December Updates

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State v. Grandinetti, 17 Fla. L. Weekly Supp. 1151 (17th Jud. Cir., Sep 8, 2010): Appeal Motion to Suppress, Reversed – LEOs smelled odor of burnt cannabis coming from vehicle.  Driver and passenger entered convenience store and were approached by LEOs.  LEOs smelled odor of burnt cannabis coming from driver and passenger.  LEOs searched driver, passenger and car.  Order granting motion to suppressed reversed – LEOs had PC for search.

Trew v. DHSMV, 17 Fla. L. Weekly Supp. 1152 (4th Jud. Cir., Aug 13, 2010): Writ of Certiorari, denied – Driver argued that license suspension should be invalidated because there was no competent substantial evidence to support the finding that there was probable cause or reasonable suspicion to stop him.  The Department argued that the lawfulness of the stop is not an issue before the hearing officer based on the 1st DCA’s opinion in Hernandez vs. Department of Highway Safety and Motor Vehicles, 995 So.2d 1077 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D2707a]. This court finds that Hernandez vs. Department of Highway Safety and Motor Vehicles is binding on this court.  [Seems as if this issue varies based on venue.]

Ellis v. DHSMV, 17 Fla. L. Weekly Supp. (4th Jud. Cir., Sep 8, 2010): Writ of Certiorari Granted – Driver requesting subpoena for Monthly Agency Inspector and received it!  However, the Monthly Agency Inspector failed to appear at the hearing.  No cause was given.  Driver asked that the suspension be invalidated but the Department refused and offered a continuance for the driver to enforce the subpoena.  Driver asked for extension of temporary driving permit to cover the time needed to enforce subpoena – the Department refused.  Driver contends that he was denied procedural due process when the Hearing Officer refused to extend the temporary driving permit for the period of time required for Petitioner to enforce the subpoena in Circuit Court. The court agrees.
The First District was very clear in Lee v. DHSMV, 3 So.3d 754, 757 (Fla. 1st DCA 2009), that it is “a violation of basic principles of due process” if a Hearing Officer considers a document or report in a formal review hearing challenging the administrative suspension of a license, but denies the driver the ability to meaningfully cross-examine the individual or individuals who prepared those documents or reports.  There is no question that a suspension of a driver’s license implicates a protectable property interest and that procedural due process must be afforded to an individual facing such a suspension. DHSMV v. Pitts. 815 So.2d 738, 743 (Fla. lst DCA 2002) [27 Fla. L. Weekly D999b]. The Florida legislature and the DHSMV have taken great care to set out the due process protections that attach in a proceeding involving the administrative suspension of a driver’ s license. One aspect of the due process afforded to individuals facing such a suspension is the right to have a meaningful administrative review before the commencement of the automatic suspension.

Dente v. DHSMV, 17 Fla. L. Weekly Supp. 1158 (6th Jud. Cir., Jul 22, 2010): Writ of Certiorari granted – Driver involved in an accident is suspected of DUI.  Trooper goes to hospital and asks for blood draw after driver has been released.  Driver is waiting for legal advice and trooper notes this as a refusal.  A request for a blood alcohol test is lawful only where the accused has appeared for treatment at a medical facility and breath or urine tests are impractical or impossible. § 316.1932(1)(c), Fla. Stat.  In this instance, Driver had already been transported to a hospital, treated, and apparently released by the time Trooper Ray asked the Driver to submit to a blood test. Moreover, upon the driver’s discharge from the hospital, Trooper Ray arrested and transported her to the Pinellas County Jail, again without requesting her to provide a breath or urine sample.  The hearing officer’s decision to sustain the driver’s license suspension was not based on substantial competent evidence and the hearing officer departed from the essential requirements of law by not applying Fla. Stat. § 316.1932(1)(c) and relevant case law.

