Archive for February, 2012
Wednesday, February 29th, 2012
If you’ve been pulled over for suspicion of DUI, you may have been subject to an unreasonable and unlawful search, seizure, or other invasions of your privacy. Even if the police officer was within his or her rights to pull you over if he suspected you were driving impaired, he only has the right to search your vehicle or seize your possessions under a very limited legal scope. The Fourth Amendment of the Constitution is specifically designed to shield America’s citizens against such unreasonable search and seizures, and if you have been subject to such a violation of your rights, you must contact an experienced Florida DUI attorney in your area.
When Are Police Officers Allowed to Search During a DUI Stop?
Only in cases where the police have very specific reasons to think your activities pose a danger or immediate threat to others, are they allowed to override your basic privacy rights as constitutionally allowed and search you, your car or any other space which you clearly have control over. In order for such a cause to be deemed legal and proper, probable cause must be clearly established.
In other words, if a police officer has clear cause to believe you are concealing weapons, drugs or stolen property, and that such items pose a clear danger to others, then they are allowed to search your car or your pockets or other areas that would normally be off limits. In situations like this it is highly unlikely that the officer will take the time and trouble to obtain a warrant to search your car, especially in light of the recent rulings by the Supreme Court that the concerns regarding privacy of a drunk driver are subordinate to the welfare of those around you.
What is Reasonable?
A problem often occurs in the definition of “reasonable.” The courts define reasonable using a test which consisted of two basic questions: whether or not you had an expectation of privacy under the current situation, conditions and location and whether the average person would consider your privacy expectations rational and not at the expense of a threat to the public if not searched.
That said, there are only a handful of situations where a policeman can search your vehicle in a lawful manner after stopping you for suspicion of DUI. If you grant consent to search your car, then obviously the officer can do so, or if the officer possesses a valid search warrant, then there is little question about the legality. Otherwise, the officer must establish cause. An instance of this would be if the officer observed shotgun bullets scattered over the back seat of your car, leading him to believe you could be carrying a weapon that poses a threat to others or that you are planning to commit a crime. The only other scenario in which your car can be searched is if you have been arrested and your vehicle has been seized and taken for inventory and evidence against you.
If Your Rights Have Been Violated
If the prosecution is using evidence against you which was seized improperly or illegally, it is imperative you hire an experienced DUI attorney to protect your rights. Your attorney will exercise what is known as the exclusionary rule which deters the police from conducting an illegal search by disregarding any evidence which is gathered from unauthorized practices. A police officer may have the legal right to pull you over on suspicion of impaired driving but unless the specific exceptions detailed above are present he does not have the right to violate your Fourth Amendment rights. Your Florida DUI attorney may be able to get your case completely dismissed or at the very least the charges lessened if you were subject to an unlawful search and seizure.
Posted in Florida DUI Stops, Seizure of Vehicle | No Comments »
Tuesday, February 28th, 2012
While all DUI penalties have increased in the past few years, due in part to tremendous public pressure—most states provide for the maximization of DUI penalties when the offense encompasses a school bus or is committed within a designated school zone. A prominent New Jersey case in which a school crossing guard was killed by a drunk driver while protecting two eight-year old students, brought about significant enhancement of penalties for those driving under the influence in the vicinity of a school or school crossing.
The law, named after the crossing guard, Filomena, states that those who drive under the influence in a school zone or within 1,000 feet of a school crossing or school property will be subject to double the penalties. In the state of New Jersey this would mean that a first offender could pay a fine of $800 and face up to two months in jail. A second DUI offense committed in a school zone could bring fines of up to $2,000 and jail time of up to six months, not to mention the loss of the offender’s driver’s license for as much as four years.
School Crossings That Aren’t
The state obviously doesn’t have to prove you knew you were passing through a designated school zone or crossing, nor do they consider the fact that school might not have even been in session relevant. (This means that theoretically you could be convicted of a DUI in a school zone even if it’s the middle of July at 6:00 p.m. in the evening on a Sunday). There could, however, be possible defenses to the statute which states that driving through a school crossing which “may not have been approved by ordinance or resolution but where children are actually present.” If your DUI took place in a school crossing which had not formally been approved, then the state must prove that you knew children were, in fact, present when the alleged offense took place. This proof may relate to the time of year, the day and hour, the neighborhood, prominence of the school, signage of the school, or even your familiarity with the area.
