In the case of Robert Santiago versus the State of Florida, the facts were as follows:
The police received an anonymous phone call about a car parked at the end of a dead end street at 2:00 a.m. with its headlights periodically flashing on and off. When officers arrived at the location, they found Mr. Santiago and a female passenger inside the vehicle. The keys were in the ignition so music could play, but the engine was not running. After an officer smelled alcohol on Santiago’s breath, Santiago stated that he had drunk a couple of beers, but he was not driving. When asked why he was at that location, Santiago gave the officers a vague explanation. The police then ordered him to step out of the car, and when he did so a small plastic bag containing cocaine dropped from his lap onto the ground. The officers searched the car and located a short plastic straw that they believed to be drug paraphernalia. The female passenger, who owned the vehicle, told the officers that both the cocaine and the paraphernalia belonged to Santiago. He was then arrested for possession of cocaine and drug paraphernalia.
Later, in court, the officer testified that the smell of alcohol combined with Santiago’s admission that he had drunk a couple of beers did not lead him to conclude that Santiago might be under the influence of alcohol. Nevertheless, he still ordered Santiago to get out of his car. The court of appeals said that the police need more than just the smell of alcohol to order someone out of his car to do a DUI investigation. Examples of such things include speeding during the early morning hours, bloodshot and watery eyes, and being slumped over the steering wheel with the engine running and the headlights on. Because none of those things were present in Santiago’s case, it was illegal for the police to order him out of his car. Therefore, the plastic bag containing cocaine that dropped from his lap onto the ground and the drug paraphernalia found in the car could not be used against him in court.
In the case of Kevin Cantrell versus the State of Florida, Mr. Cantrell was convicted of traveling to meet a person whom he believed was a minor for the purpose of engaging in illegal sex and unlawfully using a computer service to solicit a person whom he believed was a minor in order to engage in illegal sex. The facts of this case are as follows:
As part of a sting operation, a police officer with the Tallahassee Police Department posed as a minor and posted an ad in the “casual encounters” section of Craigslist in October 2011. The title read: “Hot Fresh Latina Lookn 4 1 Nighter—w4m [woman looking for man] (NE Tally).” The body of the ad read: “Want exactly what it says … thats all NSA [no strings attached] & after we forget we met. ONLY serious responses!” Cantrell replied that he was interested, and this exchange followed between 10:03 and 10:25 p.m.:
OFFICER: u down wit a yunger Latina, hit me bk bb, lets tlk.
CANTRELL: for sure … pics?
OFFICER: u ain’t gettin a pic unless we decide we wanna meet up, I’m almost 15 and if u cool with that hit me bk and we can move to text.
Cantrell went out with some friends and when he returned, he responded at 2:41 a.m., “its cool bb,” and they began an exchange of text messages. Between 3:01 and 3:30 a.m., Cantrell told the person whom he believed was a minor what sexual activity he wanted to engage in with her, and she told him her parents were out of town and she had the house to herself, etc. They switched to telephones and Cantrell discovered that the minor was in the ninth grade in high school, that she had never engaged in sex before, and he agreed to bring condoms. He was arrested when he arrived at the house where he was to meet her at around 4:06 a.m.
Cantrell appealed his conviction and argued to the appellate court that the undercover officer’s action of lying about her age was entrapment because participation in the Craigslist site requires that a person acknowledge that he or she is 18 years of age or older by checking a box. Thus, Cantrell’s conversation with the officer was legal when he entered into it, and the officer improperly induced him into interacting with a person whom Cantrell believed was a minor.
The court of appeals said that what the undercover officer did was not entrapment because:
1. The officer’s lies did not create a substantial risk that an otherwise law-abiding citizen would commit a crime.
2. A mere invitation under false pretenses is not entrapment. Something more is needed, such as an undercover officer pleading with a person to commit a crime.
3. After the undercover officer lied about her age, Cantrell enthusiastically participated in their discussions, he suggested that they meet as soon as possible, and he did not hesitate in the least.
