Other DUI Information

The most important part of your DUI case is obviously the arrest. The process by which you are arrested and brought to criminal trial is exhausting. It affects every part of your life while your case is proceeding through the system. But there are also other laws in place that affect whether that arrest will ever take place. In addition to the well-known criminal laws there is legislation in the following areas that will affect your case. These areas are:

• DUI Road Block/Checkpoint Law
  • These laws control when, why and how a checkpoint can be conducted. If the checkpoint is not in compliance with these rules, it is possible to have your stop suppressed.
• Field Sobriety Tests
  • These rules govern how an officer must conduct the roadside exercises in order for them to be valid.
• Implied Consent Laws
  • This is the law that is printed on your driver’s license that states that by accepting responsibility of a Florida driver’s license you are agreeing that you will submit to a breath test if necessary or face consequences.
• Breathalyzer/Breath Test
  • There are rules that govern how an officer must conduct a breath test. There are also rules that govern how the machine must be taken care of and operated. If the officer or the maintenance officer does not comply with these rules your test may be found invalid.
• The License Suspension and Formal Review Hearing
  • These are the laws that deal with the civil side of your case. If you blow over a .08 your license is automatically suspended for a period of at least 6 months before any charges are ever filed in your criminal case. The formal review hearing allows you to challenge that suspension.

These laws affect everything from how you can be stopped and investigated for possible DUI charges to whether you keep your privilege to drive. Having a good understanding off these laws can help you to make better decisions regarding your everyday activities as well as your criminal case. In order to have a complete understanding you should contact a licensed and experienced DUI attorney.

DUI ROAD BLOCK AND CHECKPOINT LAWS

A DUI Roadblock or Checkpoint serves as a way for officers to conduct warrantless searches of drivers. They are usually set up during holidays known for high alcoholic consumption such as New Years Eve, St. Patrick’s Day and 4^th of July. The roadblock or checkpoint allows an officer to pull someone over to investigate for DUI without witnessing bad driving or other traffic infractions. Because of this many cases have challenged roadblocks and checkpoints citing 4^th Amendment violations.

DUI Roadblocks and Checkpoints have been held to be constitutional by the U.S. Supreme Court under the decision in Michigan v. Sitz, 496 U.S. 444, 455 (1990). In its decision, the Supreme Court agreed that these types of stops are a form of warrantless search. But the Court recognized that these types of searches may be necessary to protect the safety of the public.

In order to find a balance between the need for public safety and the protections afforded by the Constitution, the Court outlined the factors that must be adhered to in order for a checkpoint to be upheld. As a result of this ruling each state has formed guidelines to comply. In Florida some of these factors are:

1. There must be a legitimate concern for public welfare.
   1. DUI Checkpoints are the most common, but they may also have checkpoints for missing children or in cases of national security.
   2. It is possible for an individual to be arrested during a different type of checkpoint not targeted for DUI arrests. But that is not common.
2. There must be a written set of lawful guidelines for the officers to follow to ensure restrictions on operational procedures and vehicle selection.
   1. For example, the stops may not be random. There must be a set and discussed pattern as to who will be stopped. For instance, every car, or every other car, or every 4th car.
   2. There must be a written protocol as to where exercises will be conducted and who will conduct them
3. There must be an announcement or public statement informing the public at large that a checkpoint will be conducted, although it is not necessary that they announce the exact location.
4. There must be adequate lighting and parking for safety.
   1. Safety concerns include proper warning that roadblocks are ahead through use of signage, lighting and proper funneling of traffic.
   2. Safety also encompasses making sure that officers are easily seen and identified.
5. The degree of intrusion and length of the stop must be restricted
   1. For instance: The officers can make initial contact by stating something such as “I am Officer ____, this is a checkpoint, have you been drinking this evening?”
   2. If during this brief exchange they find reason to believe you may be DUI (or that another type of crime is being committed), they may ask you to pull over and investigate further. Otherwise they must let you go.

These are just some of the rules law enforcement must follow if they wish to conduct a checkpoint type sweep for DUI. If the law enforcement agency or agencies conducting the checkpoint or roadblock do not adhere to these strict guidelines, then it is possible that a judge will suppress your initial stop. If this happens your case would be dismissed. If you have been arrested for DUI as a result of a roadblock or checkpoint, you should consult an experienced DUI attorney immediately to discuss your options.

