As experienced Orlando DUI defense attorneys, we can answer some of the most common question those charged with DUI face.
The questions set out below and the answers provided are made available for your general information and to assist you in understanding the DUI law and procedures. It is not offered as legal advice and should not be relied upon as such. After reviewing this information, you should call 1-800-NOTGUILTY to make an appointment for a free consultation with one of your attorneys.
1. What is a Formal Review Hearing?
An administrative hearing before a non-lawyer employee of the Department of Motor Vehicles to determine whether the Department was justified in suspending your driving privilege the day you were arrested for DUI. There are two reasons for a suspension of your license at the time of your arrest. Both provide an opportunity for a Formal Review Hearing. If arrested for DUI and the chemical test result is .08% or greater, or if you refused to take the test, your license will be suspended for a period of time by the Department of Highway Safety and Motor Vehicles (DHSMV). You are entitled to challenge this suspension by means of the Formal Review Hearing. However, this Hearing must be requested in writing and delivered to the DMV Office in Hillsborough County, no later than 10 days from the date of arrest. Your attorney can handle the details involved with scheduling, and be able to conduct this hearing without the need for you to attend.
This Hearing can be a valuable tool in the investigation and the defense of your case. First, it allows your Attorney to challenge the suspension of your license and, if successful, obtain the reinstatement of your license. Secondly, it permits your Attorney to interrogate Law Enforcement Witnesses in order to gain detailed knowledge concerning their observations, actions and opinions. Finally, if your case is really short on defenses, it gives the attorney an opportunity to ask the officer to not oppose a reduction of the charges by the prosecutor.
2. Can I obtain a temporary permit to drive while my license is suspended?
It depends on several factors. When you are arrested for DUI, you may be permitted to drive for the first 10 days, if you are otherwise privileged to drive (your license is not already suspended or revoked.) If your chemical test result was .08 or higher, you will then enter a period of “Hard Suspension” and will not be permitted to drive for any purpose for the next 30 days. If you refused to take a chemical test, your license will instead be subject to a 90 day “Hard Suspension”. These periods of “Hard Suspension” may vary in length and may be followed by a period of general suspension imposed by the DMV and/or the Court.
Other than these periods of “Hard Suspension”, you may be eligible to obtain a business purpose or hardship license in order to drive while your license is subject to a general suspension. The issues regarding license suspension and eligibility for temporary permits can be confusing and should be discussed with an Attorney.
A further explanation of this is set out in the “Florida DUI Penalties” section of our DUI site.
3. What is the difference between a misdemeanor or felony?
Misdemeanor charges are generally considered to be less serious than a felony, however, convictions for crimes involving DUI can have long lasting ramifications that may effect both your record and employment.
Misdemeanor cases are handled in the County Court System and punishment may include an adjudication of guilt, a fine, incarceration in the County Jail and supervised probation.
Felony charges are considered more serious than a Misdemeanor and are ranked in increasing range of severity from Third to First Degree. Felony crimes are handled in Circuit Criminal Court and punishment can include an adjudication of guilt, significant terms of supervised probation or house arrest, significant fines, lengthy terms of incarceration in State Prison and even the imposition of the death penalty.
4. Can I settle my case without a Court Appearance?
For misdemeanor charges, usually the answer is “Yes.” Florida law prohibits the settlement of a Felony charge unless the client is present in Court. However, Misdemeanor charges, such as most DUIs, may be settled without requiring your personal appearance. This is referred to as a “Plea in Absentia” and requires the approval of the Court. This is a common procedure for our out-of-area clients who were arrested while in the area on vacation or for work. There are other “court appearances” other than the final disposition hearing that may ordinarily require your presence. In our practice, we routinely have our clients execute a “Waiver of Appearance at Pretrial Conferences” form that excuses them form a number of court appearances. We do all in our power to make this experience as easy as possible.
5. What fees and expenses can I expect to pay for legal representation?
Each case is different.
Legal fees are determined by a number of factors including:
- whether the charge is a misdemeanor or a felony,
- the degree or severity of the charge,
- the number of crimes charged,
- the complexity of the case, and
- the client’s desires and expectations.
