Articles Posted in DUI & BUI

From a CBS affiliate, lucky number nine was anything but for Dale Gufoil…

A simple stop at a nearby yard sale turned out to be his undoing. 51-year-old Gufoil was arrested on a multitude of charges including his ninth DUI!

Last Sunday, police responded to a yard sale after reports of a broken down truck stalled in a driveway. When they arrived, they found Gufoil attempting to leave the sale but unable to do so because of mechanical issues.

Police began the DUI investigation when they saw the suspect behind the wheel of the truck displaying multiple signs of impairment.

After the investigation, Gufoil was arrested where it was discovered that he had eight prior DUI convictions.

His troubles did not end there. Besides the driving under the influence charge, he was also arrested for Driving While Suspended or Revoked, Possession of a Controlled Substance without a Prescription (Oxycodone), and Failure to Have Insurance in Possession among other charges.

LEGAL ANALYSIS

In Florida, a fourth DUI overall or a third-with-in 10 years would qualify as a felony DUI, a third-degree felony punishable by up to five years in prison. If he was found guilty of the charge, it would be an almost guarantee of a lengthy prison sentence. Add up to another five years for the drug charge and five years for the felony DWLSR charge and a Florida defendant could be facing up to 15 years plus in prison!
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A local interest story from an Alabama newspaper where a judge had no choice but to release a man arrested for his 12th DUI! Would a Florida judge have to make the same ruling?

An Alabama man, after being arrested for DUI posted a $1,000 bond and walked out of jail. Only for the judge to realize that he had 11 prior DUI charges!

45-year-old Darius Watkins was arrested on April 22 for DUI and driving while license suspended. He posted the $1000 dollar bond the same day and walked free.

At a later court hearing, Mr. Watkins record was announced for the first time. He had 11 prior driving under the influence convictions and 14 prior DWLSR counts! He was also on probation for a DUI at the time he was arrested.

A local judge ruled that he was considered a danger to the community and reset his bond for $15,000. The defendant was placed in custody.

The day after he was put back in jail, Darrius’ DUI lawyer petitioned the court and claimed he was being held illegally as he had already paid the set bond. Per Alabama law, a bond cannot be modified after the defendant has paid it unless he/she violates the terms set within the original bond.

Another judge granted the petition and with no objection from the state attorney’s office, he was free again…at least for a little while.

LEGAL ANALYSIS

In Florida, this would be very unlikely to happen. The article mentions that the defendant was on probation for DUI at the time of his arrest. Once that became know, Watkins would have a violation of probation count and be innediately sent to jail with “no bond” allowed.

In addition, in Florida a DUI becomes a felony if you have three in 10 years or four/more. With those amounts of prior convictions, the defendant would have been dealing with a much higher bond and more restrictions.
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If bad news comes in threes, then one more Florida judge needs to be on the lookout. From the Miami NBC affiliate, two south Florida judges were arrested for DUI just a few months apart…

In Broward County, Judge Lynn Rosenthal became the second County judge to be arrested for DUI after she crashed into a parked police car in the Fort Lauderdale courthouse parking lot! After an investigation, she was arrested on the spot.

Per the police report, the judge’s SUV hit the patrol car and then continued toward the judicial parking lot, where it also hit the security gate. The SUV then backed up and hit the gate a few more times before the police intervened.

When Judge Rosenthal got out of her vehicle the police stated that she had no odor of alcohol but was “unsteady on her feet, her speech was slurred and she had difficulty obtaining the required (driving) documents.”

The Judge told the police that she hadn’t drunk alcohol in a long time but then her story got more bizarre.

Whipping out her cell phone, she claimed that a truck had earlier tried to run her off the road on the way to work and she had the video to prove it. Police saw the footage and it showed the Judge drifting between lanes and hitting the barrier wall. Nowhere on the cell video was there a truck or anything that would affect her driving.

