Forced Blood Test after Missouri v. McNeely, 133 S. Ct. 1552 (2013) in Florida

blood test

Prior to Missouri v. McNeely, 133 S. Ct. 1552 (2013), law enforcement officers in Florida would ask for a voluntary blood draw of a driver suspected of DUI if the case involved a crash with serious bodily injury or death.

 

If the suspect refused, the officers would use Florida Statute 316.1933 as a basis to conduct a forced blood draw either at the scene in an ambulance or at the hospital. In most cases, the officers would not obtain a warrant prior to the forced blood draw and the taking would occur prior to any arrest.

Such takings were usually considered to be constitutional under the theory that the case involved an exception to the warrant requirement because the dissipation of alcohol is an exigent circumstance.

That assumption changed with the Supreme Court’s decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013). Now, criminal defense attorneys throughout Florida are filing motions to suppress in forced blood cases without a warrant.

The motions allege that the blood test evidence must be suppressed or excluded at trial when the sample was taken during a forced and warrant-less blood draw, before any arrest, without either consent or exigent circumstances.

The motions allege that the taking of blood without a warrant is in violation of the Fourth Amendment of the U.S. Constitution, Article I, Section 12 of the Florida Constitution, and the decision of the Supreme Court of the United States in Missouri v. McNeely, 133 S. Ct. 1552 (2013).

DUI defense attorneys in these cases are also filing motions alleging that Florida Statute Section 316.1933 is unconstitutional, on its face and as applied, since it purports to permit a warrant-less forced blood draw before an arrest and without any exigent circumstances or consent.

In the alternative, it is often alleged that Florida Statute Section 316.1933 doesn’t apply because the officer that ordered the forced blood draw didn’t have probable that the person was actually driving, was involved in the crash, or was impaired by alcohol or any chemical or controlled substance.

In many of these cases, the DUI defense attorney will also argue that the blood test violated the provision in Florida 316.1933 that requires that the blood test “shall be performed in a reasonable manner.”

Cases involving a forced blood draw without a warrant are also problematic because once the sample is taken, no exigency exists. At that point, officers could obtain a warrant before taking the sample from the scene and performing testing on the sample to determine its alcohol or drug content.

Furthermore, without consent, the person tested has not waived patient record confidentiality with respect to the results of any blood test for purposes of determining its alcoholic content.

In a series of blog posts, we will explore each of these issues in more detail.

The attorneys at Sammis Law Firm in Tampa, FL, are experienced in fighting felony DUI blood test cases throughout Hillsborough County and the surrounding areas in Tampa Bay.

Can an Officer Ask for Breath or Urine Test Prior to the Arrest?

photoWhat happens if the officer asks for a breath or urine test prior to the arrest? If the suspect is 21 years of age or older, then requesting a breath or urine test before the arrest is a clear violation of Florida’s implied consent law.

The request itself, the refusal to submit, or the test results should be suppressed at trial because of the violation.

Also, if the officer submits paperwork to the DMV to trigger an administrative suspension for either refusing the breath or urine test or having a BAC over .08 before the arrest, then driver should demand a formal review hearing to invalidate the administrative suspension within 10 days of the arrest.

Provisions of Florida Statute Section 316.1932

Florida Statute Section 316.1932 contains two very distinct provisions that authorize the testing of blood, breath, and urine in order to detect the presence of alcohol or controlled substances. Section 316.1932(1)(c) authorizes blood draws but only under the following circumstances:

  • the arresting officer has reasonable cause to believe the person was driving a vehicle while under the influence of alcohol, chemicals, or controlled substances;
  • the person appears for treatment at a medical facility; and
  • the administration of a breath or urine test is impractical or impossible.

On the other hand, Florida Statute Section 316.1932(1)(a)1.a. allows for the request of a breath test but only if:

Any person who accepts the privilege…of operating a motor vehicle within this state is… deemed to have given his or her consent to submit to an approved …test of his or her breath…if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.

The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages…

The person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such a test or tests, and shall also be told that if he or she refuses to submit to a lawful test of his or her breath and 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, he or she commits a misdemeanor in addition to any other penalties.

The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.

Thus, the plain language of the statute provides that a request for a breath or urine test can only be made after an arrest and not before.

Suppressing Breath or Urine Evidence Requested Before Arrest

In State v. Serrago, 875 So. 2d 815, 819 (Fla. 2d DCA 2004), the defendant was charged in Pinellas County with numerous offenses arising out of a fatal traffic accident. One issue in the case was whether the trial court erred by not suppressing urine test results taken prior to an arrest.

The appellate court determined that a pre-arrest urine test is not authorized by section 316.1932(1)(c) and therefore the urine test results were not admissible at trial since it was taken in violation of Florida’s implied consent law.

The Serrago Court noted:

“Our reading of section 316.1932(1)(c) leads us to conclude that it cannot reasonably be read to allow a urine test because it simply does not provide for same. Section 316.1932 contains two very distinct provisions that authorize the testing of blood, breath, and urine in order to detect the presence of alcohol or controlled substances.

Section 316.1932(1)(a) allows for breath and urine testing but does so only pursuant to a lawful arrest. Section 316.1932(1)(c) authorizes blood draws but only under the following circumstances: (1) where there is reasonable cause to believe the person was driving a vehicle while under the influence of alcohol, chemicals, or controlled substances; (2) where the person appears for treatment at a medical facility; and (3) where the administration of a breath or urine test is impractical or impossible.

The only reason that section 316.1932(1)(c) mentions breath or urine tests is to limit blood draws to those situations in which a breath or urine test, impliedly authorized pursuant to section 316.1932(1)(a), was impossible or impractical. It does not specifically authorize any breath or urine tests, nor is its language susceptible of an interpretation that impliedly authorizes breath or urine tests.

Rather, section 316.1932 clearly distinguishes between breath and urine tests, which are authorized by section 316.1932(1)(a), from blood tests, which are authorized by section 316.1932(1)(c). We conclude, therefore, that the trial court erred in concluding that section 316.1932(1)(c) impliedly authorized the urine test performed here.

This analysis is supported by case law, which has historically treated blood tests differently than breath and urine tests.

In State v. Williams, 417 So.2d 755 (Fla. 5th DCA 1982), the Fifth District, in considering a breath test that was taken from an individual who was not under arrest, found that the legislative intent to treat blood tests differently from breath and urine tests was revealed in the legislature’s failure to change the law as it relates to breath and urine when it changed the law regarding blood tests. Id. at 758.

In State v. Hilton, 498 So.2d 698, 700 n. 4 (Fla. 5th DCA 1986), the court observed: “We note that, unlike breath or urine tests, a blood test administered pursuant to section 316.1932(1)(c) need not be incidental to a lawful arrest.”

In addition, Department of Highway Safety & Motor Vehicles v. Whitley, 846 So.2d 1163, 1167 (Fla. 5th DCA 2003), quoted with approval from State v. Barrett, 508 So.2d 361, 362 (Fla. 5th DCA), review denied, 511 So.2d 299 (Fla.1987), as follows: “ ‘[T]he legislature has specifically declared that breath tests must be incident to a lawful arrest, and has made pre-arrest breath tests inadmissible.’ ”

The court also reasoned that since Barrett, the legislature had not substantially amended the statute, indicating its intent that pre-arrest breath tests should remain inadmissible.

