DUI Category Archives — Page 2 of 2 — Tampa Criminal Lawyer Blog Published by Tampa, Florida Criminal Attorneys

Published on: January 29, 2013

Minnesota State Court Rules Segway Not a Vehicle for DUI Purposes

A Minnesota State Court of Appeals recently ruled that a two wheeled motorized transit machine called a “Segway” was more like a pedestrian than a “vehicle” for purposes of Minnesota’s DUI law, thereby throwing out a DUI charge against Mark Greenman, a two time contestant of the Segway DUI challenge. The Minnesota court ruled that a Segway, having a top speed of only 15 miles per hour, makes it much more like a human being and their movement than that of a car or other device considered to be a vehicle under Minnesota law. A common misconception just about anywhere you go is that one cannot get a DUI on a “device” that isn’t propelled by some type of motor, be it gas or electric. Because DUI is most often prosecuted in a State court, laws vary by state and some probably do adopt this notion. Florida may be a bit vague on this issue. Our Tampa criminal attorneys have long felt that Florida is very much a “Police State,” enacting and enforcing laws that reap a financial benefit for the State more so than those laws aim to punish. In Florida one can get a DUI on a bicycle, State v. Howard, 510 So.2d 612 (Fla. 3d DCA 1987), a lawnmower, while simply sitting in your car with keys nearby, on an ATV, or any other “device” considered a vehicle. Rest assured the definition is a broad one so as to encompass as many objects into the “vehicle” umbrella as possible. So what about a Segway? Electric Personal Assistance Mobility Devices are described in Florida Statute 316.003(83) as essentially being segways. Further, this section explicitly excludes them from being a “vehicle,” an issue very relevant for purposes of DUI in Florida. From the look of it, if the segway fits the description under this Statute, you likely are excluded from a DUI charge. Where this could get sticky is if there is a tandem wheel segway produced or ridden and the thing goes over 20 miles per hour.

In Florida in order to prove that one was driving under the influence contrary to Florida Statute 316.193, it must proven that the following two elements existed beyond a reasonable doubt:

1. Someone drove or was in actual physical control of a vehicle.

2. While driving or in actual physical control of the vehicle, the individual was either;

a. under the influence of alcoholic beverages and/or a chemical substance and/or a controlled substance to the extent that his or her normal faculties were impaired.

or
b. had a blood/breath-alcohol level of .08 or more grams of alcohol per 100 milliliters of blood/210 liters of breath.
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Published on: January 24, 2013

Tampa, Florida attorney in the MJ Kelly v. Bubba the Love Sponge Case Charged with DUI

By Mayberry Law Firm

Prominent local attorney Charles Phillip Campbell was arrested last night and charged with DUI for the second time. Campbell is currently representing Todd “MJ” Schnitt in a trial that is underway against Todd “Bubba the Love Sponge” Clem alleging defamation of character by the Sponge against MJ and his wife. Bubba the Love Sponge is alleged to have made statements that were false, highly offensive and defamatory in nature thereby causing damage to both Kelly and his wife. Campbell is alleged to have been travelling in his four door gray Nissan when he was observed by a Tampa Police Officer to have allegedly violated the right of way of another vehicle according to an arrest report. When the Officer made contact with Campbell it is further alleged that he witnessed signs of impairment including red and glassy eyes and the distinct odor of alcohol emanating from Campbell’s breath. According to the Hillsborough County Sheriff’s website, this DUI arrest is not Mr. Campbell’s first rodeo with such an allegation, having previously been arrested on July 14, 2008 and recording a breath test of .153 and .156 respectively. It is unknown from either this report or the report from 2008 who Campbell’s Tampa criminal lawyer was or is currently.

Aside from the sensationalism this trial has already produced, this certainly adds to the appeal. Not only are arguably the two biggest morning DJs in Tampa at each others throats in a courtroom, now there is a very prominent attorney accused of driving under the influence on an evening while a trial of which he is lead counsel is in full swing. You really can’t make this stuff up! In reality, Mr. Campbell could be facing a rather stiff penalty should things not go his way on this allegation. For arguments sake and assuming Campbell pled to the DUI as charged in 2008, he is now facing his second DUI within 5 years. If Campbell ends up having to plea to the DUI charge as alleged for his arrest last night he is facing a statutory minimum mandatory 10 days in the Hillsborough County Jail. For purposes of the minimum mandatory, all that matters is that the second dui “offense” date occur within 5 years of the prior DUI conviction. State v. Daly, 15 Fla. L. Weekly Supp. 447 (Fla. 18th Cir. Ct. Feb. 4, 2008)11 Fla. Prac., DUI Handbook § 13:1 (2012-2013 ed.). So, for strategy’s sake, a Tampa criminal lawyer making an effort to hold Mr. Campbell’s plea to DUI (should that be the end result) until after July 14, 2013 won’t be beneficial based on applicable caselaw and the way Florida Statute 316.193(6)(b) is written. If he has in fact been convicted of a prior DUI and his Tampa DUI attorney can negotiate a reduced charge of reckless driving the minimum mandatory won’t apply and he won’t likely face a court imposed driver’s license suspension. Otherwise if he does plea to a second DUI within 5 years of a prior he is looking at the following:
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Published on: January 16, 2013

Cortnee Brantley Jurors Deliberate in Misprison of a Felony Trial in Middle District of Florida Federal Court in Tampa

