Anyone facing a DUI charge will be able to interact with his or her attorney in a more satisfying way if they understand some of the basics regarding the processes and laws that apply to their case. Certainly, it is the job of any DUI attorney to educate his client on those matters that will shape the outcome of a case. Below is some discussion that will enlighten you on a number of issues that arise in a high percentage of DUI cases, along with several links providing information on related topics.
Most (but not all) people charged with DUI were driving when stopped by the police. The law is that a police officer cannot stop a driver based on a hunch or mere suspicion, but must have probable cause to believe that the driver has violated some state or local law. A majority of DUI cases begin with a police officer pulling a driver over in order to conduct a routine traffic investigation that escalates once the officer begins to interact with the driver. Observation of a perceived traffic violation often amounts to probable cause in the eyes of most courts and gives the police the right to stop a driver, but this is not always the case.
What an officer believes is a valid reason for a stop may turn out to be legally inadequate. An experienced DUI attorney can present persuasive legal arguments in an effort to convince a judge that the stop of your vehicle was without probable cause. If the judge agrees, then the prosecutor will not be permitted to present any evidence obtained as result of the illegal stop. Any DUI attorney who represents you should know exactly how the law on probable cause applies to the specific facts of your case.
Being stopped by the police, especially if you have had anything to drink, can be a nerve-wracking experience. Your body reacts with normal responses to an intense and high-pressure situation that can make you very uncomfortable physically. This together with the stress of hundreds of thoughts flying through your mind at once makes it virtually impossible to present yourself naturally to the officer. The real kicker is that you are aware of all this and the fact that your nervousness is obvious to the police, which you feel makes you appear guilty of some wrongdoing. You may feel some panic while thinking that every aspect of what is taking place is beyond your control. But it isn’t.
The good news is that, though most people investigated for DUI don’t realize it, you do have the power to limit the officer’s opportunity for gathering evidence against you. How can this be done effectively? By asserting your rights in a manner that is both polite and firm, but probably not in the way you might expect. The key is doing so in such a way that forces the police to make a very important decision at a point far sooner in their DUI investigation than they want to.
“How much have you had to drink?” and “Have you had anything to drink?”are questions that most officers will ask early on when investigating a driver for DUI. These are questions that anyone pulled over by the police who had anything to drink in the hours prior to driving dreads having to answer, but there is a response that gives the officer no evidence to use against you and will require him/her to make the decision mentioned above. Simply ask the officer in a polite and respectful tone: “Am I under arrest?”
With the officer’s response, a bright line is created that will be used by your attorney, the prosecutor and the judge as a reference point for analyzing the entire body of evidence in your case. This line determines what the law does and does not require you to do during your interactions with the police as well as sets parameters for what the officer may do legally in an effort to gather evidence against you. Florida law does not require you to answer any questions or take any Field Sobriety Exercises (FSE) whether under arrest or not.
Exit your vehicle
Answer any questions
Take any field sobriety tests
If you are told that you are not under arrest and the police ask you to do any of the above, you have the legal right to politely decline to answer or do anything further by saying, “I’d like to speak with a lawyer before I do anything. ”
If you are arrested for DUI then you must comply with the officer’s instructions. Notice that “instructions” is emphasized because instructions are not the same as “requests”. The police cannot instruct or order you to take FSE or to answer any questions. They may only request that you speak with them (Miranda Warning) and/or that you participate in FSE. It is unlikely that the police will ask you to do FSE if you are already under arrest. They want you to perform FSE before they arrest you. Why? Because any evidence they gather before arresting you will qualify as probable cause to validate your arrest.
The less evidence the officer has, the more difficult it will be for the prosecution to make the showing in court that your arrest was legal. Now you know another very important reason for asking the magic question, “Am I under arrest?” when asked the first question that makes it clear you are being investigated for DUI. Once you are arrested, the door is closed on evidence that can form a basis for probable cause.
Now, don’t expect that asking the magic question will make the officer walk back to his/her patrol vehicle and drive away. They may well choose to arrest you for DUI, but the important thing is that by forcing the police to make the decision whether or not to arrest you early on and by politely refusing to answer questions and perform FSE, you exercise your legal right to tremendously limit the evidence available to the prosecution to show that you were DUI. Be aware that refusing FSE can be offered as proof of “consciousness of guilt” by the prosecutor. However, this type of evidence is usually not as persuasive as evidence that a driver failed FSE, especially if a poor performance is captured on video.
If you are placed under arrest, you do have to exit your vehicle and go willingly with the police. If you fail to do so you will likely be charged with resisting arrest. You will also be giving the prosecutor the opportunity to argue that your resistance is evidence of intoxication to support their claim that you were DUI. Remember to stay calm and be as polite and respectful as you can with the police. Only bad things happen to those who aren’t, including being caught on video doing and saying things that might cause a judge or jury to be less inclined to rule in their favor.
Florida law does require that you take a breath test if the police request it, whether you are under arrest or not. Florida has approved the Intoxilyzer 8000 as the machine used statewide to measure the amount of alcohol in a person’s body. Elaborating on the problems with having this machine as the source of such crucial evidence in DUI cases requires an entire book of information. Chris is experienced in a number of techniques that effectively challenge evidence supplied by the Intoxilyzer 8000. As a skilled DUI attorney, he understands how to expose the ways in which the machine fails to provide a reliable Blood Alcohol Content (BAC) reading for the breath sample obtained from a driver charged with DUI.
