Law Offices of Russo Pelletier & Sullivan

What Can I Use My Business Purposes Only License For in Florida?

    One of the more common questions that our Pinellas County DUI Defense law firm is asked is “what can I use my business purposes only license for?”  In many cases, our office is able to secure a hardship license after a client is charged with a DUI offense in St. Petersburg, Clearwater and the surrounding area.  This license carries with it a restriction that the client drive for “business purposes only.”  Common questions that we are asked are as follows:

• Can I drive my children to school?
• Is it legal to drive to the gym?
• May I drive my child to a medical appointment?
• Will I be arrested if I drive to DUI school?
• Can I drive to the location where I will perform community service hours?

The truth of the matter is, the legislature has not clearly defined those reasons that an individual may drive.  Florida Statute 322.01(35) defines a “restriction” as a means of prohibition against operating certain types of motor vehicles or a requirement that a driver comply with certain conditions when driving a motor vehicle.  Florida Statute 322.16(b) further provides that “the department may further impose other suitable restrictions on use of the license with respect to time and purpose of use, including, but not limited to, a restriction providing for intrastate operation only, or may impose any other condition or restriction that the department considers necessary for driver improvement, safety, or control of drivers in this state.  Lastly, Florida Statute 322.271(1)(c)(1) provides that “a driving privilege restricted to business purposes only” means a driving privilege that is limited to any driving necessary to maintain livelihood, including driving to and from work, necessary on-the-job driving, driving for educational purposes, and driving for church and for medical purposes.

A Grey Area of the Law

As you can see, there is not a well-defined list of places that a person operating a business purposes only license may drive, outside of work, school, church and medical appointments.  The vague nature of the statute raises a number of questions.  Does “DUI School” count as “educational purposes?”  Is driving my children to school essential for my livelihood such that it would qualify as an education purpose?  If my doctor says I need to lose 15 pounds, can I drive to the gym for medical purposes?

A great deal of confusion exists with respect to the lawful use of a DUI hardship license. Given the somewhat vague nature of the statute governing permissible use, it is no wonder that we see a wide variety of interpretations by law enforcement. Even driver’s license office personnel will often offer conflicting opinions as to the extent of the permitted use.

You May Have to Convince a Police Officer that you are Driving for a Lawful Purpose

Imagine this scenario:  your church is having a beach baptism ceremony.  You drive to this function using your business purpose only license as it is “for church.” On your way home, an officer pulls you over for running a stop sign.  When the officer runs your license, he sees that your privilege to drive is restricted to “business purposes only.”  You explain to the officer that you are driving home from a church function.  There is one problem: you are wearing a bathing suit.  In this moment, the officer will make a judgement call: does he believe that you were driving for business purposes only, or does he think that you were violating the BPO restriction.  If his decision is the latter, it is possible that you could be arrested for the second-degree misdemeanor offense of Violation of a Driver’s License Restriction pursuant to Florida Statute 322.16(5).

Can I Drive to Purchase Food?

Noticeably absent from the definition of “business purpose only” driving in Florida Statute 322.271(1)(c)(1) is permissive language that allows an individual to drive to purchase food.  Certainly obtaining and eating food is necessary for an individual to “maintain livelihood.”  There are two cases that illustrate the court’s analysis of this very issue. 

In Allart v. State, 9 Fla. L. Weekly Supp. 399c (Fla. 6^th Cir.Ct.App. June 6, 2002), the Pinellas County Circuit Court reversed the defendant’s conviction for violating his driver’s license restriction for business purpose only driving.  The evidence presented in that case established that, at the time that he was stopped by law enforcement, the defendant was driving to a McDonald’s restaurant.  Although the Circuit Court initially affirmed this conviction, a subsequent rehearing resulted in a reversal of the conviction, on the basis that the evidence submitted that the defendant was driving for a lawful purpose (ie. Getting food at McDonald’s).  In dicta, the Circuit Appellate Court speculated that the defendant was actually driving for a “longer sojourn” than just going to McDonald’s, but such evidence was not before the Court.

In State v. Quiroli, 9 Fla. L. Weekly Supp. 780b (Fla. Palm Beach County Ct. September 12, 2002), the defendant was stopped by law enforcement while driving to Burger King to purchase food.  At the time of driving, the defendant’s license was restricted to business purpose only driving.  The defendant filed a Motion to Dismiss, arguing that the driving at issue was permissible under Florida Statute 322.271.  In granting the defendant’s motion, the court reasoned that “driving necessary to maintain livelihood, includes driving necessary to obtain food.”

Tips for Using your Hardship License

If you are driving on a business purposes only license, every time you operate your vehicle you run the risk of being stopped by law enforcement and questioned regarding the legitimacy of your driving purpose.  For this reason, we have composed the following list of “tips” for driving on a business purpose only license:

• Never drive after having consumed alcohol. The odor of alcohol on your breath is a dead giveaway that you are not driving for a lawful purpose;
• Always look the part. If you are driving to church, it is probably not wise to be wearing a bikini.  If you are going to the grocery store, have a list of groceries on the way there, and bags of groceries on the way home;
• Use direct routes. Don’t let a police officer or the court believe that your driving was part of a longer “sojourn.”  If you are going to the grocery store, utilize the store that is closest to your home;
• If you have a job that requires driving to various locations, have an itinerary with addresses handy in the passenger compartment of your vehicle, preferably on your company letterhead; and
• If you are stopped by the police, be polite! Often times, your attitude will be the difference between a formal arrest, or the issuance of a citation.

If You have been Charged with a DUI or Violation of Driver’s License Restriction,
Hire Experienced Attorneys

The attorneys at Russo, Pelletier & Sullivan have nearly twenty-five combined years of representing clients on Criminal, DUI and traffic related matters in Pinellas County.  Our lawyers regularly appear in front of our local county court judges at the North County Traffic Court facility and the South County Traffic Court facility.

