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DUI Case Victories

Broward County

 Date of Win:  10/04/18

 Case No.:  17022525MU10A

 FACTS:

 The Defendant was found asleep at the wheel on September 15, 2017 at a intersection and the vehicle was running and in drive.  In fear that the vehicle could move forward two police officers blocked the front and back of the car with their police cars.  The Defendant was observed to have eyelid tremors and suspected cannabis on his bottom lip.  Once the vehicle was placed in parked and the door opened the officer could smell the strong odor of an alcoholic beverage coming from inside the vehicle.  Also observed were bloodshot watery eyes, slurred speech and disarranged clothing.  The Defendant when asked said he had some vodkas, some beers and that he smoked some cannabis.  The Defendant was then asked to exit and to perform field sobriety exercises and after a poor performance the Defendant was arrested for D.U.I.  A search of the Defendant’s vehicle after arrest resulted in the finding of a cannabis pipe with burnt cannabis residue but the Defendant was never charged with possession of marijuana.  The search also revealed a 16 oz. beer can with drops of liquid inside.  The Defendant was taken to the station and placed on video and agreed to submit to a breath test.  The results were .063 and .058 below the legal limit of .080. The Defendant was then asked to submit to a urine test and he agreed.  The results being a metabolite of marijuana was found in his system.

DEFENSE:

Attorney Roger S. Elkind was referred by another attorney and took over the case.  Several Motions were filed including a Motion to  Suppress for an Illegal Stop, Motion to Suppress the Defendant’s Statements, a Motion to Exclude the Empty Beer Can, a Motion for Severance to Separate the Marijuana Pipe Paraphernalia Charge, and a Motion to Exclude Urine Test Results as a marijuana metabolite does not show when a person smoked marijuana and this trace amount (all experts agree) can stay in one’s system for up to 30 days.  Therefore it cannot be said how it would affect one’s ability to drive a vehicle at the time he was stopped.  The fact that the Defendant performed very well on video when he performed the physical sobriety exercises again for a second time, that he was cooperative, that his breath test results of .063 and .058 which is below the legal limit in the State of Florida of .08, that his urine came back positive for only a metabolite of marijuana and that he was mistakenly never charged with possession of marijuana resulted in the State Attorney dropping the D.U.I. charges and reducing the charges to reckless driving on October 4, 2018.

Dade County

Date of Win 4/27/18

Case No: 9966XEX

Facts:

The Defendant was driving home at around 5:00am from South Beach going North on Pine Tree Drive. As he approached a curve in the road there was a tow truck facing the opposite direction in the median area which had just picked up a car from a prior accident. The Defendant’s vehicle side swiped the tow truck and the Police Officers who were already on the scene, investigating the prior accident stopped the Defendant. The Defendant was driving a 1971 red classic Pontiac convertible. The first officer stated that the Defendant had an order of an alcoholic beverage coming from him and his vehicle. The Defendant’s movements were slow, and his eyelids were drooping. A second Officer was called to investigate the DUI and he observed the bloodshot eyes and that the Defendant nearly stumbled over walking away from his vehicle. Several of the officers had body worn cameras and this was captured on video. The Defendant was asked to perform field sobriety exercises and stated he wanted to speak to an attorney first. The officer then asked several more times if the Defendant would submit to physical exercises and the breath test and each time the Defendant refused and said he wanted to talk to an attorney first. The Defendant also refused to answer questions about drinking and driving both before and after Miranda was read. The Defendant was arrested and continued to refuse testing at the station. Inside the defendant’s vehicle in the center console was found an open bottle of beer half full and cold to the touch. In the trunk of the vehicle was found several bottles of liquor which were in a special cooler for sale to bars and Restaurants.

Defense:

 Attorney Roger S. Elkind was hired to defend and filed several motions including a motion to exclude the H.G.N, a motion to compel missing documents, a motion to exclude the open container found in the center console and a motion to suppress for an illegal stop without sufficient probable cause. A review of the body worn camera video showed that the Defendant cooperated with the Police and did not have slurred speech and was not unsteady on his feet as he approached the front of his vehicle. Clearly the Defendant was tired, and it was determined that his job was as a liquor distributor which explains the liquor bottles in his trunk. The Police had left out several important facts in in their reports and contradicted themselves as to the location of the tow truck creating reasonable doubt. The State would not drop the charges and therefore this case went to a Jury Trial for 3 days. Based on all the above, the fact that the Defendant refused everything, and the body worn camera video, the jury returned a verdict of Not Guilty on April 27th, 2018.

Broward County

Date of Win 4/10/18

Case No: 16020091MU10A

Facts:

The Defendant was found asleep behind the wheel of his car with the windows up and engine running in the drive-thru lane of a fast food restaurant. At around 11:30pm an employee from the restaurant called the police and an officer from the Miramar Police Department showed up to investigate and discovered the Defendant asleep behind the wheel. The Officer banged on the window several times and the Defendant woke up and looked at the Officer. The Defendant attempted to put the car in drive and leave the scene, but the officer motioned him to stop and roll down his window. The officer noticed a strong odor of alcoholic beverage coming from the Defendant’s breath, slurred speech, and his eyes were extremely blood shot. The Defendant admitted to having come from a night club and that he drank 2 beers. The officer asked the Defendant to exit the vehicle and to perform the field sobriety exercises. The Defendant was then arrested. The Defendant refused to take a breath test. The video tape of the Defendant at the station showed him to be in perfect condition. The Defendant stood straight and when asked to perform the field sobriety exercises again on video he did extremely well. The Defendant was read his Miranda Rights and refused to answer any additional questions.

 Defense:

 Attorney Roger S. Elkind was hired to defend and filed several motions including a motion to exclude the H.G.N, a motion to suppress the Defendant’s confections, admissions and statements, a motion to exclude roadside exercises, a motion to suppress for an illegal arrest based on an anonymous tip and for lack of reasonable suspicion for the stop. It was argued that the Defendant committed no traffic violation, was parked legally in a public parking lot, was not blocking any cars or stopping other motorists from entering the drive-thru and was not physically ill or sick. Therefore, the officer had no basis to stop the Defendant from leaving or to conduct a DUI investigation as the initial detention resulted in an illegal seizure of his person under the Fourth Amendment to the U.S Constitution. In addition, the employee of the restaurant was never identified and therefore became an anonymous tip requiring the officer to observe criminal activity before the Defendant can be stopped. These motions were argued in front of the court and as a result the state realized it would be difficult to win a trail and dropped the charges of DUI to Reckless Driving on April 10th, 2018.