The Serrago court then concluded that the urine test was inadmissible because:

Given our interpretation of section 316.1932, which clearly places breath and urine tests in a category that is separate from blood tests, we conclude that the trial court erred when it found the urine test to be admissible because section 316.1932(1)(a) clearly requires that urine tests must be conducted pursuant to a lawful arrest. Since the defendant was not under arrest at the time that the urine test was taken, the urine test here was not admissible.

Suppression or exclusion of the evidence is required because in order for the refusal to be admissible in the civil or criminal case, the DUI officer must show that he complied with Florida’s Implied Consent Statute, Section 316.1932(1)(a)1.a.

The remedy for failing to comply with the Implied Consent Warning is exclusion or suppress of any evidence of the alleged refusal to submit. Id. Therefore, for any case in which the suspect is asked for, submits to, or refuses a breath test prior to an arrest, that evidence should be suppressed at trial.

The attorneys at the Sammis Law Firm, P.A., in Tampa, FL, are experienced in fighting DUI cases throughout Hillsborough County, and the surrounding areas of Tampa Bay, including cases that involve a pre-arrest request for a urine test or breath test. 

Tampa DUI Checkpoint on Friday the 13th

Tampa Police Department Picture of Checkpoint

The Tampa Police Department conducted a DUI checkpoint on Friday, May 13, 2016.

The press release, issued by Janelle McGregor, TPD Spokesperson, went out the same day. The press release disclosed that the Tampa Police Department DUI unit would conduct a DUI checkpoint on Friday, May 13 to Saturday, May 14.

The officers with TPD were stationed near East Waters Avenue and I-275 from 10 p.m. – 1 a.m.  According to the press release, the TPD checkpoint is part of a $191,000 Florida Department of Transportation grant to ensure motorists are safe.

You can read the press release here: Tampa Police Department Conducting DUI Checkpoint

In addition to the last minute press release, TPD also issued a breaking tweet:

NEWS ALERT: Tampa Police Officers Conducting DUI Checkpoint: The Tampa Police Department DUI unit w…

Checkpoints are not allowed in many states. In Florida, they are highly ineffective at catching drunk drivers. Because officers often make mistakes in drafting the operation plan and following it in the field, many of the people arrested are later exonerated in court.

In many of these cases, the person arrested later has their case dismissed entirely after their criminal defense attorney files a motion to contest the legality of the stop and suppress any evidence gathered thereafter.

Read more about the problems with DUI Checkpoints in Florida.

If you witnessed the checkpoint, leave a message below. We will update the post with information about how many citations and arrests were made as soon as the information is released.

DUI Victim Impact Panel in Tampa

Once each month on a Monday night, nearly 200 people report to a room at the Falkenburg Road Jail at the Hillsborough County Sheriff’s Office to complete a victim impact panel. The panel is hosted by Mother’s Against Drunk Driving (MADD).

The victim impact panel can be required as a condition of DUI probation. In fact, many of the judges in Hillsborough County will require attendance at the Victim Impact Panel as a condition of probation, especially if the DUI conviction involves injury or property damage. In some cases, the judge might even require the DUI VIP if the case is reduced to reckless driving.

The Victim Impact Panel in Tampa is hosted by Mothers Against Drunk Driving. The purpose of the panel is to educate those recently arrested for DUI about how the offense impacts others. At the panel, the victims of DUI tell their gut-wrenching stories of loss and tragedy.

The Victim Impact Penel is a court ordered program.  If you are interested in attending a Victim Impact Panel and have not been court ordered you may be admitted, space permitting, but you will not receive proof of attendance.

The MADD DUI Victim Impact Panel prohibits drinking or drug use prior to attending. All attendees may be subject to alcohol testing. A positive alcohol test may cause a violation of probation. Anyone suspected of being under the influence will be denied admission to the program.  Law enforcement will be present.

Victim Impact Panel for Hillsborough County – Visit the Mother’s Against Drunk Driving (MADD) website to learn more about the DUI Victim Impact panels conducted at the Hillsborough County Sheriff’s Office – Falkenburg Road Jail Assembly Room. The panel is held in the building at the north end of the jail.

Panel Day: Monday
Registration Time: 6:00pm
Panel Start Time: 6:30pm
Panel End Time: 8:30pm

Address:

MADD’s DUI VIP
520 North Falkenburg Road
Tampa, FL 33619

The upcoming dates and times for the panel are:

  • Monday, January 25, 2016
  • Monday, February 15, 2016
  • Monday, March 21, 2016
  • Monday, April 18, 2016
  • Monday, May 16, 2016
  • Monday, June 20, 2016
  • Monday, July 18, 2016
  • Monday, August 15, 2016
  • Monday, September 19, 2016
  • Monday, October 17, 2016
  • Monday, November 21, 2016
  • Monday, December 19, 2016

To participate in the panel and receive credit for attending you must bring:

  1. photo identification;
  2. a court order or paperwork for probation MUST be presented;
  3. A registration fee of $40.00 paid via a Money Order or Bank Cashier’s Check ONLY Payable to MADD ( no cash is accepted).

Individuals on probation for DUI in Hillsborough County must register with your probation officer. For individuals on probation for DUI outside of Hillsborough County or with the DOC please call MADD office to register (813.273.6233 ext. 7296).

No children are allowed.  No food, beverages, cell phones, or other electronic devices permitted. Cell phone use or texting will be cause for dismissal from this program.

For more information please download printable information on the 2015 DUI Victim Impact Panels in Hillsborough County.

Additional questions can be directed to westcentral.fl@madd.org or call MADD at 813.273.6233 ext. 7296 for more information.

Missouri vs. McNeely’s Impact in Florida – F.S. Section 316.1933 is Unconstitutional

In a recent trial court level decision, State vs. Liles, 21 Fla. L. Weekly Supp. 883a (FLWSUPP 2019LILE), a Circuit Court Judge in Florida found that Section 316.1933 is unconstitutional because of the holding in Missour v. McNeely, 133 S.Ct. 1552 (2013).

Since Section 316.1933 was enacted, law enforcement officers have used it to force warrantless blood draws without consent or exigent circumstances even before an arrest if the officer had probable cause that the driver was DUI and caused an accident with death or serious bodily injury of anyone (including the defendant).

The court also excluded the blood test in that case finding that the officer’s misplaced reliance on Section 316.1933 cannot form the basis for a good faith exception to the exclusionary rule.

The Court also found that a warrantless blood draw without consent or exigent circumstances violates state and federal constitutional protections.


IN THE CIRCUIT COURT FOR THE 9TH JUDICIAL CIRCUIT

IN AND FOR ORANGE COUNTY, FL

STATE OF FLORIDA,

Plaintiff,                                                                                   Case No. 48-2011-CF-13421-A-O.                                                                                                              April 29, 2014. Mike Murphy, Judge

v.

– – – – LILES,

Defendant.

ORDER ON DEFENDANT’S MOTION TO EXCLUDE RESULTS OF TESTING CONDUCTED ON BLOOD DRAWN FROM THE DEFENDANT

THIS CAUSE having come on to be heard on the DEFENDANT’S MOTION TO EXCLUDE RESULTS OF TESTING CONDUCTED ON BLOOD DRAWN FROM THE DEFENDANT and the Court being fully advised on the premises, it is hereby

ORDERED AND ADJUDGED as follows:

Absent a warrant, blood can only be obtained by the Government from a person, including the Defendant, if there is an exception to the search warrant requirement. In the instant case the only possible exceptions would be exigency, consent and Fla. Stat. 316.1933.

With regard to exigency, the case of Missour v. McNeely, 133 S.Ct. 1552 (2013), makes it clear that Schmerber v. California, 86 S.Ct. 1826 (1966) did not authorize a warrantless searches of a person’s blood simply because a blood alcohol level declines over time. Instead, under Schmerber, each case is looked at on an individual basis to determine if an exigency requires the taking of the blood. In the instant case, the evidence failed to establish an exigency existed to take the Defendant’s blood without his consent.

With regard to consent, the record is clear the Defendant did not expressly consent. However, implied consent may be a recognized exception to the warrant requirement to obtain a defendant’s blood. See McNeely at 1566. Fla. Stat. 316.1932(1)(c), a part of implied consent, provides for when a driver has impliedly consented to a blood draw. However, the facts as testified to at the hearing failed to establish that this subsection applied and the State indicated that the State was not proceeding under this subsection.

Instead, the State indicated that the State was relying on Fla. Stat. 316.1933 to justify the warrantless search of the Defendant’s blood. However, Fla. Stat. 316.1933 is not part of the implied consent law. 2 Fla. Stats. 316.1932(1)(a)1a, 316.1932(1)(a)1b, 316.1932(1)(c), and 316.1932(1)(e) clearly set forth what is covered by Florida’s implied consent law.

While previous versions of Fla. Stat. 316.1933 were part of implied consent and in fact contained the word “consent,” the statute covering the time frame when the instant blood was withdrawn does not. Prior to July 1, 2002 Fla. Stat. 316.1933(1) required that a person “shall submit, upon the request of a law enforcement officer, to a test of the person’s blood . . .” if the officer had probable cause to believe that the defendant had driven a vehicle while under the influence of alcohol or drugs and caused the death or serious bodily injury of a human being.

However, Laws of Florida Chapter 2002-263 (the result of the passage of the C.S.C.S.H.B. 1057) altered the state of affairs and now no longer directs that a person shall submit to a blood test. The amended statute now directs the law enforcement officer to require a person to submit to a test by reasonable force if necessary. In amending the statute, the legislature appears to have misinterpreted Schmerber v. California, 384 U.S. 757 (1966). This finding is based upon the staff analysis for CSCSHB 1057 under the section titled “Constitutional Issues” which states:

The United States Supreme Court has held that requiring someone to submit to breath or blood testing in DUI cases does not violate the Fourth Amendment’s prohibition against unreasonable searches and seizures or the Fifth Amendment right against self-incrimination. See Schmerber v. California, 384 U.S. 757 (1966).

Intellectual honesty requires this Court to find that this modification of the law was the legislature’s adoption of the Schmerber exigency standard and removal of Fla. Stat. 316.1933 out of the implied consent law. Unfortunately for the State, as discussed above, the evidence at the hearing failed to establish that an exigency existed to authorize the blood withdraw. Without an established exigency,Schmerber did not authorize a warrantless blood withdrawal. See McNeely.

If the legislature’s amendment was not an attempt to adopt the Schmerber standard by amending Fla. Stat. 316.1933, the statute would be unconstitutional by failing to require the existence of an exigency before directing the officer to obtain blood. See McNeely.

The next issue is whether or not, under the circumstances, the officer was allowed to rely upon a statute that has not be declared invalid. In Montgomery v. State, 69 So.3d 1023 (Fla. 5th DCA2011), the Fifth DCA laid out the general good faith exception to the exclusionary rule. However, with all general rules there are recognized exceptions.

In Illinois v. Krull, 480 U.S. 340, 349-350, 355, 107 S. Ct. 1160, 1167, 94 L. Ed. 2d 364 (1987) the United States Supreme Court addressed whether the good faith exception could be applied to a clearly unconstitutional statute:

Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law. . . . A statute cannot support objectively reasonable reliance if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws. Nor can a law enforcement officer be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional. . . . As we emphasized in Leon, the standard of reasonableness we adopt is an objective one; the standard does not turn on the subjective good faith of individual officers.

Pursuant to Munoz v. State, 629 So.2d 90, 98 (Fla. 1993) “the legislature cannot enact a statute that overrules a judicially established legal principle enforcing or protecting a federal or Florida constitutional right.”

In the instant case, the Florida Legislature’s 2002 amendment of Fla. Stat. 316.1933 directed law enforcement to conduct a warrantless nonconsensual non-exigent search of a non-arrested person’s blood. Such a statute, as written, clearly violates the Federal and State constitution as much as statute that directs a police officer to take a warrantless nonconsensual non exigent DNA or blood sample of any non-arrested person the officer has probable cause to believe committed a sexual battery.

Under Krull and Munoz, even assuming the facts of the instant case met Fla. Stat. 316.1933, unless the statute adopted the Schmerber standard, the statute is clearly unconstitutional without an exigency requirement and where the statute is no longer part of implied consent. By failing to include an exigency requirement in the statute the legislature wholly abandoned its responsibility to enact constitutional laws and under Krull the State cannot rely upon a good faith reliance on a statute in the instant case which purports to trump the Fourth Amendment to the United States Constitution.

In conclusion, the warrantless, nonconsensual, nonexigent blood draw of the Defendant violates the State and Federal Constitutions and therefore the Defendant’s Motion to Exclude is Granted.

__________________

1 Cf. Frost v. Railroad Commission, 271 US 583 (1926), cited with approval in Koontz v. St. Johns River Water Management District, 133 S.Ct. 2586, 2596 (2013) (for invalidating regulation that required the petitioner to give up a constitutional right “as a condition precedent to the enjoyment of a privilege.”)

2 This fact seems to be ignored due to older case law interpreting the pre 2002 amended version of Fla. Stat. 316.1933.

3 Even if this Court were to find that the legislature was not attempting to adopt Schmerber, the amended Fla. Stat. 316.1933 clearly is no longer included in implied consent.

4 The Defense argues that the State failed to lay the predicate to allow the blood to be withdrawn under Fla. Stat. 316.1933; however, that determination is not is not necessary at this time. However, if this Opinion is reversed on appeal, this Court will be prepared to issue a separate Order on that issue.

Fuzzy Math Fuels Myth that Florida’s DUI Refusal Rate at 82%

I was talking to a DUI enforcement officer with the Hillsborough County Sheriff’s Office a few days ago while we were waiting for a hearing. We started talking about this proposed legislation to increase the penalties for a first DUI refusal found in Florida’s 2016 Senate Bill 1244.

The officer told me that he was in favor of the legislation because the number of DUI refusals had skyrocketed across the State of Florida. When all of these articles about SB 1244 started coming out, I was reading the same thing – more people refuse DUI testing in Florida than other state and something had to be done about it.

