Depositions and DUI

Driving Under the Influence charges are generally misdemeanors, which means that the ability to depose witnesses is not guaranteed. In order to be able to take a misdemeanor deposition, Florida Rule of Criminal Procedure 3.220(h) requires that "good cause" be shown to the judge. To determine if there is good cause to order depositions, the judge will consider the consequences to the defendant, the complexity of the issues involved, the complexity of the witness' testimony, and the other opportunities available to the defendant to discover the information sought by deposition. Some jurisdictions make it difficult to take depositions in misdemeanor cases, which means that lawyers have to be creative in finding other means to get the information. But, when a deposition is permitted, it should be taken.

Depositions are extremely important resources in the defense of a criminal case. Often, a simple question asked in a deposition will lead to the discovery of information that the defense attorney and prosecutor did not know existed, such as an additional police report, or witnesses that were on scene but not noted. Depositions show the defense lawyer what to expect the witness to say at a later court date and/or provide fodder to impeach the witness if his story later changes. Depositions also provide valuable insight to possible flaws in the case that may not have been otherwise revealed through the standard discovery documents. Examining these flaws can help a case by either revealing grounds for motions to suppress evidence or motions to dismiss the case based on a violation of a Constitutional right, or by simply showing the prosecutor the weakness of the case and giving a lawyer grounds to argue that the case should be dismissed or broken down into lesser charges.

Unfortunately, many attorneys do not take depositions in misdemeanor cases. It is possible that this is due to their feeling that depositions in misdemeanor cases will not reveal anything new or believing that they are a waste of time. However, depositions are a great tool that is extremely under-utilized in the current legal arena. Attorneys who do not take depositions are missing out on a wealth of information that they may not even realize exists in each case. More often than not, an officer's answers in a DUI deposition will reveal extremely helpful defense issues such as Taylor warnings not being read, simple improper phrasing by an officer that turns a request into a command, invalid consent for searches, and numerous other grounds for suppression that may never have otherwise crossed a lawyer's mind when reviewing a case.

Hiring an attorney who will work hard to get all of the information available is important in successfully defending against criminal charges. Although depositions are not always necessary, a case cannot usually be properly defended without digging deep, going outside of the box, and searching for the answers that aren't necessarily obvious at first glance. Depositions are just one weapon in a defense attorney's arsenal, but they can be one of the deadliest if used properly. Defense strategies are always formed more completely when all of the information available is laid out for the attorney to see. Why wouldn't an attorney use such a great tool that is available at the simple filing of a motion?

Copyright (c) 2010, Law Office of Roger P. Foley

Law Updates for October 29, 2010

R.O., 35 FLW 2320, 3rd DCA, Possession of Cocaine - Trial judge departed from neutral arbiter and became advocate for prosecution when he questioned juvenile regarding his possession of cocaine after defense counsel completed his direct examination of juvenile without questioning juvenile regarding cocaine possession. Remand for new trial before a different judge

Fudge, 35 FLW 2322, 3rd DCA, Vindictiveness - Where state made the plea offer to dispose of all 3 cases with a sentence of twenty five years with mandatory ten on the condition the def would not appeal his conviction in a jury verdict case, and trial court sentenced him to life after def refused to give up right to appeal in jury verdict case. Sentence was vindictive.


The Law Offices of Roger P. Foley,P.A.

Law Updates for October 22, 2010

L.O., 35 FLW 2253, 4th DCA, Officer dispatched to armed robbery in progress by BOLO described suspects simply as two black males, one wearing a black shirt and shorts, and other wearing a black shirt and red pants. Did not have founded suspicion to detain juvenile, who was wearing long black shorts and a black shirt, and walking alone down the street in a black neighborhood in the middle of the afternoon, outside the perimeter of the crime scene. Juvenile not required to give his name since not lawfully detained. Error to deny JOA for Resisting Arrest without Violence.

Munoz, 35 FLW 2263, 3rd DCA, Self-defense - Trial court did not abuse discretion by prohibiting the defendant from introducing reputation evidence in the community for carrying firearms unless def could first demonstrate that, prior to the shooting, he was aware of victim reputation in the community for possessing firearms.



The Law Offices of Roger P. Foley,P.A.

Law Updates for October 15, 2010

Austin, 35 FLW 2205. 1st DCA. general behavior patterns of drug trafficking - The discovery of cocaine in rental vehicle was driven by defendant and rented by wife. Error to allow highway trooper to testify that it was a practice of drug dealers to use vehicles rented in someone else's name to transport drugs. Error not harmless

Flores, 35 FLW 2209, 3rd DCA, Six year cap for VOP/VCC does not apply even when new charges are dismissed or nolle prossed - Conviction in the new case need not precede sentencing on the
probation violation as long as the court determining the violation has sufficient evidence that def committed the new offense, 4th DCA language cited in this opinion according to the 3rd DCA is dicta. see Rogers, 972/1017(4th DCA 2008)


The Law Offices of Roger P. Foley,P.A.

Law Updates for October 8, 2010

McFadden, 35 FLW 556, Fla, Discovery, oral or unrecorded witness statements - State is not required to disclose to def an oral, unrecorded witness statement if that statement does not materially change a prior recorded statement previously provided to the def by the state. Here the oral statement occurred before the def's sister made any recorded case related statements.

K.J.F., 35 FLW 2170, 1st DCA, A juvenile who has committed a qualifying offense does not qualify a as a sex offender where adjudication of delinquency has been withheld.

Bruce, 35 FLW 2185. 5th DCA, Similar Fact Evidence - In sex battery case, trial court did not err in admitting evidence of def prior sexual battery of a different victim. The evidence demonstrated a clear pattern of conduct, and was relevant to corroborate the victim's testimony and rebut def's claim of fabrication.

Jimenez, 35 FLW 2186, 5th DCA, Def is not entitled to be discharged pursuant to 3.191 when the state filed an information within the speedy trial period, but does not notify the def until after the speedy trial period expires. CONFLICT CERTIFIED, cites other case.


The Law Offices of Roger P. Foley,P.A.

Law Updates for October 1, 2010

Wilson, 35 FLW 2116, 4th DCA, Hearsay exception: Former testimony of unavailable witness - No abuse of discretion in ruling the def failed to establish unavailability of witness under 90.804 so that witness testimony at original trial could be used at the second trial where, although witness was demonstrably unavailable as a witness, def did not subpoena the witness for the second trial and simply told him where to appear and relied on oral promise that the witness would be there, although similar promise had been broken before.

Hicks, 35 FLW 2118, 4th DCA, Discovery violation: Richardson hearing not conducted. Error where it failed to list detective as a witness to a particular statement until the day of trial, error not harmless where the def was alibi and mistaken ID and this detective testimony contradicted the testimony of three alibi witnesses.



The Law Offices of Roger P. Foley,P.A.

Law Updates for September 24, 2010

J.M.P., 35 FLW 2072, 4th DCA, error to deny juvenile JOA for dismissal of the charge, which was based on juvenile bringing a BB gun to school, where the state failed to present evidence that the BB gun at issue fit within the parameters of the statute which juvenile was charged with violating, 790.115(2).


The Law Offices of Roger P. Foley,P.A.