 

 Related Links:

• How to Save Time & Money in a DUI Case
• Get Your Driver's License Back
• Get Your DUI Reduced

The Law Offices of Russo Pelletier & Sullivan, P.A. 

9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

If you have a pending case in Pinellas County, we can help! Call our office to discuss the facts and circumstances of your case. 
(727) 578-0303 
Free consultations

 

How to Get My SCRAM Bracelet Off

   If you were recently arrested in St. Petersburg, Clearwater or the surrounding areas of Pinellas County for an alcohol related offense, such as a DUI, you may have been ordered to wear a “Continuous Alcohol Monitor” (CAM).

After your arrest, you would have appeared in front of a Judge for an “Advisory Hearing”. At this legal proceeding, the judge made a preliminary determination of whether you qualified for the services of the Public Defender’s Office and addressed the issue of setting a reasonable bond or ROR in your case. You should know, that in addition to setting a bond/ROR, the judge has the authority to impose other conditions of your release.  For example, the judge might order:

•         No consumption of alcohol;
•         No driving until you have secured a hardship license;
•         A curfew;
•         No Contact with the Victim (common in Domestic Battery cases).

The lawyers in our office have noticed a rising trend in judge’s ordering that defendants wear a SCRAM as a condition of their release. This is true even in those cases where an individual has no prior record of arrest. We suspect  that the Pinellas County Sheriff’s Office recent purchase of additional SCRAM devices has been the motivating factor. The PCSO charges an administrative fee of $10 per day for individuals ordered to wear this device. The wholesale ordering of a SCRAM at Advisory Hearings may be interpreted as the county’s effort to secure a return on their investment. These fees can become quite expensive, since the average DUI case can last between 4-6 months prior to a resolution.

 

Why Was I Ordered to Wear the SCRAM?

There are some fact patterns that may cause the judge to have concerns that the subject’s continued consumption of alcohol could pose a danger to the community.  Common cases that result in a SCRAM monitor being ordered may involve a subject with:

• Prior DUI convictions;
  
• A high breath or blood test reading;
• A crash, accident, injuries; or
• Minors were located in the vehicle at the time of the subject’s arrest.

 That being said, our office has encountered many cases that do not have these “aggravating” factors, yet the Defendant was still ordered by the judge to wear the SCRAM monitor.

 

 How Does the Monitor Work?

   SCRAM monitors are worn on the ankle and measure transdermal alcohol levels.  If you have smelled alcohol on a person after a night of drinking, you already have the premise of how this device operates.  After alcohol is consumed, it is absorbed into the bloodstream.  Alcohol gets metabolized through the liver, eliminated through the urinary tract, and some is passed through the skin through sweat.  The CAM device measures alcohol that passes through a subject’s pores through the sweating process. The SCRAM monitor measures alcohol levels continuously without a requirement that the subject participate in testing.

 

What Happens if I Test Positive for Alcohol?

If the device detects alcohol, a report will be electronically generated that is subject to an initial review by a member of the Pinellas County Sheriff’s Office “Pre-Trial Services” Division.  A decision is made whether it was a “confirmed alcohol consumption event” or an “environmental alcohol contact” event.  When looking at the data, a confirmed alcohol consumption event will show a rise in blood alcohol, and then a steady decline in alcohol levels as the subject absorbs and eliminates the alcohol.  An environmental alcohol contact event will show a sudden peak, and a sudden decline in alcohol level.

If the PCSO Pre-Trial Services division determines that an alcohol consumption event occurred, a warrant for your  arrest will be signed by the judge assigned to your case for violation of a condition of your of Pre-Trial Release.

 

 Could I have Avoided Being Ordered to Wear a Scram Device?

You could have avoided a Scram monitor requirement if you had achieved your release from the Pinellas County Jail before the advisory hearing. This can be accomplished in many DUI cases by posting a cash or surety bond after being booked in the Pinellas County Jail. If a bond is promptly posted, the subject will normally be released prior to the advisory hearing.By not having to appear before the judge, the individual will have side-stepped any SCRAM requirement.

 

 Can I Lawfully Get My SCRAM Alcohol Monitor Removed?

If a SCRAM monitor has been ordered in your case, an experienced Pinellas County DUI Defense Attorney can file a “Motion to Modify the Conditions of your Pre-Trial Release.” Our office routinely files written motions outlining our arguments as to why the  removal of the Scram device is appropriate in our clients’ cases. Thereafter, our office will schedule a hearing with the the Judge assigned to your case. At the hearing, the judge will:

• Examine your success thus far in avoiding the consumption of alcohol;
• Consider the absence of any of the aforementioned “aggravated circumstances”;
• Review the court records to see if you have been re-arrested or charged with a new criminal offense;
• Make an inquiry if you have had contact with a prohibited person or place;
• Acted in a responsible manner that demonstrates your respect for the court system. (For example, retained an attorney, registered for a DUI course if appropriate, or participated in an alcohol / substance abuse evaluation at the direction of your lawyer.)  
• Consider any special aspects of your occupation that could be adversely impacted by having to wear the Scram device.

It is important to recognize that the ordering of a SCRAM device at the advisory hearing is often accomplished in a perfunctory summary fashion. The brief nature of these first appearance hearings does not afford the judge the opportunity to fully consider all relevant factors. For this reason, it is not uncommon for the court to delete the SCRAM requirement after being fully apprised of factors that support our argument that that he does not pose a future risk of harm to members of the public.

 

Can Wearing a SCRAM Monitor Help My Case?

This evidence can sometimes be helpful in demonstrating that our client does not have an alcohol addiction, since they have refrained from using alcohol. The argument that follows is that his arrest was an isolated incident that is not likely to reoccur. In some cases, our client’s successful completion of a period of SCRAM monitoring can be used in our argument to the State that a Reduction of his DUI charge to the lesser offense of Reckless Driving is appropriate. The facts of every case are unique and the early advice of your lawyer can be highly beneficial.