State v.  Detro, 17 Fla. L. Weekly Supp. 1162 (6th Jud. Cir., Sep 24, 2010): Interlocutory Appeal by State on Motion in Limine Granted – Driver accused of DUI and refuses breath test.  Odor of alcohol smelled on breath of defendant.  LEO also finds a bottle of hydrocodone prescribed two days earlier to the driver in the car.  There are 48 out of 60 pills in the bottle.  Driver moved in limine to keep evidence of hydrocodone out due to lack of relevance.  State appealed and appellate court reversed.  In State v. Varney, CRC08-00072APANO (Fla. 6th Cir. App. Ct. January 8th, 2010), this Court ruled that evidence of a DUI suspect’s drug consumption should be permitted at trial if: 1) there is significant evidence that the accused was impaired; 2) the accused is in possession of evidence indicating that he or she could have recently used a controlled or chemical substance; 3) there is insufficient evidence that the accused has consumed a substance other than the subject controlled or chemical substance that explains his or her impairment, normally alcohol; and 4) the evidence does not show that the substance found on the accused could not have contributed to the impairment. The decision in Varney was based on these two decisions from the Fourth District: Estrich v. State, 995 So.2d 613, 616-618 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D2726b] and Gonzales v. State, 9 So.3d 725 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D819a].

State v. Vinson, 17 Fla. L. Weekly Supp. 1163 (6th Jud. Cir., Sep 24, 2010): State Appeal of Orders on Motions in Limine – Defendant, High School Gym Coach, was getting a little too friendly with one of the female students.  Defense moved in limine to keep out evidence of inappropriate comments made by the “coach.”  Court granted motion.  The State appealed and argued that the ruling was error because the statements were relevant to show that the touching allegedly constituting the battery was against the victim’s will and that the statements were inextricably intertwined with the battery charge. Griffin v. State, 639 So.2d 966 (Fla. 1994). The Appellate Court agreed and found that these statements were clearly relevant. The statements fell squarely in the categories recognized in State v. Rambaran, 975 So.2d 519, 524 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D298a]. There the court defined three categories of evidence that could be characterized as inextricably intertwined with the events upon which the charge is based. They are evidence that is necessary to (1) “establish the entire context out of which the charged crimes arose;” (2) “provide an intelligent account of the crimes charged;” and (3) “adequately describe the events leading up to the crimes.” The statements that the defendant allegedly made to the victim fell into all three categories. Reversed.

Rankin v. State, 17 Fla. L. Weekly Supp. 1166 (6th Jud. Cir., Sep 24, 2010): Defense appeals denial of motion to suppress, reversed – LEO goes to house to investigate burglary case.  Before knocking, LEO positions himself so that he can see inside house and sees defendant drinking beer with minor.  Defendant arrested for contributing to delinquency of a minor.   The appellate court found that the LEO’s observations through the window violated the defendant’s reasonable expectation of privacy. Olivera v. State, 315 So.2d 487 (Fla. 2d DCA 1975), Brock v. U.S., 223 F.2d 681 (5th Cir. 1995). Moreover, the observations were not admissible under the inevitable discovery doctrine, which states that evidence the police would have inevitably discovered through legal means is admissible regardless of whether it was obtained illegally. Nix v. Williams, 467 U.S. 431 (1984). However, the Court in Nix noted that “inevitable discovery involves no speculative elements.” Id. at 444. Rather, “[t]he case must be in such a posture that the facts already in the possession of the police would have led to [the] evidence notwithstanding the police misconduct.” Moody v. State, 842 So.2d 754, 759 (Fla. 2003) [28 Fla. L. Weekly S307b].  Here, the LEO had no evidence in his possession that would have led to discovery of the defendant’s crime before looking through the window. He only had evidence regarding an unrelated burglary. Although the LEO was going to knock on the door to try to make contact with the burglary suspect regardless of his observations through the window, any assertion that he would have discovered the same evidence observed through the window is pure speculation. What the LEO saw and heard through the window is inadmissible and the trial judge erred in denying the Motion to Suppress.