The Distance Component
If the state is attempting to prove you were within 1000 feet of school property, they may enter into evidence a map approved by municipal ordinance. If a tape measure instead of a map is used to determine your presence in a school zone, your attorney may be able to challenge the tape’s accuracy—a long shot, but a possibility. Also, your attorney should be made aware if the police officer followed your vehicle for a considerable distance prior to making the determination to pull you over, thus rendering the actual stop greater than 1000 feet of school property.
No matter which state you live in, a DUI or DWI in a school zone is considered to be a much more serious offense than when they are committed elsewhere. A conviction for DUI in a school zone can have extremely serious and far-reaching consequences including very expensive fines, a disruption in driving privileges for months to years, possible jail time, the necessity of an ignition interlock device, community service or drug rehab, and the personal consequences from family, job and community. In a DUI arrest involving a school zone or school crossing it is extremely important you contact a highly experienced Florida DUI attorney in order to minimize the negative consequences of a possible conviction. Your attorney’s job is to protect your rights and your future, and he or she will fight aggressively to avoid a conviction. Don’t wait, thinking your arrest is really not that serious—it is extremely serious, so seek professional help.
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Monday, February 27th, 2012
Motor vehicle crashes are the leading cause of death among those aged 15-20, with the incidence of crashes peaking at age 16—about the time most teens get their first license. Almost 2/3 of all teens killed in motor vehicle accidents were male, a full third of the young drivers killed in motor vehicle accidents had been drinking alcohol, 37% were speeding, and over half of all teens killed were not wearing a seat belt. Among sixteen and seventeen year old drivers, the death rate increased exponentially with each additional passenger in the car.
Parents, of course, are hard-wired to worry about statistics such as these, and insurance companies set their premiums based on such statistics. Interestingly enough, however, a recent study showed that nighttime driving is far and away the biggest risk faced by teen drivers across the United States. Nighttime driving is responsible for more teen accidents than drinking, speeding or failure to wear a seat belt.
Why is Night Driving So Deadly?
Teen drivers are inherently inexperienced, and night driving offers a whole host of factors which are not present in the daytime. Even though many cities have passed texting bans, teens are the worst offenders for using their cell phones at unsafe and inappropriate times—nearly thirty percent of teens admit to texting behind the wheel. While texting during the daytime is dangerous enough, texting at night can be deadly. A teen driver who is already inexperienced will not be able to cope with the uncertainties of nighttime driving, and may also suffer from insufficient sleep and susceptibility to distraction. Every rowdy teenage passenger in the car adds yet another distraction to an already-distracted teen driver who just doesn’t have enough driving time under his belt to know how to make the quick decisions nighttime driving requires.
Legal Solutions to the Problem
Although a few states still allow teens to get a learner’s permit as early as age 14, the days of unrestricted licenses by age 16 are slowly disappearing. Legislation is currently being proposed in the Senate which will encourage each state to phase teen driving in gradually. This would be accomplished through strict bans on cell phone use, prohibition of night driving, and allowing no more than one teenage passenger in the car.
Although not a total night-driving prohibition, drivers younger than 18 would not be allowed to drive between the hours of midnight and 6:00 a.m. without a parent or guardian in the vehicle with them. Additionally, any driver below the age of 18 who commits a moving violation within six months of receiving their full license would face a probationary time where they could only drive with a parent in the vehicle. The goal is to strictly regulate all drivers younger than age 18, and the federal government believes they will get state compliance through the threat of losing federal highway funding.
Remaining Tough on DUI for Teens
Law enforcement agencies continue to make enforcement of drug and alcohol-related driving violations among teenagers a top priority. While the standard over-the-limit alcohol consumption is 0.08%, there are special laws for teen drivers, known as zero-tolerance laws. If a teen has had anything at all to drink before they get behind the wheel, they will receive an automatic license suspension, and be charged with an underage DUI. Even a first-time juvenile offender can be sentenced to jail time, probation, DUI education classes and thousands of dollars in fines.