Experienced Attorneys Who Can Help?

Our attorneys have nearly twenty-five years combined experience handling DUI and Criminal Defense matters.  Call our office for a free consultation today.

 Related Links:

• How to Save Time & Money in a DUI Case
• Get Your DUI Reduced
• DUI Drugs and Medication

The Law Offices of Russo Pelletier & Sullivan, P.A. 

9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

If you have been ordered to wear a SCRAM monitor and have a pending case in Pinellas County, we can help! Call our office to discuss the facts and circumstances of your case. 
(727) 578-0303 
Free consultations

Visit our dedicated criminal defense or DUI website for more information on your particular charge. 

www.defensehelp.com 

www.duistpetersburglawyer.com 

Should I agree to Take a Urine Test if Arrested for DUI in Florida?

One of the most common questions that any DUI Defense Attorney is asked is “Should I Take the Breath Test?”  A less common  question, is “Should I Submit to Urine Testing” if arrested for a DUI offense.

 

Why Would the Police Ask for a Urine Specimen?

While most people are familiar with the idea that if they are arrested for Driving Under the Influence in St. Petersburg or Clearwater, Florida, the police will request a breath test, fewer people are aware that law enforcement may also request that you submit to urine testing.

Florida Statute §316.1932(1)(b) provides that any person who has accepted the privilege to drive in the State of Florida has “impliedly consented” to a test of their urine for the purpose of detecting the presence of chemical or controlled substances if the individual has been lawfully arrested for driving under the influence and law enforcement has probable cause to believe that the individual is impaired by a chemical or controlled substance.

While a breath test is the primary method by which law enforcement would determine a person’s blood alcohol level, the testing of a urine specimen is the primary means by which law enforcement would determine if an individual has consumed a controlled substance or chemical substances.

 

Flaws in Urinalysis Testing

The problem with urine test results is that it only provides historical information.  While a urine test is generally accepted within the scientific community as a reliable method of determining whether or not a substance has been consumed, it is wholly unreliable in determining how recent the substance had been consumed. (See : Urine Testing...Is it Reliable Evidence in a DUI Case?)

There are many substances, such has antidepressants, pain medications and cocaine, that will remain detectable in a subject’s urine sample for up to a week after consumption.  Likewise, marijuana can be detected in a urine sample for up to a month, or even longer, depending on the individual’s body type and frequency of marijuana use. (See: How Long Will a Drug Test Be Positive?)

As a result, the submission of a urine sample could show the presence of a substance that the defendant is not currently under the influence of.  Of course, law enforcement will allege that the subject was impaired by the substance at the time of the arrest.

 

Is there a Benefit to Refusing the Urine Test?

In some cases, there is a tremendous benefit to refusing the urine test.  In order to establish that a defendant is guilty of Driving Under the Influence of a Controlled or Chemical Substance, the State must establish not only that the subject was impaired, but also that the source of the impairment is a substance that is defined by Florida law as a Controlled Substance, pursuant to Chapter 893 of the Florida Statutes, or an illicit chemical substance, as defined by Chapter 877 of the Florida Statutes.

Imagine this scenario:  you take your prescription pain medications.  You then get in a car and, for whatever reason, you are stopped by law enforcement.  The officer believes that you are impaired.  You exercise your right to remain silent and you do not provide the officer with any information as to any medications or other substances that you consumed.  You do not have your prescription medications with you in the car.  After your arrest, you are taken to the police stations and submit to a breath test.  Of course, because you have not consumed any alcohol, the results of the breath test are 0.000.  The officer then requests that you submit to a urine test. 

In this scenario, if you decline to submit to the urine test, the officer and the State Attorney will likely be unable to prove that you are DUI as they will be unable to establish that the source of the alleged impairment was a Controlled or Chemical substance.  In other words, in this scenario, you may arm your attorney with a strong argument to either secure a reduction in charge, a Not Guilty verdict, or an outright dismissal.

 

What Happens if I Refuse the Urine Test?

If you decline to submit to a urine test, the officer who arrested you will file a citation with the DHSMV alleging that you refused urine testing which will contain a “Notice of License Suspension.”  If this is your first and only DUI arrest in your lifetime, a first refusal to submit to a breath or urine test will result in a suspension of your privilege to drive for a period of one year.  If you agree to submit to a urine sample, although you may damage your chances of success in the criminal court, you will not suffer an administrative suspension of your license regardless of what substances are found in your system (though, if you are later convicted of a DUI, you would suffer a license suspension from the criminal court).  If this is your first and only DUI arrest in your lifetime, you would be immediately eligible to apply a hardship license for the entire one year driver’s license suspension.

If your driver’s license has previously been suspended for refusing to submit to a breath, urine or blood test, and you refuse a urine test for the present offense, there are two consequences.  First, you will suffer an eighteen month driver’s license suspension during which time you will be ineligible to obtain a hardship license.  Second, your refusal to submit to chemical testing may result in an additional first degree misdemeanor charge being filed against you for refusal to submit to testing.

 

How do I Protect Myself if I am Unsure if I will Test Positive on the Urine Test?

In some cases, a person is arrested for Driving Under the Influence and they are unsure of whether they will test positive for a controlled substance.  For example, the individual may have smoked marijuana at a party a few weeks ago, or taken an anti-anxiety medication the day before. In this scenario, there is a solution.

Under Florida law, if you submit to the breath and urine tests requested by law enforcement, you are entitled to have an independent blood draw conducted to determine the presence of chemical or controlled substances in your blood.  Although a urine test cannot tell us when a substance was consumed, a blood test is much more accurate for determining how recently a substance had been consumed.  Thus, if you are arrested for DUI, but concerned about the joint that you smoked at a party a few weeks ago, it may be wise to advise the officer “yes, I will submit to the urine test, but I would also like your assistance in obtaining an independent blood test.” 

Obtaining an independent blood test that yields results that demonstrate that you did not have any chemical or controlled substances in your blood stream at the time of your arrest can often be iron-clad affirmative evidence that you were not DUI.

