Florida DUI Lawyer Blog

This blog is not intended to ever render legal advice under any circumstances and is instead only a discussion of topics in the field of DUI law and more specifically, DUI defense, says Broward DUI lawyer William Moore. Whether or not to take the breathalyzer test in the event a driver is pulled over is a question many people have wondered. The law says that submission to the test is required. In fact, pull out your driver’s license. In tiny, barely readable text across the bottom edge, the following words are printed: “Operation of a motor vehicle constitutes consent to any sobriety test required by law.” Fort Lauderdale DUI attorney Moore says that many people have never even noticed the implied consent language.

This means that merely by driving on a roadway in Florida, you have -- by implication -- given your consent to a breath, or if the law enforcement agency deems it necessary, urine or blood test. However, you should only be subjected to such testing in the first instance if the law enforcement officer has already determined that you appear to be impaired.

For instance, if a driver was pulled over for a violation such as bad tints on his windows (too dark) and the officer decides he might be impaired, there could be problems, depending on which signs of impairment are evidence. If the driver submits to a breath test and gets a reading of .000, the law enforcement officer would likely request a urine test. However, even if the urine shows prescription or illegal drugs that could be intoxicants, the fact is that the state must also show that the driver exhibited signs of impairment. This could be established by evidence such as the officer’s testimony that the person seemed confused and had watery, bloodshot eyes. Increasingly, however, DUI investigations are video-taped. Roadside field sobriety exercises are frequently recorded, as are the events at the breath test center. Jurors may view the videos and conclude that the driver appears to have his or her normal faculties

There are penalties, including administrative suspension of your driver’s license, for refusing to submit to a breath test. If you have refused one or more previous times, you will likely be charged with criminal refusal of a sobriety test, which may carry penalties as severe as DUI itself. The refusal can also be used by the state at trial as evidence of guilt; however, the lack of results in the event the driver refuses to submit is also a lack of evidence, and the state must usually rely on the driver’s appearance in the video and the arresting officer’s testimony.

Fort Lauderdale DUI lawyer William Moore says that getting to the point of a police officer conducting roadside field sobriety tests requires several tests. When a police officer pulls over a driver, he may decide to conduct a DUI investigation based on a variety of different factors that the law enforcement official believes give rise to reasonable suspicion that a crime is being or has been committed. The facts that give rise to this suspicion (if they do in fact support support reasonable suspicion -- a hunch, for instance, is wholly insufficient) may arise before or after the traffic stop takes place, or both. Facts that might lead an officer to conduct an investigation include noticing a vehicle weaving, driving very slowly, failing to maintain a single traffic line, crossing yellow lines, and not obeying traffic laws more generally. Car crashes may also be a factor, especially where only one car is involved. After the officer has already decided to pull over a driver, he or she may also observe other factors indicative of intoxication, such as red, bloodshot, or watery eyes, the odor of alcohol (or marijuana), flushed skin, slurred speech, or other signs. Many police reports contain these specific allegations, notes Fort Lauderdale criminal lawyer Moore.

Upon becoming suspicious that a DUI may be taking place, the officer will usually ask a suspect to comply with field sobriety tests on the side of the road. These tests are voluntary and refusal to participate in the field sobriety tests will not affect your driver’s license. However, refusal to submit may factor into the police officer’s decision to arrest the suspect and may be used against the driver later if a DUI charge is filed. Refusal to submit to breath, urine, or if necessary, blood testing will result in the suspension of the driver’s license, which may be challenged in an administrative hearing before the Florida Department of Motor Vehicles and Highway Safety. In fact, if you have previously refused a BAC test before, the state will likely file a criminal refusal charge, which is a misdemeanor.

Unfortunately, independent studies show that, on the whole, police officers tend to overestimate the number of drivers who are intoxicated, says Broward criminal attorney Moore. One study in particular showed that law enforcement officers who were given a group of people to test and were under the impression that some of them might be under the influence of an intoxicant -- when in reality, none of them were actually intoxicated at all -- documented an alarming number of signs the officers believed indicated that the subjects were in fact intoxicated.

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.

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.

Continue reading "DUI Patrols for Halloween -- Broward DUI Attorney" »

When a person is pulled over and the law enforcement officer conducts a DUI investigation, he or she is looking for one main thing: evidence that your normal faculties are impaired by a substance (alcohol or drugs). However, the police officer a couple of disadvantage in terms of accuracy in this investigation. The first is that law enforcement is unaware of what your particular normal faculties are. This means that if you have had a knee injury, for instance, doing a heel-to-toe walking pattern on the side of a highway may be difficult for you. Similarly, standing on one foot for a long period of time may cause you to sway for any number of medical reasons that do not reflect on your degree of intoxication or impairment, notes Fort Lauderdale DUI lawyer William Moore.

