On October 23, 2012, a Jacksonville Sheriff’s Office deputy arrested Mr. Holcomb for DUI. The deputy took Mr. Holcomb  to the Duval County Jail where officer Officer Z. Mincey conducted a breath test. Based on the breath test results, the deputy took Mr. Holcomb’s driver’s license. Mr. Holcomb challenged his suspension and asked for an  FLHSMV formal review hearing. At the hearing, the hearing officer upheld Mr. Holcomb’s suspension.

A Breath Test must be conducted according to Florida Administrative Code. R. 11D-8.008.

 
Florida Administrative Code 11D-8.008(3) states that all Breath Test Operators must renew their certifications by June 30th every four years. At the hearing, Officer Z. Mincey testified that she had not renewed her certification since 2004. Even so, Officer Mincey also testified that she believed she had a valid certification. The Duval Circuit court of Appeal disagreed.

The court found that Officer Mincey had not satisfied the continuing education requirement and thus was not permitted to administer a breath test at the time of the breath test. Because the breath test was conducted by a person who was not authorized to do so, Mr. Holcomb’s suspension could not be sustained.

If you have any questions about a DUI refusal suspension, it is important to contact an experienced DUI attorney for help. It could mean the difference between a driver’s license, or no licenses at all.

The post Court reverses Florida DUI refusal suspension. appeared first on Dui Jack.

Mr. O’Leary did post threats on Facebook

 
A few years ago, Timothy Ryan O’Leary put the following tasteless threat on his Facebook wall, “F**K my [relative]. . . if you ever talk to me like [that] again . . . I’m gonna f**k you up and bury [you]. . . I’ll tear the concrete up with your face . . .”
 

Florida Statute Section 836.10

 
 
The State prosecuted Mr. O’Leary under Fla. Stat. §836.10, which states that a person commits a second degree felony when he:

• composes
• a threatening communication
• and sends the communication
• to the person threatened
• or a family member of the threatened person

Mr. O’Leary was Facebook friends with his cousin.

 
Unfortunately for Mr O’Leary, he was Facebook friends with his cousin, who was also family with the threatened relative. Mr. O’Leary was not Facebook friends with his relative. And he did not send the threat directly to his relative. Even so, Mr. O’Leary’s cousin told his uncle about the post, and the uncle told the threatened relative. Because they were all related, Mr. Leary was convicted of “sending” threatening communications to a family member of the threatened person. The court sentenced Mr. O’Leary to two years of community control, which is a stricter form of probation

Mr. O’Leary appealed his conviction to the 1st DCA, arguing that a person can only break the above law if he “sends” a threatening communication directly. Mr. O’Leary then argued that because he only posted his comment on his own Facebook wall, he did not “send” the communication directly to anyone. Mr. O’Leary’s cousin even testified that Mr. O’Leary never asked his cousin to share the post with anyone.

In Florida, “posting” to your Facebook wall is the same as “sending.”

 
Florida’s 1st DCA ruled that posting a comment to your Facebook wall is like “sending” a communication to all of your friends. O’Leary v. State, CASE NO. 1D12-0975 (Fla. 1st DCA 2013). The court then reasoned that because Mr. O’Leary’s cousin was both a Facebook friend and a family member of the threatened person, Mr. O’Leary broke the law.  If Mr. O’Leary had not been Facebook friends with his cousin, he probably would not have been found guilty.

In its opinion, the 1st DCA also admitted that this was a first of its kind case in Florida, which is telling. Even though Facebook is nine years old and claims to have over 680 million users as of December 2012 (http://newsroom.fb.com/Key-Facts), no one has ever examined the legal question whether posting a threat on your own Facebook wall constitutes a second degree felony, punishable by fifteen years in prison.

Mr. O’Leary certainly made an error in judgement.  However, the punishment does not seem to fit the crime. Let’s hope that as social media progresses, and appellate judges become more familiar with the technology, we see more common sense statutes from congress and sensible rulings from the court. As it stands today, posting a threat on Facebook could land you in prison for a very, very long time.

The post Why you shouldn’t post threats on Facebook. appeared first on Dui Jack.

Florida DUI Refusal Suspensions

 
In order to sustain a DUI refusal suspension, the DMV must consider the following questions:

1. Did the arresting law enforcement officer have probable cause to believe that the person was driving under the influence (DUI)?
2. Did the driver refuse a breath test?
3. Was the driver told that if he refused, his driver’s license would be suspended?

Section 322.2615(7)(b), Fla. Stat. (2010).

The video showed no probable cause.

 
In  Wiggins v. DHMSV, FLWSUPP 2004WIGG (Fla. 4th Cir. App. 2013), the circuit court found that even though the cop’s testimony clearly established that he had probable cause to stop and arrest Mr. Wiggins, the video contradicted the cops story.

