Often, clients ask our Tampa DUI Lawyers about the possibility of getting their pending DUI reduced to a reckless driving charge. The reduced charge of reckless driving is often a possibility.  However, while people often ask for the reduction, they are often unsure what the actual benefits are to receiving such a sentence.  There are five main reasons that a Tampa DUI Attorney seeks to get your DUI charge reduced to the charge of reckless driving as part of a plea bargain.

1.  It's cheaper

DUI's are expensive.  The legislature has decided to impose massive fines on those convicted of DUI.  The fines and court costs for a first time DUI are upwards of $1K.  If the breath test was taken and the result was over a .15, the costs go up to $1.5K.  A second DUI within 5 years of a prior DUI conviction will result in a 2.5K fine.  And a third DUI within 10 years can result in a court costs in excess of 4K! These costs do not include probationary costs, which are between $50-$60 monthly.

A reckless driving charge does not carry with it these ridiculous costs.  The fine is often as low as $500. 

2. Less Social Stigma

Arguably the most painful part of being arrested for a DUI is the potential social stigma that it carries.  MADD, or Mothers Against Drunk Driving, have helped spearhead a national movement vilifying drunk driving. Now, employers often ask specifically in employment applications if the applicant has ever been convicted of DUI, or driving under the influence.

A reduction of the charge to a reckless driving is a way to resolve the criminal matter without assuming the intense social stigma and ramifications that accompany a DUI conviction.

3. No mandatory license suspension

A DUI conviction requires the DMV to suspend your license for a minimum of 6 months for a first offense.  But repeat offenders suffer harsher penalties.  A second DUI conviction within 5 years a prior conviction requires a minimum five year suspension.  A third DUI conviction within 10 years a prior conviction requires a minimum 10 year suspension.  And a fourth conviction for DUI, regardless of the date of the prior convictions, is a lifetime revocation. This is required by law; a Judge  must impose these sanctions.

 

A reckless driving conviction, however, does not require a license suspension.  That means regardless of the number of DUI's in your past, a reduction of your DUI charge to a reckless driving may keep you on the road. 

4.  No mandatory jail time

Jail time often accompanies enhanced DUI's.  In fact, a second DUI within 5 years of a previous DUI conviction requires ten days in jail.  A third DUI conviction within ten years of a previous DUI conviction requires 30 days in jail.  A felony DUI can be punished by up to five years in prison!

If your DUI s reduced to a reckless driving, no jail is required under the law, regardless of how many DUI's are in your past.    

5.  No insurance premium increases

A DUI conviction will increase your insurance premiums.   Florida Law, for example, requires every driver convicted of a DUI in the State of Florida to increase the amount of  bodily injury coverage hey carry. This is known as a FR-44 form.  This can get quite costly.   A reduction of the DUI charge to a reckless driving may help you avoid being required to obtain these costly insurance premiums.

Call a DUI Attorney today

If you have been charged with a DUI in Tampa, New Port Richey, Clearwater, or St. Petersburg, contact a DUI Attorney today at 813-554-3232 (Hillsborough) or 727-753-0049 (Pasco and Pinellas).  Ask to speak directly to a DUI Attorney.

  From Tampabay.com

" TAMPA — Actor Joseph Gannascoli, who played Vito Spatafore on The Sopranos, was arrested early Friday in Tampa on a DUI charge.

 

Gannascoli of East Rockaway, N.Y., was arrested at 3:05 a.m. at 3629 W Kennedy Blvd., just east of Dale Mabry Highway. His blood-alcohol level was listed as 0.111.

 

He was in Tampa for a public appearance for his cigar, the Cugine. Gannascoli was driving a 2010 Dodge sedan when he made a wide right turn onto Kennedy Boulevard from Armenia Avenue, according to an arrest affidavit.

 

After the turn, the report states, he started to straddle the lane marker. He kept driving and straddled another lane marker before a Tampa police officer pulled him over. "

---

The fourth amendment protects Mr. Gannascoli from unreasonable governmental searches and seizures.  Our very constitution then requires that the police, as government agents, act reasonably when they stop, detain, or frisk citizens like you.

 

Tampa Police would be justified stopping Mr. Gannascoli in one of two scenarios:  if they had probable cause Mr. Gannascoli committed a traffic infraction, or if they had reasonable suspicion Mr. Gannascoli committed a crime (DUI).  A Drunk Driving Lawyer in Tampa can examine the case to see if there was a legal basis to stop.

 

To have probable cause that Mr. Gannascoli committed a "wide turn" or "failure to maintain a single lane" traffic infraction, Florida courts have said that Mr. Gannascoli must also have affected traffic by his driving.  In other words, the traffic infraction must also have presented a danger to those around him.

 

To have reasonable suspicion that Mr. Gannascoli was committing the crime of DUI, the officer must be able to point to specific and articulable facts that led him to believe Mr. Gannascoli was DUI, and not just changing a CD, talking on the phone, ect.

 

If the Tampa officer did not have reasonable suspicion of a crime or probable cause of a traffic infraction, then the stop may have been invalid, and the Tampa criminal dui lawyer for Mr. Gannascoli may be entitled to have the evidence in his case suppressed. 

 

 To read more about Mr. Gannascoli and his DUI arrest, click here.

The cop stopped you for whatever reason, and smelled alcohol on your breath.  He did his investigation and arrested you for DUI.  In Hillsborough or Pinellas County, he took you back to “central breath testing”, observed you for at least twenty minutes, and finally, asked you to submit to a Breath Test. You cooperated.  You blew into the machine. You could not speak to a Tampa DUI Attorney .

 

The results were high.  Higher than a .08.  Higher than the “legal limit”.  A feeling of dread over takes you.  Hope is lost, right?

 

Not necessarily.  Because assuming for the sake of argument that breath test machine was working and got a true result, the resulting BAC could only be a valid measurement of the alcohol going through your veins at the time of the test.

 

But DUI is driving under the influence. It is not sitting in central breath testing under the influence.

 

How much time has passed between the moment the officer stopped you and the moment you actually blew into the machine?  An hour?  An Hour and a half?  Two hours?  Even Longer?

 

What is clear is that the more time that passes between the moment that officer seized you and the moment you blew into the machine, the more meaningless the results of the breathalyzer becomes. It has to do with the rate of absorption of the alcohol into the blood stream.  

 

Alcohol does not enter your blood stream the moment you ingest it.  Rather, it goes down to your stomach where it is slowly broken down and absorbed.  The speed of absorption is dependent on multiple factors such as age, general health and fitness, metabolism, and the other contents of the stomach at the time of ingestion.  

 

So there is a period of time after ingestion of a particular quantity of alcohol where your BAC steadily rises to its peak BAC.  Then, as the body processes the alcohol, the amount of alcohol then lowers until eventually there is no more alcohol in the system.  It generally takes around an hour after ingestion for alcohol to hit its peak BAC.

 

Imagine the following situation:  A driver knows its last call, pounds a couple of beers, then gets in his car to drive to his home, five minutes away.  That driver may have a BAC under .08 when he gets in his car. He may have continued to have a BAC under .08 as he drives home.  He may have made it home and into bed with a BAC under a .08.   However, his BAC may continue to rise after he got into bed, until it reaches a peak level that may have been in excess of .08.

