DRIVING UNDER THE INFLUENCE
Following an arrest for DUI, your next move is to call our attorneys to discuss the best strategies for fighting the case. Our attorneys have an average of 35 years’ experience. All our attorneys are former prosecutors and one of our trial attorneys is also a former law enforcement Sgt. who supervised the DUI enforcement section of a municipal police department, was General Counsel for the 3rd largest Sheriff’s Department in Florida, served as President of the Florida Association of Police Attorneys and was an Assistant Attorney General for the State of Florida. Our firm focus exclusively on criminal defense with an emphasis on DUI defense.
We are available 24/7/365. When you call, one our attorneys “on call” after hours, weekends and holidays to answer your questions. We are in court in in six (6) counties regularly fighting DUI cases. When appropriate, we also appear at the Bureau of Administrative Reviews (BAR) office of the DHSMV to fight the administrative suspension of a driver’s license following the DUI arrest.
Short time fuse:
Unlike many other offenses, once arrested for a DUI, you have only 10 days in which to make an important decision about your driving privilege. Most of our cases involve a breath test reading or a refusal to submit to breath testing. If you took the Intoxilyzer 8000 breath test and blew over a.08, or if you refused to take the test, then your driving privilege has already been suspended for 6 months by the operation of state law. What you do next will determine whether you will be forced to live without a driver license for a mandatory period of from 30 days to 18 months. You need to talk with an experienced DUI attorney before making that election.
We also represent clients with blood or urine test result. The blood test looks for the presence and concentration of alcohol but also tests for the presence of illegal drugs. The urine test only looks for drugs in the system, and is usually administered when there is no evidence of alcohol or the breath test shows little or no alcohol. Find out what you need to do right now to protect your rights and fight for the best results in your case. We can help you protect your driver’s license as you fight for an outright dismissal of the criminal charges.
Call today to arrange for a FREE CONSULTATION on the circumstances of your case. In Osceola, Orange Seminole or Volusia Counties call (407) 831-1956. For arrests in Lake, Sumter or Marion Counties, call (352) 742-9090.
Hiring a Local DUI Defense Attorney
Nobody would attempt to do surgery or a dental procedure on themselves. There is a reason for the old expression, “A man who represents himself has a fool for a lawyer.” Hiring an experienced attorney early in your case is crucial to protecting your privilege to drive and increasing your chances of avoiding a conviction. At The Defense Group, our attorneys take a full-service approach to defending each aspect of the case including:
- Making a determination as to whether your better option is to request a formal hearing before the Bureau of Hearings and Appeals or to immediately request a temporary driving permit until the case is decided.
- If there appear to be solid grounds on which to ask a hearing officer to invalidate the suspension you received the day of your arrest, then we demand the formal review hearing to protect your driver’s license from the administrative suspension within the first 10 days after the arrest.
- Handling the first court date (called the “arraignment”) In fact, once you retain The Defense Group we will file a written Plea of Not Guilty, a Notice of Appearance as your attorneys of record, and a waiver of your appearance. You will be excused from this and most other court proceedings so you can go about your life (work, school, etc.) while we handle your case.
- Filing and litigating all pre-trial motion hearings which can include a motion to suppress evidence, a motion to dismiss the charges, motion related to discovery, motions in limine (to exclude certain items of evidence or to get a court ruling allowing our evidence,) etc.
- Negotiating with the prosecutor from the State Attorney’s Office to resolve the case for lesser charges such as reckless driving.
- Conducting a jury or bench trial to fight for a “not guilty” verdict.
We represent clients arrested for driving under the influence throughout Central Florida.
Unique Qualifications for Fighting Drunk Driving Cases
While The Defense Group is a full-service criminal defense law firm, handling cases from the simplest misdemeanors to complex drug and white-collar crimes, sex crimes and violent crimes, we have always had an emphasis on DUI defense.
Peter Zies was a prosecutor in Seminole County for years where he prosecuted DUI offenses on a regular basis. As a prosecutor, he worked regularly with the law enforcement agencies and their officers in preparing the cases for resolution. He has practiced law in Central Florida for over a quarter of a century.
