Law Questions

QUESTIONS SPECIFIC TO DUI CASES

Should I take the breath test or “Blow”?

The Florida Bar ( the Association that manages all attorneys in the State) Strictly forbids an attorney from giving advice on this specific topic… In several court cases the Intoxylizer 8000 (Yes, that is really it’s name) which is currently the breath test used in the state of Florida, has been either proved not to be accurate or its results have been thrown out of court. That is not to say that will happen in your case. In order for the breath test to be admitted into evidence in a criminal trial in Florida, it is required that two samples of breath be obtained from the subject and those samples are allowed to vary as much as .02g/210L. In other words, if you take a breath test yielding for example results of .078g/210L on the first sample (which is under the legal limit) and you take a second sample yielding results of .098g/210L (a result over Florida’s legal limit) you could be convicted of DUI under the theory that you were driving with an unlawful breath alcohol level (DUBAL). Who knows what your actual breath alcohol level was in that instance. If you are arrested for Driving Under the Influence, law enforcement will read you Florida’s Implied Consent Law, which in essence tells you that your driver’s license will be revoked for one (1) year, or eighteen (18) months if you have previously refused to take a breath test. Law enforcement almost always fails to tell you that on a first refusal, you can obtain a hardship permit for up to 9 months out of that year.

You should also know that in Florida, it is a misdemeanor to refuse to take a breath test if you have previously refused a breath test on an earlier occasion.

Is it legal to drive after consuming alcoholic beverages?

Yes.

It is never a good idea to drive (or operate any machinery, tools, or lift heavy objects for that matter) after having consumed any alcoholic beverage, it is still legal in Florida to drive after doing so. However, it is not legal in Florida to drive under the influence of alcoholic beverages to the extent that one’s normal faculties are impaired and it is not legal to drive with an unlawful breath alcohol level regardless of whether or not one’s normal faculties impaired. Thus someone who has a high tolerance level could still be guilty of DUI if his/her breath alcohol concentration is .08g/210L or greater even if everything else is perfectly normal. Having something to eat to fill your stomach my affect how you “feel” but it will not effect what your blood alcohol limit is.

You should know that alcohol begins to enter and exit the human body immediately upon consumption and it takes anywhere between 45 and 90 minutes for a single alcoholic beverage to completely absorb in the blood stream depending on the contents of the stomach at the time of drinking. The higher the content of the stomach, the longer it takes a drink to absorb in the bloodstream. Alcohol exits the system at a rate of .025g/210L of breath in the average person.

Should I take a field sobriety test (FSE)?

Did you have to take the Field Sobriety Test to get your Drivers License in the first place? Think about that for a moment. Field sobriety tests, unlike breath tests, are not required under Florida Law and your driver’s license cannot be suspended if you do not take a field sobriety test. Many of the test in our experience yield subjective results and they are not a true indicator of normal faculty impairment. Are you asked to stand on one foot for 30 seconds when you apply for your drivers license? In many cases, someone’s performance on these tests can be affected by nervousness, the environment (flashing lights, the temperature, etc…) or just plain lack or coordination. However, if you refuse to take a field sobriety test after being stopped for suspicion of DUI, you will most likely be arrested since failing a field sobriety test is not a prerequisite for a DUI arrest. If you are stopped on the side of the road and cannot decide whether to take a field sobriety test, feel free to call us number at (850) 681-3540. We are available 24/7!

Can I drive after I am arrested for driving under the influence?

Yes.

If your driver’s license was valid at the time you were arrested for driving under the influence, you will be issued a citation called a Florida DUI Uniform Traffic Citation. Read the bottom of the citation carefully. Florida law allows persons arrested for driving under the influence to drive for ten (10) days following the arrest using the uniform traffic citation as a driver’s license. In an abundance of caution, you should obtain a Florida ID card to identify yourself to law enforcement officers, financial institutions, and other places requiring ID’s. There is also a procedure to obtain a hardship permit after the ten (10) days on the citation expires. You should contact our office immediately and inquire about that procedure.

NO REAL DOWNSIDE TO REQUESTING THE FORMAL REVIEW HEARING IN A FLORIDA DUI CASE
Benefits of requesting the Formal Review Hearing under Florida law include:
• Requesting the formal review hearing allows you the opportunity to continue driving for work or business purposes for another 42 days;
• You may win the hearing if one of the critical witnesses do not appear after been subpoened by your attorney including the officer that conducted the stop, the officer that made the arrest, the breath test technician, and the agency inspector (if you took a breath test);
• You may win the hearing if there is insufficent evidence related to any necessary showing required to uphold the suspension.;
• If you win the hearing then the administrative suspension is INVALIDATED, which basically vacates the action taken by the officer at the scene of the arrest;
• Even if you lose the hearing, your attorney will have the opportunity to subpoeana witnesses and documents, inspection calibration records, and explore important defenses early in your case; and The officers or civilian witnesses will be locked into their story which allows your attorney to exploit inconsistent statements or disprove certain versions of events early in the case.