FIELD SOBRIETY TESTS

Field Sobriety Tests or “FSTs” are the exercises the officer will ask you to perform roadside if you are stopped and suspected of DUI. The FSTs were designed by the members of the National Highway Traffic Safety Association also referred to as “NHTSA.” Officers who conduct FSTs are trained under the NHTSA guidelines. In order for these FSTs to be effective, they must be conducted properly.

The most common FSTs performed roadside are:

• Horizontal Gaze Nystagmus or “HGN” or “the eye test”
  • In order for an officer to testify in Court about the results of this test, he or she must be qualified by the Court.
• The Walk and Turn
• The One Leg Stand

These three tests are the most common. They are also the exercises that are testified to most often in a court of law.

If an officer encounters an individual with physical disabilities, or if the officer conducts the three most common exercises and is not quite sure of the findings, there are additional tests that could be requested. These exercises are:

• Finger to Nose
• Alphabet Test 

These tests are not as accepted as the HGN, Walk and Turn and One Leg Stand. However, they can be administered if the officer feels it is necessary.

Why does an officer ask a person to perform FSTs?

There are several cases that state the odor of alcohol is not enough to convict a person for DUI. There must be some other indication of impairment. But how an officer would be able to investigate to make a determination was done differently by different law enforcement agencies for a number of years. In the 1970s, NHTSA decided that there needed to be a uniform procedure in place to decide if a person was impaired. As a result of this uniformity, the NHTSA personnel established the FSTs.

Officers will ask a person to perform the FSTs in order to determine if the person is impaired. The officers look for certain “clues’ or “indicators” in each exercise to try to make a determination as to a person’s sobriety. For each small thing a person does wrong they get a point or a check. These points or checks are also known as “clues.” If a person exhibits enough “clues” they are determined to be impaired and arrested for DUI.

Whether performance on FSTs are an accurate representation of a person’s impairment is litigated everyday in courts around Florida and the United States.  Defense attorneys across the United States challenge their accuracy as it does not properly take into account the physical limitations and history of an individual. Also defense attorneys point out that they are not always performed correctly by the officer in the field. But today they are widely accepted by the Courts as evidence of impairment in a DUI trial.

 

How are FSTs peformed?

They FSTs that a person is asked to perform are supposed to be standardized. This means the officer is supposed to ask a person to do the same thing, in the same way, for every case, every time. There is a certain directions an officer must give an individual when asking them to perform FSTs. The officer must also demonstrate the exercise correctly (except for the HGN). The FSTs described below give a general overview of what is required for each FST.

HGN

The HGN is performed by asking the individual to gaze at a fixed object such as a pen or a light. They call this pen or light a “stimulus.” The officer asks the person to keep their head still, and to follow the stimulus with their eyes only. The officer has the person’s eyes move toward their “maximum deviation.” Maximum deviation is as far as the eye can go in one direction or another. As the eye is reaching this maximum deviation the officer looks for an involuntary jerking or slight movement of the eye to determine if the person is under the influence.

In order for this test to be effective, the jerking or nystagmus must occur before “the onset of 45 degrees.” Officers guess as to the 45 degree angle in the field. In training they use a protractor. But in practice they may not be performing the exercise correctly. This can lead to an inaccurate result.

WALK AND TURN

The walk and turn test is one that is recognized by many people as an FST. Even though people known that if you are suspected to be a drunk driver an officer will make you “walk a line” they are unfamiliar with how this FST really works. It is not as easy as walking a line, and there are many things an officer will look for that one would never consider as a sign of impairment.

For the walk and turn, the officer will ask the driver of the car to stand with their hands to their side. They will instruct them that they need to stand with their left foot on the line, with the right foot in front of it, also on the line. The heel of the right foot must touch the toe of the left foot. The person will be instructed to stand in manner until the officer completes the instructions. The officer will then explain the exercise while demonstrating it. He will instruct the person to take nine heel to toe steps, touching the heel to toe, counting each step out loud, while remaining on the line. When the person gets to nine, they are to keep the foot on the line, take a series of small steps to make a turn, and then take nine heel to toe steps back. Again they must stay on the line and count each step out loud. The hands are to remain at the person’s side.

