United States Department of Justice has recently reported on the use of Taser equipment by police officers in the United States. Most of the findings in this report were based on the reports of law enforcement agencies, which included both Broward County and Miami-Dade County departments.
The report indicated that injuries to citizens as opposed to police officers indicated a discrepancy of up to 300%. Analytical data compiled by police officers using Taser equipment seem to indicate that most injuries used in calculating the data involved cuts and bruises. The seriousness of injuries overall was based on a determination compiled primarily by police departments.
Attorney William Moore in Broward County Florida explains that the fourth amendment forbids unreasonable searches and seizures and use of Tasers clearly fall under the seizure category. Unfortunately, what we find is that the most egregious cases involving Taser misuse is investigated by a police department’s internal affairs unit.
Use of Tasers compared to pepper spray.
The Department of Justice seems to analogize in contrast the use of Taser equipment with the use of pepper spray as a means of subduing a criminal suspect. The department primarily analogizes early use of pepper spray. Human rights groups such as Amnesty International criticized law enforcement’s use of pepper spray in the 1990s which seems to be portrayed as having no merit according to the department. Specifically the Department of Justice notes that numerous reports establish that violence towards officers rapidly declined in jurisdictions that use pepper spray. In essence, criticism of the weapon that preempted Tasers by Amnesty International was undermined.
William Moore, a criminal defense attorney in Fort Lauderdale Florida notes that it is peculiar that the department failed to distinguish between the various types of spray irritants. There are several different forms of irritant spray that were utilized by law enforcement throughout the 90s. Some had a much more significant danger factor than others. The fact is, that suspects have died as a result of suffocation or adverse effects following being sprayed.
South Florida police departments such as Miami-Dade which employs over 3000 officers is one of the largest in the United States. Despite that jurisdictions having a high number of suspects reported to have resisted per capita, Miami-Dade has never issued pepper spray to their police officers. This raises some interesting questions as to the reasoning according to Attorney Moore. In other words, South Florida police departments may have considered the dangers associated with the use of such a weapon.
I don’t think that a proper analogy can be made between electric Tasers and pepper spray. I am disheartened that the comparison was included in the Department of Justices report for no other reason than to say “the same critics used to condemn the harmless use of pepper spray.”
More information about policing weapons in the age of technology can be obtained by contacting attorney William Moore in Broward County. The William Moore criminal defense law firm is located at One Financial Plaza, Fort Lauderdale, FL 33394. William Moore can be emailed at WRdefense@gmail.com or by calling 954-523-5333.
The use of Tasers or stun guns by police officers in Florida has been the subject of much debate since their inception.
On the one hand, people in favor of the device argue that it deters individuals suspected of committing a crime from resisting officers and ultimately leads to less injury by the suspect.
Those against the use of Tasers in Florida point out the numerous injuries and deaths resulting from it’s use.
Once again in Fort Lauderdale, we have another case of an individual who was severely injured after being tasered. In this most recent case in which three a would-be burglary suspect who is alleged to have stolen no more than $75 from a laundromat and was otherwise obeying officer demands according to Fort Lauderdale criminal defense attorney William Moore. In fact by witnesses on the scene, the suspect had returned to the scene of the crime in response to officer direction. For some reason he was stunned which resulted in his being hospitalized in critical condition.
This is but one of countless cases in Florida according to Moore.
It wasn’t long ago that police chief Michael Mann resign following officers under his direction and control used a stun gun that resulted in the death of an individual suspected of committing a crime. Additionally criticism also ignited following an earlier case in Florida whereby law enforcement officers tasered an elderly gentleman who is not resisting arrest.
More recently was a case involving a Coconut Creek man who was tasered to death. Calvin read was allegedly tasered up to four times by officers. Adding to public outrage was the fact that officers involved were reluctant to reveal facts surrounding the suspect’s death.
