Watch What You Say, Officer
Another DUI where the cops had video recorded the encounter with my client shows that, even if you don’t do well on the tests, there may be more than one way to use that evidence to your benefit.
LN had a long 24 hours that ended up with a trip to the jail. He had worked the whole day before at his first job, then did a night shift at his second. Then he had gone to a car show before finishing up with a light dinner with friends. He was pulled over for following a police car too closely and then fell fast asleep in his car while waiting for the DUI investigative officer to arrive on the scene of his stop.
The video starts with about 60 seconds of the officer trying to wake LN up. Luckily, when he does wake up, he sounds tired and half-asleep, but not intoxicated. The officer then has him get out of the car to do sobriety tests and he doesn’t do them that well.
Now these tests are not something a person has to do. I’m often asked should I do them and the answer is totally subject to your unique circumstances at that place and time. The police cannot make you do them and they cannot order, direct or trick you into doing them. That’s where this particular cop messed up.
He told LN he needed him to do the tests to see if LN was okay to keep driving or if would have to get a ride. Did you notice there was nothing said about going to jail, which is exactly what happened after LN took the tests.
We took the position that the cop mislead LN into taking the tests by saying he would either be let go or given a ride, but not saying the ride would be to the county jail. It wasn’t enough to get the charge dismissed but it did get reduced to Reckless Driving and avoided a minimum 10 day jail sentence and 5 year license suspension for LN.
You Don’t Always Reap What You Sow
Even though the public attitude on marijuana seems to be swinging towards reason, our laws and our law enforcement agencies are still treating the cultivation and possession of grass as a heinous offense. I was one of three attorneys representing a family of 3 that had been caught growing some kind bud in the garage.
The family was Cuban and spoke little to no English. The Sheriff’s Office had been following up on a cold tip that a wanted gang-banger was living in the house where our Latino Farmers had moved in and they went to check it out. After convincing the head-of-household that the arrest warrant gave them the right to search the house, they found the plants and charged husband, wife and teen son with trafficking in drugs, a crime that carries minimum mandatory prison sentences for all involved.
Even though the gangster hadn’t lived at that address for several years, the cops did their best to convince us that it was a hot tip and they had good reason to believe that he was in there.
Between the 3 of us legal types, we dug up enough police department and sheriff office internal communications to show that, not only was there no reason to believe he was there, but law enforcement knew he was not there. The judge threw out all the evidence, finding that the cops coerced the man to agree to the search and that they had no reason to believe the bad guy was there.
Know Thyself and The Location of Thy Witnesses
A good friend of mine had an auto accident while heading home late one evening. The good news is that she wasn’t hurt. The bad news was that the Highway Patrol thought she was DUI and arrested her.
She had the good sense to refuse to do Field Sobriety Exercises (Stupid Human Tricks) and also denied being impaired, taking the position that being in an accident where the car rolls over 3 times can have an unsettling effect on a person and make you a little unsteady on your feet.
It was a single-car accident, but a witness who was stopped on the shoulder of the road for his girlfriend passenger to toss her cookies, happened to see the whole thing and was the “wheel witness” for the State’s case.
If the police don’t pull you over while driving, but, instead respond to an accident where you are already out of the car, they need a witness to put you behind the wheel. That is one of the first things we look at in a case like that. And that is what I did. I called the wheel witness to see exactly what he saw and it was not good for us. He could put her behind the wheel.
But, when I spoke with him just days after the accident, I also found out that he was leaving the area shortly. He was moving to Alaska and might not be coming back ever, but the soonest he might be back would be in 4 months.
This is valuable information and having it up front was critical. In most cases I might take my time and “waive speedy trial” which would allow either party to continue the case for months, possibly. Knowing what I knew, I did not waive speedy and pressed the case onto a trial docket.
Come day of trial, no witness, no conviction. Thanks, “Quinn the Eskimo.”
CB is a hard worker. He was at his job, finishing up his kitchen shift while his girlfriend waited in the car for him. Also in the parking lot were some of HCSO’s finest, sniffing around for trouble. They sniffed around CB’s car and smelt some skunk. Getting the girlfriend out of the car, they searched it and found a small amount of marijuana in the console. They were in the process of charging the girlfriend, a student at a local college, when CB came out to leave. He saw the cops with their surgical gloves on, reefer on the hood and cuffs out and told them not to arrest her (endangering her education) but to arrest him because it was his pot.
Amazingly, they accepted his offer. He was charged with the pot, not her and he hired me.
Now even though the cops found the pot in the car he said was his, and he also said that the pot was his, I took a look at the case from a legal perspective because that is my job, after all.