Hal Uhrig was a police Sgt. on the Gainesville Police Department, supervising the DUI enforcement activities of the department. He was that departments first Police Legal Advisor on graduation from the University of Florida Law School. He then spent for (4) years as the General Counsel for the Orange County Sheriff’s Department and as Legal Advisor to the ten (10) municipal police departments I Orange County. He attended the FBI National Academy and served not only as an Assistant State Attorney in both the 8th and 9th Judicial Circuits but as an Assistant Attorney General in Tallahassee. He also became certified on the Intoxilyzer 8000.The Intoxilyzer 8000 is the only breathalyzer currently used in Florida. If your DUI case involves a breath test reading over .08, then you need an attorney focused on fighting these types of charges.
Both Mr. Zies and Mr. Uhrig have been members of the National DUI College, the oldest and most prestigious DUI defense organization in the US. Both have obtained impressive results for hundreds (100’s) of their clients including dismissal of all charges, verdicts of Not Guilty at trial, and reduction of charges during their combined 70 years of experience.
Is a DUI a misdemeanor or a felony?
The correct answer is “Yes.” Depending on your prior record and the circumstances of your arrest, a DUI may be either a misdemeanor or a felony. Most DUI cases in Florida are charged as a misdemeanor. The classification of the DUI becomes more serious if any aggravating factors exist, such as a prior conviction, a crash with property damage, a child passenger, or a BAC reading at .15 or above. A DUI can’t be charged as a felony unless a crash resulted in death or serious bodily injury, or the offense is a 3rd within 10 years of any prior conviction, or a fourth DUI, regardless of how long since your last conviction.
Even a first-time misdemeanor DUI is a serious matter. Even for a first DUI, charged as a second-degree misdemeanor, a conviction comes with penalties that are typically more severe than most first-time third-degree felonies. The trials tend to be more complicated than many felony charges because of the nature of the scientific evidence including field testing and chemical testing.
The full impact of a DUI conviction is much broader than the legal penalties assessed by the Court. Your employment may be at risk. Your insurance may be cancelled or your rates increased by thousands a year. It may even be used in a custody proceeding I the case of a divorce.
DUI trials are complicated because many of the prospective jurors are nondrinkers, reformed alcoholics, or have religious reasons not to drink alcohol. DUI cases are also subject to jury prejudice due to publicity and the pressures from citizen action groups such as Mothers Against Drunk Driving (MADD). The prosecutors receive special training in the prosecution of DUI cases. The office policy is typically one of “take no prisoners” I order to present to the public as an office out to protect them from dangerous drunk drivers. For a non-lawyer to try to oppose this formidable partnership of the police and prosecutors is like taking a knife to a gunfight. It is not likely to turnout well.
If you have been arrested for a DUI, you need an experienced, DUI defense attorney who is focused on fighting these unique types of cases. Call us for a FREE CONSULTATION so that you can find out more about our extensive qualifications as DUI defense attorneys in Central Florida.
Stage One – Formal Hearing or no?
The first stage in a DUI case is protecting your privileges to drive. After the arrest, the officer will take your driver’s license and issue you a notice of suspension if:
- you blew over the legal limit of .08; or
- you refused to take the requested breath, blood or urine test.
Your DUI citation operates as the notice of suspension. The officer will send the notice to the Florida Department of Highway Safety and Motor Vehicle (DMV). The citation itself operates as a 10-day permit so you can continue to drive during the first ten (10) days after your arrest. During that time, you must do one of the following:
During those 10 days after the arrest, you must do one of the following:
- retain an attorney to demand a formal review hearing and obtain your 42-day permit so you can continue to drive without interruption;
- waive your right to contest the suspension and request immediate reinstatement (requires that you first enroll in DUI school and personally appear at the Bureau of Administrative Review Office with the proof of enrollment); or
- do nothing and suffer the 30 or 90-day hard suspension during which time you cannot drive for any reason (thereafter you can request a “business purpose only” license for the rest of the suspension period).
Call us to find out why this early election is so important and why the circumstances of your individual case dictate which option is best. In any event, you have only 10 days to act or you will get the “hard suspension” described above.
Stage Two – The Formal Review Hearing to Contest the Suspension
If the decision has been made to request and attend the Formal Review Hearing, then our task is fight to invalidate the DUI administrative suspension. The formal review hearing can be an important part of the case. The evidence gathered during that hearing can often be used to your advantage in the criminal case.
Our attorneys attend every formal review hearing at the Bureau of Administrative Review (BAR) Office, located depending on the county of arrest. We obtain a subpoena for every witness listed in the documents unless we have a good reason not to subpoena the witness. We thoroughly review everything in the DMV’s packet, the discovery from the State Attorney’s Office and any video evidence before the hearing.
