Jeffrey Rich Blog

Archive for the ‘DUI’ category

The holidays are a great time of year – good cheer, family visits, fun parties – but all of the celebrations and holiday travel means more driving, and more driving means more chances to get pulled over and charged with a traffic infraction or DUI.

If you find yourself the subject of a traffic stop during the holidays (or any time) and you are given a speeding ticket or traffic citation, here are some helpful tips:

  1. Silence is Golden: It may be difficult to hold your tongue, especially if you feel you’ve been pulled over unjustly, but the more you say during your traffic stop, the more information that can be used against you in court.
  2. Be Nice: The more polite you are, the better your chances are of possibly getting off with a lesser offense, and of getting a better deal if you go to court. Police Officers are people too, and nobody likes aggressive behavior.
  3. Take Notes: Write down everything you can remember about the traffic stop, while it’s still fresh in your mind. The more information your attorney has about the incident, the easier it will be to plan your defense. Even the details that may not seem important at the time (time of day, the officer’s position during the traffic stop) could come in handy in court. Remember that criminal defense attorneys, especially those who specialize in traffic/speeding tickets, are experienced and knowledgeable about how to construct a proper defense – details that may not seem important to you could make or break your case.

Of course, the same advice applies if you’ve been pulled over for a DUI – the less you say, the better, and the more details your attorney knows about the occurrence, the more he or she can use to your advantage when forming your defense.

About the Firm

Jeffrey M. Rich is a Tampa criminal defense attorney focusing on defending his clients’ speeding tickets, traffic citations and DUI charges, as well as juvenile defense and felony or misdemeanor offenses. Mr. Rich also practices personal injury law.

Mr. Rich is a graduate of Florida Coastal School of Law, and has both prosecutorial and defense experience, ensuring that his clients are represented by someone well-versed in both sides of the law. Jeffrey Rich prides himself on being an aggressive trial lawyer who fiercely advocates for his clients, and you can view the results of some of his cases here.

Buckle Up and Shut Up

June 23rd, 2009

Just when you thought it couldn’t be any easier for Police in Florida to detain automobile drivers in an effort to ferret out crime, guess what?  Starting June 30, 2009 Florida will put into effect a new law which will allow the Police to cite an individual for driving without a seatbelt on, even if no other violations are cited.  Prior to this law the Police could issue a civil citation for failure to wear a seat belt, but could not use this violation as reason to stop a motorist.  With the June 30th change, FL will join 27 other states in classifying this law as a “primary seatbelt law” allowing stops for no other reason but for a lack of a seatbelt being worn by a driver or passenger.

Prior to this law going into effect, an officer had to develop probable cause to pull one over for a civil traffic infraction.  This premise was laid out in Whren v. US, 517 U.S. 806 (1996), where the court said that if an officer has probable cause to stop a motorist for even a minor traffic violation, the stop is lawful and the evidence obtained afterwards as a result of the stop is admissible in court.  Thus, even if an officer may have suspected that a criminal activity was occurring, if an officer “could stop” the vehicle for a minor traffic infraction he would have just cause to stop that vehicle and potentially further investigate the suspected crime.  The Whren decision essentially eliminated any real likelihood of a traffic stop being invalid as being pretextual as now all an officer had to do was note that he “could stop” the motorist for a traffic infraction. 

In addition to making a traffic stop for probable cause for a traffic infraction, an officer could detain a motorist if there is a well founded and an articulated rationale that there is reasonable suspicion that criminal activity is afoot.  Thus, if an officer believes someone is committing a crime in a vehicle, can articulate his reason why he thinks so, and his suspicion is reasonable, he can detain a vehicle for investigatory purposes.   

So, what are the potential criminal implications with this new “primary seatbelt law?”  Basically, an officer can pull a motorist over he believes is committing a crime if all he has as a reason for a stop is that he notices that person not wearing a seatbelt.  While making contact with the driver he may detect certain things that lead him further to believe that criminal activity is going on and thus he may inquire.  Whereas before a motorist may dodge a bullet in that an officer may not be able to develop probable cause that a traffic infraction has occurred or reasonable suspicion that criminal activity is afoot, all the officer needs now is to notice a lack of a seatbelt and he has his lawful reason for a stop and avoids any reasonable possibility that his stop could be deemed pretextual.  In essence, deciding not to wear a seatbelt could act as probable cause to be detained.  This detainment could lead to more serious charges should the motorist be up to no good. 

Moral of the story you ask?  If you’ve had a little too much to drink or have just paid a visit to one of Pablo Escobar’s associates, buckle up and if pulled over, shut up.  Nothing you say to the officer is going to do you any favors.  The Police aren’t in the business of “helping you out” or “cutting you a break.”  If you run your yap, what you say WILL be used against you later down the road.  I’ve never met an officer or a prosecutor that didn’t love a defendant that was a chatterbox.  A simple click could very well be the difference in you making it home, or making it to one of Florida’s finest vacation destinations — with a DUI or other felony charge.  So, put the belt on.  It could very well save your life or even a trip to jail.

“I’ll do any test you want me to do so long as I can have my attorney present.”  This was the advice given by Jeffrey Rich via his blog regarding what to do should you be pulled over and investigated for DUI and are inclined to believe you would give a breath test above a .08.  This theory was one that made practical sense for someone who knew they had had too much to drink but made the mistake of driving anyway.  Recently the theory advised by The Law Office of Jeffrey M. Rich was put to use when a client who had read the blog got pulled over and investigated for DUI.