This is known as a “divided attention” exercise. You must physically perform the steps correctly while mentally counting the steps correctly out loud. You must also keep your hands at your side which is counter-intuitive. The officer will look to see if you fail to stay on the line, fail to count correctly, forget to touch heel to toe or fail to turn correctly. Every time you do something “wrong” the officer counts it against you in your DUI investigation.

At times the officer will ask the individual to “imagine a line.” According to the official NHTSA manual, the officer is to put down a line made of tape if an actual line is not available. This is rarely done.

ONE LEG STAND

The one leg stand is another FST that most people are familiar with. A common statement is “I could not do this sober.” This statement is often used by an officer as an admission of guilt when it is not really how an individual means it at the time.

This one leg stand exercise is performed the way it sounds. The officer tells you to stand on one leg, while raising the other leg 6 inches above the ground. While doing this you must count out loud to 30 and you must not raise your arms to help you balance.

The office will “count off” if you put your foot down to regain balance, if you sway, if you raise your arms, if you bend your leg, or if you do not count correctly. This counts against you in the officer’s DUI investigation.

This FST is extremely difficult. Although it sounds simple enough, there are several small things you can do “wrong” in the officer’s eyes.

These three FSTs are what are known as “the standard battery.” They are the most commonly used FSTs by law enforcement and are the most accepted in the field. Being the most common does not make them 100% accurate. Sometimes an officer will have to use other types of FSTs to try to make a determination.

Sometimes an officer encounters a person with one leg, or who is in a wheelchair or who has another medical condition making these impossible to perform the standard FSTs. In some cases the officer can’t make up their mind about the results of the first three FST results so they opt to go further. If any of these situations arise the officer may ask the party to perform the finger to nose or alphabet test.

FINGER TO NOSE

When you are asked to perform the finger to nose, the officer will have you stand with your feet together and head tilted back (if you are in a wheelchair he will ask just for your head to be tilted back). The officer will ask you to extend your arms out to your sides and extend your first finger out as if you were pointing. The office will then say “left” or “right” and you will be required to touch the tip of your finger to the tip of your nose.

If you use the wrong finger, or if you miss your nose, the officer counts it against you. If you sway or lose balance while your head is tipped back this also counts against you. If you use the pad of your finger instead of the very tip, some officers will hold that against you as well.

The finger to nose exercise measures a person’s depth perception as well as the ability to follow directions. It is entirely possible to “fail” the test because you have no depth perception, even if you are not impaired.

ALPHABET TEST

In movies and parodies of DUI stops, it is the alphabet test that is usually chosen for the spoof. It is the easiest to make fun of because it seems as though it would be so easy to perform. But it is designed to be a bit more difficult.

The alphabet test is very basic. The officer will ask you to recite a certain portion of the alphabet, but not the whole thing. For example, they will ask that you recite C-Q, or G-P to see if you can do this correctly. You are not allowed to “sing” the alphabet. You must recite it slowly. At one time there was a request to recite the alphabet backward. But that is not standard practice at this time.

Depending on your performance on one or all of these FSTs, an officer will take you to jail or allow you to go home. It is not often that you will be allowed to go home, even though officers will tell you otherwise. But even if you “flunk” the FSTs, your attorney will still be able to defend you and challenge your DUI.

How does a defense attorney challenge my performance of the FSTs?

There are several issues that can arise if you perform these roadside tests. The more DUI trials the attorney representing you has participated in, the better they will be at successfully challenging the officer’s perspective of your performance. Successfully challenging the FSTs can result in a favorable verdict of not guilty!

How do you challenge the HGN?

HGN measures nystagmus. Nystagmus is the involuntary jerking of the eye. There are many, many types of nystagmus that occur naturally in the eye. Officers are usually unaware of the naturally occurring types of nystagmus that can occur. Inexperienced officers can also perform the test incorrectly. In most jurisdictions the officer must have a separate qualification in order to be able to testify to the results of HGN in a court of law.

Also, according to many studies, HGN can only occur when you have a BAC or BrAC of .10 or higher. Yet the “legal limit” in most states is .08. If you have a result of less than .08 in your blood or breath test, you have a good basis to challenge the officer on the stand as to whether or not they really knew what they were doing.