The analysis for SB 1244 includes data from a study released by the U.S. Department of Transportation National Highway Traffic Safety Administration regarding breath test refusal rates. See Esther S. Namuswe, Heidi L. Coleman, Amy Beming, Breath Test Refusal Rates in the United States – 2011 Update, U.S. Dept. of Transportation National Highway Traffic Safety Administration (March 2014).

Florida BAC Refusal Rates by Percentage - Flawed

The study found Florida had a breath test refusal rate of 82 percent in 2011, as compared to a rate of 40 percent in 2005. And this figure was cited in the Florida Senate Bill Analysis and Fiscal Impact Statement that was prepared by “the professional staff of the Committee on Judiciary.”

The study showed that Florida had the highest rate of refusal of any state in the country. In fact, the country as a whole ranged from 19 to 25 percent.

It looks like that data is just plain wrong. The report explains how it arrived at this breath test refusal rate of 82 percent in Florida.  The authors of the study reported that Florida has only 26,777 BAC test requests and 21,966 BAC refusals which does equal 82.0%.

However, Florida had way more than 26,777 BAC test requests in 2011 because nearly every DUI arrest results in a request for a BAC test. The DHSMV reported that 55,722 DUI tickets were issued in Florida in 2011 – 9,328 were issued by the FHP, 23,649 were issued by police departments in Florida, and 21,868 were issued by Florida Sheriffs departments.

Assuming that 55,722 DUI tickets were issued and all of them involved a BAC test request, then the percentage of refusals is closer to 39%. That number is almost the same as the percentage of refusals in 2005 which was 40%. So the authors totally got those numbers wrong. Florida’s S.B. 1244 is, at least in part, a reaction to the flaw in that study.

Florida’s refusal rate is about the same as what it was in 2005.

Other studies show that there were 33,625 DUI convictions in Florida in 2011. Although the conviction does not necessarily occur in the same year as the offense, it would be nearly impossible to have more convictions for DUI then BAC test requests.

That also means that if Florida officers are issuing 55,722 DUI tickets but only requesting a BAC test in 26,777 of those cases, then a request for BAC testing is only being made 48% of the time. If that were true, instead of creating a new criminal offenses, officers should just be trained to request a BAC test in every DUI case.

Anyone else think the numbers in that study is wrong? If so, isn’t be Florida legislature making a big mistake by going off those numbers before considering this piece of legislation?

Find the link to the Bill Analysis – HERE. I also cut and paste it below [with a few minor modifications to the formatting to make it easier to read online.]

————————————————————–

Florida Senate Bill Analysis

The Florida Senate Bill Analysis and Fiscal Impact Statement for SB 1244 was prepared by the professional staff of the Committee on Judiciary. The analysis provides:

Summary:

SB 1244 increases the penalties on a person who refuses to submit to an alcohol test, incidental to lawful detention, while operating a motor vehicle, while operating a motor vehicle. The penalties include a fine, probation, and points assessed against an individual’s license. The increased penalties for first refusal closer resemble the penalties for a first-time DUI conviction under Florida law.

The bill also increases penalties on a person who refuses to submit to an alcohol test, incidental to lawful detention, and whose driving privileges were suspended for a prior refusal to submit to testing. In addition to the potential fines and jail time under current law, the person must have an ignition interlock device placed on his or her vehicle for a period of at least 1 year.

Furthermore, a court may not withhold adjudication of guilt, or the imposition of a sentence or penalty, on a person who has had a prior license suspension for refusing testing.

Present Situation: Florida’s Informed Consent Refusal

Any person who accepts the privilege of operating a motor vehicle within this state is deemed to have given his or her consent to submit to an approved test of the alcohol content of his or her blood, breath, or urine. Section 316.1932(1)(a)1.a., F.S.

The test must be incidental to a lawful arrest, and administered at the request of a law enforcement officer who has a reasonable belief such person was driving a motor vehicle while under the influence of alcoholic beverages.

The Department of Motor Vehicles will administratively suspend a person’s driving privileges for 1 year after the first refusal of alcohol testing. Section 322.2615(1)(b)1.a., F.S.

Note added by the author of this blog article:

The driver can and should contest the administrative suspension during a formal review hearing by demanding the hearing within 10 days of the arrest. This is especially true since the legislature keeps increasing the penalties for a second or subsequent refusal during an administrative hearing.

The second refusal to consent to a test will result in an administrative suspension as well as criminal charges. A second refusal occurs when  a person’s driving privileges were suspended for a prior refusal, and he or she refuses to submit to an alcohol test for a second time. A person’s motor vehicle license is suspended by the Department of Motor Vehicles for 18 months if found liable for a second refusal. Section 316.1939(1)(c), F.S.

A person who refuses to submit to a alcohol test for a second time faces criminal liability for a first degree misdemeanor, punishable by up to  year in jail and $1,000 fine. Sections 316.1939(1)(e), 322.2615, F.S.

Florida’s DUI Laws

Florida’s current DUI laws provide for both administrative and criminal sanctions. A first conviction results in a fine of not less than $500 or more than $1,000. Section 316.193(2)(a)-(b), F.S.

If the individual’s blood or breath-alcohol level is 0.15 or higher, or if he or she has a minor in the vehicle, the fine is not less than $1,000 or more than $2,000. Section 316.193(4), F.S. There is a community service requirement of 50 hours. Section 316.193 (6)(a), F.S.

A first-time conviction can also lead to imprisonment for a period of no more than 6 months and up to 1 year of probation. Sections 316.193 (2)(a), 316.193 (5)(6), F.S.

Breath Test Refusal Rates

In 2014, the U.S. Department of Transportation National Highway Traffic Safety Administration released a study regarding breath test refusal rates. Esther S. Namuswe, Heidi L. Coleman, Amy Beming, Breath Test Refusal Rates in the United States – 2011 Update, U.S. Dept. of Transportation National Highway Traffic Safety Administration (March 2014).

The study found Florida had a breath test refusal rate of 82 percent in 2011, as compared to a rate of 40 percent in 2005.

The National Highway Traffic Safety Administration also found the average refusal rate for the country as a whole ranged from 19 to 25 percent. State authorities reported to the authors of the study that refusal rates will remain high if the sanctions for failing a breath-alcohol concentration test are more severe than those for refusing to submit to the test. States recommended the license suspension periods for first and repeat refusals be at least as severe as those penalties for driving under the influence.

Ignition Interlock Device

The Florida Legislature’s Office of Program Policy Analysis & Government Accountability conducted a study researching ignition interlock devices and DUI recidivism rates. Office of Program Policy Analysis & Government Accountability, Ignition Interlock Devices and DUI Recidivism Rates, (December 2014).

An ignition interlock device prevents the start of a vehicle with a breath sample above .025, collects data, and records and stores visual evidence of device use. Ignition Interlock Program at http://www.flhsmv.gov.

Research shows that ignition interlock devices, while installed, were more effective at reducing re-arrest rates for alcohol-impaired driving when compared to other sanctions, such as license suspensions. Office of Program Policy Analysis & Government Accountability, supra note 11 at 1.