A DUI case where the prosecutor relies on a breath test as the cornerstone piece of evidence is a case based on science. But the prosecution doesn’t really want to talk about science. They want to talk about the machine and how “reliable” it is. The state attorney’s argument at trial goes something like this:
“The Intoxilyzer machine tells us the defendant blew over the legal limit of .08 on his breath test. You have the evidence that the machine was calibrated regularly and was working properly when defendant blew into it. You heard testimony from the officer who was certified to administer the breath test in this case that all procedures for conducting the test were followed. This clearly amounts to proof beyond a reasonable doubt that the defendant is guilty of DUI.”
Sounds persuasive, right? But once the scientific principles the Intoxilyzer uses to generate its results are discussed, it becomes clear that the machine essentially operates using principles that only allow it to give a reliable reading under a very specific set of conditions. The processes of the Intoxilyzer are based on what’s known as Henry’s Law. Henry’s Law only applies under certain specific circumstances, for example: (1) a constant temperature of the sample, and (2) measurement at a constant pressure. (There are others in addition to these.)
When the Intoxilyzer is calibrated, the test solution used cannot miss the mark for the required temperature by more than one fifth of one degree, or the calibration is not accurate. The temperature of human body can fluctuate by several degrees according to its surrounding temperature, activity level and/or health status. An elevated temperature will cause the Intoxilyzer to give an elevated BAC result!
No one’s lungs can deliver a breath sample at a constant pressure. Pressure decreases as we inhale and increases when we exhale. The pressure in our lungs is always changing. To make the correct calculation for a driver’s BAC using Henry’s Law a sample must be measured at a constant pressure, just as it is when the Intoxilyzer is calibrated.
Because attacking the faulty “science” employed by the Intoxilyzer 8000 involves matters of human physiology and the behavior of liquids and solids at the particle level, it may be necessary to hire an expert in order to effectively refute evidence of a BAC figure provided by the Intoxilyzer 8000 during a DUI trial. Chris has access to the right experts for defending your DUI case. He also knows how to effectively cross-examine experts presented by the sate.
Sometimes challenging the Inoxilyzer results on the basis of science is not necessary. Many times it is possible to have the BAC reading excluded from the evidence available to the state attorney for proving a driver was DUI. Chris is familiar with the legal issues surrounding the admissibility of breath test results, and knows how to maximize the potential for keeping this evidence out of your DUI case. Succeeding in a legal challenge to the BAC result can go a long way towards negotiating a reduced charge and/or penalty or dismissal.
The answer to this question will be different for just about every individual. This is because a person’s BAC is affected by: their weight; the rate at which their body metabolizes alcohol; the timing of consumption; amount and form of alcohol they have consumed, and several other factors. To get a general idea of how some of these elements combine to bring a person to a certain BAC, use this link to a BAC calculator: https://www.healthstatus.com/calculate/blood-alcohol-bac-calculator Keep in mind that no calculator is 100% accurate due to the number of variables that affect a person’s BAC.
The state attorney does not have to present evidence of a quantified BAC in order to convict someone of DUI. Florida law allows for a DUI conviction when it is proven that at the time of driving the defendant was under the influence of alcohol or a chemical/controlled substance to the extent that his/her �normal faculties� were impaired.
The police may request a sample of your breath, blood and/or urine as part of their DUI investigation. Deciding whether to comply involves a weighing decision on your part since you are required by law to submit to the test if so requested by a police officer. The first time you refuse your driver’s license will be suspended for one year. A second refusal, if alleged in the complaint, will result in suspension for 18 months. A second refusal can also be charged as a separate misdemeanor offense. These consequences must be weighed against the possibility of giving an incriminating sample, whether the police request a sample of your breath, blood or urine.
The suspensions mentioned above are administrative suspensions that are separate from license suspensions that result from a DUI conviction. So being charged with a DUI actually puts your driver’s license in jeopardy on two fronts; one in a civil arena (administrative proceeding) and another in the criminal court (your DUI case).
Use this link to access more information on License suspensions for refusals and conviction for DUI. http://www.flhsmv.gov/ddl/duilaws.html
10 Day Rule
A suspension for an alleged refusal OR test result of .08 or higher can be challenged if an administrative hearing is requested within 10 days of arrest. It is absolutely crucial if you are arrested for DUI that you or your DUI attorney file the appropriate documents within this time period. There are many benefits to requesting the administrative hearing in addition to the possibility that you will get your license back, with no administrative suspension imposed.
Chris hopes the preceding discussion has helped you to understand a few of the issues many DUI cases present. This information is by no means an exhaustive treatment of those topics that are addressed. There are many facets of DUI law, evidence and DUI defense strategy that are not mentioned due to the constraints of time and space.
Chris Westmoreland stands ready to bring his experience in DUI law to bear on your DUI case. His natural presence in the courtroom, his ability to think and act quickly during trial and hearings, and his command of language and the law has won him the respect of judges and attorneys throughout his career. Contact us to set up a free consultation with him and speak with an experienced and knowledgeable DUI attorney about your case.