In the case of Harley Pennington versus the State of Florida, a jury convicted Mr. Pennington of DUI manslaughter based on the following facts:
Pennington was driving his SUV while intoxicated. The person who was killed in the accident had purchased his new, high-performance, sport motorcycle, (which had more horsepower than most small sedans), just eleven days earlier. He had alcohol in his bloodstream at the time of the accident and was not licensed to drive the motorcycle. According to witnesses who testified to what they saw shortly before the collision, Pennington was weaving within his lane, but did not actually leave his lane at any time. The driver of the motorcycle was seen shortly before the accident driving his motorcycle approximately 80 to 90 miles per hour in a 45-mile-per-hour speed zone. He almost hit another vehicle as he sped by and cut in front of it at a very high rate of speed, and he was not wearing a helmet.
The unusual fact in this case is that the motorcyclist had actually ridden up and over the top of the SUV. There was no damage to the front forks of the motorcycle, which all of the experts agreed would have been damaged in a frontal collision, but there was extensive damage to the undercarriage of the motorcycle. The prosecution’s expert testified that one possible explanation was that the motorcycle was doing a wheelie when the accident occurred. Pennington’s expert testified that based upon the evidence, the motorcycle had to have been doing a wheelie when it was struck.
Pennington appealed the jury’s verdict and argued to the court of appeals that even if he had not been under the influence of alcohol, the fact that the motorcycle was in wheelie position meant that its headlight was pointing towards the sky and, therefore, he could not have seen the motorcycle coming in the dark before he began his left turn in front of it. Thus, the fact that he was driving under the influence of alcohol did not cause or contribute to the death of the motorcyclist, and Pennington could not be guilty of DUI manslaughter because the law requires that in order to convict someone of DUI manslaughter, the prosecutor has to prove that the individual operated a vehicle while under the influence of alcohol to the extent that his normal faculties were impaired or with an unlawful blood alcohol level, and that as a result of such operation, the person caused or contributed to causing the death of another person.
The court of appeals agreed with Pennington. It concluded that although there was enough evidence to convict him of simple DUI, there was not enough evidence to convict him of DUI manslaughter. The court of appeals therefore reversed Pennington’s conviction for DUI manslaughter.
If you have been charged with violating your probation, you should know that your probation can’t be violated based just upon hearsay. Hearsay is a statement made out of court that is offered for its truth in court, and although hearsay evidence is admissible at a violation-of-probation hearing, your probation can’t be violated if the only evidence that the prosecutor has is hearsay.
This situation arose in the case of John McDoughall versus the State of Florida where the facts were as follows:
“McDoughall was placed on three-years probation for possession of oxycodone and marijuana. One of the conditions of probation was that McDoughall not commit any new crimes. While on probation, McDoughall was pulled over for a traffic violation. As a result of what occurred during the traffic stop, McDoughall was charged with: (1) possession of a weapon/ammunition by a felon; (2) trafficking hydromorphone; (3) trafficking oxycodone; (4) possession of alprazolam; (5) driving with a suspended license; (6) possession of Ritalin; and (7) possession of methadone.
At the violation of probation (“VOP”) hearing, the trial court heard testimony from the officers who performed the traffic stop. The officer who initiated the stop discovered that McDoughall’s license was suspended and that he was on felony probation for opiate possession. A second officer (“responding officer”) arrived on the scene and placed McDoughall under arrest for violating his probation by driving with a suspended license. Before the vehicle was towed, the responding officer conducted a vehicle inventory, which revealed “approximately 150 pills … of different prescription medications” in the center console. The responding officer testified that she did not personally test the pills but that she contacted Poison Control and sent the pills to the lab to confirm that they were oxycodone.”
The trial judge deciding McDoughall’s case ruled that he violated his probation in part because of his new criminal charges of drug possession, trafficking in drugs, and possessing drugs without a prescription. McDoughall appealed the trial judge’s decision because the only evidence presented at his violation-of-probation hearing identifying the pills as oxycodone was hearsay.
