Will Florida Change DUI to DWI? Read Florida 2014 HB 299 and SB 1118…

It’s back. A version of the 2012 bill introduced in the Florida House and Senate to change DUI in Florida to DWI was introduced again this year. This year it is called Florida House Bill 299 and Senate Bill 1118. Under the proposed legislation, instead of requiring the prosecutor to prove that a person was driving under the influence of alcohol or drug to the extent “normal faculties were impaired,” the new standard would require only a “weakening or diminishing” or a person’s physical or mental abilities.

Throughout the statutory scheme the term “under the influence of” is replaced with “impaired by.” Also the phrase “to the extend his or her normal faculties are impaired” has been eliminated entirely.

What about DWI with a Prescription Drug?

The bigger problem with the proposed legislation is that it introduces a new per se “no tolerance” drug version of DWI. Under this standard, the jury is told that it should find the person guilty of DWI if the person has in his or her blood or urine a substance identified as a controlled substance in Schedule I, II, III or IV of chapter 893, regardless of any showing that the person was actually impaired.

For prescription drugs, it is an affirmative defense to the “per se” version of DWI if:

“a person who is charged with violating this paragraph introduced into his or her body a controlled substance prescribed by a licensed health professional authorized to prescribe the controlled substance, consumed the controlled substance in accordance with the health professional’s directions, and submitted to testing of his or her blood or urine as described in s. 316.1932 or s. 316.1933, the person is entitled to an affirmative defense against any allegations that the person violated this paragraph.”

What about DWI with Marijuana?

Assuming Florida constitutional amendment to legalize medical marijuana passes in November of 2014, the affirmative defense would not apply for medical marijuana users.

This is because a doctor can “recommend” marijuana he or she is not allowed to “prescribe” it. The statute even says, “The introduction of a nonprescribed substance… does not constitute an affirmative defense.” Also, the fact that the person was “legally entitled” to use the substance is not an affirmative defense.

Other than medical marijuana, can you think of another controlled substance that one can be “legally entitled” to consume even though it is not prescribed?

So Medical Marijuana Might Pass But You’ll Never Drive Again

The proposed statute from a similar version of the bill introduced two years ago, 2012 SB 1810, applied to any Schedule I of chapter 893 “or one of its metabolites or analogs.”  So the issue is whether the prosecutor can prove the “per se” drug version of DWI when a marijuana metabolite, and not THC, is present in the blood or urine. It seems to me that the 2014 version of the bill would not allow that.

Cannabis is a Schedule I controlled substance under chapter 893, although its metabolites that commonly show up in a urine or blood test are not. Think of it this way – cannabis is a plant. The plant material is never going to show up in your blood or urine. What shows up in a blood test is THC or one of its metabolites.

What Shows Up in Blood or Urine Test?

You often hear people say, “his blood tested positive for marijuana.” What they really means is that the person’s blood tested positive for either THC or 11-OH-THC  or 11-COOH-THC.

The main secondary metabolite of cannabis is delta-9-THC called 11-nor-delta-9-tetrahydrocannabinol-9-carboxylic acide (9-carboxy-THC) which can stay in your system for several weeks after the last time you smoke marijuana.

New Crime for Driving Whilst A Regular User of Cannabis

“This approach has been criticized as tantamount to prohibition of ‘driving whilst being a regular user of cannabis’ regardless of the presence or absence of any actual impairment that might impact on driving performance.” See Wiki on 11-nor-9-Carboxy-THC.

So it remains to be seen how a prosecutor could use this zero tolerance per se statute with the presence of THC in a person’s blood or a metabolite in a person’s urine. If you have an opinion on the practical impact this new legislation would have on how these cases are prosecuted then please leave a message below.

So who knows what kind of traction this bad law is getting the Florida House or Senate?


 

UPDATE 3/25/14:

I asked Paul Armentano, the Deputy Director of NORML what he thought of the proposed legislation, the 2014 Florida House Bill 299 and Senate Bill 1118. He called it a “zero tolerance per se” proposal meaning that operating a motor vehicle with any detectable amount of THC in one’s blood is a per se traffic safety offense, regardless of evidence of recent drug use or behavioral impairment. He said that such laws for cannabis are uncommon but not totally unusual. He thought that approximately 13 states has some version of the “zero tolerance per se” language.

Paul Armentano also explained to me that these proposals are anything but science-based. He explained that: “traffic safety agencies such as NHTSA and the DOT acknowledge that inferring behavioral impairment from the presence of THC in blood, regardless of level, is inadvisable.”

He also pointed me to his scientific paper reviewing why these proposals are unscientific and may net unimpaired drivers. Click here to read the a related article: Extreme Zero Tolerance Anti-Pot Driving Laws and Destructive.

The article concludes:

“Proposed ‘per se’ measures for the presence of cannabis’ constituents in blood or urine are an unscientific and disproportionate response to behavior that is already sufficiently addressed by present traffic safety laws which already criminally prohibit driving while impaired by drugs. The imposition and enforcement of such ‘per se’ measures risks inappropriately convicting unimpaired subjects of traffic safety violations, including potentially those persons who have previously consumed in the privacy of their own home some days earlier.”

The article also explains that according to a 2013 meta-analysis of 66 studies published in the journal Accident Analysis and Prevention, drug positive drivers for amphetamines (OR=6.19), opiates (OR=1.91) and benzodiazepenes (OR=1.17) possess the highest adjusted odds ratios of traffic accident injury, while drug positive drivers for penicillin (OR=1.12), antihistamines (OR= 1.12), cannabis (OR=1.10), and analgesics (OR=1.02) possess the lowest odds ratios.


UPDATE 3/26/14

Paul Armentano, the Deputy Directory of NORML, emailed me this link – Florida: Oppose Unscientific Zero Tolerance DUID Legislation. NORML acts very quickly on these issues. This link gives you a quick, easy way to use the pre-written letter below to urge your members of the House and state Senate to vote ‘no’ on HB 299 and SB 1118. The letter reads -

Oppose House Bill 299 and Senate Bill 1118

I’m writing you to express concern over House Bill 299 and Senate Bill 1118.

These measures set zero tolerant per se criminal thresholds for the presence of any compound indicative of past marijuana use, as well as for the presence of many prescription substances.

THC and its metabolites may be present for periods of time extending beyond any reasonable period of impairment. In one recent study, several experienced cannabis users still had detectable levels of THC present in their blood after seven days of monitored abstinence. As a result, the US National Highway Traffic Safety Administration affirms, “It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. … It is inadvisable to try and predict effects based on blood THC concentrations alone.”