Criminal lawyer William Moore, an attorney who is practiced in Fort Lauderdale for nearly 20 years poses the question as to whether or not the use of Tasers is to be considered reasonable as opposed to and excessive force in violation of our constitutional rights. Ramifications to police officers who unjustifiably use tasers rarely result in a finding of excessive force. Police officers are exonerated criminally and professionally in most cases. Furthermore, any civil remedy afforded by law seems to be nonexistent based on court rulings.
Civil liability for excessive force by use of Tasers.
What we need to consider is whether or not the use of a device that is viewed by police officers maybe more frequently used by trigger-happy officers who believe that such force is allowed by law. The fact is that where an officer believes that he will not be prosecuted were found to have committed wrongdoing when using such a dangerous weapon may become somewhat trigger-happy.
Courts are supposed to consider factors in evaluating whether a police officer’s use of Taser equipment was warranted and otherwise justified. The reasonableness of an officer’s actions are supposed to be adequately assessed. A determination is supposed to be made in accordance with suppose it strict guidelines which are:
The severity of a suspect’s crime, whether that suspect post an apparent threat to law enforcement or civilians and finally whether or not the criminal suspect attempted to resist apprehension.
Why then in so many cases do we see the split-second and incorrect snap decision of officers resulting in the tasering of a suspect. More importantly, why does it seem that only severe cases or even outrageous cases result in retribution to the officers that used a stun gun unreasonably and without justification.
According to attorney William R. Moore the courts are supposed to conduct a thorough investigation when evaluating whether or not the use of Taser equipment was justified.
The severity of crime is quite an important factor however lacks effectiveness when it is viewed in a manner that can be considered subjective to the officer (or what that officer may have thought). The fact is that a crime’s severity is often dismissed where a suspect resists an officer, is hostile or even argumentative. A determination as to justification is diluted where the standard is reduced to considering not the severity of the crime but instead in finding excessive force only in circumstances where the crime alleged is so minor that it wouldn’t have even warranted a citation.
William Moore claims that this doesn’t make sense as an act that doesn’t warrant a citation isn’t criminal.
Instead of evaluating the severity of an alleged criminal act courts have been criticized for reducing the criteria to finding excessive force only in circumstances where police officers were not even attempting to arrest a criminal suspect or whether based on the subjective belief of an officer that a criminal suspect MAY have posed a threat.
The use of Tasers seems to be supported by both lawmakers in the courts that interpret those laws as a necessary device rather than dangerous weapon and have effectively changed the criteria required in determining whether or not police officers used excessive force when deploying Taser equipment threat posed by criminal suspect.
The second criteria in determining the reasonableness or justification of Taser use by law enforcement in criminal investigations is a full evaluation of the threat posed by the Tasered suspect/victim.
Attorney William R. Moore claims that the second prong has all but been evaporated by the courts.
Broward County courts have found that a suspect’s refusal to show hands when ordered to do so was justification for deploying Tasers. Furthermore stun guns have been found reasonable and justified when the suspect was stopped for a traffic infraction.
Actively resisting law enforcement officers.
The application of this prong is considered laughable by criminal defense attorneys. This is because many courts, rather than making a determination as to whether or not a suspect resisted with violence have shown emphatically that the use of Taser equipment on a suspect is reasonable and justified where the individual has already been subdued, handcuffed, has been absolutely compliant with officer demands or unconscious.
According to attorney Moore, application of the criteria gets even worse. This is because police officers have been found to have acted reasonably and lawfully despite repeatedly tasering individual whereby that suspect was completely subdued yet feared of as being able to somehow pose a threat.
More information about the use of tasers by police officers in Florida can be found by viewing William Moore’s recent lecture on Taser lawsuits, statistics and governmental reports.
The William Moore criminal defense law firm is located in Broward County Florida. Our Fort Lauderdale office is located at One Financial Plaza, Fort Lauderdale, FL 33394.
William Moore can be reached for comment by calling 954-523-5333.
