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The Florida High School Mock Trial Official Competition Packet

State of Florida

v.

Chris Byrd

Version 1.1, October 2009

The original case was written by the Nebraska State Bar Foundation Case Committee. It has been adapted by The Florida Law Related Education Association, Inc.

Permission to reprint this packet is granted for educational use only. Any relationship of any character to an actual person, either living or dead, is completely coincidental

and unintended.

Special thanks to the following for their contributions to the development of this year’s case materials:

The Nebraska State Bar Foundation and its State Center for Law Related Education The Honorable K. Douglas Henderson, Twelfth Judicial Circuit The Florida Bar Standing Committee on Law Related Education

Improving Justice through Law and Citizenship Education Opportunities

The Flor ida Law Rela ted Educat ion Associa t ion , Inc . 2874 Remington Green Circle, Suite A

Tallahassee, Florida 32308 Office (850) 386-8223 ▪ Fax (850) 386-8292

E-mail: ECrowe@flrea.org ▪ Web site: http://www.flrea.org

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TABLE OF CONTENTS

I. Trial Overview ..................................................................................................................4 II. Code of Ethical Conduct ...................................................................................................5 III. 2010 Mock Trial Case

A. Information (Charging Document) ..................................................................................... 6 B. Witness, Exhibit Lists ......................................................................................................... 8 C. Stipulations ......................................................................................................................... 9 D. Witness Affidavits

For the Plaintiff 1. Patty/Paddy O'Waggen .............................................................................................. 10 2. Pat Parazzi ................................................................................................................. 22 3. Len/Lynn Knievel ..................................................................................................... 26

For the Defendant

1. Chris Byrd ................................................................................................................. 34 2. Ray/Rae Budinski ....................................................................................................... 39 3. Bobby/Bobbie Tooshuze ........................................................................................... 44

E. Exhibit List

1. A: Photo of shoes posted by Parazzi on MySpace ..................................................... 49 2. B: Photo of text message from Knievel's phone ......................................................... 50 3. C: Photo of bottles of alcohol from the Byrd residence ............................................. 51 4. D: Miranda Warning and DWI Waver Form ............................................................. 52 5. E: Lab Report from Kratz General Hospital ............................................................... 54 6. F: Photo of beer cans from Ray/Rae Budinski's lawn ................................................ 55 7. G: Photo of key basket from the Byrd residence ........................................................ 56 8. H: Photo of gnomes .................................................................................................... 57 9. I: Photo of beer cooler ................................................................................................ 59 10. J. Architectural drawing of the Byrd house ................................................................ 60

F. Relevant Case Law .................................................................................................................. 61

IV. Rules of the State Competition

Rule I: Team Composition/Presentation ............................................................................. 78 Rule II: The Case .................................................................................................................. 78 Rule III: Trial Presentation .................................................................................................... 79 Rule IV: Student Attorneys .................................................................................................... 80 Rule V: Swearing of Witnesses ............................................................................................ 81 Rule VI: Case Materials ......................................................................................................... 81 Rule VII: Trial Communication .............................................................................................. 81 Rule VIII: Trial Start Time ....................................................................................................... 81 Rule IX: Conduct/Attire ......................................................................................................... 81 Rule X: Videotaping/Photography ....................................................................................... 82

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Rule XI: Witnesses ................................................................................................................ 82 Rule XII: Jury Trial ................................................................................................................ 82 Rule XIII: Viewing a Trial ....................................................................................................... 82 Rule XIV: Decisions ................................................................................................................ 82 Rule XV: Time Limits ............................................................................................................. 82 Rule XVI: Judging .................................................................................................................... 83 Rule XVII: Dispute Settlement ................................................................................................. 84 Rule XVIII: Reporting a Rules Violation Outside the Bar ......................................................... 85 Rule XIX: Score Sheets/Ballot ................................................................................................. 86 Rule XX: State Competition Power Matching/Seeding Model ............................................... 86 Rule XXI: Completion of Score Sheet ..................................................................................... 87 Rule XXII: State Competition Team Advancement .................................................................. 87 Rule XXIII: Effect of a Bye/Default ........................................................................................... 87 Rule XXIV: Eligibility ................................................................................................................. 88 Rule XXV: State Competition Awards ...................................................................................... 88 Rule XXVI: Interpretation of State Competition Rules ............................................................... 88 Rule XXVII: Circuit Competition ................................................................................................. 88

V. Simplified Rules of Evidence and Procedure ...............................................................90

A. Witness Examination/Questioning .................................................................................... 90 B. Objections ......................................................................................................................... 95 C. Trial Motions .................................................................................................................. 103 D. Attorney Demeanor ......................................................................................................... 103

VI. Guidelines for Teacher and Attorney Coaches ...........................................................104 VII. Guidelines for Judges

A. Score Sheet/Ballot ........................................................................................................... 106 B. Explanation of Ratings Used on Score Sheet.................................................................. 107

VIII. Ballots and Forms

A. Presiding Judge Ballot .................................................................................................... 108 B. Most Effective Attorney Award Ballot ........................................................................... 109 C. Most Effective Witness Award Ballot ............................................................................ 110 D. Legal Professionalism Award Ballot .............................................................................. 111 E. Complaint Form .............................................................................................................. 112 F. Team Dispute Form ........................................................................................................ 113 G. Team Roster Form .......................................................................................................... 114

IX. Professionalism ...............................................................................................................115 X. Oath of Admission to The Florida Bar ........................................................................116

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TRIAL OVERVIEW

I. The presiding judge will ask each side if they are ready for trial. Team rosters/roles should be presented to the judges.

II. Presiding judge announces that all witnesses are assumed to be sworn.

III. Opening Statements - no objections allowed; however, after each opening has concluded,

the opposing counsel may raise his/her hand to be recognized and state that if they could have objected they would have objected to. The presiding judge does not need to rule on this. No rebuttals allowed.

IV. Cases presented. See Rule XV for the trial sequence and time limitations.

V. Closing Statements - no objections allowed; however, after each closing statement has

concluded, the opposing counsel may raise his/her hand to be recognized and state that if they could have objected - they would have objected to...The presiding judge does not need to rule on this. An optional rebuttal (up to 1 minute) reserved in advance will be permitted for the plaintiff.

VI. No jury instructions need to be read at the conclusion of the trial.

Judges should complete score sheets before debriefing. This is crucial and ensures completed score sheets.

VII. If a material rules violation is entered, scoring judges should exit the courtroom but stay

in the vicinity. The presiding judge will follow the rules for this type of dispute. Scoring judges will return to the courtroom to determine if the presiding judge feels the dispute may be considered in scoring. Specific forms are needed. See Rule XVII - DISPUTE SETTLEMENT.

VIII. Critique (One team exits the courtroom during the critiques). JUDGES DO NOT

ANNOUNCE SCORES OR PERFORMANCE DECISIONS!

IX. ALL DECISIONS OF THE JUDGES ARE FINAL. Debrief/Critique ONLY.

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CODE OF ETHICAL CONDUCT The purpose of the Florida High School Mock Trial Competition is to stimulate and encourage a deeper understanding and appreciation of the American legal system by providing students the opportunity to participate actively in the legal process. The education of young people is the primary goal of the mock trial program. Healthy competition helps to achieve this goal. Other important objectives include improving proficiency in speaking; listening, reading, and reasoning skills; promoting effective communication and cooperation between the educational and legal communities; providing an opportunity to compete in an academic setting; and promoting tolerance, professionalism, and cooperation among young people of diverse interests and abilities. As a means of diligent application of the Florida High School Mock Trial Competition's Rules of the Competition, the Mock Trial Advisory/Policy Committee has adopted the following Code of Ethical Conduct for all participants.

1. Team members promise to compete with the highest standards of ethics, showing respect for their fellow team members, opponents, judges, evaluators, attorney coaches, teacher coaches, and mock trial personnel. All competitors will focus on accepting defeat and success with dignity and restraint. Trials will be conducted honestly, fairly, and with the utmost civility. Members will avoid all tactics they know are wrong or in violation of the rules, including the use of unfair extrapolations. Members will not willfully violate the rules of the competition in spirit or in practice.

2. Teacher coaches agree to focus attention on the educational value of the Mock Trial

Competition. They shall discourage willful violations of the rules. Teachers will instruct students as to proper procedure and decorum and will assist their students in understanding and abiding by the competition's rules and this Code of Ethical Conduct.

3. Attorney coaches agree to uphold the highest standards of the legal profession and will

zealously encourage fair play. They will promote conduct and decorum in accordance with the competition's rules and this Code of Ethical Conduct. Attorney coaches are reminded that they are in a position of authority and thus serve as positive role models for the students.

4. All participants (including observers) are bound by all sections of this code and agree to

abide by the provisions. Teams are responsible for insuring that all observers are aware of the code. Students, teacher coaches, and attorney coaches will be required to sign a copy of this code. This signature will serve as evidence of knowledge and agreement to the provisions of the code. Teams will receive scores on ethical conduct during each round.

5. Staff and Mock Trial Advisory Committee members agree to uphold the rules and

procedures of the Florida High School Mock Trial Competition while promoting ethical conduct and the educational values of the program.

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IN THE CIRCUIT COURT OF THE TWENTY-FIRST JUDICIAL CIRCUIT, IN AND FOR CRIST COUNTY, FLORIDA

STATE OF FLORIDA, CASE NO. 2009 CA 1122

Plaintiff, v. **INFORMATION** CHRIS BYRD, Defendant. _________________________/ INFORMATION FOR: Count I OPEN HOUSE PARTY (M2) IN THE NAME OF AND BY THE AUTHORITY OF THE STATE OF FLORIDA: G. E. Wiz, State Attorney for the Twenty-First Judicial Circuit of the State of Florida, charges that in Crist County, Florida, the above-named defendant: COUNT I: On or about May 16, 2009, having control of the residence located at 58100 Hathaway Drive in Falls Chase, Florida, did then and there allow an open house party to take place at said residence, knowing that an alcoholic beverage was in the possession of or being consumed by a minor (as defined in Section 856.015.1(d)) at said residence and failed to take reasonable steps to prevent the consumption of alcoholic beverages, contrary to Sections 856.015, Florida Statutes. STATE OF FLORIDA COUNTY OF CRIST G. E. WIZ, STATE ATTORNEY TWENTY-FIRST JUDICIAL CIRCUIT /S/ George D. Blake, Designated Assistant State Attorney The foregoing instrument was acknowledged before me on June 6, 2009, by George D. Blake, Designated Assistant State Attorney, by G. E. Wiz, State Attorney for the Twenty-First Judicial Circuit of the State of Florida, who is known to me and did take an oath stating good faith in

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instituting the prosecution and certifying that testimony was received under oath from the material witness or witnesses for the offense pursuant to F.R.Cr.P. 3.140(g). ________/S/____________ NOTARY PUBLIC

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WITNESS LIST Prosecution/Plaintiff:

1. Officer Patty/Paddy O’Waggen

2. Pat Parazzi

3. Len/Lynn Knievel

Defense/Defendant:

1. Chris Byrd

2. Ray/Rae Budinski

3. Bobbie Tooshuze

* Each team must call all three witnesses for their respective party.

** Witnesses may be male or female. Where an alternative name is not provided, assume the

name is gender neutral.

EXHIBIT LIST

A. Photo of shoes posted by Parazzi on MySpace B. Photo of text message from Knievel’s phone C. Photo of bottles of alcohol from Byrd residence D. Miranda Warning and DUI Waiver Form E. Lab Report from Kratz General Hospital F. Photo of beer cans from Ray/Rae Budinski’s lawn G. Photo of key basket from Byrd residence H. Photos of gnomes I. Photo of beer cooler J. Architectural drawings of Byrd’s house

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STIPULATED PROCEDURAL MATTERS

1. Florida High School Mock Trial Rules of Evidence and Procedure apply.

2. All witness Statements and exhibits in the case are authentic and no objections to their authenticity will be entertained.

3. All witness statements were given under oath.

4. The signatures on the witness statements are omitted due to the electronic delivery of the

case.

5. Whenever a rule of evidence requires that reasonable notice be given, it should be considered to have been.

6. All charging documents were signed by the proper parties.

7. All references to Florida law are from the most recent edition of Florida Statutes.

8. Jurisdiction, venue, and chain of custody of the evidence are proper.

9. Stipulations cannot be contradicted or challenged.

OTHER STIPULATED FACTS

1. Len/Lynn Knievel and Puck Byrd are both 18 years of age at the time of the incident.

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1. IN THE CIRCUIT COURT OF CRIST COUNTY, STATE OF FLORIDA

GENERAL JURISDICTION DIVISION Case No. 2009 CA 1122

STATE OF FLORIDA, Plaintiff

v. CHRIS BYRD,

Defendant. _____________________________________/

) ) ) ) ) ) ) )

SWORN STATEMENT OF PATTY/PADDY O’WAGGEN

My name is Patty/Paddy O’Waggen, and I’ve been a police officer for the fine town of 1

Falls Chase, Florida, for going on 25 years now. I am a resident of Falls Chase, Florida. My 2

spouse is Erin/Aaron and s/he works at the Department of Health as an Attorney Supervisor. 3

Erin/Aaron works so hard and has had problems with an employee Lonnie and had to fire him. 4

'Tis a sorrowful time for my Erin/Aaron. We are blessed with two strapping lads – Ray and Tim. 5

Both of them are in college now. And our last family member is an Irish Setter named Eli. 6

‘Tis a bonnie town, most of the time, except when a few of the less savory characters get 7

a wild hair and do something stupid, like what happened here. That’s why I’m giving this 8

deposition, you know, to set it all straight and get it all on the record, because that’s my job, to 9

get all the facts down, true and proper. So that’s what I intend to do. 10

Let me tell you a bit about myself. I came here to Falls Chase from Dublin when I was 11

22. Left all of my family behind to follow my dream to live in the States and go into law 12

enforcement. Don’t know quite when or how I took it in my head to take on this profession, 13

Lord knows I spent enough time dodging the likes of them, but it just seemed the thing to do. 14

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So don’t you go thinking that I don’t know my way around a pint or two, which is why I surely 15

knew that Len/Lynn Knievel had a snootful. Not that s/he didn’t have any help getting that way, 16

but I’m getting ahead of myself. You want to know about my educational background. Well, I 17

graduated from secondary school in Dublin, and when I got to the States I worked several odd 18

jobs until the 5-year residency requirement was met and then I attended the Law Enforcement 19

Training Center in Big Isle, Florida. I spent 12 weeks in training there, with two weeks spent 20

entirely on driving under the influence investigations and two solid weeks dealing with crime 21

scene and accident investigations. Kind of too bad I didn’t get to use my formidable knowledge 22

of standard field sobriety tests in this case on Knievel. Would have been interesting to see how 23

s/he did on the alphabet, walk and turn test, and horizontal gaze nystagmus, but by the time I got 24

there, the kid had already “emptied his/her bread basket” so to speak all over his/her shoes and 25

was not the most coherent thing I’d ever seen. Knievel might have been seeing some pink 26

elephants prancing about in green tutus, for all I know. S/he was pretty fluthered. Let’s get to 27

that fateful night, now then. 28

Saturday, May 16, 2009, I was on duty on street patrol in my marked police cruiser 29

working second shift, 1500 hours to 0000 hours, but it turned out to be a much longer shift than 30

that by the time I was done for the night. There were a lot of graduation parties going on, what 31

with the graduation exercises at Kottkamp High School at 1500 hours that day. Quite a few of 32

the kids had their parties the week before, brunch and lunch get-togethers and the like. Pretty 33

smart idea if you ask me. Less chance of alcohol getting into the hands of bairns that can’t 34

handle it. But Defendant and his/her child were one of the number of families with a graduate 35

who had their party that Saturday night. Surely I knew about the parties. I make it my job to 36

know what’s going on in my town. I live here, you know, and it’s small enough that people 37

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know each other’s business and are willing to help each other out, even if that means reporting a 38

crime, which I will get to later. 39

It was 0000 hours and I was planning on heading back to the station to turn in my reports 40

and the tickets I’d written during the night, when I got dispatched to a report of a bar fight across 41

town from the soon-to-be accident scene where I later saw Knievel. Officer Grande-Jambon 42

was supposed to take over after my shift but got detained in a traffic pile-up over by the Crunchy 43

Cream donut shop. So I had to keep on working, even though I was weary to the bone. Part of 44

the job, I suppose. Doesn’t happen too often, thank goodness. As soon as I finished up with that 45

problem, I was dispatched at 0107 hours to go to 54th and Shady Oak Road for a one-vehicle 46

accident, which a neighbor immediately reported after they observed Knievel’s vehicle collide 47

head on into their 100-year-old oak tree. 48

When I arrived on the scene of the accident at approximately 0118 hours, I observed 49

Knievel, with whom I was quite familiar from prior alcohol-related contacts, leaning against the 50

oak tree. The neighbor, Tom Keefe, who vacations in Jamaica three times a year (although no 51

one is really sure what he does when he’s there), who reported the accident was still there. I told 52

him he could go home. There was no reason to question him. He didn’t say anything about 53

Knievel making any statements, so I just assumed that s/he hadn’t. Besides, it was clear what 54

happened. Another DUI case. Same old stuff – you know, “book ‘em, Danny Boy.” Or 55

something like that. Anyway, there was Knievel’s white 1998 Dodge Neon, and it appeared that 56

the vehicle hit the tree square on. Banjaxed that car, Knievel did. Although it was dark outside, 57

the lighting from nearby street lamps provided sufficient illumination to allow me to observe that 58

there were absolutely, and I mean absolutely, no skid marks. Upon further investigation, the 59

vehicle jumped the curb and made its final resting place smack into the tree. The speed of the 60

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vehicle immediately prior to contact with said oak tree was estimated, based on my training, 61

knowledge and experience, at 55 miles an hour. Let it be known that the legal speed limit in that 62

area of town is 25 miles an hour. As I indicated, I observed Knievel to be leaning against the 63

tree. S/he was observed to have a head injury and was actively bleeding from the head. At 0119 64

hours I called dispatch, asking that an ambulance be sent immediately to the scene. Based on 65

Knievel’s head injury, the point of impact as indicated by the circular-shaped indentation of 66

cracked glass on the windshield, it was clear that Knievel had not bothered to fasten his/her seat 67

belt prior to operating the motor vehicle. The law requires in the State of Florida, and rightly so, 68

that one must wear a seat belt when operating a motor vehicle. To fail to do so is not only a 69

traffic violation, it is, in my expert opinion, utterly thick and ignorant and just asking for a good 70

knock on the noggin. Enough said. 71

While awaiting the arrival of the ambulance, I convinced Knievel to sit down, and I 72

applied pressure to the head wound with one of the sterile gauze pads I always keep in my 73

cruiser’s first aid kit. In an effort to keep Knievel awake (because you know how important it is 74

to not let a person with a head injury fall asleep) I asked Knievel what s/he was doing, and 75

Knievel said s/he had been to a graduation party. Knievel also volunteered, not in response to 76

any questioning on my part, that s/he only had a “couple drinks.” A wee babe wouldn’t fall for 77

that over-used line. That’s a bit of the horse’s hoof, I believe. During those comments by 78

