DUI is not worth the crime
Criminal law — Driving under influence — Search and seizure — Blood draw — Search warrant used to obtain defendant’s blood was not issued or executed in manner which was violative of Florida’s search warrant statute as set forth in Chapter 933 — Blood is property which, when infused with excessive or unlawful amount of alcohol, is properly characterized as the means by which the offense of DUI is committed — Implied consent law is not sole statutory authority for obtaining blood draws in DUI cases — Moreover, implied consent law applies only in situations in which there is no search warrant — Because blood was seized pursuant to lawful search warrant, it was error to grant motion to suppress blood test results — However, because blood sample was obtained outside procedures set forth in implied consent law, state will be required to lay traditional scientific predicate for admission of blood test results and will not be afforded presumptions of impairment set forth in section 316.1934(2)
VIEW OPINION
Criminal law — Driving under influence — Evidence — Videotape — Violation of mandatory videotaping policy — Officer’s pattern of selectively audiotaping defendants in DUI cases by muting of body microphone while speaking with fellow officer and turning microphone on while speaking with defendants in violation of police department’s mandatory videotaping policy constitutes bad faith and violated defendant’s due process rights — DUI charge is dismissed with prejudice
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Criminal law — Solicitation of prostitution — Jury instructions — Entrapment — Alleged error in failing to give jury instruction on entrapment was not preserved for appeal where defense counsel clearly and unequivocally stated that she did not object to jury instructions which did not contain instruction on entrapment — Had issue been properly preserved, failure to give instruction was not error where there was no evidence that suggested possibility of entrapment — Evidence — Character — No abuse of discretion in refusing to allow testimony of proposed character witnesses who would testify about defendant’s lack of predisposition to solicit prostitute — Predisposition to solicit prostitute is not character trait — Moreover, defendant did not offer any evidence that he was induced by government agent to commit solicitation
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Insurance — Declaratory judgment — Medical provider need not seek monetary damages in order to pursue declaratory relief as to amount of benefits recoverable
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Insurance — Homeowners — Venue — Government agency — Home venue privilege applies to homeowners’ claims against Citizens Property Insurance Corporation for breach of contract and unjust enrichment, damages, and equitable relief — Citizens did not waive venue privilege by failing to assert it in other cases — Sword-wielder exception does not apply to case in which Citizens is simply a passive defendant — Motion to transfer venue to county in which Citizens is headquartered is granted
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Insurance — Personal injury protection — Coverage — Magnetic resonance imaging — Insurers are not authorized by section 627.736(5)(a)2.f., 3 or 4 to cap amount of PIP benefits paid for MRI services provided in non-emergency, non-hospital setting by applying Medicare hospital outpatient prospective payment system or any other Medicare restriction or limitations not specified in subsections of PIP statute
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Insurance — Personal injury protection — Evidence — CPT code manual and CPT assistant publication are both admissible through judicial notice, but effect of CPT assistant is not binding — Physician testimony is relevant to determination of whether CPT coding is applicable to tests billed
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Insurance — Personal injury protection — Delay in payment — Request for information or documentation — Sufficiency — Non-specific statement printed on each explanation of benefits inviting medical provider to submit whatever documentation or information provider would guess is necessary in response to insurer’s rejection of claim was insufficient to demand additional documentation needed to process claim and toll time for payment of claim
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Insurance — Personal injury protection — Coverage — Medical expenses — CPT codes — Neuromuscular reeducation — Unbundling — Insurer cannot deny payment for CPT code for neuromuscular reeducation recognizable under Medicare Part B fee schedule on grounds that Medicare’s National Correct Coding Initiative provides that neuromuscular reeducation code cannot be billed on same day as another code billed by medical provider where insurer did not assert affirmative defense of unbundling, and PIP statute forbids insurer from applying utilization limits — No merit to argument that NCCI is payment limitation rather than utilization limitation
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Licensing — Driver’s license — Revocation — Third DUI conviction — County court’s imposition of five-year license suspension when sentencing licensee for third DUI did not prevent Department of Highway Safety and Motor Vehicles from imposing ten-year license revocation — Predicate convictions — Out-of-state conviction — Department did not err in counting New York conviction for driving while ability impaired as predicate conviction
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Licensing — Driver’s license — Suspension — Driving under influence — Breath test — Substantial compliance with administrative rules — Twenty-minute observation period — Observation period began at same time as arrest at scene of traffic stop, observation occurring in part during arrest and transportation of defendant did not satisfy 20-minute observation period requirement — License suspension vacated
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Licensing — Driver’s license — Suspension — Refusal to submit to breath test — Officer acting outside jurisdiction — Issue of whether request for breath test and licensee’s refusal of request occurred outside jurisdiction of city police officer, who arrested licensee within city and transported him to county testing facility outside city, is immaterial in administrative license suspension case — Implied consent warning — No merit to claim that implied consent warning read to licensee was improper where warning read by officer requested breath, blood or urine tests in alternative, and there is no evidence that urine or blood test was specifically requested
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Licensing — Driver’s license — Suspension — Refusal to submit to breath test — Hearing — Failure of subpoenaed witness to appear — Refusal of sheriff’s office to accept subpoena for breath test technician and hearing officer’s refusal to continue hearing with temporary driving permit due to nonappearance of technician denied licensee due process where technician could testify as to how notation “not a refusal” came to be on breath test affidavits and meaning of notation — Due to arbitrary actions of sheriff’s office and hearing officer and delay in court reaching decision, court elects to quash license suspension rather than remand to reset balance of hearing
VIEW OPINION
Licensing — Driver’s license — Suspension — Driving under influence — Lawfulness of stop and arrest — Where licensee, who was found slumped behind wheel, became combative with rescue personnel and tried to drive away, legitimate concern for safety of motoring public justified detention of licensee by officer who opened vehicle door and turned ignition off — Hearing — Refusal to issue subpoenas — Licensee was not denied due process by hearing officer’s refusal to issue subpoena for officer who was expected to testify that licensee was misinformed regarding her eligibility for work permit if she refused breath test because licensee’s confusion about eligibility for permit is irrelevant to determination of whether licensee’s license was lawfully suspended based on breath test results