I am attorney William R. Moore and this week in Broward County crime news we saw violent crime along with the typical theft cases specific to burglary in our community. First up according to the Broward County Sun Sentinel we have a sad story involving a woman who was beaten to death and then left in her home whereafter the assailant tried to cover up the crime by attempting to burn down the house with her body inside. What’s more upsetting about this violent crime is that at the time that the arson was attempted the victim was not yet dead.
Assailant make well Castano Herrera is alleged to have lost his job and been put out on the street when he was given shelter by a friend and coworker. Later Mr. Herrera was accused of stealing from that same coworker.
According to reports, the victim’s sister learned of the thefts and demanded that he be removed from her siblings home which resulted in increased tension between the defendant Herrera and the sister. Broward County Sheriff’s deputies believe that it was this escalated feud between the two that led to Herrera’s beating victim Diaz. Ms. Diaz died of blunt force trauma wounds in hospital three days after being discovered.
Evidence was discovered tending to link the defendant to the crimes. Specifically items used to beat the victim along with cleaning items and chemicals. Defendant Herrera is being held on no bond in the Broward County Jail.
Additional crime news involves burglaries in Fort Lauderdale where jewelry was taken from a residence. Suspects were alleged to have broken into one home were items were taken. The assailants apparently rode bicycles in committing the crime.
Images of the assailants were recorded on a home security system according to attorney William Ryan Moore the suspects have not yet been apprehended however clear images depicting the identities of same was recorded via video surveillance.
Back in the early 1990’s while studying law, there was kind of a joke going around among the 3-L’s about everyone collectively agreeing to back off the strenuous competition that seems ever prevalent early on in this profession. I personally loved the rivalry and the comradery. Like most, I never bought into the flawed reasoning of the handful of students that could some how ignore the pressure. I will never forget being told once by a fellow student (and roommate) that problem with setting the bar too high is that success means an even tougher second season. The next challenge will have to be even more monumental less you appear to be loosing your touch.
In order to enjoy in the thrill of victory a second time you need… well… the victory.
I wonder where that guy is now?
He certainly isn’t with the Broward sheriff’s Office. These guys are truly a testament to over achievement. I am certain that our deputies would have been a motivating force even to him. Take for instance the recent FDLE statistics that once again report that Broward County crime is at an all time low.
Actually, crime is lover than it has been in over 44 years apparently. Now that is a heck of a victory. Didn’t they say this exact thing last May?
I will have to look up the article.
Yep BSO did it again!
To only have heard the rationalization that otherwize convinced the higher-ups at the station that implementation of a massive sting operation was absolutely necessary to maintain a firm grip on our Broward County crime stronghold. All of this went full scale only hours after news of the almost nonexistent crime in our town.
It’s like a marvel comic.
BSO Lt. Steve Feeley said violent crime is down in Broward County but BSO’s efforts to protect the community is as strong as ever.
Investigators said arrests they made during the one-day sweep may also pay dividends by helping to solve other crimes.
“Sometimes we can develop leads that help to clear other cases and crimes that maybe we don’t have good leads on,” said BSO Det. Kevin Viera.
Those arrested were taken to be checked out by a nurse before being forwarded to the main jail.
It’s when the street level (mostly homeless) drug users and prostitutes could easily be approached and questioned about more sinister crimes that may be taking place in our County.
You can never be too safe right?
No apparent lead jackpot was uncovered by detectives or the nurse that was “checking those arrested out.” This of-course led to the planning and implementation of another sting operation over the following two days.
Officials have boasted the lowest crime rate in Broward County in 44 years. According to the FDLE, its getting even lower. According to the departments latest report, crime has declined in Broward County and additional 7.5 percent from last yeart. This has led many criminal defense lawyers to ask just how bad crime in Florida really was four and a half centuries ago.
Types of crime at a reported all time low are violent offenses and sex-crimes. Like a bad grade on an otherwise straight A report card is the undeniable fact, however that there were about 70 plus murders in Broward County over the past year and a half.
