Jurisdiction: County Court, Broward County, Florida
Location of Incident: Tamarac, Florida
Submitted by: Fort Lauderdale DUI Attorney Michael Dye
- Was Defendant’s admission to drinking taken in violation of Florida Statute 316.066(4) commonly known as the accident report privilege?
- In the event Defendant’s admission to drinking was not taken in violation of the accident report privilege, was Defendant in custody for purposes of the Fifth Amendment?
- Was Defendant’s detention, in excess of one (1) hour, an unreasonable in length thereby constituting a de facto arrest without probable cause?
- Was there probable cause to arrest Defendant for DUI?
- State v. Marshall, 695 So.2d 719(Fla. 3rd DCA 1996);
- McNeil v. State, 656 So.2d 1320(Fla. 5th DCA 1996);
- State v. Arevalo, 112 So.3d 529(Fla. 4th DCA 2013);
- State v. Goddard, 202 So.3d 144(Fla. 2nd DCA 2016).
Result: Motion to Suppress granted. Defendant accepted a plea to the reduced charge of reckless driving in order to avoid the expense and uncertainty of an appeal by the State.
Download ( Motion-to-Suppress-NHTSA-Standardized-Field-Sobriety-Tests.pdf, PDF, 156KB)
Penalties for Driving Under the Influence
Vehicle immobilization is one of the penalties for driving under the influence in Florida. While the statutory language says that vehicle immobilization is mandatory, there are several exceptions. The penalties for driving under the influence are found in Florida Statute 316.193. Pursuant to Florida Statute 316.193(6)(d), the court must order the immobilization of a vehicle upon the defendant’s conviction for driving under the influence. For a first offense, the vehicle to be immobilized can be either the actual vehicle driven at the time of the arrest or any one vehicle registered in the defendant’s name at the time of the immobilization. Second and subsequent offenses require the immobilization of all vehicles owned by the defendant.
Length of Immobilization
- First Offense: Ten (10) days;
- Second Offense: Thirty (30) days;
- Third or subsequent Offense: Ninety (90) days.
Waiver of Vehicle Immobilization
Florida law provides multiple exceptions concerning vehicle immobilization. Those are as follows:
- Stolen vehicle used in the offense;
- Purchase of vehicle subsequent to DUI arrest. Vehicle must not have been purchased from the defendant or defendant’s agent;
- Vehicles operated solely by the defendant’s employees or by employees of any business owned by the defendant;
- Ignition interlock installed on all vehicles individually or jointly owned by the defendant;
- Family of the driver has no other means of public or private transportation.
This tip is not exclusive to criminal law or any type of motion and/or pleading. You should always use a verified motion when you make an allegation based upon representations made to you by your client.
Below is a motion to waive the vehicle immobilization due to no public or private transportation being available to the family.
Download ( Motion-to-Waive-Immobilization.pdf, PDF, 199KB)
Omnibus Motion to Suppress
This is simply a checkbox motion to suppress which attorneys were using in District Court DUI cases in North Carolina. A defendant doesn’t have a right to discovery in District Court cases. However, the legislature passed a law mandating that all motions to suppress be filed pretrial. As a result, it was not uncommon to end up trying a case that had substantial problems that would have been the basis for a motion to suppress. However, all of your grounds for a motion to suppress were waived due to your failure to file a pretrial motion. I don’t know who came up with the idea, but this form started circulating wherein you simply checked every box that might apply to the case. When you filed the motion, you would get a hearing on your motion and you could use that as a means to flush out the facts. North Carolina has a right of appeal for a jury trial de novo if an individual is convicted in District Court.
Use in Other Jurisdictions:
This type of motion would not be acceptable in Florida under normal circumstances. I can think of certain scenarios when there might be an exception. However, Florida Rule of Criminal Procedure 3.190(g)(2) requires that a motion to suppress contain a legally sufficient factual basis for filing the motion to suppress. If the motion is not legally sufficient on its face, the judge should deny the motion without a hearing pursuant to Florida Rule of Criminal Procedure 3.190(g)(3). Accordingly, the use of this motion or a “check box” type of motion is going to depend on the rules of procedure in the jurisdiction where you practice. However, you would need to tailor the motion to the specific case law in your own jurisdiction. For example, items 3, 4 & 5 in the motion reference case law from North Carolina. If I were filing the motion in Florida, I could change “Knoll” in item 3 to “Halliburton” and move to suppress based on a due process argument.
I wouldn’t expect much in the way of good results from this type of motion. If you can write a more specific motion, it would probably be in your best interest to do so. However, filing a “& the kitchen sink” motion might be good for the record if the State is playing games with you regarding discovery and attempting to get you to waive your speedy trial in order to get discovery.
