Frequently Asked Questions
1. What do police officers look for when searching for drunk drivers on the highways?
Police look for many things when looking for impaired drivers, however, the following list are the most common;
Turning with a wide radius
Straddling center of lane marker
Almost striking object or vehicle
Weaving , swerving, drifting
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
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
Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety.
2. If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?
A respectful response would be, "I would like to speak with an attorney before I answer any questions" is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication -- and it may explain the odor of alcohol on the breath.
3. 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, however, there is no right to an attorney until you have submitted to (or refused) blood, breath or urine testing. In some states, there is a right to consult with counsel upon being arrested or before deciding whether to submit to chemical testing. Of course, this does not mean that you cannot ask for one.
4. What should I do if I'm asked to take field sobriety tests?
There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, alphabet recitation. Most officers will use a set battery of three to five such tests. Unlike the request to provide a breath sample, which has some significant consequences on your driver's license, you are not legally required to take any FSTs. The reality is that officers have made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitable "fails"; a polite refusal may be adequate.
5. What is the officer looking for during the initial detention at the scene?
Typically, law enforcement is looking for the following list of clues, which was are traditional symptoms of intoxication taught at police academies:
Red, watery, glassy and/or bloodshot eyes
Odor of alcohol on breath
Fumbling with wallet trying to get license
Failure to comprehend the officer's questions
Staggering when exiting vehicle
Swaying/instability on feet
Leaning on car for support
Combative, argumentative, jovial or other "inappropriate" attitude
Soiled, rumpled, disorderly clothing
Stumbling while walking
Disorientation as to time and place
Inability to follow directions
6. Why did the officer make me follow a penlight with my eyes to the left and right?
This is the "horizontal gaze nystagmus" test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for eye jerking); if this occurs sooner than 45 degrees, it theoretically indicates an excessive blood-alcohol concentration. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the jerking when the eye is as far to the side as it can go.
7. Do I have to provide a breath or urine sample? What happens if I don't?
The quick answer is "No." You do not have to provide a breath or urine sample; however, the consequences of refusing to submit to a blood, breath or urine test will have an effect on your driver's license, which are as follows:
Your driver's license will be suspended for a 1 year on a 1st refusal and 18 months on a 2nd refusal. However, what they do not tell you is you should be eligible for a Hardship License, regardless. Of course, it would depend on any prior refusals or any outstanding issues with the DMV.
A 2nd refusal is now a separate crime; and may add jail time to the sentence for the DUI offense.
The fact of refusal can be introduced into evidence as "consciousness of guilt." Of course, the defense is free to offer other reasons for the refusal. Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.
8. Do I have a choice of chemical tests? Which should I choose?
You can ask for a blood draw at your expense, but law enforcement does not have to advise that you have a choice. However, be very careful about "setting that wheel in motion" as you may have just provided the State Attorney with evidence to convict you. A breath sample is not saved and cannot be re-analyzed by the defense. 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. Thus, if you are confident that you are sober, a blood sample is the wise choice; urine, being least accurate and most easily impeached, is the best option if you believe your blood-alcohol concentration is above the legal limit.
9. 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. However, the failure to advise you of Florida's Implied Consent Law is important which will have a direct effect on your driver's license.
10. The officer took my license and served me with a notice of suspension after the breath test: How can he do that if I'm presumed innocent?
It makes no sense and it is blatantly unfair, but see question 9, which provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit.