Tag: Melbourne

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DUI stop in Florida…Agree to breath sample? Field sobriety exercises?

For many people it is a nightmare come true: stopped by the police on the way home and arrested for driving under the influence.

The good news is both Brevard and Volusia counties now offer programs for some first time offenders in which an amended charge of reckless driving is offered, if certain criteria are met. Prosecutors will evaluate the blood alcohol level, demeanor, and history of the defendant in determining whether these programs will be offered.

In cases where there is an accident, or where a person is obviously completely drunk, there is often little doubt regarding an eventual outcome: mandatory DUI penalties as set out by the Florida Legislature. Penalties may include probation, community service, fines, court costs, a driver’s license suspension, vehicle impoundment, driving courses, and so forth. Depending on the severity of the facts, some people may be sentenced to county jail.

The bottom line is that any evidence that will indicate that a person is impaired will be used against them. An admission of prescription drug use will be used against a person. Driving under the influence often occurs in Florida when people are intoxicated by their own medications.

If a person refuses to provide a breath sample, they will typically lose their license for 12 months. The fact that they refused to provide a breath sample can be mentioned in court. However, some people do not trust the calibration of the breath testing equipment. When a person has previously been arrested for and refused a breath test, and subsequently is arrested again and refuses a second time, they can be charged with a crime: Second Time Refusal to Provide a Breath Sample. So the option to refuse, if used, is not really available again.

The second part of a DUI investigation will normally involve field sobriety exercises. People can elect to take part in the exercises or not. Often, there is no video of the exercises, so the police officer’s account of what happened is the only evidence of how well someone did. People who have medical conditions that might affect their performance are better off if they remember to mention their physical limitations. The fact that someone denied being ill or having any physical limitations can be used against them in court. When requested to perform field sobriety exercises, remember to tell the officer if you have physical limitations, an illness, or an injury!

One of the main signs of impairment that police notice is the failure to follow the directions properly. For example, the police officer may instruct someone to stand on a certain leg. If the other one is used, then the failure to follow directions may be seen as a sign of impairment. The result is that people who are nervous and scared sometimes do less well on the tests simply due to the fact that they are not following the directions properly.

Do you have more questions? We may be reached by phone at (321) 253-6223 or (386) 218-4973.

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What Do You Think a Brevard County, Florida Jury Pool Should Look Like?

As I was leaving felony court in Viera this morning with my client, I saw the entire pool of jurors lining up in front of the elevators to go upstairs for voir dire, also called jury selection.

Out of fifty or sixty people, I saw a single Asian woman. Everyone else that had shown up was white, and most of them looked retired. There were no Hispanics, no African Americans, and no Indians.

This is probably not anyone’s fault. These are the people that showed up to take part in their civic duty and they deserve to be commended. My client, who is not white, said that seeing the panel confirmed his fears about getting a fair trial.

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Why Do Defense Attorneys Defend People Charged with a Crime…Why Do Defendants Get Out on Bond?

When people in Volusia and Brevard County, Florida find out I’m a local attorney that handles criminal defense, a lot of people ask why do I want to “defend criminals?” I welcome this question, because it means talking about why America is a great country and discussing the deep wisdom of our founding fathers.

I guess it says something about the success of America, the freedoms we enjoy, the prosperity that many have known, that we have completely forgotten why there are strong constitutional limitations on the power of the police and the power of local and federal governments in detaining, charging, and incarcerating people. We only have to look at countries like Libya, North Korea, or Belarus to remember why our founding fathers wrote “innocent until proven guilty” into the U.S. Constitution.

Here’s some things to consider:

  • In some countries, the police can stop and detain anyone they want, for any reason.  Here in America, the police should only stop someone if there is reasonable suspicion of criminal activity or reasonable suspicion of a traffic infraction.
  • A person should only be detained for as long as it takes to dispel the suspicion of wrongdoing that lead to the stop or for the length of time necessary to write the ticket.
  • When a person is arrested, it may take months for a trial to occur–if the person is innocent but held in jail without bond, they will have already lost their home, their job, and watched their family suffer without them for months before being cleared of wrondoing…

Bottom line is that for every criminal defense attorney, there is also a prosecutor fighting for a conviction, police and investigators that worked the case, and lab technicians that are analyzing evidence such as DNA. There are correctional and probation officers that may be monitoring the defendant. There may be witnesses that will testify against the defendant. There is only one person working for the defendant to make sure that constitutional limitations on the power of the police are maintained: the defense attorney.

The reality is that when there is strong evidence against a defendant in any given crime, there is not much likelihood that the defendant will escape justice.  In other words, they are not going to “get away with it.”

Instead, the question is what type of punishment will the defendant face.  The defendant may serve a period of probation or possibly go to jail or prison. They may be fined, drug tested, sentenced to do community service, write letters of apology, avoid certain people or locations, and so on.

Many people are troubled by the fact that defendants can often post a bond after initially being arrested. Perhaps people don’t realize that because courts in Viera and Deland are busy, it often takes months before a defendant can have a trial in front of a jury. If an innocent person was charged with a crime and has to wait in the Brevard or Volusia jail for months before the trial, obviously they would lose their home, their job, and suffer in jail surrounded by criminals before even being allowed the chance to mount their defense in front of a Florida jury.

Obviously, many people charged with crimes are not innocent. But some people, while they may be guility of a minor violation, are overcharged. Sometimes the plea offer that is provided is overly harsh. If everyone had to sit in jail until a trial or plea, than people would accept plea deals that are perhaps unfairly harsh–just to get out of jail and back to their lives.

Local judges here in Volusia and Brevard County, FL do not have to offer a bond.  Instead, the judge examines a person’s prior criminal history, ties to the community, and record of appearing at scheduled court dates. The judge also tries to assess the level of risk the defendant poses to the wider community. People with no prior record and who pose little risk to the wider community are typically going to be allowed to pay a bond and be at liberty until they are either found not guilty or sentenced. Obviously, if a person is later found guility, they will face their sentence at that time.