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DUI – DRIVING UNDER THE INFLUENCE

If you are on your way home when the red lights start flashing in your rear-view, and you have had a few beers, a few glasses of wine or a drink or so, you now have a problem.The state will always refer to four major groupings of evidence to try to convict you:

Driving pattern
Physical appearance
Field Sobriety Tests
The Chemical Test of blood or breath

Florida has two ways you may be prosecuted. First, if your driving is impaired to a certain extent due to drinking (this is the classic inability to drive like a sober person). Second, if your blood or breath alcohol level is above the legal limit (.08%), even if there was nothing at all wrong with your driving.

When you see the lights:  Law enforcement officers are paying careful attention to the way you respond. This is especially true if the thing that caught their attention in the first place was an erratic move, failure to maintain your lane or throwing empty bottles out of the car. Police are looking for signs of mental or physical impairment, such as not noticing their lights or siren, having trouble parking, or any other movement that is consistent with impairment.  Acknowledge that you know they are there by using your signal when you pull over.  This shows a lack of mental impairment.

Police officers are trained to check your appearance. If your shirt is untucked, your zipper undone, or your shoes untied, it will show up in the arrest report and it won’t make you look good. Wait till you get home safely to unwind. Park appropriately. If you can help it, don’t hit the curb. That looks bad.

When the officer approaches be aware that a bunch of breath spray on top of a pitcher of beer won’t fool anyone. Denial that you’ve had anything to drink, when it is obvious that you have, isn’t the best way to go. If you take a breath or blood test later that shows you were lying, that lie can be introduced at a trial as “consciousness of guilt.”

Have your license, registration, and proof of insurance in a location where you can easily retrieve them. Law enforcement is trained to watch carefully to see if you fumble with these documents, as that can be a sign of fine motor skill impairment.

If you’ve had one for the road, admit it.  One of the most effective (and honest) defenses in a drunk driving case relates to a rising alcohol level. The gist of it is that alcohol gets absorbed into the body over time; the amount of time will vary greatly, depending on various factors, such as stomach contents. If someone has “one for the road,” and is stopped a short time later, the blood alcohol level will be higher at the time of testing than it was at the time of driving. This is critically important. The crime is driving under the influence, or driving above the legal limit, NOT being above the legal limit by the time you get brought down to the station.

Many people try to help themselves by misinforming the officer that they stopped drinking long ago. Bad move. The most helpful answer is that the drinking stopped only moments before the lights went on.

If the officer invites you out of your car to take Field Sobriety Tests, you may refuse them. They are voluntary. Law enforcement officers will not tell you this, but they are. If you politely decline them, the overwhelming likelihood is that you will be arrested.  PLEASE NOTE – If you are being asked to take Field Sobriety Tests, the overwhelming likelihood is that you were getting arrested anyway, and by declining the tests, you have gutted a major aspect of the Prosecutor’s case.  In Florida, this may likely result in a suspension of your driving privilege – but could save you from a DUI conviction.

Blood Test, Breath Test, or Refusal – Should a person take the test if they are arrested for DUI, or should they refuse the test. It’s a complicated question, and there is no universal answer. There are ways to effectively attack both breath and blood tests. You do NOT have the right to consult with a lawyer before deciding which test to take, or whether to refuse.

In Florida, forced blood draws are rare. That means that if someone refuses the test, it stops there. There is a downside: the DMV will impose a harsher license suspension if there is a refusal. The upside: one more aspect of the Prosecution’s case is gone.

If you’ve only had a drink or two, probably best not to refuse them; you may get to go home if you perform well. However, if you do perform the roadside agility exercises, be sure to tell the officer about all physical problems that you have that may impair your ability to perform to his or her satisfaction. Any old, nagging injury to your ankles, knees, hips, back, etc. should be mentioned. The same is true for any problems with your eyes or ears (inner ear functioning impacts balance). If you are suffering from an ear infection at the time, be sure to tell the officer that.

There is a pre-arrest field sobriety test that is especially dangerous: the roadside breath test. It is sometimes called the PBT (Preliminary Breath Test), or the PAS (Preliminary Alcohol Screening Test).

Do not confuse this test with the post-arrest test. The officer is supposed to tell you that the pre-arrest test is optional.

Do not take the roadside breath test. In nine times, out of ten, the results hurt your case. The technology of the portable roadside test machinery is suspect; there is no mouth alcohol detector to guard against artificially high reading due to belching/burping, or other problems.

If you arrested, get help right away. In Florida, when someone is arrested for DUI / DWI, there are really two cases: the court case, and the DMV case. The court is trying to punish you in a variety of ways, and the DMV is trying to take away your driving privileges. (The amount of time varies, depending upon whether it is a first offense, whether it is a refusal, and whether the driver is under 21.)

Also, pay attention to details, such as other people that are with you in jail (possible witnesses), booking officers that note your lack of slurred speech (possible witnesses) or the person you call to bail you out that can testify your speech wasn’t slurred.

Above all- if arrested and charged hire an attorney with substantial DUI/DWI experience.  Find an attorney who will fully review all the facts in your case and who is willing to take you to trial if necessary.  It is amazing how many times the prosecutor will back down at the last minute if your lawyer is willing to take it to a jury.