 

What Should I do if I have been Charged with a Drug-Related DUI Offense in Pinellas County?

The DUI defense attorneys in our office are former state prosecutors and have nearly 25 combined years of experience representing individuals arrested for a DUI charge. We limit our practice to only DUI and Criminal Defense and only in Pinellas County. 

Call our office today and schedule a free consultation to discuss the unique facts and circumstances of your case with an experienced DUI lawyer. 

 

Related Links:
Best DUI Lawyer in St. Petersburg, Clearwater, Pinellas
DUI Frequently Asked Questions
Getting Your DUI Reduced
What If I Don't Want to Fight It
How to Save Time and Money 

The Law Offices of Russo Pelletier & Sullivan, P.A. 

9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

If you have been arrested for a DUI, we can help! Call our office to discuss the facts and circumstances of your case. 
(727) 578-0303 
Free consultations

Visit our DUI Defense Website for FAQ:  www.duistpetersburglawyer.com

Practical Tips if you are Stopped for a DUI in Florida this Holiday Season

     As the holiday season approaches, there will be heightened DUI enforcement on the roads of Pinellas County. In December 2016, Florida Govenor, Rick Scott, proclaimed December as Impaired Driving Prevention Month in Florida. The Florida Department of Highway Safety and Motor Vehicles further implemented this declaration into their annual campaign calendar.

Our DUI Defense team is often contacted by clients who were driving home from a holiday party in the St. Petersburg or Clearwater areas.  For these reasons, we have compiled the following tips to make sure that you don’t find yourself on Santa’s naughty list this holiday season:

1. Do be polite with the officer. No matter how well you do on the roadside field sobriety tests, if you fail the “attitude test,” you are likely to be arrested.
2. Don’t be afraid to exercise your rights – including your right to remain silent. If you are asked an incriminating question about your alcohol consumption, you may absolutely decline to answer and request an attorney.
3. Do have all of your vehicle documentation in an easy to find place. Law enforcement often concludes that a driver’s inability to locate their license, proof of insurance and registration is a further sign of impairment.
4. Don’t be fooled into thinking that you have to perform the roadside field sobriety tests. These roadside tests are not mandatory. (See: Refuse the Field Sobriety Test?)  You cannot lose your driver’s license if you decline to take pre-arrest roadside field sobriety tests.  These tests are very difficult and designed for failure.  However, be forewarned that if you decline to take these field sobriety exercises, you are likely to be arrested.  Nevertheless, in our experience, if the officer is asking you to perform these tests, he has likely already made up his mind to arrest you.
5. Do remember to check to make sure your headlights are on – especially if you parked your car at a valet. Valet drivers are notorious for changing headlight settings from “automatic” to “off.”  Other drivers may forget to activate their headlights when pulling out of a well-lit parking lot.  Obviously, driving without headlights at night is an open invitation to be stopped by law enforcement.
6. Don’t travel with alcohol containers in the passenger compartment of your vehicle. During this time of year, it is quite common to open a bottle of wine at a holiday gathering, but not finish it.  If you insist on taking the remainder of the bottle home, cork it and place it inside of your trunk, and out of the view of police officers.  Having an open container of alcohol in the passenger compartment of vehicle will cause the police officer to believe that not only were you driving after drinking alcohol, but that you were drinking while driving.
7. Do post your bond right away if you are booked into the Pinellas County Jail for a DUI. The detention deputies will likely tell you that there is a chance that you will could be screened to be “released on your own recognizance” (ROR) without the need for you to post bond.  If you do not post your bond quickly, you will be forced to appear before a judge the following morning at an “Advisory Hearing.”  Our office has noticed a trend that at this hearing, DUI defendants are often being ordered to wear a Continuous Alcohol Ankle Monitor (CAM) after meeting with the judge.  The cost of this monitor can sometimes exceed the amount of the original bond.  For that reason, we would encourage you to post a bond, so that you do not have to shoulder the risk of  additional expense and being branded with this scarlet letter.
8. Don’t think that your cooperation in readily submitting to a breath test will translate into leniency by the court system. Remember, if you are being asked to take a breath test, you have already been arrested.  If you arm the State with a high breath test result, this could make defending your case much harder.  In fact, a breath test reading of .15 or higher carries mandatory enhanced penalties under Florida law.  On the other hand, if you have only consumed a small amount of alcohol and you are confident that you are under the legal limit, by all means, you should submit to the breath test.  This could provide you with strong affirmative evidence of your innocence. 
9. Do understand the ramifications to your driver’s license and criminal record if you take or refuse the breath test. If you are a first offender and refuse to take the breath test, your license will be suspended for one year.  If you are a first offender and you take the breath test, and have a result over the legal limit, you will lose your license for a period of six months (Pro tip:  the police usually will only tell you that you will lose your license if you refuse to take the test, and leave out the part that you will also lose your license if you blow and are over the legal limit).  If this is your first DUI arrest, you will be immediately eligible for a hardship license regardless of whether you take the breath test or not.  If you have previously refused a breath, urine or blood test and suffered a resulting suspension of your license, you need to know that your second refusal will a) result in an additional first degree misdemeanor charge of “Refusal to Submit to Testing” and b) will result in an 18-month suspension of your driver’s license, during which you will be ineligible to obtain a hardship license.
10. Lastly, Don’t delay in meeting with an experienced DUI Defense Attorney. In most cases, you only have ten days to protect your privilege to drive.    

If you are arrested for DUI, we can help!  

The DUI defense attorneys in our office are former state prosecutors and have nearly 25 years of experience representing individuals charged with this offense. We limit our legal practice to aggressively defending individuals charged with Pinellas County DUI and Criminal Defense matters.

Call our office today to discuss the unique facts and circumstances of your case.  This consultation is free. 