The United States Department of Transportation Drug Expert Recognition Training materials similarly acknowledge: “Toxicology has some important limitations. One limitation is that, with the exception of alcohol, toxicology cannot produce ‘per se’ proof of drug impairment. That is, the chemist can’t analyze the blood or urine and come up with a number that “proves” the person was or wasn’t impaired.”

This proposed zero tolerant ‘per se’ measure is an unscientific and disproportionate response to behavior that is already sufficiently addressed by present traffic safety laws. The sole presence of THC or its metabolites in blood, particularly at low levels, is an inconsistent and largely inappropriate indicator of psychomotor impairment in cannabis consuming subjects. The imposition and enforcement of these strict liability standards risks inappropriately convicting unimpaired subjects of traffic safety violations. For these reasons, previous versions of this legislation have been soundly defeated by state lawmakers. This bill should also be rejected.

I urge you to vote ‘no’ on HB 299 and SB 1118.

___________________________________________________________________________________

2014 Florida House Bill No. 299 does not not mention the word “metabolite” anywhere. Instead, House Bill No. 299 reads, in part:

Section 1.
Subsections (92) and (93) are added to section 316.003, Florida Statutes, to read:
316.003 Definitions.
–The following words and phrases, when used in this chapter, shall have the meanings respectively ascribed to them in this section, except where the context otherwise requires:
(92)
DRIVE.–To operate or be in actual physical control of a vehicle.
(93)
IMPAIR OR IMPAIRED.–To weaken or diminish any of a person’s physical or mental abilities, including, but not limited to, the person’s balance, coordination, reflexes, memory, or comprehension or the person’s ability to see, hear, walk, talk, judge distances, act in an emergency, follow directions, multitask, or, in general, perform the many mental and physical acts of daily life.
Section 2. Section 316.193, Florida Statutes, is amended to read:
316.193 Driving while impaired, with certain alcohol concentrations, or drugged under the influence; penalties.–
(1)
A person commits is guilty of the offense of driving while impaired under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle anywhere within this state and:
 (a)
The person is impaired by an under the influence of alcoholic beverage beverages, a any chemical substance identified set forth in s. 877.111, a or any substance controlled substance as defined in under chapter 893 or the Code of Federal Regulations as of July 1, 2014, or as in effect upon the date of the most recent readoption of this section under s. 11.2421 before the offense, or a combination of these items when affected to the extent that the person’s normal faculties are impaired;
(b)
The person has an alcohol concentration a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood or per 210 liters of breath at the time of driving or anytime after driving as a result of alcohol consumed before or during driving; or
(c)
The person has in the blood or urine a substance identified as a controlled substance as defined in Schedule I of chapter 893 or the Code of Federal Regulations as of July 1, 2014, or as in effect upon the date of the most recent readoption of this section under s. 11.2421 before the offense; or
(d)
1. The person has in the blood or urine a substance identified as a controlled substance in Schedule II, Schedule III, or Schedule IV of chapter 893 or the Code of Federal Regulations as of July 1, 2014, or as in effect upon the date of the most recent readoption of this section under s. 11.2421 before the offense.
2.
a.
If a person who is charged with violating this paragraph introduced into his or her body a controlled substance prescribed by a licensed health professional authorized to prescribe the controlled substance, consumed the controlled substance in accordance with the health professional’s directions, and submitted to testing of his or her blood or urine as described in s. 316.1932 or s. 316.1933, the person is entitled to an affirmative defense against any allegation that the person violated this paragraph.
The introduction of a nonprescribed substance into the person’s body does not constitute an affirmative defense with respect to any nonprescribed substance.
b.
Except as provided in sub-subparagraph a., the fact that a person charged with violating this subsection is or was legally entitled to introduce into the human body alcohol, a chemical substance, a controlled substance, a medication, or a drug does not constitute a defense against any charge of violating this subsection a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath….
Section 37.
Subsections (1) and (2) of section 327.354, Florida Statutes, are amended to read:
327.354
Presumption of impairment; testing methods.–
(1)
It is unlawful and punishable as provided in s. 327.35 for any person who is impaired by under the influence of alcoholic beverages or controlled substances, when affected to the extent that the person’s normal faculties are impaired or to the extent that the person is deprived of full possession of normal faculties, to operate any vessel within this state. Such normal faculties include, but are not limited to, the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and, in general, normally perform the many mental and physical acts of daily life…..
Section 50.
This act shall take effect July 1, 2014.

See 2014 Florida House Bill No. 299, Florida One Hundred Sixteenth Regular Session, 2014 Florida House Bill No. 299, Florida One Hundred Sixteenth Regular Session.

 

Florida DUI Rules for the Administrative Suspension – It’s Complicated…

How do you explain the ridiculously complicated new rules for the administrative suspension? The rules have gotten so complicated that I need a timeline. This particular timeline applies to a driver (with no prior DUI arrest) who took the breath test and blew over the legal limit.

After the DUI arrest, the driver has three options:

  1. do nothing;
  2. request a formal review hearing; or
  3. request a waiver review hearing for immediate reinstatement of hardship privileges.

For most people facing a first DUI who can afford to hire an DUI defense attorney willing to fight the suspension, Option 2 is the best option. Option 2 involves fighting to invalidate the suspension in a formal review hearing. Option 1 is the worst option.

Option 1: Do Nothing 

Image

Most people don’t understand the rules. As a result, they do nothing during the first 10 days after the DUI to protect their privileges to drive. If the driver does nothing after a first arrest for blowing over the legal limit, then the officer will take the driver’s license on the day of the arrest.

Read the citation carefully. The notice of suspension is contained on the citation and operates as the 10 day driving permit. After the 10 day permit expires, the 30 day hard suspension begins. During those 30 days the person cannot drive for any reason. On the 31st day, the person can apply for a hardship license at the Bureau of Administrative Review with proof of enrollment in DUI school.

Option 2: Demand a Formal Review Hearing

Image

As a criminal defense attorney, I see a lot of benefits to demanding the formal review hearing. Option 2 is the only option that gives the driver any possible way to invalidate the suspension. In many ways, the administrative suspension is as bad as a DUI conviction.

If the driver hires an attorney during the first 10 days after the arrest, then the attorney can demand the formal review hearing. Most individuals are eligible for a 42 day permit while the attorney fights the administrative suspension.

If the arresting officer or breath test technician fails to appear at the formal review hearing than the suspension will be invalidated. That means that it disappears off the driver’s record. Other reasons for winning the hearing include insufficient evidence in the documents submitted to the hearing officer or inconsistencies in the evidence.