Dade County

Date of Win 10/2/17

Case No: A2FJG9P

Facts:

An officer from the Doral Police Department was conducting a speed measurement traffic enforcement. The Defendant’s vehicle was stopped for going 50mph in a 35mph zone. The vehicle was also following another vehicle too closely and was changing lanes without signaling violating the right of way causing another vehicle traveling in the same direction to brake to avoid a collision. Upon contacting the driver, the officer noticed that his speech was slow and slurred, and that his eyes were extremely red, glassy, and bloodshot. The Defendant also had a strong order of an alcoholic beverage coming from his breath. The Defendant said he drank beer one hour prior to the stop. The Defendant was asked to perform the field sobriety exercised, and upon exiting the vehicle he was unsteady on his feet. After preforming the field sobriety exercise, the Defendant was arrested for DUI. An inventory search was done of the Defendant’s vehicle and the police discovered 4 empty glass bottles and 2 empty cans of beer. Upon arriving at the station, the Defendant refused a breath test and was read his implied consent warnings. The officer ten read the Defendant his Miranda Rights and invoked his right to remain silent.

Defense:

The Attorney Roger S. Elkind was hired as co-counsel to defend and he prepared several motions including a motion to exclude the H.G.N. test, a motion to exclude the roadside exercises for not being voluntary, a motion to suppress the Defendant’s confection, additions, or statements and a motion to exclude the empty containers of alcohol found in the Defendant’s vehicle. The Defendant remained in jail waiting for his trial date. On the day of the trial, several of the officers failed to appear and since the state was not ready they decided to dismiss the DUI case and released the Defendant from jail October 2nd, 2017

Broward County

Date of Win 5/11/17

Case No: 16003321MU10A

Facts:

The Defendant was stopped for speeding and an expired tag on February 15, 2016 and the officer noticed an odor of an alcoholic beverage on the Defendant’s breath, as well as slurred speech. The Defendant stated that he had ‘one beer about an hour ago’ to the second officer who came to do the DUI investigation. The Defendant was asked to perform the roadside sobriety physical exercise and based on his performance the Defendant was placed under arrest for DUI. The Defendant was transported to the station where he refused the breath test

Defense:

The Attorney Roger S. Elkind was hired to defend and filed several motions, including a Motion to Suppress the Defendant’s Statements, a Motion to Exclude the Roadside Tests, and a Motion to Suppresses for an Illegal Stop. It was pointed out to the State Attorney that there was no video available at the scene of the stop, that there was never a traffic citation written for speeding, which was the basis for the stop – that the officer left the scene of the stop to go to another call involving a crash, that there was no transportation time listed on the paperwork, that the state failed to list as a witness the community service aid officer who offered the breath test, that on the video taken at the station, the defendant was standing perfectly still, his speech was clear and he refused a breath test and admitted to having only one beer. The state decided to drop the D.U.I. charges and change the charge to reckless driving on May 11, 2017.

Broward County

Date of Win 9/30/16

Case No: 15022954MU10A

Facts:

The Defendant was stopped by the Plantation Police Department on August 7, 2015 at 7:16PM for a tag not properly assigned to the vehicle. The officer noticed the odor of marijuana coming from the Defendant’s vehicle and called for a second officer who arrived to conduct a D.U.I. investigation, who also noted the odor of marijuana and that the Defendant’s eyes were glassy and bloodshot. The investigation continued as if the Defendant was under the influence of alcohol and the Defendant was asked to perform the roadside field sobriety exercises. There was also a passenger in the Defendant’s car and the officer also noticed a green leafy substance on the Defendant’s lap which appeared to be ground marijuana. The Defendant was given the H.G.N. test, the walk and turn, the one legged stand and the finger to nose exercises. The Defendant was then arrested for D.U.I. and in a later search of the Defendant’s vehicle, the officer discovered a glass pipe on the driver’s floorboard with marijuana residue, a silver grinder and rolling papers.

Defense:

Attorney Roger S. Elkind was hired to defend and filed several motions including a Motion to Exclude the H.G.N. test, a Motion to Suppress the Defendant’s statement that he “smoked marijuana about an hour ago” and two Motions to exclude the urine tests which was the second test taken after the Defendant gave a breath test for alcohol which resulted in a 0.00, 0.00 result. The lab report for the urine eventually came back positive for marijuana. The first Motion to Exclude the urine test was based on the fact that a D.R.E. (Drug Recognition Expert) was never called to the scene to perform the testing necessary to see if someone is under the influence of a controlled substance as opposed to alcohol. The testing done was for alcohol and even though the Defendant tested positive for marijuana the results only show a metabolite which can remain in one’s system for up to 30 days. This does not indicate when the person took the drug or how it affected their ability to drive at the time of the stop. The second Motion to Exclude the Urine test was based on the chain of custody of the urine sample. A subpoena was prepared to view the paper trail of the urine sample, the property receipts and where, when and how it was tested. It turned out that there was a discrepancy; as the officers failed to place the Defendant’s name and time on the urine specimen they collected and instead only wrote his social security number and initials on the label which is not sufficient. This is in addition to the officers losing an item and not testing the glass pipe and grinder before placing it in the property room at the police station. Also, the on-scene video had no sound with the camera pointed down at the police officers backs for most of the time. This video was not turned over to the Defense until Motions to Compel were filed. This all resulted in the State Attorney deciding that with a 0.00 breath test and all of the mistakes as mentioned above, the charges will be reduced to Reckless Driving with a Withhold of Adjudication (no conviction) on September 30, 2016.

