Jury instructions in a Florida DUI (Driving Under the Influence) case are the legal guidelines provided by the judge to the jury before they deliberate and reach a verdict. These instructions are meant to clarify the law and help the jury apply it to the specific facts of the case. Keep in mind that jury instructions may vary depending on the jurisdiction and the specific circumstances of the case, but here is a general overview of the types of instructions that might be given in a DUI trial:

1. Presumption of Innocence: The judge will instruct the jury that the defendant is presumed innocent until proven guilty beyond a reasonable doubt. They should not assume guilt but must consider all the evidence presented during the trial.

2. Elements of the Offense: The judge will explain the elements of the DUI offense that the prosecution must prove. This typically includes proving that the defendant was operating a motor vehicle while under the influence of alcohol or drugs.

3. Standard of Proof: The judge will explain that the burden of proof rests with the prosecution, and they must prove the defendant’s guilt beyond a reasonable doubt, which is a high standard of proof.

4. Impartiality: The jury will be instructed to remain impartial and not let any personal biases or prejudices influence their decision.

5. Evaluating Evidence: Instructions will be given on how to evaluate and consider the evidence presented during the trial, including testimony, documents, and physical evidence.

6. Expert Witnesses: If expert witnesses were called, the judge may provide instructions on how to consider their testimony.

7. Field Sobriety Tests: If relevant, the judge may instruct the jury on the various field sobriety tests used by law enforcement and how they should weigh the results.

8. Chemical Tests: Instructions may cover the use of chemical tests, such as breathalyzer or blood tests, and how to consider the results.

9. Reasonable Doubt: The judge will explain the concept of reasonable doubt and emphasize that if the jury has any reasonable doubt about the defendant’s guilt, they must acquit.

10. Deliberation: Instructions will be provided on how the jury should conduct deliberations, including the need for unanimous agreement on a verdict.

11. Verdict Options: The jury will be informed about the possible verdict options, which typically include guilty, not guilty, or in some cases, a lesser offense like reckless driving.

12. Jury Questions: The judge may instruct the jury on how to communicate with the court if they have questions during deliberations.

It’s important to note that these instructions can vary by jurisdiction and the specific charges involved in the DUI case. Jurors are expected to follow these instructions carefully to ensure a fair and just verdict based on the evidence presented during the trial.

Driving under the Influence Causing Property Damage / Injury? Call (813) 222-2220

Florida Standard Jury Instructions Overview

In Florida, judges provide crucial instructions provided to juries when a DUI incident involves a crash or injury. These instructions serve as the legal roadmap for jurors, ensuring a fair and just trial. Jurors are guided through essential elements of the offense, such as the defendant’s impairment level, blood-alcohol concentration, and whether they caused property damage or injury. The instructions emphasize the presumption of innocence, the high burden of proof placed on the prosecution, and the need for impartiality in deliberations. Moreover, jurors are educated on key definitions, including the concept of “normal faculties” and “actual physical control” of a vehicle. In cases of inoperability, the defense is outlined, emphasizing that inoperability can be a valid defense if proven. These comprehensive instructions are vital in safeguarding the rights and fairness of DUI trials in Florida.

Official Florida DUI Standard Jury Instructions

§ 316.193(3)(a)(b)(c)1, Fla. Stat.

To prove the crime of Driving under the Influence Causing [Property Damage] [Injury], the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) drove or was in actual physical control of a vehicle.

2. While driving or in actual physical control of the vehicle, (defendant)

Give 2a or b or both as applicable.

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.

b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].

3. As a result of operating the vehicle, (defendant) caused or contributed to causing [damage to the property of (victim)] [injury to the person of (victim)].

Give if applicable. (Offenses committed prior to October 1, 2008, alcohol level of .20 or higher.)
If you find the defendant guilty of Driving under the Influence Causing [Property Damage] [Injury], you must also determine whether the State has proven beyond a reasonable doubt whether:

a. the defendant had a [blood] [breath]-alcohol level of .15 or higher while driving or in actual physical control of the vehicle.

b. the defendant was accompanied in the vehicle by a person under the age of 18 years at the time of the driving under the influence.

Definitions. Give as applicable.

Vehicle is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks.

Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

Actual physical control of a vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

Alcoholic beverages are considered to be substances of any kind and description which contain alcohol.

( ) is a controlled substance under Florida law. Ch. 893,
Fla. Stat.

( ) is a chemical substance under Florida law. § 877.111(1), Fla. Stat.

When appropriate, give one or more of the following instructions on the presumptions of impairment established by § 316.1934(2)(a), (2)(b), and (2)(c), Fla. Stat.

1. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level of .05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; but this presumption may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

2. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption that the defendant was or was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

3. If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath-alcohol level of .08 or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired. But this evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

Defense of inoperability; give if applicable.

It is a defense to the charge of Driving under the Influence Causing [Property Damage] [Injury] if at the time of the alleged offense, the vehicle was inoperable. However, it is not a defense if the defendant was driving under the influence before the vehicle became inoperable. Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty. However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty, if all the other elements of the charge have been proved beyond a reasonable doubt.

Local law enforcement agencies such as the Tampa Police Department, Hillsborough County Sheriffs, and Florida Highway Patrol will be present at the Gasparilla Pirate Festival to ensure the safety and security of all attendees. They will be enforcing laws and regulations related to alcohol, drugs, and disorderly conduct, among other things. Law enforcement will also be present to manage traffic and parking, and to assist in case of emergencies.

How to Stay Safe and Avoid Legal Issues at the Gasparilla Pirate Festival

Be aware of and obey all laws and regulations related to alcohol, drugs, and disorderly conduct. Follow all instructions and guidelines provided by law enforcement and event organizers. If you are drinking, do so responsibly and do not drive or operate a boat under the influence. Keep an eye on your belongings and be aware of your surroundings to avoid theft or other crimes.

What to Do if You Encounter Law Enforcement at the Gasparilla Pirate Festival

If you encounter law enforcement at the festival, it’s important to remain calm and cooperative. Provide any requested identification or documentation, but do not volunteer any other information. If you are arrested or detained, you have the right to speak with an attorney before answering any questions or making any statements. Remember that you have the right to remain silent and to not incriminate yourself.

Alcohol and Drug Laws

Alcohol consumption is legal for adults over 21, but it’s illegal to operate a vehicle or boat under the influence, driving under the influence (DUI) or boating under the influence (BUI) is a serious crime in Florida that can result in severe penalties, fines, license suspension and potential jail time. The possession, use, and sale of illegal drugs is prohibited by law and can lead to arrest and prosecution.

Crowd Control

Law enforcement will be present at the festival to manage crowd control and ensure the safety and security of all attendees. If you encounter any issues related to crowd control, such as a blocked pathway or overcrowded area, follow the instructions of law enforcement and event organizers.

Conclusion

The Gasparilla Pirate Festival is a fun and exciting event, but it’s important to ensure the safety and security of all attendees. Local law enforcement agencies will be present at the festival to ensure the safety and security of all attendees and enforce laws and regulations related to alcohol, drugs, and disorderly conduct, among other things. To stay safe and avoid legal issues at the festival, be aware of and obey all laws and have a great time.

This information was researched using assistive intelligence technology AI.

The Gasparilla Pirate Fest is an annual event that takes place in Tampa, Florida, where thousands of people come to celebrate and enjoy the pirate-themed parade and festivities. However, with a large crowd and an abundance of alcohol, it’s important to be aware of the laws and regulations to avoid getting arrested. Here are some tips on how to avoid getting arrested at the Gasparilla Pirate Fest in 2023:

Know the Laws and Regulations

• Familiarize yourself with the local laws and regulations regarding alcohol consumption, disorderly conduct, and other potential issues.
  Understand the consequences of breaking these laws, including potential fines and imprisonment.
• Be aware of your surroundings
• Keep an eye on your belongings, as theft can occur in crowded areas.
  Avoid large crowds and stay away from any potential conflicts or fights.
  Drink Responsibly
• If you choose to consume alcohol, do so responsibly and in moderation.
  Keep in mind that it is illegal to drink in public areas, and that the legal drinking age in Florida is 21.
  Be aware of the effects of alcohol on your behavior and decision-making.
  Respect the police and other authority figures
• Follow the instructions of police officers and other authority figures.
  Do not argue or resist arrest, as this will only make the situation worse.
  Don’t bring prohibited items
• Be aware of the items that are prohibited at the event, such as weapons and illegal drugs.
  If you are found to be in possession of these items, you may be arrested.
  Know your rights

Understand your rights as a citizen, including the right to remain silent and the right to an attorney.

Stay in Control

Keep your emotions in check and avoid getting into arguments or fights.
Remember that the goal is to have a good time, not to get arrested.

Travel in Groups

Going to the Gasparilla Pirate Fest with friends or family can help you stay safe and avoid trouble.
Stick together and look out for one another.
Be prepared for the weather

Conclusion

In conclusion, the Gasparilla Pirate Fest is a fun and exciting event, but it’s important to be aware of the laws and regulations to avoid getting arrested. Familiarize yourself with the local laws and regulations, be aware of your surroundings, drink responsibly, respect the police and other authority figures, don’t bring prohibited items, know your rights, stay in control, travel in groups and be prepared for the weather. Remember that the goal is to have a good time, not to get arrested. With these tips in mind, you can enjoy the Gasparilla Pirate Fest safely and responsibly.

Traffic Ticket Stories From Google+
2 Million Views and over a
1000 Followers Can’t be Wrong.

These are all of the DWI stories we had on our Google Plus page.

It contains years of curious and, at times, odd stories that were posted.

Safe and Sound on Floriduh Beach

Glad our Indian Shores Police Officer is safe tonite after last night’s shooting. First I can ever remember in our small town.

Safe and Sound on Floriduh Beach | Indian Shores Florida | Expert  Defense | 813.222.2220

Request for Medical Records Denied | Blood Test Subpoena

Court denied issuance of a subpoena and ruled In a blood test “burden arises from the Constitutional right to privacy in one’s medical records, which requires the State to demonstrate a compelling interest in the disclosure.” A burden that in a rare case was NOT met. These subpoenas are routinely rubber-stamped and almost always issued.

Reducing Impaired Driving Recidivism – RIDR

First timers can avoid a driving under the influence conviction. This change in policy is important for drivers charged with their 1st driving while impaired. According to Florida law, pretrial intervention programs can are available for a first time driving while intoxicated driver as long as they have spoken with a lawyer, agrees to complete the program.

Video – Sober Driver Arrested

This is how you can be arrested for driving while intoxicated even if you’re sober.

Sober Driver Arrested Video

This person was arrested for driving while intoxicated — even though they were completely sober

Another Way to Get Arrested – Florida Man Does Cartwheel During Sobriety Test

In #Floriduh Cape Coral man showed off his cartwheel skills during a sobriety test. A police officer’s body camera recorded the man’s #Shenanigans.

Checkpoint Aimed at Keeping Roadways Safe

Checkpoint East Sligh Avenue and North Branch Street from 10 p.m. – 1 a.m. #Tampa 

Checkpoint Aimed at Keeping Roadways Safe

tampagov.net

Tesla’s Latest Crash Reveals Issue with Autopilot

Over the weekend, a driver in Tesla Model S sedan was arrested and charged with driving while intoxicated when he was found passed out behind the wheel on San Francisco’s Bay Bridge. His blood alcohol content was two times the legal limit. He told the California Highway Patrol officers it was OK: The car was on autopilot.

wired.com/story/tesla-autopilot-crash-dui

Tesla’s Latest Crash and driving while intoxicated Incident Reveal the Issue with Autopilot | WIRED

St Petersburg Will Try to Seize Vehicles in Driving Under the Influence Cases

Can St Petersburg Seize Vehicles in DWI Cases? YES

“There does not appear to be any legal impediment to adding driving under the influence as a basis for vehicle seizure . . .” said the Attorney for the City of St Petersburg.

One Florida town will join a few others in allowing police to seize the vehicle of a driving under the influence suspect and sell it back to him/her for around $500.00.

The language used by the St. Petersburg City Attorney is, “vehicle seizure and impoundment with a companion administrative fine. ”

St Petersburg Will Try to Seize Vehicles in driving under the influence Cases

Are Traffic Ticket Quotas Legal in Florida?

Think #quotas for #tickets R #bad, how about arresting drivers 4 fun & profit Contests 4 #arrests since 2009 Bad!

Are Traffic Ticket Quotas Legal in Florida? – Contests – Arrests and Traffic Tickets in Florida

What Happens if You Are Confused and Refused a Breathalyzer Test in Florida?

What happens if you are confused and refused a #Breathalyzer test in #Florida?

Video in  Case Does Not Lie – So Says the Florida Supreme Court

The Florida Supreme Court loves television and so do we. #TV #CopsGoneWild

Video in Drunk Driving  Case Does Not Lie – So Says the Florida Supreme Court

20,000 Drunk Driving  Cases Called Into Question

#CopsGoneWild

nj1015.com/20000-dwi-cases-called-into-question-in-nj-is-yours-one-of-them/

20,000 Drunk Driving  cases called into question in NJ: Is yours one of them?

