DUI is the abbreviation for ‘driving under the influence’ of alcohol, but did you know that in some states, including Florida, you can now be convicted of a DUI and not even drive? You can be convicted of DUI as long as you are ‘controlling’ the vehicle, which may not include driving in some circumstances. There are situations where you can see that this makes sense, such as where someone passes out drunk while driving and is on the side of the road in a ditch. Clearly, that person would be at fault and be found under the law to be driving under the influence.
However, there are other cases where it is not at all clear that the person is in control of the car. For example, some people may choose to fall asleep in their car after drinking, rather than pay for a motel room. If your car is legally parked and you are drunk and asleep in your car, are you ‘in control’ of the vehicle? What about if you start the car to run the heater? Are you ‘in control’ at that point?
There have been cases in Florida where a DUI conviction was overturned in court because the car was found to be mechanically inoperable. While the accused was passed out drunk in the car, the car could not run and the person had not operated the car before it was disabled. So, this case was overturned.
Yet, there have been cases in other states where in extenuating circumstances, the driver still was found to be ‘in control’ of the car. For example, a driver in Minnesota had his DUI upheld even though his car had a dead battery. Also in Minnesota, another DUI was upheld despite the car having a flat tire. In these cases, it appears that the DUI stuck because the disabled nature of the car was due to the car being driven. If you have a mechanical problem that is not due to actual driving, there is more possibility of having the case overturned.
In many counties in Florida, you can be subjected to a new type of DUI deterrent that is called a ‘no refusal checkpoint.’ These stops work like any DUI checkpoint, but with a key difference: If you refuse to take a breathalyzer test, there is a judge ON SITE that will sign a warrant that forces you to provide a blood sample to check if you are legally intoxicated.
The purpose of a ‘no refusal checkpoint’ is to get around the practice of some drivers of refusing to take a breath test so that the case can hopefully be dismissed due to a lack of evidence.
Mothers Against Drunk Driving (MADD) as well as the Department of Transportation applaud these efforts, claiming that the ‘no refusal’ stops will save lives. However, many experts question whether these stops are constitutional. Does it provide probable cause for a person to refuse to take a breathalyzer test? We are protected by unreasonable search and seizure by the 4th Amendment, which clearly would include a mandatory blood test.
There is no doubt that drinking and driving is a serious problem, but it is questionable whether this sort of erosion of constitutional rights is in the best interests of society. Most intriguing will be to see how 4th Amendment challenges to these DUI cases will play out in court in the next few years.
Rather than mandate blood tests on the spot, perhaps Florida could do something less draconian, such as increase the penalties for refusing a breathalyzer test. Right now it is only a temporary license suspension, which for many people is not enough of a deterrent.
One of the most common questions that a DUI lawyer is going to hear is, ‘should I really hire a lawyer for my DUI?” Now you would probably expect the lawyer to say ‘Yes!’ regardless of the truth, but this really and honestly is the case with a DUI.
First of all, if you are dealing with second or subsequent DUI in Pinellas County, it is ESSENTIAL to hire excellent DUI counsel. Whatever it takes to pay for it, be assured that this will be money well spent. If you are on your second or worse DUI, you are facing serious jail time and a long suspension of your driver’s license. Unless you relish the idea of cooling your heels in jail for several months, find the money to hire a good DUI lawyer.
Even if this is your first DUI, you will still want to hire a good lawyer. Here is why:
- Without a lawyer, you are guaranteed to have a DUI conviction on your record that can never be expunged in the state of Florida;
- Your driver’s license is going to be suspended, and that will probably happen without you ever seeing a police report, if you don’t have a good lawyer.
If you have a good DUI lawyer, she is going to challenge every piece of evidence against you. She will know where the prosecution may have a weak case, such as with that outdated, old breathalyzer they used on you when they first pulled you over, or that the breathalyzer at the station was not properly calibrated.
A good DUI lawyer could very well get your case dismissed or get it reduced to reckless driving. She also may be able to prevent your license from being suspended. There is virtually no chance that you can get yourself off of a DUI charge by yourself. The only way it is going to happen is with a good DUI lawyer.
If you are arrested for a DUI in Florida, you are not required to submit to a breathalyzer or blood test to test the level of alcohol in your blood. However, because of the implied consent laws in Florida, declining to take these tests will carry heavy consequences.