 

Dade County
Date of Win: 03/16/16

Case No: A4GQILE

Facts:
The Aventura Police Department responded to a call to investigate at 6:30 A.M. a vehicle that struck a lighted guard gate and then left the scene but returning and re-entering the complex and yelling at the security guards who followed the Defendant who parked in a handicapped space. When the officer arrived and spoke to the Defendant she appeared to be impaired. The Defendant was unsteady on her feet, had bloodshot watery eyes and smelled of an alcoholic beverage. A second officer arrived to conduct the D.U.I. investigation who also stated she smelled of an alcoholic beverage. After performing the field sobriety exercises, the Defendant was arrested by the officer. The officer also stated that the Defendant was calling him by the wrong name and that she was falling asleep at the police station and admitted after her Miranda rights were read that maybe she had one glass of wine earlier. The Defendant agreed to give a breath test the results being .032. The results being below the legal limit in Florida of .08. At some point the officer switched to requesting a urine sample which the Defendant also agreed to test for drugs.

Defense:
Attorney Roger S. Elkind was hired as co-counsel on the case to defend and prepared several motions including a Motion to Exclude the H.G.N. Test, a Motion to Exclude the Roadside Test for Not Being Voluntary, a Motion to Dismiss the case (with a breath test result below .05) as we have here, there is a presumption of non-impairment. As far as the urine test was concerned, a lab report never came back but regardless, 3 motions were filed to exclude the urine results; a Motion to Exclude the urine results based on the fact that both officers in this case said they smelled alcohol and that there was no reasonable cause to request a urine test (as per FL Statute and Case Law) and that there wasn’t anything to establish a reasonable suspicion that the Defendant was on drugs and no D.R.E. (Drug Recognition Expert) was ever called to the scene. The second Motion to Exclude the Urine Test was based on the fact that metabolites found in the urine can remain in one’s system for up to 30 days and does not establish when the person took the drug or how it would affect their driving on the day of their arrest. The third motion on the urine which was to be filed later was for Discovery for all chain of custody documents and confirmatory tests. The State Attorney understanding that the breath test was below the legal limit and that the urine lab report had not come back yet decided to drop the D.U.I. and leaving the scene of an accident to reckless driving on March 16, 2015.

Dade County
Date of Win: 01/26/16

Case No: F14021251

Facts:
The Defendant was involved in a very serious accident on August 2, 2014 at 1:47 A.M. in North Miami when he entered an intersection at the same time as another vehicle and hit this second vehicle at a right angle causing it to turn on its side and travel over 100 feet away from the point of impact with both vehicles ending up on fire and no passengers or witnesses on the street at that time. The North Miami Police Department were called and the officer that investigated found that the Defendant’s car had a strong odor of an alcoholic beverage with a clear plastic cup near the center console which also had the odor of an alcoholic beverage. The Defendant also had a pink paper bracelet on his wrist which indicated that the Defendant had been to a nightclub. Both the Defendant and the victim were transported to Jackson Hospital Trauma Center. One of the nurses at the hospital indicated that the Defendant had a strong odor of alcohol on his breath as was confirmed by Fire Rescue. The Defendant’s blood was drawn by the hospital as pre-admission blood. The police wanted to take a D.U.I. blood sample which they are allowed to do under Florida Law and eventually a warrant was issued to obtain the hospital blood sample when it was determined that the victim had died from the crash. The police officer, by the time he arrived at the hospital, did not detect the odor of alcohol on the Defendant’s breath. The police took 2 samples of the Defendant’s blood many hours later and the results were below the .08 legal limit so the warrant was executed for the pre-admission blood, but the hospital gave the officer the wrong blood. A second warrant was obtained and police went back for the pre-admission blood of the Defendant and it was correct this time and turned over to the UM toxicology lab with a blood alcohol level of .132 over the .08 Florida legal limit.

The Defendant, after being released from the hospital was later arrested on September 18, 2014 and posted a bond. Later the State moved for a no bond status and the Defendant was held with no bond on October 21, 2014 for a period of 9 months until the case was resolved.

Defense:
The Defendant was initially represented by the Public Defender’s office for many months and then obtained private counsel who brought in attorney Roger S. Elkind to defend. As soon as Roger Elkind was brought in several motions were filed including Motions for Discovery for Missing Offense incident reports, a copy of the video from a nearby gas station, and chain of custody regarding all of the blood tests taken, as well as a request for pictures of the plastic cup found in the car, and Fire Rescue reports and all medical reports that include blood testing done by the hospital. In addition, at least 3 motions were filed to reinstate the Defendant’s bond and release him pending trial as a review of the video of the nearby gas station and the crash report indicated that there were no witnesses to the crash and the video did not show who caused the crash. Only burning vehicles could be seen. The causation of the accident is essential to prove D.U.I. Manslaughter. Eventually the State Attorney agreed that they could not prove the Defendant caused the crash and therefore could not prove that the Defendant caused the death of another human being and dropped the D.U.I. Manslaughter charges and released the Defendant and reduced the charge to a Misdemeanor D.U.I. The Defendant, who already served 9 months in jail waiting for his felony D.U.I. charge which carried a minimum of 4 years, had enough credit time and closed out his Misdemeanor case with standard D.U.I. penalties and did not have to go back to jail. The Defendant was free to go home and the case was won January 26, 2016.

Dade County
Date of Win: 11/2/15

Case No: 3334XBR

Facts:

The Defendant was stopped by an M.D.P.D. officer for speeding at 1:55 A.M. on December 17 2014. A FHP officer was called to the scene to conduct a D.U.I. investigation as the Defendant was observed to have bloodshot watery eyes, slurred speech and an odor of an alcoholic beverage emitting from her vehicle and from her breath. The officer asked the Defendant to step out of the vehicle. The Defendant was asked to perform the field sobriety exercises. The first exercise was the HGN test with the offeicer’s pen in front of her eyes. The Trooper decided for safety reasons to then move the Defendant to a nearby gas station by placing her in the back of his police car and having another officer drive her car to the gas station to meet them. Once the rest of the roadside exercises were completed the Defendant was arrested for failing to perform properly. The Defendant agreed to give a breath test with the results of .184 and .187 being more than twice the .08 legal limit in Florida.

