Florida DUI Lawyer Blog

Fort Lauderdale DUI Attorneys often defend cases where blood was forcibly drawn from the DUI suspect. Florida law states that the DUI must have resulted in serious bodily injury before such a search is permitted.
The officer must have reason to believe that the accident in which the DUI defendant was involved actually resulted in the injuries. Therefore, a blood test was impermissible where the defendant ran over and dragged a motorcyclist who previously had an accident causing him to lie in the road. The motorcyclist died, but the trooper, “could not ascertain the cause of death for the victim, specifically whether it was related to the injuries sustained from the prior accident or from being struck by [the defendant's] vehicle. … There is no testimony to distinguish whether the victim sustained any further bodily injuries after being struck by [the defendant's] vehicle.”
The importance of the officer's knowledge, rather than the actual injuries, has been repeatedly illustrated. The officer had probable cause to believe that there were serious injuries where paramedics told the officer that the accident victim was unconscious and possibly suffering from neck and other unspecified internal injuries. Similarly, the officer acted reasonably in ordering a blood test where the officer knew that: (a) the victim had to be extricated from the car, was placed on a back board, was screaming, and holding her side, and had trouble breathing; (b) the victim's car was badly damaged; and (c) paramedics told the officer that the victim had possible internal injuries.

If you have been arrested for DUI in Fort Lauderdale contact a qualified criminal defense attorney that handles DUI defense.

Where there is evidence that serious bodily injury occurred in a Fort Lauderdale DUI investigation, the odor of an alcoholic beverage is not necessary to forcibly draw blood from a DUI suspect.

Fort Lauderdale DUI attorneys are often asked about the odor of alcohol on a DUI suspects breath. Even without an odor of alcohol, an officer may still have probable cause. Thus, the officer had probable cause to order a blood test where the officer knew: (1) the defendant's vehicle was about six feet across the center line at the time of the impact; (2) there was an open container of liquor in the car; (3) there was an ice chest and beer cans in the vehicle; and (4) the driver of the other vehicle was seriously injured.
In one instance, the court deemed a faint odor of alcohol to be significant, given the totality of the circumstances. In that case, the defendant fled on foot from the scene of an accident resulting in death. Seven hours later a trooper found him. On appeal, the court ruled that the trooper had probable cause to order a blood test based on the circumstances of the accident, the faint odor of alcohol, and the fact that the trooper had reasonable grounds to believe that the defendant had lied when he said the car had been stolen and he was not the driver.
In other cases, the absence of an odor of alcohol has been fatal to the claim of probable cause. Where the defendant had been crying, but the officer detected no odor of alcohol, the officer did not have probable cause and could not force the defendant to submit to a blood test.

If you have been arrested for DUI in Fort Lauderdale and had blood forcibly drawn, contact a reputable Fort Lauderdale DUI attorney before speaking to anyone about your case.

As an experienced Broward County DUI attorney, William Moore knows about the myths and misperceptions surrounding driving under the influence (DUI) charges.

1. If someone is arrested for DUI, he or she must be an alcoholic.

This is not true. First, the driver might not have actually been intoxicated, as the breath test equipment has serious reliability problems and law enforcement officers have a bias towards thinking that a person is impaired following the performance of highly subjective roadside field sobriety testing. Secondly, if you were in fact actually intoxicated, or borderline intoxicated, that does not mean that the alcohol or other impairing substances were taken as a result of addiction. Alcoholism is a serious disease that affects millions of Americans, often with dire consequences to their home lives and careers, but a simple DUI arrest is not a diagnosis, says Fort Lauderdale DUI lawyer Moore.

2. If you are arresting for DUI, you must have been drunk.

This is clearly false. In fact, many people who are arrested for driving under the influence were not even at the per se legal limit of 0.08 blood alcohol content. Individuals are commonly arrested at significantly lower levels, such as 0.05, 0.06, or 0.07. The levels could be lower -- even 0.00 (when someone blows “triple zeroes”) -- but police often begin to look for evidence that the driver is under the influence of a secondary substance. The police frequently ask for a urine sample or even a blood draw in this situation. Urine tests, it should be noted, do not effectively quantify substances found in urine, making them less reliable.

3. Breath test machines, or breathalyzers, provide indisputably accurate information about a person’s level of intoxication.

