Blogs from January, 2014

Written By Orlando Criminal Defense Attorney Lyle B. Mazin

At this point everyone knows Justin Bieber was arrested on January 23, 2014 in Miami. So what actually happened and what is likely going to happen to the Bieber.

What Happened to Bieber

According to the police report, Bieber was arrested for the following charges:

1) Driving Under the Influence

2) Resisting Arrest without Violence

3) Driving on an Expired Driver License

Read the actual Arrest Affidavit by clicking HERE

The arrest affidavit states, in short, that Bieber appeared to be drag racing his vehicle. His yellow Lamborghini was speeding along side a red Lamborghini at 55-60 MPH in a 30 MPH Zone. An officer pulled Bieber over. Upon making contact with Bieber he noticed Bieber had the smell of alcohol emanating from his breath, bloodshot eyes, slow deliberate movements and a stupor look on his face. The Officer ordered Bieber to exit the vehicle. Bieber, using foul language such as "why the fuck are you doing this?" and "what the fuck did I do", continuously asked why he was being detained. As Bieber exited the vehicle he kept going into his pants pocket. The officer ordered Bieber to face away from him and place his hands on his vehicle so that he may, for officer safety, do a pat-down for weapons or contraband. Bieber continued to use foul language and would take his hands off of the vehicle to turn around and say things to the officer such as "I ain't got no fucking weapons, why do you have to search me." The officer advised Bieber if he continued to take his hands off the vehicle he would be arrested. Bieber continued and the officer arrested him. While placing him in handcuffs Bieber resisted by pulling his right hand away. Bieber was arrested and taken to the police station where he was asked to perform Field Sobriety Exercises. Bieber did not perform the exercises to standard. He took a breath test and a drug evaluation.

According to the Miami Herald and CBS Miami his Breath results were .014 and .011. No report has been generated yet for his drug evaluation results.

What Will Likely Happen to Bieber

Bieber Will Not Be Deported

Canada can have the Royal Canadian Mounted Police stand down. It is highly unlikely Bieber will be deported. In 2004, in the case of Leocal v. Ashcroft (click HERE to read the case), the United States Supreme Court ruled that DUI's are not deportable offenses. Further, only under extraordinary circumstances and the showing that the crime was one of moral turpitude would a person be deported for the crime of Resisting Arrest Without Violence. Finally, the United States does not initiate deportation proceedings for the crime of Driving With an Expired Driver License.

Most importantly, all the charges against Bieber will likely end in a dismissal or acquittal.

Resisting Arrest Without Violence Charge

First off, it is not exactly clear which of Bieber's actions resulted in his arrest for Resisting Without Violence. If his charge stems from the taking of his hands off the car and using profanity during the officers attempt to do a pat-down for weapons and contraband then that charge won't hold up against a stiff wind. In order to be arrested for Resisting Arrest Without Violence an officer must be engaged in a lawful duty. The officer was NOT lawful in his attempt to pat-down Bieber. The Third District Court of Appeal, which is the appeals court for Miami-Dade County, has held that an officer must have reasonable suspicion for believing a suspect is armed with a dangerous weapon before he may pat-down the individual for officer safety. In the case of State v Herron (Click HERE to read the case), the court held that a person acting excruciatingly nervous and fidgety is insufficient to justify a pat-down without the officer being able to further articulate why he believes the suspect is armed with a dangerous weapon. It can be argued that Bieber sticking his hands in his pocket is concerning but it fails to articulate why he is believed to be armed. Further, recall the officer stated Bieber was acting "slow and deliberate" (standard law enforcement jargon used to substantiate why they believe a person is under the influence of alcohol) and not violently or erratically. The officer can't have it both ways. He was not making threats but rather voicing a very legitimate question "I ain't got no fucking weapons, why do you have to search me." If it is the profanity that disturbed the officer then he should refer to the First Amendment.

If he was being arrested because he was resisting the pat-down then his subsequent resisting of pulling his arm away was lawful in that the officers attempt to arrest him was unlawful (see above) and a person may resist an unlawful arrest without violence.

It is also important to note that Bieber is not under arrest for anything else at this time. The Officer stated in his sworn affidavit that he advised Bieber that if he continued to take his hands off of the vehicle he "would be subject to arrest." The only logical conclusion that can be drawn is that he was not under arrest at the time. Remember, at this point the officer only had suspicion Bieber was driving under the influence and had not yet established probable cause to arrest him. Bieber was never charged with Drag Racing and the fact he was driving on an expired license was only learned after his arrest.

Additionally, should this charge survive dismissal and be given to a jury to decide, Bieber's attorney would adamantly argue that his act of pulling away his arm as he was cuffed was not intentional but merely a natural reflex of a person being ambushed by handcuffs. Bieber's Attorney, Roy Black, Esq., is an exceptional attorney (I know this because I once served as his research assistant) and I am confident he will hammer that point home to any potential jury.

Finally, the Miami-Dade Office of The State Attorney offers a diversion program for this charge. Bieber could always opt not to contest the charge and participate in a diversion program which if successfully completed would result in the charge being dismissed.

Driving Under The Influence

The defenses to Driving Under The Influence are extremely vast and I could proceed to write a book as to Bieber's potential defenses. That said, I will proceed as if this charge advanced directly to trial and attempt to focus on the fundamental or obvious weaknesses in the prosecution's case against him.

