Miami DUI Attorney Blog

Miss Montana has been suspended from the duties related to her pageant crown, the Associated Press reported. She has been charged with driving under the influence of alcohol stemming from an incident on January 3. Jennifer Hepner, who is 23, was permitted to compete in the Miss America contest on January 24 and her duties were suspended in February 16. Hepner, whose talent was belly dancing, was not a finalist in the Miss America competition. Despite the allegations, the Miss America Organization has stated that Hepner will keep her crown until her predecessor is selected this June. Hepner is a graduate student at the University of Montana.

Hepner was pulled over in Bozeman, Montana. Law enforcement officials say that she refused to submit to a breath or blood alcohol test to determine her sobriety level. As a result of the incident, Hepner's driver's license has been suspended. Hepner has entered a plea of not guilty. Her criminal defense lawyer says that Hepner requested to speak with legal counsel in the course of the traffic stop, but police did not permit her to do so.

Hepner is not the first beauty queen to become embroiled in criminal problems that has affected her duties. Miss Teen Louisiana, 18-year-old Lindsey Evans, was arrested for possession of marijuana and leaving a restaurant without paying the bill last fall, an incident that made national news due to her role. The governing board stripped Hepner of her tiara due to the behavior, which is unbecoming of a beauty queen and sets a poor example. She is a student at Northwestern State University. Because the runner-up in the 2008 contest was slated to compete for the 2009 tiara, Miss Teen Louisiana was not replaced and so the slot remained vacant until the next competition, which was held just 10 days after Evans lost her crown.



The original articles are available here and here.

On February 19, Robert and Paulette Kirkpatrick were driving their rental car down Tamiami Trail in Miami. The Kirkpatricks, both retired schoolteachers from Maryland, were vacationing in sunny south Florida. They were killed after a vehicle driving in the other direction jumped the median and crashed head on into the Kirkpatricks' vehicle. The other vehicle, a Toyota Tacoma, was driven by 54-year-old Thomas Cypress. Miami-Dade law enforcement officials say that his blood alcohol concentration was 0.24 percent, three times higher than the "legal limit" of 0.08 percent, the point at which Florida law presumes a driver is too impaired to drive.

Cypress has been charged with two counts of DUI Manslaughter in the Kirkpatricks' deaths. DUI Manslaughter occurs when a person drives while impaired, which is usually shown by his or her BAC, and has an accident stemming from the intoxication which causes a death.

Cypress has a history of drunk driving. He had been arrested for DUI in 2004 and 1997. More recently, Cypress had posted bail and was released while awaiting trial for a DUI charge in Davie, Florida. Cypress appeared before Circuit Judge Migna Sanchez-Llorens in Dade County earlier this week. At the hearing, the state attorneys described Cypress as a "menace on the road," describing his repeated dangerous driving habits. The prosecutors requested that Cypress be kept in the county jail rather than released to await trial.

Cypress requested release to a substance abuse treatment facility and was described by a physician familiar with his case as suffering from alcoholism. The judge denied his motion, noting that the treatment facility was not secured.

The Kirkpatricks' children, Steven and Jennifer Kirkpatrick, traveled from Maryland for the hearing. They did not believe Cypress should be released. Jennifer told reporters that she and her brother "don't want anybody else to go through with this," and stated that they did not believe Cypress has learned his lesson.

If you have been arrested for driving under the influence in Florida, contact the Miami DUI defense attorneys at Musca law.

The original report is available here.

Driving home from a late night gathering with friends, Monroe County Deputies noticed our client was driving below the speed limit. He was traveling approximately 45mph in a 55mph zone. Deputies also felt his vehicle was swaying from side to side. Upon conducting a traffic stop, they noticed the driver's eyes were glassy, his speech was slightly slurred, and an odor of alcoholic beverages. At the request of the officers, the driver agreed to perform Standardized Field Sobriety Testing.

The Deputies were of the opinion he swayed while performing the tests. Based on the driving pattern observed, the odor of alcohol, his physical appearance, and his performance on the sobriety tests, the Deputies believed the driver was impaired by alcohol. The driver was transported to the Key West DUI room for further processing. After a twenty minute observation, the defendant gave two breath samples of .085 and .080. The defendant was booked at Monroe County Jail for Driving Under the Influence, under Florida Statute 316.193(1).

