Ron DiMenna, founder of Ron Jon’s Surf Shop, was arrested for DUI in Merritt Island, Florida yesterday. He has been released from jail after posting a $5,500 bond. According to news reports, a concerned motorist reported a pickup truck weaving along the roadway. DiMenna was stopped while driving his pickup truck shortly thereafter. When the officer asked DiMenna to explain why he had an odor of alcoholic beverage emitting from his person, the officer claims DiMenna admitted, “I have had a couple.”
DiMenna was also charged with “Refusal to Submit to Testing” for refusing to take a breath test. As a result of his refusal, DiMenna is also facing a driver license suspension and an additional misdemeanor charge if this was his second or subsequent refusal.
Before I go any further, I must emphasize that these claims are merely allegations and that Ron DiMenna is innocent until proven guilty in a court of law.
As was mentioned above, police were called by a concerned motorist who observed a pickup truck weaving in traffic. The news is not reporting that the stopping officers made this observation themselves. That means, police may have stopped DiMenna’s truck because of the report to 911 and only because of the report to 911.
If that is the case, there are a number of questions that must be asked before this traffic stop can be declared lawful. Remember, if the stop was illegal, then any and all evidence discovered as a result must be suppressed by the judge. If suppressed, prosecutors will have no evidence to present at trial and will be forced to either drop the case entirely or enter into a favorable plea agreement with DiMenna. In cases like these, prosecutors will sometimes offer a reduced charge of Reckless Driving.
Regardless, when a concerned citizen reports possible criminal activity to 911, certain criteria must be met before a police officer may conduct a traffic stop on a particular vehicle. These concerns mainly surround the credibility of the person making the report and the credibility of the report itself. The law aims to protect citizens from unlawful detention while at the same time enabling law enforcement to act on tips from the public.
First and foremost, was the information about the weaving truck made by an anonymous tipster? Or, in the alternative, did the caller identify themselves to the 911 operator?
Second, was the report detailed and specific or was it general in nature? Did the report specifically describe DiMenna’s truck in regards to color, age, make, model, license plate, or other unique features? Did the caller report the time and specific location of his/her observations? Did he/she report what direction the truck was headed? Did the report contain a detailed description of the observed driving pattern?
Anonymous tips that are general in nature do not give police enough legal ground to initiate a traffic stop on a particular vehicle, unless they make their own independent observations that support an investigatory stop. For example, if the officers drove to the area in question and then observed Ron DiMenna’s truck driving in a manner that led them suspect that he was DUI, then they could make the stop no matter what the concerned citizen reported or didn’t report.
Additionally, if the report contained sufficient detail, the police officer’s suspicion that DiMenna’s particular truck was the one reported by the caller, may be a reasonable. If that is the case, the investigatory traffic stop may have been lawful.
To use this defense, Ron DiMenna’s criminal defense lawyer will need to conduct a very thorough investigation that includes obtaining the 911 call recordings and the radio transmission tapes from the patrol officers. By obtaining this information, defense lawyers will be able to prove unequivocally whether or not the report was detailed enough to justify the stop of DiMenna’s truck and not some other truck.
Once this information is obtained and DiMenna’s criminal defense lawyer has had a chance to review all the relevant police reports in detail, the officers and all the witnesses must be subjected to depositions.
This is probably the most important aspect of DiMenna’s case. If a motion to suppress can be granted for this reason, it will eviscerate the prosecution’s ability to proceed with their case.
As police write in every single DUI arrest report I have ever read, DiMenna was observed to have a flushed face, slurred speech, and a slow and lethargic demeanor. I wish they would at least change up the language in these reports, just once!
Regardless, I think this officer’s description of DiMenna’s demeanor is suspect since cops claim they found a half-empty bottle of Four Loko in DiMenna’s truck. Whether Ron was impaired or not is yet to be seen, but I am sure he was anything but lethargic.
I mention this, because an accurate description of DiMenna’s physical condition is absolutely necessary for a jury to determine if DiMenna committed the crime of DUI. Proving that he had an alcoholic beverage in the truck is not enough, even if he admitted to drinking it.
While it may be wrong to drink and drive, it is not a DUI unless you are impaired or you have a blood alcohol content of 0.08 or more. While this distinction may be offensive to some people who are extra careful and responsible when they drink, it is a distinction that is written into Florida Law.
By definition, DUI means to drive/operate a motor vehicle while one’s normal faculties are impaired by alcohol, drugs, a controlled substance, or a chemical substance or with a blood alcohol level of 0.08 or more.
Again, I am NOT advocating drinking and driving. It is idiotic, dangerous and should not be done. However, under Florida Law, unless a person is impaired or is 0.08 or more while driving, they are not guilty of DUI.
When a DUI case is presented to a jury, the defendant’s physical demeanor is one of the main things analyzed when determining guilt. Generally speaking, prosecutors try to convince juries that DUI defendants are guilty by directing the jury’s attention to any “signs of impairment” that were exhibited on the scene of the traffic stop.
Signs of impairment include slurred speech, red, blood shot, watery eyes, poor decision making, emotional outbursts, crying one minute, laughing in the other, inability to walk, stand, maintain one’s balance, belligerent or violent behavior, etc.
If the police officer used a cookie cutter description of DiMenna’s physical demeanor, then his entire report becomes suspect. If one part is cookie cutter, how do we know the other parts aren’t as well? Where do we draw the line about what is accurate and what is exaggerated? Juries cannot guess for themselves and will need to discount this officer’s entire testimony.
Ultimately, DiMenna’s criminal defense lawyer will need to do depositions and get the police officers and any other witness to commit to a certain version of events. By comparing those statements to the police reports, 911 call, and radio transmission tapes, a good defense lawyer may be able to develop a winning defense.
Hopefully, DiMenna will hire a criminal defense attorney who is diligent and knows what he/she is doing. To win cases like these, a lot of intelligent, hard work is needed.