THE LAW HAS NOW CHANGED IN REGARDS TO REQUESTING A FORMAL REVIEW HEARING:
- You may now give up your right to have a formal review hearing within the first 10 days of arrest and go straight to having a hardship license. Please contact a DUI attorney before you do that to go over your options, as they are important!

Administrative Suspension of your Driver's License After a Florida DUI Arrest
• First Offense -
If you took the breath test your driver's license will be suspended for six (6) months with a thirty (30) "hard suspension" - meaning that you can not driver for any reason for those thirty (30) days. If you refused the breath test your driver's license will be suspended for twelve (12) months with a ninety (90) day "hard suspension" - meaning that you can not driver for any reason during those 90 days.
• Second Offense-
If you took the breath test: twelve (12) month suspension with a thirty (30) day hard suspension. If you refused the breath test and the first offense was after a breath test, then a twelve (12) month suspension will follow with a ninety (90) day hard suspension. If you refused the breath test and the first offense was after a refusal, then your license will be suspended for eighteen (18) months with all eighteen months being a hard suspension - meaning that you can not get a hardship license.
• Third or Subsequent Offense-
If you took the breath test: twelve (12) month suspension with all twelve (12) months being a heard suspension - meaning that you can not get a hardship license. If you refused the breath test and all of the prior offenses were after a breath test, then a twelve month suspension with 12 months of hard time will follow - meaning you can not get a hardship license.
If you refused the breath test and one of the prior offenses was a refusal, then an 18 month suspension with 18 months of a hard suspension will follow - meaning you can not get a hardship license.

Can my charges be reduced?

Yes.

Will my charges be reduced before I go to court of get an attorney?

Not likely, but people win the lottery from time to time too.

Some times DUI charges are “reduced” to the charge of reckless driving. This is not actually a reduction of charges; rather, it is an amendment. DUI in Florida carries with it a mandatory minimum penalty which requires an adjudication of guilt. If someone has been adjudicated guilty, it means they have been convicted regardless if they have pled guilty or no contest, the end result is that they are convicted. When someone enters a plea of no contest to reckless driving, Florida Law does not require the judge to adjudicate that person guilty; rather, the judge may withhold the adjudication which means that person has not been “convicted”. Unlike a DUI conviction, the disposition of a reckless driving charge usually does not increase ones insurance rates, does not carry a driver’s license revocation with it, and it can be sealed at a later date in many cases which would allow you to answer “no” to the question of “Have you ever been arrested” (with some exceptions of course). A judge is not authorized to “reduce” a DUI charge to reckless driving. This can only be achieved through plea negotiations with the prosecuting attorney. Often times my clients instruct me to do those negotiations with the goal of achieving an amendment of the DUI charge. I have achieved this result for many clients over the years and you should feel free to ask me about the possibility of doing this in your case at our initial consultation.

Will a DUI conviction affect my insurance rates?

Yes.

The Florida Department of Highway Safety and Motor Vehicles produces three types of driving records: 1) a lifetime driving history, 2) a seven (7) year driving history, and 3) and three (3) year driving history. Most insurance companies randomly order three year driving histories from the Florida Department of Highway Safety and Motor Vehicles. Sometimes insurance companies never even find out about a person’s arrest for driving under the influence. You should read your insurance policy very closely to see if you are required to notify your insurance company of such an arrest as your failure to do so in some instances may lead the insurance company to deny coverage of a future accident. Studies show that a DUI conviction typically raises insurance premiums up to three times the current premium. Moreover, many times a DUI conviction can lead an insurance company to drop you as a customer. However, if your charge is amended to reckless driving or you win your DUI case, your insurance rates usually will not be affected.

If you are convicted of a DUI, more often than not, your insurance company will find out about the DUI and will deal with you in one of two ways. Normally, your rates will go up, sometimes significantly, or, the company will simply terminate your policy. If your insurance company raises your premiums but keeps you as an insured, you will likely be labeled a “high-risk driver.” Most states require the insurance company to provide the state motor vehicle agency (DMV, MVD) with an SR-22 Proof of Insurance Certificate or FR -44, which removes your license suspension by providing the state with proof that you are insured. While this is all starting to sound ok, the catch is that not all insurance companies offer SR-22 policies. So your policy may be non-renewed or cancelled simply because the company can no longer supply insurance for you. In some states, insurers can’t cut you off in the middle of the policy term, so be sure to check on the laws where you live.

