South Florida Criminal Law Blog

The U.S Supreme Court ruled April 17 that police officers must obtain a warrant before taking a blood sample from a person suspected of driving under the influence of drugs or alcohol against his or her will. The decision, stemming from a Missouri case that we discussed in January, is likely to have far reaching effects, including in Florida.

"The fact that alcohol dissipates from the bloodstream over time does not by itself give the police the right to draw blood without a warrant in drunken-driving investigations," the New York Times' Adam Liptak explained, reporting on the decision. Specifically, Justice Sonia Sotamayor explained in an opinion rendering the court's decision that whether it is reasonable for an officer to take a blood sample in any particular case "must be determined case by case based on the totality of the circumstances."

The latest decision updates an important issue in DUI cases to reflect drastic technology enhancements since the Supreme Court ruled almost 47 years ago in Schmerber v. California that officers properly extracted blood without a warrant from a suspected drunk driver in an accident that caused injury to both the driver and another person. In that case, the high court noted not only the fact that blood alcohol levels naturally fall over time (making it difficult get an accurate read of a person's intoxication level if the test is performed several hours later), but also the typically long waits necessary to obtain a warrant.

In the latest decision, the court observed that technological developments have made it much easier for officers to get a warrant quickly via email. Thirty states currently use an electronic warranting system, according to the Times.

The case worked its way all the way up from a state trial court decision in which the judge threw out a blood test taken from a driver who police said appeared to be intoxicated after they pulled him over for erratic driving. Taken without the driver's consent, the test showed that his blood alcohol content was nearly twice the legal limit. Nevertheless, a state appellate court upheld the ruling, saying that there were no "exigent circumstances" to support the cops' failure to obtain a warrant.

Continue reading "High Court Says Cops Need Warrant to Take Blood From DUI Suspects - Missouri v. McNeely" »

In January, we talked about an important case out of Missouri that asks the U.S. Supreme Court to decide whether police officers can force a person suspected of DUI to submit to a blood test. Today, we bring you Depalis-Lachaud v. Noel, a case in the U.S. Court of Appeal for the 11th Circuit. It centers around a Florida nurse who was arrested after she refused an officer's demand that she take blood from a man hospitalized after allegedly driving drunk and causing an accident.

Palm Beach County Sheriff's Office deputy Kenneth Noel arrived at a local hospital shortly after 10 p.m. on June 17, 2009 to perform an intoxication assessment on a man who had been involved in a car crash earlier that evening. At some point, Noel approached the nurse's station and asked Nurse Depalis-Lachaud to withdraw blood from the suspect so that it could be tested for alcohol content.

As Noel recalled, Depalis-Lachaud told him that the hospital "didn't do that" and began to walk away. When he persisted, Depalis-Lachaud told Noel again that the hospital did not "do that for law enforcement." Noel informed Depalis-Lachaud that he didn't have time to wait for her to check with a supervisor and informed her that she would be violating the law by obstructing a police officer if she further declined to assist him. Depalis-Lachaud was arrested when she again refused to perform the blood withdrawal.

Depalis-Lachaud, on the other hand, claimed that she expressly told Noel that it was against hospital policy for her to withdraw blood for a police officer. Noel persisted and Depalis-Lachaud responded: "We're waiting for the doctor. The doctor has to make that decision." Noel refused to wait for chief emergency room physician to arrive, however, and instead arrested Depalis-Lachaud.

Noel later returned to the hospital, where another nurse on duty withdrew the blood for him.

Continue reading "Nurse Arrested for Refusing to Take DUI Suspect's Blood Sues Police Officer - Depalis-Lachaud v. Noel" »

The nation's highest court recently considered an important and divisive legal issue which could have a substantial effect on DUI cases in Florida and across the country: whether police officers should be required to get a warrant before forcing a person suspected of driving under the influence to take a blood test.

Missouri v. McNeely concerns the case of Tyler McNeely, who was pulled over by police officers in The Show Me State and exhibited many of the signs associated with intoxication, including bloodshot eyes, slurred speech and the smell of alcohol on his breath. McNeely refused to submit to a breath test and later declined a blood test after being transported to a hospital. His blood was drawn anyway and testing showed that his blood alcohol content was nearly double the legal limit.

