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DUI Pamphlet

The following is a Pamphlet that we make available to each of our DUI clients to help them understand the charges, the procedures, and their rights. This same information is available in other areas of the website, but it is presented here in a single document.

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INTRODUCTION TO DUI

If you are reading this pamphlet, then you or a loved one have probably been arrested for DUI or a related offense. The purpose of this pamphlet is to provide you with information relative to these offenses, the defense of these kinds of cases, the procedure that is followed in these cases and to advise you of what you may expect. Carefully reading this material before meeting with the attorney will save time (both yours and the attorney’s) and prepare you to ask better questions during your interview. Although each DUI case is unique (no, not all DUI’s are alike), there is a lot of information common to every case. There is no test after reading this so relax, read, and if possible… enjoy.

WHAT IS DUI?

In Florida, there is no such offense as [drunk driving.] The term DUI refers to driving while under the influence of alcohol or other drugs to the extent that your normal faculties are impaired. Your claim that you were not “drunk” or even “intoxicated” does not mean that you may not have been sufficiently impaired to be charged and convicted. Similarly, it is not illegal in Florida to drink and drive—it is illegal to drink too much and then drive. The fact that you have “alcohol on your breath” is not proof that will convict you of DUI.

There are actually two separate ways for the State to charge and convict you of DUI. The first is mentioned above. They can prove that you were impaired while you were either driving or in actual physical control of a motor vehicle. There is an alternative way that they can seek to prove your guilt. It is commonly referred to as [UBAL] That term stands forUnlawful Blood Alcohol Level. In order to convict you by this method, all the State has to prove is that when you were either driving or in actual physical control of a motor vehicle, your blood alcohol level measured .08 or higher. They ordinarily use the results of either an Intoxilyzer test given shortly after your arrest or a blood test of blood drawn from you shortly after your arrest (or hospitalization) and later tested in a lab.

HOW DOES IT ALL START?

The Stop

What happened that caused the police to come in contact with you in the first place? The most common scenario has a police officer claim to observe you committing a minor traffic infraction. He/she stops you for that infraction, asks for your driver’s license, registration and insurance and tells you what he believes you did wrong. So far, so good. Almost all traffic infractions are civil rather than criminal and you cannot be arrested for them (examples include speeding, running red lights or stop signs, failing to yield right of way, failing to maintain a single lane, etc.)

The reason given by the police for stopping or encountering you is the first opportunity we have to attack your arrest. Usually, the police are able to describe conduct that would clearly authorize them to stop or approach you. Once they have lawfully stopped you, they commence to build their case against you with other observations (see below).

Before permitting them to use the information they gather after they stop you, we must first analyze whether they may have violated your rights by unlawfully stopping or approaching you in the first place. If the Court finds that the officer should not have stopped you in the first place, then it matters not that you were falling down drunk when he got you out of the car. We may be able to have the charges dismissed. This is not the norm, but it is the first place we look. Often the police stop you under some pretext because it is 2:30 AM, they know the bars just closed and they believe that there is a good chance that anybody they can stop will have been drinking and provide an arrest opportunity for them. They have to be able to justify the stop based upon some observed offense or conduct that would cause the Court to finds the stop justifiable. Assuming the Officer has put enough into his report to survive our attack on his stop, he still may not have enough evidence to get a conviction for DUI unless you help him.

WHAT HAPPENS NEXT IS CRITICAL

Typically, this encounter provides the police officer the opportunity to begin making observations that lead to your arrest. The officer takes note that you have red, glassy, bloodshot eyes and slurred speech (later implying that this caused them to suspect you had consumed too much alcohol.) They often note that you had some difficulty locating your license, registration and insurance card (suggesting that you must have been impaired.) Most frequently they will report that they noted the smell of the impurities of alcoholic beverages emanating from your vehicle and/or your breath. All of these observations they will later testify, caused them to be concerned for the safety of the traveling public and caused them to inquire further to determine if you were in any condition to be driving.

The officer is likely to ask you a number of questions (some seemingly harmless) such as “Do you know why I stopped you?”, “Where are you going ?”, “Where are you coming from?”, {Do you know what time it is?”, “Have you been drinking tonight?”, “How much have you had to drink tonight?”, “When did you have your last drink?”, “Do you have a buzz on?”, “Do you have any medical problems?”, “Are you taking any medications?” and so forth. NONE OF THESE QUESTIONS ARE DESIGNED TO HELP THE OFFICER DECIDE THAT YOU ARE OK TO GO ON YOUR WAY. ALL OF THEM ARE DESIGNED TO HELP HIM PUT YOU IN JAIL AND CONVICT YOU OF DUI.