Even if the driver loses the hearing, the attorney has gathered important evidence that can be used to fight the criminal charges. The only downside to contesting the formal review hearing is that the driver might still suffer the 30 day hard suspension. On the 31st day, the person can still obtain a hardship license with proof of enrollment in DUI school.

Option 3: Request a Waiver Review Hearing for Immediate Reinstatement

Request Waiver Review Hearing for Immediate Reinstatement

For a driver with no prior DUI cases, the driver can go to the Bureau of Administrative Review to file a Request for Eligibility Review Form. The driver must personally appear within 10 calendar days. The benefit to this process is avoiding the 30 day hard suspension. But the downside to waiver review is that the driver has NO chance of getting the suspension invalidated.

Hopefully this timeline will help me explain these complicated rules. At least until the next legislative session when our lawmakers come up with something even more complicated.

Bureau of Administrative Reviews Tampa Office

Bureua of Administrative Reviews Tampa Office Closed

So the Bureau of Administrative Reviews (BAR) office in Tampa, Florida, is closed today. Although my client was requesting a formal review hearing and was entitled to a 42 day permit after a DUI arrest, that is not going to happen today. The sign on the door says:

“This Office will be closed Thursday, February 13th and Friday, February 14th. The office will re-open Monday, February 17th at 8 a.m. Please refer to posting next to this notice if you need further assistance.

Regards,

Bureau of Administrative Reviews Tampa Office”

The posting next to it is dated February 10, 2014. It is identified as “Information Notice DL14-006.” The subject line reads: “BAR Office Closed for Annual Training.” It also provides:

Most of the Department’s Bureau of Administrative Review (BAR) offices will be closed Wednesday, February 12th through Monday, February 17th for their annual training. The Clearwater and Tampa BAR Offices will be open on Wednesday and Monday.

Although you can call any of these numbers and no one would ever answer the phone, the notice also provides:

This year there will be seven offices that will remain open and they will be able to assist customers by telephone during this time period. Customers needing immediate assistance may call any of the offices at the numbers listed below.

Penacola- 850-494-5728

Panama City – 850-872-7745

Tallahassee – 850-617-2449

Gainesville – 352-955-2030

Fort Myers – 239-278-7421

Miami – 305-265-3001 (Press 1 for assistance)

Fort Pierce 772-468-4050 (Press 1 for assistance)

If you have any questions regarding the closings, please contact your next level of management.

So who is the next level of management?

If you have any problems because of the closure, leave a message below. I wonder if someone reports to the BAR office on Monday whether they will still get a “wavier review hearing.” Normally, the BAR takes the position that if the 10th day after the arrest falls on a day when the BAR is closed then the person is not entitled to a waiver review hearing.

If you do not get the waiver review hearing on Monday and immediate restatement because of the timing issue, you can still request a formal review hearing and 42 day permit.

Regardless, the office closure certainly creates a problem for anyone that needed a 42 day permit on Thursday or Friday.

Read more about the DHSMV’s new rules after a DUI arrest for getting immediate reinstatement after waiving the right to a formal review hearing.

Drivers Leaving the Scene of a Crash – Florida 2014 Senate Bill 102

Image

Leaving the scene of an accident involving a death is already a first-degree felony punishable by up to 30 years in prison, although it carries no minimum mandatory sentence. DUI manslaughter is also a first-degree felony but it carries a mandatory minimum sentence of four years.

The minimum mandatory requirement means that after a conviction for that charge the court must impose that amount of time in prison (as a minimum) although the court can impose up to the statutory maximum. The person must serve that minimum mandatory time day for day in prison (with no gain time or potential for early release).

As a criminal defense attorney in Tampa that represents clients charged with different versions of Florida’s leaving the scene statutes (often called “hit and run”), I would argue that the lack of a minimum mandatory penalty in Florida’s statute does NOT lead to more people fleeing the scene after a car crash.

Changing the law isn’t going to lower the number of these cases. Instead, it will create more injustice as courts must impose the “minimum mandatory” sentences instead of a fair sentence based on the facts of the case.

Enhancing the Penalties for Leaving the Scene

In a recent article in the Tampa Bay Times, “As hit and run cases multiply is Florida law to blame?“, reporter John Romano poses the question this way:

Do you know what you call that? An incentive to flee, no matter how many broken or dying bodies you leave behind. Even nonfatal accidents reward hit-and-run drivers with similar or lesser penalties than those convicted of DUI.

When you think of it that way, the only reason for an impaired driver to stick around is his/her own sense of compassion and responsibility for the carnage they have created.

That’s not exactly true. If only non-serious injuries occur then remaining at the scene might mean an arrest for “DUI with non-serious bodily injury” which is a misdemeanor in Florida. On the other hand, “leaving the scene with non-serious bodily injury” is a third degree felony which is much worse.

Also, many people get caught by a law enforcement officer while they are driving away from the scene. For those individuals, the penalties are certainly more serious because the individual could face the leaving the scene charges and the DUI related charges.

Nevertheless, the idea that someone might get away with something by leaving the scene is often true. In many of these hit and run cases, no one can identify the driver. Unless someone gets a clear view of the person driving and writes down the tag number, there is usually little other evidence. Even when a witness can identify the driver, unless the investigating officer gets a full confession from the driver, these cases are difficult to prosecute.

If the driver waits 12 hours, then retains an attorney and invokes his right to remain silent and to have an attorney present for questioning, then as a practical matter – there is little chance of being charged with a DUI related offense.

Without the confession, the chances for a leaving the scene prosecution also decrease dramatically. Investigators focus their resources on the cases involving death or serious bodily injury and the rest often go unsolved. For law enforcement officers – these cases must be extremely frustrating and take up tremendous resources.

Hit and Run Cases Are Up in Florida

According to the Florida Highway Patrol, the number of hit and run crashes is up. According to the FHP “hit and run” page on their website:

  • Hit-and-run crashes involving fatalities increased from 162 in 2011 to 168 in 2012.
  • The number of hit-and-run crashes statewide equaled 69,994 in 2012.
  • Three out of every five fatalities in 2012 were pedestrians struck in hit-and-run crashes.

FHP’s crime statistics estimate that in Hillsborough County, Pinellas County and Pasco County combined, more than 8,000 of these hit and run cases occurred last year. Although most involve only minor property damage.

Florida State Senator, Miguel Diaz de la Portilla, R-Miami, wants to increase the penalties in Florida’s hit-and-run statute, Florida Statute Section 316.027. He has introduced Senate Bill 102. It turns any hit and run conviction involving even non-serious injury into a felony offense with at least a four year minimum mandatory prison sentence. Even if it were proven that the person was not DUI and that leaving the scene did not contribute to any delay in the victim receiving medical treatment, it still would require a four year min man.

