SUBURBAN LEGAL MYTHS-III

SUBURBAN LEGAL MYTHS III

There are numerous Urban Legends. The criminal defense lawyer deals with many Suburban Legal Myths. Below is a list of some more Suburban Legal Myths, and a possible explanation as to why they are believed to be true, and if there is in fact any truth to them.

 

1. If a police officer is the only one offended by my actions then there is no crime of Disorderly conduct, Exposure of sexual organ, or Lewd & lascivious behavior.

 

2. I can’t lose my driver’s license for a DUI on a bike.

 

3. I don’t need a light turned on my bike at night if I am riding on the sidewalk.

 

4. Whether I am driving a car or a bike I don’t have to put my lights on during twilight.

 

5. My headlights have to be on if my windshield wipers are on.

 

6. I cannot drive with my bright lights on.

 

7. I can pull over whenever I think it’s safe.

 

8. I have to immediately tell a police officer who pulls me over that I have a gun in my car.

 

9. I have to always tell a police officer the truth.

 

10. My silence can never be used against me.

 

11. If I refuse to perform the Field sobriety exercises and I refuse to take the Breath test then the case should be dropped, because there is no evidence to convict me of DUI.

 

12. I can’t refuse to perform the Field sobriety exercises.

 

13. They spelled my name wrong on my criminal and civil citations, or my address is wrong, or my tag # is incorrect, or the make of my vehicle is wrong, so the case must be dismissed.

 

14. I cannot go to jail for not changing my address on the registration paperwork for my license plate tag.

 

15. I am guilty of possessing drug paraphernalia by ingesting my legally prescribed pills in a way other than as prescribed.

 

16. I can get my entire record sealed.

 

17. I can just withdraw my plea.

 

 

“A POLICE OFFICER WAS THE ONLY PERSON OFFENDED.”

 

If a person pees in the woods, and a police officer is the only person who sees it, is there a crime?  The answer doesn’t necessarily have anything to do with what a bear or tree does in the woods, but the question is worth examining.

The myth is that if a police officer is the only person who observes a person pee in the words then there is no crime of disorderly conduct. Or if a police officer is the only person offended by a person’s actions regarding the crimes of disorderly conduct,1 exposure of sexual organ,2 or lewd and lascivious behavior3 then there can be no crime.  This myth has its roots in the case of Harbin v. State, 358 So.2d 856 (Fla. 1st DCA 1978), and has blossomed to this day.

In Harbin, the defendant cursed loudly at a deputy, but didn’t cause a scene.  No angry crowd appeared.  No riot ensued.  At the end of the day, all that really happened was that Mr. Harbin albeit loudly and with profanity exercised his right of free speech to a singular police officer. Yet from these facts came the following paragraph, which for all intents and purposes should probably have been considered dicta:  

 

In addition, we find it significant here that the only person who arguably could have been “incite(d) to an immediate breach of the peace” was the deputy who had been sent to the scene to keep the peace. Harbin, supra at 857.

This paragraph above is what truly spawned the myth that if an officer is the only person who witnesses certain acts then there can be no crime of disorderly conduct, exposure of sexual organ, or lewd and lascivious behavior.  Harbin was really more about an angry crowd not gathering and free speech versus “fighting” words than it was about the police officer being the only alleged victim. In fact, just yelling and cursing at a non- police officer without using language that rises to the level of “fighting words,” but is just annoying, and that doesn’t cause an angry crowd (as opposed to just curious onlookers) to gather or incite a riot, would also not be a breach of the peace.4

The Harbin myth was extended to lewd and lascivious behavior in 2000 when the 17th Judicial Circuit5 citing Harbin okayed a special jury instruction requiring the state to prove some person other than an officer in their official capacity be offended to sustain a conviction for lewdness in violation of Florida Statute, 796.07. The alleged lewdness was taking place in a private sex club where all the members present were everything but offended by their cohorts’ actions.  The police busted the place because of complaints no doubt made by those who weren’t asked to join in the fun.

The 5th DCA6 in 2005 decided to put the kibosh on the extension of the Harbin myth to lewd and lascivious behavior and exposure of sexual organs7 ruling that there was no element of offensiveness contained in those statutes, so it really didn’t matter if it was only undercover cops who were or were not offended by observing the uncovered in the Red Horse Saloon. Then in what can only be considered dicta they went on to say that even if offensiveness were an element of those offenses, an objective reasonable person standard would have to be used, as opposed to the subjective views of a police officer or a Judge, or anyone else. 8

In that same year of the 5th DCA’s kibosh on the extension of the myth to lewd and lascivious behavior and exposure of sexual organs, the 2nd DCA made it clear that the Harbin myth would not be extended to acts of prostitution.9 And again in that same year to hammer the nail in the coffin of any remaining doubt as to whether the Harbin myth could be extended to acts of prostitution, the legislature amended the prostitution statute to add a new section that stated, “a police officer may testify as an offended party in an action regarding charges filed pursuant to this section.”10

The question of whether a crime has occurred if a person pees in the woods and only a police officer sees it still needs to be answered.  But before getting there it should be noted that if a person goes into a closed stall in a public restroom to do something other than pee or a #2, and a police officer is the only one who observes this non-peeing or non-#2 act, then it may or may not be a crime.11 The case that held it was not a crime to masturbate in a closed stall may have contributed to the myth created by Harbin as it extends to the crime of exposure of sexual organ.12  But that case hinged on the fact that a police officer “peeked” or “peered” into a bathroom stall, a place where the court held a person has a fourth amendment expectation of privacy from police peepers. It did not hinge on the fact that the police officer was the only one who saw what the person was doing.13

Peeing in one’s own backyard in front of the next door neighbor’s children is not considered in and of itself a lewd and lascivious act, but it does constitute disorderly conduct,14 as does peeing in a public parking lot.15 Thus, peeing in the woods in front of a police officer also qualifies as disorderly conduct,16 even if the officer is the only one who sees it. However, cursing at one, two, or even three or more police officers without waking a bunch of people, inciting a riot, or causing others to breach the peace is just exercising free speech.17  So the basis in truth to the myth of no crime occurring if a police officer is the only witness and the only one offended by the crime comes from Harbin, but that’s not really what Harbin held.

 

“I CAN’T LOSE MY DRIVER’S LICENSE FOR RIDING A BIKE.”

A person can be convicted of disorderly conduct on a bike,18 as well as exposure of sexual organ on a bike.19 For the lewd and lascivious behavior contemplated in Florida statute, 800.02,20 the people would have to be riding a tandem bicycle or a two-seater. But not for a violation of Florida Statute, 798.02.  Of course none of the above should be much of a surprise, when a person can even get a DUI on a bike.21

But what may come as a surprise is that it is a myth to believe that the person who is convicted of the DUI on a bike cannot lose their driver’s license.22 The myth probably stems from the fact that a person arrested for DUI does not lose their license for refusing to take the breath test.23 Likewise, a person who takes the breath test and receives a result of .08 or higher will not lose their driver’s license.  In fact, a person read the implied consent for a DUI on a bike who agrees to take the test for fear of losing their driver’s license should be able to suppress the results of the breath test.24 The reason being that the implied consent law only applies to motor vehicles, not vehicles, and any consent given to take the breath test in the aforementioned situation should be deemed involuntary.25

Another basis for the myth that a person cannot lose their driver’s license from a DUI on a bike may stem from the fact that a person cannot lose their driver’s license for riding a bike on a suspended driver’s license.26 But this is because criminal driving while license suspended charges apply to motor vehicles, not vehicles.27 A person can get a civil citation for driving a vehicle on a highway while their license is suspended,28 but a bicycle is not included in the definition of vehicle in chapter 322.29 Another possible basis for the myth is that a person who is arrested for boating under the influence also does not lose their driver’s license.30

But as unlikely as it may seem a person can lose their driver’s license if they are convicted of bicycling under the influence.  Even worse, if it is their third DUI within ten years of their last offense, or their fourth offense for DUI then besides losing their license for ten years30A or for life30B they can also become a convicted felon30C and lose their civil rights. All for bicycling(beware of Ritalin-riding juveniles, Ritalin is a schedule II controlled substance30D), tricycling (which fits the definition of “vehicle”30E-beware of Ritalin-riding toddlers), Circus bicycling (beware of drunk clowns) and even unicycling (also fitting definition of “vehicle”30F-beware of drunk jugglers).31 And of course if two people are caught driving under the influence on a tandem bicycle or two-seater then a police officer can get two DUIs for the price of one stop.  But of course the police department will want to collect double the cost of investigation.

 

“I’M RIDING MY BIKE ON THE SIDEWALK.”

 

Now one way people are caught biking under the influence is when they are stopped at night for not having a light on their bike. This is probably the most common reason police officers stop people riding bikes.32 Every bicycle in use between sunset and sunrise has to have a front and rear light on.33

It makes sense for safety reasons that if a person is riding a bike on the road at night then a front and rear light should be on. It is the same law for cars.34  But the main reason police officers stop people at night on bikes without lights has nothing to do with safety, until of course the police stop them and then use police safety as an excuse to search the bikers. The main reason is drug interdiction.

But one would think that the requirement of lights on a bike at night would not apply to bicycles ridden on sidewalks or even bike paths. However, it is a myth to believe that this is true.35  One basis to this myth is that Florida statute, 316.217(1)(a)36 states that all vehicles driven on a highway must have lights on from sunset to sunrise.  A bicycle is a vehicle,37 but a highway38 is not a sidewalk.39 So it makes sense to believe that if a person is riding a bicycle on a sidewalk at night then no lights are necessary.

But Florida statute, 316.2065(8) states that all bicycles “in use” at night must have lights on.40 It doesn’t narrow down the use to just a highway. Which of course begs the question, should these two statutes be read in pari materia? And if the answer is yes, then perhaps this is not a myth at all. Perhaps it is okay to ride a bike on a sidewalk at night without lights.  But Florida statute, 316.2056(8) specifically states that the law applies to bicycles, and the language in Florida statute, 316.217 seems to be referring to motor vehicles even though the word “vehicle” is specifically used.  But even if these statutes are somewhat conflicting the one that is specifically for bicycles would most likely apply.40A

However, Florida statute 316.2065(10)41 states that a person riding a bike on a sidewalk or across a roadway upon and along a crosswalk, has all the rights and duties applicable to a pedestrian under the same circumstances.  Suggesting that a bicycle rider on a sidewalk is similar to a pedestrian.42  And pedestrians are not required to walk around with front and rear lights attached to them.  At least not yet, though it would certainly give the police another arsenal in their war against drugs.

Florida statute 316.2065(20) also states that traffic citations can only be issued to people who violate Florida Statues, 316.2065(3)43 and (16)44 if they are riding on a bicycle path or road as defined by Florida statute, 334.03.45  The definition of road in 334.03 includes “associated sidewalks.”46  No such language is specified for Florida Statute, 316.2065(8) limiting the provision to exclude the issuance of citations to riders on sidewalks, bike paths or anywhere else. The only limitation is the catch-all limitation found in Florida Statute, 316.2065(20) which states that no citations can be issued to bicycle riders on private property, except any part thereof which is open to the use of the public for purposes of vehicular traffic. So a bike rider on a private sidewalk at night does not have to have lights on their bike.

The only case in Florida where a person on a bike was stopped at night for riding on a sidewalk without a light was upheld,47 but the issue of the stop was not challenged, only the subsequent search.  At this point in time the state of the law suggests that it is myth to believe a person can ride a bike at night without lights on a sidewalk.

 

 

 

 

“IT’S TWILIGHT OUT.”

 

Some people mythically believe that even if they must have a light on their bike while riding on a sidewalk at night that they do not have to turn it on during twilight.  Many people also mythically believe that they do not have to turn on the headlights of their car during twilight. For both bikes48 and cars49 lights must be on from sunset to sunrise.  The twilight hours start after sunset, but the statute referring more to cars than bicycles redundantly adds, “including the twilight hours.”50

The basis in truth to this myth is that some people believe that lights only have to come on at night and that twilight is not night. Which explains why Florida Statute, 316.217 reminds people that after sunset also includes the twilight hours. Apparently, bicycle riders are smart enough to know without being reminded that the twilight hours begin after sunset.  It is a myth to believe that a driver does not have to turn on their headlights during twilight.