 
The seasoned Miami DUI attorneys at Musca Law provide aggressive defense strategies for our clients. We investigate every aspect of the charges our client face to make sure fair results are achieved. In this case, we were able to successfully challenge the results of the breathalyzer and its accuracy. After reviewing video of the sobriety testing, we disagreed with the deputy's opinion of our client's performance. We presented a strong argument on his behalf and challenged the evidence the State had against him.

After numerous attempts to negotiate this case, the State finally agreed to reduce the charge to Reckless Driving, with a Withhold of Adjudication. This meant that our client did not get convicted, or have 4 points assessed to his driver's license. We also had further success in winning the formal hearing review with the Department of Motor Vehicles for our client. The Hearing Officer determined that there was insufficient evidence to support law enforcement officers had probable cause to believe our client was driving under the influence. Our client's license was never suspended. Experience Counts!

Most Floridians are familiar with the crime of DUI - driving under the influence of alcohol or another intoxicating substance. To be convicted of DUI in Florida, you must have a blood alcohol content of 0.08 percent or more. Alternatively, you can be convicted of DUI if there is evidence to demonstrate that you were too impaired to drive, even if your BAC was lower than 0.08 percent. For instance, if you have consumed no alcohol at all, but took cocaine prior to driving, a judge or jury might find you guilty of DUI if there is evidence that your driving was impaired. Evidence of impairment could be testimony regarding your bad driving, such as your failure to maintain a single lane, or a police officer's testimony about your poor performance on roadside tests.

DUI Manslaughter is a crime that is perhaps less familiar. DUI Manslaughter is a crime that involves driving while impaired or driving with a BAC of at least 0.08 and, while in that impaired state, causing a car accident that results in a death. The death can even be a viable fetus if the accident caused a pregnant woman to have a miscarriage. In Florida, DUI Manslaughter is punishable by a prison sentence of up to 15 years. Additionally, a conviction can result in years of probation following the prison term, fines, court costs, driver's license revocation, and other penalties. If the driver left the scene of the accident, he is subject to even more serious penalties, including imprisonment for up to 30 years.

According to the Miami DUI attorneys at Musca Law, Florida law enforcement agencies are keen on DUI enforcement in order to prevent DUI Manslaughter accidents. Contact the Miami office of Musca Law if you have been charged with DUI, DUI Manslaughter, DUI Serious Bodily Injury, Vehicular Homicide, or any other crime in the state of Florida.

A police officer administering roadside field sobriety tests and a breath test:

Donté Stallworth, the Cleveland Browns wide receiver, was involved in a Miami Beach accident that killed a pedestrian last weekend. Stallworth was driving his car at about 7:00 a.m. when he struck Mario Reyes, 59, a man who moved from Cuba to the United States as a teenager. Reyes was leaving his night shift construction job as a crane operator, according to law enforcement officials, and was crossing the street to the bus stop to get home.

Stallworth was administered roadside field sobriety tests at the scene. At this point in time, no charges have been filed relating to the death of Mario Reyes; however, Stallworth submitted a blood sample and some news media outlets are reporting that the preliminary results have shown his blood alcohol content to have been 0.12 percent, in excess of the 0.08 percent level at which Florida state law presumes a person is too impaired to drive. If the reports are accurate, Stallworth could be charged with driving under the influence or, depending on the police investigation findings, DUI Manslaughter.

Stallworth is cooperating with the ongoing police investigation of the accident. He issued a prepared statement after the accident, saying, "My family and I are grief stricken over the tragic accident which occurred Saturday on Miami Beach where Mario Reyes sadly lost his life. My thoughts and prayers are with the Reyes family during this incredibly difficult time. Unfortunately, since this accident is still under police investigation, I cannot comment further on the matter at this time."

Stallworth is known for his professional football career. He currently plays for the Cleveland Browns, but has previously played for the New Orleans Saints, the Philadelphia Eagles, and the New England Patriots. He previously played at the college level for Tennessee.

Reyes is survived by his wife, Catalina, and their daughter, Daniela. Friends who knew him described him as a baseball fan who particularly loved the Florida Marlins.

If you have been arrested for DUI, contact the Miami DUI attorneys at Musca Law. A report of the incident is available here.