Reasons the Administrative Suspension is Invalidated
Florida law requires that the hearing officer SHALL invalidate the suspension if the arresting officer or the breath test operator fails to appear. Other reasons to invalidate the suspension might include:
- the arresting officer does NOT submit the police reports and other required documents to the DMV in time for the hearing;
- insufficient evidence to support one of the issues in the case;
- an illegal stop, detention or arrest occurred;
- one breath test reading is below .08, and one is at or above .08;
- the officer gave incorrect advice or information about the consequences of taking the test or refusing;
- the defendant recanted his refusal to submit promptly and after that agreed to take the chemical test.
- a failure to read Miranda warnings before a custodial interrogation;
- forcing or compelling the defendant to participate in field sobriety exercises;
- the twenty-minute observation period was not followed just before the breath test;
- the breath test machine did not return a valid reading over the legal limit;
- the breath test operator or agency inspector did not have a valid permit; or
- the breath test machine was not properly inspected or maintained.
Even if all the witnesses appear at the hearing, other important objections can be raised including the lack of competent and substantial evidence as to one of the required issues in the case.
If the hearing officer refuses to invalidate the suspension that decision can be appealed to a Circuit Court judge through a Writ of Certiorari.
The one serious downside to contesting the administrative suspension is that if you are not successful, then a hard suspension will start. During that time, you cannot drive for any reason. At the end of the hard suspension, as long as you have enrolled in DUI school and are otherwise eligible, you can obtain a “Business Purpose Only” license for the rest of the suspension period so that you can drive to and from work, school, and church. For many people, even a 30 or 90-day hard suspension will work a difficult hardship. If you cannot get to work, deliver the kids to and from school, get to necessary medical appointments, you may consider waiving the hearing and getting your temporary DL immediately.
The Length of the Administrative Suspension
The length of the suspension and hard suspension are listed below:
First DUI Offense
- 6 months (30-day hard suspension) if you took the test; or
- 12 months (90-day hard suspension) if you refused.
Second DUI Offense
- 12 months (30-day hard suspension) if you took the test;
- 12 months (90-day hard suspension) if you refused with no prior refusal; or
- 18 months (18-month hard suspension) if you refused with a prior refusal.
Third or Subsequent DUI Offense
- 12 months (12-month hard suspension) if you took the test;
- 12 months (12-month hard suspension) if you refused with no prior refusal; or
- 18 months (18-month hard suspension) if you refused with a prior refusal.
Stage Three: Fighting Criminal Charges
After your arrest, the clerk’s office will schedule your first court date called the “arraignment” in front of the judge. For individuals that do not have an attorney, the court will read the charges and ask the person to enter a plea – either guilty, no contest or not guilty. If the individual enters a guilty or no contest plea, then the court will adjudicate the person guilty of DUI and impose a sentence which could include jail time and probation.
A guilty plea is essentially the same as a “no contest” plea. A conviction results in either case and you can never seal or expunge that mug shot, arrest record, or court record of the conviction. IN fact, after that conviction you will never be permitted to seal or expunge any other arrest record, even if all charges are later dropped. You should NEVER enter a plea of no contest or guilty at an arraignment.
If you cannot afford a private attorney, then you should ask the court to appoint the services of a public defender. You can say, “I’d like to enter a plea of “NOT GUILTY, but I need a Public Defender to help me with my case.” The Court will have you fill out a Financial Affidavit to determine if you are eligible for appointment of a Public Defender. If the Court finds that you are not entitled to a Public Defender (you are not poor enough), then you will need to search for a private attorney you can afford. Even if all you do is have a consultation with an attorney to look at your “discovey” (the State’s evidence against you), that is a better option that just going in and pleading guilty.
You should always talk with a DUI lawyer about the evidence in your case before considering a plea to the charges. Many of these cases are reduced to less serious charges such as reckless driving. Your criminal defense attorney can always fight for a reduction depending on the facts of the case.
- Enhanced DUI; with enhanced penalties for:
- DUI with property damage
- Breath or blood test BAC at 0.15 or Over
- DUI with a minor child in the vehicle
- Simple DUI for refusal or a BAC between 0.08 and 0.15
- Reduced charges or penalties:
- Reckless driving with an adjudication (often called the “wet reckless”)
- 6 points in on your driver’s license
- often comes with an increase in insurance premiums
- the adjudication means you can never seal or expunge the record
- Reckless driving with a withhold of adjudication
- no points on your driver’s license
- you may be able to seal all records (mug shot, arrest record, court record if you have no prior convictions)
- Reckless driving with an adjudication (often called the “wet reckless”)
- Careless driving (a civil infraction either with or without an adjudication)
- Charges dropped or dismissed
By entering the plea as charged without any reduction, you may be taking the most disruptive, expensive and prolonged route to resolving your case.