Generally, the legal fees charged for representation of a misdemeanor are less than those charged for representation of a felony; a simple case requires a smaller fee than that of a complex one; and single charges usually cost less than that of multiple charges.
Generally, we divide the legal fees that we charge into Pretrial and Trial fees. In other words, we will typically charge a fee for all representation up to the point of Trial, and an additional fee if the client desires to proceed with a Trial.
Our office accepts major credit cards and payment plans are available in order to provide payment flexibility for the client.
6. What do police officers look for when searching for drunk drivers on the highways?
The police are trained to look for certain specific driving patterns, physical conditions, attitudes and appearances.
The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:
- Turning with a wide radius
- Straddling center of lane marker
- “Appearing to be drunk”
- Almost striking object or vehicle
- Driving on other than designated highway
- Speed more than 10 mph below limit
- Stopping without cause in traffic lane
- Following too closely
- Tires on center or lane marker
- Braking erratically
- Driving into opposing or crossing traffic
- Signaling inconsistent with driving actions
- Slow response to traffic signals
- Stopping inappropriately (other than in lane)
- Turning abruptly or illegally
- Accelerating or decelerating rapidly
- Headlights off
Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety.
7. If I’m stopped by a police officer and he asks me if I’ve been drinking, what should I say?
This is one of many questions that you should not answer. You are not required to answer potentially incriminating questions. A polite “I would like to speak with an attorney before I answer any questions” is a good reply. While saying that you had one or two beers is not incriminating, it is not helpful either. While it may explain the odor of alcohol on the breath, it serves as an admission of consumption, and that can support the officer’s theory for your arrest. Ordinarily, you should not answer ANY questions. Ask if you are under arrest. If the Officer says “Yes,” go silently. If the Officer says “No,” then ask if you can leave. If the Officer says No,” ask “Why not?” Finally, when the Officer begins to ask questions, politely advise that you will not be answering any questions or taking any field tests without an attorney.
8. Do I have a right to an attorney when I’m stopped by an officer and asked to take a field sobriety test?
As a general rule, there is no right to an attorney until you have submitted to (or refused) blood, breath or urine testing. There is certainly no right to be advised of any right to counsel. This does not mean that you cannot ask for one. It also does not mean that you are required to take the field tests. Take every opportunity to ask for an attorney and to refuse to answer or otherwise cooperate until you have spoken to your attorney. If the Officer points out that attorneys are not generally available at the time of day or night you have been stopped, advise him that your attorneys can be reached at 1-800-NOTGUILTY. If you have been stopped by the police, our 24 hour answering service will patch you through to our on call attorney.
9. What is the officer looking for during the initial detention at the scene?
The traditional symptoms of intoxication taught at the police academies are:
- Combative, argumentative, jovial or other “inappropriate” attitude
- Disorientation as to time and place
- Failure to comprehend the officer’s questions
- Flushed face
- Fumbling with wallet trying to get license
- Inability to follow directions
- Leaning on car for support
- Odor of alcohol on breath
- Red, watery, glassy and/or bloodshot eyes
- Slurred speech
- Soiled, rumpled, disorderly clothing
- Staggering when exiting vehicle
- Stumbling while walking
- Swaying/instability on feet
Some of these, such as a “flushed face” you can do little about. Others provide an opportunity for you to help yourself. The less you say, the less opportunity the officer has to characterize your attitude, or to observe the quality of your speech. Don’t answer questions. Since you are not required to take the field sobriety tests, there is no need for you to step to the rear of the car, or to walk to any other designated place for the tests. Tell the Officer early on that you refuse any such tests and that you refuse to say anything else without an attorney. Do not get into an argument with the Officer (even if he tries to bait you into it.) Don’t breathe towards the officer and don’t look him in the eyes. If you have dark glasses, put them on before the officer approaches, and refuse to take them off unless ORDERED to do so..