When a Florida Sherriff's department dispatched a "be on the lookout" (BOLO) alert for a 2007 Chevy Impala, a Monroe County deputy did a sharp u-turn after realizing he had passed a vehicle matching the description, parked on the side of the road. The alert was an attempt to locate a missing person through the assistance of OnStar services. OnStar, the General Motors communication system, can use its' GPS technology to assist police officers in situations where a police report of a missing person has been filed. In this case, it was the OnStar representative who advised the police dispatch of the car's exact location.

The officer approached the parked car and found a woman sitting in the driver's seat with the keys in the ignition and car running. A man was outside the vehicle, leaning against it. The officer made contact with the woman and asked her for identification. Her ID matched the information of the woman reported missing. The woman, a North Palm Beach resident, told the officer she had an argument earlier in the day with her husband and decided to take a trip to Key West with her friend. They had been driving for a while and decided to stop and rest. She felt her husband was making an attempt at getting back at her by reporting her as missing.

According to the deputy, the woman had bloodshot and watery eyes, slurred speech, and a strong odor of alcohol on her breath. He also noticed inside the vehicle there were open containers of alcoholic beverages. The woman noted she was taking medication for bipolar disorder and depression. The deputy asked the woman to perform voluntary field sobriety testing. Based on his investigation he placed the woman under arrest for Driving Under the Influence (DUI) under Fla. Statute 316.193. The 41 year old woman was also issued a civil citation for Open Container, Fla. Statute 316.1936(2)(a) and transported to Key West Jail. The Department of Motor Vehicles suspended the woman's license.

The woman was a first time offender and turned to the highly seasoned Miami DUI attorneys at Musca Law for legal counsel. Our experienced attorneys handle DMV proceedings in addition to representing DUI clients in the criminal phase of their case. We conduct a thorough investigation and exhaust every legal option in an effort to devise an effective defense strategy for DUI arrests.

Our DUI attorneys actively engaged in negotiations with the State Attorney in an attempt to resolve our client's case as expeditiously as possible. First, we researched the facts to determine whether the State Attorney could prove our client was the driver of the vehicle. The issue of the BOLO alert was also called into question by our DUI defense team. The alert was generated by a 3rd  party source, OnStar. The alert was based solely on statements of a 3rd party and had numerous levels of hearsay.

The officer originally drove by the parked car, but for the alert, the officer would not have made the arrest. The sole credibility for the stop/approach of our client's vehicle was the OnStar BOLO. We questioned the State's ability to ultimately admit the OnStar BOLO into evidence, or otherwise use it to support the officer's stop/approach investigation and questioning of our client. The State Attorney realized the officer's observation may not have been enough to legally justify the stop. As a result, the DUI charge was reduced to Reckless Driving. The misdemeanor charge of Open Container was dropped.

Several cases of driving under the influence have caught the eye of the public recently, according to the Musca Law Miami DUI defense team. Two sports figures and one wacky case have been in local news reports this week. In this day and age, high profile figures who are arrested for driving under the influence of drugs or alcohol face national media attention far outside of their sports teams' cities or their hometowns.

First, Miami DUI lawyer John Musca has followed the case of Charles Barkley, the former NBA athlete. Barkley was arrested leaving a nightclub in Arizona when he was out for a New Year's celebration earlier this year. The basketball great has taken flak for his actions, from his family and the companies with which he has endorsement deals, and he has gone on a media campaign to repair his image. Barkley has repeatedly apologized for his actions. He pled guilty to the DUI charge and served three days in an Arizona facility, in addition to agreeing to submit to treatment for alcohol abuse.

The Miami DUI attorneys have also been watching the case of Brian Bosworth. Bosworth garnered national recognition during his year career in the NFL, playing for Oklahoma and Seattle team, but ultimately retired due to a festering injury to his shoulder. Since then, he has pursued a successful acting career. Unfortunately, he was arrested recently by police in the Los Angeles area on suspicion of DUI and held on a $43,000 bond.

Lastly, local news outlets have reported on a strange Largo, Florida case, according to the Miami DUI defense lawyers at Musca Law. Police arrested a man for driving under the influence of alcohol after they spotted him driving a car with only three tires. The man, who is 27, lacked a tire on the passenger side of the rear of the vehicle. Police say his BAC was 0.20 percent at the time of his arrest.

