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June 28, 2013

Two Sisters Arrested Simultaneously for DUI

Two South Florida women were arrested for driving under the influence (DUI) at the same time and for driving the same car. As a Monroe County police officer was attempting to stop a vehicle for a traffic infraction, the driver inexplicably stopped in the middle of U.S. 1 and switched seats with the passenger. The only problem is the officer saw the switch which put both sisters in actual physical control of the vehicle. The switch was allegedly captured on the dash board camera located in the officer's vehicle. Both defendants were arrested and booked into the Monroe County Detention Center and charged with DUI. Any Miami criminal defense lawyer that defends DUI cases will tell you that this situation is an unusual occurrence.

The two sisters arrested were Steffany and Vanessa Miranda. The police report indicates that Steffany was operating the vehicle as it traveled down U.S. 1. After the vehicle stopped, Vanessa jumped into the driver's seat switching places with her sister. Unfortunately, the officer that made the traffic stop observed the switch. The sisters were arrested on DUI charges and taken to the Monroe County Detention Center. Steffany refused to submit to breath alcohol testing, while Vanessa submitted to the test. Her reading came back at .127 and .129. The legal limit in the State of Florida is .08.

To prove the crime of DUI, the prosecutor must prove that a defendant drove or was in actual physical control of a motor vehicle. In most DUI cases, a law enforcement officer will observe a driver commit a traffic infraction and stop the vehicle. Once the officer approaches the vehicle and makes contact with the driver, the element is easily proven. In other cases, it is not so easy to prove the element of actual physical control (APC). In many accident cases, the driver has already exited the vehicle prior to the arrival of law enforcement. In multi-car accidents, drivers or passengers in the other vehicles will be required to testify to prove that the defendant was in APC of the vehicle. In one car accidents, witnesses or bystanders who observed the accident will be required to testify that the defendant operated the vehicle prior to the accident and exited the vehicle.

If the prosecution can establish APC, the next element to be proven is that the defendant was either under the influence of alcoholic beverages or a controlled or chemical substance to extent his or her normal faculties were impaired, or that the defendant had a blood or breath alcohol level of .08 or more. If the prosecution has a blood test that exceeds .08 they will attempt to prove the case using these test results. If a driver refuses to submit to the test, the prosecution will use the result of the field sobriety exercises commonly deployed by law enforcement in DUI investigations. The results of the exercises are far more subjective that the results of blood or breathing testing. It is always more difficult for the state to prove the offense of DUI relying on the results of the field exercises. Note that drivers are not required to perform roadside exercises. Experienced DUI attorneys always recommend to refuse the breath test and the field exercises as this will limit the evidence necessary for the prosecution to prove the case.

One Car, One Traffic Stop, Simultaneous DUI Arrests in Keys for Miami Sisters, Miami Herald.com, June 27, 2013.

May 16, 2011

Drastic Changes for DUI Cases

The state attorney's office has finally come to its senses and realized that first-time DUI offenders should not be scarred with a permanent criminal record. For as long as any Miami criminal lawyer can remember, first-time DUI offenders faced the real possibility of a permanent criminal record in the event of a plea to first minimums for driving under the influence. Although the punishments for a first DUI were never onerous; generally sixth months of probation, DUI school, victim impact panel, driver's license suspension, community service hours, fines and court costs, the stigma of a permanent criminal conviction has always loomed. A plea or finding of guilt after a jury trial always resulted in an adjudication of guilt or conviction. An adjudication of guilt will prevent an individual from ever taking advantage of the sealing or expungement laws made available in the State of Florida.

In prior years, the only way to clear a criminal record after a DUI arrest was to receive a "nolle pros" or dismissal from the state attorney's office or if a case was weak enough, the state may have offered a "breakdown" to a reckless driving along with a withhold of adjudication. These results only occurred if witnesses failed to appear in court on the day of trial or the evidence was so woefully insufficient that the state had to dismiss the charge or offer a breakdown. This situation was stressful to clients and criminal attorneys alike. While there are many defenses to DUI cases, a jury trial always held the potential risk of incarceration in the event of a guilty verdict. History shows that strong cases were dismissed while weak cases were prosecuted based on who showed up to court on time.

