In Florida DUI means a criminal charge has been made against a person for driving or being in actual physical control of a motor vehicle in Florida and that the person’s normal, mental or physical faculties were impaired by alcohol or a chemical or controlled substance such as marijuana or other mind-altering drug, or that the defendant’s blood or breath alcohol level was .08% or higher at the time of driving or being in control of a motor vehicle.
Florida’s Implied Consent to Submit to blood, breath and urine testing – As a condition of accepting the privilege to drive in Florida, each motorist must consent to take a blood, breath and urine test approved by Florida to determine the amount of alcohol or presence of chemical or controlled substances in a person’s body.
Challenging a DUI Case
One of the main battlegrounds in DUI cases is to challenge the breath, blood or urine test as reliable, accurate and performed substantially in compliance with existing rules and procedures. The State of Florida has the burden of proving that these tests meet the required legal standards.
It is the job of the criminal defense attorney to carefully look into all of the relevant regulations and information relating to the subject test to determine if it meets all of the legal standards. If the evidence is not reliable, accurate, or in compliance with the rules, it is not an “approved” test and may be suppressed or excluded as evidence in the case.
There are cases where a breath test indicating an alcohol concentration of .08% or higher has been defended successfully. This defense is often based upon a video of the defendant’s performance of the field sobriety exercises along with the manner and content of the driver’s speech. If the driver looks and acts as if his normal mental and physical faculties are not impaired, this can create a powerful argument that the breath test is incorrect because if it were accurate the driver would be demonstrating signs of impaired balance, speech or judgment.
DUI, first offense, in Florida is a misdemeanor and carries up to six months in the county jail along with fines, probation, DUI school, victim impact panel, license suspension for up to one year, vehicle impoundment, and in some cases installation of an ignition interlock device on a vehicle during a period set by the court.
It is the job of the criminal defense attorney to carefully look into all of the relevant regulations and information relating to the subject test to determine if it meets all of the legal standards. If the driver accused of DUI causes property damage, personal injury or had a breath alcohol concentration or blood alcohol concentration over .15%, the penalties are increased although the crime remains a misdemeanor. If the suspected driver causes serious bodily injury or death to another person, then the DUI offense is reclassified as a felony and carries from a minimum of five years imprisonment to a maximum of 30 years imprisonment. These penalties are dependent upon the facts of the case, the harm inflicted to other persons and whether the accused driver knew a crash had occurred and failed to give information or aid at the time of the crash. Florida also provides certain mandatory minimum sentences including four years imprisonment for the offense of DUI Manslaughter. Repeat DUI offenses are more serious than first offenses.
Depending upon the proximity of the prior conviction for DUI and its circumstances, a second or third or fourth DUI conviction carries increasingly harsher penalties, including in some cases mandatory minimum jail sanctions and driver license revocations without the benefit of reinstated driving privileges for restricted driving purposes.
Any DUI charge will involve some administrative suspension of driving privileges in Florida by the Department of Highway Safety and Motor Vehicles, Division of Driver Licenses. Depending on whether the driver took the required breath, blood, or urine test or refused the test and whether the offense was a first or subsequent DUI will determine the exact period of license suspension or revocation from the Florida Division of Driver Licenses.
It is very important to note that once a DUI arrest has occurred the law enforcement officers will normally seize the defendant’s driver’s license and commence an administrative suspension of driving privileges in Florida for a period of time commencing on the date of arrest. Florida law provides for an administrative hearing to give the driver due process of law to investigate the circumstances of the arrest and license suspension, which permits the driver to subpoena the arresting officer and other relevant witnesses to the administrative hearing. This hearing must be requested in writing from the Department of Highway Safety and Motor Vehicles within ten (10) days of the date of the DUI arrest and suspension of privileges. If you fail to request this hearing, your right to the hearing will be waived and the administrative suspension will become final for the period of time authorized by Florida law.
Under current Florida law if a person is charged with a first offense DUI and has a breath or blood alcohol test result of .08 or above, the Department of Highway Safety and Motor Vehicles will administratively suspend the person’s driver’s license for six months. If the driver waives his right to have a formal review hearing to determine the lawfulness of the administrative suspension, the driver will normally be immediately eligible for a business purposes license for the duration of the suspension. If a driver refuses the requested tests, then the Department will administratively suspend the person’s driving privileges for one year on a first offense. If the driver waives his right to the administrative hearing, he will be immediately eligible for a business purposes only license for the one year period of suspension.