The appeals court agreed with McDoughall. That court stated that while hearsay is admissible at a violation-of-probation hearing, a person’s probation cannot be revoked solely on the basis of hearsay evidence. The hearsay has to be corroborated by non-hearsay evidence before a judge can find that a person violated his or her probation.
In the case of Anthony Steffen versus the State of Florida, the prosecutor filed a motion asking the judge to revoke Mr. Steffen’s bond and to put him in jail two months after Steffen had gone to his First Appearance Hearing where the conditions of his bond had been originally set. But instead of putting Steffen in jail, the judge who ruled on the prosecutor’s motion decided to put him on house arrest.
Steffen appealed the judge’s decision, and the court of appeals ruled that what the judge did was illegal because:
1. No new evidence was presented to the judge; and
2. No change of circumstances occurred during the two months that Steffen had been on bond that justified putting him on house arrest.
In the case of Cedric Smallwood versus the State of Florida, Mr. Smallwood was arrested for robbing a convenience store. Following his arrest, the police seized a cell phone that belonged to him and looked at some incriminating pictures that he had in his phone of guns and money. The police did not get a search warrant before they searched the contents of Smallwood’s phone. Those incriminating pictures were later shown to the jury at Smallwood’s trial. That jury ultimately convicted him of the crimes of robbery and possession of a firearm by a convicted felon.
Smallwood appealed his case to the Florida Supreme Court where he argued that the search of the contents of his cell phone was illegal because the police did not get a search warrant before doing so. The Supreme Court agreed with Smallwood and reversed his conviction. In doing so, the Supreme Court stated:
1. The police had a right to take possession of Smallwood’s cell phone after arresting him.
2. However, once the police did that, there was no chance that Smallwood could have used that phone as a weapon, nor could he have destroyed the contents of that phone.
3. No “exigent circumstances” existed that justified the police searching Smallwood’s phone before getting a warrant.
4. Therefore, the police were required to get a search warrant before searching the contents of Smallwood’s phone.
If you were arrested for DUI and your breath-alcohol level was over .08, the Florida Department of Motor Vehicles (“DMV”) will suspend your driver’s license for 6 months. If you refused to blow into the breath-testing machine, DMV will suspend your driver’s license for 1 year. Also, until recently, if you fell into the first category, you could not drive at all for 30 days (sometimes called a “hard suspension”). If you fell into the second category, you could not drive at all for 90 days. Of course, that could be financially devastating for you if your only way of getting to work is to drive your own car. But now things have changed for the better.
If this is your first DUI, you can avoid a hard suspension of 30 or 90 days by doing the following:
1. Within 10 days of being arrested for DUI, go to the Bureau of Administrative Review and sign a waiver of your right to have a review hearing.
2. Pay $25.00.
3. Provide proof of enrollment in DUI school.
4. Provide a copy of your DUI citation.
If you qualify, you will not have a hard suspension, and DMV will immediately give you a work permit so that you can continue driving for such necessities as work, groceries, and doctor appointments.
If you were arrested for DUI in Palm Beach County Florida and this is your first DUI, there may be some good news for you if your breath or blood-alcohol level was less than .15 (.08 is the legal limit in Florida). If your level was less than .15, then you may be able to plead guilty to the charge of reckless driving and avoid having a DUI on your record. You will still have to do many of the same things that people who are found guilty of DUI have to do–things such as go to DUI school, do community service, and attend drunk-driving classes. But when everything is said and done, your driving record will show that you were convicted of reckless driving rather than DUI.
If you were arrested for DUI and this is your first DUI, but your breath or blood-alcohol level was between .15 and .20, or if you refused to blow into the breath-testing machine, you may still be able to plead guilty to reckless driving, but you will have to do some things that the people described above do not have to do. Things such as 75 hours of community service rather than 50 hours. And having an ignition interlock device on your car for 6 months rather than for 3 months. But, as I said before, when everything is said and done, your driving record will show that you were convicted of reckless driving rather than DUI.
