The client was a young female who was about to be hired as a school teacher when she was stopped for DUI by two of Dade County’s most aggressive DUI Officers: Officers Clossius and Davenport of the Miami Dade Police Department.
The client had no prior record and this arrest was preventing her from becoming a school teacher.
FACTS:
The police stopped a car being driven by the client’s friend. The client stopped to help. The officers came and took her driver’s license. Although the officers did not arrest her friend, they did arrest her and accused her of driving while impaired.
WHAT WE DID TO HELP.
There were several issues in this case that we decided to challenge. The “stop” was unusual because in fact the client was not stopped by the police in the usual way. However, although she voluntarily stopped her car, the police still need reasonable suspicion to detain her to conduct a criminal investigation, and this was one area in the case that we decided very early on the challenge.
We also examined the circumstances surrounding her breath test. In Florida, everyone who gets a driver’s license is required to give a breath test if an officer has reasonable suspicion to believe that the person is under the influence of alcohol while driving a car. Please CLICK HERE for more DUI information. This is called “Implied Consent” for a breath test based on accepting the privilege of driving in Florida.
When a person is arrested for DUI they are taken to the police station where they are offered a breath test. There is a form that the police used called an “Implied Consent Form” In recent years attorneys who practice DUI defense have been challenging breath tests and refusals to provide breath tests based on the implied consent form.
In Florida there are three methods of testing for alcohol in a driver: breath, blood, or urine. The law specifically provides the circumstances where the police can request blood (only in a case where there is an accident with injuries) urine (only in a case where the police believe the driver is impaired due to drugs ) or breath (in the usual DUI case.)
In this case we challenged the prosecution’s ability to introduce the breath test because the officer used a form that asked for blood, breath, and urine. The appellate courts have held that in this circumstance, the use of a form asking for alcohol testing that contains methods that the police cannot ask for, violates a driver’s right to refuse. In this case, because the client was not under the influence of drugs, and because the client was not in an accident with injuries, the police could only ask for a breath test. However, they used a form that asked for “breath, blood, or urine.” Judge Karen Mills Francis agreed that the police acted improperly, and she suppressed the breath sample.
However, the case was not over.
In Florida, there are two ways a person can be prosecuted for DUI: driving with an unlawful blood alcohol (UBAL) or driving while impaired. While the prosecution lost the ability to proceed on UBAL, they still intended to proceed with a driving while impaired prosecution.
THE SPEEDY TRIAL ISSUE.
This case was ultimately won on a speedy trial issue, and here is how we did it:
When an individual is arrested in Florida, the prosecution has a specific period of time within which to bring charges. This is called the speedy trial period. For a felony, the speedy trial period is 180 days, for a misdemeanor, (a DUI is a misdemeanor) the speedy trial period is 90 days. However, the speedy trial period is waived- meaning it is no longer applicable, whenever the defense asks for a delay in the case. In this case we had asked for several delays as we investigated certain aspects of the case.
A DEMAND FOR SPEEDY TRIAL.
When the defense delays the case and the original speedy trial period is waived, all is not lost. The defense can re-start a 60 day speedy trial clock in either a felony or misdemeanor case by filing a “demand for speedy trial.” This demand indicates to the court that all the work is done; that all motions have been filed, and that the case is ready for trial.
When Judge Mills-Francis granted the motion to suppress the breath test, we filed a demand for speedy trial, starting a 60 day clock.
In this matter the case was not brought to trial within 60 days. However, the dismissal of the case is not automatic. There are two more procedures that must be done, and they must be done by the defense. The first procedure is a NOTICE OF EXPIRATION (NOE). This is a document that is filed by the defense in which the prosecution and the court are notified that the speedy trial time period has expired. Usually, this triggers a FIVE DAY HEARING. The clerk is required to schedule a hearing within five days in which the court will examine whether the speedy trial notice of expiration is “well taken”. What that means is that the court will examine whether during the speedy trial period, has the defense delayed the case? if not then the NOE is well taken and there is now a ten day window period in which the case must be brought to trial. The five day NOE period and the ten days after that form a 15 day WINDOW in which the case needs to be brought to trial. This change in the law was done sometime in the late 1980’s to allow for more cases to be brought to trial and to prevent the automatic dismissal of criminal cases.
However, in our case, for whatever reason, the clerk did not set a hearing within the fives days of the NOE. We waited until the 15 day period expired, and then we filed DEMAND FOR DISCHARGE. This is a document that merely notifies the court that the time to try the case is over and the charges must be dismissed. The DEMAND FOR DISCHARGE was granted in this case and the charges were dismissed.
ETHICAL OBLIGATIONS OF THE ATTORNEYS.
Something in this case happened which caused us a little concern. After we filed the NOE, but before the time for trying the case was over, the case appeared in court for a sounding. A sounding is a meeting in court between both parties. The prosecution announced ready for trial, and so did we, and the case was set for trial ten days later, which was outside the time period based on the NOE we had filed. For some reason, even though we had filed our NOE properly, neither the prosecutor’s office nor the clerk’s office appeared to be aware of it.
When we agreed to a trial date outside the speedy trial window, were we as attorneys doing something unethical in court? Put another way, at the sounding, although the clerk and the prosecutor seemed unaware of the NOE, did we have an obligation to tell them about it? If we had done that, it may have prevented the client from getting the charges dismissed. We often tell clients that we will do all we can legally and ethically to get their charges dismissed. Had we crossed the line here?
We called the Florida Bar, which has an “ethics hotline” for attorneys to discuss these types of issues to make sure they are not doing anything wrong. The Bar agreed that we had not done anything improper and that our first duty was to our client. Indeed, if we HAD said something about the pending NOE at the sounding, we might have acted improperly in that our actions would have been against our client’s best interest. Therefore, by remaining silent about the properly filed NOE, we had done the right thing.
Phil Reizenstein has had occasion both as a prosecutor and defense attorney to teach young attorneys, Reputation takes a lifetime to earn, and a minute to ruin. Therefore, as attorneys our reputation for acting in an honest and ethical manner is very important to us. While there was an issue here, the decision was an easy one. We called the Bar to make sure we were making the right decision. There is nothing wrong in an attorney double checking their decision. We made the right decision here, and the client benefited by having her charges dismissed.