CONVICTED

Now the worst has happened. Not only did you take a terrible risk and drive after you had been drinking, but you have been arrested and charged with driving under the influence. DUI or Driving Under the Influence of Alcoholic Beverages, Chemical Substances or Controlled Substances is a criminal charge under Florida Statute Section 316.193.

You need to know what you are facing and start to act now. DO NOT WAIT. Contact an experienced and aggressive DUI lawyer as soon as you can. Conviction of DUI will carry severe consequences. You want a lawyer who is going to WORK FOR YOU and not just LAY DOWN.

Under Florida law, DUI are one offense, proved by impairment of normal faculties or unlawful blood alcohol or breath alcohol level of .08 or above. The penalties upon conviction are the same, regardless of the way the offense is proven.

CONVICTION OF A CRIME:

You will have a criminal record – for a first offense it is a criminal first class misdemeanor.  A second violation may result in a conviction for another First-Class Misdemeanor.  Third and subsequent conviction could result in a Felony conviction.

FINES:

For a first Conviction: Not less than $500, or more than $1,000. With Blood/Breath Alcohol Level (BAL) of .15 or higher or minor in the vehicle: Not less than $1,000, or more than $2,000. A second conviction: Not less than $1,000, or more than $2,000. With BAL of .15 or higher or minor in the vehicle: Not less than $2,000, or more than $4,000. Finally, a third conviction More than 10 years from second: Not less than $2,000, or more than $5,000. With BAL of .15 or higher or minor in the vehicle: Not less than $4,000.

COMMUNITY SERVICE:

First Conviction: Mandatory 50 hours of community service or additional fine of $10 for each hour of community service required.

PROBATION:

First conviction, total period of probation and incarceration may not exceed 1 year.

IMPRISONMENT:

At court’s discretion, sentencing terms may be served in a residential alcoholism or drug abuse treatment program, credited toward term of imprisonment. First Conviction: Not more than 6 months. With BAL of .15 or higher or minor in the vehicle: Not more than 9 months. Second Conviction: Not more than 9 months. With BAL of .15 or higher or minor in the vehicle: Not more than 12 months. If second conviction within 5 years, mandatory imprisonment of at least 10 days. At least 48 hours of confinement must be consecutive. Third Conviction: If third conviction within 10 years, mandatory imprisonment of at least 30 days. At least 48 hours of confinement must be consecutive. If third conviction more than 10 years, imprisonment for not more than 12 months. Fourth or Subsequent Conviction: Not more than 5 years or as provided in s.775.084, Florida Statutes, as habitual/violent offender.

IMPOUNDMENT OR IMMOBILIZATION OF YOUR CAR:

Unless the family of the defendant has no other transportation: First conviction = 10 days; second conviction within 5 years = 30 days; third conviction within 10 years = 90 days. Impoundment or immobilization must not occur concurrently with incarceration. The court may dismiss the order of impoundment of any vehicles that are owned by the defendant if they are operated solely by the employees of the defendant or any business owned by the defendant.

FURTHER PROBLEMS:

These are very serious penalties. In addition, your insurer will almost automatically drop your coverage and you will be state required to have greatly increased insurance requirements. You could lose your job and if your job involves driving – there is probably no chance your employer or their insurer is going to allow you to drive. Finally – you are going to pay a lawyer whether they get you a good result or not. Do not hire a cheap lawyer. They may not look at all the evidence and may make a quick buck off you. You want a lawyer who looks at ALL the evidence and can guide you to making a proper decision as to whether to go to a trial or settle. A good lawyer can speak to the Assistant State Attorney and if there is a flaw in their case, make a much better deal for you than a lawyer who looks at nothing and meets you for the first time when you are pleading guilty.

Should all convicted drunk drivers be required to use an ignition interlock device at their expense as a condition of probation?

Ignition interlocks, or in-car breathalyzers, are devices that can be installed in vehicles to prevent people who have consumed alcohol from driving. They are most often installed after a driver has been convicted of DUI/DWI, to prevent them from driving drunk again and causing personal injury or wrongful death to innocent people in auto accidents on the roads.

Per a report from the Centers for Disease Control, ignition interlocks can reduce the rate of re-arrest among convicted drunk drivers by 67%.

However, only 13 states require interlocks for all convicted DUI/DWI offenders, even on a first conviction.

Florida’s state government is looking for less expensive ways than incarceration to deal with criminal offenders. There is also an urgent need to cut down on the cost of medical care for uninsured injury victims, the cost of whose care may fall back on local and state governments.

The idea of requiring all convicted drunk drivers to pay for their own ignition interlock devices as a condition of probation might be worth considering.

DUI PENALTIES

  1st Offense 2nd Offense 3rd Offense
Jail 6 to 9 months 9 months to 1 year Up to 1 year
Fines and Penalties $500 to $2,000 $1,000 to $4,000 $2,000 to $5,000
License Suspension 180 days to 1 year 5 years (which can be reduced to 1) 10 years (which can be reduced to 2)