St. Lucie County Judge Kathryn Nelson could have been forced to give blood for DUI testing if she had been arrested here in late 2009.

At the time Vero Beach Police was one of the law enforcement agencies in Florida using court-approved search warrants to take blood samples in cases in which defendants refused to undergo alcohol testing.

On Tuesday evening Nelson, 52, was charged with DUI while driving on State Road 60 at the Merrill P. Barber Bridge. According to a police report, her eyes appeared glassy and bloodshot. Her breath smelled of alcohol. On her skirt was a material that looked like vomit, according to reports.

Nelson refused to get out of her vehicle. One police officer pulled her fingers off the steering wheel and two others removed her from the car, police said.

She declined both field sobriety tests and a blood-alcohol test, said Police Chief Donald Dappen.

But police no longer use warrants to take blood samples, Dappen said, because Florida’s 5th District Court of Appeal, in Daytona Beach, in May ruled that blood can’t be seized as evidence of committing a crime, court records show.

The ruling is on appeal to the Florida Supreme Court. And until the Supreme Court rules, Dappen said his agency will not get search warrants to locally combat the problem of people refusing a breath test when stopped on suspicion of driving drunk.

The police’s use of search warrants was backed by the State Attorney’s Office. And, “We will support them again if they become legal (through a Supreme Court ruling),” said Assistant State Attorney Chris Taylor.

Taylor declined to comment on particular DUI cases, including Nelson.

State Attorney Bruce Colton is asking Gov. Rick Scott’s office to assign her case to another judicial circuit. Before being appointed a judge in 2005, Nelson spent 15 years as an assistant state attorney with Colton’s office.

Don’t expect blood samples to be ruled out in your DUI case without the help of a Daytona Beach DUI attorney at Musca Law. To discuss your case, confidentially, call 386-341-9882 right now.

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A Southwest Florida judge will hear arguments by the end of the year on whether Florida’s DUI law should be stricken as unconstitutional.

The judge’s decision could affect more than 400 pending DUI cases in Collier, 1,400 in Lee and thousands throughout the state.

The law should be thrown out because it violates clients’ rights by denying them access to information on breath machines that have been instrumental in thousands of drunken driving convictions over the years.

“They’re convicting people on instruments we’re not allowed to know anything about,” said a Florida attorney said, who represents a Naples man charged with DUI in October 2010. He for years has raised other legal arguments challenging breath testing machines and how the tests are conducted.

Case reversals would not be automatic because the appeals process could take years. And there is a possibility the law could be amended by then.

The breath test machines in use across Florida have come under increasing fire from defense lawyers who were successful last month in persuading a judge to rule a machine in Sarasota County was unreliable. The judge ordered prosecutors to send letters about the problem to dozens of DUI defendants who were tested on the machine at the Venice jail.

He said he’s incorporating this issue into his argument to toss out the DUI law. “This illustrates our argument that we have a malfunctioning machine and we’re not allowed to find out how it works. It couldn’t have made this case for me any better,” he said.

During the Dec. 1 hearing, he said Collier County Judge Vincent Murphy is scheduled to consider the constitutionality issue and also his request to order the state and manufacturer to turn over records about the breath machine issues in Sarasota County.

An expert hired in the Venice cases to analyze the state’s data on Florida’s 400 breath test machines — known as the Intoxilyzer 8000 — said a lack of information about how the machine works hurts defendants and their attorneys.

“We don’t allow secret science in any area of the law except for DUI prosecutions,” said Thomas E. Workman, an attorney, data expert and law professor at the University of Massachusetts at Dartmouth.

In DUI cases, defendants face penalties including loss of drivers licenses, fines, probation and jail time.

Refusing to take a breath test results in a license suspension.

“I really don’t think it’s too much to ask for this information. I can’t think of any good reason why this stuff should be a secret,” Workman said.

Analyzing the Florida Department of Law Enforcement’s data on the machines, Workman said he found 40 percent of them were not properly calibrated when agency inspectors checked them after the problems surfaced in January.

The problem was measuring the amount of air blown into them by DUI suspects.

An average person has a lung capacity of less than 5 liters. More than 1.1 liters is needed for the machine to properly analyze air to determine the amount of alcohol in a person’s body, Workman said.

However, the Intoxilyzer in the Venice jail recorded more than 12 liters for one DUI defendant, Workman said.

“That’s just not possible,” he said.

A machine analyzed at the Collier County Jail recorded more than 11 liters for a woman charged with DUI in June 2010, said Robert H.

However, this went unnoticed by the woman and her attorney. She pleaded no contest, was fined and put on probation.