Jose Fernandez Video

Oct 29, 2016

Pitcher was .147 with Cocaine in Boat Crash

#Marlins #JoseFernandez Boating Under Influence BUI FL Coroner BAC .147 & cocaine. No news who was driving. dui2go.com/2016/10/jose-fernandez-florida-baseball-BUI.html

Jose Fernandez Video – Florida Baseball Star – Drunk in Boating Crash

Tampa Bay Drunk Driving  Convictions and Dismissals by the Numbers

Surprising data on Tampa Bay DUI Conviction rates. Raw Data and Spreadsheet data shows Hillsborough County Florida with highest conviction rate.

dui2go.com/tampa-bay-dui-convictions-and-dismissals-by-the-numbers/

Tampa Bay Drunk Driving  Convictions and Dismissals by the Numbers

Michael Phelps – Drunk Driving

The Recovery of Michael Phelps from 2 DWI charges to “Greatest Olympian of All Time” was a long journey that began with his first Drunk Driving  charge in 2004. The miracle began Less than 2 years before his historic run at the 2016 Olympic Games in Rio.

dui2go.com/the-recovery-of-michael-phelps-dui/

The Recovery of Michael Phelps – DUI

Florida Can Punish Refusal to Submit to a Breath Test

Supreme Court on Refusal to Submit to a Breath Test

Three Reasons Court Used to Justify Punishment of a Breath Test Refusal

Why Does the Search-Incident-To-Arrest Doctrine Apply to Breath and Blood Tests?

• “First, the physical intrusion is almost negligible. Breath tests “do not require piercing the skin” and entail “a minimum of inconvenience.”
• “Second, breath tests are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath.”
• “Finally, participation in a breath test is not an experience that is likely to cause any great enhancement in the embarrassment that is inherent in any arrest.”

dui2go.com/florida-and-other-states-can-punish-refusal-to-submit-to-a-breath-test/

Florida and Other States Can Punish Refusal to Submit to a Breath Test

St. Pete Pride, DUI, and Law Enforcement

St. Pete Pride

DUI Enforcement officers and other law enforcement will swarm St. Pete Pride as over 200,000 will gather this weekend to support and celebrate Florida’s LGBTQ community at the St. Pete Pride Parade.

dui2go.com/st-pete-pride-always-a-busy-weekend-for-dui-asnd-law-enforcement/

St. Pete Pride A busy weekend for DUI and Law Enforcement

Florida Supreme Court Sets Arguments on DUI Breath Tests

Second Refusal Breath Test on Trial

Florida Supreme Court will hear arguments Sept. 1 in a challenge to the constitutionality of a state law that allows people to be prosecuted for refusing to take breath tests when suspected of drunken driving.

Justices issued an order Tuesday scheduling the arguments in the Volusia County case of William Williams, who was stopped in October 2013 on suspicion of driving under the influence. An arresting officer, who did not have a warrant, asked Williams to submit to a breath test to determine blood-alcohol content but Williams refused, according to court documents.

https://news.wfsu.org/post/florida-supreme-court-debate-us-constitution-and-alcohol-level-tests

Florida Supreme Court sets arguments on DUI breath tests

An Impaired Driving Cases Guide for Law Enforcement Officers and Expert Witnesses

Originally shared by Law Office of W.F. ”Casey” Ebsary Jr

DUI Cops Are Instructed How to Testify

Notably, they are told not to demonstrate field sobriety tests that they themselves cannot perform. “Always demonstrate how you conducted field sobriety evaluations. Be certain, however, that you can do in court  all the evaluations you asked the defendant to perform

dui2go.com/cops-instructed-how-testify/

Review: The Criminal Justice System: A Guide for Law Enforcement Officers and Expert Witnesses in Impaired Driving Cases

Field Sobriety Exercises Excluded

Epic Fail – Summary of the Field Sobriety Exercises Exclusion Ruling

Field sobriety exercises are inadmissible in this case unless the State of Florida demonstrates their reliability to the Court in a Daubert hearing. The State must show that field sobriety exercises were created using the same rigorous scientific method that is behind every theorem and postulate in science journals before field sobriety exercises can be admitted.

dui2go.com/field-sobriety-exercises-motion-to-suppress-granted-in-tampa/

Field Sobriety Exercises Motion to Suppress Granted in Tampa

Pinellas Deputy Arrested for Attempted Manslaughter

Video cameras did not catch this or were not running and then this happened at a DUI traffic stop.   #allegedly “Instead of explaining what actually happened,” the sheriff said, “Deputy Virden made up facts that simply could not have occurred.”

Pinellas deputy arrested for attempted manslaughter

fox13news.com

Doctor on Drugs, Testing and Impairment of Drivers

Tons of interesting questions and surprising answers from a just completed interesting afternoon with a doctor on drugs and testing and impairment of drivers.

dui2go.com/drug-dui-and-cannabis-in-the-courts/

Drug DUI and Cannabis in the Courts

Miss USA Contestant Stripped of Her Crown for DUI

It is Only a Misdemeanor

DUI – It is only a misdemeanor thought a Miss USA contestant. She did not disclose a conviction, won the title, and then was stripped of her crown when pageant officials got wind of the case.

dui2go.com/dui-conviction-ruins-miss-usa-contestant-video/

DUI Conviction Ruins Miss USA Contestant

abcnews.go.com/video/embed?id=36329054

Number One Traffic Charge for Jail in Hillsborough County, Florida TRAF6075

Get a Driver’s License

Of the 1656 ways to go to jail in Tampa, Florida, this is Number 1. TRAF6075 is number one of the top 50 ways to be arrested and placed in the Hillsborough County Jail in Tampa, Florida. There are 1656 ways to go to jail for criminal charges in Tampa. This is Numero Uno #1.

dui2go.com/traf6075-driving-w-license-canc-susp-or-revoked/

1656 Ways to End Up in the Hillsborough County Jail

Top 50 Ways to Go to Jail

Many of the Top 10 ways to go to jail in Tampa, Florida are traffic crimes. By the way there are about 1656 ways to end up in the Hillsborough County Jail.

Law Office of W.F. ”Casey” Ebsary Jr

Video – Drunk Driving on a Lawn Mower?

Floriduh Lawnmower Guy Video – dashcam,  nicely equipped lawnmower,  and catchy jazz soundtrack.

dui2go.com/2012/08/dui-attorney-needed-lawnmower-video.html

Attorney Needed – Lawnmower Video

Can a Citizen Arrest a Driver for Driving While Impaired?

Driver detained by citizen and then arrested by cop for DWI.

https://dui2go.com/what-is-required-for-a-citizen-to-make-a-valid-arrest-for-dui-dui-citizens-arrest/

Citizen’s Arrest

Complete List of 130 Florida Criminal Traffic Charges

130 Ways to Go to Jail in Traffic Court

There are at least 130 ways to be charged with a criminal traffic crime under Florida law. This is a complete list of criminal traffic charges under Florida Statutes.

dui2go.com/130-ways-to-go-to-jail-in-traffic-court-florida-criminal-traffic-charges-complete-list/

130 Florida Criminal Traffic Charges | Complete List

Second Refusal to Submit to a Chemical Test in Florida

The FLORIDA Supreme Court will review Florida Driving Under Influence  2nd Refusal  law and whether it is Constitutional to refuse to cooperate with cops in a second refusal to submit to chemical testing.

dui2go.com/what-happens-when-there-is-a-second-refusal-to-submit-to-a-chemical-test-in-florida/

DUI Second Refusal To Submit To A Chemical Test In Florida

Refusal to Submit to a Chemical Test

The US Supreme Court is reviewing the Constitutionality of three state laws like this one that criminalizes a second refusal to submit to breath test.

Form Code: TRAF1076
Florida Statute: 316.1939.1
Level: Misd (Misdemeanor)
Degree: 1st
Description: REFUSAL TO SUBMIT TO TESTING

dui2go.com/traf1076-refusal-to-submit-to-testing-316-1939-1/

TRAF1076 REFUSAL TO SUBMIT TO TESTING 316.1939.1

Florida, Confessions and the Corpus Delicti Rule

“Corpus delicti is one of those not-so-glamorous topics that tends to fall through the academic cracks in many law schools. In fact, before having to focus on this subject as a novice prosecutor, my knowledge of it was limited to what my bar exam review instructor had taught me: Corpus delicti is always the wrong answer to an evidence question. ”

dui2go.com/florida-confessions-dui-and-the-corpus-delicti-rule/

Florida, Confessions and the Corpus Delicti Rule

Officer Misses Hearing – Driver Gets License Back

How to Win a Hearing Cop skips hearing, despite court order – absence was unexplained or unexcused. Driver gets license back.

dui2go.com/dui-officer-misses-hearing-driver-gets-license-back/

Officer Misses Hearing – Driver Gets License Back

How to Become an “Expert” in a Couple of Weeks.

dui2go.com/florida-drug-recognition-dre-experts-five-5-things-to-know/

Florida Drug Recognition DRE Experts – Five (5) Things to Know

FREE Drunk Driving Defense Book

86 page color illustrated drunk driving Defense book you can research the harsh punishment imposed under Florida’s strict driving under the influence laws. Journey from the arrest at the roadside, to the county jail, to a vehicle being seized.

Jason Miller: “That looks like a very helpful book. I really like the cover.”

Law Office of W.F. ”Casey” Ebsary Jr: “Thanks for the comments. We are looking to expand it with the next edition. Be well. Leslie is a great friend. See you soon.”

Here are a few tips to avoid becoming the next sleeping driver with a DUI in Florida.

As the holiday travel season approaches, in Florida many people will be taking long trips by car. Some drivers may have had a bit to drink and be in actual physical control of their car.Is it safe to pull over and take a nap? That depends. If you have been drinking and have alcohol on your breath, it is likely that police may try to push the limits and arrest you. Even if you are a sleeping driver, not driving on the road, cops can bust you for being in Actual Physical Control of a Car while impaired or DUI.

“The firetruck’s air horn sounded and [the driver] rolled down his window, allowing [the officer] to smell the odor of alcohol emitting from him.”

Here Are a Few Tips for Pulling Over for a Nap:

1. Park legally
2. Shut off the engine
3. Remove keys from ignition
4. Roll up the windows
5. Get out of the driver’s seat

Typically, the police will try to get you to roll down the windows and see if they smell the odor of alcohol emanating from your breath. While the police do have the opportunity to check on your welfare, they do not have the right to order you from the vehicle when they have not observed a violation of the law. I have found a recent court order where the judge ruled the police did not have the right to force someone to open the window of their vehicle after the police observed the driver sleeping.

The driver “was not obligated to roll down his window and acknowledge the officer.”

In one recent case, the officer observed a vehicle parked in a parking lot. The officer approached the vehicle to check on the driver’s welfare. Once the driver woke-up and responded,

and even though the driver was inactual physical control of the vehicle with the officer tapping on the window, the officer can not demand the driver to ultimately have the window of the car opened.

First responders used the loud horns of an ambulance to arouse the driver and when the driver opened the window in response to the ruckus. “[T]he firetruck’s air horn has sounded and [the driver] rolled down his window, allowing [the officer] to smell the odor of alcohol emitting from him.” The Court ruled that the officer had violated the Fourth Amendment since there was no reasonable suspicion of criminal activity. The driver “was not obligated to roll down his window and acknowledge the officer.”

Here Is the Court’s Complete Sleeping Driver DUI Opinion:

Online Reference: FLWSUPP 2607BROW

STATE OF FLORIDA, Plaintiff, v. DONTAY DEJUAN BROWN, Defendant. County Court, 18th Judicial Circuit in and for Brevard County. Case No. 05-2017-CT-053213-AXXX-XX. May 8, 2018. Michelle V. Baker, Judge. Counsel: Annabelle Chambers, Office of the State Attorney, Titusville, for Plaintiff. Joel Leppard and Joe Easton, Leppard Law, Orlando, for Defendant.

ORDER GRANTING DEFENDANT’S AMENDED MOTION TO SUPPRESS

THIS CAUSE came before the Court upon Defendant, Dontay Dejuan Brown’s Amended Motion to Suppress, filed on January 23, 2018 and heard on March 16, 2018. Having considered the Motion, evidence presented, and argument of counsel, the Court finds the following:

Sleeping Driver Spotted

On December 2, 2017, at approximately 7:00 a.m., the Titusville Police Department was contacted about an individual who was slumped over the steering wheel of an automobile that was parked in the Krystal’s parking lot. Titusville Police Officer Mark Fourtney responded to the location and observed the automobile, which was still running. The officer testified that there was no indication of any criminal activity and that he was there for a welfare check.

Officer Fourtney testified that he tapped on the window and the individual, later identified as Mr. Brown, raised his head slightly and rotated his body away from the window. Officer Fourtney continued to tap on the window. Meanwhile, the Titusville Fire Department, which had also been dispatched to the scene, arrived. Officer Fourtney stated that “the male is waking up but won’t open the door for me.” Thereafter, the firetruck’s air horn was sounded and Mr. Brown rolled down his window, allowing Officer Fourtney to smell the odor of alcohol emitting from him.

Demanding Sleeping Driver Attention

Mr. Brown argues that there was no need for a welfare check. The Court finds that the welfare check was permissible to the extent that Officer Fourtney was allowed to alleviate any concern’s he might have for the driver’s health. It is clear from Officer Fourtney’s testimony that there was nothing about the way or where the vehicle was parked that would indicate that there was anything wrong with the driver. The driver was slumped over the steering wheel, apparently asleep, and responded to the window taps by moving his body away from the noise. There was nothing about Mr. Brown’s behavior that indicated that he was incoherent.