DO NOT ANSWER ANY OF THE OFFICER’S QUESTIONS (Obviously, this advice applies only to future situations since you probably said way too much when you were stopped this time. It’s still worth reading and understanding.)

Let us take a few minutes to explain why this is so! First and most importantly, remember that you are never required to answer an officer’s questions about anything, unless you have been involved in an accident (and as soon as the accident investigation changes to a criminal DUI investigation, you are free to refuse any further questions.) His curiosity or his need to “complete his investigation” does not require you to cooperate in his efforts to jail you. Be polite but uncooperative. Using the questions posed above, we’ll explain why.

Q.- “Do you know why I stopped you?” If you say “No”, then you must be impaired because you are either unaware of the infraction he is going to claim you committed or you do know and are exercising poor judgment by lying to him about it. If you say “Yes”, you are tacitly admitting to having committed the infraction, and thereby validated his decision to stop you. Either way you lose.

Q.-“Where are you going?” and ” Where are you coming from?”

The Officer is trying to establish that where he stopped you, is not directly between where you say you are coming from and where you are going to. This suggests confusion that implies you are impaired. The Officer also hopes that you will admit that you just left a bar, which suggests that you have been drinking and drinking too much at that. He probably followed you out of the bar parking lot but would prefer not to have to mention that if you will provide him with that information voluntarily. Don’t answer these questions!

Q.- “Do you know what time it is?”

If you guess and you are right, there is no notation in the report. If you guess and you are wrong, he will note that you were confused, wrong about the time and therefore impaired. You answer, you lose!

Q.- “Have you been drinking tonight?”, “How much have you had to drink tonight?”, “When did you have your last drink?”, and “Do you have a buzz on?”

These questions are all designed to get you to admit your alcohol consumption so the Officer can use that information to develop probable cause and arrest you. Regardless of what the Officer tells you, these questions are NEVER used to “clear” you so that you can return on your way home. If you lie and say that you have not been drinking when the Officer smells the alcohol on you or in your car, he will note that answer as either being a lie or suggest that you are so drunk that you forgot you had been drinking. Never answer any of these questions!

Q.- “Do you have any medical problems?” and “Are you taking any medications?”

These questions are designed to take away your later opportunity to use a medical condition or medications as a defense. If you answer “yes,” you may get follow up questions designed to show that you medical condition should not affect your performance on sobriety exercises. If you deny any medical condition or use of medications, then you have no excuse for performing poorly. Either way, you lose!

By now you get the point- the Officer is not asking these questions to help you. He is asking them to help himself in his efforts to convict you of a crime.

THE GREATEST WEAPON THAT THE POLICE HAVE

The “Field Sobriety Exercises”

Of all the weapons in the police DUI enforcement arsenal (these terms are selected because this is a battle- a battle for your freedom), the single most devastating weapon is the Field Sobriety Exercise. Previously referred to as the “field tests”, these are a series of exercises designed by the National Highway Traffic Safety Administration. They are supposed to measure your performance against standards developed by this pro-law enforcement organization and provide “clues” for the Officers to note as evidence that you are impaired. Let us pause and give you critically important advise that we will repeat, again and again.—NEVER, NEVER, EVER, EVER TAKE ANY FIELD SOBRIETY TEST OR EXERCISE. (While they are referred to as “field” tests, the advise applies whether they are offered “in the field” or back at the jail or other breath testing facility.) The Officer may start the process even before he requires you to exit your vehicle. He may stand at your driver’s door and ask you to see if you can touch or focus on a pen light, his finger, a pen or some other object. He will note your inability to do this correctly (according to him) and then “ask” (Can you say “order”?) you to get out of your vehicle.

Normally the Officer will say something like this—”I need you to perform a few exercises for me so I can determine if you are able to drive home tonight.” When these words enter your ears and are processed by your brain, what you hear is “If you do really well on these tests, the nice Officer is going to recognize the error of stopping you and let you drive on home. “Wrong!!!

That is not what he is saying. The ONLY purpose for these exercises (tests if you prefer), is to provide the Officer an opportunity to subjectively score your performance and conclude that you are impaired. These exercises are seldom video taped, so usually the only evidence that a jury can receive is the officer’s testimony of how poorly you performed. Even when they are video taped, the camera is often situated so that the officer’s observation is not clearly contradicted. Let’s be clear—IN THE HISTORY OF MANKIND, SINCE THE EARTH COOLED AND THE DINOSAURS BECAME EXTINCT, NOBODY HAS EVER PASSED THESE EXERCISES IN THE OPINION OF THE OFFICER GIVING THEM.