Miami-Dade County has recently announced that there is relief for first-time DUI offenders. New guidelines have been provided by the state attorney's office setting forth which offenders will not face a conviction for a first DUI. Critics argue that the new policy gives the impression that DUIs are no longer a serious offense. Proponents claim that too many defendants are walking out of the courthouse with no punishment because witnesses, both civilians and officers, fail to appear for trial. Under the new "Back on Track" program, defendants accused of DUI will have to enter a plea to the charge. In exchange for the plea, defendants will have to enter and successfully complete an outpatient drug and alcohol program, an interlock ignition device will placed on their vehicle, a DUI school and community service hours will have to be completed. If a defendant successfully completes the program, the DUI conviction will be converted to a reckless driving with a withhold of adjudication. This result will allow an individual to participate in the sealing and expunging process.

Not all first-time DUI offenders will be eligible for the program. Defendants charged with a DUI that were involved in accidents, have a previous DUI conviction(s) or reckless driving conviction(s), or had children in the car at the time of the offense will not be eligible for the program. The Miami-Dade State Attorney's Office has only released preliminary information on the program and has stated that more information will be forthcoming. Bear in mind that the new policy does not mean that all individuals arrested for DUI should enter into the program. The best bet is to seek the advice of an experienced Miami DUI lawyer and see if there are any defenses to the case. Why enter the program if you can beat the charge in court? The new program provides a safety net for defendants who determine with the assistance of his or her lawyer after thoroughly reviewing and preparing the case for trial, that there is a better chance of a conviction than an acquittal. In any event, the new policy will help people get on with their lives after making one minor mistake.

State Attorney Offers DUI Mulligan Program, NBC Miami.com, May 10, 2011.

February 21, 2011

Homestead Man Pleads Guilty to DUI Manslaughter Charges

A local man entered a guilty plea in circuit court to three counts of DUI manslaughter. DUI manslaughter is a second degree felony punishable up to fifteen years in prison. He was also arrested and charged with one count of battery on a firefighter which is a third degree felony punishable up to five years in prison. Although the defendant entered a guilty plea last week, his sentencing hearing was put off until April 28, when Circuit Court Judge Rosa Rodriguez will determine his fate. The defendant appeared remorseful when he entered the guilty plea with the assistance of his Miami criminal defense lawyer.

On January 25, 2009, the defendant was barreling down US1 after a night of drinking and crashed into the rear of a Ford minivan killing three children ages, 10, 7 and 4. According to police reports, his blood alcohol level was more than 3 times the legal limit. To make matters worse, the defendant was charged with battery of a firefighter for fighting with a rescue worker who tried to extricate him from his vehicle. Although arrested at the same time for the DUIs, the defendant did not enter a plea into the felony battery charge as the charging documents were never consolidated. It is not clear why the charges were never consolidated since the offenses occurred at the same time. Depending on the sentence handed down by the judge, the state may dismiss the battery charge.

The case is unusual because the defendant entered a guilty plea with out the protection of an agreement with the state. In the large majority of cases in Miami-Dade County, defendants enter guilty pleas with set sentences agreed to by both the defendant and the prosecution. The defendant in this case pled up to the court which means the judge can sentence him anywhere within the sentencing guidelines or even below the guidelines if the defense attorneys convince the judge that a downward departure is appropriate. While it is rare to plead up to the court without a plea agreement, defendants are sometimes forced into this position when there is overwhelming evidence and the prosecution is unwilling to extend a plea offer.

As in many cases, prosecutors are unwilling to extend plea offers on sensitive cases that garner a lot of media attention. This case has been in the media for several reasons. Obviously, the death of three children caught the attention of the media. Moreover, the defendants driving record was horrible with 29 citations over the past 8 years. To make matters worse, the defendant had a prior DUI conviction. Many wondered after all of the citations, how could it be that the defendant still had a valid driver's license. Another issue in the case was a dispute between the lawyer representing the parents of the deceased children and the lawyer representing the defendant. The criminal lawyer accused the civil lawyer of attempting to get the defendant to lie about the whereabouts of his drinking. In the end, enough evidence could not be gathered and the lawyer was never charged. Unfortunately, the lack of defense and media sensitive nature of the case did not allow any options for the defendant.

