What should do if stopped for DUI? ... be polite.
Immediately request an attorney -- ask officer to note time of the request ... be polite.
Refuse to answer ANY questions (Other than name and address) ... be polite.
Produce requested documents (DL, Registration & Insurance) ... be polite.
Refuse ALL field sobriety tests... be polite.
Refuse a breath/blood/urine test (Unless under the legal limit ... see below) ... be polite.
Is it legal to drive after drinking alcoholic beverages?
It is never a good idea to drive, work a chainsaw, or operate any machinery after having consumed alcoholic beverages. It is legal in Florida to drink and then drive after having done so. However, it is not legal in Florida to drink and then drive under the influence of alcoholic beverages to the extent that one’s normal faculties are impaired and it is not legal to drive with an unlawful breath alcohol level regardless of whether or not one’s normal faculties impaired.
What do police look for trying to find impaired drivers?
Weaving Swerving Drifting
Failure to Maintain Single Lane Tire on or over lane marker Striking object or coming close
Driving off roadway Driving into opposing or crossing traffic
Turning abruptly or illegally
Speed below limit
Stopping without reason in traffic lane
Signaling inconsistent with driving Not signaling consistent with driving Driving with headlights off
Driving with high beams on Following too closely Braking erratically
Accelerating or decelerating rapidly
Slow response/Sleeping at traffic signals
If the traffic stop was illegal, can that benefit me?
The basis or underlying reason for the stop of your vehicle can be a critical issue in defending your charge. Your attorney may be able to suppress of all evidence, should the court be convinced that the law enforcement officer lacked probable cause of a traffic offense or lacked sufficient “reasonable suspicion” to justify the initial stop of your vehicle. The Fourth Amendment, unreasonable search and seizure, of the United States Constitution protects you in this regard. A law enforcement officer is precluded from stopping your vehicle simply based on a “hunch” that you are impaired. The facts and circumstances of every case are differ greatly. During our free consultation, I can evaluate the issues regarding the stop of your vehicle and any other possible defenses.
If I get pulled over, should I answer questions regarding drinking?
In Florida, it is not against the law to drink and then drive. It is only a violation of Florida law to drink to the point of impairment of normal faculties and then drive. So, if you have been drinking, the best answer is: Officer, I am not answering any questions. You are not required to answer questions that are designed to be incriminating. In any police encounter, a simple request to speak to your attorney before answering questions, would be an appropriate response. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. However, informing the officer that you had one or two beers should not be harmful since it usually would not cause a person to be impaired. Also, this response may explain away the odor of alcohol on a driver’s breath.
What signs of impairment do police look for during the traffic stop?
• Odor of alcohol from inside the vehicle then from the driver
• Flushed face
• Red, watery, glassy or bloodshot eyes
• Slurred Speech
• Fumbling with wallet while trying to get license
• Failure to comprehend officer’s questions
• Combative, argumentative, jovial, mood swings or other "inappropriate" attitude
• Lack of awareness in regards to time and place
• Unsteady of feet while exiting vehicle
• Swaying while standing
• Leaning on car for support
• Unable to follow police instructions or to "divide attention"
• Disheveled clothing
Do citizens have a right to an attorney when they are stopped by police?
No. You do not have a right to counsel until you are formally placed under arrest. In fact, you don’t have a right to speak to a lawyer until after the initial investigation on the street is complete, you have been arrested usually by placement of handcuffs. Keep in mind, however, that it may still be a good idea to request a lawyer when you are first stopped by the police. This is because some police officers will let you call a lawyer prior to having the right to do so. The most prudent course of action is to request a lawyer immediately upon being stopped. Ask the officer to note the time of your request on his or her report. Produce requested documents (driver’s license, registration and proof of insurance) and say -- and do -- nothing more.
What should I do if the police ask me to take standardized field sobriety exercises (SFSEs)?
If you have consumed alcohol, the safest thing you can do is say, Officer, I do not mean any disrespect, but I am not going to answer any questions. I am not going to attempt any field sobriety exercises. I am not going to take a breath or blood test.
But accept, you will be arrested and charged with DUI. However, you are not providing police and prosecutors with evidence to use against you. By denying them this evidence, you increase the likelihood that you will avoid a conviction for DUI.
Most officers will use a battery of three exercises. The normal three exercises are called the Standardized Field Sobriety Exercises (SFSEs) consisting of the Horizontal Gaze Nystagmus (HGN) (eye twitch) test; the walk-and-turn and the one-leg-stand. These tests sound simple. They are not. If the suspect is 65 or 50 pounds overweight the officer may give alternative field sobriety exercises (FSEs), including but not limited to the finger-to-nose, alphabet recitation, count backwards, modified position of attention, fingers-to-thumb, hand pat, etc.
