http://www.wftv.com/news/news/local/brevard-judge-accused-punching-public-defender/ngCGC/

But what was the fight really about?  The news reports state that it happened at a “first appearance” hearing.  This is probably inaccurate.  The court proceeding appeared to be “Arraignment” hearings and to understand why this lead to the argument, it helps to know the difference between the court proceedings.    What is the difference between 1st Appearance and Arraignment?

What happens at 1st appearance?

1st Appearance happens when a person is initially arrested.  The person is taken before the judge the next day to determine if there is “probable cause” to hold them in jail while the criminal charge is pending.  The judge also determines what (if any) bond or conditions of release shall be set.  If the judge finds there is NO PROBABLE cause for the arrest, the person is released on their own recognizance, commonly referred to as R.O.R.  This does not mean that the case is dismissed or over because the prosecutor can still file a criminal charge against them, but the person will be released without having to post a bond.  If an arrested person bonds out immediately, he would not have a 1st Appearance and would not see the judge.  Some crimes, such as Domestic Violence, are not entitled to be set a bond until the person goes before the judge at 1st Appearance. Here is a video from Justin Bieber’s case from when he was arrested for DUI/drag racing that shows what typically happens at a 1st Appearance hearing:

http://video.foxnews.com/v/3096973019001/justin-bieber-appears-in-court-for-dui-drag-racing-arrest/#sp=show-clips

What happens at an Arraignment?

This is an arrested person’s first court date after 1st Appearance.  The person is called before the court to answer the charge.  In the video, everyone is wearing street clothes and not jail jumpsuits so that is our 1st clue it is an Arraignment.  If the arrested person pleads guilty, the judge would then sentence them according to a plea agreement or if it is an “open plea” (no agreement between the prosecutor and criminal attorney or suspect), however the judge decides is appropriate for the crime.  If the person, his lawyer, or if assigned a public defender pleads “NOT GUILTY”, the case has to be set for trial or a Pre-Trial Conference/Disposition/Calendar Call/Status Conference date.  Different counties in Florida use different terms, but they all act the same way.  These calendar dates insure that criminal cases keep moving along. THIS IS WHAT THE ARGUMENT AND ALLEGED FIGHT WAS ABOUT!

So what was happening in that court room?  Why did a judge allegedly punch a criminal defense lawyer?

The public defender was pleading people “not guilty”, so the cases had to be set for trial or the Pre-Trial court date.  In Florida, criminal defendants are entitled to a speedy trial.  (The speedy trial time limit for a misdemeanor is 90 days. The speedy trial time limit for a felony is 175 days).  The public defender was trying to preserve his client’s speedy trial rights, but at the same time, get more time to prepare a defense to the criminal charges.  In Florida, if the defendant or his attorney requests a continuance or delay of the case, the case law (appellate courts) have held that is a waiver of speedy trial.  So the public defender was trying to get THE JUDGE to set the case for a Pre-Trial date instead of trial.  The judge, either knowing the case law or not normally a criminal judge) wanted the Public Defender to commit to a trial or ask for a Pre-Trial date which would be a continuance (potentially) and speedy trial would be waived.  The judge might also not want cases coming back for ineffective assistance of counsel or for the Public Defender to be able to complain later on that he was not prepared for trial.  So we ended up with a staring contest.  The lawyer wanting the judge to set it for a Pre-Trial so he could preserve his client’s speedy trial rights and the judge who wanted a commitment from the public defender to set it for trial or waive his client’s speedy trial rights.  With neither side blinking, we ended up with a judge allegedly punching a public defender out in the hallway.  A black eye for BOTH judges and public defenders in the public eye.

There is a time to fight for your client and a correct way to fight in court for your client.  You want the attorney representing you in court to fight for you, but in a way that the prosecutor and the judge on your case respects the way the criminal lawyer fights for you!

If you have been arrested for a crime, retain an experienced criminal defense attorney that will stand up for you!