Sleeping Driver Responsive

The two men did not engage in conversation at that time. Mr. Brown was also responsive, albeit not in the manner that Officer Fourtney desired. As part of a consensual encounter, Mr. Brown was not obligated to roll down his window and acknowledge the officer. Officer Fourtney’s persistence, although not verbal, in demanding Mr. Brown’s attention, after it was apparent that the Defendant was simply sleeping, runs afoul of Danielewicz v. State, 730 So. 2d 363 (Fla. 2d DCA 1999) [24 Fla. L. Weekly D793a] and Greider v. State, 977 So. 2d 789 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D949b].

Investigation Not Based On Reasonable Suspicion

Contrary to the State’s assertion, this case is not factually similar to Dermio v. State, 112 So. 3d 551 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D776a]. Dermio involved an individual who was found with his head “cocked to the left side and had a cell phone lodged between his shoulder and cheek.” Id. at 553. Further, the Defendant woke up but seemed “really out of it.” Id. Thus, the deputy had a continuing concern for Dermio’s safety. Id. Officer Fourtney’s community caretaker duty was satisfied when the Defendant simply rolled away from the noise. There was no other evidence observed by the officer that Mr. Brown was ill. Thereafter, the officer was proceeding with an investigation which was not based upon a reasonable suspicion of criminal activity.

Accordingly, it is

ORDERED AND ADJUDGED that the Defendant’s Amended Motion to Suppress is hereby GRANTED.

Florida’s DUI Actual Physical Control Law

316.193 Driving under the influence; penalties.—

(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;
(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

Are Traffic Ticket Quotas Legal in Florida?

The short answer is “No.” Traffic Ticket Quotas are illegal. The Florida Statute specifically forbids these contests. Florida Statute 316.640(8)(b) (2017) states: “A traffic enforcement agency may not establish a traffic citation quota.” The issue turns on the question: “What is a quota?” A quota is a quantity, in this case the number of citations issued. There are several agencies that are competing for prizes in Driving Under the Influence contests where vehicles, body-cameras, and other law enforcement tools can be won, if certain goals are met. This may be a contest, but law enforcement consistently takes the position that these do not violate the law.

The Florida traffic law was passed in 2015. the law is called the “Waldo Bill.” The new provision is named after Waldo, Florida, a notorious speed trap between Gainesville and Jacksonville. “As of October 1, 2014 the town’s police force has been disbanded.” says the Wikimachine. When caught, here is what the Florida cops had to say about the latest traffic ticket shenanigans:

“We Will Immediately Designate That Quotas Are Prohibited by Florida Law . . . .”

More ticket quota evidence includes offering days off to law enforcement officers that met their goals. Apparently, a supervisor wanted 2 tickets per hour and “1.3 tickets per hour was not good enough.” We have been covering arrest quotas and contests by cops in Florida for years. We have uncovered the rules of the contest and posted them here. Up until this week’s breaking news from the Saint Petersburg Times, we thought the gamifying of law enforcement was limited to DUI arrests. Now we know that is not so. Police have targets that one, soon-to-be former, Florida Highway Patrol Trooper was encouraging- – hourly targets and giving prime weekend time off to those who met the illegal goals of the department. So, unless you have a Stay Out of Jail Card, watch out for gamesmanship by law enforcement.

“1.3 Tickets per Hour Was Not Good Enough.”

I have spent quite a bit of time in court defending people charged with a variety of traffic offenses. One of the most offensive things I have seen was this luxury SUV that was a trophy in a contest to see how many people could be arrested for driving while impaired, among other things.

This vehicle was parked right outside of the Hillsborough County Courthouse in Tampa Florida. Apparently, the vehicle is equipped with a sophisticated video system and a mobile breath testing machine. Florida law prohibits quotas for issuing traffic tickets. The cops were just caught.

These kinds of incentives given to law enforcement can encourage otherwise decent and law-abiding police officers to violate the law. Maybe they need a weekend off. Maybe they think winning a car for their agency will look good in their personnel file. Maybe they think the prosecutor will reduce the charge from DUI to some lesser charge. Nevertheless, these awards are given for the issuance of citations or the arrests of citizens. No one seems to care to remove these entries on their permanent records when they are ultimately cleared of the charges or negotiate a plea to a lesser charge. Many first-time DUI offenders are never even convicted of DUI.

Since 2009, I have been following this area closely. The stories that are linked below cover in detail the policies and procedures that have been used by police to take advantage of programs to acquire more assets for law enforcement.

The Hillsborough County Sheriff won an SUV. The vehicle is marked with a championship logo and other markings establishing that the sheriff had won a contest to enforce DUI laws. DUI prosecutions are begun with a traffic ticket and issues about whether or not these are quotas should be asked. The cop who wrote a memo documenting the quota has resigned. Fox has reported, “A top official with the Florida Highway Patrol who told troopers they aren’t writing enough speeding tickets is resigning from his job.” Here is some video on the illegal ticket game.

Video | Illegal Ticket Quotas in Florida

Traffic Tickets, Arrest Contests, and Quotas – History in Florida

Florida Arrest Contest Costs $1,720,000

Sep 24, 2015 –As a Georgia Lawyer noted, when contests and quotas are in play, some police agencies keep their eyes on the prize. In that case, there is…

Florida Arrest Contest Winners?

Apr 8, 2014 –Driving under the influence Arrest Contest… it appears that citizens’ arrests are prizes in this despicable contest.

Arrest Contest Rules and Prizes

Dec 15, 2011 –Attorney on Florida’s West Coast just uncovered the “rules” for a recent ArrestContest. The awards are characterized as …

Arrest Contests Continue

Oct 21, 2010 – Largo Cop wins money for Pinellas Arrests. As Florida Lawyer W.F. Casey Ebsary has previously reported, here, here, …

Video | DUI Arrest Contest Trooper Tasers Sober Driver

Mar 30, 2012 – Attorney in Tampa has just received a report that a 200 Arrest Award Winner in a DUI Contest has admitted to numerous violations of DUI …

DUI Arrest Contests in Florida

Jan 9, 2016 – Attorney on Florida’s West Coast just uncovered the “rules” for a recent Arrest Contest. The awards are characterized as DUI …

More Arrest Contest News

Feb 25, 2011 – More Arrest Contest News. Defense Attorney Observes: As we continue to tally the awards given to police officers who arrest drivers, …

Arrest Contest Trophy?

Aug 8, 2011 – Attorney noticed this was parked outside of the Hillsborough County Courthouse in Tampa, Florida this morning. This is an …

Florida Arrest Contest Winners

Jun 19, 2009 – There were 13 contest winners at the Hillsborough County Sheriff’s Office (HSCO) . There were 16 contest winners at the Tampa Police …

Arrest Contest Winner

Apr 21, 2011 – DUI Defense Attorney notes that Pasco DUI cops are continuing their efforts to win DUI arrest contests. Florida Highway Patrol spokesman for …

In a blood test “burden arises from the Constitutional right to privacy in one’s medical records, which requires the State to demonstrate a compelling interest in the disclosure.”

Requests to Subpoena Medical Records of a Blood Test

After a typical crash police will sometimes attempt to assign blame. The police may suspect alcohol or drug use and attempt to obtain dui blood tests or medical records for people treated in a crash. This is true, even though the driver may have been the only person injured in a one-car crash. Nevertheless, police must jump through a lot of hoops to get your medical records. Sometimes the police jump the gun and make mistakes. If they do, a competent defense attorney can have the medical records and results of a possibly incriminating blood test thrown out by the court.

What Is the Process for Obtaining the Medical Records of a Driver in a Crash?

The prosecutor will receive a copy of the crash report from the investigating DUI officer. If done correctly, the prosecutor will send a registered letter to the driver notifying them of the prosecutor’s efforts to obtain confidential medical records. The letter typically will give the driver a certain number of days to subject to the disclosure of the medical records. If the defendant’s lawyer files and an appropriate objection, there will be a hearing in front of a judge who will decide what if any medical records should be available to the prosecutor by subpoena. In the case we have discussed below, the judge ruled that there was not enough information for the confidential medical records of the driver to be disclosed.

Medical Records in DUI Prosecutions, Blood Test Subpoenas and Medical Records

As one commentator has noted in this case the “State failed to establish there was reasonable founded suspicion to believe defendant was driving while impaired by alcohol or controlled substances so as to overcome defendant’s right to privacy in her medical records and therefore failed to establish that medical records contained information relevant to ongoing criminal investigation.”

Complete Text of Order Denying Request for Blood Results in a DUI Case

STATE OF FLORIDA, Plaintiff, v. DEBRA COOPER, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2017-308515MMDB. November 18, 2017. Belle B. Schumann, Judge. Counsel: Susan Bexley, Assistant State Attorney, for Plaintiff. John S. Hager, for Defendant.

ORDER DENYING STATE’S REQUEST TO SUBPOENA “MEDICAL” BLOOD

This case comes before the Court on the State’s Notice of Intent to Subpoena Medical Records of the Defendant, filed November 16, 2017, and the Defense’s Objection thereto, which was filed that same date. A hearing was held on the State’s request on January 17, 2018. Upon due consideration of the facts as proved and the applicable law, the Court hereby DENIES the State’s request to subpoena the Defendant’s medical records. The State failed to establish there was a reasonable founded suspicion to believe that the Defendant was driving while impaired by alcohol or controlled substances to overcome the Defendant’s right to privacy in her medical records, and therefore failed to establish that these records contain information relevant to an ongoing criminal investigation.

Previously, on November 6, 2017, there was a hearing on a motion to suppress in this case, and an order entered by the Court as a result of that hearing. This order, docket number 27 in this case, is incorporated herein [25 Fla. L. Weekly D1019a]. The facts found are as follows:

At the hearing, Assistant State Attorney Tara Libby established that on December 17, 2016, Joshua Wilson of the Ormond Beach Police Department responded to a “crash” within his city. No further explanation of this event was given. No description of the condition of the vehicles, no result of investigation into any driving pattern, no suggestion what may have caused the crash, not even the time of day or weather conditions were elicited by the State. The only further testimony about this “crash” established by the State was the conclusion by the officer that the Defendant was “at fault.” No explanation for this conclusory statement was provided, nor any of the facts that led the officer to this conclusion. There was no evidence that anyone was injured in this “crash” or even that there was any physical damage to any property.

When Officer Wilson spoke to the Defendant, he testified that he noticed she “spoke slowly” and was “lethargic,” again without any further elaboration. The State asked if in the accident report, he “noted alcohol was involved” and he replied, “yes.” The officer agreed with the conclusory question that he believed he had probable cause for DUI. No elucidation of the basis for this conclusion was provided.

On cross examination, the officer testified that he could not recall if he smelled alcohol on or about the Defendant, and conceded that his report did not indicate that he detected the odor of alcohol, or any other evidence of alcohol use. There was no mention of controlled substances.
In this prior order, the Court granted the Motion to Suppress, finding that,

The evidence presented by the State in this case falls woefully short of establishing probable cause to believe that the Defendant was driving while impaired by alcohol or a controlled substance to lawfully request breath, blood or urine. §316.1932, Fla. Stat. (2016). Although not at issue here, it seems unlikely that the State’s proof in this case would even rise to the level of a reasonable suspicion to require field sobriety exercises. The State’s offer of proof was completely inadequate. . . .

In this case, the State failed to establish any facts that would lead a reasonable person to conclude that Debra Cooper was driving under the influence of alcohol or a controlled substance on the date in question. Bare conclusory assertions cannot sustain the State’s burden of proof. Had the State presented any evidence concerning the crash to establish some sort of driving pattern, more observations of the officer, or some scintilla of evidence of impairment by alcohol, the result may have been different. (emphasis added)

Now the State seeks to subpoena the Defendant’s medical records after she was taken to the hospital as a result of the crash. The only evidence presented at the Hunter hearing was the accident report. This report is not an affidavit, and it is unsworn. It also contains statements from the Defendant which all parties agree are privileged and which cannot be used to establish the State’s burden of proof.

Assuming without deciding that an unsworn accident report is acceptable proof and not hearsay, the only evidence of impairment contained in this report is again that the Defendant appeared “lethargic and spoke slowly” after the crash that sent her to the hospital. There is the fact that the crash occurred when the vehicle driven by the Defendant drifted partially into a turn lane and struck the other vehicle from behind. The State makes no argument that the driving pattern or the crash provides evidence of impairment.

Before the State can employ its investigatory subpoena power and compel disclosure of medical records without the consent of the patient, the State “…has the obligation and the burden to show the relevancy of the records requested.” Hunter v. State, 639 So. 3d 72, 74 (Fla. 5th DCA 1994); §395.3025(4), Fla. Stat. (2016). The State’s burden arises from the Constitutional right to privacy in one’s medical records, which requires the State to demonstrate a compelling interest in the disclosure. Art. 1, §23, Fla. Const. “Such [a compelling state] interest exists where there is a reasonable founded suspicion that the materials contain information relevant to an ongoing criminal investigation.” State v. Rivers, 787 So. 2d 952, 953 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D1512a]. See also, State v. Rutherford, 707 So. 2d 1129, 1131 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D2387b] [disapproved on other grounds in State v. Johnson, 814 So. 2d 390 (Fla. 2002) [27 Fla. L. Weekly S250a]] (“Where a right to privacy attaches, the State may vindicate an encroachment on that right…(when it) is established by a showing that the police have a reasonable founded suspicion that the protected materials contain information relevant to an ongoing criminal investigation.”)

