BUI – Boating Under the Influence

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr.

Many people are familiar with DUIs but did you know that Florida Statutes Section 327.35 codifies BUIs or boating under the influence? BUIs are extremely similar to a DUI in most respects. To be convicted of a BUI, you must have your “normal facilities” impaired or have a BAL of .08 or higher; exact same for a DUI. However, being on a boat raises a host of additional or separate issues than with motor vehicles.  “Normal faculties” include but are not limited to the ability to see, hear, walk, talk, judge distances, operate a vessel, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

First, when can an officer stop your boat? For motor vehicles an officer may only stop a vehicle based upon probable cause for a traffic infraction or reasonable suspicion of a crime. However, an officer can stop a boat at any time for the purpose of ensuring compliance with fishing and vessel regulations.  Typically, boaters will be stopped for fishing or safety inspections.

In a DUI investigation you will be requested to perform field sobriety exercises. These consist on three standardized exercises: (1) Horizontal Gaze Nystagmus (HGN); (2) Walk and Turn; and (3) One Leg Stand. In order for these exercises to be performed properly, they must be conducted on a level dry surface.  Therefore, an officer will either give you “seated” field sobriety exercises or ask you or have someone else drive the boat to a location where they can perform the three DUI standardized exercises.

The consequences of a first time BUI are:

  • Up to six (6) months in jail;
  • Probation not to exceed twelve (12) months;
  • Fine from $500 to $1000;
  • Fifty (50) hours of community service;
  • Substance abuse evaluation, followed by any recommend treatment;
  • Ten (10) day vessel impound; and
  • Victim impact panel.

In a BUI, if you refuse to blow you do not have to worry about your license being suspended like you would in a DUI case by the DMV. There is a penalty for refusing a BUI breath test of $500. A second or subsequent refusal to provide a breath sample may be charged as a criminal offense. Even if you blow under a .08 you can still be prosecuted under the “normal facilities” impaired theory. Also keep in mind, you will not be asked to blow until you have already been arrested.

Lastly, you can be charge for a BUI even if you are not at the helm. According to the Florida Standard Jury Instructions for BUI, the term “operate” is broadly defined as follows:

“…to be in charge of or in command of or in actual physical control of a vessel upon the waters of this state, or to exercise control over or to have responsibility for a vessel’s navigation or safety while the vessel is underway upon the waters of this state, or to control or steer a vessel being towed by another vessel upon the waters of the state.”

With all of this being said, it is important that if you have been arrested for a BUI that you need to contact an attorney that is knowledgeable about the subject matter and not just someone that practices DUIs.

If you need assistance with a BUI or even a DUI, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.

Discovery – Generally

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr.

Discovery is the legal process of information gathering. This process is fundamental to developing or defending a lawsuit or criminal charge. This process will differ slightly in the framework of how it is conducted between a civil and criminal case. This is because criminal cases are governed under the Florida Rules of Criminal Procedure while civil cases are governed under the Florida Rules of Civil Procedure. There are many differences between the two but for the purposes of discovery the same overarching concept applies – fact finding.

Discovery is a mechanism for obtaining facts that may be relevant to your case. The concept of relevancy has a much wider application in the discovery context than in the context of admissible evidence at trial. This is true for both civil and criminal cases. In criminal cases, the State has the burden of proof and will do the vast majority of fact-finding as they obtain police reports/narratives, any videos or photos, physical evidence, or recorded statements before they make a decision to file a criminal charge but will have to disclose any discovery that they obtain and may use against a citizen accused at trial to the defense. However, an important aspect of defending a criminal case involves taking depositions of all the witnesses in a felony case to check on inconsistencies in testimony or determine the credibility and strength of a witness. The issue of disclosure of confidential informants can also arise. In Florida, you are not permitted to take depositions in misdemeanor cases. For DUI cases (which are misdemeanor unless upgraded to felony under certain circumstances), a formal review hearing can simultaneously work as a deposition of officers involved as it is taken under oath and recorded. Additionally, in certain criminal cases, it can be beneficial to obtain mental examinations during the discovery phase which can assist in the overall outcome of the criminal case.

Civil cases work a bit differently with a handful of overlap. Discovery can be obtained by a number of ways: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission as noted in Fla.R.Civ.P. 1.280(a). Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discStack of filesovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. Fla.R.Civ.P. 1280(b)(1). It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Fla.R.Civ.P. 1280(b)(1).

The discovery process will differ between civil and criminal cases but the theme of discovery remains the exact same for both – fact-finding of information that may reasonably calculated to lead to the discovery of admissible evidence.

