If you are reading this, it is likely (and rather unfortunate) that you, a family member or friend has been arrested for DUI. Before becoming a lawyer I worked as a journalist, high school teacher and coach. It goes without saying that I am all about information and education and would like to congratulate you for requesting this valuable guide. Many lawyers will say that I am crazy for giving you so much valuable information for free. The truth of the matter is that I am different. This firm is different.
I don’t rely on a high volume of cases generated by tons of TV, Yellow Pages or Internet marketing. I don’t take every case that comes through the door. I don’t want to. I want to represent a limited number of people on their DUI cases each year. I want those accused of DUI in Miami and Florida that ultimately retain my firm o fight or them to be educated and empowered clients—not just someone that pays me a fee and then sees me in court right before they plead guilty.
If you’re looking for an attorney to take your hard-earned money and then simply parade you before a judge to plead you guilty, or if you don’t care to speak with your lawyer about your case on a regular basis, then this is not the firm or you. Being arrested can be frightening and life-altering. Your head is probably spinning and you are worried beyond belief. Don’t worry—it’s perfectly normal to be worried and to feel that way.
You were likely celebrating with friends and family, enjoying a special occasion with those you love and suddenly you are in handcuffs. You are now a criminal defendant, and at this instant, it doesn’t matter that you were celebrating a special occasion and having a great time, you have been left in a sate of shock as that jail cell door slammed shut. DUI is the one crime most likely to affect our family and friends and those who have never been in any trouble, have never been arrested and will likely never encounter the criminal justice system again. Right now, you are in a state of shock and scared, but you need to educate yourself and quickly get up to speed.
Luckily, you are smart enough to start with this article. I wrote this content to answer the most common DUI questions I am asked by clients so that you can have an understanding of DUI law in Florida. DUI is an extremely complex area of law and by requesting a copy of this book I know you are serious about what lies ahead. While you do not need a lawyer to do anything, anyone charged with DUI would be smart to realize that they absolutely NEED a lawyer to help them. Hopefully after reading this valuable information you will understand the process, lingo and be better prepared and educated—knowing what questions to ask as you begin to tackle this problem. Once you have finished reading this book, call me at (305)707.7345 to discuss your case. I would be humbled by the privilege to fight or you.
Drunk Driving (DUI) In Florida
Each state has its own DUI laws. Some refer to the charge of driving impaired as DWI (driving while intoxicated), while others use OWI (operating while intoxicated) or OUI (operating under the influence). In Florida you are guilty of DUI if you are driving or in actual physical control of a motor vehicle and are under the influence (of alcohol, drugs or controlled substances) to the point that your normal faculties are impaired. Under Florida law, you are typically presumed to be under the influence and intoxicated if you have a Blood Alcohol Content (BAC) of .08 or above. As you can see by the definition of DUI in Florida, you an be convicted of DUI even if you were not driving but were actually parked or “sleeping it of.” Actual physical control means that you are in a motor vehicle and have the present and apparent ability to operate the vehicle. You can also be convicted of DUI even if you felt you were not “drunk.” While having a BAC over the legal limit (.08) will be a presumptive violation, you can also be charged and convicted of DUI with a BAC lower than .08. DUI law is very complex and there are numerous defenses and situations that may arise when you are charged with DUI. By reading this book, you will have answers to the top six (6) questions you are likely to have after a DUI arrest and a better understanding of the drunk driving laws and potential defenses in Florida.
Will I Lose My License?
The moment you are arrested for DUI, your driver’s license is immediately suspended. The arresting officer takes your license and issues a Uniform Traffic Citation (traffic ticket). This citation is your temporary, 10-day license (from the date of arrest). With the citation serving as your license, you will be allowed to drive on a restricted basis, or for business purposes only, meaning to and from work, shopping for groceries, going to church. If you were driving with an unlawful blood alcohol level (DUBAL) your license will be suspended for six months. The Department of Highway Safety and Motor Vehicles (DHSMV or commonly referred to as the DMV) will suspend your license for one year if you refused to submit to a breath, blood or urine test (or for 18 months if your license was previously suspended for refusing to submit to a breath, blood or urine test). Note: if you previously had your license suspended for refusing to submit to a breath, blood or urine test you will be charged with another crime (misdemeanor) for second or subsequent refusal.
After a DUI arrest, all is not lost necessarily but you need to act quickly. You ONLY have 10 days to request a hearing with the DMV to fight the suspension f your license. Once you request the formal review hearing and, assuming, your license was valid at the time of arrest, you will be issued a permit to continue driving on a restricted basis, pending formal review, for an additional 42 days.If you have a DMV hearing and the suspension of your driver’s license is not invalidated (meaning it is upheld), you will have a mandatory period of suspension, ‘hard time,’ before you are eligible for a hardship, or “business purpose permit.”