How do you challenge the walk and turn?

The officer who is instructing the walk and turn knows what he or she is looking for as far as “clues” or “points”. They know that the tasks they are asking you to perform are not normal. People do not stand in an uncomfortable manner on purpose. They don’t walk heel to toe. They don’t walk tightrope style on a line without using their arms.

A good defense attorney will point out how the walk and turn test really does not show anything related to your normal faculties. Also, in cases where a video is shown, what the officer says he or she saw is often not correct. There have been many cases where there is a report that a person stumbled or fell or stepped off the line and the video clearly shows that not to be the case. This can lay the groundwork to successfully challenge an officer’s credibility.

How do you challenge the one leg stand?

The one leg stand is one of the easier FSTs for an attorney to challenge. Of all the FSTs, this one is understood by many jurors to be difficult. Many are sympathetic and understand that they may not be able to perform this particular FST at any time.

Not many people can stand on one leg for 30 seconds. Let alone stand and count while under pressure from law enforcement. If they do, it is natural to raise your arms to help steady yourself. Yet using your arms is “a clue” that is used to show you are impaired.

Standing or balancing on one foot by the side of the road is not an activity usually performed by an individual on a daily basis. With all of that a good attorney will cross examine the officer as to how your performance standing on one leg has any bearing on your driving skills.

How do you challenge the finger to nose?

The finger to nose test measures depth perception. Some people just don’t have it. Depth perception is an ability to properly judge distance. This is why some people need help backing out of a space or are constantly walking into things. They have no depth perception. Others have a problem with left and right. This can occur naturally in people, not because they are impaired. Another factor is that even if they touch their nose with the pad of their finger (which is what most people consider the tip) they are counted off. When an officer says “tip” they mean the area directly under your fingernail. So when a person uses the pad of the finger and not the tip, it is a matter of misunderstanding the officer or miscommunication rather than impairment that leads them to perform the FST incorrectly. This misunderstanding can lead to their arrest. A g.ood defense attorney knows how to point this out and use it to the client’s advantage.

How do you challenge the alphabet test?

It is very unfortunate, but there are many people who are illiterate in our society. There are also several individuals who have another language other than English spoken at home. In these cases it is unreasonable to ask someone to recite the alphabet. In addition, the reason we learn the basics set to music, such as the alphabet, is because it is a more effective learning tool for memory. Most people can sing the words to their favorite song with no problem, but if they were to learn the same words as a poem it would be more difficult. Music helps us learn. To ask someone to repeat any time of information that was rhythmically learned out of song and out of context is counter intuitive. Defense attorneys who are faced with challenging the alphabet test are quick to point these issues out to the jury panel in order to explain any shortcomings in the exercise by their clients.

These are just a few ways an attorney can challenge the FSTs when defending you in your case. In order to see how these challenges may affect your case you should speak with a qualified DUI attorney.

IMPLIED CONSENT LAWS

Florida has an implied consent law. It is found in Florida statute 316.1932. The law states that:

“Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved. . . . test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.”

This means that if you accept a Florida driver’s license and drive in Florida, and you are arrested for DUI, you have to submit to a breath test or you can face criminal charges.

Under the statute, failure to submit to any lawful breath test will result in the suspension of your license for 1 year if it is your first time refusing to take the test. If it is a second or subsequent refusal, your license will be suspended for a period of 18 months.

If you refuse to take a breath test more than once, you can be charged criminally for refusing. Refusal charges are misdemeanors. They can charge you with the refusal even if you are not charged with DUI.

In addition, refusing to take a breath test can be used against you in a court of law. The State will use it as evidence of your guilt. The State will argue that you knew you would “be over the limit” so you refused. This argument is known as “consciousness of guilt.”

Can you challenge a refusal?

Yes. In order for implied consent to apply, you must have been lawfully arrested for DUI. If your attorney is able to successfully challenge the arrest, the refusal may be dismissed. In addition, in trial, you can present to a jury the many reasons that you may have had for refusing the test.

Can I speak with an attorney before I take a breath test?

