DUI Attorney.com

Walk into almost any DUI courtroom across the country and you will find them. They hog the table closest to the jury box. They kiss up to judges. They seem overwhelmed and usually are.

They are in a position of power, but the dirty (or shameful) little secret is that many of them do not feel powerful. Far from it.

Did you know that most rank and file DUI prosecutors don't even have the ability to make any decisions in the cases they handle? In fact, some need to run every little thing by their bosses under threat of anything from a demerit to termination. They are running scared. And they typically hate their jobs.

Ask 100 prosecutors who handle mostly DUI cases if they like their jobs and are satisfied with their careers, 99 will say no, and the one who doesn't is either mute or a liar.

There is a toll that judging and punishing people takes on a soul, and although many don't realize it, every time they act unreasonably towards a person they are prosecuting they exact a toll on their own psyche. Some react by becoming withdrawn. Some get meaner. Some have nervous breakdowns. And others drink. 

So there you have it, prosecutors drink too. 

If you live in Tennessee you may have seen vehicles parked with large nails in the hoods. They are there for the 4th of July holiday weekend, and are scheduled to remain there for the duration of the summer. They are to remind people of the seriousness of Tennessee DUIs and the accidents that they cause.

So please, if you are going to be drinking this holiday weekend, be safe and realize that the Tennessee Highway Patrol and your local sheriff's department are out there looking for people who make the wrong decision about driving after drinking.

Here's a new case where the prosecutor appealed because the judge was being too lenient. The prosecutor won.

 The case, issued but not officially published by the Florida Court of appeals, Fourth District, is Florida v. Waterman.

 It seems that Mr. Waterman's history of DUI arrests and convictions was of concern to the court, which said:

Thus, the issue for this Court is whether Waterman's criminal history is so extensive that it precludes a downward departure sentence under section 921.0026(2)(j), Florida Statutes (2008). Waterman's history consists of at least four misdemeanors, a felony aggravated battery with a deadly weapon for which he was sentenced about two years before he committed the current offenses, and a DUI that occurred less than a year before the current offenses. On one hand, his history is certainly not as extensive as the defendants in Ayers and Gaines, and the escape and accompanying charges were his first criminal charges as an adult. Nevertheless, his history is distinguishable from the defendants' histories in Fontaine and Randall because he has more than just one or two misdemeanor charges on his record. In addition, his history shows an emerging pattern of alcohol-related crimes, in that his current escape charge arose out of his second arrest for DUI within a year.

Waterman's record is more similar in scope to the defendant's record in  State v. Tice, 898 So.2d 268 (Fla. 5th DCA 2005). In Tice, the defendant's scoresheet indicated that he was previously convicted of resisting an officer without violence, two violations of probation, aggravated battery with a deadly weapon, and fleeing or attempting to elude a police officer. Id. at 269. Thus, the defendant's record fell somewhere in the middle of the spectrum of criminal records, where on one end lies the defendant with a clearly excessive record, and on the other end lies a defendant with no prior criminal record. The Fifth District Court of Appeal held that the defendant's record, while mid-spectrum, precluded his current offense from being labeled "isolated." See id. Thus, the statutory mitigator did not apply. Id. We agree with that analysis, and hold that Waterman's record is too extensive for his escape charge to be labeled "isolated" under section 921.0026(2)(j), Florida Statutes (2008).

 Looking at Mr. Waterman's entire criminal history, which included assaulting law enforcement officers, it concluded that:

Accordingly, there is not competent, substantial evidence to support the trial court's ruling that Waterman's escape charge was an isolated incident. His criminal history precludes him from receiving a downward departure sentence under section 921.0026(2)(j), Florida Statutes (2008). Moreover, his argument that one of the other statutory mitigators might apply is not supported by the record. Thus, the trial court erred in departing downward from the sentencing guidelines to sentence Waterman on Count 1, escape. We reverse Waterman's downward departure sentence for Count 1 and remand for resentencing.

What cases like this do is send messages to trial court judges that they will be publicly embarrassed and reversed by the higher court if they downward depart from the sentence range.

Like many states, Pennsylvania is planning many drunk driving checkpoints over the 4th of July holiday weekend. For an official list of the locations read this.

According to the posting, watch out for:

Chester County
July 2-4
DUI patrols along Routes 30, 100 and 113.

Montgomery County
July 2-6

DUI patrols along Route 611 in Abington and Upper Moreland townships.

DUI patrols on Routes 63, 202, 309, 463, 663 and Sumneytown Pike in Hatfield, Montgomery, Towamencin, Upper Gwynedd townships and Hatfield and Lansdale boroughs.

Franconia Township, Lower Salford Township, Hatfield Township, and the Upper Perkiomen Police

DUI patrols along Routes 1 and 30 in Lower Merion Township.

July 10
DUI checkpoint along Route 152 in Upper Dublin Township.

July 17
DUI checkpoint along Easton Road in Cheltenham Township.

 The defense wins one:

On appeal, Epps argues that the trial court erred by denying the motion to suppress for two reasons: (1) there was no evidence of what was read to her; and alternatively (2) even if the implied consent rights were read to her, they were read before she was arrested in violation of Georgia law. Because the state did not demonstrate that it met the implied consent notice requirements, we reverse.

 Here's what the judge should have done:

Therefore, the trial court should have granted Epps's motion to suppress the blood test results, and its denial of the motion constitutes error.

 

In the absence of the blood test results, there is no competent evidence that Epps had "an alcohol concentration of 0.08 grams or more at a time within three hours after driving and being in actual physical control of a moving vehicle, said alcohol having been consumed prior to such driving," as charged in the accusation. Accordingly, Epps's conviction for driving under the influence per se must be reversed due to insufficient evidence. Since Epps' conviction for driving less safe was merged into this charge for sentencing purposes, we remand the case to the trial court for re-sentencing so that Epps can be sentenced on the merged offense.