Defense:
Attorney Roger S. Elkind was hired to defend and filed several motions including a motion to exclude the HGN test, a motion to exclude the roadside test as it was not voluntary a motion to exclude the breath test for a missing monthly agency inspection for the month before the Defendant blew in the machine which is required under the FDLE rules a Motion to Suppress for an illegal stop for failure to provide the officer’s speedometer calibration as pace clock was the basis for the speeding stop. In addition, a Motion to Suppress for a lack of probable cause for the arrest was filed based on the fact that the defendant was placed in the back of his police car (having only conducted the HGN test) that he did not have sufficient probable cause at that time to arrest the Defendant. The officer maintained that the Defendant was simply being detained at the time and was not under arrest as when they arrived at the gas station he opened the door of the police car and let the Defendant out to finish conducting the roadside exercises. During the time that the Defendant was being moved she was not free to leave and the doors were locked and could only be opened from the outside. A reasonable person in the Defendant’s position who is not free to leave would feel that they were under arrest at this time, being locked in a police car and being moved. The test for probable cause is an objective one and is not based on what the officer says but based on what a reasonable officer would consider to be probable cause. The moving of the Defendant in this case takes it out of DUI processing and turned it into arrest whereby all of the Defendant’s rights including Miranda should have been made available to her. The State attorney reviewed these facts and the case law and came to the conclusion that they may not be able to prove sufficient probable cause for the arrest before the Defendant was moved and therefore in combination of the Trooper’s failure to appear on time the State dropped the charges on November 2, 2015.

Dade County
Date of Win: 4/27/15

Case No: 0609XEV

Facts:
The defendant was found on July 12, 2014 slumped over the steering wheel with his vehicle running. The police were called and they observed the driver’s door open with food spilled all over his person and all over the driver’s seat and the defendant asleep. The police woke up the defendant and the defendant stated “I had a lot to drink.” The defendant had red watery bloodshot eyes and had the strong smell of alcoholic beverage coming from his breath. The defendant was swaying 1 to 2 inches and refused to submit to the roadside exercises. The defendant was arrested and refused the breath test.

Defense:
Attorney Roger Elkind was hired to defend and filed several motions including a motion to suppress the defendant’s statements, a motion for severance of his prior refusal of a breath test in the past and for lack of actual physical control. As the stop was made inside of the defendant’s living complex with the defendant stopped and asleep in his car close to his home driveway. The defendant had refused roadside exercises, refused the breath test, gave no post Miranda statements and there was no driving pattern, only some photos of the defendant sleeping with food all around him and no other evidence other than the police officer’s observations. The case was set for trial. The arresting officer appeared but the breath testing officer did not appear and his 4 page DUI test report was completely blank. The state could not go forward without both officers and based on the lack of evidence the case was dropped by the state and dismissed on April 27, 2015.

Dade County
Date of Win: 3/30/15

Case No: 0574WNC

Facts:
The Defendant was a passenger in a car on January 16, 2015 but the Officer believed the Defendant was driving the vehicle earlier. The stop was based on the vehicle running a red light. The vehicle made a u-turn and then stopped at a gas station. This is when the Officer said the Defendant switched seats and ended up in the passenger seat. Other Officers arrived and the Defendant was questioned and admitted to drinking a “a glass of wine earlier” and the he “smoked marijuana a few hours ago.” He was given a roadside sobriety exercises and the Defendant was arrested for DUI and possession of marijuana. His breath test results were 0.00. The Officer then conducted a D.R.E. (drug recognition evaluation) test and requested a urine sample which was provided. The urine was sent to the lab for testing.

Defense:
Attorney Roger Elkind was hired to defend and several motions were filed including a motion to suppress the Defendant’s statements, a motion of lack of actual physical control that the Defendant was not behind the wheel when the vehicle was stopped, a motion to suppress for an illegal stop for red light, as he was not driving, a motion to exclude the urine test results, a motion to dismiss the marijuana possession as it was found in the trunk of a vehicle that wasn’t his and a sworn motion to dismiss that he was never driving the vehicle. The State attorney was never able to produce the urine test results and after two court settings with a 0.00 breath test result and the Defendant swearing he wasn’t driving the charges were dropped by the State and the case was dismissed on March 30, 2015. The lab results did come back positive at a later time.

Broward County
Date of Win: 3/18/15

Case No: 13-011017MM10A

Facts:
The Defendant was involved in a motor vehicle accident on June 8th, 2013 where the Defendant
almost had a head-on collision with the victim who was traveling northbound when he saw headlights coming at him from a vehicle that entered the highway and was traveling south right towards the victim. To avoid a collision the victim swerved to the left lane paved shoulder and the Defendant’s vehicle collided with victims causing the Defendant’s vehicle to go into the left grass shoulder. A Florida Highway Patrol Trooper arrived and began a DUI investigation and after roadside exercises were given the Defendant was arrested and agreed to give a breath test with results of .104 and .154 which is twice the legal limit of .08 in Florida.

Defense:
Attorney Roger Elkind was hired and several motions including a motion to dismiss for lack of corpus delecti which states that no one can place the Defendant behind the wheel of the vehicle that collided with the victim. The FHP Trooper wrote in his report that when he arrived at the scene of the crash the Defendant was sitting behind the wheel of his vehicle but this is contradicted by the victims statement that after the crash the Defendant came over to him to see if he was ok and at that time there was no FHP Trooper on the scene. The victim said he never saw the Defendant driving, he only saw him outside of the car and therefore the Trooper couldn’t have seen him sitting in the driver’s seat. The State attorney investigated and because of this contradiction decided to drop the DUI to reckless driving on March 15, 2015.

Dade County
Date of Win: 2/2/15

Case No: 7991XEM

Facts:
The Defendant was found slumped over the wheel of his vehicle asleep on April 7, 2014. When the Officer made contact with the Defendant he noticed odor of alcohol from his breath, slurred speech and blood shot eyes. In addition the Officer noticed there was vomit in the car and on his clothes. A D.U.I. Officer was called to investigate further and roadside sobriety exercises were performed and the Defendant was arrested and the breath test results were .165 and .167, more than twice the legal limit of .08. The vehicle keys were located on driver’s floorboard and not in the ignition. The Defendant stated, “I couldn’t drive anymore, I was too drunk.”

