DUI/DWI Case Results (Part 6)

Internal Reference #20253

Facts: A deputy was assigned to a crime scene perimeter for an attempted homicide of a police officer when the defendant attempted to make a right turn where a deputy was directing traffic and the road was closed using a marked patrol car and crime scene tape. The defendant attempted to drive through the tape as the deputy was directing her not to.

The deputy stopped the defendant, and upon making contact with her he made observations consistent with the defendant being impaired by alcohol and requested a DUI investigation.

An officer arrived at 0115 and contacted the defendant standing on the side walk adjacent to her vehicle. The officer observed she had red watery eyes, flushed face, slurred speech and the odor of an alcoholic beverage coming from her breath.

The officer asked the defendant routine questions and the defendant related that she had only been drinking coke. She did relate that she did switch divers with the white male passenger (owner of the car) about half a mile down the road.

The officer asked the defendant to submit to roadside exercises, which she refused. The officer did advise her that her refusal would be used as evidence against her and that she could be subject to arrest. The defendant maintained her refusal.

The defendant was arrested and she was asked to submit to breath testing, which she refused. The officer advised her of implied consent warnings and she maintained her refusal.

The officer transported the defendant to the sheriff’s office. Upon arriving, Mr. Foley advised the breath testing facility that the defendant had refused testing and she then recanted and asked to take the breath test. The breath test was conducted with results of .089 and .087.

Upon completion of paperwork, the defendant was transported to central booking at the main jail.

Charges:

1. DUI alcohol or drugs (1st offense) (316.193(2a2a)) – Maximum Penalty: 6 months in jail
2. Fail to obey police or fire department (316.072) – Traffic Infraction

Process: Mr. Foley spent much time on the case between negotiating with the state and taking depositions. However, the client failed to complete their contractual obligations so Mr. Foley withdrew from the case.

Results: Mr. Foley withdrew from the case for the client’s failure to meet contracted obligations.

*DUI, if pled to, must be adjudicated guilty. The statute does not allow for a withhold of adjudication. If the defense has valid arguments, the state may reduce the charged. The defendant who has legal arguments that may be dispositive (sufficient to having the case dismissed) must choose whether or not to accept a plea bargain to reduce the charge or to go forward on any motions filed by their attorney. If the defendant chooses to go forward on the motion and wins, the case is dismissed. But if he loses, he also loses the opportunity to have the case reduced.

State vs. Blakely, Kevin 1 – Internal Reference #20258

Facts: At approximately 0110 hours, while on routine uniform patrol in a marked vehicle, the officer was dispatched to an area in reference to a DUI investigation.

Upon arrival, the officer 1 contacted officer 2, who stated the driver was travelling southbound to northbound. Officer 2 observed the driver (later identified as the defendant) at a loop-around where he disobeyed the stop sign by never coming to a stop and pulling in front of oncoming traffic. Officer 2 attempted to conduct a traffic stop in his marked unit by activating his lights and sirens but the driver did not stop for a while. The driver got out of his vehicle and was instructed to get back into his vehicle. While speaking with the driver, officer 2 observed the following signs of impairment: strong odor of an alcoholic beverage emitting from his breath/person, slurred speech, glassy eyes, and unsteady on his feet. The driver advised he was picking up his girlfriend at a bar.

Officer 1 then contacted the driver, who was identified as the defendant by his driver’s license (sitting inside the vehicle – driver seat). While talking with the subject, officer 1 observed the following signs of impairment: an odor of alcoholic beverage emitting from his breath, glassy/bloodshot eyes, slurred speech, and a flushed face. The subject swayed while standing and was unsteady while walking. After making these observations, officer 1 requested the driver to submit to the standardized field sobriety exercises, which he did with the following results: (no injuries/illnesses/medication)

-Horizontal Gaze Nystagmus (HGM): (6 of 6 clues) (Equal tracking/equal pupil size/no resting nystagmus) Lack of smooth pursuit in both eyes. Eye-nystagmus distinct and sustained at maximum deviation in both eyes. Eye-nystagmus distinct prior to 45 degrees in both eyes. Vertical-nystagmus present in both eyes (not a clue but mentioned).

