CLIENT FACING 30 YEARS PRISON FOR DUI GETS TRAFFIC TICKET INSTEAD
In State v. C.G. 2207MM400, the Defendant was charged with DUI while riding his motorcycle home in the early morning hours of January 28, 2007. The defendant hired Kirschner & Garland, P.A., to represent him.
Although the client had one previous DUI conviction occurring over twenty (20) years earlier, the previous conviction was the least of his problems. Of critical importance was the fact that C.G. currently was serving a probationary sentence, from another Florida County, for Cocaine Trafficking. Because DUI is a “criminal” offense, if convicted of the DUI, his probation could be “revoked”, and the client could then be sentenced up to a maximum of thirty (30) years in prison. To avoid that result, the DUI had to be won.
Attorney Jay Kirschner noted there was no videotape taken at the scene of the traffic stop that would controvert the arresting officer’s claim that the Defendant appeared intoxicated. The arresting officer insisted that the Defendant’s behaviors when transported to the jail clearly indicated that the defendant was drunk, claiming Defendant “stumbled” while leaving the “holding cell”, that he used the jail hallway walls to help maintain his balance while walking, and that he had difficulty taking off his boots when requested to do so.
Kirschner forwarded a demand to the Sheriff’s department under Florida’s Public Records Law, requesting the Corrections Division to provide copies of all “surveillance” videos taken of the Defendant, while he was at the jail, on the night of his arrest. Although those tapes are routinely destroyed after thirty (30) days, the quick response by the law firm resulted in the Sheriff’s Office retaining the videotapes, and they ultimately provided the digital imagery to the Defense.
The surveillance video directly and clearly demonstrated that the arresting officer’s description of C.G.’s behavior while at the jail was gratuitous and a figment of the deputy’s imagination.
After providing a copy of the surveillance video to the prosecutor, and announcing that the Defense was “ready for trial”, the Government offered to allow the Defendant to plead to the lesser (though still ‘criminal’) charge of “Reckless Driving”. Knowing that such a plea could lead to a thirty (30) year “probation violation”----- the Defendant and his lawyer refused the offer, and again announced “Ready for Trial”.
The government, facing the reality of exposing the officer’s embellishments and prevarications, elected to dismiss the DUI charge, and the Defendant entered a nolo contendere plea to the “civil infraction” (CI) of Aggressive Careless Driving. (A “CI” is a “traffic ticket”, and cannot be used to violate a person’s probationary terms.) The Court fined C.G. $500.00.
On May 4, 2007, the Government was forced to dismiss the Probation Violation of Case, and CG’s probation was reinstated.
