The following is a Pamphlet that we make available to each of our DUI clients to help them understand the charges, the procedures, and their rights. This same information is available in other areas of the website, but it is presented here in a single document.<\/p>\n
INTRODUCTION TO DUI<\/strong> WHAT IS DUI? <\/strong> HOW DOES IT ALL START? <\/strong> WHAT HAPPENS NEXT IS CRITICAL <\/strong> THE GREATEST WEAPON THAT THE POLICE HAVE <\/strong> THE BREATH TEST AND THE RESULTS : <\/strong> HOW WILL YOUR CASE PROCEED? <\/strong> YOUR DRIVER\u2019S LICENSE : <\/strong> HOW LONG DOES THIS TAKE? <\/strong> SUMMARY<\/strong> :
\nIf you are reading this pamphlet, then you or a loved one have probably been arrested for DUI or a related offense. The purpose of this pamphlet is to provide you with information relative to these offenses, the defense of these kinds of cases, the procedure that is followed in these cases and to advise you of what you may expect. Carefully reading this material before meeting with the attorney will save time (both yours and the attorney\u2019s) and prepare you to ask better questions during your interview. Although each DUI case is unique (no, not all DUI\u2019s are alike), there is a lot of information common to every case. There is no test after reading this so relax, read, and if possible\u2026 enjoy. <\/p>\n
\nIn Florida, there is no such offense as [drunk driving.]\u202fThe term DUI refers to driving while under the influence of alcohol or other drugs to the extent that your normal faculties are\u202fimpaired. Your claim that you were not \u201cdrunk\u201d or even \u201cintoxicated\u201d does not mean that you may not have been sufficiently\u202fimpaired\u202fto be charged and convicted. Similarly,\u202fit is not illegal in Florida to drink and drive\u2014it is illegal to drink too much and then drive.\u202fThe fact that you have \u201calcohol on your breath\u201d is not proof that will convict you of DUI.
\nThere are actually two separate ways for the State to charge and convict you of DUI. The first is mentioned above. They can prove that you were impaired while you were either driving or in actual physical control of a motor vehicle. There is an\u202falternative\u202fway that they can seek to prove your guilt. It is commonly referred to as [UBAL] That term stands for Unlawful\u202fBlood\u202fAlcohol\u202fLevel. In order to convict you by this method, all the State has to prove is that when you were either driving or in actual physical control of a motor vehicle, your blood alcohol level measured .08 or higher. They ordinarily use the results of either an Intoxilyzer test given shortly after your arrest or a blood test of blood drawn from you shortly after your arrest (or hospitalization) and later tested in a lab. <\/p>\n
\nThe Stop
\nWhat happened that caused the police to come in contact with you in the first place? The most common scenario has a police officer claim to observe you committing a minor traffic infraction. He\/she stops you for that infraction, asks for your driver\u2019s license, registration and insurance and tells you what he believes you did wrong. So far, so good. Almost all traffic infractions are civil rather than criminal and you cannot be arrested for them (examples include speeding, running red lights or stop signs, failing to yield right of way, failing to maintain a single lane, etc.)
\nThe reason given by the police for stopping or encountering you is the first opportunity we have to attack your arrest. Usually, the police are able to describe conduct that would clearly authorize them to stop or approach you. Once they have lawfully stopped you, they commence to build their case against you with other observations (see below).
\nBefore permitting them to use the information they gather after they stop you, we must first analyze whether they may have violated your rights by unlawfully stopping or approaching you in the first place. If the Court finds that the officer should not have stopped you in the first place, then it matters not that you were falling down drunk when he got you out of the car. We may be able to have the charges dismissed. This is not the norm, but it is the first place we look. Often the police stop you under some pretext because it is 2:30 AM, they know the bars just closed and they believe that there is a good chance that anybody they can stop will have been drinking and provide an arrest opportunity for them. They have to be able to justify the stop based upon some observed offense or conduct that would cause the Court to finds the stop justifiable. Assuming the Officer has put enough into his report to survive our attack on his stop, he still may not have enough evidence to get a conviction for DUI unless you help him. <\/p>\n
\nTypically, this encounter provides the police officer the opportunity to begin making observations that lead to your arrest. The officer takes note that you have red, glassy, bloodshot eyes and slurred speech (later implying that this caused them to suspect you had consumed too much alcohol.) They often note that you had some difficulty locating your license, registration and insurance card (suggesting that you must have been impaired.) Most frequently they will report that they noted the smell of the impurities of alcoholic beverages emanating from your vehicle and\/or your breath. All of these observations they will later testify, caused them to be concerned for the safety of the traveling public and caused them to inquire further to determine if you were in any condition to be driving.