Police began field sobriety tests and the judge admitted to taking an ambien the night before. Per the police report, the judge “failed to maintain balance during instructions, missed all heel-to-toe steps, stopped multiple times to request instructions to continue the exercise. The judge also had problems standing on one leg, putting her other leg down on multiple occasions”.

While she blew a .000, she then refused to take a urine test, which would show what drugs were in her system.

She was arrested for DUI and DUI with property damage.

This was the second Broward County judge to be arrested in the past few months. Fellow Broward Judge Gisele Pollack was just suspended for her recent arrest for DUI in Boca Raton. She was charged with multiple traffic offenses as well as a DUI.

Judge Pollack was arrested and refused a blood draw. Officers noted a strong alcohol odor and that in her car were multiple empty alcohol bottles and empty red cups. When arrested, the judge was very vocal, sceaming that she didn’t want to go to jail.
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A local Tampa station has reported that the Florida Bar has released their report and is recommending severe discipline for some Tampa lawyers involved in the Bubba the Love Sponge defamation trial from last year. The news story can be watched here. The full Florida Bar report is available here.

After over a year of investigation, The Florida Bar finally released the report in the now famous DUI set up case involving a civil suit between local radio personalities “Bubba the Love Sponge” and “M.J.”

In the middle of the Tampa defamation trial, Todd “M.J.” Schnitt’s lawyer was arrested for driving under the influence. An investigation by a special prosecutor determined that he was set up by opposing counsel!

The Florida Bar determined that a legal assistant who worked for the law firm spotted M.J.s’ lawyer at Malios and started talking with him. She lied about where she worked and continued to buy him drinks-while at the same time texting her boss, Robert Adams. Fellow lawyer Adam Filthaut called his friend-Tampa Bay Police Department Sgt. Ray Fernandez. Records show that shortly thereafter, the two men began texting and calling each other.

Sgt. Fernandez and other officers staked out the parking lot at Malios until they saw Campbell and M.J.’s attorney leave the restaurant. Ms. Personious asked the attorney to move her car and he did-only to be immediately surrounded by police and arrested for a DUI!

That is when it gets more unusual. After claims that he was set up, M.J.’s attorney got the attention of the Florida Bar who proceeded to investigate. They found that after the arrest, dozens of text messages that night between Personius, Filthaut, co-counsel Stephen Diaco, and Sgt. Fernandez were either erased or destroyed.

As a result of the investigation from the grievance committee of the Florida Bar, the Bar says Stephen Diaco and Adam Filthaut engaged in dishonest conduct, made false statements and unlawfully concealed and destroyed documents and evidence (tampering with evidence).

The Bar will now file a formal complaint and recommend discipline againt the lawyers involved. The punishment can range from a warning, a suspension to even disbarment!

Tampa Sgt. Fernandez was fired and is still being investigated by the FBI and federal prosecutors for possible federal crimes.

Based on the facts of the case and how the evidence was obtained, the Hillsborough State Attorney’s office has declined to press DUI charges against M.J.’s lawyer.
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An interesting case from South Dakota, where a man is appealing his Driving under the Influence conviction on the grounds that he was not even driving! How may this affect Florida DUI law?

To DUI or not to DUI…for 54-year-old Donald Nekolite, THAT is the question. The defendant admitted drinking at a local bar back in September 2012. He went outside to grab cigarettes from his truck when he accidently bumped the gear shift into neutral. Without the emergency brake on, the truck rolled back into another car.

Police were called out and investigated. It was determined that Nekolite had a B.A.C. of 0.284, over three and a half times the legal limit in either Florida or South Dakota. His companion/designated driver however, was not drinking. Never the less, police arrested Nekolite for driving under the influence. Police claimed that he was “in actual physical control of his vehicle”.