In fact, it imposes these new minimum mandatory penalties -

  • a four (4) year minimum mandatory provision if any non-serious personal injury occurs;
  • a seven (7) year minimum mandatory provision for any serious injury; and
  • a ten (10) year minimum mandatory provision if a death occurs after the crash.

Florida 2014 Senate Bill 102 (to be known as the “Aaron Cohen Life Protection Act“) enhances penalties for drivers leaving the scene of a crash.

Other Florida Statutes for Leaving the Scene of a Crash

For misdemeanor offenses, Florida law provides for two different statues when the hit and run results in only property damage with no injury to any person.

  • Florida Statute Section 316.063 – makes it a second degree misdemeanor (punishable by up to 60 days in jail and a $500 fine) to leave the scene of a crash involving only damage to unattended property. The driver of a vehicle that is involved in a crash causing damage to unattended property must leave a visible note with his name, address, and registration information. The driver must also notify law enforcement of the crash.
  • Florida Statute Section 316.061 – makes it a second degree misdemeanor (punishable by up to 60 days in jail and a $500 fine) to leave the scene of a crash involving an occupied vehicle or attended property. Instead, the driver must remain at the scene to provide pertinent information such as the driver’s name, address, and registration. The driver must present his driver’s license if requested and notify law enforcement of the accident.

Does a person who makes that split second decision to leave the scene after a crash really contemplate these nuances in Florida’s statutory scheme? Probably not.

The new proposed law for hit and run cases in Florida just takes away the judge’s discretion to fashion a just sentence based on the facts of the case.

Don’t Drink and Drive

I’ve often heard friends talk about driving after having a few drinks. People rationalize their decisions in all kinds of ways. They take the chance because the worse thing they can imagine is getting arrested for DUI. But as a criminal defense attorney, I’ve seen the consequences of having a few drinks and then getting into a crash. Even if your intoxication didn’t cause the crash, you can still be held criminal liable for what would otherwise be a tragic accident.

On average, after a DUI crash involving the death of another person – a prison sentence of 7 to 15 years is the most expected outcome. For me, that is the most persuasive reason to just never drive after having consumed any alcohol. It doesn’t matter that I think I could drive home safely, it just matters that an accusation could be made against me under those circumstances regardless of whether I was actually impaired or not. When you understand how the system really works – it is a much easier decision not to drink and drive.

The Philosophical Question

In the newspaper article cited above, the Pasco County Sheriff Chris Nocco is quoted saying:

“The way it stands now it’s like a college class where they pose philosophical questions: If you are driving under the influence and facing however-many-years in prison, would you stop and make a phone call to help a person you just hit, who may be dying in the road? Basically, are you more worried about that person’s survival, or your own well-being?”

That question assumes that no one else is around to call 911 after the crash. In many of these cases, other people immediately call 911 before the driver even makes that split second decision to leave the scene. In other words, what if you know that leaving the scene isn’t going to make a difference in whether the injured person receives emergency medical attention?

The statute doesn’t make any distinction between leaving the scene when other people are around to call 911 or not. The intention to abandon the victim so the victim does not receive medical attention is not an element of the offense. So many of these cases involve leaving the scene after the driver realizes that someone else has already called 911. Does your answer change under those circumstances?

Here is a more interesting question:

What if you go home after the crash. After leaving the scene you read online about the new minimum mandatory penalties for hit and run. You learn that you are facing at least a four year prison sentence – to be served in Florida State prison – day for day – even if the other person involved in the crash suffered only a non-serious injury. Do you call the police to report what happened and incriminate yourself?

____________________________________________________________

The Statutory Language of the Proposed New “Leaving the Scene of a Crash” Statute

The statutory language of Senate Bill 102 is provided, in part, below:

       Florida Senate - 2014                              CS for SB 102

       By the Committee on Transportation; and Senators Diaz de la
       Portilla, Garcia, and Evers

