Recent Blog Posts

Seminar - Handling first DUI offense - Fort Lauderdale, June 5, 2012.

Lloyd Golburgh — Thu, 03 May 2012 19:44:00 GMT

Local Live CLE Seminar • Fort Lauderdale, FL
Handling First DUI Case
June 5, 2012 • 09:15 AM – Finish 12:45 PM

Presented by Attorneys: Lloyd H. Golburgh (Lloyd H. Golburgh, P.A. – Fort Lauderdale, FL) & Jonathan Blecher (Criminal Defense Attorney Jonathan Blecher – Fort Lauderdale, FL)

LawReviewCle’s Handling First DUI Case CLE is designed to help attorneys who are looking to taking on DUI cases get started. Local criminal attorneys will be instructing the class on how to begin practice in this area of law from the client interview through the DMV hearing, discovery and trial.

Learn tips and defenses as well as how to gather proper information, how to work with experts and how to handle the field sobriety tests and the Breath Machine. This course is being offered in most major cities around the country. Look for an upcoming class in your area soon. Learn More.

New Jersey Trooper 'Death Race' scandal?

Lloyd Golburgh — Tue, 24 Apr 2012 04:25:00 GMT

Two New Jersey state troopers are being investigated for allegedly escorting a caravan of blazing fast sports cars from the Garden State Parkway to Atlantic City at speeds higher than 100 miles per hour. Reportedly, San Francisco 49ers running back Brandon Jacobs was one of the guys driving the really fast cars.

If you'll recall, back in October, when the rest of the Giants were happy about leading the NFC East, Jacobs was happy about having a "fast-ass car" delivered to his home. Being into fast cars isn't illegal, of course, but driving them at insane speeds through busy motorways would be. A witness quoted in the Newark Star-Ledger called the incident "Death Race 2012" ).

Here's a portion of the report dealing with Jacobs:

A source familiar with the outing told The Star-Ledger that Jacobs, who played seven seasons for the Giants before being released this year, was among those in the caravan that drove to Atlantic City. The source was not authorized to discuss the matter and requested anonymity.

Jacobs' agent, Justin Schulman, when asked to confirm that the NFL player was part of the luxury car blitz, said: "Brandon was part of a group that went down to Atlantic City on March 30."

[...]

Jacobs, who is known within pro football circles for his collection of flashy sports cars, told Rides Magazine in October that he often cruises with the Driving Force Club. The elite New York City-based group is "for all car fanatics with a spice of racing and adrenalin rush in their hearts," according to its website.

We're talking about public roads here, where family minivans and law-abiding motorists drive every day. The accusation is that 25-30 luxury sports cars were not only allowed to blaze through all that traffic at speeds in excess of 100 mph, but that they had their license plate numbers duct-taped over and were actually escorted by a couple of state troopers.

We're talking about the police basically sponsoring an activity that lets rich people put the public in serious danger. We're talking about the police saying, "Yes, it's OK for this Lamborghini owner to use your Aunt Martha's Pontiac Aztek as his own personal racing cone."

Cops run red lights too!

Lloyd Golburgh — Mon, 23 Apr 2012 16:13:00 GMT

http://www.sun-sentinel.com/news/palm-beach/fl-cops-running-red-lights-20120421,0,4926793.story

Should your car determine whether you're too drunk to drive?

Lloyd Golburgh — Mon, 23 Apr 2012 15:42:00 GMT

There is talk of alcohol sensors being installed in every vehicle in the near future. Do you like this idea? Do you think it makes sense? What are the inherent problems with this type of thing? Where does the line get drawn?

Ignition Interlock Device Information

Lloyd Golburgh — Mon, 30 Jan 2012 23:23:00 GMT

Section 316.193, Florida Statutes, requires ignition interlock devices to be installed on the vehicles of certain persons convicted of DUI.

The ignition interlock program affects those arrested and convicted of DUI after July 1, 2002, upon eligibility of reinstatement for a permanent or restricted driver license. The ignition interlock device is also required when a driver convicted of DUI applies for a restricted license for work or business purposes (s. 322.271, F.S.). Two ignition interlock vendors (see other side) were selected by the department. The vendors began services February 1, 2004.

