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DUI Defense

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DUI Defense

Since DUI has become so prevalent in our society, we have dedicated the following section of our website to this subject.

     •     Know the Facts

     •     Know Your Limits

     •     Know What To Expect

     •     Know Your Rights

     •     Know Your Options

     •     Know How To Make Wise Choices

     •     Know Who To Call

Know the Facts

Many people drink alcoholic beverages at social gatherings or during evenings out on the town. Most are responsible drinkers who would never intentionally drive drunk. Yet, numerous "social" drinkers are caught up in the legal system each year--charged with Driving Under the Influence (DUI).

Although we certainly DO NOT condone drunk driving, it is NOT illegal to drink and drive in the state of Florida. However, it IS illegal to drive while impaired due to alcohol. And, that gray area between completely sober and outright drunk is where many "social" drinkers find themselves when they notice the flashing blue lights in their rearview mirrors. Most are totally unprepared for what is about to happen to them, even though they will have to make some very important decisions that can have a major impact on their futures.

DUI is a very serious offense and even a first time conviction triggers consequences that go far beyond the penalties handed down by the courts. In addition to a hefty fine, license suspension, and the very real possibility of jail time, convicted DUI offenders can expect to face a battery of behavior modification courses, psychological counseling, community service requirements, and substantially higher insurance premiums.

In 2009, there were more than 2,000 citations for DUI in Brevard County. Many of those individuals didn't realize they had crossed that nebulous line which made them legally "impaired" until after they were arrested and charged. Take a few minutes to read this article. It gives you the information you need to make thoughtful decisions about drinking and driving before you find yourself in a situation where every decision you make has adverse consequences.


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 In 1993, the Florida Legislature passed a law effective January 1, 1994, lowering our Blood Alcohol Content (BAC) standard of impairment from .10 to the more stringent .08 BAC. This is the point at which you are considered legally intoxicated. Although this is by no means the only method that the police will use to determine whether or not to charge you with DUI, it is the most objective measure of impairment. The chart shown above provides a very rough approximation of the number of drinks required to reach various BAC levels for individuals within specific weight ranges and timeframes. Charts like this should only be used to get a general idea of the extent to which each drink can impact a person's BAC. They should definitely NOT be used as absolute predictors of BAC levels, since a wide variety of other factors enter into the chemical equation. Alcohol effects everyone differently. If you don't normally drink, a single beer or mixed drink could leave you unfit to drive. Your body's fat content, whether you've eaten or not, and even your gender can drastically affect your BAC level. One thing is certain. If you feel even slightly out of control, you are probably well over the limit. Develop the ability to objectively assess your own condition and always err on the safe side when deciding whether or not to drive.

Know What To Expect

Now, it's back to those flashing blue lights that we mentioned earlier. You've been stopped as the result of erratic driving behavior or some other traffic violation. What happens now?

- Before You Were Stopped

The officer probably looked for certain signals of intoxication in your driving pattern. They include making wide radius turns, straddling lane markers, appearing drunk, weaving, swerving, driving more than 10 mph below the speed limit, and other signs of erratic driving.

- After The Stop

The officer will attempt to make probable DUI judgments based on observations of your physical condition such as flushed face, red or watery eyes, slurred speech, fumbling with wallet or purse, failure to understand questions or directions, instability on feet, inappropriate attitudes, and other similar signals.

- The Field Sobriety Test

If the officer suspects impairment, he/she will attempt to gather additional evidence by asking you to perform a series of physical tests. They typically include touching finger-to-nose, walking heel-to-toe on a line marker, reciting the alphabet or counting backwards, eye movement while focusing on a moving object, and standing on one foot. These are voluntary tests which you may politely decline to perform.

- You May Be Videotaped

You should know that in most jurisdictions you are being videotaped. The taping probably began prior to the stop and will continue throughout the process. The resulting videotape will be used against you if you are charged with DUI.

- The Breath Test

When you sign for your driver license, you implied by consent to submit to any chemical test if requested by law enforcement. Although the law implies a choice of breath or blood testing, in most jurisdictions you will be asked to take a breath test. Further, in many jurisdictions, it is their policy to only allow you an independent chemical test if you first submit to theirs. Often we hear it said "no breath, no blood". Meaning, if you don't take our breath test, we won't take you to the hospital for your requested independent blood test. You are entitled to request such a test, but it would be at your own expense. If you agree to take the breath test, it will typically be performed at the site of the traffic stop, by a mobile unit equipped for that purpose, or back at the station. You should note though, you are already under arrest. You may refuse to take the BAC test but such a refusal can result in some adverse consequences regarding your drivers license and such a refusal will be argued as consciousness of guilt by the State.

- Incarceration

If you are arrested and charged with DUI in Brevard County, you can expect to spend at least the next eight hours confined in the county correctional facility at Sharpes. You will have your initial appearance the following day and typically released on bail. Bail for a first offense DUI is usually set at $500, assuming the arrest did not also involve an accident or other extenuating circumstances.

Know Your Rights

Unlike most crimes, DUI has a complex two-dimensional nature that involves both the court system and the Department of Highway Safety and Motor Vehicles (DHSMV). According to law, driving is a privilege not a right. Therefore, under some circumstances, you may prevail in court and still lose your license for varying periods of time.

- Refusing A Field Sobriety Test

Since this is a voluntary test, there is no adverse legal impact for refusing to take the test. However, it's very likely that the police officer will regard that refusal as an "admission of guilt" and move forward with an arrest.