-Walk and Turn (8 of 8 clues): (Solid line) Lost balance while listening to instructions. Started prior to instructions. Subject paused while walking. Did not touch heel-to-toe. Stepped off line. Raised arms for balance. Incorrect number of steps (10 steps on second nine). Incorrect turn (subject did not turn as instructed).

-One Leg Stand: (Did not perform due to weather)

-Finger to Nose: (2 of 5 clues) Failed to return arms to side. Missed finger to nose (Missed two rights and two lefts).

Based on officer 1’s observations the subject was arrested. The defendant was then asked if he would provide a breath sample, he stated that he would not. The officer then read him the Implied Consent Warning, explained it to him and asked if he understood what was read, he stated that he did. Officer 1 again asked if he would provide a breath sample (breath sample only), he again refused. After being transported to the sheriff’s office alcohol testing facility, the defendant was given another opportunity to provide a breath sample, he stated he would take a breath test. The defendant provided two breath samples with the following results: First sample: 0.162g/210L, Second sample: 0.156g/210L.

The defendant is currently on probation for Battery on Law Enforcement Officer/Fire Fighter which is set to expire in two years, therefore this arrest violates the terms of his probation.

A routine check revealed that the defendant has two prior DUI convictions (One this year and one last year) in this county. The defendant’s driving privileges in the state were revoked after the second DUI for five years.

Charges:

1. Felony driving under the influence (3^rd degree) (316.193(2)(b))– Maximum Penalty: 5 years in prison
2. DUI/blood alcohol level above 2.0 (316.193(2)(4))– Maximum Penalty: 9 months in jail
3. Driving while license suspended (322.34(2)(a))– Maximum Penalty: 60 days in jail
4. Disobey stop/yield sign (316.123(2)(a))– Traffic Infraction

Results:

1. Felony driving under the influence (3^rd degree) – Adjudicated
2. DUI/blood alcohol level above 2.0 – Nolle Prosequi (Dismissed)
3. Driving while license suspended – Adjudicated
4. Disobey stop/yield sign – Dismissed

On count 1: 90 days in county jail, followed by 3 years of probation. On count 3: 53 days in county jail to run concurrently, court costs, enter and successfully complete a residential drug program (6 months) , 90 days immobilization, 2 years of ignition interlock, license suspended for 10 years

No Prison

*DUI, if pled to, must be adjudicated guilty. The statute does not allow for a withhold of adjudication. If the defense has valid arguments, the state may reduce the charged. The defendant who has legal arguments that may be dispositive (sufficient to having the case dismissed) must choose whether or not to accept a plea bargain to reduce the charge or to go forward on any motions filed by their attorney. If the defendant chooses to go forward on the motion and wins, the case is dismissed. But if he loses, he also loses the opportunity to have the case reduced.

Internal Reference #20265

Facts: Upon arrival, the officer contacted a deputy, who states he observed a vehicle traveling westbound at a high rate of speed. The deputy said he activated his radar unit and received a reading of 53 mph/35mph zone, he also noticed that the vehicle did not have its headlights on. The deputy said other drivers behind the vehicle were flashing their headlights and pointing at the vehicle. The deputy said when he caught up to the vehicle, another driver pulled up beside him and told him the vehicle without its headlights on ran her off the roadway. The deputy stated he conducted a traffic stop on the vehicle and contacted the driver, while talking with the driver he observed the following signs of impairment: an odor of an alcoholic beverage emitting from his breath, glassy/bloodshot eyes, slurred speech, flushed face, and lethargic movement.

The officer then contacted the driver, who was sitting in the driver seat of the vehicle. While talking with the subject, he observed the following signs of impairment: an odor of alcoholic beverage emitting from his breath, glassy/bloodshot eyes, slurred speech, and a flushed face. After exiting his vehicle, the subject used the trunk for support as he walked passed it. The officer also noticed that he swayed while standing. After making these observations, the officer requested the driver to submit to the standardized field sobriety exercises, which he stated he would. While asking him questions to make sure he did not have any injuries or physical ailments that would prevent him from doing the field sobriety exercises, the subject stated he was going to refuse the field sobriety exercises. He also refused to answer any questions.

