Notice of Appearance | Initial Pleading

The first pleading that you should file in any case is your Notice of Appearance.

All in One Notice of Appearance

The example below is a “Combined Notice of Appearance.”  So it combines all of the following into one page:

  • Notice of Appearance of Counsel;
  • Waiver of Arraignment;
  • Written Plea of Not Guilty;
  • Demand for Discovery;
  • Reservation of Rights Pursuant to Florida Rule of Criminal Procedure 3.190(c);
  • Demand for a trial by jury.

This is a typical pleading that I file in the beginning of every case.  However, you may want to modify it according to your Judicial Circuit.

Know Your Local Rules and Policies

Some prosecutors state that you waive your client’s eligibility to enter into a diversion if you demand discovery.  Accordingly, you need to remove the demand for discovery if your client is seeking a diversion.  Some state attorneys require that a diversion be agreed upon at arraignment.  You need to remove the waiver of arraignment and written plea of not guilty if that is the case.  Consider submitting a Notice of Appearance without any of the other provisions if the state attorney has not filed charges.

You can still run into trouble filing standard forms if you do not know your local rules of procedure and the policies of the local state attorney.  So if you are just starting out, look before you leap.  The best thing you can do is to ask another attorney who has experience in that circuit.  Every attorney has his or her own forms that they use.  Look at those forms, you can use this one, use another form, but eventually, you will come up with your own.

Pay careful attention to motions and reservations of rights in the various forms you see.  Those are included due to an attorney’s past experiences.  These seemingly innocuous phrases represent “lessons learned” by that attorney.

This form is for use by attorneys only.  You need to file a waiver of the right to an attorney if you are representing yourself pro se.  While we are on that topic, I would like to remind you how much of a bad idea it is to represent yourself.

Download ( Combined-Notice-and-Demand-for-Trial-by-Jury.pdf, PDF, 11KB)

Motion for a Continuance

Motion for Continuance

Why to Request a Continuance

The vast majority of continuances are due to time constraints. You can only be at one place at one time and there are only 24 hours in a day. Sometimes you just can’t get it all done. There are a lot of very good reasons to file a motion for a continuance. Your client could need additional time to complete a task. A witness might have cancelled a crucial deposition. You or a witness might have an emergency issue requiring out of town travel. I’ve even seen an attorney request a continuance, on the day of trial, because that attorney had just been arrested and had charges pending in front of that judge. He absolutely needed a continuance to have the case reassigned to a different division. We all understand that sometimes things happen in life that are outside of your control.

Don’t be a Lazy Lawyer

Nothing is more frustrating to a judge than to have a 2012 case on his or her docket in 2016. The judge’s frustration will grow exponentially if the attorney on the case sends in a coverage attorney to request a continuance because the attorney was out of town on business in Las Vegas. The bottom line is that you need to stay on top of your cases. It is stressful being a criminal defendant. Frivolously delaying the resolution to your client’s case is unethical and can take a real toll on your client’s wellbeing.

How to Request a Continuance

Florida Rule of Criminal Procedure 3.190(g) governs motions for a continuance. All motions for a continuance must be made prior to the matter being set for trial or for good cause shown after the case has been set for trial. Try to notify the judge as far in advance as you can. In Florida, each judge handles a motion for a continuance differently. As a general rule of thumb, always put the motion in writing and always try to get the state to agree to the continuance.

Motion for a Continuance | Technical Requirements & Suggestions

  • Must have certificate of good faith;
  • Must state good cause or facts unknown at time if the trial date has already been set;
  • Do not throw the other attorney under a bus or “cheap shot” opposing counsel because he/she does not agree to the continuance;
  • A procedural history is technically not necessary, but it is a really good idea.  Be sure to mention prior continuances and why those were granted;
  • Check with the judicial assistant to see if the judge requires a hearing and if there are any other division specific requirements.

The following are two samples of a Motion for a Continuance pursuant to Florida Rule of Criminal Procedure 3.190(g).

Agreed Motion for a Continuance

Download ( Agreed-Motion-for-Continuance-Criminal.pdf, PDF, 119KB)

Motion for a Continuance | Not Agreed or Not Known

Download ( Motion-for-Continuance-Criminal.pdf, PDF, 121KB)

Vehicle Immobilization for Florida DUI| Florida Statute 316.193(6)(a)

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.