Under implied consent, if you are a licensed driver in Florida, you are exercising a privilege, which means that you are deemed under law to have given your consent to submit to tests to check your blood alcohol level at the discretion of law enforcement. These tests include a breathalyzer test, and a blood test. However, remember that implied consent does NOT mean that you have to take roadside sobriety tests, and there are no consequences for refusing to take these voluntary tests. A blood test can only be asked for if the breath test is very difficult to obtain, or if there was serious injury and/or death.
Also, remember that under Florida law, if you are involved in a DUI arrest where there was serious injury or death involved, the arresting officer MAY use what is termed ‘reasonable force’ to force you to submit to a blood test. Even if you say no, the officer may use ‘reasonable force’ to draw your blood, but only where there is severe injury or death.
If you are arrested for DUI and you refuse to take a breath or blood test, your license is automatically suspended. Also possible is that you will be charged with a misdemeanor for any subsequent refusal. For your first offense, your driver’s license will be suspended for one year for a refusal. If it is your second or subsequent DUI, your license is suspended for 18 months, and you will receive a misdemeanor charge in the first degree.
The best way to deal with your DUI arrest is to obtain top DUI legal council as soon as possible. Please contact Musca Law today so their top team of DUI lawyers can begin working on your case.
If you get a DUI in Florida, you should know that it will greatly increase your car insurance costs for five years. The type of insurance you need after a DUI in this state is known as FR-44, which is similar to SR-22 but now higher liability limits are required. Also, your Florida DUI often makes it pricier for you to buy other forms of insurance, such as life, medical and disability.
About the FR-44
The Florida FR-44 form is a document that shows your financial responsibility and also shows the liability limits of your insurance policy. You have to have it on file with the Florida DMV for three years after your license was suspended. This form also mandates that your insurance company inform Florida if they choose to cancel your policy.
You are required to increase the liability on your policy so that it covers bodily injury up to $100,000 per person, $300,000 per occurrence and $50,000 property damage liability coverage. This is known as 100/300/50 coverage.
Your monthly premium can go up as much as 300% from what you paid before your DUI. What is even worse is that your insurance company may opt to cancel your car insurance entirely. And when you go shopping for a new policy, you will be charged an even higher premium because your old policy was cancelled.
After you are convicted of DUI in Florida, your license is suspended. To have it reinstated, you must get an FR-44 form. You need to obtain this document from your insurance company. When you ask for this document, they then know your license is suspended. They will then change you to the highest risk category and your premiums will skyrocket.
If you ever are arrested for DUI in Florida or anywhere else, remember these seven magic words before you consent to any tests or provide any statements: “I want to talk to my attorney.’ You should be given a short period of time to consult with your lawyer before you have to submit to any sort of test or say anything. If law enforcement does not allow you to talk to your attorney right away, you are in luck because it is likely that any evidence they collected to that point will be thrown out in court.
Most law enforcement, however, are aware of this and will give you time to speak with your attorney before doing anything else with you. When you have a few minutes to talk to your Florida attorney, you should first ask whether or not you should take a breathalyzer test. There is no precise answer to this question; it mostly depends on your circumstances. Some of the key items your attorney should weigh include:
- What reason did the officer provide for stopping you?
- Was anyone in the car with you?
- Where did you come from and where were you going?
- Did you take a field sobriety test?
- How much did you drink?
- How long ago was your last drink?
- How many prior DUIs do you have (this is critical!)
Depending on the answers you provide, your attorney will advise you on whether or not to take the breathalyzer. He needs to help you make a judgement on whether the benefits of not taking the test in your situation outweigh the consequences. If you refuse to take the test, you are going to have your driver’s license suspended automatically for about six months. However, this could be a minor issue when compared to the possibility of being convicted of DUI. Again, it depends on your circumstances and a good DUI attorney will properly advise you.
If you are ever pulled over for DUI and need to speak to an excellent DUI attorney in Florida, be sure to contact Musca Law. Our phones are answered 24/7, and we can get you in touch with a top Florida DUI attorney quickly.
When you are convicted of driving under the influence in the state of Florida, you will have your driver’s license suspended for at least six months to one year. If this is your first DUI, you can possibly receive a hardship reinstatement for your driver’s license so that you can still earn a living.