Thomas C. Grajek – 863-688-4606

NCDD

Recently, the manual was updated to a more “picture” instruction format instead of the traditional detailed text instructions.  This is an attempt to make it more difficult for DUI defense attorneys to impeach an officer during a DUI trial to prove he did not administer the FSE’s correctly or grade the suspected driver in accordance with the NHTSA guidelines.  This strategy will not work as it will make the arresting officer unable to properly answer questions under cross-examination, especially if the officer was never trained under the previous versions of the manual.  As a DUI defense lawyer and member of the National College of DUI Defense (NCDD), I have copies of every NHTSA manual  including the instructor and student manual.  If you have been arrested for DUI, it is extremely important that the DUI lawyer you retain has the tools necessary to defend you against this crime.

To see a part Justin Bieber’s video performing the Walk and Turn exercise at the jail, click on this link:

http://www.usatoday.com/story/life/people/2014/02/26/justin-bieber-and-fans-nervously-await-his-arrest-video/5833967/

If you have been arrested for DUI, retain an attorney that is a member of the DUI defense college and has the experience and tools to defend and fight for you in court.

Thomas C. Grajek – Florida DUI defense attorney

863-838-5549  cell

YOU ONLY HAVE 10 DAYS TO REQUEST A FORMAL REVIEW!

1st time offenders can waive the Formal Review and immediately obtain a hardship license!

http://www.youtube.com/watch?v=nh0MKeZdHNA – driving video

http://www.youtube.com/watch?v=xqR_iOXwcz0 – surveillance video

This is a copy of the police report obtained by TMZ.  WARNING! The police report contains profanity and strong language!

Bieber DUI police report

The police report alleges that Bieber and another person also driving a Lamborghini were drag racing and reached 55-60 miles per hour.  The problems with this allegation?  The car Justin Bieber was allegedly racing was a Ferrari, not a Lamborghini.  The second officer involved was readily able to distinguish between a Ferrari and a Lamborghini.  This shows that the officer’s observations are suspect and may not be credible.  Also, if you look at the video, the two vehicles do not appear to come close to reaching such a high rate of speed.  In order to issue a ticket for speeding, police officers are supposed to estimate a vehicle’s speed and then clock the speed using radar or pacing the car using their speedometer.  This was never done.  If the officer is wrong about these simple observations, what else is the officer wrong about?  Does he have a bias against people driving expensive sports cars?  Was the officer’s mind made up to stop the cars or request a DUI investigation based on the vehicles alone?  What affect did it have once he learned it was Justin Bieber driving?

The police report also indicates there were no problems with Bieber’s driving pattern.  He even made a right hand turn with no issues.  One of the “cues” or indicators of impairment and officer looks for in a DUI case is problems with the driving pattern.  Here there does not appear to be any.  This fact could then for the basis for a Motion to Suppress in which a DUI attorney asks the court to throw out evidence of the stop due to the illegal stop by the police.  In a DUI case, that would result in ALL the evidence being thrown out of court and the DUI charge and any additional charges would be dismissed.

Once pulled over, there were very few indications that Bieber was impaired.  He protested his innocence (with a lot of profanity).  He did not slur his words, he did not have trouble exiting the vehicle, Bieber did not need to use the vehicle for support, or lean on the vehicle.  These are all indicators that a driver may be under the influence that DUI officers are trained to look for in a DUI arrest.  It is not easy to exit and get out of a low-to-the ground sports car, but Bieber apparently did so perfectly.  Another problem with the prosecutor’s case.