If the person is otherwise eligible, a driver license will be issued with a "P" restriction indicating interlock device is required. The required time period for interlock officially begins on the day the "P" interlock restriction is issued.

Court Reporting Requirements

Most courts electronically report DUI convictions to the department. The court order should reflect both the time of suspension and the interlock requirement. Please check with your clerk of court to verify that the electronic reporting from your court includes this ignition interlock requirement.

Costs to the Defendant

The cost (plus tax) to the convicted person for an ignition interlock device is:

$12 Interlock fee
$70 for installation
$67.50 for monthly monitoring and calibration
$100 refundable deposit or a $5 monthly insurance charge

Indigency Guidelines

If the court determines that the convicted person is unable to pay for the installation of the ignition interlock device, the court may order that a portion of the fine paid by the person for a violation of section 316.193 be allocated to defray the costs of installing the device. [s.316.1937(2)(d), Florida Statutes]

Basic Specifications of the Device

Fuel cell technology
Prevents the start of the vehicle with breath sample above 0.05
Equipped with rolling retest capable of random testing while the car is running
Data collected through web-based reporting with access 24 hours a day, 7 days a week
Strictly user funded

Section 316.193, Florida Statutes Requires Ignition Interlock Devices to be Installed on the Vehicles of Persons Convicted of DUI.

DUI Conviction	Ignition Interlock Requirement
First Conviction	If court ordered
First Conviction if 0.15 or above, or minor in car	At least 6 months
Second Conviction	At least 1 year
Second Conviction if 0.15 or above, or minor in car	At least 2 years
Third Conviction	At least 2 years
Four or More Convictions (Condition of Hardship License)	At least 5 years

Interlock Systems of Florida
(Alcohol Countermeasure Systems Corp.)
Toll Free: 1-866-837-8646

Interlock Group of Florida
(LifeSafer Interlock, Inc.)
Toll-free: 1-800-728-7396

Frequently Asked Questions

North in Yellow Interlock Group of Florida (LifeSafer Interlock, Inc.)

Golburgh calls "BS" on the DMV, Appellate court agrees.

Lloyd Golburgh — Mon, 30 Jan 2012 21:35:00 GMT

17 Fla. L. Weekly Supp. 1078a Online Reference: FLWSUPP 1711FLAN

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Hearing officer should have granted motion to invalidate refusal suspension where the only evidence against licensee were documents in arrest packet, and these documents contained too many inconsistencies to sustain burden of proof

TIMOTHY FLANARY, Petitioner, vs. STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 09-488 AP. DMV Case No. F456819591750. July 21, 2010. A Petition for Writ of Certiorari from a decision of the State of Florida, Department of Highway Safety and Motor Vehicles. Counsel: Lloyd H. Golburgh, for Petitioner. Jason Helfant, Office of the General Counsel, Department of Highway Safety and Motor Vehicles, for Respondent.

(Before PEDRO P. ECHARTE, JR., SCOTT J. SILVERMAN, and MIGNA SANCHEZ-LLORENS, JJ.)

(SANCHEZ-LLORENS, Judge.) This matter came to be heard on a petition for writ of certiorari filed by Petitioner Timothy Flanary, pursuant to Fla. R. Civ. P. 1.630 and Fla. R. App. P. 9.100, which seeks review of a final order entered by a Department of Highway Safety and Motor Vehicles, Bureau of Administrative Reviews Hearing Officer, in an administrative proceeding. The order was rendered on August 20, 2009, sustaining the administrative suspension of Petitioner's driver's license under §322.2615, Fla. Stat. (2007). We have jurisdiction pursuant to Art. V, § (5)(b), Fla. Const., §322.2615(13), Fla. Stat. (2007).