In support of their position, the Defense relies on the case of Guardado v. State, 61 So. 3d 1210 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1087a]. They point out that “crash plus death” or “crash plus injury” does not always make the blood relevant as the State argues; that is not the law. The Defense is entirely correct. Absent some scintilla of evidence that the Defendant was impaired by alcohol or a controlled substance, the State has again fallen woefully short of its burden to demonstrate a compelling interest which exists where there is a reasonable founded suspicion that the materials contain information relevant to an ongoing criminal investigation to overcome the Defendant’s right to privacy in her medical records.

WHEREFORE, based on the argument and authority presented, the State’s Notice of Intent to Subpoena Medical Records is hereby DENIED.

* * *

Source: Online Reference: FLWSUPP 2512COOP

Drivers can seek to have an alleged refusal to take a breath test thrown out of court using the “confusion doctrine,” when the implied consent warnings are given following the administration of the Miranda warnings. If successful, the refusal of a breath test was not willful and is inadmissible. Under Florida law, the driver to make his or her confusion known to law enforcement. Florida law “does not require law enforcement officers to advise DUI arrestees that the Miranda warnings do not apply to the breath test, and a licensed driver in Florida has consented to the test and is not entitled to consult with an attorney prior to the administration of the test.”

What Happens if You Are Confused and Refused a DUI Breathalyzer Test in Florida?

“The “confusion doctrine” is a judicially created exclusionary rule that operates to exclude a licensee’s refusal to submit to a breath test if the licensee believed that he had the right to consult with counsel prior to taking the test. See Kurecka v. State, 67 So. 3d 1052, 1056-57 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2162b]. Under this doctrine, “a licensee’s refusal to submit to [a] breath test will be excused if, due to a prior administration of the Miranda warnings, the licensee believes that he or she had the right to consult with counsel prior to taking a breath test.”Id.at 1056 (internal citations omitted).”

Miranda Warnings Do Not Apply to the Breath Test in Florida

“In Kurecka, the Fourth District Court of Appeal analyzed the history of the “confusion doctrine” in Florida and other states.Id.at 1057-60. That Court concluded that Florida’s implied consent statute does not require law enforcement officers to advise DUI arrestees that the Miranda warnings do not apply to the breath test, and a licensed driver in Florida has consented to the test and is not entitled to consult with an attorney prior to the administration of the test.Id.at 1060-61. “Accordingly, excluding evidence based on a suspect’s misconception about the right to counsel prior to taking the breath test would be contrary to the legislative intent of Florida’s implied consent law.” Id. at 1060.”

Video: Refusal to Take a Breath Test at Hillsborough County Jail in Florida

DUI Video from inside a jail where a cop is administering Florida’s Implied Consent warning given prior to requesting a suspect to take a breath test on an Intoxilyzer breath machine.

“The Fifth District Court of Appeal declined to apply the “confusion doctrine” on facts somewhat similar to the instant case. In Dep’t of Highway Safety & Motor Vehicles v. Marshall, 848 So. 2d 482, 485-86 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1553b], the DHSMV hearing officer presiding over the formal review hearing of the license suspension rejected Ms. Marshall’s self-serving testimony regarding her confusion about her right to counsel.Id.Further, none of the DHSMV documents supported Ms. Marshall’s claims, and she failed to subpoena law enforcement officers who could corroborate her testimony that she was told she could consult with an attorney prior to the breath test. Id.”

“The Seventh Judicial Circuit has once addressed the “confusion doctrine,” in a case where the an officer explained to the petitioner that he did not have the right to an attorney and that any answer other than “yes” to the breath test would be a refusal. Bosch v. Dep’t of Highway Safety & Motor Vehicles,10 Fla. L. Weekly Supp. 757a (Fla. 7th Cir. Ct. 2003). The Court found that Mr. Bosch’s reliance on the “confusion doctrine” was misplaced because the Miranda warnings were given after the implied consent notice, and Mr. Bosch must have made his confusion known to the law enforcement officer in order to invoke the doctrine. Id. See also Moore v. Dep’t of Highway Safety & Motor Vehicles,13 Fla. L. Weekly Supp. 932a (Fla. 9th Cir. Ct. 2006).”

Refuse Breath Test

“The Court finds that the hearing officer’s decision to reject the application of the “confusion doctrine” was based upon competent substantial evidence. Petitioner did not make his confusion known to Officer Jacobs, and the Miranda warnings were not given contemporaneously to the implied consent warnings. Other than his own testimony, there is no evidence to support Petitioner’s assertion that he was confused over his right to remain silent and the officer’s request for Petitioner to take the breath test. As the trier of fact, the hearing officer is in the best position to evaluate the evidence and the witnesses. See Dep’t of Highway Safety & Motor Vehicles v. Satter,643 So.2d 692, 695 (Fla. 5th DCA 1994). The hearing officer is not required to believe the testimony of any witness, even if unrebutted. See Dep’t of Highway Safety & Motor Vehicles v. Dean,662 So.2d 371, 372 (Fla. 5th DCA 1995) [20 Fla. L. Weekly D2179c]. Importantly, the hearing officer did not find that the “confusion doctrine” did not exist under Florida law; rather, he rejected the defense because Petitioner’s “testimony was not persuasive.” App. M at 5. This Court, therefore, rejects Petitioner’s reliance on the “confusion doctrine”.”

Sources: 24 Fla. L. Weekly Supp. 412a Online Reference: FLWSUPP 2406CRAW ;13 Fla. L. Weekly Supp. 932a

A court in Palm Beach Florida has just ruled that the police need a search warrant in a DUI case when they seek to recover the data from a car’s Black Box. This device is known as a vehicle event data recorder. In this case the police downloaded the data from a car’s Black Box 12 days after a crash without obtaining a warrant. The court in a first-ever ruling in Florida found that the cops should have gotten a search warrant. The court ruled. “the constant, unrelenting black box surveillance of driving conditions could contribute to a reasonable expectation of privacy in the recorded data. Considering that the data is difficult to access and not all of the recorded information is exposed to the public, [the driver] Worsham had a reasonable expectation of privacy, and we agree with the trial court that a warrant was required before police could search the black box.”

History of Vehicle Event Data Recorders in Florida Court

In 2009 we wrote and provided a copy of another court opinion on the issues surrounding cops breaking in to a vehicle event recorder.“Prosecutors alleged recently, data from a Corvette that was downloaded from the black box revealed that a defendant’s speed was 103 m.p.h. five seconds before impact and 98 m.p.h. one second before impact. The Speed limit was 40 m.p.h. A recent court ruling noted, ”A search warrant for property may be issued ‘[w]hen any property constitutes evidence relevant to proving that a felony has been committed.’ Section 933.02(3), Fla. Stat. (2006).” Black Box Search Warrant Article from Florida. You can read the complete decision we posted here: 2009 Black Box Florida Court Ruling

I have included some key quotes from the recent Court’s opinion and the complete Court’s opinion follows below.

Florida DUI Vehicle Event Data Recorder Key Quotes

“An event data recorder is a device installed in a vehicle to record “crash data” or technical vehicle and occupant information for a period of time before, during, and after a crash.”

“It is an issue of first impression in Florida whether a warrant is required to search an impounded vehicle’s electronic data recorder or black box.”

“17 states have laws addressing event data recorders, which provide under what circumstances the data may be downloaded.”

“[T]he constant, unrelenting black box surveillance of driving conditions could contribute to a reasonable expectation of privacy in the recorded data.”

“A car’s black box is analogous to other electronic storage devices for which courts have recognized a reasonable expectation of privacy.”

Complete Florida DUI Vehicle Event Data Recorder Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,

v.

CHARLES WILEY WORSHAM, JR.,
Appellee.
No. 4D15-2733
[March 29, 2017]

Appeal of a non-final order from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jack Schramm Cox, Judge; L.T. Case No. 2013CF012609AMB.
Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.
Jack A. Fleischman of Fleischman & Fleischman, P.A., West Palm Beach, for appellee.
GROSS, J.

The state challenges an order granting appellee Charles Worsham’s motion to suppress. Without a warrant, the police downloaded data from the “event data recorder” or “black box” located in Worsham’s impounded vehicle. We affirm, concluding there is a reasonable expectation of privacy in the information retained by an event data recorder and downloading that information without a warrant from an impounded car in the absence of exigent circumstances violated the Fourth Amendment.

Worsham was the driver of a vehicle involved in a high speed accident that killed his passenger. The vehicle was impounded. Twelve days after the crash, on October 18, 2013, law enforcement downloaded the information retained on the vehicle’s event data recorder. The police did not apply for a warrant until October 22, 2013. The warrant application was denied because the desired search had already occurred.

Worsham was later arrested and charged with DUI manslaughter and vehicular homicide. He moved to suppress the downloaded information,

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arguing the police could not access this data without first obtaining his consent or a search warrant. The state defended the search on the sole ground that Worsham had no privacy interest in the downloaded information, so that no Fourth Amendment search occurred.

1 The trial court granted Worsham’s motion.

“A motion to suppress evidence generally involves a mixed question of fact and law. The trial court’s factual determinations will not be disturbed if they are supported by competent substantial evidence, while the constitutional issues are reviewed de novo.” State v. K.C., 207 So. 3d 951, 953 (Fla. 4th DCA 2016) (internal citation omitted). An appellate court is bound by the trial court’s findings of fact unless they are clearly erroneous. Id. The burden is on the defendant to show the search was invalid, “[h]owever, a warrantless search constitutes a prima facie showing which shifts to the State the burden of showing the search’s legality.” Id. (internal citation omitted).

In Florida, citizens are guaranteed the right to be free from unreasonable searches and seizures by the Fourth Amendment to the Unites States Constitution and section 12 of Florida’s Declaration of Rights. Smallwood v. State, 113 So. 3d 724, 730 (Fla. 2013). “The most basic constitutional rule” in the area of Fourth Amendment searches is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” The exceptions are “jealously and carefully drawn,” and there must be “a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.” “[T]he burden is on those seeking the exemption to show the need for it.”

Id. at 729 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 454–55 (1971)).

“A Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” State v. Lampley, 817 So. 2d 989, 990 (Fla. 4th DCA 2002) (quoting Kyllo v. United States, 533 U.S. 27, 33 (2001)). This principle has been applied

1 The state raises inevitable discovery and good faith in its brief. We do not reach these issues because they were not preserved in the circuit court. Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005).

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“to hold that a Fourth Amendment search does not occur . . . unless ‘the individual manifested a subjective expectation of privacy in the object of the challenged search,’ and ‘society [is] willing to recognize that expectation as reasonable.’” Lampley, 817 So. 2d at 990-91 (quoting Kyllo, 533 U.S. at 33)).

Katz v. United States explained “the Fourth Amendment protects people, not places,” so “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” 389 U.S. 347, 351 (1967). One example is a car’s exterior, which “is thrust into the public eye, and thus to examine it does not constitute a ‘search.’” New York v. Class, 475 U.S. 106, 114 (1986); see also Cardwell v. Lewis, 417 U.S. 583, 592 (1974) (permitting warrantless search of an automobile’s exterior).

Nevertheless, information someone seeks to “preserve as private,” even where that information is accessible to the public, “may be constitutionally protected.” Katz, 389 U.S. at 351. This is why “a car’s interior as a whole is . . . subject to Fourth Amendment protection from unreasonable intrusions by the police.” Class, 475 U.S. at 114–15; see also United States v. Ortiz, 422 U.S. 891, 896 (1975) (“A search, even of an automobile, is a substantial invasion of privacy.”).

A car’s black box is analogous to other electronic storage devices for which courts have recognized a reasonable expectation of privacy. Modern technology facilitates the storage of large quantities of information on small, portable devices. The emerging trend is to require a warrant to search these devices. See Riley v. California, 134 S. Ct. 2473 (2014) (requiring warrant to search cell phone seized incident to arrest); Smallwood, 113 So. 3d 724 (requiring warrant to search cell phone in search incident to arrest); State v. K.C., 207 So. 3d 951 (requiring warrant to search an “abandoned” but locked cell phone).

Noting that cell phones can access or contain “[t]he most private and secret personal information, Smallwood, 113 So. 3d at 732, the Florida Supreme Court has distinguished these computer-like electronic storage devices from other inanimate objects:

[A]nalogizing computers to other physical objects when applying Fourth Amendment law is not an exact fit because computers hold so much personal and sensitive information touching on many private aspects of life. . . . [T]here is a far greater potential for the “inter-mingling” of documents and a

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consequent invasion of privacy when police execute a search for evidence on a computer.

Id. (quoting United States v. Lucas, 640 F.3d 168, 178 (6th Cir. 2011)). Because of the “very personal and vast nature of the information” they contain, cell phones are “materially distinguishable from the static, limited-capacity cigarette packet in Robinson.”2 Smallwood, 113 So. 3d at 732. “[T]he search of a static, non-interact
ive container, cannot be deemed analogous to the search of a modern electronic device cell phone.” Id. The Smallwood court made clear that the opinion was “narrowly limited to the legal question and facts with which [it] was presented.” Id. at 741. Nonetheless, the court reiterated its desire to protect Fourth Amendment precedent “by ensuring that the exceptions to the warrant requirement remain ‘jealously and carefully drawn.’” Id. at 740.

The United States Supreme Court drew a similar distinction between a cell phone and other tangible objects in Riley v. California. The Court held that the search incident to arrest exception did not apply because neither rationale–the interest in protecting officer safety or preventing destruction of evidence–justified the warrantless search of cell phone data. Riley, 134 S. Ct. at 2486-88. “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers . . . .” Id. at 2489.