If you registered a reading of .08 or above your license will be suspended for six months and you will have a 30-day period of hard time before you are eligible for a hardship license. If you refused to submit to a breath, blood or urine test, your license will be suspended for one year (for a fist offense) and you will have to serve a 90-day period of hard time before you are eligible for a hardship license, according to Florida’s Administrative Suspension Law. I really need to drive and cannot be without a license, can I get a hardship license now?
A new Florida law as of July 1, 2013 allows you to waive Formal/Informal review hearing. The recent change to Florida’s Administrative Suspension Law allows you to request eligibility review in order to obtain a “Business Purpose Only” permit to drive immediately. However, requesting eligibility review waives your ability to challenge the suspension of your license through a formal or informal review hearing. If you have no prior DUI convictions (administrative suspensions or convictions for an alcohol or drug related offense), you have three options following a DUI arrest:1. Request an informal review hearing;2. Request a formal review hearing; or 3. Request an eligibility review hearing to obtain a “Business Purpose Only” permit. Before waiving your right to a formal or informal review, it is imperative that you speak to a DUI lawyer that will advise you of the pros and cons. Oftentimes formal review hearings are crucial to gaining valuable information needed to defend your criminal case as the arresting officer, breath test operator and other parties can be subpoenaed to testify under oath about your DUI case at the DMV hearing.
What Does a DUI Cost?If you have been charged with a DUI in Florida, the costs—even for a fist conviction—can be much more damaging and harmful than the costs of fighting your arrest/charge. Florida has some of the toughest DUI laws and penalties in the nation. Following a fist conviction for a DUI you may be facing the following costs: Additional “costs” and consequences of a DUI conviction.
It is quite possible that you are likely to see a considerable increase in your auto insurance rates following a DUI conviction. According to recent data, it is not uncommon for those convicted of DUI to see an 85 percent increase in insurance premiums in the fist year and continue feeling the effects for years to come.To make matters worse, a DUI conviction could affect your ability to get to work, prevent you from getting certain jobs in the future, security clearances, impact your ability to get a loan, make you ineligible for scholarships, obtain a professional license or even get you fired from your current job. On the other hand, you may be able to avoid all of this by fighting your DUI change in Florida.
Fines$500-$1,000 (if Blood/Breath alcohol level of .15 or higher or minor children in the car, the fine is between $1,000-$2,000)
Treatment$250-$500 if required (approximately)
Probation$55 per month $330-$660(approximately) to cover the cost of supervision while on probation (period of probation and incarceration may not exceed one year)
Vehicle Impoundment or Immobilization$150 for 10 days or $300 for 90 days(approximately)
Ignition Interlock$200 (mandatory for BAL of .15 and above)
Victim Impact Panel$40
Cost of prosecution$50
Cost Recovery As Determined and Requested By Law Enforcement Donation
Additional “Costs” and Consequences of a DUI ConvictionIt is quite possible that you are likely to see a considerable increase in your auto insurance rates following a DUI conviction. According to recent data, it is not uncommon for those convicted of DUI to see an 85 percent increase in insurance premiums in the fist year and continue feeling the effects for years to come.To make matters worse, a DUI conviction could affect your ability to get to work, prevent you from getting certain jobs in the future, security clearances, impact your ability to get a loan, make you ineligible for scholarships, obtain a professional license or even get you fired from your current job. On the other hand, you may be able to avoid all of this by fighting your DUI charge in Florida.
Can I Really Go To Jail For DUI?YES. Florida has some of the toughest DUI laws in the country. Jail is a possibility in every DUI case, even a fist offense. A fist DUI conviction is punishable by up to 180 days in jail, or nine (9) months in jail if your BAC was .15 or above or if there was a minor child in the vehicle at the time. Remember, these are maximum penalties that can occur in worst-case scenarios. Really, though, I can go to jail for DUI?!? Yes. Obviously, the possibility of having to serve jail time as a result of your DUI depends on the particular facts of your case. Some of the factors considered when determining whether someone deserves jail are
- Property damage or personal injuries caused
- Blood alcohol content (BAC) at the time of driving
- Driving pattern leading up to arrest
- Criminal and traffic Record
In addition to these factors, the possibility of jail time greatly increases once the person has prior DUI arrests or convictions. A second DUI conviction within five years of the fist carries a mandatory 10-day jail sentence and the possibility for up to nine (9) months (12 months if .15 and above or minor child in car).
A third DUI conviction within 10 years of the previous conviction becomes a third-degree felony and carries a mandatory 30 days in jail, with a maximum of up to 5 years in prison.
So, you don’t really know how much jail time I will get? No lawyer can tell you how much time you are certain to get—because no lawyer knows! Any lawyer that tells you exactly how your case will resolve and what penalty you will get is being insincere and unethical. As an attorney that focuses on DUI cases, I can estimate and let you know what you are likely up against but every case and judge is different and it is impossible to know exactly how much time you are likely to get. Given your facts, I will fight or the best result possible.