\nThe officer is likely to ask you a number of questions (some seemingly harmless) such as \u201cDo you know why I stopped you?\u201d, \u201cWhere are you going ?\u201d, \u201cWhere are you coming from?\u201d, {Do you know what time it is?\u201d, \u201cHave you been drinking tonight?\u201d, \u201cHow much have you had to drink tonight?\u201d, \u201cWhen did you have your last drink?\u201d, \u201cDo you have a buzz on?\u201d, \u201cDo you have any medical problems?\u201d, \u201cAre you taking any medications?\u201d and so forth.\u202fNONE OF THESE QUESTIONS ARE DESIGNED TO HELP THE OFFICER DECIDE THAT YOU ARE OK TO GO ON YOUR WAY. ALL OF THEM ARE DESIGNED TO HELP HIM PUT YOU IN JAIL AND CONVICT YOU OF DUI.
\nDO NOT ANSWER\u202fANY\u202fOF THE OFFICER\u2019S QUESTIONS<\/strong>\u202f(Obviously, this advice applies only to future situations since you probably said way too much when you were stopped this time. It\u2019s still worth reading and understanding.)
\nLet us take a few minutes to explain why this is so! First and most importantly, remember that you are never required to answer an officer\u2019s questions about anything, unless you have been involved in an accident (and as soon as the accident investigation changes to a criminal DUI investigation, you are free to refuse any further questions.) His curiosity or his need to \u201ccomplete his investigation\u201d does not require you to cooperate in his efforts to jail you.\u202fBe polite but uncooperative.\u202fUsing the questions posed above, we\u2019ll explain why.
\nQ.- \u201cDo you know why I stopped you?\u201d\u202fIf you say \u201cNo\u201d, then you must be impaired because you are either unaware of the infraction he is going to claim you committed or you do know and are exercising poor judgment by lying to him about it. If you say \u201cYes\u201d, you are tacitly admitting to having committed the infraction, and thereby validated his decision to stop you. Either way you lose.
\nQ.-\u201cWhere are you going?\u201d and \u201d Where are you coming from?\u201d
\nThe Officer is trying to establish that where he stopped you, is not directly between where you say you are coming from and where you are going to. This suggests confusion that implies you are impaired. The Officer also hopes that you will admit that you just left a bar, which suggests that you have been drinking and drinking too much at that. He probably followed you out of the bar parking lot but would prefer not to have to mention that if you will provide him with that information voluntarily. Don\u2019t answer these questions!
\nQ.- \u201cDo you know what time it is?\u201d
\nIf you guess and you are right, there is no notation in the report. If you guess and you are wrong, he will note that you were confused, wrong about the time and therefore impaired. You answer, you lose!
\nQ.- \u201cHave you been drinking tonight?\u201d, \u201cHow much have you had to drink tonight?\u201d, \u201cWhen did you have your last drink?\u201d, and \u201cDo you have a buzz on?\u201d
\nThese questions are all designed to get you to admit your alcohol consumption so the Officer can use that information to develop probable cause and arrest you. Regardless of what the Officer tells you, these questions are NEVER used to \u201cclear\u201d you so that you can return on your way home. If you lie and say that you have not been drinking when the Officer smells the alcohol on you or in your car, he will note that answer as either being a lie or suggest that you are so drunk that you forgot you had been drinking. Never answer any of these questions!
\nQ.- \u201cDo you have any medical problems?\u201d and \u201cAre you taking any medications?\u201d
\nThese questions are designed to take away your later opportunity to use a medical condition or medications as a defense. If you answer \u201cyes,\u201d you may get follow up questions designed to show that you medical condition should not affect your performance on sobriety exercises. If you deny any medical condition or use of medications, then you have no excuse for performing poorly. Either way, you lose!
\nBy now you get the point- the Officer is not asking these questions to help you. He is asking them to help himself in his efforts to convict you of a crime.<\/strong> <\/p>\n
\nThe \u201cField Sobriety Exercises\u201d
\nOf all the weapons in the police DUI enforcement arsenal (these terms are selected because this is a battle- a battle for your freedom), the single most devastating weapon is the Field Sobriety Exercise. Previously referred to as the \u201cfield tests\u201d, these are a series of exercises designed by the National Highway Traffic Safety Administration. They are\u202fsupposed\u202fto measure your performance against standards developed by this pro-law enforcement organization and provide \u201cclues\u201d for the Officers to note as evidence that you are impaired. Let us pause and give you critically important advise that we will repeat, again and again.\u2014NEVER, NEVER, EVER, EVER TAKE ANY FIELD SOBRIETY TEST OR EXERCISE<\/strong>.\u202f(While they are referred to as \u201cfield\u201d tests, the advise applies whether they are offered \u201cin the field\u201d or back at the jail or other breath testing facility.) The Officer may start the process even before he requires you to exit your vehicle. He may stand at your driver\u2019s door and ask you to see if you can touch or focus on a pen light, his finger, a pen or some other object. He will note your inability to do this correctly (according to him) and then \u201cask\u201d (Can you say \u201corder\u201d?) you to get out of your vehicle.
