Criminal BUI Amended to Civil Infraction for Careless Boating

Our client was charged with boating under the influence (BUI) in Pasco County, FL, at the West Pasco Judicial Center courthouse in New Port Richey. On August 6, 2021, the prosecutor agreed to amend the criminal charge of BUI to a civil infraction for “careless boating” under Section 327.33(2), F.S. for a case pending before Judge Debra Roberts.

The case was resolved after we filed a motion that alleged:

1. FWC Officer Forest Rothchild had no legal basis to demand that the two men on jet skis “come over” to be detained at the dock located at 926 Marine Pkwy, New Port Richey, FL 34652 (Gulf Harbors Yacht Club).
2. Officer Rothchild, along with FWC Officer Damon J. Pulaski, lacked the necessary reasonable suspicion that Defendant was impaired in order to initiate a BUI investigation or perform the HGN and continue the detention for additional evaluation.
3. The officers conducted HGN incorrectly because the subject’s eyes were too far below the stimulus, the officer only made 4 passes with the stimulus, the stimulus was not held in the correct location or for the correct length of time, and the officer had insufficient training and experience to conduct HGN or evaluate the subject’s performance under the particular circumstances of this case.
4. Miranda warnings were never read.

The court agreed to the negotiated resolution to amend the BUI charge to a civil infraction for careless boating, withhold adjudication, and imposed a civil penalty of $111 with additional costs of $250 after showing proof that our client completed an evaluation and took a boating safety course.

Twelve Month Administrative Suspension for Refusal Invalidated

On September 20, 2021, HSMV Field Hearing Officer George L. Winslow, Jr., issued an order invalidating the 12 month administrative suspension. The administrative suspension was triggered by an officer with the Orange County Sheriff’s Office after a DUI arrest involving a refusal to submit to a breath test.

At the hearing, we argued that the suspension should be invalidated because the investigatory stop was not based upon a lawful well-founded suspension that our client was or was about to become involved in criminal activity.

In our case, our client was asleep or unconscious, properly parked in a marked paved parking lot, engine off, sitting behind the wheel of the vehicle. Our client awoke on his own as a Deputy stood outside the vehicle. The Deputy’s report states that he observed our client to be disoriented, and his eyes were bloodshot.

The Deputy asked our client to exit the vehicle and our client asked if he had to get out. The Deputy responded that he needed to exit the vehicle so that the Deputy could see if he was alright. After he exited the vehicle the Deputy then reported seeing additional clues of impairment that eventually resulted in the DUI arrest and refusal.

DUI Reduced to Reckless

In another case resolved on October 12, 2021, in Division E of County Court in Hillsborough County at the courthouse in Tampa, the prosecutor agreed to reduce the DUI charge to reckless driving even though the client was not eligible for RIDR because of a crash. The negotiated plea was an adjudication of guilt to the reduced charge of reckless driving with 12 months probation to pay a $500 fine plus court costs, 6 months with the ignition interlock, 75 hours of community service with a half buy out, and automatic early termination of probation when all special conditions of probation were completed.

DUI Reduced to Reckless Driving

On October 12, 2021, the state agreed to reduce a DUI charge to reckless driving even though the client was not eligible for RIDR because of their prior record. The negotiated plea was an adjudication of guilt to the reduced charge of reckless driving with 12 months probation to pay a $500 fine plus court costs, 50 hours of community service with a half buy-out, and automatic early termination of probation when all special conditions of probation were completed. The case was resolved in Division E of County Court in Hillsborough County at the courthouse in Tampa.

Court Grants Motion to Suppress Evidence of Refusal after Recantation

For a case pending in Hillsborough County, on November 29, 2021, the Court granted our motion to suppress evidence of an alleged refusal to submit to a breath test after hearing testimony from the arresting officer. The arresting officer testified that our client was arrested for BUI. Shortly after the arrest, our client was escorted into the FWC administrative building adjacent to the Gandy boat ramp. Once inside and seated, Defendant said that he would take the breath test and unequivocally recanted the alleged refusal, but the arresting officer told him he already refused and it was too late. We argued that when our client agreed to take the breath test he had been in the continual custody of the arresting officer and was under observation for the entire time. Honoring such a request would not have resulted in any substantial inconvenience or expense to law enforcement. The testing equipment and personnel were still available. The subsequent test would still have been accurate since such a short time had passed since the arrest. As a result, the Court granted our motion to suppress any mention of the request for a breath test, the reading of implied consent, or the alleged refusal.

Court Grants Motion to Suppress Evidence During a Prolonged Detention

For a case pending in Pasco County, FL, we filed a motion to suppress or exclude evidence illegally gathered during a prolonged detention. On February 17, 2022, the Court granted the motion, in part, to exclude any evidence after our client indicated to the stopping officer that he wanted to terminate his voluntary participation in Field Sobriety Exercises. The Court issued an order that specifically found that the length of time for the detention at that point became unreasonable. The evidence excluded included all evidence gathered by the arresting officer (who arrived on the scene shortly thereafter) and the alleged refusal to submit to a breath test.

12 Month Refusal Suspension Set Aside 

On February 17, 2022, the HSMV Field Hearing Officer at the Clearwater Bureau of Administrative Reviews (BAR) Office entered a final order setting aside the suspension of driving privileges for refusing to submit to a breath test after an arrest for DUI by an officer with the Clearwater Police Department. The basis for setting aside the suspension was because the arresting office failed to appear at the formal review hearing after properly being served with a subpoena.

Refusal Civil Penalty in a BUI Case Dismissed

Our client was charged with “Refusal to Submit to Breath Test – Boating Citation” in connection with a BUI arrest. After the BUI charge was reduced to a civil infraction for careless boating, the Honorable Dustin Anderson, county court judge, on March 24, 2022, dismissed this civil infraction for refusal as well. Contesting the civil infraction for refusal in a BUI case is important because a second accusation of refusal in the future would otherwise constitute a separate crime punishable by up to 12 months in jail.

18 Month Hard Suspension for Refusal Invalidated

On April 19, 2022, a hearing officer at the Bureau of Administrative Reviews issued an order invalidating a 6 month suspension for driving with an unlawful alcohol level. The suspension was invalidated because the arresting officer with the Brandon Police Department failed to appear for the hearing.

Case Dismissed After Motion to Suppress Granted

On April 20, 2022, the State stood silent on our motion to suppress or exclude evidence illegally gathered during a prolonged detention and request for urine. Our client has submitted to a breath test after a DUI arrest, but the breath alcohol concentration was below the legal limit at .075/.073. After the breath test, the arresting officer illegally requested a urine sample without reasonable cause that our client was under the influence of any chemical or controlled substance.

Driving Under the Influence Charge in Orange County Amended to Reckless Driving

On May 20, 2022, the state agreed to reduce our client’s second DUI charge to reckless driving after we filed a Motion to Suppress based upon an unlawful stop. Our client was found asleep in his vehicle and illegally asked to exit his vehicle for a DUI Investigation. The negotiated plea was a withhold adjudication of guilt to the reduced charge of reckless driving with six months probation, 50 hours of community service with a half buy-out, DUI School Level 2, and Victim Impact Panel.

18 Month Hard Suspension for Refusal Invalidated – 

On July 7, 2022, a hearing officer in Tampa, FL, invalidated a 18 month hard suspension after a refusal to submit to a breath, blood, or urine test. The suspension was invalidated because the arresting officer with the Tampa Police Department failed to appear at the hearing.