“MY WIPERS ARE ON.”

Even though a driver must have their headlights on during twilight, it is a myth to believe that those same lights must be turned on whenever a person is using their windshield wipers.  This myth is based on truth because headlights must be turned on during rain, fog, and smoke.51  But just because it is raining out, that does not always mean windshield wipers are being utilized. And of course windshield wipers are also used when there is no rain, fog or smoke. There is no requirement that while using windshield wipers headlights must be on. But the truth of the myth comes from the fact that the two tend to go together.

 

 “I CANNOT DRIVE WITH MY BRIGHT LIGHTS ON.”

 

A person driving after sunset or during the rain must have their headlights on, but what about their bright lights or high beams? The laws of bright lights like headlights only apply from the hours of sunset to sunrise.52 There are two bright light myths. The first is that a person cannot drive with them on especially when other cars are coming in the opposite direction. The second is that it is illegal to flash bright lights at those same cars to warn the drivers of police presence nearby.

These myths are of course grounded on the fact that there are times when it is illegal to drive with one’s high beams or bright lights on.53 A driver must turn off their high beams whenever a driver comes within 500 feet of an oncoming vehicle.54 And whenever a driver comes within 300 feet of any vehicle in front of the driver.55 The driver of a non-moving vehicle, standing, stopped, or parked vehicle can keep the bright lights on since only drivers moving toward oncoming vehicles or moving toward vehicles in front of them have to abide by Florida statute 316.238.56

The driver of a vehicle moving toward an oncoming vehicle does not have to turn off the high beams if the driver is driving on a divided highway.57 A divided highway is any highway divided into two or more roadways.58  Florida statute, 316.238 only applies to a motor vehicle being operated on a roadway.59 A roadway is defined as one roadway, not two or more roadways.60  A divided highway is “…any highway divided into two or more roadways by an intervening space or by a physical barrier or clearly indicated dividing section so constructed as to impede vehicular traffic…”61  Most of the case law talks about cases where there is an obvious division like a grassy or cement median or a concrete barrier between the roadways.62

An interesting question is whether a center turning lane aka “Suicide Lane” can be said to divide two roadways. Certainly it is an intervening space that goes right down the middle of some highways. To date, no published Florida case has dealt with this issue.63 Florida Statute, 316.172(2)64 dealing with when a driver does not have to stop for a stopped school bus on a divided highway is somewhat instructive. A driver travelling in the opposite direction of a stopped school bus on a divided highway divided by an unpaved space of at least 5 feet, a raised median, or a physical barrier does not have to stop. Which means there must exist divided highways with paved spaces, and of course a driver travelling in the opposite direction of a stopped school bus on a highway divided by a paved space or a center turn lane must stop for the school bus. The best argument that a roadway separated by a center turn lane is a divided highway can be found in the Aventura City Code of Ordinances.65 The code defines a divided highway as a street where the opposing directional lanes of traffic are separated by a median or center turn lane. So while it is a myth to believe that a person cannot drive with their bright lights on at night, there is also a lot of truth to this myth.

Now it is time to deal with the myth of the flashing bright lights at night to warn oncoming vehicles of police presence in the area.  The only case dealing with this issue in Florida held that it was not illegal for a driver either during the day to quickly turn on and off headlights, or at night to briefly flash high beams at oncoming vehicles.66  This case dealt with Florida Statute, 316.2397(7)67 not Florida Statute, 316.238. Florida Statute, 316.2397(7) has to do with lights on a car that when turned on are always flashing, like blinkers, and hazard lights. It does not apply to briefly flashing headlights, which do not continuously flash when turned on.

The question is had the officer cited the driver for a violation of Florida Statute, 316.238(1)(a) or (1)(b) would the case have been decided differently. It would be a violation of (1)(a) if the glaring rays of the high beams projected into the eyes of the oncoming driver.  It is hard to believe a quick flash would produce glaring rays into the eyes of an oncoming driver. To be a violation of (1)(b) the driver when flashing the bright lights would have to be within 300 feet of a vehicle in front of the driver. It would seem as ridiculous as it may sound that in the aforementioned scenario even a quick flash would be a violation of (1)(b).  So though it is a myth to believe a driver cannot flash bright lights at oncoming drivers to warn of police presence, it is a myth grounded in some truth.

 

I DON’T HAVE TO PULL OVER UNTIL I THINK IT IS SAFE.”

The driver having to obey the flashing light laws also has to obey the flashing lights of a police officer’s vehicle when the police officer is attempting to pull the driver over, or the driver could be charged with fleeing and eluding an officer.68  Some people mythically believe that they only have to pull over when they think it is safe.  There is some truth to this myth since drivers certainly don’t have to endanger their lives when pulling over, but they should pull over at the first safe spot.

When an unmarked police car initiates the stop there could even be a fear that it is not actually a police officer trying to pull the driver over. Certainly, there have been cases where people have been know to impersonate police officers69 to pull drivers over. Usually in an unmarked vehicle, even though lights are flashing, and a siren is on.70  Fleeing from the this type of situation could create a necessity defense71 as long as the driver slowed down, did not increase their speed, and drove to a public place or best of all to a police station to stop.

It should be noted that nowhere in the fleeing and eluding statute72 is their language that suggests a person must immediately stop when a police officer attempts to stop a driver. Whereas the Leaving the scene of an accident statutes say, “The driver of any vehicle involved in a crash…must immediately stop the vehicle at the scene of the crash or as close thereto as possible,…”73

It is a myth for a person to believe that they can pull over whenever they subjectively believe it is safe to do so. But if under the totality of circumstances an objectively reasonable person would not have pulled over right away then everything should be okay.  Which is why it’s not a bad idea to always have the Reasonable Person with you at all times, as a backseat driver. Then you won’t have to ask yourself what would the Reasonable Person do in this situation? The Reasonable Person will just tell you.

 

“I HAVE TO TELL A POLICE OFFICER WHO STOPS ME THAT I HAVE A GUN IN MY CAR.”

 

After being pulled over, and stopping in a safe place some people mythically believe that they have to immediately tell a police officer that there is a gun in their car.  Which of course leads to the number one answer on the Family Feud’s Board to the question, “why a police officer might search your car?” And the answer is: officer safety.  Once told that there is a gun in the car, the officer will have the driver get out of the car.  Perhaps at gunpoint, perhaps not.  The officer will then search the car and find the gun next to a kilo of cocaine.

Now arguably letting an officer know that there is a firearm in the car should not be enough to search a vehicle since the firearm could be in the vehicle legally.74 Either because the firearm is not concealed,75 or if concealed,76 it is securely encased,77 not readily accessible for immediate use78 or the driver has a concealed weapon’s permit.79 Or lastly, because the driver is carrying an unloaded pistol in a secure wrapper, concealed or otherwise, from the place of purchase to the driver’s home or place of business. Or to a place of repair or back to the driver’s home or place of business from the place of repair.80

Whether or not a police officer upon making a traffic stop knows there is a firearm in the vehicle, the officer may always order all of the occupants out of a vehicle for officer safety.81 Naturally, if upon making the traffic stop a driver spontaneously utters, “I have a firearm in the vehicle,” or answers, “yes” when asked by the officer if there are any weapons in the vehicle, the officer will most likely have everyone exit the vehicle. Or call for backup, and then have everyone exit the vehicle.  The question is once everyone has exited the vehicle is the officer allowed to search the vehicle to obtain the firearm.

Unlike the situation where a person is arrested and handcuffed outside their vehicle, dissipating the danger a firearm in the car could cause,82 this is not the case during an unsecured detention. The current state of Florida law seems to be that if a driver tells an officer that there is a concealed firearm in the vehicle, then the officer is allowed to enter the vehicle for the limited purpose of securing the firearm, or what is also referred to as a protective vehicle sweep.83 The reasoning of course being that number one answer on the board again. But the officer is really only supposed to enter the vehicle to secure a firearm concealed or not if that mythical reasonable person in the same circumstances as the officer is right to reasonably believe that the vehicle not only contains a firearm, but also that the occupant of the vehicle is dangerous, and can immediately or easily gain access to the firearm.84

In reality, however, once it is deemed reasonable for an officer to believe that there is a firearm in the vehicle it seems as though the dangerousness of any occupants and their easy access to any firearms is presumed.85 If the officer safety search in the routine civil traffic infraction stop scenario had a three-prong test defining it as, 1. reasonable belief firearm is in vehicle, 2. dangerousness of occupants in vehicle, and 3. easy access to firearm, satisfaction of prong 1 would be all that is a needed.86

Ultimately, it seems safe to say that if during a routine traffic stop an officer sees an unconcealed firearm in a vehicle or is told that a concealed or unconcealed firearm is in a vehicle police safety will always trump a citizen’s right to bear arms. Meaning an officer will always be allowed to enter the vehicle for the limited purpose of looking for and securing any firearm. 87

It is of course a myth to believe that a person upon being stopped by the police has to immediately inform the officer that there is a concealed firearm in the vehicle.  A person is under no legal obligation to disclose this information. And it certainly makes no sense to make such a disclosure when the possession of said firearm is illegal.  The basis in truth to this myth most likely comes from the situations where the firearm is not concealed.  A person stopped knows the police officer will see the firearm, so the driver fearing for his or her own safety immediately tells the officer that there is a firearm in the vehicle, so the officer doesn’t accidentally shoot the driver.  So ultimately, the basis in truth behind this myth has to do with two kinds of safety. An officer’s safety, and a citizens’ safety.

 

“THE POLICE CAN’T HANDLE THE TRUTH.”

 

But what happens if instead of giving the officer a head’s up about the firearm in the vehicle, the officer asks if there are any weapons in the vehicle?  Some people mythically believe that they must tell the officer the truth.  There is no question that a person who is not being lawfully detained by a police officer when asked for their name is allowed to lie about their name and no adverse action can be taken against that person.88

Similarly, if during a consensual encounter a person is asked by a police officer for consent to conduct a pat-down for weapons, a person is legally allowed to refuse to give consent. And the refusal does not, without more, give the police officer reasonable suspicion to detain or seize the person.89  If after a valid traffic stop, instead of the officer asking the driver if there are any weapons in the vehicle, the officer asks for permission to search the vehicle for weapons, the driver can legally refuse to give consent. The refusal alone cannot create probable cause to search the vehicle for weapons.90

One should point out that there is a dearth of Florida case law discussing the issue of a person’s refusing to give consent when asked for permission to search anything, and how that refusal may influence an officer’s ability to develop probable cause to search.91 Since the Supreme Court has said a refusal alone, or without more cannot be used to establish reasonable suspicion to detain or probable cause to search, the question is what more is needed.92 To date, neither the Supreme Court nor any Florida court has truly answered what this “more” might be.93 Perhaps this is because any answer even suggesting that a refusal to give consent should ever be considered as a factor in determining reasonable suspicion to detain or probable cause to search seems so obviously repugnant to the hallmarks of our Constitution that the argument is rarely, if ever, made.94

Interestingly, if one looks to the case law that allows for the lawful withdrawal of consent to search previously given then one starts to feel better about the law being as obvious at it should be. Especially under circumstances where it seems as though the defendant is playing a game of Hot and Cold with the officer. Meaning that during the consensual search as long as the officer is cold and stays away from the contraband the defendant says nothing. But as soon as the officer gets hot the defendant withdrawals the consent, and any further search is found improper.95

All this brings us back to the original question. May a person upon being legally stopped by the police for a simple traffic infraction lie to the police when asked about the presence of a firearm in their vehicle?  In a sense the officer is asking a trick question. Because if the officer asks for consent to search the vehicle for a firearm, and the driver says, “no,” then theoretically (or without more) that refusal should end the inquiry.  But by asking if there is a firearm in the vehicle the officer is trying to get the driver (if the answer is “yes”) to agree to a search of the car without the officer having to ask for consent to search. Obviously if there are no weapons in the car then this becomes a non-issue.  But if there are and the officer does not have probable cause to search, there is nothing wrong with lying. And even if the officer does have probable cause to search, as long as the driver does not in any way prevent the search then no crime can be attributed to the lie.  In fact, if the officer has probable cause the lie will just be ignored, and the officer will search anyway.96

It is a myth to believe that a person must always tell the police the truth. A myth grounded in truth since a person cannot make a false report to the police,97 commit perjury,98 obstruct justice,99 lie to a federal agent,100 or lie about their identity and other biographical information once lawfully detained or arrested,101 just to name a few instances where lying is criminal. And though one should be careful whenever advocating lying to the police, it does seem that lying in this particular circumstance is probably better than telling the truth. Because the police can’t handle the truth of citizens possessing legally concealed firearms in their cars.