Searches of these “minicomputers,” with their “immense storage capacity,” are far more intrusive than searches prior to the “digital age,” which were “limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy.” Id. The capacity of these devices “allows even just one type of information to convey far more than previously possible.” Id. The Court concluded, “[t]he fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Id. at 2495.

It is an issue of first impression in Florida whether a warrant is required to search an impounded vehicle’s electronic data recorder or black box.3

2 United States v. Robinson, 414 U.S. 218 (1973) (permitting the warrantless search of an arrestee’s person incident to arrest if the officer had probable cause for the arrest).
3 As of this writing, 17 states have laws addressing event data recorders, which provide under what circumstances the data may be downloaded. Privacy of Data From Event Data Recorders: State Statutes, NATIONAL CONFERENCE OF STATE

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An event data recorder is a device installed in a vehicle to record “crash data” or technical vehicle and occupant information for a period of time before, during, and after a crash. NHTSA, Event Data Recorders, 49 C.F.R. § 563.5 (2015). Approximately 96% of cars manufactured since 2013 are equipped with event data recorders. Black box 101: Understanding event data recorders, CONSUMER REPORTS, https://www.consumerreports.org/cro/2012/10/black-box-101-understanding-event-data-recorders/index.htm, (published Jan. 2014).

Most of these devices are programmed either to activate during an event or record information in a continuous loop, writing over data again and again until the vehicle is in a collision. Michelle V. Rafter, Decoding What’s in Your Car’s Black Box, EDMUNDS, https://www.edmunds.com/car-technology/car-black-box-recorders-capture-crash-data.html (updated July 22, 2014). However, if triggered, the device can record multiple events. 49 C.F.R. § 563.9.

The National Highway Traffic Safety Administration has standardized the minimum requirements for electronic data recorders, mandating that the devices record 15 specific data inputs, including braking, stability control engagement, ignition cycle, engine rpm, steering, and the severity and duration of a crash. 49 C.F.R. § 563.7. Along with these required data inputs, the devices may record additional information like location or cruise control status and some devices can even perform diagnostic examinations to determine whether the vehicle’s systems are operating properly.

See Decoding ‘The Black Box’ with Expert Advice, AMERICAN BAR ASSOC. GP SOLO LAW TRENDS & NEWS, www.americanbar.org (May 2005); Vehicular Data Recorder Download, Collection, and Analysis, COLLISION RESEARCH AND ANALYSIS INC., collisionresearch.com.

The information contained in a vehicle’s black box is fairly difficult to obtain. The data retrieval kit necessary to extract the information is expensive and each manufacturer’s data recorder requires a different type of cable to connect with the diagnostic port. Rafter, supra. The downloaded data must then be interpreted by a specialist with extensive training. Id.; see also Melissa Massheder Torres, The Automotive Black Box, 55 REV. DER. P.R. 191, 192 (2015).
LEGISLATURES, https://www.ncsl.org/research/telecommunications-and-information-technology/privacy-of-data-from-event-data-recorders.aspx (Jan. 4, 2016). Florida does not have similar legislation.

– 6 –

The record reflects that the black box in Worsham’s vehicle recorded speed and braking data, the car’s change in velocity, steering input, yaw rate, angular rate, safety belt status, system voltage, and airbag warning lamp information.

Extracting and interpreting the information from a car’s black box is not like putting a car on a lift and examining the brakes or tires. Because the recorded data is not exposed to the public, and because the stored data is so difficult to extract and interpret, we hold there is a reasonable expectation of privacy in that information, protected by the Fourth Amendment, which required law enforcement in the absence of exigent circumstances to obtain a warrant before extracting the information from an impounded vehicle.

Although electronic data recorders do not yet store the same quantity of information as a cell phone, nor is it of the same personal nature, the rationale for requiring a warrant to search a cell phone is informative in determining whether a warrant is necessary to search an immobilized vehicle’s data recorder. These recorders document more than what is voluntarily conveyed to the public and the information is inherently different from the tangible “mechanical” parts of a vehicle. Just as cell phones evolved to contain more and more personal information, as the electronic systems in cars have gotten more complex, the data recorders are able to record more information.4 The difficulty in extracting such information buttresses an expectation of privacy.

Recently enacted federal legislation enhances the notion that there is an expectation of privacy in information contained in an automobile data recorder. The Driver Privacy Act of 2015 states that “[a]ny data retained by an event data recorder . . . is the property of the owner . . . of the motor vehicle in which the event data recorder is installed.” § 24302(a), 49 U.S.C. § 30101 note (2015). The general rule of the statute is that “[d]ata recorded or transmitted by an event data recorder . . . may not be accessed by a person other than an owner . . . of the motor vehicle in which the event data recorder is installed.” § 24302(b) (emphasis added). There are only five exceptions to this rule, which include authorization from a court or administrative authority or consent of the owner. § 24302(b)(1)-(5).

4 See U.S. GOV’T ACCOUNTABILITY OFF., REPORT TO CHAIRMAN, SUBCOMM. ON PRIVACY, TECH. AND THE
LAW, COMM. ON THE JUDICIARY, U.S. SENATE, (Dec. 2013), https://www.gao.gov/assets/660/659509.pdf; Peter Gareffa, Senate Committee Approves Black Box Privacy Bill, EDMUNDS, (Apr. 18, 2014), https://www.edmunds.com/car-news/senate-committee-approves-black-box-privacy-bill.html.

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A state court in California has addressed the Fourth Amendment’s application to a vehicle’s data recorder. That authority is not persuasive or controlling and was decided prior to the passing of the Driver Privacy Act of 2015.

People v. Diaz, held that the defendant lacked a privacy interest in his vehicle’s speed and braking data, obtained from the “sensing diagnostic module” after a fatal accident, 153 Cal. Rptr. 3d 90 (Cal. Ct. App. 2013). It was undisputed the search was conducted without a warrant, over a year after the accident. Id. at 96. There was testimony about the defendant’s speed at the time of the accident, but the officer conceded this was based on the information downloaded from the vehicle’s sensing diagnostic module. Id. at 94.

The court concluded that the defendant failed to demonstrate “a subjective expectation of privacy in the SDM’s recorded data because she was driving on the public roadway, and others could observe her vehicle’s movements, braking, and speed, either directly or through the use of technology such as radar guns or automated cameras.” Id. at 102. Since the diagnostic module “merely captured information defendant knowingly exposed to the public,” downloading that information without a warrant was not a violation of the Fourth Amendment. Id. (citing Smith v. Maryland 442 U.S. 735, 741–45 (1979) (holding installation of a pen register did not violate the Fourth Amendment because it only recorded information “voluntarily conveyed . . . in the ordinary course of business.”)).

Diaz is unpersuasive. It relied on Smith v. Maryland, which found no expectation of privacy in information “voluntarily conveyed” to a third party. 422 U.S. at 745. However, when addressing digital devices, the Supreme Court has moved away from the Smith rationale. In United States v. Jones, the Court could have relied on Smith when considering the constitutionality of placing a GPS tracking device on a vehicle without a warrant, since the vehicle’s position “had been voluntarily conveyed to the public.” 132 S. Ct. 945, 951 (2012). Instead, the Court relied on a trespass theory to find that while “mere visual observation does not constitute a search,” attaching a device to the vehicle or reaching into a vehicle’s interior constitutes “encroach[ment] on a protected area.” Id. at 952-53.

Additionally, the Diaz court’s reliance on Smith v. Maryland seems misplaced because, as the opinion acknowledged, sensory diagnostic modules can record much more information than what is observable to the public, including “the throttle, steering, suspension, brakes, tires, and wheels.” 213 Cal. App. 4th at 748. We disagree with Diaz that all black box data is “exposed to the public.”

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Although the issue was not before the Court, the majority in Jones acknowledged that acquiring data “through electronic means, without an accompanying trespass,” could still be “an unconstitutional invasion of privacy.” Id. at 953.

In his concurring opinion, Justice Alito expressed a preference for analyzing the case by “asking whether [Jones’s] reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.” 132 S. Ct. at 958. Justice Alito observed that the Katz expectation-of-privacy test, rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the trade off worthwhile.
Id. at 962.

Under Justice Alito’s approach, the constant, unrelenting black box surveillance of driving conditions could contribute to a reasonable expectation of privacy in the recorded data. Considering that the data is difficult to access and not all of the recorded information is exposed to the public, Worsham had a reasonable expectation of privacy, and we agree with the trial court that a warrant was required before police could search the black box.

Affirmed.
KLINGENSMITH, J., concurs.
FORST, J., dissents with opinion.
FORST, J., dissenting.
I respectfully dissent. There are not many court opinions addressing a warrantless search of the “black box” event data recorder (“EDR”) attached to an individual’s motor vehicle.5 An opinion by a “Justice Court” in New
5 In General Motors vehicles, the EDR is also referred to as the “Sensing Diagnostic Module (SDM).” People v. Diaz, 153 Cal. Reptr. 3d 90, 92 n.2 (Ct. App. 2013); People v. Christmann, 776 N.Y.S.2d 437, 438 (Just. Ct. 2004). “The SDM . . . has multiple functions: (1) it determines if a severe enough impact has occurred to warrant deployment of the air bag; (2) it monitors the air bag’s

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York (similar to a circuit court in Florida)6 and an appellate court in California7 appear to be the only published precedent addressing the instant matter. Obviously, searches of EDRs in motor vehicles were not on the minds of the first United States Congress when the Fourth Amendment was introduced in 1789, and the United States Constitution’s right to privacy sheds no light on the subject (particularly since there is no provision actually describing such a right to privacy).8

Thus, there is no definitive answer to the question posed in this case—whether the warrantless search of Appellee’s car’s EDR constituted a violation of his Fourth Amendment protection against unreasonable searches. Nonetheless, contrary to the well-reasoned majority opinion, I conclude that the “search” of the EDR attached to Appellee’s vehicle was not a search or seizure protected by the Fourth Amendment, as Appellee did not have a reasonable expectation of privacy with respect to the data in this particular EDR.

Background
The relevant facts are set forth in the majority opinion.
Analysis

As noted in the majority opinion, “[a] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” State v. Lampley, 817 So. 2d 989, 990 (Fla. 4th DCA 2002) (quoting Kyllo v. United States, 533 U.S. 27, 33 (2001)). The reverse is also true: “a Fourth Amendment search does not occur . . . unless ‘the individual manifested a subjective expectation of privacy in the object of the challenged search,’ and ‘society [is] willing to
components; and (3) it permanently records information.” Bachman v. Gen. Motors Corp., 776 N.E.2d 262, 271-72 (Ill. App. Ct. 2002).

6 Christmann, 776 N.Y.S.2d 437.
7 Diaz, 153 Cal. Reptr. 3d 90. Diaz is discussed in this opinion. Another California appellate court decision, People v. Xinos, 121 Cal. Rptr. 3d 496 (Ct. App. 2011), which held that the downloading of data from the vehicle’s EDR following an accident violated the driver’s Fourth Amendment rights, is not discussed as it predates Diaz and was ordered not to be officially published. Id. at 507-12.
8 Appellee does not rely upon the Florida Constitution’s Right of Privacy, Article I, Section 23. Further, that provision yields to Article I, Section 12 with respect to “searches and seiz ures,” with the Florida Constitutional right “construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.”

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recognize that expectation as reasonable.’” Id. at 991 (alterations in original) (quoting Kyllo, 533 U.S. at 33).

In contrast to a cellular phone, an EDR does not contain “a broad array of private information” such as photos, passwords, and other “sensitive records previously found in the home.” Riley v. California, 134 S. Ct. 2473, 2491 (2014). Significantly, the EDR in the instant case did not contain GPS information relative to the vehicle’s travels, which may be subject to privacy protection. See United States v. Jones, 565 U.S. 400, 415-17 (2012) (Sotomayor, J., concurring) (expressing concern with GPS information which “reflects a wealth of detail about [a person’s] familial, political, professional, religious, and sexual associations”). As noted in the majority opinion, the EDR in this case was only recording speed and braking data, the car’s change in velocity, steering input, yaw rate,9 angular rate, safety belt status, system voltage, and airbag warning lamp information. Moreover, this data had not been knowingly inputted by Appellee; in fact, it is likely that Appellee did not even know that the vehicle he was driving had an EDR. Therefore, it would be quite a stretch to conclude that Appellee sought to preserve this information as “private.”

The majority opinion references the United States Supreme Court’s Riley decision as well as this Court’s recent opinion in State v. K.C., 207 So. 3d 951 (Fla. 4th DCA 2016). Both cases involved cell phones. As distinguished from an EDR attached to an undercarriage of a motor vehicle, cell phones are usually carried close to an individual’s body, generally in a pants or shirt pocket or in a purse or belt case. The database of the EDR in this case carries extremely non-private, non-confidential information, such as the vehicle’s yaw rate; a cell phone, on the other hand, “collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record.” Riley, 134 S. Ct. at 2489. A reasonably prudent seller of his/her used cellphone or personal computer would clear the hard drive of all personal information; the seller of a used vehicle would be unlikely to take similar action with respect to the vehicle’s EDR.
9 “A yaw rotation is a movement around the yaw axis of a rigid body that changes the direction it is pointing, to the left or right of its direction of motion. The yaw rate or yaw velocity of a car, aircraft, projectile or other rigid body is the angular velocity of this rotation . . . .” Yaw (rotation), WIKIPEDIA (Mar. 13, 2017, 2:37 PM), https://en.wikipedia.org/wiki/Yaw_(rotation) (emphasis omitted). Yes, I also didn’t know what this was.