Only 70? …awesome.
-I am not sure if that is to be considered low. The article in the Sun Sentinel seemed to be boasting. Personally, I am skeptical of the numbers having practiced criminal defense almost daily in the Broward County Courthouse over the last 18 years. There seemed to be a large number of violent offenders being arraigned in the felony courts on a regular basis from what I can remember. I should know, I represented some of them.
What a surprise. I guess if the statistics are even remotely accurate, our Broward County residents must have finally gotten the message. That being; Broward is tough on crime.
As investigations (both public and private) of the Broward Crime Lab continue, local criminal defense attorneys are challenging drug cases in droves.
The first step according to William Moore, a drug possession defense lawyer, is to independently weigh drugs in their respective cases, obviously. While some lawyers are reserving aggressive investigation of drug offenses offenses to those which involved suspected chemist MacDonald, most agree that all drug handling and testing conducted by BSO should be considered suspect. Moore agrees that the latter is the better practice.
Our faith in the Broward Crime Lab has been compromised. According to Attorney William Moore, this is further aggravated by investigations that fall short of those of independent entities such as New Times Magazine. A staple news source that has focused on uncovering local scandals in Broward County for decades.
Recent Investigation of Broward County Crime Lab Conducted by New Times Magazine
Though the broad outlines of the scandal at the Broward crime lab have been made public — two top staff members have resigned, and an internal affairs investigation is underway — New Times has learned it is likely more far-reaching than previously thought. An audit expected later this year is likely to show that drugs are missing in many more cases.
After reviewing hundreds of pages of court documents and police reports, the newspaper has found problems in everything from street-level drug busts to large-scale probes of heavy movers. Among them are Roberts’ case and several others, including:
• The bust of a dealer with 363 pills that were field-tested as positive for MDMA in 2012, only to come up negative in the lab.
• A $60,000 Fort Lauderdale reverse sting conducted in 2012 in which cocaine was later found to be missing.
• The 2013 seizure, after a SWAT standoff, of marijuana that was listed at a different weight in police reports and lab analysis.
The common factor: All the drugs landed on the desk of forensic chemist Kelli McDonald. She is still employed at the Broward Sheriff’s Office but was recently transferred and could not be reached for comment. Her last known annual salary was $85,800 in 2012.
“There seem to be multiple manners in which she has engaged in misconduct,” says Gordon Weekes, a chief assistant with the Broward Public Defender’s Office. “It creates an issue because it erodes the confidence of the entire criminal justice system.”
The Broward lab hired its first chemist to do drug testing in the late 1960s. During the ’70s, the county established six laboratories that were funded in part by the state. Today, there are five units — chemistry, DNA, evidence intake, latent print, and firearms — and a $4.7 million annual budget. But the workload is considerable for the lab’s 37-person staff, especially considering demographics. According to a 2010 presentation, Broward’s drug unit has one analyst for every 319,925 county residents. In Palm Beach County, each analyst serves 253,290 residents; in Miami Dade, the ratio is one to 238,717.
There is a serious danger in overworking crime lab staff. Recent history has shown that the more law enforcement relies on science for convictions, the more vulnerable the system becomes to bad acts by the folks in lab coats.
The State of Florida is currently reviewing thousands of cases worked by technician Joseph Graves. In February, the former Florida Department of Law Enforcement employee was arrested for allegedly switching out the prescription pain pills he tested at a Pensacola crime laboratory with over-the-counter substitutes. Since he was hired in 2005, Graves had worked more than 2,600 cases for FDLE involving 35 counties across the state.
McDonald was hired at the Broward Sheriff’s lab in 2006 after spending three years as a tech for the Palm Beach County Sheriff’s Office. She had earned a bachelor’s degree in forensic science from the University of Central Florida in 2000 and a master’s degree in biomedical science from Florida Atlantic University in 2005. In her first five years in Broward, McDonald received positive marks in her reviews and glowing responses from colleagues. She has analyzed drugs in about 5,900 cases from 2006 to this past February, when she was suspended.