Fighting the Criminal Charges
Whenever you retain The Defense Group to defend you, we will waive your appearance at arraignment and enter a not guilty plea on your behalf. The attorneys at The Defense Group will (when appropriate) also file motions to do the following:
- Demand that the state attorney’s office provides us with a copy of all evidence in the case including the police reports, accident report (if any), video at the scene or the police station, and information on chemical testing of the breath, blood or urine (this is called demanding “Discovery.”);
- Attack the legal sufficiency of the charging document; and
- Move to suppress, exclude or limit certain evidence in the case.
After the arraignment, additional court dates may be scheduled. Depending on the County these proceedings may be called a “Pretrial Conference,” a “Status Conference,” a “Disposition Date,” a “Docket Sounding,” a “Pleas Negotiation Conference,” or some other title that the court prefers. In most cases, you can waive your appearance at these court dates. During these initial court dates, your attorney will secure a copy of all evidence in your case. Your attorney may also file additional motions to suppress or exclude that evidence.
After the investigation is complete and all information has been provided by the Assistant State Attorney, then the case will be scheduled for motion hearings, a pre-trial conference, trial. While the Rules of Procedure provide that you can waive your appearance at all pretrial conferences, some courts may require your appearance at one or more of these hearings. We always advise our clients to follow the court’s orders, whether we believe them to be correct or not.
Why You Should Fight DUI Charges:
A conviction may save you thousands of dollars in fines, court costs, expenses for DUI school, vehicle impound, time and energy to complete 50 hours of community service and drastically increased insurance premiums. Avoiding a DUI conviction might also save you thousands of dollars each year for the next three (3) to five (5) years in increased car insurance premiums. After a DUI conviction, you may be required to obtain a high-risk and more expensive form of insurance called “FR-44” insurance. Hiring an experienced lawyer to fight your case may help you avoid all or some of these consequences.
A common way to avoid a full DUI conviction occurs when the prosecutor agrees to amend the charge to “reckless driving.” Frequently, the attorneys at The Defense Group file what we call “stop motions.” If the officer’s decision to stop the vehicle was unreasonable under the Fourth Amendment, then all evidence in the case could be excluded which could lead to all charges being dropped. This happens more often that you might expect.
DUI arrestees come from all walks of life. Our DUI clients frequently have never had any interaction with the police. They are not “criminals” as we use that word.
This is a new and terrifying experience. The long-term consequences can be Draconian.
So, what is a DUI?- The Legal Definition – Two Alternative Ways of Proving DUI
The statute provides for two different theories that the prosecutor might use to prove that you are guilty. First, the prosecutor can attempt to show that you were under the influence of alcohol or other intoxicating substance (drugs) to the extent that your normal faculties were impaired due to alcohol intoxication or drug impairment.
To make the prosecutor’s job easier, the Florida Legislature has provided a short-cut. The prosecutor can attempt to show that your performance on a chemical test, such as a breath or blood test showed a blood alcohol level of .08% or above. If your BAC (blood alcohol content) is .08 or above, you are guilty of driving with an “Unlawful Blood Alcohol Content” and that will support a conviction for DUI. It does not matter that there is no evidence that you were actually “impaired.” You have too much alcohol in your system.
The potential penalties are the same, regardless of the theory under which you are prosecuted. Certain enhanced penalties apply if the prosecutor proves that your breath test reading was over .15, including the dreaded (and expensive) ignition interlock device, and a higher fine. The charges are also more serious if you are charged with DUI with property damage, or while a minor child was in the vehicle.
If you have been arrested for DUI, whether it is a breath test, urine test or blood test case, a refusal case, or crash with property damage, then call us today to discuss the case.
Refusal to Submit to the Breath Test
In a DUI case, often the strongest and most damning evidence is the Intoxilyzer results (the breath test), blood test, or urine test showing that the driver was intoxicated with alcohol, prescription drugs, or a controlled substance. If the driver refuses to submit to a chemical test (called a “DUI Refusal BAC”, then the State no longer has that evidence. Instead, the prosecutor will them attempt to admit evidence that the driver “refused” to submit to the test and other circumstantial evidence. The prosecutor will argue that this refusal demonstrates a “consciousness of guilt.” They will argue that he refusal is evidence that the driver believed that if he submitted to the chemical test, the test results would show that he was intoxicated from alcohol or impaired by prescription drugs or other controlled substances.
