Posts Tagged ‘DUI in Florida’

Effective Florida DUI Defense Strategies for Challenging Officer Observations [Part I]

Wednesday, July 6th, 2011

With the Fourth of July weekend approaching, there will be a spike in the number of DUI arrests because of stepped up DUI patrols, DUI checkpoints and other aggressive DUI enforcement activity.  Few things can turn a holiday celebration into a bitter experience more effectively than a Florida DUI arrest.  The penalties for a Florida DUI criminal conviction may include jail time, substantial fines, probation, drunk driving school, ignition interlock installation, driver’s license suspension and more.  It is easy to feel like these penalties are inevitable and resign oneself to pleading guilty and putting your Florida DUI arrest behind you quickly without a prolonged fight.

This can be a serious mistake because DUI charges are open to a broad spectrum of defenses.  Given the severe penalties and potential lifelong consequences of a DUI conviction on career, educational and housing opportunities, it is never a good idea to simply concede a conviction.  A DUI case is complex and technical which creates many strategies for mounting an effective defense including challenges to the observations and conduct of the arresting officer.

While most law enforcement officers are honest and conscientious in performance of their job duties, sometimes they make mistakes or cut corners.  There are cases where the officer may not have had sufficient grounds for the initial stop.  If the officer does not have a sufficient legal basis to stop you, then we may be able to file a motion to suppress all the evidence against you including observations made by the officer after the initial stop, incriminating statements and field sobriety and blood alcohol testing.

Even if there is a valid basis for the initial stop, the officer may make mistakes or fudge the facts during the course of the stop. There are even cases where officers use templated reports with critical facts like observations upon which they base their DUI investigation being pre-printed or added by rote between an officer’s reports.  Sometimes the officer’s report also may have inconsistencies.  Where there are multiple officers, there may be conflicting factual accounts between them that make their observations suspect.

Many officers lack proper training or may have a disciplinary history that leaves them open to challenging their accuracy or veracity.  Officers that lack proper training may make critical mistakes such as not following appropriate procedures in conducting and scoring field sobriety tests (FSTs).  FSTs have a high margin of error even when conducted perfectly.  When an officer has not been properly trained, the officer may fail to give instructions properly, demonstrate the tests sufficiently or score the tests properly.

If you have been charged with DUI in Florida, our experienced Florida DUI defense lawyers diligently investigate and review any observations or procedure by police to identify inconsistencies, errors or inappropriate deviations from acceptable procedures.  Our experienced Florida DUI defense attorneys are prepared to aggressively challenge such errors and inconsistencies as part of our goal of providing the most effective DUI defense for our Florida DUI clients.

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Winning Your Florida DUI Case by Creating a Video Record

Friday, July 1st, 2011

Many people arrested for DUI in Florida have no idea that their choices and demeanor constitute the first line of defense following a DUI arrest in Miami.  The majority of people stopped for DUI tend to react in a way that ultimately undermines certain aspects of one’s DUI defense in a Miami-Dade County courtroom.  While it is certainly understandable to react emotionally if you are arrested for DUI, displaying that emotion in the form of an angry tirade, incessant jabbering at the officer or whining and pleading is generally counter-productive.  Typically, there will be video footage of the stop and interaction with the police officer.

If anyone has ever seen video footage on television where officers are beating on a suspect, you know that those images invoke an intense response at a gut level.  Even when the footage has no sound and the surrounding circumstances are unclear, it is hard to disregard those negative images.  Now take this same concept and imagine video footage of you melting down and berating the police officer or rambling incoherently as you struggle not to slur your speech.  This kind of evidence is very persuasive both to prosecutors who will decide whether to reduce you charges to wet reckless so that you avoid a DUI conviction and to a jury if your case goes to trial.