Get the picture? The only way to be sure to avoid flunking these exercises is to REFUSE TO TAKE THEM. The Officer will not tell you that you have the right to refuse. He is not required to. We’re telling you now—don’t take them.

The exercises themselves are pretty standard. There is the “Horizontal Gaze Nystagmus” exercise (in the arrest report it is called the “HGN” exercise. In this test, the Officer asks you to hold your head straight ahead and follow his finger, pen or light with your eyes as he moves the stylus or other object back and forth across your field of vision to the left and right of your peripheral vision. Don’t take this test. Although the courts have held that most officers are not qualified to score this exercise and it may therefore be inadmissible at trial, you should still never take it.

The “Walk and Turn” exercise requires you to first stand with your feet placed one directly in front of the other, heel of one touching the toe of the other, with your hands at your sides, and to remain there while the Officer demonstrates and explains the exercise to you. You are then told to take 9 steps, heel to toe forward along a straight line and make a unique turn, taking 9 steps back along the same line in the same way, all the while keeping your hand at your sides. People don’t normally walk like this. The exercise is ridiculous, but it is designed by a National organization so the jury is told it means something. Nobody stands like that. Nobody walks like that. It has nothing to do with your “normal faculties.” It is most frequently given at night, in poorly lit areas, on unlevel pavement, while you are nervous and adrenalin is dumping into your system, as the headlights of other cars are constantly distracting you. The test is designed for you to fail. The only way to not fail this exercise is to NOT TAKE IT.

The “One Legged Stand” requires you to hold one leg about 6″ off the ground and while looking at your foot, and counting to 30 by saying out loud “one thousand one, one thousand two,” and so on to “one thousand thirty.” You must keep your hands at your sides without lifting them during the exercise. DON’T EVEN TRY IT. Even if you are an Olympic athlete, and are sure you can do it, DON’T!

The “Finger to Nose” is an old favorite. You are told to stand with your feet together and your arms at your side with your head tilted back and your eyes closed. You then extend your arms out to the sides and extend your index finger out from both hands. Then as the Officer says either “right” or “left”, you are to bring the appropriate hand around until that arm is extended straight out in front of you and then flex at the elbow, bringing the very tip of your index finger back until it touches the very tip of your nose. After touching, you reverse the process, extending your arm back out in front of you and then bringing it back around until the arm is extended to the side. Trust us when we tell you that your idea of the location of the tip of your finger or the tip of your nose will never match the Officer’s expectations. Most people would agree that the tips of your fingers and nose are areas large enough to allow some leeway. To the law enforcement officer, hoping to make an arrest, the tips of your fingers and nose are the size of a pin point, and only he knows precisely where that point is. As with the other exercises, NEVER ATTEMPT THIS EXERCISE!

The Officer may have other tests or exercises that they prefer and ask you to perform. If the charge is Boating Under the Influence the tests are a little different but your response should always be the same:

  • Be polite (lots of “Sir” and a soft voice is good);
  • Refuse to answer any questions or to take any test or exercise (lots of “No Sir” is good);
  • Don’t talk much ( the more you say, the more opportunity the Officer has to say that you were slurring your words, thick tongued etc.);
  • Cover your mouth when you talk ( so the Officer has less chance to smell the alcohol).
  • Don’t look the Officer in the eyes (if you have sunglasses, wear them and refuse to remove them. If the Officer wants to remove them, don’t fight him but don’t remove them yourself and don’t give him consent);
  • NEVER GIVE AN OFFICER CONSENT TO SEARCH ANYTHING—EVER!
  • Ask if you are under arrest!! If he says “No”, ask if you are free to leave. When he says “No” you are not free to leave, ask him to explain why you can’t leave if you are not under arrest. If he says that he has to give you a citation for some infraction, tell him you’d like your ticket so you can leave. If he says he is investigating the possibility of a DUI, or conducting any other sort of investigation that has him asking you any questions, ADVISE HIM THAT YOU DO NOT INTEND TO ANSWER ANY QUESTIONS OR PERFORM ANY TESTS OR EXERCISES WITHOUT YOUR ATTORNEY PRESENT.
  • If he suggests that no attorneys are available at the time he has stopped you, tell him that your attorneys are available, and ask to call. If he permits this, call 1-800-INNOCENT and our 24 hour answering service will patch you through to one of our attorneys.