 

“MY SILENCE CAN NEVER BE USED AGAINST ME.”

 

What if instead of answering, “yes” or “no” when asked by an officer if there is a firearm in the vehicle the driver remains silent? Just says nothing. Stands mute. Can that silence be used against the person?  It is a myth to believe that silence can never be used against a person.  This myth is based on the obvious truth of the fifth-amendment’s self-incrimination clause, brought to all states by the fourteenth amendment with its own version in the Florida Constitution.102  Everyone knows the phrase, “taking the fifth.”103  But sometimes a person’s silence can be used against a person.

First there is the situation at hand. The Supreme Court has said silence without more is not enough to establish reasonable suspicion to detain.104  Meaning that silence plus something more could be used against a person to establish reasonable suspicion to detain as well as probable cause to search.  It doesn’t seem too hard to believe that a court could rule that remaining silent when asked if there are any weapons in a car puts an officer in a precarious situation where for the officer’s own protection the officer must be allowed to search the vehicle for the presence of any weapons. Even when after remaining silent in response to the aforementioned question, the driver objects to the subsequent weapons search.105  Once the person objects to the search, the officer could once again ask if there are any weapons in the car, and if the person again remains silent, as wrong as it should be a court might hold that police safety validates the search for a firearm. Once again suggesting that the only safe answer to this officer safety question is to just say “no,” even if saying “no” is a lie.

There is a difference between pre-arrest silence, time-of-arrest-pre-Miranda silence, post-arrest-pre-Miranda silence, and post-arrest-post-Miranda silence.  There is also a difference between Post Cereal and the Post office, which is much easier to explain. The United States Constitution allows a person’s time-of-arrest-pre-Miranda silence, and post-arrest-pre-Miranda silence to be used against a person for impeachment purposes.106 But the Florida Constitution only allows a person to be impeached with their pre-arrest silence not their time-of-arrest-pre-Miranda silence107 or their post-arrest pre-Miranda silence.108 And obviously neither Constitution allows any post-Miranda silence to be used for impeachment purposes.109

A person who remains silent in the face of an accusation that a reasonable person (another good reason to have that Reasonable Person with you at all times) would deny, can under certain circumstances have that silence used against the person in the state’s case in chief, as an adoptive admission by silence.110  But such admission must come pre-arrest.111  On the plus side, under Florida law a person who remains silent during police questioning that takes place pre-arrest, time of arrest, or post-arrest and testifies at trial cannot have their silence used against them when bringing up for the first time at trial a defense like self-defense,112 consent,113 or various other defenses, and exculpatory statements.114  In other words it is improper for a prosecutor during cross-examination of a Defendant to say, “How come you never told anyone you acted in self-defense before now. Why is this the first time you are saying that it was consensual sex.”

A person cannot be charged with resisting an officer without violence by remaining silent during a consensual encounter.115 However, a person’s silence during a valid fourth amendment detention,116 and after a valid arrest117 can result in a person being charged with resisting an officer without violence.118

So though it is a myth to believe that a person’s silence can never be used against a person, it is a myth grounded in more truth than most myths since most of the time a person’s silence cannot be used against a person. And even in those rare instances when silence can be used against a person the prosecutor is walking a tightrope when choosing to comment on that silence because any comment can be fairly susceptible to, or misconstrued as, commenting on the type of silence that can never be commented on, resulting in a mistrial or a new trial.119

 

 

 

“I REFUSED EVERYTHING.”

 

Then there are those who know all about remaining silent and refusing to give consent who mythically believe that if they refuse to submit to all field sobriety exercises and the breath test, that their DUI must be dropped for lack of evidence.

“But I refused everything.” “They don’t have any evidence against me.” “They have to drop my case,” are common words heard by clients with double-refusals. And also quite often heard from clients with single-refusals (refused breath test). Though it is true that in most cases a double-refusal makes for an ideal defense, and a single-refusal is much better than a .08 or above, this does not usually mean that there is no evidence, and the state is just going to drop the case.

Both refusals can be used against a person as consciousness of guilt.120 But the refusal to take the field sobriety exercises can only be used against a person if that person is warned that the refusal can be used against the person in court.121 Or if it is at least made known to the person in some fashion or another that there is no safe harbor for a refusal.122 A refusal to take the breath test can be used against a person even without being warned that the refusal can be used against the person in court.123 And arguably even without being read any implied consent warning, because of the Implied Consent law.124 However, if no warning is given regarding the consequences of a refusal to take the breath test and a person refuses then a person may request that the Judge instruct the jury about the warning that was supposed to have been given, but wasn’t.125 Furthermore, a refusal to take the breath test cannot be used against a person unless the request for the breath test is made post-arrest as a search incident to arrest.126 Finally, though Florida courts seem to be confused as to whether or not Florida has adopted the Confusion doctrine, when and if it does apply it can be another reason that the refusal to take the breath test can be suppressed.127

A person’s silence when requested to take either the field sobriety exercises or the breath test can be considered refusals, but that does not mean that the silence in and of itself can be commented upon.128 Only the fact that they were asked but did not physically take the breath test or physically perform the exercises can be commented upon.129  Besides using the refusals against a person there could of course be other evidence like a driving pattern, odor of alcohol, fixed gaze, slurred speech, flushed face, bloodshot and watery eyes, and other common fraternal favorites.

So though it is a myth to believe that a double or single refusal equates to no evidence, the truth is that it does in most circumstances make a case much easier to defend.

 

I CAN’T REFUSE TO PERFORM THE FIELD SOBRIETY EXERCISES

 

Then there are those who instead of doing a double-refusal do the double-take, performing all of the field sobriety exercises and then blowing into the machine for good measure. There are also those who would perform a double-refusal but they mythically believe that they cannot refuse to perform the field sobriety exercises.  But as evidenced by those who have performed double-refusals a person does have a choice.

The main reason for this myth and its basis in truth is that many times the officer does not give a DUI suspect a choice. After having the person exit the vehicle the officer either just starts conducting the HGN and administering the other exercises, or just tells the person what exercises to perform. Making it like the only choice the person has is to perform the exercises. Most people naturally believe that they have no choice but to do as the officer says. Which is why some courts suppress the results of the exercises when the aforementioned occurs holding that the exercises were performed in acquiescence to police authority.130

Yet other courts hold that as long as the officer has reasonable suspicion to detain the person for a possible DUI then there is no problem with the officer telling, directing or requiring the person to perform the exercises, as opposed to asking, and intimating in at least some way that the person has a choice.131 These courts find no problem with an officer even saying to the person, “I need to check out your eyes.” “I need you to perform the following exercises.” “I’m gonna check out your eyes.” “I want you to perform some exercises.” Or the officer just administering the exercises as though it is standard operating procedure and there’s no question they must be done.

The no-choice courts base their reasoning on the belief that an officer does not have to ask for a person’s consent to perform the field sobriety exercises. The pro-choice courts believe a person must voluntarily consent to performing the field sobriety exercises. But all courts agree that a person cannot be physically or mentally coerced into performing the exercises by misrepresentations, threats, physical discomforts, or false promises.132

 

 

“THEY DIDN’T SPELL MY NAME RIGHT!”

 

Some people mythically believe that if their name is spelled wrong on their criminal citation for DUI then it doesn’t even matter whether they chose to refuse the field sobriety exercises or the breath test. Because spelling counts and their case must be dismissed.  Or if it’s not a misspelling, it’s a wrong address, wrong make of vehicle, wrong tag number, wrong color of car, wrong date of birth, something’s wrong, etc…

The truth to this myth is that some mistakes or errors in a citation can make a difference. Most notably, when dealing with civil and criminal citations for careless driving and reckless driving. Just writing the words “careless driving” or “reckless driving” on the citation is not sufficient.  The failure to explain what made the driving careless or reckless can result in a dismissal of the case.133

A mistake made in an Information can also cause a case to be dismissed if the mistake rises to the level of a fatal variance.134 Some examples of fatal variances in an Information are, incorrect name of the victim,135 incorrect age of the defendant,136 wrong name of the owner of the property broken into or stolen,137 and wrong date of offense.138 The mistakes in an Information have to be addressed with a motion to dismiss or a motion for a Judgment of acquittal or they may be deemed waived.139 An Information may be amended at any time by the state as long as the time of the amendment does not cause prejudice to the defendant.140

Spelling doesn’t necessarily count, but it can sometimes make a difference.  So though most mistakes in a citation or an Information are not fatal to the state’s cause, sometimes they are. Which is why there is some truth to this myth.

 

“I CAN’T GO TO JAIL FOR THAT!”

 

Though one’s case won’t be dismissed because the criminal citation they were issued has the wrong tag number, a person can actually go to jail for sixty (60) days for failing to change their address on their registration paperwork for their tag within twenty (20) days.141 So in this scenario twenty-one (21) days could get you sixty (60) days. Or in legal slang, “21 will get you 60.” Most people mythically believe that they cannot go to jail for being forgetful, lazy, absentminded or for procrastinating. Not only is Florida a Debtors’ prison it is also a Procrastinators’ prison.

The truth to this myth may stem from the fact that it is a non-moving civil infraction for failing to change one’s address on their driver’s license within ten (10) days.142 So it makes sense to think that failing to change one’s address on their registration should also be a non-moving citation.  But the real basis in truth to this myth is that no sane person would think this could be a crime.  In fact, whoever made this a crime should be sentenced to sixty (60) days in jail.

 

“I WASN’T TAKING IT AS PRESCRIBED.”

 

A person after being arrested for failing to update their address on their registration within twenty (20) days is searched incident to arrest.  The police find a straw with oxycodone residue alongside legally prescribed oxycodone. The straw was used to snort crushed oxycodone.  Some people mythically believe that the person can be charged with possession of drug paraphernalia because of the straw.143 The thought being that it is illegal to take the medication other than as prescribed. Naturally the prescription says to take by mouth, and use as directed.  But the prescription does not say it must be taken by mouth or that it cannot be crushed and snorted through a straw.  And a Doctor doesn’t usually direct people how to physically take a pill other than explaining when to take it, how much to take, and what to take or not take it with. But there is no law in Florida that says it is unlawful to take legally prescribed medicine other than as prescribed.

The drug paraphernalia statutes are not very helpful when trying to debunk this myth. Florida statute 893.145 defines drug paraphernalia by saying, “The term drug paraphernalia means all…materials of any kind which are used…in ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of this chapter or s.877.111.”144 And Florida statute 893.147 states, “it is unlawful for any person to use or to possess with intent to use drug paraphernalia to inject, inhale or otherwise introduce into the human body a controlled substance in violation of this chapter.”145  There is no prescription exception found in the drug paraphernalia statutes like there is in the drug possession statute.146

But it seems logical to presume that when Florida statute, 839.147 says a controlled substance “in violation of this chapter” that the prescription defense should extend to the charge of drug paraphernalia, and then the straw would not be used to snort a controlled substance “in violation of this chapter” if the person had a lawful prescription.147  So ultimately it is a myth to believe that taking prescription drugs other than as prescribed (i.e. snorting legally prescribed pills thru a straw) is illegal.

 

 

“I NEED MY RECORD SEALED.”