Homestead Man Pleads Guilty in DUI Crash that Killed Three Children, Miami Herald.com, February 16, 2011.

August 24, 2010

Local Public School Teacher Charged with DUI

A local South Florida elementary school teacher was arrested on August 4, 2010 for the offense of driving under the influence (DUI) and other felony charges. Police officers from the Homestead Police Department indicated in the arrest affidavit and accompanying reports that Joann Tomas, of Dr. Williams Chapman elementary school, was weaving in an out of traffic when she was pulled over to the side of the roadway. The police officers noticed that the defendant had watery eyes, a flushed face and slurred speech. Tomas had difficulty finding her driver's license, registration and proof of insurance. While exiting the vehicle, she lost her balance and had to use the vehicle to support herself to prevent falling to the ground. The officers requested that Tomas perform field sobriety exercises to determine if she was impaired. The officer directing the exercises determined that she did not perform to standard and arrested her for DUI. A Miami criminal defense lawyer that defends DUI cases will tell you that this is a pretty standard report filed by police officers. However, in many cases, even if an arrest affidavit alleges facts that appear to be unbeatable, there are still defenses to a case of this type.

The first thing that should be looked into when establishing a defense to DUI is to examine the driving pattern in a particular case. While weaving in and out of traffic and failing to maintain a single lane are not the best factual scenarios when defending a DUI, speeding and following too closely are not driving patterns that indicate that a driver was impaired. To properly evaluate a case, defense counsel must look at the reason for the initial stop. In some instances, if the officer did not have a reasonable suspicion that a traffic infraction had been committed, a motion to suppress should be filed, and if granted, would preclude the prosecutor from introducing any evidence that was obtained as a result of the illegal stop. As in any drug possession or drug trafficking case, if a motion to suppress is granted, the state can not proceed to trial as the majority of the evidence collected by the police is inadmissible at trial.

Another bit of evidence that the police and the prosecutor like to hang their hat on are the physical characteristics of the defendant noted by the police officers. The favorite buzz words used by the police are flushed face, bloodshot eyes and slurred speech. There are a number of explanations that can be presented to a jury explaining these conditions. For example, a day out in the sun can result in a flushed face or bloodshot eyes. Slurred speech can be attributed to a strong accent or a medical condition. Of course, officers always note that the driver had a strong odor of alcohol coming from his or her breath. But any honest officers will testify that the odor does not indicate how much or what a person had to drink.

Roadside exercises are difficult to perform drunk or sober. The results of the exercises are very subjective. The best course of action for anyone pulled over for a DUI investigation is to refuse to perform the exercises. While this course of action will lead to an arrest, keep in mind that the officer will probably make the arrest anyway, so why not improve your chances in court. The same goes for the breathylizer. While a refusal will result in an arrest, a breath reading over .08 is more difficult to overcome in court. If you blow .00, the officers will request that you give a urine sample to see if you have any drugs in your system. Refuse that test as well. It is much easier to get a favorable result in state criminal court on a double refusal case, than a case in which roadsides were performed and a breath sample taken. Also remember, invoke your rights to speak to a criminal attorney. Any statements proved to the police regarding alcohol consumption will be used in court to prosecute the case.

Always remember to be polite. Tomas became confrontational with the arresting officers. At the jail, she removed her handcuffs and allegedly threw them at an officer. It is also alleged that she kicked an officer in the groin and attempted to punch another. As a result of her actions, she was also charged with battery on a law enforcement officer and resisting an officer with violence Remember, it is difficult enough to beat a DUI charge, do not compound the problem with more serious felony charges.

Miami-Dade Teacher Jailed in DUI Case Won't be Returning to Class, The Miami Herald.com, August 18, 2010.