       596-00986-14                                           2014102c1
    1                        A bill to be entitled                      
    2         An act relating to drivers leaving the scene of a
    3         crash; creating the “Aaron Cohen Life Protection Act”;
    4         amending s. 316.027, F.S.; redefining the term
    5         “serious bodily injury” and defining the term
    6         “vulnerable road user”; requiring the driver of a
    7         vehicle involved in a crash that results in serious
    8         bodily injury to a person to immediately stop the
    9         vehicle and remain at the scene of the crash;
   10         providing that a person commits a felony of the second
   11         degree if he or she fails to stop the vehicle and
   12         remain at the scene of the crash until specified
   13         requirements are fulfilled; requiring the court to
   14         impose a mandatory minimum term of imprisonment under
   15         certain circumstances; requiring the revocation of the
   16         driver’s driver license; requiring the driver to
   17         participate in specified programs; providing for
   18         ranking of an offense committed if the victim of the
   19         offense was a vulnerable road user; authorizing the
   20         defendant to move to depart from the mandatory minimum
   21         term of imprisonment under certain circumstances;
   22         providing requirements and procedures for such
   23         departure; amending s. 322.0261, F.S.; requiring the
   24         Department of Highway Safety and Motor Vehicles to
   25         include in the curriculum of a certain driver
   26         improvement course instruction addressing the rights
   27         of vulnerable road users; amending s. 322.28, F.S.;
   28         requiring the court to revoke for at least 3 years the
   29         driver license of a person convicted of leaving the
   30         scene of a crash involving injury, serious bodily
   31         injury, or death; reenacting and amending s.
   32         322.34(6), F.S., relating to driving while a driver
   33         license is suspended, revoked, canceled, or
   34         disqualified, to incorporate the amendment to s.
   35         322.28, F.S., in a reference thereto; amending s.
   36         921.0022, F.S.; revising the offense severity ranking
   37         chart; conforming a cross-reference; providing an
   38         effective date.
   39          
   40  Be It Enacted by the Legislature of the State of Florida:
   41  
   42         Section 1. This act may be cited as the “Aaron Cohen Life
   43  Protection Act.”
   44         Section 2. Section 316.027, Florida Statutes, is amended to
   45  read:
   46         316.027 Crash involving death or personal injuries.—
   47         (1) As used in this section, the term:
   48         (a) “Serious bodily injury” means an injury to a person,
   49  including the driver, which consists of a physical condition
   50  that creates a substantial risk of death, serious personal
   51  disfigurement, or protracted loss or impairment of the function
   52  of a bodily member or organ.
   53         (b) Vulnerable road user” means:
   54         1. A pedestrian, including a person actually engaged in
   55  work upon a highway, or in work upon utility facilities along a
   56  highway, or engaged in the provision of emergency services
   57  within the right-of-way;
   58         2. A person operating a bicycle, motorcycle, scooter, or
   59  moped lawfully on the roadway;
   60         3. A person riding an animal; or
   61         4. A person lawfully operating on a public right-of-way,
   62  crosswalk, or shoulder of the roadway:
   63         a. A farm tractor or similar vehicle designed primarily for
   64  farm use;
   65         b. A skateboard, roller skates,or in-line skates;
   66         c. A horse-drawn carriage;
   67         d. An electric personal assistive mobility device; or
   68         e. A wheelchair.
   69         (2)(1)(a) The driver of a any vehicle involved in a crash
   70  occurring on public or private property which that results in
   71  injury to a of any person other than serious bodily injury shall
   72  must immediately stop the vehicle at the scene of the crash, or
   73  as close thereto as possible, and shall must remain at the scene
   74  of the crash until he or she has fulfilled the requirements of
   75  s. 316.062. A Any person who willfully violates this paragraph
   76  commits a felony of the third degree, punishable as provided in
   77  s. 775.082, s. 775.083, or s. 775.084.
   78         (b)The driver of a vehicle involved in a crash occurring
   79  on public or private property which results in serious bodily
   80  injuryto a person shall immediately stop the vehicle at the
   81  scene of the crash, or as close thereto as possible, and shall
   82  remain at the scene of the crash until he or she has fulfilled
   83  the requirements of s. 316.062.A person who willfully violates
   84  this paragraph commits a felony of the second degree, punishable
   85  as provided in s. 775.082, s. 775.083, or s. 775.084.
   86         (c)(b) The driver of a any vehicle involved in a crash
   87  occurring on public or private property which that results in
   88  the death of a any person shall must immediately stop the
   89  vehicle at the scene of the crash, or as close thereto as
   90  possible, and shall must remain at the scene of the crash until
   91  he or she has fulfilled the requirements of s. 316.062. A person
   92  who is arrested for a violation of this paragraph and who has
   93  previously been convicted of a violation of this section, s.
   94  316.061, s. 316.191, or s. 316.193, or a felony violation of s.
   95  322.34, shall be held in custody until brought before the court
   96  for admittance to bail in accordance with chapter 903. A Any
   97  person who willfully violates this paragraph commits a felony of
   98  the first degree, punishable as provided in s. 775.082, s.
   99  775.083, or s. 775.084, and shall be sentenced to a mandatory
  100  minimum term of imprisonment of 4 years. A Any person who
  101  willfully commits such a violation while driving under the
  102  influence as set forth in s. 316.193(1) shall be sentenced to a
  103  mandatory minimum term of imprisonment of 4 2 years.
  104         (d)(c) Notwithstanding s. 775.089(1)(a), if the driver of a
  105  vehicle violates paragraph (a), or paragraph (b), or paragraph
  106  (c), the court shall order the driver to make restitution to the
  107  victim for any damage or loss unless the court finds clear and
  108  compelling reasons not to order the restitution. Restitution may
  109  be monetary or nonmonetary restitution. The court shall make the
  110  payment of restitution a condition of probation in accordance
  111  with s. 948.03. An order requiring the defendant to make
  112  restitution to a victim does not remove or diminish the
  113  requirement that the court order payment to the Crimes
  114  Compensation Trust Fund under chapter 960. Payment of an award
  115  by the Crimes Compensation Trust Fund creates an order of
  116  restitution to the Crimes Compensation Trust Fund unless
  117  specifically waived in accordance with s. 775.089(1)(b).
  118         (e)A driver who violates paragraph (a), paragraph (b), or
  119  paragraph (c) shall:
  120         1.Have his or her driver license revoked for at least 3
  121  years as provided in s. 322.28(4);
  122         2.Participate in a victim’s impact panel session in a
  123  judicial circuit if such a panel exists; or
  124         3. Participate in a driver education course relating to the
  125  rights of vulnerable road users relative to vehicles on the
  126  roadway.
  127         (f) For purposes of sentencing under chapter 921 and
  128  determining incentive gain-time eligibility under chapter 944,
  129  an offense listed in this subsection is ranked one level above
  130  the ranking specified in s. 921.0022 or s. 921.0023 for the
  131  offense committed if the victim of the offense was a vulnerable
  132  road user.
  133         (g) The defendant may move to depart from the mandatory
  134  minimum term of imprisonment prescribed in paragraph (c) unless
  135  the violation was committed while the defendant was driving
  136  under the influence. The state may object to this departure. The
  137  court may grant the motion only if it finds that a factor,
  138  consideration, or circumstance clearly demonstrates that
  139  imposing a mandatory minimum term of imprisonment would
  140  constitute or result in an injustice. The court shall state in
  141  open court the basis for granting the motion.
  142         (2) The department shall revoke the driver’s license of the
  143  person so convicted.
  144         (3) The stops shall Every stop must be made without
  145  unnecessarily obstructing traffic more than is necessary, and,
  146  if a damaged vehicle is obstructing traffic, the driver of the
  147  vehicle shall must make every reasonable effort to move the
  148  vehicle or have it moved so as not to obstruct the regular flow
  149  of traffic. A Any person who fails to comply with this
  150  subsection shall be cited for a nonmoving violation, punishable
  151  as provided in chapter 318.
  152         (4) In addition to any other civil, criminal, or
  153  administrative penalty imposed, a person whose commission of a
  154  noncriminal traffic infraction or a any violation of this
  155  chapter or s. 1006.66 causes or results in the death of another
  156  person may, in addition to any other civil, criminal, or
  157  administrative penalty imposed, be required by the court to
  158  serve 120 community service hours in a trauma center or hospital
  159  that regularly receives victims of vehicle accidents, under the
  160  supervision of a registered nurse, an emergency room physician,
  161  or an emergency medical technician pursuant to a voluntary
  162  community service program operated by the trauma center or
  163  hospital.
  164         (5) This section does not apply to crashes occurring during
  165  a motorsports event, as defined in s. 549.10(1), or at a closed
  166  course motorsport facility, as defined in s. 549.09(1).
  167         Section 3. Subsection (2) of section 322.0261, Florida
  168  Statutes, is amended to read...
  200         (b)Upon a conviction for a violation of s. 316.027(2)(a),
  201  s. 316.027(2)(b), or s. 316.027(2)(c) involving injury, serious
  202  bodily injury, or death, the court shall revoke the driver
  203  license of the person convicted for a minimum period of 3 years....
  229         921.0022 Criminal Punishment Code; offense severity ranking
  230  chart.—
  231         (3) OFFENSE SEVERITY RANKING CHART
  232         (e) LEVEL 5
  345         (g) LEVEL 7         
  348  Florida Statute               Felony Degree       Description        

  473         Section 7. This act shall take effect July 1, 2014.

Leslie Sammis is an attorney representing clients with DUI and hit and run (leaving the scene) throughout Tampa and Hillsborough County, FL, and the surrounding counties of Pinellas County, Pasco County and Polk County, FL.