 

What if that driver was stopped and ultimately arrested for DUI?  If an hour passed between the time he was driving and the time the blows were obtained, his breath test results may be significantly higher than what they were at the time he was driving. 

 

It is difficult to tell one way or the other.  Your Tampa DUI Attorney may attempt to higher an expert in to try to quantify what the BAC would have been at the time of driving based on what the BAC was at the time of the blow.  Alternatively, your Tampa Criminal Attorney may choose to dismiss the results of the test as unreliable because of the length of time between the driving and the breath results.  That decision is one that must be made on a case by case basis, taking into account the particular facts of your case. 

Client's that agreed to give a urine sample after a DUI arrest are often fearful of what the pending results may show. While every case is different, we try to help the client understand three main reasons that the results of the pending urinalysis by themselves carry minimal evidentiary value.

 

1.  Urine results are markers of what was once affecting the system, not necessarily what is currently affecting the system. 

 

This is common sense, but it is often overlooked:  a urine result is only a marker of what was once affecting the system, not what is currently affecting the system.  Obviously, for a result to be in the urine, it has since been eliminated from the system.  The prosecutor must prove to the Jury that your system was under the influence of the susbtance in question at the time of driving, not before.  Your Tampa or Pasco Criminal Attorney must make the jury aware of this obvious fact.

 

2.  The urine results are not usually quantified.

 

In most of the counties in Florida, they do not quantify the amount of the foreign substance in the urine.  Without knowing the amount in the substance, it is impossible for an expert to draw a conclusion as to whether the defendant is under the influence or not.

 

3.  It is impossible to draw a conclusion based upon an un-quantified urine result whether the person was actually under the influence of the substance identified at the time of driving.

 

Most of our clients are aware that, if one were to have a job interview coming up, he better make sure you were not around anyone smoking marijuana a month before the test.  That’s because Marijuana metabolites can be found present in urine for up to a month after the body ingests the substance.  However, the effect of marijuana, or the body being under the influence of marijuana, lasts for a matter of hours.  This same principle applies to most substances that are eventually found in the urine.  Cocaine, for example, only influences the body for a matter of hours, but can be found in the urine up to 72 hours after ingestion. 

 

While this is all good stuff for your Tampa or Pasco DUI Lawyer to use during cross examination of the state’s toxicologist, it may be worthwhile to ask your DUI Attorney about employing a Forensic Toxicologist to test on your behalf.   A good forensic toxicologist may be just what the Jury needs to understand that in your DUI trial, the urine results offered by the prosecution should not be given much evidentiary weight.

 

At Denmon & Denmon, our Attorneys have working relationship with top forensic toxicologists in the Tampa Area.  If you have a DUI cases where a toxicology expert may be helpful in your case, call our office at 813-554-3232 and ask to speak to an attorney. 

 

The police cruiser pulls in behind your vehicle, and the officer flips on his lights.  You pull over.   You roll down your window as the officer approached your driver side door.  He asks you if you had anything to drink tonight. Then, he asks you to step out of the car.  On the side of the road, he asks you if you would be willing to take his “Field Sobriety Tests”.  The officer begins by reading you instructions for the “tests” and then demonstrates what he wants you to perform.  The two psychomotor “tests” he will request you to perform are the walk and turn and the one-legged stand.  After you perform, the officer will likely conclude that you failed his “tests”, and place you under arrest for DUI. 

 

You retain a Tampa Bay Area Drunk Driving Lawyer. You fight your DUI.  At trial many months later, the arresting DUI Officer will tell the jury that he knew you were driving under the influence in no small part because of your performance on his tasks.  He will give great weight to the results of his walk and turn and the one-legged stand tasks.    

 

But should a jury?

 

A Few Studies on Field Sobriety Exercises that every Pasco, Pinellas, or Hillsborough Florida DUI Attorney Should Know:

 

Preliminarily, understand that to have probable cause of a DUI arrest, a Florida DUI officer must reasonably believe that the individual he is investigating is under the influence of alcohol to the extent that his normal faculties are impaired by the alcohol.  Normal faculties include the ability to walk, talk, judge distances, and drive a car. 

 

So how does he do that? How does a DUI officer “quantify” impairment while on scene? What factors, or evidence, articulate that the impairment (if any) observed by the officer was the result of alcohol and not nervousness, injury, handicap, or just a lack of sleep?

 

A breath, urine or blood test to determine blood alcohol content is not an option.  Under Florida Law, an Officer can only request that you take a breathalyzer test after he places you under arrest.  

One tool that police officers have been using for the better part of a century can be classified as field sobriety exercises. Previously, they included such tasks as counting your ABC’s backwards and picking up a penny off of the ground. 

 

Eventually, the National Highway Traffic Association, or NHTSA, started to look more closely at the Field Sobriety Tasks.  It wanted to see if they could “beef up” the meaning of the Field Sobriety Exercise results.  It wanted to turn the tasks into something more standardized, powerful, and reliability.  It wanted to see if they could turn the tasks into scientifically reliable tests. 

 

So in the 1970s, NHTSA funded a research project to study field sobriety tests. The studies evaluated whether or not field sobriety tests could predict whether subject was above or below a .10% BAC, the presumptive level of intoxication in California at the time of the studies. 

 

Results of the 1977

Interestingly, NHTSA’s funded research first concluded that the alphabet test and finger to nose test were not recommended for use as sobriety tests because they did not add anything to the predictability of the subject’s influence by alcohol.  It is therefore surprising that police officers continue to use both of these exercises today in DUI investigations, considering that the “bible” of Police Officer DUI training comes from the Student Manual published by NHTSA.

 

 Even more interestingly, the officer’s participating in the 1977 study had an error rate of 47%!  Of the 101 people that the DUI officer’s concluded were impaired, 47% of them had a blood alcohol content of less than .10 (the legal limit at the time). 

 

So in 1981, NHTSA felt the need to try again.  However, the results of this test were not the overwhelming results NHTSA had hoped for to conclude that the field sobriety tests were scientifically valid.  Of the 118 individual arrested, 32% were had a blood alcohol content level of under .10.

 

In 1994, Spurgeon Cole, a clinical psychologist and researcher with Clemson University, performed a study on the Field Sobriety Exercises testing the hypothesis that completely sober people would find the exercises difficult to perform and, as a result, would be judged “impaired by alcohol” by officer’s viewing their performance.

 

In the Study, Fourteen police officers rated the performance of 21 individuals what had completed the field sobriety tests.  The officers had a mean experience level of 11.7 years, and all had completed the state DUI training program and had field experience with DUI detection. 

 

The participants consisted of 10 males and 11 females, between 21 and 55 years of age, with no known disabilities.  The participants completed six different field exercises, including the walk and turn, finger to nose, and one legged stand. 

 

The officers watched the performance on video.  At the end of the video, all 21 officers were asked to determine, yes or no, if the participants were impaired and should not be driving.

 

The results?

 

Of the total of all the DUI officer’s decisions after viewing the participants’ performance in the field sobriety tasks, 46 % were that a participant had had too much to drink. Remarkably, only 3 of the 21 completely sober participants were rated as “unimpaired” by all the officers.  Five of the 14 individuals were rated as having “too much to drink” by all 14 of the drunken driving officers involved.   Clearly, not the results one would expect from a “scientifically reliable” test.

