During the stop, troopers also searched passenger Armonty Bryant and found that he possessed the prescription drug Adderall.  Bryant was unable to produce a valid prescription for the Adderall.

Operating a Vehicle While Impaired (OVI)/ Driving Under the Influence (DUI)

In Florida, there are dual theories of prosecution for DUI:

1. driving or in actual physical control of a vehicle within this state;

2. while under the influence of alcohol or a chemical or controlledsubstance;

3. to the extent that his normal faculties were impaired

OR

4. with a blood alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood or a breath alcohol level of .08 or more grams of alcohol per 210 liters of breath

Actual Physical ControlActual Physical Control (APC) “means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether or not he is actually operating the vehicle at the time.”  A vehicle is any device, in, upon, or by which any person or property is, or may be, transported or drawn upon a highway except devices used exclusively upon stationary rails or tracks.  See Fla. Stat. § 316.003(75).  Any amount of alcohol may cause a defendant to be under the influence and affect his normal faculties.  Normal Faculties include, but are not limited to, the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and, in general, normally perform the many mental and physical acts of daily lives.  See Fla. Stat. § 316.1934(1).

Depending on one’s driving history, the penalties for a DUI vary as follows:

First DUI Conviction:

• Fine: Not less than $500, or more than $1,000. With Blood/Breath Alcohol Level (BAL) of .15 or higher or minor in the vehicle not less than $1,000, or more than $2,000;
• Jail: Not more than 6 months. With Blood/Breath Alcohol Level (BAL) of .15 or higher or minor in the vehicle not more than 9 months;
• Probation: Total period of probation and incarceration may not exceed 1 year;
• Mandatory 50 hours of community service or additional $10 fine for each hour of community service required;
• Vehicle impoundment for 10 days (unless family of the defendant has no other transportation)
• Minimum 6 months license revocation; maximum of 1 year;
• Increasing cost of insurance as you will be required to purchase 100/300 coverage

Second DUI Conviction (within 5 years):

• Fine: Not less than $1,000, or more than $2,000. With Blood/Breath Alcohol Level (BAL)  of .15 or higher or minor in the vehicle: Not less than $2,000, or more than $4,000;
• Jail: Not more than 9 months. With BAL of .15 or higher or minor in the vehicle: Not more than 12 months. If second conviction within 5 years, mandatory imprisonment of at least 10 days. At least 48 hours of confinement must be consecutive;
• Vehicle impoundment for 30 days (unless family of the defendant has no other transportation)
• License revocation: Minimum 5 years revocation.  Maximum lifetime revocation.  May be eligible for hardship reinstatement after 1 year.

Third DUI Conviction:

• Fine: (More than 10 years from second): Not less than $2,000, or more than $5,000. With BAL of .15 or higher or minor in the vehicle: Not less than $4,000;
• Jail: If third conviction within 10 years, mandatory imprisonment of at least 30 days. At least 48 hours of confinement must be consecutive. If third conviction more than 10 years, imprisonment for not more than 12 months. Minimum sentence of 30 days if convicted within 10 years of a first offense
• Vehicle impoundment for 90 days if convicted within 10 years of a first offense;
• License revocation: Within 10 Years of the second conviction: minimum 10 years revocation. May be eligible for a hardship reinstatement after two years

Fourth DUI Conviction:

• Third Degree Felony Charge
• Minimum fine of  no less than $2,000;
• Up to 5 years State prison;
• Mandatory permanent license revocation;
• No hardship reinstatement.

Conditions for Release of Persons Arrested for DUIs. (Florida Statute 316.193 (9)):

• The person is no longer under the influence;
• The person’s normal faculties are no longer impaired;
• The person’s blood/breath alcohol level is lower than 0.05; or
• Eight hours have elapsed from the time the person was arrested.

In lieu of a driving under the influence (DUI) charge, the state of Ohio uses the term “OVI” for the charge of operating a vehicle under the influence.   A first time conviction for OVI can include mandatory jail time, fines, and a license suspension of up to three years.  The penalties in Ohio are outlined below:

A “low test” OVI is one in which a breath alcohol level test is .169 or below, a urine test is .237 or below, a whole blood test is .169 or below, and a blood serum or plasma test is .203 or below.  Anything above these numbers is considered a “high test” OVI.  A unique penalty for committing an OVI in Ohio is that a person may be  required to have yellow license license plates on their vehicle.