The study found the six month recidivism rate for first-time DUI offenders that were not required to install an ignition interlock device was 1.74 percent. When compared, the recidivism rate for first-time offenders required to use the ignition interlock device was less with a rate of 0.34 percent.

However, the study also found that only 49 percent of Florida DUI offenders installed an ignition interlock device, as required, after completing their period of license revocation.

Effect of Proposed Changes:

SB 1244 amends section 316.1939, F.S., to require stricter penalties for all first time and subsequent alcohol test refusals. The heightened penalties reduce the incentive for a person to refuse submission to a testing for the first time in order to receive an advantage of a lesser penalty. Under the proposed law, a person who refuses to submit to testing for the first time faces the following additional penalties:

  • A fine of at least $500 but not more than $1,000;
  • Probation for 6 months; and
  • 4 points assessed against his or her driver license.

The bill also increased penalties on a person whose driving privilege was suspended for a prior refusal and he or she subsequently refuses to comply with requirements for testing. A person who fails to comply with testing after having driving privileges previously suspended for a prior refusal commits a misdemeanor of the first degree, punishable by up to 1 year in jail or a fine of up to $1,000. Additionally, the court is required to implement an ignition interlock devise upon all vehicles that are owned and routinely operated by an individual convicted of a second refusal.

The ignition interlock device remains on the vehicle for at least 1 year at the convicted individual’s sole expense.

Furthermore, the court may not suspend, defer, or withhold adjudication of guilt or the imposition of a sentence or penalty for an individual who has failed to comply with informed consent for a second time.

———————————-

This blog article was published on Saturday, January 23, 2016.

New Bill With Criminal Penalties for a First Refusal: 2016 SB 1244 Amending FS 316.1939

In order to discourage individuals from refusing to submit to a chemical test during a DUI investigation, the Florida legislature created a separate crime for a second refusal. The Florida legislature reasoned that without the legislation, people might be encouraged to refuse a breath test after an arrest in order to avoid a DUI conviction.

As it stands now, Florida Statute Section 316.1939 makes it a separate or independent crime to “refuse to submit” to a chemical test of the driver’s breath, blood or urine after having previously refused to submit. The crime is a first degree misdemeanor offense punishable by up to $1,000 fine and 12 months in the county jail.

Additionally, a second refusal results in an 18 month administrative suspension with no possibility of receiving a hardship reinstatement if the suspension is not invalidated during a formal review hearing (although the driver will still qualify for a temporary hardship permit while awaiting the formal review hearing).

Click here to read more about Florida Statute Section 316.1939 and Criminal Penalties for a Second DUI Refusal

Now the Florida legislature wants to make even a first refusal to submit to the breath, blood or urine test a separate crime. 

On December 28, 2015, Florida State Senator David Simmons filed 2016 Senate Bill 1244 which imposed criminal penalties for a first refusal to submit to a breath, blood or urine test in a DUI case. The penalties are a fine between $500 to $1000, up to six months on probation, and four points on the driver’s license.

The criminal penalties are not classified as either a second degree or first degree misdemeanor but appear to be a hybrid between the two. Also, by using the phrase “by probation for six months” and not mentioning any jail time, it appears that the court cannot impose jail time for a first refusal under the proposed amendment to the statute.

What’s “By Probation for Six Months” Mean?

I searched all the statutes in Florida for that phrase in Westlaw and only this proposed bill showed up for the term “by probation for six months.” Anyone know what impact that phrase will have? Are you still entitled to a jury trial for the offense? Can jail time be imposed if you violate probation?

This legislation is unnecessary because Florida law already imposes serious consequences to a refusal on an administrative basis. And don’t forget that a person can still be convicted of DUI after refusing because other evidence might support the allegation such as the driving pattern, statements of the defendant, performance on field sobriety exercises, and observations of the arresting officer.

Additionally, Florida law allows the prosecutor to argue that the refusal is evidence of “consciousness of guilt.” In other words, the prosecutor gets to argue at trial that the defendant refused to submit to testing even knowing that it would cause a driver’s license suspension because he knew that the test would show he was guilty.

Why Change the Implied Consent Warning?

Secondly, I’m confused about why the person is not being warned that the refusal is a crime. The old warning told the person that a second refusal “is a misdemeanor.” Now the person will just be warned that a first refusal is “subject to penalties.”

If this amendment makes it a crime to refuse the first time why didn’t the bill just make it a second degree misdemeanor? Why create an entirely new category of punishment?

Why not warn the person that a refusal is a crime instead of using the phrase “subject to penalties” which could be misunderstood as administrative penalties and not criminal penalties? Changing the warning is likely to encourage more people to refuse testing and then suffer this increased penalty – especially a person who has never been in trouble before. If the people that drafted the legislation really wanted to discourage refusals, changing the warning is likely to backfire. More innocent people are going to refuse without realizing how serious the penalties are for even a first refusal.

Ignition Interlock Device for 12 Months

For either the first or subsequent refusal, the proposed amendment to the statute requires the court to impose a requirement that the driver install an Ignition Interlock Device, at their expense, for 12 months.

No Withhold of Adjudication

The statute also prohibits the court from suspending, deferring, or withholding adjudication of guilt or the imposition of a sentence or penalty.

So the legislature wants to take away these important sentencing options from the judge for what reason?

Read the statutory language below:

Continue reading

How to Guide for the DHSMV DUI Formal Review Hearing in Florida

This “how to guide” is intended for attorneys only. If you have never requested a formal review hearing before, this article goes over the basics. This guide is not intended to be legal advice. If you disagree with our strategy or have an easier way to do it – please feel free to make a suggestion below in the comments section.

For the DUI attorneys at the Sammis Law Firm in Tampa, Hillsborough County, FL, we are still conducting formal review hearings in almost every DUI case. We certainly explain the different options to our clients, but the people that hire us almost always want a formal review hearing.

Read more about the benefits of requesting a formal review hearing after a Florida DUI.


Why Request a Formal Review Hearing after a DUI Arrest?

After a DUI arrest, the arresting officer will usually issue a DUI citation that also operates as a notice of the administrative suspension. The administrative suspension starts immediately after the arrest.

Although with a first DUI, the driver has the option of stipulating to the DUI for administrative purposes during a “waiver review hearing,” it is better to demand a formal review hearing to contest the suspension.

The only downside is that if you are not successful in invalidating the suspension after the formal review hearing then the driver will suffer a hard suspension. For a first DUBAL the hard suspension is for 30 days and for a first refusal the suspension is for 90 days. The hard suspension is a small price to pay for all the benefits that come from conducting the formal review hearing.

The upside of having the formal review hearing is that in many of these cases the suspension will be invalidated (removed completely) because the arresting officer or breath test operator fails to appear. Even if the suspension isn’t invalidated, the criminal defense attorney gets the opportunity to question under oath each of the witnesses in the case before the prosecutor even sees the file.

In these types of cases, there is NO real downside to demanding the formal review hearing:

  1. If your client has a prior conviction or administrative suspension for DUI (in that case the client is not even eligible for a “waiver review hearing”);
  2. If your client had one breath test reading over .08 and one below .08 (because you should win the hearing); or
  3. If your client doesn’t need to drive in Florida during those 30 or 90 days when the hard suspension would be in effect.