 

However, your arresting DUI cop will take the stand and will try to make the psychomotor tasks you took seem as reliable, standardized, and scientific as possible.  It is important for your Tampa Bay DUI Attorney to make the appropriate pretrial motions to keep the cop from misleading the jury.  If the officer still testifies in a manner that the Jury will view the tasks as scientifically reliable, then your DUI lawyer must be prepared to properly rebut the officer’s testimony at trial, using the very NHTSA manual that your arresting officer was trained on.  

Shortly after the police officer arrests you for DUI and handcuff’s your hands, he will ask you to submit to a lawful test of your breath, blood or urine.  If he smells alcohol on your breath, and you’re not in the hospital, he is referring to a breathalyzer test.  He will ask you nicely to take his breathalyzer test. If you decline, he will then inform you that if you fail to submit to the test requested of you, then your privilege to drive will be suspended for one (1) year for a first refusal, or eighteen (18) months if your privilege to drive has previously been suspended as a result of a refusal to submit to a lawful test of your breath, urine, or blood.   He will then ask you to submit to a test again.

 

What does it mean if you say no?

 

First, as the officer said, if you refuse, then your license will be suspended for 12 months or 18 months, depending if you have declined to take a breath test before.  This administrative suspension comes from the DMV, or the Department of Highway Safety and Motor Vehicles, and has nothing to do with your criminalcharge.  If you have never refused to take a breathalyzer or other lawful test before, then you will be eligible for a hardship license in Florida after 90 days.  Otherwise, you will be without a license for an entire 18 months.

 

Second, the refusal has potential ramifications in your criminal case should your fight your DUI charge. You may think that by refusing, you are not giving the State Attorney any evidence of your guilt.  That is not correct.  By refusing, you are not giving the prosecutor any evidence of what the Breathalyzer machine says your Blood Alcohol content is.   So the prosecutor will not be able to argue that you a DUI because your blood alcohol level exceeds .08. 

 

However, the prosecutor could still argue (and he will) to the Jury that your refusal to take the Breath test is evidence of your consciousness of guilt, or your “guilty mind”.  In other words, the prosecutor can say that you didn’t blow because you knew that you were driving drunk.  The prosecutor can further argue that 1. Driver’s licenses are vital and necessary to people’s everyday lives, and 2. Who would knowingly let their license be suspended for 12 months unless they were trying to hide something?

 

Fortunately, the prosecutor is limited in how far he takes this argument.  For example, the prosecutor cannot go so far as to say that you could have proven you were not guilty simply by taking the test.  Any statements that shift the burden of proof from the prosecutor to the defendant is inadmissible in court.

 

What to do if I did not blow into the breathalyzer test?

 

It is imperative that your Tampa or Pasco  DUI Attorney do three things:

 

1. Try to keep out evidence of the refusal, if possible.
2. If the refusal is admissible, then explain or offer reasons to the Jury that refusing to submit to a breathalyzer machine that you know nothing about is a reasonable decision given the circumstances, and
3. Keep the State Attorney in check in how he argues the refusal to the Jury.

 

Your DUI Attorney may be able to keep out evidence of the refusal if the officer did not read the implied consent warnings correctly, if he misstated the law regarding the consequences of the refusal, or if he failed to advice you of the consequences of a refusal entirely.  Some courts have suppressed evidence of a refusal when the arresting officer read the implied consent warnings properly but also read Miranda warnings around the same time.  This is known as the “confusion doctrine”.

 

Your Drunken Driving Attorney should be able to explain to the Jury that, in America, every man or woman has the right to tell the Police “no” when they request something, like a Breath Test.  Certainly, a reasonable person may choose not to blow into a machine he knows nothing about, in the hopes that it will magically convert the contents of his breath into the results of his blood alcohol level.

 

At the very least, your lawyer must keep the prosecutors arguments in line with what is permissible by law.

 

Refusing to submit to a breathalyzer is a perfectly reasonable response to the officer’s post arrest request.  After all, you will not be un-arrested, regardless of the result of the test.  However, it is important to have an experienced Tampa Bay, Pinellas, or Pasco criminal defense DUI lawyer on your side.

 

In Tampa: Denmon & Denmon 3200 Henderson Blvd, Suite 200 Tampa, FL 33609 813-554-3232

An arrest for Drunken Driving can happen to anyone.  Last year, local law enforcement made almost 7,000 DUI related arrested in Hillsborough County alone.  Unfortunately, that does not change the fact that a DUI is a terrifying ordeal. You worry that you could lose your license, your liberty, or your livelihood.  You wonder how you will explain your DUI past to your future employer. 

 

Our Tampa Criminal Defense and DUI lawyers understand the fear and uncertainty that a DUI arrest causes.  You need answers, and you desire results.  Whether by a reduction to a reckless driving, a dismissal, or a not guilty at trial, we approach every DUI case with the goal of avoiding a DUI conviction for our clients if possible.  

 

A Tampa DUI Lawyer may help you stay on the road.  He may be able to keep a conviction off your record.  However, at the very least, he can guide you through the system, making the process a little less terrifying. 

 

Our Tampa Location:

 

3200 Henderson Blvd Suite 200 Tampa, FL 33609  813-554-3232

 

Many clients are shocked and dismayed when they realize the depth of the drunken driving penalties in Florida.  In cases where the client has refused to take the arresting officer’s breathalyzer, urine, or blood test, the DMV will suspend his license for a year.  However, if the client acquiesces to the officer’s request to blow into the breathalyzer machine, and the machine prints out a result that is .08 BAC or higher, then the DMV will suspend his license for six months.  These suspensions are administrative suspensions, done by the DMV, and have nothing to do with whether or not the client is ultimately guilty or not of DUI in a court of law.  The client can, through his DUI attorney, request a formal hearing on the DUI suspension if he acts within ten days of his DUI arrest.  However, the client who waits to long to “lawyer up” because he does not understand the system will be out of luck. For many people, the loss of driving privileges is punishment enough.

 

However, the true drunken driving penalties begin to apply only upon a conviction for DUI.  Realize, that these penalties I’m talking about only happen if the client pleads guilty or no contest to a DUI, or if he loses at trial.  If the client’s Hillsborough or Pasco County DUI attorney can negotiate a lesser charge, like a reckless driving, or if the attorney can get a dismissal of the case, then these drunken driving penalties will not apply.

 

A first time DUI conviction these days is punishable by 180 days in the county jail.  It will get you a fine approaching $1000.00, upwards of 12 months probation, mandatory DUI School and substance abuse evaluation and treatment, if necessary.  Your car will be impounded. And your license will be suspended for anywhere from six to twelve months.  Realize, this license suspension is completely separate from the DMV administrative suspension above; in effect, it can be getting suspended twice.  Courts have found this perfectly legal and not double jeopardy.

 

A first time conviction with a breathalyzer result of over .15 will result in a fine in excess of $1500.00, up to 9 months in jail, and an extremely costly six months of an ignition interlock device installed on your car.

 

The penalties for a drunken driving conviction get much more costly, escalating with the amount of prior convictions and any damage caused by the incident.  A third DUI conviction with a breathalyzer result in excess of .15, for example, carries with it a $4500 fine and the potential of 5 years in prison.