Defense:
Attorney Roger Elkind was hired to defend and filed several motions including a motion to suppress the Defendant’s statements, a motion to suppress for illegal arrest and motion to dismiss stating that the Defendant was not in actual physical control of a motor vehicle where the keys were not in the ignition, engine was not running and the Defendant was not in actual or constructive possession of the keys. The state attorney disagreed and felt that they could prove actual physical control and that the keys to the vehicle were in reach so that the Defendant could drive upon getting those keys. The case was set for Trial and the police arrived as well as photos of inside the Defendant’s vehicle. The photos showed a mess in the car as well as the vomit but never showed the location of the keys on the floorboard or anywhere else. That based on these photos the state agreed that they would have difficulty proving actual physical control on the part of the Defendant and dropped the DUI charges to a reckless driving charge on February 2, 2015.

Seminole County
Date of Win: 1/30/15

Case No: 2013MM010202A

Facts:
The Defendant was driving her boyfriend’s car around 1:00 AM in the morning on November 18, 2013 with her boyfriend in the passenger seat and pulled into a Denny’s restaurant. Upon doing so the Defendant entered the exit of the restaurant instead of the entrance and pulled into a parking spot. The Police Officer noticed this as well as a headlight out on the vehicle and a cracked right rear taillight and that the Defendant hit the parking bar upon pulling into the parking spot. The Officer had loud music playing in his car and turned on his in car microphone and approached the Defendant where he noticed the odor of an alcoholic beverage, watery eyes and slurred speech. The Officer asked the Defendant to exit her vehicle and this can be seen on DVD video. The Defendant exits and looks good, but the Officer continues and asks the Defendant a series of questions of which the Defendant admits that she drank two cans of Bud Light beer and stopped around 1:00 AM, and explains where she lives and where she was coming from. The Officer then asks the Defendant to walk to the other side of the parking lot where she can conduct roadside field sobriety exercises, also on DVD video, and then the Officer experiences a technical problem as there is no more sound on the video. The Defendant performs very well on the physical exercises and because of no sound it cannot be determined whether the Defendant followed the instructions or if her speech was slurred. The Officer arrested the Defendant and she refused a breath test. There was also a second DVD video at the jail in a DUI room with sound where the Defendant looks very good and has no slurred speech and is able to stand straight with no swaying whatsoever.

Defense:
Attorney Roger Elkind was hired to defend and several motions were filed including a motion to suppress the Defendant’s statements, a motion to suppress for an illegal stop as the vehicle she was driving was not hers and she was not responsible for the defective equipment and a motion to dismiss the case for violation of her due process rights as the volume being off on the video denied the Defendant of evidence that could have been used to her advantage to show no slurred speech and that she was following instructions. The case could not be resolved and eventually went to a jury Trial. The jury after hearing all of the evidence, reviewing two DVD videos and with a refusal of the breath test found the Defendant Not Guilty on January 30, 2015.

Broward County
Date of Win: 10/16/14

Case No: 1302223MM10A

Facts:
The Defendant was involved in an accident on November 26, 2013 with property damage only on Interstate 95 where it was alleged at 8:20pm that the Defendant side swiped another vehicle causing damage to that vehicles side view mirror. Both vehicles pulled off to the shoulder and Defendant went over to the other driver who had his young son in the car and asked if they were ok. The Defendant also explained that another vehicle cut him off causing him to swerve into the other vehicle. The police were called and the F.H.P. arrived. The Defendant was outside of his vehicle and the trooper noticed a strong odor of an alcoholic beverage with watery eyes and a slow and slurred speech. The Defendant was asked to perform roadside sobriety exercises and he refused. The Defendant was asked to submit to a breath test and he refused indicating that he was on medication. The in car video equipment of the troopers vehicle wasn’t working and a second trooper arrived on the scene with in car video but the trooper choose to record audio portion only. Two empty beer cans were found in the Defendant’s car as well.

Defense:
Attorney Roger Elkind was hired to defend and several motions were filed including a motion to dismiss for lack of corpus delecti, as no one could place the Defendant behind the wheel of his vehicle. The trooper arrived later and did not see the Defendant behind the wheel and the other driver stated he never saw the Defendant exit his vehicle. A motion in limine was also filed to exclude the two empty beer cans as they were inside a work truck, were not cold to the touch and could have been there for weeks and there was no charge for open container. The Judge denied these motions with stating any reason and the state attorney without any roadside tests, without a breath test and without a video (audio only which when played showed the Defendant’s speech was not slow or slurred) would not drop or reduce the charges and therefore the case went to Jury Trial. Two and half days later, due to insufficient evidence the Jury found the Defendant not guilty and all other charges were dismissed by the Judge on October 16, 2014.

Dade County
Date of Win: 9/15/14

Case No: 1837XGR

Facts:
The Defendant was involved in an accident February 8, 2014 at 9:00 AM whereby he had hit 2 parked vehicles and jumped the curb and collided with a palm tree. The police were called to the scene along with fire rescue. The Defendant was found sitting behind the wheel, engine off, door opened with his left leg out and keys in his pocket. The officer noticed a strong odor of alcoholic beverage on his breath, eyes blood shot and watery and his speech was slurred and slow. The Defendant refused to do the roadside sobriety tests and due to minor injuries he was transported to the hospital. The officer also stated that the Defendant was unsteady on his feet and had to lean against his vehicle to maintain his balance. In addition the officer noted that he spoke to the Defendants wife who came onto the scene and that she stated that the Defendant had been drinking heavily for the past two days. Once at the hospital the Defendant was read the implied consent law and the officer asked for urine test due to not having a breath test intoxilzer available. The Defendant refused the urine test. The Defendant stated that he had no recollection of what had occurred. The Defendant was discharged from the hospital and medically cleared and was placed under arrest and taken to the police station where no breath test was even offered or performed.

Defense:
Attorney Roger Elkind was hired to defend and filed several motions including a motion to suppress the admissions confessions and statements of the Defendant (accident report privilege); to exclude the wife’s statements as hearsay; a smotion to suppress for lack of corpus delecti (not putting the Defendant behind the wheel and/or in actual physical control); a motion to in limine to exclude the H.G.N. test, and a motion to exclude the refusal of the urine test as this urine request was improper as there was no indication that the Defendant was under the influence of drugs or a controlled substance. No DRE (drug recognition expert) was called to the scene and the officer indicated that the Defendant walked out of the hospital under his own power and was taken to the police station where at that time a breath test could have been offered. The breath test was the proper test based on the Defendant being under the influence of alcohol and since the urine test was improper and the implied consent was read using the word urine instead of breath test the state attorney agreed that the refusal of test would not be allowed and reduced the charges to reckless driving on September 15, 2014.