I analyzed the case and felt there were problems with the proof. You see, even if a person admits to a crime, the State still has to prove the crime. CB had admitted that he owned the weed, but that’s not the crime. Possessing the stuff is what is unlawful and that requires proof that you know it’s there coupled with the ability to exercise control over it. Here it was clear he knew it was there and he even admitted smoking some on his break to explain the odor of burnt weed they smelled. But he was in the bar at work when the cops found it! How could he “exercise control” over the marijuana in the car with his girlfriend in there and she had the keys to the car?
Everyone I spoke with told me that the case was a loser. I should just plea bargain, but I persisted. We filed a Motion to Dismiss and argued it before the judge. To all the other lawyers’ surprise, my logic, and the motion, prevailed. Case dismissed.
The girlfriend avoided an arrest that would jeopardize her enrollment at school, CB got the case dismissed, and I got a bunch of well-deserved atta-boys from my peers.
Goth Boots Are Made for Standing
A former client of mine, SS became a repeat client when he was stopped for following too closely and then arrested for DUI. The DUI officer that responded after the stop captured my client on video and, had SS not been wearing heavy Goth boots, I’m not sure he could have even stood up. As it was, the boots were the only thing that seemed to keep him upright.
After reviewing the reports, speaking with the arresting officer and viewing the video, we were pretty much ready to throw in the towel, but I noticed that the officer who had stopped SS hadn’t filed his supplement report detailing the specific observations that caused him to pull SS over. I requested, then demanded the report, only to be told that it couldn’t be located and, at the hearing on the motion to suppress the stop of SS, the officer conceded that, without his report, he had no recollection of this particular stop. The charge was dismissed and SS walked out the front door of the courtroom. In dress shoes.
(Note: I do not approve of driving under the influence. It is dangerous and the law is on the books for a very good reason. However, as your attorney, my job is to represent you and get the best possible result for you, the client.)
Long Distance Runaround
I got a referral from an attorney in the Panhandle regarding one of his clients, MS, who was on felony probation imposed by a hanging judge up there. MS had transferred his probation to this area and was living with his parents in New Tampa while working as a waiter in Ybor City. After working a double shift and having a few drinks with co-workers, he got lucky and spent the rest of the night with a female friend. The next morning when he left her house he got lost in the unfamiliar University area and was extremely sleep deprived.
Trying to get home the only way he knew, he decided to backtrack to Ybor city where he could use I-4 to get to I-75. His driving pattern was apparently erratic enough to attract the attention of a civilian police dispatcher who followed him down Fowler, southbound on 275, exiting and coming back east on Scott St. where he stopped and got out of the vehicle to change a tire. The police who had been in contact with the civilian following MS arrived, but only after MS had gotten out of the vehicle. Believing MS to be impaired, the officer had him perform field sobriety exercises and submit to a breath test after being arrested for DUI. MS was held on the DUI and on the violation of probation which it created with no bond and the expectation that he would be sentenced to prison should he be found guilty of the DUI or any other crime.
The family retained me and I immediately recognized a problem with the arrest: Because the officer had not witnessed the commission of the misdemeanor DUI charge, the arrest was unlawful and we were able to have all evidence thrown out and the case dismissed in short order.
Thanks to our successful defense of the DUI, the violation of probation was also dismissed and MS is back on the job.
Hold These for Me, Baby
SC was a different story. He had been stopped for weaving and, after refusing all tests, physical and chemical, was arrested for DUI. When searched he was found to have some pills in his pocket that weren’t prescribed to him. He was arrested for both misdemeanor DUI and for felony possession.
He had the good sense to hire me immediately and I sent the State proof that the pills belonged to his live-in girlfriend and that she had asked him to hold them for her because she wasn’t carrying a purse. Even though the law was on our side, the State filed both the felony drug possession and the misdemeanor DUI, as Count 2, offering to drop that felony if we plead to the DUI.
Knowing the felony case was weak, we pressed forward on a Motion to Dismiss that count without waiving speedy trial. The court granted dismissal of the felony which now left only the DUI which had to be re-filed in County Court. But, now that the felony was gone, and because we had not waived speedy trial, the state was out of time to do that.
So rather than having the felony, which never should have been filed, as leverage to force a plea on the misdemeanor DUI, the State had put themselves in a position where they could not even proceed on the DUI. A position we took advantage of.
Just One More Drink...
RR might have had a few drinks before he went to the girly bar. He came in hot and jumped the curb, bumping into the concrete building with enough force to shake the surveillance camera mounted to the outside wall. But he looked fine getting out of the car and walking into the place.