There are a multitude of issues that call into question the reliability and accuracy of your Tampa, Pasco, or Pinellas County jail’s breath test machine.  For example, the arresting officer will not attempt to explain how his breath test machine will translate alcohol on your breath into an accurate reading of the alcohol level in your blood. Another problem with the breath test machine is that, unlike a blood sample or a urine sample, the breath sample itself cannot be captured and stored.  That means the defendant cannot go back later and retest his breath sample for accuracy and reliability.  All that remains from the breath test sample is a print out of the results.

 

In an attempt to lend some semblance of reliability to these machines, the legislature requires FDLE, or the Florida Department of Law Enforcement, to enact rules and regulations regarding the proper administration of the breath test machines.  This implied consent statute further requires that, to be admissible in court, any breath samples retrieved from you after an arrest must be in “substantial compliance” with the rules.  (The fact that the Florida Department of Law Enforcement writes their own rules regulating the breath test machines their officers use is an issue for another day).

 

One of these FDLE rules,  Florida Administrative Code Rule 11D-8007 , regulates the method in which the officer takes the breath sample from the arrested.  The rule requires the breath test operator, agency inspector, arresting officer, or designated person shall reasonably ensure that the subject has not taken anything by mouth or has not regurgitated for at least twenty (20) minutes before administering the test.

 

The intent of the rule is clear:  we don’t want anything in the arrested person’s mouth that could interfered with the accuracy or reliability of the machine.  Burping up alcohol from the stomach, acid reflux, a strong couch, chewing gum, eating bread, and a million other things will destroy the reading.

 

Therefore, if the officer does not maintain a 20 minute observation period before securing the test breath sample, he cannot later assure the jury that the test result is reliable and free from the intereferents listed above.  After all, the breath sample is gone immediately, and incapable of retesting.  In such a case, your Tampa criminal defense lawyer may very well be successful in having the judge declare the breath test evidence inadmissible in trial. 

 

For example, in one Tampa DUI case, one Officer submitted a signed affidavit that he had observed the arrested for approximately 30 minutes.  However, the security surveillance video from the jail showed that the arrested went into the bathroom for 2 minutes, and was clearly out of the officer’s sight for that time.  Because the arrested was out of the officer’s sight for two minutes, the officer could not reasonably ensure that the arrested had not taken anything by mouth or regurgitated for the twenty minute period. Accordingly, the breath test results were held inadmissible.

 

So what happens if your got a tampa DUI case pending, and you DUI breath test result is suppressed?  Without that substantial piece of evidence, the State may be required to reduce you dui to a reckless or even dismiss the case.

The wide array of possible penalties and associated with a DUI arrest and conviction covers everything from dui school and ignition interlock devices to jail or even prison.  The first penalty the accused often suffers, often as early as ten days after the DUI arrest, is the loss of the ability to drive due to a suspended license.

 

In a Tampa or Pasco DUI case, a license suspension may come from either the DMV itself, the criminal courts, or both.   The DMV, or administrative suspension, always comes first.  The DMV will suspend your license within ten days of your DUI arrest if one of two things happen:

 

1. There is evidence that your BAC is above a .08, or
2. You refused to submit to a test of your blood, breath, or urine.

 

Now, while it is the DMV that suspends your license, the true power person is the arresting officer.  If he lets the DMV know after your arrest that he thinks one of the  two conditions above has been met, then the drivers license bureau will automatically suspend your driver's license ten days after your arrest. 

 

A BAC above a .08 gets you a 6 month suspension the first time, and a 12 month suspension the second time.  A refusal gets you a 12 month suspension the first time, and 18 months the second time.

 

Thanks to your right to Due Process under the law, your Tampa or Pasco DUI lawyer  can request a formal review of the officers decision on your behalf.  When the DUI lawyer requests that hearing, he can obtain on your behalf a hardship permit that lets you continue to drive pending the outcome of your hearing. This is the first opportunity to get a hardship license.

 

Now that hardship license is only good for an extra 42 days.  During that time, the DUI lawyer will obtain the police reports, affidavits, intoxilyzer inspection and maintenance logs, and all the stuff necessary to prepare for the formal review hearing.  If your Tampa DUI attorney can successfully argue that the police lacked probable cause for to arrest for DUI, or that the Officer did not substantially comply with the rules regulating the blood, breath, or urine test, then the  administrative suspension will be set aside, and your full driving privileges will be restored.

 

However, if the suspension is sustained, the hardship license will be taken away, and a period of "hard" suspension will begin.  A "hard" suspension is a period of time during your regular license suspension when, no matter what your Tampa or Pasco DUI Attorney  says or does, no hardship license will be issued.  You cannot drive (legally), period. 

 

The length of the hard suspension for a BAC over a .08 is 30 days.  At the end of 30 days, you will be eligible for a hardship permit (again), provided you can show proof of enrollment  in DUI school.  Your Tampa DUI attorney will set up a hardship license hearing for you, hopefully on the first day that you are eligible for a  hardship permit. 

 

A refusal suspension carries a hard suspension of 90 days for a first refusal, and eighteen months for a second refusal.  That means if you are arrested for a DUI and refuse, and you had previously refused a test of your BAC on another occasion, you will be ineligible for a hardship permit for the entire length of your administrative suspension.

 

It should be noted that the suspension issues outlined above only deal with the administrative, or DMV side of things. If you go to court and ultimately plead to your DUI charge, you will suffer another separate and distinct suspension of your license, this time at the direction of the presiding judge.  If it is a first dui conviction, the suspension is for 6 months to 1 year.  If you had previously received a hardship license to keep you driving during your administrative suspension, it will be taken away!  The drivers license bureau requires you to go back and reapply to get your hardship back.  Only this time, you will need to have completed any DUI school and treatment if necessary before they give you a hardship permit.  Our Tampa DUI attorneys realize this, and will help you coordinate the completion of any DUI school before your case is resolve to keep you on the road. 

 

Keep in mind, this criminal court suspension only applies if you are convicted of a DUI.  A reduction of the DUI to a reckless driving, a not guilty at trial, or an outright dismissal will keep the Judge from suspending your license.

 

It’s quite possible.  But to determine whether or not there is a likely possibility of a reduction of your DUI charge, you have to understand the mindset of the State Attorney.  Consider the following:

 

1. State Attorneys want convictions.  High convictions percentages increase the likelihood of a happy State Attorney- constituency, and a better chance at reelection.
2. State Attorneys want to win at trial.  Or perhaps more accurately, State Attorneys do not want to lose at trial.
3. State Attorneys give great weight to the client’s past.  If the client has a history of DUI’s, negotiations with the State will be more difficult.  If that client gets a great deal from the State Attorney and then hurts someone in a drunken driving related incident, the State Attorney has committed political suicide.   

 

Your DUI attorney should always consider these factors when attempting to negotiate a reduction of the charge or an outright dismissal on your behalf.   If your case has good facts, your dui attorney may discuss with you the possibility of attempting to negotiate a reduction of the charge before setting the case for trial.  For example, a defendant who had blood alcohol content below a .08 would likely make the state second guess the strength of its case.  In such a case, a dui attorney would discuss the possibility of a reduction of the charge with the client as a potential alternative to a trial.  A reckless driving may please the client, while at the same time providing the State with a conviction to keep its “stats” up.  The reckless driving plea deal also has the advantage of saving the state attorney the potential embarrassment of losing at trial.