Dade County
Date of Win: 1/27/14

Case No: 1485XEU

Facts:
The Defendant was stopped at 1:43am on April 25, 2013 for failure to maintain a single lane. The officer smelled the strong odor of an alcoholic beverage on his breath and that he was unsteady on his feet. The Defendant admitted to drinking a “few beers”. Also he had blood shot eyes and he spoke with a slow speech pattern. The roadside sobriety exercises were performed and the Defendant was arrested and refused to give a breath test.

Defense:

Attorney Roger Elkind was hired to defend and several motions were filed including a motion in limine to exclude the H.G.N. test, a motion to suppress the Defendant’s statements and a motion to suppress for an illegal stop which indicated the Defendant did not endanger any vehicles by his driving pattern at 1:43 in the morning. It was also argued that the arresting officer was known for a pattern of conduct of waiting outside of a sports bar late at night until people leave the establishment and then follows them for a number of blocks in order to justify a stop and make a DUI arrest. The arresting officer was investigated for such conduct and was close to retirement and therefore the arresting officer ended up retiring early. As a result of the officers’ conduct and the early retirement, the state acknowledged this and since arresting officer failed to appear at time of trial the state dropped the charges on January 27, 2014.

Dade County

Date of Win: 3/4/13

Case No: 7091-XEX

Facts:

The Defendant was involved in a traffic accident on September 8, 2012, in which he ran into the rear end of another vehicle. The police arrived to investigate the crash. The police investigation revealed that the Defendant was traveling at a high rate of speed and abruptly changed lanes. The officer made contact with the Defendant who was outside of his vehicle and stated that he smelled the strong odor of an alcoholic beverage from his breath with bloodshot/watery eyes. The Defendant stated he had a few glasses of wine when asked by the police. After the roadside sobriety test the Defendant was arrested and he refused the breath test.

Defense:

Attorney Roger Elkind was hired to defend and filed several motions including a Motion to Suppress the Defendant’s statements about the two glasses of wine as Miranda had to be read at that time after the crash investigation and a Motion to Dismiss for Lack of Corpus Delecti for the failure of the police to place the Defendant behind the wheel as they arrived after the crash. The only other witness was the other driver in the crash (victim) and it was determined that he would also have difficulty placing the Defendant behind the wheel. The case was set for trial and the police as well as the other driver (victim) appeared on the day of trial. Attorney Elkind told the Defendant to remain seated and questioned the other driver (victim) whether he could ID the Defendant in front of the State Attorney and he could not make a positive ID and was not sure who the driver (Defendant) was and could not point him out. That based on the lack of ID and failure to place the Defendant behind the wheel the State dropped the DUI charges to a withhold of adjudication (no conviction) on Reckless Driving on March 4, 2013.

Miami-Dade County

Date of Win: 12/15/2008

Case No: 1548-XAZ

Facts:

The defendant was observed driving a white vehicle in the right lane at 12:47am on February 9th, 2008, swerving into the right shoulder and almost hitting the guard rail. The defendant was stopped and the officer noticed signs of impairment. The defendant was asked to perform roadside exercises and was placed under arrest for DUI. The defendant gave three breath test results of .077, .192 and .194.

Defense:

Attorney Roger Elkind was hired to defend and filed several motions, including a motion to exclude the breath test results since the breath test affidavits were incomplete. In addition, two different affidavits were filed with two slightly different results. Also, the annual inspection and registration of the breathalyzer instrument were missing. The State dismissed the charges on December 15th, 2008.

Miami-Dade County

Date of Win: 11/17/2008

Case No: 3922-XCK

Facts:

The defendant was observed at 12:43am on March 22nd, 2008 driving a Ford Expedition and pulled off the roadway and appeared as though he was attempting to park his vehicle. The officer continued driving past the defendant. Later, when the officer returned to this location, he observed the same vehicle with reverse tail lights and brake lights on. However, the vehicle was not moving. The officer stopped and approached the vehicle on foot. The defendant was passed out in the steering wheel in the driver’s seat, and there was a strong odor of alcohol emitting from the vehicle. The officer attempted to awake the defendant verbally with no response. Only on the suspicion of DUI, the officer reached into the vehicle and placed it in park, turned off the engine, and removed the keys. The officer then shook the defendant until he awoke. The only roadside exercise given was the HGN (Horizontal Gaze Nystagmus) test. The defendant was arrested for DUI with breath results of .214 and .215, more than double the Florida legal limit.

Defense:

Attorney Roger Elkind was hired to defend and filed several motions, including a motion to suppress for an illegal arrest. It was argued that, by placing his hand into the defendant’s vehicle and removing the keys, the officer violated the defendant’s 4th Amendment right pursuant to the US Constitution, which is the right to be free from an unreasonable search or seizure without sufficient probable cause at the time. As such, the court granted the motion to suppress the evidence, and the State dropped the charges on November 17th, 2008.

Miami-Dade County

Date of Win: 06/16/2008

Case No: 3072-XDK

Facts:

The defendant was observed driving south on Collins Avenue at 4:06am on February 24th, 2008 and made an illegal U-turn where there was a clearly posted “No U-turn” sign. A traffic stop was conducted, at which point the driver attempted to exit the vehicle. While speaking with the defendant, the officer noticed signs of impairment, including the defendant’s difficulty in retrieving his registration documentation. When the defendant was asked to exit his vehicle, he stumbled and fell against his door, and stumbled several more times while walking to the rear of his vehicle. The defendant agreed to perform roadside sobriety exercises and stated, “I only had two beers and I am not drunk.” The defendant was arrested for DUI and gave a breath test with the results of .348, .327 and .333 – which is over three times the Florida legal limit of .08. He was transported to Ward D at Miami Jackson Memorial Hospital.

