FREQUENTLY ASKED QUESTIONS ABOUT FLORIDA DUI & DRUNK DRIVING
What does law enforcement look for when searching for drunk drivers? The following is a list of things that the police look for in descending order of probability that the person observed is driving while intoxicated: turning with a wide radius, straddling center of lane marker, appearing to be drunk, almost striking an object or vehicle, weaving, swerving, speed more than 10 mph below limit, stopping without cause in a traffic lane, braking erratically, driving into opposing or crossing traffic, and headlights off.
If I'm stopped by a police officer and he asks me if I've been drinking, what should I say? You are not required to answer potentially incriminating questions. You have a right to remain silent. I would suggest that if you take this route you also indicate to law enforcement that you will not speak with them unless you have an attorney present (and I will, at that time, advise you to remain silent).
Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test? In Florida, there is no right to speak to an attorney until after you have submitted to blood or breath testing at the station (or have refused to do so).
What is the officer looking for during the initial detention at the scene? The traditional symptoms of intoxication taught at the police academies are: Flushed face, Red, watery, glassy and/or bloodshot eyes, Odor of alcohol on breath, Slurred speech, Fumbling with wallet trying to get license, Failure to comprehend the officer's questions, Staggering when exiting vehicle, Swaying/instability on feet, Leaning on car for support, Combative, argumentative, jovial or other "inappropriate" attitude, Soiled, rumpled, disorderly clothing, Stumbling while walking, Disorientation as to time and place, and Inability to follow directions.
What should I do if I'm asked to take field sobriety tests? You have two choices: (i) take the test and if the police officer feels you did okay he or she may allow you to go; or (ii) refuse the test and be arrested.
Why did the officer make me follow a penlight with my eyes to the left and right? This is the "horizontal gaze nystagmus" test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.
Should I agree to take a breath test? What happens if I don't? There are four adverse consequences to refusing to submit to a breath or blood test (or urine if neither are available or if drugs are suspected): For first time offenders, your driver's license will be suspended for 12 months rather than six months. The hardship period (when you are not eligible for a restricted license) jumps from 30 days to 90 days. A second refusal, if alleged in the complaint, can be charged as a separate misdemeanor offense. The fact of refusing can be introduced into evidence at trial as evidence of "consciousness of guilt." A refusal may preclude you from being allowed to enter a pretrial diversion program or require a higher tier placement (not all counties have this option).
Do I have a choice of breath tests? No. In Florida law enforcement is restricted in which test they can impose. As the accused you can ask to have your blood tested at your own expense if you submit to law enforcement's test.
The officer never gave me a Miranda warning: Can I get my case dismissed? No. The officer is supposed to give a 5th Amendment warning after he arrests you and before any questioning. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest. Questions regarding the FSTs or whether you will submit to a breath test have been made "exempt" from 5th and 6th Amendment protections.
What crimes will I be charged with? The traditional offense is "driving under the influence of alcohol" (DUI), or in some states, "operating while intoxicated" (OWI), or "driving while intoxicated" (DWI). Florida allows the prosecutor to prove its case by either method (normal faculties impaired or BAC greater than or equal to 0.08).
The officer took my license and issued me a citation that suspended my license: How can he do that if I'm presumed innocent? The law in Florida provides for an immediate administrative suspension and confiscation of the license if you are issued a DUI citation. There is no presumption of innocence with your "privilege" to drive. Be aware of a 10-day deadline for you to take action against that administrative suspension.
Can I represent myself? What can a lawyer do for me? You can represent yourself -- although it is not a good idea. "Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.
What is a "rising BAC defense?" It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING -- not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested.
What is "mouth alcohol?" "Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact. Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings.
Will I go to jail? On a first offense, probably not. On second or later offenses, it becomes more probable. There are mandatory minimum jail sentences for repeat offenders.
If convicted, how long will the DUI remain on my driving record? It will remain on both records forever!
How many hours of alcohol classes will I have to attend if I am convicted of DUI? Our purpose is to help prevent anyone from being convicted of DUI. However, if you are convicted, plan on at least 24 to 48 hours, one-two hour session per week. The higher your blood alcohol content, the more hours you will have to attend.
What will happen if I do not complete the classes or community service ordered by the court? You can be found in violation of probation and may go to jail.
I lost my Florida license. May I obtain a license in another state? Typically, no.
If I obtain an international driver's license, may I drive in Florida, even though my Florida license is revoked? No.
