Florida DUI Lawyer Blog

Be careful, Halloween revelers! Holidays are a favorite time for local law enforcement to set up sobriety checkpoints. These checkpoints stop traffic, usually with blue police lights flashing, at predetermined locations, ostensibly to detect drivers who are intoxicated. Law enforcement officers typically claim that the DUI checkpoints protect the community from drivers whose intoxication would render the roads unsafe for the rest of the general public. Partygoers in the Himmarshee district or other areas with large Halloween celebrations are likely to find themselves under increased law enforcement scrutiny and should plan accordingly. Other popular times for DUI roadblocks are New Year’s Eve, Memorial Day, Labor Day, the Fourth of July, and around Christmas, according to Broward DUI attorney William Moore.

The realities of DUI checkpoints are, upon closer examination, more complicated. The politics of sobriety checkpoints are complicated, because while they are proclaimed as a first line of defense against driving under the influence of alcohol and/or other substances, they are also nearly always a tremendous moneymaking venture for these agencies. Often, law enforcement officers issue numerous citations for civil violations such as failure to use seat belts, expired car registration, driver’s licenses that have been expired only a very short period of time, no insurance, and the like.

The law requires that DUI roadblocks adhere to numerous rules in order to be compliant, so that the evidence can be admissible against a criminal defendant in court. For instance, if there is not a set method of determining which cars will be stopped (such as every other car or every fifth car), the evidence obtained will not be valid. Without neutral criteria for determining which cars to stop, officers’ biases or hunches could be the determining factor, notes Fort Lauderdale DUI lawyer Moore.

The Fourth Amendment to the United States Constitution, which prohibits certain types of searches, is the basis for restrictions on the way police conduct sobriety checkpoints. In the traditional traffic stop, police must have reasonable suspicion that a driver is breaking the law in order to pull him or her over. However, random roadblocks do not require individualized suspicion. Some scholars have argued that an examination of the Fifth Amendment protection against self-incrimination is also necessary, as field sobriety tests and breath test machines could produce incriminatory results that are used against a defendant in court. This is true even though Florida and other jurisdictions require by law through implied consent that a driver submit to breath alcohol testing when requested by law enforcement. Implied consent states that when a driver operates a motor vehicle, the driver is automatically consenting to these tests.

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Ignition interlocks are devices that are attached to a motor vehicle to prevent the driver from starting the engine if he or she is under the influence of alcohol. They are essentially like mini-breathalyzer machines, set to prevent the ignition from turning on of the person has been consuming alcohol prior to getting in the vehicle. They can be set, depending on the particular needs, such as at 0.00 or 0.02 percent breath alcohol content. In Broward County and throughout the state of Florida, the installation of ignition interlock devices is routinely ordered by judges for defendants who are convicted of driving under the influence (DUI) as a requirement after the period of driver’s license suspension has passed, according to Fort Lauderdale DUI attorney William Moore.

Opponents of the devices have noted that there are several issues with the devices. First, they are unlikely to be perfectly accurate. Since a higher reading could have other consequences -- for example, a violation of DUI probation -- the accuracy of these devices is paramount. Like regular breath test machines used by law enforcement agencies, their perfection is far from assured, notes Broward DUI lawyer Moore. Another possible concern is simply the fact that the results can be easy to falsify: the driver could simply have another person blow into the machine.

There is some evidence to suggest, however, that those who are convicted of DUI who are required to use an ignition interlock device are measurably less likely to reoffend. However, the likelihood of reoffending may be tied more to long term substance abuse than any other factor. Still, most people who are arrested for driving under the influence are not alcoholics.

The state of Florida imposes a number of restrictions on individuals who are arrested for driving under the influence, regardless of whether or not they are ultimately convicted of the offense. Even drivers whose charges are dropped or who are found not guilty at trial may suffer unfortunate effects beyond simply being arrested and thrown in jail for the night. Most lose their driver’s licenses for at least six months, although it is possible to challenge the mandatory suspension within 10 days of the arrest at an administrative hearing before the Florida Department of Highway Safety and Motor Vehicles. Generally, the arresting law enforcement officer testifies to demonstrate probable cause for the arrest. If probable cause is not demonstrated by the evidence, including the testimony, the driver’s license may be reinstated.