 

Alternatively, consider the situation where the police may have made an illegal stop, but may have acted legally.  An illegal stop can result in suppression of the evidence gathered by the police subsequent to the illegal stop.  The defense dui attorney files a motion to suppress the evidence gathered.  The prosecutor understands that if the motion is granted, he will be unable to use the evidence gathered by the police, and will have to dismiss the case. The possibility that the prosecutor will lose the motion may very well be enough for the State Attorney to offer a reduction of the charge.

 

Finally, remember that a client’s past is an important factor in the State’s decision to reduce the case.  If the client has been convicted multiple times before for other DUI charges, the State Attorney is more likely to roll the dice and take his chances at trial. 

 

To analyze the potential of a reduction of your Dui to a reckless driving charge, always consult a dui attorney.

 

Yes.  You can be charged with DUI even if you are asleep behind the wheel of your car parked in your own driveway. For example:

 

" A 40-year-old man found slumped over the steering wheel of his parked car was arrested Sunday night on a DUI charge, the Pasco County Sheriff's Office said.

Jeffrey Roger Werling had a blood-alcohol content of 0.361 and 0.367, more than four times the level at which Florida law presumes impairment, the report said.

A deputy performing a welfare check about 8:30 p.m. found Werling passed out in the driver's seat of a van parked in his driveway at 3153 Bright Drive. "

 

It is a crime under Florida Law to drive or be in actual physical control of a vehicle while impaired by alcohol or illicit substances.  A Jury in a DUI trial is instructed by the Judge that a person is in actual physical control when he has readily exercisable power or ability to operate the vehicle, and is on or about the vehicle. 

 

Was Mr. Werling in actual physical control of his vehicle?  It depends.  Was the engine running?  Were the keys in the ignition, or around his person?  Was he seated, or was he lying down?  If the facts of Mr. Werling’s situation were such that no reasonable person could conclude that he had the power or ability to operate the vehicle, than a Judge could potentially throw the case out.  If for example, Mr. Werling left the keys in the house and the axle was broken on the car, he would have a strong argument for dismissal. A reasonable jury could not conclude that a keyless man could readily exercise control over a broken vehicle.

 

However, such a fact pattern is a rarity, and the question of actual physical control is often more difficult to determine. In these vast majority of cases, a Judge will decide the evidence of actual physical control of the vehicle is enough that he will not throw the case out.  In these cases, whether or not the driver was in actual physical control is a question for the jury to decide.

 

If you have an “APC” case, contact a DUI Attorney to discuss your legal options and advise you on the strength of your case.

 

Click here to read Mr. Werling’s story 

 

A Cop pulls you over at 3:00 a.m. He noticed your eyes were bloodshot.  Speech seemed a little mumbled.  Dexterity when getting out of the car was not too sharp. The arresting cop made you walk the line, and hop on one foot. He felt you looked impaired.  Your reaction time, your ability to make judgments, and process information, were impaired.

 

You have been arrested for DUI.  Is his assumption that your impairment was caused by alcohol correct?

 

Assume one additional fact:  You have been up since 5:00 am the preceding morning. What if you were just tired?  What if you were just sleep deprived?

 

A researcher at the University of California, Los Angeles School of Medicine compared the relative effects on performance of sleep deprivation and alcohol.  She tested employees from the transport industry, or professional drivers.  She found that:

 

• After 17 to 19 hours without sleep, performance on some testes was equivalent or worse than that at a Blood Alcohol Content of .05%.  Response speeds were up to 50 % slower on some tests, and accuracy suffered on others.
• After longer periods without sleep, performance on some tests reached levels equivalent or worse than that of someone with a Blood Alcohol Content of .10% 
•  

The National Highway Traffic Association, or “NTSHA”, points out that:

 

• There is currently no objective test for determining how sleep a driver  is, and
• Most car crashes related to sleepiness occur after midnight.

 

In the situation above, where the driver has been up for 22 hours straight, he will likely be exhibiting impaired motor function equivalent to someone with a Blood Alcohol Content over the legal limit. He will look and perform as if he was intoxicated.

 

If that individual performs the perfectly legal act of stopping at the bar for a single drink, thereby having alcohol on his breath, the chances of the officer mistakenly arresting the tired individual increases exponentially.

 

For more on DUI law, visit our site here

There are local Trial Attorneys who advertise themselves as “THE Aggressive Attorneys”.  Implying, of course, that their aggressiveness distinguishes them from other Trial Attorneys.   Truthfully all Trial Attorneys are, or should be, Aggressive Attorneys.  Trial work, both civil and criminal law, is by its very nature an adversarial process.  One side squares up against the other side, they duke it out in front of a Judge or Referee, and the Jury watching the show is called upon to decide the truth.  Our justice system requires the two advocates to hit hard and not pull any punches.  The antonym of aggressive is peaceful.  If the two sides in the jury peacefully dealt with each other, they would arguably be committing ineffective assistance of counsel.

 

As trial attorneys, we love the aggressive nature of our work.   However, if we played the part of aggressive attorney all the time, we would be doing our client a disservice.  Sometimes the lawyer needs to drop his armor at the door, sit down with the prosecutor, and break bread. 

 

Not every client has the factual situation that makes trial an appropriate play. Some clients are too risk adverse to consider trial as an option.  In many cases, after consulting with us our clients will decide that seeking a plea bargain would be preferable to advancing towards trial. When this is the case, we turn our attention to getting the best plea deal we can get.  Oftentimes in DUI cases, that would be seeking a reduction of the charge, or keeping the client out of jail.  To accomplish this, sometimes we play aggressively, exposing weaknesses in the case to the State. However, other times the best course of conduct is to sit down with the prosecutor and hammer out a deal.  You have to be willing to break bread with the other side.   Even the best aggressive attorneys know the importance of keeping up good relations with the prosecutors.

It’s a fact of Florida highway driving life that certain small towns are “speed traps” with an entire town police force devoted to writing traffic citations to collect revenue.  Now some cities, like Aventura, are looking to raise funds in the same manner, but without the cost of using the police force.  Enter the Red Light Traffic Camera.  The cameras, operated by a private company called American Traffic Solutions, are installed at select intersections and operate to automatically issue a citation in the mail to anyone that runs a red light.  You come home from work and find in the mail a citation issued by a private company that tells you to pay a big fine to your local municipality or come to court.  You don’t even get the good decency of being pulled over by a police officer or the opportunity state your case.

 

What stinks about the red light traffic camera is that then Attorney General Charlie Christ issued an advisory opinion addressing this very issue concluding that they were illegal.  Florida Statute Chapter 316, or the “State Uniform Traffic Control” law, requires that traffic tickets be issued only by a law enforcement officer who has observed the alleged civil infraction.  Yet Aventura went ahead and installed the traffic devises anyway.

 

Well, Richard Masone, a resident of Aventura, received one of these tickets in the mail.  He got an attorney, Brett Luskin, to fight the case.  While it took a year, Mr. Luskin got the case in front of a circuit Judge, who agreed with the Attorney General’s opinion, and threw the case out.

 

Kudos to Mr. Masone and to Mr. Luskin.  Most people would have just paid the ticket and gone on about their business.  But they fought an injustice, and their actions will benefit people throughout the State of Florida.

To read more, click here.

DUI charges are serious business. A conviction can get you up to a year in the county jail.  Jobs, especially driving jobs, can become that much more difficult to obtain and keep.  The financial ramifications are mind shattering, with court costs in fines in excess of a thousand dollars, probation costs, insurance premiums, ignition interlock devises, driving under the influence school, and impounded cars, to name a few. 