But in February 2012, 0.4 grams of crack cocaine — about the weight of a pencil eraser — went missing from the lab. The material was part of a case McDonald was working, and the tech was the last person to have signed the material out of the property vault. McDonald denied any knowledge of the missing drugs. Lab staff thoroughly searched her workstation and the vault but couldn’t find a trace of the absent evidence.
The case of the missing crack was referred to the Broward Sheriff’s Division of Internal Affairs. Investigators couldn’t turn up an explanation. As the last person to handle the material, McDonald was found to have failed to meet BSO standards. The internal-affairs case was closed in October 2012; McDonald was given the recommended discipline of “counseling and policy review” — neither of which she received, according to her own statements in a later deposition.
But the episode put the Broward Public Defender’s Office on notice. When McDonald’s name came up in a case involving cocaine seized in a Hallandale Beach house raid in 2013, the office hired an outside drug tester. McDonald’s original crime laboratory analysis noted the presence of 16.3 grams of cocaine. The public defender’s expert found 10.98 grams.
The discrepancy was brought to the attention of the lab’s manager, Dr. James Ongley; he ordered a random reweighing of 20 cases McDonald worked in 2012. Nineteen checked out. In one case, McDonald had originally recorded the presence of 1,012.6 grams of cocaine. The reweigh totaled 998.3 grams. Ongley reported the discrepancy to BSO’s Internal Affairs Unit, and a new investigation was opened.
McDonald was reassigned to a desk job in February 2014. A month later, Ongley and McDonald’s former supervisor, Randy Hilliard, resigned.
BSO is currently reviewing all 5,900 cases McDonald worked between 2006 and 2014. And as the paper trail New Times uncovered shows, the weight discrepancies go far beyond a few missing grams of crack.
In July 2010, after Roberts was handcuffed at her friend’s condo in North Lauderdale, BSO deputies tore into the UPS box. Inside they found “approximately 38 lbs of marijuana” wrapped in green cellophane, records show.
Later, Roberts admitted that she had planned to hide the pot in a hollowed-out space under the hood of her silver 2006 Land Rover. She was going to deliver the drugs to a third party, whom she refused to name.
But as the defendant was being charged with trafficking, the amount of marijuana changed. In a supplemental report prepared on July 19, a detective wrote that BSO had found “approximately 31 pounds (14.06 kilograms) of suspect marijuana” in the UPS box. Nine days later, when McDonald weighed the drugs at the crime laboratory, she recorded only 28.1 pounds.
Although Roberts was originally charged with felony trafficking, prosecutors were forced to retreat, and she pleaded no contest to a possession charge this past June. She got a single day of probation.
A second controversial case began on June 28, 2012, when Fort Lauderdale Police detectives fitted out a criminal informant for a sting on a suspected drug dealer named Andres Reyes at SW Fifth Street and 18th Avenue. As officers monitored the scene, an informant gave Reyes money for a black leather pouch containing pills.
Police then arrested Reyes and field-tested the 363 pills found in the pouch. They came back positive for MDMA.
But on July 18, the same drugs were tested by McDonald at the crime laboratory. She found “no controlled substance.” In a deposition with the public defender, the Fort Lauderdale detective who conducted the field-test reported he was “100 percent” sure the test at the scene showed MDMA. He also recalled — but couldn’t say for sure — that the drugs taken from Reyes were compressed tablets, like aspirin. According to pictures taken by the public defender, the pills in the lab’s vault under Reyes’ case number are capsules.
Prosecutors dropped the MDMA charge against Reyes, but a possession charge is pending for a joint he had in his pocket.
A third case was initiated a month later, on August 15, when undercover Fort Lauderdale Police detectives brought two kilos of real cocaine to a meeting with Juan Alberto Rodriguez, Frank Osme, Patrick Duplessy, and Luciana Parham. The buyers brought $60,000.