Knievel and due to my close proximity to Knievel, and of course based on my training and 79

experience, I was able to detect a strong odor of an alcoholic beverage on his/her breath. I also 80

smelled the odor of an alcoholic beverage on his/her clothing and saw, as I mentioned earlier, 81

vomit on his/her shoes (which I am able to identify from a photograph taken by Pat Parazzi, 82

marked as Exhibit A, as being the shoes worn by Knievel, prior to blowing chunks on them, of 83

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course). As Knievel and I are sitting by the tree, s/he spontaneously stated with slurred speech 84

“they got me drunk.” At that point in the investigation, I had no idea who Knievel was talking 85

about, so I asked him/her what s/he was talking about, who got you drunk? Just then, I heard the 86

siren from the ambulance and could not hear if Knievel responded to my question or not. The 87

ambulance crew placed Knievel on a gurney, secured him/her with the straps, loaded him/her 88

into the ambulance, and headed for the hospital. 89

While the ambulance crew dealt with Knievel, I looked in the Neon for documentation 90

listing any emergency contacts for Knievel, such as the vehicle registration. The inside of the 91

vehicle was a mess. There were soda and beer cans strewn about, and fast food bags all over. 92

Thankfully, I located a cell phone plugged into the charger in the cigarette lighter and looked 93

through it for telephone numbers for Knievel’s parents. When I opened the phone, I immediately 94

observed a text message which said “stop by my haus 2nite its goin 2 b a real party puck.” 95

Knievel said s/he had been at a graduation party, and the only “Puck” I know from town who 96

would be a graduating senior is the son of Chris Byrd, the Defendant. Truly now, how many 97

“Puck’s” do you know? At that point, it was the only lead I had which could assist me in finding 98

out how Knievel got so ossified, so I seized the cell phone from the vehicle and made sure to 99

preserve the text message. I also obtained my police-issued digital camera from my cruiser and 100

took a photograph of the text message. That very photograph is marked as Exhibit B. Then I 101

located the telephone number for Knievel’s parents in the cell phone. I called them, informed 102

them of the situation, and advised them as to the whereabouts of Knievel and his/her vehicle. 103

For clarification, all of the foregoing statements/comments made to me by Knievel were made 104

during the investigative detention while we were waiting for the ambulance to arrive. I did not 105

read Knievel the Miranda warnings, which I have memorized and have on a card I keep in my 106

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uniform shirt pocket and on forms located in my cruiser, because s/he was not in custody and 107

was not under arrest at that point. My contacts with Knievel at the scene of the accident were not 108

videotaped, because my cruiser was not equipped with a video camera, and Knievel’s statements 109

were not recorded on audio, because my digital recorder was not working at the time. I prepared 110

my investigation reports from the notes I took on the way to the hospital, at the hospital, and at 111

the end of my shift (which ended up being about 0400). Being a thorough investigator, I 112

routinely shred my handwritten notes after I dictate my reports. 113

Although I knew at the time where Puck and the Defendant live and could have gone 114

straight there to find out if a wild party was going on, I thought it more prudent to follow Knievel 115

to the hospital and try to question him/her there. I also wanted to make sure that medical 116

personnel drew a blood sample there, because it was clear to me that Knievel was intoxicated 117

and would likely test far over the legal limit. Frankly speaking, Knievel was as plastered as the 118

proverbial skunk. And s/he didn’t smell real great either. It was my opinion that Knievel was 119

operating a motor vehicle while under the influence of alcohol or while his/her blood alcohol 120

content was more than .02. There was no evidence that anyone else had been driving the vehicle, 121

based on the report of the eyewitness who called dispatch at the time of the accident and 122

Knievel’s own statements, and there was no evidence to suggest that Knievel drank any more 123

alcohol after the accident, also based on the information provided by the eyewitness and based 124

on Knievel’s statements. This was going to be a slam dunk case, but I knew in my gut that there 125

was more to the story. Who allowed this kid to get so drunk? I had to find out, and I did. Just 126

like Scotland Yard, if I do say so myself. 127

I proceeded to Kratz General Hospital, where I found Knievel in a hospital bed. After I 128

verified with Nurse Betty, the R.N. on duty, that Knievel’s blood had been drawn in accordance 129

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with the procedures required by statute, I attempted to interview Knievel. Before I could get a 130

word out, Knievel sat up in bed, pointed a finger at me and said “back away from the donuts.” I 131

don’t know what the kid was talking about, as I had no items of food with me. S/he was either 132

acting the maggot or was loopy from the concussion, head trauma, and subdural hematoma that 133

Nurse Betty told me Knievel got during the accident. Didn’t want to chance taking a statement 134

from him/her at that point, at any rate, so I headed over to the residence of Chris Byrd. It was 135

nearly 0300 hours, but I intentionally chose not to call in advance and let Defendant know I was 136

coming. If the wild party was still going on, I wanted to catch them in the act. Also, I didn’t 137

want to give Defendant time to clean up a mess or destroy any evidence. A surprise attack is 138

often the best – catch the guilty off-guard, I always say. 139

At 0303 hours, I arrived at Defendant’s house, knocked on the front door and had to wait 140

about 8 minutes for Defendant to come to the door. Defendant was wearing his/her night 141

clothes, having apparently just woken up, and I noticed a slight odor of an alcoholic beverage on 142

his/her breath, but Defendant did not appear to be under the influence of alcohol. The other 143

residents of the house must have been asleep, because I heard no noises coming from anywhere 144

else in the house, so the party must have broken up a while earlier. I told Defendant that I was 145

there to ask him/her some questions about alcohol that minors obtained from him/her at his/her 146

house at a party this evening. Defendant invited me in, and said s/he didn’t know what I was 147

talking about. How could s/he not know? Immediately, I asked Defendant to show me where 148

the party took place, and Defendant led me through the dining room to the kitchen. In the 149

kitchen, I observed a garbage can overflowing with soda cans, beer cans, paper plates and #1 150

plastic cups/water bottles. Why can’t people recycle? How hard is it to have a separate can for 151

recycling? People who aren’t green really make me see red. I straightaway told Defendant how 152

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to recycle, as a courtesy to both him/her and to the environment. Defendant didn’t seem to care. 153

Getting back to my investigation. Sitting on the kitchen counter, in plain view, were bottles of 154

rum, whiskey, gin, vodka and wine, some opened and some unopened. Also in the kitchen, on 155

the floor in front of the sink, I observed one cooler with a handwritten paper sign on the lid 156

which said “beer adults only.” I took digital photographs of the alcohol bottles on the kitchen 157

counter, which are marked as Exhibit C. When I searched the cooler after asking for and 158

obtaining Defendant’s consent, I observed that the cooler contained beer cans. (There were two 159

more coolers outside, with signs for water and soda, and they also contained what the sign 160

indicated). I did not count the number of items in each cooler as there was no need. Alcohol 161

was present. The alcohol I observed at the residence was enough to convince me that there was, 162

indeed, alcohol accessible to minors in the home. On the kitchen counter, I saw a basket with a 163

sign that read “keys.” I have seen the photograph of the basket, marked as Exhibit G, which Pat 164

Parazzi took, and although it is a little blurry, I can positively identify it as the basket which I 165

observed in Defendant’s kitchen. After making observations of the kitchen area, I asked 166

Defendant to show me where the party took place, and s/he led me outside to the patio. In 167

Defendant’s letter which s/he mailed to me, s/he says that I took measurements outside, but that 168

is not correct. I did measure (with the standard tape measure I used earlier in the evening at 169

Knievel’s accident site) the distance from the patio door to the alcohol on the counter and the 170

beer cooler. The distance from the interior side of the patio door to the bottles of alcohol on the 171

counter was 4 feet 3 ¼ inches, and the distance from the interior side of the patio door to the beer 172

cooler was 5 feet 10 inches. The distances are relevant, in my opinion, because it shows access 173

of minors outside the house to alcohol inside the house. I then asked Defendant if s/he was 174

willing to make a statement to me after I explained that s/he was not in custody, was free to 175

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leave, and was not under arrest. Defendant agreed to voluntarily make a statement to me, and all 176

of the statements s/he made to me appeared to be made knowingly, voluntarily and intelligently, 177

with full knowledge and understanding of the consequences. I asked Defendant to tell me what 178

went on that night, and s/he told me the following details while I took handwritten notes. 179

Defendant told me s/he was having a party for his/her son, Puck, who graduated from high 180

school and who was leaving to do an internment in England. Defendant said that Puck invited a 181

lot of kids to the party, but it was a family party, and adults were present. Defendant said s/he 182

bought several cases of soda, several cases of beer, bottles of rum, whiskey, gin, vodka, scotch, 183

and wine and said that the alcohol in the cooler and on the counter was what remained after the 184

party. Defendant said that s/he did not provide any alcohol to any of the minors at the party, but 185

Defendant said s/he went downstairs around midnight and minors were still present. Defendant 186

said before going downstairs, s/he moved the bottles of liquor inside to the kitchen counter and 187

moved the beer cooler inside as well. 188

When I confronted Defendant with the fact that Knievel was driving while intoxicated, 189

got into an accident with his/her vehicle and was in the hospital, Defendant did not act surprised 190

and didn’t even seem to care. Defendant said that s/he thought Knievel had been drinking before 191

s/he arrived at his/her home, and that Knievel is a thief and a liar. Defendant denied providing 192

any alcohol to Knievel, specifically, and said s/he told Knievel s/he couldn’t have any alcohol. 193

Well, I’d had enough of excuses and it was about 0340 hours by then. I wrote up a ticket for the 194

Defendant for Open House Party, Section 856.015, Florida Statutes. S/he did not take it well. 195

I proceeded to the police station and prepared my police report from the notes I had 196

taken, then I went home to get a bit of sleep. On Sunday, May 17, 2009, I was doing follow-up 197

investigation as a part of my official duties as a police officer, and at approximately 2100 hours I 198

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went to Kratz General Hospital to get a more detailed statement from Knievel. When I arrived at 199

the hospital, after determining that Knievel was alert, awake, and was no longer under the 200

influence of alcohol, I read Knievel his/her Miranda rights from the form which is marked as 201

Exhibit D. I read each question to Knievel and s/he gave the responses which I wrote on the 202

form and Knievel initialed. Knievel waived his/her rights and agreed to speak with me. I asked 203

him/her the questions on the DUI Interview Report, which is also a part of Exhibit D. 204

Knievel’s interview was not tape recorded; however, I took handwritten notes while s/he was 205

making statements. At the conclusion of my interview with Knievel, I cited him/her with the 206

Misdemeanors of Driving Under the Influence of Alcohol, Open Container, Reckless Driving, 207

and No Seatbelt. After Knievel was released from Kratz General Hospital and after the results of 208

the blood draw were confirmed, the hospital sent me Knievel’s lab report, which is marked as 209

Exhibit E, which showed a .16 BAC. 210

A few days after May 16, 2009, Ray(ae) Budinski called the police station and asked for 211

me, but I was out of town visiting relatives. I believe Budinski knew me from a parade that I 212

worked where s/he coordinated what kind of candy people could throw from floats so as to not 213

seriously injure anyone. (I do not recommend lollypops. You could put an eye out with one of 214

those things). Anyway, I eventually proceeded to Budinski’s house on June 15, 2009, and s/he 215

told me that s/he saw Knievel park his/her car near his/her house and at that time s/he saw 216

Knievel with a can of beer in his/her hand. Budinski gave me beer cans which s/he said s/he 217

found in his/her yard on Sunday morning, 5-17-09, in the area where Knievel had parked his/her 218

car. Budinski made it a point to specify that it was next to his/her broken garden gnome, which 219

s/he insisted on showing me. (To be honest, those things give me the creeps – garden gnomes, 220

not beer cans. They’re not a bit like the little people I grew up hearing about.) Budinski wanted 221

20

me to ticket Knievel for criminal mischief for running over the gnome, but that was kind of 222

sketchy and how do you put value on those things anyway? At any rate, I seized the beer cans, 223

placed them in a brown paper bag, and placed them in police property. Before I placed them in 224

police property, I took a digital photograph of them, marked Exhibit F. I did not dust the beer 225

cans for fingerprints as they had been in Budinski’s recycling container for a month and s/he 226

indicated that s/he did not use gloves when s/he picked them up and saved them. I did not 227

request that the beer cans be sent to the Criminalistics Laboratory for DNA testing, due to the 228

fact that Budinski admitted s/he had touched them. There was no need to do any testing 229

whatsoever on the beer cans. The cans are clear circumstantial evidence. Like pieces of a 230

puzzle, they all fit together. I do not recall what type of beer Defendant had at his/her home, nor 231

did I document that. It was not important. What was important was that alcohol was there. 232

In an effort to obtain additional evidence and witness information in this case, I tried out 233

some of this new-fangled Internet searching that I’ve heard so much about. I did a Google 234

search for the words “Puck” and “graduation party” and “Falls Chase” and came up with a 235

MySpace page for Pat Parazzi. On that MySpace page, I observed several photographs. I 236

printed off two photographs which I recognized, one marked as Exhibit A, with Knievel’s legs 237

and shoes (pre-vomit) and the other, marked as Exhibit G, the basket of keys which I recognized 238

from Defendant’s house. On May 21, 2009, I made contact with Pat Parazzi at his/her home and 239

obtained a statement. Parazzi agreed to speak with me and admitted that s/he had been at the 240

Byrds’ house for a party the night of May 16, 2009. S/he showed me the text message still on 241

his/her cell phone, which is identical to the message I photographed from Knievel’s phone 242

marked as Exhibit B. Parazzi told me that there was alcohol at the party and s/he saw Knievel 243

consume vodka, which Knievel had obtained from the kitchen. According to Parazzi, Defendant 244

21

brought the alcohol into the house before s/he retreated to the basement; however, s/he just left 245

the alcohol sitting in the kitchen, clearly accessible to minors. It was Parazzi’s opinion that 246

Knievel may have consumed alcohol before Parazzi arrived at the party, but could not say when 247

or what Knievel consumed. I told Parazzi that it may be necessary for him/her to testify if there 248

is a trial. Parazzi seemed pretty excited about that. If only all the witnesses I interview were 249

that interested in cooperating. 250

Speaking of cooperative witnesses, I did obtain from Parazzi the names of three other 251

minors who were at Defendant’s house for the party on May 16, 2009; however, when I 252

contacted each one separately at their homes, they refused to talk to me. They indicated that they 253

talked to their parents and/or lawyers, and they did not wish to make a statement for fear of 254

incriminating themselves. I tried to encourage them to cooperate, but they refused and asserted 255

their right to remain silent. 256

For all the investigation I did in this case, it might as well have been a murder case. 257

Balmy drunk kids and irresponsible adults. That’s my take on what this case is about. 258

Everything I have said in this statement is the truth, the whole truth, and nothing but the truth.259

/s/ Patty/Paddy O’Waggen

SIGNED AND SWORN to this 10th day of August 2009. /s/ Patricia Stratigas, Notary Public, State of Florida My Commission Expires: 11/02/10 FURTHER AFFIANT SAYETH NAUGHT.

22

IN THE CIRCUIT COURT OF CRIST COUNTY, STATE OF FLORIDA GENERAL JURISDICTION DIVISION

Case No. 01-111-99

STATE OF FLORIDA, Plaintiff

v. CHRIS BYRD,

Defendant. _____________________________________/

) ) ) ) ) ) ) )

SWORN STATEMENT OF PAT PARAZZI

I can’t believe I’m a witness in this trial. Awesome! Hits on MySpace have gone 1

astronomical. That graduation party was way cool. 2

Hi, I’m Pat Parazzi. I’m eighteen years old, and I just graduated from Kottkamp High 3

School in May. I live at 2201 S. 93rd Street, #235, in Falls Chase, Florida. I just moved into the 4

R. Charles dorms on campus, which you know is named after the famous Floridian singer. Now 5

I’m taking classes at Falls Chase College in photojournalism. I was glad to get out of the house! 6

My Mom and Dad were driving me up a wall! So many rules! Now, I can come and go as I 7

please. It is tough being an only child. 8

It’s because I caught so much good stuff on my Motorola Z810i Phone that I’m here 9

today. That phone has a great camera. It should—it’s an $800 phone, even though I got it for 10

$339. I love it. Hey, I’m into the good stuff. Gotta have the right equipment if you want to be 11

the best. And believe me, I am the best. Now everyone who watches this trial (you know 12

they’re televising some trials in Florida courtrooms now) will see my works of art – my photos. 13

Imagine the hits on MySpace after my appearance at the trial. It’s not just luck that I always 14

have my Zphone with me. 15

23

I took my Zphone with me to the Byrd’s house the night of Puck’s going 16

away/graduation/whatever it was party. It was the night of Knievel’s big crash. I think it was 17

May 16. I know it was a Saturday. I know I got a text from Puck inviting me; it’s the same as 18

Exhibit B. Almost couldn’t believe he was inviting me. It’s not like we were good friends or 19

anything. Nothing special about the message either. Must’ve sent the same thing to everybody 20

he knew. 21

I decided to go to Puck’s party, even though I had other things to do and I didn’t think 22

much would be going on at the Byrds’. I really didn’t think that there’d be alcohol at the party. I 23

decided to just drop in for a bit and see what was happening. I think I arrived at the Byrds’ 24

house around 9 p.m. 25

Not much happened for awhile and I thought about moving on; but then somewhere close 26

to 11:00 p.m., Mr./Mrs. Byrd and the other adults split the scene and Knievel and a few others 27

started having a good time with the liquor. Mr./Mrs. Byrd brought the alcohol inside, but then 28

just left it out there in the kitchen. I think Tooshuze might have said something about “that’s for 29

adults, not you kids,” but come on, who listens to that stuff? S/he even made a sign to put on the 30

beer cooler “BEER ADULTS ONLY” – I took a picture of that for sure…I mean, what a nerd. 31

Tooshuze was so proud of her/his chocolate fondue s/he had me take a photo of it. What was 32

really cool was getting a photo of Tooshuze with that chocolate plastered all over her/himself. 33

Anyway, with all that alcohol sitting out, what do you expect with a bunch of kids? I saw 34

Knievel pour more than a little of some hard stuff into her/his soda bottle. I think it was a cola or 35

something. I really don’t know what else it had in it before the vodka. I couldn’t tell for sure if 36

Knievel had already been drinking before this vodka, but s/he was acting pretty bold. Anyway, I 37

knew I should keep an eye on this one because something interesting was gonna happen. 38

24

There was a group of kids in the basement playing with the Wii, or whatever, and the rest 39

of us were outside on the deck or in the kitchen. Like I said, Puck’s mom/dad and the rest of the 40

adults who were still there had gone downstairs earlier to check out some new DVD equipment, 41

or to watch a movie or something. No adults were upstairs in the kitchen area when Knievel 42

made her/his move. 43

Knievel started in right away on the hard alcohol. A few others were into the whiskey, 44

which was smelling pretty good to me. Some kids had beers. We were having a great time. I 45

was watching, laughing and shooting photos on my phone. It was a pretty cool time. I took a 46

few shots of some of the better stuff that night. It was great. I got photos of a kid trying to brand 47

his pals with a tiki torch. I don’t know if that kid ever had anything to drink at the party, but he 48

musta been drinking somewhere. 49

Finally, watching Knievel paid off. I got the best shot of the night – Knievel’s back flip 50

off the deck. I don’t have anything against Knievel. S/he’s okay. Never really had any problem 51

with her/him. Just seems like kind of a loner. But, hey the night of that party Knievel was the 52

best entertainment around, and I wanted to be sure to catch it on film for my fans. 53

Knievel seemed to be getting pretty drunk real fast. I had a feeling that something was 54

gonna happen. So, I stayed close, just watching and laughing. So, Knievel sees me watching 55

her/him and starts to ham it up for the camera. Looked like s/he was trying to surf or something. 56

Then all of a sudden s/he stumbles backwards and I got a shot of her/his feet in the bushes after 57

going airborne over the railing. It was great. After that I decided to split. Party seemed to be 58

winding down anyway, and I wanted to post these new photos to MySpace. It musta been 59

around 1:00 a.m. when I left for home. 60

25

I took a parting shot of the basket of keys once I fished my own out of there. Just looked 61

kinda surreal, what with the tilted handwritten sign and all that was going on. I don’t know what 62

they meant by that basket, but I was hoping that it would keep Knievel out of the driver’s seat. 63

Of course it didn’t, as you know. Man, I shoulda been there to catch the crash. Now that woulda 64

been a photo! But at least I got the best ones of the party onto MySpace and finally got to bed 65

about 2:30. 66

Sure didn’t take long for the cops to find me. Officer O’Waggen came to see me about a 67

week later. I guess s/he got my photos off MySpace. I told him/her what I saw and s/he wanted 68

to see all of my photos. For some reason s/he took a copy of the photo of the cooler on the deck 69

with the handwritten sign. I know s/he also took a copy of the one of Knievel upside down off 70

the deck. The cop was real interested in that one. Then I got a subpoena and here I am. 71

Awesome. I am ready to testify. 72

/s/

Pat Parazzi SIGNED AND SWORN to this 5th day of October 2009. /s/ Patricia Stratigas, Notary Public, State of Florida My Commission Expires: 11/02/10 FURTHER AFFIANT SAYETH NAUGHT.

