Posts Tagged ‘Florida DUI defense attorney’

Double Jeopardy as a Protection against Multiple Charges

Tuesday, May 10th, 2011

A situation that sometimes arises in a Florida DUI case is where a driver pleads guilty to a misdemeanor DUI conviction and the State later decides that it would like to pursue felony charges.  This is much more than a technical or theoretical issue, there are defendants who have avoided felony Florida DUI charges by pleading to a charged misdemeanor.  Even though one’s conduct of driving under the influence may technically qualify as a misdemeanor DUI or felony DUI, the Constitutional protection against double jeopardy prevents a person from being convicted of both a misdemeanor and felony offense.  This means that if a driver pleads guilty to a misdemeanor DUI offense, the State cannot later decide to prosecute the driver for felony DUI.  The case of State vs. Witcher, 737 So. 2d 584 (Fla. Dist. Ct. App. 1st Dist. 1999) provides a good example of this situation.

In the case of State v. Witcher, 737 So. 2d 584 (Fla. Dist. Ct. App. 1st Dist. 1999), the driver was driving a vehicle when he collided with a telephone pole, which resulted in the injury of his two passengers.  The driver was charged with simple driving under the influence (DUI) by the county court, but the circuit court subsequently charged the driver with felony DUI.  The driver pled guilty to the misdemeanor DUI charge and moved to dismiss the felony DUI charge on double jeopardy grounds.  Double jeopardy in this context basically means that a person cannot be prosecuted for an offense in which all of the elements (essential facts that must be established) are contained within the definition of another offense.  This is sometime called a “lesser included offense.”

The court in Witcher dismissed the felony DUI charge, and ruled that the state could not pursue the felony charges based on the principle of double jeopardy.  The court upheld dismissal of the felony driving under the influence charges against the driver because the state was prohibited, on double jeopardy grounds, from pursuing felony charges in the circuit court after defendant had already pled guilty to misdemeanor DUI charges in the county court arising out of the same accident.  The point is that the state could not essentially punish the driver for the same criminal act under more or less the same charge with the only difference being the punishment.

Double jeopardy is a United States Constitutional protection that only allows a citizen in any criminal case to be prosecuted once for the same crime.  What happened in the Witcher case was that the defendant entered into a plea bargain with the State of Florida on the misdemeanor DUI charges so that the State did not have the right to pursue a felony prosecution for the same charge in a different court.  The difference in punishment between a misdemeanor and a felony is substantial so pleading to the misdemeanor strategically protected the driver from a felony conviction.  This strategic approach resulted in less exposure in terms of jail time, fines and other penalties.

There are many ways that a Florida DUI defense attorney can help improve the chances that you avoid a conviction or reduce the penalties and long-term consequences associated with a Florida DUI conviction.  If you are charged with felony DUI or misdemeanor DUI in Florida, we may be able to help you avoid the serious consequences that accompany a DUI conviction so call us today.

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The Danger of Facing a First Time DUI Charge without a Florida DUI Attorney

Thursday, May 5th, 2011

A very common scenario for those accused of a DUI offense in Florida arises when the prosecutor seeks to have a prior DUI conviction used to enhance the penalty in a current DUI case.  This is a critical reason that it is a mistake for people to represent themselves in a DUI case.  Many people rely on advice from friends and colleagues that a first time DUI offense is “no big deal” and that it will typically just result in a fine, probation and other relatively minor consequences.  However, this is a very misleading way to view a first time DUI offense.  The choice to simply represent oneself and plead out a first time offense can have very serious consequence especially if you are charged for DUI at any time in the future.  The case of State v. Brown, 995 So. 2d 1034 (Fla. Dist. Ct. App. 4th Dist. 2008) is a good example of why it is important to have an attorney even if you are charged with a first offense of DUI in Florida.

In Brown, the defendant was charged with felony DUI because he had two prior DUI convictions.  In Florida, a third offense of DUI within a ten-year period is charged as a felony.  While Brown did not contest that he had two previous convictions for DUI, he contended that one of the convictions should not have been used to enhance his penalty because an attorney did not represent him.  Many people simply plead out a first-time DUI offense without assistance of counsel, which means that they do not necessarily have a full understanding of the legal implications of future convictions when choosing not to contest a first-time DUI offense.  Nonetheless, the court permitted the prior DUI conviction of the defendant to be used for penalty enhancement even though an attorney had not represented him.

While it is possible that Brown or any DUI defendant might be convicted of a first-offense, there are many legitimate grounds for challenging a DUI charge.  Our Florida DUI defense attorneys have helped many Florida drivers avoid first time convictions for DUI on both substantive and procedural grounds.  Valid defense may include failure of the officer to follow appropriate search and seizure procedures, defects or errors in chemical testing, erroneous instructions or scoring in field sobriety tests just to name a few.  It is never advisable to simply concede a conviction for a first time DUI conviction in Florida based on the mistaken premise that the penalty will be minor.

The difference in the sentence for Brown was substantial because it elevated his offense from a misdemeanor to a felony.  A third offense (or felony) means a mandatory minimum sentence, substantially increased fines and a longer revocation of one’s driving privilege.  A felony conviction also may have potentially long-term impacts in terms of future employment, educational opportunities and leasing of a home.  If you have been arrested for a DUI in Florida, it is essential to seek legal advice from an experienced Florida DUI defense attorney.  The assumption that a first-time offense will result in minor punishment without significant long-term consequences is simply not accurate.  Our experienced Florida DUI defense attorney can fully advise you of your rights and all potential consequences or penalties so that you can make an informed decision about how to proceed.  Call us today before making a mistake that may haunt your for years.

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