 

If a person is charged with drug paraphernalia and ultimately pleas guilty or no contest to the charge they may at some point want their record sealed.

These days with the economy being the way it is finding employment is more difficult than ever. People who never seemed to care all that much about having their record sealed are now finding their record to be an insurmountable obstacle to their gaining employment.  With so many people looking for jobs and the Internet making a person’s prior record more accessible than ever before (and employers having no idea how to read a person’s prior record), employers can afford to be choosey.  And not too many are choosing people with a past.  Thus, the number of inquiries made regarding sealing one’s record has skyrocketed.

But the mythical assumption that an entire record, (notwithstanding the number of unrelated charges, adjudications and time spent in prison) can be sealed leads to many callers being upset with lawyers who are just stating the law.  First of all a person has to have a withhold of adjudication for all the charges in the case they want sealed.148 Secondly, they must have no prior adjudications for any crime prior to the date of applying to seal a case.149  Thirdly, a person can only have one case sealed unless it can be shown multiple cases arose from the same criminal episode.150 And finally, a person only gets one sealing during their lifetime, and not all charges can be sealed.151 To expunge a case the charges must have been no filed, nolle prossed or dismissed by the court.152  Or a person has to wait ten (10) years after a case has been sealed to expunge that case.153  Otherwise for the most part the same rules that apply to sealing a record also apply to expunging a record.  Whether it’s a motion to seal or a motion to expunge, a Judge has the discretion to grant or deny the motion.154

Naturally, most callers are lost at stage one. Others claim to have heard differently, and want to argue.  Making the lawyer wonder why they even bothered calling.  Still others are in denial not understanding or not wanting to understand how crime(s) from so long ago can keep popping up, and never be eliminated from their record.  Those not in denial want to know how they are ever supposed to get a job. No doubt a rhetorical question. Others yell at the lawyer and or slam the phone down as they hang up on the lawyer.  And a few exasperated people say they will have to just go on committing crimes to support their family (and will hopefully call the lawyer when they get caught).  A small minority of unhappy people do say, “thank you.”

There is no doubt that the sealing and expunging laws should be amended to at least allow a person to have as many not guilty verdicts, dismissed charges, no filed charges, and nolle prossed charges expunged, regardless of any prior or contemporaneous adjudications.  Also, after the one allowed in a lifetime sealing, a person should be able to request a hearing where a Judge can decide if more of a person’s record should be sealed. And not all prior adjudications or contemporaneous adjudications should prevent a person from sealing a charge or charges in a case. Something should also be done despite the First Amendment to prevent newspapers and other Internet sites from continuing to display a person’s record once sealed or expunged.

Of course since the law has not yet been amended it is a myth to believe that a person’s entire record of multiple offenses not arising out of the same criminal episode, and regardless of adjudications can be sealed or expunged. A myth grounded only in what the law should be, and the fact that sometimes a person’s entire record can be sealed or expunged.

 

“THEN I’LL JUST WITHDRAW MY PLEA.”

Those who are particularly upset about not being able to seal any part of their record no matter how old it is think that that they can at anytime just move to have their plea withdrawn, and sentence vacated. They mythically believe that all it takes is a snap of their fingers or at least their lawyer’s fingers and presto! magic they are back where they started.  If only it were that easy.

In all non-capital cases a person has two years from the time of their sentence to file a motion to withdraw their plea pursuant to Florida rule of criminal procedure 3.850.155  The most popular exception to the two year rule is the discovery of new evidence that could not have been discovered thru the exercise of due diligence during the original two year period.156 A motion based on the discovery of new evidence must be filed within two years of the discovery of that new evidence.157 The second most popular reason is that a fundamental constitutional right was established after the original two-year period ended and is now being applied retroactively.158 A motion based on such a right must be filed within two years of the date of mandate of the decision regarding the retroactivity.159  A frequent example of this in recent years has been the right to withdraw a plea based on the failure of a court to advise a non-citizen that their plea could result in their being deported.160

The most popular basis for filing a motion to withdraw a plea within two years of the sentence is that the plea was involuntary due to some misadvice of counsel.161 To succeed on this motion the defendant must prove that the misadvice was given, that the misadvice was believed, and that there was a reasonable probability that, absent the misadvice the defendant would not have entered the plea, but would have insisted on a trial.162  So a person could file a 3.850 motion to withdraw their plea and vacate their sentence based on the fact that their attorney misadvised them that if they pled their charge could be sealed and or expunged. And such a motion might be successful.163

If a person discovers the misadvice about sealing or expunging after entering a plea, but before sentencing, they can file a motion to withdraw their plea pursuant to Florida rule of criminal procedure, 3.170(f).164 The court in this circumstance may in its discretion, and shall on good cause shown allow the plea to be withdrawn.165 If the person discovers the misadvice after sentencing and within thirty days of the sentencing date then the person can file a motion to withdraw the plea pursuant to Florida rule of criminal procedure, 3.170(l).166 The motion to withdraw the plea can be based on the plea being involuntary.167 A person must show a manifest injustice or clear prejudice to have a motion to withdraw a plea granted after sentencing.168

Until a trial judge accepts a plea a person may unilaterally withdraw their plea pursuant to Florida rule of criminal procedure 3.172(g).169  This rule allows a plea to be unilaterally withdrawn by either side without any necessary justification.170  There is a conflict in the law as to whether this rule only applies to motions to withdraw pleas prior to sentencing, or if it also applies to motions to withdraw pleas after sentencing.171

It is a myth to believe that a person can just nilly-willy or willy-nilly(whichever the Reasonable Person prefers) file a motion to withdraw their plea at anytime.  A myth grounded in truth since sometimes pleas are allowed to be withdrawn many years after sentencing.172  So if a person is stopped on their bike or in their car, because of any of the myths 1 thru 16 above, and is ultimately arrested, charged and sentenced because of any of those same myths, there is always an outside chance that many years after their sentence, they can still have their plea withdrawn and start all over again.

 

 

ENDNOTES



1Florida Statute, 877.03-Breach of the Peace; disorderly conduct states.

2Florida Statute, 800.03-Exposure of sexual organs.

3Florida statute, 798.02-Lewd and lascivious behavior.

4Britton v. State, 6 FLW Supp. 267(Fla. Cir. Ct. 20th Jud. Cir. 1996)(Restaurant’s loud music was annoying, but not a breach of the peace.); Silva v. State, 3 FLW Supp. 427(Fla. Dade County Court, 1995)(Case cites Harbin, and compares police officer who was the only person offended in Harbin to the couples who were the only ones offended by a man cursing in an interviewing room outside court room. Finding no breach of the peace.)  Gonzalez v. City of Belle Glade, 287 So.2d 669(Fla. 1973)(Woman who cursed and expressed dissatisfaction with the service given to her and her friend in a restaurant was not a breach of the peace.); In Re Fuller, 255 So.2d 1(Fla. 1971)(Student cursing at a teacher while another student was in the room was not a breach of the peace.); B.R. v. State, 657 So.2d 1184 (Fla. 1st DCA 1995) (This case with almost identical facts to Harbin, supra, held: There is nothing in the record which indicates that the child’s loud language inflicted injury or tended to incite a violent response amongst any of the spectators. Although B.R.’s language was frustrating and annoying to the officer, there was no evidence that her screaming was of such nature as to incite anyone in the area to an immediate breach of the peace. Id. at 1186. This case doesn’t state that there is no breach of peace because only a police officer was a witness to the behavior. It focuses on the fact that her actions did not incite anyone to do anything.)

5State v. Silvers and Hall, 7 FLW Supp. 592(Fla. Cir. Ct. 17th Jud. Cir. 2000)

6State v. Kees, 919 So.2d 504, (Fla. 5th DCA 2005); ALSO SEE State v. Barsom, 14 FLW Supp. 147(Fla. 9th Cir. Ct. 2006)

7The case of Conforti v. State, 800 So.2d 350(Fla. 4th DCA 2001) arguably put the kibosh on the extension to Exposure of sexual organ before the 5th stepped in, but the Fifth spoke to the issue of the Harbin myth, whereas Conforti said: In the instant case, we do not need to reach the issue of whether it was enough that the undercover officer found the conduct offensive. Id. at 351.

8State v. Kees, 919 So.2d 504, (Fla. 5th DCA 2005) Id. at 507.

9State v. Farino, 915 So.2d 685(Fla. 2nd DCA 2005); Florida, Statute, 796.07 Prohibiting prostitution, etc.; evidence; penalties; definitions

10Florida Statute, 796.07(3)(b)

11Ward v. State, 636 So.2d 68(Fla. 5th DCA 1994) (Suppressed officer’s peering and peeking into a crack in a closed bathroom stall in a public restroom to observe a person masturbating. Because person had expectation of privacy inside closed bathroom stall.); BUT SEE: Moore v. State, 355 So.2d 1219(Fla. 1st DCA 1978)(Defendant had no expectation of privacy in locked stall when officer could see without peering or peeping thru a crack in stall a person using crack. Court also noted that the person was in stall to do something a person would not normally do in a stall and officer could tell by the way his legs were situated that he wasn’t in there doing one of those normal things.); State v. Halpin, 13 So.3d 75(Fla. 5th DCA 2009)(Finding no expectation of privacy for a person masturbating in a closed stall, but distinguishing Ward, because in this case the officer did not have to peer or peep inside the stall to see, and more importantly prior to looking thru the crack in the stall the defendant intimated that he wanted the officer to take a look, culminating with the defendant then seeing the officer looking, and opening the stall and inviting the officer inside to take a better look.); Another distinguishing factor between Ward, and Moore, may be the fact that Ward was not doing anything illegal inside the stall whereas Moore was. As the opinion in Ward, said, “Masturbation, by itself, is not a crime in Florida (nor any other state that we are aware of),” Ward, supra at 70.

12Ward v. State, 636 So.2d 68(Fla. 5th DCA 1994)

13Ward v. State, 636 So.2d 68(Fla. 5th DCA 1994)

14Durant v. State, 647 So.2d 163(Fla. 2nd DCA 1994)

15Payne v. State, 463 So.2d 271( Fla. 2nd DCA 1984)

16This is not to say that a person may not have a necessity defense. After all, when you gotta go, you gotta go. And in this day and age a jury might not think peeing off the side of a highway or in the woods, or anywhere else away from the general public is an outrage to the sense of public decency. Especially when an officer is the only person who saw it.

17C.N. v. State, 49 So.3d 931(Fla. 2nd DCA 2010);  A.S.C. v. State, 14 So. 3d 1118 (Fla. 5th DCA 2009); H.C. v. State, 988 So.2d 1145 (Fla. 2nd DCA 2008); Miller v. State, 780 So.2d 197 (Fla. 2nd. DCA 2001); W.L. v. State, 769 So.2d 1132 (Fla. 3d DCA 2000); H.K. v. State, 711 So.2d 173(Fla. 3rd DCA 1998); K.S. v. State, 697 So.2d 1275(Fla. 3rd DCA 1997); T.S.S. v. State, 696 So.2d 820(Fla. 2nd DCA 1997); Miller v. State, 667 So.2d 325(Fla. 1st DCA 1995); L.A.T. v. State, 650 So.2d 214(Fla. 3rd DCA 1995); Livingston v. State, 610 So.2d 696(Fla. 3rd DCA 1992); C.P. v. State, 644 So.2d 600(Fla. 2nd DCA 1994); K.Y.E. v. State, 557 So.2d 956(Fla. 1st  DCA 1990); D.C.E. v. State, 381 So.2d 1097(Fla. 1st DCA 1979); Clanton v. State, 357 So.2d 455(Fla. 2nd DCA 1978); Phillips v. State, 314 So.2d 619(Fla. 4th DCA 1975); Gonzales v. City of Belle Glade, 287 So.2d 669(Fla. 1973); Of course this is not to say the actions couldn’t result in a resisting without violence charge as was noted in L.A.T. v. State, 650 So.2d 214(Fla. 3rd DCA 1995)

18Brown v. State, 5 FLW Supp. 722(Fla. Cir. Ct. 10th Jud. Cir. Court, 1998)

19State v. Barbalace, 3 FLW Supp. 181(Fla. Palm Beach County Court, 1995)

20Florida Statute, 800.02-Unnatural and lascivious act.; Conforti v. State, 800 So.2d 350 (Fla. 4th DCA 2001)(Holding two people have to be doing something together for there to be a violation of 800.02.)