The client was pulled over for weaving on the road and upon contact by the officer, was requested to perform field sobriety exercises.  At this point our client used the theory we put forth in the blog he read.  When the officer asked him to perform the walk and turn exercise our client advised that he had no problem performing the requested exercises, but that he wanted an attorney to be present while he did so.  As we advised in our prior blog, there is no right to an attorney at this stage of the officer’s investigation and there will be no attorney allowed to observe.  However, as part of our rationale for advising anyone in this position to make such a request, our theory will prevent the state from using a “consciousness of guilt” argument to prosecute you.  Typically when “consciousness of guilt” is used, the state will allege that you refused all testing because you were too drunk to perform and didn’t want to give the state evidence.  Likewise, they will say you refused the breath test for the same reasons.  When using our theory, a defendant isn’t refusing the exercises, they are merely requesting a dui attorney be present.

Ultimately our client’s driver’s license was suspended in accordance with administrative rules, yet his criminal case was made much stronger by following our advice.  Upon being hired, we requested that the State offer a reduced charge of reckless driving.  This was offered almost immediately with standard Reckless Driving probation sanctions.  Knowing this particular case was not good for the state to pursue at trial, the client was advised to allow this case be set for trial.  Upon setting this case for trial, the State again offered a Reckless Driving, this time with a withhold of adjudication, $100 fine, and court costs.  By getting the withhold after using our theory, our client will be able to seal his record almost immediately and after 10 years of sealing, will be able to expunge his record completely. 

Ultimately, the theory set forth in the Jeffrey Rich blog achieved the result it set out to obtain.  It should be noted that if one has previously refused a breath test, doing so again, even under our theory, could result in an additional charge of refusing testing.  Also, refusal of the breath test will amount in a longer driver’s license suspension than one would have gotten had they performed the breath test.  However, this theory is built on the premise that the State will have a weak case and will likely reduce the charge to a Reckless Driving, which is far less significant that a DUI for purposes of criminal record and insurance purposes.  If you or a family member is in need of a DUI attorney, please contact a DUI attorney at The Law Office of Jeffrey M. Rich at (813) 251-3330.

So, How Do you Beat a DUI?

October 15th, 2008

The short answer to this question (if there is such a thing) is that you don’t, at least at the stop.  If an officer suspects you of Driving Under the Influence at the scene of a stop, unless you do remarkably well on your Field Sobriety Exercises , you are likely going to be spending a night in Officer Friendly’s finest accommodations.  What you can do at the scene is mitigate your damages for later.  I have in the past and continue to advise that when the officer cordially invites you to participate in his so called “standardized” Field Sobriety Exercises one should very respectfully reply, “With all due respect officer, I will participate in any exercise you ask of me, so long as my attorney is present.  I am not an attorney or someone familiar with the law and I would just like to be on even ground.”  It is important to know that you will be taking a ride with him for saying this, but you likely were anyway.  Upon your arrival at the jail, he will then read you what is called “implied consent,” and request either breath, urine, or blood under certain circumstances.  Again, your response should be, “I will be happy to take your test Officer, so long as I can have an attorney present.” 

If you do as I’ve mentioned in this post you should know that you will spend the night in jail and you will be initially charged with DUI.  You should also know the State will attempt to use your lack of participation in Field Sobriety Exercises and lack of participation with the breath, urine, or blood test as a refusal against you.  Finally, by not taking a breath, urine, or blood test your initial license suspension with the DHSMV will be 90 days as opposed to 30 days had you participated, and a year as opposed to six months via Florida statute on a first time DUI.  Right now you’re probably thinking I’m crazy and a terrible attorney.  The method to my madness is that DUI is a big picture charge.  By requesting a Tampa DUI attorney, the State cannot legitimately use this against you at trial.  Juries do not want to hear that someone was willing to fully participate with an Officer, so long as they could be educated about his request first.  Rationally speaking, there is no refusal, only a request for an attorney to stand by as you perform the Officer’s request.  Despite what I say, you will be afforded no attorney at this point, as caselaw holds there is not yet a right to an attorney at this stage of your detainment.  Again, Juries will likely not want to hear this.  From the outset, giving as little evidence to the State as possible can only help your case. 

In my time as a Prosecutor and a Criminal Defense attorney in Florida, I have heard of very few instances where an officer detains a driver, and then lets them go after they successfully complete Field Sobriety Exercises.  Speak to nearly any DUI attorney and they will tell you that Field Sobriety Exercises are exercises using unnatural movement, built to “test” natural motor skills.  The long and short of it is that most simply can’t complete Field Sobriety Exercises, impaired or not, so why supply the State with evidence to convict.

Whether you buy into my theory is up to you.  All this really does is act to aid your prospective attorney to build you a defense at trial or provides ammunition to lobby for a reduced charge.  One should know that in Florida, a second time refusal of a chemical test is a criminal offense, so be cognizant of this as you enter the breath test room.  This is not a sure shot ticket to having your charge dropped, reduced, or won at trial.  In fact, given certain circumstances, you still could be convicted of a DUI.  This theory is merely a method to give your attorney a shot and “put him on even ground” so to say.   Good luck!

Below is one of our current case results for a client charged with a DUI in Tampa:

Client charged with DUI in PINELLAS COUNTY after driving with his headlights off and on the wrong side of the road.  Client showed all six signs of impairment on the Horizontal Gaze Nystagmus test and then subsequently refused to participate in further field sobriety exercises and the breath test.  It was noted that the client acted irrationally, yelling at the Officers.  After thoroughly investigating this case, setting the case for trial, and filing a complex Motion in Limine to prevent the State from using the Horizontal Gaze Nystagmus test at trial, Jason Mayberry was able to negotiate a limited penalty Reckless Driving down-charge.  Pinellas County is notoriously one of the most difficult counties in Florida to get a Reckless Driving down-charge in.

 

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