26

IN THE CIRCUIT COURT OF CRIST COUNTY, STATE OF FLORIDA GENERAL JURISDICTION DIVISION

Case No. 2009 CA 1122

STATE OF FLORIDA, Plaintiff

v. CHRIS BYRD,

Defendant. _____________________________________/

) ) ) ) ) ) ) )

SWORN STATEMENT OF LEN/LYNN KNIEVEL

My name is Len/Lynn Knievel, and I live at 1313 Jumpfountain Drive, Apt. 1, in Falls 1

Chase. My parents live just outside of Falls Chase on an acreage with my twin sisters, who are 2

sophomores at Kottkamp High School. It is great to have my own space! Oh, and I have a pet 3

hamster named Morelli, who eats Cheetos like crazy – just like the hamster does in the J. 4

Evanovich novels. They won’t let me have a dog in this apartment building. Bummer. 5

Oh, yeah, just so you know my last name is pronounced Kuh-nee-vull. Seems like people 6

around my age are always mispronouncing it. For some reason old people -- like over thirty-five 7

-- know how to pronounce my last name and they sometimes even chuckle when I tell them my 8

name. 9

Anyway, I’m eighteen, and right now I work at this sandwich shop. Maybe you’ve heard 10

of it -- Johnny Jim’s. Been workin’ there two and a half years, part-time when I was in high 11

school and now full-time. I’m pretty much the fastest sandwich maker at my restaurant, and the 12

lettuce and cheese is probably where I’m best on the line. For some reason they won’t let me be 13

a delivery driver. 14

27

I’ll be back in school next semester at Eagle University. Or at least that’s my plan. I 15

want to take more exercise science classes and also some engineering and be a professional 16

stunt-person in Hollywood. I started out at the U this semester but things were just all messed 17

up. Like my ten o’clock class clear across campus from my eight-thirty class and nowhere to 18

park, and then my history professor mumbled and you couldn’t stay awake. It was basically a 19

nightmare, and after a while it just made sense to work more at the sandwich shop and make 20

some money. 21

Plus I need the money, since I just moved into an efficiency apartment. Actually, moving 22

out happened after I, like, stepped down from this semester’s classes. My parents weren’t real 23

happy about that academic development. My Mom works at a doctor’s office doing coding, and 24

my Dad sells paper for an office supply company. 25

They said I needed a wake-up call and this was just tough love and we all knew it was 26

still my home, but it was no example for me to set for my younger sisters so maybe I should 27

move out for a while. 28

I couldn’t believe it. My own parents. After I had just gotten a bunch of stuff 29

straightened out in my life. Like I quit partying, but somehow that didn’t impress them. Haven’t 30

had a drop since August and I feel great. Even started running again in the mornings. I was on 31

the track team freshman and sophomore years in high school but then the coach was always on 32

my case and I didn’t go out after that. Did the hurdles and long jump. People used to dare me to 33

try to jump over things. Picnic tables, motor scooters -- no problem. The only snag was when I 34

broke my wrist junior year trying to jump off a curb over my Dodge Neon. I’d had two or three 35

beers before trying that, to be honest with you. 36

28

Yeah, I drank a little in high school. Got charged with MIP sophomore year, but it was in 37

juvenile court and I just admitted it was true and they put me on a plan where I had to go to some 38

classes and do volunteer work and stuff. They said it wouldn’t be on my permanent record. 39

So you probably want to hear about the graduation party at the Byrds’ house. Okay, it 40

was May 16, 2009, and earlier that day we’d all graduated from Kottkamp High. Lots of parties 41

that night. I got to this one about 8:30 that night. Parked my Neon in front of the house next 42

door. Now, my Neon is no ordinary car. It’s white with two blue racing stripes that go up the 43

hood, roof and trunk lid, and it’s got a modified muffler so you can really hear it wail when it’s 44

pushin’ the RPMs. I take pretty good care of it, and it takes care of me. My friends and I used to 45

race around the Gus’ Supermarket parking lot late at night, and I could dust them all. 46

Anyway, it was kinda dark along the street in front of the Byrds’ house and I was worried 47

that I might have scuffed my special low-profile tires on the curb. But when I got out of the car 48

and looked it was okay; I didn’t hit the curb or go up into anyone’s yard. I think I was just 49

finishing one of those tall cans of Superwicked Energy Drink that I had brought from home 50

‘cause I knew it could be a late night, and I might have left the can on top of my Neon. I’ve 51

heard that some neighbor says I rolled up there with alcohol in hand. That’s not true at all. Like 52

I said, it was just an extra tall can of energy drink. 53

There was like a hundred people at the party, maybe more. In the back yard, on the back 54

deck, and in the kitchen. All kinds of those little lights strung in the back yard trees. These 55

flaming tiki torches lining the yard. Pretty cool. 56

I went by myself, but there were all kinds of people there I knew -- some of the jocks, 57

some of the geekier kids like Tooshuze and Parazzi, some of the partiers -- just a pretty good mix 58

of people. I wasn’t one of the popular kids in our class, but then again I didn’t really have too 59

29

many enemies. I’d show up at most of the big parties when someone’s parents were out of town, 60

and you get to know people that way. Word spreads pretty quick when there’s a good party. In 61

fact, early that day Puck had sent me a text message saying stop by, it’s going to be a REAL 62

party. So I figured there’d be some drinking at some point. 63

I’d been over to the Byrds’ place once or twice while we were in high school. Once was 64

after a football game and there were maybe 10 people over there playing Wii and Guitar Hero 65

and just hanging out. That was the time Mr./Mrs. Byrd tried to accuse me of stealing some CDs. 66

S/he tried to act like he/she was joking -- like, “I bet you know what happened to my Jethro Tull 67

albums,” but I could tell it was partly serious. I don’t even know who Jethro Tull is, except that 68

he used to be in Led Zeppelin. Or the Beatles. Whatever. 69

Besides, Mr./Mrs. Byrd is kinda weird. S/he seems like one of those people who dresses 70

up for Renaissance festivals or whatever. I mean, that night s/he accused me of stealing, s/he 71

was walking around with this plastic skull in his/her hand and talking to it -- like all “forsooth” 72

and “methinks” and messed up stuff like that. 73

So back to graduation night. I had a few Mountain Dews and talked with people in the 74

back yard. Kids, parents, whoever. Went up on the deck a few times where they had coolers of 75

soda, a cooler of beer, and then some bottles of hard liquor on the table. There were some kind 76

of signs on the coolers; don’t remember what they said. There were a couple parents taking turns 77

behind the table, pouring drinks for the adults. The first time up there I acted like I was reaching 78

into the beer cooler, and Mr./Mrs. Byrd was up there and said something like: “Not so fast, 79

kiddo; drinking’s bad for you.” And winked at me. Riiiiiiiight. I got the message. So I just got 80

another Dew and figured the real party would start a little later. 81

30

Right about that same time is when I stepped into the kitchen, just to check out what was 82

going on, and saw the basket of car keys on the table. I just threw mine in too, not really 83

knowing what sort of condition I’d be in later. There were probably 5 or 6 other sets of keys. 84

So eventually 10:30 or 11:00 rolled around and the few adults who were still there all 85

went inside, down to their family room to check out their new home theatre or whatever. I 86

happened to be going up the stairs to the deck at that point, and I remember Mr./Mrs. Byrd 87

saying something to Puck like, “Don’t do anything I wouldn’t do.” Well, I had personally seen 88

Mr./Mrs. Byrd pouring and drinking rum and cokes that night, so what do you think that meant? 89

So then Mr./Mrs. Byrd and the few other last adults go inside, shut the sliding glass door 90

and it’s just us kids out there -- maybe 30 of us at that point. Yeah, Mr./Mrs. Byrd and another 91

adult took the bottles and put them on a table in the kitchen and pulled the beer cooler into the 92

kitchen, but you could still see the all the booze in plain sight. Then the adults were all gone, 93

and I didn’t see any of them the rest of the night. 94

Now I normally didn’t drink that hard stuff -- nasty -- but it was a big night. So I opened 95

the sliding glass door, walked into the kitchen, grabbed two or three bottles, went back on the 96

deck and poured some vodka in my bottle of Dew. Tasted pretty good. Pretty much chugged 97

that. Filled ‘er up again. 98

There were probably 10 other kids on the deck at that point, and at least 7 or 8 of them 99

poured themselves drinks -- either mixing the booze with soda or just doing shots out of plastic 100

cups. A few kids were also drinking beer, but not me. I didn’t have one beer that night. 101

Then we were doing all kinds of stuff. Shooting baskets in the driveway. Texting people 102

to find out where the other good parties were. Giving each other a hard time about whatever. 103

One kid was running around with a tiki torch trying to brand his buddies. Typical stuff. 104

31

Tooshuze like fell in the mud or something and was covered with it. That kid is nice and all, but 105

I’m afraid the real world is going to eat him/her up. I mean, Tooshuze actually said to some of 106

us on the deck that it was illegal for minors to drink alcohol. Like we didn’t know that. I just 107

said, “Thanks for the news flash” and tried not to laugh. 108

Puck was there the whole time -- well, most of the time anyway -- and didn’t tell anyone 109

not to drink. I guess I never saw Puck with any alcohol. Pretty straight shooter, that one, but not 110

a dork like his/her mom/dad. 111

It gets a little fuzzy at that point. Seems like I refilled on the vodka and Dew three or 112

four more times. At one point I was talking to some exchange student kid about the beaches in 113

his country and was totally convinced that I needed to learn to surf and then I must have fallen 114

backwards off the deck railing into a bush. Luckily it was soft. That was a big hit, and I’m sure 115

there’s a dozen pictures of that on the net somewhere. From that Parazzi if no one else. 116

And then? Wow. Then my watch says like 1 o’clock a.m. and I’m knocking over the 117

key basket and finding my keys -- no adults around in the kitchen, of course -- then I kinda 118

remember being in the Neon going past houses and I’m trying to adjust the bass on my stereo for 119

this one song by Coldplay and then BAM! 120

The most sickening sound and feeling of my life. My head hit the windshield very hard, 121

and I’m thrown back into my seat. Guess the airbag wasn’t operational, and like a dummy, I 122

wasn’t wearing my seatbelt. I climb out of the car and see that I’ve hit this big oak tree in 123

someone’s yard. A couple days later I went back and saw the marks on the curb where my front 124

tires and the underside of the Neon must have hit it. I gouged that tree pretty good. 125

So after I got out of the car that night I threw up in the yard. Partly because my head was 126

spinning and they told me later I had a bad concussion. Partly because you just don’t realize 127

32

how out of it you are until something like this happens, and then it’s too late. Some cop was 128

there, asking questions. Officer O’Waggen, maybe? Don’t even remember what I said. Then I 129

don’t remember anything until waking up 18 hours later at the hospital. I guess they blood-130

tested me somehow and I had like a .16 blood alcohol level. Yeesh. I had this horrible 131

headache, and to be honest I still get migraine headaches and dizziness sometimes and have to lie 132

down for a few minutes. Never had that happen before that stupid accident. 133

But anyway, while I was at the hospital on that Sunday the cop came back to talk some 134

more. It’s all a little fuzzy, but what I remember is just asking questions and telling what 135

happened: Mr./Mrs. Byrd basically gave us the old wink-wink-nudge-nudge and let us drink, and 136

I got really drunk. I admitted drinking vodka. But that cop was also asking me about drinking 137

beer and I’m like, “No way -- you can take my finger-prints and check any beer can at that 138

place.” But the cop never did take my prints. 139

I have no idea why a bunch of adults would let kids drink vodka, gin, whiskey on 140

graduation night. A couple beers maybe, but that hard stuff messes you up quick. Don’t get me 141

wrong -- a big part of this was my fault and I got out of control. But Mr./Mrs. Byrd shouldn’t be 142

pretending like s/he had no idea what was going on. A bunch of kids, no supervision late at 143

night, and plenty of liquor and beer. What did s/he expect to happen? So when the cop and that 144

assistant state attorney talked to me about me telling what happened at the party, that’s what I 145

did. Yeah, my attorney and I reached a deal that I’d plead to plain old DUI and the state attorney 146

would drop the reckless driving charge. But that has nothing to do with what I’m saying. This 147

is the truth. 148

/s/ Len/Lynn Knievel

33

SIGNED AND SWORN to this 5th day of October 2009. /s/ Patricia Stratigas, Notary Public, State of Florida My Commission Expires: 11/02/10 FURTHER AFFIANT SAYETH NAUGHT.

34

IN THE CIRCUIT COURT OF CRIST COUNTY, STATE OF FLORIDA GENERAL JURISDICTION DIVISION

Case No. 2009 CA 1122

STATE OF FLORIDA, Plaintiff

v. CHRIS BYRD,

Defendant. _____________________________________/

) ) ) ) ) ) ) )

SWORN STATEMENT OF CHRIS BYRD

My name is Chris Byrd, I live at 58100 Hathaway Drive in Falls Chase, Florida. Let me 1

say at the outset that I did not provide alcohol for minors, except for my son Puck who is allowed 2

to drink alcohol since it is his home too. This charge is much ado about nothing. 3

I have a degree in English literature, concentrating on the Shakespearean era. Since 4

college, I have been working as a merchant in Venice, Florida, which is east of Falls Chase a few 5

miles. We sell novelties at my store. I am assistant manager so I am a procurer of inventory, and 6

I help stock the shelves. I am very proud that I have never missed a day of work. Even in the 7

worst tempest, I get to work. Perhaps I should focus on this case for now. 8

I was married, but I am now a widow/widower. My spouse was killed in a tragedy by a 9

drunk driver. We have two sons. Along with two gentlemen of Verona, Italy and another 10

gentleman of Athens, Greece, my eldest son is working on a Hamlet reconstruction project for 11

the Prince of Denmark. It is a tragedy that he is so far away. Love’s labor lost, I guess. My 12

younger son, Puck, just graduated from high school. I am very proud of him. He was accepted 13

for an internship in a theatre company in Stratford-on-Avon, England. He left just two days after 14

the party. 15

35

I decided to throw a party on May 16, 2009 to celebrate his graduation, mourn his going 16

away, and to celebrate his internship. It was a comedy of errors from the start. He invited nearly 17

everyone in Falls Chase. There was even a Facebook or iTune or some such thing sent out. 18

Puck and I also invited a number of adults, including the merry wives of Windsor, who 19

have a business in Falls Chase. All of these adults were invited because they have played a part 20

in raising Puck. I purchased the beverages for the kids and for the adults. I got several cubes of 21

Dew, a cube of Coke, a cube of some diet soda, several cases of beer plus some hard liquor. I got 22

rum, whiskey, vodka, gin and some wine. I thought we might have 10-15 adults, and I wanted to 23

be ready. 24

This party was to be a midsummer night’s dream. Then Knieval showed up. S/he is not 25

really welcome in my house. Once before Knieval was at the house, and some of my records 26

turned up missing, including some rare music from Pericles and Cymbeline who were a folk 27

music duo from my era. I bet a lot of high school teachers have heard of them. Also missing 28

were some Grateful Dead or Rolling Stones stuff too. Anyway, I confronted Knieval. S/he 29

denied taking anything (which means s/he did not accept responsibility) so I kicked him/her out 30

of the house. 31

In preparation for the party, I got several coolers out and placed them in the backyard. 32

Each cooler was filled with ice and something to drink. I put the soda in a separate cooler from 33

the beer. The bottles and glasses were on a folding table near the coolers. During the party 34

someone put signs on each cooler, which was thoughtful. The beer cooler had a sign which said, 35

“Beer, adults only.” That seemed odd since only adults are allowed to drink alcohol anyway, but 36

I did not change the sign. 37

36

The party started around 7 p.m., and only adults were there except for the fondue kid and 38

a couple of Puck’s closest friends. The fondue kid is somewhat strange and seems to dote on 39

Puck. 40

Anyway, I only had a couple of glasses of whiskey on the rocks before the party really 41

started picking up. I tapered off so I could be the perfect host/hostess. Around 8:30 or 9:00, 42

Knievel showed up. As I said, s/he is not welcome in my house. I should have thrown him/her 43

out right then. Soon after Knievel arrived, I was sitting at the drinks table asking each person 44

what they would like to drink so I could fix it as they liked. Knievel came over to the drink 45

coolers. S/he actually tried to get a beer right in front of me. I should have thrown her/him out 46

right then. I put a stop to his/her attempt right quick. I said, “Not so fast, klepto, drinking is bad 47

for you.” I’ve heard that Knievel claims that I winked. I might have had something in my eye but 48

I did not deliberately wink or encourage Knievel to obtain any of my alcohol. Remember, 49

Knievel had already stolen from me. S/he is the last person I would procure alcohol for. 50

Besides, Knievel appeared to have already been drinking. S/he was awkward when s/he 51

walked. Her/his speech was mumbled. After that I asked one of the other adults to keep an eye 52

on the drinks area any time I was away from it myself. 53

Around midnight, a few of the remaining adults and I went to the rec room in the 54

basement to watch a movie. Tony and Cleo, our next door neighbors were there. Budinski, the 55

other neighbor, was also there but left somewhat early. And Pericles was there with Cymbeline. 56

They are an odd couple. We watched The Tragedy of Romeo and Juliet, actually. 57

Before I went in, I moved the beer cooler into the kitchen and brought all the bottles of 58

hard liquor onto the kitchen counter. I cannot remember if the “adults only” sign was still on the 59

beer cooler. I never even considered moving the alcohol into the garage although it is just a few 60

37

steps beyond the kitchen. It did not occur to me that kids would get into my booze. I thought that 61

moving the alcohol away from the remaining kids was a pretty clear indication. On my way in, I 62

told Puck “don’t do anything I wouldn’t do.” This was not addressed to anyone except Puck. No 63

reasonable person would have made anything out of that. 64

I also placed a basket on the kitchen counter at the beginning of the party with a sign 65

saying “keys.” My plan was to have everyone’s keys in case we needed to shuffle cars during the 66

party. If someone came early and got boxed in, I could get them going. I never imagined that any 67

of the kids would be drinking alcohol at this party. I did not monitor the key basket. If someone 68

had too much to drink (one of the adults, I mean) I trusted them not to try to drive home. 69

Imagine my surprise when the cop arrived in the middle of the night. S/he immediately 70

treated me as if I were guilty. I tried to explain that I had done nothing wrong. The officer even 71

started complaining that I do not recycle properly. S/he took photographs of the alcohol bottles 72

on the kitchen counter. Really, the officer took measure for measure in the backyard, pacing and 73

writing down the distance from the porch to where the coolers were. That seemed a little much. 74

Then the officer told me that Knievel had been in an accident. I was not surprised since Knievel 75

seemed to be under the influence even before s/he got to my party. I was, however, shocked and 76

angry when the officer told me that I was getting a citation for providing alcohol to Knievel. I 77

did no such thing. This stirred up a tempest, but the officer had his/her mind made up even 78

before s/he heard my side of things. Call it what you will, but on the twelfth night after I got that 79

citation, I decided to fight this charge. I wrote this summary which is true and accurate, so help 80

me. I mailed a copy to Officer O’Waggen. 81

After writing this statement to mail to the officer, I contacted my attorneys, who are 82

going to be partners someday with the firm of Social & Lights, LLP. I want my attorneys to 83

38

prevent a tragedy. They told me that mailing a statement to the police was not a really good idea. 84

It does not matter since it was the truth. 85

All’s well that ends well and this will end well only when the charges against me are 86

dismissed. 87

/s/ Chris Byrd SIGNED AND SWORN to this 10th day of September 2009. /s/ Patricia Stratigas, Notary Public, State of Florida My Commission Expires: 11/02/10 FURTHER AFFIANT SAYETH NAUGHT.