What Must Be Proven To Convict Me Of DUI?To convict you of driving under the influence in Florida under section 316.193(1), Florida Statutes, the prosecutor must prove every element of the DUI charge beyond a reasonable doubt.
The prosecutor MUST be able to prove:
1. You drove or were in actual physical control of a vehicle.
2. While driving or in actual physical control of the vehicle, you a. were under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that your normal faculties were impaired. b. had a [blood] [breath]-alcohol level of .08 or more grams of alcohol per [100 milliliters of blood] [210 liters of breath].
What happens if there is a blood/breath reading in my case?When the jury hears evidence of a blood/breath reading, Florida law has various presumptions (these presumptions may be overcome with other evidence that you either were, or were not, under the influence):» Reading below a .05. If you were driving or in actual physical control of a vehicle and had a blood or breath-alcohol level of .05 and below the jury is to presume that you were not under the influence.» Reading more than .05 but below .08. When a jury finds that you wee driving or in actual physical control of a vehicle and had a blood alcohol level above a .05 but below a .08 there is no presumption either way that you were, or were not under the influence.
In this case the jury will consider other evidence to determine whether you were under the influence to the extent that your normal faculties were impaired. » Reading of .08 or more. This evidence alone is enough to find that you wee under the influence at the time of driving or being in actual physical control of a vehicle. This evidence may be contradicted or rebutted by other evidence that you were NOT under the influence to the extent that your normal faculties were impaired. What if I failed the roadside sobriety tests or blew over the legal limit? There may still be defenses available in your case. DUI law is very complex and has many layers.
Don’t assume that because you were stopped, arrested, did not perform to standards on the roadside sobriety exercises and blew over the legal limit of .08 that all is lost.
I wasn’t even drunk, how can they prove that?The prosecutor doesn’t have to prove you were ‘drunk’ necessarily, but rather that you were driving or in actual physical control and were under the influence of alcohol, drugs or controlled substances to the point that your normal faculties were impaired.
Signs of impairment can be plentiful and apparent—at least that’s what the police and prosecution will say—and they can include anything from the officer’s observations (driving pattern, bloodshot eyes, odor of alcohol, slurred speech, getting out of the car) to how you performed on roadside sobriety tests and whether you were able to follow commands, understand instructions and questions or admitted to drinking.The prosecutor will also attempt to use your BAC reading to prove you were impaired. If you refused, the state will attempt to use your refusal as consciousness of guilt that you were impaired and that’s why you didn’t submit to a test.
According to Florida’s standard jury instructions for DUI cases, normal faculties “include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.”Fine, but I wasn’t even driving, how can I be DUI?
Under Florida law the prosecutor can prove you are guilty of DUI by showing that you were driving or in actual physical control of a motor vehicle and that your normal faculties were impaired.
Actual physical control of a vehicle means you are physically in or on the vehicle and have the ability (past or present) to operate the vehicle, regardless of whether you are actually operating the vehicle at the time.This means that you do not have to be driving to be convicted of DUI. Actually, a lot of DUI arrests begin with the accused doing the right thing by deciding to sleep inside their car outside of the establishment in which they consumed alcohol.
Truth be told, “sleeping it of” can lead to a rude awakening.There are potential legal issues in actual physical control cases that deal with parked cars such as where you were parked, if you were parked legally and whether the police had the ability to even approach you while you were in your vehicle.
Can I Get a DUI Off My Record?A DUI conviction may never be erased from your permanent criminal record. Florida DUI penalties provide that anyone convicted of DUI receive a mandatory adjudication of guilt. In Florida, once you have been adjudicated guilty (formal conviction of a crime) you are ineligible to seal or expunge your record. However, depending on the outcome of your case, there may be a way for your record to be cleared so that you can go on living as normal a life as possible without this dark cloud hanging over you. In order to be eligible to seal your DUI arrest you have to ensure that you are not convicted of DUI and the only way to do that is to have the DUI charges dropped, dismissed or reduced.
In addition, if your DUI charges are reduced to reckless driving, for instance, you would need to receive a “withhold” of adjudication in order to be eligible to petition the Florida Department of Law Enforcement (FDLE) to seal your record.Depending on your prior criminal history (no prior convictions), you may be eligible to seal or expunge your DUI from your record, eliminate it from public view and oftentimes deny it ever happened. However, if you were found guilty after a trial, plead guilty or no contest to DUI you will likely be ineligible to seal or expunge your record as Florida law calls for mandatory adjudication, meaning you MUST be convicted, on a DUI charge.