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In our K.C. opinion, we emphasized that, though abandoned by the phone’s owner, “[the] contents [of the cell phone] were still protected by a password, clearly indicating an intention to protect the privacy of all of the digital material on the cell phone or able to be accessed by it.” K.C., 207 So. 3d at 955. The private data in a cell phone is, for the most part, created by the owner and is password protected by the owner for his/her own benefit and privacy. The data on the EDR, however, was not created by the owner and was not protected by a password by or for the benefit of the owner (even though there apparently was a password-like encryption on the data). This data is collected and stored in the interest of public safety, including the safety of the vehicle’s driver.

In the aforementioned New York Christmann decision which involved a prosecution for speeding and failing to exercise due care, the court held that the motorist had only a diminished expectation of privacy following an accident with respect to the vehicle’s mechanical areas, and therefore retrieval by law enforcement of data stored in the vehicle’s SDM did not constitute an unreasonable search and seizure. Christmann, 776 N.Y.S.2d at 441-42; see also People v. Quackenbush, 670 N.E.2d 434, 439-40 (N.Y. 1996) (similar, and specifically referring to the diminished expectation of privacy yielding to the overwhelming state interest in investigating fatal accidents).

The California case of Diaz involved a situation similar to the instant case. Diaz, 153 Cal. Rptr. 3d 90. There was a motor vehicle accident and, as part of their investigation, law enforcement personnel, without a warrant, downloaded the SDM. Id. at 96. The California Court of Appeal affirmed the trial court’s ruling that there was no reasonable expectation of privacy with respect to the data in the SDM, finding the defendant failed to demonstrate “a subjective expectation of privacy in the SDM’s recorded data because she was driving on the public roadway, and others could observe her vehicle’s movements, braking, and speed, either directly or through the use of technology such as radar guns or automated cameras.” Id. at 102. “[T]echnology merely captured information defendant knowingly exposed to the public—the speed at which she was travelling and whether she applied her brakes before the impact.” Id.
The majority opinion discounts the reasoning in Diaz, finding it neither “persuasive [n]or controlling.” Certainly, it is not controlling. However, it is persuasive, as the trial court’s decision denying the defendant’s motion to suppress, quoted in the District Court’s opinion, is particularly logical:
“Assuming the defendant had such knowledge [that there was an SDM in the car] and also had an expectation of privacy, it

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does not seem that such expectation would be reasonable. These computer modules were placed in cars as safety devices to gather information such as braking and speed, so as to be able to deploy the air bag at an appropriate time. They were not designed to gather any personal information nor designed or developed by the government to gather incrimination evidence from a driver. One cannot record communication of any kind on them. Indeed, they are not under the control of the individual driver at all.”
The trial court further held: “[Defendant] had no reasonable expectation of privacy in her speed on a public roadway or when and if she applied her brakes shortly before the crash. If a witness observed those actions and testified to them, the evidence would be admitted. If an expert in accident reconstruction testified to them, that evidence would be admitted. There is no difference in an electronic witness whose memory is much more accurately preserved, both to exonerate and implicate defendants.”

Id. at 97.
The majority opinion maintains that Diaz inappropriately relied on Smith v. Maryland, 442 U.S. 735 (1979), and implies that Jones is the operative Supreme Court precedent for this issue. Actually, the Diaz opinion discusses Jones at some length, noting that the Supreme Court decision was based “on the common law theory of trespass in placing the GPS on the defendant’s personal property, combined with the police attempt to obtain information,” and the “trespass theory underlying Jones has no relevance [in this SDM search case] and, as the trial court aptly pointed out, the purpose of the SDM was not to obtain information for the police.” Diaz, 153 Cal. Rptr. 3d at 101. The majority in the instant case suggests that the Jones opinion’s reliance on this trespass theory when it could have relied on the Smith theory means that Smith is no longer binding precedent. But the fact that the Supreme Court chose to resolve Jones on the narrower trespass grounds rather than to wade into the waters of voluntary conveyance of information from Smith means only that trespass is a viable Fourth Amendment consideration, not that trespass is the only consideration remaining.

Furthermore, in Jones, the government placed a GPS tracking device on the defendant’s car to monitor the vehicle’s moveme nt and location. Jones, 565 U.S. at 403. By contrast, an EDR is installed on vehicles before they are sold/leased to a driver and the purpose is not to track the vehicle’s

– 13 –

location or route. Moreover, although the EDR is placed under the vehicle and most vehicle owners and drivers are unaware that there is such a black box attached to the vehicle, there is no attempt on the part of the government to secretively attach the EDR and have it record this information. Unlike the situation in Jones, the attachment of the EDR is not directed at any individual; as noted in the majority opinion, “[a]pproximately 96% of cars manufactured since 2013 are equipped with event data recorders” and they are installed prior to the conveyance of the vehicle to any individual.

Conclusion

The data that the government extracted from the vehicle that was owned and driven by Appellee in this case was not information for which Appellee or any other owner/driver had a reasonable expectation of privacy. The data was not personal to Appellee, was not password protected by Appellee, and was not being collected and maintained solely for the benefit of Appellee. The EDR was installed by the vehicle’s manufacturer at the behest of the National Highway Traffic Safety Administration and, as distinct from Jones, the purpose of the data collection is highway and driver safety. See New York v. Class, 475 U.S. 106, 113 (1986) (“[A]utomobiles are justifiably the subject of pervasive regulation by the State [and e]very operator of a motor vehicle must expect the State, in enforcing its regulations, will intrude to some extent upon that operator’s privacy.”).

Accordingly, as the extraction of data from the vehicle’s EDR in the instant case was not a search or seizure protected by the Fourth Amendment, I would reverse the trial court’s suppression of this evidence. Thus, I respectfully dissent.

Not final until disposition of timely filed motion for rehearing.

Tampa Criminal Defense BUI Attorney will be providing live Arrest Reports we will not be using names, but only the charges made, the time and location of the Gasparilla Arrests from the Gasparilla Pirate Fest. We will have video and updates throughout the day. We will be monitoring several sources including the Hillsborough County Jail on Orient Road near Tampa Florida.

Boating Under the Influence Penalties for BOAT 3054 BUI Boating Under the Influence include jail time, fines up to $500.00 for 1st offenses, up to $1,000 for 2nd offenses, and completion of drug and/or alcohol rehabilitation programs. 3rd or 4th convictions of BUI are often charged with a felony instead of a misdemeanor. Possession of Alcohol Under 21 MISC0112 was the most frequent charge for Gasparilla 2012 Arrests. It appears there were far fewer arrests this year than last year’s 359 arrests. Fox Tampa Bay reports, “Over 200 open container citations were issued and only 16 adults were arrested – 14 of those were misdemeanor charges.” These numbers are consistent with our reporter’s investigation and other sources we monitored.

Criminal Defense Attorney Needed? Call (813) 222-2220.

While there were several DUI charges in the early morning, it was not until late afternoon that we saw a BUI Boating Under the Influence Arrest BOAT 3054in Garrison Channel. In 2010 there were 5 Gasparilla Pirate Fest BUI Boating Under the Influence Arrests. The Police, Sheriff’s Office, Coast Guard, and Florida Fish and Wildlife may be using a Mobile Facility this year to process arrests made on the water. Penalties for BUI – boating under the influence can include jail time, fines up to $500.00 for 1st offenses, fines up to $1,000 for 2nd offenses, and drug and alcohol rehabilitation programs. Those facing 3rd and 4th convictions of BUI are often charged with a felony instead of a misdemeanor.

Hourly Arrest Updates

11 pm Arrest Update

No Gasparilla arrest suspects were booked into the Orient Road Jail this hour. Hopefully it has quieted for the night and no one else will get in trouble. We will be working all weekend, so if anyone has questions call (813) 222-2220.

10 pm Arrest Update

BUI Seddon Channel 5:45 pm
BUI Hookers Point 6:38 pm
Obstruct Kennedy 7:22 pm

9 pm Arrest Update

Obstruct Ashley St 2:30 pm
Obstruct Platt St 2:30 pm
BUI Hillsborough River 4:29 pm
Trespass Fielding St 4:45 pm
BUI Port of Tampa 5:25 pm
DUI Bay to Bay 5:45 pm
BUI Seddon Channel 5:53 pm

8 pm Gasparilla Arrest Update

Poss Alcohol Minor Bayshore 4:00 pm
Disorderly Conduct Bayshore 4:16 pm

7 pm Gasparilla Arrest Update

BUI Garrison Channel 4:09 pm

6 pm Gasparilla Arrest Update

Theft Morrison 2:46 pm
Poss Ecstasy Bayshore 2:50 pm
Theft Morrison 3:10 pm
Disorderly Conduct Morrison 3:20 pm

5 pm Arrest Update

Trespass Bayshore 1:15 pm
Minor Poss Alcohol Bayshore 1:55 pm
Minor Poss Alcohol Howard 1:55 pm
Minor Poss Alcohol Howard 2:00 pm
False ID Howard 2:00 pm

4 pm Gasparilla Arrest Update

While the early morning was busy at Ashley Drive and Kennedy Boulevard, has been quiet.

3 pm Gasparilla Arrest Update

All quiet. Makes me wonder if the arrests are being handled at a remote booking facility.

2 pm Gasparilla Arrest Update

All quiet at the Hillsborough County Jail

1 pm Gasparilla Arrest Update

All quiet on the Bayfront

Noon Gasparilla Arrest Update

After quite a bit of early morning DUI activity on Ashley and Kennedy early this morning – seems quiet now.

11 am Arrest Update

DUI Bayshore 12:00 Midnite
Battery Platt Street 1:44 am
DUI Kennedy 157 am
DUI Howard Ave 3:35 am
DUI Ashley 4:15 am
DUI Ashley 4:33 am
DUI Platt 4:36 am
DUI Kennedy 4:41am

Latitude 27.947500° N
Longitude 82.458611° W

Possession of Alcohol Under 21

Criminal Defense Attorney Needed?  Call (813) 222-2220.

Gasparilla Zero Tolerance Policy Includes:

Must be 21 or older to consume alcohol

No trespassing on private property

562.111 Possession of alcoholic beverages by persons under age 21 prohibited.

(1) It is unlawful for any person under the age of 21 years, except a person employed under the provisions of s. 562.13 acting in the scope of her or his employment, to have in her or his possession alcoholic beverages, except that nothing contained in this subsection shall preclude the employment of any person 18 years of age or older in the sale, preparation, or service of alcoholic beverages in licensed premises in any establishment licensed by the Division of Alcoholic Beverages and Tobacco or the Division of Hotels and Restaurants. Notwithstanding the provisions of s. 562.45, any person under the age of 21 who is convicted of a violation of this subsection is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; however, any person under the age of 21 who has been convicted of a violation of this subsection and who is thereafter convicted of a further violation of this subsection is, upon conviction of the further offense, guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(3) In addition to any other penalty imposed for a violation of subsection (1), the court shall direct the Department of Highway Safety and Motor Vehicles to withhold issuance of, or suspend or revoke, the violator’s driver’s license or driving privilege, as provided in s. 322.056.

The Ultimate Guide to DUI Defense in Florida

Introduction

Welcome to the comprehensive world of DUI defense in Florida! In this 86-page color-illustrated DUI Defense Book, you will embark on a journey through the intricacies of Florida’s strict driving under the influence laws. From the moment of arrest at the roadside, to your stay in the county jail, the impoundment of your vehicle, posting of bond, and the battle to keep your driver’s license intact, we’ll guide you through it all. The path from arrest to days or months in court may seem daunting, but within the pages of this book, you will find the information you need and the hope that you, a friend, or a loved one may need. This book is your key to knowledge, and it will equip you to fight like an expert.

Table of Contents

This DUI Defense Book, authored by a DUI expert from Tampa, Florida, covers a wide range of topics that are essential for anyone facing a DUI charge. Here’s a glimpse of what you’ll find inside:

Understanding Florida’s DUI Laws:

Get a comprehensive overview of Florida’s strict DUI laws and the penalties associated with them.

The Arrest Process:

Learn about what to expect during a DUI arrest, your rights, and how to navigate this stressful situation.

County Jail Experience:

Discover what it’s like to spend time in the county jail after a DUI arrest and how to cope with this challenging situation.

Vehicle Impoundment:

Understand the process of impounding your vehicle and the steps you can take to address this issue.

Posting Bond:

Explore the intricacies of posting bond after a DUI arrest and ensuring your release from jail.

Protecting Your Driver’s License:

Learn how to safeguard your driver’s license, as the driver’s license office may attempt to suspend it.

The Legal Battle:

Get insights into the legal process, court proceedings, and the strategies you can employ to fight your DUI charge effectively.

Hope and Information:

Find the hope and information you need to face your DUI case with confidence.

Available Formats

This invaluable DUI Defense Book is available in multiple formats, making it convenient for you to access the information you need:

Paperback: You can purchase the paperback version of the book here.

eBook: If you prefer digital formats, you can download the eBook version here.

UPDATE: Access on iTunes

Great news! The DUI Defense Attorney book is now available on iTunes, adding another convenient platform for accessing this valuable resource. You can download the DUI book with iBooks on your Mac or iOS device, or use iTunes on your computer.

Click here to access the DUI Defense Attorney book on iTunes.

Amazon Availability

We’re excited to announce that Amazon has also picked up our #DUI book. Thanks to everyone for your support!