After the four paid the cops and were arrested, the two kilos of bait were submitted to the crime lab, where McDonald tested and weighed one of the bricks, noting 930.7 grams. As the case ground through the legal system, the public defender hired an outside analyst to reweigh the cocaine. This time, there were 924.78 grams.
Rodriguez and one of his codefendants pleaded no contest to cocaine trafficking and conspiracy in late July. Their sentencing date is scheduled for September. Two additional defendants pleaded guilty in 2012 but have yet to be sentenced.
Perhaps most interesting, though, is the case of Yellow Cab driver Wilner Telcius, who was trying to collect a $6 fare from drunk passenger Joel Troxell on August 4, 2013, when things got weird. Troxell declined to pay, then waved around a .357 magnum, and Telcius called the cops. After a standoff including a SWAT team, cops found “76.2 grams of… cannabis in (2) plastic bags.”
After Troxell was charged (the case is ongoing), McDonald tested the drugs on August 8 and found only 55.6 grams.
BSO is still investigating McDonald and declined to comment on these cases.
Prosecutor Jeff Marcus says his office has retested drugs in cases as they go to trial. “We haven’t been dismissing cases,” he says. “[But] the crime lab is down a chemist, and they’ve been swamped with all their work.”
At the Public Defender’s Office, however, attorneys continue to comb through cases McDonald worked. Says chief assistant Weekes: “When you have a chemist that is engaging in chronic misconduct, it becomes an issue of confidence in a fair trial.”
For updates on the ongoing criminal investigation and projected costs to the State of Florida may be obtained by contacting Attorney William Moore in Broward County.
A motorcyclist involved in an accident on Pines Boulevard in Broward County is believed to be the victim of a hit and run according to the Sun-Sentinel.
Officers with the Broward Sheriff’s Office located a white, Mercedes-Benz automobile with extensive front-end damage in the parking lot of the nearby Heron Pond neighborhood following a witness account that a driver “left the motorcyclist for dead” claims defense lawyer William Moore.
The Sun Sentinel reports that Broward County veteran BSO Deputy, Eduardo Mesa, is in hot water these days. Mesa is accused of pilfering prescription drugs from a dead man’s belongings. The Sheriff’s office has released details of the event explaining that the charges Mesa faces are followed by the discovery of a bottle of prescription pills found in his patrol car this past July. The pills were prescribed to a man whose body was found, on the railroad tracks in Pompano Beach this past January.
According to investigators, Mesa was one of the police officers on duty responding to a pedestrian whom had been fatally struck by a train.
At the fatal crash scene, a homicide detective states specifically seeing a prescription bottle containing hydrocodone with the victim’s name. According to the sheriff’s office, during the train track fatality, Mesa was assigned to take custody of the deceased mans personal belongings including; clothing, identification and several prescription medications.
The following day Mesa submitted his written report, which investigators noticed hydrocodone and Klonopin were not listed.
A little more then a week later, following the written report, a homicide detective recorded a phone discussion with Mesa. During this record conversation the detective requested Mesa’s official incident report including the man’s belongings. It was then that Eduardo Mesa communicated that he had thrown everything into a dumpster, except the prescription medication. Contradicting Mesa’s formal written report, which made no reference to the prescription drugs. Later detectives confirmed that the prescription drugs were not submitted to the BSO Crime Lab.
In July, a search warrant was granted for public corruption detectives to search Mesa’s marked patrol vehicle. It was during this search that investigators found the victims labeled prescription bottle containing hydrocodone. According to Broward County sheriff’s office, investigators also discovered 26 alprazolam (XanaX) pills, however the Klonopin was not found.