21State v. Howard, 510 So.2d 612(Fla. 3rd DCA 1987)(Using definition of vehicle in Florida Statute, 316.003(2) to define bicycle as: Every vehicle propelled solely by human power …, upon which any person may ride, having two tandem wheels, and including any device generally recognized as a bicycle though equipped with two front or two rear wheels.” Footnote 2. Id. at 613.; Florida Statute, 316.003(2) excludes from the definition of bicycle the following: The term (bicycle) does not include such a vehicle with a seat height of no more than 25 inches from the ground when the seat is adjusted to its highest position…

22Heikkinen v. State, 15 FLW Supp. 1140(Fla. Cir. Ct. 6th Jud. Cir. Ct.  2008)(Third DUI in ten years. Even when third DUI is on a bike, person still subject to ten year revocation of license, pursuant to Florida Statute, 322.28. Explaining that a conviction for 316.193 is for a vehicle, a bicycle is a vehicle, and the definition of driver is one who is driving a vehicle. ) Smith v. State, 12 FLW Supp. 279(Fla. Cir. Ct. 6th Jud. Ct. 2005); Florida Statute, 316.003(10)-Definition of DRIVER; Florida Statute, 316.003(75)-Definition of VEHICLE; Florida Statute, 316.003(2)-Definition of BICYCLE. BUT SEE: Otterson v. State, 5 FLW Supp. 428(Fla. Cir. Ct. 15th Jud. Ct. 1998)

23State v. Perez, 14 FLW Supp. 679(Fla. Collier County Court, 2007)(Since a bicycle is not a motor vehicle, just a vehicle, the implied consent law does not apply, and a person’s refusal to take the breath test cannot be used against him.); Florida Statute 322.2615  Suspension of license; right to review

24State v. Slaney, 653 So.2d 422 (Fla. 3rd DCA 1995)(Officer read implied consent for blood test to defendant, when blood test could not be given, blood test results suppressed.); SEE endnote 23.

25State v. Forman, 10 FLW Supp. 47 (Fla. Miami-Dade County Ct. 2002)(Officer told defendant that only if she took breath test was there a procedure for her to obtain a hardship license.); State v. Dennis, 12 FLW Supp. 569 (Fla. Pinellas County Ct. 2005)(Officer told defendant if he refused to take the breath test he would lose his license for one year and suspension could not be contested.); State v. Cox, 9 FLW Supp. 634 (Fla. Monroe County Ct. 2002)(Officer told defendant if he took the breath test he would not lose his license.); State v. Ward, 97-30445-MM(Duval County Court, 1997)(Defendant told by officer if he blew license would be suspended for 6 months, when in fact it was for a year.); State v. Snyder, 96-23777-MM(Duval County Court, 1997)(Defendant told by officer that he would not get 30 day permit if refused.); Florida v. Tatum, 90-7225 TC A02(Palm Beach County Court, 1990)(Defendant was told by officer that he cannot appeal a refusal suspension.); State v. Simmons, 4 FLW Supp.329(Fla. Monroe County Court, 1996)(Officer told defendant he would be unarrested if blew below .08.); State v. Wood, 1 FLW Supp. 245( Fla. Palm Beach County Court 1992)(Standing for proposition that officer stating that refusal would result in automatic suspension is a material misrepresentation of law.); ALSO SEE Endnote 23.

26State v. Mardell, 18 FLW Supp. 543(Fla. Brevard County, 2010)

27Florida statute, 322.34-Driving while license suspended, revoked, cancelled, or disqualified.

28Florida Statute, 322.34(1)

29Florida Statute, 322.01(42)-Definitions-As used in this chapter: “Vehicle”

30Florida Stature, 327.35-Boating under the influence; penalties; “designated drivers.”

30AFlorida Statute, 322.28(2)(a)3 –Period of Suspension or revocation-

30BFlorida Statute, 322.28(2)(e) –Period of Suspension or revocation-

30CFlorida Statutes, 316.193(2)(b)1 and (2)(b)3-Driving Under the Influence

30DFlorida Statute, 893.03(2)(c)5 -Standards and schedules- Methylphenidate (Ritalin).

30EFlorida Statute, 316.003(75)-VEHICLE-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.; A tricycle with a seat of 25 inches or less from the ground at the seat’s highest point does not fit the definition of bicycle but one more than 25 inches would be a bicycle.; ALSO SEE endnote 21.

30FSEE Endnote 30E.; A unicycle does not fit the definition of bicycle because it only has one wheel.; ALSO SEE endnote 21.

31SEE endnotes 21, 22, and 30E.

32State v. Wilson, 13 FLW Supp. 146(Fla. Cir. Ct. 13th Jud. Cir. Court, 2004); Caraballo v. State, 753 So.2d 695(Fla. 4th DCA 2000); State v. Wilson, 775 So.2d 1143(Fla. 2nd DCA 1998); Vera v. State, 666 So.2d 576(Fla. 2nd DCA 1996); State v. Banfield, 614 So.2d 551(Fla. 2nd DCA 1993)

33Florida Statute, 316.2065(8)-Bicycle regulations.

34Florida Statute, 316.217(1)(a)-When lighted lamps are required.

35State v. Carlton, 12 FLW Supp. 63(Fla. Hillsborough County Court, 2004)

36Florida Statute, 316.217(1)(a)-When lighted lamps are required

37Florida Statute, 316.003(2)- Definitions.—The following words and phrases, when used in this chapter, shall have the meanings respectively ascribed to them in this section, except where the context otherwise requires:  BICYCLE; 316.003(75)-VEHICLE

38Florida Statute, 316.003(53) Definitions.—The following words and phrases, when used in this chapter, shall have the meanings respectively ascribed to them in this section, except where the context otherwise requires: STREET OR HIGHWAY.

39Florida Statute, 316.003(47) Definitions.—The following words and phrases, when used in this chapter, shall have the meanings respectively ascribed to them in this section, except where the context otherwise requires SIDEWALK.

40Florida Statute, 316.2065(8)- Every bicycle in use between sunset and sunrise…

40A Catlett v. State, 17 FLW Supp. 1168(Fla. Cir. Ct. 7th Jud. Cir. 2010)(A good discussion of the rules of statutory construction when dealing with conflicting statutes.)

41Florida Statute, 316.2065(10)-Bicycle regulations.

42It should also be noted that almost all traffic infractions issued under Florida statute, 316.2065 are punishable as a pedestrian violation as provided in chapter 318. Which suggests that even a bicycle rider who receives a citation for not having a light at night on a highway would receive a pedestrian violation.

43Florida Statute, 316.2065(3)-Bicycle regulations.

44Florida statute, 316.2065(16)(a)-Bicycle regulations.

45Florida statute, 334.03 (23) Definitions-“Road”

46Florida statute, 334.03 (23) Definitions-“Road”

47State v. Carlton, 12 FLW Supp. 63(Fla. Hillsborough County Court, 2004)

48Florida Statute, 316.2065(8)-Bicycle regulations.

49Florida Statute, 316.217(1)(a)-When lighted lamps are required.

50Florida Statute, 316.217(1)(a)-When lighted lamps are required; Again it should be noted that this statute does use the word “vehicle” meaning that it should also apply to bicycles, but since there is a specific statute for bicycles (316.2065(8)), it is the bicycle statute that bicyclists should most likely follow. SEE endnote 40A.

51Florida Statute, 316.217(b)-When lighted lamps are required.

52Florida Statute, 316.238 (1)-Use of multiple-beam road-lighting equipment.

53Florida Statute, 316.238(1)-Use of multiple-beam road-lighting equipment.

54Florida statute, 316.238(1)(a)-Use of multiple-beam road-lighting equipment.

55Florida statute, 316.238(1)(b)- Use of multiple-beam road-lighting equipment.

56Hendrixson v. State, 18 FLW. Supp. 1090(Fla. Cir. Ct. 5th Jud. Cir. Ct. 2010)(No infraction found for parked vehicle with bright lights on.)

57State v. Shumaker, 846 So.2d 1199(Fla. 2nd DCA 2003); State v. Parnell, 6 FLW Supp. 58(Fla. Cir. Ct. 9th Jud. Cir. Ct. 1998); State v. Clark, 511 So.2d 726(Fla. 1st DCA 1987)

58Florida Statute, 316.003(42)- Definitions.—The following words and phrases, when used in this chapter, shall have the meanings respectively ascribed to them in this section, except where the context otherwise requires: (42) ROADWAY.

59Florida Statute, 316.238(1)-Use of multiple-beam road-lighting equipment. “Whenever a motor vehicle is being operated on a roadway…”

60Florida Statute, 316.003(42)-ROADWAY.

61Florida Statute, 316.090-Driving on divided highways.-

62SEE cases cited in endnote 57

63Staley v. State, 6 FLW Supp. 761(Fla. Cir. Ct., 19th Judicial Circuit, Appeal, 1999)(High beams had nothing to do with the stop in this case but the highway described in the factual scenario was called a divided highway, and the only division was the turn lane. “US Highway #1 at that location was described as five-lane divided roadway (two northbound lanes with an additional turn lane and two southbound lanes.” Id. at 761.)

64Florida Statute, 316.172(2)-Traffic to stop for school bus.

65Sec. 31-21 of the Aventura Code of Ordinances - Definitions. Divided Highway

66State v. Cason, 18 Fla. Weekly Supp. 1090(Fla. 5th Jud. Cir. Ct. 2011)

67Florida Statute, 316.2397(7)-Certain lights prohibited.

68Florida Statute, 316.1935(1)-Fleeing or attempting to elude a law enforcement officer; aggravated fleeing and eluding.

69W.E. P. v. State, 790 So.2d 1166 (Fla. 4th DCA 2001)(“Should a citizen be required to respond with submission any time someone claims to be an officer? It is an all too sad fact that persons have been victimized as a result of their trusting criminals who were impersonating police officers to facilitate crimes.” Id. at 1172.); Miller v. State, 748 So. 2d 327 (Fla. 3rd DCA 1999)(Impersonating police officer to obtain entry into home of elderly person.)

70Florida Statute, 316.1935(1)-Fleeing or attempting to elude a law enforcement officer; aggravated fleeing and eluding.

71Rowley v. State, 939 So.2d 298(Fla. 4th DCA 2006)(Necessity defense in Fleeing and Eluding case. Court held facts did not give rise to necessity defense.); W.E. P. v. State, 790 So.2d 1166 (Fla. 4th DCA 2001)(Necessity defense applied to Leaving the scene of a crash.)

72Florida Statue, 316.1935-Fleeing or attempting to elude a law enforcement officer; aggravated fleeing and eluding.

73Florida Statutes, 316.027-Crash involving death or personal injuries; and 316.061-Crashes involving damage to vehicle or property; State v. Murray, 425 So.2d 661 (Fla. 2nd DCA 1983)(Waiting a day and half to call the police after leaving the scene is too late.)

74Leahy v. State, 770 So.2d 269 (Fla. 4th DCA 2000)(Defendant answering yes, to officers’ question are there any weapons in the car after the purpose of the traffic stop was over, did not create probable cause to search car. Nothing illegal in and of itself of having a firearm in the car.) Whiting v. State, 595 So.2d 1070 (Fla. 2nd DCA 1992)(The possession of a firearm in a vehicle is not, in and of itself, a crime. But in this case, the initial stop based on an uncorroborated anonymous tip was deemed invalid. So admission by driver that a firearm was in car was a fruit of the invalid stop. )(Florida v. J.L., 529 U.S. 266(2000)(The question presented in this case was whether an anonymous tip that a person was carrying a gun was, without more, sufficient to justify a police officer’s stop and frisk of that person. It was held no to be.); Mackey  v. State, 37 FLW D637(Fla. 3rd DCA 2012)(Officer’s observation of person carrying a concealed weapon sufficient to establish reasonable suspicion to stop a person, despite fact that person may have concealed firearm permit.); BUT SEE: Regaldo v. State, 25 So.3d 600(Fla. 4th DCA 2010)(Officer’s observation of person carrying concealed weapon insuffiencient to establish ressonable suspicion to stop because person may have a concealed weapon’s permit.)