10. What should I do if I’m asked to take field sobriety tests?
REFUSE!! There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests. The moist common are commonly referred to as the Standardized Field Sobriety Tests (SFSTs). They are the Horizontal Gaze Nystagmus, the Walk and Turn and the One Leg Stand. Only these three tests (or exercises_ have been approved, standardized with respect to the instructions and scoring, and tested for validity by the National Highway Traffic Safety Administration. (NHTSA).
Unlike the chemical test, where refusal to submit may have serious consequences, (including license suspension and even additional criminal charges) you are not legally required to take any FSTs. Some officers will incorrectly state that you are required to take the tests and will even direct you to the language at the bottom of your Driver’s License that says,“Operation of a motor vehicle constitutes consent to any sobriety testrequired by law.” While a test of your breath, urine or blood may be required by law, there has never been a requirement that you take the FSTs. Officers will also tell you that your refusal to take the tests “can be used against you as evidence in Court.” All that means is that if your case goes to trial (about 1% of DUI Arrests), that the jury can be told you refused. You are then allowed to explain why you refused and your attorney can argue that the tests were not worthy of taking. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitably “fails”. There is almost never anything to be gained by taking these roadside tests. Politely refuse.
11. Why did the officer make me follow a penlight with my eyes to the left and right?
In order to gather evidence from you to justify arresting you for DUI. This is the “horizontal gaze nystagmus” (HGN) test, a mainstay in a DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk (“nystagmus” is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye’s tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.
This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer’s ability to recognize nystagmus and estimate the angle of onset. Unless the arresting officer is a Drug Recognition Expert (a special certification), or has given the HGN test a very large number of times and correlated those tests with the subsequent Blood Alcohol Content, the officer will not be permitted to draw any conclusions fro the jury about your performance.
12. Should I agree to take a chemical test? What happens if I don’t?
If you have previously refused a test of your breath, urine or blood, then failure to take the test now can subject you to up to a year in jail for a second or subsequent refusal. If you have never previously refused, the decision to take or refuse the breath, urine or blood test calls for you to weigh the likelihood of a high blood-alcohol reading, against the consequences of refusing. See the “Florida DUI Penalties” section for more details on these consequences.
If you refuse, your license will be automatically suspended for a period of time. The length of suspension depends on whether it is your first or subsequent refusal to submit to a chemical test. For example, a first refusal results in a 12 month suspension. A second or subsequent refusal will result in a minimum 18 month suspension (2nd refusal) and you can be charged with an additional crime of refusal. This new crime carries a maximum sentence of 1 year in the county jail.
If you take a chemical test and your blood alcohol level is over .08, this is evidence that will be used against you to prove you were driving under the influence. For a first time “failure” of the test, your license will be suspended for a period of 6 months, but you are entitled to apply for a hardship license after a 30 “hard suspension.”
13. Do I have a choice of chemical tests? Which should I choose?
Generally, you do not have a choice of tests. And in some instances the officer will request you take more than one test. For example, if you take a breath test and your blood alcohol level indicates an amount well below the legal limit, the officer may request a urine and/or blood sample to check for other drugs in your system. Most Florida police agencies rely primarily on the breath test.
Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate by far, however, is urinalysis. In Florida there are strict guidelines in place for the procedures to be used in taking and analyzing breath and blood samples. There are no such required criteria for urine tests.
14. The officer never gave me a “Miranda” warning: Can I get my case dismissed?
No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest and without the warnings.
Of greater importance is the failure of the police to advise you of the Florida “implied consent” law – that is, your legal obligation to take a chemical test and the results if you refuse. This can effect the suspension of your license. If the police fail to properly advise you of the consequences of refusing to take an approved test for the alcohol in your system, the suspension imposed by DMV may be set aside at a Formal Review Hearing.
15. Can I represent myself? What can a lawyer do for me?
You can represent yourself — although it is not a good idea. You could probably perform your own root canal, but that would not be a good idea either. “DUI” is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.
You may ask, “What can a lawyer do?” The answer depends on the attorney or firm. The answer might be, “Nothing,” (or worse) if he is not qualified in this highly specialized field — no more than a family doctor could help with brain surgery. A qualified attorney, however, can review the case for defects, move to suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, direct an investigation, have blood samples independently analyzed, review and analyze the in-car video if there is one and the implied consent video that is usually taken at the booking facility, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.
