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 30^th 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.

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“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 the Tampa DUI attorneys at Mayberry/Rich via their 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 Mayberry/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, Jason Mayberry 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, Jason Mayberry advised his client 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 Mayberry/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 Mayberry/Rich at (813) 251-3330.

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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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