In the arrest affidavit, Detective Joshua Webb states “…The same hydrocodone stolen from the scene was still in [Mesa’s] possession approximately six months later.” Webb also states “Probable cause exists to believe that [Mesa] intentionally falsified an official police report and inventory of the victim’s property to attempt to hide the fact that he stole hydrocodone from the victim’s belongings…”
Eduardo Mesa, employed by the sheriff’s office since 1998, was suspended without pay and taken into custody and then booked at the main Broward jail Tuesday. He is facing criminal charges including; armed trafficking in hydrocodone, possession of alprazolam, grand theft of a controlled substance, tampering with evidence and official misconduct/falsifying public records. The weight of the hydrocodone found, is approximately 19grams, which under Florida law constitutes as drug trafficking. Penalties for drug trafficking in the Broward County carry some of the most sever consequences including; a mandatory prison sentence. During the incident Mesa’s was armed when he stole the prescription medication resulting in an additional charged of armed trafficking. For more information about drug possession and drug trafficking penalties, you may contactcriminal defense attorney William Moore in Broward County.
1 Financial Plaza Suite 2500
Fort Lauderdale Florida
Broward County Circuit Court Judge John Hurley is preceding magistrate judge for Mesa’s first appearance in court. Due to the fact that he was armed when he allegedly possessed the drugs, prosecutors requested the accused be held without bond for the charges of armed trafficking. However, Judge Hurley questioned the facts giving rise to the arrest finding the affidavit did not point to enough evidence proving Mesa should be held without bond. This resulted in the judge granting the bond.
On Thursday, September 4 2014, Sun Sentinel Broward Criminal news released an article stating that Mesa had been released.. According to Mesa’s attorney, the family posted the required $79,000 by putting their home as collateral. Sun Sentinel quotes drug attorney Alfero questioning the allegations. The family’s attorney has stated;
“I don’t see it as any kind of [criminal] intent if, in fact, the bottle [allegedly] found in his car in July has been sitting there for seven months,” he said. “It’s a little bit hard to understand or comprehend.”- Eduardo Mesa’s Attorney Tony Alfero
If found guilty; these charges will have a drastic effect on not only Mesa’s employment, reputation but also his freedom.
The definition of drug trafficking Under Florida Law is stated as the intentional to sale, purchase, manufacture, delivery, possession, or transportation into Florida of a “trafficking amount” of drugs. Minimum-Mandatory Penalties of Drug trafficking Under Florida Law Statue 893. This includes a mandatory prison sentence and legal fines for trafficking.
Since Mesa was found with approximately 19grams of Hydrocodone he could face a mandatory minimum sentence of 15 years prison and $50,000 in fines. However, the fact that the accused was armed when he allegedly stole the prescription drugs could possibly make his sentence more sever, resulting in the possibility of life imprisonment.
In Florida, a motorist suspected and investigated for the crime of driving under the influence may be surprised to find that they are not given an opportunity to dispel the DUI investigators suspicions by submitting to an on-site breathalyzer test.
Broward County DUI Task Force does not use on site breath testing units.
Florida DUI law requires an arrest before a suspect is requested to submit to chemical testing and provide either a breath or urine sample depending on the facts of the case.
Intoxilyzer 8000 for Chemical Testing in DUI Investigation
In Broward County Florida, DUI task force has employed the use of CMI’s Intoxilyzer 8000 for several years. This sophisticated piece of equipment is regularly challenged by DUI defense attorneys to the inherent unfair and unconstitutional nature of its overall function in our criminal justice system. When maintained and calibrated properly the Intoxilyzer 8000 can accurately measure a person’s breath alcohol content. However, misuse by law enforcement in conjunction with the machines effectively proving an element of the crime of DUI.
Unconstitutional Nature of Florida DUI Prosecution
The fundamental principle of our criminal justice system is that the prosecutor be required to prove each and every element of a crime beyond into the exclusion of any and all reasonable doubt. There are no exceptions provided under the laws which we have all shared for over 200 years. Nonetheless, when Intoxilyzer’s report indicating that a DUI suspect blew a .08 or above is enough for them to find that the offender was under the influence to the extent that his or her normal faculties were impaired.