Probably not. The courts have held that Miranda and the right to counsel does not apply to breath testing and implied consent. Many individuals ask for an attorney before taking the test. It is a common misconception that a test can be thrown out solely on the basis of asking to speak with an attorney before testing. But it may be understandable to a jury when addressing the issue at trial.

Does implied consent extend to urine tests?

Yes! If an officer believes you were under the influence of drugs and as a result arrests you for a drug DUI, you must submit to a urine test. If you do not, then you suffer the same consequences as if you had refused the breath test.

NOTE: Many times an officer will arrest a person for DUI because they feel the person is under the influence of alcohol. They will transport the person to the jail and request a breath test. When the person blows “below the limit” the officer gets upset and then asks for urine. In these cases it may be possible to challenge your refusal to give urine. Only an attorney can advise you as to whether you may have a defense to refusing urine testing.

Can I challenge a refusal?

You can challenge an alleged refusal of a breath test in both the administrative review hearing and the criminal court. One determination is not binding on the other. But if you win your challenge at the administrative review, you can avoid an automatic suspension of your license for one year.

Does implied consent mean I have to submit to a blood test?

Not necessarily. There are only certain circumstances where you have to give a blood sample. Most of these cases involve death or serious bodily injury of another individual as a result of your driving. Otherwise, in most cases you can give consent to have blood taken if you wish but it is not required by law.

If an officer has told you that you MUST give blood, contact an attorney immediately!!

What if I want a blood test?

If you are arrested and taken to jail, you can request an independent blood test. BUT you can’t refuse a breath test and demand a blood test and remain in compliance with the implied consent law. You must submit to the breath test, and then the officers must make reasonable accommodations to allow you to have the blood taken. Unfortunately, “reasonable accommodation” usually means that they leave you in a room with a phone book and a phone and tell you to find a lab. This seems unfair, and it is. However at this time most jails get away with this practice.

If for any reason you have refused testing, or if you have asked for independent blood testing and been denied, you should speak with a knowledgeable attorney to discuss your defenses.

BREATH TESTING

The most litigated part of DUI is the breath test. The breath test is performed by a machine that measures the amount of alcohol in your lungs. That result is measured and provided in a printout to law enforcement. Law enforcement then uses that result to determine if you are “over the limit.”

If you are found to be “over the limit” the State need only introduce that result in Court to prove your guilt. It is only by successfully challenging the result and the breath testing machine that your case can be won in trial if the result is allowed to be presented.

The Intoxilyzer 8000

In Florida, the approved breath machine is the Intoxilyzer 8000. It is manufactured by a company in Kentucky known as CMI. All law enforcement agencies use this machine. There are strict rules about how the test must be performed. There are also laws that govern how the machine must be maintained and how documentation of its performance must be recorded. In some cases failure to follow these laws and rules can result in your test being found unreliable or inadmissible.

So how does the Intoxilyzer work?

When you drink alcohol, it enters the stomach. From the stomach it travels through the intestines where it is absorbed into the blood stream. From there various parts of the body work to get the alcohol out of your system. This includes your lungs. According to the supporters of the machine, some of the alcohol content is absorbed into the deep part of the lungs. As you exhale this “deep lung” air the machine measures the portion that has alcoholic content.

When you blow this “deep lung air into the Intoxilyzer 8000, the machine measures how much alcohol is present and reports the result. The method the Intoxilyzer uses to detect the alcohol is called infrared spectroscopy.

Infrared spectroscopy measures molecules of different substances by the way they absorb light. The machine detects alcohol by the amount of light the alcohol molecules absorb. The absorption is measured and it determines the amount of alcohol in the sample. The more absorption the higher the alcohol content.  

How the Intoxilyzer result challenged?

There are several ways that DUI attorneys challenge Intoxilyzer results.

• The proper protocol was not followed: In Florida there is a set of procedures in place to ensure an accurate result. These safeguards include
  • A 20 minute observation period – the officer must watch the individual to make sure they do not burp or regurgitate (throw up) for 20 minutes prior to the test. If you do, mouth alcohol may register in the result as opposed to the alcohol contained in the deep lung air.
  • Proper placement of the machine – radio waves and other types of electrical interference can affect a result. Intoxilyzer machines have requirements as to where the machine must be physically placed in order to avoid these issues.
  • Proper maintenance – The Intoxilyzer is a machine. Like all machines, it must be maintained. There are tests to make sure it is running properly and measuring accurately. These checks must be documented and submitted to FDLE on a regular basis for the machine to remain in service.
  • Proper logs in procedures to show who was operating the equipment and when.  – In order to take a breath sample from an accused, the person working the machine must be certified. They must document who they are, who is in the room, when the test was performed, as well as other information. Failure to keep proper records can result in a test being held inadmissible.