How Can I Get A Breakdown?People oftentimes are mistaken in thinking that because they have no prior incidents with the law and this is their fist DUI, that the charges will automatically be reduced to a lesser offense like reckless driving. Receiving a breakdown in your case is the result of a lot of work by your lawyer combined with a favorable set of facts or problems with the evidence in your case. A good and thorough DUI lawyer will do everything possible to find issues with your case from the stop of your vehicle, examining maintenance documents for the breath-testing machine, challenging BAC results, fighting refusals, trying to keep out statements and challenging performance on roadside sobriety tests to fight or you in an attempt to hold the government to its burden and hopefully minimize the consequences you are facing. While there are no guarantees as to what outcome you will receive and what defenses are available in your case, you cannot challenge an issue your lawyer does not spot.
In the next section of this article, I will go into detail about defending a DUI charge and some potential defenses that are sadly missed by lawyers in DUI cases.
Am I Eligible For DUI Diversion Programs?There are some counties throughout Florida that offer diversion programs for fist-time DUI offenders. In Miami, for instance, the DUI diversion option is known as the Back on Track Program. The ultimate decision of whether you are referred to a diversion program lies with the State Attorney’s Office and certain factors (accidents, high BAC reading, having minor children in the car, previous DUI/criminal record, poor driving record) will initially disqualify you.These diversion programs are nothing to scoff at as DUI is no laughing mater. They are extremely stringent in their requirements and will really ‘hold your feet to the fie’ so to speak.
You will pretty much be completing all the requirements (penalties) that come with a fist DUI conviction. However, once you are done with all the requirements, you will come back to court and the State will reduce your DUI charge to reckless driving and withhold adjudication (meaning you will be eligible to seal your record assuming you are otherwise eligible).The caveat to these programs is that you will likely have to admit guilt as a condition of enrollment.
This means that you need to stay on top of everything or you will be ‘bounced out’ and have to face your DUI charge. Not to mention the State will attempt to use your confession against you in court. Diversion programs, such as Back on Track, are great options for some DUI offenders but you should not go through it alone. Even if the end result is a wonderful one, you want to make sure you have an attorney by your side to secure a referral in the fist place, make sure you successfully complete the program and to advise you of all the options and potential pitfalls before you accept entrance into a diversion program.
DUI: A Mistake That Lasts Forever!Remember, the easiest way to ensure that you will never be able to get a DUI off your record is to go to court without the assistance of an experienced DUI lawyer to help you fight the changes. Walking into court and pleading guilty will guarantee that you will not be able to erase this mistake from your permanent criminal record. Going to court without the assistance of a lawyer because you wrongfully assume that you are guilty or that charges will simply go away, will lead to you representing yourself, with the most common outcome being a plea to what is known as “fist minimums” (assuming there are no aggravating factors such as an accident or high blow in your case).
Florida law has prescribed penalties (judges cannot withhold adjudication) and everyone convicted of a fist DUI MUST receive a minimum of:
- $500 fine
- 50 community service hours
- DUI school
- 10-day vehicle impoundment
- 180-day license suspension (maximum of 1 year)
- In addition, most pleas to fist minimums will include at least 6 months’ probation (jail and probation cannot exceed one year).
Do I Need a DUI Defense Lawyer?You don’t NEED a lawyer to do anything and it is your right to be pro se (represent yourself), but I hope that if you were smart enough to read this book you realize you NEED to speak with a DUI lawyer to see how they can help you defend your DUI arrest.Why do I need a DUI lawyer if there are minimum-mandatory (standard) sentences?There are few things more discouraging, disheartening and downright sickening than seeing someone show up to court for a criminal matter and give up their rights by pleading guilty. I see this all the time and it is especially troublesome in a DUI case where the conviction is mandatory and permanent.
We live in a great country with the best criminal justice system in the world (I know, it’s not perfect) where it is the government’s job to prove your guilt beyond, and to the exclusion of every reasonable doubt. DUIs are extremely complex, technical charges for the government to prove. Why would you give up your rights before working with a lawyer to see if the government even has enough evidence to convict you in the fist place? It is your right to have the government prove your guilt beyond a reasonable doubt, don’t go to court and put yourself on a tee so they can knock you out of the park with one swing. Instead, do your due diligence, educate yourself and hire a lawyer to fight or you so that you can go down swinging (if you must go down at all).
Florida has some of the toughest DUI laws in the country and having an experienced DUI lawyer by your side is a no-brainer. Remember, if you go into court and plead guilty, you will have a criminal conviction on your permanent record. Not only will you be dealing with the extremely high costs of a DUI, but you will also have to deal with consequences beyond the costs, fines fees and possible jail time. A DUI conviction could affect your ability to get to work, prevent you from getting certain jobs, impact your ability to get a loan, make you ineligible for scholarships, obtain a professional license or even get you fired from your current job.
You may be able to avoid all of this by fighting your DUI change in Florida with the help of a skilled DUI attorney.