Step One – Request the Formal Review Hearing at the DMV within 10 Days

The driver has 10 days after receiving the notice of suspension (which is usually included in the DUI citation given to the driver after the arrest) to demand a formal review hearing. If the license is valid when you make the request then you should immediately receive a 42 day permit that will let your client drive for hardship purposes while you are waiting for the hearing.

To request the formal review hearing you should fill out the Application for FRDLSD form (HSMV 78065 S (8.09)) and check the box to request a formal review hearing instead of an informal review hearing. You also need to attach a legible copy of the DUI citation that operates as the notice of suspension and a check for $25.00 made payable to the “Department of Highway Safety and Motor Vehicles.”

We also include a cover letter requesting a copy of the packet submitted by law enforcement and any other documents the hearing officer intends to introduce at the hearing. The cover letter should also request either a one hour or two hour time allotment for the hearing. [The hearing officer will schedule the hearing for one hour even if you request more time, but the request for extra time might come in handy if you have a lot of witnesses or a long video and end up asking for extra time during the hearing.]

In the cover letter you can also request specific dates or times for the hearing within the next 30 days which the hearing officer might accommodate.

It is probably best to hand deliver the documents to the Bureau of Administrative Reviews so that you can obtain the 42 day permit the same day. The 42 day permit allows the driver to drive for business purposes only. Our office has a courier hand deliver the documents and then pick up the 42 day permit at the same time.

If your client needs the 42 day permit, it is probably a good idea to check that the driver’s license is valid before you make the request. For instance, if the driver has a suspension for an unpaid civil ticket you can probably get that issue cleared up within the 10 days so that your client is eligible for the 42 day permit when you make the request.

If the license is not otherwise valid and you can’t get the issue cleared, then you should still demand the formal review hearing (but you will probably not receive the 42 day permit).

In a few cases, I have seen the person make the request a few days outside of the 10 days (usually because of a notice issue). In many of those cases, at least in the Tampa BAR, the DHSMV will accommodate the demand for a formal review hearing requested outside of the 10 days but they will refuse to issue the 42 day permit.

Can the driver change his or her mind about a formal review hearing? If the driver already applied for a Review Waiver Hearing and and obtained hardship reinstatement, then the DHSMV will probably take the position that the driver cannot then request a formal review hearing (even if still within the 10 days) although that is not a well settled issue under Florida law. If the client had a waiver review hearing but hasn’t obtained the hardship reinstatement yet, then the DHSMV will probably still honor the request for a Formal Review Hearing made within the 10 day period.


Step Two – Receiving the Notice of the FRH and the Driver’s Pre-hearing Statement

If you make the demand for a formal review hearing within the 10 days after the arrest (or notice of the administrative suspension) then the hearing officer will send you a notice of the time and place for the Formal Review Hearing and a form called the driver’s “pre-hearing statement.”

In our cases, the Bureau of Administrative Reviews (BAR) will write the copy costs on the notice. We then write a check for that amount and pick up the packet of documents to be introduced at the hearing which are submitted by the arresting agency.

Under Florida Statute Section 322.2615(2) the arresting officer has 5 days after issuing the notice of suspension, to submit the following documents to the DHSMV: 

  1. the driver license;
  2. an affidavit stating the officer’s grounds for belief that the person was DUI;
  3. the results of any breath or blood test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer or correctional officer and that the person refused to submit;
  4. the officer’s description of the person’s field sobriety test, if any; and
  5. the notice of suspension.

The statute also provides that the hearing officer can still consider any documents submitted late as long as the are received “at or prior to” the hearing.

You need the DMV packet in order to know how to fill out the pre-hearing statement. You only have 10 days to submit the pre-hearing statement from the day of the notice. Sometimes there is a delay in getting the notice in the mail which cuts into the 10 days to submit the pre-hearing statement.

We always submit the pre-hearing statement within the 10 days and keep a blank copy of it for our records. If it needs to be updated before the hearing then an amended pre-hearing statement can be submitted after the 10 day deadline but before the hearing. Just write “amended” at the top and add the new information.

If the DMV doesn’t have the packet by the start of the hearing, then you should move to invalidate on that basis and the request to invalidate should be granted since there is no information in the record to uphold the suspension. If the packet suddenly appears on the day of the hearing (or too late to get the subpoenas issued), then you can request a continuance showing your efforts to obtain the packet ahead of time. It is best to arrive at the hearing with a written request to continue already prepared but wait to file it until after you read the packet to make sure the evidence in the packet is sufficient to uphold the suspension.

If you end up requesting the continuance, the hearing officer should issue you an extended 42 day permit since the delay was not caused by the driver. Ask for the extended permit in the written continuance request.

Before the hearing, you can also request many of these documents from the arresting agency although they might refuse to release them before the state has complied with a discovery demand. At a minimum, you can always obtain a copy of the citation and an crash report (if any).

Getting the DUI video ahead of the hearing is more difficult. In some cases, you might want to continue the hearing until after you are able to obtain the video. The hearing officers in Tampa will usually let us subpoena the custodian of records from the agency holding the video to bring it to the hearing since the arresting officer will often complain that he or she is not the “custodian” of the video. Once the custodian is served with the subpoena, the custodian will usually release it immediately to the attorney to avoid attending the hearing (or at least they become more accommodating).


Step Three – Completing the Pre-Hearing Statement and Subpoenas

Review the packet carefully. You should also compare any documents in the packet with any documents in the discovery.  Then go through the packet to identify any witnesses that you want to testify at the hearing and list them on the pre-hearing statement.

You also need to prepare a subpoena for each witness either with or without a subpoena duces tecum. Read more about the subpoena duces tecum at the DUI BAR formal review hearing.

At least in the Tampa Bay area, if the hearing is being conducted in a county outside of the county where the arresting agency is located then the BAR will schedule a telephonic formal review hearing after the DUI arrest.

In most cases, you will prepare a subpoena for each witness identified in the packet unless you have a really good reason not to subpoena that witness. [If the information in the packet is insufficient to uphold the suspension then you certainly don’t want to subpoena the witness who can fill in the missing information.]

Witnesses that can be issued a subpoena include:

  • the officer that conducted the initial stop of the vehicle;
  • the arresting officer;
  • any backup officer listed in the reports;
  • the breath test operator (in Hillsborough County, the breath test operator will be listed in the report as a witness to the refusal and can be issued a subpoena to the hearing even if it is an alleged refusal case);
  • the agency inspector (in a breath test case);
  • in a blood test case, subpoena any listed witness to the blood withdraw, the person withdrawing the blood and the crime laboratory analyst at the FDLE Toxicology Section (for FDLE you must include FDLE number, the submission number, and the agency number).

Step Four – Obtain and Serve the Issued Subpoenas

Take the pre-hearing statement and subpoenas to Bureau of Administrative Review (BAR) and the hearing officer will issue the subpoenas by stamping and signing the subpoenas the same day.  Then have your process server go ahead and serve each subpoena.