- Refusing A Breath Test

Refusing a breath test deprives the police department of valuable evidence against you and also triggers an automatic DHSMV administrative suspension of your license for 12 months, or 18 if you have previously refused. Of course, if you take the test and blow a .08 or higher, your license will also be administratively suspended for 6 months.

- 10-Day Window To Appeal DHSMV Action

You only have 10 days following your arrest to file an application for a Formal Administrative Review Hearing to challenge the validity of the automatic license suspension. This hearing is completely separate from the court case and can determine the fate of your driving privileges regardless of what happens in court.

- The Judicial Process

If you choose to mount a defense against the charges, the process of hearings and procedural activities normally takes 60 to 90 days to reach trial. Depending on the strength of the prosecution's case, many first offense DUI arrests are plea bargained during this period. If the case goes to trial, it will take place before a county judge and a six-person jury.

- Right To An Attorney

Even though you've been arrested, the courts have ruled that law enforcement officers may request that you take a chemical BAC test without giving you the opportunity to consult with an attorney prior to the test. The rationale is that the request for a BAC test is NOT a "critical stage" in the arrest process; thus, denying you the right to counsel in making such an important decision.

Know Your Options

Being stopped for possible DUI raises a series of uncomfortable yet crucial options. Over the years, we've repeatedly heard the following questions--often after it's too late to make informed decisions. Each situation is different and only you can determine the right course of action. However, careful consideration of these questions could help you make more rational and informed choices if you ever face a potential DUI arrest.

- What should I say if the officer asks if I've been drinking?

It's not illegal to drink and drive in Florida, so admitting to one or two drinks should not be considered incriminating. However, it is an admission and can assist the State in making a case against you. Perhaps it is better to simply state that your attorney recommended that you never answer any investigatory questions without prior consultation.

- What is the officer looking for when he initially questions me?

He/she is looking for any discernible signs of intoxication such as the odor of alcohol, flushed face, slurred speech, inability to concentrate and react appropriately, and a variety of other visible clues.

- Should I submit to the field sobriety test?

It's entirely up to you. The test is voluntary so you can politely refuse, but your refusal could be considered a "consciousness of guilt". You should be aware that by the time the officer asks you to perform a field sobriety test he/she has likely decided that you are impaired and is just gathering additional evidence. On the other hand, if you are in good physical shape and are fairly dexterous you may want to take the tests. Try the tests now (Field Sobriety Physical Tests discribed under the “Know What To Expect” section). If you have trouble performing them in the comfort of your own home, imagine how you will do under the harsh spotlights and pressure of the moment engendered by a police stop.

- Should I submit to a breath test?

Again, this is a decision only you can make. If you decide against taking the test, the DHSMV will automatically suspend your license for one year on a first offense. This suspension is for refusing to take the test and will remain in effect even if you prevail in court--unless you successfully challenge the DHSMV action in a formal hearing. You must apply to DHSMV for that hearing within 10 days of your arrest. If you agree to the breath test, the results can be used as evidence in determining your guilt or innocence. Also, the breath test is based on complex scientific processes, so it must be administered according to very strict standards or it could be ruled inadmissible. Note the amount of time that has passed from the time you were stopped and the time you actually take the test.

- Once I'm handcuffed and taken to the station, what are my chances of being released even if I pass the breath test?

Unfortunately, once you have been subjected to the very public humiliation of being handcuffed and taken away in a police car, the police officer has already made an arrest. You will almost certainly face prosecution for DUI regardless of whether you decide to take the breath test or not.

- Do I have a choice of taking a blood or breath test?

Although the law implies that you have a choice between taking a blood or a breath test, in reality most jurisdictions claim that the choice is theirs. Typically, you will only be given the option of taking a blood test at your own expense after you have submitted to a breath test.

- If I refuse to take the breath test and my license is suspended, how difficult is it to get a hardship license?

If your license is suspended for refusal, an application for a hardship license will not be considered for 90 days. After that, the process is the same as it is if you fail the breath test and have your license suspended. In most cases, a hardship license is granted for either work or business related use.

- If I am charged with DUI, is there any way to avoid spending the next eight hours in jail?

Unfortunately, no.

Know How To Make Wise Choices

As you can see, an arrest for DUI starts a cascading nightmare of complex judicial, administrative, and evidentiary procedures that are difficult and expensive to overcome. Although many constitutional law experts agree that the web of DUI laws and administrative procedures abrogate some of your constitutional rights, the laws are on the books and are being stringently enforced. In a situation where the deck is stacked against you and a defense is costly, the wisest course of action is to avoid putting yourself at risk.

Choose A Designated Driver when you plan to go out with a group. Some groups of friends assign the non-drinking role on a rotating basis.

Call A Cab when you feel that you may be reaching your limit. Or, ask the bartender to do it for you. Remember, you can buy an awful lot of $20 cab rides with the money you will save on mounting a DUI defense.

Know What To Expect. Carefully review and consider your options and have a strategy in mind before you have that first drink.

If you are arrested for DUI, contact an experienced DUI attorney as soon as possible.

Know Who To Call

For most of us, a DUI is probably the most serious criminal prosecution we will ever face. It is also most complex. If you are arrested and charged with DUI, interview several attorneys and select an experienced litigator. You will need someone who specializes in criminal and DUI cases and knows the process inside and out.

Hiring a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. Or, give us a call and arrange for a free initial consultation.

Know Your Limits

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