DUI - Driving Under the Influence


SHORSTEIN, LASNETSKI, & GIHON
helps people defend against DUI convictions.

A DUI arrest can have serious consequences.  Not only will a conviction for DUI stay on your criminal record, it cannot be sealed or expunged, it can raise your insurance premium, it can affect your ability to get or retain a job, and it will result in a driver's license suspension.

What is a DUI in Florida? 

A DUI, or Driving Under the Influence, is defined in Florida Statute 316.193.  In order for you to be convicted of a DUI, the State must prove:
1.   You drove or were in actual physical control of a vehicle, and

2.   While driving or in actual physical control of a vehicle, you
a.   were under the influence of an alcoholic beverage, a chemical substance, or a controlled substance to the extent that your normal faculties were impaired, or
b.   had a blood or breath alcohol level of .08 or more

What is "actual physical control?" Can I be arrested for DUI if I'm not driving?

"Actual Physical Control" means that you must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether you are actually operating the vehicle at the time. 

This is a very broad definition that means that if you are sleeping in a parked car with the keys near you, you can be prosecuted for DUI.  The car does not have to be turned on and the keys do not even have to be in the ignition. 

Some common defenses to actual physical control cases are that the vehicle was not capable of being operated or that you did not have the capability to operate the vehicle because the keys were not within immediate reach.

What are "normal faculties"? 

"Normal Faculties" is defined to include, but not be limited to, the ability to: 

See 

Hear 

Walk 

Talk 

Judge Distances 

Drive an Automobile 

Make Judgments 

Act in Emergencies, and 

In General, to Normally Perform the Many Mental and Physical Acts of Our Daily Lives 

How do you know if my normal faculties are impaired?

Police officers used field sobriety exercises to help them determine whether a persons normal faculties are impaired.  The officer then makes a judgment call and bases his or her arrest on their opinion that your normal faculties are impaired.  This is why it is important to know why the officer is having you do the field sobriety exercises.

In addition to the field sobriety tests and when you refuse to take the field sobriety exercises, the officer will list other "signs of impairment" to enhance his finding of probable cause that your normal faculties are impaired.  You will see the following buzz words or phrases in almost every DUI arrest report:

Odor of Alcoholic Beverage
Bloodshot, watery eyes
Flushed Face
Slurred Speech
Thick tongued
Unsteady
Fumbled for license
Droopy eyes
Lethargic


Officers know that these words, or some combination of these words, must be in the police report to establish probable cause.  There may be many different causes for each of these observations that are not related to impairment.  These observations are also the officers opinion. 

The fact of the matter is that there is no way to know if one's normal faculties are impaired.  There is no magic test.  That is why, under Florida law, if you provide a breath or blood sample, that is .08 or higher, the State does not have to prove that your normal faculties are impaired.  They can simply rely on those results.  Without a breath or blood sample, the State would have to prove to the jury that your normal faculties were impaired through the testimony of the officer on his or her observations, or rely on a video recording if one is available, or rely on other evidence or witness testimony to prove that your normal faculties were impaired. 

What are field sobriety tests?

Field Sobriety Tests consist of standardized and non-standardized tests that officers use to form an opinion on whether your normal faculties are impaired or not.  One problem with these tests is that officers are only looking for and marking down what you do wrong and ignoring what you do right.  The results of each test are open to interpretation.  Officers use their interpretation of these tests as evidence against you.  In fact, they won't even call them tests.  They call them field sobriety exercises.  This doesn't sound so pass or fail to a jury when a DUI case goes to trial. 

Some of the tests are standardized, meaning that the way it is performed by an officer in Jacksonville should be the same way it is performed in Orlando, or Alaska, or Hawaii, or anywhere else.  If the officer deviates from the standardization, the results may not be admissible.  If there is a video, the jury would be able to see how well or poorly you did for themselves.  If there is no video, the jury will hear the officers version of how well or poorly you did through his or her colored lenses. 

There are three standardized tests and two optional tests. 

STANDARDIZED TESTS:

HGN TEST

The HGN test is designed to determine whether a person is impaired by alcohol be testing the muscles in their eyes when those muscles are strained.  The officer will have you stand with your hands to your sides, keep your head still and follow a pen with your eyes only.  He or she will have you follow the pen with your eyes to the left, to the right, up and down.  The officer is looking for twitching in the eye, dilation of the pupils, and other indicators of impairment by alcohol or drugs.  Only certain officers specially trained as drug recognition experts, will be able to testify that they believe you were impaired based on the results of this test, but it can be used in a probable cause determination.

The other importance of this test is that the officer will testify whether you were able to maintain your balance, whether you swayed, whether you followed instructions, and whether you moved your head during the test. 