Do I need a lawyer if I want to contest a DUI? After all, isn’t this sort of like a traffic ticket?

Florida DUI law is becoming more and more strict every time the legislature goes into session and it is perhaps the most litigated of all criminal cases. Consequently, the Appellate Courts hand down rulings that affect DUI cases almost on a weekly basis (unlike say, Pet Insurance Fraud cases). We keep up to date week by week on all the changes and developments in DUI Law throughout the State. While anyone has a right to represent himself/herself, it is not advisable in a DUI case. Most DUI trials are held in front of a jury with professional witnesses (police officers) who are trained to testify against the accused (you). Remember, a lwayer who represents himself has a fool for a client…

Do I need a lawyer if I think I’m guilty and I don’t want to contest the charges?

No.

Go ahead, plea guilty and see what happens. By pleading guilty you open yourself up to whatever the State wants to give you within the statutory guidelines. Perhaps we might have gotten the DUI reduced or at least get it so you only have to do some community service and other sanctions. By pleading guilty the State can place you in jail for 90 days. (or 364 days if it is an enhanced DUI) on the spot!

The Court system is set up in this country so that citizens do not have the burden of proving themselves innocent when the State brings charges against them. That burden rests entirely on the government. Thus criminal defense lawyer’s focus is not on whether his or her client is guilty; rather, it is entirely on whether the state can prove his or her client’s guilt. Moreover, often times, law enforcement does not follow the correct procedure when making an arrest or conducting its investigation. When this happens, certain aspects of a case can be “thrown out of court” or suppressed. Experienced trial lawyers are trained to recognize these issues and use them to benefit their clients. We are happy to discuss this further at your free initial consultation.

You should also know that even if you don’t wish to contest the DUI charge, when you go to Court, the State will be represented by a lawyer who will be going against you. The first and only impression the Judge will have of you is what is written in the Police Report by the Police Officer. Letters from Mom, a teacher, or a guidance counselor are not going to cut it at this point. The State’s Lawyer is trained to convict people accused of crimes, doesn’t it make sense that you should be represented by a lawyer to?

What if the arresting officer did not “read me my rights”?

Most of the time the police do not read Miranda rights to someone who has been arrested for DUI. However, the fact that the police did not read you your rights is usually not enough to have your case thrown out. It is however, enough to have incriminating statements you may have made thrown out in many circumstances. The best advice when dealing with law enforcement is be polite, be respectful, and be quiet… do not try and lawyer your way out of the situation. You have already been stopped

What if I told the officer I didn’t want to take the breath test but he made me do it anyway?

Under Florida Law, a breath test is mandatory and a law enforcement officer can threaten the suspension of your driver’s license if you do not take the test.* However, that is all that law enforcement may threaten you with if you indicate you do not wish to take the breath test. If for example, law enforcement told you that you would not be released from jail unless you took a breath test, or if they told you that you could not go to the bathroom until you took a breath test, you may be eligible to have your breath test thrown out which may result in having your DUI charges “reduced” or “dismissed”.

*This law does not apply to cases that involve death or serious bodily injury.

Can I get a DUI on a bicycle?

Yes.

I wasn’t driving the car but the police officer arrested me anyway. Can he do that?

Florida Law states that one can be convicted of DUI if they are in “actual physical control” of a vehicle while under the influence of alcoholic beverages to the extent that their normal faculties are impaired. Thus it is not uncommon to see the client who was merely trying to “sleep it off” in the parking lot before going home to wind up in jail charged with a DUI. However, in most cases it is not illegal to sleep in a car and sometimes the DUI charge in that instance can be challenged based on law enforcement’s illegal detention of the car’s occupant. Feel free to call us if you are in this situation to see if your DUI charge can be challenged. As a side note, if you find yourself in this predicament, you would be well advised to get rid of the car keys and put them somewhere that is not readily accessible (nowhere inside the car) before you decide to “sleep it off” in the parking lot.

OTHER CRIMINAL LAW QUESTIONS

I might have broken the law, I am not sure. The police have called me and want me to come in for an interview. Should I go?

Absolutely not. You have a right to remain silent and you should use it. You should also know that it is a common law enforcement tactic to tell a suspect that he is needed for an interview. Of course this is not true and when the suspect arrives at the police station, he or she is arrested and taken to jail. If the police want to interview you about something, tell them to interview your lawyer and give us a call.

