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.