Many people mistakenly believe that breathalyzers are beyond a doubt accurate. This is simply not the case. They can be thrown off by many things, including diabetes and the presence of other substances in the test-taker’s mouth. Further, the company that manufactures the device has refused, even under court order, to disclose the source code. Without that information, which would disclose how the machine calculates breath alcohol, it is impossible to verify the claims of accuracy made by law enforcement.

In a Broward County DUI investigation an officer has no duty to tell a suspect that field sobriety tests are voluntary, that the individual has a right to refuse, the consequences of a refusal, or the consequences of failure. However, the officer cannot misstate the law or misinform the individual about his or her rights. Thus, the results of field sobriety exercises were inadmissible where the officer told the defendant that his only option was to arrest him if he did not submit, and he could be “unarrested” if his performance on the tests was satisfactory. Broward DUI attorneys also cite that the results of the sobriety tests were inadmissible where the officer told the defendant that his license would be suspended if he refused to do the exercises. So too, the officer's representations that if the defendant passed the field sobriety tests and the breath tests, the DUI would “no longer exist,” and he could be immediately released upon posting bail for a license charge, were misleading and required exclusion of the test results. Under such circumstances, the sobriety exercises cannot even be considered for purposes of probable cause. But where the officer told the defendant he wasn't going to force the defendant to perform any tests, incorrectly advising defendant that by accepting her driver's license she consented to any sobriety test "requested by law," rather than "required by law," was insignificant and didn't justify exclusion of the field sobriety tests. And where the officer asked the driver to submit to field sobriety exercises, compliance was not coerced merely because the officer informally discussed the implied consent law without being threatening in behavior or language.
The right to counsel and the Fifth Amendment privilege against self-incrimination raise other potential constitutional issues. However, these rights do not apply to field sobriety exercises. There is no right to consult with a qualified Broward County DUI attorney "at the sobriety testing stages of a DUI investigation." Similarly, the privilege against self-incrimination has no impact on the admissibility of field sobriety test results.
Broward County DUI attorneys warn that such tests are not testimonial. As previously noted, they produce evidence of physical characteristics, which constitutes physical evidence. Accordingly, the privilege against self-incrimination does not bar the introduction of field sobriety tests results. In fact, this privilege does not even bar the court from compelling the defendant to perform the tests in the courtroom. It should be noted, however, that some court decisions have found that certain types of field sobriety tests do elicit testimonial evidence and, therefore, implicate the privilege against self-incrimination and Miranda issues.

Article submitted by Dawn Turner

One issue that Broward DUI lawyer William Moore sees while representing all kinds of clients is the possibility that a criminal offense or conviction for a crime can have consequences on the immigration status of a foreign-born individual. Many crimes can have immigration consequences. This includes even minor offenses such as petit theft.

Often, immigrants who have status -- for example asylum, refugee status, a green card, or temporary protected status -- wrongly assume that an arrest will not have a negative impact on their ability to remain in the United States lawfully, continuing to work, pay taxes, and contribute more generally to society. Likewise, those who lack lawful status in the United States may think that because they are already illegal, whether due to their method of entry into the country or staying longer than the period authorized, may incorrectly think that they cannot worsen or aggravate the situation. Neither assumption is correct.

Generally speaking, driving under the influence does not have adverse consequences for immigration, although there are notable exceptions. One of the most important is Temporary Protected Status, or TPS. Having one felony conviction or two misdemeanor offenses can be a problem for obtaining or renewing TPS. It is vital for immigrants to speak with an experienced immigration lawyer any time they are arrested due to the complex, technical, and often-changing nature of the immigration laws. Fort Lauderdale DUI lawyer Moore can assist clients with their individual needs.

In criminal law in the state of Florida, a conviction occurs when a person is found ‘guilty’. However, in immigration law, a conviction is more broad. For example, an admission of the essential elements of a crime can have the same effect as a true conviction. Further, a withhold of adjudication is treating the same as a regular conviction.

Perhaps most important for driving under the influence and immigrant issues is the need to ensure that a person who does not have lawful status does not remain in jail. If he does, it is common to get an immigration detainer (“ICE hold”) that will result in removal proceedings before the Immigration Court and frequently actualy deportation. There are competing interests, then: although a person may have a decent shot at winning his case at trial, if he has an offer from the State Attorney that does not include jail time, it may be advantageous (where it would not be in other cases) to avoid the detainer.

