Criminal offenses such as DUIManslaughter almost always include a civil lawsuit seeking damages from the offenders insurance company. In many instances however, the maximum policy limits do not fully compensate the victim’s family. Sometimes the offender didn’t carry automobile insurance at all.
Establishing that restitution to the victim outweighs the need for a prison sentence
Under Florida Statute § 921.0026, the judge can consider during a motion for a downward departure that the need for payment of restitution to the victim outweighs the need for a prison sentence.
A defendant serving a mandatory prison sentence obviously will not be able to make restitution payments to the victim’s family. Where this is an issue, the victims loved ones may be willing to testify that a defendant would better serve them on probation where they can work and make amortized payments over the length of their probationary sentence.
Negotiate with the attorney representing the family
Discussing options with the civil attorney representing the victim’s family may provide an avenue for a criminal defense attorney to file a motion for downward departure and either avoid or reduce the time of incarceration sentence. At the very least effort should be made to communicate with counsel for the victims loved ones to determine if this may be a viable option.
For more information about this article contact attorney William Moore at 954-523-5333
NHTSA seeks lower DUI limit as part of it’s Zero Alcohol Impaired Driving Fatalities campaign
The National Highway traffic Safety Association is pushing to reduce the legal limit from .08 to .05 nationally over the next 10 years. The “Vision Zero” campaign seems to rival even MADD’s assault aimed at toughening drunk driving laws over the past few decades. Ironically Mother’s Against Drunk Driving has publicly refused to assist NHTSA in this regard. Currently only one state has passed the .05 BAC law, although it will not actually be implemented until December 2018. Other states have indicated a willingness to follow suit. Florida has not shown an interest in lowering its legal limit.
“We’re actually seeing some leniency over the past few years in South Florida when it comes to “Driving Under the Influence.” This leniency, born out of necessity, is the direct result of MADD’s success in directing any conceivable resource in our criminal justice system toward Impaired Driving, which happens to be an incredibly expensive offense to police. Even the Florida Department of Motor Vehicles has lightened their administrative rules over the past decade as they pertain to obtaining a hardship permit following an arrest. Requests for administrative review hearings had bogged down department’s ability to function throughout the state. Eventually the department just said “fine, you can drive for business purposes following an arrest without having to go through any “hard time” (time without any form of driving). It was a major change that favors the offender here in Florida.
South Florida Drunk Driving policing and prosecution is questionably inconsistent
An examination of the Tri-County area with respect to arresting and prosecuting impaired drivers raises some significant questions. At the same time that Miami-Dade and Palm Beach County were implementing diversion programs to deal with the sheer number of arrests, Broward County all but did away with the DUI task force and has seen less DUI arrests than ever. Broward County is the only of the tri-Counties to have no diversion program and despite its unexplainable decrease in apparent impaired driving offenders, its neighboring counties still continue to allow first offenders an opportunity to participate in a program another case dismissed. Diversion programs are frowned upon by groups such as MADD in that offenders know that they get one free bite at the apple and are not deterred from having a few drinks and getting behind the wheel.
It is estimated that .05 Legal Limit will be implemented Nationally within the next 10 years in that the federal government will likely deny road and highway funding to states that refuse to lower their blood alcohol content statutes. It is also claimed that a uniform national .05 limit will save 1,800 lives annually although just how these numbers were calculated is somewhat suspect considering all of the factors that could influence changes one way or another.
“Logic would dictate that the increasing popularity of rideshare services such as Uber and Lyft would naturally result in a decreased number of DUI related accidents. What we are seeing however is a radical inconsistency among major US cities with reference to Ridesharing and the number of impaired driving incidents.
Could it be that NHTSA’s Aggressive Zero DUI Fatalities campaign is designed to siphon credit from growing Rideshare popularity?
If you hit a parked car and are unable to find the owner, most people understand the law to require that the driver at fault leave a note with his or her contact information. Under Florida law, however, this isn’t quite enough as Florida statutes require that the accident be reported to the local police department.
Attorney William R. Moore also cautions that it is always a good idea to report a fender bender to the local police even where the other party does not wish to do so. We have seen many cases where the so-called victim agreed that the damage was nonexistent or so minor that an accident need not be reported only to find that they later contacted their insurance carrier and reported a hit-and-run.
Remember, if you are involved in an accident that does not involve injury, you must stop your vehicle at the nearest safe location. Information such as your name, address and registration number must be provided. Always contact law enforcement as well.
A driver’s decision whether or not to submit to the Intoxilyzer when under investigation for DUI in Florida may be different now than it was a few years ago.