How Do I Choose a DUI Lawyer To Handle My Case?By reading this article you have already set yourself apart from many other DUI defendants that will blindly hire an attorney. Or even worse, will choose to go it alone. There is no shortage of information out there. That is a really good thing when searching for a lawyer to represent you. But as you are well aware, whether you are shopping for a lawyer, buying golf clubs or making hotel reservations online, you need to be careful.
Now more than ever, we are bombarded with tons of information and not all of it is reliable and trustworthy. Through this book, I will give you information that can help you search for the right DUI lawyer and warn you of what to be skeptical about. Remember: nobody looks bad on their website!
When meeting with potential DUI attorneys to hire, you should be confident and demand answers to all of your questions. By reading this book, you already know more than most DUI defendants out there. You have just been put in handcuffs, hauled off to jail and are now facing a criminal charge that can forever stay on your permanent criminal record. You should be confident that the person you hire to fight or you has given you the answers you deserve before you hire them. Don’t be afraid to ask questions. I welcome these questions and gladly provide answers as I would much rather represent a client that takes their situation seriously and has done their homework.
Here Is a List of Questions That You Should Ask of Any DUI Lawyer
Who will be handling my case?Do you really want to interview and hire a DUI lawyer that you felt comfortable with and never see that lawyer’s face for the remainder of your case? This is the most important question you should ask any potential lawyer you interview. If you are meeting with and hiring a lawyer to go to battle with, that should be the lawyer that will be with you at trial. With internet ads, lawyer directories and websites, it is not uncommon to have multiple people representing you and never actually knowing who is going to be by your side when you go to court. Be very cautious when you hear lawyers tell you that their firm uses a “team approach” or that everyone in the office discusses and knows your case. I GUARANTEE that I will be the lawyer that goes to court with you on the day of trial.
How Much Experience Do You Have Handling DUI Cases?DUI law is very complex and cannot be left o someone who “takes” DUI cases as they come. You need someone that understands the intricacies of DUI law and will offer you the best possible chance to successfully defend this charge. As a DUI client recently wrote, “On the heels of an especially bad bit of [judgment], I was facing down a DUI charge - my fist. I’d already spoken to another lawyer, however I found him to be a bit boorish, unhelpful and rather unknowledgeable about a subject he claimed to specialize in. Fortunately, I was subsequently referred to Danny. What a difference!”
That’s why I wrote the second part of this book, “Defending a DUI (not all “DUI” lawyers are created equal)” to show you some examples of issues commonly missed by so-called DUI lawyers.
Are You A Former Prosecutor or Public Defender?For some reason, people eat this up and attorneys love playing into the notion that because they were a former prosecutor you are somehow going to get a better deal or outcome. Most prosecutors are not prosecutors for long and many leave the office to make more money. Truth be told, pretty much everyone they worked with at the State Attorney’s Office has left too.
Just because someone was a prosecutor does not mean that they are a good defense attorney. Granted, there are plenty of former prosecutors that end up being wonderful defense attorneys, but there are plenty that are only doing defense work because they are familiar with the system and want to make more money. I worked as an intern at the State Attorney’s Office in Miami during law school and, quite frankly, was not too fond of the prosecutorial experience. From the moment I opened my practice, my focus has been on defending individuals charged with DUI and criminal offenses.
I have worked as a Special Assistant Public Defender because I believe in defending those charged with committing a crime and I am committed to that. I can honestly say that my experience in the State Attorney’s Office and Office of the Public Defender has made me a better lawyer, exposed me to different situations and helped me know the system and the people that work in it. But I refuse to sit here and tell you that by having these experiences I will be able to get a better outcome simply because I know the players.
What is going to get you the best outcome is the lawyer that understands DUI laws, brings attention-to-detail and a tremendous work ethic to the table in order to recognize potential issues and raise challenges to these issues as they fight or you. Any attorney that implies or flat-out tells you that they can get a better outcome because they were a prosecutor is being dishonest, insincere and unethical. You should run away and never look back!
What Are The Costs of Legal Fees, Investigators, Experts, Depositions, Transcripts?We’ve all been victim of the “bait and switch.” The last thing you want as you go through the stressful ordeal of fighting a criminal defense a lawyer that is not honest with you about what your case will cost. Fee structures come in all shapes and sizes.
I charge a flat ee to represent you on a DUI charge. After hearing the facts of your case, I will quote a fee that is fair for both of us. That flat fee will cover my time in thoroughly defending you in both criminal court and before the DHSMV.
I will not charge more if you decide to take the case to trial because 1). That’s your right, and 2). I have prepared the case for trial from day one! I will not charge more money for a second DUI because “it’s more work.”
A lawyer that charges more for a second DUI is either squeezing you for more money or is simply not experienced in DUI defense. Lastly, you must also ask any lawyer what additional costs they can expect. Legal fees usually only cover the lawyer’s time and do not include costs such as investigators, experts, transcripts and other costs that can come about in your case. Your lawyer should be honest about potential costs that you may incur when you ask him/her during your consultation.