Defense:

Attorney Roger Elkind was hired to defend and filed several motions, including a motion to compel discovery requesting missing breathalyzer instrument maintenance documents, as well as the medical records and witnesses from the hospital who treated him. The State dropped the charges on June 16th, 2008.

Miami-Dade County

Date of Win: 05/27/2008

Case No: 3059-XDH

Facts:

The defendant was involved in a traffic crash while driving a Kawasaki motorcycle on Alton Road, Miami Beach with another vehicle on April 28th, 2007. When the officer arrived on the scene, the officer observed signs of impairment, including unsteadiness on his feet. The officer asked the defendant how many drinks he had consumed, and the defendant stated that he had not had anything to drink and the only thing he was under the influence of was “that” – as he pointed to a bottle of oxycodone. The defendant agreed to perform roadside sobriety exercises and was arrested for DUI. In addition, a Drug Recognition Expert (DRE) was called to the station in order to request a urine sample. The defendant refused to provide a urine sample and stated, “I bought a hundred dollars worth of pot and smoked some in my bong last night.”

Defense:

Attorney Roger Elkind was hired to defend and filed several motions, including a motion to dismiss for failure to place the defendant behind the wheel (corpus delicti), and a motion to suppress the defendant’s confessions for failure to read the Miranda warning. In addition, due to the defendant’s injury from the motorcycle crash, he was not able to properly perform the roadside sobriety exercises. There was no breath test in this case, and the defendant refused to provide a urine sample. Since there was insufficient evidence to prove DUI, the State dropped the charges on May 27th, 2008.

Miami-Dade County

Date of Win: 05/08/2008

Case No: 2272-XDP

Facts:

The officer observed the defendant losing control of his SUV while spinning out in the rain at 9:30pm on September 30th, 2007. The defendant was stopped, and the officer noticed signs of impairment. The defendant was asked to perform field sobriety exercises and was arrested for DUI. The defendant gave one breath test with a result of .160.

Defense:

Attorney Roger Elkind was hired to defend and filed several motions, including a motion to exclude the breath test results for not being in compliance with the FDLE rules, which require two breath test results. In addition, a motion was filed to exclude the breath test result for violation of the 20 minute FDLE observation rule. Also, a motion to suppress for lack of probable cause was filed, as the odor of alcohol with an accident was insufficient evidence for the arrest. The motion to suppress was denied, however, the motion to exclude the breath test was granted. The case went to jury trial for two days, and the defendant was found not guilty on May 5th, 2008.

Miami-Dade County

Date of Win: 04/28/2008

Case No: 6789-XDG

Facts:

The defendant was observed at 12:00am on January 9th, 2008 travelling southbound on Lejeune Road and was pace-clocked travelling 65mph in a 35mph zone. The defendant was stopped and after a brief conversation, the officer noticed signs of DUI impairment. The defendant stated that she only had two drinks, one glass of beer and one glass of wine when asked by the officer. The defendant was asked to perform roadside sobriety exercises and was arrested for DUI. The breath test results were .165 and .147.

Defense:

Attorney Roger Elkind was hired to defend and filed several motions, including a motion to exclude the breath test for failure of the State to provide the registration, certificate of calibration and monthly agency inspection the month, during and after the defendant blew into the breathalyzer device. In addition, a motion to suppress the defendant’s statements was filed for failure to read Miranda warnings before asking how many drinks the defendant consumed. The State dropped the charges on April 28, 2008.

Broward County

Date of Win: 03/04/2008

Case No: 06-012032MM10A

Facts:

The defendant was involved in a traffic crash in which another vehicle was rear-ended on June 19th, 2006. The trooper arrived later and noticed that the defendant had signs of impairment. After roadside exercises, and after Miranda rights were read, the defendant admitted to being in the crash, and stated that he “had 4 or 5 beers… European draft beers.” The defendant gave a breath test with results .192 and .212, getting close to almost three times the legal limit for the State of Florida (which would be .240).

Defense:

Attorney Roger Elkind was hired to defend and several motions, including a motion to dismiss for lack of corpus delicti, which argued that the trooper was unable to place the defendant behind the wheel. In addition, the trooper that conveyed the information to the second trooper was no longer employed by the FHP (Florida Highway Patrol) and therefore, all information would be considered hearsay and does not fall under the Fellow Officer Rule exception. The State also lost contact with the other driver, and thus had no witness who could place the defendant behind the wheel. The State dropped the DUI charges and offered the defendant reckless driving with no conviction on March 4th, 2008.

Miami-Dade County

Date of Win: 01/04/2008

Case No: 411284X

Facts:

The defendant was observed driving at a high rate of speed and was stopped at 2:55am on August 24th, 2008, but failed to come to a complete stop when the officer activated the police cruiser lights. Upon making contact with the defendant, the officer noticed signs of impairment, including poor balance upon exiting the vehicle. Field sobriety tests were performed and the defendant was arrested for DUI, with breath test results of .169 and .153, which is double the .08 Florida legal limit.

Defense:

Attorney Roger Elkind was hired to defend and filed several motions, including a motion to compel discovery for missing breathalyzer maintenance documents, and a motion to compel the officer’s laser speed measuring device certificate of calibration. In addition, it was argued that the defendant does not speak English, and as such, a Spanish-speaking officer should have been brought to the scene. The State dropped the charges on January 4th, 2008.

Miami-Dade County

Date of Win: 12/10/2007

Case No: 341798W

Facts:

The defendant was observed at 3:54am on August 19th, 2007 for speeding and upon making contact with the driver, the officer noticed signs of impairment. The officer asked the defendant to exit the vehicle and perform roadside exercises. The defendant was arrested and gave a breath test with the results of .056 and .054, which is before the Florida legal limit of .08.

Defense:

Attorney Roger Elkind was hired to defend and filed several motions, including a motion to compel discovery for the officer’s certificate to operate the radar, the radar log, and the six-month certificate of calibration for the radar unit. In addition, breath maintenance documents were compelled and provided in time. Due to the low breath test reading and the 90 day Speedy Trial Rule, the case was dismissed on December 10th, 2007.