Avoid giving prosecutors evidence needed to convict you
Evidence of impairment by alcohol obtained by a certified breast testing instruments such as the Intoxilyzer 8000 is powerful evidence that can be used by prosecutors to convict the defendant. Provided that you have never refused in the past, it may be advisable not to produce a chemical sample in light of the fact that as of 2013, persons arrested for DUI may receive an automatic hardship license by waving their formal review hearing. There is no longer a 90 day “no license” for those who refuse.
Do not refuse a second time
It is never advisable to refuse a second time if suspected of misdemeanor DUI as this is an independent and more severe criminal offense in Florida.
Obtaining a hardship license in Florida following an arrest for DUI used to require either 30 or 90 days of what was termed “hard time.” this term did not refer to incarceration rather to the amount of time that the Florida driver was prohibited from having any form of license whatsoever.
Under the previous administrative laws, every DUI, the offender would be forced to endure either one month or three months of absolutely no driving at all. The penalties for driving on a DUI suspension in Broward County, Florida are severe as a matter of procedure. Judges issue at least 15 to 30 days in the Broward County Jail as a sentence for anyone found guilty of committing such an offense.
Obtaining a DUI Hardship License
DUI offenders may now easily obtain a hardship license by waving their right to a formal review hearing. According to Broward County criminal defense attorney William R. Moore, waving your right to this formal hearing is much more advisable than it was in years past. the days of overturning a licensor suspension due to an officers non-appearance are over. Currently the Department of Motor Vehicles gives the arresting officer for an unlimited amount of chances to come in and perfect a DUI suspension.
DUI arrests are fewer than ever claims Fort LauderdaleDUI Defense Attorney Bill Direnzo. This isn’t due to fewer impaired drivers but rather the reduction of enforcement officers by BSO.
See the recent episode of “State of Arrest” where Broward County DUI task force is discussed.
DUI Task for dwindles to fewer than 4 officers
The number of DUI Task force enforcement police officers in the jurisdiction of Broward County has been reduced to 4 officers, possibly even fewer according to Criminal Defense Layer William Moore. This is a fraction of how many special DUI trained investigators are employed by other jurisdictions of similar size and population. The few police investigators assigned to Broward’s DUI task force appear to be new officers as most of the veteran 20 to 30 year special driving unit detectives have retired.
DUI investigations take longer than the investigation of other offenses
The time that it takes to investigate, arrest and book a suspect who has been accused of driving under the influence far exceeds the length of time generally needed to investigate Domestic Violence, Possession of Drugs, Shoplifiting or even violent crimes claimed Attorney Moore.
Despite being a mere misdemeanor, Driving Under the Influence investigations require highly trained officers less they risk being thrown out of court. Skilled DUI lawyers have a arsenal of legal challenges that can cause a DUI to get tossed out of court due to the slightest deviation from the law that governs the manner in which evidence is to be collected in such criminal offenses.
Questions about this article or the State of Arrest show should be directed to:
The William R. Moore Criminal Defense Law Firm, 1 Financial Plaza, Fort Lauderdale Fl 33394, or by calling 954-523-5333.
The first form of an automobile “black box” was first introduced by General Motors in 1990. Although somewhat rudimentary in comparison to today’s event data recorders, the DERM system served a very similar function and paved the way to the widespread use of the ever-evolving device used today. Use of the device was so successful when first introduced that crash impact recorders were approved just three years later by the United States Auto Club for use in the 1993 Indianapolis 500.
Since that time EDRs had become standard equipment on production automobiles which has led to much debate regarding use of the evidence obtained by them in Florida criminal cases. Arguments with regard to the accuracy of data obtained as well as privacy issues have fallen in favor of EDR devices on both accounts.
In Florida, evidence obtained by an automobile’s black box is considered widely accepted in well-established technology. Although both the device and the data recorded by it are considered property of the vehicle owner, the state of Florida provides no significant privacy protection when it comes to criminal prosecution according to criminal defense attorneys. Both prosecutors and the courts have found that an individual simply does not have the same expectation of privacy with regard to blackbox data as opposed to the automobile in general.
Criminal investigators have a duty to preserve EDR evidence
When a police officer reconstructs a collision with the intent of utilizing the results of the investigation or furtherance of criminal prosecution than that officer should preserve any event data recorder information. Although most commonly used to establish the speed at which a DUImanslaughter defendant was driving at the time of the crash, EDRs also record information specific to the date and time of the collision, depth of the accelerator pedal, steering angle, breaking pattern, throttle position, turn signal operation, seatbelt status, airbag deployment status and the force of impact. The prosecution’s use of this information has not only been used successfully by the State Attorney’s Office in drunk driving cases involving significant injury or death but also in hit and run cases involving a fatality, culpable vehicular homicide and premeditated murder cases (where EDR data discredited a defendant account of how the victim was killed).