One important cog in the machinery of defending a DUI is our attempt to exclude evidence of either the test results or a refusal from the jury’s ears. In determining whether to admit or exclude the evidence that the driver refused to submit to the test the Court will consider state and federal constitutional provisions, case law, the rules of evidence, common law provisions, statutory rules, and administrative rules. Furthermore, if the law enforcement officer violates a driver’s constitutional or statutory rights to an attorney before the blood, breath or urine test, then the Court can exclude or throw out any evidence that the defendant declined to take the chemical test.
Many refusal cases are difficult for the prosecutor to take to trial because the prosecutor’s most important piece of evidence, the test result, does not exist. If you have been charged with DUI refusal, then talk with an experienced attorney before you decide how to proceed with your case.
If you have previously had your driver license suspended for refusing to submit to a chemical test, then the consequences for a second or subsequent refusal will probably be an additional criminal charge for a first-degree misdemeanor. In July of 2002, the Florida Legislature criminalized a second refusal to breath, blood, or urine test. You can be sentenced to up to a year in jail for a second or subsequent refusal, even if you win your DUI trial. At The Defense Group, we generally tell our clients that the consequences of a refusal are so high, that especially if they have a previous refusal, they are better off to take the breath test.
Defenses exist to fight this separate charge of refusing to submit to a chemical test for a second time. Contact the attorneys at The Defense Group, to discuss defenses that may be available under Florida law for the particular facts and circumstances of your case.
I thought I was entitled to remain silent and not incriminate myself?
Too many of us get our legal education from watching TV. If you have a constitutional right to remain silent under the Fifth Amendment of the United States Constitution, then why would the jury be told that I refused to take the roadside exercises or the breath, blood, or urine test?
Whether the fact that you declined to perform a roadside exercise or submit to a chemical test depends on the particular facts and circumstances of your case. Florida criminal law provides that when a law enforcement officer has sufficient legal cause to believe that a driver has committed the criminal act of driving under the influence, then the officer can ask the driver to participate in roadside agility exercise or blood, breath or urine test.
The fact that the driver refused does not usually elicit a Fifth Amendment violation of the privilege against self-incrimination because the refusal is relevant to the driver’s consciousness of guilt. Therefore, if the driver declines to take the test, the prosecutor can usually introduce this evidence. It will be up to your defense attorney to argue that the refusal proves no such thing. We can point out how absurd the exercises (we are not allowed to call them “tests”) are and how they do not actually test your “normal faculties.”
Furthermore, the prosecutor can argue that the refusal shows that the defendant knew that if he submitted to the chemical test, then the test results would show that the driver had drugs or alcohol in his system. Again, we offer counterarguments that everyone has read how inaccurate these tests are and they do not trust the police to administer them fairly. Why was the driver not offered a blood test taken by someone at the hospital?
Florida DHSMV – Administrative Suspension Information from the Florida Department of Highway Safety and Motor Vehicles (DHSMV) concerning the administrative suspension rules following a DUI in Florida.
Florida DUI Statutes Related to DUI- – [Click links below]
- 316.193 Driving under the influence; penalties.
- 316.1932 Tests for alcohol, chemical substances, or controlled substances; implied consent; refusal.
- 316.1933 Blood test for impairment or intoxication in cases of death or serious bodily injury; right to use reasonable force.
- 316.1934 Presumption of impairment; testing methods.
Although not much discussed here, Florida has more miles of waterways than any state save Alaska and we have thousands of BUI arrests each year. Most of the discussion about defending DUI applies as well to BUI cases, but there are differences in both the statutes and the defense strategies.
Florida Statutes Related to BUI (Boating Under the Influence) [Click links below]
- 327.35 -Boating under the influence; penalties; “designated drivers.”
- 327.352 Tests for alcohol, chemical substances, or controlled substances; implied consent; refusal.
- 327.35215 Penalty for failure to submit to test
- 327.353 Blood test for impairment or intoxication in cases of death or serious bodily injury; right to use reasonable force.
- 327.354 Presumption of impairment; testing methods
- 327.355 Operation of vessels by persons under 21 years of age who have consumed alcoholic beverages.
- 327.359 Refusal to submit to testing; penalties.