Unlike the breath test, where refusal to submit has serious administrative and criminal consequences, you do not face suspension of your license by refusing to perform the SFSEs. You are not legally required to take any SFSEs. Understand that the police want you to help them make their case against you stronger. By performing SFSEs, you are simply helping the police manufacture evidence against you. Be aware that they fully intend on using this evidence against you in court. Most officers have made up their minds to arrest when they request you to perform the SFSEs, which the suspect inevitable "fails." Thus, in most cases a polite refusal may be appropriate.
Most experts agree that police officers are not well trained enough to accurately interpret the symptoms observed while administering these evaluations. This doesn’t mean that you need to be rude or nasty to an officer if he asks you to do a field sobriety test. Instead, its a good idea to " respectfully decline" all tests on the roadside.
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Do I have a right to an attorney when I'm asked to perform the SFSEs?
No. You do not have a right to counsel until you are formally placed under arrest. By this time most DUI arrestees have already said -- and done -- too much. The officer has already decided to arrest you before asking you to step out of your vehicle and perform the SFSEs. In effect, by asking you to perform these tests the officer is simply seeking additional evidence against you because these exercises are designed, and scored, to make the subject "fail" or appear to be impaired. The most prudent course of action is to request a lawyer immediately upon being stopped. Ask the officer to note the time of your request on his or her report. Produce requested documents (driver’s license, registration and proof of insurance) and say -- and do -- nothing more.
Why did the officer make me follow a penlight with my eyes to the left and right? Why should I refuse HGN?
This is the "horizontal gaze nystagmus" test. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical term for eye jerking); if this occurs sooner than 45 degrees, it indicates an excessive blood-alcohol concentration. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the jerking when the eye is as far to the side as it can go.
This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to diagnose a neurological condition, recognize nystagmus and estimate the angle of onset without the aid of a precise measuring device. Because of this, and the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states. The HGN test is not admissible without first requiring the State to meet the criteria for the admission of scientific evidence as delineated by the United States Supreme Court in Daubert vs. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S CT 2786 125 L. Ed. 2nd. 469 (1993).
Why should I refuse the walk and turn?
This test is so complicated that most people attempting it for the first time will have difficulty following instructions and will make numerous errors. Consider the walk-and-turn test. If administered correctly, the officer should give you the following instructions:
• Stand here (pointing to a specific location);
• Stand with your right foot in front of your left foot;
• Your right heel should be touching your left toe;
• Keep your arms at your side;
• Do not move from this start position until I tell you to start;
• When I tell you to start, take nine steps;
• Walk on a straight line;
• Walk without stopping;
• On each step, touch the heel of your front foot to the toe of your back foot;
• Count out loud;
• Keep your arms at your side;
• When you reach the ninth step, plant your left foot;
• Turn in a counter clockwise direction;
• Take small steps with your right foot as your turn;
• Take nine steps back to the starting point in the same manner.
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Should I take a breath, urine or blood test? What will happen if I refuse?
If you are operating a vehicle within Florida, you are presumed to have already given your consent to submit to a test meant to detect the presence of alcohol in your breath. You are also presumed to have given your consent for a urine test to determine the presence of any controlled substances. Police are permitted to ask for either a breath test, a urine test, or both tests and in some cases blood tests. When you examine your Florida driver’s license you will see that it contains the warning, “Operation of a motor vehicle constitutes consent to any sobriety test required by law.” This is your consent (implied) to taking a breath test.
Take a breath, urine or blood test only if you are certain that you will blow under the legal limit (.08), that is, only if you have consumed two or fewer alcoholic beverages. If you initially refuse, the officer must advise you of the state's "implied consent" law which is your legal obligation to take a chemical test and the consequences if you refuse. Keep in mind, if you refuse the offered test after being arrested, you will lose your driver’s license for 12 months and if you have refused on a prior occasion the suspension will be for 18 months. This is true even if you are found not guilty of the DUI charge. Also, the fact of your refusal can be introduced into evidence at trial as "consciousness of guilt." Of course, the defense is free to offer other reasons for the refusal.
Thus, the decision of whether to take the test is one of weighing the likelihood of a high blood-alcohol reading (over .08) against the administrative consequences (1-year DL suspension) for refusing. By refusing a BAC test, particularly when you are likely to have a high reading, you deprive the state of potentially compelling evidence against you.