Waiting to talk to the manager, he ordered a strong drink and started drinking. Meanwhile the cops had already been called and the manager avoided him while he sat at the bar and drank.
Cops get there, and despite the fact that he had been drinking for almost an hour after getting out from behind the wheel, they decide he’s impaired and arrest him for DUI. His breath alcohol level was well over the limit but I had a file full of cases from around the nation holding that drinking after you've stopped driving, negates observations made some time later.
Even though the prosecutor thought that, based on his breath alcohol reading, RR had to have been impaired when he got there, he couldn’t prove it and with my supporting law, the case was reduced to Reckless Driving, which is exactly what RR had done. That also explains why a professor of mine in Law School said he always carried a flask around to take a nip from if he was in an accident under questionable circumstances.
Maybe You Should Think Twice About No Video, Officer
The same cop has been chastised by several judges several times. In CP’s case, he was arrested for DUI and, instead of having this DUI officer come to the scene of his stop, the arresting officer took him to the jail, where Officer “NoVideo” met them. He had my client do all the Sobriety Exercises in the warm confines of the Jail Law Enforcement lobby - In full view of the jail surveillance camera.
According to him, CP did poorly. But despite the fact that the entire procedure was captured on video, Officer NV did not bother to tell the jail to preserve that film. No independent way to know how he did on the tests.
A felony DUI is reduced to a Reckless Driving because of our relentless efforts to make sure that law enforcement protects your rights and, if they don’t, to use that in your defense.
Officer Thinks He Don’t Need No Stinkin’ Video
DF was out with an old girlfriend. He was the quasi-designated driver and she was drinking freely. Reverting to their boyfriend/girlfriend tendencies, an argument began and she demanded that he let her out of the car. She would “walk home.” He did, but couldn’t bring himself to drive off and leave her on the streets of downtown Land O’ Lakes at that hour.
An astute law enforcement officer took notice of them and pulled in to investigate. She, of course, threw him under the bus and the officer, after being told by the angry ex that he was drunk, detained him for a DUI investigation.
Although the officer had audio/video recording equipment installed in his vehicle and he turned it on at some point, His testimony was predictable enough - slurred speech, bloodshot eyes, odor of alcohol, unsteady on his feet, the standard boilerplate - but when we got the recording, he never bothered to follow Sheriff’s Office SOP and video his contact with DF by taking DF to the camera or pointing the camera at DF. There was just a video of the empty roadside. However the audio reflected something different than the cop's recollection. And without the required video, there was no way to tell.
We filed a Motion to Dismiss for violation of DF’s due process rights and the judge agreed that the cop’s willful failure to follow the General Orders of the Sheriff’s Office deprived DF of critical evidence and violated due process. The motion was granted.
The State Attorney took issue with that ruling and appealed. Although the higher court sent the case back to the trial court for additional findings, the judge issued an even stronger order dismissing the case again, finding that the failure to video DF was done in “bad faith” and violated due process.
The State, unwilling to accept defeat, appealed again and, once again, the higher court reversed and sent it back down. We filed a third motion asking for the evidence to be suppressed. It was granted and, guess what? The appealed again!
This time the higher court affirmed the ruling and we prevailed.
Perfect Case for Cops Falls Apart on Film
MJ was driving safely down the interstate, taking his friends home from their night out when FHP clocked him at 80 in a 70 at 1:30 a.m. When the Trooper smelled alcohol, he was removed from the car and put in the backseat of the patrol car and transported down the road to the Rest Area for “Stupid Human Tricks” which he was directed to perform. After being formally arrested he was taken to meet a mobile breath test operator and browbeaten into taking the breath test, which, after several machine aborts and radio interference, yielded a very high result, over twice the legal limit.
Fortunately, FHP had just recently installed video equipment in the patrol car and the officers didn’t seem to realize that video evidence can cut both ways. We obtained the video and, after a thorough review of it, found numerous acts of misconduct by law enforcement.
Thanks to the court’s ruling that MJ was illegally placed in custody and unlawfully forced to take a breath test, our motion to suppress all of the evidence was granted.
The State Attorney did not like this ruling and appealed it to a higher court. We responded and the court’s order dismissing the case was upheld on appeal.
Two for The Price of None
Client MT came to us charged with a first time DUI. He had blown right at the legal blood alcohol level of .08. But even though it was a close case, the State would not reduce the charge to Reckless Driving. That position hardened when MT was later found sleeping in his vehicle in the parking lot of a local shopping center and the officer arrested him for another DUI (being in “actual physical control” of a car is the same as driving it under the influence). And it was the same officer both times.