39

IN THE CIRCUIT COURT OF CRIST COUNTY, STATE OF FLORIDA GENERAL JURISDICTION DIVISION

Case No. 2009 CA 1122

STATE OF FLORIDA, Plaintiff

v. CHRIS BYRD,

Defendant. _____________________________________/

) ) ) ) ) ) ) )

SWORN STATEMENT OF RAY/RAE BUDINSKI

My name is Ray/Rae Budinski. I live at 58102 Hathaway Drive, right next door to the 1

Byrd family. Just celebrated my 40th wedding anniversary with my honey. My three children, 2

Larry, Mary, and Terri, and their families threw a very nice party for us in the church basement. 3

I can hardly believe I have ten grandchildren. 4

My son Larry is a commercial pilot. After he graduated from high school, he joined the 5

Air Force and proudly served our country for 15 years. That’s of course, where he learned to fly. 6

We are so proud of him. 7

Mary was our athlete. She played three sports in high school. Ended up playing 8

volleyball on a scholarship at Falls Chase College. She works part time as a teacher’s aide at 9

Meadowlark Elementary where her two oldest kids go to school. She keeps very busy with all of 10

the kids’ activities. 11

Our daughter Terri is the youngest. I’ll admit, she had a few problems growing up, but 12

she’s past that now. It was just your typical teenage stuff--sneaking out at night, underage 13

drinking once in a while…but she has turned into a fine adult and we are excited for the arrival 14

of her first child. 15

40

Since I retired from the post office last year, I have spent my time golfing and working 16

around the house. I also volunteer for several charities and organizations. Once a week, I help 17

work on the local Habitat for Humanity House. I also spend time at the City Library with my 18

dog Bubba, a yellow lab. They have a program called “Tales and Tails” where children with 19

reading problems can practice their skills by reading a story to a dog. The kids love reading to 20

Bubba because he is very patient and doesn’t complain or look down on them when they struggle 21

with a hard word. 22

I also spend much of my free time tending to my garden. All of the neighbors say that I 23

have the best looking roses in town. I am working on a hybrid that I hope to name the 24

“Budinski.” It’s the deepest shade of yellow you’ve ever seen. 25

I have lived in the same house for 39 years. I cannot remember exactly when the Byrds 26

moved in, but the children were still in grade school at the time. The Byrds have always been 27

good neighbors. 28

I remember May 16 like it was yesterday. Chris prepared for weeks for that party. S/he 29

painted the house and put in some new landscaping. I even remarked to Chris that s/he was 30

starting to make the rest of the neighborhood look bad. S/he replied that this was going to be the 31

party of the year. S/he was so proud of Puck, his graduation and the start of his internship in 32

England. 33

On the morning of the 16th, while I was working in my garden, I saw Chris carrying a 34

bunch of boxes into the house. I offered to help and Chris said s/he could really use a hand. 35

Several of the boxes were heavy and made a lot of clanking noises when I carried them in. 36

Sounded like a lot of liquor bottles to me. I asked what was in the boxes. Chris just laughed and 37

said, “many of my relatives like to party—I just need to keep the kids away from this stuff.” 38

41

It seemed like the whole neighborhood went to the graduation party. There were cars 39

parked everywhere. We arrived around 7:30 p.m. You know, you never want to be the first one 40

at a party! I had a nice time catching up with the neighbors and meeting some of the Byrds’ 41

family members. Everyone seemed to be having such a nice time. My wife/husband and I 42

laughed at how that sweet Bobby/Bobbie Tooshuze followed Puck around all night. That fondue 43

was good! 44

I went back home around 8:30 p.m. It wasn’t until the next day that I heard about that 45

Knievel kid’s accident and the trouble s/he caused for the Byrds. I was working out in the 46

garden when Chris came up to me and told me what had happened. S/he said that Officer 47

O’Waggen came to his/her door in the middle of the night asking a lot of questions. Chris was 48

extremely upset about the whole thing. I can’t believe that s/he ended up being charged with 49

“Open House Party”. I told him/her that I would help in any way I could after I found out about 50

the charges because I didn’t see him/her do anything wrong that night. 51

Here’s what I remember: 52

Around 9:00 p.m. I was getting ready for bed because I had an early day at the Rose 53

Society Show the next day. That’s when I heard the obnoxious sound of mufflers near my 54

house. I looked out my front window and saw a souped up Dodge Neon parked right in front of 55

my house. I then saw Knievel get out of the driver’s side door. S/he had a big can of beer in 56

her/his hands. It looked like it was in some kind of koozie, but I’m sure it was a beer. Who can 57

mistake that? 58

I’d know that Knievel anywhere. I go to Johnny Jim’s every Monday for a lunch break 59

from the Habitat house. I somehow end up having Knievel help me every time. S/he may be 60

42

fast, but s/he always forgets to leave the lettuce off of my sandwich. Whatever happened to good 61

customer service anyway? 62

I watched Knievel walk up to the Byrds’ house. S/he got very close to stepping on my 63

roses. I couldn’t figure out why that Knievel kid would be going to this graduation party. It 64

doesn’t seem like Puck and Knievel would be friends. Shortly after that I went to bed and didn’t 65

hear anything the rest of the night. 66

The next morning, I went out to the curb to check my roses. It seemed like there had 67

been a party right there. I found several beer cans, some empty Mountain Dew cans, and a half 68

empty can of one of those energy drinks. I picked them up, poured out the energy drink, and put 69

the cans into my recycling bin. 70

I also found my garden gnome was broken. Composite Exhibit H, attached to this 71

statement, shows two photos I took of the gnome. I’m sure Knievel is responsible for breaking 72

it. I took these photos because I was planning on talking to her/his parents to show them what 73

s/he had done! 74

After I heard about what happened to Chris, I tried to contact Officer O’Waggen. I felt it 75

was the least I could do since I’m sure Chris is not guilty of what they say s/he did. It took 76

several weeks for O’Waggen to get back to me; something about a trip back to the homeland. I 77

wasn’t worried about the delay, though, because I know what I saw. In fact, I still had the beer 78

cans that were left on the curb by Knievel after the graduation party because I had not taken a 79

trip to the recycling center in a while. When O’Waggen finally got back to me, I gave him/her 80

the beer cans. I thought it would be good evidence to prove that Knievel did not get the beer 81

from Chris. I did not give O’Waggen the can of energy drink. Didn’t seem important to me and 82

s/he didn’t ask about it. 83

43

O’Waggen asked me a lot of questions about the Byrds’ party. Gee wiz, it seems like 84

s/he was out to get Chris. I don’t remember seeing a basket of keys at the party. I wasn’t 85

looking for one, either, because I walked to the party. And I sure didn’t see any of the kids 86

drinking alcohol. It just wasn’t that kind of party. Puck has always been a good kid. 87

Not that it is any of your business, but my eyes aren’t 20/20 like they used to be. The 88

grandkids keep saying I need to wear my glasses all of the time. I only really need them to drive, 89

and sometimes at night. I have no idea whether I had my glasses on when I saw Knievel park in 90

front of my house that night. Why would I remember something like that? 91

No, there are no street lights on Hathaway Drive, but I always keep the porch light on at 92

night. It helps the newspaper delivery person see where he is going. 93

In my opinion, Chris Byrd is an honest person. Everyone in the neighborhood thinks so. 94

If s/he says s/he didn’t give alcohol to Knievel, then s/he didn’t. Case closed. 95

That’s all I know. 96

/s/ Ray/Rae Budinski SIGNED AND SWORN to this 12th day of October 2009. /s/ Patricia Stratigas, Notary Public, State of Florida My Commission Expires: 11/02/10 FURTHER AFFIANT SAYETH NAUGHT.

44

IN THE CIRCUIT COURT OF CRIST COUNTY, STATE OF FLORIDA GENERAL JURISDICTION DIVISION

Case No. 2009 CA 1122

STATE OF FLORIDA, Plaintiff

v. CHRIS BYRD,

Defendant. _____________________________________/

) ) ) ) ) ) ) )

SWORN STATEMENT OF BOBBY/BOBBIE TOOSHUZE

My name is Bobby/Bobbie Tooshuze. I’m 18 and a freshman majoring in Architecture at 1

Sunshine University. I have always wanted to be an architect, just like George Costanza, but for 2

real. Mike Brady is my hero! 3

I live on campus in the Fonda dorm – named after a famous actor. My address is 2210 S. 4

93rd Street, #503, Falls Chase Florida. I’m excited about my first semester and plan on studying 5

hard to maintain my scholarship. My older brother, Mark, is a junior at the University and he 6

helped me move. He’s pretty cool. My little sister Cindy Lou is an eighth grader. My Dad, 7

Arnie, is an Electrical Engineer at Hoffmann Engineering. My Mom, Vickie, is the Executive 8

Director of the Gathering Home, which provides free meals to those less fortunate in the 9

community. 10

I am Puck Byrd’s best friend. We have been friends since…well, ever since I can 11

remember. We used to live next door to each other. We became best friends one summer when 12

we both had chicken pox. We couldn’t play with anyone else because we were contagious, but 13

we could play together. In fact, it was the next spring that Puck saved my life! We were like 8 14

years old. I had gotten a pet bunny, Flopsy, for Easter. Flopsy was the best pet ever! Well, one 15

45

day we were playing with Flopsy and she got spooked by the neighbor’s dog. She ran out into 16

the street. I was horrified. I couldn’t even watch. Thank goodness Puck ran out into the street 17

and saved her. It was so heroic. So, ever since then we have been best friends. There is nothing 18

I wouldn’t do for Puck because as far as I’m concerned, s/he saved my life too that day. 19

I can’t believe Mr./Mrs. Byrd is in trouble over Puck’s graduation party. I mean, I was 20

there the whole night, well, almost the whole night. We were both graduating, but my parents 21

had my graduation party the week before, which was great, because then I could be at Puck’s 22

party the whole time. My party was pretty quiet, just family and a few friends. I was really 23

excited about Puck’s party because it was going to be a lot more fun. I knew there would be lots 24

more people. I was going to be in charge of the chocolate fondue. I love chocolate! Those 25

things are so cool. I got to shadow Chef Nadar at Billy’s Restaurant for a whole day to learn the 26

best technique, and he even let me sample some. I knew the word was out about the chocolate 27

fondue at Puck’s party, because there were texts going out about how this was going to be a real 28

party. Everyone was talking about it. 29

I just think its crazy anyone would say that Mr./Mrs. Byrd provided alcohol to the 30

students at the party. I was in the Students Against Drunk Driving club in high school. I was the 31

secretary for two years. I was in charge of putting up posters and making sure that if anyone was 32

stupid enough to drink, which they shouldn’t because they are not old enough, but anyway, that 33

there was someone available to drive them home. Sometimes I knew the driver, but sometimes I 34

would just make sure there were other drivers available. Puck was never in Students Against 35

Drunk Driving officially with me, but he knew how important it was to me. If I thought there 36

would be alcohol available to students at the graduation party, I would never have gone. Well, I 37

probably would have gone, but Puck would have known I wasn’t happy about the alcohol. 38

46

So, the day of the party, May 16, 2009, I got to Puck’s house after 6:00. I was so excited 39

to see how the chocolate fondue maker worked. The fondue maker was heavier than I thought it 40

would be, so I needed help. Mr./Mrs. Byrd didn’t help me because s/he didn’t have a hand free. 41

S/he already had a drink in his/her hand. I thought it was strange Mr./Mrs. Byrd was drinking 42

alcohol so early. It was even before any of the guests had arrived. I don’t know what it was, but 43

it sure smelled bad. S/he must have liked it though, because s/he wouldn’t set it down for even a 44

minute to help me. I helped set up everything else for the party, so I saw there were three coolers 45

set up out back with beer in one, soda in one, and bottles of water in one. At the beginning of the 46

party I noticed there was no one serving drinks and no adult near the liquor on the deck. I went 47

to Mr. /Mrs. Byrd and said “Are you going to have someone serve drinks?” S/he didn’t respond. 48

I offered to take a shift to guard the adult cooler, until I realized my fondue was starting to 49

bubble, so I needed to tend to the fondue. Before I left my post, I thought there should at least be 50

a sign. I made the signs for the coolers so everyone would know what was in each cooler, so you 51

didn’t have to open them. It would keep the ice from melting. Plus, on the beer cooler, I put a 52

sign “BEER ADULTS ONLY,” as if the students wouldn’t know they weren’t old enough to 53

drink. A photo of the sign is Exhibit I. 54

The party started about 7:00 p.m. It was really fun. My chocolate fondue was a hit. It 55

was a beautiful fountain of chocolate. So beautiful, I even had Pat Parazzi take a picture of it. I 56

was constantly running from the kitchen to the refrigerator in the garage to get more 57

strawberries, pineapple, and marshmallows for people to dip in the chocolate. I started running 58

out of things to set out, so I rummaged through the cabinets in the pantry to find graham 59

crackers, pretzels, and whatever else I could find. But then about 9:00 or so, the worst thing 60

happened. The flame went out and I wasn’t sure what to do to light it again. I should have 61

47

known better, but I tried to reach under it to light it again, instead of just pulling out the base. 62

Well, you can imagine what happened next…I knocked the whole thing over. There was 63

chocolate everywhere. I had it all over me. I was so embarrassed. I made such a mess. I was a 64

mess. I helped clean it up as best I could, but I walked home, cleaned up and changed. I was 65

probably gone 20-30 minutes. I should have just stayed home. 66

When I got back to Puck’s house, all of the adults had gone into the house. Some of the 67

students were by the beer cooler in the kitchen. I guess they were pretending to get into it 68

because they were laughing. I reminded them it was for adults only, and I wasn’t kidding. They 69

teased me about still having chocolate in my hair. I don’t even know why they were there. They 70

sure weren’t friends of Puck. Anyway, I was so embarrassed I just went to the basement to play 71

Halo 3 in Puck’s room. Puck was cool though and stayed with me. We were still playing Halo 3 72

when we found out about the accident. I don’t want to see anyone get hurt, but s/he should have 73

called me or someone to drive him/her if they were drinking. That’s Knievel’s own fault. I 74

don’t see why s/he is trying to blame Mr./Mrs. Byrd. 75

When I heard about this case, I knew it would be a perfect opportunity to use my brand 76

new CAD computer program to do the floor plans of Mr./Mrs. Byrd’s house. I got it for a 77

graduation present. It was the best graduation present I could have gotten. So, I drew up the 78

plans for the house to show where everything was. It’s even to scale. It shows where everything 79

was. It’s marked as Exhibit J. I may even get extra credit in my Architecture class. I’m going to 80

be an awesome architect.81

/s/ Bobby/Bobbie Tooshuze

SIGNED AND SWORN to this 12th day of October 2009. /s/

48

Patricia Stratigas, Notary Public, State of Florida My Commission Expires: 11/02/10 FURTHER AFFIANT SAYETH NAUGHT.

EXHIBIT A

49

EXHIBIT B

50

EXHIBIT C

51

EXHIBIT D

52

EXHIBIT D

53

EXHIBIT E

54

KRATZ GENERAL HOSPITAL LABORATORY REPORT

CRYSTAL, FLORIDA NAME: KNIEVEL Tox # 2009-01234 AGE: 18 years BLOOD ALCOHOL: ....................................................................................................... 0.160g/ml BLOOD DRUG SCREEN:

Amphetamines: ....................................................................................................... Negative Antidepressants: ...................................................................................................... Negative Barbiturates: ............................................................................................................ Negative Benzodiazepines: .................................................................................................... Negative Cannabioids (THC): ................................................................................................ Negative Cocaine/Metabolites: .............................................................................................. Negative Lidocaine: ............................................................................................................... Negative Methadone: ............................................................................................................. Negative Non-Opiate Narcotic Analgesic: ............................................................................. Negative Opiates: ................................................................................................................... Negative Phencyclidine: ......................................................................................................... Negative Phenothiazines: ....................................................................................................... Negative Propoxyphene: ........................................................................................................ Negative Acetaminophen: ...................................................................................................... Negative Salicylates: .............................................................................................................. Negative Oxycodone: ............................................................................................................ Negative

Requested by: Dr. Edith Smith Date/Time: 05/17/2009 02:21 AM

Received in Lab by: John L. Carter Date/Time: 05/17/2009 02:29 AM

Report by: Dr. Chuck Campbell Date/Time: 05/17/2009 03:45 AM

EXHIBIT F

55

EXHIBIT G

56

COMPOSITE EXHIBIT H

57

COMPOSITE EXHIBIT H

58

EXHIBIT I

59

EXHIBIT "J"

60

61

RELEVANT STATUTES

562.11 Selling, giving, or serving alcoholic beverages to person under age 21; providing a proper name; misrepresenting or misstating age or age of another to induce licensee to serve alcoholic beverages to person under 21; penalties.--

(1)(a)1. It is unlawful for any person to sell, give, serve, or permit to be served alcoholic beverages to a person under 21 years of age or to permit a person under 21 years of age to consume such beverages on the licensed premises. A person who violates this subparagraph commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

2. In addition to any other penalty imposed for a violation of subparagraph 1., the court may order the Department of Highway Safety and Motor Vehicles to withhold the issuance of, or suspend or revoke, the driver's license or driving privilege, as provided in s. 322.057, of any person who violates subparagraph 1. This subparagraph does not apply to a licensee, as defined in s. 561.01, who violates subparagraph 1. while acting within the scope of his or her license or an employee or agent of a licensee, as defined in s. 561.01, who violates subparagraph 1. while engaged within the scope of his or her employment or agency.