The appropriate response during a DUI stop is to answer questions with short concise answers, such as “yes sir” and “no sir”.  If you are absolutely positive that you are able to speak without slurring your words, it may be appropriate to provide a slightly more expansive answer.  However, you must be absolutely sure that you can talk coherently and without slurring your words.  This is often difficult to judge as anyone knows who has been confronted the morning following a night of partying with a “I did what?” moment.  If you decide you can speak coherently and without slurring, you still must be very careful not to volunteer information like the following:

  • I had a couple drinks.
  • I only had one or two.
  • I am coming from the bar.
  • I promise I never usually drink and drive
  • I am drunk.

While it may seem ridiculous to advise not making such obvious damaging statements, they are far more commonplace in police reports than you might imagine.  Polite and concise answers to non-incriminating questions have a couple of advantages.  First, the more articulate and coherent that you seem the less likely it is that an observer (including the police officer) would conclude you are impaired by alcohol.  While it is virtually impossible to talk your way out of a Florida DUI arrest, your are creating a video record that you were coherent, rational and polite.

The second reason is to create video footage that effectively is like a movie with you and the officer as actors.  The audience whether it is a prosecutor or jury will be looking to identify the “hero” and the “villain”.  If you are polite and respectful even in the face of abusive or nasty treatment by the officer, the reaction of a jury may be that the officer is the villain.  Remember the impact of video affects people at a visceral level so it is very important to look like the hero in that video.

Our Florida DUI attorneys frequently use video footage in negotiations with the prosecutor.  The prosecutor has invariably reviewed the footage.  If your blood alcohol level in a breath test is close to the legal limit, the prosecutor’s perception of you in the video will often dictate whether you have your charges reduced to wet reckless and avoid a DUI conviction.  A jury will also view you in a far more positive light and may be persuaded that you did not act intoxicated, which may reduce the impact of evidence from officer observations of your behavior.  Because field sobriety testing is notoriously unreliable and there are many ways that breath testing can be challenged, the jury may find evidence that you do not sound or act irrational or intoxicated persuasive.

Our experienced Florida DUI lawyers represent clients in Miami and throughout Florida.  Our DUI defense attorneys carefully investigate all aspects of our client’s arrest and DUI investigation so that we can develop the most effective DUI defense strategy.  We offer a free initial confidential consultation to allow us to assess your rights and options so call us today.

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DUI Defense Based on Procedural Notice Requirements

Friday, May 20th, 2011

Many people stopped and arrested for DUI find that they are confused and overwhelmed by the legal system.  No one plans on being arrested and charged with a DUI.  The criminal court process can be complex and confusing for the average person charged with DUI in Florida.  What many people do not realize is that many times a skilled and experienced Florida DUI defense attorney can get DUI charges dismissed, obtain an acquittal at trial or obtain a reduction in charges or less severe punishment.  Many Florida residents presume that they can do just as well if left to their own devices as an experienced Florida DUI defense attorney.  However, this false assumption has resulted in countless cases of Florida residents being convicted of more serious consequences than if they have simply obtained advise and representation from an experienced Florida DUI defense attorney.

Many times an experienced DUI defense attorney can obtain a better result simply because of the attorney’s understanding and knowledge of the legal and procedural requirements in a DUI case.  An example of this phenomena is provided by the case of State of Florida v Narcisco Rodriguez (1991) 575 So.2d 1262.  Florida filed an information (which is a charging document) in the circuit court charging Narcisco Rodriguez with three traffic-related offenses.  One of the charges was for DUI in violation of section 316.193(1), (2)(b) which provides that “any person who is convicted of a fourth or subsequent [DUI violation is guilty of a felony of the third degree.”  However, the information (or charging document) did not make any mention of specific prior DUI convictions nor did the prosecutor provide Rodriguez any details of the alleged prior DUI convictions it was relying on to charge him with a felony.

