Florida Judge Removal Sought in DUI Cases

Judge's Removal Sought in DUI Cases
Prosecutors claim Orange County Judge C. Jeffrey Arnold is unfair.

Veteran Orange County Judge C. Jeffrey Arnold has routinely advised defense attorneys how to get major evidence in their clients' DUI cases dismissed.

He also told those same attorneys to spread the word among their colleagues.

Now, the Orange-Osceola State Attorney's Office wants Arnold removed from six DUI cases and all future cases like it, arguing that the judge has made statements "which make the state believe that it cannot receive a fair hearing on these matters."

If the judge does not comply, the State Attorney's Office "will seek other appellant avenues for remedy," Randy Means, spokesman for State Attorney Lawson Lamar, said Thursday.

The dispute centers on a controversy over the breath-testing machine used by every law-enforcement agency in the state. Defense attorneys want to know exactly how the Intoxilyzer 5000 works -- its so-called source-code information. But the device's manufacturer, CMI Inc., has refused to give up the information, claiming it's a trade secret.

In courtroom recordings Arnold is heard advising attorneys for the defense and the prosecution on how he plans to rule on motions requesting the information. In order to save time and energy and to help manage his heavy caseload, Arnold said he will most likely grant motions to force the prosecution to produce the information.

When the state refuses, Arnold said he will then suppress Intoxilyzer information and not allow it at trial. He notes that the sanctions can be blamed on a third party: the manufacturer.

But in an interview late Thursday, Arnold said he is simply telling defense attorneys what they have a right to know. He said appellate-court decisions and other judges have established case law that entitles defendants to the source-code data.

In fact, several judges in Seminole County have thrown out hundreds of breath-alcohol readings over the same issue.

Without new arguments from the state -- which he is willing to hear -- the results of similar hearings before him would likely fall in favor of the defense, Arnold said.

Beyond that, Arnold noted that the lack of breath-test results doesn't mean the prosecution's case is dead.

"They can use the defendant's driving pattern, his appearance, his speech and his behavior at the scene," Arnold said.

Arnold added that prosecutors may also use field-sobriety-test results and testimony from witnesses.

Arnold said he probably will remove himself from the six cases cited by the State Attorney's Office but has no intentions of moving to another division or recusing himself from future DUI cases.

Ninth Judicial Circuit Chief Judge Belvin Perry was out of town Thursday. But according to court spokeswoman Karen Levey, Perry is not expected to reassign Arnold or prevent him from hearing DUI cases.

The motions signed Tuesday by Assistant State Attorney Erin DeYoung quote Arnold telling a defense lawyer that he is giving the advice "out of self defense" because he is trying to "recapture some of my time" and eliminate the need for time-consuming hearings.

During one proceeding, Arnold said, "The sanction will be to exclude the breath test, and it's out of there. We spend at most 15 minutes and very little money, time or effort.

"I don't have any interest wasting all my valuable hearing time on motions that we don't need to hear, so keep that idea in mind," Arnold told the attorneys.

The collection of Arnold's statements led DeYoung "to believe that the state of Florida cannot get a fair hearing in matters involved in DUI prosecution in front of Judge Arnold."

But Arnold said DeYoung wasn't even in his courtroom when he made the comments. And he maintained that his words were always spoken when defense attorneys and prosecutors were present.

"The [DeYoung] motion is the result of an incomplete and inaccurate investigation," Arnold said. "If she had completed her investigation, she would have found that these conversations were the subject matter of multiple discussions involving her staff and can be characterized as case management to resolve the backlog of pending DUI motions."

Stuart Hyman, a leading DUI defense attorney in Central Florida, said Arnold "is doing the right thing. He is doing docket control."

He added, "The definition of insanity is doing the same stupid thing over and over again."

"I think he was trying to save the public many, many days of litigation," Hyman said. "The state of Florida chose to do business with an entity that refuses to give up the information. If there's any blame in this thing, it's with the state of Florida for negotiating a contract with a company that won't give up the information."

SOURCE: http://www.orlandosentinel.com/