Practice Point

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)

 

Violation of Due Process | Exclusionary Rule

Additional State Protections

When drafting a motion to suppress do not forget that states are typically permitted to enact laws that grant a defendant more protection than is afforded in the United States Constitution. In Michigan Department of State Police vs. Sitz, the United States Supreme Court granted certiorari jurisdiction and ruled that sobriety checkpoints were valid under the Fourth Amendment of the United States Constitution. On remand to the Michigan Supreme Court, the Michigan Supreme Court ruled that Michigan’s Constitution provided additional protections and that sobriety checkpoints were unconstitutional under the state constitution. A similar situation occurred in Florida after the United States Supreme Court ruled on the Moran vs. Burbine case. So even if there is a federal case on point, make sure that your state does not provide additional protections.

Moran vs. Burbaine

In 1986, the United States Supreme Court ruled that Mr. Burbaine knowingly and voluntarily waived his Fifth Amendment right to have a lawyer present during questioning. The facts of the case were as follows:

Mr. Burbaine was taken into custody by the police concerning a murder. Mr. Burbine’s sister contacted an attorney to represent her brother. The attorney contacted the police department who stated that Mr. Burbine would not be questioned until the following day. It is no surprise to find out that the police began questioning Mr. Burbaine regarding the murder less than 1 hour after they informed the attorney that the questioning would not take place until the next day. Mr. Burbaine was never informed by the police that his sister had retained an attorney for him and Mr. Burbaine waived his 5th Amendment rights. During the interrogation, Mr. Burbaine signed 3 separate statements confessing to the murder. His attorney’s moved to suppress the statements as illegally obtained in violation of Mr. Burbaine’s Fifth Amendment Rights guaranteed under the United State’s Constitution.

United States Supreme Court Holding: Neither the police conduct nor Mr. Burbaine’s ignorance of the fact that an attorney was hired to represent him and had been attempting to contact him rendered the statement’s given in violation of the Fifth Amendment. Mr. Burbaine’s Sixth Amendment right to counsel had not yet attached. Additionally, the court did not find a 14th Amendment Violation, although leaving room for a potential violation under more egregious facts.

The United States Supreme Court specifically stated that the various states may adopt different standards which have the effect of providing additional protections under state law.

Haliburton vs. State

The facts in Haliburton vs. State are substantially similar to the facts in Moran vs. Burbine. In Haliburton, the Florida Supreme Court held that Article I, Section 9 of the Florida Constitution required that the evidence in Haliburton be suppressed. The Florida Supreme Court focused on the dissenting opinion in the Burbine matter written by Justice Stevens. The main point in Justice Stevens dissent and the Haliburton opinion is “Police interference in the attorney-client relationship is the type of governmental misconduct on a matter of central importance to the administration of justice that the Due Process Clause prohibits………Just as the government cannot conceal from a suspect material and exculpatory evidence, so too the government cannot conceal from a suspect the material fact of his attorney’s communication.”

Public Link Provided By: Fastcase, Haliburton vs. State, 514 So.2d 1088(Fla. 1987)

Haliburton in a DUI Context

Appellate ruling coming soon.

Omnibus Motion to Suppress DUI| Form Motion to Suppress DUI

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)

No Probable Cause for Lane Weaving Violation | FL Stat 316.089

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.

Major Case(s):

Federal:
1) Whren v. United States, 517 U.S. 806, 809-10(1996)

State:
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)

Ambien Defense | DUI | Toxicologist Deposition

Deposition of Supervisor of Toxicology 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
Practice Note: In this case, we were asserting the ambien defense. Pay careful attention to pages 14 and 15 of the deposition where the expert talks about derivatizing a sample. In other words enhancing the signal in order to detect a substance that would not otherwise be detected. A urine test is only qualitative so enhancing the signal for a substance that is otherwise under detection thresholds could be an issue the state could exploit to create a positive from a sample that was initially negative.
Result: State reduced the charge to a reckless driving.
Provided by: Michael A. Dye
Website: Fort Lauderdale DUI Attorney

Deposition of State’s Expert Toxicologist

Download ( Wagner-Deposition.pdf, PDF, 1.31MB)

Ambien Defense DUI | Deposition of Toxicologist

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
Deposition:

Ambien Defense Deposition

Download ( Toxicologist-Deposition.pdf, PDF, 699KB)

Motion to Suppress – Intoxilyzer Malfunction

Motion to Suppress Breath Test Results
Jurisdiction: County Court, Eleventh Judicial Circuit, Miami-Dade County Florida
Location of Stop: North Miami Beach
Issues: Did the officer’s failure to follow the rules for breath testing set forth in the Florida Administrative Code require the suppression or exclusion of the result?
Notes: This was filed as a motion to suppress when it should have probably been filed as a motion in limine or motion to exclude. This was filed in 2007. I would caption the motion “Motion to Suppress or Motion to Exclude” if I had to write the motion again.

Download ( Motion-to-Suppress-Admin-Code.pdf, PDF, 195KB)

Avoiding a DUI Checkpoint

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?
Major Case(s):
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)