Education is necessary to lower the incidence of teenage accidents; while fully 80 percent of all teens understand that driving while impaired is a bad idea, only about 3% understand how dangerous night driving can be for an inexperienced teenage driver. If your teen has been involved in an accident, whether through their own fault or that of another, it’s important to contact an experienced Florida DUI attorney who can detail the options for the young person.
Tags: Florida DUI Lawyer
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Friday, February 24th, 2012
If you’ve had even a couple of beers and are on your way home when you see the dreaded flashing red and blue lights in your rearview mirror there are several ways you can make the process easier—and perhaps the outcome better—if you are prepared ahead of time. Be aware that the DUI laws vary significantly from state to state, but basically there are two primary ways your state can prosecute you. The first is due to your driving being impaired to some extent by the alcohol you have consumed, although the definition of impairment also varies. (Essentially, the police officer will testify that you were not driving in the same manner as a sober person).
Blood or Breath Alcohol Levels
Secondly, the officer will measure your blood or breath alcohol level to determine whether or not it is above the legal limit even if your driving showed no impairment whatsoever. In all states the legal limit is .08%, however this number can be very confusing as it is dependent on your gender, your weight and how long it has been since your last drink in addition to how much you have consumed.
How To Respond to Being Pulled Over
The police officer who pulls you over will be taking careful note of the manner in which you respond to the flashing lights, most especially if what initially caught their eye was some sort of erratic or irresponsible driving, or something blatant such as throwing beer bottles out of the vehicle. The officer will also be looking for any sign of physical or mental impairment, so if you are oblivious to the lights and siren behind you, this could be a clear sign you are suffering some level of impairment. The policeman will note whether or not you have difficulty pulling over or parking, or even if you correctly use your signal when you pull over.
Why Your Appearance Matters
Aside from looking for signs of mental or physical impairment, the officer will check your appearance carefully. If your zipper is unzipped, your shoes untied, or you just look generally sloppy, rest assured these details will show up in the arrest report. Spraying yourself down with air freshener and gulping breath spray on top of a pitcher of beer is not likely to deceive the officer at all, so skip it
Don’t Lie—In Fact, Don’t Talk at All
If you think you are helping yourself by telling the officer you’ve had nothing to drink when it’s fairly obvious you have, think again. If you later undergo a breath of blood test which proves you have indeed been drinking, then your lie will be introduced under “consciousness of guilt.” In other words, you lied in an attempt to disguise your guilt. Best of all is to say absolutely nothing other than giving the officer your name, and handing over your license and proof of registration and insurance when asked. You really do have the right to remain silent—use it.
Should You Submit to a BAC Test?
Should the officer ask you to step out of the car to engage in field sobriety tests, you do have the right to refuse as they are entirely voluntary, however if you refuse you will almost certainly be arrested. The fact is, however that if you are being asked to take sobriety tests it is a pretty sure bet you were going to be arrested anyhow, so by refusing the sobriety tests you have eliminated one aspect of the Prosecutor’s case against you. If you have only had a drink or two, it is probably a good idea to submit to the test—if you pass, you will soon be on your way home. If you’ve had more than a couple of drinks and do submit to the BAC testing you attorney may be able to challenge the results and have them thrown out. Be aware, however that by refusing sobriety tests the DMV will likely go harder on you, immediately suspending your license.
Pay Attention to the Details
Should you be required to take the field sobriety tests, or you agree, be sure to inform the officer if you have any type of physical impairment which would prevent your doing well on the tests. If you have an ear infection or any type of injury, whether new or old, or if you are currently taking any type of medication, politely inform the police officer. If you are taken to jail, note the people around you as possible future witnesses who can testify to your lack of slurred speech or absence of any other signs of intoxication.
Finally, do always call an experienced Florida DUI attorney immediately who will be able to advise you of your rights and protect you from anything which could jeopardize your future chances in court.
Tags: Florida DUI Lawyer
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Friday, February 24th, 2012
Any type of criminal expungement, whether for a misdemeanor or a felony is also called post-conviction relief. You will first want to know whether or not you qualify for such an expungement of your DUI criminal record, because if you don’t, there’s no point in starting the process. First, determine whether or not your meet the basic requirements of the expungement laws in your state, and if you believe you do, hire a knowledgeable criminal attorney who can handle the expungement from this point on.