This motion is in Word format so it can be downloaded and modified to suit your individual needs.
Download ( Omnibus-Motion-to-Suppress.docx, DOCX, 16KB)
Motion to Suppress No Probable Cause for Traffic Stop
Jurisdiction: County Court, Broward County, Florida
Location of Incident: Coral Springs, FL
Issues: Did the police officer have probable cause to stop defendant’s vehicle for a violation of Florida Statute 316.089(1), failure to maintain a single lane, when crossing the lane line did not interfere with any other traffic?
Notes regarding this particular motion: This motion to suppress was successfully used in a case which did not involve DUI. However, purported lane weaving violations are frequently used as the basis for a DUI stop. Although laws in your individual jurisdiction may be different, multiple jurisdictions have case law holding that crossing a lane line is not a strict liability offense. I have successfully made the arguments contained in this motion in Florida and North Carolina.
1) Whren v. United States, 517 U.S. 806, 809-10(1996)
1) Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002);
2) Crooks v. State, 710 So.2d 1041 (Fla. 2nd DCA 1988);
3) Florida v. Lee, WL 1372731 at 2 (Fl. 5th DCA 2007);
4) Holland v. State, 696 So.2d 757, 795 (Fla. 1997);
5) Jordan v. State, 831 So.2d 1241 1242-43 (Fla. 5th DCA 2002);
6) State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001).
Result: Case dismissed.
Download ( Lane-Weaving1.pdf, PDF, 202KB)
Deposition of Toxicologist from Broward County Medical Examiner’s Office
Jurisdiction: Broward County, Florida
Type of Test: Urinalysis (IA, GC/MS, TLC, LC/MS/MS)
Urine Sample Positive for: Zolpidem, Bupropion, Multiple Benzodiazepines and Benzodiazepine Metabolites
Result: State reduced the charge to a reckless driving.
Provided by: Michael A. Dye
Website: Fort Lauderdale DUI Attorney
Ambien Defense Deposition
Download ( Toxicologist-Deposition.pdf, PDF, 699KB)
Motion to Suppress for Violation of 4th Amendment | No Probable Cause for Stop
Jurisdiction: District Court, Wake County, North Carolina
Location of Checkpoint: Raleigh, NC
Issues: Did the act of pulling into a driveway with a checkpoint in view constitute reasonable suspicion that the driver was attempting to avoid a checkpoint?
State: 1) See State v. Haislip, 651 SE 2d 243, 246-47 (NC Ct. App. 2007)
2) Whren v. United States, 517, U.S. 806, 809-10(1996).
Result: Motion to Suppress Denied. The issues raised at the evidentiary hearing were a matter of first impression in North Carolina. The Court took the matter under advisement and researched the matter further. The court located two cases that were on point. If memory serves correct, one was from Hawaii and one was from a state in the South. The Hawaii court ruled for the State and the other court ruled for the defense. The Judge found the reasoning from the Hawaii case to be more persuasive and denied the motion. Client did not appeal. Two appellate courts have ruled in two different ways. This motion is worth another shot.
Motion to Suppress:
Download ( Motion-to-Suppress-Avoiding-Checkpoint.pdf, PDF, 47KB)
Motion to Suppress for Violation of 4th Amendment Rights
Jurisdiction: District Court, Wake County North Carolina, Motion Denied – Hon. Margaret P. Eagles(Argued by Michael Dye, Esq.)
Superior Court, Wake County, North Carolina, Motion Denied – Hon. Paul Gessner(Argued by Jane Weatherly, Esq.)
North Carolina Court of Appeal (Argued by Office of the Appellate Defender)
Location of Stop: Raleigh, NC
Issues: Was the BOLO issued as the result of an anonymous tip?
Was the information provided by the “tip” sufficiently reliable to constitute reasonable suspicion?
Did the allegations made in the anonymous tip amount to an accusation of criminal conduct?
Federal: 1) Florida v. J.L., 529 U.S. 266, 272, 146 L. Ed. 2d 254, 261 (2000)
State: 1) State v. McArn, 159 N.C. App. 209, 212, 582 S.E.2d 371, 374 (2003)
State v. Heien, 737 S.E.2d 351 (2012)
State v. Peele, 196 N.C. App. 668, 673, 675 S.E.2d 682, 686, disc. review denied, 363 N.C. 587, 683 S.E.2d 383 (2009)
Result: Trial court’s ruling denying Motion to Suppress is reversed, Defendant’s Motion to Suppress is granted, case remanded for trial. State dismissed case after appellate decision.
Motion to Suppress:
Download ( Motion-to-Suppress-Bolo.pdf, PDF, 1.15MB)
Download ( Appellate-Decision.pdf, PDF, 62KB)