Recent changes in the manner in which the Florida Department of Motor Vehicles handles DUI investigations specific to license suspension has certainly changed the way that first-time offenders choose to either participate or not anticipate in a DUI investigation of which he or she is the subject.
The one question asked so frequently of veteran DUI defense attorneys, is now more easily answered. I’m speaking of course as to whether or not subject of a DUI investigation should participate in chemical testing should they have never been arrested for driving under the influence in the past.
To blow or not to blow…
The ramifications for refusal to submit to a breath test or first time DUI suspects are far less than in years prior according to DUI lawyers in Florida. Some may disagree, however, when you look at DUI defense and prosecution in its entirety, coupled with new administrative procedure implemented by the DMV, you can’t help but feel the lifting of potential stresses that even a first-time DUI offender faced with regard to Florida driver license suspension. The length of this suspension used to be significantly influenced by the way and manner in which a DUI suspect participated or refused to participate in the DUI task force officer’s investigation.
I have already been arrested, what’s the point in submitting to a breath test if the officer is not going to let me go home?
While some states employed the use of portable breath testing machines that were used on-site, Florida has required an arrest prior to any request or in some cases demand for chemical testing. This has in most cases left the DUI suspect both confused and frustrated at not only the legal system but the criminal investigation at hand. Most citizens who are under the stress of such an event fail entirely to see the logic in being cuffed, transported in a patrol car to a holding cell and then asked to submit to a breath test in order to confirm or dispel on investigating DUI officers suspicions.
Couple this with the likely fact that Miranda rights were not read to the suspect either. There would unlikely be an adequate response to that same DUI suspects request to consult with a criminal defense attorney. In a vast majority of cases that our DUI lawyers have seen in Broward County, little if anything is ever done by way of explanation to a DUI suspect as it pertains to when Miranda is required or why DUI suspects are not entitled to counsel in most cases.
Additional things that you should know prior to finding yourself the subject of a DUI investigation.
Many criminal defense attorneys in Broward County have gone as far as to say that certain law enforcement officers seem to respond to common requests of a subjects right to counsel in such a way that leads them to believe that their rights are being violated. The fact is, however that most elements of a DUI investigation involve the collection of non-testimonial evidence meaning that the DUI suspect is not questioned, rather observed and requested to submit to forensic testing. In such cases where a criminal suspect is not being interrogated, nor providing evidence that is testimonial nature, there is no right to consult with a criminal defense attorney.
Nonetheless, our nation’s highest courts have shamed police officers for the manner in which the outright denial of not only Miranda or Defense Counsel, was undertaken but also warned that the only nexus bridging the gap between modern DUI policing and an outright violation of a DUI suspect’s constitutional rights is the manner in which DUI task force conducts same. In Florida, officers who routinely make driving under the influence arrests are constantly reminded of the specific manner in which they are required to collect evidence and more importantly treat suspects.
20+ years ago the higher courts may very well have been uneasy about the constitutionality of denying an individual right to counsel prior to submitting to chemical testing in addition to specifically requesting same. According to criminal defense attorney William Moore, however, the Florida court systems cognizance of our criminal justice systems treading lightly upon the rights of the accused has long been gone.
DUI prosecution in Florida has been a gateway that has led to the dilution of many of our constitutional rights claims Moore.
Prior to focusing on major crimes such as drug possession delivery and trafficking offenses in Broward County Florida, attorney William Moore focused intently on defending individuals charged with driving under the influence. He has extensive knowledge and experience in this complex area of criminal defense having tried over 200 criminal DUI jury trials in his first 15 years of practice. Much of this knowledge and unique experience has been shared their writings, criminal defense law lectures and radio show commentary.
For information about how to get specific materials with regard to any DUI defense issue or topic please contact
Criminal Defense Attorney William R. Moore
One Financial Plaza Suite 2500 Fort Lauderdale Florida, 33394 954 – 523-5333