Requirements for Expungement of Your DUI
Although the requirements may vary substantially, depending on your jurisdiction, first be aware that the clearing of your records is only available to those who have not been sentenced to a stint in the state prison. If you served one year or less in the county jail as your DUI sentence, then your attorney may be able to get the record wiped clean. You must also have no pending criminal cases when you apply for expungement, so if you are in the middle of other criminal problems, you will have to wait a bit to try and get your record wiped clean. A pending traffic violation should not be any hindrance to getting your record expunged, but any criminal cases definitely will.
Fulfilling Probation Requirements
If you are still serving a probation sentence, you will not be eligible for a DUI expungement, however can revisit the issue when your probation expires. In some instances your attorney may be able present a motion to the court which asks that your probation period be terminated. You will naturally have had to complete all conditions of your probation, including paying any outstanding fines, serving your jail time, completing any assigned community service, going through an alcohol treatment or education program, or any other penalties imposed. Typically when a defendant in a DUI case pleads guilty through a negotiated plea bargain, they will be sentenced to probation for three to five years and will pay all fines and attend alcohol education and treatment programs. If you have neglected to meet all your conditions of probation, the court can turn down your attorney’s motion for expungement.
Why Bother to Have Your Record Cleaned?
Expunging your DUI conviction, while certainly not a necessity, can be unbelievably liberating. It is highly likely that you have been living under a big black cloud since the day you were arrested for DUI. A DUI conviction can have extremely far-reaching effects on your life. First of all you probably had to deal with the stigma of your conviction from family, friends and co-workers. You may have found yourself unable to get a job you were qualified for and really wanted due to the DUI on your record, or may have found yourself unable to get a professional license you had planned on getting because of the DUI on your record. Once your record is cleared of the DUI shadow, you are not required to disclose your DUI on a job application, and the expungement can make the difference between passing a background check or not. In short, your black cloud will go away and you can finally experience some level of peace of mind that you may have been missing for a considerable length of time.
If you feel you are eligible for a record expungement of your DUI conviction you must contact an experienced Florida DUI attorney who can not only answer any questions you might have regarding the process, but will be able to file the necessary paperwork in a proper and timely manner.
Tags: Florida DUI Attorney
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Thursday, February 23rd, 2012
While a DUI conviction is a serious matter for anyone, even more stringent rules apply for those with a commercial driver’s license. Most states have adopted the Federal Motor Carrier Safety Administration rules for disqualifying a CDL license when there is a DUI conviction. While the blood alcohol concentration for the general population is .08 in all states, the driver of a commercial motor vehicle cannot have a BAC greater than .04. Additionally, a commercial driver can be randomly tested for drug or alcohol use before driving a commercial vehicle, while driving the vehicle or after driving a commercial vehicle. The state or local police have the authority to test a commercial truck driver whenever they suspect that driver of driving under the influence or following an accident in which the truck driver was involved.
Other Drug Testing
Not only can commercial truck drivers be randomly tested for alcohol consumption, they can also be tested for such drugs as marijuana, cocaine, amphetamines, opiates and phencyclidine. Depending on the specific drug, there may be a length of time that a driver could test positive for the drug—even as long as several weeks.
More Severe Penalties for the CDL Driver
Points are added to your license by the Department of Motor Vehicles for each traffic offense you are convicted of. If you already have a speeding ticket or moving violation, then they are permanently attached to your driving record. The point values increase for commercial drivers, and a conviction for DUI can add two points to your license. Too many points results in suspension or revocation by the DMV of your CDL license.
Additionally, you will face the same issues that anyone who is convicted of DUI will face such as fines, possible jail time, suspension of your driver’s license, mandatory drug and alcohol counseling, probation, not to mention the social stigma that accompanies such a conviction. A DUI conviction can effectively prohibit you from obtaining other forms of employment, as well as getting a professional license. The effects of a DUI are far-reaching, and can literally change your entire future, and if you are a commercial driver, the effects are multiplied exponentially.
