Florida DUI Lawyer Blog

Broward DUI lawyer Moore reminds motorists to be careful this upcoming holiday weekend -- DUI patrols are typically ramped up for summer holidays, including the Fourth of July. This year is no different: following sobriety roadblocks set up over Memorial Day, the Broward County Sheriff's Office is setting up similar checkpoints in preparation for the Fourth of July weekend.

The Broward County Sheriff's Office has just announced that it will be conducting a DUI checkpoint from 9:00 p.m. on Friday, July 1 to 1:00 a.m. on Saturday, July 2 at 9401 Stirling Road in Cooper City, Florida, which is at or near the Cooper City High School. (Cooper City is located west of Hollywood and southwest of Fort Lauderdale here in Broward County.) The BSO press release is available here, detailing the sobriety checkpoint and noting that the advance publicity is being issued in compliance with a Supreme Court decision.

Sobriety checkpoints, or DUI roadblocks, are set up to screen drivers for impairment. In reality, these checkpoints frequently result in numerous citations for improper equipment, expired drivers licenses, driving without insurance, and the like, which are money-makers for many law enforcement agencies. The Supreme Court has ruled that police agencies must abide by strict guidelines due to the intrusiveness of stopping motorists. Supervisors must make the decisions, such as stopping every third card or every sixth car to pass through. Officers on the ground cannot simply profile individuals based on their appearance or their vehicles. Sites should be selected for public policy reasons and have a high instance of driving under the influence in the area. The checkpoint must be clearly marked with signs and lights to warn approaching motorists. Advance publicity of the checkpoint is an absolute requirement, which is why you may hear such announcements made by local law enforcement agencies on the radio stations here in Broward County.

Independence Day is not the only holiday that DUI arrests are made, however, notes Fort Lauderdale DUI lawyer William Moore. A local man was charged with DUI and child neglect on Father's Day in a story published in local newspapers. The toddler was unharmed, but had been riding in the backseat while his father was allegedly swerving and starting and stopping abruptly as the pair traveled down Okeechobee Boulevard in West Palm Beach.

Fort Lauderdale DUI lawyer William Moore says that in the majority of DUI arrest cases, the substance the defendant is accused of being under the influence of is alcohol. If the law enforcement officer made a traffic stop for a reason such as a suspicious driving pattern -- weaving and driving significantly lower than the posted speed limit, for instance -- the officer would conduct a DUI investigation. Such an investigation typically includes requesting that the driver submit to field sobriety exercises and, if he does so, evaluating his performance. There is some evidence that suggests police officers, in general, tend to overestimate the intoxication level (if any) of drivers performing such exercises where they already suspect DUI. Whether or not the driver complies with roadside field sobriety tests, however, the officer will usually request that he or she submit to a breathalyzer test if there is reason to believe that the driver is intoxicated, notes Broward DUI attorney Moore.

In some circumstances, the law enforcement officer may also request either a urine sample or a blood sample. Blood samples are not preferred due to their inherently invasive nature. Urine samples are often requested where the investigating law enforcement agent has a reason to suspect that the driver is under the influence of intoxicants other than, or in addition to, alcohol. For example, if a visibly impaired person blows a 0.00 reading on the breathalyzer, the officer may suspect the presence of Xanax, pain pills, sleeping pills, prescription medications, amphetamines, cocaine, or any number of other substances.

In situations where it is impractical to obtain a breath sample, the police and prosecution may rely on the results of a blood sample. However, there are very specific cases where this is permitted, and the state must follow numerous procedural guidelines. If a person is passed out following an accident with injuries and is en route to the hospital in an ambulance, a blood draw is the most practical method for ascertaining whether the driver was intoxicated. Blood draws cannot be required of the driver in most situations where a less invasive method would suffice.

That being said, a blood result is widely considered more accurate than the breathalyzer machine in terms of quantifying the amount of alcohol in a person’s system. Additionally, it is more accurate than urine in determining whether or not other substances are acting as intoxicating agents. This is because a urine test only shows what is in a person’s body, but does not demonstrate the level in one’s bloodstream, making it more difficult to show the likely effect the substance is having on a person at a given time.

