September Updates

Interstate 75 in Florida

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Lotocki v. DHSMV, 17 Fla. L. Weekly Supp. 721b (4th Jud. Cir. Apr. 19, 2010)Writ of Certiorari granted in part.  Matthew E. Malhiot, from the Florida Department of Law Enforcement, refused to answer any questions about “the micron and band width” of the intoxilyzer 8000 used to administer the defendant’s breath test.  Petition granted due to hearing officer’s failure to instruct Mr. Malhiot to answer the petitioner’s question.  Final Order of license suspension is quashed and matter was remanded.

Catalano v. State of Florida, 17 Fla. L. Weekly Supp. 723b (6th Jud. Cir. Feb. 4, 2010) – Appeal.  Defendant argued s. 316.3045(1), Fla. Stat. (Operation of Soundmaking Devices in Vehicles) was unconstitutionally vague.  J. Demers reverses finding that the lower court must follow Easy Way of Lee County, Inc. v. Lee County, 674 So.2d 863 (Fla. 2d DCA 1996) pursuant to Pardo v. State, 596 So.2d 665 (1992).  The Fifth District’s Davis v. State, 710 So.2d 635 (Fla. 5th DCA 1998) is in conflict with Easy Way and is not controlling within the Second District.

Alamo v. DHSMV, 17 Fla. L. Weekly Supp. 730 (9th Jud. Cir. May 21, 2010) – Writ of Certiorari granted.  Hearing officer refused to issue a subpoena for the author of a report considered in evidence against the driver.  Hearing officer denied the driver procedural due process.  Cause remanded for further proceedings.

State of Florida v. McCotter, 17 Fla. L. Weekly Supp. (15th Jud. Cir. May 11, 2010) – Appeal by State, lower court affirmed.  Defendant was involved in a collision with a parked car.  Defendant refused treatment at medical facility, there was no death or serious bodily injury, and urine test was not impractical or impossible.  Request for blood draw and subsequent consent by driver is involuntary unless law enforcement officer informs defendant that implied consent law requires submission only to breath or urine test.  Blood draw must be offered as an alternative.  Order to Suppress evidence is affirmed.

NOTE: The Office of the State Attorney in Broward County has wasted valuable court time and money when it appealed a multitude of minor county court cases in which the county judge withheld adjudication of guilt and did not place the defendant on probation.  First, the Judge was using common sense and had issued a very well thought out order with reasons why probation was not required.  Second, apparently the legislature caught wind that other State Attorney’s Offices were asking that all withholds of adjudication for minor county court cases be forced to do probation and they changed the law so it was not so confusing to prosecutors.  Finally, do the people of the state of Florida really have to foot the bill to pay for probation resources so that a person, that has no previous record, can maintain a conviction free record because his license expired over 4 months ago?

State of Florida v. Baumhardt, 17 Fla. L. Weekly Supp. 773b (20th Jud. Cir. Jan. 15, 2009) – Appeal affirmed in part and reversed in part.  For all the DHSMV v. Critchfield, 842 So.2d 782 (Fla. 2003) fans.   Another jab at trying to get Critchfield to apply to a DWLS not involving a permanent revocation. Nothing new here.

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