His conviction is now being appealed to the South Dakota Supreme Court. The ruling is expected to shed more light on the legal definition of physical control.
LEGAL ANALYSIS
In Florida along with a few other states, to prove a defendant is guilty of a DUI, the prosecutor must prove beyond a reasonable doubt that: 1. the defendant was under the influence of alcohol or a controlled substance to where his normal faculties were impaired (and/or a 0.08 B.A.C. or above), 2. while he was driving or in actual physical control of a motor vehicle.

Unlike South Dakota, in Florida, if the defendant did not have keys in the ignition or at least readily avaliable (such as in his pocket while he was in the driver seat), there would most likely be no DUI charge, let alone a conviction. Florida caselaw requires actual ability to DRIVE the vehicle. No car keys or ability to start the vehicle, most likely no Florida DUI conviction.

While it will be interesting to see what happens in South Dakota, here in the sunshine state, he would almost certainly have his conviction overturned.
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From the Insurance Journal, a North Carolina woman has the unusual distinction of being charged with murder for a texting and driving accident that killed an elderly woman.

45-year-old Belinda Strange Hudspeth was arrested las tweek after Highway Patrol troopers claim Ms. Hudspeth was texting while driving and ran off the road striking 75-year-old Lavon Ramsey. Ms. Ramsey later died at a local hospital.

Now Ms. Hudspeth sits in a local jail, charged with multiple offenses including second-degree murder, driving under the influence, texting while driving, careless and reckless driving, and driving with a suspended license.

Per police reports, the suspect was traveling east on Perfection Avenue in an SUV on noon last Saturday when the vehicle ran off the right side of the road. The vehicle struck several objects including a fence, garbage cans and a mailbox. The vehicle then hit Lavon Ramsey, who was on the lawn at a residence on that block when she was hit. It looked like the victim was walking to her neighbors when tragedy struck.

LEGAL ANALYSIS

In Florida these charges may well be different then they are in North Carolina. If this took place in the Sunshine State, the suspect would most likely still be charged with the DUI, careless driving, reckless driving and DWLSR.

However, a good Pinellas DUI attorney may be able to avoid the second degree murder charge. In Florida this would most likely be a DUI manslaughter, vehicular homicide or manslaughter charge instead.
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An article in the CSM website shines some new light on marijuana legalization and DUI charges. Driving Under the Influence is not just for alcohol as 1000s are finding out the hardway…

In the state of Washington, marijuana has been legal since January of 2013. A new report shows an alarming rise in drug-based DUIs since then. In the first six months of 2013 745 people stopped for DUI in Washington have tested positive for marijuana. This is a marked increase from the average of the last two years, where around 1000 people per year had the drug in their system when arrested. There is aslo the possibility that these DUI drivers are driving more stoned then before the drug legalization. Over half of the people pulled over had more then the legal limit of 5 or more nanograms of THC in their blood.

State officials and law enforcement fear that this may be just the beginning. The increase in “drug driving” arrests took place despite the fact that recreational-use pot shops are not scheduled to be open until next year.

Washington D.C. and 20 states have allowed medical marijuana use and Colorado and Washington state allow recreational pot use. There are several more states (including Florida) that are debating whether or not to either decriminalize marijuana or allow it for medicinal purposes.

Supporters of the drug argue that arrests are not that much higher then before the new laws went into affect. Opponents of marijuana laws think otherwise.

Kevin Sabet, co-founder of Project Smart Approaches to Marijuana, a group that opposes widespread drug use, said the results are not surprising.

“People are getting the impression that marijuana use is okay,” he said. “Even before one recreational store opens in Washington, we are already seeing the effects (of marijuana).”

A local criminal defense lawyer was asked to comment and blamed the state’s “stoned driving” standard, saying it encourages police to pull over more drivers suspected of marijuana use.

LEGAL ANALYSIS

In Florida DUIs are covered under a specific statute. As mentioned on this blog before, the stereotype of the drunk weaving all over the road is not always accurate. A DUI conviction can be had by alcohol and/or any substance controlled by chapter 893 (the drug statute). This means that marijuana, cocaine, molly, oxycodone or any one of 1000s of drugs could affect one’s ability to drive a vehicle and potentially earn them a DUI.