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Broward DUI attorney William Moore keeps a close eye out for judicial and law enforcement trends and news related to driving under the influence (DUI). Recently, a five-year-old took the wheel after her father reportedly passed out while driving. According to the Florida Times-Union, the young girl, who is a resident of Jackonsville, was riding as a passenger in the a 2010 Chevy Camaro. Her father reportedly lost consciousness, which law enforcement officials believe was tied to his consumption of prescription medication, reports Fort Lauderdale DUI lawyer Moore.

When her father became unable to operate the motor vehicle, the girl grabbed the wheel, steering it off the road. Another motorist was forced to swerve to avoid hitting the car, which eventually came to a stop. The passing driver stopped and rushed to the other vehicle, where she found the girl and her father locked in the car. After motioning for her to unlock the door, the five-year-old girl did so. The girl had suffered minor injuries and was bleeding from her lip. When law enforcement officers arrived at the scene, the driver was reportedly unresponsive and staring at the vehicle’s ceiling. He was arrested and the law enforcement agency believes he had been taking the prescription anti-anxiety medication Xanax as well as prescription painkillers.

Fort Lauderdale DUI attorney Moore states that also of note is a recent decision by the district attorney, as prosecutors are known in California, in Santa Clara to review breathalyzer results due to the possibility of inaccuracy. This is a precedent that could have a far-reaching impact throughout the country, as more and more people question the legitimacy of a machine used to convict defendants of DUI -- in Florida, where the company will not release the source code that demonstrates how the machine operates and reaches its conclusions, there are tremendous unanswered questions. Keeping abreast of new information in the world of DUI law is important.

According to Broward DUI lawyer William Moore, technology, especially with regard to smartphone devices, is rapidly changing every part of our daily lives -- including DUI enforcement. There are reportedly multiple applications available through the Apple store for download onto the iPhone that assist a user in avoiding police speed traps as well as DUI roadblocks (sobriety checkpoints). These applications generally involve data added by users, says Fort Lauderdale DUI attorney Moore. For instance, if a user is aware that the Broward Sheriff’s Office plans on erecting DUI roadblocks around the county this weekend, he can add the locations into the system, which show on a map.

Because the locations of DUI checkpoints must be publicized in advance anyway in accordance with the law, this is public information that is accessible to private citizens. Similarly, a motorist who regularly drives through a small town and is aware that the local law enforcement agency issues frequent tickets for speeding violations might map the location as a “speed trap.”

Today, several U.S. Senators sent a letter to Apple, Inc. to request that they remove Trapster and other iPhone apps from the Apple Store, as the applications allowed the users to identify the locations of DUI checkpoints. The Senators’ concern seems misplaced, however, as the roadblocks must be publicized well in advance. The publicity is required so as to minimize the inherently intrusive nature of the checkpoint and remain in compliance with the Fourth Amendment’s prohibition of unreasonable searches and seizures.

We have written extensively on this blog previously regarding the numerous problems associated with sobriety checkpoints. Though ostensibly erected in order to spot and prevent DUI, the DUI roadblocks are frequently tremendously effective revenue generators for police departments. Law enforcement officers tend to issue numerous tickets and citations for a variety of offenses: driving while license suspended, no valid driver’s license, expired driver’s license, bad window tints (too dark), expired registration, tag not assigned to the vehicle, insurance violations, etc. The list goes on and on, but the DUI roadblocks tend to net very few drivers who are actually under the influence.

Continue reading "Fort Lauderdale DUI Attorney: DUI Smartphone Apps" »

Fort Lauderdale DUI attorney William Moore says that driving under the influence of alcohol or other substances that cause impairment is treated differently when the accused driver has not yet reached his or her twenty-first birthday. The justification for this is that possession (and thus consumption) of alcohol is not legal prior to turning age 21. A nationwide campaign in the 1980s led to the enaction of 21 plus laws in every U.S. state, whereas most had previously had 18 as the legal drinking age. The rise in the legal drinking age also coincided with dramatic toughening of the DUI laws throughout the country.

The Florida Department of Highway Safety and Motor Vehicles (the FDHSMV, more commonly known as the DMV) administratively suspends driver’s licenses under certain circumstances, such as when a driver refuses a breath, blood, or urine test, or when he or she is charged with driving under the influence. Interestingly, refusal of roadside field sobriety tests may be used against a DUI defendant in court as evidence of his or her knowledge of guilt, but does not by itself result in the suspension of one’s license to operate a motor vehicle.