If you need assistance with a legal matter, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.

Due Process – What is it?

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr., Esq.

Due process of law is one of the most fundamental aspects of our legal system in America. Due Process can trace its roots back to the Magna Carta. The Magna Carta was the first English document that limited the arbitrary power of government. Due Process affords citizens the right from the government in depriving anyone of life, liberty, or property without the opportunity to be heard at a meaningful time and in a meaningful manner. There exists two types of Due Process – Procedural and Substantive.

Procedural due process requires that each litigant be given proper notice and a full and fair opportunity to be heard. Carmona v. Wal-Mart Stores, East, LP, 81 So.3d 461, 463 (Fla. 2nd DCA 2011). Additionally, procedural due process serves as a vehicle to ensure fair treatment through the proper administration of justice where substantive rights are at issue. Id. As you may be aware, agencies such as the DMV, FWC, etc., often jokingly considered the fourth branch of government, are held to this standard as they are within the executive branch. As such, whenever you are having your license suspended by the DMV, for instance, because of a refusal in a breath test DUI case, you are afford the right for a formal review hearing before your license suspension can be upheld; unless you waive that right. Spoiler alert – hearing officers or those within agencies that preside over your hearing (giving you the constitutional bare minimum due process) are not trained in law and are just employees of the agency. It doesn’t take a brilliant mind to determine the typical outcome of these hearings.

Most often, there are no rules of evidence in these types of agency hearings, or the rules are barely adhered to, and it isn’t conducted in a manner which would be consistent with a court of law. The term most often used for these proceedings is a “kangaroo court.” Their rulings are suU.S. Constitutionbject to appeal but are rarely overturned. However, it does afford you the bare minimum due process of law as required by both the U.S. Constitution and the Florida Constitution. The great benefit of these hearings are in the vein of judicial economy. Courts have limited resources (namely, time) and the idea is to have certain matters heard by agencies as long as the agencies have the proper legal rules and principles – their authority must be consistent with constitutional constraints and legislative intent. However, a more detailed discussion on this topic would delve into the complex area of administrative law.

Substantive due process is distinguished from procedural due process. The substantive component of the Due Process Clause of law acts to limit state authority to enact measures that impinge on fundamental rights, even if enacted with appropriate procedural safeguards. Brandon-Thomas v. Brandon-Thomas, 163 So.3d 644, 646 (Fla. 2nd DCA 2015). Substantive due process protects the full panoply of individual rights from unwarranted encroachment by the government. Haire v. Florida Dept. of Agriculture and Consumer Services, 870 So.2d 774, 781 (Fla. 2004). Substantive due process prohibits the government from infringing on fundamental constitutional liberties. Where as, procedural due process applies to the manner in which law is administered, applied, or enforced. This means that procedural due process is connected to the hearings and right to be heard, i.e. formalities. Substantive due process concerns itself with acts that government must refrain from regardless of the fairness of the procedures used to implement them. This is best explained in that the government passes a statute which violates a fundamental right that no matter what procedural steps are taken to assure a fair hearing, the statute would not be a valid law. The key between the two is whether there is a formal shortcoming or because the substance of the law violates a fundamental right or fairness and as such cannot claim to be the law.

Due process of law can be a fairly complex legal issue and is most often litigated within the realm of administrative law. However, due process of law touches every corner of our legal system. Due process of law is vitally important to the goal of justice and fairness. This was first fleshed out in the Magna Carta but was then a foundational building block of the creation of our country and legal system.

If you need assistance with a legal matter, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.

Confidential Informants: Disclosure

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr., Esq.

As far as interesting topics in criminal law go – confidential informants are among the top. This is a brief primer on Florida’s disclosure of confidential informants. It is not the entire picture and does not substitute seeking the legal counsel of an attorney for your specific case. As always in the law, the answer is typically, “It depends.”

However, in many cases, arresting agencies use confidential informants to setup controlled exchanges. So, what happens when you or someone you know is arrested for a drug sale or an illegal firearm sale and there is a confidential informant involved? The State may try to keep the confidential informant’s identity hidden. It is well settled in Florida that the State “has a limited privilege to withhold the identity of a confidential informer…” State v. Zemora, 534 So.2d 864 (1988). This is based upon public policy that helps define the scope of the privilege. This privilege protects public interest in effective law enforcement. Without confidential informants, law enforcement will be unable to deter, detect, or stop a large quantity of crime. Additionally, the underworld often seeks out vengeance on informers which would ultimately stop informers from supplying law enforcement with the required information to stop crime, if disclosure was ordered in all cases.