That machine in Collier was recalibrated in June.

The machines in the Collier jail are routinely inspected by the state and the manufacturer, said sheriff’s spokeswoman Michelle Batten.

“Each time they are challenged by a DUI defense team, we are and have always been ruled to be in compliance,” she said.

He said he has not obtained records on the volume of air his client, Matthew Lund, 36, blew into a breath machine at the jail. The machine recorded alcohol levels of .131 and .116 — over the legal limit of .08.

Robert said no problems were found with the breath machines in Lee County.

Officials for Intoxilyzer manufacturer CMI Inc. could not be reached for comment.
However, “we stand by the integrity of these instruments,” said FDLE spokeswoman Heather Smith. She said two measurements are always taken to ensure accurate results.

The amount of air, Smith said, doesn’t affect the results as long as at least 1.1 liters are recorded to get an accurate measurement.

But she said FDLE is recalibrating the machines as a quality control measure.

For help with your DUI legal matters, contact Musca Law’s Daytona Beach DUI attorney right now.

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Detectives in Daytona Beach have been going door-to-door on Monday, arresting individuals they said have been dealing drugs. Daytona Beach police launched a two-month investigation called Operation Rapture.

Detectives said it’s part of an operation to get the criminals off the street after several residents complained about illegal activity in their neighborhoods. WFTV learned that agents have arrested 11 people so far on Monday.

Daytona Beach police set up their command post around residential neighborhoods, and they said they are still searching for 25 more suspects.

Willie West’s son hugged him and cried as police officers dragged West off to jail. He is accused of selling marijuana to undercover agents.

Officers said it was not uncommon for dealers to sell drugs around their children.

“My heart goes out to them,” said Norma Bland, a resident.

Bland lives on Derbyshire Road where she said residents called in tips to officers because they were fed up with the crime.

“The intelligence that is gathered comes from people in this community. Seniors who are retired can’t walk out of their homes, they can’t sit on their porch, they can’t go to the grocery store,” said Bland.

One after another, police handcuffed and loaded the suspects into a van. Thirty-six warrants were issued. Agents said the dealers sold them marijuana and cocaine.

Bland said she hopes this operation sends a message to other criminals that residents aren’t going to tolerate crime in their neighborhoods.

“The taxpayers are the ones that are really getting tired of this activity,” said Bland.

Officers said they will continue to look for the remaining suspects.

It’s important to remember, if you are caught with drugs in your car, police can charged you with DUI. At that point, it’s vital that you contact a Daytona Beach DUI attorney at Musca Law.

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A Port Orange man faces manslaughter charges after a wreck in New Smyrna Beach earlier this year killed two people riding a motorcycle.

Roger G., 49, was arrested and charged Thursday with two counts of DUI manslaughter.

Authorities say Roger was intoxicated at more than twice the state’s limit for driving when the wreck occurred in February at State Road 44 and Interstate 95, according to an arrest affidavit from the New Smyrna Beach Police Department.

Police believe the motorcycle, driven by Gregory S., was traveling in the left lane on S.R. 44 when Roger tried to turn left onto I-95 but instead struck the motorcycle.

Gregory and passenger Nina H. were both ejected. Gregory died at the scene and Nina died at Halifax Health Medical Center in Daytona Beach a few days later. Blood samples taken at the scene from Roger show his blood alcohol level was 0.164. Florida’s law states 0.08 is too drunk to drive.

Roger was taken to the Volusia County Branch Jail on Thursday and released after posting $100,000 bail.

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Sipping the occasional glass of wine may seem relatively harmless, and could even be beneficial to the drinker’s health. But for parents, even moderate drinking can result in one unintended consequence: an increased risk their children will drive under the influence as adults.

Writing in the current issue of the journal Accident Analysis and Prevention, University of Florida researchers found that about 6 percent of adolescents whose parents drank even sporadically reported driving under the influence at age 21, compared with just 2 percent of those whose parents did not imbibe.

“The main idea is that parents’ alcohol use has an effect on their kids’ behavior,” said Mildred Maldonado-Molina, an associate professor of health outcomes and policy with the UF College of Medicine and the lead author of the paper. “It’s important for parents to know that their behavior has an effect not only at that developmental age when their kids are adolescents, but also on their future behavior as young adults.”

It’s typical for parents to worry about the influence of their children’s friends and peers, and the study shows that peer behavior can have an effect, particularly on kids who aren’t exposed to alcohol at home. Having friends who drink alcohol was a risk factor for driving under the influence for teens whose parents did not drink. Also, kids whose parents and peers consumed alcoholic beverages were especially at risk for driving under the influence. About 11 percent of these teens reported driving under the influence in their 20s.