The second charge came up first when we filed a Motion to Suppress all of the evidence, arguing that the arresting officer illegally seized MT when he opened the door of the car to wake him up. The arresting cop said he was “concerned about MT’s welfare” so he opened the door. However we established from the first officer on-scene that he could tell MT was sleeping and not in any distress.
After the court granted our motion in that case, we went to jury trial on the first DUI and the same officer who had seen his second arrest thrown out did his best to persuade the jury MT was guilty. It took them an hour and a half, but the jury found MT not guilty. MT went 2 for 2.
A Friend in Need? Not!
MW had big problems. A quiet, reserved guy in his 20’s with no prior record and very few friends, he had left his last job laying tile because of continuing shoulder injuries. He had prescribed pain killers that he had grown dependent on. But, still on his mother’s insurance, the cost wasn’t an issue.
One day, he gets a call from a former co-worker, Humberto “Kiko” Rodriguez, and he’s glad to hear from him. At first. Then he finds out why Kiko is calling - he wants MW to sell him some of MW’s pain pills. No can do, MW tells him. Kiko is persistent, calling several more times, saying please, I lost my job, I got arrested, my kids need food, etc.
Finally MW relents, “I may know a guy,” he tells Kiko. He agrees to set up a deal between someone who had sold him a few pills in the past to tide him over and Kiko’s “cousin”.
You see where this is going? Kiko was working as a snitch and the “cousin” was a TPD cop. The cop made sure that a deal was set up for enough pills to make a trafficking case, which carries stiffer penalties than simple delivery.
It gets better. As I investigated the case, I found that Kiko had numerous felony convictions, that he had been in extensive trouble in Miami, where he started his career as a snitch, and then also worked as a paid confidential informant for Orlando cops. He had moved over here and, after getting arrested for DUI and losing his job, because it was the boss’ car he wrecked in the DUI, decided to try his snitch moonlighting job here. “By the way”, he told the cop who signed him up, “I also need a little help with this DUI”. Which the cop gave him!
So in order to create a few crimes to report to the cops so he could deliver his side of the deal, Kiko started looking for suckers. He finally persuades MW to help him out, and contrary to what you might think, TPD doesn't even supervise this guy while he’s out making crimes, much less record or document his actions.
The deal goes down, MW carries the package of pills from the supplier to the cop and MW gets charged with trafficking, a crime that carries a minimum mandatory prison sentence of 3 years and a maximum of 30. All for trying to help out a friend in need, and his kids, for Pete’s sake.
But, as you’ve seen Kiko was not a friend. He was an agent of law enforcement who persuaded or enticed MW to get involved in this at all. It's what we call entrapment. It’s also what the jury called entrapment. Not guilty after less than 30 minutes of deliberation.
You know they thought it was entrapment, but I also bet they felt a little dirty being a part of a community that condones this type of “policing”. Because Deandre Morris, the dealer, you know the guy who actually provided the drugs and had been a drug dealer for years and had at least 4-5 felony convictions himself, did not even get charged. He agreed to be a snitch and the cops let him go, right there on the spot.
Now you think it doesn’t get better? Wrong! The fact that Kiko was working for the cops got around pretty fast. For a “confidential” informant that’s a problem. One day, the former boss of MW and Kiko happens to run into Kiko while on a job. He tells Kiko that he doesn’t respect Kiko for working with the cops. Kiko says, “How did you know?” and the boss says, “Because I heard you set up MW.” The snitch replies, “I’ll get his punk ass,” and calls his TPD handler to allege that MW had come out to his home with 7 or 8 guys and threatened him unless he gave MW back the money the cops took from him, the money he had to pay to get his car back and the money he had to pay for a lawyer.
MW got arrested that night for witness tampering, and as soon as I heard the allegations, I knew it was BS. The cops didn’t take any money from MW because he didn’t have any. He didn’t have to pay for the car to be released because it was his girlfriend’s car and they gave it back to her within an hour at no cost and his Mom had hired me. Plus MW doesn’t even have 7 friends.
We then established an alibi for MW showing he was nowhere near Kiko’s house at the time and was with other people who could vouch for him. But when Kiko changed his story to the cops, we had him locked in a lie. He now said it was MW and the boss who came over. I contacted the boss and he told me what really happened and after giving the State his affidavit, the witness tampering charge was dropped.
You might think that the State would re-evaluate their case against MW in the trafficking charge but they didn’t. You also might think that TPD would stop using this proven liar but, last I heard, he’s still making cases for the cops.
Had the jury in the trafficking case known “the rest of the story”, not only would they have found MW not guilty, they might have found the cops guilty of something.