A state trial court suppressed the blood test evidence at trial, ruling that the cops were required to get a warrant before taking McNeely's blood. In 1966, the Supreme Court held that police officers could have blood extracted without a warrant from a driver in an accident resulting in injury to both the driver and another person. In that decision, the court not only focused on the principle that alcohol dissipates in the blood over time, but also noted the time lost investigating the accident and in transporting the injured parties to a hospital.

In the current case, the court is asked whether the fact that blood-alcohol levels subside with time, alone, is a sufficient basis for allowing a warrantless blood test. According to The New York Times' Adam Liptak, the current crop of Justices seemed skeptical. "Several justices expressed discomfort with what Chief Justice John G. Roberts Jr. called the 'pretty scary image' of government-sanctioned bodily intrusions involving sharp needles," Liptak wrote of oral argument in the case, which took place in early January.

Meanwhile, Missouri prosecutors and federal government attorneys told the court that the time it takes to obtain a warrant can vary from 15 to 20 minutes for those obtained by phone to more than two hours. During this time, blood-alcohol levels necessarily fall for a driver who has been drinking. On the other hand, American Civil Liberties Union lawyer Steven Shapiro told the court that "the privacy safeguards of the Fourth Amendment benefit by having a neutral and detached magistrate review the evidence before the state does something as intrusive as putting a needle in somebody's arm."

Continue reading "U.S. Supreme Court Takes on Blood Tests for DUI Suspects" »

One DUI is a serious criminal offense, carrying severe consequences. As the Fourth District Court of Appeal's recent ruling in Yacoub v. State makes clear, three DUIs can make the consequences much more severe.

Christina Yacoub has been arrested, charged and convicted of driving under the influence in Florida three times. She plead guilty to misdemeanors on the first two charges on the same day in 2002. Following her third arrest in July 2008, Yacoub was charged with felony DUI.

While the offense is typically considered a misdemeanor, Florida law provides that a person convicted of DUI three times in a 10-year span may be charged with a felony, punishable by a fine of up to $5,000 and no more than one year in jail. Persons convicted of felony DUI are also required to install an ignition interlock device in their cars, which requires a driver to take a breathalyzer test before starting the vehicle and intermittently while driving.

A trial court denied Yacoub's motion to dismiss the felony charge, in which she argued that one of her prior DUI convictions should not count for purposes of the felony charge because was not represented by an attorney when she was prosecuted for the offense. On appeal, however, the Fourth District agreed with Yacoub, ruling that she should not be charged with a felony.

"A defendant charged with felony DUI may move to dismiss the charge by alleging that the state is improperly relying on a prior uncounseled misdemeanor DUI conviction," the Court ruled, citing the state Supreme Court's 2008 decision in State v. Kelley. This defense is available, however, only to a defendant who is indigent - a term referring to the very poor - and entitled to court-appointed counsel as a result. The defendant must assert that he or she did not waive the right to counsel and nevertheless was not appointed a lawyer.

Continue reading "Florida Court Reverses Felony DUI Conviction - Yacoub v. State" »

A DUI arrest in Florida can come with serious consequences. So can refusing to take a breath alcohol test incident to such an arrest. Before you can be punished for the refusal, however, the legality of the arrest must first be determined, as the Second District Court of Appeal explains in Arenas v. Department of Highway Safety and Motor Vehicles.

Ricardo Arenas was driving in Lee County at around 1 a.m. when a county sheriff's office pulled him over on suspicion of DUI. After Arenas refused to take a breathalyzer or field sobriety test, the officer arrested him and charged Arenas with DUI and refusing the breath test.

The Department of Highway Safety and Motor Vehicles later suspended Arenas' driver's license based on his refusal to take the breath test. While the State Attorney ultimately declined to prosecute Arenas, finding that there was not sufficient evidence to support the charges, the license suspension remained in place.

Following a hearing, a DHSMV hearing officer upheld the suspension, finding that the officer had probable cause to pull Arenas over and that Arenas declined the breath test after being informed that the decision would result in a license suspension. The hearing officer did not consider whether the DUI arrest was based on probable cause.

Arenas then sought a writ of certiorari, asking a circuit court to review the hearing officer's decision. When the circuit court declined, Arenas appealed to the Second District, which granted the writ, ruling that the lawfulness of the officer's stop and arrest must be reviewed in order to determine whether the license suspension should be upheld.

Continue reading "Court Clarifies Law on Refusal to Take an Breath Test in Florida DUI Case - Arenas v. Department of Highway Safety and Motor Vehicles" »

In Bribiesca-Tafolla v. State, the Fourth District Court of Appeal explains that prosecutors in a Florida DUI case must prove "the body of the case" before entering any evidence regarding the defendant's admission that he or she committed the crime.