(b) A licensee, or his or her or its agents, officers, servants, or employees, may not provide alcoholic beverages to a person younger than 21 years of age who is employed by the licensee except as authorized pursuant to s. 562.111 or s. 562.13, and may not permit a person younger than 21 years of age who is employed by the licensee to consume alcoholic beverages on the licensed premises or elsewhere while in the scope of employment. A licensee, or his or her or its agents, officers, servants, or employees, who violates this paragraph commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. This paragraph may be cited as "the Christopher Fugate Act."

(c) A licensee who violates paragraph (a) shall have a complete defense to any civil action therefor, except for any administrative action by the division under the Beverage Law, if, at the time the alcoholic beverage was sold, given, served, or permitted to be served, the person falsely evidenced that he or she was of legal age to purchase or consume the alcoholic beverage and the appearance of the person was such that an ordinarily prudent person would believe him or her to be of legal age to purchase or consume the alcoholic beverage and if the licensee carefully checked one of the following forms of identification with respect to the person: a driver's license, an identification card issued under the provisions of s. 322.051 or, if the person is physically handicapped as defined in 2s. 553.45(1), a comparable identification card issued by another state which indicates the person's age, a passport, or a United States Uniformed Services identification card, and acted in good faith and in reliance upon the representation and appearance of the person in the belief that he or she was of legal age to purchase or consume the alcoholic beverage. Nothing herein shall negate any cause of action which arose prior to June 2, 1978.

(2) It is unlawful for any person to misrepresent or misstate his or her age or the age of any other person for the purpose of inducing any licensee or his or her agents or employees to sell, give, serve, or deliver any alcoholic beverages to a person under 21 years of age, or for any person under 21 years of age to purchase or attempt to purchase alcoholic beverages.

62

(a) Anyone convicted of violating the provisions of this subsection is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(b) Any person under the age of 17 years who violates such provisions shall be within the jurisdiction of the judge of the circuit court and shall be dealt with as a juvenile delinquent according to law.

(c) In addition to any other penalty imposed for a violation of this subsection, if a person uses a driver's license or identification card issued by the Department of Highway Safety and Motor Vehicles in violation of this subsection, the court:

1. May order the person to participate in public service or a community work project for a period not to exceed 40 hours; and

2. Shall direct the Department of Highway Safety and Motor Vehicles to withhold issuance of, or suspend or revoke, the person's driver's license or driving privilege, as provided in s. 322.056.

(3) Any person under the age of 21 years testifying in any criminal prosecution or in any hearing before the division involving the violation by any other person of the provisions of this section may, at the discretion of the prosecuting officer, be given full and complete immunity from prosecution for any violation of law revealed in such testimony that may be or may tend to be self-incriminating, and any such person under 21 years of age so testifying, whether under subpoena or otherwise, shall be compelled to give any such testimony in such prosecution or hearing for which immunity from prosecution therefor is given.

(4) This section does not apply to a person who gives, serves, or permits to be served an alcoholic beverage to a student who is at least 18 years of age, if the alcoholic beverage is delivered as part of the student's required curriculum at a postsecondary educational institution that is institutionally accredited by an agency recognized by the United States Department of Education and is licensed or exempt from licensure pursuant to the provisions of chapter 1005 or that is a public postsecondary education institution; if the student is enrolled in the college and is required to taste alcoholic beverages that are provided only for instructional purposes during classes conducted under the supervision of authorized instructional personnel pursuant to such a curriculum; if the alcoholic beverages are never offered for consumption or imbibed by such a student and at all times remain in the possession and control of such instructional personnel, who must be 21 years of age or older; and if each participating student executes a waiver and consent in favor of the state and indemnifies the state and holds it harmless.

History.--s. 11, ch. 16774, 1935; CGL 1936 Supp. 4151(237); s. 1, ch. 20830, 1941; s. 15, ch. 23746, 1947; s. 20, ch. 25359, 1949; s. 1, ch. 57-327; s. 1, ch. 67-355; ss. 16, 35, ch. 69-106; s. 563, ch. 71-136; s. 2, ch. 72-230; s. 26, ch. 73-334; s. 49, ch. 77-121; s. 1, ch. 78-134; s. 19, ch. 79-11; s. 2, ch. 80-74; s. 413, ch. 81-259; s. 12, ch. 84-359; s. 2, ch. 85-285; s. 3, ch. 90-265; s. 22, ch. 91-60; s. 5, ch. 92-176; s. 858, ch. 97-103; s. 1, ch. 99-156; s. 1, ch. 2002-7; s. 67, ch. 2003-1; s. 4, ch. 2003-20; s. 1, ch. 2006-203.

63

1Note.--Sections 6 and 8, ch. 85-285, in pertinent part provide, respectively, that "in the event that a federal court of last resort determines that it is unconstitutional for the Federal Government to withhold transportation funds from the state because the legal age of the sale, consumption, or possession of alcoholic beverages is under 21 years of age or if federal legislation is enacted to allow the drinking age to be lowered or modified from 21 years of age, it is the intent of the Legislature that the amendments to [this section] contained in this act shall be null and void and that [this section reverts] to the language existing . . . on June 30, 1985."

2Note.--Repealed by s. 4, ch. 93-183.

1562.111 Possession of alcoholic beverages by persons under age 21 prohibited.--

(1) It is unlawful for any person under the age of 21 years, except a person employed under the provisions of s. 562.13 acting in the scope of her or his employment, to have in her or his possession alcoholic beverages, except that nothing contained in this subsection shall preclude the employment of any person 18 years of age or older in the sale, preparation, or service of alcoholic beverages in licensed premises in any establishment licensed by the Division of Alcoholic Beverages and Tobacco or the Division of Hotels and Restaurants. Notwithstanding the provisions of s. 562.45, any person under the age of 21 who is convicted of a violation of this subsection is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083; however, any person under the age of 21 who has been convicted of a violation of this subsection and who is thereafter convicted of a further violation of this subsection is, upon conviction of the further offense, guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) The prohibition in this section against the possession of alcoholic beverages does not apply to the tasting of alcoholic beverages by a student who is at least 18 years of age, who is tasting the alcoholic beverages as part of the student's required curriculum at a postsecondary educational institution that is institutionally accredited by an agency recognized by the United States Department of Education and that is licensed or exempt from licensure pursuant to the provisions of chapter 1005 or is a public postsecondary education institution; if the student is enrolled in the college and is tasting the alcoholic beverages only for instructional purposes during classes that are part of such a curriculum; if the student is allowed only to taste, but not consume or imbibe, the alcoholic beverages; and if the alcoholic beverages at all times remain in the possession and control of authorized instructional personnel of the college who are 21 years of age or older.

(3) In addition to any other penalty imposed for a violation of subsection (1), the court shall direct the Department of Highway Safety and Motor Vehicles to withhold issuance of, or suspend or revoke, the violator's driver's license or driving privilege, as provided in s. 322.056.

History.--s. 2, ch. 57-327; s. 2, ch. 72-230; s. 50, ch. 77-121; s. 3, ch. 80-74; s. 3, ch. 85-285; s. 4, ch. 90-265; s. 859, ch. 97-103; s. 2, ch. 2002-7; s. 68, ch. 2003-1.

1Note.--Sections 6 and 8, ch. 85-285, in pertinent part provide, respectively, that "in the event that a federal court of last resort determines that it is unconstitutional for the Federal Government

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to withhold transportation funds from the state because the legal age of the sale, consumption, or possession of alcoholic beverages is under 21 years of age or if federal legislation is enacted to allow the drinking age to be lowered or modified from 21 years of age, it is the intent of the Legislature that the amendments to [this section] contained in this act shall be null and void and that [this section reverts] to the language existing . . . on June 30, 1985."

856.015 Open house parties.--

(1) Definitions.--As used in this section:

(a) "Alcoholic beverage" means distilled spirits and any beverage containing 0.5 percent or more alcohol by volume. The percentage of alcohol by volume shall be determined in accordance with the provisions of s. 561.01(4)(b).

(b) "Control" means the authority or ability to regulate, direct, or dominate.

(c) "Drug" means a controlled substance, as that term is defined in ss. 893.02(4) and 893.03.

(d) "Minor" means an individual not legally permitted by reason of age to possess alcoholic beverages pursuant to chapter 562.

(e) "Open house party" means a social gathering at a residence.

(f) "Person" means an individual 18 years of age or older.

(g) "Residence" means a home, apartment, condominium, or other dwelling unit.

(2) No person having control of any residence shall allow an open house party to take place at said residence if any alcoholic beverage or drug is possessed or consumed at said residence by any minor where the person knows that an alcoholic beverage or drug is in the possession of or being consumed by a minor at said residence and where the person fails to take reasonable steps to prevent the possession or consumption of the alcoholic beverage or drug.

(3) The provisions of this section shall not apply to the use of alcoholic beverages at legally protected religious observances or activities.

(4) Any person who violates any of the provisions of subsection (2) commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.--ss. 4, 5, 6, 7, ch. 88-196; ss. 64, 65, 66, 67, ch. 88-381; s. 45, ch. 91-110; s. 217, ch. 91-224; s. 103, ch. 97-264; s. 9, ch. 99-186; s. 19, ch. 2000-320; s. 1, ch. 2002-60; s. 9, ch. 2002-78.

316.193 Driving under the influence; penalties.--

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(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired;

(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or

(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

(2)(a) Except as provided in paragraph (b), subsection (3), or subsection (4), any person who is convicted of a violation of subsection (1) shall be punished:

1. By a fine of:

a. Not less than $500 or more than $1,000 for a first conviction.

b. Not less than $1,000 or more than $2,000 for a second conviction; and

2. By imprisonment for:

a. Not more than 6 months for a first conviction.

b. Not more than 9 months for a second conviction.

3. For a second conviction, by mandatory placement for a period of at least 1 year, at the convicted person's sole expense, of an ignition interlock device approved by the department in accordance with s. 316.1938 upon all vehicles that are individually or jointly leased or owned and routinely operated by the convicted person, when the convicted person qualifies for a permanent or restricted license. The installation of such device may not occur before July 1, 2003.

(b)1. Any person who is convicted of a third violation of this section for an offense that occurs within 10 years after a prior conviction for a violation of this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. In addition, the court shall order the mandatory placement for a period of not less than 2 years, at the convicted person's sole expense, of an ignition interlock device approved by the department in accordance with s. 316.1938 upon all vehicles that are individually or jointly leased or owned and routinely operated by the convicted person, when the convicted person qualifies for a permanent or restricted license. The installation of such device may not occur before July 1, 2003.

2. Any person who is convicted of a third violation of this section for an offense that occurs more than 10 years after the date of a prior conviction for a violation of this section shall be

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punished by a fine of not less than $2,000 or more than $5,000 and by imprisonment for not more than 12 months. In addition, the court shall order the mandatory placement for a period of at least 2 years, at the convicted person's sole expense, of an ignition interlock device approved by the department in accordance with s. 316.1938 upon all vehicles that are individually or jointly leased or owned and routinely operated by the convicted person, when the convicted person qualifies for a permanent or restricted license. The installation of such device may not occur before July 1, 2003.

3. Any person who is convicted of a fourth or subsequent violation of this section, regardless of when any prior conviction for a violation of this section occurred, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. However, the fine imposed for such fourth or subsequent violation may be not less than $2,000.

(3) Any person:

(a) Who is in violation of subsection (1);

(b) Who operates a vehicle; and

(c) Who, by reason of such operation, causes or contributes to causing:

1. Damage to the property or person of another commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

2. Serious bodily injury to another, as defined in s. 316.1933, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

3. The death of any human being or unborn quick child commits DUI manslaughter, and commits:

a. A felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

b. A felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if:

(I) At the time of the crash, the person knew, or should have known, that the crash occurred; and

(II) The person failed to give information and render aid as required by s. 316.062. For purposes of this subsection, the definition of the term "unborn quick child" shall be determined in accordance with the definition of viable fetus as set forth in s. 782.071. A person who is convicted of DUI manslaughter shall be sentenced to a mandatory minimum term of imprisonment of 4 years.

(4) Any person who is convicted of a violation of subsection (1) and who has a blood-alcohol level or breath-alcohol level of 0.15 or higher, or any person who is convicted of a violation of

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subsection (1) and who at the time of the offense was accompanied in the vehicle by a person under the age of 18 years, shall be punished:

(a) By a fine of:

1. Not less than $1,000 or more than $2,000 for a first conviction.

2. Not less than $2,000 or more than $4,000 for a second conviction.

3. Not less than $4,000 for a third or subsequent conviction.

(b) By imprisonment for:

1. Not more than 9 months for a first conviction.

2. Not more than 12 months for a second conviction. For the purposes of this subsection, only the instant offense is required to be a violation of subsection (1) by a person who has a blood-alcohol level or breath-alcohol level of 0.15 or higher.

(c) In addition to the penalties in paragraphs (a) and (b), the court shall order the mandatory placement, at the convicted person's sole expense, of an ignition interlock device approved by the department in accordance with s. 316.1938 upon all vehicles that are individually or jointly leased or owned and routinely operated by the convicted person for not less than 6 continuous months for the first offense and for not less than 2 continuous years for a second offense, when the convicted person qualifies for a permanent or restricted license.

(5) The court shall place all offenders convicted of violating this section on monthly reporting probation and shall require completion of a substance abuse course conducted by a DUI program licensed by the department under s. 322.292, which must include a psychosocial evaluation of the offender. If the DUI program refers the offender to an authorized substance abuse treatment provider for substance abuse treatment, in addition to any sentence or fine imposed under this section, completion of all such education, evaluation, and treatment is a condition of reporting probation. The offender shall assume reasonable costs for such education, evaluation, and treatment. The referral to treatment resulting from a psychosocial evaluation shall not be waived without a supporting independent psychosocial evaluation conducted by an authorized substance abuse treatment provider appointed by the court, which shall have access to the DUI program's psychosocial evaluation before the independent psychosocial evaluation is conducted. The court shall review the results and recommendations of both evaluations before determining the request for waiver. The offender shall bear the full cost of this procedure. The term "substance abuse" means the abuse of alcohol or any substance named or described in Schedules I through V of s. 893.03. If an offender referred to treatment under this subsection fails to report for or complete such treatment or fails to complete the DUI program substance abuse education course and evaluation, the DUI program shall notify the court and the department of the failure. Upon receipt of the notice, the department shall cancel the offender's driving privilege, notwithstanding

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the terms of the court order or any suspension or revocation of the driving privilege. The department may temporarily reinstate the driving privilege on a restricted basis upon verification from the DUI program that the offender is currently participating in treatment and the DUI education course and evaluation requirement has been completed. If the DUI program notifies the department of the second failure to complete treatment, the department shall reinstate the driving privilege only after notice of completion of treatment from the DUI program. The organization that conducts the substance abuse education and evaluation may not provide required substance abuse treatment unless a waiver has been granted to that organization by the department. A waiver may be granted only if the department determines, in accordance with its rules, that the service provider that conducts the substance abuse education and evaluation is the most appropriate service provider and is licensed under chapter 397 or is exempt from such licensure. A statistical referral report shall be submitted quarterly to the department by each organization authorized to provide services under this section.

(6) With respect to any person convicted of a violation of subsection (1), regardless of any penalty imposed pursuant to subsection (2), subsection (3), or subsection (4):

(a) For the first conviction, the court shall place the defendant on probation for a period not to exceed 1 year and, as a condition of such probation, shall order the defendant to participate in public service or a community work project for a minimum of 50 hours. The court may order a defendant to pay a fine of $10 for each hour of public service or community work otherwise required only if the court finds that the residence or location of the defendant at the time public service or community work is required or the defendant's employment obligations would create an undue hardship for the defendant. However, the total period of probation and incarceration may not exceed 1 year. The court must also, as a condition of probation, order the impoundment or immobilization of the vehicle that was operated by or in the actual control of the defendant or any one vehicle registered in the defendant's name at the time of impoundment or immobilization, for a period of 10 days or for the unexpired term of any lease or rental agreement that expires within 10 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant. The impoundment or immobilization order may be dismissed in accordance with paragraph (e), paragraph (f), paragraph (g), or paragraph (h).

(b) For the second conviction for an offense that occurs within a period of 5 years after the date of a prior conviction for violation of this section, the court shall order imprisonment for not less than 10 days. The court must also, as a condition of probation, order the impoundment or immobilization of all vehicles owned by the defendant at the time of impoundment or immobilization, for a period of 30 days or for the unexpired term of any lease or rental agreement that expires within 30 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant and must occur concurrently with the driver's license revocation imposed under s. 322.28(2)(a)2. The impoundment or immobilization order may be dismissed in accordance with paragraph (e), paragraph (f), paragraph (g), or paragraph (h). At least 48 hours of confinement must be consecutive.

(c) For the third or subsequent conviction for an offense that occurs within a period of 10 years after the date of a prior conviction for violation of this section, the court shall order

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imprisonment for not less than 30 days. The court must also, as a condition of probation, order the impoundment or immobilization of all vehicles owned by the defendant at the time of impoundment or immobilization, for a period of 90 days or for the unexpired term of any lease or rental agreement that expires within 90 days. The impoundment or immobilization must not occur concurrently with the incarceration of the defendant and must occur concurrently with the driver's license revocation imposed under s. 322.28(2)(a)3. The impoundment or immobilization order may be dismissed in accordance with paragraph (e), paragraph (f), paragraph (g), or paragraph (h). At least 48 hours of confinement must be consecutive.

(d) The court must at the time of sentencing the defendant issue an order for the impoundment or immobilization of a vehicle. The order of impoundment or immobilization must include the name and telephone numbers of all immobilization agencies meeting all of the conditions of subsection (13). Within 7 business days after the date that the court issues the order of impoundment or immobilization, the clerk of the court must send notice by certified mail, return receipt requested, to the registered owner of each vehicle, if the registered owner is a person other than the defendant, and to each person of record claiming a lien against the vehicle.

(e) A person who owns but was not operating the vehicle when the offense occurred may submit to the court a police report indicating that the vehicle was stolen at the time of the offense or documentation of having purchased the vehicle after the offense was committed from an entity other than the defendant or the defendant's agent. If the court finds that the vehicle was stolen or that the sale was not made to circumvent the order and allow the defendant continued access to the vehicle, the order must be dismissed and the owner of the vehicle will incur no costs. If the court denies the request to dismiss the order of impoundment or immobilization, the petitioner may request an evidentiary hearing.

(f) A person who owns but was not operating the vehicle when the offense occurred, and whose vehicle was stolen or who purchased the vehicle after the offense was committed directly from the defendant or the defendant's agent, may request an evidentiary hearing to determine whether the impoundment or immobilization should occur. If the court finds that either the vehicle was stolen or the purchase was made without knowledge of the offense, that the purchaser had no relationship to the defendant other than through the transaction, and that such purchase would not circumvent the order and allow the defendant continued access to the vehicle, the order must be dismissed and the owner of the vehicle will incur no costs.