The Circuit Court of Appeal  found that the cop’s testimony was “flatly contradicted by the objective evidence on the videotape.” In other words, the cop’s testimony was either incompetent, or a fabrication. Further, the Appellate court admonished the FLHSMV for simply going along with the cop’s testimony instead of objectively considering the video evidence. The Appellate Court wrote:

“[The officer's testimony] is refuted by the video…The images on the videotape are clear and contain adequate lighting…Viewing the entire record evidence, neither the testimony of Deputy Saunders nor the arrest and booking report constitutes competent substantial evidence on which the hearing officer could rely.”

The Appellate court went on to write that “it was unreasonable…for the hearing officer to accept Deputy Saunders report and testimony after this evidence was shown to be erroneous and flatly contradicted by the objective images of the videotape.”

This court opinion is a stark reminder that the government, and it’s agents, will overlook the truth to make its citizens suffer DUI penalties. We would all like to think that this is an isolated incident. We would also all like to think that this sort of thing could not happen to us. In reality, it happens more often than we care to acknowledge. And it can happen to anyone. If you have any questions about a Florida DUI refusal suspension, contact a experienced attorney immediately.

The post Duval Circuit Court overturned a Florida DUI refusal suspension. Found cop’s testimony incompetent. appeared first on Dui Jack.

 Unfortunately, the court may never seal or expunge a DUI in Florida. By law, a DUI can never be erased from your record. There is no Withhold of Adjudication on a DUI in Florida. Your only option is to file  a petition for post conviction relief. However, the courts routinely deny these types of motions. A Defendant is supposed to  file this type of motion within 2 years after the final judgment. However, there are a limited number of circumstances where you can get around the 2 year time restriction. If you are unsuccessful, your Florida drunk driving conviction remains on your record for 75 years.

Some Driving Violations, including DUI, are ineligible.

 Your criminal record is not eligible to be sealed/expunged if it reflects that you have been adjudicated guilty of a criminal offense or comparable ordinance violation or adjudicated delinquent for committing any felony or a misdemeanor specified in s.943.051(3)b. Certain driving violations are also ineligible, such as DUI, reckless driving, and (with some exceptions) driving while license is suspended/canceled/revoked.

Seal-expunge a DUI in Florida.

 For more information about how to seal or expunge your Florida criminal record, click here. The law to seal or expunge your is complicated and it is recommended that you seek legal counsel before you begin the process of sealing or expunging your record.

 If you have any further questions about a DUI conviction penalties, click here or call Hilliard Law, P.L. a free consultation.

The post Can the court seal-expunge a DUI in Florida? appeared first on Dui Jack.

Lawyer Layne C. Savage leaves court in August. Photo courtesy of Providence Journal/ Kathy Borchers.

DUI lawyer from Rhode Island pleaded not guilty to drunk driving charges, January 17, 2013. It is the second time she has been charged with a DUI in the past year, according to news source patch.com. The lawyer’s first charges were dismissed.

DUI Lawyer found asleep behind the wheel.

Officers reportedly found her behind the wheel of her SUV crying, confused and with slurred speech. She was taken to Rhode Island Hospital and charged with drunk driving.

Rhode Island Bar Monitoring lawyer’s case.

The Rhode Island Bar says it is monitoring the DUI Lawyer’s case. The Bar’s position is that “Everybody has a presumption of innocence. Obviously, we’ll await the outcome to decide what steps to take,” according to the Providence Journal.

The DUI lawyer should hire someone to represent her.

The old adage that a person who represents himself has a fool for a lawyer, applies to DUI lawyers too. This Rhode Island lawyer should consider hiring a competent, experienced DUI lawyer to represent her for this case.

An experienced DUI lawyer will save her money, time, and reputation. Her car insurance premiums may go up. She may lose license to practice law. Her health insurance premiums may increase. Because an experienced DUI attorney may help her avoid a conviction, hiring a DUI attorney is a sound investment in her future.

Call Hilliard Law, P.L. if you have questions for a DUI lawyer.

Depending of the facts of your case, you may be eligible to have your case dismissed, dropped, or reduced to a lesser charge. While you may feel that you cannot afford to hire a DUI attorney, the reality is that comprehensive legal representation will most likely save you time, money, and your reputation.

The post Rhode Island DUI Lawyer arrested on DUI charges. appeared first on Dui Jack.

A DUI is a criminal conviction.

 
In certain occupations the effect of a DUI conviction is immediate. Often a person will lose his job. And you must consider that a DUI conviction is public record.  Further, it will probably appear on the internet in some way or fashion.

Once your conviction becomes public record, you should expect it to affect your professional reputation and bottom line. An experienced attorney can minimize the impact a DUI may have on your occupational license and your career.

