Tampa DUI Lawyer Blog

In the last article, we discussed the cases of two Florida men, Ryan Simmons and Joushua McKinnon, who were arrested for driving under the influence last year and refused to submit to breath tests to determine their blood alcohol content. Police officers then were issued a warrant by a judge allowing to draw the men's blood. Both men have sought to suppress the results of the blood tests at their criminal trials with opposite results. The judge in Mr. Simmons' case ruled that the blood draw violated Florida law and suppressed the results. The judge in Mr. McKinnon's case, however, ruled that the forced blood draw was permissible and denied his motion to suppress. In part one of this article we discussed the relevant case law in Florida concerning when a driver has to submit to a breath, blood or urine test and when forcible blood draws are authorized under Florida law. In this article we will examine some of the claims that each of the defendants has made about constitutionality of a forcible blood draw in a misdemeanor DUI case.

Some DUI attorneys would argue that the results of the blood test should have been suppressed because police can only receive warrants to obtain evidence in felonies under Florida, not misdemeanors such as DUI. State attorneys have countered that warrants can be issued for misdemeanor cases to obtain property used to commit a crime. Mitchell has rejected this argument, stating that while a vehicle may be considered property used to commit the crime of DUI, a driver's blood is not. Mitchell has also noted that Florida's law concerning forcible blood draws only mentions that they can be used in the event of a DUI leading to serious bodily injury of death, not in routine misdemeanor cases. A bill in the Florida legislature that would have allowed for forcible blood draws in more routine cases was defeated in committee. Despite this Assistant State Attorney Rick Mantei has argued that forcible blood draws should be permissible since there is nowhere in the Florida Constitution that explicitly forbids them. "There's nothing that says we can't," said Mantei, noting that other counties such as Broward have already permitted forcible blood draws.

Both Ryan Simmons and Joshua McKinnon were arrested last year for driving under the influence and were asked to submit to a breath test to determine their blood alcohol content. After their refusal, police officers received the permission of a county judge to issue warrants to allow them to draw the men's blood. At issue in both appeals is whether the results of the blood test should have been suppressed during their trials. In part one of this article we will examine the relevant Florida law concerning when roadside blood testing is admissible in court.

Under Florida law, it is not a crime for a person to refuse to submit to a breath, blood, or urine test after his first DUI arrest, but his refusal can be used against him in court as evidence of their guilt. Refusal itself is only a crime after a person has already been convicted of a DUI or has already had a prior refusal. People who refuse DUI tests are nonetheless subject to the civil penalty of having their licenses suspended for up to a year after a first refusal and having their licenses suspended for 18 months after a second refusal. A person asked to submit to a test to determine their level of intoxication generally has the right to determine whether the officer performs a breath test, a blood test, or a urine test. Most people who decide to submit to a test will choose a breath test because it is generally less intrusive and less time consuming than the other tests. Additionally, many people are not aware of their right to choose which test they have to perform. In Florida, the forcible withdrawal of a person's blood against his will is only permitted in the cases of a DUI resulting in serious bodily injury or death or where the driver is unconscious and therefore has not withdrawn his implied consent to a blood test. In part two of this article we will discuss the various challenges of these forcible blood tests in court.

Jason Lanning, 30, has been arrested for driving under the influence, the Tampa DUI lawyers at Musca Law have learned. Lanning is known locally as a reporter on Bay News 9. According to law enforcement officials in the Tampa area, Lanning was allegedly driving north on Dale Mabry Highway on Wednesday night when he rear-ended a truck. Lanning allegedly drove off of the road and kept going for several blocks, even hitting road signs along the street. He apparently tried to drive away from the scene of the accident, but Greg Bentley, who was driving the truck that was rear-ended, blocked Lanning's escape.

Police examined Lanning upon arriving at the scene of the accident. Law enforcement officers said that Lanning smelled of alcohol and had red, glassy eyes. His breath test readings were 0.047 and 0.044, although the relatively low levels did not prevent his arrest. Police also administered roadside tests to evaluate his level of sobriety prior to placing him under arrest for DUI.