The standard of review for these types of administrative proceedings was set forth by the Florida Supreme Court in Haines City Community Development v. Heggs,658 So. 2d 523, 530 (Fla. 1995). When reviewing the decision, the reviewing court must determine: (1) whether or not procedural due process has been accorded; (2) whether or not the essential requirements of the law have been observed; and, (3) whether or not the findings of the hearing officer were supported by substantial competent evidence. Here, petitioner contends that the hearing officer departed from the essential requirements of law.¹

Florida Highway Patrol Trooper P. Llanio arrested Petitioner Flanary for DUI on June 26, 2009, and his license was automatically suspended for refusal to submit to a Breathalyzer test. Llanio subsequently submitted to the Department of Highway Safety and Motor Vehicles Bureau of Driver Improvement (“DHSMV”) his arrest packet, consisting of various forms filled out in conjunction with Petitioner's arrest. Within ten days of the arrest and the issuance of the notice of suspension, Petitioner applied for a formal review, and had a hearing before Hearing Officer Brenda Carter on August 19, 2009.

Petitioner was not himself present at the hearing, but was represented by counsel. The only evidence against Petitioner were the documents in the arrest packet. At the close of the evidentiary portion of the hearing, counsel moved for an invalidation of the refusal suspension on the grounds that the documents submitted by the Trooper contained too many inconsistencies to sustain the burden of proof.

This Panel concludes that the hearing officer should have granted the motion to invalidate the refusal suspension because of the inconsistencies in the evidence. There was no substantial competent evidence to support her decision. Substantial competent evidence is “described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred.” De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). Here, the arrest packet did not contain substantial competent evidence of Petitioner's refusal to take the breath test. Some questions in the forms had inconsistent answers, including both “yes” and “no” answer boxes checked; the forms, printed with the same questions in English and Spanish, had different answers to the same questions in different languages; identified Petitioner as both Hispanic and non-Hispanic; had petitioner refusing to take the breath test, but not indicating that he had been given the required Implied Consent Warning; had an entire page of one form marked with answers, then crossed out with a big “refusal” written across the page.

If the department [DHSMV] is going to choose to present no live testimony but to rely exclusively on written documents, then clearly it cannot ask this Court to ignore discrepancies and inconsistencies in the written documentation where the cause of such discrepancies and inconsistencies is not explained by sworn testimony. Hall v. State of Florida, Department of Highway Safety and Motor Vehicles,4 Fla. L. Weekly Supp. 208a (Fla. 18th Jud. Circ. July 9, 1996) (granting the writ of certiorari and quashing the action of DHSMV in suspending petitioner's driver's license because there was lack of competent, substantial evidence to support the suspension or to support the hearing officer's determination that the inconsistencies between the various documents submitted by the Department were the result of “clerical errors”). Here, the Hearing Officer made her decision solely on the basis of the documents in the arrest packet, and did not hear testimony for any witnesses, such as Trooper Llanio.

Accordingly, this court grants the petition for writ of certiorari and quashes the decision of the Hearing Officer below. (ECHARTE and SILVERMAN, JJ., concur.)

__________________

¹But this Panel contends that the real problem with the Hearing Officer's decision is with the third Heggsprong, not the second.

Supreme Court says search warrants needed when police use GPS devices to track suspects

Lloyd Golburgh — Mon, 23 Jan 2012 16:33:00 GMT

By Associated Press, Updated: Monday, January 23, 11:02 AM

WASHINGTON — The Supreme Court ruled unanimously Monday that police must get a search warrant before using GPS technology to track criminal suspects.

The GPS device helped authorities link Washington, D.C., nightclub owner Antoine Jones to a suburban house used to stash money and drugs. He was sentenced to life in prison before the appeals court overturned the conviction. Associate Justice Antonin Scalia said that the government’s installation of a GPS device, and its use to monitor the vehicle’s movements, constitutes a search, meaning that a warrant is required.

“By attaching the device to the Jeep” that Jones was using, “officers encroached on a protected area,” Scalia wrote.

All nine justices agreed that the placement of the GPS on the Jeep violated the Fourth Amendment’s protection against unreasonable search and seizure.

Scalia wrote the main opinion of three in the case. He was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor.

Sotomayor also wrote one of the two concurring opinions that agreed with the outcome in the Jones case for different reasons.

Justice Samuel Alito also wrote a concurring opinion in which he said the court should have gone further and dealt with GPS tracking of wireless devices, like mobile phones. He was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.

A federal appeals court in Washington had overturned Jones’s drug conspiracy conviction because police did not have a warrant when they installed a GPS device on his vehicle and then tracked his movements for a month. The Supreme Court agreed with the appeals court.

