A
DUI is
the the most technical area of misdemeanor law.
There are many ways to defend a DUI case. Below
is some general information about the Florida
DUI law. This is no substitute for legal advice.
Every DUI case has a different set of facts and
circumstances. We welcome you to contact us with
any of your questions for a free consultation
YOU ONLY HAVE 10 DAYS FROM THE DATE OF YOUR ARREST TO CONTEST YOUR DRIVER’S LICENSE SUSPENSION.
We can help! Call The Law Offices of
Jauregui & Jauregui, P.A. for a free
consultation 305-558-5335. If you refused to
take a breath, blood or urine test after
being arrested for DUI in Florida, or if the
results of your breath test were .08%
blood-alcohol or above, your license will be
suspended for 6 months to 18 months after
the arrest unless you or your attorney file
a written demand for an administrative
hearing
within 10 days after arrest
WHAT IS A DUI?
But
I wasn’t drunk… But I wasn’t driving…
A DUI offense occurs when a person who is
impaired by alcohol or another controlled
substance drives a vehicle or is in actual
physical control of a vehicle.
DUI STOP - WHAT HAPPENED ?
DRIVING PATTERN:
You were either pulled over, already stopped
or involved in an accident and then the
police suspected DUI…
ROADSIDES:
Technically known as the Standardized Field
Sobriety Test (SFST), the police likely
asked you to perform a set of three standard
tests. These tests are given to obtain
indicators of impairment and establish
probable cause for arrest for DUI.
While highly technical, most officers perform this test incorrectly. Horizontal gaze nystagmus is an involuntary jerking of the eyeball which occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his eyes. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, and if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.10 or greater. NHTSA research indicates that this test allows proper classification of approximately 77 percent of suspects. HGN may also indicate consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.
Divided Attention Testing “walk the line” and “stand on one leg”
The walk-and-turn test and one-leg stand test are "divided attention" tests.
In the walk and turn test, a suspect is given a set of instructions and asked to follow those instructions. The instructions should be given as follows: Take nine steps, heel-to-toe, along a straight line. After taking the steps, turn on one the outer foot and return in the same manner in the opposite direction. The police look for at least seven indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, uses arms to balance, loses balance while turning, or takes an incorrect number of steps.
In the one-leg stand test, a suspect is instructed to stand with one foot approximately six inches off the ground and count aloud until told to put the foot down. The police time the subject for a period of 30 seconds. The police look for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down
.
Additional
tests: “finger to nose” “balance test””
In addition to the standardized tests, the police may have asked you to perform 2 more tests.
In the finger to nose test, a suspect is told to close his eyes, stretch out his arms and touch the tip of his nose with the tip of his index finger and then remove his finger without being told to do so. A suspect is asked to do this 6 times, alternating left and right. The police look for five indicators of possible impairment. If the suspect does not maintain his eyes closed, missing the tip of his nose or the tip of his index finger, using the wrong hand as directed, and not removing his finger from his nose.
•After
being arrested at the scene, the
police transported you to a breath
station. At the station, you were
asked to submit to a breath test
and/or a urine test as well as
answer questions. This is where the
paperwork is filled out and a
picture of you may be taken. You are
then transported to jail for a
minimum of eight hours until
released on bond
WHAT NEXT ?
DUI Defense:
DUI Cases are unique in that they involve two court systems: the criminal court system and the administrative court system. A typical
DUI involves the following steps in addition to the standard criminal defense stages:
appearing at administrative license suspension hearings
preparing any applicable motions to dismiss your case
court appearances every 4-6 weeks with the client
background investigations of the officers involved in the client’s arrest
taking depositions of the police officers and any civilian witnesses
locating and interviewing witnesses that may help your case
consulting with DUI breath machine, urine or blood testing experts if necessary
reviewing breath test machine maintenance documents
consulting with an accident re-constructionist if property damage is involved
reviewing a videotape of the clients field sobriety exercises
preparing any applicable motions to suppress the government’s evidence
pre-trial conferences with our client and any defense witnesses
DO NOT PLEAD GUILTY TO ANY CHARGE BEFORE CONSULTING AN ATTORNEY. DUI
cases can be won depending on the
facts and circumstances, even if
there is a breath test. In addition,
the penalties are severe and can
never be erased or sealed from your
record. Do not make a life-altering
decision without being sure that it
is the right decision
*Impound may not be concurrent with
probation or jail. Impound on rentals or
leases not to extend beyond the lease or
rental agreement.