There is one thing that every bar in America has and that is parking lot. It is not illegal to drink and drive. It is illegal to drive when you are impaired by alcohol or drugs. The officer suspected that Bieber was impaired because he had bloodshot eyes, slow movements, a stupor look on his face and the odor of alcohol emanating from his breath. Later law enforcement observed Bieber perform field sobriety exercises below standard and ultimately blow a .014 and .011. Lets dissect this:

• Blood shot eyes and Slow Movements: Bieber was pulled over at 4am. His bloodshot eyes, were likely due to the fact it was... 4am. The same logical theory applies to his slow movements. At 4am a person is tired and their body begins to slow and show the signs of exhaustion.

• Stupor look on his face: Observe Bieber's Mug shot (see below). That is the best representation of his appearance on the night of his arrest. There is no "stupor" look on his face. He looks just like he always looks.. Somewhere between stupid and super.

• Alcohol emanating from his breath: There is a funny thing about evidence. If you gather enough of it, it starts to contradict itself. The officer submits that he smelt the odor of alcohol emanating from Bieber's mouth. (Note: He specifically states mouth because he has been trained to articulate it is from the mouth. The alcohol smell cannot be observed as coming from a suspects clothing as the law is concerned with the alcohol in the suspect and not on him). At the end of the day Bieber blew as low as a .011. Unless the officer was trying to kiss the Bieber, he would have had a better chance of smelling the odor of alcohol from the bar across the street than from Bieber's mouth.

• Performed Field Sobriety Exercises Below Standard: Note that these are not called "tests" but rather exercises. They are only indicators of impairment and only as reliable as the officer's subjective observations. As we already discussed above, in reference to the smell of alcohol from Bieber's breath, the officer's observations in this case are not very reliable. Further, Bieber was not given an opportunity to perform these exercises prior to being arrested. Rather, he performed these exercises under the added exhaustion and stress of having already been arrested, placed in handcuffs and transported to the police station. Under all this stress, in addition to being 4am, it's understandable he didn't stand on one leg very well. Further, that's only assuming we accept the officer's observation as fact and subjectively correct. Most importantly, the ability to stand on one leg or count backwards isn't exactly the best indicator of a person's ability to operate a motor vehicle. The best indicator of a person's ability to operate a vehicle is the person's driving pattern. That said, Bieber never hit anyone or anything. There were no observations that he failed to identify a stop sign or red light. When the officer attempted to pull him over he did so without incident. He did not hit a curb or fumble his keys. He placed the car in park without issue and followed the officers instructions to exit the vehicle. Bieber was speeding but that simply means one thing.... he was speeding. People speed sober. In fact, Bieber was clearly alert and oriented as he was coherent and wise enough to understand his constitutional right to remain free from an unlawful search was being violated. His comprehension and alertness was evidenced by the fact he continuously questioned the officer as to why he was attempting to conduct and unlawful search.

• Blew a .014 and ,011: At the end of the day the most reliable piece of evidence is the breath test results. It's scientific. The officers were determined to prove Bieber was Driving Under the Influence and there was nothing Bieber could do to convince them otherwise. Except one thing, embrace science. When asked to submit to a breath test he did so. The results were conclusive: Justin Bieber was not under the influence of alcohol. In the State of Florida an adult is considered to be impaired with a BAC of .08 or higher. For individuals under the age of 21 the legal limit is .02. Being 19 years of age, Bieber blew half the legal limit for his age group and 1/8 the legal limit should he have been over the age of 21. That said, the officers still pushed on in their pursuit to find evidence of wrongdoing and requested a drug evaluation.

• Drug Evaluation: The results of the drug evaluation are unknown and let's hope they ultimately indicate negative for the presence of drugs. Should the results indicate positive for the presence of drugs I will discuss the ramifications in greater detail at that time. However, just to set a general precedence: Even if the urine should indicate the presence of drugs, most experts will opine that urine is merely conclusive that drugs "were" used by the defendant but are not conclusive as to "when," or more specifically, if the defendant was under the influence of a drug at the time of the incident. For example, Cocaine. When urine samples indicate the presence of cocaine they generally include the two byproducts of cocaine which are Benzoylecgonine and Cocaethylene. These two byproducts will potentially be present in a subject's urine even if the subject has not used cocaine for hours or even days. More accurately indicative of recent use of cocaine is when cocaine itself is found in the urine in addition to its broken down byproducts. However, experts will testify that even the presence of cocaine is not conclusive as to its current effect on the user as urine contains waste product and not necessarily substances which are currently active in the subjects blood stream.

Finally, as with the previous charge, the Miami-Dade Office of The State Attorney offers a diversion program for DUI. Bieber could always opt not to contest the charge and participate in a diversion program which if successfully completed would result in the charge being dismissed

Driving With An Expired Driver License

This final charge is not much of a concern for Bieber. First, often this charge is the result of an oversight by Law Enforcement. Many times a Defendant's driver license is expired in one state but he holds a valid license in another state. For instance, Bieber's incense was expired in Georgia but could have an active license in another state or even have a valid Canadian Driver License. Additionally, the Office of the State Attorney routinely agrees to dismiss the charge if a defendant obtains and presents a valid driver license. As a last resort Bieber could always simply enter a plea of no contest to this charge and receive a nominal fine.

Conclusion

Bieber fans can rejoice as whether it be through pre-trial motions, trial or a diversion program, Justin Bieber will ultimately return unscathed by this incident.. That said, Bieber still does have to face his issues in California and it appears they take egging houses very seriously over there.