If your driver’s license was suspended because of a blood alcohol content (BAC) in excess of .08, you need to do the following to apply for a hardship license:
- Demonstrate proof that you have enrolled in the Level I DUI course, which is a 12 hour class to educate you on the dangers of drinking and taking illicit substances while you are driving.
- When you have your certificate of completion for the DUI school, you need to apply for an administrative hearing to request a hardship reinstatement. The Department of Highway Safety and Motor Vehicles will conduct a review of your request when you apply for a hardship reinstatement.
- You must serve a minimum of 30 days’ driver’s license suspension before you can be eligible for a hardship license.
- If you refused to take a breathalyzer upon your arrest, you must serve a 90 day driver’s license suspension before you can be eligible for a hardship license.
However, if you are under 21 and blew a BAC of .02 or above, you must complete a course in traffic laws and substance abuse before you can apply for a hardship license. Also, if you blew 0.05 or higher, you must complete the DUI school mentioned above, as well.
You are ineligible for a hardship driver’s license if:
- You have refused to take a breathalyzer twice;
- You have been convicted of DUI two or more times;
- You are a commercial vehicle operator; you cannot receive a hardship license to drive a commercial vehicle.
If you have been arrested for DUI in Florida, this is not a case that you should handle on your own. A strong DUI attorney may be able to help you avoid some of the stiff penalties for DUI in Florida. Contact Musca Law today.
If you have been charged with DUI in Florida, you are well advised to keep three things in mind to ensure the best chances of your case having the best outcome.
First, timing is critical. What many people do not realize is that you may not be charged formally with DUI for months in some cases. The evidence in your case can start disappearing within hours or days of your arrest. The evidence that they used to make their charge may disappear by the time the charges are formally filed. For instance, many police departments only maintain their video recordings for a few days or weeks after the arrest. So, the sooner you find an excellent DUI attorney for your case, the more likely that he or she will be able to start tracking down the evidence of your case while it is still in existence.
Second, taking responsibility for what you did wrong is necessary. Only really dishonest lawyers are going to promise you that you are going to walk away from a DUI charge when you have really done something wrong. The task of your DUI lawyer is to be positive that your rights are not violated, and to ensure that your side of the arrest is known to the judge, jury and prosecutor.
There are occasions where people are accused of DUI unfairly, and there also are times where the police handle their duties improperly during your arrest. There may be a problem with the blood sample or breathalyzer, for example. So, there is a chance that your case can be dismissed, but usually the main task of your DUI lawyer is to ensure that you are not punished too harshly. Your lawyer may seek to get you a reduced sentence, or to get your DUI charge reduced to reckless driving or a lesser charge. In most DUI cases, you can be sure that you will at least need to attend counseling for the abuse of alcohol and may have your license suspended.
Third, you must be completely honest with your DUI attorney about all details of your case and your past. Remember that everything you tell him or her is confidential, under penalty of disbarrment. Your attorney cannot discuss anything you have said about your case without your direct permission. You are not taking any risk whatsoever by being totally honest with your DUI attorney. Honesty is vital because the prosecutor is going to find out about any criminal history you have, so your attorney needs to know well in advance of any criminal history or other negative past events that can be used against you at trial.
Your case will only be harmed if your attorney prepares a defense that does not take into account everything that the prosecution will use in the trial against you. Dishonesty with your attorney only harms the client-attorney relationship. No DUI attorney wants to be lied to, and if your lawyer cannot trust you, he or she cannot provide you with the best defense.
When you are looking for a top-notch DUI attorney, you are very well served to remember these three tips.
Being convicted of a DUI in Florida will put a major black mark on your criminal record for the rest of your life. So, it is strongly advisable that you do not make the following mistakes.
1. Giving Up Too Quickly and Accepting a Guilty Plea
It is perfectly understandable that you want to end this unpleasantness as soon as possible. It is understandable to want to just plea guilty and move on. The problem with this is that a DUI conviction will interfere with you getting on with your life forever. You are rarely going to be able to just get on with your life after a guilty plea to DUI. At the very least, it is prudent to at least pay for an hour of a good DUI attorney’s time to see what he or she may be able to do for you.