\nNormally the Officer will say something like this\u2014\u201dI need you to perform a few exercises for me so I can determine if you are able to drive home tonight.\u201d\u202fWhen these words enter your ears and are processed by your brain, what you hear is\u202f\u201cIf you do really well on these tests, the nice Officer is going to recognize the error of stopping you and let you drive on home. \u201cWrong!!!
\nThat is not what he is saying. The ONLY purpose for these exercises (tests if you prefer), is to provide the Officer an opportunity to subjectively score your performance and conclude that you are impaired. These exercises are seldom video taped, so usually the only evidence that a jury can receive is the officer\u2019s testimony of how poorly you performed. Even when they are video taped, the camera is often situated so that the officer\u2019s observation is not clearly contradicted. Let\u2019s be clear\u2014IN THE HISTORY OF MANKIND, SINCE THE EARTH COOLED AND THE DINOSAURS BECAME EXTINCT, NOBODY HAS EVER PASSED THESE EXERCISES IN THE OPINION OF THE OFFICER GIVING THEM.
\nGet the picture? The only way to be sure to avoid flunking these exercises is to REFUSE TO TAKE THEM. The Officer will not tell you that you have the right to refuse. He is not required to. We\u2019re telling you now\u2014don\u2019t take them.
\nThe exercises themselves are pretty standard. There is the\u202f\u201cHorizontal Gaze Nystagmus\u201d\u202fexercise (in the arrest report it is called the \u201cHGN\u201d exercise. In this test, the Officer asks you to hold your head straight ahead and follow his finger, pen or light with your eyes as he moves the stylus or other object back and forth across your field of vision to the left and right of your peripheral vision.\u202fDon\u2019t take this test.\u202fAlthough the courts have held that most officers are not qualified to score this exercise and it may therefore be inadmissible at trial,\u202fyou should still never take it.
\nThe \u201cWalk and Turn\u201d\u202fexercise requires you to first stand with your feet placed one directly in front of the other, heel of one touching the toe of the other, with your hands at your sides, and to remain there while the Officer demonstrates and explains the exercise to you. You are then told to take 9 steps, heel to toe forward along a straight line and make a unique turn, taking 9 steps back along the same line in the same way, all the while keeping your hand at your sides. People don\u2019t normally walk like this. The exercise is ridiculous, but it is designed by a National organization so the jury is told it means something. Nobody stands like that. Nobody walks like that. It has nothing to do with your \u201cnormal faculties.\u201d It is most frequently given at night, in poorly lit areas, on unlevel pavement, while you are nervous and adrenalin is dumping into your system, as the headlights of other cars are constantly distracting you. The test is\u202fdesigned for you to fail.\u202fThe only way to not fail this exercise is to\u202fNOT TAKE IT.
\nThe\u202f\u201cOne Legged Stand\u201d\u202frequires you to hold one leg about 6\u2033 off the ground and while looking at your foot, and counting to 30 by saying out loud \u201cone thousand one, one thousand two,\u201d and so on to \u201cone thousand thirty.\u201d You must keep your hands at your sides without lifting them during the exercise.\u202fDON\u2019T EVEN TRY IT. Even if you are an Olympic athlete, and are sure you can do it, DON\u2019T!
\nThe\u202f\u201cFinger to Nose\u201d\u202fis an old favorite. You are told to stand with your feet together and your arms at your side with your head tilted back and your eyes closed. You then extend your arms out to the sides and extend your index finger out from both hands. Then as the Officer says either \u201cright\u201d or \u201cleft\u201d, you are to bring the appropriate hand around until that arm is extended straight out in front of you and then flex at the elbow, bringing the very tip of your index finger back until it touches the very tip of your nose. After touching, you reverse the process, extending your arm back out in front of you and then bringing it back around until the arm is extended to the side. Trust us when we tell you that your idea of the location of the tip of your finger or the tip of your nose will never match the Officer\u2019s expectations. Most people would agree that the tips of your fingers and nose are areas large enough to allow some leeway. To the law enforcement officer, hoping to make an arrest, the tips of your fingers and nose are the size of a pin point, and only he knows precisely where that point is. As with the other exercises,\u202fNEVER ATTEMPT THIS EXERCISE! <\/strong>
\nThe Officer may have other tests or exercises that they prefer and ask you to perform. If the charge is Boating Under the Influence the tests are a little different but your response should always be the same: <\/strong><\/p>\n
\nFlorida has enacted an \u201cImplied Consent law.\u201d This means that when you get your Florida Driver\u2019s License, you agreed that if requested to do so by a law enforcement officer who had probable cause to believe that you were driving while impaired, that you would submit to a breath or blood test. If you are arrested and refuse to take the Intoxilyzer breath test, the State of Florida will immediately suspend your driving privilege administratively for a period of one year, if you have never refused before. They will also suspend your driving privilege if you take the test and record a result of .08 or above. So the question arises,\u202fshould I take the test?
