Category Archives: Criminal Defense

Vehicular Manslaughter Charges Dropped Against Former Coral Springs Police Officer

Supreme Court.jpg

The Supreme Court of the United States rules that evidence of warrantless blood testing can be dismissed in cases based upon unreasonable search and seizure. Image Credit: “Supreme Court”. Licensed under Public domain via Wikimedia Commons.

In July 2011, Coral Springs officer Peter Munoz was driving along LeJeune Road and Aledo Avenue in Coral Gables when his car crashed with Jennifer Gutierrez’s car. Guiterrez, 24-years-old, died as a result of the accident. As part of the investigation, Munoz’s blood-alcohol was determined to be .229, more than three times the limit of .08. He was charged with vehicular homicide and DUI manslaughter.

Prosecutors alleged that in addition to Munoz’s high blood-alcohol level, he caused the accident by driving over the speed limit and striking Gutierrez’s car as she attempted to make a right turn. However, as it turns out, there was an issue with the blood-alcohol results. Under a Supreme Court of the United States ruling, cases of warrantless blood testing can be dismissed based upon unreasonable search and seizure. This was the instance in this case, which forced the judge to throw out that piece of evidence. Still, the manslaughter charges remained.

On Wednesday, November 12, the parties attended a hearing on the case. In reviewing similar cases, the court rulings showed that Gutierrez’s driving was not considered reckless and the case was dismissed.

It’s not unusual for technicalities to make or break a criminal defense case. Defendants have certain rights that must be protected. For example, in the instance of this case, the Supreme Court dictated in a previous ruling that when investigators can reasonably obtain a warrant before drawing a blood sample, they must do so under the Fourth Amendment.

Source:, “Fmr. Coral Springs Cop Cleared In Vehicular Manslaughter Case,” 12 November 2014.



New Supreme Court Ruling May Require Warrants for Blood Draws in DUI Cases in Florida

New Supreme Court Ruling May Require Change to Florida Law

Calling for Warrants for Blood Draws in DUI Cases

A new case decided last month (April 17, 2013) by the Supreme Court of the United States, Missouri v. McNeely, promises to require revisions of current law in the State of Florida and may jeopardize future prosecutions for DUI that rely upon blood alcohol levels based upon analysis of blood draws.

In a previous ruling the Supreme Court, in Schmerber v. California, 384 U.S. 757 (1996), upheld a warrantless blood test of an individual arrested for DUI. The reason being that the officer might reasonably have believed he was confronted with an emergency, and delay of a blood draw threatened destruction of evidence.

The Court in 1966 pointed out that the testimony in the lower court indicated that the percentage of alcohol in an individual’s blood typically decreased by approximately 0.015 percent to 0.02 percent per hour once the alcohol has been fully absorbed. They went on to note that since an individual’s alcohol level gradually declines after he stops drinking, a significant delay in testing can negatively affect the probative value of the results. This factor was essential to holding in Schmerber that delay in securing a warrant would threaten the destruction of evidence.

However, in this new ruling, the Court held that the natural metabolization of alcohol in the blood stream does not present a per se exigent circumstance that will justify warrantless blood draws in all drunk driving cases. The Court further held that whether an exigency exists which would allow a warrantless blood draw in a DUI case, is an issue that must be determined on a case by case basis based upon the totality of circumstances.

Given the current state of the ability for police departments to communicate with the judiciary in order to secure warrants, which makes application for same in a short period of time not impracticable, it cannot be said that exigency is presented in all cases which thereby justify warrantless blood tests.

The court noted that in the 47 years since Schmerber was decided there is a more expeditious processing of warrant applications and well over the majority of the states allow police officers to apply for search warrants remotely through using telecommunications and email.

The Court therefore held that in drunk driving investigations the natural dissipation of alcohol in the blood stream does not constitute an exigency in every case to justify conducting a blood test without a warrant.

Impact on Florida’s Implied Consent Laws

It is difficult to predict all the consequences that this new decision will have on future cases involving motorists driving under the influence. They may be far-reaching; all 50 states have adopted implied consent laws in one form or another, requiring all operators of motor vehicles within their states to consent to blood alcohol content (BAC) testing if they’re arrested or detained on suspicion of a drunk driving offense.

Refusal to submit to a breath, urine, or blood test is admissible as evidence in DUI criminal proceedings in Florida, for example, and results in an automatic suspension of the driver license for one year. Under Florida’s implied consent law, the following is allowed:

Forceful Withdrawal of Blood: If necessary, blood may be withdrawn in DUI cases involving serious bodily injury or death by authorized medical personnel with the use of reasonable force by the arresting officer, even if the driver refuses.

Unconscious: Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition shall be deemed not to have withdrawn his consent to such test. A blood test may be administered whether or not such person is told that his failure to submit to such a blood test will result in the suspension of his privilege to operate a motor vehicle. (Florida Highway Safety and Motor Vehicles).

That may change with McNeely; in the state of Florida cases involving searches consisting of warrantless blood testing can now be attacked based upon unreasonable search and seizure. For example, people who consented to having their blood drawn could challenge the administration of the test by arguing their consent was not given voluntarily. A good criminal defense lawyer in Florida could challenge its implied consent laws for punishing citizens for exercising their constitutional right to refuse a search not authorized by warrant.

The new ruling suggests that when officers in drunk driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.


Florida Highway and Safety Motor Vehicles, “Florida DUI and Administrative Suspension Laws.

Harmless Error Blog, “Missouri v. McNeely: Trouble for Implied Consent Laws?”, 22 April 2013.

Missouri v. McNeely, No. 11-1425, 2013 BL 102042 (U.S. Apr. 17, 2013), 17 April 2013.

Online Impersonation, Prank Calls on Steroids?

Last month, two students from Fort Hood County in Texas were arrested on felony charges after they created a fake Facebook account for a fellow student. The two girls attend middle school and were charged based on the rumors, threats and vulgarities that were posted on the fake account, which had a photo of an individual who looked similar to the victim. The profile was active for about a month before it was discovered.

With cyberbullying on the rise, Texas adopted a law in 2009 that makes online impersonation and harassment a felony punishable by up to ten years in prison.  While I don’t condone harassment by any means, this brings to mind the old-school act of making crank calls; only now social media offers a potentially perfect storm for real damages and liability.

At 63 years of age, and considerably past the age where I feel compelled to seek out adventure or thrills (thus minimizing the possibility of stupid behavior – for the most part) and having reached the point in my life where boredom is just another form of recreation, it would be easy to harshly judge teenagers who set up phony Facebook accounts and impersonate others.

Certainly the damage caused by such activity can be harmful, and given the unlimited reach of the Internet, more extensive. However, as I stare at my four-year old grandchild while in the process of playing with my wife’s iPhone “Angry Birds” using her thumbs at a rate approaching the speed of light, it becomes obvious to me that the children of today can exploit social media as easily as we were able to make phony phone calls 50 years ago.

Unquestionably, there are a few more steps involved, perhaps a bit more premeditation, but all-in-all, I tend to believe that in many instances the motivation may be at many times, akin to the driving force that had me at 12 year of age dialing a random number so as to ask a stranger at the other end of the phone “Is your refrigerator running?” and when the response was “Yes” declaring back, “Well don’t you think you oughta go catch it?” Oh well. Times were simpler then. It was a lot harder to hurt people or cause damage. Social media has certainly turned the phony phone call into a weapon of mass destruction.

Source:, “2 Hood County girls arrested over fake Facebook page,” Alex Branch, 20 July 2012