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Driving Under the Influence (DUI) Florida Criminal Statutes Uncategorized

Bicycles and DUI

Florida Statutes §316.003(75) defines “vehicle” as “every device, in, upon or by which any person or property is or may be transported or drawn upon a highway, excepting devices used exclusively upon stationary rails or tracks.” Under this definition, the State of Florida considers a bicycle a “vehicle” and therefore cyclists, like the operators of cars, motorcycles and trucks, must observe all Florida traffic statutes, including DUI laws. Floridians have been convicted of DUI while on bicycles, lawnmowers and golf carts, to name just a few examples. A few months ago, in North Dakota, a Zamboni operator was arrested for allegedly driving drunk.

According to the Florida courts, it is clear that bicycles are “vehicles” under Florida law. The court in State v. Howard, 510 So.2d 612 (Fla. 3rd DCA 1987) reasoned that since the §316.003(21) statutory definition of a motor vehicle excludes bicycles, the Florida legislature purposely chose to make section 316.193 apply to all vehicles, rather than just “motor vehicles.”

The penalties upon conviction for DUI are the same in Florida, regardless of the manner in which the offense is proven. In order to be charged with DUI it is necessary that the prosecution proves either that a defendant was:
1. riding a bicycle with a Blood Alcohol Content (BAC) of .08% or higher with evidence in the form of breath or blood testing results; or
2. riding a bicycle under the influence of drugs and/or alcohol to the extent normal faculties were impaired with evidence in the form of seized drugs, urine testing, and statements or testimony in the form of a police officer’s observations and the defendant’s admissions.

One difference between motor vehicle DUIs and bicycle DUIs is that a bicycle defendant’s driving privileges cannot be administratively suspended for refusing a breathalyzer test. Florida Statute §316.1932(1)(a) and Florida Statute §322.2615 both use the term “motor vehicle,” which a bicycle is thereby clearly not. So while a driver’s license may be suspended for 1 year by the Florida Department of Motor Vehicles for refusing a take a breathalyzer test when stopped while driving a car, it cannot be suspended for refusing the same test while stopped for riding a bicycle or other device which is not defined as a “motor vehicle”.

Under F.S. §316.193(6), the court may impound or immobilize vehicles even on a first conviction for DUI. Thus, since the statute uses the term “vehicles” rather than “motor vehicles,” this includes bicycles.

According to a National Highway Traffic Safety Administration (NHTSA) report, Florida was second in the nation in total bicycle rider fatalities in 2013 but led the country in deaths per million population. Also in 2013, one-fifth of the cyclists killed nationally had a blood alcohol concentration (BAC) of .08% (grams per deciliter) or higher which is over the legal limit in Florida.

If you have been charged with DUI under Florida law while operating a bicycle or any other “vehicle,” call Alan Fowler, an experienced Florida Keys criminal defense attorney for a consultation at 305.417.9378.

Categories
Expungements & Sealments Florida Criminal Statutes Uncategorized

What Are Expungements and Sealments?/ Expungements and Sealments Part 1

Under Florida law, criminal history records in Florida are public records unless sealed or expunged. The State of Florida creates a criminal history record when a person is arrested and fingerprinted, and this record includes the disposition of that arrest, whether it is a conviction, acquittal, pre-trial dismissal, or other disposition. Expungement and sealment are generally available for the one-time offender. The person who has made, or been the victim of, a mistake. A serious, significant mistake.

Florida Statutes, §943.0585 and §943.059, detail the criteria for eligibility to have adult criminal history records sealed or expunged. In addition to these requirements, an individual must obtain a Certificate of Eligibility as set forth in the aforementioned statutes. The issuance of a Certificate of Eligibility only means that the certificate holder has met the requirements of Florida law to be eligible for sealment or expungement, and does not mean that a criminal history record will, in fact, be ordered sealed or expunged.

Expungement means petitioning the State of Florida to have a criminal record physically destroyed or removed from general review. Sealment is defined as having a criminal record taken from public view and access. The only way to then access such record is by court order to have it “unsealed.” Multiple charges under one case number may be expunged or sealed.

Records of felonies may be expunged or sealed but there are a long list of exceptions to this rule. An experienced criminal defense attorney like myself can assist in sorting through this list to insure a criminal record is eligible for expungement or sealment. The entire process itself may take anywhere from four to six months and requires the representation of a knowledgeable criminal defense attorney familiar with Florida’s requirements for the expungement and sealment of criminal records.

Florida law allows you to expunge or seal a Florida criminal record history, including all non-judicial criminal records and judicial records, related to one criminal episode, and therefore is generally available to those who have made one mistake and one mistake only. This may be because of an inaccurate criminal record, a mistaken arrest, or for an offense incurred as a juvenile. The State of Florida is allowing individuals the opportunity to eliminate this one mistake from their criminal history records.

Individuals need to check their criminal histories before petitioning a Florida criminal justice agency. Under both Florida and federal law, individuals have the right to request, at no charge, a copy of their criminal records for the purposes of reviewing it to ensure that it is both accurate and complete, known as a Personal Review. The requesting party may examine the record obtained through the Personal Review process for accuracy and then challenge any information therein believed to be inaccurate or incomplete.

The following criteria must be met for an individual to obtain an expungement or sealment:
• There must be no record of a previous sealing or expungement of criminal records for the individual;
• There must be no ongoing court supervision, probation, pretrial release or house arrest of the individual applying to have a record sealed or expunged;
• A record exists but charges are never filed, or charges were dropped or dismissed in court;
• A record exists but the defendant was never formally convicted of any criminal offense by a judge, including by plea or through a trial;
• A record exists where a defendant is charged and pleads guilty or no contest, but conviction is withheld;
• A record exists where a defendant is charged and found guilty, but the conviction was withheld;
• Any criminal case which was either dismissed or the defendant was found not guilty of the offense;
• A pretrial diversion program is completed and charges are dropped, such as in the case with a offense committed as a juvenile;
• A first-time offender may be sentenced before a judge, but the court withholds the adjudication of guilt. One is not considered guilty until the judge declares such.

The court shall not order a criminal justice agency to expunge a criminal history record until the person seeking to expunge a criminal history record has applied for and received a certificate of eligibility for expunction pursuant to subsection (2) or subsection (5) of 943.0585. The party petitioning for expungement must also make a sworn statement attesting to not having been adjudicated guilty for any criminal offense of other felonies and misdemeanors specified by 943.051(3)(b), or stemming from the arrest to which the petition pertains.

If you have questions about expungements or sealments under Florida law, call Alan Fowler, an experienced Key West criminal defense attorney, for a consultation at 305.417.9378.