 

Related Links:
Best DUI Lawyer in St. Petersburg, Clearwater, Pinellas
DUI Frequently Asked Questions
Getting Your DUI Reduced
What If I Don't Want to Fight It
How to Save Time and Money 

The Law Offices of Russo Pelletier & Sullivan, P.A. 
Attorneys at Law 
Former State Prosecutors 
9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

Call our office to discuss your unique case and how to protect your privilege to drive!
(727) 578-0303 
Free consultations

Visit our DUI Defense Website for FAQ:  www.duistpetersburglawyer.com

Can you really get a DUI on a horse? Neigh!

A recent arrest in Polk County, Florida has caught the national media attention as a woman was arrested for DUI while riding her horse.  Our office has received numerous questions about the legitimacy of this arrest.  While it is certainly dangerous to ride a horse while under the influence of alcohol or controlled substances, it is our belief that the Polk County State Attorney’s Office will be unable to secure a conviction under the circumstances of this case.

 

 Unpacking the DUI Law 

 Florida Statute § 316.193 (1)(a)-(c) provides that A person is guilty of the offense of driving under the influence if the person is driving or in actual physical control of a vehicle within this state and: 

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired; 

(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or 

(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.  

Florida Statute § 316.003(97) defines “Vehicle” as “every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except personal delivery devices and devices used exclusively upon stationary rails or tracks.” 

The word “device” is not defined in the Florida statutes.  In the Missouri case of State v. Blackstone, 115 Mo. 424, 22 S. W. 370, the court defined device as “An Invention or contrivance; any result of design; as in the phrase ‘gambling device,’ which means a machine or contrivance of any kind for the playing of an unlawful game of chance or hazard.”  The Merriam-Webster dictionary defines “device” as “a thing made or adapted for a particular purpose, especially a piece of mechanical or electronic equipment.” 

Riding a Horse is the Equivalent of Walking Under Florida Law 

Setting aside the rhetoric of interpreting whether a horse is a “device,” the Polk County State Attorney’s Office need only look at Florida Statute § 316.073.  This statute specifically addresses the applicability of the “Motor Vehicle” laws contained in Chapter 316 to animals and animal-drawn vehicles.  It provides that “Every person driving an animal-drawn vehicle upon a roadway is subject to the provisions of this chapter applicable to the driver of a vehicle, except those provisions of this chapter which by their nature can have no application. The provisions of this chapter applicable to pedestrians, with the exception of s. 316.130(3), apply to any person riding or leading an animal upon a roadway or the shoulder thereof.” 

Thus, under our analysis of this arrest, the Defendant should not have been arrested for Driving Under the Influence because she was physically riding “on” the horse.  Had the Defendant been riding in a carriage behind the animal, that would be a “horse of a different color.” 

If you are arrested for a DUI , we can help!  

The DUI defense attorneys in our office are former state prosecutors and have nearly 25 years of experience representing individuals arrested for a DUI charge. We limit our practice to only DUI and Criminal Defense and only in Pinellas County. 

Call our office today and schedule a free consultation to discuss the unique facts and circumstances of your case with an experienced DUI lawyer. 

Related Links:
Best DUI Lawyer in St. Petersburg, Clearwater, Pinellas
DUI Frequently Asked Questions
What If I Don't Want to Fight It
How to Save Time and Money 

The Law Offices of Russo Pelletier & Sullivan, P.A. 
Attorneys at Law 
Former State Prosecutors 
9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

Call our office to discuss your options 
(727) 578-0303 
Free consultations

Visit our Comprehensive Criminal Defense website: www.defensehelp.com 
Visit our DUI Defense Website for FAQ:  www.duistpetersburglawyer.com

Cost of a DUI in St. Pete Up $500 Because of New Vehicle Impound Law

   St. Petersburg, Florida is gaining a reputation for money grabbing in connection with arrests for criminal offenses. Through creative local ordinance legislation they have devised ways to fill the coffers of the city's general fund. In 1999, the St. Petersburg City Council enacted an ordinance directing their police officers to impound any vehicle used in connection with a solicitation for prostitution charge. The ordinance mandated that those arrested for this offense pay a $500 administrative fee to recover their vehicle. The ordinance was expanded to cover drug arrests where a motor vehicle was used in the commission of the crime.

St. Petersburg is at it again with efforts to impose ancillary financial burdens on those persons arrested in their jurisdiction. On October 5, 2017, members of the St. Petersburg City Council passed an amendment to Ordinance 304-H, Section 20-122 of the City Code to add the charge of driving under the influence pursuant to Florida Statute 316.193 as a criteria for motor vehicle seizure, impoundment and a fine. The amendment allows St. Petersburg Police Officers to place an administrative $500 hold on any vehicle involved in a DUI offense. This fine would be in addition to the fees already assessed by the towing company for the retrieval, transportation and storage of the vehicle.

Click this video link to watch the St. Petersburg City Council discussion in their efforts to justify the additional fine. (See Section J-6 at minute 48).

The penalties for DUI in Florida are already highly burdensome. Surprisingly, the city admits that the additional $500 penalty does not represent compensation for the officer’s time and efforts to arrange for the towing of the vehicle. The police agency is already compensated for the time of its officers through the “investigative cost penalties” imposed by the judge on those persons ultimately convicted of DUI.  At the council meeting, city officials argued that the new fine was being assessed to deter those arrested for DUI from committing the offense again within St. Petersburg city limits. We find this claim to lack merit, since it is unlikely the new local ordinance would cause a member of the public to consciously choose to consume alcohol in neighboring Clearwater, as opposed to St. Petersburg.

What if My Charge is Later Reduced or I am Not Convicted?

Having your DUI charge reduced to the lesser offense of Reckless Driving carries substantial benefits associated with your privilege to drive,, insurance premium increase ramifications and your criminal record. In addition, avoiding a conviction for the DUI offense  will entitle you to a refund from the city for the impound fine previously paid.