Where the confidential informant supplied police with only information establishing probable cause for a search, disclosure is not required. State v. White, 418 So.2d 411 (Fla. 2d DCA 1982). A bare allegation that the defendant cannot prepare his case without disclosure is insufficient. State v. Hernandez, 546 So.2d 761 (Fla. 2d DCA 1989). Merely because a confidential informant is a witness to relevant events in a criminal case does not, without more, require the confidential informant’s disclosure. State v. Zemora. In essence, if the confidential informant is just a conduit for a transaction or a non-material witness, then the withholding of the identity of the confidential informer will likely stand.

It is clear that “the burden is upon the defendant claiming exception to the rule of non-disclosure to show why an exception should be invoked.” Treverrow v. State, 194 So.2d 250 (Fla. 1967). Where the disclosure of an informer’s identity, or of the contents of his communication, [1] is relevant and helpful to the defense of an accused, or [2] is essential to a fair determination of a cause, the privilege must give way. State v. Zemora (citing to Roviaro v. United States, 353 U.S. 53 (1957)). Under the first component of the Roviaro exception, Florida courts have ordered the disclosure of a confidential informant only in cases where the defendant asserted a legally recognized defense to the crime charged, supported that defense with sworn proof, and showed that the confidential informant was a material witness to this defense. State v. Zemora. As you may imagine, a popular defense in these instances would be entrapment. If the defense falls just short of satisfying the first Roviaro component then the court should hold an in camera review to determine if the subject informant is a helpful witness to the defense being raised by the defendant. State v. Zemora.

Under the second alternative component of the Roviaro exception, Florida courts have ordered the disclosure of confidential informants where such was deemed essential in order to guarantee the defendant his due process right to a fair trial; to date, the cases which have ordered such disclosure have centered around the defendant’s right to be informed of the crime with which he is charged or to confront the witnesses against him. State v. Zemora. This second Roviaro component does not trigger the in camera review.

Additionally, it has accordingly been held that the disclosure of a confidential informant is absolutely required where the defendant is charged with selling or delivering illegal drugs to the subject informant, where the state calls the confidential informant as a witness at trial, or where the informant executes the affidavit upon which a search warrant is issued for the search of the defendant’s home, or where the confidential informant is a defense witness at trial and the defendant seeks to cross examine a police officer concerning the informant’s identity and active involvement in the charged illegal drug transaction. State v. Zemora. It is possible and also logical that this also would concern the selling or delivering of any type of illegal subject matter – not just specifically illegal drugs. Again, it is important to note that if the confidential informant is not a material witness and is just a mere presence at the exchange then it is unlikely that the second component of the Roviaro exception will be granted.

Lastly, as for sanctions to be imposed for violation of a disclosure order, it is well settled that “in these situations the trial court may require disclosure of the confidential informant, and if the Government withholds the information, dismiss the information [or indictment].” State v. Zemora (citing Roviaro).

In summary, the Government has a limited privilege in nondisclosure of the confidential informant which can be bypassed through the two Roviaro exceptions. The first component of Roviaro if granted should likely result in an in camera hearing to determine the testimony of the confidential informant. The defendant need not allege all the elements of the defense; it is sufficient that the defense is possible in light of the alleged facts. State v. Zemora (citing Munford v. State, 343 So.2d 67 (Fla. 2d DCA 1977)). The second component of Roviaro has no in camera hearing but is based upon due process considerations and the right to confront witnesses. If the Government fails to disclose the confidential informant after disclosure has been granted, then the trial court should dismiss the information or indictment.

If you need assistance with your criminal case or another matter, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.

DUI SERIES: The Stop and Detection

Attorney John Mark Frazier Jr.

By: John M. Frazier Jr., Esq.

This is the first part of our new DUI Series which will outline each segment of a DUI stop and arrest from start to finish. This is to better educate the public regarding DUI and to become more knowledgeable about the process and legal rights involved.

A DUI case has three detection phases – (1) Vehicle in Motion; (2) Personal Contact; and (3) Pre-arrest Screening. Field sobriety tests are conducted in the pre-arrest screening.

During the first phase, law enforcement is taught to observe the vehicle and try to find any cues or clues that would indicate to the officer that there is a driving under the influence taking place. There are a whole host of cues (24) which are divided into four separate categories as defined by the NHTSA. I will not detail every single one but just gloss over the basics.

The first category includes problems maintaining proper lane position such as, straddling a lane line, wide turning radius, zigzagging and weaving across lane lines.

The second category includes issues with speeding and braking – accelerating and/or decele
rating rapidly, jerky stops, and driving slower than ten m.p.h. below the speed limidui-defenset.