2nd within
5 years
$500 -
1000
$1000 -
2000
5 years
1 year
10 days to
9 months
10 days to
12 months
2nd
outside 5 years
$500 -
1000
$1000 -
2000
180 days
to 1y
1 year
0 to 9
months
0 to 12
months
3rd within
10 years (charged as felony)
$1000 -
2500
$2000 to
5000
10 years
1 to 5
years
0 to 5
years
0 to 5
years
3rd
outside 10 years
$1000 -
2500
$2000 to
5000
180 days
to 1y
1 year
0 to 12
months
0 to 12
months
4th
Offense (charged as misdemeanor)
$1000 -
2500
$2000 to
5000
Permanent
1 year
0 to 12
months
0 to 12
months
4th
Offense (charged as felony)
$1000 -
5000
$1000 to
5000
Permanent
1 to 5
years
Guidelines
0 to 5
years
Guidelines
0 to 5
years
Guidelines
In addition to the above information, a level I or Level II DUI school must be attended and completed as a condition of probation. A first DUI conviction requires 50 hours of community service and an Ignition Interlock Device may be required.
Ignition Interlock Devices
-Section 316.193, Florida Statutes Requires
Ignition Interlock Devices to be Installed on
the Vehicles of Persons Convicted of certain DUI
Violations.
In
1st time DUI cases in which there involved
minor children or a BAC over .20, the court
shall for a period of up to six months order the
installation of, an ignition interlock device at
the Defendant's sole expense on all vehicles in
the Defendant's name or in joint name with
another person, at the time he qualifies for a
permanent or restricted license. And for a
second conviction, involving the same
contingencies, said interlock device shall be
for a period of at least two years.
Any
person convicted of a second DUI must
obtain at his sole expense, an ignition
interlock device on all vehicles in his name or
in joint name with another, prior to obtaining
a permanent or restricted license.
Upon
a third conviction within 10 years of any
prior conviction, the court shall for a period
of not less than two years order the
installation of, an ignition interlock device at
the Defendant's sole expense on all vehicles in
the Defendant's name or in joint name with
another person, at the time he qualifies for a
permanent or restricted license.
Upon
a third conviction outside of ten years
of any prior conviction, the court shall for a
period of not less than two years order the
installation of, an ignition interlock device at
the Defendant's sole expense on all vehicles in
the Defendant's name or in joint name with
another person, at the time he qualifies for a
permanent or restricted license
What
is the officer looking for during the
initial detention at the scene?
The traditional symptoms of intoxication taught
at the police academies are:
1. Flushed face
2. Red, watery, glassy and/or bloodshot eyes
3. Odor of alcohol on breath
4. Slurred speech
5. Fumbling with wallet trying to get license
6. Failure to comprehend the officer's questions
7. Staggering when exiting vehicle
8. Swaying/instability on feet
9. Leaning on car for support
10. Combative, argumentative, jovial or other
"inappropriate" attitude
11. Soiled, rumpled, disorderly clothing
12. Stumbling while walking
13. Disorientation as to time and place
14. Inability to follow directions
What
should I do if I'm asked to take field
sobriety tests?
There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, alphabet recitation, modified position of attention, fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests.
Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs;
the tests are simply additional evidence
which the suspect inevitable "fails". Thus,
in most cases a polite refusal may be
appropriate.
What
should I do if I'm asked to take field
sobriety tests?
There
are a wide range of field sobriety
tests (FSTs), including heel-to-toe,
finger-to-nose, one-leg stand,
alphabet recitation, modified
position of attention,
fingers-to-thumb, hand pat, etc.
Most officers will use a set battery
of three to five such tests. Unlike
the chemical test, where refusal to
submit may have serious
consequences, you are not legally
required to take any FSTs. The
reality is that officers have
usually made up their minds to
arrest when they give the FSTs; the
tests are simply additional evidence
which the suspect inevitable
"fails". Thus, in most cases a
polite refusal may be appropriate.