75Dorelus v. State, 747 So.2d 368(Fla. 1999)

76Florida Statutes, 790.01. Carrying concealed weapons; 790.001(2)-Definitions: Concealed firearm;  and  790.001(6)-Definitions: Firearm.

77Florida Statute, 790.001(17) –Definitions-Securely encased; Trock v. State, 990 So.2d 1125(Fla. 5th DCA 2008)(Firearms in zippered duffle bags are securely encased.)

78Florida Statutes, 790.001(16)-Definitions-Readily accessible for immediate use; and 790.25(3)(l)- Lawful ownership, possession, and use of firearms and other weapons. and (5)-Possession in private conveyance; Strikertaylor v. State, 997 So.2d 488(Fla. 2nd DCA 2008)(Unloaded firearm underneath front passenger seat not readily accessible for immediate use when ammunition was in locked glove compartment.); State v. Weyant, 990 So.2d 675(Fla. 2nd DCA 2008)(Unloaded Firearm wedged between front seats, and ammunition in closed center console, not readily accessible for immediate use.)

79Florida Statute, 790.06-License to carry concealed weapon or firearm.

80Florida Statute, 790.25(3)(m)- Lawful ownership, possession, and use of firearms and other weapons

81Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997)

82State v. K.S., 28 So. 3d 985(Fla. 2nd DCA 2010); Arizona v. Gant, 129 S. Ct. 1710 (2009).

83Allende v. State, 791 So.2d 589(Fla. 3rd DCA 2001)(Admission of there being a firearm in the vehicle behind the passenger seat allowed the officer to enter vehicle to secure firearm. The holding seems to hinge on the fact that since it was concealed, possession of the firearm was illegal, even though there was no way to determine that at the time the officer entered the vehicle. In dicta the case calls into question reasoning of Leahy, supra on its facts, arguing that Leahy was decided incorrectly, and then goes on to distinguish Leahy, because in Leahy, the stop was over.); State v. Turner, 737 So.2d 1254(Fla. 4th DCA 1999)(Man stopped for traffic infraction, gets out of car leaving driver’s door open. Cop asks if he has ever been arrested. Man says, “yes for aggravated battery with a firearm.” Officer asks if there is a firearm in car. Man says “no,” and then a short time later, when asked again if there are any weapons in car, the man says he is “not sure.” Officer looks into open front door and sees a black case with Smith and Wesson emblem on it. Office enters car and opens case and finds firearm. Court ruled officer justified in believing man was armed and dangerous.); State v. Bernard, 650 So.2d 100(Fla. 2nd DCA 1995)(Where an officer observes a gun bag next to the driver of a vehicle and is, therefore, fairly certain that the driver may have easy access to a weapon, the officer is justified in being concerned for his safety. While our decision does not rest upon the following conclusions, we point out that the evidence seized is admissible on other grounds. Id at 103.); But SEE: Leahy v. State, 770 So.2d 269 (Fla. 4th DCA 2000); Whiting v. State, 595 So.2d 1070 (Fla. 2nd DCA 1992). ALSO SEE: Endnote 84.

84Michigan v. Long, 463 U.S. 1032 (1983)(The United States Supreme Court extended Terry v. Ohio, 392 U.S. 1(1968) to permit protective searches of the passenger compartment of an individual’s vehicle during a lawful investigatory stop provided that the search was reasonable under the principles set forth in Terry, supra. Police officers may conduct a limited search of the passenger compartment of a car “if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the natural inferences from these facts, reasonably warrant” the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” Long, supra, at 1049. Rejecting the argument that removing persons from the car removes the danger to the police.); State v. Dilyerd, 467 So.2d 301(Fla. 1985)(The Florida Supreme Court applied the holding of Long, supra by setting forth two questions: (1) was the stop itself justified and, (2) did the deputy possess a reasonable belief based on specific and articulable facts, along with rational inferences, to justify belief that the occupants of the car were dangerous and might gain control of weapons within the car. Where a justifiable stop places an officer’s safety in question, vehicular searches are not based on probable cause or intent to make an arrest. Id. at 304.); State v. Turner, 737 So.2d 1254(Fla. 4th DCA 1999).

85Pennsylvania v. Mimms, 434 U.S. 106(U.S. 1977)(Officer allowed upon routine traffic stop to ask driver to exit vehicle. Once driver was outside vehicle, officer observed bulge in driver’s jacket. The bulge in the jacket permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer.) Certainly Mimms, supra is distinguishable from firearms found in a car. This case came well before Michigan v. Long, supra, which seemed to set the standard for an officer safety search when it is reasonable to believe that a firearm is in a vehicle. But in practice the Mimms standard seems to be the one applied.  Which is: Once there is a reasonable belief that a firearm is in the vehicle that alone poses a serious and present danger to the safety of the officer allowing the officer to enter the vehicle to secure any firearm. It should be noted that there was also language in Long, which suggested that weapons in a vehicle in and of themselves are “potentially dangerous” to officers. Long at 1035. But Long, seems to stress that the search for weapons is allowed if an officer has an articulable suspicion that the suspect is potentially dangerous. Id. at 1072. But in a circular fashion it is the firearm in the vehicle that makes an occupant “potentially dangerous.”

86See endnote 85.

87New Mexico State v. Ketelson, (New Mexico Supreme Court, 2011)(During routine traffic stop for expired tags, officer saw firearm on back seat floorboard while driver and passenger were outside the vehicle unrestrained. Officer allowed to enter vehicle to secure firearm. Adopting it seems the Mimms standard referred to in endnote 83.); Allende v. State, 791 So.2d 589(Fla. 3rd DCA 2001)

88Sauz v. State, 27 So.2d 226(Fla. 2nd DCA 2010);Fournier v. State, 731 So.2d 75(Fla. 2nd DCA 1999); Wilson v. State, 707 So.2d 893(Fla. 2nd DCA 1998); Steele v. State, 537 So.2d 711(Fla. 5th DCA 1989)

89Florida v. Bostick, 501 U.S. 429 (1991) (We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure. Id. at 437.) Florida v. Royer, 460 U. S. 491 (1983) (He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. Id. at 498.)

90United States v. Alexander, 835 F.2d 1406, 1409 n.3 (11th Cir. 1988) (A refusal to search cannot be used in the finding of probable cause for a vehicle search.); See endnotes 89 and 92.

91Id. at endnote 87. Most of the case law found deals with whether the admissibility of a refusal to give consent to search is admissible against a defendant in trial. SEE: Bravo v. State, 65 So.3d 621(Fla. 1st DCA 2011); Kearney v. State, 846 So.2d 618( Fla. 4th DCA 2003); Gomez v. State, 72 So.2d 952(Fla. 5th DCA 1990); Fratcher v. State, 37 So.3d 365( Fla. 4th DCA 2010); Gomez v. State, 72 So.2d 952 (Fla. 5th DCA 1990)(Finding harmful error when prosecutor commented on Defendant’s refusal to give consent to search when probable cause to search did not exist.); ALSO SEE: Kenneth J. Melilli, The Consequences of Refusing Consent to a Search or Seizure: The Unfortunate Constitutionalization of an Evidentiary Issue, 75 S. Cal. L. Rev. 901 (2002) (Arguing that it is not the Constitutional right to remain silent or the Constitutional right to refuse consent to search that should make commenting on the refusal inadmissible at trial, but rather the rules of evidence should govern its admissibility. The author notes that evidence of refusal to consent is usually inadmissible, not so much because it would punish a person for exercising a constitutional right, but because a person’s refusal to consent doesn’t necessarily mean that a person is guilty, and such evidence is therefore irrelevant.). AND SEE: Dissent by Judge Pearson in Sands v. State, 414 So.2d 611(Fla. 3rd DCA 1982)(“I have a still greater concern about the majority opinion. The majority implicitly concedes that the search was conducted without the defendant’s voluntary consent. They do this quite obviously because the defendant’s “ambiguous” statement did not provide the necessary clear and convincing evidence of consent. But the majority takes that very same statement and uses it as the last straw for probable cause. By this process of converting non-consent into a factor for probable cause, the majority obviates the need for the defendant’s consent to search where probable cause is lacking. If refusal to consent—unequivocal or ambiguous—is, viewed in context, suspicious and can provide probable cause, then an officer who has less than probable cause need only ask for permission to search, and no matter what the answer, proceed to search. Although likely unintended, this is the pernicious outcome of the majority opinion.” Id. at 618)

92United States v. Edmonds, 948 F. Supp. 562 (E.D. Va. 1996), aff’d, 149 F.3d 1171 (4th Cir. 1998)(And while the Supreme Court has ruled that a citizen’s refusal to consent to a search can never furnish the sole basis for a brief detention and investigation, it has not yet addressed the question whether a refusal can be part of the basis for a Terry stop, as the government suggests in this case.); United States v. Wilson, 953 F.2d 116 (4th Cir.1991) (Holding that defendant’s refusal to consent to a police search cannot be a factor in creating the needed reasonable suspicion to detain); Rachel Karen Laser, Unreasonable Suspicion: Relying on Refusals to Support Terry Stops, 62 U. CHI. L. REV. 1161 (1995).

93SEE endnote 92.

94BUT SEE; State v. Bowles, 18 P.3d 250, 254 (Kan. Ct. App. 2001)(Holding it was not error to consider the defendant’s refusal to let a police officer come into his home as one of several factors supporting the conclusion that there existed probable cause to search the defendant’s residence.)

95E.B. v. State, 866 So.2d 200 (Fla. 2nd DCA 2004)(During consensual encounter pedestrian gave consent to pat-down for weapons, and then withdrew consent once officer started to feel tube in his pocket. Held to have withdrawn consent to search pocket to get tube.); Jimenez v. State, 643 So.2d 70 (Fla. 2nd DCA 1994); (Defendant initially consented to patdown search, but grabbed deputy’s hand in apparent attempt to stop search of cigarette packs found in his pocket. Held to have withdrawn any consent to search cigarette packet); Jackson v. State, 730 So.2d 364(Fla. 4th DCA 1999)(Passenger on Greyhound allows search of duffle bag, except for shorts in duffle bag. Officers find contraband in shorts. Passenger ruled to have withdrawn consent.); Parker v. State, 693 So.2d 92(Fla. 2nd DCA 1997); (Pedestrian in response to officers asking if she would shake her shirt and bra to prove no drugs were in there consented to doing so, but when a tissue fell to the ground, she put her foot on it and stomped on it. Pedestrian ruled to have consented to “shakedown,” but not search of tissue, where drugs were found.)

96Vera v. State, 666 So.2d 576(Fla. 2nd DCA 1996)(After stopping bike rider for having no light on bike and verbally warning rider to get one, officer asked bike rider if he had any guns on him. Bike rider lied and answered, “no.”  But when rider said, “no” he placed his hand on his back pocket and looked down not looking at the officer. Officer walked around rider and saw bulge in back pocket that appeared to be a weapon. Officer felt bulge, and knew it was a firearm and then took firearm out of rider’s pocket, and charged rider with carrying a concealed firearm. Order suppressing evidence reversed.)

97Florida Statute, 817.49-False report of commissions of crimes; penalty

98Florida Chapter, 837-Perjury

99Florida Statute, 843.02-Resisting an officer without violence to his or her person.

100Title 18, United States Code, Section 1001

101Florida Statute, 901.36-Prohibition against giving false name or false identification by person arrested or lawfully detained; penalties; court orders; State v. Townsend, 585 So.2d 495(Fla. 5th DCA 1991)(Gave false information during valid traffic infraction investigation.); Olsen v. State, 691 So.2d 17 (Fla. 3rd DCA 1997); Rumph v. State, 544 So.2d 1150(Fla. 5th DCA 1989); Caines v. State, 500 So.2d 728(Fla. 2nd DCA 1987)

102Article I section 9 of the Florida Constitution

103Remember Oliver North at Iran-Contra hearings.