But when it comes to influence, parents seem to have more sway than they probably realize, Maldonado-Molina said. According to the study, if a teen’s parents were drinkers, what their peers did had less of an impact, though the relationship between peer and parental influence is complex, she said.

“I think it is really important to understand the influence of parents and peers,” said Tara Kelley-Baker, a senior research scientist at the Pacific Institute for Research and Evaluation who was not involved with the study. “Parents must understand the influence they have on their children. Some parents just assume they have lost their influence or that they never had it. Research has shown more and more that this is not the case.”

According to the National Highway Traffic Safety Administration, nearly 10,000 people die because of drunken driving each year.

For the study, UF researchers examined data from nearly 10,000 adolescents that was collected as part of the National Longitudinal Study of Adolescent Health. The study initially collected data from teens and their parents and then surveyed the children again seven years later.

The influence of peers and parents seemed to affect men and women the same way. The researchers found no significant difference in risk factors between the genders, a surprising discovery. Not as much is known about women and DUI because most studies look at official records and arrests and women are less likely to be charged with DUI than men, though the gap is closing, Maldonado-Molina said.

“Their risk factors are similar and that calls for attention when developing interventions and prevention efforts,” Maldonado-Molina says.

When it comes to curbing DUI, prevention efforts need to start before age 15 to help instill the consequences of getting behind the wheel after drinking alcohol, the researchers say. And education efforts need to include not only children, but their parents as well.

“The home is a really important source for these kids,” Maldonado-Molina said. “(Parents’) may not perceive their drinking as negative, but it influences what is acceptable behavior.”

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Public records indicate that former TNA Wrestling performer Shannon Claire Spruill (a/k/a Daffney was arrested for Driving under the influence last month in Florida.

Spruill was arrested at 8:51 p.m. on July 19 in Hillsborough. She was officially charged with Driving under the influence with property damage with bond set at $500.

Spruill, who last performed for TNA, parted ways with the organization on March 15 as her contract expired and not renewed. She subsequently announced that she had filed a workers’ compensation claim against TNA for injuries suffered while wrestling for the promotion.

As with anyone charged with DUI in Florida, Shannon has the right to fight this charge in court. She would be well advised in promptly contacting a Daytona Beach DUI attorney Musca Law.

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Smile when you walk along the Boardwalk — a police officer may be watching you.

Even sitting in a patrol car, 10 miles away.

The clutch of new cameras placed atop the Bandshell, Ocean Walk Shoppes buildings and on utility poles, have increased visibility of what’s happening there.

Red light cameras have reminded people how much more they are being recorded, but there are hundreds of other surveillance cameras in Volusia and Flagler counties doing most of the work, with one at nearly every intersection from Port Orange to Ormond Beach.

The technology is making the jobs of law enforcement and transportation officials easier. But its advancement also raises privacy concerns, especially with regard to what happens to the video after it is recorded. The American Civil Liberties Union of Florida suggests policies be put in place for the use of video cameras, including public input on who views the videos.

At City Hall in Daytona Beach last month, Police Chief Mike Chitwood showed off the new “state-of-the art” video surveillance system.

Although no one is assigned to view the cameras full time, the latest high definition technology allows police officers to see what’s going on — even from laptop computers in their patrol cars.

“With a flip of a switch, I can see the Boardwalk from Valor Boulevard (police headquarters),” Chitwood said, as a city employee showed how the computer could be moved in all directions. The camera allows someone to zoom in close, with the touch of a computer mouse. “This technology is unbelievable.”

The upgrade in the tourist area, Chitwood said, was pursued after a stabbing death of a girl during a fight near the Boardwalk in 2009. There were some stationary cameras in place then but the fight occurred just off camera.

“I’d like to get more,” he said. “It’s just finding a way to pay for them.” And, you know, the only way to do this would be by making more arrests.

If you’ve been charged with a crime in Daytona Beach or elsewhere in Volusia, it’s very important that you promptly contact a defense attorney, if you’d like to fight the charge(s). Call 386-341-9882 for a free consultation with an attorney at Musca Law now.

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The rate at which consumed alcohol finds its way into the blood stream. While alcohol sits in the stomach, its absorption is delayed. Absorption rate will be affected by how much was eaten, individual biologic differences, and what type of beverage was consumed. When drinking continues over a course of hours, both absorption and “burnoff” (metabolizing of alcohol) will be happening simultaneously.