Why is your license taken after your arrest, and when do you get it back? Under Florida law, your license can be immediately administratively suspended for either a refusal to take a breath, blood or urine test, or if you have a breath test result of .08 or greater. The length of this suspension can be from six (6) months to eighteen (18) months.
What if I plea guilty or no contest at my bond hearing? I never recommend that you plead guilty or no contest at a bond hearing. Either a plea of guilty or no contest will result in you being convicted of the charge that you pled to. However, if you do end up entering a plea, there are certain legal remedies where you can ask the Court to allow you to withdraw your plea and get your sentence and conviction set aside. This is a very time sensitive issue and you should consult an attorney immediately if you find yourself in this position.
What is the difference between a plea of guilty or a plea of no contest? None. In a DUI case, there is no difference in terms of your criminal record, your driving record or the penalties imposed. Either a plea of guilty or no contest will both result in a criminal history.Type your paragraph here.
IGNITION INTERLOCK DEVICE:
What is an Ignition Interlock Device? Ignition interlock devices are mechanical devices that attach to your car to ensure you are not drinking while driving. An ignition interlock device is installed on a motor vehicle's dashboard. Before the vehicle's motor can be started, the driver must first give a breath sample by breathing into the device. If the result shows that the driver has alcohol on their breath, the device prevents the engine from being started.
How does an ignition interlock work? At random times after the engine has been started, the ignition interlock will require a breath sample. The purpose of this additional breath sample is to prevent someone other than the driver from providing a breath sample to start the car. If the breath sample isn't provided, or if the sample registers alcohol on the breath of the driver, the device will log the event, warn the driver and then start up an alarm until the ignition is turned off, or a clean breath sample has been provided. The interlock device will not turn off the engine if alcohol is detected.
How much does the ignition interlock cost? In Florida, the cost for the ignition interlock is set and recorded on the Florida DHSMV page. Anticipate the initial installation of the ignition interlock in your vehicle to be $150.00 – $300.00. The monthly maintenance fee is between $50.00 and $100.00.
What happens if I can’t afford the interlock? If you have been ordered to place an ignition interlock on your car, your local licensing bureau will not reinstate your license until you install it. If you start to have the interlock and then stop paying, the interlock will be removed and your license will be re-suspended until you comply with the mandated period.
What if I drive without an ignition interlock when the judge has ordered one? You can be charged with contempt and put in jail.
If you are ordered to have an ignition interlock and you do not place it in your car and you drive the car anyway, you can be arrested? If you did not install the device and as a result your license was not reinstated you could face charges for not having it in the car and also for driving without a license. If you have it installed in a car, but drive a different car (with the exception of work vehicles in some states) you can face criminal charges.
INCARCERATION - JAIL:
What is Incarceration? Incarceration means jail. Almost all DUI offenders spend at least overnight in jail before being released. Some spend more, some spend less. But there are guidelines as to how much time an offender must spend in jail upon conviction. The amount of time spent depends on how many offenses you have, how high the alcohol content is, and whether a person’s property or physical being is damaged. The judge is mandated by law to impose a mandatory minimum sentence. But they don’t have to stick with the least amount of time. A judge can order much more jail time than is required, and often they do. Below is a chart that lists the minimum and mandatory sentences for each offense:
Weekend Jail? Jail time must be served at least 48 hours consecutively. This means you could theoretically serve a 10 day sentence doing “weekends” at the jail. You would turn yourself in Friday night or early Saturday morning and be released 48 hours later. This allows an offender to keep a weekday job.
Rehabilitation Facilities. The statute also provides that day for day credit can be awarded to an offender for every day spent in an in-patient drug or alcohol program. This credit is mandatory if the program is court ordered. The idea is that time addressing an alcohol or drug program is more useful than time spent in jail. The program must be approved by the judicial system for the credit to apply.
Work Programs and Half Way Houses. You can’t serve your mandatory jail time through a half way house or work program. It is not allowed. The mandatory jail must be in a jail or a rehabilitation facility. However, you can serve any portion of the sentence that is imposed over and above the mandatory minimum sentence in one of these types of programs.