February 15, 2010

Lawyer Wears Wire Attempting to Catch Other Lawyer

In an unusual case, prosecutors requested that a criminal attorney as part of a investigation wear a wire in an attempt to catch another lawyer allegedly involved in fraud. The defense lawyer represents a Homestead man currently charged with DUI manslaughter that resulted in the deaths of three children. Gabriel Delrisco is currently facing charges in Miami-Dade County Circuit Court. Apparently, victims' family members requested that Delrisco provide untrue testimony regarding where he was drinking prior to the accident in an effort to beef up the civil lawsuit. The family encouraged Delrisco to say that he was drinking at a Homestead bar and strip mall in an effort to sue a defendant with deep pockets. In exchange, the family would request a lighter prison sentence at the conclusion of the case. Very often, the next of kin in cases where family members are killed have a significant impact on the length of sentence sought by state prosecutors.

The Miami criminal defense lawyer representing Delrisco relayed the information to the Miami-Dade County State Attorney's Office. As a result, an investigation was opened and the defense attorney was requested to wear a wire in an effort to implicate the attorney who filed the civil suit. Apparently, the wire did not aid the investigation and the case has been closed. As the investigation became public, animosity between the Miami criminal defense attorneys are brewing. The defense attorney representing the civil lawyer suspected of fraud commented that the cooperation with prosecutors was unprecedented and that he was stunned regarding the unattractive prospect of a criminal defense attorney posing as an undercover informer for the police.

Delrisco is facing 50 years in state prison for the death of ten year-old boy, a seven year-old and four year-old girl. Court records indicate that the defendant's blood alcohol limit was more than three times the legal limit. He is charged with three counts of DUI manslaughter with each count carrying a maximum sentence of 15 years. He is also charged with battery on a firefighter for fighting with a person attempting to remove him from the twisted wreck that used to be his SUV. Delrisco is facing a maximum penalty of 5 years in prison for this offense. It is unclear what sentence prosecutors are seeking in the case, but Delrisco is believed to have a past DUI record and an abominable traffic record.

Obviously, the most serious DUI charge is that which results in the death of another. However, other misdemeanor DUI charges can land a person behind bars. The Florida legislature has passed laws in an effort to curb DUI recidivism. If anyone is found guilty or enters into a plea on second DUI within five years of a first DUI conviction, that person faces a 10 day minimum jail sentence. Anyone found guilty or entering into a plea on a third DUI with ten years of two previous DUI convictions, they are facing a 30 day minimum jail. Bear in mind that these are minimum penalties and prosecutors routinely ask for significantly more time on these types of cases.

Crash Suspect's Lawyer Wears Wire for Sting Operation, The Miami Herald, February 15, 2010.

August 24, 2009

Thousands of Broward and Miami DUI Cases Could be in Jeopardy

A Broward County judge's ruling could affect thousands of Broward and Miami DUI cases. Several months ago, the Florida Department of Law Enforcement fired Sandra Viega. Viega was an FDLE employee who was assigned the task of conducting annual inspections on breath-testing machines in Broward, Miami-Dade and Monroe Counties. The FDLE investigation revealed that Viega was turning off the power to the breath machines if it appeared as if they were going to fail the inspection. Rather, than allow the test to show that the breath machine was not working properly, she would turn the machine off, then turn it back on which would override the system.
Every Miami criminal defense lawyer who represents clients on DUI cases, knows that the result in a DUI case will often turn on three issues; 1) whether the clients blew into the intoxylizer and 2) what was the reading and 3) was the breath machine working properly..

At a hearing last Tuesday, a Broward criminal lawyer argued on behalf of his client and represented the interests of 32 other Broward and Miami DUI lawyers and their 150 or so clients, to have Judge Jay Seidman throw out all breath results in Broward County with respect to all breath machines operating in Broward County during Viega's tenure with FDLE. The Broward DUI lawyer argued that Viega's actions cast a doubt on the reliability of the breath machines and accompanying results. Judge Seidman ruled that the machines used during Viega's employment with FDLE had been "fatally compromised" and that such tainted evidence should not be presented to a jury.