Phelps v. DHSMV, 17 Fla. L. Weekly Supp. 1167 (7th Jud. Cir., Apr 30, 2010): CLASSIC, CLASSIC, CLASSIC – I knew I’d run into this case eventually!  As criminal defense attorneys, we have a unique perspective on the irrational behavior of the “Department.”  Well, actually, it is not that unique.  In fact, it is common place.  Anyhoo, this is a case where a long time resident of Wisconsin decided he had worked enough and was going to retire in Florida.  Unfortunately for this man, he had received four citations for DUI in Wisconsin between 1980 and 1983.  Uh-oh!  Soon after receiving his Florida drivers license the Department revoked his driving privileges permanently due to the alleged four DUI citations in Wisconsin.  In October 2009, the retiree challenged the revocation.  The defense was that two of the citations were civil infractions (the history of DUI has an important transition date of 1982) and one was dismissed.  The retiree even had a lawyer licensed in both Florida and Wisconsin (I need this retiree working for me) testify as to the laws at the time.  The Department, after lengthy and careful deliberation, the hearing officer found that the “Petitioner did not provide any evidence to show his driving privilege should not have been permanently revoked.” (Lol and fall out of my chair).  Order of the Department QUASHED.

Catlett v. State, 17 Fla. L. Weekly Supp. 1168 (7th Jud. Cir., Aug 5, 2010): Appeal on Motion to Suppress, Reversed – Appellate court finds that Defendant did not violate traffic law s. 316.074 when approaching intersection with steady red signal he stopped across stop bar/stop line but before crosswalk.

Lampert v. DHSMV, 17 Fla. L. Weekly Supp. 1179 (11th Jud. Cir., Sep 30, 2010): Writ of Certiorari Granted – Defendant moved to invalidate the suspension.  LEO’s testimony was that he had not arrested the defendant prior to asking him to take the test.  Test was invalid because a breath test must occur after the defendant has been placed under lawful arrest.  Good case that has to do with the recent modifications made to challenging the validity of administrative suspensions.

Zambrana v. State, 17 Fla. L. Weekly Supp. 1180 (11th Jud. Cir., Oct 6, 2010): Appeal denial of motion to suppress, reversed – This case has a lot of good case law on search and seizure.  LEO had no probable cause that traffic infraction had been committed and could not stop motorcyclist that was not wearing helmet to see if motorcyclist had proper insurance.  Nor was there evidence that motorcyclist was speeding.  Good discussion on reasonable suspicion to stop for speed alone (without use of speed testing devices).

Girado v. DHSMV, 17 Fla. L. Weekly Supp. 1190 (13th Jud. Cir.,  Aug 17, 2010): Writ of Certiorari Granted – Long mandate.  Good example of the lack of legal forethought by the Department – or – why, when trying to apply the law, it makes better sense to hire lawyers (rather than hearing officers).  Synopsis – Department misapplied law.

McIlhenney v. State, 17 Fla. L. Weekly Supp. 1196 (17th Jud. Cir., Jul 13, 2010): Appeal, Affirmed – Defendant waived “Double Jeopardy” issue when she agreed to plea agreement.  When a defendant enters into a bargained-for plea agreement (as opposed to an open plea), any double jeopardy claim is thereby waived. See, Rosado v. State, 867 So. 2d 440 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D339a]; Novaton v. State, 634 So. 2d 607 (Fla. 1994); Mandelbaum v. State, 676 So. 2d 510 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D1586a].

State v. Dorado, 17 Fla. L. Weekly Supp. 1196 (17th Jud. Cir., Jul 19, 2010): Appeal by State, Affirmed – Defendant withdrew plea because he was not informed of consequences to his driving privilege. Court granted withdrawal of plea.  In Bolware v. State, 995 So. 2d 268 (Fla. 2008) [33 Fla. L. Weekly S645a], although the Court ruled in favor of the State, the Court concluded “although it is not direct, we nevertheless conclude that the revocation of a license is such a serious consequence that a defendant should be informed of it. Accordingly, we direct that the rule be amended as we have done with other consequences that we found to be collateral but of substantial importance.” Consequently, in Re Amendments Rule 3.172, 20 So. 3d 376 (Fla. 2009) [34 Fla. L. Weekly S558a], the Florida Rules of Criminal Procedure 3.172(c) was amended to “require, pursuant to subdivision (10), that the trial judge determine whether the defendant understands that if the defendant pleads guilty or nolo contendere and the offense to which the defendant is pleading is none for which automatic, mandatory driver’s license suspension or revocation is required by law to be imposed (either by the court or by a separate agency), the plea will provide the basis for the suspension or revocation of the defendant’s driver’s license.”

– People, I am done for this update.  Have a very Merry Christmas and Hanukkah or other Holiday.

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