The case is U.S. v. Jones, 10-1259.

Guilty Until Proven Innocent: Florida's Red Light Camera Program

Lloyd Golburgh — Fri, 20 Jan 2012 02:26:00 GMT

very interesting issue. it's only a $158.00 ticket and brings no points. the money goes to the city. if you don't pay it, you'll get a real ticket mailed to you with YOUR NAME ON IT whether or not you were the driver at the time your car was video-taped running the red llight. then, you'll have to contest that ticket in court. you could lose, in which case you may pay more than the $158.00 and subject yourself to points. YOU ARE GUILTY UNTIL YOU PROVE YOURSELF INNOCENT. welcome to the new america.

shameless plug

Lloyd Golburgh — Fri, 20 Jan 2012 01:24:00 GMT

Dear Lloyd Golburgh, On behalf of Avvo and American Registry, congratulations on your Avvo Rating. This is a meaningful credential earned by a select few. It reflects critical facts about your career - your hard work.

Trooper treats law-breaking cop same as any other law-breaker

Lloyd Golburgh — Tue, 01 Nov 2011 00:46:00 GMT

http://www.sun-sentinel.com/news/local/crime/mh-miami-cop-speeding-folo-20111031,0,4167936.story

Was your tag run today?

Lloyd Golburgh — Fri, 28 Oct 2011 22:17:00 GMT

Your tag may have been run through a government computer system today and neither you, NOR THE POLICE OFFICER WHO DID IT, may know. Why? Because many patrol cars are now equipped with scanners that automatically run license plates and immediately inform the officer when they run a tag on a car whose driver has a suspended license.

SHAMELESS PLUG: I love it so much and it when it happens, I have to share it.

Lloyd Golburgh — Tue, 11 Oct 2011 23:54:00 GMT

One of things I love about my career is when one of my jurors stops me in the parking lot or the elevator or in the hallway and asks me for my business card after returning a "not guilty" verdict within 20 minutes of the beginning of their deliberations. It happened again today. Love it.

40% of 231 Intoxilyzers inaccurate in Florida

Lloyd Golburgh — Mon, 10 Oct 2011 17:27:00 GMT

40% of 231 Intoxilyzer 8000 machines in Florida were found to be operating improperly. Although the Florida Department of Law Enforcement, the agency in charge of Florida's Breath Alcohol Testing Program, admits there are indeed problems with these machines, it denies these problems affected breath test results and kept the information from those convicted, and their lawyers. These machines require a minimum 1.1 liters of breath volume from the lungs in order to insure that the breath measured comes from the deepest part of the lungs. This is the breath sample that is supposed to contain the amount of alcohol most closely related to the amount of alcohol in the blood. These machines were reporting that people were providing breath sample volumes greater than the human lung can contain. This resulted in breath alcohol levels sometimes two or three times the amount actually in the arrestees' bodies. I think it's only a matter of time before the officer on the street will be able to legally draw blood from suspected impaired drivers.

Insurance consequences of a Florida DUI conviction

Lloyd Golburgh — Thu, 06 Oct 2011 19:56:00 GMT

Did you know that if you are convicted of DUI in Florida, the DMV will require you purchase 100/300 liability coverage if you didn't already have it at the time of your arrest? It's true, and IT'S EXPENSIVE. Call me to discuss it. A Fort Lauderdale DUI attorney can help.

Red Light Cameras Do Not Violate Rights, Says Broward Judge

Lloyd Golburgh — Fri, 19 Aug 2011 00:57:00 GMT

Fla. judge: Red-light cameras don't violate rights

FORT LAUDERDALE — A Broward County judge has ruled that red-light cameras don't violate constitutional rights.

The South Florida Sun-Sentinel reports that Judge Steven P. DeLuca ruled Wednesday on an array of issues including due process and speedy trial protections, and the admissibility of the images the cameras capture. He found none of the arguments held up in court.

Broward County began using red-light cameras in 2007. Since then, the county has faced hundreds of court challenges and cities have spent thousands defending citations.

Defense attorney Ted Hollander says he has begun appealing the decision.