What Can I Expect The Final Outcome Of My Case To Be?This is almost a trick question. An attorney should never promise a result and a good attorney will not promise a certain result because it’s impossible to know how a case will turn out. Again, if a lawyer tells you how your case will turn out, run away! They are being dishonest and unethical. I promise you that I will do my absolute best and leave no stone unturned when I represent you and I will be the one standing by you each step of the way.
WARNING: Think twice about national DUI websites and “lawyer directories”A simple internet search will reveal a bunch of national sites and directories that claim to feature DUI “experts.” Oftentimes, the only requirement to appear as an “expert” DUI attorney on one of these websites is a credit card or a check. How reliable is that?A lot of these websites will have you speaking with a representative in another part of the country before they pass your information along to a “local” lawyer as a lead they PAY for.
What Does a DUI Lawyer Cost?There are no hard-and-fast rules when it comes to legal fees charged by attorneys to defend your DUI. Criminal defense, and particularly DUI defense, seems to have some of the largest discrepancies or ranges in fees charged by lawyers. The typical range for a DUI lawyer can be anywhere from $800 to $10,000 (and maybe more).
A general rule of thumb, however, is that the “plea mills” or the “dump truck” lawyers tend to charge unreasonably low fees because they rely on having a volume practice and the amount of work they will put in on your behalf is limited. These lawyers usually convince you to take a plea without really exploring options that are available to you or actually fighting your case.
Remember: it’s tough to offer excellent service, high quality of work AND a low price. If you are shopping solely on price you will most likely sacrifice one of the other two qualities—if not both! Beware: there are some terrible DUI lawyers charging extremely high legal fees and doing nothing more than forcing you to plead guilty without doing much work. On the flip side, thee are some good DUI attorneys charging their clients much more reasonable fees and actually earning it by putting in the work! Price alone should not be the only factor to consider when making your decision on who to hire to defend you.
Most good DUI lawyers that focus primarily on DUI defense will charge anywhere between $3,500 and $10,000 (some even more). The better DUI lawyers charge fees that are reasonable for the amount of work they do, because properly fighting a DUI change requires a lot of work.Good luck on your search for the right DUI lawyer. When you meet with potential lawyers, don’t be afraid to ask questions and tell them everything about your case—even if you don’t think it’s important. Hopefully after reading this book you are better prepared and armed with the proper ammunition to make an informed, intelligent decision about who you want fighting or you. Defending a DUI (not all “DUI” lawyers are created equal)
My reason for writing this article was not to overwhelm you with information about DUI in Florida, but rather answer the Top 6 Questions that are making your head hurt and provide some information so that you may see the defenses that may be available in your case.
In the second part of this book, my purpose is not to list every possible defense to your DUI case, but rather to show that there are a number of defenses that can come up. These defenses may be some of the most common and can show up from a factual, technical or legal standpoint. DUI law is extremely complex, laws are constantly changing and getting tougher and you simply cannot trust your reputation, freedom and livelihood to someone who dabbles in DUI defense.
No lawyer wins all his cases. If you encounter any lawyer that says they do, you already know what to do … run! There is, however, one certainty in DUI defense and that is that you cannot challenge and prevail on an issue your lawyer doesn’t recognize.
Potential Issues That May Arise In A DUI Case That Could Lead To Evidence Being Suppressed And Your Charge Being Dismissed
The Stop. Lack of Reasonable SuspicionIn order to have a valid stop, the officer who stops you needs to be able to swear and testify to facts that led him to have a “reasonable suspicion” to pull you over for a crime or traffic violation Oftentimes, police officers will simply go on a hunch—this is not enough! Weaving “within the lane”:This is one of the most common issues in a DUI case and one that officers love citing as the basis for the stop. Sadly, it is also one many lawyers fail to recognize.
The case of Crooks v. State, 710 So.2d 1041 (Fla. 2d DCA 1998) establishes that in order for a driver to be stopped and cited for a violation of section 316.089(1) of Florida Statutes, the driver must operate the vehicle “as nearly as practicable entirely within a single lane” and the driver not move from that lane until the driver determines that the vehicle can be moved safely from the lane. The court’s decision in Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002) used language from the Crooks decision and held the stop was invalid because there was insufficient evidence that the driver caused a safety concern to other motorists. The court held that the applicable statute recognizes that it is “not practicable, perhaps not even possible, for a motorist to maintain a single lane at all times and that the crucial concern is safety rather than precision.”