\nIf you take the test and \u201cflunk\u201d (.08 or higher),\u202ftwo\u202fbad things happen. First, the State will suspend your license for six months for flunking the breath test.\u202fSecond, the prosecutor now has solid evidence of your blood alcohol level and the ability to show the jury that you had an Unlawful Blood Alcohol Level (UBAL). That will help them convict you of DUI in addition to upholding the administrative suspension.
\nIf you refuse the test and you have never previously refused such a test, then they can suspend your license administratively for a year, but they will be deprived of vital evidence in their efforts to convict you of DUI. So\u2026.., if you have had 2 or more drinks, there is a real risk that you will have over a .08 blood alcohol rate. If that is the case, and you have never previously refused such a test, we would suggest that you refuse the breath test as well as the field tests. The \u201cprice\u201d for this decision will be a longer DL suspension and a longer \u201chard suspension\u201d (90 days with no hardship DL.) If that price is too high, take the test. <\/strong>
\nIf you have previously refused a breath test, it is now a separate misdemeanor in Florida to refuse a second or subsequent time. That mean you could get up to a year in jail, just for refusing the test. If you have previously refused a breath, blood or urine test, we suggest that the risk of a second offense is too great. Take the test and we will pursue other possible defenses. <\/p>\n
\nWhen you retain an attorney to represent you before your scheduled arraignment date, the attorney will file a written plea of not guilty and you will not have to go to Court for your arraignment. At the same time we file a Notice of Appearance as your attorneys so the Clerk will send all notices to us. We also file a Demand for Discovery that requires the State Attorney to provide us with a copy of all of the information from law enforcement related to your case. This will include not only the police reports, photographs, video tapes, audio tapes, statements, supplemental reports, documentation on the breath testing machine and process, etc. We will evaluate these materials to try to determine whether there are motions we can file to defend the case by limiting the State\u2019s evidence.
\nIn some instances we will ask the Court for permission to take the deposition of law enforcement officers or others to prepare a defense. We file those legal motions that are suggested by the unique facts of your case. We meet with the prosecutor in an effort to obtain the best possible plea offer in cases where a trial does not appear to be a good choice.
\nWe will also get you to sign a Waiver of Presence at Pretrial Conference form so that you can be excused from many of the court appearances that would otherwise take up a lot of your time. We have to be there for these Court proceedings, but you will not. There is no set time but DUI cases are usually resolved within about 4 months of your arrest. <\/p>\n
\nThe Administrative Suspension
\nOf immediate concern for people arrested and charged with DUI is their continued ability to drive. If you refused the breath test, the officer took your license the day of your arrest and the Department of Highway Safety and Motor Vehicles, Division of Driver\u2019s Licenses suspended it administratively. That suspension began immediately. If you took the test and the results were .08 or higher, the same thing happened. In either event, your DUI citation became your driving permit for the next 10 days. You have only 10 days from the day of your arrest in which to request a Formal Review Hearing from the Department.\u202fIf you promptly make the request for a Formal Hearing, the Department will ordinarily issue you a temporary driving permit that will serve as your driver\u2019s license until 12 days after the scheduled Formal Review Hearing. If you win the hearing, the hearing officer will set aside your suspension and you get your regular license back. If you lose the hearing, then you will commence a \u201chard suspension\u201d beginning the day after your temporary driving permit expires. The length of your \u201chard suspension\u201d will depend on the reason for the suspension and your prior record. In order to obtain a \u201chardship license\u201d to drive, you must wait until the end of this \u201chard suspension\u201d to request such a license. [Refer to the DUI Penalties section of the website for more detailed information about this.] If you have completed the DUI Counterattack School and you present your Certificate of Completion to the Driver\u2019s License Division, you will likely receive a hardship license (also referred to as a BPO, for Business Purposes Only). This license permits you to drive to and from work, to drive while at work, to drive to the Dr.\u2019s office, the dentist office, the Courthouse, the Probation Office, your attorney\u2019s office, the pharmacy, the grocery store or school. It does not authorize you to drive for convenience, recreation or other non-essential purposes.