(g) The court shall also dismiss the order of impoundment or immobilization of the vehicle if the court finds that the family of the owner of the vehicle has no other private or public means of transportation.

(h) The court may also dismiss the order of impoundment or immobilization of any vehicles that are owned by the defendant but that are operated solely by the employees of the defendant or any business owned by the defendant.

(i) All costs and fees for the impoundment or immobilization, including the cost of notification, must be paid by the owner of the vehicle or, if the vehicle is leased or rented, by the person leasing or renting the vehicle, unless the impoundment or immobilization order is dismissed. All

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provisions of s. 713.78 shall apply. The costs and fees for the impoundment or immobilization must be paid directly to the person impounding or immobilizing the vehicle.

(j) The person who owns a vehicle that is impounded or immobilized under this paragraph, or a person who has a lien of record against such a vehicle and who has not requested a review of the impoundment pursuant to paragraph (e), paragraph (f), or paragraph (g), may, within 10 days after the date that person has knowledge of the location of the vehicle, file a complaint in the county in which the owner resides to determine whether the vehicle was wrongfully taken or withheld from the owner or lienholder. Upon the filing of a complaint, the owner or lienholder may have the vehicle released by posting with the court a bond or other adequate security equal to the amount of the costs and fees for impoundment or immobilization, including towing or storage, to ensure the payment of such costs and fees if the owner or lienholder does not prevail. When the bond is posted and the fee is paid as set forth in s. 28.24, the clerk of the court shall issue a certificate releasing the vehicle. At the time of release, after reasonable inspection, the owner or lienholder must give a receipt to the towing or storage company indicating any loss or damage to the vehicle or to the contents of the vehicle.

(k) A defendant, in the court's discretion, may be required to serve all or any portion of a term of imprisonment to which the defendant has been sentenced pursuant to this section in a residential alcoholism treatment program or a residential drug abuse treatment program. Any time spent in such a program must be credited by the court toward the term of imprisonment. For the purposes of this section, any conviction for a violation of s. 327.35; a previous conviction for the violation of former s. 316.1931, former s. 860.01, or former s. 316.028; or a previous conviction outside this state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, driving with an unlawful breath-alcohol level, or any other similar alcohol-related or drug-related traffic offense, is also considered a previous conviction for violation of this section. However, in satisfaction of the fine imposed pursuant to this section, the court may, upon a finding that the defendant is financially unable to pay either all or part of the fine, order that the defendant participate for a specified additional period of time in public service or a community work project in lieu of payment of that portion of the fine which the court determines the defendant is unable to pay. In determining such additional sentence, the court shall consider the amount of the unpaid portion of the fine and the reasonable value of the services to be ordered; however, the court may not compute the reasonable value of services at a rate less than the federal minimum wage at the time of sentencing.

(7) A conviction under this section does not bar any civil suit for damages against the person so convicted.

(8) At the arraignment, or in conjunction with any notice of arraignment provided by the clerk of the court, the clerk shall provide any person charged with a violation of this section with notice that upon conviction the court shall suspend or revoke the offender's driver's license and that the offender should make arrangements for transportation at any proceeding in which the court may take such action. Failure to provide such notice does not affect the court's suspension or revocation of the offender's driver's license.

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(9) A person who is arrested for a violation of this section may not be released from custody:

(a) Until the person is no longer under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893 and affected to the extent that his or her normal faculties are impaired;

(b) Until the person's blood-alcohol level or breath-alcohol level is less than 0.05; or

(c) Until 8 hours have elapsed from the time the person was arrested.

(10) The rulings of the Department of Highway Safety and Motor Vehicles under s. 322.2615 shall not be considered in any trial for a violation of this section. Testimony or evidence from the administrative proceedings or any written statement submitted by a person in his or her request for administrative review is inadmissible into evidence or for any other purpose in any criminal proceeding, unless timely disclosed in criminal discovery pursuant to Rule 3.220, Florida Rules of Criminal Procedure.

(11) The Department of Highway Safety and Motor Vehicles is directed to adopt rules providing for the implementation of the use of ignition interlock devices.

(12) If the records of the Department of Highway Safety and Motor Vehicles show that the defendant has been previously convicted of the offense of driving under the influence, that evidence is sufficient by itself to establish that prior conviction for driving under the influence. However, such evidence may be contradicted or rebutted by other evidence. This presumption may be considered along with any other evidence presented in deciding whether the defendant has been previously convicted of the offense of driving under the influence.

(13) If personnel of the circuit court or the sheriff do not immobilize vehicles, only immobilization agencies that meet the conditions of this subsection shall immobilize vehicles in that judicial circuit.

(a) The immobilization agency responsible for immobilizing vehicles in that judicial circuit shall be subject to strict compliance with all of the following conditions and restrictions:

1. Any immobilization agency engaged in the business of immobilizing vehicles shall:

a. Have a class "R" license issued pursuant to part IV of chapter 493;

b. Have at least 3 years of verifiable experience in immobilizing vehicles; and

c. Maintain accurate and complete records of all payments for the immobilization, copies of all documents pertaining to the court's order of impoundment or immobilization, and any other documents relevant to each immobilization. Such records must be maintained by the immobilization agency for at least 3 years.

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2. The person who immobilizes a vehicle must never have been convicted of any felony or of driving or boating under the influence of alcohol or a controlled substance in the last 3 years.

(b) A person who violates paragraph (a) commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(c) Any immobilization agency who is aggrieved by a person's violation of paragraph (a) may bring a civil action against the person who violated paragraph (a) seeking injunctive relief, damages, reasonable attorney's fees and costs, and any other remedy available at law or in equity as may be necessary to enforce this subsection. In any action to enforce this subsection, establishment of a violation of paragraph (a) shall conclusively establish a clear legal right to injunctive relief, that irreparable harm will be caused if an injunction does not issue, that no adequate remedy at law exists, and that public policy favors issuance of injunctive relief.

(14) As used in this chapter, the term:

(a) "Immobilization," "immobilizing," or "immobilize" means the act of installing a vehicle antitheft device on the steering wheel of a vehicle, the act of placing a tire lock or wheel clamp on a vehicle, or a governmental agency's act of taking physical possession of the license tag and vehicle registration rendering a vehicle legally inoperable to prevent any person from operating the vehicle pursuant to an order of impoundment or immobilization under subsection (6).

(b) "Immobilization agency" or "immobilization agencies" means any firm, company, agency, organization, partnership, corporation, association, trust, or other business entity of any kind whatsoever that meets all of the conditions of subsection (13).

(c) "Impoundment," "impounding," or "impound" means the act of storing a vehicle at a storage facility pursuant to an order of impoundment or immobilization under subsection (6) where the person impounding the vehicle exercises control, supervision, and responsibility over the vehicle.

(d) "Person" means any individual, firm, company, agency, organization, partnership, corporation, association, trust, or other business entity of any kind whatsoever.

History.--s. 1, ch. 71-135; s. 19, ch. 73-331; s. 1, ch. 74-384; s. 1, ch. 76-31; s. 1, ch. 79-408; s. 1, ch. 80-343; s. 2, ch. 82-155; s. 1, ch. 82-403; s. 2, ch. 83-187; s. 1, ch. 83-228; s. 1, ch. 84-359; s. 24, ch. 85-167; s. 2, ch. 85-337; s. 1, ch. 86-296; s. 2, ch. 88-5; s. 5, ch. 88-82; s. 8, ch. 88-196; s. 8, ch. 88-324; s. 60, ch. 88-381; s. 7, ch. 89-3; ss. 1, 18, ch. 91-255; s. 32, ch. 92-78; ss. 1, 11, ch. 93-124; s. 3, ch. 93-246; s. 1, ch. 94-324; s. 895, ch. 95-148; s. 1, ch. 95-186; s. 4, ch. 95-333; s. 12, ch. 95-408; s. 3, ch. 96-330; s. 2, ch. 96-413; s. 48, ch. 97-100; s. 97, ch. 97-264; s. 25, ch. 97-271; ss. 6, 13, ch. 98-324; s. 5, ch. 99-234; s. 139, ch. 99-248; s. 4, ch. 2000-313; s. 10, ch. 2000-320; s. 2, ch. 2002-78; s. 1, ch. 2002-263; s. 1, ch. 2004-379; s. 1, ch. 2005-119; s. 3, ch. 2007-211; s. 29, ch. 2008-111; s. 5, ch. 2008-176; s. 5, ch. 2009-138; s. 10, ch. 2009-206.

Note.--Former s. 316.028.

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322.2616 Suspension of license; persons under 21 years of age; right to review.--

(1)(a) Notwithstanding s. 316.193, it is unlawful for a person under the age of 21 who has a blood-alcohol or breath-alcohol level of 0.02 or higher to drive or be in actual physical control of a motor vehicle.

(b) A law enforcement officer who has probable cause to believe that a motor vehicle is being driven by or is in the actual physical control of a person who is under the age of 21 while under the influence of alcoholic beverages or who has any blood-alcohol or breath-alcohol level may lawfully detain such a person and may request that person to submit to a test to determine his or her blood-alcohol or breath-alcohol level.

(2)(a) A law enforcement officer or correctional officer shall, on behalf of the department, suspend the driving privilege of such person if the person has a blood-alcohol or breath-alcohol level of 0.02 or higher. The officer shall also suspend, on behalf of the department, the driving privilege of a person who has refused to submit to a test as provided by paragraph (b). The officer shall take the person's driver's license and issue the person a 10-day temporary driving permit if the person is otherwise eligible for the driving privilege and shall issue the person a notice of suspension.

(b) The suspension under paragraph (a) must be pursuant to, and the notice of suspension must inform the driver of, the following:

1.a. The driver refused to submit to a lawful breath test and his or her driving privilege is suspended for a period of 1 year for a first refusal or for a period of 18 months if his or her driving privilege has been previously suspended as provided in this section as a result of a refusal to submit to a test; or

b. The driver was under the age of 21 and was driving or in actual physical control of a motor vehicle while having a blood-alcohol or breath-alcohol level of 0.02 or higher; and the person's driving privilege is suspended for a period of 6 months for a first violation, or for a period of 1 year if his or her driving privilege has been previously suspended as provided in this section for driving or being in actual physical control of a motor vehicle with a blood-alcohol or breath-alcohol level of 0.02 or higher.

2. The suspension period commences on the date of issuance of the notice of suspension.

3. The driver may request a formal or informal review of the suspension by the department within 10 days after the issuance of the notice of suspension.

4. A temporary permit issued at the time of the issuance of the notice of suspension shall not become effective until after 12 hours have elapsed and will expire at midnight of the 10th day following the date of issuance.

5. The driver may submit to the department any materials relevant to the suspension of his or her license.

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(c) When a driver subject to this section has a blood-alcohol or breath-alcohol level of 0.05 or higher, the suspension shall remain in effect until such time as the driver has completed a substance abuse course offered by a DUI program licensed by the department. The driver shall assume the reasonable costs for the substance abuse course. As part of the substance abuse course, the program shall conduct a substance abuse evaluation of the driver, and notify the parents or legal guardians of drivers under the age of 19 years of the results of the evaluation. The term "substance abuse" means the abuse of alcohol or any substance named or described in Schedules I through V of s. 893.03. If a driver fails to complete the substance abuse education course and evaluation, the driver's license shall not be reinstated by the department.

(d) A minor under the age of 18 years proven to be driving with a blood-alcohol or breath-alcohol level of 0.02 or higher may be taken by a law enforcement officer to the addictions receiving facility in the county in which the minor is found to be so driving, if the county makes the addictions receiving facility available for such purpose.

(3) The law enforcement officer shall forward to the department, within 5 days after the date of the issuance of the notice of suspension, a copy of the notice of suspension, the driver's license of the person receiving the notice of suspension, and an affidavit stating the officer's grounds for belief that the person was under the age of 21 and was driving or in actual physical control of a motor vehicle with any blood-alcohol or breath-alcohol level, and the results of any blood or breath test or an affidavit stating that a breath test was requested by a law enforcement officer or correctional officer and that the person refused to submit to such test. The failure of the officer to submit materials within the 5-day period specified in this subsection does not bar the department from considering any materials submitted at or before the hearing.

(4) If the department finds that the license of the person should be suspended under this section and if the notice of suspension has not already been served upon the person by a law enforcement officer or correctional officer as provided in subsection (2), the department shall issue a notice of suspension and, unless the notice is mailed under s. 322.251, a temporary driving permit that expires 10 days after the date of issuance if the driver is otherwise eligible.

(5) If the person whose license is suspended requests an informal review under subparagraph (2)(b)3., the department shall conduct the informal review by a hearing officer employed by the department within 30 days after the request is received by the department and shall issue such person a temporary driving permit for business purposes only to expire on the date that such review is scheduled to be conducted if the person is otherwise eligible. The informal review hearing must consist solely of an examination by the department of the materials submitted by a law enforcement officer or correctional officer and by the person whose license is suspended, and the presence of an officer or witness is not required.

(6) After completion of the informal review, notice of the department's decision sustaining, amending, or invalidating the suspension of the driver's license must be provided to the person. The notice must be mailed to the person at the last known address shown on the department's records, or to the address provided in the law enforcement officer's report if such address differs from the address of record, within 7 days after completing the review.

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(7)(a) If the person whose license is suspended requests a formal review, the department must schedule a hearing to be held within 30 days after the request is received by the department and must notify the person of the date, time, and place of the hearing and shall issue such person a temporary driving permit for business purposes only to expire on the date that such review is scheduled to be conducted if the person is otherwise eligible.

(b) The formal review hearing must be held before a hearing officer employed by the department, and the hearing officer may administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas, regulate the course and conduct of the hearing, and make a ruling on the suspension. The department and the person whose license was suspended may subpoena witnesses, and the party requesting the presence of a witness is responsible for paying any witness fees and for notifying in writing the state attorney's office in the appropriate circuit of the issuance of the subpoena. If the person who requests a formal review hearing fails to appear and the hearing officer finds the failure to be without just cause, the right to a formal hearing is waived and the suspension is sustained.

(c) A party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides. A failure to comply with an order of the court constitutes contempt of court. However, a person may not be held in contempt while a subpoena is being challenged.

(d) The department must, within 7 days after a formal review hearing, send notice to the person of the hearing officer's decision as to whether sufficient cause exists to sustain, amend, or invalidate the suspension.

(8) In a formal review hearing under subsection (7) or an informal review hearing under subsection (5), the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension. The scope of the review is limited to the following issues:

(a) If the license was suspended because the individual, then under the age of 21, drove with a blood-alcohol or breath-alcohol level of 0.02 or higher:

1. Whether the law enforcement officer had probable cause to believe that the person was under the age of 21 and was driving or in actual physical control of a motor vehicle in this state with any blood-alcohol or breath-alcohol level or while under the influence of alcoholic beverages.

2. Whether the person was under the age of 21.

3. Whether the person had a blood-alcohol or breath-alcohol level of 0.02 or higher.

(b) If the license was suspended because of the individual's refusal to submit to a breath test:

1. Whether the law enforcement officer had probable cause to believe that the person was under the age of 21 and was driving or in actual physical control of a motor vehicle in this state with any blood-alcohol or breath-alcohol level or while under the influence of alcoholic beverages.

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2. Whether the person was under the age of 21.

3. Whether the person refused to submit to a breath test after being requested to do so by a law enforcement officer or correctional officer.

4. Whether the person was told that if he or she refused to submit to a breath test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.

(9) Based on the determination of the hearing officer under subsection (8) for both informal hearings under subsection (5) and formal hearings under subsection (7), the department shall:

(a) Sustain the suspension of the person's driving privilege for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of the person has been previously suspended, as provided in this section, as a result of a refusal to submit to a test. The suspension period commences on the date of the issuance of the notice of suspension.

(b) Sustain the suspension of the person's driving privilege for a period of 6 months for driving or being in actual physical control of a motor vehicle while under the age of 21 with a blood-alcohol or breath-alcohol level of 0.02 or higher, or for a period of 1 year if the driving privilege of such person has been previously suspended under this section. The suspension period commences on the date of the issuance of the notice of suspension.

(10) A request for a formal review hearing or an informal review hearing shall not stay the suspension of the person's driver's license. If the department fails to schedule the formal review hearing to be held within 30 days after receipt of the request therefor, the department shall invalidate the suspension. If the scheduled hearing is continued at the department's initiative, the department shall issue a temporary driving permit that is valid until the hearing is conducted if the person is otherwise eligible for the driving privilege. The permit shall not be issued to a person who requested a continuance of the hearing. The permit issued under this subsection authorizes driving for business or employment use only.

(11) A person whose driver's license is suspended under subsection (2) or subsection (4) may apply for issuance of a license for business or employment purposes only, pursuant to s. 322.271, if the person is otherwise eligible for the driving privilege. However, such a license may not be issued until 30 days have elapsed after the expiration of the last temporary driving permit issued under this section.

(12) The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or correctional officer, including documents relating to the administration of a breath test or the refusal to take a test. However, as provided in subsection (7), the driver may subpoena the officer or any person who administered a breath or blood test.

(13) The formal review hearing and the informal review hearing are exempt from chapter 120. The department may adopt rules for conducting reviews under this section.

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(14) A person may appeal any decision of the department sustaining a suspension of his or her driver's license by a petition for writ of certiorari to the circuit court in the county wherein such person resides or wherein a formal or informal review was conducted under s. 322.31. However, an appeal does not stay the suspension. This subsection does not provide for a de novo appeal.

(15) The decision of the department under this section shall not be considered in any trial for a violation of s. 316.193, nor shall any written statement submitted by a person in his or her request for departmental review under this section be admissible into evidence against him or her in any such trial. The disposition of any related criminal proceedings shall not affect a suspension imposed under this section.

(16) By applying for and accepting and using a driver's license, a person under the age of 21 years who holds the driver's license is deemed to have expressed his or her consent to the provisions of this section.

(17) A breath test to determine breath-alcohol level pursuant to this section may be conducted as authorized by s. 316.1932 or by a breath-alcohol test device listed in the United States Department of Transportation's conforming-product list of evidential breath-measurement devices. The reading from such a device is presumed accurate and is admissible in evidence in any administrative hearing conducted under this section.

(18) The result of a blood test obtained during an investigation conducted under s. 316.1932 or s. 316.1933 may be used to suspend the driving privilege of a person under this section.

(19) A violation of this section is neither a traffic infraction nor a criminal offense, nor does being detained pursuant to this section constitute an arrest. A violation of this section is subject to the administrative action provisions of this section, which are administered by the department through its administrative processes. Administrative actions taken pursuant to this section shall be recorded in the motor vehicle records maintained by the department. This section does not bar prosecution under s. 316.193. However, if the department suspends a person's license under s. 322.2615 for a violation of s. 316.193, it may not also suspend the person's license under this section for the same episode that was the basis for the suspension under s. 322.2615.

History.--s. 1, ch. 96-272; s. 39, ch. 97-96; s. 54, ch. 97-100; s. 1, ch. 2001-144; s. 3, ch. 2002-78.

Please Note: The State rules for the Mock Trial Competition have been removed and the Miami-Dade County Public Schools Division of Social Sciences Mock Trial Rules have been inserted. The M-DCPS District Mock Trial Rules are to be followed for the Miami-Dade County Public Schools Division of Social Sciences Mock Trial Competition.