The take home message: Just because a lot of people testify against you, and just because the judge and the prosecutor think you are guilty, and just because some players in the justice system want to do everything possible to make sure that you get your DUI conviction doesn't mean that they are right.

However, this case is a good example of why you need an aggressive and very competent DUI defense lawyer helping you at every step of your case.

For a trip down memory lane with Georgia DUI appellate case law, see:

 Georgia DUI Case about general demurrer

 Georgia DUI Law: February 18, 2009 Decision

Donte' Stallworth, starting wide receiver for the Cleveland Browns, is serving a 30-day jail sentence for DUI manslaughter. The NFL star fatally hit a pedestrian with his Bentley after a night of partying at a swanky Miami hotel. Stallworth frantically called 911 stating the victim "came out of nowhere" and to"...send an ambulance right now, man".

The Miami Herald released on Tuesday, June 30, that Stallworth also tested positive for marijuana. Defense attorneys argued that marijuana can remain in the system weeks after use and illegal drugs were not necessarily factored in the fatal crash. This new information may not impact Stallworth's criminal case, but it could affect his deal with the NFL. The NFL has a strict no illegal drugs policy and has suspended Stallworth indefinitely.

The morning of the crash, the football pro had a blood alcohol level of .126, well over the Florida legal limit of .08. Stallworth pleaded guilty to the crime of DUI manslaughter and will serve a month in jail, 2 years of house arrest, 8 years of probation and has lost his driver's license for the rest of his life. The family of the victim has also resolved a civil case with Stallworth and will be awarded an undisclosed monetary settlement.

If you have been charged with DUI or have been involved with a DUI accident, it is extremely important to consult a reputable Florida defense attorney. Stallworth was facing 15 years in prison for his crime and received a light sentence thanks to the quality work of his legal team. A qualified defense lawyer will properly advise you of your rights; guide you through the labyrinth-like Court system and be your advocate in one of the most difficult and confusing times of your life.

The trial court declined to give appellant's proffered instruction, which provided that: "Operating a motor vehicle means starting the engine or manipulating the electrical or mechanical equipment of the vehicle without actually putting the vehicle in motion but with the purpose of putting it in motion." (Emphasis added). It granted the Commonwealth's jury instruction on that issue, which provided that: "Operating a motor vehicle not only includes the process of moving the vehicle from one place to another, but also includes starting the engine, or manipulating the mechanical or electrical equipment of the vehicle without actually putting the car in motion."

And here's what the appellate court had to say about the trial court's refusal of the defense instruction (no surprises here):

Consistent with prior decisions of this Court and the Supreme Court, it was not necessary that the jury find appellant acted "with the purpose of putting [a car] in motion" to find he "operated" a car within the meaning of Code § 18.2-266. See Stevenson, 243 Va. at 438, 416 S .E.2d at 438.

The instruction granted by the trial court fully and fairly covered the principles of law relevant to the question of whether appellant operated the car in which he was found, intoxicated and while the engine was running. We conclude the trial court did not err in refusing to grant appellant's proffered jury instruction. See Gaines, 39 Va.App. at 568, 574 S.E.2d at 778.

Guess what folks, here's another (not so) big surprise. The appeals court also shot down the defense argument about sufficiency of the evidence:

Appellant also contends the Commonwealth's evidence was insufficient as a matter of law to prove he "operat[ed] [the vehicle,] because there is no evidence that supports a reasonable inference that he had any purpose to put his vehicle in motion on a highway." We find appellant's argument to be without merit.

And just when the reader (the the edge of their seat, I'm sure) thinks that the appeals court is going to at least thrown the defendant in this case a bone... nope, not in this Virginia DUI case.

We conclude that the Code § 19.2-295.1 notice requirements do not apply to the admission of a defendant's prior traffic record into evidence pursuant to Code § 46.2-943. Accordingly, we conclude the trial court did not err by admitting appellant's DMV record into evidence.

Not a good defense ruling in sight.

For more information, see Virginia DUI Law.

The Oregon legislature is at it again, this time attempting to make it more difficult or impossible for some people who get arrested for DUII in Oregon to obtain hardship permits.

The bill, if approved as law, would lengthen the waiting period from one to three years for a person applying for a hardship driving permit if that person either has prior DUI convictions or refused to take the chemical test. (Oregon DUI chemical tests can be either blood or breath).

 Another bill raises the fine for an Oregon DUI conviction with an alcohol level of .15 or greater to a staggering $2,000.00.

We will keep on top of this story and give you more as it develops. In the meantime, learn more about Oregon DUI Law or contact Bart Herron if you have any questions about drunk driving law in Oregon.

I would like to welcome Texas DWI attorney Kyle Simpson on board at duiattorney.com.

 Kyles practice heavily emphasizes DWI defense in the greater San Antonio metro area. He will be the Texas representative for this site in the following Texas Counties:

Atascosa, Bandera, Bexar, Comal, Guadalupe, Kendall, Medina and Wilson.

Mr. Simpson brings with him a wealth of Texas DWI knowledge. In fact, he wrote the recently published Westlaw book on the subject, a book that is geared towards other lawyers and judges.

Tampa Bay Area - Here's an example of a Florida DUI sentence for boating under the influence resulting in a death. A Tarpon Springs man was sentenced to 15 years in prison after boating and drinking on the Anclote River. The boaat went into mud flats and crashed into a dock, killing one of the passengers.

After a trial, a Florida jury found him guilty of manslaughter and reckless boating.

In Florida, and around the nation, there is a trend towards stricter enforcement of boating  under the influence in recognition of the dangers of drinking while on the water.

Despite numerous pleas for leniency, the judge sentenced him to 15 years in prison.