If the proper procedure set out in the agency is not followed, the result may be ruled unreliable and be excluded from introduction at trial. This can greatly increase your odds of dismissal or acquittal.

• Challenging the machine itself:  Several defense attorneys in Florida have pending litigation challenging the science that runs the Intoxilyzer. This can include the software, changes to design, and whether the breath testing method violates due process concerns. The litigation involving design and software matters has been in place for several years. Some jurisdictions have avoided the issue by having the State agree not to enter results. Other jurisdictions refuse to rule but allow the result to be introduced at trial. Other jurisdictions keep continuing cases pending a resolution of all matters raised. This type of defense can be long, expensive and time consuming. If you feel you may want to explore this option, speak with an attorney who already has cases pending with this type of defense to make sure it is what you want to do.

In some states such as Ohio the challenges to the Intoxilyzer have been successful. Breath results obtained from these machines have been found to be unreliable and therefore they are unable to be used in court. In some Florida counties the results are not able to be admitted. But these counties are the exception not the rule. Intoxilyzer challenges are a highly specialized area of DUI defense requiring expert testimony and knowledge. Make sure you consult a DUI attorney with experience in this area if you wish to raise this defense.

ADMINISTRATIVE LICENSE SUSPENSION AND FORMAL REVIEW HEARINGS

In Florida, there are two tracks that occur from a DUI arrest. The criminal track which is addressed in the Court, and the administrative or civil track addressed through the Department of Motor Vehicles (the “DMV”).

The administrative suspension is automatic if you have a breath test result of .08 or higher or if you refuse testing. If you blow .08 or higher, your license will be suspended for a minimum of six months. This is in addition to any suspension that you receive in the criminal court. If you refuse, your license will automatically be suspended for at least one year. This is also in addition to any criminal suspension you may receive.

When does the administrative suspension take effect?

The administrative suspension takes effect 10 days after your arrest UNLESS you file the proper paperwork to challenge the suspension through formal review.

When you are arrested for DUI, the officer will confiscate your driver’s license.

Your dui citation serves as your temporary license for the next 10 days. If you challenge your suspension, the DMV will send you a temporary permit pending the outcome of your formal review.

If you do not fill out the necessary paperwork to challenge the suspension of your license, within the 10 days you will waive the right for review and suffer the suspension.

What is the formal review hearing?

The formal review hearing is kind of like a mini trial. During the hearing, you or the attorney you hire will challenge your license suspension. Witnesses are called and testimony is taken. Sometimes the hearings are conducted in person with the hearing officer, sometimes they are conducted over the phone.

The hearing officer takes testimony from both sides and makes a determination as to whether or not your license should have been suspended. If the hearing officer rules in your favor you can continue to drive. If the hearing officer rules against you, you must do at least 30 days of “hard time” before you can apply for a hardship or business purpose only license (“BPO”). During the “hard time” period, you are not eligible to apply for any type of temporary or limited driving privilege.  

So how do I drive?

YOU CAN NOT DRIVE AFTER A DUI UNLESS YOU RECEIVE A BPO OR RE-INSTATE YOUR LICENSE PRIVILEGE!!  IF YOU DO YOU WILL BE CHARGED WITH A CRIME!

If you want to drive, you have the option of requesting review for a BPO rather than requesting a formal or informal review hearing. If you are granted a BPO, you will be able to drive for limited purposes. These purposes include driving to work or school.

The laws that govern the administrative license suspensions are complex and can change. If you are arrested for DUI it is very important that you contact an attorney within the first 10 days so that you can make the best decisions regarding your driving privilege.

This page is not intended to be a substitute for legal advice. It is a tool to use as a starting point for consultation with a licensed and experienced DUI attorney. The laws that govern DUI evolve and change. If you are arrested for DUI it is important that you hire quality representation to assist you through the process.