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MIAMI‐DADE COUNTY MOCK TRIAL COMPETITION   

RULES AND GUIDELINES  

 1. Each school should be prepared to be both plaintiff and defense.  The same students 

could comprise both teams, or different students could be on each team.  Schools may alternate teams or team members from one round to the next. 

 2. All team members must be students in an elective law education class during the 

current school year.  Each school has the option of fielding a team which may include two members who are not currently enrolled in an elective law education class; however, these two students must have been enrolled in a law education class during a previous year. 

 3. Names of all potential participants must be submitted on an eligibility list.  Only 

students whose names appear on the eligibility list will be permitted to participate in the finals.  Schools must adhere to county interscholastic competition guidelines.  (See Student Standards for Participation in Interscholastic Extracurricular Student Activities from Florida State Statute 1006.15) 

 4. Students of either gender may portray the role of any witness.  The competition will 

strive to make roles gender neutral.  However, some cases will warrant a specific gender role.  In such cases, students of either gender may portray the role but the gender of the witness may not change from the case as presented. 

 5. Witness statements may be used by attorneys to “refresh” a witness’ memory and/or 

impeach the witness’ testimony in court.  6. A.  The trial proceedings will be governed by the Florida Mock Trial Simplified Rules 

  of Evidence.  Other more complex rules may not be raised at the trial.  Questions   or interpretations of these rules are within the discretion of the District   Committee, whose decision is final.   

  B. Each witness is bound by the facts contained in his/her own witness statement, 

the Statement of Facts, if present, and/or any necessary documentation relevant to his/her testimony.  Fair extrapolations may be allowed, provided reasonable inference may be made from the witness’ statement. If, in direct examination, an attorney asks a question which calls for extrapolated information pivotal to the facts at issue, the information is subject to objection outside the scope of the problem. 

 If, on cross‐examination, an attorney asks for unknown information, the witness may or may not respond, so long as any response is consistent with the witness’ 

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statement or affidavit and does not materially affect the witness’ testimony.    

Adding facts which are inconsistent with the witness statement or with the Stipulated Facts and which would be relevant with respect to any issue in the case is not permitted.  Examples include, but are not limited to (a) creating a physical or mental disability, (b) giving a witness a criminal or bad record when none is suggested by the statements, (c) creating facts which give a witness standing as an expert and (d) materially changing the witness’ profession, character, memory, mental or physical ability from the witness’ statement by testifying to “recent changes.” 

 C. If certain witnesses are stipulated to as experts, their expert qualifications may 

not be challenged or impeached by the opposing side.  However, their testimony concerning the facts of the case may be challenged.   

 D. On direct examination, the witness is limited to the facts given.  If a witness 

testifies in contradiction to the facts given in the witness statement, that testimony may be impeached on cross‐examination by the opposition through the correct use of the affidavit.  The procedure is outlined in the Simplified Rules of Evidence and Procedure. 

 E. On cross‐examination, no restrictions will be made on the witness or the cross‐

examination, except that the answer must be responsive and the witness can be impeached. 

 If the attorney who is cross‐examining the witness asks a question, the answer to which is not contained in the stipulations or affidavit then the witness may respond to that question with any answer as long as the answer does not contradict or materially change the affidavit. 

 If the answer by the witness is contrary to the stipulations or the affidavit, the cross‐examination attorney may impeach the witness. 

 F. Use of voir dire examination of a witness is not permitted. 

 2. If a witness invents an answer which is likely to affect the outcome of the trial, the 

opposition may object and request a bench conference.  Objections may be made only by the attorney who will conduct cross‐examination or direct examination of that witness.  The judge will decide whether or not to allow the testimony.  The scoring panel may consider such inventions of facts in making the decision concerning the best team presentation. 

 3. All participants agree that the witness statements are signed and sworn affidavits and 

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are admissible for reasons of impeachment only.  Proper procedure for impeachment must be followed as referred to in the Simplified Rules of Evidence and Procedure. 

 4. Each school must have a bailiff available for every round.  The bailiff must have a 

stopwatch and know how to use it.  Failure to meet these requirements will result in the loss of 1 (one) point per round. 

 5. The bailiff will stop the clock for the following:  

➤   objections 

➤   motions 

➤   presentation of documents 

➤   bench conferences  

Timing will halt during objections and responses to objections.  Timing will halt during the admission of documentary evidence.  In the interest of fairness, time extensions may be granted at the discretion of the presiding judge.  All objections should be argued in open court, not at the bench.  Timing will resume after the judge has ruled on the objection.  Students should avoid the use of tactics to “run out the clock” during the admission of evidence.  Judges will be instructed to consider this in scoring. 

 6. “Bailiff” will be provided and will keep the official time of the trial.  The bailiff’s role will 

be expanded to time the 10 minute debrief session, at 5 minutes per side.  This will help ensure that the schedule is maintained.  The bailiff will announce to the court when time has expired in each of the separate segments of the trail. 

 7. The rules of evidence governing trial practice have been modified and simplified for the 

purpose of this mock trail competition.  The 2008 Florida High School Mock Trial Competition Simplified Rules of Evidence and Procedure rules are to govern the proceedings.  Other more complex rules are not to be raised during the trial enactment.  Debate rather than legal standards is deemed to be more appropriate for judging this competition. 

 8. Attorneys will keep their presentations within the following time guidelines.  If time runs 

out once a question has been asked, it can be answered.  

OPENING STATEMENTS (ARGUMENTS)    5 minutes for each side  

DIRECT EXAMINATION (PROSECUTION)    7 minutes per witness  

CROSS EXAMINATION (DEFENSE)      6 minutes per witness 

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 RE‐DIRECT EXAMINATION (PROSECUTION)    2 minutes per witness 

 DIRECT EXAMINATION (DEFENSE)      7 minutes per witness 

 CROSS EXAMINATION (PROSECUTION)    6 minutes per witness 

 RE‐DIRECT EXAMINATION (DEFENSE)     2 minutes per witness 

 PREPARATION FOR CLOSING ARGUMENTS    3 minutes total 

 CLOSING STATEMENTS (ARGUMENTS)    8 minutes for each side 

 *   Petitioner may save maximum of one minute for rebuttal on closing statement. 

 9. Three minutes will be provided immediately before closing arguments solely for the 

purpose of preparing closing arguments.  Student attorneys will be allowed to confer with each other, but no other communication will be allowed in the courtroom during the recess.  The bailiff shall time the recess and all participants and observers shall remain seated during the recess. 

 10. The Prosecution/Plaintiff gives the opening statement first.  The Prosecution/Plaintiff 

gives the closing argument first; the Prosecution/Plaintiff may reserve one minute or less of the closing time for a rebuttal.  The Prosecution/Plaintiff must notify the judge before beginning closing argument if the rebuttal time is requested.  The Prosecution’s/Plaintiff’s rebuttal is limited to the scope of the defense’s closing argument. 

 Attorneys are not required to use the entire time allotted for each part of the trial.  Time remaining in one part of the trial may not be transferred to another part of the trial. 

 11. No student attorney will have less than 2 nor more than three of the following 8 

attorney roles.  The same student can not do both opening and closing arguments. The attorney roles for each team will be divided as follows: 

 I.   Opening Statements II.   Direct/Re‐direct Examination of Witness #1 III.   Direct/Re‐direct Examination of Witness #2 IV.   Direct/Re‐direct Examination of Witness #3 V.   Cross Examination of Witness #1 VI.   Cross Examination of Witness #2 

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VII.   Cross Examination of Witness #3 VIII.   Closing Arguments and Prosecution/Plaintiff optional rebuttal. 

 Opening statements must be given by both sides at the beginning of the trial. 

 The attorney who will examine a particular witness on direct examination is the only person who may make the objections to the opposing attorney’s questions of that witness on cross examination, and the attorney who will be cross‐examining a witness will be the only one permitted to make objections during the direct examination of that witness. 

 Each team must call the three witnesses listed in the case materials.  Witnesses must be called only by their own team and examined by both sides.  Witnesses may not be recalled. 

 Attorneys may use notes in presenting their cases.  Witnesses are not permitted to use notes while testifying during the trial. 

 To permit judge(s) to hear and see better, attorneys will stand during opening and closing statements, direct and cross‐examinations, all objections, and whenever addressing the presiding judge(s).  Students may move from the podium only with the permission of the presiding judge(s). 

 12. In each competition, whether petitioner or respondent, the school will field a team of:  

3 Attorneys 1 Alternate Attorney (optional) 3 Witnesses 1 Bailiff (minimum) 

 The alternate attorney may sit at the table and assist the other three attorneys, but may not address the court and must be identified as an alternate at the start of the trial. 

 13. Instructors, coaches, and observers shall not talk to, signal, communicate with, or coach 

their teams during the trial.  This rule remains in force during any recess time that may occur.  Team members within the bar area may, among themselves, communicate during the trial; however, no disruptive communication is allowed. 

 Non‐team members, alternate team members, teachers, and coaches must remain outside the bar in the spectator section of the courtroom.  Only the student attorneys participating in this round may communicate with each other. 

 14. Witnesses are to remain in the courtroom during the entire trial, and may not 

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communicate with attorneys (except when being examined).  15. For purposes of the competition, students will assume this is a jury trial.  The scoring 

judges will act as the jury.  Students should address the judges as a jury.  16. Team members, alternates, attorney coaches, teacher coaches, and any other persons 

directly associated with a mock trial team, except those authorized by the Executive Committee, are not allowed to view other teams in competition as long as their team remains in the competition.  Judges should maintain order in the courtroom.  If observers are disorderly, they will be asked to leave the premises. 

 17. If a team fails to adhere to the established guidelines/rules set forth for the 

competition, a judge may (depending upon the circumstances of the violation) reduce his/her rating of that team. 

 18. The student attorneys are to point out violations of the rules and guidelines during the 

trial through objections and side bars.  However, if a coach feels a violation has not been remedied, he/she can appeal to the Executive Committee. 

  

Both teams involved will designate one team member to present its case to the judging panel and one member of the Executive Committee.  Each team will have three minutes for the presentation. 

 If the judges and member of the Executive Committee determine that a possible rules violation exists or that there exists a legitimate dispute over facts which would constitute a possible rules violation, the scoring judges will be allowed to consider the dispute before finalizing their scoring.  The dispute may or may not affect the final decision, but the matter will be left to the discretion of the judges and the Executive Committee.  Their decision will be FINAL. 

 19. Students may read other cases, materials, and articles in preparation for the mock trial.  

However, students may cite only the case materials given, and they may introduce into evidence only those documents given in the official packet.  In addition, students may not use, even for demonstrative purposes, any materials which are not provided in the official packet.  The following are not permitted: props, costumes, and/or enlargements. 

 20. All participants are expected to display proper courtroom decorum and sportsmanlike 

conduct.  Videotaping is allowed in each trial only with the consent of the teacher/coaches from both teams and the presiding judge(s). 

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SIMPLIFIED RULES OF EVIDENCE AND PROCEDURE In American courts, elaborate rules are used to regulate the kind of proof (i.e., spoken

testimony by witnesses or physical evidence) that can be used in trials. These rules are designed to ensure that both parties receive a fair hearing. Under the rules, any testimony or physical objects deemed irrelevant, incompetent, untrustworthy, or unduly prejudicial may be kept out of the trial. If it appears that a rule of evidence is being violated, an attorney may raise an objection to the judge. Usually, the attorney stands and says, "I object, your honor," and then gives the reason for the objection. Sometimes the attorney whose questions or actions are being objected to will then explain why he or she thinks the rule was not violated. The judge then decides whether the rule has been violated and whether the testimony or physical items must be excluded from the trial. Official rules of evidence are quite complicated. They also differ depending on the kind of court where the trial occurs. For purposes of this mock trial competition, the rules of evidence you will use have been made less complicated than those used in actual courts. The ideas behind these simplified rules are similar to actual rules of evidence. A. Witness Examination/Questioning

1. Direct Examination

Attorneys call and question their own witnesses using direct as opposed to leading questions. Example:

Elyse Roberts is called by her attorney to explain the events leading up to her filing suit against Potomac County.

“Ms. Roberts, where do you work? How long have you worked there? Please describe your working relationship with Mr. Kevin Murphy during the first month of employment. Why did you meet with your supervisor, Fran Troy? Did you seek advice from a therapist during this time?”

Questions such as the above do not suggest the answer. Instead, they introduce a witness to a particular area of importance, leaving the witness free to relate the facts. Obviously, the witness will have been prepared to answer such questions in a particular way. But the question by its terms does not "lead" to the answer.

a. Leading Questions

A leading question is one that suggests the answer. It does not simply call the witness' attention to a subject. Rather, it indicates or tells the witness what the answer should be about that subject. Leading questions are not permitted on direct examination, but questions on cross-examination should be leading.

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Examples:

“Mrs. Roberts, despite repeated invitations, you chose not to participate in office social functions, correct?” “Isn't it true, that due to all the stress from work you decided to go to a therapist?”

These questions are obviously in contrast to the direct examination questions in the preceding section. Leading questions suggest the answer to the witness. This is not proper for direct examination when a party is questioning its own witness.

b. Narration

While the purpose of direct examination is to get the witness to tell a story, the questions must ask for specific information. The questions must not be so broad that the witness is allowed to wander or "narrate" a whole story. At times, the witness' answer to a direct question may go beyond the facts asked for by the question asked. Narrative questions are objectionable.

Example Narrative Question:

“Ms. Roberts, please tell the court about the events that contributed to your decision to sue the county.”

Narrative Answer:

“It all began the night I found out that it was the county that was dumping on my land. At first I thought it was my neighbors, but they denied having any part in the dumping. I decided to watch my vacant lot and see if I could catch the person responsible. I drove down to my lot the night of the 13th and parked in a place where I could see the lot but no one could see me…”

c. Scope of Witness Examination

Direct examination may cover all facts relevant to the case of which the witness has first-hand knowledge.

d. Character

For the purpose of this mock trial, evidence about the character of a party may not be introduced unless the person’s character is an issue in the case.

i. Methods of Proving Character (Section 90.405)

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1. Reputation: When evidence of the character of a person or of a trait of his/her character is admissible, proof may be made by testimony about his/her reputation.

2. Specific Instances of Conduct: When character or a trait of character of a

person is an essential element of a charge, claim, or defense, proof may be made of specific instances of his/her conduct.

e. Refreshing Recollection

When a witness uses a writing or other item to refresh his/her memory while testifying, an adverse party is entitled to have such writing or other item produced at the hearing to inspect it, to cross-examine the witness thereon, and to introduce it, or in the case of writing, to introduce those portions which relate to the testimony of the witness, in evidence.

2. Cross Examination (questioning the opposing side’s witnesses)

Cross-examination should involve leading questions. In fact, it is customary to present a witness with a proposition and ask the witness to either agree or disagree. Thus, good cross-examination calls only for a yes or no answer. Examples:

“Mr. Roberts, in direct examination you testified that litigation was very stressful for you, correct? In fact you were so stressed that you did work at home or called in sick. Isn't this true?”

“As an assistant district attorney, you knew that trying only three cases while settling 75 cases was not a job performance your supervisor would rate highly, didn't you?”

“Thus given the stress you felt, your poor attendance at work and poor job performance, it was not unusual for your supervisor to transfer you to another Bureau, was it?”

Leading questions are permissible on cross-examination. Questions tending to evoke a narrative answer should be avoided.

a. Scope of Witness Examination

Cross-examination is not limited. Attorneys may ask questions of a particular witness that relate to matters brought out by the opposing side on direct examination of that witness, matters relating to the credibility of the witness, and additional matters otherwise admissible, that were not covered on direct examination.

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b. Impeachment

On cross-examination, the attorney may want to show the court that the witness should not be believed. A witness' credibility may be impeached by showing evidence of the witness' character and conduct, prior convictions, and prior inconsistent statements. If the witness testifies differently from the information in their sworn affidavit, it may then be necessary to "impeach" the witness. That is, the attorney will want to show that the witness previously said something that contradicts the testimony on the stand.

i. Impeachment Procedure

Impeachment may be done by comparing what a witness says on the witness stand at trial to what is contained in the witness' affidavit. By pointing out the differences between what a witness now says and what the witness' affidavit says, the attorney shows that the witness has contradicted himself or herself.

ii. Who May Impeach?

Any party, including the party calling the witness, may attack the credibility of a witness by:

1. Introducing statements of the witness which are inconsistent with his/her

present testimony;

2. Showing that the witness is biased;

3. Attaching the character of the witness in accordance with the state mock trial competition rules of evidence and procedure;

4. Showing a defect of capacity, ability, or opportunity in the witness to

observe, remember, or recount the matters about which he/she testified; and

5. Proof by other witnesses that material facts are not as testified to by the

witness being impeached.

iii. Section 90.610 Conviction of Certain Crimes as Impeachment

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, with the following exceptions:

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1. Evidence of any such conviction is inadmissible in a civil trial if it is so

remote in time as to have no bearing on the present character of the witness.

2. Evidence of juvenile adjudications is inadmissible under this subsection.

iv. Section 90.614 Prior Statements of Witness

1. When witness is examined concerning his prior written statement or

concerning an oral statement that has been reduced to writing, the court, on motion of the adverse party, shall order the statement to be shown to the witness or its contents disclosed to him.

2. Extrinsic evidence of a prior inconsistent statement by a witness is

inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate him on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit that he has made the prior inconsistent statement, extrinsic evidence of such statement is admissible. This subsection is not applicable to admissions of a party-opponent.

3. Re-direct and re-cross examination/questioning. If the credibility or

reputation for truthfulness of the witness has been attacked on cross-examination, the attorney whose witness has been damaged may wish to ask several more questions. These questions should be limited to the damage the attorney thinks has been done and should be phrased so as to try to "save" the witness' truth-telling image in the eyes of the court. Re-direct examination is limited to issues raised by the attorney on cross-examination. Re-cross examinations follows re-direct examination but is limited to the issues raised on re-direct only and should avoid repetition. The presiding judge may exercise reasonable control over questioning so as to make questioning effective to ascertain truth, avoid needless waste of time, and protect witnesses from harassment.

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B. Objections

An attorney can object any time the opposing attorneys have violated the rules of evidence. The attorney wishing to object should stand up and do so at the time of the violation. When an objection is made, the judge may ask the reason for it. Then the judge may turn to the attorney whose question or action is being objected to, and that attorney usually will have a chance to explain why the judge should not accept the objection. The judge will then decide whether a question or answer must be discarded because it has violated a rule of evidence or whether to allow the question or answer to be considered as evidence. The legal term “objection sustained” means that the judge agrees with the objection and excludes the testimony or item objected to. The legal term “objection overruled” means that the judge disagrees with the objection and allows the testimony or item to be considered as evidence.

1. Standard Objections on Direct and Cross Examination

1. Irrelevant Evidence: “I object, your honor. This testimony is irrelevant to the facts of this case.”

2. Leading Questions: “Objection. Counsel is leading the witness.” Remember, this is only objectionable when done on direct examination (Ref. Section A1.a).

3. Narrative Questions and Answers: may be objectionable (Ref. Section A1.b).

4. Improper Character Testimony: “Objection. The witness’ character or reputation has

not been put in issue or “Objection. Only the witness’ reputation/character for truthfulness is at issue here.”

5. Hearsay: “Objection. Counsel’s question/the witness’ answer is based on hearsay.” If

the witness makes a hearsay statement, the attorney should also say, “and I ask that the statement be stricken from the record.”

