The Law Offices Of Kevin J. Pitts
This is a brief description of the phases of a Florida DUI case and some of the issues that occur during the phases. This is not a complete list of all Florida DUI issues and is not legal advice. You can find more detailed information about specific phases such as stops, implied consent and probable cause for arrest on the appropriate page on this site.
A preliminary issue with a Florida DUI case is the two separate proceedings that effect the accused. The administrative drivers license suspension and the criminal prosecution for DUI. The proceedings run simultaneously although the administrative process requires quick action. You only have ten (10) days to request a hearing to prevent your drivers license from being suspended administratively for DUI. Even if the criminal DUI case is completely dropped by The State Attorney’s Office you will still face an administrative drivers license suspension as a result of the Florida DUI arrest unless you are able to prevail at the administrative hearing.
You can obtain a 42 day temporary driving permit by having a simple form submitted and paying a $25 fee to The Department of Highway Safety and Motor Vehicles within 10 days of your arrest. I will send you the paperwork free of charge by e-mail upon request.
A Central Florida DUI can be very complex. Each DUI has multiple phases. The phases are stop, detention, field sobriety exercises, arrest and testing. During a Florida DUI investigation if a mistake is made in any of these phases it can greatly reduce the strength of The States DUI case. An experienced Central Florida DUI attorney will be able to spot potential mistakes in the investigation and challenge them in court.
If the Florida DUI stop is illegal then everything flowing from the stop can be suppressed including the breath test results and field sobriety exercises. Because of the impact an illegal stop has on the case this is a heavily litigated area creating a great deal of case law about what is a legal Florida DUI stop. An experienced Central Florida DUI lawyer is familiar with stop case law. A Police officer may reasonably detain citizen temporarily in investigatory stop if officer has reasonable suspicion that person has committed, is committing, or is about to commit crime; investigatory stop requires well-founded articulable suspicion of criminal activity, and mere suspicion is not enough to support stop Popple v. State 626 So. 2d 185 (Fla. 1993) As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred Whren v. United States, 517 US 806 (1996).
The next phase of a Florida DUI investigation is the detention. During a Florida DUI detention the police are trying to acquire reasonable suspicion of impairment. This is a transition in the investigation. The reasonable suspicion or probable cause for the stop is not necessarily adequate for reasonable suspicion of impairment. The driving pattern may contribute to the reasonable suspicion of impairment. A knowledgeable Central Florida DUI attorney will be familiar with these issues.
The State Attorney’s Office in Florida frequently relies on the case Origi for the standards of reasonable suspicion in a Florida DUI case. In Origi, high rate of speed combined with an odor of alcohol and bloodshot eyes was sufficient reasonable suspicion to request field sobriety exercises during a DUI investigation Origi v. State, 912 So. 2d 69, 71 (Fla. 4th DCA 2005). If the police officer is able to accumulate reasonable suspicion during the Florida DUI investigation they can request the accused to do field sobriety exercises.
A common misconception is that the accused has to do the pre arrest field sobriety exercises during a Florida DUI investigation. If the accused refuses to take the field sobriety exercises, the officer should warn them of the consequences. One consequence is that the officer can testify that the accused refused to take the field sobriety exercises during the DUI investigation. If the officer does not warn the accused of the consequences after the refusal, it can create a safe harbor. Menna v. State, 846 So.2d 502 (FL 2003). If the refusal of Florida DUI field sobriety exercises are considered a safe harbor then the refusal of the exercises does not come in. This can be damaging to The State’s DUI case because without field sobriety exercises or a refusal of the exercises it appears to the jury that the exercises were never requested. One consideration with the Florida DUI field sobriety exercise is that often times if an individual has good balance and coordination or is a frequent drinker they may not appear intoxicated at .08 or slightly higher to a lay observer. Although field sobriety exercises are optional and officers are trained to pick up on minute indicators of impairment to make an arrest.
The DUI field sobriety exercises often consist of four parts. The first is the horizontal gaze and nystagmus (HGN). Nystagmus is an involuntary jerking of the eyeball that can be aggravated by drugs or alcohol. This test can tell the officer a great deal about DUI impairment. If the officer picks up on indicators of impairment on this test, the field sobriety exercises will continue but a determination to take you to jail has likely already been made. Although the HGN is not admissible at trial unless the officer is a drug recognition expert (DRE) or has significant experience in DUI investigation. Significant experience was demonstrated when a trooper testified he received training on HGN testing during his 40-hour basic DUI training at the Highway Patrol Academy, and had administered HGN roadside testing approximately 1000 times. The court ruled that the trooper could testify concerning his administration of the test. Williams v. State 710 So. 2d 24 (Fla. 3rd DCA 1998). The next three common Florida DUI exercises are the walk and turn, one leg stand and finger to nose. A Central Florida criminal defense lawyer with experience in DUI cases will be familiar with these issues.
If the officer observes sufficient indicators of impairment the individual will be arrested for DUI. For the Central Florida DUI arrest to be legal the indicators of impairment must amount to probable cause that the accused is driving under the influence. Probable cause to arrest exists when the totality of the facts and circumstances within the police officer's knowledge would cause a reasonable person to believe that an offense has been committed and that the defendant is the one who committed it State v. Walker 991 So.2d 928 (Fla. 2nd DCA 2008). If the Florida DUI arrest is made without probable cause it is illegal and all information obtained after the arrest will be inadmissible. An experienced Central Florida criminal defense lawyer will be aware of the appropriate motions to file if the arrest lacks probable cause.
After the Florida DUI arrest the accused will be asked to submit to a breath test. Refusal to submit will result in a 12 month drivers license suspension administratively for the first refusal. The second DUI refusal is a first degree misdemeanor and will result in an 18 month drivers license suspension administratively. The refusal can be used against you to show conscience of guilt. Defense attorneys are often asked by clients if they should blow or refuse. A high breath test if the machine is in compliance and the proper procedures are followed can be devastating to the accused DUI case. On the other hand a refusal can add significant drivers license suspension on the first offense. The second refusal exposes the accused to significant drivers license suspension and additional criminal charges giving The State Attorney’s Office leverage in its prosecution. A Central Florida criminal defense lawyer with DUI experience will be able to help address these issues in your case.
The breath test machines are inspected each month to make sure they comply with the required standards Florida DUI breath test machine inspection dataIf the breath test is not in compliance the results may not be admissible or the state might be required to subpoena an expert to testify to the effect of the non compliance. The officer has to follow certain procedures prior to the breath test. One example is even though testing officer observed licensee for 17 minutes preceding test; unidentified third party was with licensee during three minutes preceding the testing officer's arrival, and state presented no testimony by arresting officer or unidentified third party, or other evidence, as to what occurred during that three minutes. Department of Highway Safety and Motor Vehicles v. Farley 633 So.2d 69 (Fla. 5th DCA 1994). If you have submitted a breath test you can view the breath test results at Florida DUI breath test results. The results are not always immediately uploaded. A Central Florida criminal law attorney with experience in Florida Dui cases can take appropriate measures to assist with your Florida DUI defense.