The police have asked to search my car or my home. Should I let them?

Would you let a random stranger come into your car or home and look around? You should never allow law enforcement to search your home or car unless they have a warrant. Think about it. While you may think you have no contraband inside your residence or conveyance, how many people have been in your home or car? Who knows what they left there? If the police show up at your home without a warrant and want to search, you should tell them that they will only be allowed to search your home if your lawyer gives them permission. Then call me (after hours if need be) at (850) 681-3540

I’ve been given a notice to appear in Court for a misdemeanor. Do I need a lawyer for this?

If you were given a notice to appear on a criminal case (even if it was for something as minor as possession of alcohol by a person under 21 or possession of marijuana), this is considered an arrest. This means that when it comes time to apply for a job, you will have to answer “yes” to the question “Have you ever been arrested?” It makes no difference to the prospective employer whether or not you were carted off to jail. Even if the State offers you diversion, you will still have the arrest on your record. The fact that you have an arrest on your record may affect your ability to obtain gainful employment. Even if you think the incident is relatively minor, it will cost you nothing to contact usand get a free consultation.

I was involved in a car accident and left the scene before the police arrived. They are now trying to contact me. What should I do?

You should contact us immediately before you talk to the police. Many times these types of cases can be resolved before charges are brought.

Is it legal to possess a small amount of marijuana in Florida? Can I possess it for medical purposes?

Currently, Florida Law does not allow the possession of any amount of marijuana for any purpose. Indeed, possession of a small amount is a misdemeanor punishable by up to a year in jail and a TWO YEAR DRIVER’S LICENSE REVOCATION!

My driver’s license has been suspended for five (5) years because I paid a ticket for driving on a suspended license. Can anything be done?

If you are in this predicament, you have been caught up in Florida’s Habitual Traffic Offender (HTO) Law. HTO status is given to persons who have been adjudicated guilty of three or more predicate traffic offenses in the past five (5) years. Many times, those prior convictions can be set aside, especially if you were convicted and did not have a lawyer representing you. Feel free to call our office to see if you qualify to have one of your convictions set aside.

Can my record be sealed or expunged?

Maybe.

If you have ever been adjudicated guilty of any offense, the answer is no. If you entered a plea of no contest to a criminal offense and the adjudication is withheld, chances are you are eligible for a sealing. If you completed a diversion program, pre-trial intervention, or drug court, chances are you are eligible for an expungement. If your record is sealed or expunged, you can lawfully answer “no” on most employment applications if you are asked if you have a criminal record. Florida law does not permit certain offenses to be sealed or expunged. We handle sealings and expungements statewide and we are happy to tell you whether you are eligible for one.

Do I need a Lawyer for Drug Court?

Drug Court is a diversion/pre-trial intervention program that handles felony drug cases that do not involve the sale or trafficking of drugs. You can be initially charged with sale or trafficking but still be eligible for rug court through negotiations. It is primarily for first offenders and it focuses on rehabilitation rather than punishment. Someone who successfully completes drug court will have their charges dismissed and in most cases, they can expunge their records. However, the program is not always easy to complete. As with any criminal court proceeding, it is advisable to obtain the services of a lawyer not only to help you gain entrance into the program but to help you stay in the program.

I’m charged with a crime and the victim wants to “drop the charges”. I don’t really need a lawyer, do I?

The State pursues charges whether or not the “victim” wants to. The alleged victim doesn’t press anything; rather, he or she merely reports the crime to state or federal law enforcement who passes the case on to the appropriate prosecuting authority after an investigation is completed. Since the prosecutor is the only one “pressing” the charges, he or she is the only one who can drop the charges. That is why a criminal case is always titled as “State vs. You”. While most prosecutors will listen to the wishes of alleged victims (this is even more so when the victim wants a strong sentence), they are not bound by the victims wishes and it is not uncommon for a prosecutor to seek a conviction against the will of the alleged victim. If you are charged with a crime and the alleged victim wants to drop the charges, this does not mean you are in the clear. Furthermore, to protect your rights, the odds that a prosecutor will talk with you about the case is very, very slim. Remember, anything that you say can and will be used against you. If you are issued a no contact order either through pre-trial or the Judge while the case is pending and you contact the victim to get them to “drop charges” you more than likely will be a guest of Leon County and will not be eligible for a bond.

The Tallahassee, Florida Law Offices of Friedman, Frank & Abrahamsen also handle bar grievances for law students. Prepare For Hearing