By Mayberry Law Firm

Cortnee Brantley, the girlfriend of Dontae Morris now awaits her fate as Middle District of Florida jurors deliberate in her Misprison of a Felony trial. Brantley was with Dontae Morris on June 29, 2010 during a tragic traffic stop where Tampa Police Department officers Jeffrey Kocab and David Curtis were murdered by Dontae Morris. After Morris is said to have shot Officer Kocab and Officer Curtis, Cortnee Brantley fled the scene via car and Dontae Morris fled the scene on foot. At issue in the trial is whether Cortnee Brantley knew whether or not her boyfriend, Dontae Morris, was a convicted felon carrying a firearm. This case has gone to trial in one previous attempt, resulting in a hung jury when the empaneled jury at the time could not come to a decision after deliberating for nearly eight hours.

Ask any Tampa criminal lawyer with any Federal criminal court experience and you’ll likely be told that a misprison of a felony charge is rarely a crime charged directly. Just as a reckless driving charge is generally a reduction from driving under the influence, misprison of a felony is something we, as Tampa Federal criminal attorneys, use in an effort to convince the United States Attorney’s Office to reduce a more serious crime to. Frankly, misprision of a felony is an odd charge as it is not one typically found at the State court level. Federal in nature, misprision of a felony is an old common law charge held over from old English courts who used this charge to prosecute those for failing to report a crime. Even in England the charge was considered a misdemeanor and carried with it an exception for those who could be incriminated by divulging the subject crime. Like old England, the 5th Amendment to the Constitution prevents Brantley from being forced to report the subject shooting. Rather, the charges against Brantley are based on the United States Attorney’s allegation that she had a duty to report that Dontae Morris was a felon in possession of a firearm, contrary to Florida Statute 790.23. Per Federal Statute 18 USC 4 one who has knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.
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Published on: November 22, 2012

“HOW TO” GUIDE ON NOT COMMITTING ASSAULT, BATTERY, AGGRAVATED BATTERY OR ROBBERY WHILE BLACK FRIDAY SHOPPING!

By Mayberry Law Firm

In special remembrance of Elizabeth Macias and her 2011 Black Friday pepper spray incident, we’ll run through the dos and don’ts for the busiest shopping day of the year in the hope that you’ll stay out of a Tampa Bay area jail. As you may recall from last year, Macias was accused of unleashing a hellfire fury of pepper spray on other Black Friday shoppers in Porter Ranch, California. Initially police claimed Macias hosed down her shop mates over discounted X-Box gaming systems. After the “spray” settled Macias faced no felony charges and ultimately threatened to sue Wal Mart for inadequate security. At the end of the day the failure to file charges isn’t overly surprising if there was in fact a scrum around the X-Box’s and there was a risk of injury to her or her children. It would be tough for a prosecutor to show she wasn’t happily hosing others in self defense or defense of her kids. We hope you find the following tips helpful in avoiding Machine Gun Macias’ fate.

Don’t use pepper spray on other people. If you do in Tampa, Florida you will face at minimum, a battery charge and perhaps and aggravated battery if the spray causes permanent injury to another. All that is necessary to show a battery is that you intentionally touched or struck someone else against his or her will, OR intentionally caused bodily harm to someone else. No one I know enjoys being doused with pepper spray so chances are if you break out the water weenie full of pepper juice, you’re guilty of battery. For an excellent explanation of assault and battery check this Jacksonville criminal attorney‘s write up.

Where things could get really serious is if your pepper spray causes permanent harm to a third party. If you hit someone in the eye and said eye is permanently broken, you’re going to face second degree felony charges for a Florida aggravated battery. Aggravated battery charges generally mean prison time. I’ve never been to prison but I’ve been told the selection at commissary isn’t quite as nice as Target. Food for thought.

Don’t threaten someone whether you have pepper spray to back up your threat or not. In Florida, if you threaten someone by word or act and have the immediate ability to do so coupled with an overt act that leads them to believe you’re about to make bad dreams come true, you my friend, have committed an assault. Assault is a second degree misdemeanor punishable by up to 60 days in jail and a $500 fine. Possibly worse is the fact that your shopping day will be done.
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Published on: November 18, 2012

Driving Under the Influence Suspect had Skunk Hanging From Car When Arrested

By Mayberry Law Firm

Waynesboro, Virginia Police smelled a little more than the odor of an alcoholic beverage when they pulled over and detained Efrain Moreno Alvarez earlier this week for suspicion of driving under the influence. The smell? Skunk. Not as in skunky, over the hill beer. Real skunk. Like, call in the Turtle Man to capture the rascal before he yucks up the neighborhood, skunk!

On November 11th Sgt. Brian Edwards, a member of the Waynesboro Police Department, witnessed an older Chevy Lumina strike a guardrail while travelling on Interstate 64. After a little more erratic driving Sgt. Edwards eventually detained the driver, Efrain Moreno Alavarez. This is there things went downhill in a hurry. When officers approached the vehicle Alvarez was travelling in, they were overcome by the unmistakable smell of skunk.

Somehow, some way, officers were able to smell an odor of alcohol on Alvarez. This, amongst other observed signs of impairment, led them to request field sobriety exercises which Alvarez failed leading to his arrest. Ultimately Alvarez submitted to testing which showed a blood alcohol content of .15. The legal blood alcohol limit in every state is .08.
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