The officer then explained that the field sobriety exercises were his opportunity to dispel the officer’s belief that he was impaired and that if he did not do the exercises, the officer would have to make the decision. The officer also explained that if he refused and was arrested that his refusal could be used against him in a court of law. The officer asked if he understood what was explained, he stated that he didn’t understand. The officer explained it to him again and made sure he understood. The officer hen again requested him to submit to the field sobriety exercises, he again refused.

Based on the officer’s observations, the subject was arrested. The defendant was then asked if he would provide a breath sample (requested breath only). He refused and stated he wanted a blood test. The officer then read him the implied consent warning, explained it to him, and made sure he understood what was being read. The officer again asked if he would provide a breath sample, he again refused. After being transported to the sheriff’s office, the defendant was given another opportunity to provide a breath sample, he again refused and stated he wanted a blood test. At the defendant’s request, fire rescue was then called for a blood draw.

When fire rescue arrived, the officer asked the defendant if he still wanted to provide a blood sample, he stated that he did. The officer then walked him out to the rescue unit, where he was seated in the rear cabin. Fire rescue personnel checked his blood sugar, blood pressure, and heart rate (all normal). Fire fighter/paramedic then withdrew 2 law enforcement tubes of blood from the defendant’s left arm at 0042 hours. The officer took custody of the tubes and inverted them several times in order to thoroughly mix the white powder and the blood. The officer then packaged the tubes and submitted them to the county medical examiner’s office for processing.

A routine check revealed that the defendant has a prior DUI conviction in another state from ten years ago.

Charges:

1. DUI Alcohol or Drugs (2nd offense) (316.193(2a2a)) – Maximum Penalty: 9 months in jail
2. Unlawful speed/speed required – Traffic Infraction
3. Vehicle without lights at night – Traffic Infraction
4. Failure to wear safety belt – Traffic Infraction

Process: depositions were taken but the blood was coming in that it was over .15 so greater than 2x the limit. Client decided not to go to trial because of risk.

Results:

1. DUI blood alcohol level above 2.0 – Adjudicated
2. Unlawful speed/speed required – Adjudication Withheld
3. Vehicle without lights at night – Dismissed
4. Failure to wear safety belt - Dismissed

9 months of probation, 10 days of immobilization, 50 hours of community service with the ability to buy out the hours at $10 an hour, no alcohol or intoxicants while on probation, driver’s license suspended for 6 months, interlock device for 6 months, random breath/urine analysis

No Jail

*DUI, if pled to, must be adjudicated guilty. The statute does not allow for a withhold of adjudication. If the defense has valid arguments, the state may reduce the charged. The defendant who has legal arguments that may be dispositive (sufficient to having the case dismissed) must choose whether or not to accept a plea bargain to reduce the charge or to go forward on any motions filed by their attorney. If the defendant chooses to go forward on the motion and wins, the case is dismissed. But if he loses, he also loses the opportunity to have the case reduced.

Internal Reference #20267

Facts: On Sunday, at approximately 0235 hours, the officer responded to an intersection in reference to a traffic accident that occurred.

Upon arrival, both vehicles were in the southbound lanes. A vehicle was facing northbound in the southbound lanes. The driver/defendant, white female, was sitting in the driver seat with the door closed. She was talking on a cellular phone, so the officer proceeded to interview the other people on scene. The officer made contact with white female, the victim, who was the driver of the second vehicle. The victim advised that she was idle in her vehicle in the left turning-lane, awaiting for a green turn light. The victim’s boyfriend, white male, was the front passenger of the vehicle. The victim’s boyfriend advised that the defendant’s vehicle was in the far right turning lane in the westbound lane. The defendant proceeded to make a wide right turn into the southbound turning lanes, failing to use due care. The right front of the defendant’s vehicle struck the front of the victim’s vehicle. Both the victim and the victim’s boyfriend placed the defendant behind the wheel as the driver/operator.

The officer also made contact with a witnessed, white female, who advised that she viewed the collision. She stated that she heard a screech, looked up, and saw the defendant’s vehicle hit the victim’s vehicle. The witness was unable to give the exact location of the defendant’s vehicle prior to the traffic crash. The witness was also a witness to place the defendant behind the wheel as the driver/operator.

