Bucs Wide Receiver Charges with DUI Despite Breath Test Under the Legal Limit

As reported at http://www.tampabay.com/news/publicsafety/tampa-bay-buccaneers-receiver-mike-williams-accused-of-dui/1135235, the Buccaneers star wide receiver Mike Williams was recently arrested for DUI. According to the report, he was stopped by police for speeding and weaving in traffic at 2:48 a.m. in Brandon. He apparently failed field sobriety tests and was arrested. He then gave breath samples of of .065 and .061, both under the legal limit of .08. This news has given rise to many questions of how he could be charged with DUI if his breath alcohol content was below the legal limit.

In Florida, there are two ways to prove a DUI. The first is where the driver has a blood or breath alcohol content above the legal limit of .08. This is also known as DUBAL – driving with an unlawful blood/breath alcohol content. The second is driving while under the influence of alcohol or drugs to the extent the person’s normal faculties (vision, balance, reactions) are impaired. Whether someone is impaired is different in each circumstance. One person may be impaired with a lower alcohol level than another.

In impairment cases, the officer’s observations of the driver and the performance on field sobriety exercises are critical. Of course, the field sobriety exercises are simply a means for the officer to collect evidence against the driver for use at trial later. The observations are highly subjective in many cases, and made by an officer that is specifically looking for signs of DUI.

So while the star receiver may have been under the legal limit, he still may be convicted of DUI based on his level of impairment.

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It Can Happen To Anyone

One the of things I have learned over my years as a prosecutor and a criminal defense attorney is that good people often find themselves on the wrong side of the law. Sometimes out of desperation, sometimes out of a momentary lapse in judgment.

A prime example is the case of Captain Scott Sciple, USMC. Capt. Sciple served four tours of duty in Iraq and Afghanistan, earning three Purple Hearts and a Bronze Star. While back in the states recovering from an injury – and awaiting to return for a fifth tour – Capt. Sciple suffered a massive lapse in judgment which led to the death of Pedro Rivera.

Capt. Sciple has been formally charged with DUI Manslaughter in the death of Mr. Rivera. According to a report by the St. Petersburg Times, Capt. Sciple drove his car the wrong way on I-275 and caused a head-on crash with Rivera’s car. Blood tests taken by law enforcement showed a blood alcohol level of .255 – more than three times the legal limit of .08.

While Capt. Sciple has served his country admirably, and most likely had no intention of harming anyone that morning, his actions have led to a horrific and tragic result.

New Law Allows Reinstatement After Permanent License Revocation

Florida Governor Charlie Christ recently approved HB 971, which, in some situations, provides for reinstatement of driving privileges for individuals with permanent revocations due to four or more DUI convictions. The new law is effective October 1, 2010.

Starting October 1, 2010, those whose last conviction (or release from incarceration) for DUI was more then 10 years ago are eligible to apply. (Effective October 1, 2011, the time reduces to 5 years.) A hearing must be held for the Department of Highway Safety and Motor Vehicles to determine whether the qualifications have been satisfied. The conditions include:

• No drug arrest for the past 5 years
• No driving for the past 5 years
• Drug free for the past 5 years
• Completion of DUI school

If all of the qualifications are met and the DHSMV approves the application, the person must be supervised by a DUI program throughout of the entire revocation period. The first year of license reinstatement is for business purpose only driving. Additionally, an ignition interlock device is required on the person’s vehicle for 5 years.

If you have had your license permanently suspended in Florida for DUI convictions, contact us to determine whether you might qualify for reinstatement under the new law.

Stephen Lawler, Esq.
http://www.thelawlerfirm.com

If You Want To Remain Silent, You Can't Remain Silent!

Almost every American citizen knows that among our many rights are the right to remain silent (Fifth Amendment) and the right to an attorney (Sixth Amendment). In the recent United States Supreme Court case of Berghuis v. Thompkins, 08-1470 (JUNE 1, 2010), the Court held that the right to remain silent must be affirmatively and unequivocally invoked by the suspect. In the Thompkins case, the suspect had been arrested in relation to a homicide. Officers questioned the suspect over a three-hour period during which he was almost completely silent. Toward the end of the three-hour period, the officers asked if he wanted forgiveness for the death, to which he responded “yes.” The Supreme Court by a 5-4 margin held that the police interrogation was permissible and the incriminating statement was admissible evidence.

The Court held that he failed to unambiguously and unequivocally assert his right to remain silent. Apparently, his three hours of silence in response to relentless questioning was insufficient to show his intentions. In other words, he could not just remain silent, but had to affirmatively tell the officers that he wanted to remain silent and did not want to answer their questions.

This is another in a line of recent cases from the Court favoring law enforcement over the rights of the individual suspect. If you are ever in the unfortunate position of being a criminal suspect, remember to tell the officers loud and clear that you invoke your right to remain silent, and that you want your lawyer immediately.

Stephen Lawler, Esq.
http://www.thelawlerfirm.com