ONE LEG STAND TEST

The One Leg Stand test consists of standing with your feet together and arms to your side.  You would decide which leg you were going to raise and then you would raise that leg six inches off the ground for 30 seconds while looking down at your foot.  If you raise your leg too high or not high enough, the officer may consider that a sign of impairment.  If you sway, put your foot down, fail to look at your foot, or use your arms for balance, the officer will consider those signs of impairment. 

WALK AND TURN TEST

The Walk and Turn Test consists of helping the officer place a long yellow tape down on the ground.  The officer then asks you to stand with one foot on the tape and to place the other foot directly in front of that foot.  The officer tells you to place your hands down by your side and to remain in that position while he gives you instructions.  The officer will instruct you to place the back foot directly in front of the front foot with your heal touching your toe.  The officer will instruct you to take 9 heal to toe steps on the line keeping your arms to your side and not using your arms for balance.  On the 9th step, you are to take several small steps to turn and take 9 more steps heal to toe back to where you began. 

If you do not touch your heal to your toe on each and every step, the officer will mark that on his or her field sobriety report.  If you slightly step off the line, the officer may mark that as well. If you do not take exactly 9 steps up and 9 steps back, the officer will use this in his or her determination on whether you are impaired.  If you do not take several small steps during your turn, the officer will also notate that.  If you use your arms for balance, this too will be written down as evidence of impairment. 

NON-STANDARDIZED TESTS:

FINGER TO NOSE TEST

The Finger To Nose Test consists of standing with your feet together, arms to your side and your head back.  The officer will say "right" or "left" and you are instructed to life the index finger on the hand that the officer calls and to touch the tip of your finger to the tip of your nose.  You will also be instructed to remove your finger after you touch your nose and place your hand back down by your side.  The officer will do this six times.  If you don't touch the tip of your finger to your nose, this will be marked on the field sobriety report.  So, for example, if you touch the pad of your finger to the tip of your nose, this would be evidence of impairment.  If you touch the tip of your finger to any place on your nose that is not the tip, this also would be used against you as evidence of impairment.  The officer would also notate if you forget to remove your finger from your nose, use the wrong hand, your eyes do not remain closed, you sway, or you use your arms for balance, all as evidence of impairment. 

RHOMBERG ALPHABET TEST

The Rhomberg Alphabet consists of standing with your hands to your side, with your head back and eyes closed and you will be asked to recite the alphabet slowly and without singing.  The officer is looking to see if your eyes remain closed, whether you sway, whether you use your arms for balance, and whether you get your alphabet wrong or sing it. 

RHOMBERG BALANCE TEST

The Rhomberg Balance Test consists of standing with your hands to your side, with your head back and eyes closed and the officer will ask you estimate 30 seconds in your head and to tell the officer when you think 30 seconds have elapsed.  During this test, the officer is looking to see if you sway, whether you keep your eyes closed, how close or off you are on the time estimation, and whether you use your arms for balance. 

Do I have to submit to the Field Sobriety Exercises?

You are not required by law to submit to field sobriety exercises.  Your license cannot be suspended simply for refusing to submit to these exercises.  However, your refusal to submit to the exercises could be used against you in court.  In other words, the prosecutor can tell the jury that you refused the exercises because you knew you were impaired.  Of course, you, and your attorney, would be able to rebut this claim and explain why you refused, which could be because the officer wasn't treating you fairly, you have medical issues, you don't trust the exercises, someone you trust told you not to, or any other valid reason. 


Do I have to submit to the breath test?

Florida has an "Implied Consent Law."  This means that when you get your driver's license, you give consent to submit to any sobriety test required by law.  It's right there on your driver's license, but you probably never even realized it. 

"Operation of a motor vehicle constitutes consent to any sobriety test required by law." 

This means that if you refuse to take the breath test, or Intoxilyzer, then your license will be suspended for that reason.  The prosecutor can also argue to the jury that you refused to take the breath test because you knew you were impaired. 

However, if you do submit to the breath test and blow a .08 or more, the State no longer must prove that your normal faculties were impaired.  They can simply rely on your breath test results. 

Second Refusal

It is not a crime to refuse a breath test, unless you have refused once before.  Under Florida Statute 316.1939, it is a crime to refuse to submit to a breath test when:
1.   A police officer had probable cause to believe you drove or were in actual physical control of a motor vehicle in this state while

a.   under the influence of an alcoholic beverage, chemical substance, or controlled substance to the extent your normal faculties were impaired, or

b.   your breath or blood alcohol level was .08 or higher.

2.   The police officer lawfully arrested you for DUI or requested blood.

3.   You were informed that if you refuse to submit to a chemical or physical test of your breath, blood, or urine, your privilege to operate a motor vehicle would be suspended for 1 year, 18 months if a second or subsequent refusal.