It is recommended that you contact an attorney experienced in DUI defense as soon as possible so you can receive case specific advice that is tailored to your unique case and to protect all of your rights, including your right to obtain driving privileges that would be reinstated for business/restricted purposes.
Florida has a law which makes it a first degree misdemeanor (the most serious class of misdemeanors) to refuse an approved breath, blood, or urine test after having been warned that to do so is a misdemeanor and having previously refused one or more of Florida’s approved tests to determine the amount of alcohol in a person’s breath or blood, or the presence of any chemical or controlled substances as defined by Florida law.
Blood test – The operator of a motor vehicle in Florida gives consent to an approved blood test when there is reasonable cause to believe the operator was driving under the influence of alcohol or chemical or controlled substances as defined; the person appears for treatment at a hospital, clinic, or other medical facility; and the administration of a breath or urine test is impractical or impossible.
The other circumstance requiring a blood test in Florida occurs when a law enforcement officer has probable cause to believe that a motor vehicle driven or in the actual physical control of a person under the influence of alcoholic beverages, or chemical or controlled substances has caused the death or serious bodily injury of another person. This law permits the law enforcement officer to use reasonable force to require submission to this blood test.
The constitutionality of this second ground to draw blood has been called into serious question by the United States Supreme Court in its decision in Missouri v. McNeely, 133 S.Ct. 1552 (2013). Since the 1966 U.S. Supreme Court decision, in Schmerber v. California, 384 U.S. 757 (1966), Florida law has permitted law enforcement officers to withdraw blood samples for alcohol testing from drivers provided (1) there is probably cause to believe the driver was DUI and (2) the driver has caused the death or serious bodily injury of another person.
In most cases it is best if the driver being investigated for DUI invokes his right to remain silent and thus declines to answer any questions about the driving incident or the use of alcohol, chemical or controlled substances. The McNeely court qualified the longstanding rule in Schmerber holding, “In drunk driving–investigations the natural dissipation of alcohol in the blood stream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” Therefore, the existence of an exigency in this context must now be determined case by case based upon the totality of the circumstances. McNeely at 1564, 1568. Thus, it appears that the McNeely case has significantly changed the law relating to the procedures that must be followed before a blood sample can be taken from a driver involved in a crash causing death or serious bodily injury. The McNeely decision now requires that a law enforcement officer obtain a defendant’s informed consent to draw his blood or obtain a search warrant directing the officer to draw blood from the defendant or demonstrate some exigent circumstance beyond the natural dissipation of alcohol in the defendant’s blood. Absent one or more of these factors a blood draw, pursuant to Florida Statute 316.1933, is subject to a motion to suppress evidence under the rule in Missouri v. McNeely.
Blood test accuracy and reliability are dependent upon many important factors including the use of a non-alcoholic swab to draw the sample, proper labeling on a container that provides an anticoagulant and preservative to stop the normal degrading process of blood, rules regarding how blood is stored, whether the blood sample has been refrigerated before testing and the certification and training of the laboratory technician who tested the blood and the laboratory equipment used for blood testing. All of these aspects of blood testing must be checked to assure compliance with all legal rules and laboratory standards.
Statements of the driver to law enforcement officers in most cases – In most cases it is best if the driver being investigated for DUI invokes his right to remain silent and thus declines to answer any questions about the driving incident or the use of alcohol, chemical or controlled substances. The misconception that if a person remains silent his or her lack of cooperation can and will be used against them should never deter a citizen from invoking their constitutional right against self-incrimination. This is particularly true when it comes to answering detailed questions about where you ate, where you drank, how much you drank, whether you drove, whether you were in a crash, whether you believe your normal faculties were impaired, and if so, to what degree and what you might do if you could turn back the clock. In short, your silence cannot be used against you but your statements can.
Let Mr. Dirmann help you with your DUI charge
He has represented clients charged with DUI for more than 40 years in the courts of Florida. As a Florida Bar Board Certified Criminal Defense Lawyer, he is trained in the law, rules of evidence, and criminal procedures to advise, defend and protect the rights of citizens accused of DUI.
Whether you win or lose your DUI case will have a large impact on your ability to drive, your ability to hold a job, your criminal record, and in some cases whether your freedom will be taken away by a jail sentence. Mr. Dirmann has published an article on “DUI Field Tests and Breath Tests” in the Encyclopedia of American Civil Liberties and Rights, 2007, Vol. I, at 290.
Call Mr. Dirmann today and give yourself the chance to discuss your case with a Florida Bar Board Certified Criminal Trial Lawyer with more than 40 years of experience, defending the rights of drivers accused of DUI in Florida.