Judge Seidman's ruling could jeopardize between 500 and 1,000 DUI cases pending in Broward County. Although, Miami DUI lawyers filed similar motions in Miami-Dade County, none of the county court judge's who heard the motion's granted the lawyers requests to exclude breath test results. The ruling in Broward County may motivate Miami criminal and DUI lawyers to once again filed motions to exclude breath test results. One should bear in mind that Viega only performed annual tests, and that local law enforcement authorities did independent monthly inspections on the breath machine to ensure that they were working properly.

A spokesman for the Broward County State Attorney's Office claimed that the machines are extremely accurate and have never proven otherwise. He stated, "The ultimate effect could be that numerous impaired drivers may not be held accountable for their actions and end up killing or hurting innocent people. His office will appeal Judge Seidman's ruling. FDLE spokeswoman, Heather Smith, said that they were confident that Viega's actions did not affect any of the breath results because the machines in Viega's coverage area were independently tested and verified to be working properly.

Broward Judge's Ruling in DUI Case Could Affect 1,000 Cases, The Miami Herald, August 23, 2009.

August 19, 2009

Man Denied Request for Re-Trial in Miami DUI Manslaughter Case

A Miami Beach man secretly recorded tapes between himself an his Miami criminal lawyer. Sean Casey, of Miami Beach, who pled guilty to DUI manslaughter tried to use a secret recording between himself and his ex-Miami criminal defense attorney to gain a new trial, but was unsuccessful. Casey attempted to prove to a Miami circuit court judge that the plea was tainted and that his plea should be set aside.

Circuit Judge John Thornton denied Casey's motion for post-conviction relief in state court. The judge ordered the secretly recorded tape of a conversation between Casey and his lawyer taken in the lawyer's office sealed as it was obtained illegally. Milton Hirsch represented Casey when he entered the plea. Casey pled guilty three years ago to DUI manslaughter for operating his BMW while drunk and striking and killing Mary Montgomery in 2001. Casey entered a plea in state court to 12 years in prison.

Casey had previously filed two appeals to the Third District Court of Appeals. He claimed the plea deal was tainted because his Miami criminal defense lawyer and his therapist convinced him to flee Miami and avoid a trial in the case. Casey claimed that his lawyer who was unaware that he was being recorded, told him, "I wish I could wave my magic wand and make Sean disappear magically and cause him to reappear on the planet Vulcan...or something like that and be out of harm's way." In the State of Florida, it is a 3rd degree felony to tape someone without their consent. After listening to the tapes last month, Judge Thornton found no direct or indirect evidence of any criminal actions by his Miami criminal attorney.

Casey spent two years in Chile before being caught and extradited to Miami in 2006. The extradition process took several months before his was returned to Miami to face the DUI manslaughter charge. Ed Griffith, a spokesman for the Miami-Dade County State Attorney's Office told reporters, "Today, Judge Thornton saw the secret taping issue as a crude ploy and the clear violation of law that it has always been. From the very minute a drunk Casey ran down an innocent pedestrian, he has never taken responsibility for his actions.

Miami Beach Man Loses Bid for Retrial in DUI Manslaugher Case, The Miami Herald, August 19, 2009.

July 31, 2009

Hollywood Police Officers Involved in Cover-Up

1156821_handcuffs.jpgFor all Ft. Lauderdale and Miami criminal defense lawyers, beware the police may be concocting stories against your clients. All Miami and Ft. Lauderdale defense attorneys have dealt with officer misconduct for years. As Miami DUI lawyers, we all know the serious implications of having a DUI on your record. Our clients tell us that the police are making up lies or that the arrest affidavits filed against them are untrue. In our profession, it is often very difficult to prove that law enforcement officers are not telling the truth about our client's cases. For a change, the police were caught red-handed.

Four Hollywood police officers were caught on a dashboard video camera contriving a cover-up scheme against a woman who was involved in a traffic accident with a police cruiser. Back in February, a Hollywood police officer rear-ended a woman and charged her with four counts of DUI and a citation for making an improper lane change.