Changing Lanes Without SignalingEven if you fail to signal while changing lanes or turning, you may not have necessarily committed a traffic infraction. Many lawyers fail to recognize this issue and believe that the basis for the stop is valid. To be in violation of the relevant state statute a motorist is only required to use a turn signal when another vehicle is affected by a turn from the highway. Again, citing the Crooks case mentioned above and relying on the rationale in State v. Riley, 638 So.2d 507 (Fla. 1994), the court in Jordan held that a driver cannot violate section 316.155, Florida Statutes, in “isolation but requires evidence that the driving pattern created a reasonable safety concern.”
The Arrest. Lack of Probable Cause To ArrestWhen you are arrested for DUI that means the officer feels they had “probable cause.” While this is a lesser standard than what is necessary to convict you at trial, “beyond a reasonable doubt,” it is still a high burden for the State to prove if the arrest is challenged in court. Probable cause to arrest is a higher burden for the police officer to meet than the reasonable suspicion needed to stop you and have that stop be justified on reasonable and articulable grounds. When the court hears a motion founded on lack of probable cause to arrest, it will consider everything that came before it, including officer’s observations and the basis for the stop, but it will not hear any evidence that came after the officer’s decision to arrest.
Officer’s Observations of Watery, Bloodshot and/or Glassy EyesThis is part of the DUI “trinity” that all officers seem to observe. Truth be told, people have bloodshot eyes for a number of reasons. They may wear contact lenses, have allergies, may have been awake for a long time, sat in front of a computer for long periods of time, were around smoke or were crying. Moral of the story is that the arresting officer will not be able to testify what your eyes look like normally. Also, oftentimes a person’s booking photo or a photo of them at the station will show their eyes and this can be used with how your eyes appear in court to combat the officer’s testimony.
Slurred SpeechUnless the arresting officer has spoken with you in the past, they will be unable to testify to your normal speech pattern. Let’s face it, we live in South Florida and a good number of people either do not speak English, do not speak it particularly well or do so with a heavy accent. The arresting officer can be attacked on cross examination with regards to whether they understood what you were saying and whether you slurred all your words or just certain words.
Odor of AlcoholThe final art of the DUI “trinity” is the odor of alcohol. I have not read one arrest affidavit that does not mention an odor (usually a strong one) emanating from a client’s breath. During cross examination the arresting officer will not be able to testify to what exactly you had to drink, how much you had to drink or whether someone spilled a drink on you (you’re probably thinking, c’mon Danny, this doesn’t really work does it?). The truth is that it is a way to attack the officer’s testimony and reports. Alcohol has no odor so he cannot testify to what type of alcohol you were drinking or how much you had to drink.
Unsteady StanceA close finalist or making the DUI “trinity” is that you exhibited an unsteady stance or needed to use the door or parts of the car to stand up and exit the vehicle. The officer doesn’t know whether you are suffering from a physical ailment or if your back has tightened from driving—let alone having a panic attack because of being stopped by law enforcement.
Field Sobriety Tests (Exercises)This is usually what leads to the arresting officer finding probable cause to arrest you for DUI. All field sobriety exercises offered by the officer are subject to attack by a skilled DUI attorney. Even the tests that are approved by the National Highway and Traffic Safety Administration (NHTSA) can be challenged so that the officer’s findings ae excluded at trial or their weight is minimized.
Here are some examples:
Objecting To ALL Field Sobriety TestsIf you performed these tests completely sober, you may still fail to perform to standard. Therefore, results of your performance are not relevant and should be fought in an attempt to exclude them at trial. Referring to them as “tests”:Calling something a test gives it much more weight and credibility. When it comes to Field Sobriety Exercises, this is not the case. They are, at their best, only partly reliable.
You need a lawyer that will object to calling these tests.NHTSA’s standardized testing is inaccurate:There are approved tests that were developed by NHTSA: the walk and turn, one-leg stand and the horizontal gaze nystagmus test. These tests are inherently unreliable. As a matter of fact, according to their own testing, the one-leg stand can only predict a BAC of .10 or higher in 65 percent of the people tested.
Location Of The TestsIf someone is auditioning for their freedom by performing roadside sobriety exercises, you would think that these tests would be administered in a fair fashion and in ideal conditions. That is not the case! Oftentimes roadside sobriety exercises are administered on highways near passing cars. Not to mention it is typically done at night, on a roadway full of imperfections and debris and oftentimes without a clearly defined line. You would be surprised to learn this, but a lot of lawyers do not bother to figure out where these tests were administered and never raise challenges to them.
Physical State of DefendantAccording to the NHTSA manual individuals that have a physical impairment that will affect their ability to balance, are over 60 years of age or are 50 or more pounds overweight should not be given these tests.
