(850) 681-3540 Torfriedman@gmail.com

Criminal Defense Attorney

Tallahassee Criminal Defense Lawyers

DUI Arrest

QUESTIONS SPECIFIC TO DUI CASES

 

Is it legal to drive after drinking alcoholic beverages?

It is never a good idea to drive, work a chainsaw, or operate any machinery 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 effect how you “feel” but it will not effect what your blood alcohol limit is.

Should I take the breath test?

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 the actual name of the device), 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. Just because you have a friend who in another city or county had their breath test results thrown out because there was something wrong with that particular machine does not mean your results will be thrown out. All cases are different.

In order for the breath test that you submitted 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.  For example if you take a breath test yielding 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).  No one really 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.  You are eligible to   obtain a hardship permit for up to 9 months out of that yea for your first refusal however 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.

Should I take a field sobriety test?
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? Do you stand at perfect attention with moving an inch all day? Do you like to perform the alphabet on the side of a road with cop lights behind you with an officer staring at you? How good is your balance on one leg for 30 seconds? In many cases, someone’s performance on these tests can be affected by a whole host of factors (nervousness, the environment, a previous injury, surgery or balance condition) 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) 224-4357. 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 (850) 224-4357 immediately and inquire about that procedure. We may also be able to get you a temporary driving permit that lasts you until your case is resolved.

 

NO 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.

 

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. Many times DUI charges are “reduced” to the charge of reckless driving.  Though not an actually reduction of charges 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.  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”.  Moreover, 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.  A judge is not authorized to “reduce” a DUI charge to reckless driving on their own or because they feel bad for you or you tell them how bad the case is and they do it on their own accord.  This can only be achieved through plea negotiations with the prosecuting attorney. Obviously the goal is to try and get your DUI charge dismissed outright, if this is not legally possible having your charged amended down to a Reckless Driving charges is a substantial benefit. We have achieved these results many, many times for previous clients. Please be aware that past results do not indicate future success.

How will a DUI conviction affect my insurance rates?

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.

What if I take a breath test and blow over the legal limit but I know I’m not over the legal limit?

Florida Law gives those who take a breath test the right to an independent blood test if they request it.  However, the test must be secured at your own expense and law enforcement no longer has a duty to assist such a person in obtaining an independent blood test. You cannot try and take the test a few days later either. Law enforcement may not interfere with a person’s right to obtain the independent test and they must provide the person tested with access to a telephone for purposes of securing the test if they are in custody.  If law enforcement interferes with someone who is trying to secure an independent blood test or otherwise takes steps to prevent one from obtaining such a test, many times the breath test law enforcement administered can be thrown out of court.  We are happy to meet with you and give you our opinion on whether your case meets the criteria set forth in that law.


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.  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.

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 reason. 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. 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 too?

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

The police generally 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. (“ I couldn’t do this exercise sober!”) 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 for suspicion of DUI.

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

The officer cannot physically shove your face into the Intoxlizer 8000 and make you blow. 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 tell them 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”. Several of these exchanges are now being recorded at the jail so that can help or hurt your case.

 

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


I wasn’t driving the car but the police officer arrested me anyway. Can they 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.  You can be asleep on the hood of your care and be arrested for DUI. You can be passed out in the back seat and be arrested for a DUI. Thus it is not rare 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 to you( nowhere inside the car that you have ready access to) before you decide to “sleep it off” in the parking lot.

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