was put into evidentiary use in Florida in 2006? That was more than 12 years ago. The source code for the Intoxilyzer 8000 has never been disclosed to any official in Florida. In fact, after years of litigation to get the source code, the company that manufactured the machine admitted that parts of the historical record of the source code are actually missing.
Without the proper representation, you have no way of knowing if the test was performed properly or if the reading is accurate and reliable.
Asking for an Independent Blood Test
Although you have the right to request an independent blood test after taking the breath test, the officer probably never told you about this option. Even if you knew to ask, the officer might have refused to accommodate that request.
Even worse, if you refused to submit to a breath, blood or urine test, then the prosecutor will argue that the refusal means you were “conscience” of your guilt. In some cases, a person has a perfectly good reason for refusing to submit to the test that has nothing with “consciousness of guilt.”.
You Can’t Speak to an Attorney Before Deciding
If you arrested for DUI and ask to speak with an attorney before deciding whether to submit to a Breathalyzer test, the police do not have to accomodate that request in order for the beath test result or alleged refusal to submit to be admissible. See Kurecka v. State, 67 So. 3d 1052 (Fla. 4th DCA 2010). The administration of a blood, breath, or urine test for alcohol or other substances at the direction of a law enforcement officer does not require the presence of counsel, even if requested by the person being tested.
Finding a DUI Defense Lawyer in Hillsborough County, FL
While a DUI might sound like a complete setup, your criminal defense attorney can help you level the playing field. Your attorney can expose the tactics used by the arresting officer and the accuracy of the breath test reading. If you refused to submit to testing, your attorney can show all of the reasons why an innocent person might refuse the test.
Our attorneys have an office in downtown Tampa in Hillsborough County, FL. We also have a second office in New Port Richey in Pasco County, located across from the courthouse at the West Pasco Judicial Center.
We are familiar with the tactics used by DUI enforcement officers with the Tampa Police Department, the Hillsborough County Sheriff’s Office, and the Florida Highway Patrol. Let us use that experience to fight your case.
This article was last updated on Tuesday, November 12, 2019.