DUI FAQs

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[bc_collapse title=”1. DUI Defense: 2 Stage Process” open=”y/n”]

The process of defending a DUI is separated into two distinct phases.

Phase 1 is the decision to waive OR to contest the Administrative Suspension (the 10 day rule)

Phase 2 is defending against a DUI conviction in the court system.

PHASE 1: SECURING A HARDSHIP LICENSE BY WAIVING THE FORMAL REVIEW HEARING OR CONTESTING THE ADMINISTRATIVE SUSPENSION OF YOUR DRIVING PRIVILEGE “THE NEW 10 DAY RULE”

For first time offenders of the DUI law, the “new 10 day rule” will allow individuals to immediately obtain a Business Purpose license by (1) appearing at the DMV within 10 days of your arrest and signing a waiver of the hearing to contest the administrative suspension of your driving privilege and (2) signing up for DUI school.

“Business Purposes Only” is a restricted driver’s license limiting your driving privilege to any driving that is necessary to maintain ones livelihood, including work related driving, driving for medical and religious purposes, driving for educational purposes and driving to purchase necessities such as groceries.

For repeat offenders of the DUI law and those who still wish to contest the administrative suspension, upon issuing you a DUI citation, the State of Florida and the Department of Motor Vehicles will seek an administrative suspension of your driving privilege. Upon your arrest, the actual DUI citation will act as your temporary permit to drive unless it is checked that you are ineligible for this temporary permit. If your license was suspended prior to your DUI, you may be ineligible for this permit.

Please be aware that you have only (10) days from the date of your dui arrest to contest the administrative suspension of your driving privilege. This must be done in writing by petitioning the department of motor vehicles for a formal review hearing.

If you took the breath test and registered over the legal limit (0.08), the Department of Motor Vehicles (DMV) will seek to suspend your driver’s license for a period of (6) months. A formal review hearing can be scheduled to contest this suspension of your driver’s license. Once this formal hearing has been requested in writing, the Department of Motor Vehicles will set the hearing at a future hearing date and will issue you a “Business Purposes Only” license.

“Business Purposes Only” is a restricted driver’s license limiting your driving privilege to any driving that is necessary to maintain ones livelihood, including work related driving, driving for medical and religious purposes, driving for educational purposes and driving to purchase necessities such as groceries.

If you are successful in changeling the administrative suspension through the formal review process, the Department of Motor Vehicles will reinstate, fully, your driver’s license. If the DMV finds that the suspension was lawful, they will impose a (6) month suspension of your driver’s license. For the first (30) days of this suspension, the DMV will preclude any type of driving (know as 30 days hard time). For the remaining (5) months, you will be considered for a hardship license under the following criteria (1) that you do not have two or more DUI convictions on your record; (2) that you have enrolled in DUI School.

If you refused the breath and/or urine test, the Department of Motor Vehicles (DMV) will seek to suspend your driver’s license for a period of (12) months. A formal review hearing can be scheduled to contest this suspension of your driver’s license. Once this formal hearing has been requested in writing, the Department of Motor Vehicles will set the hearing at a future hearing date and will issue you a “Business Purposes Only” license.

“Business Purposes Only” is a restricted driver’s license limiting your driving privilege to any driving that is necessary to maintain ones livelihood, including work related driving, driving for medical and religious purposes, driving for educational purposes and driving to purchase necessities such as groceries.

If you are successful in changeling the administrative suspension through the formal review process, the Department of Motor Vehicles will reinstate, fully, your driver’s license. If the DMV finds that the suspension was lawful, they will impose a (12) month suspension of your driver’s license. For the first (90) days of this suspension, the DMV will preclude any type of driving (know as 90 days hard time). For the remaining (9) months, you will be considered for a hardship license under the following criteria (1) that you do not have two or more DUI convictions on your record; (2) that you have enrolled in DUI School.

PHASE 2: DEFENDING THE DUI IN COURT

Upon your arrest for DUI, the State of Florida, acting through the State’s Attorney’s Office, will seek a conviction (an adjudication of guilt) in your case. A DUI conviction can have far reaching and lasting consequences including a negative impact on your reputation and livelihood.
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[bc_collapse title=”2. Can I obtain a temporary permit to drive while my license is suspended?” open=”y/n”]When you are arrested for DUI, you may be permitted to drive for the first 10 days. 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.[/bc_collapse]
[bc_collapse title=”3. What is the difference between a misdemeanor and felony?” open=”y/n”]A Misdemeanor charge is 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.

A Felony charge is considered more serious than a Misdemeanor and is 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, lengthy terms of incarceration in State Prison and significant fines.[/bc_collapse]
[bc_collapse title=”4. Can I settle my case without a court appearance?” open=”y/n”]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.[/bc_collapse]
[bc_collapse title=”5. What fees and expenses can I expect to pay for legal representation?” open=”y/n”]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 less than that of a complex one; single charges less than that of multiple charges.

Generally, I divide the legal fees that I charge into Pretrial and Trial fees. In other words, I 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.