Drivers under the age of 21 who are arrested for DUI are treated differently on the administrative level than their 21 plus counterparts. If the driver submits to a blood or breath alcohol test registering a reading of 0.02 percent or higher, his or her driver’s license will be suspended for six months. If this is the second or subsequent occurence with the same driver, the suspension will be for one year. If the driver refuses to submit to the test, the suspension will be for one full year, while a second or subsequent refusal will be for 18 months. The logic behind this disparity is to discourage breath and blood test refusals.

Broward DUI lawyer William Moore says that an individual whose driver’s license has been suspended by the FDHSMV has 10 days to request an administrative hearing before the agency on the merits of the suspension. The police officer will usually be called to testify about the reason for the traffic stop and the circumstances leading to his or her determination that the driver was likely under the influence when operating the vehicle. These administrative hearings may result in the cancellation of the driver’s license suspension and the reinstatement of driving privileges, even if the State Attorney’s Office proceeds with prosecuting the DUI in criminal court.

It’s difficult to conceptualize but nonetheless should be considered that DUI laws are ultimately designed to protect citizens from harm or loss rather than to brand otherwise law abiding citizens with a criminal record.

Broward County DUI attorneys understand that reducing traffic casualties is an enormous challenge. The public tends to associate social control of traffic with improving drivers' skills and changing the attitudes and behavior of careless and irresponsible drivers. This is surely an important—but not the only or necessarily the most efficient—social control strategy. Thus, casualties can be reduced by (1) preventing crashes or (2) preventing injuries sustained in crashes. Crashes can be prevented by safer driving, better-designed vehicles, and safer roads. Injuries can be prevented or reduced in severity by more crashworthy vehicles, more crashworthy roads (i.e., roads with impact-absorbing crash barriers rather than trees and poles), and better emergency medical services.

Is it possible that the tremendous cost of DUI prosecution may have been more effectively appropriated at preventing loss and injury through other means?

Comments on this issue are welcomed. Please contact the Broward County DUI attorneys of AMlaw directly or simply email us.

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.

The former president of MADD was arrested under suspicion of DUI a couple weeks ago on suspicion of DUI after she was observed by officers who claimed that she was having difficulty maintaining a single lane. After submitting to a breath test, she was found to have had 3 times the legal limit of alcohol in her blood (BAC .08 in Florida). Debra Oberlin explained to officers that she had consumed 4 beers in direct contrast to the intoxilyzer results, presuming they were accurate.

According to Broward DUI attorney William Moore, the National Traffic Safety Board is a federal administrative body that handles matters pertaining to motor vehicle traffic, as well as marine, rail, air, and other types of transit. The Board often issues advisories regarding issues relating to these types of transit, with an emphasis on its primary objective -- safety. In November 2010, it issued a statement on dealing with “hard core drinking drivers,” referring to a specific set of DUI crimes that the Board has deemed unusually dangerous for public safety. Not all of its recommendations, however, hold water or are even realistic in modern courtrooms.

The statement’s objective is to remove “habitual drinking drivers” from the highways of the United States. Among the “grim facts” listed: “Repeat offenders represent about one-third of all drivers arrested or convicted of driving while intoxicated or under the influence of alcohol.” This statement is problematic because convictions are far more relevant than arrests. A driver is presumed innocent of driving under the influence unless and until he is convicted of the offense in a court of law. The NTSB may be including arrests in order to bump the numbers to a higher percentage than those actually convicted of DUI would show, says Fort Lauderdale DUI lawyer Moore.

The NTSB also suggests that states operate widepread, frequent sobriety checkpoints (also known as DUI roadblocks). As we have previously written about, DUI checkpoints are extremely ineffective at apprehending drunk drivers but tend to be profitable in terms of the number of citations issued. Generally speaking, law enforcement agencies conducing these checkpoints are more likely to find a person whose car registration is out of date or whose driver’s license expired last week than they are to find a drunk driver. As a public safety tool, roadblocks are ineffective and subject to numerous constitutional constraints.