The Hollywood police officers involved in the cover-up are Officer Joel Francisco, Officer Dewey Pressley, Sgt. Andrew Diaz, and Community Service Officer Karim Thomas. All Miami and Ft. Lauderdale DUI lawyers should immediately check the witness list attached to the discovery packet provided by the Broward County State Attorney's Office. If any of these officers are involved in your Ft. Lauderdale DUI case, this information should be useful in obtaining a favorable result for your client.

Officer Pressley wrote in his police report that the woman driver accused of DUI was operating her automobile with a large gray cat on her lap. The report went on to say that the cat jumped out of the window which caused the woman driver to swerve in front of Officer Francisco's cruiser and slam on her brakes causing the accident. Francisco purportedly approached the woman's driver side window and notice a strong smell of alcohol on her breath.

After the accident, all four officers were caught on the video dashboard camera contriving the cover-up and manipulating the facts to absolve the officer and blame the woman for the crash. Upon review of the video, all four officers were placed on administrative duty until a formal internal investigation by the police department is conducted. The Broward County State attorney's office is also investigating the incident.

Hollywood Police Caught Red-Handed in Cover-Up Scheme!, Justice News Flash.Com, July 30, 2009

July 3, 2009

Advice from a Miami DUI Lawyer - What to do if stopped by a police officer

A Miami criminal lawyer suggests you act in accordance with the following instructions if you are pulled over in Miami or Miami Beach for driving under the influence. Imagine yourself cruising down Ocean Drive on Miami Beach late on a Friday night. Having just finished a few drinks you feel marvelous! There is a full moon rising over the ocean, the sky is clear and the night air is cool and crisp and the radio is blasting with your favorite song. Suddenly, in your rear view mirror you see blue and red police lights and hear the sound of a siren. Looking up you see a police officer signaling you to pull over. Your heart immediately starts racing, what do you do?

First of all, don't panic, always remain composed. Take a deep breath, exhale and try to remain calm and relaxed. Before stopping your car, look again at the car behind you with the lights and siren. Determine if it is a marked police car or just a car with a light or siren. If it is a marked unit, pull over in a safe and reasonable manner. Gradually apply your brakes and pull completely off the roadway to a safe area. Do not block traffic. If it is not a marked police car; put on your hazard lights, slow down and drive to well lit area with people around. This is for your own safety.

Once you are stopped, ensure that the windows are down. Remain in your car and place both of your hands on the steering wheel and wait for instructions from the police officer. Some officers will approach your car, while others will request that you step out of your car. If it is dark, the officer will direct a floodlight or spotlight to illuminate your car for his or her safety. If the light is in your eyes, tilt the mirrors slightly up or down. While waiting for the officer, think of where you have your driver's license, registration and proof of insurance.

Once you are approached by the officer, a Miami DUI lawyer would suggest that you remain in control of your emotions, body language and words. Be polite and respectful. If you are, you have a better chance that the officer will not arrest you for DUI. Don't complain or argue with the officer. If you feel that he has done wrong, just make a mental note of his name and report him to a supervisor at a later time.

Do not retrieve your driver's license and accompanying documents unless asked to do so by the police officer. Try to avoid engaging the officer in conversation. The officer probably does not care what you have to say and you may get yourself into trouble. A Miami DUI lawyer would recommend speaking as little as possible. Direct answers to direct questions works best. If you like, you can ask why you have been stopped. If you choose not to speak, remember you have a Fifth Amendment right to refuse to answer questions posed by law enforcement officers. However, if you refuse to answer questions the police may become suspicious of you. This may cause them to investigate you more throughly. If the officer attempts to engage you in conversation, be polite, tell him/her that you are in a hurry and don't have time to talk. If the officers persists, ask him/her if you are free to leave?

Do not agree to any physical tests or exercises. Do not agree to take a breath, urine or blood test. Invoke your right to an attorney and to remain silent. These guidelines may not preclude you from an arrest, but the advice provided by this Miami DUI lawyer will provide you many defenses to your case.