2. Hiring A Non-DUI Attorney Friend To Handle Your Case
If you require knee surgery, you would not hire an ophthalmologist to do the work, correct? Just as a good DUI attorney would never represent you in a real estate case, an attorney who is not an expert in DUI cases should not represent you here. Obtain expert DUI counsel.
3. Not Applying For Your Administrative Hearing To Keep Your Driver’s License Within 10 Days
If you do not meet this deadline, you cannot do anything about it. You have missed the hearing and your license is going to be suspended. If you consult a strong DUI attorney, he or she may be able to extend how long you can drive on the temporary permit. You may not have to have your license suspended entirely.
4. Thinking That a .08 Or Higher Breath Test Means You Cannot Fight the DUI
These are the sort of cases that top DUI attorneys win with regularity. It is certainly possible that your attorney can get your charges reduced to reckless driving. This is a significantly less damaging offense to have on your record.
5. Driving On a Suspended License After Your DUI Arrest
Do not ever take a bad situation and make it much worse by driving on a suspended license.
6. Not Realizing That Your Rights Were Violated During Arrest
Police violate the constitutional rights of citizens more than you might think. It is common for a good DUI attorney to get a case thrown out by proving that your constitutional rights were violated.
7. Thinking You Can Represent Yourself At the Trial
This is an exceedingly common mistake that many people make. In an attempt to save money, they go to court without a strong DUI attorney. DUI law is not for the layman. Have a highly experienced DUI attorney handle your case.
8. Thinking An Attorney Will Cost More Than A Guilty Verdict
Your DUI attorney will cost you, but it is merely a one-time cost. A DUI guilty verdict will continue to haunt you for years. You will have difficulty passing background checks, your health, life and automobile insurance will cost more, you will have trouble applying for loans, grad school. And your DUI conviction can never be expunged from your criminal record.
In summary, you are exceedingly likely to make critical errors during your DUI case without strong legal representation.
Many of our clients make the assumption that if you take a breath test on the road and show over the Florida legal limit of 0.08, you will be unable to contest the DUI charges in court. Actually, with strong legal representation, it is possible to have the breath test data excluded at trial. In this case, the prosecution will not be able to inform the jury that the breath test showed that you were over the legal limit.
The simple fact that you registered over 0.08 on the breath test does not mean that you cannot escape a DUI conviction. In some cases, a good attorney can have your charge reduced to reckless driving. This is a highly possible trial outcome if your defense can prove that the police made any type of error with the breath test. Moreover, there are medical factors in particular individuals that can bring into question the admissibility of breath data.
For example, some people’s lung function can be affected by their age or by other factors, which may cause the test to show a false reading. Or, you may have have dental work that can cause your mouth to appear to have alcohol residue during the breath test when it does not.
Also, the state of Florida is now using a new breath test device that is known as the Intoxilyzer 8000. Many effective DUI attorneys in Florida have had significant success in having the results from this device tossed out in court.
Previously, Florida used the Intoxilyzer 5000 to conduct its breath tests. Both the 5000 and 8000 use infrared light absorption analysis to detect the alcohol on your breath. Each machine requires that a sample of your breath be inserted into the sample chamber. The machine will transmit infrared light into this chamber. It is calculating the amount of light being absorbed by ethanol in the sample of your breath.
Both machines need a large enough breath sample to get a proper reading. For the 5000, this was based upon pressure, level slope, and time. For the 8000, it is minimum volume, slope and time.
For the 5000, much of the process of measuring the breath sample was done by the hardware, such as analog comparators, resisters and other hardware components. The 8000 does most of the analysis is done by computer calculations.
Some DUI attorneys have argued in court that the Intoxilyzer 8000 is not an officially approved machine in the state of Florida. Florida law stipulates that the Florida Dept. of Law Enforcement should only utilize machines that are listed on the Conforming Products List at the Department of Transportation in Washington DC.
The problem is that the Intoxilyzer machine that is used in Florida is not the same precise one that is listed in the CPL, so the 8000 should not be deemed an approved machine in Florida law.
Lastly, attorneys have argued that the 8000 test results should not be admissible because Florida and the manufacturer will not release the source code of the device. Without that data, it is impossible to verify if the machine is really operating properly.
Remember: An effective DUI attorney may be able to get your DUI charge either thrown out or reduced to a lesser charge, if he or she knows how to properly challenge the results of the Intoxilyzer 8000.
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