My office accepts major credit cards and payment plans are available in order to provide payment flexibility for the client.[/bc_collapse]
[bc_collapse title=”6. What do police officers look for when searching for drunk drivers on the highways?” open=”y/n”]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
  • Weaving
  • Driving on other than designated highway
  • Swerving
  • Speed more than 10 mph below limit
  • Stopping without cause in traffic lane
  • Following too closely
  • Drifting
  • 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.[/bc_collapse]
[bc_collapse title=”7. If I’m stopped by a police officer and he asks me if I’ve been drinking, what should i say?” open=”y/n”]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. 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.[/bc_collapse]
[bc_collapse title=”8. Do I have a right to an attorney when I’m stopped by an officer and asked to take a field sobriety test?” open=”y/n”]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.[/bc_collapse]
[bc_collapse title=”9. What is the officer looking for during the initial detention at the scene?” open=”y/n”]The traditional symptoms of intoxication taught at the police academies are:

  • 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

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[bc_collapse title=”10. What should I do if I’m asked to take field sobriety tests?” open=”y/n”]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.

Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. 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”. Thus, in most cases a polite refusal may be appropriate.[/bc_collapse]
[bc_collapse title=”11. Why did the officer make me follow a penlight with my eyes to the left and right?” open=”y/n”]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 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. Because of this, and the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states; it continues, however, to be widely used by law enforcement.[/bc_collapse]
[bc_collapse title=”12. Should I agree to take a chemical test? What happens if i don’t?” open=”y/n”]The decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.

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.

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.[/bc_collapse]
[bc_collapse title=”13. Do I have a choice of chemical tests? Which should i choose?” open=”y/n”]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.

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.[/bc_collapse]
[bc_collapse title=”14. Can I represent myself? What can a lawyer do for me?” open=”y/n”]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.[/bc_collapse]
[bc_collapse title=”15. What defenses are there in a dui case?” open=”y/n”]Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:

  • Driving. 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.
  • Probable cause. 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.
  • Miranda. 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.
  • Blood-alcohol concentration. 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.
  • Retrograde extrapolation. 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.

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[bc_collapse title=”16. My friend violated her Pre-Trial(SOR) by picking up a new charge, how long is she likely to sit in jail?” open=”y/n”]

Q. My friend was on Pre-Trial (SOR) and she violated it by picking up a new charge for domestic violence against her boyfriend and went to jail at that time. She got out after two days and then just recently she went in to take a “drug-test” and they hauled her off to jail. How long is she likely to sit in there before seeing a judge, and what do you think the probable outcome will be after seeing the judge?
Thank you for your help!

A. This is a difficult question to answer without knowing more about the original charges and what the terms of the Pre-Trial release were. Having said that, if the defendant was out on bail (either bond or her own recognizance); any violation of the terms of her release could cause the bail status to be revoked. In other words, if she was free while her case was pending, she can now be put in jail for violating the judge’s terms placed on her prior to her release. This usually happens when the defendant gets arrested again or gives a dirty urine sample. It all depends on what the terms of release were. It could conceivably be a curfew violation. Unless her lawyer or public defender motions the court for a bail hearing, your friend may stay in jail pending the resolution of her court matters. Finally, it’s almost impossible to foresee how the judge will rule on her bail status or pending criminal cases. If there was a domestic battery, we need to know how badly the victim was injured. Does the victim want the State to pursue the charges or do they want them dropped? It’s clear this situation has a lot of moving parts that need competent legal representation.
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[bc_collapse title=”17. How do I know if I qualify for public defender I am unemployed does that help?” open=”y/n”]
Q. Retail theft

A. To determine if you qualify for the public defender, you must make and application and pay a $50 fee. At a minimum, you must disclose the following financial information:

a. Net income, consisting of salary and wages

b. Other income including social security benefits, veterans benefits, workers’ compensation, family support, pensions, unemployment, rent, trusts and gifts.

c. Assets including cash, bank accounts, stocks, bonds, certificates of deposit, equity in real estate, a boat, motor vehicle or other tangible property.

d. All liabilities and debts. There is a $50 application fee as well but keep in mind that no indigent person can be denied defense counsel if they fail to pay.
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[bc_collapse title=”18. How much time does court have to punish on VOP” open=”y/n”]
Q. Violation of probation (VOP) 14 months ago. Out with monitor. No violation on monitor for 14 months. Prosecutor file motion to revoke bail. Is this legal. I had VOP 14 months ago and was already punished by wearing monitor.

A. The simple answer to your question is that you must adhere to the terms of your probation until your probation is terminated through the courts. If you are saying that you violated your probation 14 months ago but the prosecutor is only filing his motion now, I believe your attorney can make a good argument as why your bail should not be revoked. However, if you violated probation 14 months ago and now have a new violation, then it is customary, although there are exceptions, for the prosecutor to file a motion to revoke your bail. VOP’s can be difficult to deal with because you are always subject to serving the jail or prison sentence for the crime you pled guilty to. That is why accepting probation should not be the end of the fight for your attorney. If you are going to accept probation, then your attorney should fight for the least amount of time or be prepared to file a motion for early termination after a period of time.
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