The next problem is that Bieber was immediately arrested for DUI with NO Field Sobriety Exercises performed on him!  The police did not even call a DUI officer to the scene or ask if he would perform Field Sobriety Tests before arresting him.  That means he was arrested based on allegedly racing or speeding (does the video bear this out?), having blood shot eyes (up all day and tired? Coming from a smoky environment), a flushed face (because he was angry for being pulled over for no reason?), and the odor of alcohol on his breath (it is not illegal to drink and driver in Florida, it is only illegal if you have so much to drink that it affects the driving). You must not ignore the other facts that indicate Bieber was NOT IMPAIRED when determining whether there was probable cause to make a DUI arrest.  The perfect driving, not slurring his words, exiting the vehicle perfectly, not stumbling at the roadside, not swaying at any point in time, protesting his innocence, stopping the car immediately and pulling over the vehicle without any issues.  These are factors that bear on probable cause also.  Under Florida law, the odor of alcohol alone is insufficient to establish probable cause for arrest. State v. Kliphouse, 771 So.2d 16 (Fla. 4th DCA 2000).  So the motion to suppress the stop and have the case dismissed could prove to be very strong in Bieber’s case.

Bieber again protested his innocence at the jail.  Bieber was finally asked to submit to Field Sobriety Exercises and he refused.  The Field Sobriety Tests are voluntary under Florida law!  A suspected impaired driver does not have to do them.  Bieber again explained that he was innocent and was not impaired, drunk, or intoxicated so why should he have to do them.

Bieber took the breath test result which came in at allegedly at .011 g/mL and .014 g/mL of alcohol.  Breath Test results are NOT reported as a percentage and DO NOT represent the percent of alcohol in a person’s body.  The legal limit in Florida is 0.08 g/mL of alchol.  This means that Bieber’s breath test result was way BELOW THE LEGAL LIMIT.  Not only the legal limit for a DUI case, but even below the legal limit for an underage driver in Florida.  The legal limit is 0.08 no matter what your age is in a DUI case.  However, the administrative law states that the Dept. Of Highway Safety and Motor Vehicles (DHSMV) will suspend an underage drinker’s license if their breath test level is 0.02 or higher!  (Florida Statute Section 322.2616).  Bieber was below even this small amount.  There will be no administrative suspension of his driving privileges and no need to request a Formal Review because his license will not be immediately suspended by Florida’s DHSMV.

Finally, Bieber was allegedly requested to undergo a drug evaluation.  There is no information in the police report to indicate whether the DUI officer who performed the evaluation was a Drug Recognition Expert (DRE) or whether Bieber underwent the 12 step protocol for the Drug Influence Examination (DIE).  DUI officers are required to get extra training in Driving Under the Influence of Drug cases (DUID).  It is illegal to drive while impaired by a controlled substance in Florida.  A controlled substance can be a lawfully prescribed medication.  Whether the lab analyst will find anything in the urine sample is fact we will learn at a later time.

However, there are a number of issues with the Drug Influence Evaluation.  The police need probable cause to request this evaluation.  There is nothing to indicate that Bieber was impaired by drugs in this case.  Unless Bieber made statements that he was currently taking medications or took some controlled substance, there is no reason to think drugs played any part in this case.  In addition, there are number of ways to defend against a DIE.  Was the DRE trained properly? Is the officer even a DRE?  Did he perform the DIE correctly?  Has the DRE kept up with the requisite training to maintain his status as a DRE?  Was the drug evaluation videotaped?  It does not have to be, but it can lead to valuable evidence in this case.  As part of the 12 step protocol, an arrested driver for DUI is asked to perform the Field Sobriety Exercises.

This case has a lot of legal issues and there may be a number of defenses to this DUI charge.  Roy Black is a phenomenal criminal defense lawyer and is representing Justin Bieber in his DUI case.  I will continue to post about Bieber’s DUI case as we learn more.

If you have been arrested for DUI, retain a DUI attorney that is part of the National College for DUI Defense (NCDD).

Retain an DUI attorney who is experienced at handling DUI’s and located in Polk county in order to get the best defense and the best result to your driving under the influence case.

DON‘T HESITATE!!!   PROTECT YOUR RIGHTS!!! 

 CALL POLK COUNTY DUI ATTORNEY THOMAS C. GRAJEK NOW !!!

 863-838-5549 cell

 Because you only have 10 days to request a Formal Review or get a hardship license!

NCDD