Drug Possession

Florida Statute 893.13 outlines the penalties one would face if charged with the possession of a controlled substance (adderall, cocaine, MDMA/ecstasy, heroin, etc…).  In Florida, Bryant would be facing a third degree felony; the penalties for a third degree felony are up to 5 years in Florida State Prison, a suspension of his driver’s license for one year (or until the person is evaluated for and, if deemed necessary by the evaluating agency, completes a drug treatment and rehabilitation program approved or regulated by the Department of Children and Families), and a fine of up to $5,000.

Ohio Rev. Code § 2925.11 outlines the penalties one would face if charged with possession of controlled substance.  The statute allows, depending on the substance, for a charge to range from misdemeanor of the first degree or felony of the fifth, fourth, third, second or first degree; this depends on the type and amount of drug, and whether the offense occurred near minors or school property. As an amphetamine, Adderall qualifies as a Schedule II drug, and due to the amount of pill(s) Bryant was found with, it would qualify as a Fifth Degree felony.  The penalties would be a fine of up to $2,500 and a jail sentence between six and 12 months.  Based upon the initial information provided by the Ohio State Troopers, I cannot see why Bryant was searched – I do believe that he should be formally charged due to an improper search.  Bryant may be the case, but he will still have to deal with penalties from both the Cleveland Browns organization and the NFL.

If you have any questions about a drug possession charge or operating a vehicle while impaired (OVI) or driving under the influence (DUI) please feel free to contact Miami Criminal Defense Attorney Adam K. Goodman, managing partner of the Law Office of Adam K. Goodman, PLLC, at 305-482-3265.  For more information, please see us online at ‪‪www.adamgoodmanlaw.com.

More

• Browns’ Armonty Bryant, De’Ante Saunders arrested (ESPN)
• Prosecutor will determine if Browns LB Armonty Bryant will face charges following arrest with De’Ante Saunders (Cleveland.com)
• Browns’ Armonty Bryant and teammate arrested early Saturday (LA Times)

Specifically, Stoll was charged under NRS 453.336.2a (Nevada Revised Statutes).  What does this mean?   The long and short is that Stoll was charged with a category E felony.  In Nevada, a category E felony is a felony for which a court shall sentence a convicted person to imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 4 years.  Does this mean that if Stoll is convicted he is automatically going to spend a year in the city of Las Vegas Detention Center (and for the record, this is not the name of a new casino on the strip)?  Well if Stoll were to be found guilty, the court likely would suspend the one year jail sentence (meaning he would not serve the time in jail) and grant probation to Stoll with numerous conditions.  The conditions could include some jail time (up to a year) and a fine of not more than $5,000.

Stoll might also be eligible for Drug Court.  Clark County, Nevada, much like many jurisdictions in the United States, offer a Drug Court program.  In Clark County, the adult drug court strives to provide a positive alternative to incarceration that will rehabilitate the individual and break the cycle of drug use or recidivism associated with drug offenses.  The Drug Court programs in Clark County are offered to non-violent offenders who have a serious addiction of substances or to those adults whose addiction has jeopardized their ability to care for their children.  Participants are required to attend a one-year outpatient treatment program and must attend regularly scheduled court appearances before the Drug Court judge.  Lack of progress or non-compliance in the program results in the application of a series of graduated sanctions including increased judicial supervision, increased frequency of treatment, community service, house arrest, and short-term incarceration.

In Miami-Dade County, Stoll would likely be given the opportunity to participate in Drug Court.  Program eligibility in the Miami-Dade County Drug Court program is governed by Florida Statute 948.08 (6)(a). To qualify, generally, a defendant must be charged with possessing or purchasing drugs, tampering with evidence (added 2001), solicitation for purchase (2001), obtaining a prescription by fraud (2001) and the State Attorney must agree to diversion.  Defendants who have a history of violent crime, have been arrested for drug sale or trafficking, or have more than two previous non-drug felony convictions (Administrative Order), are typically ineligible.  The program lasts for a minimum of twelve months, as per statutory requirement. Its main features are early identification of appropriate candidates, diversion from the ordinary course of prosecution, and keeping the case pending for a minimum of 12 months while the defendant rehabilitates him/herself from his/her drug addiction. This is done with frequent treatment, frequent court staff contact, relatively frequent court appearances for close monitoring by the judge, no prosecutorial use of tests, assessments, and written/oral admissions of drug usage, disinterest in the details of the pending charges, and use of incentives and sanctions, all leading to dismissal of charges earned by successful completion of treatment.