 

However, many people consider the loss of their driving privilege to be the most serious, the most painful, and the most immediate result of a DUI arrest.  Unlike the financial ramifications and the possibility of incarceration, driving penalties rear their ugly head almost immediately after a DUI arrest.  If the arrested driver refused to submit to the officer’s tests, or if his blood alcohol results were over the .08 limit, then his license will be suspended ten days after the arrest.  This is considered an administrative suspension by the department of motor vehicles; it has nothing to do with the criminal case.  Even if the driver believes he can beat his criminal case tomorrow, he will have his license suspended today if he does not get the ball moving. 

 

A DUI attorney can keep the driver on the road after the ten days expire.  This is because even in administrative proceedings the citizen is entitled to due process of law.  The DUI attorney can request a formal review hearing with the local bureau of administrative review.  The formal review usually takes 3-4 weeks to be calendared and to be heard.  In the meantime, the attorney can get a temporary permit to keep the driver on the road until the formal review hearing.  So, at the very least, the formal review hearing can keep the driver on the road for another month to plan for alternative means of transportation. 

 

In preparation for the formal review hearing, the attorney gets the “packet” of police reports and affidavits from the driver’s license bureau.  If he discovers upon reviewing the packet that the arresting officer made a legal mistake in handling the DUI arrest, the attorney may decide not subpoena the officer, and argue the results in the “packet” at the formal review hearing. If the administrative review hearing official agrees, the attorney may be able to get the administrative drivers license suspension tossed out. In that case, the driver would immediately receive his full unrestricted license back. 

 

However, if the officer did everything by the book, crossed his T’s and dotted his eyes, then the attorney may choose to subpoena the officer for the hearing.  If the officer shows up, a Driving Under the Influence attorney in Tampa can use this valuable time to get information from the officer to build his defense on the criminal charge.  If the officer does not show up, the DUI attorney can ask that the DMV reinstate his client’s driver’s license.

 

Of course, if the driver goes to see his attorney 11 days after his DUI arrest, a request for a formal review would be untimely, and deemed waived.  That means on day 11, the drivers license suspension would be in effect. 

2 of 2

Previously, I mentioned reasons why some or all of the State’s evidence in a DUI case may never see the light of the courtroom.  But what if the Judge decides the evidence is admissible? 

 

What does the evidence really mean?

 

From a Criminal Attorney’s perspective, DUI cases are an entirely different animal than other criminal crimes.  In most criminal cases, the question presented is whether or not the State can prove the crime alleged beyond a reasonable doubt.  The Criminal Law Attorney builds his defense around inconsistencies in the evidence, “poking holes in the case”, and asking the jury to quit because a reasonable doubt exists as to the prosecutors version of events.

 

When trying a DUI case, however, the DUI attorney goes on the offensive.  He points out the fundamental unfairness of an officer taking seemingly innocent activity and interpreting it as an indicator of criminal activity. He teaches the jury how the field sobriety tests are abnormal exercises, and therefore ridiculous evidence of normal faculties. He points out to the Jury the shaky science that the State tries to hang their hat on.  He shows the Jury that the evidence probably does not mean what the Government thinks it means.

 

The majority of DUI cases naturally start with an officer stopping a car.  Take the case where the driver is stopped for speeding.  Almost everyone drives in excess of the speed limit at one time or another.  People speed for a variety of reasons.  Speeding is a non criminal infraction, punishable by a slight fine.  The problem is the case where the driver is stopped for speeding, but ultimately arrested for DUI.  Now, the arresting officer, if called to testify, will turn to the Jury and tell them that in his training an experience, speeding is a sign or indicator of impairment.

That would be fine and dandy, but what about the case where the driver was stopped

 for driving to slow?  Almost everyone drives slower than the speed limit at one time or another.  People drive below than the speed limit for a variety of reasons.  Driving too slow is not an infraction.  However, if this driver was ultimately arrested for DUI, then when the officer was called to the stand to testify to the jury, he would turn to them and tell them that in his training and experience, driving too slow is a sign of impairment.

 

See the problem?  In a DUI trial, anything that is not perfect driving could be used by the arresting officer to be a possible sign of impairment.  And the officer uses the following stock line: “In my training and experience, [insert activity here] is an indicator of possible impairment.  The State’s theory of the case is that a multiple little possible indicators of impairment equal a drunk driver.

 

So what to do?  A good DUI attorney will simply then get up on cross examination and show the jury all the perfect driving behavior.  Maybe the client was speeding, but he maintained a single line just fine.  Had he not maintained the single lane just fine, officer, you would have told us on direct, right? Because driving outside the single lines is an indicator of being impaired.  And our client was driving inside the single lanes.  Maybe the client slowed down when the officer turned on his take down lights, pulled over to the side of the road in a model manner, and put the car in park.  If the client did all this correctly, then the DUI attorney must inform the jury.  The conclusion, if done correctly, is unmistakable:  the client may have done a handful of things incorrectly, but most of his driving was ok, was perfectly normal.

 

After a stop, the officer is likely going to ask the defendant out of the car to conduct field sobriety exercises.  The officer has a battery of three main different exercises that he is going to try to tell the jury are standardized tests that can help ferret out the drunks from the rest.  Each test has multiple components that all will be minutely studied and dissected by the cop to determine if the client was drunk.  For example, the walk and turn requires nine steps down a line, heel to toes, then a very specific three part turn, then nine steps back.  The accused is told to keep his hands down at his sides during the test. Counter intuitively, he is instructed to not use his hands for balance.  If the tested does anything incorrectly, then the officer will mark him off, concluding that is an indicator of impairment.  If the tested does not remember the lengthy instructions correctly, then the officer will consider that an indicator that alcohol has impaired the driver's memory.

 

What to do? The officer wants mistakes on these tests to be indicators that the clients normal faculties are impaired, A skilled cross examiner will get the DUI cop to admit that he is trying to use abnormal exercises to try to measure the clients normal faculties.  For example, the officer’s heel to toe test requires the tested to walk down a thinly painted line heel to toe, one foot to another. People don’t walk like this down the street.  The officer’s stand-on-one-foot is likewise abnormal’ people don’t stand on one foot in normal day to day activities.  A DUI attorney should start with the fundamental ridiculousness of the officer’s exercises.

 

But often, the officer slaps the handcuffs on the defendant after these abnormal exercises.  He carts the defendant down to the police station, and he offers the defendant a chance to blow into his special machine.  This machine is the Intoxilyzer 8000.  This machine will relay a blood alcohol number.  If that number is over a .08, then the State will tell the jury to convict because over the limit, breaking the law. If the client refuses to take the test, then the State will argue the client had a guilty conscious and that’s why he chose not to take the test.

 

What to do?  A skilled DUI lawyer cross examiner does not shy away from the breath testing machine.  He must attack it.  At its heart, the idea that this machine that takes a sample of a person’s breath and analyzes it to determine what a person’s blood alcohol content is patently ridiculous.  The State will not present evidence to show that the machine is a scientifically reliable machine, and it is the defense attorney’s job to illustrate that point.  A DUI attorney must inform the Jury that the officer could have taken the driver's blood.  Logically, alcohol level in the blood clearly is easier determined by testing a blood sample than some by a machine that analyzes breath.  The truth is that officer's due not request blood tests because they are more expensive than breathalyzer tests.  Your DUI attorney must explain this fact to the Jury.  The jury must be made aware of it.