Many lawyers agree that the above tests are not completely accurate and therefore should not be taken. However, if you agree to take the breath test and blow over the legal limit of .08, you will also lose your license for 6 months although the police are not required to advise you of this fact. If you do refuse to take the test that the police offer, the officer will take your license and your DUI traffic ticket will be a 10 day driving permit. During this 10 days, you must request a “formal review” at the DMV’s Bureau of Administrative Review to fight the suspension.
Most citizens do not understand that after their arrest, they are not entitled to speak to a lawyer when confronted with the decision of taking or refusing a blood, breath or urine test.
What is the 10-day rule?
Whether you blew over .08 or refused, you can challenge your administrative driver’s license suspension within ten days from the date of your arrest. The officer will take your driver’s license and your DUI traffic ticket will be your 10-day Florida driving permit. During this 10 days, you must request a “formal review” at the DMV’s Bureau of Administrative Review to fight the suspension. If you fail to request the hearing within 10 business days of your arrest, your license will automatically be suspended.
How can the law enforcement officer seize my driver’s license if I have not been proven guilty yet?
In Florida, your driver’s license may be immediately suspended and seized if you submit to a breath test that is over .08 or for refusing to submit to a lawful request for breath, blood, or urine. If your driver’s license was seized by law enforcement, it was taken under the authority of “Florida’s Implied Consent Law” and represents an “administrative suspension” as opposed to a “court imposed suspension. This “administrative suspension” can be challenged through a DHSMV formal review hearing.
After the officer takes my license, can I still drive?
If your privilege to drive was valid at the time you were arrested for DUI, then the DUI “Uniform Traffic Citation” you received serves as a temporary driver’s license and enables you to lawfully drive for ten days following the date of your arrest. Under most circumstances, the request for the “Formal Review” hearing will cause a “Temporary Driving Permit” to be issued for you. This “Driving Permit” is valid for an additional six week (42 days) period. Your failure to request “Formal Review Hearing” within the first ten days will result in an automatic administrative suspension of your driving privilege.
What happens if I get caught driving while my DL is suspended for DUI?
If you get stopped, the police will find out that you are driving under a DUI suspension. They will arrest you and bring you to jail. The vehicle will likely be towed. The jail judge will increase your bond due to the DUI suspension. A first offense for driving with a suspended license (DWLS) is a second degree misdemeanor which can result in 60 days jail and a fine of up to $500.00. A second offense may be charged as a first degree misdemeanor, which carries a maximum penalty of 1 year in jail and a $1,000.00 fine. A third offense in Florida may result in felony charges, with up to 5 years in prison and maximum fine of $5,000. DO NOT DRIVE WITHOUT A VALID DRIVER'S LICENSE!! Again, Do not drive without a valid driver's license!
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Can I be charged with DUI if I blew less than a .08 BAC?
Yes. In Florida, it is illegal to drive if your normal faculties are impaired. When you were arrested the police had probable cause that your normal faculties were impaired. You are presumed impaired if your BAC is .08 or greater, but you can still be convicted of DUI if your BAC is lower than the .08 legal limit. The police do not unarrest you when you blow below .08. In most instances, where a driver blows under a .08, law enforcement will request a urine sample (test) for laboratory analysis to reveal any use of controlled substances. The State Attorney’s Office will have to prove that your “normal faculties were impaired.” However, blowing under the legal limit may make your case a good candidate for a reduction from DUI to reckless driving.
Will my case get dismissed if the officer doesn’t give me a Miranda warning?
No. The officer is supposed to give a Miranda warning only after he arrests you. The police will delay the arrest decision long enough to allow you to make numerous inculpatory statements. Police are required to advise a person of his or her Miranda rights when that person is in custody and is being interrogated about a criminal offense. Put simply, any incriminating statements that you make to police in response to questioning after you’re placed in custody and without the benefit of a Miranda warning, are not admissible in court. The only consequence of a Miranda violation is that the prosecution may not use any of your answers to questions asked by the police after the arrest. Even this limitation has been eroded because statements made in violation of Miranda can be used for impeachment purposes should you testify at trial. As a general rule, it is not a good idea to say anything incriminating to the police before, during or after your arrest.
Can I represent myself?
You can represent yourself -- although it is not a good idea. "Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated scientific, procedural, evidentiary, constitutional, sentencing and administrative license issues.
What can a lawyer do?
A qualified attorney can review the case for defects, move to suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, negotiate with the State Attorney and if needed prepare for a jury trial.
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DUI Attorney John C. Murphy (321) 985-0025
Contact DUI Defense Attorney John C. Murphy for the DUI defense representation you deserve. The initial consultation is free and I am always available to advise you on the proper course of action to take.