Once the defendant was off the phone, she walked towards the officer’s vehicle and stumbled as she walked and could not keep her balance. The officer continued his traffic crash investigation and asked her what occurred. The defendant stated, “I must have miscalculated the turn and went too far.” When the defendant spoke, she had a slurred speech and he could smell a strong odor of an unknown alcoholic beverage emitting from her mouth. Her eyes were bloodshot and glossy. She was very unsteady on her feet. The officer asked the defendant if she had been drinking and she stated that she was drinking earlier in the evening at approximately 2100 hours. The officer then advised the defendant that he was done conducting his traffic crash investigation and that he was now going to conduct a DUI investigation. The officer asked her if she understood and she stated yes. The defendant stated that she was hanging out and had a couple of drinks. She stated that she went home and then left her house to get something to eat.

The officer requested the defendant to submit to standardized field sobriety tests and she stated that she didn’t want to and she just wanted to get her car home. The officer then explained that he field sobriety exercises were her opportunity to dispel his disbelief that she was impaired and that if she did not do the exercises, he would have to make the decision to arrest or not arrest based on the observations he had already made. The officer also explained that if she refused and was arrested that her refusal could be used against her in a court of law. The officer asked if she understood what he explained and she stated that she did understand. The officer then again requested her to submit to the field sobriety exercises, she agreed to submit to the tests.

The officer conducted the tests on the defendant with the following results:

-Horizontal Gaze Nystagmus (HGN): (6 out of 6 clues). Lack of smooth pursuit in left and right eye, distinct and sustained nystagmus at maximum deviation in left and right eye, and onset of nystagmus prior to 45 degrees in left and right eye.

-One Leg Stand Test: (4 out of 4 clues). Sways while balancing, uses arms to balancing (raises arm over 6 inches), hopping, puts foot down (before 30 seconds elapsed), cannot do tests (puts foot down more than 3 times). *During the One Leg Stand test, the defendant continued to put her foot down after counting each number. The officer advised her that she needed to keep her foot in the air, she stated, “I could never do that.”

-Walk and Turn Test: (7 out of 8 clues). Can’t keep balance while listening to instructions, starts too soon, stops walking to steady self (pauses to regain balance), misses Heal-To-Toe, steps off the line, improper turn (loses balance while turning; staggers and stumbles), incorrect number of steps (took 10 steps for the 1st nine steps, took 11 steps for the 2nd nine steps). *During the Walk and Turn Test, the officer had to ask the defendant 5 times to keep her left foot on the line and the heel of her right foot touching the toe of her left foot, with her arms at her side.

Through the officer’s observations and clues given through the field sobriety tests, the officer placed the defendant under arrest for DUI and the officer asked the defendant if she understood and she stated yes. The officer transported the defendant to the sheriff’s office. Once on video, the officer read the implied consent to the defendant and she agreed to submit to a breath test. Breath technician administered a breath test from the defendant with the following results: first sample: 0.123g/210L, second sample: 0.118g/210L. The officer issued the defendant 4 citations. Then the defendant was taken to the main county jail.

Charges:

1. DUI alcohol or drugs (316.193(2a2a)) – Maximum Penalty: 6 months in jail
2. Failure to use due care (316.185) – Traffic Infraction
3. Improper right turn (316.151(1)(a)) – Traffic Infraction
4. DUI with damage to property or person of another (316.193(3c1)) – Maximum Penalty: 9 months in jail

Process: Standard DUI, Reviewed discovery, requested video and 911 calls and CAD reports. Requested depositions and did all the work but client decided they wanted a defense that Mr. Foley believed would not prevail and that was not in their best interest. Mr. Foley tried to convince them of alternative method of proceeding. Client found a different attorney. Mr. Foley followed the case because of the unique issues but the defendant lost the case as the defense they pursued was not successful.

Results: The client and Mr. Foley disagreed on issues regarding the defense of the case. Mr. Foley withdrew from the case and the client hired other counsel – the client was subsequently found guilty.

*DUI, if pled to, must be adjudicated guilty. The statute does not allow for a withhold of adjudication. If the defense has valid arguments, the state may reduce the charged. The defendant who has legal arguments that may be dispositive (sufficient to having the case dismissed) must choose whether or not to accept a plea bargain to reduce the charge or to go forward on any motions filed by their attorney. If the defendant chooses to go forward on the motion and wins, the case is dismissed. But if he loses, he also loses the opportunity to have the case reduced.