Florida DUI Lawyer Blog

The accuracy of breathalyzer machines has been hotly disputed since states began to use them in the 1930s, according to Fort Lauderdale DUI lawyer William Moore. Numerous factors can cause false positives or otherwise affect results, such as:

* diabetes
* acid reflux disease
* cigarette smoking
* eating bread
* mouth alcohol
* breathing pattern or hyperventilation
* other reasons

Breath testing is not the most reliable method of evaluating the amount of alcohol in someone’s body at a given time. It also does not measure for any other factor or substance that could cause impairment, such as Xanax or other prescriptions, or illegal drugs, says Broward DUI lawyer Moore. States have coped with the issue of reliability in different ways. In some states, law enforcement officers routinely carry handheld breath alcohol screening devices, which may give the police probable cause to arrest a DUI suspect if the driver has a positive test result. In most cases, these results are not admissible in court because they are not sufficiently reliable. Florida is not one of the states that uses handheld breathalyzers.

Urine testing is often used by law enforcement when they believe that the suspect may be driving under the influence of substances other than alcohol. Urinalysis can screen for common prescription and illegal drugs. For instance, a the police might determine that a person appears to have been drinking, but after he blows a 0.03, they conclude that his apparent level of intoxication is higher than would be expected from such a relatively low breath test. They may therefore request urinalsysis, which shows that he also has prescription pain medication in his system. Since urinalysis does not quantify the amount of a substance in a person’s system, its usefulness is limited: the state may not be able to prove that the person’s prescription medication was at a high enough level to cause impairment.

South Dakota uses blood testing only due to its higher level of accuracy and reliability. Blood testing often results in delays, as the police must transport the subject to a location where blood can be drawn. Nonetheless, it provides a more accurate picture of the amount of alcohol in the person’s systems, as well as other substances, because a blood test will quantify other drugs. Therefore, a blood test will show whether prescription drugs were taken at a therapeutic level or a higher dosage.

Drivers in the state of Florida do not have their choice of which test to submit to. Although the first refusal to submit to a test is not a crime, it can result in administrative penalties. Operating a motor vehicle in the state of Florida means that a person has consented (via implied consent) to submission to testing.

Jim Leyritz, the former professional baseball player, has been awaiting trial on a DUI manslaughter charge for several years. He was involved in a car wreck in the early morning hours of December 28, 2007, that left a woman in another vehicle dead. The trial was completed yesterday, says Broward DUI lawyer Moore, who has followed the case in the news. The Leyritz case was complicated: the toxicology tests performed on the driver of the other vehicle demonstrated that her blood alcohol content was well over the legal limit at which intoxication is presumed, 0.08 percent. Likewise, a blood test taken several hours after the accident showed Leyritz’s BAC over the limit as well. This has resulted in public controversy as Leyritz has maintained his innocence. According to media reports, the prosecution never offered any sort of plea deal.

Leyritz was charged with DUI manslaughter. The jury found him guilty of simple DUI, determining that he was in fact driving under the influence of alcohol but there was insufficient evidence to find that he had actually caused or contributed to the car accident. On the contrary, there was evidence presented by an expert witness showing that due to the timing of Leyritz’s consumption of the alcohol -- some of it shortly prior to getting in his car to leave his birthday celebration -- rendered his BAC higher hours later than it was when he was driving. Nonetheless, because the jury convicted Leyritz of driving under the influence, the jurors were apparently not persuaded by this argument, notes Fort Lauderdale DUI attorney Moore.

The passenger in Leyritz’s car testified that Leyritz had driven through the intersection where the accident occurred as the light changed from yellow to red. Based on that timing, the other vehicle would have likely had a completely red light, rather than a green light. In the absence of hard evidence showing otherwise, the jury apparently accepted this explanation, concluding that they could not find beyond a reasonable doubt that Leyritz had caused the unfortunate accident.

This matter has received widespread media attention due to both Leyritz’s fame and the unusual facts of the case. It is uncommon for a DUI-related accident to involve two drivers whose blood tested over the legal limit. The criminal standard “beyond a reasonable doubt” does not mean beyond all possible doubt, or beyond the shadow of any doubt, but simply beyond any doubts which would be plausible or realistic. In this case, the jurors returned for a rare Saturday session to finish up the case.

DUI can be enhanced in several ways, according to Fort Lauderdale DUI attorney William Moore. If the defendant’s blood alcohol content is measured over 0.15, the state can pursue enhancement. If convicted, the defendant will pay higher fines, be required to install an ignition interlock, and face tougher penalties that he would otherwise, including more time in jail. Where a minor is in the car, the penalties are also enhanced in the same way. Involvement in an accident, even if there were no other vehicles involved, also leads to enhancing factors. Leaving the scene after a DUI accident will usually be charged as a separate offense.

DUI causing serious bodily injury and DUI manslaughter are separate from regular DUI and are more serious. Nonetheless, a jury still has the option of convicting a person tried for DUI manslaughter or DUI causing serious bodily injury of simple DUI only, depending on the facts and particular circumstances surrounding the case before them.

What, then, constitutes DUI manslaughter? The driver must first be committing a DUI: driving while his normal faculties are too impaired to do so. This can be demonstrated through a breath or blood alcohol test at or above a 0.08. The state can also, or alternatively, use other evidence such as performance on roadside field sobriety tests, slurred speech, bloodshot eyes, damaging statements, or the driver’s demeanor or state of mind.

In addition to simple DUI, however, a conviction for DUI manslaughter also requires the driver to cause or contribute to the death of another person. Usually, this occurs during a traffic accident. However, some prosecutors have been interpreting it more broadly. A Tampa man, for instance, was recently tried for DUI manslaughter after he caused an accident. His BAC was over the legal limit. A good Samaritan stopped to render aid following the accident, but was struck and killed by a third party -- who was also intoxicated. The first driver, who apparently caused the accident, was charged with DUI manslaughter on the theory that he had caused or contributed to the conditions resulting in the good Samaritan’s death. The connection is fairly tenuous and the man was not convicted of DUI manslaughter after trial. The other driver, who struck the good Samaritan, took a plea agreement.