In addition to the trial work, the Firm is also frequently retained to handle appeals in DUI, DUI serious injury and death and other types of criminal cases. The following is a list of some of the significant cases.
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This is the only case dealing with the current Implied Consent law that has reached the Florida Supreme Court. Mr. Dobrin's license was suspended as a result of his arrest for DUI. He challenged the legal authority to stop his vehicle at this Formal Review hearing. The DHSMV hearing officer ruled against Mr. Dobrin and an appeal was filed with the Circuit Court in Volusia County. The circuit judge reversed the order upholding the suspension of his license. The DHSMV then appealed to the Fifth District Court of Appeal, which reversed the circuit court and reinstated the suspension. Mr. Whited then sought review by the Florida Supreme Court. That court accepted jurisdiction and then reversed the Fifth District, holding that there was no objective evidence to support the seizure of Mr. Dobrin's vehicle.
Mr. Cuda was arrested and charged with exploitation of the elderly. He retained Mr. Whited to defend that charge. A Motion to Dismiss the charges based on the unconstitutional vagueness of the statute, filed by Mr. Whited, was granted by the trial judge. The State appealed and the Fifth District Court of Appeals reversed. Mr. Whited appealed the matter to the Florida Supreme Court and won. The exploitation statute was amended by the Florida Legislature the next year.
The trial level work ending in this decision was the start of the attack on the administrative regulations dealing with blood testing. The Florida Supreme Court ordered the Florida Department of Law Enforcement to enact sufficient regulations to ensure the accuracy of blood alcohol testing. They failed to do so and in 2000 suffered a crushing defeat in State v. Miles.
This is the benchmark case setting forth the predicate for the introduction of breath and blood alcohol evidence in DUI and DUI manslaughter cases. Mr. Whited was asked to assist the local Public Defender's Office in this appeal. During the handling of this appeal a reporter for the Orlando Sentinel followed Mr. Whited as part of the research for the article A Drunken Driver's Best Friend: Its Flem Whited for the Defense that appeared in the Florida Magazine on November 17, 1991.
One of several cases that established the rule of law that a criminal defendant may have an adverse ruling of the Circuit Court, sitting in their review capacity, reviewed by the District Court of Appeal.
(upheld a trial court ruling suppressing from evidence a substantially modified Intoximeter 3000; the ruling in the case resulted in the exclusion of thousands of breath tests throughout the State of Florida)
(multiple convictions for DWI manslaughter and Vehicular Homicide reversed; straight probation with no jail sentence eventually not appealed by the state)
(reversing a DUI conviction where the trial court instructed the jury that they could consider the refusal to submit to a breath test as evidence of guilt)
(first and still only ruling holding that once the driver has identified a deficiency in the predicate required for introduction of a breath test at an administrative license suspension hearing the burden shifts to the Department to sustain the suspension)
(reversing a conviction for DUI Serious Bodily Injury where the trial court refused to give a jury instruction on DUI as a lesser included offense)
(establishing that failure of defense counsel to do any trial preparation is per se ineffective assistance of counsel under the first prong of Strickland v. Washington)
(first case to hold driver may obtain stay of administrative suspension pending appeal from adverse administrative ruling sustaining suspension)
(In this case, Mr. Whited represented a young man living in south Florida who had a case pending in Alachua County. The trial judge ordered him to be present at his pretrial conference in total contravention of a Rule of Criminal Procedure that allows a defendant to waive their presence. Mr. Whited sought review in the Circuit Court which affirmed the order of the county judge. Mr. Whited then appealed to the First District Court of Appeal. In a matter of first impression for that court, they reversed the circuit court and remanded the case with instructions for the trial judge to follow the rules of criminal procedure.)
State v. Catone,
7th Judicial Circuit
1998
Defendant was charged with DUI manslaughter and DUI Serious Bodily Injury and moved to exclude the blood test alleging there was no voluntary consent and there was not probable cause to force the blood draw. Trial court agreed and excluded the test. State proceeded to trial on theory of Vehicular Homicide and Culpable Negligence. Trial court granted motion for directed judgment of acquittal as to remaining charges. The defense was able to show through cross examination of the accident investigator for the state that the defendant driving at the speeds calculated by the state (57 m.p.h. in a 35 m.p.h. zone) still could not avoid hitting the deceased. Both deceased and his girlfriend walked off a curb in front of the defendant.
State v. Fahey,
7th Judicial Circuit (Appeal)
1990
Conviction for DUI reversed where appellate court agreed with defendant that trial judge gave improper jury instruction on “operability.”