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Alcohol consumption is not necessary for a person to be arrested and convicted of driving under the influence, says Broward DUI lawyer William Moore. Alcohol is easier to quantify through the use of a breath test. Although urinalysis can detect the presence of drugs, the test does not show the amount that was present in a person’s system at the time of the test. Only a blood test quantifies the amount.

In cases where a blood test was actually obtained, the results will usually be interpreted by a toxicologist, who will be called by the state to testify regarding the substances actually present as well as the amount of the drugs present. For example, just knowing that a driver had a breath test of 0.02 -- well under the per se limit of 0.08 at which the law presumes a driver to be too impaired to operate a motor vehicle -- combined with the presence of Xanax in the body is insufficient to prove a DUI. However, if a toxicologist is present with the results of a blood test, that information can be key for a jury to make a decision regarding a person’s guilt. If the Xanax was at therapeutic levels, or the level generally prescribed by a physician, the person is less likely to be found guilty of driving under the influence. If, however, the levels are several times higher than the therapeutic dose, the case is more difficult. This is particularly true where the blood test results conflict with statements made by the defendant following his arrest regarding how much Xanax he took.

Generally, the police will also need a reason to request testing beyond a breathalyzer. For a urine test, there must be probable cause to believe that the person has drugs in his or her system. Blood draws are more complicated. The first reason a police officer can require a blood draw, even forcible, is following an accident with a fatality or where there were serious bodily injuries. The second would be where it is impractical to use a breath test, such as a driver who is unconscious or is being treated in a hospital. The third way for a blood draw to come about is if the driver consents to it, after being informed that it is an alternative to a breath test. Drivers do not have a choice of test, even though there is evidence that blood tests are more accurate than the breathalyzer machine, notes Fort Lauderdale DUI lawyer Moore.

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Video evidence is among the most important evidence the Assistant State Attorney can use against a DUI defendant, but it can frequently work in the defendant’s favor, depending on what the video shows. There are any number of possible scenarios in which a DUI video provides evidence useful to a defendant, according to experienced Fort Lauderdale DUI attorney William Moore.

In the case of a DUI suspect who performs the roadside field sobriety exercises, decent or good performance can work in his favor. This is true regardless of whether or not there is a breath test reading. For instance, if the driver suspected of DUI performs the roadside tests reasonably well, especially in light of the fact that they are unusual activities drivers are not accustomed to performing, the video is more helpful to the suspect and his DUI defense attorney. One interesting argument in this scenario is when the driver actually receives a very high breath test reading. These two things occasionally happen. If a driver blows a 0.32 breath test reading -- four times the “legal limit” at which intoxication is presumed -- yet still performs the exercises well, a reasonable jury may well understand that the breathalyzer may have been faulty or inaccurate.

If a video captures the time leading up to a traffic stop, the driving pattern may also be under scrutiny. If a person is pulled over on suspicion of driving under the influence, the police officer will need to be able to justify the traffic stop. Failure to maintain a single lane, just by itself, will probably not cause reasonable suspicion for a traffic stop if the driver is not affecting other traffic. However, weaving, drifting into another lane, failing to go at a green light, and very slow driving speeds may all trigger traffic stops.

Another possible scenario would be when a non-English speaking driver is pulled over by an officer who cannot communicate effectively with him. As a result, the driver may not understand the instructions for either the roadside field sobriety tests or the breath test machine. If a police officer fails to adequately (or correctly) explain the consequences of refusal, regardless of the language the officer and the driver are communicating in, that may also work in a DUI defendant’s favor. Likewise, a police officer or breathalyzer operator who is extremely rude or expresses a bias may not win favor with a jury hearing the DUI case.