104Florida v. Royer, 460 U. S. 491 (1983) (He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. Id. at 498.)

105State v. Petion, 992 So.2d 889(Fla. 2nd DCA 2008)(Consent to search presumed by defendant’s failure to object to search.); BUT SEE: Wynn v. State, 14 So.3d 1094(Fla. 2nd DCA 2009)(Defendant’s silence when Officer asked if Defendant minded if officer took items out of Defendant’s pocket could not be considered unequivocal consent to search, and search by officer into pockets was suppressed.)

106Jenkins v. Anderson, 447 U.S. 231, 235 (1980); Fletcher v. Weir, 455 U.S. 603(1982)

107Hoggins v. State, 718 So.2d 761(Fla. 1998)

108Id. at endnote 107. Basically, Florida’s constitution defines post-arrest-pre Miranda silence as including time-of-arrest-pre-Miranda silence.  So whenever the word post-arrest silence is used in Florida case law it means both of the aforementioned terms.

109Caldwell v. State, 41 So.3d 188(Fla. 2010)(Reading a person their Miranda rights did not turn a consensual encounter into a fourth amendment detention. The defendant was however allowed to remain silent without that silence being used against the defendant.)

110Florida Rule of evidence, 90.803(18)(b); Twilegar v. State, 42 So.3d 177(Fla. 2010); Privett v. State, 417 So.2d 805(Fla. 5th DCA 1982)

111Rao v. State, 52 So.3d 40(Fla. 4th DCA 2010)(Post-arrest silence can never be used as an adoptive admission even if no police action was utilized.); Cowan v. State, 3 So.3d 446(Fla. 4th DCA 2009)

112Smith v. State, 573 So.2d 306(Fla.1990)(“The prosecution is not permitted to comment upon a defendant’s failure to offer an exculpatory statement prior to trial, since this would amount to a comment upon the defendant’s right to remain silent.” Id. at 317.); BUT SEE: Badillo v. State, 822 So.2d 526(Fla. 4th DCA 2010)(Permissible to comment that in two pre-arrest interviews that Badillo never claimed self-defense until trial. But in this case it seems that Badillo did not remain silent but submitted to the interviews.)

113Burgess v. State, 644 So.2d 589(Fla. 4th DCA 1994)(Suggesting that not only is it a comment on the right to remain silent, but it is also irrelevant.)

114Munroe v. State, 983 So.2d 637(Fla. 4th DCA 2008)(Exculpatory statements brought up for first time at trial.); Murphy v. State, 511 So.2d 297(Fla. 4th DCA 1987)(Lack of knowledge of controlled substance brought up for first time at trial); Napoles v. State, 6 FLW Supp. 251(Fla. Cir. Ct. 11th Jud. Cir. 1999)(DUI defendant did not bring up defense of not driving until trial.)

115M.M. v. State, 51 So.3d 614(Fla. 1st DCA 2011)

116Rinaldo v. State, 787 So.2d 208(Fla. 4th DCA 2001); K.A.C. v. State, 707 So.2d 1175(Fla. 3rd DCA 1998); BUT SEE: Charton v. State, 716 So.2d 803(Fla. 4th DCA 1998); Chambers v. State, 700 So.2d 68(Fla. 5th DCA 1997); J.R. v. State, 627 So.2d 126 (Fla. 5th DCA 1993); Robinson v. State, 550 So.2d 1186(Fla. 5th DCA 1989); Burgess v. State, 313 So.2d 479(Fla. 2nd DCA 1975)

117Burkes v. State, 719 So.2d 29(Fla. 2nd DCA 1998); BUT SEE: Thompson v. State, 634 So.2d 169(Fla. 1st DCA 1994); St. George v. State, 564 So.2d 152(Fla. 5th DCA 1990)

118SEE endnotes 116 and 117

119Morris v. State, 988 So.2d 120(Fla. 5th DCA 2008); Concha v. State, 972 So.2d 996(Fla. 4th DCA 2008); Smith v. State, 681 So.2d 894(Fla. 4th DCA 1996)

120Hayward v. State, 59 So.3d 303(Fla. 2nd DCA 2011); Morris v. State, 988 So.2d 120(Fla. 5th DCA 2008); State v. Burns, 661 So.2d 842(Fla. 5th DCA 1995)

121State v. Foley, 18 FLW Supp. 616(Fla. Clay County Court, 2011); State v. Curley, 11 FLW Supp. 423(Fla. Cir. Ct. 17th Jud. Cir. 2004); State v. Sonsini, 7 FLW Supp. 644(Fla. Cir. Ct. 17th Jud. Cir. 2000); State v. Guccione, 2 FLW Supp.104(Fla. Cir. Ct. 18th Jud. Cir. 1993)(“Thus, a refusal to submit to field sobriety tests should be suppressed if (1) the defendant was not told that his refusal to submit to the test would carry any adverse consequences; (2) the defendant was not told anything about the nature of the test and (3) the defendant was not told the test was compulsory.” Id. at 104.)

122State v. Taylor, 648 So.2d 701(Fla. 1995); State v. Gschwendther, 14 FLW supp. 334(Fla. Broward County Court, 2005); State v. Whelan, 728 So.2d 807 (Fla. 3rd DCA 1999)( An officer need not inform a DUI suspect of his right to refuse to perform field sobriety exercises.)

123Florida Statute, 316.1932(1)(a)1.a Tests For Alcohol, Chemical Substances, Or Controlled Substances; Implied Consent; Refusal; State v. Karosas, 7 Fla. L. Weekly Supp. 482(Fla. Palm Beach County Court, 2000); Grzelka v. State, 881 So.2d 633(Fla. 5th DCA 2004); Menna v. State, 846 So.2d 502 (Fla. 2003); Herring v. State, 501 So.2d 19 (Fla. 3d DCA 1986); State v. Pagach, 442 So.2d 331
(Fla. 2nd DCA 1983); State v. Holland, 459 So.2d 1062
(Fla. 2nd DCA 1984); State v. Richman, 17 FLW Supp.1265(Fla. Brevard County Court, 2010);; State v. Young, 483 So.2d 31(Fla. 5th DCA 1985); Pardo v. State, 429 So.2d 1313(Fla. 5th DCA 1983); BUT SEE Kurecka v. State, 67 So.3d 1052(Fla. 4th DCA 2010)(“Similarly, Florida’s implied consent statute does not require police officers to advise persons arrested for DUI that the right to counsel does not attach to their decision to submit to the breath test. The statute requires only that the person be told that his failure to submit to the test will result in a suspension of the privilege to drive for a period of time and that a refusal to submit can be admitted at trial.Id. at 1060.); State v. Shuler, 14 FLW Supp. 981(Fla. Monroe County Court, 2007)

124Florida Statute, 316.1932(1)(a)1.a Tests For Alcohol, Chemical Substances, Or Controlled Substances; Implied Consent; Refusal; State v. Karosas, 7 Fla. L. Weekly Supp. 482(Fla. Palm Beach County Court, 2000); State v. Marchand, 11 FLW Supp. 1054(Fla. Cir. Ct. 20th Jud. Cir. 2004)(Only cited for part of holding that states implied consent not read incident to arrest does not matter since implied consent does not have to be read at all.); State v. Pagach, 442 So.2d 331
(Fla. 2nd DCA 1983); State v. Holland, 459 So.2d 1062
(Fla. 2nd DCA 1984); State v. Young, 483 So.2d 31(Fla. 5th DCA 1985)(Not being read implied consent does not bar breath test results from being introduced at trial, it only results in a person perhaps not having their license administratively suspended.); Pardo v. State, 429 So.2d 1313(Fla. 5th DCA 1983)(Not being read implied consent does not bar breath test results from being introduced at trial, it only results in a person perhaps not having their license administratively suspended.); BUT SEE Kurecka v. State, 67 So.3d 1052(Fla. 4th DCA 2010)(“Similarly, Florida’s implied consent statute…requires only that the person be told that his failure to submit to the test will result in a suspension of the privilege to drive for a period of time and that a refusal to submit can be admitted at trial.Id. at 1060. ); Grzelka v. State, 881 So.2d 633(Fla. 5th DCA 2004)(Holding that at least some kind of adverse consequence has to be made known.); Menna v. State, 846 So.2d 502 (Fla. 2003); Herring v. State, 501 So.2d 19 (Fla. 3d DCA 1986); State v. Richman, 17 FLW Supp.1265(Fla. Brevard County Court, 2010); State v. McCoy, 16 FLW Supp. 450(Fla. Hillsborough County Court, 2009); State v. Shuler, 14 FLW Supp. 981(Fla. Monroe County Court, 2007).

125State v. Karosas, 7 Fla. L. Weekly Supp. 482(Fla. Palm Beach County Court, 2000)

126DHSMV v. Hernandez, 36 Fla. L. Weekly S243(Fla. 2011);State v. Woodward, 7 FLW Supp. 715(Fla. Cir. Ct. 11th Cir. Ct. 2000); State v. Gowins, 19 FLW Supp. 48(Fla. Brevard County Court, 2011)(Holding that it must be incident to a DUI arrest as opposed to incident to an arrest for “any offense” while a person is also DUI, as the statute seems to suggest.); Florida Statute, 316.1932(1)(a)1.a Tests For Alcohol, Chemical Substances, Or Controlled Substances; Implied Consent; Refusal.

127Kurecka v. State, 67 So.3d 1052(Fla. 4th DCA 2010)

128Morris v. State, 988 So.2d 120(Fla. 5th DCA 2008); Concha v. State, 972 So.2d 996(Fla. 4th DCA 2008); Smith v. State, 681 So.2d 894(Fla. 4th DCA 1996)

129SEE endnote 128; State v. Bloomquist, 14 FLW Supp. 104(Fla. Brevard County Court, 2006)

130State v. Echternach, 18 FLW Supp. 555(Fla. Hillsborough County Court, 2011); State v. Blanchette, 13 FLW Supp. 169 (Cir. Ct. 12th Jud. Cir. 2005), State v. Lynn, 11 FLW Supp. 798 (Cir. Ct. 17th Jud. Cir. 2004), State v. Higgins, 12 FLW Supp. 242 (Cir. Ct. 11th Jud. Cir. 2004), State v. Gonzalez, 12 FLW Supp. 482 (Cir. Ct. 11th Jud. Cir. 2004), State v. McKenzie, 14 FLW Supp. 472 (Cir. Ct. 4th Jud. Cir. 2007), State v. Harper, 15 FLW Supp. 232 (Cir. Ct. 17th Jud. Cir.  2008), State v. Peruyera, 12 FLW Supp. 968 (Cir. Ct. 11th Jud. Cir 2005)

131State v. Ruoff, 17 FLW Supp. 619(Fla. Cir. Ct. 17th Jud. Cir. 2010); State v. Londono, 17 FLW Supp. 428(Fla. Cir. Cr. 17th Jud. Cir. 2010); State v. Lowary, 16 FLW Supp. 828(Fla. Cir. Ct. 17th Jud. Cir. 2009); State v. Nagy, 17 FLW Supp. 145(Fla. Brevard County Court, 2009); State v. Edwards, 15 FLW Supp. 636(Fla. Brevard County Court, 2008); State v. Giancaspro, 15 FLW Supp. 500(Fla. Brevard County Court, 2008)State v. Love, 14 FLW Supp. 1168(Fla. Brevard County Court, 2007); State v. Muse, 14 FLW Supp. 890 (Cir. Ct. 7th Jud. Cir. 2007)

132State v. Mattox, 14 Fla. L. Weekly Supp. 567(Leon County Ct. 2007)(Field sobriety exercises suppressed where officer told person that the exercises could only help him, and they were for his benefit.) State v. Zalis, 12 Fla. L. Weekly Supp. 884 (Palm Beach County Court, 2005)(Evidence suppressed when officer improperly told the defendant she would lose her license if she refused the field sobriety exercises.); State v. Shapiro, 7 FLW Supp. 149(Fla. Broward County Court, 1999)(Suppression of Field sobriety exercises granted where Officer promised to unarrest defendant if he performed well on the Field sobriety exercises.); State v. Tuinen, 7 FLW Supp. 221(Fla. Broward County Court, 1999)(Field sobriety exercises suppressed where officer promised to release person if he passed exercises.); State v. Johnson, 6 FLW Supp. 236(Fla. Seminole County Court, 1998)(Field sobriety Exercises suppressed where Officer told defendant that if he passed Field sobriety exercises DUI would not exist, and he would be released immediately)

133Carver v. State, 17 Fla. L. Weekly Supp. 7(Fla. Cir. Ct. 7th Jud. Cir. 2009); Ascherman v. State, 18 FLW Supp. 253(Fla. Cir. Ct. 7th Jud. Cir. 2010); State v. Carella, 15 FLW Supp. 371(Fla. Volusia County Court, 2008)(Reckless driving); Robinson v. State, 152 So. 717 (Fla. 1934)

134Wescott v. State, 72 So.3d 304(Fla. 1st DCA 2011)(Describing what a fatal variance is.)