Lanning's case demonstrates that a driver can be impaired even if his BAC is lower than 0.08 percent, says Tampa DUI attorney John Musca. Many members of the public mistakenly believe that a motorist can only be arrested and convicted of DUI/DWI if he has a BAC of 0.08 percent or higher. Although that can result in a conviction under the Florida "per se" law (see Florida Statute 316.193), a driver can also be convicted of driving under the influence even if his BAC is lower, if he is actually impaired. Impairment can be established with other factors, such as performance in roadside field sobriety tests. Additionally, blood or urine tests, or even just observation, could lead the police to believe that a driver is under the influence of drugs in addition to or instead of alcohol.

A Bay News 9 report:

The original article is available here.

A Lakeland man has agreed to a plea deal that will close a long-running DUI Manslaughter case. Kenneth Delmar Stewart, now 38, was charged with five counts of DUI Manslaughter following an April 2006 car accident, says Tampa DUI attorney John Musca. Stewart was driving his truck at about 3:00 a.m. on April 21, 2006, when he apparently ran a red light, striking another vehicle driven by Emily Manzano, who was 61 years old. Manzano and all four of her passengers were killed as a result of the accident. All of those killed were in town for the wedding of Manzano's daughter, Cathy Manzano, on April 22. The police investigation determined that neither vehicle braked before impact. At the time of the accident, law enforcement officials determined that Stewart's blood alcohol concentration (BAC) was 0.12 percent, legally impaired. Under the terms of the plea deal, Stewart will spend 25 years in prison and 10 years on probation.

DUI Manslaughter (codified at Florida Statute 316.193) is a crime that occurs when a person is driving under the influence of alcohol or another substance and, while operating the motor vehicle, "causes or contributes to causing" the death of another person or, in some cases, a viable fetus, according the Tampa DUI lawyers at Musca Law. To be "under the influence" of alcohol, the driver must have a BAC of at least 0.08 percent or, if lower, actually be impaired. For example, if a man driving 20 miles over the speed limit, with a BAC of 0.12, runs a stop sign and crashes into a vehicle driven by a woman who is eight months pregnant and had the right of way, killing her, the man could potentially be charged with and convicted of two counts of DUI Manslaughter. Each count is punishable by up to 15 years in prison, although that figure increases if the driver failed to stop or render aid.

Another serious Florida DUI Manslaughter case:

Read the original report here.

The Florida Legislature takes drunk driving very seriously. Over the years, it has increased penalties for driving under the influence of alcohol or drugs (and made the definition of what constitutes the crime stricter. For a first-time DUI conviction, the defendant, if convicted, cannot be imprisoned for more than six months pursuant to the DUI statute (Florida Statute 316.193). If a motorist is convicted of DUI a second time, imprisonment cannot exceed nine months. Additionally, a driver who is convicted of two DUIs must have an ignition interlock device placed on his vehicle for at least one year after his driver's license is reinstated. This occurs on vehicles which the driver owns, even if jointly, leases, or regularly operates.

A third conviction within a ten year period is charged as a third-degree felony, which is punishable by up to five years in prison. If the third DUI conviction occurs outside of the ten year time frame, it is punishable by no more than 12 months in jail. The fourth conviction or beyond is a third-degree felony, which can result in a prison term of up to five years.

After a DUI arrest, the license of the driver is suspended, a decision which is appealable to the Florida Department of Highway Safety and Motor Vehicles within 10 days from the suspension. This is an administrative rather than a criminal matter. In order to retain or reinstate the license, the driver must request a formal administrative hearing.

The maximum jail and prison sentences are not typically imposed, but any person who has been arrested for driving under the influence - whether for a first-time or subsequent offense, even if the first offense occurred in a different area or another state - should seek the advice of an attorney. The experienced Tampa DUI lawyers at Musca Law have decades of experience defending drunk driving charges.

If a police officer has reason to believe that driver may be intoxicated, he will often administer a breath alcohol test on the spot, take the subject back to the police station for a breathalyzer test, or perhaps even both. In the event that the law enforcement official finds that the person has very little or even no alcohol in his system, he may require blood or urine samples.