\nThe Judicial Suspension
\nAbove we discussed only the Administrative suspension imposed by the Department of Highway Safety and Motor Vehicles, Division of Driver\u2019s Licenses. Whenever you are arrested for DUI, you also face the probability of a driver\u2019s license action, including suspension or revocation by the Courts. If you plead to or are otherwise convicted of DUI, your Driver\u2019s license will be suspended by the Court for a minimum of 6 months for a first conviction and one year for a second conviction. The Court has no discretion in this as it is required by the Legislature. If the case is reduced to Reckless Driving, Alcohol Related, then no suspension is required although the Court has authority to either impose a suspension or to restrict your driving privilege of a period of time. {Again, refer to DUI Penalties for more information.]
\nIf you have obtained a hardship license granting you the right to drive in spite of your Administrative Suspension, you may have that license in your possession on the day you appear in Court to plead to your DUI offense. If it is necessary to enter a plea to DUI, the Court will suspend your license there and require you to surrender your hardship license to the Court. In most cases, you will be immediately entitled to a replacement hardship license,\u202fbut you must ensure that you have transportation from the Courthouse to the Driver\u2019s License Office as your license is now suspended.\u202fOrdinarily, your judicial suspension will be for a period of 6 months and this begins as soon as you are sentenced. It does not start to run only after your administrative suspension is over. Depending on your Court dates, either suspension may terminate before the other. The Division can advise you of the date on which you are entitled to apply for a non-restricted driver\u2019s license.
\nCommercial Driver\u2019s Licenses
\nThe State of Florida has made\u202fno provision for granting a hardship license for a CDL (Commercial Driver\u2019s License.)\u202fThis is the sort of license held by over-the-road and other large truck drivers. If your license is suspended, you may receive a hardship license to drive regular vehicles for reasons as set out above, but\u202fyou are not authorized to use such license to drive commercial vehicles. This a very important point since in the case of a person needing a commercial driver\u2019s license, a conviction for DUI may mean the loss of a job or even a career. <\/strong><\/p>\n
\nAfter your arrest, the next event to be scheduled by the Court is the \u201carraignment.\u201d This is ordinarily about 3 weeks or so after your arrest but in given courts it can be shorter or longer than that. The purpose of an arraignment is simply to determine whether you intend to plead guilty, not guilty or no contest and further to determine whether you are asking the Court to appoint the Public Defender to represent you or if you intend to hire your own attorney. If no attorney has entered an appearance by your arraignment date, you will have to appear in Court. If you tell the Judge that you intend to hire your own attorney but have not yet done so, the Court will probably set a Determination of Counsel hearing a few weeks out to keep track of whether you are represented or not. If you hire an attorney in the meantime, you will not have to go to this hearing. If you have not, the Court will expect to see you back.
\nUnless your attorney files motions and sets them for hearing, the next court appearance is the pretrial Conference. We normally get our clients to sign a Waiver of Appearance at Pretrial Conference form so that they will not have to take off from work or school to attend these proceedings. The purpose of the Pretrial Conference is for the Court to determine whether your case is going to go to trial before a jury, whether motions remain to be heard, whether a continuance is necessary or whether you have resolved your case by reaching an agreement with the prosecutor. It\u2019s how the Court controls its calendar.
\nFinally of course, if all of the discovery, preparation, negotiation and conferences have not produced an agreement, you may proceed to trial before a jury. The good thing about a jury trial is that there is a chance that you might be found not guilty and have no sanctions whatsoever. The downside of course is that in addition to the added expense, you may be found guilty and receive a far more sever sentence than you could have received if you had worked the case out with the State.\u202fThe decision\u202fto proceed to trial or to accept a negotiated plea is\u202falways yours. <\/p>\n
\nDUI is a common offense but there is nothing simple about it. The potential consequences are substantial and it only makes sense to have professionals assist you in your defense. There are both administrative and judicial proceedings and each has its own procedures and consequences. The process takes time and it is not inexpensive.
\nThe Courts do not care how badly you need your license for work, school or even medical needs. They do not care that you have had a clean driving record for 30 years. The legislature does not permit the Courts to take such facts into account and to \u201cgive you a break\u201d by sentencing you to less that the minimum set out in the statute.
\nIf you are arrested for DUI and the officer takes your license from you at the time of your arrest, you must quickly (within 10 days of your arrest) apply for a Formal Review hearing in order to maintain your driving privilege for the maximum amount of time. Get professional help, and get it quickly. <\/p>\n