Appellant Jose Bribiesca-Tafolla was convicted on two counts of driving under the influence causing serious bodily injury. The accident that led to his arrest occurred shortly after seven in the morning on US 1 in Jupiter, Florida. Appellant was traveling southbound in a truck with a friend when the truck crossed into the northbound lane and struck an oncoming car. The truck flipped, ejecting Appellant and his friend, and then struck a third car.

A police officer who met with Appellant at the hospital where he was being treated for his injuries testified at the trial that Appellant admitted that he was driving the truck at the time of the accident. According to the court, the officer testified that Appellant "appeared to be impaired based on his bloodshot eyes [and] the odor of an alcoholic beverage on his breath..." A blood test showed that his blood alcohol level was .13 - more than the legal limit of .08 - five hours after the accident.

On appeal, Appellant argued that the officer should not have been permitted to testify about Appellant's admission because the state had not yet established corpus delicti: that a DUI crime was committed. Specifically, Appellant argued that prosecutors could not establish that he was driving without the officer's testimony.

"Corpus delicti means literally `the body of the crime,'" the court explained. "Before a confession is admitted the state has the burden of proving by substantial evidence that a crime was committed," it noted, citing the Florida Supreme Court's 1976 decision in State v. Allen. Such proof may be in the form of either direct or circumstantial evidence.

Continue reading "Corpus Delicti in Florida DUI Cases - Bribiesca-Tafolla v. State" »

A person convicted of DUI in Florida faces not only possible jail time, but also money penalties. In the event that the person is involved in a drunk driving accident that causes harm to someone else (or someone else's property), he or she may also be required to pay restitution. The Fourth District Court of Appeal's recent ruling in Ianieri v. State is an example of just how steep restitution payments can be.

Tiffany Ianieri was convicted of drunk driving as well as "causing serious bodily injury" after driving into a construction zone, where she struck a worker with her vehicle. Ianieri's driver's license was suspended at the time and a sobriety test after the accident showed that her blood alcohol content level was over the legal limit. The construction worker suffered a broken leg and knee along with head trauma.

After pleading guilty, Ianieri was sentenced to three years in jail (to be followed by a year-and-a-half of probation) and ordered to immediately pay restitution in the amount of $327,311.34.

On appeal, Ianieri challenged the immediate restitution payment, arguing that she is unable to pay. Citing the Fifth Circuit's 1993 decision in Boss v. State, a case in which that court found that a person unable to pay a restitution order immediately should be allowed to pay in installments, the court held that a trial court "should consider the financial resources of the defendant in making determinations regarding restitution." Specifically, "if the evidence does not show defendant's ability to immediately pay the restitution, the trial court should set a later date for payment or create a payment schedule that reflects the ability of the defendant to pay," the court ruled.

Here, the court found that the trial court should have created a payment schedule, rather than requiring Ianieri to pay the entire restitution amount immediately, because the evidence did not show that she had the ability to do so. As a result, the court reversed the restitution order and remanded the case back to the trial court for creation of a payment schedule.

Continue reading "Florida Woman Convicted of DUI Forced to Pay More than $300,000 - Ianieri v. State" »

A Sunshine State polo magnate's drunk driving trial kicked off earlier this month and should serve as a warning of both the fatal consequences and severe criminal penalties that can result from a person's decision to get behind the wheel while intoxicated.

John Goodman, the founder of International Polo Club Palm Beach in Wellington, is charged with DUI manslaughter and leaving the scene of an accident, stemming from a February 2010 car crash that killed 23-year-old Scott Wilson.

As the Palm Beach Post's Daphne Duret reports, the trial is likely to center around just how much Goodman drank before getting behind the wheel on the night of the accident:

Investigators say Goodman had attended a charity event at the White Horse Tavern before heading to The Players Club, where he drank with friends, including polo player Kris Kampsen. A receipt from the club shows Goodman ordered multiple shots of Espolon Silver and Patron Silver tequila and other drinks. A receipt shows Kampsen also ordered multiple drinks.

There will also likely be much ado about the evidence as the trial proceeds. Defense lawyers are expected to argue that neither the club receipt nor a toxicology report showing trace amounts of hydrocone in Goodman's system should be shown to the jury because the evidence is overly prejudicial. According to Duret, both cars involved in the crash - Goodman's Bentley GTC convertible and Wilson's Hyundai Sonata - will be made available for jurors to view.