Requesting a Civil Hearing in Lieu of Paying the Impound Fine

Rather than summarily paying the impound penalty to secure the release of your vehicle, you can talk to us about your right to challenge the $500 fee by timely requesting a civil preliminary hearing. The law requires that you be notified of your right to a hearing within 2 business days from the date your vehicle was impounded. Thereafter, the hearing challenging the fine must take place before a judicial magistrate within 5 business days.

What Should I Do If My Vehicle Was Impounded for a DUI Offense?

It is important to immediately schedule a free consultation with an experienced St. Petersburg / Clearwater DUI defense attorney. Our lawyers can inform you at which impound lot your vehicle is currently being stored. They can guide you through the steps for retrieving your car after a Pinellas County DUI arrest  and discuss your option of requesting a civil hearing.

There are other important deadlines to be aware of when charged with a DUI offense. You only have 10-calendar days from the date of your arrest to challenge the administrative suspension placed on your driver’s license. By timely taking prompt action, most drivers take advantage of a new law that would eliminate any interruptions in their driving privileges. It is important to promptly meet with us to discuss all steps that need to be taken to protect your best interest.

Your Privilege to Drive and Freedom are in Jeopardy.
We Can Help!

The criminal defense attorneys in our office practice exclusively in Pinellas County and have a combined experience of over 25 years representing clients facing a DUI charge. They recognize the importance you place on being able to lawfully operate a motor vehicle. They also realize the stressful situation you may be currently experiencing. See: How to Emotionally Survive a DUI.

Call our office today and schedule a free consultation to discuss the unique facts and circumstances of your case with an experienced DUI lawyer. 

Related Links:
Best DUI Lawyer in St. Petersburg, Clearwater, Pinellas
DUI Frequently Asked Questions
What If I Don't Want to Fight It
How to Save Time and Money 

The Law Offices of Russo Pelletier & Sullivan, P.A. 
Attorneys at Law 
Former State Prosecutors 
9721 Executive Center Drive North 
Suite #120 
St. Petersburg, FL 33702

Call our office to discuss your options 
(727) 578-0303 
Free consultations

Visit our Pinellas County DUI Defense Website :  www.duistpetersburglawyer.com

How to Find Best Pinellas DUI & Criminal Defense Attorney... Ask About Their Training & Experience

Our DUI & criminal defense law firm has been representing clients in Pinellas County for over thirty years. During that time, we have observed a surprising number of new law schools open for business. Scores of new lawyers have entered the local practice of law. But, that does not mean they are all alike. To the contrary, you are likely to be surprised about changes that have taken place in the legal profession.

In a 2014 article we examined the dilemma of a college graduate in choosing to attend a private or public law school in Florida. Today's article delves into a more serious topic that many commentators warn may be effecting the public's best interest.

Can Your Lawyer Think on Your Feet?

The traditional method of teaching law in the United States for the past 100 years has been the Socratic Method. The general public first became aware of this practice as a result of a best selling 1971 novel entitled the "Paper Chase." The book was turned into a movie and the movie became a television series.  

Most lawyers consider the Socratic method of teaching a "right of passage" in their pursuit of a Juris Doctorate degree. This advanced degree is a necessary pre-requite to sit for the state Bar examination. The Socratic method entails having the professor choose a law student in the classroom at random. The student is then required to stand and participate with the teacher in a series of continual probing questions about a legal case. The method of teaching was designed to stimulate critical thinking, draw out ideas and advance public speaking skills. The law student in the "hot seat" literally must "think on his feet," much as he would in a courtroom responding to a judge's inquiries or his opponents arguments. Put simply, learning to think like a lawyer is equally as important as learning the law. 

The Watering Down of a Legal Education?

If you are contemplating retaining the services of a lawyer, it is imperative that you inquire about their background, education and training. You might conclude there has been a "watering down" in the education of some law school graduates.

Consider these new developments in our legal education system:

• Forty-four universities now offer a six year program to achieve both a bachelor and Juris Doctor Degree. The bachelor's degree is awarded after a student concludes his first year of law school. In other words, the first year of law school counts double toward both the undergraduate and post graduate degree. Seven years of education have been summarily shortened to six years.
  
  
• U.S. News & World Report has surmised that because of student concerns over tuition and the opportunity cost associated with foregoing a salary for three years (typically required to complete a law degree), there has been an emerging trend to develop accelerated Juris Doctorate programs. As a result, twenty one law schools (including one in Florida) now offer an accelerated two year program to secure a juris doctorate degree. Did your prospective attorney participate in legal studies for two or three years?
  
  
• Currently, there are eighty law schools that offer part time programs. These students work during the day and attend law school at night. Balancing a career and raising a family while attending law school can be very challenging. Typically, three hours of homework and preparation are required for each hour of classroom session time. Showing up for an evening class tired or less than fully prepared does not contribute to a valuable learning experience. Valuable hands-on externships, clinics, and summer clerkships are likely unavailable to a part time law student as they would interfere with his obligations to his employer. It is also important to note that there is a lower admissions criteria for part time law students. This means that the lawyer you are considering may not have been qualified to enter study as a full time law student and was forced to attend part time. The U.S. Department of Labor, Bureau of Labor Statistics estimates that approximately one out of every ten lawyers attended law school on a part time basis.
  
  
• Did you know that it is now possible to obtain a law degree by limiting your attendance at law school to only on weekends? That's correct, the American Bar Association has approved weekend study for would be lawyers at various law schools nationwide.
  
  
•  If you are concerned about a lawyer who only attended law school on weekends, you should be aware that the "watering down" of a legal education has fallen further down that "slippery slope." William Mitchell Law School, located in St. Paul, Minnesota is the first law school to achieve ABA accreditation for their online law degree. After achieving their online degree, William Mitchell Law School graduates are eligible to take the bar exam in all fifty states. 