The NTSB further suggested that pleas should be prohibited. This does not make sense at all. Defendants are arraigned and must plead either guilty or not guilty to the court; there is no reasonable way to prohibit defendants from agreeing to plead guilty or no contest in exchange for a set penalty. Prosecutors do not have the resources to take every single case to trial and, frankly, there is no public interest served by requiring this. A conviction is a conviction regardless of how it was obtained.

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.

In the state of Florida -- surprisingly -- courts have ruled that it is possible to be arrested and convicted of DUI on a bicycle, says Fort Lauderdale DUI lawyer Moore. There are no precise figures available, but arrests of individuals riding a bike while (allegedly or actually) under the influence of alcohol or other substances are more common than one might imagine.

Implied consent is not applicable for a bicycle DUI. Implied consent refers to the fact that the operation of a motor vehicle -- generally a car -- on the roads in Florida necessarily means that the operator has consented to certain DUI testing when requested by a law enforcement officer, says Fort Lauderdale DUI lawyer Moore. Most often, this means a breathalyzer test.

The relevant section of the Florida statute states that committing a DUI involves a “vehicle,” which has been interpreted very broadly since its enactment A bicycle is not a motor vehicle, but can be taken on the public streets and roadways. There is also a colorable argument that bicycles, sharing the streets with cars, can pose a hazard to the safe flow of traffic and pedestrians if an operator is impaired, according to Broward DUI attorney Moore.

For purposes of driver’s license suspension, the DUI must be in a motor vehicle, such as a car. The courts are split as to whether the typically mandatory driver’s license suspension periods are required when the DUI did not occur on a motor vehicle.

The third District Court of Appeals in the state of Florida dealt with this issue in 1987. The DCA concluded that, based on the statute, the Florida legislature had a broad definition of vehicle in mind when enacting the statute. Interestingly, the Florida Supreme Court has not weighed in on whether a DUI can be committed on a bicycle, and this opinion remains that legal standard as the only appellate opinion on the issue in this state.

A survey of other states shows that they have taken a varied approach. A number of jurisdictions have maintained that a DUI can only be committed on a motor vehicle, which can be more than just a car or truck. For instance, hooking up a lawnmower engine to a living room recliner and driving it around could result in a DUI arrest. Other states include non-motor vehicles, such as bicycles and even individuals who are riding on horseback.

According to Broward DUI attorney William Moore, Ozzie Conseco is the identical twin brother of Jose Conseco, the former Major League Baseball Player. Ozzie also participated in professional baseball, playing in 24 games in with the St. Louis Cardinals and the Oakland A’s in the early 1990s. He has also played in Japan and in other leagues in the United States. Ozzie was selected by the New York Yankees in the second round of the 1983 draft. His brother Jose hit more than 400 career home runs while playing in the major leagues, notes sports buff and Fort Lauderdale DUI lawyer Moore.

Ozzie was recently arrested in Florida for DUI, according to media reports. His BAC was reportedly between 0.108 and 0.109. Initial news reports make no mention of a crash associated with the DUI arrest, notes Broward DUI lawyer Moore.

Ozzie Conseco has been previously arrested in Florida twice before, although never previously for drivind under the influence. In 2003, police pulled him over due to “bad tints” (windows tinted darker than the law allows) and determined that he was driving with a suspended license. When law enforcement officials searched his car, they found an illegal steroid, along with a syringe. Ozzie spent four months in jail as a result of the incident.

On the night of Halloween in 2001, Jose and Ozzie Conseco were both arrested following an incident in Miami Beach. The pair got into a fight with tourists visiting the area from California. The dispute turned physical. The tourists suffered injuries as a result of the fight: one required numerous stitches on his lip, while the other had a broken nose. Both of the Conseco twins pleaded guilty to felony aggravated battery charges, although neither was required to spend any time in jail. Ozzie Conseco was sentenced to 18 months of probation, anger management classes, and 200 hours of community service.

First DUIs in the state of Florida, where the defendant is convicted after a trial or pleads guilty, do not usually result in time in jail, although there are exceptions. Aggravating circumstances, DUI arrests in other states, injuries, accidents, and the like can result in harsher sentencing in some instances.