The third category includes vigilance problems – slowly responding to traffic signals, slow or failure to respond to officer’s lights, siren or hand signals, failure to signal or signaling inconsistent with driving actions, and so on.

The fourth category includes judgment problems – following too closely, unsafe lane changes, unusual behavior, turning abruptly or illegally, and appearing to be impaired.

After the officer has determined to stop the suspect, the officer then must observe how that suspect responds. This is determined by ten cues such as, difficulty with controls, exiting the vehicle, fumbling with license or registration, balance issues, leaning on objects, slurred speech, odor of alcoholic beverages from driver, and so forth.

The second phase now begins. This is the personal contact phase. At this point, the officer uses all of his senses and experience to find clues or cues of impairment: slurred speech, admission of drinking, alcohol containers, drugs, bloodshot eyes, etc. After this point, the officer then must decide whether to ask the driver of the vehicle to step outside of the car. Once the driver has stepped outside of the vehicle then the officer will conduct the third phase which is pre-arrest screening – the field sobriety tests. Field sobriety tests consist of three standardized tests: (1) Horizontal Gaze Nystagmus; (2) Walk and Turn; and (3) One Leg Stand.

Next up in our DUI Series – Field Sobriety Tests.

If you need assistance with a DUI or another matter, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.

Violation of Probation – Florida

Most people know that the standard for a criminal case is “beyond a reasonable doubt.” Perhaps, as a result of the “CSI Effect” and all of the legal dramas on television. However, what many don’t know is that a violation of probation case has a different standard. The standard in a violation of probation case is “by the greater weight of the evidence”, in Florida, and the violation must be “willful” and “substantial.”

In fact, before anyone accepts probation for their underlying criminal charges they should be made aware of the pitfalls and risks of going on probation. Many probationers fail to successfully complete probation; in fact, as of the most recent annual report from the Department of Corrections for the 2013-2014 period, the rate of successful Community Corrections completion stands at 56.4%. Community Corrections includes, pre-trial intervention, probation, drug offender probation, sex offender probation, community control (house arrest), parole, conditional release, and addiction recovery. With that type of success rate (which, admittingly, seems higher than I anticipated), you will want to make sure you understand all of the terms of your probation and to have your attorney clear up any ambiguities.

Corrections Officer

The goal of any criminal defense attorney is to keep their client out of jail or prison. However, in some circumstances, it may be in your best interest to serve some time to squash an unreasonably lengthy probation period. For instance, if you have twelve (12) years of probation left but you are able to terminate those twelve (12) years by spending one (1) year and a couple months in the Department of Corrections then it may be in your best interest to do so depending upon your propensity to violate your probation. Otherwise, a couple violations and you may be spending the statutory maximum in prison anyways. Probation and Communty Correction is a system that is setup largely for a “got ya.” However, this is a decision left up to the client. The client has to serve the time and not the attorney.

There is no jury in a violation of probation case – the judge is the sentencer. There are only two court dates – (1) VOP arraignment, and (2) VOP hearing. The entire VOP process will typically only take two to three months unless there are grounds for continuances.

It is important to not rush off to admit any violations of probation. Let some of the process play out first. There are three options in resolving a violation of probation case – (1) Open plea (which opens you up to a statutory maximum possibility), (2) Negotiated plea with the State, or (3) VOP hearing (also opens you up to a statutory maximum possibility).

Each option has pros and cons. For instance, an open plea to the judge depends on your specific case and who is your assigned judge. That is why it is important for your attorney to know the personalities, tendencies, and quirks of each judge he or she practices in front of. The negotiated plea with the State depends upon who the Assistant State Attorney (ASA) is handling your case, your attorney’s ability to be a tough negotiator, your prior record (specifically, your scoresheet), the underlying crime for which you are on probation for, whether it was a techinical violation or a new law violation, and what conditions of probation that you are accused of violating. Lastly, the VOP hearing, which acts as a mini-trial of sorts, is the final step. If you are unable to reach an agreement with the state or want to avoid the uncertainty of an open plea in front of a judge known for harsh sentencing then you must have a VOP hearing. A VOP hearing will only take a couple of hours, at most, to conduct and can usually be completed during an afternoon. At the hearing it is important to remember that the standard is “by the greater weight of the evidence” (which is 51% in favor to win – a burden the state must meet) and that your violation must be both “willful” and “substantial.”

If you need assistance with a violation of probation or another matter, feel free to contact me. You can also follow me on Twitter, LinkedIn and Facebook for even more information.