DUI Defense FAQs
1. What is a Formal Review Hearing?
If arrested for DUI and the chemical test result is .08% or greater, or if you refused to take the test, your license will be suspended for a period of time by the Department of Highway Safety and Motor Vehicles (DHSMV). You are entitled to challenge this suspension by means of the Formal Review Hearing. However, this Hearing must be requested in writing and delivered to the DMV Office in Hillsborough County, no later than 10 days from the date of arrest. Your attorney can handle the details involved with scheduling, and be able to conduct this hearing without the need for you to attend.
This Hearing can be a valuable tool in the investigation and the defense of your case. First, it allows your Attorney to challenge the suspension of your license and, if successful, obtain the reinstatement of your license. Secondly, it permits your Attorney to interrogate Law Enforcement Witnesses in order to gain detailed knowledge concerning their observations, actions and opinions.
2. Can I obtain a temporary permit to drive while my license is suspended?
When you are arrested for DUI, you may be permitted to drive for the first 10 days. If your chemical test result was .08 or higher, you will then enter a period of "Hard Suspension" and will not be permitted to drive for any purpose for the next 30 days. If you refused to take a chemical test, your license will instead be subject to a 90 day "Hard Suspension". These periods of "Hard Suspension" may vary in length and may be followed by a period of general suspension imposed by the DMV and/or the Court.
Other than these periods of "Hard Suspension", you may be eligible to obtain a business purpose or hardship license in order to drive while your license is subject to a general suspension. The issues regarding license suspension and eligibility for temporary permits can be confusing and should be discussed with an Attorney.
3. What is the difference between a misdemeanor or felony?
A Misdemeanor charge is generally considered to be less serious than a felony, however, convictions for crimes involving DUI can have long lasting ramifications that may effect both your record and employment.
Misdemeanor cases are handled in the County Court System and punishment may include an adjudication of guilt, a fine, incarceration in the County Jail and supervised probation.
A Felony charge is considered more serious than a Misdemeanor and is ranked in increasing range of severity from Third to First Degree. Felony crimes are handled in Circuit Criminal Court and punishment can include an adjudication of guilt, significant terms of supervised probation or house arrest, lengthy terms of incarceration in State Prison and significant fines.
4. Can I settle my case without a Court Appearance?
Florida law prohibits the settlement of a Felony charge unless the client is present in Court. However, Misdemeanor charges, such as most DUIs, may be settled without requiring your personal appearance. This is referred to as a "Plea in Absentia" and requires the approval of the Court.
5. What fees and expenses can I expect to pay for legal representation?
Legal fees are determined by a number of factors including: whether the charge is a misdemeanor or a felony, the degree or severity of the charge, the number of crimes charged, the complexity of the case, and the client's desires and expectations. Generally, the legal fees charged for representation of a misdemeanor are less than those charged for representation of a felony; a simple case less than that of a complex one; single charges less than that of multiple charges.
Generally, I divide the legal fees that I charge into Pretrial and Trial fees. In other words, I will typically charge a fee for all representation up to the point of Trial, and an additional fee if the client desires to proceed with a Trial.
My office accepts major credit cards and payment plans are available in order to provide payment flexibility for the client.
6. What do police officers look for when searching for drunk drivers on the highways?
The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:
- Turning with a wide radius
- Straddling center of lane marker
- "Appearing to be drunk"
- Almost striking object or vehicle
- Driving on other than designated highway
- Speed more than 10 mph below limit
- Stopping without cause in traffic lane
- Following too closely
- Tires on center or lane marker
- Braking erratically
- Driving into opposing or crossing traffic
- Signaling inconsistent with driving actions
- Slow response to traffic signals
- Stopping inappropriately (other than in lane)
- Turning abruptly or illegally
- Accelerating or decelerating rapidly
- Headlights off
Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety.
7. If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?
You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication -- and it may explain the odor of alcohol on the breath.
8. Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test?
As a general rule, there is no right to an attorney until you have submitted to (or refused) blood, breath or urine testing. In some states, there is a right to consult with counsel upon being arrested or before deciding whether to submit to chemical testing. Of course, this does not mean that you cannot ask for one.
9. What is the officer looking for during the initial detention at the scene?
The traditional symptoms of intoxication taught at the police academies are:
- Flushed face
- Red, watery, glassy and/or bloodshot eyes
- Odor of alcohol on breath
- Slurred speech
- Fumbling with wallet trying to get license
- Failure to comprehend the officer's questions
- Staggering when exiting vehicle
- Swaying/instability on feet
- Leaning on car for support
- Combative, argumentative, jovial or other "inappropriate" attitude
- Soiled, rumpled, disorderly clothing
- Stumbling while walking
- Disorientation as to time and place
- Inability to follow directions
10. What should I do if I'm asked to take field sobriety tests?
There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests.
Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitably "fails". Thus, in most cases a polite refusal may be appropriate.
11. Why did the officer make me follow a penlight with my eyes to the left and right?
This is the "horizontal gaze nystagmus" test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.
This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states; it continues, however, to be widely used by law enforcement.
12. Should I agree to take a chemical test? What happens if I don't?
The decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.
If you refuse, your license will be automatically suspended for a period of time. The length of suspension depends on whether it is your first or subsequent refusal to submit to a chemical test. For example, a first refusal results in a 12 month suspension.
If you take a chemical test and your blood alcohol level is over .08, this is evidence that will be used against you to prove you were driving under the influence.
13. Do I have a choice of chemical tests? Which should I choose?
Generally, you do not have a choice of tests. And in some instances the officer will request you take more than one test. For example, if you take a breath test and your blood alcohol level indicates an amount well below the legal limit, the officer may request a urine and/or blood sample to check for other drugs in your system.
Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate by far, however, is urinalysis.
14. The officer never gave me a "Miranda" warning: Can I get my case dismissed?
No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.
Of more consequence in most cases is the failure to advise you of the Florida "implied consent" law - that is, your legal obligation to take a chemical test and the results if you refuse. This can effect the suspension of your license.
15. Can I represent myself? What can a lawyer do for me?
You can represent yourself -- although it is not a good idea. "Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.
What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field -- no more than a family doctor could help with brain surgery. A qualified attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.
16. What is a "rising BAC defense"?
It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING -- not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested.
Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .08%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .05%. In other words, the test result shows a blood-alcohol concentration above the legal limit -- but his actual BAC AT THE TIME OF DRIVING was below.
17. What is "mouth alcohol"?
"Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.
Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings.
18. What defenses are there in a DUI case?
Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:
- Driving. Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle.
- Probable cause. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
- Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
- Implied consent warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may invalidate a DHSMV license suspension based upon a refusal to provide a breath/blood sample.
- "Under the influence". The officer's observations and opinions as to intoxication can be questioned -- the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing". Too, witnesses can testify that you appeared to be sober.
- Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath or urine testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist.
- Testing during the absorptive phase. The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results.
- Retrograde extrapolation. This refers to the requirement that the BAC be "related back" in time from the test to the driving (see question #17). Again, a number of complex physiological problems are involved here.
- Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.
- License suspension hearings. A number of issues can be raised in the context of an administrative hearing before Florida's Department of Highway Safety and Motor Vehicles.