What about Florida? If other states are a guide, it seems logical to guess that a relaxation of certain drug laws may bring with it an increase in other crime such as DUIs or other matters. Is the trade off worth it? That will be up to the voters and Tallahassee to decide.
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An interesting article in the New York Times talks about an upcoming court ruling which if followed in Florida, may open up a new defense to certain criminal charges. The defense? “I was too drunk to know what I was doing”!

In New York, three similar charges, three similar results. T. Taylor voluntarily took ecstasy, tore off her clothes during a fight with a family member then drove at 80 mph down a school zone at night without any lights on. She struck and killed a pedestrian.

M. Heidgen drank non-stop for almost 12 hours, got in his truck, drove the wrong way down a one way street and killed two people when he crashed into oncoming traffic.

F. McPherson got “blind drunk” at a night club, got into his car and crashed into a Jeep while speeding and driving on the wrong side of the road. The other driver was killed.

Three similar cases with similar results. All three defendants were charged and convicted of second-degree murder. The assigned prosecutors argued that the defendants had shown a “depraved indifference to human life” by their actions. Yet these seperate cases were all brought to New York’s highest appeals court on review. The reason? The judges had to rule on the arguements from the criminal defense lawyers: Their clients were so intoxicated that it was impossible for their minds to be in a “state of depraved indifference” that the law requires!

Over the course of several hours prosecutors argued that all three drivers were voluntarily intoxicated and knew they were endangering others but did not care. The criminal defense attorneys countered that their respective clients were too drunk or high to know that they were putting others in harms way.

How did New York get here? In 2006, People v. Feingold came out and the Court ruled that depraved indifference is a state of mind. This was upheld in several cases. As a result, prosecutors had an additional burden to prove. When proving second-degree murder cases (especially drunk driving ones), the state must show the defendant consciously and willingly showed “an utter disregard for the value of human life”.

These court rulings meant that heavy drinking could be a defense in vehicular homicide cases. For instance, M. Heidgen blew a .28, well over the .08 legal limit and drove almost five miles into oncoming traffic. Heidgen ignored several vehicles signaling at him to stop. Should the state have to prove he was sober enough to show “depraved indifference” or as the prosecutor argued, should it be left in the hands of the jury to determine if the defendants were culpable?

A ruling is expected within a few weeks.

LEGAL ANALYSIS
Could something like this happen in Pinellas county, Florida? Is there a possible new defense on the horizon? The short answer is in Florida, probably not. Pinellas, Hillsborough, Pasco and the surrounding counties rarely file a second-degree murder charge over a drinking and driving accident. Rather than risk having to prove the suspect had a “depraved mind” as required under Florida Statute 782.04 Florida has a better method. By filing either a DUI manslaughter or a vehicular homicide charge (many times both) against a suspect, the state would not need to prove “indifference” or even intent.

What is the difference between DUI manslaughter and vehicular homicide? DUI manslaughter is simply a DUI (driving under the influence) where as a result, a person was killed. The state has to prove that a death occurred as a result of the defendant driving a vehicle while legally intoxicated. A vehicular homicide is similar to a reckless driving charge which results in a death. The state must prove that a death occurred as a result of driving in a reckless manner where death or great bodily harm could occur.

While both charges are often filed by the state attorney, case law is clear that both charges cannot be used for sentencing purposes in the case of one fatality.
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From the Northwest Florida Daily News, a Florida woman’s night goes from bad to worse after her DUI arrest…

24 year-old Sara Kirksey was pulled over for a traffic infraction (running a red light and then turning right on a no turn section) in Fort Walton Beach, Florida. She was pulled over by a sheriff’s deputy at 7:30 p.m. After noticing several signs of impairment he requested that she perform field sobriety exercises. She performed many of the standard tests (such as walk and turn and walking a straight line test) and the deputy determined that she was impaired. Ms. Kirksey was arrested for driving under the influence. After her arrest she proceeded to make things even worse for herself.