135Jacob v. State, 651 So.2d 147(Fla. 2nd DCA 1995)(Variance in victim’s name between information and evidence at trial was fundamental error.); Rose v. State, 507 So.2d 630(Fla. 5th DCA 1987)(Held that trial court’s decision to permit State to amend information at conclusion of trial so that information would allege attempted armed robbery by husband, which was proven at trial, rather than attempted armed robbery by wife, which was not proven at trial, violated due process.)

136Budd v. State, 477 So.2d 52(Fla. 2nd DCA 1985)(“Defendant contends that the trial court erred in allowing the state to amend the information at the conclusion of the state’s case to allege defendant’s age. However, there was no error because defendant has not shown how he was prejudiced by the amendment.” Id at 52.)

137Brown v. State, 561 So.2d 1309(Fla. 3rd DCA 1990)(Held that proof adduced at trial failed to meet allegations of information as to ownership or superior possession of burglarized structure); A.L. v. State, 359 So.2d 583(Fla. 3rd DCA 1978)(Held that State failed to prove delinquency charge based on burglary of athletics’ room and larceny of athletic clothing where it failed to establish essential element of ownership of alleged burglarized structure and alleged stolen property.); O’Bryan v. State, 359 So.2d 545(Fla. 4th DCA 1978)(Held that State failed to prove ownership of burglarized property.)

138Stang v. State, 421 So.2d 147(Fla. 1982)(The state may amend a state bill of particulars even after jeopardy attaches in order to correct a discrepancy as to date of offense as long as defendant is not prejudiced.)

139Knight v. State, 819 So.2d 883(Fla. 4th DCA 2002)(“With respect to the count for battery on a law enforcement officer, which also named two officer victims, appellant failed to move to dismiss the information based upon that defect and therefore waived the defect.” Id. at 884); Fountain v. State, 623 So.2d 572(Fla. 1st DCA 1993); (Information charging kidnapping of “Joyce Lewis or James Henderson” was flawed, but error was waived by failing to move to dismiss information.)

140Toussaint v. State, 755 So.2d 170 (Fla. 4th DCA 2000); Rivera v. State, 745 So.2d 34 (Fla. 4th DCA 1999); Stuart v. State, 748 So.2d 318 (Fla. 4th DCA 1999)(Held that allowing the state to amend the information at the end of its case to reflect that the victim was the nursing home security manager or the employer, rather than the patient, prejudiced the defendant.); Hutchinson v. State, 738 So.2d 473(Fla. 4th DCA 1999)(Held that state would not be permitted, following defendant’s motion for JOA, to amend its information to name different police officer in resisting arrest without violence charge.); Green v. State, 728 So.2d 779(Fla. 4th DCA 1999)(Held that allowing the State to amend information mid-trial to charge defendant with a separate offense of battery upon law enforcement officer, one that the state had elected pretrial not to bring, under guise of amendment to existing charge, violated defendant’s due process rights.); Sanders v. State, 669 So.2d 356(Fla. 5th DCA 1996)(Held that defendant’s substantial rights were not prejudiced by state’s amendment of information at end of its case-in-chief.); Budd v. State, 477 So.2d 52(Fla. 2nd DCA 1985)(“Defendant contends that the trial court erred in allowing the state to amend the information at the conclusion of the state’s case to allege defendant’s age. However, there was no error because defendant has not shown how he was prejudiced by the amendment.” Id at 52.); Stang v. State, 421 So.2d 147(Fla. 1982)(The state may amend a state bill of particulars even after jeopardy attaches in order to correct a discrepancy as to date of offense as long as defendant is not prejudiced.)

141Florida Statute, 320.02(4)- Registration required; application for registration; forms; Florida Statute, 320.57(1)-Penalties for violations of this chapter.

142Florida Statute, 322.19-Change of address or name; Florida Statute, 322.39(1)-Penalties.

143Morton v. State, 496 So.2d 999(Fla. 5th DCA 1986)(Straw held to be paraphernalia.)

144Florida Statute, 893.145-Drug Paraphernalia defined.

145Florida Statute, 893.147-Use, possession, manufacture, delivery, transportation, or advertisement of drug paraphernalia

146Florida Statute, 893.13(6)(a)  Prohibited acts; penalties.—; McCoy v. State, 56 So.3d 37(Fla. 1st DCA 2010)

147SEE endnotes 144-146.

148Florida Statute, 934.059(1)(b)1-Court-ordered sealing of criminal history records

149See Endnote 148; Mathews v. State, 760 So.2d 1148(Fla. 5th DCA 2000)

150Florida Statute, 934.059(1)(b)2-Court-ordered sealing of criminal history records; Oymayan v. State, 765 So.2d 812(Fla. 1st DCA 2000)(One arrest for multiple related charges over a three-day period could all be expunged.); BUT SEE State v. Dinkins, 794 So.2d 736(Fla. 1st DCA 2001)(Charges must stem from a single criminal episode, be temporally related or have a nexus between them which was not met in this case.)

151Florida Statute, 934.059(1)(b)3-Court-ordered sealing of criminal history records; Bernstein v. State, 7 FLW Supp. 665(Fla. Cir. Ct. 17th Jud. Cir. 2000)(Cannot seal a domestic battery charge.); Shock v. State, 750  So.2d 769(Fla. 5th DCA 2000(Cannot seal a charge of attempted trafficking in drugs.)

152Florida Statute, 943.0585(2)(a)2-Court-ordered expunction of criminal history records

153Florida Statute, 943.058(2)(h)-Court-ordered expunction of criminal history records

154Baker v. State, 53 So.3d 1147(Fla. 1st DCA 2011)(Abuse of discretion to deny motion to expunge charge.); VFD v. State, 19 So.3d 1172(Fla. 1st DCA 2009)(Abuse of discretion to deny motion to expunge charge.); Kanji v. State, 4 So.3d 65(Fla. 5th DCA 2009);(Abuse of discretion to deny motion to expunge charge.); S.L.P. v. State, 949 So.2d 1150(Fla. 3rd DCA 2007)(Abuse of discretion not to seal record.).

155Florida rule of criminal procedure, 3.850(b)-Motion to vacate, set aside or correct sentence-Time limitations

156Florida rule of criminal procedure, 3.850(b)(1)-(3)-Time limitations

157Florida rule of criminal procedure, 3.850(b)(1)-Time limitations

158Florida rule of criminal procedure, 3.850(b)(2)-Time limitations

159Id. at endnote 151

160State v. Green, 944 So.2d 208(Fla. 2006); Baxter v. State, 73 So.3d 333(Fla. 5th DCA 2011) (Refusing to apply Padilla v. Kentucky, 103 S.Ct. 1473(2010) retroactively.)

161I have not taken any surveys or done a statistical analysis, but from my readings of the Florida Law Weekly, I would say this reason tops them all.

162Grosvenor v. State, 874 So. 2d 1176 (Fla. 2004)

163Hall v. State,  51 So.3d 1283(Fla. 4th DCA 2011)(3.850 motion based on counsel’s misrepresentation that charge could be sealed, when in fact it could not be sealed. Remanded for a hearing. Distinguishing this case from State v. Dickey, 928 So.2d 1193(2006) where Supreme Court of Florida held that 3.850 can never be granted for misadvice regarding sentence enhancement for a future crime.); Lang v. State, 15 FLW Supp. 688(Fla. Cir. Ct. 6th Jud. Cir. 2008)(Motion to withdraw plea based on misadvice regarding expungement of case denied, but this case was decided after Philips, infra, and before Hall, supra.); Philips v. State, 960 So.2d 29(Fla. 4th DCA 2007)(Counsel misadvised client that guilty pleas would never be used against client and would even be expunged after completion of probation. Defendant filed 3.850 motion after a Federal court enhanced his sentence because of the prior state convictions. Court follows State v. Dickey, supra and focuses on misadvice regarding sentence enhancement for a future crime, and finds no relief for Defendant.); State v. Wiita, 744 So.2d 1232(Fla. 4th DCA 1999)(Plea allowed to be withdrawn six years after sentence because a new law making the sex offense public was contrary to his lawyer’s representation that the case could be sealed and hidden from the public.); Ali v. State, 1 FLW Supp. 325(Fla. Cir. Ct. 11th Jud. 1992)(Defendant allowed to withdraw plea since Court promised case would be sealed and it wasn’t.)

164Florida rule of criminal procedure, 3.170(f)-Pleas. Withdrawal of Plea of Guilty or No Contest; Ketterer v. State, 69 So.3d(Fla. 4th DCA 2011)(Good cause shown to withdraw plea where defendant was misadvised by his attorney that his attorney could argue for a downward departure during a PRR sentencing.); Morris v. State, 909 So.2d 428(Fla. 5th DCA 2005)( Defendant must be able to prove that if not for the misadvice of counsel the Defendant would not have pled guilty, but would have instead insisted on a trial.)

165Id. at endnote 157

166Florida rule of criminal procedure, 3.170(l)-Pleas. Motion to withdraw the plea after sentencing. (If motion to withdraw plea is not filed within thirty (30) day of sentencing then Defendant waives right to directly appeal involuntariness of plea.); SEE endnote 167; Alfred v. State, 998 So.2d 1197(Fla. 4th DCA 2009)(Suggesting that motion is legally insufficient if it is not argued that if not for the misadvice of counsel the Defendant would not have pled guilty, but would have instead insisted on a trial.)

167Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(c)(If motion to withdraw plea is not filed within thirty (30) day of sentencing then Defendant waives right to directly appeal involuntariness of plea.)

168Hall v. State, 72 So.3d 290(Fla. 4th DCA 2011)

169Florida rule of criminal procedure, 3.172(g)-Acceptance of guilty or nolo contendere plea-Withdrawal of plea offer or negotiation.

170Id. at endnote 162.

171Cox v. State, 35 So.3d 47(Fla. 1st DCA 2010)(If Judge never says that plea is “accepted,” plea can be unilaterally withdrawn even after sentencing. The question is, is the time period to withdraw the plea indefinite? Can it be withdrawn at anytime prior to the person finishing their sentence? Or can be withdrawn even after that? The 1st DCA certified question to Florida Supreme Court regarding this issue.); Campbell v. State, 36 FLW D2367(Fla. 2nd DCA 2011)(Citing conflict with Cox, supra, stating that failure of Judge to accept plea only allows Defendant to unilaterally withdraw plea prior to sentencing. As of time of this writing Campbell has not yet been released for publication in permanent law reports. )

172Chagoya v. State, 817 So.2d 1039(Fla. 2nd DCA 2002(1993)( Plea set aside for failure of court to advise of deportation consequences. Case controlled by Peart v. State, 756 So. 2d 42(Fla. 2000). A case decided before State v. Green, 944 So. 2d 208 (Fla. 2006); Cox, supra at endnote 171.

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