Current Trends in DUI & Criminal Law for Clearwater, Tampa, St Petersburg & Throughout Florida

This page will provide a sample of case law from the Courts of Appeal all over the State of Florida. It is my intent to provide information that is current, interesting and relevant to those who visit this site. The content is updated on a regular basis.

If you need to speak to a DUI attorney or criminal defense lawyer in Clearwater, St Petersburg, Tampa, or anywhere throughout the greater Tampa Bay area, please call our office at (727) 446-8303 or e-mail us to schedule a free initial consultation.

Spousal Privilege

Mosley v. State, 34 FLW S468 (Fla. July, 2009). The Florida Supreme Court held that the recording of a phone conversation between Mr. Mosley and his wife by the jail was not protected under Section 90.504 Fla. Stat. regarding the “spousal privilege”. The Court decided that Mr. Mosley waived any privilege that he had in keeping the conversation private (and inadmissible as evidence against him), because he did not have a “reasonable expectation of privacy”. The Court said that he waived his right to privacy when he spoke on the phone because the call began with a prerecorded warning that “this call is subject to monitoring and recording”. In addition, Mr. Mosley had been given a handbook which explicitly warned that phone calls made from the jail would be monitored.

Moral: Any defendant should assume that all phone calls made from jail will be both monitored and recorded and, if incriminating, used as evidence against him.

Search & Seizure

J.C. v. State, 34 FLW D1542 (2nd DCA, 2009). The Second District Court of Appeal recently heard a case involving two officers and a defendant who was riding his bike on a designated bike path. The two officers were driving by and because they decided it was a “high crime area”, they checked him out. They pulled their car in front of him, got out, walked over to him and asked what he was doing. They also said “Hey, I’ve got to talk to you for a minute. Hang on”. The exchange eventually led to a search and J.C.’s arrest for possession of marijuana. The trial court held that the stop was consensual and denied J.C.’s motion to suppress the evidence.

The Appellate Court decided that a reasonable person would not feel free to walk away, but rather would feel compelled to comply with a police officer’s command to “Hang on”. The Court therefore held that this was an investigatory stop for which reasonable suspicion of the commission of a crime is necessary. The officers in this case had no such suspicion and the stop was held to be illegal.

Refusal to take a breath test

Folden v. State, 34 FLW D1192 (5th DCA, May, 2009). The Court held that Mr. Folden was wrongfully convicted for the crime of refusing to take a breath test for the second time, a misdemeanor. The State tried to prove his prior refusal by entering his driving record into evidence which included an entry stating “BAL unknown” (translation: Blood Alcohol Level unknown). No other evidence of a prior refusal was offered. The 5th District Court of Appeal held that the information presented did not prove beyond a reasonable doubt that Mr. Folden had previously refused to submit to a breath test. The Court reversed his conviction accordingly. Note that Mr. Folden apparently did not admit to a previous refusal, additional evidence that might have led the appellate court to a different conclusion.

Loss of the video tape

State v. Davis, 34 FLW D1215 (4th DCA, June, 2009). Mr. Davis was stopped at a DUI checkpoint. The officer observed an odor of alcohol, bloodshot eyes, flushed face, slurred speech, and slow movements. Mr. Davis also admitted that he had consumed 2 beers and was taking oxycodone. The officer asked Mr. Davis to perform Field Sobriety Tests (FSTs), which were recorded on the video camera in the police cruiser. When the State failed to provide the defense attorney with a copy of the video, the attorney filed a motion to compel, which was granted by the Court. When the State still failed to produce the video, the attorney filed a motion to dismiss. The officer testified that the recording was lost when he transferred it from the camera to the DVD. The trial court found that there was no bad faith on the part of the officer, but that Mr. Davis was prejudiced by the loss because there was no comparable DUI evidence. The trial court dismissed the DUI charge.

The 4th DCA reversed the decision, stating that dismissal was too harsh a sanction. The case was sent back to the trial judge with instructions to consider some sanction short of dismissal. It was left to the trial court to determine a lesser sanction. Note that the trial judge will now have to come up with a “sanction” of his own design, the appellate court having provided no guidance. It is possible that the new sanction might include prohibiting the officer from testifying about Mr. Davis’s performance on the FSTs. This is what the defense attorney will likely request. This would severely damage the State’s case, leading to either a reduction of charge pretrial or an acquittal at trial.

Search vs. Consensual Encounter

State v. Gentry, 34 FLW D1276 (2nd DCA, June, 2009). Mr. Gentry was an informant for the Tampa P.D. An officer saw him leave a bar known for drug activity, but did not see him do anything illegal. The officer pulled along side Mr. Gentry as he was riding his bike. The officer asked him if he could search and Mr. Gentry allegedly gave his consent. Cocaine was found inside the rim of his hat.

Mr. Gentry filed a motion to suppress the search based on two claims: that he did not feel free to leave with the cruiser blocking his path, and that he felt that he had to cooperate because he was working as an informant. The trial court did not find that his path was blocked but did find that he believed he had to cooperate.

The 2nd DCA reversed the trial court’s suppression of evidence. The appellate court held that the trial court incorrectly used a “subjective” standard instead of the “objective” standard of analysis. The court said the objective standard holds that “a person has been (illegally) seized . . . only if a reasonable person would have believed that he was not free to leave”. In other words, the trial court incorrectly considered Mr. Gentry’s subjective fears rather than whether a reasonable man would have consented, given the circumstances.

Moral: The 2nd DCA won’t look beyond the obvious, visible circumstances of a police encounter, in deciding whether consent was freely given or not. This is unfortunate, as it does not allow for consideration of the citizen’s unique experience and perspective.