After obtaining the issued subpoenas but before serving it on the witness you must serve the prosecutor assigned the case, or the State Attorney’s Office if a prosecutor is not assigned, with notice of the hearing and a copy of the issued subpoenas. Under the rule, the notice and copies of the subpoena should be received by the State Attorney’s Office prior to the issued subpoenas being served on the witnesses. Most attorneys probably just mail them a copy of the subpoenas with a cover letter, although it is not clear that this procedure would strictly comply with the very specific notice requirements in the statute.

To comply with this notice requirement, we have found a very quick and easy way to accomplish this task. We prepare a “Notice of Filing” in the criminal case that is instantly served electronically on the State Attorney’s Office via electronic service. Then you can just print out the confirmation that the filing was received with a submission date and time. The Notice of Filing just informs the prosecutor that the formal review hearing has been scheduled and that the attached subpoenas have been issued. Then attach a copy of each subpoena to the Notice of Filing.

Although I invite the prosecutor to attend each time and give them a copy of each subpoena, I’ve never had a prosecutor attend a formal review hearing.

After notifying the State Attorney’s Office of the subpoenas, serve the subpoena on each witness with a $5.00 witness check. The officer is also entitled to be reimbursed for mileage if requested so bring a separate check to the hearing for that purpose. If they tell me their mileage on the record during the hearing and ask for a bigger check then I am happy to whip out the check and write it for the requested amount.

If the subpoena includes a subpoena duces tecum then include with the service a separate check for reasonable costs to provide a copy of that evidence.

If the witness fails to bring the items listed in the subpoena duces tecum then move to continue the hearing so that you have time to file a motion to compel compliance with the subpoena in the courtroom where the criminal case is pending. Or alternatively, if the officer claims no longer to be in possession of the item and denies being the “custodian of the record” then find out who is and request a subpoena deces tecum for that person.

For the agency inspector, our office also includes a public record request for the same documents requested in the subpoena duces tecum so that the Agency Inspector will also bring you a copy that you can take with you after the hearing or a copy that can be submitted into the record. You should bring a check to the hearing to pay for the public record request which is usually only a few dollars. Otherwise, just be aware the agency inspector may object to giving up the documents he brings and different hearing officers have different ways of resolving the issue.


Step Five – Attend the Hearing

The only thing left to do is attend the hearing. The most likely reason that you might win the hearing is because the arresting officer or breath test operator fail to appear.

If the arresting officer or the breath test technician fail to appear – then call the witness to testify. “At this time, I would call [name of witness] to testify.” When the hearing officer puts on the record that the witness is not present, then hand the hearing officer proof that the subpoena and witness fee was served on the witness and that the prosecutor was notified of the subpoena.

Ask that those documents been marked as the petitioner’s exhibits and included into the record. Then move to invalidate under Section 322.2615(11), Fla. Stat., which provides, in pertinent part:

If the arresting officer or breath technician fails to appear pursuant to a subpoena as provided in subsection (6), the department shall invalidate the suspension.

Although the statute does not provide for any discretion for the hearing officer to determine whether the absent witness has “just cause” for the absence, the administrative rules contradict the statute.  The hearing officer will often ignore the plain language of the statute and rely on the administrative rule which provides:

15A-6.015 Failure to Appear.

…(2) …a properly subpoenaed witness who fails to appear at a scheduled hearing may submit to the hearing officer a written statement showing just cause for such failure to appear within two (2) days of the hearing.

(a) For the purpose of this rule, just cause shall mean extraordinary circumstances beyond the control of the driver, the driver’s attorney, or the witness which prevent that person from attending the hearing.

(b) If just cause is shown, the hearing shall be continued and notice given.

(c) No hearing shall be continued for a second failure to appear.

(d) Notification to the department of a witness’s non-appearance with just cause prior to the start of a scheduled formal review shall not be deemed a failure to appear.

(Emphasis added).

So the driver should take the position that the plain language of the statute clearly requires invalidation regardless of any contradictory procedure “deemed” in the administrative rule.

The hearing officer will want you to waive that issue by telling you that you should ask for a continuance. Don’t do it. Instead, object that even under the hearing officer’s reading of administrative rule, no “just cause” has been shown for the continuance and move to invalidate on that basis. Then agree to attend any continued hearing. Renew the objection and request to invalidate on that basis at the end of the continued hearing.

Note on the record any other time the hearing officer violates the procedural rules and explain how that due process violation caused prejudice to your client and move to invalidate on that basis.

Also, to preserve any issues in the case make a motion to invalidate on the basis that the record contains insufficient evidence of one of the issues included in the scope of the review and explain why.

It is also helpful to bring a copy of Section 322.2615 and the 15A-6 administrative rules to the hearing with you in case any unexpected issues arise. In a Breath Test case, bring the Chapter 11D-8, Florida Administrative Code.

If you need help filing the writ of certiorari give us a call. In addition to the attorney fees for the writ (we typically charge $1500 in attorney fees), the client would pay for a transcript from the hearing and a $400 filing fee. The writ must be filed within 30 days of the order so you don’t have much time.

Winning the writ is usually cheaper for the client than living with the administrative suspension on their driving record for the next 75 years so be sure to review that option with the client.

Let us know your tips for the formal review hearing. Add a comment below…

Florida’s FDLE Alcohol Testing Program – Don’t Follow the 11D-8 Rules? Rewrite the Rule. Repeat.

“Only sometimes when we pick and choose among the rules we discover later that we have set aside something precious in the process.”

– Helen Simonson, Major Pettigrew’s Last Stand

Matthew Malhiot recently wrote an article discussing how the Florida Alcohol Testing Program (ATP) violated Chapter 11D-8 F.A.C. rules when it failed to conduct department inspections after the Intoxilyzer 8000 breath test machines were “returned from an authorized repair facility.” The article is entitled “Florida-ATP Violates Chapter 11D-8 F.A.C. Rule.”

Matthew Malhiot was essentially the number three guy in FDLE-ATP – right behind Laura Barfield and Roger Skipper. Now he testifies as an expert witness or consultant in DUI motion hearings and trials. Laura Barfield also started a consulting practice and testifies for criminal defense attorneys.

The History of Chapter 11D-8, F.A.C., Revisions for Florida’s Intoxilyzer 8000

The article discusses the history of how the Chapter 11D-8 F.A.C. rule was revised in March of 2006 during the time that FDLE was going from the Intoxilyzer 5000 to the Intoxilyzer 8000. The revisions created two important problems that later arose.

Back in March 2006, during the time that FDLE-ATP was transitioning from the Intoxilyzer 5000 to the Intoxilyzer 8000, the rules were revised. After the revisions the rules required that the machine MUST have a department inspection completed after it was returned from an authorized repair facility.

Matthew Malhiot explains that the reason for conducting the department inspection after the machine was returned to the agency after repairs was that the process of shipping the machine could cause additional problems that could be detected during the department inspection.

At first, FDLE – ATP complied with the rule for the Intoxilyzer 8000 inspections. After all, the rule set in place a mandatory procedure that demanded that the department inspection MUST be conduct at the agency after the machine was returned from repair.

In the article, Matthew Malhiot makes that point that during that time, Department Inspectors were constantly traveling throughout Florida to conduct these department inspection at the agency. Matthew Malhiot should know exactly how the rule was being followed since he was one of those Department Inspectors traveling all around Florida to the county and city agencies diligently conducting Department Inspections.

