Thursday, December 15, 2011

Florida DUI Laws and Recent Court Cases

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Law Offices
Edward J. Chandler, P.A.
708 East Atlantic Boulevard    Telephone:  (954) 788-1355
Pompano Beach, Fl 33060    Facsimile:  (954) 788-1357

"Serving Broward, Dade and Palm beach County"

Attorney Edward J. Chandler has successfully represented numerous clients in criminal cases throughout Broward, Dade and Palm beach Counties in the State of Florida.  Edward J. Chandler  prides himself on aggressive representation with a personal touch.

In addition to personally handling your case, Edward J. Chandler, Esq. will be available to you during every step of the process. Edward J. Chandler guarantees that you and your case will receive his undivided attention.

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DUI CASE LAW:  Motion to Suppress

A trial court’s decision on a motion to suppress requires a mixed standard of review. “An appellate court is bound by the trial court’s findings of historical fact if those findings are supported by
competent, substantial evidence.” Ferguson v. State, 58 So. 3d 360, 363 (Fla. 4th DCA 2011) (citation omitted). However, a de novo standard applies “to the mixed questions of law and fact that ultimately determine constitutional issues.”

Refusal to Submit To Breath Test: 

The issue of refusal to submit to sobriety testing is admissible has been resolved by the Legislature’s enactment of the implied consent law under section 316.1932(1)(a)1.a., Florida Statutes
(2010). Section 316.1932(1)(a)1.a. provides in pertinent part that “[t]he refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into
evidence in any criminal proceeding.” § 316.1932(1)(a)1.a., Fla. Stat. (2010); see also State v. Kline, 764 So. 2d 716, 717 (Fla. 5th DCA 2000) (holding that implied consent law requires admission of a defendant’s
refusal to submit to a breath or urine test). The legislative directive to conclude that the videotape showing a refusal is admissible under section 316.1932(1)(a)1.a. Statements on the videotape constitute admissions of a party opponent. See § 90.803(18)(a), Fla. Stat. (2010) (providing an exception to the hearsay rule when a statement is offered against a party and is “[t]he party’s own statement in either an individual or a representative capacity.”). Therefore, under section 90.803(18)(a), the statements are admissible. See Dias v.  State, 890 So. 2d 1254, 1255 (Fla. 4th DCA 2005); cf. United States v. Valdes, 214 F. App’x 948, 950 (11th Cir. 2007) (“Statements made by [the defendant] in tape-recorded conversations [with an informant], when presented by the Government, were not hearsay because they were admissions of a party opponent.”).

DUI Videotape Admissibility:

Does  introduction of the videotape violate the Confrontation Clause under Crawford. In Crawford, the Supreme Court held that the admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, (2) the declarant  is unavailable, and (3) the defendant lacked a prior opportunity for cross-examination of the declarant. Crawford, 541 U.S. at 53–54. Statements on the videotape were non-hearsay verbal acts. A verbal act is defined as “an utterance
of an operative fact that gives rise to legal consequences.” Banksv. State, 790 So. 2d 1094, 1097 (Fla. 2001). Verbal acts are not hearsay because they are admitted to show they were actually made
and not to prove the truth of what was asserted therein. Id. at 1097–98.

Directives on the videotape during the sobriety exercises, both verbal and non-verbal, are not hearsay because they  were not offered for the truth of the matter asserted. They were offered to give meaning to  otherwise ambiguous acts. See Longval v. State, 914 So. 2d 1098, 1102 (Fla. 4th DCA 2005)
(noting that witness testimony describing the conversation on a surveillance video in evidence was admissible over hearsay objection because it described and gave significance to the ambiguous conduct
on the videotape); see also Stotler v. State, 834 So. 2d 940, 944 (Fla. 4th DCA 2003) (holding that words that explain or give meaning to otherwise ambiguous acts are not hearsay).  Statements on the videotape are not hearsay, the constitutional concerns raised in Crawford regarding testimonial statements are not implicated. See Crawford, 541 U.S. at 59 n.9 (explaining that the Confrontation Clause does not
bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted, citing Tennessee v. Street, 471 U.S. 409, 414 (1985)). Our decision is further supported by Kurecka v. State, 67 So. 3d 1052, 1055 (Fla. 4th DCA 2010) where we determined that the results of a breath test are
physical evidence, and are nontestimonial. Id. In doing so, we cited with approval the Fifth District’s decision in State v. Burns, 661 So. 2d 842 (Fla. 5th DCA 1995). In Burns, the Fifth District held that a defendant’s refusal to submit to a breath test is admissible because administering a breath test and having a defendant perform a field sobriety task on videotape are “nothing more than the collection and preservation of physical evidence . . . and do not constitute a crucial confrontation requiring the presence of defense counsel.” Id. at 848. Similarly, the Third District has determined that roadside tests of a driver’s physical
coordination generate nontestimonial responses. State v. Whelan, 728 So. 2d 807, 810 (Fla. 3d DCA 1999).Similarly, the Third District has determined that roadside tests of a driver’s physical
coordination generate nontestimonial responses. State v. Whelan, 728 So. 2d 807, 810 (Fla. 3d DCA 1999).
Finally, we turn to whether the videotape was properly authenticated through the testimony of the deputy who conducted the initial traffic stop. Because the trial court held that the videotape was inadmissible under Crawford, the court never determined whether the State properly authenticated the videotape under section 90.901, Florida Statutes (2010) (“Authentication or identification of evidence is required as a
condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”).

Law Offices
Edward J. Chandler, P.A.
708 East Atlantic Boulevard    Telephone:  (954) 788-1355
Pompano Beach, Fl 33060    Facsimile:  (954) 788-1357

"Serving Broward, Dade and Palm beach County"

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