Law schools have varying degrees of success in their preparation of students to become effective advocates. Nevertheless, we believe that the "experimental learning" or short cut methods as described above create a crisis of confidence in a law school's ability to train future effective attorneys. In our opinion, if this is the "new normal" of law school education, it represents a poor method of shaping the legal talent pipeline for the needs of the public.

Selecting the Right Attorney...
Ask Us About Our Education & Experience

The lawyers in our St. Petersburg / Clearwater office obtained a four year undergraduate degree and thereafter attended law school in the traditional and rigorous fashion. It is axiomatic that a good legal education can be key to later success in the courtroom. Our attorneys mastered their effectiveness in making legal arguments through the Socratic method of legal education. They benefited from participation in extra curricular legal activities, trial advocacy competitions and judicial clerkships. Before graduating law school they worked as law clerks in a criminal defense firm and completed clinical internships at the Pinellas County State Attorney's Office. Thereafter, they went on to serve as Pinellas County State Prosecutors.  You can feel confident that they possess the skills necessary to provide you with highly effective representation.

 Related Links:
The Crisis in Legal Education
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Best Criminal Defense Attorney St. Petersburg, Clearwater, Pinellas
Law Schools Duel For The Worst Bar Passage Rates Ever
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Many Law School Degrees "Worse than Worthless"
Highest Rated Lawyer, Pinellas, Clearwater, St. Petersburg
Who is Attorney Marc Pelletier?
Who is Attorney Tim Sullivan?

The Law Offices of Russo Pelletier & Sullivan, P.A.
Attorneys at Law
Former State Prosecutors
9721 Executive Center Drive North
Suite #120
St. Petersburg, FL 33702

Call our office to discuss your options
(727) 578-0303
Free consultations

Visit our Comprehensive Criminal Defense website: www.defensehelp.com
Visit our DUI Defense Website for FAQ:  www.duistpetersburglawyer.com

Fighting the DUI Breath Test

The results of a polygraph or “lie detector” examination are normally not admissible in Florida courtrooms. If the results from this machine were admissible as evidence, this would circumvent the responsibility of a jury who is charged with the duty of assessing witness credibility and deciding the guilt or innocence of the accused.

The Intoxilyzer... Trial by Machine?

The results of a polygraph machine may not be admissible in court, but the results of an Intoxilyzer machine are routinely introduced as lawful evidence by Pinellas County prosecutors. At the conclusion of the trial, the judge reads Jury Instruction 28.1 to the members of the jury panel who have previously been sworn to follow the law:

“To prove the crime of Driving under the Influence, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) drove [or was in actual physical control of] a vehicle;

2. While driving [or in actual physical control of] the vehicle, (defendant) had a breath alcohol level of .08 or more grams of alcohol per 210 liters of breath.”

This jury instruction is premised on Florida Statute 316.1934(2)(C) which states: 

“If there was at that time a blood-alcohol level or breath-alcohol level of 0.08 or higher, that fact is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Moreover, such person who has a blood-alcohol level or breath-alcohol level of 0.08 or higher is guilty of driving, or being in actual physical control of, a motor vehicle, with an unlawful blood-alcohol level or breath-alcohol level.”

Mechanized Justice?

The evidentiary weight given to breath test readings in Florida carries a “presumption of impairment.” One legal scholar adeptly recognizes that “Human witnesses now often give way to gadgets and interpretive software, juries’ complex judgments about moral blameworthiness give way to mechanical proxies for criminality, and judges’ complex judgments give way to sentencing guidelines and actuarial instruments.” Andrea L. Roth Georgetown Law Journal, Vol. 104, No.5. 2016.

If you have been arrested for DUI in St. Petersburg, Clearwater or other city within Pinellas County, it is imperative that you have experienced legal counsel carefully and systematically review every aspect of the breath testing process. This includes, but is not limited to, scrutinizing the calibration, ascertaining substantial compliance with the testing protocol and examining the licensing credentials of those individuals involved in the maintenance and operation of the machine. See: Can We Keep Your Breath Test Results Out of Court?

Your Right to Challenge the Breath Test Results

“Over the years, the public’s perception of drunk driving has evolved. What the public once viewed as a common indiscretion it now views as a serious crime and public health hazard. The state’s drunk driving statutes now are enforced rigorously, prosecuted zealously, and provide for substantial punishments. This is proper. It is also proper however,that we remain vigilant in safeguarding the rights of individuals, and ensure that those accused of serious crimes such as DUI have the aid of the process necessary for them to defend against such charges.” Dennis Snyder v. State of Alaska

Florida’s Implied Consent Law requires a driver arrested for DUI to submit to Intoxilyzer testing or suffer an administrative driver license suspension. However, a burden is also placed upon the prosecution to show that law enforcement has complied with a multitude of rules and regulations associated with FDLE and agency inspection, calibration and operation of the machine. Inclusive is the proper certification of those persons responsible for its care and accuracy.

The three criminal defense attorneys in our office are well acquainted with the various statutory and administrative laws associated with Intoxilyzer breath testing in Florida. You can recognize the passion we have in this area of the law by visiting our Breath Test Museum. Through our careful review of documentation in your case, we can look for non compliance, irregularities and machine repairs that could result in the disqualification of your breath test results.

Lawyers Who Aggressively Defend DUI Cases
St. Petersburg – Clearwater – Pinellas

 

Call a Former State Prosecutor! 

 

Free Consultation with a Criminal Defense Attorney
(727) 578-0303

For More information...
See Our Extensive Pinellas DUI Website

Related Links:
Should I hire a Lawyer for a First Time DUI?
The Decision – Blow or Refuse the Intoxilyzer?
Florida DUI Penalties
Evaluating the Strengths & Weaknesses of Your DUI Case 
How to Get a DUI Reduced
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How to Emotionally Survive a DUI

No one ever wakes up in the morning and decides to commit a DUI offense. This criminal charge is somewhat unique to most illegal conduct because the prosecutor need not prove “Mens Rea” or “specific intent.” A DUI arrest typically follows the exercise of poor judgment, as opposed to a deliberate and conscious decision to violate the law. Alcohol clouds the judgment and the individual simply exercises a poor choice in getting behind the wheel.