Black box evidence can significantly impact either the prosecutor’s or defense lawyer’s case
According to William R. Moore, a criminal defense attorney in Fort Lauderdale Florida, blackbox evidence is extremely powerful when used in conjunction with expert traffic crash investigators. The corroborative evidence can be quite significant when it comes to either bolstering or discrediting either the prosecutor or defense attorney’s expert witness. Occasionally a DUI manslaughter or vehicular homicide case will involve an automobile that became airborne prior to the collision resulting in very little tire tread evidence which is crucial to an accurate investigation. In such cases, event data recorder information can be considered paramount.
When asked how he felt about Florida’s denying right to privacy and reliability claims, attorney Moore explained that we have seen that same thing for years in DUI cases using CMI Intoxilyzers. A computer spits out data and prosecutors use it as their primary basis to prove their case beyond into the exclusion of any and all reasonable doubt. It’s kind of scary.
Questions about the use of automobile black box data evidence in Florida criminal cases, contact lawyer William R. Moore directly by calling 954-523-5333 or visiting One Financial Plaza, Fort Lauderdale, FL 33394.
There is an abundance of conflicting information out there when it comes to immediately obtaining a work purposes driving permit from the Florida Department of Motor Vehicles following an arrest for DUI. Until changes in the law went into effect in 2013, persons arrested for driving under the influence would have to wait either 30 days or 90 days to even apply for a temporary driver license. This created an unimaginable hardship for people who needed to drive to and from work and suddenly found themselves without an ability to do so. Additionally, prior to the changes, it was always advisable to apply for a formal review hearing where your retained DUI defense attorney would stand a very good chance of having your license reinstated due to the fact that officers often failed to appear even when subpoenaed. South Florida police officers would routinely cite scheduling conflicts as a basis if they even responded at all.
Much as changed in the South Florida DUI defense arena in the past few years. In the Tri-County area, Broward is the only jurisdiction to not yet adopt first-time offender diversionary programs for individuals arrested for DUI. Additionally, in specific to this article is the fact that in most cases filing for a formal administrative review hearing with the Department of Motor Vehicles seeking to overturn a driver license suspension without a solid reason for doing so is the less attractive option.
For more on the current state of how to obtain DUI hardship license following an arrest is available by listening to criminal defense attorney William R. Moore’s recent iTunes and Googleplay podcast on the issue.
The reserving of an opening statement in first offender DUI trials cannot be overstated when it comes to tactical advantages enjoyed by the simple, yet often overlooked strategical option.
Many assistant state attorney’s charged with prosecuting first-time DUI offenders simply lack the experience required to anticipate a defense attorney’s reserving of an opening statement. This often results in a flustered prosecution of the claims asserted by the state. Furthermore, by reserving opening, a DUI defense attorney puts a prosecutor on center stage from the onset and effectively prohibits them from catching their breath until the conclusion of their case in chief.
This requires a DUI prosecutor to present key witnesses earlier than expected. Crucial time that may mean the difference between a voluntary dismissal when pressed by a frustrated County Court judge.
More importantly is the fact that by reserving an opening statement, defense counsel learns the entirety of the prosecution’s case and is able to use the evidence presented in the state’s case in chief in conjunction with what evidence is anticipated to be provided by the testifying defendant. The result is an opening statement that mirrors argument which under the circumstances is legally permissible when framed correctly.
The issue of recency was a heavily litigated subject years ago resulting in the defenses loss of the “sandwich” in closing argument. By reserving an opening statement a bifurcated closing is practically pointless.
In this State of Arrest Podcast learn a few of the most beneficial tactical advantages enjoyed by DUI defense attorneys who choose not to follow the traditional criminal trial framework when it comes to defending allegations in a jury trial setting.
Cell phones, electronic surveillance and quick access to banking records are but a few of the resources immediately available to officers investigating hit-and-run crimes. A recent article by the Sun Sentinel in Broward County pointed out this fact following a recent arrest for Hit and Run.
Broward Police Officers had several solid identifications of the perpetrator almost immediately. Intersection cameras are operational even if they are no longer being used for red light running purposes. Most of them placed specifically for surveillance purposes. Gas station, workplace and even surveillance is quickly accessible as well. Cell phone records not only triangulate affording time and location relative to the incident but also to individuals who may have been called immediately after the alleged incident.
Onboard automobile computer data via a black box also reveals much about what was taking place with the vehicle before and after an alleged accident.