Wednesday, October 26, 2011


A second refusal to submit to a lawful request for a breath test in Florida is a criminal offense

316.1939 Refusal to submit to testing; penalties.

(1)  Any person who has refused to submit to a chemical or physical test of his or her breath, blood, or urine, as described in s. 316.1932, and whose driving privilege was previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, and:

(a)  Who the arresting law enforcement officer had probable cause to believe was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages, chemical substances, or controlled substances;

(b)  Who was placed under lawful arrest for a violation of s. 316.193 unless such test was requested pursuant to s. 316.1932(1)(c);

(c)  Who was informed that, if he or she refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months;

(d)  Who was informed that a refusal to submit to a lawful test of his or her breath, urine, or blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor; and

(e)  Who, after having been so informed, refused to submit to any such test when requested to do so by a law enforcement officer or correctional officer commits a misdemeanor of the first degree and is subject to punishment as provided in s. 775.082 or s. 775.083.

(2) The disposition of any administrative proceeding that relates to the suspension of a person's driving privilege does not affect a criminal action under this section.

(3) The disposition of a criminal action under this section does not affect any administrative proceeding that relates to the suspension of a person's driving privilege. The department's records showing that a person's license has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood shall be admissible and shall create a rebuttable presumption of such suspension.

This boggles my mind  

Let's follow with our Constitution;The Fifth Amendment regarding Rights of Persons;

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Now let's focus on the relevant language as it would (should) apply in a DUI, second refusal, situation: "nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law"

It has been made clear that driving is a right, not a privilege. So when you agree to drive you agree to submit to tests like the breathalyzer.  This is fine. You refuse; you suffer civil penalties like longer suspensions, loss of driving privilege, etc...When people began to refuse, which can be used against you in court as evidence of a guilty mind, prosecutors were faced with a decline in their conviction rates. and along came the lobbyists, scurrying up to Tallahassee to demand from our elected officials that something be done. No politician wants to seem to fight for the rights of impaired drivers, somehow forgetting the presumption of innocence, which comes to us from English jurisprudence and is well settled in law. Our standard jury instructions state:

"The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the indictment through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt."
How can the Florida Legislature and the DHSMV (Dept. of Highway Safety and Motor Vehicles) compel evidence against a person that results in criminal prosecution without due process?

Compelling certain evidence from criminal suspects is not unheard of and I agree, not unconstitutional, when due process exercised.  Blood, semen, hair, photos of tattoos, etc... can all be forcibly acquired when, after a judicial hearing, ordered by a judge of the competent jurisdiction.

Driving is a privilege. When someone is suspected of a criminal offense, I believe a long time ago some people got together and decide it would be a good idea to protect them from the government and afford them some basic rights. So they refuse a breath test. So suspend their license, make them put and interlock device on their car, don't let them drive. In Florida with our stellar mass transit system, that is quite a punishment for breaking an agreement to be granted a privilege. Take away the privilege, but for God's sake, don't take away their liberty without due process.

Again, I remind us all:  NO PERSON SHALL be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law"

For more information visit my website at or if you need representation for a DUI, DWI or other Criminal matter call me at 813.933.6807

Wednesday, June 8, 2011

DUI Laws and the Constitution: It’s All About Exceptions

When it comes to DUI laws and the Constitution, it’s all about exceptions.

If you have been arrested for DUI, the police officer will recite your Miranda rights. But as
soon as they’ve been said, they’re as good as forgotten. That part about not being compelled to
testify against yourself? Well, actually, if you have already once been pulled over and refused a
breathalyzer test, if you refuse again, you will be charged with a misdemeanor.

The argument justifying this procedure is of course the concept of implied consent. In Florida,
when you apply for and accept a driver’s license, you concede that you will submit to chemical
testing if pulled over and arrested with probable cause. However, it makes little sense that the
first case of refusing a breathalyzer is treated as an administrative violation, and the second,
based merely on the fact there exists a first, is treated as a criminal offense. Basically, you can
refuse once, but count on being prosecuted if you refuse twice, a message that is confusing at

Additionally, the Fifth Amendment of the Constitution states that a person cannot be forced to
give evidence implicating himself. DUI cases provide a notable set of exceptions to this tenet, in
which the argument has been made that chemical evidence does not count. However, physical
evidence is a damning and personal, in most cases more so, than verbal confession, so why
should this count?

And what about that part that guarantees your right to counsel? Well, actually, it’s more
like counsel with certain conditions. After you have been arrested, in many cases, you will
be denied the right to speak with your lawyer until the officers are finished with you. This
could be a matter of hours, waiting for tests and such, and it could involve being behind bars
and in handcuffs. Not to mention that asking the opportunity to speak to with a lawyer could
communicate to an officer that you are refusing to take the breathalyzer test. And it might just
be too late if you change your mind and decide you’ll submit to a test.

In DUI cases, miscommunication could mean conviction and Constitutional loopholes abound.
Drivers getting pulled over, hoping to plead the fifth, should know that doing so is, in this case,
against the law.