However, a one time recreational user such as Stoll may not really be the right type of person to participate in Drug Court – he does not have an addiction issue.  In order to address this issue, Miami-Dade County now has a program deemed “Drug Court Lite.”  “Drug Court Lite” is for low need offenders and is not designed for people suffering from significant addiction issues.   How does “Drug Court Lite” work?  When a defendant is offered and accepts Drug Court as a diversionary plea they report to Drug Court as usual and are evaluated by the drug court program.  If they are determined to be “low risk/low need” (such as Stoll) by the drug court evaluator they can then be placed in “Drug Court Lite.” A participant in the program will only be required to appear in court for the initial evaluation and then again to accept their nolle pros/dismissal.

If you have any questions about a drug possession charge, or Drug Court, please feel free to contact Miami Criminal Defense Attorney Adam K. Goodman, managing partner of the Law Office of Adam K. Goodman, PLLC, at 305-482-3265.  For more information, please see us online at ‪‪www.adamgoodmanlaw.com.

Nevada Revised Statutes 453.336.2a

NRS 453.336  Unlawful possession not for purpose of sale: Prohibition; penalties; exception.

      1.  Except as otherwise provided in subsection 5, a person shall not knowingly or intentionally possess a controlled substance, unless the substance was obtained directly from, or pursuant to, a prescription or order of a physician, physician assistant licensed pursuant to chapter 630 or 633 of NRS, dentist, podiatric physician, optometrist, advanced practice registered nurse or veterinarian while acting in the course of his or her professional practice, or except as otherwise authorized by the provisions of NRS 453.005 to 453.552, inclusive.

      2.  Except as otherwise provided in subsections 3 and 4 and in NRS 453.3363, and unless a greater penalty is provided in NRS 212.160, 453.3385, 453.339 or 453.3395, a person who violates this section shall be punished:

      (a) For the first or second offense, if the controlled substance is listed in schedule I, II, III or IV, for a category E felony as provided in NRS 193.130.

      (b) For a third or subsequent offense, if the controlled substance is listed in schedule I, II, III or IV, or if the offender has previously been convicted two or more times in the aggregate of any violation of the law of the United States or of any state, territory or district relating to a controlled substance, for a category D felony as provided in NRS 193.130, and may be further punished by a fine of not more than $20,000.

      (c) For the first offense, if the controlled substance is listed in schedule V, for a category E felony as provided in NRS 193.130.

      (d) For a second or subsequent offense, if the controlled substance is listed in schedule V, for a category D felony as provided in NRS 193.130.

      3.  Unless a greater penalty is provided in NRS 212.160, 453.337 or 453.3385, a person who is convicted of the possession of flunitrazepam or gamma-hydroxybutyrate, or any substance for which flunitrazepam or gamma-hydroxybutyrate is an immediate precursor, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years.

      4.  Unless a greater penalty is provided pursuant to NRS 212.160, a person who is convicted of the possession of 1 ounce or less of marijuana:

      (a) For the first offense, is guilty of a misdemeanor and shall be:

             (1) Punished by a fine of not more than $600; or

             (2) Examined by an approved facility for the treatment of abuse of drugs to determine whether the person is a drug addict and is likely to be rehabilitated through treatment and, if the examination reveals that the person is a drug addict and is likely to be rehabilitated through treatment, assigned to a program of treatment and rehabilitation pursuant to NRS 453.580.

      (b) For the second offense, is guilty of a misdemeanor and shall be:

             (1) Punished by a fine of not more than $1,000; or

             (2) Assigned to a program of treatment and rehabilitation pursuant to NRS 453.580.

      (c) For the third offense, is guilty of a gross misdemeanor and shall be punished as provided in NRS 193.140.

      (d) For a fourth or subsequent offense, is guilty of a category E felony and shall be punished as provided in NRS 193.130.

      5.  It is not a violation of this section if a person possesses a trace amount of a controlled substance and that trace amount is in or on a hypodermic device obtained from a sterile hypodermic device program pursuant to NRS 439.985 to 439.994, inclusive.

      6.  As used in this section:

      (a) “Controlled substance” includes flunitrazepam, gamma-hydroxybutyrate and each substance for which flunitrazepam or gamma-hydroxybutyrate is an immediate precursor.

      (b) “Sterile hypodermic device program” has the meaning ascribed to it in NRS 439.943.

      (Added to NRS by 1971, 2019; A 1973, 1214; 1977, 1413; 1979, 1473; 1981, 740, 1210, 1962; 1983, 289; 1987, 759; 1991, 1660; 1993, 2234; 1995, 1285, 1719; 1997, 521, 525, 903; 1999, 1917; 2001, 410, 785, 797, 3067; 2007, 1864; 2013, 2084, 3173)