If you’ve been charged with DUI in Volusia County, there is no certainty you’ll be convicted. Contact our Daytona Beach DUI lawyers at 386-341-9882 right now to discuss your legal options, free of charge. We have helped many people in a similar situation save their driver’s license and avoid being convicted.

An Orange County firefighter with an extensive disciplinary record has been fired after a DUI arrest, according to documents from Orange County Fire Rescue.

Matthew H., 25, of Winter Park, was arrested by the Daytona Beach Shores Department of Public Safety on July 10. His termination was effective Friday, according to a July 21 termination letter from the fire department.

Mathew reportedly drove into a parking lot behind the public safety department through an entrance marked “do not enter.” When a public safety officer stopped Mathew, the officer noticed that the firefighter-paramedic smelled strongly of alcohol, according to an arrest report.

Mathew, whose eyes were red and watery, and he said he had been looking for a place where he and his girlfriend could get married, according the report. He said he had pulled into the parking lot to rest.

When the officer asked Mathew to complete several exercises as part of a field sobriety test, he was unable to touch his finger to his nose, walk a straight line, lift one leg or say the alphabet. His scores on an alcohol-breath test were more than two times the state’s .08 legal limit for driving under the influence of alcohol.

He later admitted that he had spent the afternoon in a bar drinking, according to the letter. He was jailed for 24 hours.

The letter, signed by Assistant Chief Jeffrey Holton, notes that Mathew’s disciplinary file has included notations about tardiness, failure to complete several reports, a written reprimand about substandard work and a warning and suspension related to the loss of one of the department’s portable radios.

Mathew had been with the department since Oct. 2008.

It’s not common to be terminated from a job without actually being convicted of DUI, which is probably why the department stated Mathew’s termination was for unrelated reasons. However, usually someone charged with DUI has the chance to fight the charge in court, in order to save their job.

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Police hope you’ll want to pay for the chance to stare through the sights of a SWAT officer’s rifle, chase down bad guys and pick up prostitutes — in a sting, of course.

The Daytona Beach Police Department is taking its ride-along program to a new level, one that will put citizens in the front seats of squad cars and on the front lines of a cop’s beat.

A sign-up form sent out this week to local businesses comes with a flier selling the experience as a police fantasy camp for civilians.

“This ride-along isn’t just tooling around, eating doughnuts and writing parking tickets,” the flier reads. “The Daytona Beach Police Department Ride Along Program will allow citizens a chance to participate in the fascinating, complex and unpredictable nature of police work.”

The flier promises the chance to bust into homes with search warrant in hand, take on a K-9 in a bite suit, go undercover to nab unsuspecting hookers and get time with CSI investigators.

“Whether you choose to lock and load, cuff ‘em and stuff ‘em, or read ‘em their rights, you will get your money’s worth … ,” the flier reads.

But Chief Mike Chitwood played down the description, saying civilians will be given an in-depth perspective of day-to-day police activity as an observer. “You’re not going to be knocking down front doors,” Chitwood said. “But there’s always potential that something could happen.”

Four programs will be offered and the suggested donation is $250.

The two- to four-hour programs include firearms training, accompanying officers serving warrants, responding to dispatched calls and K-9 training.

The enhanced ride-along program being marketed to businesses in the city became available Friday but nobody had officially participated.

Because of the inherent risks involved with the program, participants must sign a waiver form. Applicants must also be at least 18 years old and mentally and physically able to respond if immediate dangers arise. Participants are subject to background checks.

Chitwood said 80 percent of the department’s budget is spent on personnel and very little is left over. He said the asking price for the donation is only a suggested amount.

“We’re trying to be creative to raise money,” Chitwood said. “We’re not strong-arming anybody.”

The proceeds from the ride-alongs will benefit the department’s Police Foundation, which was started five years ago. The foundation, which is an extension of the United Way of Volusia-Flagler Counties, helps pay for various items, including officer education. Currently, 60 officers are pursuing advanced degrees, said Bob Davis, chairman of the Police Foundation board.

The foundation also pays for advanced technology that benefits the department such as expedited DNA tests, which can cost $5,000 each, Chitwood said.

A drug dog was also recently purchased through the foundation.

Davis said the expanded program mirrors New York City’s Police Ride Along program. According to the agency’s website, more than 1,600 people rode with New York’s finest last year.

Davis said he believes the program will be a hit with the public.

“So many people want to learn about police and fire departments,” he said. “This will bring the community closer.”

Ray Salazar, president of the local United Way and a board member of the Police Foundation, said the ride-along program offers the chance to see Daytona Beach officers at their best.

“We don’t want the public to see the police department from the back of a squad car,” he said. “Any time law enforcement has a chance to educate the community, the community wins.”

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