 

What is the relevance if the driver decided not to blow into the machine?  Does that mean the defendant was drunk, or just distrustful of a machine the arresting officer explained nothing about?  The DUI attorney can take the officer through the questions he asked to the client before asking for the breath sample.  The officer never tells the client anything about the reliability of the machine, or how it works.  Remembering that it is perfectly legal to have a drink and drive, so long as you’re not drunk, it seems perfectly reasonable that a client who sipped on a drink does not want to blow his breath into a machine without knowing if it is reliable or not.  You DUI attorney must explain to the jury that it is perfectly reasonable for an accused citizen, who has already been placed under arrest, to choose to not be tested by a machine he knows nothing about when his criminal record is at stake.  

 

An experienced DUI attorney knows how to spot and attack these issues.  Our attorneys know the game. Before you decide you DUI case is unwinnable, consult an experienced DUI attorney.

“I’m guilty.  I drank and drove.  End of story”. 

As DUI attorneys, we hear it from people all the time.  Instead of hiring a qualified DUI attorney, they walk into court and plead guilty.  Often, they don’t realize the full extent of the punishment they have agreed to accept until they walk into the probationary office.  They are shocked when they hear about the fines, classes and ignition interlock devices. The irony of having their license suspended for up to a year, while at the same time getting a notice in the mail that their car insurance premium has skyrocketed. The hundreds of dollars paid just to be on probation. The costs add up and up, but the people must pay it all or risk being sent to jail for violating their probation.

 

Sadly, they think there is nothing a Tampa or Pasco County DUI attorney can do for them.  They may be surprised to find out that it is not against the law to drink and drive; only to drink so much that the ability to walk and talk and judge distances is impaired.  Otherwise, why would almost every bar and restaurant that serves alcohol in the state of Florida have parking lots? They may be amazed to discover that a Florida Appellate Court has determined that those “tests” they did on the side of the road lack scientific validity.  They may be astonished to learn that the arresting officer could have taken a common sense approach and asked them for a blood sample to test their blood alcohol levels, but instead chose to have them blow into a machine that may not have been calibrated correctly, so that the result obtained may not even be admissible at trial!

The truth is that there is a lot a criminal defense attorney could have done.  Even the worst cases, the cases where victory in the courtroom seems impossible, may just be winnable after all. To illustrate how, let’s look at the two big questions a DUI Attorney should keep in mind as he begins to analyze the prosecutor’s case.  First, should the evidence, if detrimental to the client’s cause, be admissible in court.  Second, if the evidence is coming into trial, what does it really show?

 

Is the evidence admissible at trial?

 

You have rights. The founding fathers recognized 10 of your most important individual rights in the first ten amendments to the constitution, or the Bill of Rights. The fourth amendment, for example, protects the citizen from unreasonable searches and seizures from the government.  Our very constitution then requires that the police, as government agents, act reasonably when they stop, detain, or frisk citizens like you.

 

For example, an officer on patrol can stop you for speeding if he has probable cause that you were, indeed, speeding. He can stop you for an expired tag, if he has probable cause to believe that your tag was, indeed, expired. The officer is allowed to stop you for the above mentioned traffic infractions if he has probable cause to believe that you committed the traffic infraction.  He can also stop you if he has reasonable suspicion based on specific facts known to him that you have been, are, or will be committing a crime.  An example of this is when an officer stops a vehicle because he thought the driver of the vehicle was DUI.  If the officer had reasonable suspicion based on his observations of the person’s driving pattern, then he may stop the vehicle and investigate further.

 

However, an officer cannot make a stop unless he finds himself in one of these two situations.  If the officer suspects that you were speeding, but did not actually see the driving himself, then the officer does not have the probable cause necessary to stop you for the traffic infraction of speeding.  Likewise, if the officer has a gut feeling that a driver of a vehicle is DUI, but does not have a reasonable suspicion based on facts observed, he cannot stop the driver.  A bare hunch or a guess won’t cut it.

 

We know the patrolman cannot just stop you without a good faith basis.  But what’s to stop the police from ignoring your constitutional rights, and doing what they wish?  Otherwise well meaning police officers have illegally detained citizens in order to determine if a crime is being committed.  An illegally detained citizen has limited recourse if such a situation.  After all, it’s the police we are talking about here. What incentive do they have to protect your rights?

 

The courts formulated a legal principle called the exclusionary rule as a mechanism to protect an individual’s constitutional rights. The courts will sometimes exclude evidence collected and obtained in violation of a citizen’s constitutional rights from a criminal prosecution.  This exclusionary rule is not made to reward a citizen otherwise guilty of a crime.  Rather, it’s intended to deter the police officers from utilizing illegal means to investigate potential crimes and gather possible evidence.  Practically, the courts “slap the officer’s wrists” when he goes too far by throwing the evidence out of court.  The hope is that the officer will think twice the next time he considers acting improperly.

 

For an example, an officer spots an individual driving down the road.  He stops the individual for taking a wide turn.  However, the wide turn did not affect any other traffic. Subsequent to the stop, the individual opens the door and 12 beer cans fall out.  His eyes are bloodshot and watery, his speech is slurred, and there is an odor of alcohol on his breath. He is arrested and taken to the police station, where he registers a .25 on the breathalyzer machine.

 

In such a situation, the office may have violated the individual’s constitutional rights by illegally stopping the individual.  While there is a “wide turn” traffic infraction, the wide turn must also be affecting traffic. (Note:  What constitutes probable cause for a traffic infraction stop like for a “wide turn” violation can be very fact specific.  You must consult with a lawyer to evaluate your individual situation).  The individual’s lawyer would move the court to suppress the evidence seized as a result of the stop.  That means that the lawyer would ask the judge to throw out the observations made by the officer after the bad stop, including the beer cans, the slurred speech, odor of alcohol, and bloodshot and watery eyes.  Most importantly, the lawyer would ask the Judge to throw out the breathalyzer reading.  In such a situation a trial would become unwinnable for the State, resulting in a dismissal of the case.

 

However, the exclusionary rule does not just apply to violations of an individual’s constitutional rights.  Florida extends this protective measure to violations of the statutory protections that the lawmakers have put in place.  For example, the attorney-client privilege is not enumerated in the constitution.  This privilege, among others, is written into the laws by the state’s lawmakers.  However, evidence obtained in a criminal case in violation of this statute would be thrown out of court just as if it was evidence gathered in violation of a constitutional right.

 

The Florida Legislature has written a statute dealing with DUI law.  It’s called the implied consent law.  Some text from the law can be seen on the bottom of a Florida Drivers license, where it says, “Operation of a motor vehicle constitutes consent to a sobriety test required by law”. If you blow over a .08 on the breathalyzer or refuse to take the test, the arresting officer will take your license.  The power to take your license comes from the implied consent law.

 

However, the implied consent law actually protects individuals in many ways.  It requires that police agencies only use certain approved, certified, and calibrated machines.  The law further requires the machines to be in substantial compliance with an exhaustive list of rules and regulations governing the machines.  These rules governing the breath test machines are statutory protections put in place by the lawmakers, just like the attorney-client privilege discussed above.  If the breath test machines are not in substantial compliance with the rules, then the exclusionary rule may apply.  Just like evidence obtained as a result of a bad stop, a breathalyzer result obtained when the rules were not followed correctly may result in the result being tossed out of court.