THE BREATH TEST AND THE RESULTS :

Florida has enacted an “Implied Consent law.” This means that when you get your Florida Driver’s License, you agreed that if requested to do so by a law enforcement officer who had probable cause to believe that you were driving while impaired, that you would submit to a breath or blood test. If you are arrested and refuse to take the Intoxilyzer breath test, the State of Florida will immediately suspend your driving privilege administratively for a period of one year, if you have never refused before. They will also suspend your driving privilege if you take the test and record a result of .08 or above. So the question arises, should I take the test?

If you take the test and “flunk” (.08 or higher), two bad things happen.First, the State will suspend your license for six months for flunking the breath test. Second, the prosecutor now has solid evidence of your blood alcohol level and the ability to show the jury that you had an Unlawful Blood Alcohol Level (UBAL). That will help them convict you of DUI in addition to upholding the administrative suspension.

If you refuse the test and you have never previously refused such a test, then they can suspend your license administratively for a year, but they will be deprived of vital evidence in their efforts to convict you of DUI. So….., if you have had 2 or more drinks, there is a real risk that you will have over a .08 blood alcohol rate. If that is the case, and you have never previously refused such a test, we would suggest that you refuse the breath test as well as the field tests. The “price” for this decision will be a longer DL suspension and a longer “hard suspension” (90 days withno hardship DL.) If that price is too high, take the test.

If you have previously refused a breath test, it is now a separate misdemeanor in Florida to refuse a second or subsequent time. That mean you could get up to a year in jail, just for refusing the test. If you have previously refused a breath, blood or urine test, we suggest that the risk of a second offense is too great. Take the test and we will pursue other possible defenses.

HOW WILL YOUR CASE PROCEED?

When you retain an attorney to represent you before your scheduled arraignment date, the attorney will file a written plea of not guilty and you will not have to go to Court for your arraignment. At the same time we file a Notice of Appearance as your attorneys so the Clerk will send all notices to us. We also file a Demand for Discovery that requires the State Attorney to provide us with a copy of all of the information from law enforcement related to your case. This will include not only the police reports, photographs, video tapes, audio tapes, statements, supplemental reports, documentation on the breath testing machine and process, etc. We will evaluate these materials to try to determine whether there are motions we can file to defend the case by limiting the State’s evidence.

In some instances we will ask the Court for permission to take the deposition of law enforcement officers or others to prepare a defense. We file those legal motions that are suggested by the unique facts of your case. We meet with the prosecutor in an effort to obtain the best possible plea offer in cases where a trial does not appear to be a good choice.

We will also get you to sign a Waiver of Presence at Pretrial Conference form so that you can be excused from many of the court appearances that would otherwise take up a lot of your time. We have to be there for these Court proceedings, but you will not. There is no set time but DUI cases are usually resolved within about 4 months of your arrest.

YOUR DRIVER’S LICENSE :

The Administrative Suspension

Of immediate concern for people arrested and charged with DUI is their continued ability to drive. If you refused the breath test, the officer took your license the day of your arrest and the Department of Highway Safety and Motor Vehicles, Division of Driver’s Licenses suspended it administratively. That suspension began immediately. If you took the test and the results were .08 or higher, the same thing happened. In either event, your DUI citation became your driving permit for the next 10 days.You have only 10 days from the day of your arrest in which to request a Formal Review Hearing from the Department. If you promptly make the request for a Formal Hearing, the Department will ordinarily issue you a temporary driving permit that will serve as your driver’s license until 12 days after the scheduled Formal Review Hearing. If you win the hearing, the hearing officer will set aside your suspension and you get your regular license back. If you lose the hearing, then you will commence a “hard suspension” beginning the day after your temporary driving permit expires. The length of your “hard suspension” will depend on the reason for the suspension and your prior record. In order to obtain a “hardship license” to drive, you must wait until the end of this “hard suspension” to request such a license. [Refer to the DUI Penalties section of the website for more detailed information about this.] If you have completed the DUI Counterattack School and you present your Certificate of Completion to the Driver’s License Division, you will likely receive a hardship license (also referred to as a BPO, for Business Purposes Only). This license permits you to drive to and from work, to drive while at work, to drive to the Dr.’s office, the dentist office, the Courthouse, the Probation Office, your attorney’s office, the pharmacy, the grocery store or school. It does not authorize you to drive for convenience, recreation or other non-essential purposes.