Protecting Your CDL License
Even if you were driving your own personal vehicle when you were arrested on suspicion of DUI, your CDL license may still be suspended for up to a year, and you can face jail time and hefty fines should you be convicted. Refusing to take a breathalyzer test when you have a CDL license can cause you to have your license suspended for up to two years, and for most CDL drivers, driving a big truck is how they make their living. You may feel as though literally everything in your life is on the line from this unfortunate incident, and could feel as though your situation is hopeless.
It is very important that you protect your license, your livelihood and your future by contacting an experienced Florida DUI attorney who understands the special circumstances surrounding a commercial driver’s license and a DUI. A commercial driver has much more at stake than the average person arrested for DUI, as regardless of whether you are convicted you may become unemployable, and even if you eventually have your CDL license reinstated many trucking companies will not consider hiring you. You have only ten days from the date of your DUI arrest to request your administrative hearing and prevent the suspension of your CDL, so don’t wait to call a Florida DUI attorney who will fight aggressively for your driving privileges.
Tags: Florida DUI
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Wednesday, February 22nd, 2012
Field sobriety tests are used from state to state as a part of the officer’s DUI investigation. The idea of these tests is to help the officers determine whether or not you are impaired, and while there are many field sobriety tests which can legally be used, there are three standardized tests from the National Highway Traffic Safety Administration which are most commonly used. These include the Horizontal Gaze Nystagmus (HGN), the Walk and Turn and the One Leg Stand.
Even these three tests which have received the NHTSA’s stamp of approval have been found to be as much as 30% inaccurate. Other tests commonly used are the finger to nose test, the finger count test, reciting the alphabet forwards or even backwards, or the stand and balance test. At times officers will combine two tests by having you stand in one place with your head tilted back, then have you bring your fingers to your nose, alternating arms.
The goal of these field sobriety tests is to test a person’s agility, coordination, and whether or not they can follow instructions and perform the tests simultaneously. It is assumed that these skills are necessary when operating a motor vehicle, and that only a sober person will be able to pass the tests. Because of the wide margin of error, however, a field sobriety test may wrongly be used to convict someone of a DUI.
Did the Officer Determine You Were a Good Candidate?
Prior to administering the field sobriety tests, the police officer must ensure you are physically able to perform them. If you have any sort of physical disability, if you are over the age of 65, or if you are significantly overweight, then the officer should not require you to take the tests. The officer should also take careful note of the weather and terrain. If you would be required to walk on particularly rocky ground, ground that is uneven or goes uphill, or if the weather has dictated conditions which could alter your results on the field sobriety tests, then the tests should not be administered. Icy roads, wet road, or any other type of inclement weather would also prohibit the tests being given.
Instructions on How to Take the Tests
Once the officer has determined that your physical condition, the terrain and the weather are all conducive to your taking the field sobriety tests, he or she must give you clear instructions on how to take the tests. There should be plenty of light, but no lights shining directly in your face.
Why You Might Flunk the Tests, Even if You Were Completely Sober
The One Leg Stand which is done with you standing with feet together, arms at your side, then raising one leg approximately six inches from the ground. While you are attempting this feat, the officer will be looking for signs of unsteadiness, swaying, hopping, or using your arms for balance. The problem with this test is that a high percentage of stone cold sober people are unable to complete it satisfactorily. Anyone who has a history of ear or balance problems will quite likely be unable to “pass” this test.
The Horizontal and Vertical Gaze Nystagmus consists of following a light with your eyes while the officer checks for any sort of “unusual” eye movements. There are several eye conditions, glaucoma among them, which can prevent a person from performing well on the HGN tests. The Walk and Turn requires the person to take nine steps, heel-to-toe forward, then turning and taking nine back, with the theory that you must be able to multitask while completing this test, and in all reality, many adults are barely able to conduct one task at a time, and are hopeless at multi-tasking. Finally, the officer may have given you instructions improperly, or could have given them to you in a language you do not understand, leading you to perform poorly on the tests.
