Got DUI? Answers To Frequently Asked Questions

December 13, 2017

 

Over my many years as an attorney, especially, as a criminal defense attorney; I have compiled an extensive list of questions that have been asked from either my clients or students on DUIs. The following is a pretty extensive list of frequently asked questions on DUI law. 

 

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
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.

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, 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.  Traffic stops do not invoke the right to an attorney.

4. 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:

Flushed face
Red, watery, glassy and/or bloodshot eyes
Odor of alcohol on breath
Slurred speech
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


5. 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. 

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 7, which provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit.  

11. Can I represent myself? What can a lawyer do for me?

You can represent yourself -- although it is not a good idea. "Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues. What can a lawyer do? 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, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.

 

12. What will it cost to get a lawyer?

This varies, of course, by the reputation and experience of the lawyer and by the geographic location. In addition, the fee may vary by such other factors as:

Is the offense a misdemeanor or felony?
If prior convictions are alleged, the procedures for attacking them may add to the cost.
The fee may or may not include trial or appeals. 

Whatever the fee quoted, you should ask for a written agreement and make sure you understand all the terms.
 

13. What is the punishment for drunk driving?

In Florida, the minimum/mandatory sentence on a 1st time DUI can be quite daunting, to wit,  

  1. Must be found Guilty,

  2. Driver's license will be suspended for 6 months,

  3. Fine of at least $500, with court costs additional

  4. Probation for 1 year,

  5. 50 hours community service,

  6. 10 day car impound,

  7. Ignition interlock device (not in all cases, however),

  8. No alcohol during the period of probation,

  9. Victim Impact Panel (Again, not in all cases),

  10. DUI school and any recommended treatment

14. What is a sentence "enhancement"?

Most states increase the punishment in drunk driving cases if certain facts exist. The most common of these is an earlier conviction for the same or a similar offense -- usually within five or ten years of the current offense. Other commonly encountered enhancements can include:

A child was in the car at the time.
The defendant was traveling 20 or 30 miles over the speed limit at the time.
The breath alcohol concentration was over .15
The defendant refused to submit to a chemical test.
There was property damage or injury.

Any priors? 

 

15. What is a "rising BAC defense?" 

 

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 .12%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .08%. 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.  An expert would be most helpful in explaining these facts to a jury.

16. What is "mouth alcohol?"

"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 can have a huge impact. Mouth alcohol can be caused in many ways. Belching, burping, hiccuping or vomiting within 20 minutes of 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.

 



 

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