ABC News reports that "[a]ccording to police, Goodman...ran a stop sign and slammed into Wilson's car. Goodman did not call police or an ambulance, and left the crash scene on foot..."

Continue reading "Florida Polo Magnate Goes to Trial on DUI Charges" »

Evidence rules often play a crucial role in Florida criminal cases because they determine the information that a judge or jury will have before it in deciding on a case. In State v. Bowers, the state's Supreme Court weighed in on an important evidentiary dispute, limiting the state's ability to rely on one police officer's recollection of another's knowledge in fighting an effort to suppress certain evidence.

Michelle Bowers was arrested after a traffic stop and charged with marijuana and drug paraphernalia possession as well as DUI. At trial, she sought to suppress all of the evidence obtained as a result of the traffic stop, arguing that the stop was not based on probable cause.

The officer who initially pulled Bowers over didn't appear at a hearing on the motion to suppress. Instead the state called as a witness a second officer who was not present during the initial stop, but later appeared at the scene to assist in the DUI investigation and subsequent arrest. The second officer was asked to testify about the reasons why Bowers was originally pulled over. The county court overruled an objection by Bowers' attorney, who argued that this testimony amounted to inadmissable hearsay (testimony about something for which the witness has no direct personal knowledge, often based on another's statements). Nevertheless, the county court granted Bower's motion to suppress the evidence obtained from the stop.

The matter eventually arrived before Florida's Second District Court of Appeals which ruled that the second officer's testimony was inadmissable. In so doing, the Second District found that the Fourth District Court of Appeals' decision in Ferrer v. State - in which it held that, under the "fellow officer rule," an officer who appeared at the scene following a traffic stop and tested a driver for alcohol and drugs could testify that the initial officer told him that he observed the driver driving with an expired tag - was wrongly decided.

The Florida Supreme Court agreed with the Second District, holding that the fellow officer rule does not allow the second officer to testify as to what the first officer told him about why he stopped Bowers' car. It explained that the rule "was developed to assist officers investigating in the field to make arrests and conduct searches..." The rule accomplishes this goal by providing that "the collective knowledge of officers investigating a crime is imputed to each officer and one officer may rely on the knowledge and information possessed by another officer to establish probable cause," which generally must exist in order for an officer to stop a car, search a home or make an arrest.

Continue reading "Florida Supreme Court Explains Hearsay and the Fellow Officer Rule - State v. Bowers" »

The nation's highest court recently declined to review a state court's ruling in Cannella v. Florida, a DUI manslaughter case that raises the unsettled question of whether a criminal prosecutor can use a defendant's silence prior to his arrest against him.

"There is a nationwide split over whether a criminal defendant's pre-arrest silence can be used as substantive evidence by the prosecution at trial during the prosecution's case in chief," Patrick Canella's attorney stated in a petition for writ of certiorari, asking the U.S. Supreme Court to review a decision by Florida's First District Court of Appeal, which affirmed Canella's DUI manslaughter conviction and 12-year prison sentence.

The Fifth Amendment, which provides that a person shall not "be compelled in any criminal case to be a witness against himself," has been interpreted to grant a criminal defendant not only the right not to testify in a case against him, but also to remain silent while in police custody. Police officers are required to inform a person of this right - through what police and lawyers call a "Miranda warning" - prior to interrogation. Any information gained prior to the Miranda warning or after a person has indicated that he wishes to exercise his right to remain silent cannot later be used to prosecute the person.

The Supreme Court has previously ruled that a prosecutor can use a criminal defendant's pre- and post-arrest silence for the limited purpose of impeaching the defendant's credibility, however. The Canella case raises the interesting scenario where a person who waives his Miranda right and answers some questions, declines to answer others or doesn't answer them fully.

Canella was arrested and charged with DUI manslaughter as the result of a car accident in which both people in a car that collided with Canella's truck were killed. Although police asked Canella some questions and took a blood sample, they did not arrest him on the night of the accident. Detective Stephen Barrow questioned him again 48 hours later, at which time Canella agreed to waive his right to remain silent. After answering several questions, Barrow asked Canella whether there was any other significant details about the accident of which police should be aware. Canella responded: "It was pretty dark around there, so I don't know."

Continue reading "Can Police Use Your Silence Against You? Supreme Court Decides not to Decide" »