A few years ago Florida enacted a statute that made it a crime for a defendant to refuse providing a breath sample in a DUI investigation where it can be proven that he or she had refused in the past. The second refusal charge regularly accompanies an underlying impaired driving charge and can be described as a common filing practice by Broward County State Attorneys. Second refusal charges are always filed under the same action as the DUI.
From a defense standpoint, the addition of a second refusal count to a primary DUI action has a significant negative impact should counsel proceed forward in defending both charges in the same trial. Jurors sitting in judgment will be made aware that the defendant has at least been under suspicion of DUI by police officers in the past upon being read the second refusal count. Florida law is well-established with regard to prior acts and their prejudicial effect on a criminal defendant. DUI defense attorneys should be motioning the court to sever DUI counts from second refusal counts every time.
Motion for separate jury trials
A criminal defense attorney may motion the court to:
• Separate unrelated charges and counts
• Co-Defendants (and/or)
• Enhancing counts or offenses
Separating the trials of criminal codefendants
The court should be petitioned to separate codefendants where one of the parties has made a statement either incriminating themselves or the codefendant. Florida criminal law does not allow for the statements of co-conspirators to be used against another criminal defendant and consequently can be used as the basis to separate.
Motioning at the court to separate unrelated charges
Prosecuting attorneys in Broward County occasionally charge one defendant with several crimes that occurred at different times and otherwise seem unrelated. Defense attorneys should quickly respond by moving to sever. There are very few exceptions to this rule.
Separating a primary offense from accompanying enhancing count
Motions to sever should always be made where an accused is charged with an offense that requires the proving of a prior illegal act by the state. Possession of a firearm by a convicted felon requires the prosecutor to prove a prior conviction, just as Felony DUI requires the prosecutor to prove at least two prior convictions. Never allow the prosecutor to argue both sides in front of a single jury. Breaking cases like this apart so that they may be litigated in front of separate triers of fact significantly increases your likelihood of success from a criminal defense standpoint.