Per the sheriff’s office report, the suspect managed to slip out of her handcuffs and slide open the divider window in the sheriff’s car. The now defendant jumped in the front seat and put the vehicle in drive! Before she escaped however, the deputy managed to slam on the brake. As if a grand theft motor vehicle charge wasn’t bad enough, the wanna be escape artist then began to punch the deputy in the face and chest, earning her another charge, battery of a law enforcement officer (with a potential minimum/mandatory sentence)!

The result of this alcohol-fused crime spree resulted in a multitude of charges. As of the time of this writing the state attorney was still determining what charges to file against her. The sheriff’s office arrested her and charged her with DUI, battery of a law enforcement officer, disorderly conduct and false identification to a law enforcement officer. The defendant’s DUI defense attorney was unknown as of the date of the article.LEGAL ANALYSIS

The “batt leo” is a third degree felony, punishable by up to five years in jail assuming the charges are not upgraded to an aggravated battery. The disorderly conduct and false information are both misdemeanor charges.

Assuming that this is a first time DUI for the defendant and that she either refused breath or was below a .15, she is facing large fines (up to $1,000), up to 12 months probation, up to six months in jail, up to six months to a year of her driver’s license being revoked as well as a car impound. Finally there are a multitude of other conditions she may have to do. For instance, in Pinellas county the first time defendant would also have to do 50 hours of community service, an alcohol evaluation and treatment, pay investigative cost and would not be allowed to be in bars or clubs nor drink alcohol while on probation.
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From a Key West, Florida blogspot, two Florida sisters were arrested for a DUI when they both drove the car a short distance…

The two Miami sisters were seen by a sheriff’s deputy driving a Volkswagon on a highway late at night. The Deputy noticed some possible clues that the owner was “Driving Under the influence“. Signs such as sudden braking, swerving and unexplained speeding/slowing down made the sheriff suspicious.

After the Deputy turned on his lights and siren, the Volkswagon made a sudden stop in traffic. It was then that he noticed the passenger and driver switch seats.

After another Deputy arrived for back up, both girls, 18-year-old Steffany and 24-year-old Vanessa performed “field sobriety exercises”. Per the Sheriff’s report, both defendants performed poorly and they both smelled of alcohol and looked visibly impaired.

Both sisters were charged because both girls were behind the wheel of the car, in actual physical control, with keys in the ignition at some point. At the time of this writing, the sister’s Florida DUI defense lawyer was unavailable for comment.

LEGAL ANALYSIS

As had been mentioned previously, the most misunderstood facet of DUI defense may be APC or “actual physical control”. The definition of APC is as follows (taken directly from an old Florida DUI jury sheet.

“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”.

The problem with that definition is that how do you determine if you have the capability to operate a vehicle? Have keys in your pocket while you sleep in the driver seat? Most people would think that you would not be able to operate the vehicle because (1) you are sleeping and (2) the keys are not in the ignition. Most people would be wrong! People have been convicted of DUI from that exact scenario.

What about this fact pattern? A man, previously convicted of DUI on multiple occasions being found in his car, keys in the ignition and his breathalyzer in his car telling the police this man was too intoxicated to drive? In that case the breathalyzer (which was court ordered due to his prior convictions), kept his car from turning on because of his impaired state. By law, this was no longer a working vehicle. This man, who had every intent to drive, had his case dismissed because his drinking made his car inoperable!

These are just a few of the countless scenarios Pinellas DUI lawyers are faced with on a daily basis. Driving under the influence is often considered among the most complicated misdemeanor crimes as one can see by these fact scenarios.

With the upcoming holiday fast approaching, please be careful on the road this week. Both DUI checkpoints and police patrols are stepped up on July 4th weekend. Be safe, be smart and don’t be a statistic!
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