Horizontal Gaze Nystagmus (HGN)This is the test where the officer asks you to “follow the pen with your eyes.” This test measures an involuntary jerking of the eyes when a person is impaired by alcohol. There is a percentage of the population that has a “natural nystagmus” meaning that they exhibit an involuntary jerking of the eyes even when sober. Furthermore, NHTSA acknowledges that normal and sober people exhibit nystagmus at high peripheral angles (looking to the extreme left or right). However, studies tend to show that people impaired by alcohol have jerking of the eyes at less extreme angles. Assuming the prosecution can get the officer’s testimony in as it is a scientific est and the officer can testify to enough cues that led them to believe there was an involuntary jerking of the eyes, objection should still be made that alcohol caused it without expert testimony. Not all field sobreity tests are valid:There are tests administered at times (finer-to-nose, ABCs) that are not valid sobriety tests.
Breath Tests Attacking Breath Test ResultsIn Florida, anyone who registers a breath test reading of .08 or above is presumed to be under the influence. A lot of prosecutors sleep a lot easier when an accused “blows” or above .08. However, the breath test is a critical point of attack in a DUI case. The jury has to see how unreliable an Intoxilyzer is.
Thorough cross examination of the state’s breath-test technician is key, as is preparing a defense and seeking an expert to testify on your client’s behalf.
Maintenance Records For the Intoxilyzer 8000:Not only is the reliability of the results displayed by the machine under attack by a skilled DUI lawyer, but the maintenance records must be retrieved. A good DUI lawyer that aggressively defends your charge will have obtained the necessary records, not just the machine’s maintenance records but also the breath test operator’s certification documents, in challenging the reliability of the breath test results.
Remember, the Intoxilyzer 8000 is nothing more than a machine—breaking down and malfunctioning with the rest of them. It is absolutely critical for your DUI attorney to be thorough in defending your charge and attacking breath test reliability. Oftentimes problems with the upkeep of the machine may lead to suppressing breath results.
BAC At The Time of DrivingWhen someone provides a breath sample is typically a while after the driving occurred. People’s bodies metabolize alcohol differently and it is possible that your BAC at the time of the test was not your actual BAC at the time of driving. In some cases an expert can testify that you were below the legal limit at the time of driving.
Refusal to Take a TestDriving is considered a privilege and not a right in Florida. Meaning that when you opted to operate a vehicle within the state, you gave your “implied consent” to any sobriety test provided by law enforcement (the language is even on your driver’s license).
Implied Consent WarningsIf you refuse to submit to a breath, blood or urine test, the officer is supposed to read you a document with Florida’s implied consent laws and potential penalties. You will be forced to sign a refusal and your license will be suspended for 1 year. If this is your second refusal, you will be facing an 18-month suspension and a second, independent crime of “second or subsequent refusal.” Raising challenges to the refusal to submit to a breath test and the implied consent forms is critical in defense of any DUI refusal. Not to mention, the state intends to use evidence of your refusal at trial! As a result it is crucial to review every piece of the refusal and thoroughly investigate the circumstances surrounding your refusal. Officers sometimes charge people with “refusing” because they are unable to provide a sample or because they are asking questions of the officer and the officer simply becomes annoyed.
Confusion DoctrineOnce you have been arrested and are in custody, the police must read you your Miranda Warnings if they are going to ask you questions. When they read you the Miranda rights you will learn that you have the right to remain silent, what you say can be used against you and that you have the right to speak to an attorney and have an attorney present. If the police fail to give you Miranda Warnings, anything you say can be challenged and can’t be used against you but your case will not be dismissed. In a DUI context, however, because driving is a privilege and not a right—and you already gave your consent to submit to sobriety tests required by law as a condition of driving—you do not have the right to an attorney until after the police officer offers the breath test and you either take it or refuse.
There are instances, and that’s why it is critical to be thorough and detail oriented when defending a DUI, that times do not match up in the paperwork and the officer actually read an accused Miranda warnings before reading them the implied consent law. You can imagine the “confusion” that this will cause in the mind of an accused and they are likely to think they are well within their right to refuse (hey the officer just told me I didn’t have to do anything!).
I can keep going and we can discuss many more issues that can arise in DUI cases, but I hope that I have made my point and convinced you that DUI defense is a very complicated area of the law and cannot be left o someone that dabbles in DUI defense or takes a DUI case every once in a while.
You need to trust someone that knows and understands DUI law so you can rest assured that all possible defense are raised on your behalf. I hope you have found this book helpful and informative. My goal was to answer those pesky six questions you are likely to have and to provide enough information so that you can be a smart consumer when selecting a DUI attorney to represent you. What lies ahead is not easy and will be quite stressful, but you can sleep a little easier tonight knowing that you are on the right track by requesting and reading this book. If you are facing DUI charges, you cannot delay and must meet this head-on.
As I mentioned earlier, because you took the time to request and read this material, I know you are serious about fighting your DUI charge.
Feel free to call me at (305)707-7345 to discuss your case and see how I can help you.
If you want more information about me, check out:izlegal.com readaboutdanny.comI would be humbled by the privilege to fight or you!