Miami-Dade County

Date of Win: 08/27/2007

Case No: 0534-CVJ

Facts:

The defendant was observed at 8:15am on April 27th, 2007 sleeping in the driver’s seat of his parked vehicle on Cramden Blvd in Key Biscayne. The police was called to the scene and opened the vehicle door and noticed signs of impairment. The officer also noticed an open 1 liter bottle of Johnny Walker Black that was three-fourths empty. The defendant refused all testing and was arrested for DUI while in Actual Physical Control of a motor vehicle.

Defense:

Attorney Roger Elkind was hired and filed several motions, including a motion to suppress for an illegal arrest, as the officers opened the door of the defendant’s vehicle without sufficient probable cause, which is an illegal seizure of the defendant under the 4th Amendment. The defendant was only sleeping and was not ill or in any danger which would require immediate police action. In addition, a motion was filed to suppress the refusal of the breath test. The State dismissed the DUI charges on August 27th, 2007.

Miami-Dade County

Date of Win: 06/12/2007

Case No: 5446-XDL

Facts:

The defendant was observed at 11:31pm on February 27th, 2007 driving the wrong way on a one way street. The defendant was making furtive, nervous movements towards the passenger seat. In fear for a possible weapon under the seat, the officer ordered the defendant to exit his vehicle and place his hands upon his head. The officer advised the defendant that he was going to be handcuffed, but was not under arrest. The officer also noticed signs of impairment and after roadside sobriety tests were performed, the defendant was arrested for DUI and gave breath test results of .177 and .171.

Defense:

Attorney Roger Elkind was hired to defend and filed several motions, including a motion to exclude the breath test for a violation of the FDLE 20 minute rule. The officer included the time in which the defendant was driven to the station in the backseat of the police cruiser as part of the 20 minute observation period before one blows into the breathalyzer. The 20 minute rule requires a constant observation by the officer to insure that the defendant does not burp or regurgitate prior to performing the breath test to prevent a false reading. The State dropped charges on June 12, 2007.

Miami-Dade County

Date of Win: 05/14/2007

Case No: 489080-X

Facts:

The defendant was observed at 1:13am on Collins Avenue after striking an unmarked police vehicle on March 13th, 2006. The defendant fled the scene without giving any driver information. The officer stopped the defendant, and once out of the vehicle, the defendant was unsteady on his feet and exhibited signs of impairment. The defendant performed field sobriety tests and was arrested for DUI, with breath test results of .206 and .204.

Defense:

Attorney Roger Elkind was hired to defend and filed several motions, including a motion to compel the breathalyzer instrument’s maintenance documents and a motion to exclude the Horizontal Gaze Nystagmus field sobriety test. Due to the inability of the State to providing documentation for the breathalyzer instrument, a 50 day demand for Speedy Trial was filed, and the case was dismissed on May 14th, 2007.

Highlands County

Date of Win: 05/08/2007

Case No: 06-1085CF

Facts:

At 6:51pm on November 10th, 2006, the officer made contact with the defendant, pursuant to a possible domestic dispute. The defendant was seated in the driver’s seat that was parked on the north side of the building. The vehicle’s headlights were on and the engine was running, making the defendant in actual physical control of the motor vehicle. Contact was made with the passenger, who stated that there was an altercation with the defendant, no physical abuse occurred. The defendant exited the vehicle and appeared to be unsteady on his feet. The officer noticed that the defendant’s pants and shirt were wet, so the officer asked if the defendant had been drinking. It was explained that the defendant had one drink and – from stopping abruptly – a drink in the vehicle was spilled. The defendant denied drinking while in the car and became belligerent, but agreed to perform roadside sobriety tests but ultimately refused to perform any field sobriety or breathalyzer tests, and was arrested for DUI. As the defendant was walked towards the patrol car, he refused to be seated in the back of the cruiser, and had to be forcibly placed into the police vehicle.

Defense:

Attorney Roger Elkind was hired to defend and filed several motions, including a motion to suppress for an illegal arrest without sufficient probable cause, as the odor of alcohol without more evidence was insufficient for a DUI arrest. The arresting officer had not observed the defendant’s driving pattern, field sobriety tests were not performed, and a breath test was refused. Due to the lack of evidence, the State dropped the DUI charge and reduced the charges to resisting arrest without violence without a conviction on May 8th, 2007.

Broward County

Date of Win: 03/30/2007

Case No: 05-024471MM10A

Facts:

The defendant was observed at 12:15am on Oakland Park Blvd, driving at a high rate of speed, 56mph in a 35 mph zone on December 2nd, 2005. After the stop, the officer noticed signs of impairment. Roadside exercises were performed, and the defendant was arrested for DUI. The defendant began to cry and did not speak English well. The implied consent law was read to him by a Spanish-speaking officer. The defendant gave a breath test with the results of .107 and .107. The legal limit in Florida is .08.

Defense:

The defendant hired Attorney Roger Elkind and expressed concern in regards to his immigration status. Several motions were filed, including a motion to exclude roadside exercises and a motion to suppress statements or confessions made by the defendant based on the failure to provide a Spanish-speaking interpreter earlier in the case. One of the officers on the case was fired and the State dropped the DUI charge on March 20, 2007.

Broward County

Date of Win: 02/14/2007

Case No: 06-002187MM10A

Facts:

The defendant was observed at 3:55am on February 4th, 2006 travelling south on Lyons Road driving very slowly at 20mph and then stopped in the turn lane for over a minute. The officer ran the tag and found that the tag was not assigned to the vehicle being driven. The defendant was stopped, and after observing signs of impairment, was asked to perform roadside exercises. The defendant was arrested for DUI. The defendant requested to speak to a lawyer, and was informed that during DUI processing, Florida law states that the defendant is not entitled to a lawyer until after the breath test is offered. Therefore, the officer stated that they had no choice but to write up the case as if the defendant refused the breath test.

Defense:

Attorney Roger Elkind was hired to defend and filed several motions, including a motion to suppress for an illegal stop, and a motion to compel discovery. The arresting officer moved to North Carolina and was no longer with the police department. A fifty-day demand for Speedy Trial was filed and in response, the State attempted to advance the trial to an even earlier date. This was denied by the Judge, as the case was already specially set for a certain date and time. The State dropped the charges on February 14th, 2007.