Florida Highway Patrol Says “Don’t Drink and Drive!”

On December 2, 2013, the Florida Highway Patrol launched its attempt at an “innovative” public awareness campaign. According to the FHP, this video is aimed at stopping college-aged adults from driving impaired.

The video is narrated by Captain Nancy Rasmussen, the FHP’s Chief of Public Affairs. It starts with a Lt. Jimmie Collins as  a “tough-nosed trooper.” Lt. Jimmie Collins starts off by yelling at college students in a bar while pounding on the table in a threatening manner, “How many drinks you had? Who’s the designated driver?”

Next you can see the trooper tackling a man getting into his vehicle and throwing him to the ground. Captain Nancy Rasmussen says with a serious monotone, “Effective, but not practical.”

If this is suppose to be funny then something is missing from Captain Rasmussen’s delivery. She ends it with this phrase, “Be responsible, don’t drink and drive.”

Along with the video, FHP released a press release subtitled “FHP puts a new spin on ‘Tackling’ the problem of impaired driving.”

Captain Nancy Rasmussen explains: “Our goal is to reach the younger drivers. Trying to capture the attention of young drivers is difficult, especially on topics with deadly life changing consequences… We hope this PSA will capture the attention of young people and make them think.”

College-aged young people who will never see this video. But what do you think of the message it sends to its recruits?

Polk County Sheriff’s Office Says Don’t Drink and Drive this Holiday Season

The Polk County Sheriff’s Office wants you to remember not to drink and drive this holiday season. This video was published on their YouTube channel on December 11, 2013. It was sponsored by Bright House Networks.

It’s ironic that Sheriff Grady Judd has such a video on this YouTube channel considering the fact that he will not allow his DUI enforcement officers to videotape DUI investigations. As a result, guilty people go free because juries are often unwilling to convict without that video evidence. In fact, the jury is instructed that they can find reasonable doubt from the lack of evidence.

Since every person in the jury box has video and audio recording capability on their smart phone, such a policy is impossible to understand.

This odd policy ensures that innocent people are necessarily charged and convicted of DUI, especially when a deputy is willing to take the stand and lie or exaggerate the facts. It results in less accountability for the DUI enforcement officers in Polk County. The bad deputies are never caught and the good deputies get discouraged that the bad ones keep getting away with it. Not having video means that there is little accountability in the DUI enforcement unit.

Apparently, Sheriff Judd likes it that way. Less accountability is a good thing as far as he is concerned. He isn’t worried about the fact that every other Sheriff’s Office in the area requires that DUI enforcement officers have vehicles that are equipped with audio and video. In fact, the sheriff offices in Hillsborough County, Pasco County, Pinellas County, and Manatee County all require that DUI enforcement officers have and use the video equipment. In many cases, it is required in their Standard Operating Procedures. Even the Florida Highway Patrol had video and audio equipment.

While we are waiting for Sheriff Grady Judd to come up with a policy that allows and requires DUI enforcement officers to video their DUI investigations, enjoy this video made for his YouTube channel.

Before you enjoy holiday parties and gatherings this holiday season think ahead. If you are going to drink, have a designated driver or make arrangements to take a cab. A little planning could save you a trip to the county jail! Drink responsibly and have a safe and happy holiday season!

Law enforcement agencies throughout the Tampa Bay area will have their DUI enforcement officers out in full force. Many are planning DUI Checkpoints, saturation patrols or heightened patrols during the Holiday Season, especially around New Year’s Eve and the early morning hours of New Year’s Day. Enjoy the video and have a safe and happy Holiday Season.

Tampa Police Department Loves a Snitch. There’s an app for that…

Scott Greenfield at Simple Justice recently wrote a blog article about the new mobile snitch app released by the Tampa Police Department. Any iPhone or Android user can download the app to their smartphone for free. Now you can rat out your enemies with great ease and convenience.

In his blog post, Scott Greenfield made this point:

But the banality of it, coupled with the utterly uncritical news report about it, reflects both the love of apps and the depth of problems that confront us in the everyday digital world…. Let’s put the tools of our own destruction into every smart phone in the hands of every idiot and wannabe law enforcer in town.  What could possibly go wrong?

As one of the comments in Scott’s blog post points out – the “app permissions” required the following:

“This app needs access to the following:
– Storage (add/delete)
– Services that cost you money (directly call phone numbers)
– Network Communications (full internet access)
– Your Location (Fine GPS location)”

That means if you download the app then you give permission.

The majority of people who will submit tips using this app are crazy people, other law enforcement officers, and wannabe cops. Although they can snitch all they want, TPD is misleading them by claiming anything about this app is anonymous.

The framework for the app was built by Cloudspace Mobile that teamed with a local company Fast Forward Marketing. The president of Fast Forwarding Marketing is Bill Todd, who is the son of retired Tampa Police Sgt. Bill Todd. Although TPD said they didn’t pay for the app, they certainly generated a lot of free publicity for Bill Todd’s company.

Think fast. If you hit the wrong button then you are giving TampaPD access to all of your contacts.

Tampa Police Department Wants to Access Your Clients

Here are screen shots of more prompts to make a report, or submit issues and tips anonymously. You can even take a picture. It is actually quite easy to upload the picture if you want to ensure TPD knows your exact location.

Anonymous Tips to Tampa Police Department

Tampa Police Anonymous Tip

Yes, TPD does make it clear in the fine print that it can track your location. Although this page doesn’t use the word “anonymous” at all.

Tampa Police App to Monitor Your Location

If you plan on snitching frequently, you will save time by adding your contact information so that it is automatically included in the reports or “volunteer inquires” you submit.

APP SETTINGS Reports to Tampa Police

To encourage middle school and high school students to snitch more frequently, the app has a special button to help you direct your snitch to the appropriate school resource officer.

Snitch at School to Resource Officer

The Tampa Police Department loves a snitch. Now there’s an app for that…

If you really want to help law enforcement gather more data then use the app at 15th Street and 122nd Avenue. Learn more about the Hillsborough County Sheriff’s Office Tag Reader (the automatic license plate reader) which is coming to an intersection near you soon.