You can find the book on Amazon by following this link: DUI: The People’s Guide to Fighting Like an Expert on Amazon.

Amazon Author Page

Explore more of the author’s works and insights on the Amazon Author Page. You’ll find a collection of valuable resources related to DUI defense and legal expertise.

Visit the Amazon Author Page here.

Available at Barnes and Noble

If you prefer Barnes and Noble for your book purchases, you can find the DUI Defense Book there as well.

Get your copy of DUI: The People’s Guide to Fighting Like an Expert at Barnes and Noble here.

Sample Preview on Google Books

For a sneak peek into the DUI Attorney book, you can read a sample on Google Books. This sample provides a glimpse of the valuable information and insights you’ll find within the book.

Read a sample of the DUI Attorney book on Google Books here.

Conclusion

Facing a DUI charge in Florida can be a daunting experience, but with the right knowledge and resources, you can navigate the legal process and fight like an expert. This DUI Defense Book, authored by a seasoned DUI expert, offers the guidance and information you need to protect your rights and achieve the best possible outcome in your case. Whether you prefer a paperback or digital format, you can access this valuable resource conveniently.

Remember, knowledge is power, and this book is your key to understanding and mastering the complexities of DUI defense in Florida. Get your copy today and embark on your journey to fight like an expert!

Read a sample of the DUI Attorney book here on Google Books:

Book Reviews:

By Richard Georges, Esquire May 16, 2015

“This new book by my former student, Casey Ebsary, is a quick, easy read full of useful informaton about what to do if charged with DUI. There are many details that can be marshaled by the arrested driver, and Casey outlines them for the reader. Don’t go it alone. Get legal advice; but, before you are arrested, read this book. Of course, my solution, don’t drink and drive, will help more. But, that said, you need to know the law if you are going to limit the impact of an arrest.”

Futurelawyer.com

By Michael Maddux, Attorney-at-Law May 16, 2015

“The author has taken his two decades plus of experience as a state prosecutor and board-certified criminal trial attorney and distilled his insight into a practical application for the layperson. This is the one guide you will want to march you through the complicated terrain of DUI litigation. Those who own this guide are sure to find comfort in their journey through an unpleasant process that affects a broad spectrum of people. Given the significant costs of a DUI knowing how to survive one and defeat the typical outcome makes this book a bargain.”

Tampa Lawyer

By Deva Caprice May 17, 2015

“If you are not fortunate enough to have an attorney as capable as Mr. Ebsary as your counsel, at least you can take the distillation of his wisdom and practical experience and teach your public defender a thing or two before your day in court and then maybe you’ll stand a chance and won’t have to use your lawn mower as transportation. Good Luck! But why count on luck when the law actually can be on your side…as long as you are privy to the rare and precious factoids provided in the concise and easy to read guide. Cheers!”

A Driver

#DUI: The People’s Guide to Fighting Like an Expert

By W.F. ”Casey” Ebsary Jr (Tampa, Florida 2015)

DUI Book Table of Contents

Introduction: Do You Need a DUI Lawyer?
3-Step Roadmap to Getting Back on the Road
The Traffic Stop
DUI Checkpoints
Vehicle Seizures and Forfeitures
Checkpoint Invalidated
DUI Checkpoint Invalid
Law Enforcement DUI Checkpoint or Roadblock Manual
Wolf Packs
DUI Arrest Contests
No Bad Driving
Anonymous Tips
Traffic Stop by Non Law Enforcement
The Roadside Encounter
Field Sobriety “Tests” | Not Really
Video Recording of Police Encounters
Roadside Policy on DUI Arrests
Refusal of Roadside Testing for DUI
Five Field Sobriety Exercises
HGN – Horizontal Gaze Nystagmus
Five Things to Know About Drug Recognition Experts
Walk and Turn
One Leg Stand
Finger to Nose
ABC – Reciting the alphabet
Failure to Follow Proper Procedures
Phony Reporting Roadside Sobriety Investigation
Illegal Detention
DUI Detention After a Crash
The Arrest
Targeting Restaurants and Bars
Citizen’s Arrest
The Breath Test
Refusal to Submit to Chemical Test
Implied Consent Warning
What Does a Cop Suspected of DUI Do When Asked?
What About a Driver’s Miranda Rights?
Breath Test Results Report
Witnesses Required For Court
Broken Breath Machines
Calibration of the Breath Machine
Tinkering with Intoxilyzer 8000 Breath Machines
Roadside Breath Testing Not Used
Portable Breath Testing for Under Age 21
The Driver’s License
Florida DUI License Suspension
DUI Conviction on Driving Record for 75 Years
Summary of Florida DUI License Suspension Laws
Failure to Challenge Suspension Within 10 Days
Consequences of a DUI
Business or Employment Reinstatement
Refusal of a Blood Test
The Court
Florida Standard Jury Instruction for DUI Breath Alcohol
Jury Trial Victories
Acquittal of a DUI Charge
The Impact
Vehicle Impounded
First Time DUI Penalties
Second Time DUI Penalties
How to Go to Jail
Third time DUI Penalties
How to Get a Felony DUI
Commercial Drivers and DUI
Blood Testing
Hardship License Prohibited
Notes

Paperback Details

ISBN 9781329123335

Copyright Law Office of W.F. “Casey” Ebsary Jr.

First Edition

Published May 16, 2015

Pages 86

Paperback Full Color

eBook Details

ISBN9781329141872

CopyrightLaw Office of W.F. “Casey” Ebsary Jr.

First Edition

PublishedMay 16, 2015

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2023 and historically, there were 42 Gasparilla Pirate Festival related arrests and 63 open container civil citations (No open containers of alcohol outside the “wet-zone” or the parade route). Do not end your party in jail! With just a little fore thought you here are 8 ways to get to Gasparilla 2015 and avoid a DUI or BUI this weekend:

Gasparilla Pirate Festival Travel Plans

1. Charter a Helicopter.

oldcityhelicopters.com charters helicopters from Davis Island (813) 254-1300

2. Charter a Yacht.

suncoastadventurecenter.com charter a yacht and crew (727) 480-8289

3. Take a Bus Or Streetcar

Hillsborough Area Regional Transit will be running extra buses. Park and ride the bus both ways for only $4. (813) 254-HART or (813) 254-4278

4. Take a Taxi

Suburban Taxi (727) 260 8294

Go Taxi Florida (727) 386-6787

Metro Taxi (727) 412-2101

Yellow Cab (813) 253-0121

Cab Plus (813) 288-8888

United Cab (813) 251-5555

TampaWaterTaxiCo.com for a little twist try a water taxi (813) 900-3288

5. Designate a Driver: A Friend or a Service for Hire.

You or a friend agree not to drink and be the designated driver for the day.

ZingoTampa.com You drive yourself there and hire someone to come and drive your car home. (888) ZIN-GO 11 or (888) 946-4611

DesignatedTampa.com You drive yourself there and hire someone to come and drive your car home. (813) 444-2332

6. Get a Car Ride From a Friend or Pay For a Car Ride.

Ride in a friend’s car with your friend who will not be drinking.

Uber.com download application onto your phone then arrange for a pickup.

Lyft.com download application onto your phone then arrange for a pickup.

7. Get a Hotel Near the Route and Sleep It Off.

Hyde Park Hotel 2105 West Bristol Avenue, Tampa, FL 33606 (813) 254-2000

Epicurean Hotel Autograph Collection 1207 South Howard Avenue Tampa, FL 33606 (813)999-8700

Embassy Suites® Tampa – Hilton.com\u200e 513 South Florida Avenue, Tampa, FL 33602 (813) 769-8300

Tampa Marriott Waterside Hotel & Marina 700 South Florida Avenue, Tampa, FL 33602 (813) 221-4900

The Westin Tampa Harbour Island 725 South Harbour Island Boulevard, Tampa, FL 33602 (813) 229-5000

Hilton Tampa Downtown 211 North Tampa Street, Tampa, FL 33602 (813) 204-3000

Sheraton Tampa Riverwalk Hotel 200 North Ashley Drive, Tampa, FL 33602 (813) 223-2222

8. As a Last Resort Call AAA

AAAs TOW2GO at (855)TOW2GO (855)286-9246

Mention of third party companies and products is for informational purposes only and constitutes neither an endorsement nor a recommendation.

Read Our Past Gasparilla Pirate Festival Posts:

Mr. Casey Ebsary, Tampa Criminal Defense Lawyer, found this Tampa Police Video. Casey Ebsary ((813) 222-2220) is working this weekend helping people charged at this year’s Gasparilla in Tampa.

16 Tips For Surviving Gasparilla Piratefest Invasion

Believe it or not, it is possible to enjoy the Gasparilla Pirate Invasion without waking up with a criminal record…Read More

Tampa Attorney BUI | Boating Under Influence | Gasparilla Arrest

In one recent Piratefest weekend there were 5 Gasparilla BUI Boating Under the Influence Arrests…Read More

Boating Under the Influence – Crash Video

BUI charged Speedboat driver charged with manslaughter in fatal crash

Gasparilla Notice to Appear or Arrest? Affordable Help From an Attorney | Lawyer | (813) 222-2220

In 2010 there were 5 BUI Boating Under the Influence Arrests. The Police, Sheriff’s Office, Coast Guard, and Florida Fish and Wildlife will be using a Mobile Facility this year to process arrests

Arrest Report Gasparilla Update

Tampa police reported 349 arrests, most for alcohol violations and all but three misdemeanors…Read More

Under Florida DUI laws / traffic laws sections 316.656 and 322.2615 trial judges in county or circuit courts cannot alter the administrative suspension and / or revocation periods. On an equally important note, courts are prohibited from withholding adjudication in DUI cases; or from reducing a DUI charge if the defendant’s blood alcohol was over .20 . The only way to have an impact on the ability to drive after a DUI traffic stop, an arrest for DUI, a refusal to submit to a chemical test, or a breath result above .08 is to immediately take advantage of the procedures available via the Department of Highway Safety and Motor Vehicles (DHSMV) Bureau of Administrative Reviews (BAR).

Why Should I Hire a DUI Lawyer?

When stopped and arrested for DUI you may need to set a court hearing. Sometimes the hearing dates are set automatically. One reason to hire a competent DUI attorney is to find out the benefits that may be gained by investigating possible defenses, the risks of conviction, and what sentence may be imposed. Sometimes prosecutors make specific offers, but it is tough for defendants to reach out and personally discuss the case without making statements that the State can use against the driver.

What Would Be the Advantage of Hiring a Criminal Defense Attorney?

Sometimes drivers consider contacting the Office of the State Attorney or the Prosecutor in their own DUI case. The defense attorney can help with the initial administrative license suspension that will occur, if not challenged, within 10 days of the traffic stop and arrest. The lawyer may be able to help get a driving permit for work or business purposes. This short time period (less than two-weeks) will come and go long before the police, the clerk of courts, the Judge and prosecuting authorities ever even open a case file and set a court date. That is why many people hire private lawyers to find out if an arrest was improper. If the right questions are asked during the defense attorney’s investigation, the lawyer may be able to get the case dismissed. A lawyer may be able to get a better plea arrangement, keep you on the road, and out of jail.

What is the Legal Limit under Florida DUI Law?

Since an arrest for DUI can be made if an officer thinks a driver’s normal faculties are impaired, there is no legal limit. In Florida, a person can be arrested and convicted of DUI after consuming any amount of alcohol, even if the results are below a .08. Sometimes drivers are arrested and submit to other chemical tests and the results will not be available for weeks after the arrest.

What Does a .08 mean?

Frequently a .08 is referred to as the legal limit. In Florida this is not entirely accurate. Under Florida Law, .08 BAC is a presumptive level for impairment. In other words, if you reach a .08 BAC, you are automatically considered impaired and a jury will be told to presume you are impaired if all procedures have been followed using an accurate breath testing machine. The instructions given to jurors can be found here.

What if a Florida Driver Is Below .08 BAC?

A driver can still be convicted of DUI even if under .08 BAC. This seems unusual and it is. In Florida, if a Prosecutor can convince a Judge and Jury that driving ability was impaired, a conviction and virtually permanent entry on a driver ‘s record will follow.By the way, drivers are already under arrest before even given a breath test in Florida.

Florida DUI Adjudication and Sentencing

Under the DUI Laws in this state, and based upon the Florida Statutes sections 316.656 and 322.2615 a conviction or plea agreement to a driving under the influence charge results in an adjudication which is the legal term for conviction. Upon the closing of a DUI case as charged (without a reduced charge of reckless driving) drivers become convicted criminals and an entry is made on the official driver’s license record. The law states, “no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of s. 316.193 . . . .”

There are also minimum sentences including license suspension, fines, court costs and attendance at an approved alcohol traffic education course commonly referred to as the DUI School. The law provides, “If the suspension of the driver’s license of the person relating to unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher is sustained, the person is not eligible to receive a license for business or employment purposes only pursuant to s. 322.271 until 30 days have elapsed after the expiration of the last temporary permit issued. ” Furthermore, “If the suspension of the driver’s license of the person for failure to submit to a breath, urine, or blood test is sustained, the person is not eligible to receive a license for business or employment purposes only, pursuant to s. 322.271, until 90 days have elapsed after the expiration of the last temporary permit issued.”