Rodriquez attorney challenged the felony DUI charge based on the failure of the prosecutor to adequately charge the felony in the charging document. The circuit court denied the motion. Subsequently, a jury found Rodriguez guilty of DUI.  The court found Rodriguez guilty of third-degree felony DUI and sentenced him to four and one-half years imprisonment.  However, Rodriguez attorney appealed the sentence on the basis that the conviction was improper because the charging document merely charged Rodriguez, “in effect, with three misdemeanors.”  The court reversed Rodriguez conviction because he did not receive notice of the alleged prior DUI convictions, which formed the essential element of the felony DUI charge.

This meant that all that Rodriquez could be convicted of was a first time DUI offense.  This procedural defect meant that a felony conviction and sentence of four and one-half years were avoided in favor of a first time offense which can result in diversion and no jail time.  This case illustrates an example of the procedural due process right of notice in a Florida DUI case.  An information is a document that charges a criminal defendant with a crime and the defect in notice occurred when the information did not adequately charge the felony.  The basic principle is that a person charged with a DUI related offense or any criminal offense must be made aware of the charges that are being brought against him or her.  The lesson to be learned is that an experienced Florida DUI defense attorney will often be able to develop procedural and substantive defenses that would not be possible without a Florida DUI attorney.  In this case, drunk driver escaped a third degree felony DUI conviction and a long term in prison because of this procedural due process error by the State of Florida.

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New DUI Tactic of Obtaining Search Warrant for Driver’s Blood Raises Legal Questions

Monday, April 25th, 2011

If a person is stopped by a police officer for suspicion of DUI or for a routine traffic stop and develops a reasonable suspicion that a person is driving under the influence of alcohol, the officer will request the driver submit to a breath test.  Traditionally, a Florida driver could decline to submit to the breath test and refuse blood or urine tests even after a DUI arrest without being physically forced to submit to a blood test though there were other adverse consequences under Florida’s implied consent law.

However, a new tactic is being used in some Florida counties by law enforcement officers designed to force drivers to provide blood alcohol tests so that the results are available in subsequent DUI cases.  This tactic is being used as part of sobriety checkpoints and on occasions where a high volume of drunk drivers can be anticipated such as New Year’s Eve or perhaps even Super Bowl Sunday.  The new strategy involves having judges on-call so that an officer can call and provide a basis for probable cause and obtain a search warrant for a suspect’s blood at the scene of the arrest.  This means that even if a driver refuses a request by the officer for a breath test, the officer may obtain a warrant to forcibly obtain a blood test almost immediately at the site of the arrest.  Prior to this new strategy, the police only forcibly took a blood sample in a DUI case when a DUI involved injuries in which case a suspect could be forced to provide a blood sample for blood alcohol testing.

A refusal to submit to blood alcohol testing carries other consequences pursuant to Florida’s implied consent law.  The law provides that any driver who obtains a driver license in Florida is deemed to consent to submit to a blood alcohol test after a lawful arrest for DUI if the police officer has probable cause for a DUI arrest.   If a driver refuses to submit to blood alcohol testing under Florida’s implied consent law, the person will suffer a longer driver’s license suspension and subsequent refusals constitute a separate criminal offense.

The Fourth Amendment of the U.S. Constitution prohibits unreasonable searches and seizures.  If a police officer forcibly takes a blood sample, this qualifies as a search and seizure, which means the procedures and process of your forcible blood test must be reasonable.  This new procedure for obtaining a warrant to forcibly take a driver’s blood may be challenged depending on the circumstances of your case.  If the officer does not have a sufficient factual basis for the initial stop or a DUI arrest, the forcible blood test may be suppressed.  If you have been subject to this new procedure and had a blood test taken forcibly following a DUI arrest, an experienced Florida DUI attorney will investigate the circumstances of your arrest and the blood test so that he can develop appropriate defenses including seeking the suppression of any forcible blood alcohol test results.

Call 1 (800) 687-2252 For a Free Consultation With a Florida DUI Lawyer In Your Area

Hiring a Florida DUI attorney to aggressively defend you can help you obtain the best possible result in your case.  Call our toll-free, Florida DUI Helpline at 1 (800) 687-2252 for a law firm near you (by appointment only).

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