The Judicial Suspension

Above we discussed only the Administrative suspension imposed by the Department of Highway Safety and Motor Vehicles, Division of Driver’s Licenses. Whenever you are arrested for DUI, you also face the probability of a driver’s license action, including suspension or revocation by the Courts. If you plead to or are otherwise convicted of DUI, your Driver’s license will be suspended by the Court for a minimum of 6 months for a first conviction and one year for a second conviction. The Court has no discretion in this as it is required by the Legislature. If the case is reduced to Reckless Driving, Alcohol Related, then no suspension is required although the Court has authority to either impose a suspension or to restrict your driving privilege of a period of time. {Again, refer to DUI Penalties for more information.]

If you have obtained a hardship license granting you the right to drive in spite of your Administrative Suspension, you may have that license in your possession on the day you appear in Court to plead to your DUI offense. If it is necessary to enter a plea to DUI, the Court will suspend your license there and require you to surrender your hardship license to the Court. In most cases, you will be immediately entitled to a replacement hardship license, but you must ensure that you have transportation from the Courthouse to the Driver’s License Office as your license is now suspended. Ordinarily, your judicial suspension will be for a period of 6 months and this begins as soon as you are sentenced. It does not start to run only after your administrative suspension is over. Depending on your Court dates, either suspension may terminate before the other. The Division can advise you of the date on which you are entitled to apply for a non-restricted driver’s license.

Commercial Driver’s Licenses

The State of Florida has made no provision for granting a hardship license for a CDL (Commercial Driver’s License.) This is the sort of license held by over-the-road and other large truck drivers. If your license is suspended, you may receive a hardship license to drive regular vehicles for reasons as set out above, but you are not authorized to use such license to drive commercial vehicles. This a very important point since in the case of a person needing a commercial driver’s license, a conviction for DUI may mean the loss of a job or even a career.

HOW LONG DOES THIS TAKE?

After your arrest, the next event to be scheduled by the Court is the “arraignment.” This is ordinarily about 3 weeks or so after your arrest but in given courts it can be shorter or longer than that. The purpose of an arraignment is simply to determine whether you intend to plead guilty, not guilty or no contest and further to determine whether you are asking the Court to appoint the Public Defender to represent you or if you intend to hire your own attorney. If no attorney has entered an appearance by your arraignment date, you will have to appear in Court. If you tell the Judge that you intend to hire your own attorney but have not yet done so, the Court will probably set a Determination of Counsel hearing a few weeks out to keep track of whether you are represented or not. If you hire an attorney in the meantime, you will not have to go to this hearing. If you have not, the Court will expect to see you back.

Unless your attorney files motions and sets them for hearing, the next court appearance is the pretrial Conference. We normally get our clients to sign a Waiver of Appearance at Pretrial Conference form so that they will not have to take off from work or school to attend these proceedings. The purpose of the Pretrial Conference is for the Court to determine whether your case is going to go to trial before a jury, whether motions remain to be heard, whether a continuance is necessary or whether you have resolved your case by reaching an agreement with the prosecutor. It’s how the Court controls its calendar.

Finally of course, if all of the discovery, preparation, negotiation and conferences have not produced an agreement, you may proceed to trial before a jury. The good thing about a jury trial is that there is a chance that you might be found not guilty and have no sanctions whatsoever. The downside of course is that in addition to the added expense, you may be found guilty and receive a far more sever sentence than you could have received if you had worked the case out with the State. The decision to proceed to trial or to accept a negotiated plea is always yours.

SUMMARY :

DUI is a common offense but there is nothing simple about it. The potential consequences are substantial and it only makes sense to have professionals assist you in your defense. There are both administrative and judicial proceedings and each has its own procedures and consequences. The process takes time and it is not inexpensive.

The Courts do not care how badly you need your license for work, school or even medical needs. They do not care that you have had a clean driving record for 30 years. The legislature does not permit the Courts to take such facts into account and to “give you a break” by sentencing you to less that the minimum set out in the statute.

If you are arrested for DUI and the officer takes your license from you at the time of your arrest, you must quickly (within 10 days of your arrest) apply for a Formal Review hearing in order to maintain your driving privilege for the maximum amount of time. Get professional help, and get it quickly.

Call THE DEFENSE GROUP at 1-800-INNOCENT, 1-800-INOCENTE, 407-831-1956 (Orange & Seminole), 407-933-8884 (Osceola), 352-254-6900 (Lake & Sumpter), 386-238-5002 (Volusia), or 321-267-2000 (Brevard)  for a free consultation with an Orlando DUI defense attorney at the earliest possible time.

  WE CAN HELP!!