16. What is a “rising BAC defense”?
It is a technical defense related to the concepts of absorption and oxidation (elimination) of alcohol in the body.
It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING. It is not necessarily unlawful at the time of testing. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual’s BAC may continue to rise for some time after he is stopped and arrested.
Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .08%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .05%. In other words, the test result shows a blood-alcohol concentration above the legal limit — but his actual BAC AT THE TIME OF DRIVING was below. This is a defense that ordinarily requires that an expert “retrograde extrapolation” witness be retained for the trial to set the stage for your attorney to effectively argue this to a jury.
17. What is “mouth alcohol”?
Just what it sounds like–i.e., it is the presence of alcohol trapped in your mouth that causes your breath test results to be incorrect and high.
“Mouth alcohol” refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact. Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic “reflux” condition from gastric distress or a hiatal hernia can cause elevated BAC readings. If there is evidence that the breath test center personnel failed to make a continuous observation of you for at least 20 minutes prior to the breath test, the results may be suppressed.
18. What defenses are there in a DUI case?
Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Generally, the majority can be broken down into the following areas:
Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle.
Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
Incriminating statements may be suppressed if warnings were not given at the appropriate time.
Implied consent warnings.
If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may invalidate a DHSMV license suspension based upon a refusal to provide a breath/blood sample.
Under the influence
The officer’s observations and opinions as to intoxication can be questioned — the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as “failing”. Too, witnesses can testify that you appeared to be sober.
There exists a wide range of potential problems with blood, breath or urine testing. “Non-specific” analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state’s expert witness, and/or the defense can hire its own forensic chemist.
Testing during the absorptive phase
The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking “one for the road” can cause inaccurate test results.
This refers to the requirement that the BAC be “related back” in time from the test to the driving (see question #17). Again, a number of complex physiological problems are involved here.
Regulation of blood-alcohol testing
The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.
License suspension hearings.
A number of issues can be raised in the context of an administrative hearing before Florida’s Department of Highway Safety and Motor Vehicles.
19. What is an ignition interlock device and when is it required?
The ignition interlock device is an instrument which, when installed in an automobile, requires the driver to blow into the device before the engine will start.
The device detects the presence of alcohol on the driver’s breath and will disable the vehicle’s engine in that event. The device is expensive and must be calibrated regularly. The Court can order the device be installed in any vehicle owned or operated by the defendant, for up to three years. It will be considered a possible condition of probation whenever a defendant has a prior conviction, or where a first offender’s breath or blood alcohol reading is over .20 percent.
In addition, the DMV may require proof of installation of the device before granting a restricted license after a year of the suspension has elapsed.
20. What is an arraignment?
The arraignment is your first court appearance at which the Court will require you to enter either a “guilty” or “not guilty” plea.
Depending on the circumstances of your case, we will normally attend the arraignment for you, obtain a copy of the arrest report, enter a “not guilty” plea, and continue your case for a pre-trial conference with the prosecutor and/or judge. We can also get you excused from attendance not only at the arraignment but also at subsequent pretrial conferences.
21. Will I need to attend court?
If you are charged with a misdemeanor D.U.I., we can make most court appearances for you. It is our intention to protect your legal rights and we will advise you when or if it is in your interest to attend court with us. You will need to sign some waiver of appearance forms in our offices in order for us to get you excused. Most of our clients prefer not to have to go to Court unless it is necessary, so we attempt to get you excused whenever possible.
22. What is a “D.U.I.”?
D.U.I. stands for “driving under the influence,” and typically involves one of two criminal charges. These are:
- Driving under the influence of drugs or alcohol (Section 316.193 Florida Statutes)
- Driving with an Unlawful Blood Alcohol Level (UBAL); a blood or breath alcohol concentration of 0.08% or more .