A Free Ride For You or a Friend in Florida. Use this number 855-286-9246 to avoid a DUI and the need for a dui lawyer. Download the number to your phone, print it, and share it with all you friends and family. Keep it with you in case you end up in a tight spot. Tow to Go is a program of the Auto Club Group Traffic Safety Foundation. For full details visit

autoclubsouth.aaa.com

DUI Take a Cab or a Tow Truck Call (855) 2-TOW-2-GO

Free Ride for 2 People
No Advance Reservations Allowed
Offer Valid Dec 24 to Jan 1

Recently the Florida Highway Patrol reported that 33.5 percent of fatalities in car crashes were alcohol related. There are programs designed to prevent folks who’ve had a little too much holiday cheer from getting behind the wheel are helping the statistics drop. The American Automobile Association AAA dispatches tow trucks to take tipsy car owners and their vehicles home, free of charge. The service allows bar and restaurant managers to use cabbies as designated drivers from 8 p.m. to 3 a.m. In one three year period, more than 2,500 drunken drivers have remained off the road.

The Florida Highway Patrol Preliminary Fatality Report revealed that there were 37 deaths in some 29 crashes over the Thanksgiving weekend, three of which were alcohol related. “Along with the combination of enforcement and education, the programs certainly do have an impact,” said Lt. David Folsom, who supervises TPD’s traffic unit. Both initiatives run through New Year’s Day.”

To Drive or not to Drive . . .

“The penalties for DUI in the state of Florida can cost as much as $5,000 on the first offense, according to local law-enforcement officials. Offenders face revoked licenses, criminal records, community service, increased insurance rates, probation, fines and possible imprisonment.Still, bar patrons say more leniency from the law and property owners is needed if they want them do the right thing and avoid driving home drunk.Still, the towing costs for a DUI are higher — financially and emotionally — than for requesting a tow, Overstreet said.”They can look at it as they are still getting screwed, but when you compare the cost of a DUI arrest, that’s pretty cheap,” he said. “It’s much worse if you get in an accident and hurt or kill somebody. You’re looking at spending the next 15 years in prison.”

#Gasparilla #PlayTampaBay

Must be 21 or older to consume alcohol
Open containers only permitted in designated areas
Alcohol may not be consumed from kegs or large vessels
Must purchase alcohol from vendors
Only cans or plastic bottles permitted; no glass or Styrofoam cups or containers
More Tips for Surviving the Pirate Apocolypse

“the Court finds that the Petitioner simply lacked the ability to perform the test as requested; consequently, his failure to provide a urine sample cannot constitute willful refusal”

Refusal to Submit to Chemical Test

DUI Defense Attorney Lawyer has previously written about refusal to take a drug urine test under § 322.2615(13) after blowing under .08 on a DUI Breath Test. License suspensions are overturned when there is no “competent substantial evidence” to support a DHSMV Department of Highway Safety & Motor Vehicles Hearing Officer’s ruling. In this recent case, the driver blew a .000, had a medical condition that made urination difficult, tried to give a sample, and the DUI cop classified the failure to give a sample as a refusal. He issued a notice of suspension and it was challenged by a DUI Defense Attorney. The court tossed the suspension, since there was insufficient evidence that the driver willfully refused to take a drug test. Our DUI Searchable Database is here.

Case Excerpts

“Corporal Zeichman transported the Petitioner to the police station and, while recording on camera, asked the Petitioner to submit to a breath test even though he did not believe that the Petitioner was under the influence of alcohol. The Petitioner agreed to take the breath test and was “very cooperative.” The Petitioner performed the breath test which subsequently resulted in scores of .000 and .000. Corporal Zeichman then asked the Petitioner on camera recording to perform a urine test, and the Petitioner agreed to do so. The Petitioner drank numerous glasses of water, repeatedly asked for additional time and water, and never told Corporal Zeichman that he refused to take the urine test. After forty-five minutes, Corporal Zeichman determined that the Petitioner’s failure to urinate was a refusal. Corporal Zeichman then allegedly read the Petitioner Implied Consent Warnings. ” (Citations to Record Omitted).

“In the context of an alleged refusal to submit to a urine test, it must be determined that the driver’s “refusal [was] willful to the extent that if the [driver] is able to submit, he or she is expected to take the test.” 11 Fla. Prac., DUI Handbook § 10:2 (2010-2011 ed.) (emphasis added). In Wolok v. Department of Highway Safety and Motor Vehicles, 1 Fla. L. Weekly Supp. 204 (Fla. 11th Cir. Ct. 1992), the Eleventh Judicial Circuit of Florida held that the failure to perform a urine test is not a refusal when the driver physically cannot provide a urine sample. See also Stack v. Dep’t of Highway Safety & Motor Vehicles, 13 Fla. L. Weekly Supp. 322a (Fla. 11th Cir. Ct. 2006) (holding that the driver did not refuse a test because the driver was confused about whether the urine test was required).3 In Wolok, the defendant’s failure to provide a urine sample was the result of the defendant having a ‘bashful kidney’ and because “he was inhibited by the officer who stared at his genitals.” Wolok, 1 Fla. L. Weekly Supp. 204. The Wolok court thereby recognized that “[t]he only evidence before the hearing officer was that the petitioner could not urinate on demand.” Id.” (Citations to Record Omitted).

“In this case, there is evidence that the Petitioner did not willfully refuse to provide a urine sample. Specifically, the record indicates that the Petitioner promptly performed a roadside sobriety test and a breath test when requested by Corporal Zeichman. ” (Citations to Record Omitted).

“Thus, the Court finds that the Petitioner simply lacked the ability to perform the test as requested; consequently, his failure to provide a urine sample cannot constitute willful refusal. Therefore, based on the evidence in the record and the Court’s interpretation of Wolok, this Court finds that the Hearing Officer’s finding of willful refusal is not supported by competent substantial evidence.” (Citations to Record Omitted).

DUI Drug Urine Test Refusal? Call Casey at (813) 222-2220.

One recent Gasparilla, there were 5 BUI Boating Under the Influence Arrests. The Police, Sheriff’s Office, Coast Guard, and Florida Fish and Wildlife will be using a Mobile Facility this year to process arrests made on the water. See video at bottom of this article. Many of these charges listed below are criminal charges that can result in a permanent criminal record

Common Charges From The Gasparilla Weekend.

If you have been charged with TPOR0064 POSSESSION OF OPEN CONTAINER you can call a Defense Attorney Tampa at (813) 222-2220 and tell me your story.

Form Code: TPOR0064
City of Tampa Municipal Code: 003.40.B
Level: Municipal/Local
Description: POSSESSION OF OPEN CONTAINER

TPOR0064 POSSESSION OF OPEN CONTAINER one of the most commonly charged offenses in Hillsborough County, Florida.

Sec. 3-40. – Consumption and possession of open containers on streets, sidewalks, alleys and other public property.

(b) It is unlawful for any person to possess an open container of an alcoholic beverage upon any street, sidewalk, alley or other public property, including public or semi-public parking lots, within the city.

(1) As used in subsection (b), “open container” means any vessel or container containing an alcoholic beverage, including beer or wine, which is immediately capable of consumption or the seal of which has been broken.

(2) An open container shall be considered to be in the possession of the person if the container is in the physical control of such person.

Tampa Open Container Ordinance Sec. 3-40. – Consumption and possession of open containers on streets, sidewalks, alleys and other public property.

(a)It is unlawful for any person to consume, assist or aid another to consume any alcoholic beverage upon any street, sidewalk, alley or other public property within the city.

(b)It is unlawful for any person to possess an open container of an alcoholic beverage upon any street, sidewalk, alley or other public property, including public or semi-public parking lots, within the city.

(1)As used in subsection (b), “open container” means any vessel or container containing an alcoholic beverage, including beer or wine, which is immediately capable of consumption or the seal of which has been broken.

(2)An open container shall be considered to be in the possession of the person if the container is in the physical control of such person.

(c)Subsections (a) and (b) do not apply when:

(1)The street, connecting sidewalk or alley has been officially temporarily closed upon application to the director of public works and the approval of the city council for the purpose of a block party as provided in this Code; or

(2)A portion of a sidewalk has been leased and permitted as a sidewalk café as provided for in chapter 22 of this Code; or

(3)Public property has been zoned and permitted for the sale of alcoholic beverages pursuant to law; or

(4)A portion of the street, connecting sidewalk or alley has been marked and/or designated as a crossing for a public golf course.

(Ord. No. 99-229, § 1, 10-28-99; Ord. No. 2007-19, § 2, 2-1-07)

MISC0112 Possession of Alcoholic Beverage by Person UND

If you have been charged with MISC0112 POSSESSION OF ALCOHOLIC BEVERAGE BY PERSON UND you can call a Tampa Criminal Defense Lawyer at (813) 222-2220 and tell me your story.

MISC0112 POSSESSION OF ALCOHOLIC BEVERAGE BY PERSON UND is often charged in Hillsborough County, Florida.

Title XXXIV ALCOHOLIC BEVERAGES AND TOBACCO
Chapter 562 BEVERAGE LAW: ENFORCEMENT

562.111 Possession of alcoholic beverages by persons under age 21 prohibited.

(1) It is unlawful for any person under the age of 21 years, except a person employed under the provisions of s. 562.13 acting in the scope of her or his employment, to have in her or his possession alcoholic beverages, except that nothing contained in this subsection shall preclude the employment of any person 18 years of age or older in the sale, preparation, or service of alcoholic beverages in licensed premises in any establishment licensed by the Division of Alcoholic Beverages and Tobacco or the Division of Hotels and Restaurants. Notwithstanding the provisions of s. 562.45, any person under the age of 21 who is convicted of a violation of this subsection is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; however, any person under the age of 21 who has been convicted of a violation of this subsection and who is thereafter convicted of a further violation of this subsection is, upon conviction of the further offense, guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) The prohibition in this section against the possession of alcoholic beverages does not apply to the tasting of alcoholic beverages by a student who is at least 18 years of age, who is tasting the alcoholic beverages as part of the student’s required curriculum at a postsecondary educational institution that is institutionally accredited by an agency recognized by the United States Department of Education and that is licensed or exempt from licensure pursuant to the provisions of chapter 1005 or is a public postsecondary education institution; if the student is enrolled in the college and is tasting the alcoholic beverages only for instructional purposes during classes that are part of such a curriculum; if the student is allowed only to taste, but not consume or imbibe, the alcoholic beverages; and if the alcoholic beverages at all times remain in the possession and control of authorized instructional personnel of the college who are 21 years of age or older.

(3) In addition to any other penalty imposed for a violation of subsection (1), the court shall direct the Department of Highway Safety and Motor Vehicles to withhold issuance of, or suspend or revoke, the violator’s driver’s license or driving privilege, as provided in s. 322.056.

Common Charges From the Gasparilla Weekend.

If you have been charged with TRAF1012 DRIVING UNDER THE INFLUENCE You can call a Tampa Criminal Defense Lawyer at (813) 222-2220 and tell me your story.

Form Code: TRAF1012

Florida Statute: 316.193.1
Level: Misd (Misdemeanor)
Degree: 2nd

Description: DRIVING UNDER THE INFLUENCE

Title XXIII MOTOR VEHICLES
Chapter 316 STATE UNIFORM TRAFFIC CONTROL

316.193 Driving under the influence; penalties.

(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;

(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or

(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

Common Charges From The Gasparilla Weekend.

If you have been charged with TRAF1015 DRIVING UNDER THE INFLUENCE UNLAWFUL BREATH A (DUI determined with a Breathalyzer Intoxilyzer Machine) you can call a Tampa DUI Lawyer at (813) 222-2220 and tell me your story.

Form Code: TRAF1015
Florida Statute: 316.193.1C
Level: Misd (Misdemeanor)
Degree: 2nd
Description: DRIVING UNDER THE INFLUENCE UNLAWFUL BREATH A (DUI determined with a Breathalyzer Machine)

TRAF1015 DRIVING UNDER THE INFLUENCE UNLAWFUL BREATH A (DUI determined with a Breathalyzer / Intoxilyzer Machine) one of the most commonly charged offenses in Hillsborough County, Florida.

Title XXIII MOTOR VEHICLES
Chapter 316 STATE UNIFORM TRAFFIC CONTROL

316.193 Driving under the influence; penalties.

(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;

(b) The person has a blood-alcohol level of 0.08 o r more grams of alcohol per 100 milliliters of blood; or

(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

Police Will Also Be on the Lookout For:

Open Containers Permitted Only Along The Parade Route – In Designated Areas

Must Be 21 Or Older To Consume Alcohol

Alcohol May Not Be Consumed From Kegs Or Large Vessels

No Glass Permitted

Use Port-O-Lets Or Other Restroom Facilities

No Fighting

No Trespassing On Private Property

No Flashing Or Nudity For Beads

Common Charges From The Gasparilla Weekend.

Notice to Appear? Tell Me Your Story Toll Free (813) 222-2220.

Chapter 901 ARRESTS

901.28 Notice to appear for misdemeanors or violations of municipal or county ordinances; effect on authority to conduct search. — The issuance of a notice to appear shall not be construed to affect a law enforcement officer’s authority to conduct an otherwise lawful search, as provided by law.

901.31 Failure to obey written promise to appear.—Any person who willfully fails to appear before any court or judicial officer as required by a written notice to appear shall be fined not more than the fine of the principal charge or imprisoned up to the maximum sentence of imprisonment of the principal charge, or both, regardless of the disposition of the charge upon which the person was originally arrested. Nothing in this section shall interfere with or prevent the court from exercising its power to punish for contempt.

BUI Video

Gasparilla Arrest? Get Affordable Help From an Attorney | Lawyer | Toll Free (813) 222-2220