Waiver Review for First Time DUI Offenders

The Hillsborough County Sheriff’s Office has started handing out a flyer after releasing individuals charged with DUI. The flyer reads:

Waiver Review - First Time DUI Offenders

Bureau of Administrative Reviews (BAR)

Waiver Review

First Time DUI Offenders

Effective 07/01/2013 – First time DUI offenders can apply for a waiver review and may obtain a restricted driver license within 10 days of the suspension if otherwise eligible. To request the waiver review, a non-refundable filing fee of $25.00 and proof of DUI school enrollment must be submitted with your application for a waiver review hearing within 10 days of the driver license suspension. You may submit your request by appearing at the local BAR office indicated on the DUI citation.

The flyer doesn’t mention anything about the downside to submitting an application for a waiver review hearing. The biggest problem is that if you apply for the “waiver review hearing” and receive immediate reinstatement of your driving privileges for hardship purposes then you must waive any right to contest the suspension. In other words, if you apply for the waiver review then you are agreeing that your driver license should be suspended for:

  • 6 months if your Breath or Blood Alcohol Concentration was over .08; or
  • 12 months if you refused to submit to a lawful and approved breath, blood or urine test after your DUI arrest.

Waiver Review vs. Formal Review Hearing

The best alternative to the waiver review is hiring an attorney to demand a formal review hearing. If your driver license was valid when you were arrested for DUI, then you should be eligible for a 42 day permit. Then you can drive on the hardship permit while your attorney fights to invalidate the administrative suspension. The only downside to fighting the administrative suspension is that if the hearing officer does not invalidate the suspension, then the following hard suspension will start after the 42 day permit expires:

  • 30 days if your Breath of Blood Alcohol Concentration was over .08; or
  • 90 days if you refused to submit to a lawful and approved breath, blood or urine test after your DUI arrest.

During that hard suspension period  you cannot drive for any reason.

Problem with the Waiver Review

Keep in mind that the waiver review hearing is to determine whether you should receive immediate reinstatement of hardship driving privileges. If you are deemed eligible, the DHSMV will only give you a hardship license to drive for business purposes only pursuant to F.S. 322.271.

In many cases, requesting the formal review hearing to contest the suspension is the better option. This is particularly true for anyone with a prior DUI, anyone who doesn’t need to drive in Florida, anyone who lives out of state, or anyone interested in increasing the chance that they win their criminal case at trial.

You May Not Qualify for Immediate Reinstatement

If you have a prior DUI arrest or administrative driver’s license suspension after a DUI arrest (even if you ultimately avoided a DUI conviction) then you are not eligible for immediate reinstatement. The hearing officer will also have access to certain out of state records that might show whether you had a DUI, DWI, OUI, or any other type of driving-under-the-influence-type charge.

You May Not Need Immediate Reinstatement

The administrative suspension only impacts your privileges to drive in the State of Florida. If you live out of state, your home state may not take any action on the administrative suspension. If you are returning to your home state and have no intention of driving in Florida during any 30 or 90 day period for the hard suspension, then you have nothing to lose by demanding the formal review hearing to invalidate the suspension completely.

The Administrative Suspension is Almost as Bad as a DUI Conviction

The administrative suspension is a finding that you were DUI. It triggers certain reporting requirements for certain occupations such as airline pilots. Additionally, even if you avoid the DUI conviction in court, the administrative suspension stays with you forever. Before you waive the right to contest the administrative suspension, you should understand the important rights you are giving up.

You May Not Be Able to Jump Through the Hoops within 10 Calendar Days

Another problem occurs because of the tight deadlines for compliance. Not all people are able to jump through the hoops necessary to obtain immediate reinstatement within 10 calendar days of the arrest. And “within 10 calendar days of the arrest” means that if the 10th day falls on a holiday or a weekend, then you missed the deadline. For someone arrested on a Thursday night, they have only 6 business days to complete all of the requirements for immediate reinstatement. If they miss that deadline then they will suffer the 30 or 90 day hard suspension period before being eligible for a hardship license. The hoops for immediate reinstatement include:

  • enrolling in DUI school and getting proof of enrollment (including proof of payment);
  • personally appearing at the Administrative Review Hearing Office (for DUI arrests in Hillsborough County, the Tampa office is located at 2814 East Hillsborough Avenue, Tampa, FL);
  • complying with the Florida ID act.

*Note: even if you miss the 10 day deadline for waiver review because the 10th day falls on a holiday or weekend, you might still be able to request the formal review hearing and obtain the 42 day permit on the next business day.

You Can’t Invalidate the Suspension if You Don’t Request the Formal Review Hearing

You might win the formal review hearing which invalidates the administrative suspension. But if you don’t request the formal review hearing then you have NO chance that the administrative suspension will be invalidated.

Your chances of winning the hearing increase significantly with changes to the statute that took effect on July 1, 2013 which now require the suspension to be invalidated if the arresting officer or the breath test technician fail to appear at the formal review hearing. There are many other reasons why the individual might win the hearing even if all of the witnesses appear. But the driver has NO chance of invalidating the suspension if they apply for waiver review.

The Formal Review Hearing Lets Your Attorney Gather Important Information

At the formal review hearing your attorney has an opportunity to subpoena all of the witnesses in the case and ask them questions under oath. The Department of Highway Safety and Motor Vehicles (DHSMV) bears the burden of production and the burden of proof at this hearing. The hearing officer must determine whether competent evidence has been presented as to each and every required element in the case.

Your attorney can subpoena the following witnesses for the formal review hearing:

  • The officer that conducted the stop of your vehicle;
  • The arresting officer (who might be different than the stop officer);
  • The backup officer (if listed in the report);
  • Any civilian witnesses listed in the reports;
  • The breath test technician (even in a refusal case if listed in the packet); and
  • The agency inspector that maintains the Intoxilyzer 8000 machine used in your case (if you submitted to a breath test).

No matter the outcome of the hearing, being able to question all of those witnesses early in the case is extremely valuable to the criminal defense attorney. Your attorney can also require the witnesses to bring certain documents to the hearing such as the repair or maintenance records for the breath test machine. A court reporter can type up a transcript from the hearing that can be used at trial to impeach the witness if the witness gives an inconsistent statement.

Most of My Clients Want a Formal Review Hearing

I initially thought that most of my clients would want to waive the formal review hearing and request immediate reinstatement. However, once my clients understand the rights they are giving up, most of them are opting for the formal review hearing. I’m curious whether other attorneys are having the same experience. Leave a message below if you have an opinion on the matter.