Don’t Agree to the Tests
It is not mandatory for you to ever take a field sobriety test, and you are allowed to (politely) refuse the tests with no fear of reprisals. Police officers rarely tell you the tests are not required because they want the evidence to use against you should the case go to trial. If you have been arrested for DUI based on field sobriety tests, then hire a knowledgeable Florida DUI attorney immediately. These tests can often be challenged successfully in court, however the officer and prosecution are hoping you are not aware of that fact.
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Tuesday, February 21st, 2012
The laws for DUIs are getting tougher almost daily and if you are pulled over because the officer felt you were driving under the influence, you could be required to have your blood or breath alcohol levels measured. The breathalyzer, along with field sobriety tests are usually administered out in the field while the blood alcohol levels are measured once you are in the police station. Testing your sobriety in the field can include administering the walk and turn test, the one leg stand test, the Horizontal Gaze Nystagmus test or you could even be required to recite the alphabet—frontwards or backwards. The problem with field sobriety testing is that many people who are perfectly sober have trouble with the tests for a variety of reasons including health issues, terrain and weather conditions.
How the Breathalyzer Works
If the officer believes you were driving under the influence he may ask you to provide a sample of your breath by blowing into a tube, from one to three times. The breathalyzer machine detects the levels of alcohol in your system however there are many inaccuracies possible in breathalyzer tests. The breathalyzer test is considered to be only about 70% accurate, leaving a 30% margin of error.
Preliminary Breath Test
Once you’ve been pulled over as a potential drunk driver, the police officer may offer you a preliminary breath test, but you should be aware that you have the right to refuse this test with no repercussions and the state cannot admit the results into evidence. The preliminary test is a tool used by officers to determine probable cause prior to arresting suspects. Once you have been booked, however, if you refuse the blood or breath tests you may end up with harsher consequences in the end. Submitting to the blood and breath tests is a delicate balance between incriminating yourself with the test results and incurring harsher penalties.
Testing Breath
Breath tests seek to measure the alcohol content of the person being tested by taking a sample of breath from deep in the lungs. Some of the factors which can affect the results are air temperature variance, failure to properly calibrate the device, substances which interfere with the results such as an asthma inhaler or cough medicine or even the policeman’s failure to observe the person for a specific period of time prior to testing.
Blood Tests
While blood tests are typically considered more precise than testing done by Breathalyzer, they can be disputed if a person who was unlicensed drew the blood, the equipment was not calibrated, the blood was not drawn within the required time period or was not properly stored or preserved, or the custody chain of evidence was broken.
Mitigating Factors in a BAC
There are a variety of reasons why you could have failed a BAC test—other than that you were actually drunk—including an elevated body temperature or chronic reflux. Certain other compounds such as cigarettes, soy sauce, gum or mints can affect the overall reading, and on some machines the harder the blow the higher your reading will be. The officer may have neglected to calibrate the machine prior to testing you or you may have certain medical factors which will result in an inaccurate reading. Alcohol can become trapped in a person’s dental fillings, giving an overly high reading, and finally the officer may not be properly trained to administer the tests. While the breathalyzer tests detect ethyl alcohol, it fails to differentiate it from methyl alcohol which is found in some foods and other substances.
Challenges to a BAC Test
Inaccuracies in both blood and breath tests are fairly common, and in some instances the equipment is not properly used or cleaned. There have even been anecdotal reports of blood samples being switched. It is imperative you hire an experienced Florida DUI attorney who can challenge the tests you were compelled to submit to. Your attorney may challenge the training of the person who drew your blood, or even the timing regarding when the blood was drawn. Remember, if you’ve been arrested for a DUI, it’s not over until it’s over, and your very best hope of protecting your future lies in hiring an aggressive, knowledgeable Florida DUI attorney.
Tags: Florida DUI Attorney
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Monday, February 20th, 2012
Experienced Florida DUI attorneys see a wide spectrum of cases involving poor judgment that can have serious consequences for intoxicated drivers. Sometimes we just have to scratch our head in amazement at the power of alcohol to impair one’s judgment. It is not as if anyone is immune to facing drunk driving charges because we represent drivers accused of DUI in Florida from all walks of life including Sheriff’s deputies, judges, lawyers, doctors and others.