Monday, March 7, 2011

The Hillsborough County Panhandling Ban and Political Correctness

Regarding dolphins, it is a violation of federal law to feed dolphins. The logic being, in part, that they become dependant and will no longer fend for themselves.
So why do we allow people to give money to panhandlers, thereby causing them to become dependant and no longer willing to fend for themselves?
The Marine Mammal Protection Act - (MMPA) 16 U.S.C. §§ 1361-1421g prohibits the feeding of Dolphins.
Section 1372 (a)(1) of the MMPA declares it unlawful - "...for any person subject to the jurisdiction of the United States or any vessel or other conveyance subject to the jurisdiction of the United States to take any marine mammal on the high seas."

"Taking" under the MMPA is defined in the statute to mean "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." 16 U.S.C. § 1362(11)A.

In 1991, the NMFS (National Marine Fisheries Service) amended the definition of "take" to include "feeding or attempting to feed" as an example of "harassment" under the MMPA. 56 F.R. 11693. The NMFS found that feeding populations of marine mammals is contrary to the intent and purpose of the MMPA because it disrupts their natural behavior and normal feeding patterns (Information in the preceeding paragraph cited from:

On the National Oceanic and Atmospheric Administration web site, (, Nancy Foster, deputy director of NOAA's National Marine Fisheries Service stated, that feeding these marine mammals can make them less able -- or willing -- to search for food on their own. She further stated, "Dolphins that become desensitized toward humans are highly at risk of getting entangled in commercial fishing nets, hit by boat propellers, exposed to polluted water, or being intentionally harassed by people,"
I suggest that people who become desensitized toward panhandling are at a higher risk of darting into traffic, being hit by motor vehicles, exposed to cancer causing UV rays from the sun, or being intentionally harassed by people.

People throw money at panhandlers, in some situations, to feel good about themselves without having to work too hard at dealing with some level of guilt or pity.  The panhandlers would be better served if, rather then holding a dollar bill out the window of their car, people would take the time to direct these panhandlers to one of the many agencies at which government is already throwing buckets of money. Agencies that are set up to deal with the indigent and homeless. Simpley google "government programs for homeless" to see the overwhelming list of these agencies.

Hillsborough County voted recently, 6-1, to ban panhandling on all County roads. The City of Tampa, though, has failed to take any action. other then to NOT pass a proposed ban on panhandling.  The County law enforcement agencies will most likely hand out warnings to first timers in violation of the Hillsborough County Ordinance.  Repeat offenders can face fines of up to $500 and/or 60 days in jail.

As St. Petersburg Times writer Bill Varian stated in is article in the Times, on March 3, 2011, Hillsborough County Deputies will also look for services such as mental health counseling or shelter for homeless people. In his article, Varian quoted Col. Greg Brown of the Hillsborough County Sheriff's office. "The goal is not to put these people in jail," Brown said. "It's to get them off the roadway."

Are we to remain a society of enablers?   Do we really care more about marine mammals then our brothers and sisters, or has political correctness driven us to a path of less resistance?

Wednesday, January 19, 2011

Florida Cops Are Out For Blood

Drivers: Florida cops are out for blood. If you get pulled over, refuse the breathalyzer test and have a prior conviction, you can count on being subjected to a mandatory blood draw.

And officers: need a warrant? No problem. Officials are pushing to have judges on-site to approve requests. Indeed, having a judge present at the checkpoint will effectively streamline the warrant application process, in order that the results of the subsequent blood draw are not compromised.

I hope that this offends you on a number of levels. The procedure for obtaining a warrant is exactly that: a procedure. It is not a formality, and it is not an inconvenience to be shucked for the sake of “streamlining.” An officer requests a warrant based on a foundation of evidence, the judge reviews this evidence and then makes a decision to either approve or deny the officer’s request.
 There is no “formula” that guarantees a warrant. Nor are police entitled to arrange a situation in which getting that warrant is extremely likely, which is exactly what happens when you invite a judge to a DUI checkpoint with the intention of charging every suspicious individual. But this is worse than just an irksome scenario.

The judiciary is meant to be separate from law enforcement. This new law puts judges and police officers on the same freedom-snatching, rights-abusing team. The idea of a judge being present at a crime scene, ready to sign a warrant, spits in the face of every tenet establishing independence of the judiciary, not to mention the 4th, 5th, and 14th amendments.
Perhaps this idea becomes less ludicrous in light of the motivations driving it. It has been argued that blood draws provide more accurate results than the breathalyzer, but when you think about it, both pose significant problems for prosecutors. A refusal to submit to a test implicates the driver; test results, however they are obtained, can be used to call an officer’s/tester’s precision into question. And even with a judge present to hand out warrants, time elapses between stopping a driver and testing his blood, time that will inevitably skew results. Alcohol digested and absorbed can implicate a driver who would have otherwise been clear at the time of driving.

MADD has come forth as an advocate for this policy, claiming that said measures will serve as a stronger deterrent than current consequences. Drivers with priors can no longer ultimately refuse to submit to testing, unless a warrant is denied, which seems unlikely, given the flavor of the operation. And officers will be instructed to take all measures necessary in obtaining evidence from a suspect, even if this means holding down suspects who offer physical resistance.

There are several ways to respond to the issue of deterrence. Mainly, I have yet to see solid proof that vindicates this position: drunk driving is an inherently irrational choice, which makes me wonder if the response to this additional threat will be prudence. And do tragedies on the road justify restrictions on rights, and if so, how far must this attitude extend before someone recognizes the slippery slope onto which we’ve stepped? The fate of our civil liberties deserves as much concern as the desire for safer roads. And in the wake of a decision such as this, our freedoms
fall victim to a growing police state.