DUI is not synonymous with “drunk driving.” The State is not required to prove that you were “drunk” at the time you were driving or in physical control of the vehicle. They merely must prove that your normal faculties have been “impaired” by the consumption of alcohol or controlled drugs and that because of that you should not be driving.
23. What is my “B.A. C.”?
This is your Blood Alcohol Concentration as measured by a blood, breath or urine test. The term BAL is used interchangeably to mean Blood Alcohol Level. It is normally expressed as a percentage, although it is unnecessary to understand how that number is arrived at in the various testing procedures.
24. What is “discovery”?
Discovery is the process by which we obtain all relevant documents, evidence and witness details from the prosecution that may assist in your defense.
Specific pleading have to be filed demanding this information and the Rules of Criminal Procedure establish the scope and time frames that control this process. in Florida, depositions are not available as a matter of right in misdemeanor cases, and that includes DUI misdemeanors. Upon good cause shown and specific request to the Court, an Order can be obtained to take depositions (answers to questions under oath) from witnesses sin your case. In the case of felony charges, we are always entitled to take the depositions of important witnesses. We must also be provided with the opportunity to inspect and copy reports, video tapes, audio tapes and other physical evidence. This provides a level playing field and increases that chances of settlement without the expense and anxiety of a trial.
25. Can I drive while awaiting my DMV hearing?
Generally, if you were otherwise privileged to drive, the answer is “Yes.”
If the police seize your Driver’s License on the date of your arrest because you either refused the breath test or produced a result of .08 or higher, your Uniform Traffic Citation will act as your Driver’s License for the next 7 days. It says so right on the citation. You have just 10 days to request a Formal Review Hearing from DMV, and when that request is timely made, they will issue a Temporary Driving Permit that is good for a period through 12 days after your scheduled hearing. This affords the Hearing Officer time to decide, issue a ruling and let you know the results of your hearing. Typically, this total will permit you to drive for about 5 weeks after the day of your arrest, although technically, your driving privilege has been suspended.
26. What is a restricted license?
Exactly that, a license that permits you to drive for limited and specific purposes, although your general and unlimited right to drive has been suspended.
This restricted license is also called a “BPO” (Business Purposes Only) license or a “hardship license.” If your license is otherwise valid, except for the suspension related to this charge, you may be entitled to a restricted license, which will enable you to drive to, from and during work, and to and from your home and alcohol program. You will also be permitted to drive to and from the Courthouse, your Probation officer, your attorney’s office, the Dr.’s office, the dentists office, the pharmacy and even the grocery store. We will assist you in applying for the restricted license, if it is available to you. WARNING- If you are stopped and found to be driving in excess of the restrictions, it is the same as Driving While License Suspended, and can result in jail.
27. What is a “Wet Reckless”?
The term “wet reckless” refers to a charge that has been reduced from a DUI arrest, and which carries less severe sanctions.
Reckless driving is a misdemeanor. It carries penalties of supervised probation, a fine, Court costs, either a DL suspension (or more likely a “restricted status” during the term of probation, and the possibility of up to 90 days county jail. Depending on the facts, this offense can be negotiated as an alternative to a DUI conviction in the settlement process. A conviction for “wet reckless” and dismissal of DUI charges can be a hard-fought victory, depending on the circumstances, but the following should be understood:
There is an important difference between a “dry” and a “wet” reckless. The term “wet” or “dry” denotes whether alcohol was involved in the commission of the offense. A conviction for a “wet reckless” will typically require the completion of a 12 hour DUI Counterattack Program, and may require completion of other classes as well, depending on the circumstances. The greatest advantage to a “wet reckless” reduction is that you do not receive a conviction for a DUI. This is important not only from an insurance perspective , but because of the enhanced penalties for any future DUI convictions.
An experienced DUI attorney can answer your questions
There are, of course an endless number of questions that can be posed about DUI and related cases. The questions above are among the more common and the answers are only brief summaries designed for the space provided here. You should not consider these answers to be legal advise. The appearance of these FAQs does not create an attorney client relationship. For more specific information and answers to your questions, you should contact The Defense Group for a Free Consultation with one of our Orlando DUI defense attorneys.
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