6. Opinion: “Objection. Counsel is asking the witness to give an opinion.”

7. Lack of Personal Knowledge: “Objection. The witness has no personal knowledge that

would enable him/her to answer this question.”

8. Lack of Proper Predicate: Exhibits will not be admitted into evidence until they have been identified and shown to be authentic (unless identification and/or authenticity have been stipulated). Even after proper predicate has been laid, the exhibits may still be objectionable due to relevance, hearsay, etc.

9. Ambiguous Questions: An attorney shall not ask questions that are capable of being

understood in two or more possible ways.

10. Non-responsive Answer: A witness’ answer is objectionable if it fails to respond to the question asked.

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11. Argumentative Question: An attorney shall not ask a question which asks the witness to

agree to a conclusion drawn by the questioner without eliciting testimony as to new facts. However, the Court may, in its discretion, allow limited use of argumentative questions on cross-examination.

12. Unfair Extrapolation/Beyond the Scope of the Statement of Facts

Attorneys shall not ask questions calling for information outside the scope of the case materials or requesting an unfair extrapolation. Unfair extrapolations are best attacked through impeachment and closing arguments and are to be dealt with in the course of the trial. A fair extrapolation is one that is neutral. Note: Fair extrapolations may be allowed, provided reasonable inference may be made from the witness’s statement. If, in direct examination, an attorney asks a question which calls for extrapolated information pivotal to the facts at issue, the information is subject to objection Outside the Scope of the Problem. If in CROSS examination, an attorney asks for unknown information, the witness may or may not respond, so long as any response is consistent with the witness’ statement or affidavit and does not materially affect the witness’ testimony.

13. Asked and Answered: “Objection. Your honor, the question has already been asked

and answered.”

14. Objections Not Recognized in This Jurisdiction: An objection which is not contained in these materials shall not be considered by the Court. However, if counsel responding to the objection does not point out to the judge the application of this rule, the Court may exercise its discretion in considering such objection.

Note: Attorneys should stand during objections, examinations, and statements. No objections should be made during opening/closing statements but afterwards the attorneys may indicate what the objection would have been. The opposing counsel should raise his/her hand to be recognized by the judge and may say, “If I had been permitted to object during closing arguments, I would have objected to the opposing team’s statement that .” The presiding judge will not rule on this objection individually and no rebuttal from the opposing team will be heard.

15. Opinions of Witnesses

1. Expert Opinion

1. Section 90.702 Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education

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may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.

2. Section 90.703 Opinions on Ultimate Issue

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it included an ultimate issue to be decided by the trier of fact.

3. Section 90.704 Basis of Opinion Testimony by Experts

The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, him at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.

4. Expert Opinion (additional information)

An expert shall not express an opinion as to the guilt or innocence of the accused.

2. Lay Opinion

1. Section 90.701 Opinion Testimony of Lay Witnesses

If a witness is not testifying as an expert, his testimony about what he perceived may be in the form of inference and opinion when:

1. The witness cannot readily, and with equal accuracy and adequacy,

communicate what he has perceived to the trier of fact without testifying in terms of inferences or opinions and his use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and

2. The opinions and inferences do not require a special knowledge,

skill, experience, or training.

2. Lay Opinion (additional information)

All witnesses may offer opinions based on the common experience of laypersons in the community and of which the witnesses have first-hand knowledge. A lay opinion may also be obtained. For example, Sandy Yu, as the personnel director, would know of other complaints of sexual harassment in the office and any formal reprimands, even though he is not an expert in sexual harassment. They may be asked questions within that range of

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experience. No witness, not even an expert, may give an opinion about how the case should be decided.

The cross-examination of opinions proceeds much like the cross-examination of any witness. Questions, as indicated above, may be based upon the prior statement of the witness. Inconsistencies may be shown. In addition, the witness may be asked whether he or she has been employed by any party, to show bias or interest. Or a witness giving an opinion may be asked the limits of certainty in that opinion, as follows:

“Dr. Isaacs, please read this portion of your sworn statement to the court.”

"I have studied the records of this case, and have conducted two one-hour interviews with Elyse Roberts on March 29 and 31st. In those interviews, she described to me her family history, her work environment, the actions of her co-workers and supervisor and her resulting feelings."

“This is your statement, is it not, Dr. Isaacs? Ms. Roberts selected you because of your expertise in sexual harassment in the workplace, correct? During your two-hour interview you were only concerned with evaluating Ms. Roberts’ working environment and not other psychological factors that may have caused her problems. Thus you really can't say that Ms. Roberts' difficulty on the job was only caused by the actions of Mr. Murphy, can you?”

The point of these questions is not to discredit the witness. Rather, the objective is simply to treat the witness as a responsible professional who will acknowledge the limits of her or his expertise and testimony. If the witness refuses to acknowledge those limits, the witness then is discredited.

It is always important in cross-examination to avoid arguing with the witness. It is particularly important with an expert. Thus, the cross-examination should be carefully constructed to call only for facts or to draw upon statements the witness has already made.

3. Lack of Personal Knowledge

A witness may not testify to any matter of which the witness has no personal knowledge. The legal term for testimony of which the witness has no personal knowledge is "incompetent."

16. Relevance of Testimony and Physical Objects

Generally, only relevant testimony may be presented. Relevant evidence is physical evidence and testimony that makes a fact that is important to the case more or less

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probable than the fact would be without the evidence. However, if the relevant evidence is unfairly prejudicial, may confuse the issues, or is a waste of time, it may be excluded by the court. Such relevant but excludable evidence may be testimony, physical evidence, or demonstrations that have no direct bearing on the issues of the case or do not make the issues clearer.

1. Introduction of Documents, Exhibits, Items, and Other Physical Objects Into

Evidence

There is a special procedure for introducing physical evidence during a trial. The physical evidence must be relevant to the case, and the attorney must be prepared to its use on that basis. Below are the basic steps to use when introducing a physical object or document for identification and/or use as evidence.

1. Show exhibit and have it marked by the judge. Say “Your Honor, I ask

that this ___ be marked for identification as Plaintiff’s/Defendant’s Exhibit No. ___”

2. Show the exhibit to opposing counsel for possible objection. Ask the

witness to identify the exhibit. “I now hand you what is marked as Exhibit No. 1. Do you recognize this document?”

3. At this point the attorney may proceed to ask the witness a series of

questions about the exhibit.

4. If the attorney wishes to place the document into evidence, say, “Your Honor, I offer this ____ marked as Plaintiff's/Defendant's Exhibit No. 1 into evidence and ask the Court to so admit it.”

Court: “Is there any objection?”

Opposing Counsel: “No, your Honor.” or “Yes, your Honor.” (then state

objection).

Court: “Plaintiff's/Defendant's Exhibit No. 1 is (is not) admitted.”

NOTE: A witness may be asked questions about his/her statement without its introduction into evidence; but to read from it or submit it to the judge, it must first be admitted into evidence. Exhibits can be pre-marked.

17. Hearsay and Exceptions to this Ruling

1. What is Hearsay?

Hearsay evidence is normally excluded from a trial because it is deemed untrustworthy. “Hearsay” is a statement other than one made by the witness

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testifying at the trial, offered in evidence to prove that the matter asserted in the statement is true. An example of hearsay is a witness testifying that he heard another person saying something about the facts in the case. The reason that hearsay is untrustworthy is because the opposing side has no way of testing the credibility of the out-of-court statement or the person who supposedly made the statement. Thus, for example, the following questions would be objectionable as “hearsay” if you are trying to prove that the color of the door was red:

“Mr. Edwards what color did Bob say the door was?”

This is hearsay. Mr. Edwards is using Bob's statement for him to prove the color of the door. Instead, Bob or someone who saw the door needs to be called to testify as to the color of the door.

2. Reasons for Prohibiting Hearsay

Our legal system is designed to promote the discovery of truth in a fair way. One way it seeks to accomplish this goal is by ensuring that the evidence presented in court is “reliable”; that is, we can be fairly certain the evidence is true. Hearsay evidence is said to be “unreliable” for four reasons:

1. The hearsay statement might be distorted or misinterpreted by the witness

relating it in court.

2. The hearsay statement is not made in court and is not made under oath

3. The hearsay statement is not made in court, and the person who made it cannot be observed by the judge or jury (this is important because the judge or jury should be allowed to observe a witness' behavior and evaluate his/her credibility).

4. The hearsay statement is not made in court and the person who made it

cannot be challenged by cross-examination.

3. When Can Hearsay Evidence Be Admitted?

Although hearsay is generally not admissible, there are certain out-of-court statements that are treated as not being hearsay, and there are out-of-court statements that are allowed into evidence as exceptions to the rule prohibiting hearsay.

Statements that are not hearsay are prior statements made by the witness himself and admissions made by a party opponent.

1. Exceptions

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Hearsay is not admissible, except as provided by these rules. For purposes of this mock trial, the following exceptions to the hearsay rule will be allowed; even though the declarant is available as a witness.

1. Spontaneous Statement

A statement describing or explaining an event or condition made while the declarant perceived the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.

2. Excited Utterance

A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

3. Medical Statements

Statements made for the purpose of medical diagnosis or treatment by a person seeking the diagnosis, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe medical history, past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.

4. Recorded Recollection

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.

5. Records of a Regularly Conducted Activity

1. A memorandum, report, record, or data compilation, in any

form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by testimony of the custodian or other qualified witness, unless

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the sources of information or other circumstances show lack of trustworthiness. The term “business” as used in this paragraph includes a business, institution, association, profession, occupation, and calling for every kind, whether or not conducted for profit.

2. No evidence in the form of an opinion or diagnosis is

admissible under paragraph (a) unless such opinion or diagnosis would otherwise be admissible if the person whose opinion is recorded were to testify to the opinion directly.

6. Learned Treatises

To the extent called to the attention of an expert witness upon cross examination or relied upon by the expert witness in direct examination, statements contained in public treatises, periodicals or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness, or by other expert testimony, or by judicial notice.

7. Then Existing Mental, Emotional, or Physical Condition

1. A statement of the declarant’s then existing state of mind,

emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:

1. Prove the declarant’s state of mind, emotion, or

physical sensation at that time or at any other time when such state is an issue in the action.

2. Prove or explain acts of subsequent conduct of the

declarant. 2. However, this subsection does not make admissible:

1. An after-the-fact statement of memory or belief to

prove the fact remembered or believed, unless such a statement relates to the execution, revocation, identification, or terms of the declarant's will.

2. A statement made under circumstances that indicate

its lack of trustworthiness.

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C. Trial Motions

No trial motions are allowed except for special jury instructions as permitted in these case materials. Examples: Directed verdict, dismissal, acquittal, motion in limine, motion to sequester witnesses. Exception: Motion for Recess may only be used in emergency situations.

D. Attorney Demeanor **See Code of Ethical Conduct Note: Please refer to Official Case Materials for any specific additions relative to this trial.

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GUIDELINES FOR TEACHER COACHES A. Role of the Teacher Coach The teacher coach is expected to help the team members decide which students will play which parts in the mock trial and to assist the students in playing those roles. As part of the sizeable responsibility of acting as team coaches, teachers are responsible for the following areas: 1. Rules of the Program: All teachers and teams are expected to adhere to the rules, facts and all other materials provided in the 2009 Mock Trial Competition Case Materials. Therefore, please make sure you are familiar with the Competition rules. 2. Role Assignments: Team members should be strongly encouraged to select roles based on their interests and abilities and not on the basis of any gender or cultural stereotypes which might be drawn from the characterizations in the fact pattern. 3. Team Preparation: Attorneys will also help coach each team. Teams should prepare both sides of the case and are strongly urged to arrange and conduct preliminary mock trials with other teams prior to competing in the district and circuit competition. Preliminary trials require only one attorney or judge to act as the presiding judge, as it is not necessary to award points to the teams during these practice rounds. 4. Education: Education of the students is the primary goal of the Mock Trial Competition. Healthy competition helps to achieve this goal, but teachers are reminded of their responsibility to keep the competitive spirit at a reasonable level. The reality of the adversarial system is that one party wins and the other loses, and teachers should be sure to prepare their teams to be ready to accept either outcome in a mature manner. Teachers can help prepare students for either outcome by placing the highest value on excellent preparation and presentation, rather than on winning or losing the trial. 5. Observers: Other classes, parents, and friends of the participants are welcome to attend the trials. However, please note that space in the courtroom is limited. The presiding judge may ask overflow observers to leave the courtroom. All observers must be seated during the trial. 6. Arrival Times: Teachers are responsible for getting their teams to the assigned courtroom 15 minutes prior to the starting time of each trial.

GUIDELINES FOR ATTORNEY COACHES 1. Much as you will want to help the students, point them in the right direction, and give them

the benefit of your experience, remember that the students will develop a better understanding of the case and learn more from the experience if the attorney coaches do not dominate the preparation phase of the tournament. The preparation phase of the contest is intended to be a cooperative effort of students, teacher and attorney coaches.

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2. Avoid (even the appearance of) “talking down” to students and/or stifling discussion through the use of complicated “legalese.”

3. The first session with a student team should be devoted to the following tasks:

1. Answering questions that students may have concerning general trial practices;

2. Explaining the reasons for the sequence of events/procedures found in a trial;

3. Listening to the students’ approach to the assigned case; and

4. Emphasizing the key points, such as the elements to be proved, and the relevance and importance of available legal authority.

4. Subsequent sessions with students should center on the development of proper questioning

techniques by the student attorneys and sound testimony by the witnesses. Here an attorney can best serve as a constructive observer and teacher...listening, suggesting and demonstrating to the team.

5. Attorney coaches should not prepare opening statements, closing statements, or questions

for the students. Students should be encouraged to do as much of their own preparation as possible.

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Florida High School Mock Trial Competition SCORE SHEET/BALLOT

P = Plaintiff:__________________________ D = Defense:____________________________

(Team Code) (Team Code) Date:______________________ Round: (circle one) 1 2 3 4 F

Using a scale of 1 to 10, rate the P and D in the categories below.

Do NOT use fractional points. Please use a ballpoint pen. Not Effective Fair Good Excellent Outstanding

1 2 3 4 5 6 7 8 9 10

Score Sheet/ Ballot P D

Opening Statement (________) (________)

Plaintiff’s First Witness Direct Examination

Witness Presentation

(________)

(________)

Cross Examination

(________)

Plaintiff’s Second Witness Direct Examination

Witness Presentation

(________)

(________)

Cross Examination

(________)

Plaintiff’s Third Witness Direct Examination

Witness Presentation

(________)

(________) Cross Examination

(________)

Defense’s First Witness Cross Examination

(________)

Direct Examination Witness Presentation

(________)

(________)

Defense’s Second Witness Cross Examination

(________)

Direct Examination Witness Presentation

(________)

(________)

Defense’s Third Witness Cross Examination

(________)

Direct Examination Witness Presentation

(________)

(________)

Closing Argument (________) (________)

Ethical Conduct (________) (________)

Team Performance (________) (________)

Column Totals: DO NOT TIE TEAMS (________) (________) Note: Any errors in ADDITION will be corrected by score room staff. Please review your individual scores and return to trial coordinator. _______________________________________ Judge’s Signature

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Florida High School Mock Trial Competition EXPLANATION OF RATINGS USED ON THE SCORE SHEET/BALLOT

Participants will be rated in the categories on the ballot on a scale of 1-10 points (10 being the highest), according to their roles in the trial. The Scoring Judges are scoring STUDENT PRESENTATION in each category. The Scoring Judges are NOT scoring the legal merits of the case. Each category is to be evaluated separately and fractional points ARE NOT to be awarded. One team MUST be awarded more total points than the other. The team winning the majority of the ballots shall win the round. Judging panels also may recognize outstanding individual presentations by selecting one MOST EFFECTIVE ATTORNEY and/or one MOST EFFECTIVE WITNESS per round. The decision must be representative of the majority of the panel members. Judges may NOT disclose the score sheet/ballot results or the identities of the Most Effective Attorney and/or Witness to anyone other than the mock trial coordinator. Sign your score sheet/ballot before turning it over to the presiding judge on your panel. DO NOT ANNOUNCE SCORES OR RESULTS TO THE TEAMS DURING THE CRITIQUE!

POINT(S) PERFORMANCE CRITERIA FOR EVALUATING STUDENT PERFORMANCE

1-2 Not Effective

1. Exhibits lack of preparation/understanding of the case materials. 2. Communication unclear, disorganized, and ineffective. 3. Unsure of self, does not think well on feet, depends heavily on

notes.

3-4 Fair

1. Exhibits minimal preparation/understanding of the case materials.

2. Communication minimally clear and organized, but lacking in fluency and persuasiveness.

3. Minimally self-assured, but lacks confidence under pressure.

5-6 Good 1. Exhibits adequate preparation/understanding of the case materials. 2. Communications are clear and understandable, but could be

stronger in fluency and persuasiveness. 3. Generally self-assured, reads from notes very little.

7-8 Excellent 1. Exhibits mastery of the case materials. 2. Communication is clear, organized, fluent and persuasive. 3. Thinks well on feet, poised under pressure, does not read from

notes.

9-10 Outstanding 1. Superior in qualities listed for 7-8 points' performance.

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PROFESSIONALISM The Florida Bar’s Standing Committee on Professionalism’s working definition of professionalism: Professionalism is the pursuit of practice of the highest ideals and tenets of the legal profession. It embraces far more than simply complying with the minimal standards of professional conduct. The essential ingredients of professionalism are character, competence, and commitment. Other thoughts on professionalism: “...To me, the essence of professionalism is a commitment to develop one’s skills and to apply that responsibility to the problems at hand. Professionalism requires adherence to the highest ethical standards of conduct and willingness to subordinate narrow self-interest in pursuit of the more fundamental goal of public service. Because of the tremendous power they wield in our system, lawyers must never forget that their duty to serve their clients fairly and skillfully takes priority over the personal accumulation of wealth. At the same time, lawyers must temper bold advocacy for their clients with a sense of responsibility to the larger legal system which strives, however imperfectly, to provide justice for all.” Justice Sandra Day O’Connor “Professionalism is no more, and no less, than conducting one’s self at all times in such a manner as to demonstrate complete candor, honesty, and courtesy in all relationships with clients, associates, courts, and the general public. It is the personification of the accepted standard of conduct so long recognized and observed by able lawyers throughout history, that a lawyer’s word is his bond. It encompasses the fundamental belief that a lawyer’s primary obligation is to serve his or her client’s interests faithfully and completely, with compensation only a secondary concern, and with ultimate justice as the final goal.”

Don Jackson, former chair of the Senior Lawyer Division of the American Bar Association

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OATH OF ADMISSION TO THE FLORIDA BAR

The general principles which should ever control the lawyer in the practice of the legal profession are clearly set forth in the following oath of admission to the Bar, which the lawyer is sworn on admission to obey and for the willful violation to which disbarment may be had.

“I do solemnly swear:

“I will support the Constitution of the United States and the Constitution of the State of Florida;

“I will maintain the respect due to courts of justice and judicial officers;

“I will not counsel or maintain any suit or proceedings which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land;

“I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law;

“I will maintain the confidence and preserve inviolate the secrets of my clients, and will accept no compensation in connection with their business except from them or with their knowledge and approval;

“I will abstain from all offensive personality and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;

“I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone’s cause for lucre or malice. So help me God.”