What is a "rising BAC defense"?
It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING -- not at the time of being TESTED. Since it takes between 45 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested.
Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .12%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .08%. In other words, the test result shows a blood-alcohol concentration above the legal limit -- but his actual BAC AT THE TIME OF DRIVING was below.
.
What is "mouth alcohol"?
"Mouth Alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat can have a huge impact.
Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes of taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times.
What defenses are
there in a DUI case?
Potential
defenses in a given drunk driving case are
almost limitless due to the complexities of
the offense. Roughly speaking, however, the
majority can be broken down into the
following areas: Driving.
Intoxication is not enough: the prosecution
must also prove that the defendant was
driving. This may be difficult if, as in the
case of accidents, there are no witnesses to
his being the driver of the vehicle. Probable cause.
Evidence will be suppressed if the officer
did not have legal cause to (a) stop, (b)
detain, and (c) arrest. Sobriety roadblocks
present particularly complex issues. Miranda.
Incriminating statements may be suppressed
if warnings were not given at the
appropriate time. Implied consent
warnings. If the officer did not advise you
of the consequences of refusing to take a
chemical test, or gave it incorrectly, this
may affect admissibility of the test results
-- as well as the license suspension imposed
by the motor vehicle department. "Under the
influence". The officer's observations and
opinions as to intoxication can be
questioned -- the circumstances under which
the field sobriety tests were given, for
example, or the subjective (and predisposed)
nature of what the officer considers as
"failing". Too, witnesses can testify that
you appeared to be sober. Blood-alcohol
concentration. There exists a wide range of
potential problems with blood, breath or
urine testing. "Non-specific" analysis, for
example: most breath machines will register
many chemical compounds found on the human
breath as alcohol. And breath machines
assume a 2100-to-1 ratio in converting
alcohol in the breath into alcohol in the
blood; in fact, this ratio varies widely
from person to person (and within a person
from one moment to another). Radio frequency
interference can result in inaccurate
readings. These and other defects in
analysis can be brought out in
cross-examination of the state's expert
witness, and/or the defense can hire its own
forensic chemist. Testing during the
absorptive phase. The blood, breath or urine
test will be unreliable if done while you
are still actively absorbing alcohol (it
takes 45 minutes to three hours to complete
absorption; this can be delayed if food is
present in the stomach). Thus, drinking "one
for the road" can cause inaccurate test
results. Retrograde
extrapolation. This refers to the
requirement that the BAC be "related back"
in time from the test to the driving (see
question #5). Again, a number of complex
physiological problems are involved here. Regulation of
blood-alcohol testing. The prosecution must
prove that the blood, breath or urine test
complied with state requirements as to
calibration, maintenance, etc..
Why am I being charged with DUI if I did not drink, I only smoked a little marijuana?
In
Florida, DUI includes drugs as well
as alcohol. Suspicion of driving
while under the influence of drugs,
including marijuana, may be proper
grounds for a charge of DUI.
How can they charge me
with DUI if they pulled me over for
speeding?
The
speeding offense provided the probable cause
(valid reason) for the stop. If the law
enforcement officer suspects you of driving
under the influence after you are stopped
(based on admissions, smell of alcohol or
drugs etc.) you can be arrested for DUI.
There is no requirement that police suspect
you of driving under the influence prior to
the stop in order to arrest you for DUI.
.
Why is there no speeding charge on my
ticket, only DUI?
The
lesser speeding charge (infraction)
is usually not charged because of
the more serious DUI charge
(misdemeanor). The speeding will be
reflected in the police report
DISCLAIMER
These materials have been prepared by the Law Offices of Jauregui &
Jauregui, P.A. for informational purposes only and are not legal advice.
This information is not intended to create, and receipt does not
constitute an attorney-client relationship. Internet subscribers and
online readers should not act upon this information without consulting one
of our attorneys. We welcome your questions. 305-558-5335.
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Driving.
Intoxication is not enough: the prosecution
must also prove that the defendant was
driving. This may be difficult if, as in the
case of accidents, there are no witnesses to
his being the driver of the vehicle.