Your driver’s license can actually be suspended at two different points in time and the laws vary somewhat from state to state. The first suspension usually comes when you are arrested for a DUI. If it is a first time arrest for DUI, the DMV usually suspends your license for six months starting immediately. You get a ten day grace period, which allows you to continue driving to take care of some business. But after ten days, your license is suspended for six months.
 

If you are arrested for drunk driving in Florida, your license will be suspended.

 
Your license will be suspended in 10 days unless your attorney drafts and files an appeal letter to the FLHSMV. THE APPEAL MUST BE FILED WITHIN 10 DAYS OF A DUI ARREST. If you don’t win your FLHSMV appeal, and your breath test was .08 or above, you’ll have to wait 30 days, and show proof of enrollment in DUI school before you can get a “hardship” license. If you “Refused”, you’ll have to wait 90 days and show proof of enrollment in DUI school before you can get a “hardship” license.
 

A Hardship License is very restricted.

 
A “hardship license” is a license that is issued while your regular driver’s license is suspended. It restricts your ability to drive for specific, limited purposes such as to work or medical appointments. State laws vary regarding types of “hardship licenses”, so it is best to contact an experienced DUI attorney who can explain your rights and provide the sound legal counsel needed to guide you through the DUI process.
 

Your Car Insurance will go up for a DUI in Florida.

 
In most cases, A Driving Under the Influence, or DUI conviction dramatically increases car insurance rates. The rate of increase can be a real “eye opener,” up to 200% – or more.

If you have been convicted of a DUI in Florida you must get special DUI insurance for the next three years you have a license. This special DUI insurance requires you get as much as double your previous coverage. Because not all carriers provide this type of specialized car insurance, there is a good chance your insurance company will drop you as a client.
 

Don’t face a drunk driving charge alone.

 
If you have any further questions, feel free to call me or download my e-book “The Most Important Things To Know About A DUI.”

The post Things you need to know about drunk driving in Florida. appeared first on Dui Jack.

In an earlier proceeding, Cpl. Mark Winder of the Missouri State Highway Patrol, testified that at the time of the stop, McNeely’s speech was slurred, he was unsteady on his feet, and he had failed several field sobriety tests. The trooper also testified that McNeely was speeding and swerving his car.
 

Winder took a warrantless DUI blood test from McNeely, without his consent.

 
When McNeeley refused to submit to a breath test, Cpl. Winder drove McNeeley to the hospital and had a technician forcibly extract blood from McNeely. McNeely did not consent to the blood draw, and Cpl. Winder did not obtain a warrant from a judge. The blood tests showed that McNeely’s blood alcohol content was approximately twice the legal limit at the time of the extraction.
 
 

Missouri Supreme Court ruled that this warrantless DUI blood test was unconstitutional.

 
The Missouri Supreme Court ruled that the results of the blood test were inadmissible because taking a person’s blood without a warrant  violated the Constitution’s prohibition against unreasonable searches and seizures. The Missouri Supreme Court followed a line of prior rulings holding that the police generally need to obtain a warrant to take a suspect’s blood, with certain narrow exceptions.
 

State of Missouri appealed to the United States Supreme Court.

 
At oral arguments this past Wednesday, January 8, 2013, the Prosecutor argued to the United State Supreme Court that every DUI case should qualify as an exception to the warrant requirement because in every case, a person’s body breaks down drugs or alcohol soon after the person stops taking them. The prosecutor argued that because a person’s body steadily breaks down drugs and alcohol, any delay in taking a person’s blood would skew the evidence down. The prosecution expressed a concern that the process of obtaining a warrant could delay a case for up to three hours, which could render the blood test results worthless. The prosecutor implied that guilty persons may going free, or get less punishment as a result.
 

Opposing Counsel argues that citizen’s rights outweigh government’s ability to get best evidence.

 
The attorney for the respondent argued that many states have processes in place which would allow an officer to obtain a warrant within thirty (30) minutes. He further argued that a sweeping rule, allowing for warrantless blood extractions in every DUI, would discourage states from developing more efficient warrant systems. Opposing counsel also pointed out that a delay would not necessarily result in a total loss of evidence. A person’s body breaks down alcohol and drugs at a steady rate, not all at once.

Justice Antonin Scalia openly questioned whether the utility of allowing police officers to obtain warrantless blood tests would be outweighed by the violation of that person’s bodily integrity. Justice Alito asked “why should the Fourth Amendment permit the (blood test) to take place without the warrant when (a warrant) could have been obtained?”
 

Will Supremes compromise?

 
The Supreme Court Justices seem to be thinking about carving out a narrow DUI exception to the warrant requirement. At oral arguments, they asked questions about some sort of reasonable time test exception, and whether it would be feasible.  It appeared that they were entertaining an exception that would allow a law enforcement officer to obtain a warrantless blood test, if a warrant would have unreasonably delayed the process. What is reasonable? It depends on the “totality of the circumstances.”

