News: Latest News
2008-03-18
Appeals Court Criticizes Polk Judges
Lakeland LedgerAn appeals court ruling involving a man jailed on a drunken driving charge after a Breathalyzer test registered 0.00 could change the way police in Polk County document evidence in some DUI cases.
The ruling criticized the way Polk County judges sometimes review cases when a DUI defendant makes his or her first court appearance after their arrest. The DCA ruling said the judge who reviewed Stephen Gould's arrest incorrectly found that probable cause existed to proceed with a DUI charge.
Gould's car had crashed into the back of another vehicle and Lakeland police officers investigating the accident gave him a Breathalyzer test, which showed no alcohol use. Gould told officers he had taken the drug Xanax and he was charged with driving under the influence.
The only evidence submitted to the judge at Gould's first court hearing was a traffic citation filled out by police that checked a box indicating that Gould was intoxicated. No supporting evidence accompanied the citation.
The three-judge DCA panel ruled this month that wasn't enough to show probable cause existed to arrest Gould.
"By itself, the uniform traffic citation does not constitute evidence," DCA Judge Douglas Wallace wrote. "Thus it is ironic that at least some of the county judges in the Tenth Judicial Circuit regularly do what those same judges instruct jurors that they cannot do - rely on the charging document alone as evidence of guilt."
Richard Blank, an assistant public defender who helped with Gould's appeal, said he thinks the ruling will lead to more-detailed reports by Polk County law enforcement officers when a person accused of drunken driving refuses a test or registers 0.00 on a Breathalyzer, Blank said.
"If someone doesn't have alcohol in their system and (police) think they are still DUI, they will have to write up an affidavit," Blank said.
Gould's case has already been in the spotlight.
After his arrest on May 29 his dog, White Cloud, a 10-year-old white German shepherd, was seized by county animal service workers and taken to the pound.
Gould spent nearly a month in the jail until Todd Dinkins, who owns a Bartow bail bond company, read a Ledger story about the case and posted $200 to bail him out on June 23. White Cloud was released from animal control and, as the DCA ruling notes, Gould "and White Cloud enjoyed a happy reunion."
Gould, of Palm Beach Gardens, had been held in the Polk County Jail after the crash on U.S. 98 South in Lakeland. He has herniated disks in his back and had a prescription for Xanax, a medication to relieve anxiety that can cause drowsiness or impaired coordination. Gould has said he took one pill in the morning and two right after the accident because he was upset.
The traffic citation filled out by Lakeland police indicated that a nonfatal crash occurred involving no injuries and an estimated $2,800 in damage. The traffic citation reviewed by a magistrate indicated that Gould had a "breath/blood/urine alcohol level" of 0.00.
"Mr. Gould's attorney pointed out that there was no narrative indicating "what was being done with the automobile - whether there was a smell of alcohol, bloodshot eyes or anything like that," the DCA ruling said.
The magistrate, who isn't identified in the DCA ruling, approved proceeding with the charge.
Tenth Judicial Circuit Chief Judge David Langford upheld the magistrate's ruling.
Blank and Assistant Public Defender Bob Connolly filed a petition with the 2nd DCA for a writ of habeas corpus for Gould's release, saying Tenth Circuit judges "routinely accept unsworn, conclusory uniform traffic citations from arresting officers to justify the arrest and continued detention" of DUI suspects. The DCA opinion said the state didn't dispute that assertion.
The appeals court filed its opinion Dec. 19. Although Gould had already been released from jail by that time, the court proceeded with a review of the case and said the issues raised were important or were likely to happen again. DCA judges Morris Silberman and Craig C. Villanti concurred in the opinion.
Langford said Thursday that he was aware of the appeals court ruling but declined comment.
Lakeland police spokesman Jack Gillen also declined comment, saying he has not seen the ruling or the ticket issued by the officer.
Gould could not be reached for comment.
The DCA decision won't affect Gould's DUI case, Blank said. A hearing in the case is scheduled for January.
http://www.theledger.com/article/20071228/NEWS/712280374/1134
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