The police sometimes arrest people for misdemeanor DUI when they don’t have a right to do so. For example, in the case of Glenn Steiner v. the State of Florida, the facts were as follows:
A security guard at a condominium complex noticed the driver of an automobile which was stopped in the driveway near the guardhouse of the complex. The driver (who turned out to be Mr. Steiner) was attempting to start the car. Observing smoke coming from under the hood of the car and believing it to be on fire, the guard helped Steiner get out of the car. When he saw that Steiner was “swinging from side to side,” he took him by the arm to the guardhouse and made him sit in a chair outside of the guardhouse. The guard then called 911. The first officer on scene was a community service aide, not a deputized police officer. That aide spoke with Steiner who told the aide that he was trying to restart his car when the guard removed him from it. The aide smelled alcohol on Steiner’s breath and called for another officer to conduct a DUI investigation. The aide never saw Steiner behind the wheel of the car. The DUI investigator arrived and while speaking with Steiner, noticed an odor of alcohol on his breath. The investigator arrested Steiner for DUI and took him to the police station where he was videotaped and given a breath test.
When his case went to court, Steiner successfully argued that he was arrested unlawfully because the misdemeanor DUI that he was arrested for was committed outside the presence of the DUI investigator. The judge to which Steiner’s case was assigned noted that Florida law allows the police to arrest someone for a misdemeanor DUI when one of the following three circumstances exists:
1. When an officer actually sees the crime committed.
2. When an officer is investigating an accident, he may develop probable cause to arrest someone for misdemeanor DUI; or
3. When one officer calls another officer for assistance, the combined observations of the officers may establish probable cause to make an arrest (sometimes called “the fellow officer rule”).
In Steiner’s case, the first circumstance did not exist because neither the community service aide nor the DUI investigator saw Steiner behind the wheel of his car. The second circumstance also did not exist because what the aide saw was not an accident. Rather, he saw a car that had malfunctioned resulting in a fire and the car becoming undriveable. Finally, the third circumstance did not exist because the security guard was not a police officer.
Because none of these three circumstances existed, the judge ruled that Steiner was unlawfully arrested.
In the case of Missouri v. Tyler McNeely, Mr. McNeely was arrested for DUI and then forced to give blood at a nearby hospital. His case went all the way to the United States Supreme Court where he successfully argued that forcing him to give blood without first getting a warrant violated his right to be free from an unreasonable search and seizure that is guaranteed by the Fourth Amendment to the U.S. Constitution.
The facts of McNeely’s case are as follows:
While on road patrol at approximately 2 a.m., a Missouri police officer stopped McNeely’s truck after noticing it speeding and repeatedly crossing the center line. The officer observed several signs that McNeely was intoxicated including McNeely’s bloodshot eyes, his slurred speech, and the smell of alcohol on his breath. McNeely told the officer that he had drunk a couple of beers at a bar, and he appeared unsteady on his feet when he got out of his truck. After McNeely performed poorly on some roadside tests and refused to blow into a portable breath-testing machine, he was arrested for DUI.
The officer began driving McNeely to the police department, but when McNeely told him that he would refuse to blow into another breath-testing machine after arriving there, the officer instead took McNeely to a nearby hospital for blood testing without first getting a warrant. When they arrived at the hospital, the officer asked McNeely whether he would agree to a blood test. The officer told McNeely that if he refused to do so, his driver’s license would be revoked for one year, and his refusal could be used against him in court. McNeely nevertheless refused. The officer then ordered a hospital lab technician to take a blood sample from McNeely. That sample was later used in court against McNeely.
The U.S. Supreme Court ruled in favor of McNeely saying:
1. When an officer in a typical DUI investigation can reasonably obtain a warrant before forcing someone to give blood, then he must do so.
2. Even though someone driving a car has less of an expectation of privacy than she does when inside her home, that driver still has a privacy interest in preventing a police officer from ordering her skin to be pierced with a needle.
3. Although blood drawn in a hospital by a lab technician is less intrusive than some other invasions of one’s body, any forced intrusion into a human body implicates important, constitutionally-protected privacy interests.
4. A police officer’s general interest in preventing drunk driving does not just justify her failing to get a warrant without first pointing to emergency circumstances that made it impractical for her to get a warrant in the first place.