Matthew Malhoit explains in the article that there were times that after the machine was shipped back to the agency from the repair facility that the machine would fail the department inspection. That failure would require the machine to be sent back to the repair facility for more repairs. He explains that the machines can and do sometimes break during shipping. The machines are often sent by common courier such as UPS.

Then in 2010, the FDLE-ATP decided to enact a new procedure. The new procedure had nothing to do with ensuring the accuracy or reliability of the machine. Instead, it was designed as a cost saving measure. Under the new procedure, after a repair the machine would be boxed up and sent by common courier to FDLE in Tallahassee where the repairs would be performed.

Then after the repairs, the Department Inspector would conduct the Department Inspection at FDLE instead of back at the agency. This new procedure saved money for two reasons. First, FDLE-ATP no longer had to send the Department Inspectors throughout the State of Florida. Instead, all of the Department Inspectors could work from one location and fewer department inspectors would be needed.

Secondly, the plan was for all of the repair to be made by the FDLE-ATP Department Inspectors instead of paying more money to have the repairs made by CMI, Inc., in Owensboro, Kentucky, or another repair facility such as Enforcement Electronic Services, Inc.

Many estimate that CMI, Inc., makes most of its profits from the “cost of labor” required for repairing the machine. For instance, when a battery has to be replaced, the machine was designed so that the battery was placed in a very inconvenient place that required the much of the machine to be taken apart to get to it. So CMI, Inc., certainly didn’t mind Florida boxing up the machines and sending them their way every time a repair was needed.

in 2010, FDLE-ATP put one part of the new cost-saving plan into place under the leadership of Laura Barfield. This first step involved relocating all of the Department Inspectors to Tallahassee. According to Matthew Malhiot, the second part of the plan was never fully implemented because the machines were still being sent for repairs at CMI, Inc, or Electronic Enforcement Services, Inc.

Violations for Not Doing Department Inspections at the Agency after Repairs

Matthew Malhiot’s article explains that between 2010 and July 29, 2015, “FDLE-ATP had NOT been complying with the rule which required that a department inspection be completed at the agency, upon the return of a machine from an ‘authorized repair facility.’”

Several different courts across the State of Florida started issuing rulings finding problems with compliance and that the problems were substantial. Only after those rulings did the FDLE-ATP dispatched a Department Inspector to each law enforcement agency, in the Florida Panhandle, to do the department inspections at each agency.

FDLE-ATP is not an “Authorized Repair Facility”?

As the pressure began to mount, FDLE just decided to change the rule. As of July 29, 2015, the FAC rules no longer define FDLE-ATP as an “authorized repair facility.” Therefore, after July 29, 2015, when a machine is shipped from FDLE back to an agency, it would no longer be required to complete a department inspection at the agency.

But didn’t that solution just create a more serious problem? If FDLE is no longer an “authorized repair facility” then how in the world are they going to save all that money by doing the repairs in Tallahassee instead of paying the repair facilities for the “cost of labor.” And what about those pending cases that involved FDLE-ATP actually repairing the machine?

No worries – FDLE also changed the wording in the rule from “repair” to “maintenance.” So we can expect the FDLE-ATP employees to around the state to start telling judges that the “repairs” are really just “maintenance.” Judges will be expected to bend over backwards to participate in this exercise in verbal gymnastics.

Matthew Malhiot makes the point that repairs would include such things as replacing batteries, replacing breath tubes, and replacing dry gas regulators. These are repairs and not simply maintenance because if a piece of the machine is broken and replaced then it is necessarily a repair. He gives the following example:

“When a breath tube is broken, the machine is NOT functional; therefore, a “repair” is required, in order for the machine to operate properly, allowing it to be placed back into service. Let’s look at some examples of what “maintenance” on an Intoxilyzer machine is.  If the machine’s external “O” rings need changing, or say, the breath tube screen needs cleaning; that would be considered “maintenance”.

Nothing was broken on the Intoxilyzer, and they were simply maintaining the machine.  Consider this, you have the oil changed in your car, would it not be considered “maintenance”?  On the other hand, if the alternator on your car went out, you would most certainly need it “repaired”, in order for the car to function again.”

So the next round of motions begin as attorneys fight to have their client’s breath test excluded because a department inspection was not conducted at the agency after the repair and/or maintenance was performed.

Those who drafted the wording of the rule changes did a really bad job. When you change one rule it changes everything about the entire scheme – and the people who drafted these latest changes didn’t do a very good job at recognizing all the new problems that were created.

Intoxilyzer 8000 Problems in Florida

What did New Port Richey Police Chief Kim Bogart Say About Covering Up Driving Drunk to a Traffic Homicide Investigation?

So the media has completely ignored the fact that the New Port Richey Police Department tried to cover up a detective driving drunk in his agency vehicle to a traffic homicide investigation – everyone except Mike Deeson with WTSP 10 News.

Read the story here – Chief Kim Bogart on why New Port Richey Police Did Not Arrest a Detective For Drunk Driving

NPR Police Chief Kim Bogart actually sat down with Mike Deeson for an interview. And what did he say? He says Denton never should have driven from his Wesley Chapel Home to the crash scene. Chief Kim Bogart explained, “When he arrived on the scene other officers noticed he had an odor of alcohol about his breath and he was unsteady.”

According to Chief Bogart, “In this particular case, it was a very good officer, well respected in the department, very hard working, and he made an egregious error.”

The bigger error was Chief Kim Bogart condoning the fact that his officers engaged in a cover up. Several officer saw Christopher Denton driving and behind the wheel. Several officers said he was obviously impaired. Several officers made sure that it was covered up.

When the reporter asked the chief, “Wasn’t there probable cause? Didn’t he get a break by not just charging him instead of ordering him to take the [administrative] breathalyzer?”

Chief Kim Bogart responded, “I’m not going to second guess my field commander for the decision he made. When he told me what he did I told him that was absolutely the right decision.”

The right decision? Absolutely the right decision? So a law enforcement officer can drive drunk to an investigation in his agency vehicle without any fear of being arrested for DUI by his fellow officers? What if his officer kills someone while driving drunk across two counties? Would they conduct an investigation then? Chief Kim Bogart thinks it is the “right decision” to cover it up?

Why hasn’t the State Attorney’s Office in Pasco County taken any action? What did the State Attorney’s Office know and when did they know it? And why did they hide it from every criminal defense attorney in town? It wasn’t until after Mike Deeson ran the story that I finally got a Brady Notice informing me of the IA investigation into Denton’s misconduct.

The State Attorney’s Office did not include the IA investigation with my one page Brady Notice – but you can read it here – New Port Richey IA report from the Christopher Denton case.

What is the State Attorney’s Office suppose to do when Chief Kim Bogart says it is the “right decision.” Isn’t an outside agency suppose to review it? So who else should take action if the State Attorney’s Office and the Police Chief do nothing?

Read more about the Corrupt Investigation of a New Port Richey Police Department Detective Allegedly Driving Drunk to a Roadside Investigation. Also, read more about the Officers’ Bill of RIghts in Florida.