 

Hopefully, this helped summarize one of the basic issue of evidence admissability a Drunk Driving attorney will address with you.  Next time, I'll taslk abou the eivdence that does make its way into the courtroom, and what it really means.

Denmon & Denmon Tampa Bay Trial Lawyers 3200 Henderson Blvd Suite 200 Tampa, FL 33609

 

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A new client was telling us the other day that she speaks fast when she is nervous.  That’s not surprising; many people speak quickly when they are nervous. She also gets nervous when dealing with law enforcement.  That is also not surprising.   Most police officers, when asked, will admit that people often act nervously when dealing with law enforcement.

 

Our new client had been pulled over by law enforcement at 2:00 a.m.  She had left a bar.  According to the officer who stopped her car, she failed to maintain a single lane with her vehicle.  Her tires crossed the yellow line.  When the officer began to ask her questions that were clearly related to a DUI investigation, the client became nervous.  The nervousness caused her to speak quickly and jumble her words.  The officer had never met the client before.  The officer had never heard her talk before.  However, according to the client, the officer told her repeatedly that he knew she was on something because of the way she was speaking. The client tried to tell the officer that she fidgets and speaks quickly when she is nervous. The officer would not listen, and ultimately arrested her for DUI. Our new client was shocked that the officer assumed that her nervousness was a result of an intoxicant, and completely ignored her reasonable explanation.  She explained that it felt like the officer had made up his mind to arrest her before she even stepped out of the car. 

 

She just may have been right.

 

In its zeal to get tough on DUI, law enforcement has become increasingly aggressive in its “investigations” of DUI.  Many of the local police departments, such as the Hillsborough, Pinellas, and Pasco County Sherriff’s offices, have created “specialized” DUI tasks forces.  In Pinellas and Pasco, these are known as STEP units, or Selective Traffic Enforcement Patrols. On his agency’s website, Pasco Sherriff Bob White points out that, “these units stay very busy.  In 2009, we arrested 912 people for driving under the influence in Pasco County”.  Sherriff White further explains how his STEP units conduct “Wolf-pack” operations, aggressively patrolling the [predetermined] area locating impaired drivers”.  The Pasco county Sherriff proudly evokes the image of hungry wolves hunting prey when describing its aggressive DUI practices. 

 

Pinellas County law enforcement also describes its DUI enforcement policies using in a like manner, with St. Pete Police Officer Robbie Arcovich talking about “fishing for DUI drivers” in the St. Pete Times.  The article commended Arcovich because he had notched over a thousand arrests, apparently leading the league in that category. 

 

Clearly, we have aggressive police specializing in fishing for DUIs and hunting for drivers in the Tampa Bay Counties.  I’ll admit it is possible that the officers are just that good that everyone the pull over is DUI, but it’s more likely that some people who are not committing the crime of DUI are getting arrested for the crime anyway.  How can that be?

The crime of DUI is often very difficult to define. What is not difficult to undersnand is that it is perfectly legal to drink and drive, so long as one’s normal faculties do not become impaired. Under Florida Law, if one is under the influence of alcohol, but still can walk, talk, stand, and judge distances normally, then he is not impaired to the extent that his activity is criminal.   

However, the standard DUI investigation conducted in Hillsborough, Pinellas, and Pasco Counties does not attempt to measure normal faculties.  The battery of exercise typically done- walking on line heel to toes, standing on one foot- measure abnormal activities.  Tests that would show normal faculties, like walking normally, are not tested.   And the tests designed to measure blood alcohol; like the breathalyzer test, and blood draws, are never completed until after an individual has been arrested for DUI.

So where is the DUI investigation really happening?  It’s happening before the driver is pulled over.  The STEP officer, the Wolf-pack, they are looking for signs of abnormal driving.  In their mind, abnormal driving observed at 2 a.m. in the morning means a likely DUI.  I have analyzed hundreds if not thousands of DUI fact patterns, and it’s clear that the vast majority of DUI officers have made up their mind after watching a driving pattern, pulling a driver over, and smelling alcohol on their breath.

 

The problem with this is, of course, sometimes perfectly reasonable explanations exist for driving mistakes.  Driving over the yellow marker could be an indication of impaired driving.  However, it just as could easily be the result of someone talking on the cell phone, or switching the radio station.  Speeding could be an indication of driving impaired.  However speeding may also just be an indication that an impatient driver wants to get home.  Likewise, driving slow could be an indication of impaired driving.  But it could just as likely be the result of a safe, concerned driver.

 

Once the DUI officer has decided the driver is DUI, its game over.  There is no unconvincing the officer that the driver’s normal faculties are not impaired.  At that point in the investigation, the officer looks only for signs that indicate impairment.  He ignores any signs that indicate sobriety.  He also will not consider any reasonable explanations for the otherwise innocent activity.  After the arresting officer has decided that he has a DUI, any evidence with multiple reasonable explanations will only be considered as evidence of DUI impairment.

 

Unfortunately for our new DUI client, she was leaving an establishment that served alcohol at 2 a.m.  She let her tires slip over the yellow line.  When the officer then stopped our client and smelled alcohol from the club on her body, it was game over for her.  (Ironically, the client later blew a .000).

 

So when the client acted jittery, and began speaking fast, the DUI officer new that it had to be evidence of driver impairment.  If not alcohol, then some sort of drug. The officer was not about to consider alternative possibilities for the jittery behavior.  It certainly could not have been the result of a nervous woman afraid of the police.

Dunlap pleads guilty to DUI charge in exchange for probation

By Lise Fisher

Staff writer (Gainesville Sun)

Published: Friday, January 29, 2010 at 11:17 a.m. 
Last Modified: Friday, January 29, 2010 at 11:17 a.m.

Former Florida defensive end Carlos Dunlap entered a guilty plea Friday following a December arrest for driving under the influence.

Dunlap, 20, received the minimum mandatory sentence for a first-time DUI offense with six months probation and a six-month driver's license suspension, said Spencer Mann with the State Attorney's Office. He also must complete 50 hours of community service, participate in a victim's  impact panel and pay about $1,000 in fines and court costs.

Dunlap refused to submit to the breathalyzer test.  Had Dunlap taken the test, he would have been subject to Florida’s zero tolerance DUI administrative law because he was under 21 at the time of the offense. That means that had Dunlap taken a breath test and registered a .02 BAC or higher, he would have had his license suspended.   

However, this administrative law creates some confusion as to what the criminal law is for drivers under 21.  The zero tolerance law applies only to driver’s license suspension.  If a driver under the age of 21 like Dunlap fights  the criminal charge of DUI, the prosecutor must prove either that the driver’s normal faculties were impaired by alcohol or drugs, or that  the driver’s BAC exceeds .08 at the time of driving.

Hypothetically, had Dunlap had taken the test and registered a .02 BAC his license would be suspended under the zero tolerance law.  However, the same piece of evidence would create a presumption in criminal court that Dunlap was not DUI at the time he was driving.     

 

The link http://www.gainesville.com/article/20100129/ARTICLES/100129375/1136/sports?Title=Dunlap-pleads-guilty-to-DUI-charge-gets-probation