Diversion Programs vs. DUI Court – What is the difference? Diversion programs are programs designed for first time offenders. The point of a diversion program is to keep the DUI charge from showing as a conviction on the offender’s record. The offender is given a set of conditions. If they do everything that is asked of them, then the State will either dismiss the charge, or will amend the charge to reckless driving. This allows the first time offender to avoid a conviction and some of the extended consequences that result from a DUI conviction. DUI Court is a program that is designed for defendants who have multiple convictions for DUI. The idea of a DUI Court is to provide an out-patient alcohol treatment option that is run by the court in hopes of addressing the offender’s core issues. Unlike a diversion program, participation in DUI Court does not end in having the charge modified or removed from the offender’s record.
Stages of a DUI Court program?
For the first stage, the offender must submit to random drug and alcohol testing, must serve any mandatory jail time that has been imposed, must attend weekly therapy and group counseling sessions several times a week. Some drug court programs require attendance at AA or NA meetings. Most programs have a requirement that the offender work, attend school, or perform community service hours for a minimum set time a week (most programs set this at a minimum of 25 hours) to ensure the person stays busy. Some programs also impose a curfew for the offender. The offender also must meet with a probation officer on a regular basis.
In the next phase, the offender has fewer counseling and group sessions to attend. The offender uses this time to complete DUI School and any other court ordered sanctions. The offender still must have employment, classes or community service work weekly to stay busy and in most cases must still attend AA or NA meetings. The offender may have the curfew lifted at this point, but still must check in with a probation officer and attend Court with the judge.
In the last phase of the program, the offender has counseling and group sessions about once a month and need only report to the Court once monthly. The offender still must meet with probation, but the idea is to give them as much freedom as possible as they transition out of the program.
If the offender completes all conditions, the offender “graduates” from the program. In some jurisdictions this means the charges are dropped. In others it means the offender is no longer required to go to jail or be on probation.
What if an offender elects the DUI Court program and it doesn’t work? If an offender does not meet all the conditions of the program, they can be “sanctioned.” For the first few discretions (such as drinking or drug use or missing court or counseling) the offender may have to attend extra therapy sessions or perform additional community service. If it continues, the offender could spend overnight in jail or even a week in jail. If the behavior still continues then the offender is released from the program and will receive the original sentence from the court as if there was no participation. This usually means spending a substantial amount of time in jail. So, it is in the offender’s best interest to take the program seriously.
How can you apply for a hardship driving license? First you must complete the DUI course and receive your enrollment certificate. Then you must obtain your thirty (30) day driving record from the county clerk. Once you have accomplished those two things you will need to bring them to the DHSMV and the hearing officer assigned to your case will determine if you are eligible for the Florida hardship license.
What if I refused to take the breathe test? If you refused to take a breath test you will be required to wait ninety (90) days of your one year administrative suspension before you can apply for a DUI hardship license.
What if my breathe test results were higher than .08? If you took the breath test and scored above .08 then you will be required to wait thirty (30) days.
What happens if I am approved? If you are approved to get a hardship license, you will need to go with the approval letter to your local DMV office to get a restricted driver license (business purposes only).
Who is NOT eligible for a DUI Hardship License? Florida law prohibits the issuance of a hardship license for a second or subsequent suspension for breath test refusal or two (2) or more convictions of a DUI under Section 316.193.
Can a Commercial driver obtain a hardship license? Drivers who have lost their commercial driver license (CDL) cannot obtain a hardship license to operate a commercial motor vehicle.
VITAL STEPS AFTER BEING ARRESTED FOR A DUI IN SARASOTA OR MANATEE COUNTY
If you have been charged with a DUI in Sarasota or Manatee County and after the initial shock wears off, you first question will be “what do I do now?”
1. Write down exactly what happened. Your perspective of the events that led to your arrest are important to your lawyer.
2. Keep your citation and any other documents you received from law enforcement or the jail. This could include tow receipts, tickets, police reports, bond receipts, etc. Most, if not all of these documents, have important information on them which can be used by your lawyer in furtherance of your defense.
3. Hire an experienced Sarasota and Manatee County DUI attorney. I will collect and preserve evidence, discuss with you the particulars of your case, and advise you with respect to navigating the often complex and confusing Sarasota and Manatee County Court system.
4. Suspend your social media accounts. Everyone exposes much of their lives on social media these days and law enforcement knows it. They will scour the internet looking for information that they can use to help convict you. Shut down your social media accounts if they include photos or posts that are in any way related to your activities preceding your arrest.
5. Avoid receiving another DUI. While your case is pending, another DUI arrest will lead to a revocation of your pre-trial release on your pending case and may cause you to suffer enhanced penalties, including significant jail time.
Call us today and schedule your consultation. Time is of the essence.
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