Miami DUI defense attorney John Musca finds that many people believe that breath test devices, known by the public as breathalyzers, must be extremely accurate. After all, you can be convicted of DUI if your breath test reading was at least 0.08 percent and you were in actual physical control of a vehicle. Alternatively, you can be convicted if the prosecution can show you were actually impaired while you were in actual physical control of the vehicle, notes Miami DUI lawyer John Musca.

Unfortunately, breath test results are not as accurate as they should be, where they are the primary evidence used to convict someone of a crime. DUI defense attorneys have been frustrated that the company that manufacturers the Intoxilyzer, the breath test machine used by Florida law enforcement agencies, has never released the source code the device uses to calculate a the amount of alcohol in a person's body.

Miami DUI attorney says that another major problem with breathalyzer inaccuracy is that the breath test devices often register the presence of either substances that are not actually alcohol at all or substances that are chemically a form of alcohol, but unrelated to drinking and driving. For instance, diabetics may blow high readings in certain circumstances - even if they have had nothing to drink at all. When diabetics' blood sugar gets too high, perhaps because they need insulin or did not properly regulate their food intake, their bodies produce acetones on the breath. The acetones are a form of alcohol and are a result of ketoacidosis, a medical condition directly related to the high blood sugar. This means that the breathalyzer will detect alcohol, even if the diabetic has not been drinking at all. Worse, the diabetic driver may display symptoms also associated with intoxication - dizziness, loss of coordination, and even slurring words can occur.

Below is a video in which a notable former Miami police officer tests the breath test reading with a solution designed to emulate the effect of ketoacidosis:

When Miami police spotted a black Audi bearing Florida tags that seemed to be weaving in and out of the left lane and almost striking the curb, a traffic stop was performed at the 800 Block of Washington Ave. At 5am, the occupant of the car a 34 year old Israeli citizen, appeared to the officers as disheveled and speech impaired. The officers suspected the individual was under the influence and offered him the Standardized Field Sobriety Test (SFST). 

The officers claimed the driver's performance did not meet the standards of the SFST test and took him to the Miami Broward Police Department for a Breath Test. The driver was compliant with the officers throughout the process. Under Florida Statutes the operation of a motor vehicle constitutes consent to any sobriety test required by the law. The officers arrested the individual and charged him with Driving Under the Influence (DUI) resulting in the suspension of his driver's license.

An arrest under Florida Statute Section 316.193, Driving Under the Influence, can have serious consequences. A conviction on DUI charges will result in criminal penalties in the form of fines, license suspension and perhaps even imprisonment. These criminal penalties for DUI apply to a person who is driving the vehicle or who is in actual physical control. Under strict Florida law, if a person is intoxicated and just sitting in the car with the keys in their possession, they could be arrested for the crime of DUI. In addition to the criminal sanctions that might be imposed, insurance rates may increase to unmanageable levels. 

This case came to the attention of the rock solid criminal defense team at Musca Law. The defendant sought the assistance of experienced attorneys to defend him against the impaired driving charge. With his driver's license suspended because of this charge, he would be unable to maintain his employment, jeopardizing the welfare of his family. 

In an attempt to invalidate the suspension of his license, Musca Law attorneys requested a hearing on behalf of our client with the State of Florida Department of Highway Safety and Motor Vehicles. Upon reviewing the facts, the Department agreed with our attorneys, determining there was insufficient evidence supporting law enforcement officers had probable cause to believe the defendant was driving while under the influence of alcohol. The attorneys also convinced the Hearing Officer that there was insufficient evidence to conclude the defendant had had unlawful blood-alcohol levels.  The favorable decision from the Department Hearing Officer gave the defendant eligibility to receive a duplicate license, continue driving and maintain his employment. 

Our Miami based DUI attorneys, using an aggressive defense philosophy, had further success in this case. Our client had a heavy foreign accent; often police officers mistake an accent for slurred speach and suspect DUI. By presenting a strong defense on behalf of our client, the charges of DUI, carrying severe penalties and fines under Florida laws, were reduced to lesser charges of Reckless Driving under Florida Statutes 316.192 (1) (B).