This article is not intended to represent any particular position; instead, it is a recognition of a criminal defense attorney’s duty (especially following recent Supreme Court case law) to look out for other consequences besides criminal punishment.

Fort Lauderdale DUI Attorneys know better than anyone that some drivers have very bad luck. They may have no prior DUI charges and suddenly be accused of several different DUI offenses as a result of one episode. This can happen where an accident results in injury to several people and property damage to several cars. The State may allege a separate crime for each victim. As explained, the validity of such charges is determined by legislative intent pursuant to Fla. Stat. § 775.021(4).
For years district court rulings conflicted on whether the constitutions and statutes permit multiple convictions under such circumstances. An early decision upheld two convictions and sentences for DUI with serious bodily injury based on injury to two people in one accident. Similarly, the court upheld four convictions for DUI with property damage where four vehicles were involved in one accident.
The Florida Supreme Court cast doubt on these decisions in Boutwell v. State. In that case, the Court ruled that the defendant could be convicted of only one charge of driving on a suspended license causing an accident resulting in serious injuries in violation of Fla. Stat. § 322.34(3), despite the fact that four people suffered serious bodily injury in the accident. Two district courts construed Boutwell as barring multiple convictions where one accident results in multiple victims. Another district court ruled to the contrary and permitted multiple DUI convictions. The Florida Supreme Court resolved this conflict by holding that a defendant may be properly convicted of multiple DUI offenses arising out of one event where there are multiple victims. Florida courts have subsequently applied this ruling.
The Supreme Court's decision in Melbourne v. State should be considered carefully to avoid confusion. The Court explained the difference between Boutwell, involving driving with a suspended license causing an accident with multiple deaths or injuries, and Melbourne, involving DUI causing an accident with multiple deaths or injuries. In the former, multiple prosecutions were impermissible because the link between driving with a suspended license and the injury is indirect and the driving with a suspended license did not in any way cause the defendant's aberrant driving. In the latter, the link between DUI and the injury was direct and the DUI caused the defendant's unsafe driving. The distinction is further illustrated by cases holding that there can only be one conviction for leaving the scene of an accident resulting in death or injury no matter how many people are killed or injured in the accident. The absence of a link between the statutory violation of leaving the scene and the death and injuries, bars multiple convictions just as in Boutwell.
Simple DUI is treated differently. Melbourne and subsequent district court cases hold that multiple convictions for simple DUI based on multiple victims are impermissible. The court considered this situation where the defendant was charged with two DUIs with serious bodily injury based on two victims, but was convicted of only the lesser included DUI on each count. The appellate court concluded that there could be only one simple DUI conviction for the entire episode. Similarly, the court applied the same rationale to find a double jeopardy violation where there were three victims, but the state opted to charge the defendant with three identical counts of felony DUI based on prior DUI convictions.
As the previous discussion suggests, legislative intent plays an extremely important role in determining whether the defendant can be convicted of more than one charge based on one episode. That is true even where there are multiple victims of one bad act. In State v. Mitchell, the court considered whether one continuous episode of fleeing and eluding can result in multiple charges based on the number of officers. The court ruled that the legislature intended to allow multiple charges in such cases. However, in Innis v. State, the court reached a different conclusion where two officers were in one vehicle during a chase rather than being in multiple vehicles as in Mitchell. In Innis, the court concluded that there was no legislative intent to allow separate charges where two officers were in one car.
In Mitchell, the court relied on the Grappin/Watts “a/any test.” That test provides:
when a question arises regarding the unit of prosecution intended by the legislature in a particular criminal statute, use of the article “a” will result in the conclusion that the legislature clearly intended that the commission of multiple proscribed acts in the course of a single episode be prosecuted as discrete offenses; whereas use of the article “any” will result in the conclusion that the statute is ambiguous as to legislative intent and, as a result, in application of the rule of lenity to prohibit more than one prosecution.
But in Bautista v. State, the Florida Supreme Court clarified the nature of the “a/any test.” The Court reconciled that test with the ruling in Melbourne v. State, where the Court ruled that multiple convictions for multiple deaths arising out of one accident, did not violate the double jeopardy clause. The Melbourne Court reached that conclusion without comment on the “a/any test,” which on its face would not permit multiple convictions because the statute refers to “[t]he death of any human being.”
In Bautista, the Court concluded that the “a/any” test is not inconsistent with its ruling in Melbourne, and multiple convictions for multiple deaths in DUI Manslaughter cases are permissible. In reaching that conclusion, the Court explained that the “a/any test” is not “a simple syntactical rule” to be applied “in isolation from the context in which the test arose.” Instead, it is one tool to be used with other rules of statutory construction to determine “the Legislature's intended unit of prosecution.” The Court went on to say:
Grappin and its progeny should not be interpreted to suggest that the intended unit of prosecution is automatically rendered ambiguous whenever a statute uses the word “any.” In the DUI manslaughter statute, the intent of the Legislature is clear. And since our purpose in construing a statutory provision is to give effect to legislative intent, the unit of prosecution in DUI manslaughter cases must be the number of victims killed—not the number of DUI traffic violations. The a/any test should not be applied to create ambiguity where none exists and then to reach a result contrary to clear legislative intent.