Marijuana is probably the only illegal substance for which there is no relatively widespread consensus on impairment. Although it has been studied at length, experts differ in their opinions. Cannabis has effects on the body as well as the mind. During the high, the user may feel relaxed, paranoid, and enter an altered state of consciousness in which he expresses an increased appreciation for - or even fixation upon - colors and sounds, such as music. It can also cause a person's eyes to redden and the heart rate to increase. Perhaps most problematically, motor control can be impaired, as are reflexes and a person's ability to pay attention or focus. Still, many people argue that marijuana does not necessarily adversely affect a person's ability to drive a motor vehicle. At least one study has found that drivers who have used marijuana drive more cautiously, slower, and react less quickly than drivers who have not consumed marijuana.

Complicating matters further is the fact that traces of marijuana usage can stay in a person's urine for as long as a month after smoking or consuming the substance. Therefore, if a law enforcement agency tests a driver who is suspected of driving under the influence, it is complicated if marijuana traces are found in the suspect's urine - alone or in conjunction with alcohol or any other substance.

If you have been arrested for possession of marijuana or DUI/DWI, contact the Tampa DUI attorneys as soon as possible to discuss your case.

If a police officer sees a vehicle with odd driving patterns - such as failure to maintain a single lane, swerving, or otherwise driving erratically - he will usually pull over the vehicle. Then, he inquires about the driver's sobriety and may ask the motorist to perform roadside field sobriety tests or even blow into a handheld breath test device. During all of this, he also gauges the driver's overall appearance of intoxication. Common indicators a law enforcement officer could cite that point to a decision regarding intoxication include slurred speech, bloodshot eyes, and even confusion or disorientation.

A few years ago, a serious problem with this model became known to the public when a local Orlando television news station reported on the pre-written reports. These reports covered all of the bases, describing the general conditions of the DUI arrest in a "Mad Libs" sort of fashion. For example, the pre-composed reports had fields such as "I asked the suspect how much he had been drinking tonight and he responded ________" or "I made the traffic stop when the weather was _(cool/warm)_ and it was _(dark/daylight)_ outside." These pre-made DUI arrest reports are problematic because they do not demonstrate the individualized issues with each defendant. They may also encourage officers from abandoning traditional investigative techniques and simply filling in easy answers throughout the DUI template.

When a police officer comes to court to testify against a DUI/DWI defendant, it is often many months following the actual arrest. Because law enforcement officials make such a high volume of arrests in many cases, they likely do not remember the particular details of each arrest from the prior year or six months earlier. Therefore, they refresh their memories with the reports they filed for the case before they take the stand. These reports, which may be heavily relied upon by the police officer when testifying, need to be as complete, accurate, and individualized as possible for fairness to the DUI defendant.

Breath test devices, commonly known as "breathalyzers," can be used to convict a motorist of driving under the influence of alcohol on the streets of the Tampa bay area. The Florida statute provides that driving with a blood alcohol concentration, or BAC, of 0.08 percent or higher is definitively (or "per se") driving under the influence. The language means that anyone who is driving, or otherwise in "actual physical control" of a motor vehicle, who blows a 0.08 percent BAC or higher on a breathalyzer device, can be convicted of DUI/DWI.

Unfortunately, experienced criminal defense attorneys know that DUI is more complicated. In fact, many experts in DUI dispute the accuracy of breath testing devices. These breathalyzers are known for false positives for a variety of reasons, including chemicals released from certain kinds of dental work and mouth alcohol.

The breathalyzer machine, which is imperfect, is designed to measure certain alcohol-related or alcohol-based chemicals. This is why is detected breath alcohol, but also why a person who is on a ketogenic diet (such as Atkins) can cause the breathalyzer to have a false positive. Similarly, a diabetic whose blood sugar has spiked to very high levels can also show a false positive result. Perhaps most problematically of all, however, is the fact that it is widely accepted that there is a margin of error for these devices, which is conservatively estimated at 0.01 percent BAC. This means that someone whose blood alcohol concentration registers at 0.08 percent BAC, whose reading is actually based legitimately on the consumption of alcoholic beverages, probably actually has a BAC between 0.07 and 0.09 percent.

If you have been arrested in the Tampa bay area or anywhere else in Florida for driving under the influence of alcohol or drugs, including prescription medications, contact the DUI lawyers at Musca Law as soon as possible to discuss your case and your rights under the law.