This is a scary debate with long reaching ramifications. It also constitutes a head-on assault on our Fourth Amendment rights. What the state of Missouri is arguing is that the government should be able to obtain a blood sample from any driver it suspects of DUI, at any time, without any restrictions.
 

Download the transcript.

Click here to download a transcript of the Oral Arguments.
 
 
 

Contact Hilliard Law, P.L.

If you have any question about DUIs, please call for a free consultation.  Be safe, and good luck.
 
 
 

The post Supremes review warrantless DUI blood test. appeared first on Dui Jack.

Is Your Criminal Record Sealed or Expunged?

If you have had your record sealed or expunged, your criminal charge will not appear in your background check. Even so, the only way to know for sure is to do a criminal record check. To get a record check, you can go to the Sheriff’s office. For a nominal fee, it will check your record. Or, you can hire a private investigator to do a background check.
 

Will an old charge be on my criminal record check?

There’s really no way to know for sure whether an old charge will appear on your record without running a criminal record check. Sometimes, older charges will not appear on your record because the technology was not as sophisticated as it is today. Likewise, your criminal record may be flawed, due to human error.
 

Will a federal charge be on my record check?

Federal charges will also appear in a criminal record check. If you have an old charge, it may not appear due to the lack of technology at the time of your charge or human error. Expungements of federal records are pardons or executive clemency. Applications for expungement of a federal criminal record must be processed through the Office of the Pardon Attorney of the United States government.
 

How do I get my case sealed or expunged?

In order to get your criminal record sealed or expunged, you have to go to either the state or federal attorney general. This is a complicated process which takes several months to complete. However, you can hire an attorney to do this for you. Hiring an attorney to seal or expunge your criminal record will probably save you time and money in the long run.

The post How far back will a criminal record check go? appeared first on Dui Jack.

Located in Dorset, VT, the Wilson House was home to AA co-founder Bill Wilson.

He thought he was driving into a parking lot.

Police say 55-year-old Donald Blood III of Marlborough, Mass., was ordered to appear in court in Bennington on Jan. 14. Police say Blood thought he was driving into a parking lot, but actually it was the lawn of the Wilson House, built in 1852 in Dorset, VT.

A place of sanctuary…

The Wilson House, built in 1852, is the birthplace of Wilson. Its website describes it as a “place of sanctuary where people can come to give thanks to God for their new lives.” The building, which is on the National Register of Historic Places, hosts several Alcoholics Anonymous meetings each week.

Arrested For DUI

Apparently, Mr.  Blood did not get the memo that law enforcement would be on high alert this Holiday Season. As ironic as this story is, Mr. Blood is at substantial risk of losing his money, reputation and freedom. If you know of someone in Mr. Blood’s position, you should always encourage that person to call a DUI attorney as soon as possible, preferably one who focuses on DUI law.

Many attorneys claim to practice DUI law. However, many of them simply do not have the experience to effectively protect your rights. If you have any questions about DUIs or DUI law in Florida, you can download my free DUI Guide “The most important things to know when charged with a DUI.”

The post Man arrested for DUI on AA co-founder’s lawn. appeared first on Dui Jack.

“Drive Sober or Get Pulled Over” campaign to begin December 14th.

The National Highway Traffic Safety Administration (NHTSA) will be running a Drive Sober or Get Pulled Over campaign beginning December 14th to January 1st. NHTSA is encouraging those states that are participating in the campaign to focus their media on days that the national media is not running. NHTSA will use Fox affiliates as their primary broadcast networks. It plans to focus heavier on sports via the NFL and NBA. For the NFL NHTSA will use additional broadcast networks that carry these games. In addition, it will also run paid adds on Christmas.

The campaign will target 5 segments that NHTSA considers “at-risk”:

1. Discontented Blue Collars: Men 21-34 years old

2. Middle-Class Risk Takers: Men 25-54 years old

3. Inexperienced Social Drinkers: Men 21-24 years old

4. Responsible Drinkers: Adults 25-44 years old

5. Socially-Accountable Drinkers: Adults 25-34 years old

NHTSA will also target the following secondary audiences:

- Newly arrived Latino immigrants

- College Youth

Cops will enforce zero tolerance policy.

 
During the campaign, law enforcement will be aggressively looking for impaired drivers. If you get a DUI, you could face jail time, lose your driver’s license, you insurance rates will go up, and you could face dozens more of other unanticipated expenses ranging from attorney fees, court costs, car towing and repairs, and lost wages due to time off from work.

During this crackdown, NHTSA has encouraged law enforcement to take a zero tolerance policy. If law enforcement feels you having driven while impaired, you will be arrested.

Want to know more?

 
For more information about Florida DUI law, download my free e-book, “The most important things to know when charged with a DUI.”

The post “Drive Sober or Get Pulled Over” campaign begins this December. appeared first on Dui Jack.