State v. Cuda,
7th Judicial Circuit
1992
Defendant was charged for exploitation of the elderly. Allegations were he bilked person of 1.2 million dollars. Statute prohibited person from doing anything “illegal or improper” with funds. Defendant alleged that the statute was vague. Trial court agreed and dismissed the charges. The state appealed and the 5th DCA reversed the trial court. Defendant took the case to the Florida Supreme Court which reversed the 5th DCA reinstating the dismissal of the charges.
State v. Chapin,
7th Judicial Circuit
2012
Trial court suppressed all evidence based on illegal traffic stop. All charges dismissed. Defendant had two prior convictions for DUI.
Failla v. State,
7th Judicial Circuit
2007
This was the first case decided on Cert Review holding that the DMV still had the obligation to consider the lawfulness of the stop after the Fla Legislature amended the statute eliminating that as an issue at the Formal Review. This case was appealed by the DMV. The 5 DCA affirmed the trial court. The DMV took the case to the Florida Supreme Court which agreed with the DCA. The DMV ultimately gave up and began considering the stop at Formal Review hearings.
State v. Prest,
7th Judicial Circuit
2007
The defendant backed over a curb and into a 2' deep ditch. When the officer arrived, the defendant was outside the vehicle. He was arrested for DUI. There is an exception to the rule that the officer witness all elements of the offense to make the arrest lawful where there is a crash. The defendant convinced the trial court there was no crash and granted the motion to dismiss based on the illegality of the arrest. All charges dismissed.
State v. Hanna, Hanson and Welch,
7th Judicial Circuit
2006
This is another case where the defendant pointed out errors in compliance with the rules regulating breath test machines. The trial court agreed with the defendants that the state had not substantially complied with the rules. All evidence of the breath test result was suppressed.
McKinney v. State, DMV
7th Judicial Circuit (Appeal)
2006
Driver pointed out several discrepancies in the evidence regarding whether they were properly observed prior to submitting to the breath test. All attempts to excuse this by the DMV were rejected by the appellate court. The order upholding the suspension of his driver's license was quashed.
Egierski v. State, DMV,
7th Judicial Circuit (Appeal)
2006
Driver argues on appeal that the police officer did not have sufficient facts after a lawful stop to conduct a DUI investigation. The appellate court agreed holding that the odor of alcohol, driving with a burned out tail light and appearing disoriented were insufficient to detain the defendant beyond the time necessary to write the ticket for the light violation.
Brown v. State, DMV
7th Judicial Circuit (Appeal)
Driver appealed an order upholding his license suspension based on insufficient evidence to support the initial stop. The appellate court agreed holding language in the charging affidavit indicating the stop was for committing a traffic infraction without further explaination. The fact that there was a citation written for violating a traffic control device with (speeding) written on the ticket did not add any facts. Order sustaining suspension quashed.
State v. Madzel,
7th Judicial Circuit,
2013
Defendant was found asleep in his vehicle. Police opened his door and ultimately arrested him for DUI. We challenged the seizure. The trial court agreed and suppressed all the evidence.
State v. Siegel,
7th Judicial Circuit,
2011
Officer requested breath test of defendant prior to him being placed under arrest. Trial court excluded the “refusal” from evidence holding there was no obligation to submit to test prior to lawful arrest.
Catlett v. State,
7th Judicial Circuit (Appeal)
2008
Driver stopped beyond the Stop Bar but before the Crosswalk at intersection controlled by a red light. Defendant challenged the stop. Statute provides must stop prior to Crosswalk. Trial court denied motion. Defendant pled to the charge and appealed the denial of his motion to suppress. Appellate court agreed with defendant and reversed. State ultimately dropped all charges. This was defendant's second DUI within 5 years.
Wilson v. State (DMV)
7th Judicial Circuit (Appeal)
2001
Driver submitted to breath test with results of .187 (low volume sample) and .206 (low volume sample). Officer requested driver submit to further testing. Driver refused and license was suspended for refusal. Appellate found the officer did not have the authority to request driver submit to further testing after admitting the samples were valid but wanted further testing to “cover” us at trial. Order upholding suspension for refusal quashed.
Mulligan v. State (DMV)
7th Judicial Circuit (Appeal)
2002
Same as above
Berns-Cadle v. State (DMV)
7th Judicial Circuit (Appeal)
2001
This was the first case against the DMV holding that the accident report privilege applies to Formal Review hearings. The DMV later was successful in having the statute amended to allow such testimony.
Bennett v. State (DMV)
7th Judicial Circuit (Appeal)
2002
Same as above
Roca v. State (DMV)
7th Judicial Circuit (Appeal)
2001
Same as above
State v. Sooy,
7th Judicial Circuit
2006
Officer say defendant sleeping in his vehicle and ordered him to lower his window. Trial court granted motion to suppress. All charged dropped.