If you have been charged with a DUI in Fort Lauderdale, seek the advice of a qualified Broward County DUI Attorney.

DUI Lawyers in Broward County pay special attention to the charging document in all criminal cases alleging driving under the influence.

In State v. Rodriguez, the Court ruled that the basis for enhancement of the charge must be alleged in the charging document. In Rodriguez, the defendant was convicted of a felony based on three prior DUI convictions. One issue was whether the information was sufficient to invoke the jurisdiction of the circuit court where it alleged that the defendant had committed DUI in violation of Florida Statute § 316.193(1) and (2)(b), but failed to allege the prior convictions. The Court held that, since section 316.193(2)(b) deals solely with a felony charge, the information was sufficient to invoke the jurisdiction of the circuit court.
In the same case, however, the Court held that the information was insufficient to comply with due process requirements. The Court stated: (1) the combined existence of three or more prior DUI convictions is an essential element of the substantive offense of felony–DUI, which the charging document must allege and the State must prove beyond a reasonable doubt; and (2) to comply with the notice requirement, the State must allege the specific prior convictions in the charging document.
Broward County DUI lawyers know that the consequences of the failure to allege the specific prior convictions is dependent on whether there was sufficient evidence of the priors in the record. In Rodriguez, the Court held that on remand the defendant could only be convicted of a first offense DUI because there was sufficient evidence that the defendant had committed DUI, but insufficient evidence of the prior convictions. In contrast, in Shafer v. State, where the information suffered from the same defect in notice recognized in Rodriguez, the court remanded for a new trial because the record contained sufficient evidence of the prior DUIs.
It is important that Broward County DUI lawyers understand that Rodriguez and the other cases dealt exclusively with felonies. The rule for misdemeanors differs, depending on the basis for enhancement. If the basis for increasing the penalty on a misdemeanor is one or two prior convictions, the charging document need not allege them to comply with due process requirements. Rodriguez does not apply to misdemeanors. The rule is different, however, if the basis for the enhancement is a high blood or breath alcohol level, the presence of a minor in the vehicle, property damage, or bodily injury. These matters are considered elements of the misdemeanor charge and must be alleged or the sentence cannot be increased. Furthermore, the Broward County State Attorney’s Office cannot rely on the other counts of the information to cure the defect in the DUI count.
When the Broward State Attorney seeks enhancement based on an alcohol reading of .15 or above, the processing of the case is impacted in another important way. Florida Statute § 316.656(2)(a) bars a trial judge from accepting a plea to a lesser offense. It is improper for the court to accept a plea to DUI with an alcohol level of .15 or above. But the trial judge should be circumspect in responding to attempts by counsel to resolve cases in a way that violates the statute. The Broward County judge can reject the plea, but it constitutes an abuse of discretion to dismiss the case just for that reason.
As with most rights, however, the defendant must exercise them by and through their Broward County DUI Attorney. One who enters a plea of guilty or nolo contendere to a charging document that fails to allege proper elements for enhancement without raising the defect or reserving the point for appeal, waives the point. This is true even if the charge is a felony, if the information contains some allegation such as: “Felony Driving Under the Influence of Alcoholic Beverage or Controlled Substance, a Third Degree Felony.” As the Court held in Rodriguez, such allegations are necessary to establish jurisdiction, which cannot be waived. The plea waives only the due process claim.
Questions regarding charging documents as they pertain to the offense of driving under the influence charges should be directed to the Broward County DUI attorneys of William Moore P.A.