There are three ways the police try to collect proof against a driver suspected of operating a motor vehicle while intoxicated. The first is by inquiring about alcohol usage, or interrogation about the matter. An officer could ask, for instance, if you have been drinking and if so, how much. The second matter the officer will look at is your performance on roadside field sobriety tests, in which you are asked to complete several physical activities (and follow instructions) to see how well you are able to complete the task. As mentioned before, standing on one leg, possibly while counting, or walking heel-to-toe for a certain number of steps are common tasks. The officer will evaluate your performance on these tasks, although his or her perception is highly subjective, and may be colored by the fact that the officer already suspects the driver is intoxicated. Perhaps the most important test the law enforcement officer will ask you to submit to is a breath test to check for alcohol in your system, more commonly known as a breathalyzer. Although there is evidence suggesting these machines are not nearly as accurate as police or the machines’ manufacturers claim they are, the results are still admissible in a court of law. You may also be asked to submit to a blood or urine test, depending on the circumstances.

The less proof of intoxication exists, or what law enforcement believes is evidence, the less likely a driver is to be convicted at trial. “Triple refusals” can therefore be useful to your DUI defense lawyer, although refusal can have other consequences, including a longer period of driver’s license revocation. Always consult an experienced Broward DUI attorney before making these decisions.

In addition to these tests, the law enforcement official is also checking other signs of intoxication. Bloodshot eyes are an indicator they use, but one which is mimicked by other issues. Foremost among these is dry contacts, but even just being tired after a long day or allergies could cause red eyes.

This article should not be construed as legal advice in any way. Additionally, please note that because the operation of a motor vehicle constitutes implied consent to testing. Further, refusing a second or subsequent time can result in separate criminal charges.

Driving under the influence (sometimes called driving while intoxicated) is the kind of charge that many drivers are slapped with unexpectedly, according to Fort Lauderdale DUI lawyer William Moore. After watching the football game with the guys, having dinner with friends, or even attending a family birthday party, a driver sees the flashing blue lights behind him or her. The hassle of getting a speeding ticket is the first thought on the minds of some, although others are worried that the officer will smell the two beers’ worth of alcohol and become suspicious. Either way, it is not an idyllic ending to the night.

Many drivers are shocked to learn that even a few drinks can have a very real effect on their driving -- depending on the circumstances. For some, especially men or those who consume alcohol regularly, the effect is often small. However, it is important to remember the possibility of multiplying effects of intoxicants. This means that when a person consumes two or more substances, the effects can multiply -- and the level of intoxication may be higher, notes Broward County criminal lawyer Moore.

For example, consumption of two beers or the therapeutic dose of a prescription drug, such as Xanax, might not have an impairing effect on all drivers. However, having a few beers along with several Xanax pills could cause a much stronger effect, even causing a blackout experience.

Under Florida law, the operation of a motor vehicle by itself is proof of your consent to a breath, blood, or urine test to determine if you are under the influence of any substances. Refusal can have adverse consequences, such as administrative penalties or even additional criminal charges under some circumstances. Breath tests are generally the preferred method for most law enforcement agencies, but these only claim to measure the levels of alcohol in one’s breath. If the officer believes the driver is more impaired than the numbers on the breath test reveal, or if he or she notes that the driver appears to exhibits symptoms of intoxication that are inconsistent with alcohol or only alcohol, the driver may be asked to submit to a blood or urine test. Generally, blood tests are more accurate, because they provide not only which substances are in a person’s system but also in what amounts. A urine test does not quantify the substances, so a driver who smoked marijuana two weeks prior to the test may still have a positive result, even though he is no longer under the influence of the drug.

In any case, if you are arrested for DUI/DWI/, remember that you may be filmed, especially during the intake process or during a breath test:

New York was the first state to adopt what has commonly become known as the "implied consent law" in 1953. This law was designed to force possible drunk drivers to submit to a blood, breath or urine test after the driver had been stopped by an officer and the officer then had a reasonable belief that the driver was impaired. The theory behind the practice of implementing implied consent laws (also known as informed consent) is that any driver who used the roads and highways implicitly consented to giving his or her permission for a breath or blood (and in some states, urine) sample that could be subsequently used as evidence at trial.