A recent case demonstrates the importance of exercising one’s judgment in avoiding DUI before one begins drinking. A driver is facing drunk driving charges after ramming his pickup through a security fence and unintentionally busting into jail. While this is the reverse of the way one would expect this to happen in most situations, it does show how a night of hard drinking can place drivers in undesirable situations. Deputies in Volusia County indicate that the 22-year-old driver barreled through the security fence of a jail off International Speedway Boulevard in Daytona Beach. The driver drove around the prison grounds before driving through the fence in another area and driving away.
The situation went from bad to worse when the driver was apprehended about fifteen miles from the jail after he almost hit a Sheriff deputy that was patrolling the DeLand area. The driver was arrested and charged with felony criminal mischief, DUI and possession of a controlled substance for prescription drugs that the driver had in the vehicle.
The morale of this story is that it is advisable to make arrangements to avoid DUI before leaving home. If you are going to a party, sporting event or other event where you expect to drink, you should pre-arrange a contingency plan so that you are not tempted to drink and drive. The driver that broke into the Volusia jail demonstrates that developing plans to avoid the risk of a DUI arrest can be difficult once one’s judgment is already impaired by alcohol.
If you make plans before an outing, you can avoid the harsh consequences of a Florida DUI conviction. A conviction of DUI in Florida can result in jail or state prison time, substantial fines, probation, alcohol school, community service, participation in an ignition interlock device and suspension of your Florida drivers’ license. If you or someone you love has been arrested or charged for a Florida DUI, the experienced Florida DUI defense attorneys at Musca Law have helped many people avoid the extremely harsh consequences of a Florida DUI conviction. We invite you to contact a Florida DUI defense attorney at Musca Law to schedule a free confidential consultation: (800) 687-2252.
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Friday, February 17th, 2012
There are many creative DUI defense strategies that may keep a driver out of jail and prevent the other harsh consequences of a Florida DUI prosecution and conviction. While many of these strategies are successful, others are not as effective. One creative but somewhat shaky defense employed in a case in New York may be dubbed the “DUI kissing defense.” A young lady who was arrested for DUI claimed that she had not been drinking and blamed a failed BAC breath test on the fact that she had been kissing her boyfriend who was highly intoxicated.
The defense was fairly unconvincing because her BAC was .15 percent, which is almost double the legal limit for driving under the influence. Although the defense was not particularly compelling under these facts, it is not completely implausible. For example, teen drivers in Florida are subject to a “zero tolerance policy” because they are considered over the legal limit if they blow a .02 percent or higher. Even a small amount of mouth alcohol may register a .02 percent BAC including mouthwash, cough syrup and perhaps even alcohol exchanged during a kiss. The key issue is that if someone has mouth alcohol, he or she may produce much higher BAC results than are an accurate indication of the alcohol concentration in the driver’s blood. While a defense that your double the legal limit result is the product of kissing after not consuming any alcohol is unlikely to be successful, a breath test right at the legal limit or close might make this defense more plausible.
The other issue with the “DUI kissing defense” is that Florida law enforcement authorities are expected to observe a twenty minute waiting period prior to administering a breath test to ensure that nothing is consumed that might cause an inflated result involving mouth alcohol. Sometimes this waiting period is not observed, which also might make this defense somewhat plausible depending on other factors. Mouth alcohol produces a much higher BAC result because it has not yet been metabolized by the body and the calculation of BAC of breath from the deep lungs is converted by a ratio to alcohol in the blood. This ratio is inapplicable to alcohol that is in the mouth.
If you have been arrested for DUI in Florida, it is unlikely that Florida DUI defense attorney John Musca is going to use the “DUI kissing defense,” but the Florida DUI defense law office of Musca Law is committed to a thorough familiarity of all possible defense strategies in Florida DUI cases. We know which strategies work and which do not and use this knowledge to build the strongest possible DUI defense for our clients.
If you or someone in your family is accused of a Florida DUI, experienced Florida DUI defense attorney John Musca provides tenacious defense with the goal of avoiding the harsh consequences of a DUI conviction. We invite you to contact a Florida DUI defense attorney at Musca Law to schedule a free confidential consultation at (800) 687-2252 to see how we can help.
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