FOCUS AREA: D.U.I.

Florida Department of Highway Safety and Motor Vehicles

National Highway Transportation and Safety Administration

THE BREATH TEST

We win a breath case at trial because the prosecutor can NEVER prove that a Defendant had a breath alcohol level of .08 or more – WHILE DRIVING.

The average length of time between “driving” and the breath test is about 1 1/2 – 2 hours. Why does it take so long? Consider this:

5 minutes for the officer to gather your information after the stop
10 minutes for a DUI investigation at the roadside
15 minutes to transport you to the jail
20 minute observation period before you take a breath test

A breath test should be given to a suspect no later than 50 minutes following the time of driving! If not, it is only a “guess” as to what your breath level was at the time of driving. In this country, a jury is not allowed to convict someone based upon a “guess.”

Other challenges to a breath test include: false teeth, pace maker, diabetes, air bag talc, acetone, fever, radio interference, tap water solution, improper maintenance of the breath machine.

Our firm has won DUI breath cases based upon each of these defenses!

DUI LINKS AND RESOURCES

Florida Department of Highway Safety and Motor Vehicles

National Highway Transportation and Safety Administration

ALTERNATIVES TO JAIL

If you have more than one DUI charge on your record, you could face mandatory jail time. In Florida, you face a minimum of 10 days in jail if you are convicted of two DUI’s within five years.

If you are convicted of three DUI’s within ten years, then you face a minimum of 30 days in jail. Moreover, a third DUI can result in your charges being upgraded to a felony. However, our attorneys can negotiate to keep your case a misdemeanor even if you have more than 2 prior DUI’s.

Often times, the prosecutor and/or judge will require someone charged with a third DUI or more to serve a significant amount of jail time. Most judges and prosecutors are willing to allow a person facing serious jail time to serve their sentence in a alcohol rehabilitation center in lieu of jail.

Our firm has worked with several alcohol rehabilitation centers throughout Florida in order to ensure that their programs meet the requirements of Florida law to take the place of jail. We have successfully placed clients who have 3, 4, and 5 DUI charges in the past in a rehabilitation program to avoid jail time. Moreover, our attorneys are skilled at negotiating multiple DUI offender sentences to include work release. This means that our clients are able to continue working at their jobs while a resident of the alcohol rehabilitation center.

Remember, most rehabilitation centers will cost several thousand dollars per month. Most health insurance plans will cover this cost. However, the typical health insurance plan will only cover up to 30 days in a rehabilitation center. We can help you find a state-funded program or choose the most cost-effective program.

DUI LINKS AND RESOURCES

Florida Department of Highway Safety and Motor Vehicles

National Highway Transportation and Safety Administration

THE ROADSIDES

The Standardized Field Sobriety Test (SFST) is a series of three tests administered and evaluated in a standardized manner to obtain valid indicators of impairment and establish probable cause for arrest. These tests were developed as a result of research sponsored by the National Highway Traffic Safety Administration (NHTSA). Our law firm owns a NHTSA training manual – the same one used to train police officers!

There are 3 tests the police typically use. Even if the police officer administers these 3 tests properly and all signs of impairment are exhibited by the suspect, there is only a 65-68% chance that the person suspected is above the legal limit!

The 3 roadside tests or “exercises” are:

Horizontal gaze nystagmus

Nystagmus is an involuntary jerking of the eyeball which occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles.

An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his eyes.

Walk and Turn

In the walk-and-turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for seven indicators of impairment: 1) if the suspect cannot keep balance while listening to the instructions, 2) begins before the instructions are finished, 3) stops while walking to regain balance, 4) does not touch heel-to-toe, 5) uses arms to balance, 6) loses balance while turning, or 7) takes an incorrect number of steps.

NHTSA research indicates that 68% of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.10 or greater.

One-leg Stand

In the one-leg stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for 30 seconds. The officer looks for four indicators of impairment, including 1) swaying while balancing, 2) using arms to balance, 3) hopping to maintain balance and 4) putting their foot down.

NHTSA research indicates that 65 % of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.10 or greater. In reality, if a police officer has asked a suspect to perform roadside exercises, that suspect is going to jail.

Police officers have many incentives to make DUI arrests. Instead of giving the suspect a chance to demonstrate that they are not impaired, the police officer is taking notes during these exercises (and most likely ordering the tow truck to take your car following the arrest) for courtroom presentation. This can be seen on most DUI videotapes and demonstrates the officer’s mindset that you are going to be arrested regardless of how you do on the exercises.

DUI LINKS AND RESOURCES

Florida Department of Highway Safety and Motor Vehicles

National Highway Transportation and Safety Administration

REFUSAL TO TAKE BREATH TEST

Should you have taken the breath test? There is no definitive answer. However, you certainly help your chances of winning a DUI case by not providing a breath sample.

If you DO NOT take the breath test – the police call it a REFUSAL. The police officer MUST read you Florida’s Implied Consent law if you decline to take the test.

The law requires you to be warned against possible adverse consequences to your driver’s license. Also, the law warns you that your refusal can be used against you in court. If you are a second time refuser, the law warns you that your refusal can be grounds to charge you with an additional crime.

In order for you to understand all of these warnings properly, you must be coherent and aware of the rights you are giving up. The problem is – the officer MUST have already arrested you before giving you these warnings. If he arrested you, the officer had the opinion that you were too “impaired” or too “drunk” at that time. However, if you were too “impaired” or “drunk” – then your refusal suspension should not be held up and you should get your license back!

On the other hand, if the officer testifies that you were coherent and understood your rights, then your DUI should not stand because you were not “impaired” or “drunk.”

DUI LINKS AND RESOURCES

Florida Department of Highway Safety and Motor Vehicles

National Highway Transportation and Safety Administration