Wands v. State (DMV)
7th Judicial Circuit (Appeal)
2005
Appellate court held officer did not have reasonable suspicion to conduct seizure where the officer pulled up behind driver blocking their exit with blue lights activated.
State v. Wilbert,
7th Judicial Circuit
2004
Officer passed vehicle being driven in opposite direction. Vehicle swerved into his lane. Officer turned to pursue the vehicle which he stopped. Officer was suspicious of defendant switching seats with female person who was at the wheel when the vehicle was stopped. Officer ultimately confirmed this after overhearing female on phone admitting switching seats. Trial court excluded all evidence as a result of not witnessing all element of the offense of DUI.
State v. Hewitt,
7th Judicial Circuit,
2004
Trooper had completed a crash investigation and proceeded to another location where a vehicle alleged to have been involved in the crash was stopped. Trial court held that trooper had completed his crash investigation prior to obtaining information that defendant was the driver of the vehicle. All evidence excluded as the arrest was illegal.
Kay v. State (DMV)
9th Judicial Circuit (Appeal)
2003
This was another 19-minute observation period that the DMV upheld the suspension. Appellate court reversed quashing the order upholding the suspension.
State v. Croasmun,
7th Judicial Circuit
2004
Here there was testimony of erratic driving by the officer that could not be supported by videotape of the defendant's driving pattern. All erratic driving described by the officer occurred over a period of 1 to 1.5 minutes over a distance of approximately .5 to .75 miles. Trial court suppressed all evidence.
State v. Harr,
7th Judicial Circuit
2003
Evidence excluded where officer pulled behind vehicle with lights on based on disturbance complaint.
State v. Bryant,
7th Judicial Circuit
2003
Trial court held stop for excessive use of horn illegal. Only possible use of horn was to draw attention from two females. Trial court said: “Although the Court commends Officer Rooney for his powers of observation and detection, the Court agrees with the Defendant regarding the lack of justification to conduct a traffic stop. To rule otherwise would open a Pandora's Box that would permit a traffic stop anytime a motorist sounded their horn for any purpose that the officer felt was unnecessary. Our daily world is filled with sounds like blaring horns, tires screeching, music playing, engines running, etc.”
Croasmun v. State (DMV)
7th Judicial Circuit (Appeal)
2002
Appellate court held that stop for “almost” losing control of motorcycle illegal. Order upholding suspension quashed.
Frey v. State (DMV)
7th Judicial Circuit (Appeal)
2002
Stop of driver for driving on flat tire not supported by evidence.
Brooks v. State (DMV)
7th Judicial Circuit (Appeal)
2002
Arrest of defendant in his own garage held illegal. Order upholding license suspension quashed.
Holz v. State (DMV)
18th Judicial Circuit (Appeal)
2001
Stop for briefly drifting to the left of the lane and quickly jerking back to the right illegal.
Bell v. State (DMV)
7th Judicial Circuit (Appeal)
2002
Order upholding stop quashed. Driver did not commit any traffic infractions. Officer testified at the Formal Review that driver “was looking for a house or who knows what”.
State v. Kapell,
7th Judicial Circuit
2001
Trial court suppressed blood test because breath test was not impracticable or impossible.
State v. Wright,
7th Judicial Circuit
2006
This case deals with the interpretation of the rule governing the operation and maintenance of a breath test machine. The rules require an inspection of the machines on a calendar month basis. A review of the forms provided the police for this purpose indicated all inspections had been conducted and were in order. But, when we tried to confirm that through records keep by the FDLE, it appeared the department inspector lied on a form. This was brought to the attention of the trial judge who excluded the machine reading from evidence.
State v. Henderson,
17th Judicial Circuit,
2005
Defendant was stopped based on an anonymous tip of driving on a flat tire with no headlights. The defense presented testimony contradicting the arresting officer. The court believed the defense witnesses and excluded all evidence based on a bad stop.
Kay v. State,
9th Judicial Circuit (Appeal)
2004
Driver's license was suspended by the DMV as a result of .180 and .184 readings on the breath test machine. Driver appealed the suspension. Circuit Court reinstated driver's license as both the breath test affidavit and breath test print card showed only a 19 minute observation period. The rules require a 20 minute observation. The driver correctly pointed out that once the driver showed noncompliance with the rules, the burden shifted to the DMV to show substantial compliance. As no testimony was presented on that point, the breath test should have been excluded from consideration.
State v. Josey,
7th Judicial Circuit
2001
Citizen informant tip was too vague. They described a scruffy looking white male on white motorcycle. Further, stop for making an illegal left turn illegal also. No requirement in making a left turn that driver stay as far to left as possible as is contained in the making a right turn statute.