You are Going to Get Through this

We counsel clients that a first time DUI offense absent serious injury or death is not a felony or a crime involving untruthfulness or dishonesty. Yet, people charged with a first time DUI offense can often be “hard on themselves.” They regret the conduct  that resulted in their arrest. The stress caused by their arrest can weigh heavily on them a result in sleepless nights. Clients who visit our office after a DUI arrest are often hard on themselves. Last year, there were 61,852 arrests for DUI in just the state of Florida. If you were arrested for a DUI, you can see from the statistics, you are certainly not alone. The lawyers in our office have to encourage clients to keep the proper perspective. We remind them that although this is a serious charge, “it is not the end of the world.” Together, we are going to get through this problem.

Top Five States For DUI Arrests in 2015

California: 214,828
Texas: 90,066
Florida: 61,852
Pennsylvania: 53,319
North Carolina: 49,599

A DUI Arrest Can Happen to Anybody

Over 1.5 million people are arrested each year for DUI in the United States. This includes many notable people. However it is important to remember that in the overwhelming number of cases, getting arrested for a DUI offense did not serve as an impediment for their success in both their professional and personal lives:

• President George W. Bush
• Vice President Dick Cheney (Twice)
• Tim Allen (Comedian & Television Actor)
• Reese Witherspoon (Actress)
• Charles Barkley (Professional Athlete)
• Diana Ross (Entertainer)
• Sam Donaldson (National News Anchor)
• William Levada (Catholic Cardinal)
• Wynonna Judd (Entertainer)
• Nick Nolte (Actor)
• Tracy Morgan (Twice) (SNL Comedian & Television Host)
• Robbie Knievel (Motorcycle Daredevil)
• Michael Phelps (Twice) (Olympic Athlete)
• Carlton Fisk (Baseball Hall of Famer)
• Bobby Dale Earnhardt (Race Car Driver)
• Crystal Davis (Eastern Kentucky Police Chief)

Taking Steps to Address Your Anxiety

Clients worry if their arrest will appear in the local newspaper. They contemplate the embarrassment they will suffer if their friends or family members learn about the incident. They typically express concern that their DUI could jeopardize their employment, result in a jail sentence or cause their privilege to drive to be suspended. All of this can result in sleepless nights.

If you have been arrested for DUI, you may be experiencing fear, shame or humiliation. It is normal to experience some anxiety. However, you are likely to gain a greater peace of mind by meeting with a qualified DUI Defense lawyer to answer your immediate questions.

You can take advantage of significant insight from a defense lawyer who has first-hand experience with the Pinellas County Criminal Court system. We have an established professional working relationship with the Pinellas prosecutors and will be in a good position to evaluate the chances for a reduction of your DUI charge to the lesser offense of reckless driving. You can inquire who is the judge assigned to your case and learn what to expect. Another way to effectively cope with stress is keeping busy. We can teach you the proactive steps you can take in your effort to save time and money in connection with your DUI charge. We can answer your question as to whether we can keep your driving privilege uninterrupted, as well as, educate you on the topic of hardship licenses.  

We have helped thousands of people charged with DUI. Spending time with us at a free consultation could remove some of the weight from your shoulders and enable you to get your life back on track.

Let Your Arrest & Concerns Become Our Responsibility

We invite you to meet with us so that we can learn what goals and objectives are most important to you. Together we can tailor a strategy that is focused on attempting to achieve the best possible outcome according to your individual needs.

Lawyers Who Aggressively Defend DUI Charges
St. Petersburg & Clearwater Area

 

Call a Former State Prosecutor! 

 

Free Consultation with a Criminal Defense Attorney
(727) 578-0303

For More information...
Visit our Comprehensive Pinellas DUI Website

Related Links:
DUI Arrest Statistics
Pinellas DUI Wolfe Pack – Nets 40 Arrests in one Night
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DUI – Blow or Refuse the Intoxilyzer?
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Pinellas Judges Scheduled to Rotate Divisions Effective July 1st 2015

Pinellas County Judges are subject to being transferred to new courtrooms and new assignments, twice each calendar year. These changes typically take effect shortly after the first of each calendar year and again on July1st.

Pursuant to Administrative Order No. 2015-022 PI-CTY, on July 1st, 2015 we can expect the following rotation of Pinellas judges who handle criminal and traffic court matters:

 

• John Carballo is leaving Misdemeanor Division “G.” However, his replacement has yet to be decided and announced;
• Judge Susan Bedinghaus is leaving Misdemeanor Division “P” and has been assigned to replace Judge James Pierce at the North County (Clearwater) Traffic Court Division
• Judge James Pierce has yet to be assigned his new division.
• Judge John Carballo will be joining Judge Paul Levine in handling section “P” advisories, including first appearance for domestic violence criminal cases; arraignment hearings on Notices to     Appear; Local Ordinance Violations, non-criminal payable infractions and other duties assigned by the Court;
• Judge Anthony Rondolino will replace Judge J. Thomas McGrady and become our new Administrative Chief Judge in Division “J”;
• Judge J. Thomas McGrady will replace Judge Frank Quesada in Division “O”;
• Judge Frank Quesda will replace Judge Cynthia Newton in Division “K.” Judge Cynthia Newton will be moving to the Circuit Civil Division in St. Petersburg;

Learn who will be the Pinellas Judge assigned to your misdemeanor, felony, DUI or criminal traffic matter prior to July 1st, 2015.

We are Attorneys who Defend Criminal Charges Arising out of St. Petersburg / Clearwater / Pinellas County.

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Possible Solutions For Your Pinellas Criminal Charge: www.defensehelp.com
Pinellas / St. Pete / Clearwater DUI Lawyers: www.duistpetersburglawyer.com
FAQ Florida Ignition Interlock Laws: www.floridaignitioninterlocks.com

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