Miami Criminal Attorney Blog

America is the land of opportunity and second chances and no city in America epitomizes this more than Miami, Florida. Armando "PittBull" Perez has been twice arrested for driving under the influence and once admitted to being a drug dealer in Miami. Typically, you would not expect someone with this type of pedigree to be awarded the keys to the city. However, on August 19, 2009, Commissioner Tomas Regalado did just that.

In Pitbull's defense, and he seems to have had a very good one, he's only been convicted once and that was eight years ago. His more recent arrest, December 2007, had serious problems with the State's case. First, there was no breath test. Without that piece of scientific evidence, determining whether someone is drunk or not is very difficult, assuming they don't fall down or...

Obviously the question of whether someone is drunk or not is highly subjective, particularly if you do not know the person. Who's to say if a person is slurring their speech or just has an accent, especially in an international city like Miami. To deal with the variations from person to person, law enforcement developed the "Standardized Field Sobriety Exercises" also known as Road Side Exercises.

These Road Side Exercises are supposed to give an objective insight into a suspects ability to balance, listen, follow instructions and fine motor skills. For the Road Side Exercises to be effective, they must be done on a smooth, flat, well lit surface. In Pitbull's case, they were done on a hill.

With no breath test and no reliable SFST's Pitbull recently beat the 2007 driving under the influence charges. Shortly thereafter Commissioner Regalado was offering the keys to the city for Pitbull's service to the community. While I think we can all agree that if an officer fails to follow procedure, the case should suffer accordingly, I'm not sure that an acquittal necessarily warrants the keys to the city. It will be interesting to see how Pitbull handles his elevation to "role model" status.

Associated Press: Bilingual Rapper Pitbull gets key to city of MiamiAugust 2009

Many of you in Miami and South Florida have seen the commercials touting "Over the Limit, Under Arrest" depicting police pulling over drunk drivers with alcohol pouring out of their cars. These commercials and other initiatives are part of a nationwide effort to crack down on DUI.

As part of this initiative law enforcement has "vowed to arrest everyone found 'Over the Limit.'" However this statement is misleading and hides the real problems faced by local law enforcement. A suspected drunk driver is not given a breath test until after he is arrested. There are not hand held breath machines used in Miami-Dade or Broward Counties. Instead police officers rely on their observations of an impaired suspect and the extremely complicated field sobriety exercises.

In Florida, DUI officers receive an enormous amount of highly skilled and technical training. These officers, once trained are required to maintain logs of their observations to be compared to breathalyzer results to determine the accuracy of their conclusions. In fact, a truly competent DUI officer can determine a suspects breath alcohol level with out any equipment at all, by performing the horizontal gaze nystagmus test. Unfortunately, officers of this level of competence are few and in high demand.

When a traffic cop who has not had DUI training pulls over a suspected impaired driver, they will radio for a trained DUI officer to appear on the scene to perform the field sobriety exercises. If the results indicate impairment, the suspect is arrested and taken downtown for a breath test. However, if no DUI officer is available then the untrained or undertrained traffic cop must do the exercises himself and make a decision to arrest on only his opinion.

The very real fear caused by this "crackdown" is that as a result of the increased arrests, untrained officers will be left without assistance and encouraged to err on the side of arrest.

Wellington County News- Florida Law Enforcement to Launch Statewide Crackdown on Impaired and Unsafe Driving. Officers Vow to Arrest Everyone Found Driving 'Over the Limit.'
August 21, 2009 2:13 PM

Many criminal drunk driving cases in Miami, Ft. Lauderdale are won, not on the work of attorneys, but rather on one piece of evidence: the result of the breathalyzer test. The breathalyzer, specifically the "Intoxilizer" is a delicate instrument that must be carefully maintained. In fact, the Florida Department of Law Enforcement is responsible for calibrating and testing the accuracy of these breathalyzers against a control. The results of these tests are available to the public, and criminal defense attorneys throughout South Florida.

Recently it was discovered that one of the FDLE officers tasked with testing this equipment was tampering with the machines during the tests and thus skewing the results. Sandra Veiga was fired from the FDLE last October when it was discovered that she turned off breath-machines when it appeared they would fail inspection. The effect of this discovery has sent ripples through criminal defense community in South Florida.

In Broward County Florida, Judge Lee Jay Seidman excluded the breath results from a driving under the influence case where Ms. Veiga was a tester. There are hundreds of pending Broward cases that could result in a similar ruling from other judges. The question this raises is, what about the people who have already been convicted on the strength of breath tests where the intoxilyzer was maintained by Ms. Veiga?

It is rare to have a verdict or a plea overturned or set aside, however, this type of new evidence is exactly the circumstance that could bring about a new trial. Florida criminal law requires three things for a new trial based on newly discovered evidence: 1) the new evidence is material; (2) the new evidence probably would have changed the verdict; and (3) the evidence was difficult to discover.

There is no doubt that a case with a reliable breath result is completely different from one with a machine that was turned off every time it looked like it was going to fail. Accordingly, it may be difficult not to overturn these convictions

Miami Herald: Broward judge's ruling in DUI case could affect 1,000 cases
August 23, 2009

The debate rages on from Miami to Philadelphia to New England and West: Should Michael Vick be allowed to play in the NFL, after his conviction on criminal dog fighting charges and subsequent release. In it, football fans are pitted against dog lovers. However, maybe this opposition is misplaced. In many ways the advocates against criminal animal cruelty have never had a better example. Every time Michael Vick steps onto a football field the same message comes through:

This is exactly the type of message that PETA and every other animal rights organization should want shouted from the roof tops. So, rather than debating whether the level of punishment was sufficient, the real question is: Is the criminal justice system working?

As many people know, Michael Vick was convicted in Federal Court of maintaining an organized dog fighting ring at on of his homes in Atlanta Georgia.

The avowed goals of the criminal justice system are Punishment, Deterrence and Rehabilitation. Not only have all three been accomplished here, but Michael Vick's celebrity status makes the deterrent factor even more effective. Most people have never even heard of the crime of dog fighting, if it's illegal, what if any are the punishments for it. Without knowing the potential repercussions, a would be dogfighter cannot be deterred. Now thanks to Michael Vick's celebrity status, everyone knows that dog fighting is a crime, a federal crime at that and one that brings with it multiple years in prison for a first offence.
At no time in history have dogs and dog lovers gotten better press that the police and the criminal justice system is out to protect them.

The New York Times, Michael Vick's Apology August 19, 2009