I’m also interested in hearing from anyone about problems they had when requesting the waiver review or obtaining immediate reinstatement. Please leave a comment below.

Read more about the New 10 Day Rule in Florida DUI Cases.

DUI Policy for the Hillsborough County Sheriff’s Office

Should officers with the Hillsborough County Sheriff’s Office be fired for a DUI arrest? The Hillsborough County Sheriff’s Office has a zero-tolerance policy on driving under the influence that has been in effect since Sheriff David Gee took office in 2004.

A spokesperson for the Sheriff’s Office that “If a deputy is arrested for DUI, they are immediately suspended without pay; and, regardless of a conviction, they are terminated or given the opportunity to resign or retire after due process.”

DUI Arrest Policy for the Pinellas County Sheriff’s Office

The Sheriff in Pinellas County, Bob Gualtieri, notified his staff that he was adopting a similar policy in an e-mail dated November 11, 2013. The DUI arrest policy for the Pinellas County Sheriff’s Office requires termination from employment only if the PCSO employee registers over the legal limit of .08 or is convicted of driving under the influence (DUI). 

Sheriff Bob Gualtieri has explained the new policy:

  • “Driving while impaired by alcohol or controlled substances is not only illegal, it is dangerous and causes serious injury and death.”
  • “As members of law enforcement we must set an example for our community and adhere personally to the laws we enforce. Moreover, we must do the right thing and driving while impaired is doing the wrong thing. Every person who drives while impaired makes the bad decision to do so – it is a conscious decision and a choice that disregards human life.”
  • “We have experienced more member involved DUI’s recently, this troubles me greatly and it is something that must stop. Again – the decision to drive impaired is a conscious decision and one that can easily be avoided.”
  • “Effective immediately I will no longer impose the minimum seven-day suspension for DUI’s and the consequence for any member of the Pinellas County Sheriff’s Office who operates a vehicle while above the legal alcohol limit of .08 percent blood alcohol content, or is convicted of a DUI will be termination of employment.”
  • “This will be automatic and exceptions will not be made for anyone regardless of rank or position within the agency.”
  • “I never want to be in the position of having to terminate anyone’s employment; however, I also do not want to be the one knocking on the door of someone’s home at 2 a.m. telling them that their loved one was killed by a DUI driver – especially one that works for PCSO. There is an easy solution to avoid any consequence of this new policy – don’t drive while impaired.”

The Previous Policy for DUI Arrests by PCSO Employees

Under the previous policy, employees with PCSO who were arrested for DUI and had no prior record would receive a minimum seven-day suspension. The General Orders allowed for a range of discipline from that minimum seven-day suspension all the way up to termination from employment.

What Happens if the PCSO Employees Refuses to Submit to Chemical Testing?

The Sheriff in Pinellas County also said that if any employee with PCSO refuses chemical testing after the DUI arrest then a member of the Administrative Investigative Division (“AID”) would go to the jail and require an administrative blow. If the employee blew over the legal limit of .08 or refused to submit then the employee would be terminated.

So what do you think – should all employees of law enforcement agencies automatically lose their job after a DUI arrest?

Laura Barfield, former FDLE Alcohol Testing Progam Director, Starts a Consulting Practice

If you are interested in shining some light on Florida’s Alcohol Testing Program then you might be excited to learn that Laura Barfield, the former FDLE Program Manager, has started her own consulting practice. The company is called “Forensic Toxicology Consulting Services International, LLC.” According to her website she started the company in May of 2013.

I am happy to welcome her to private practice. Truth and transparency will lead to a better alcohol testing program for the State of Florida. I would have welcomed her into private practice months ago, but I just happened across her website today. Her quote of the day really says it all:

Image

Her website provides that she is a “consultant and expert witness on the analysis and impairing effects of alcohol and drugs.” You can visit her website here – Forensic Toxicology Consulting Services International, LLC. You can like her company on Facebook here – Facebook profile. Or connect with Laura Barfield on LinkedIn.

Her website also contains a few blog articles including one dated September 21, 2013, entitled “Your DUI Case” that stresses the importance of having “all relevant information in the possession of the Prosecution to adequately and appropriately confront your accuser and properly defend yourself.” The article also has a list of non-exhaustive issues that must be verified including:

  • Proper procedures were followed and all requirements were met;

  • The instrument used was operating correctly at the time you were tested;

  • The testing protocol used was valid and accepted in the scientific community;

  • A preliminary, or screening, test result is not being used as evidence against you;

  • The results have scientific and legal, or probative value and are not prejudicial;

  • Quality assurance and quality control was incorporated in the analysis;

  • There was probable cause to collect the sample(s) analyzed; and

  • The person(s) conducting the analysis were qualified to do so.

It is quite exciting to find out that Laura Barfield might be coming to a city near me to testify about problems with the Intoxilyzer 8000 in Florida. I cannot imagine a better expert witness that the defense could hire.

I had the pleasure of calling her as my witness several years ago for the motions in Hillsborough County in my attempt to obtain the source code to the Intoxilyzer 8000. I’ve also cross-examined her in another case in Pinellas County, FL, after the prosecutor called her to testify at a motion hearing.

Trust me when I say that prosecutors will have a difficult time with cross examination for any number of reasons. In fact, I can’t wait to see that cross-examination. At least in front of a jury, the prosecutor would be an idiot to attempt to impeach her on the obvious.

Laura Barfield was essentially the Big Enchilada at FDLE’s Alcohol Testing Program. The number two guy, Roger Skipper, is now the Agency Inspector for the Hillsborough County Sheriff’s Office. The number three guy, Matthew Malhiot started his own consulting practice called Forensic Alcohol Consulting and Training, LLC, which is located in Canton, GA.

So now instead of hiring the number three guy, Matthew Malhiot, and paying his expenses to travel from Georgia, DUI defense attorneys in Florida will have the option of bringing in the former Big Enchilada. Plus, her travel expenses will be far less since her business is centered in Tallahassee, FL.

Like Matthew Malhiot, she might have a few announcements to make during the middle of her testimony. Her announcements promise to be far more exciting than the “drilling of the little hole” in the Intoxilyzer 8000. We can all look forward to that. She could have a very successful career as an expert witness for as long as Florida has the Intoxilyzer 8000. Seriously. I can’t wait to see what she charges. She will have the defense attorneys lined up around the block.

Laura Barfield knows where she is going and she knows the truth, and she doesn’t have to be what you want her to be. She’s free to be what she wants.

Follow

Get every new post delivered to your Inbox.

Join 30 other followers