4.   You were informed that it is a misdemeanor to refuse to submit to a lawful test of your breath, blood, or urine if your driving privilege had been previously suspended for a prior refusal to submit to a lawful test of your breath, blood, or urine.

5.  You, after being so informed, refused to submit to a chemical or physical test of your breath, blood, or urine when requested to do so by a police officer, or correctional officer, and

6.   Your driving privilege had been previously suspended for a prior refusal to submit to a breath, blood or urine test. 


Do they have to video record my DUI?

No.  There is no legal requirement for law enforcement to videotape the DUI investigation.  DUI videos often help in defending your case because they may clearly show that the officer has embellished his or her report or even made conflicting statements in the report.  If they did not videotape the DUI investigation, your criminal defense attorney can cross examine the officer on why they did not preserve evidence by videotaping the investigation. 

Will my driver's license be suspended?

Each DUI case is different, but they all follow a similar procedural path.  Your license will be subject to administrative suspension and then to suspension following a conviction for DUI. 

ADMINISTRATIVE SUSPENSION


When a person is arrested for DUI, their driver's license is immediately suspended and confiscated by the police officer.  The officer will usually give you a citation for DUI, which also serves as a hardship license for 10 days.    You have 10 days to notify DHSMV of your intent to appeal your administrative suspension and to have an administrative hearing or you can waive your right to that hearing. Your decision will affect when you can apply for a hardship license. 

If you waive your right to appeal the administrative suspension, you may be able to obtain a hardship license without a waiting period.  If you do nothing, or if you decide to appeal the administrative suspension and lose the appeal, you will not be able to obtain a hardship license for 30 days (if you submitted to the breath test) or 90 days (if you refused a breath test).  (This applies only to people with no prior DUIs.  Please read about hardship licenses below if you have prior DUIs). 

Should you decide to appeal the administrative suspension, Shorstein, Lasnetski, & Gihon will represent you at the administrative hearing, subpoena and question the officers, and fight to get your license back.

SUSPENSION UPON CONVICTION


In addition to the administrative suspension, your driver's license will be suspended upon conviction in a criminal court of law.  Oftentimes, this suspension will run concurrently, or with, your administrative suspension.  If your administrative suspension ends before you are convicted in the criminal court, you would be able to again obtain a hardship license with no waiting period, if you are otherwise eligible. 

How will you defend my DUI case?

The consequences of a DUI are serious and expensive.  Shorstein, Lasnetski, and Gihon will represent you throughout the criminal process

Many people who are arrested for a DUI have never been to jail before.  It is a scary and confusing process.  The Judge and prosecutor move through the docket at a rapid pace and nobody wants to take the time to listen or to explain anything. When you retain Shorstein, Lasnetski, & Gihon,  we take the stress and uncertainty out of the process. We will fully explain the process throughout the entire case.  We inform you of what's going on and will always be accessible to you for questions.  

The first thing we will do is obtain discovery (police reports, DUI video, etc.) and determine whether there are any legal issues that warrant a motion to suppress, motion to dismiss or any other legal motion that should be filed.  We will also investigate the factual issues that are to your benefit.  Even if you think there is no defense, there may be fatal legal or factual flaws in the case.  If the Judge grants a Motion to Suppress or Dismiss, that could result in the State not having enough evidence to proceed and they may have to drop the case.  

In most cases, we can go to court hearings on your behalf without you having to appear, spending hours in court, and missing work or having to secure child care. When you are in court,  we will be there to speak on your behalf and to make sure your voice is heard and that you understand everything that is going on.

Finally, we will be there to represent you at trial or to negotiate a beneficial sentence taking into account what is important to you.  

What are the consequences of a First DUI conviction?

The legislature has provided that there be minimum mandatory sentences for DUI conviction.  This means that every judge in the State of Florida must sentence every DUI defendant in the state to the minimum sentence below.  Of course, judges can sentence individuals up to the maximum sentence listed below. Below, we have provided the minimum and maximum range that any judge can sentence a person to in the State of Florida.  

JAIL:
  • MINIMUM - No mandatory minimum jail sentence
  • MAXIMUM - Up to 6 months (Up to 9 months if BAC (Breath Alcohol Content) is .15 or higher or if a minor is in the car; up to 12 months if property damage or personal injury). 
FINE:
  • MINIMUM - $500 ($1000 if BAC is .15 or higher or a minor is in the vehicle)
  • MAXIMUM - $1000 ($2000 if BAC is .15 or higher or a minor is in the vehicle)
DRIVER'S LICENSE SUSPENSION:
  • MINIMUM - 180 days
  • MAXIMUM - 12 months 
PROBATION:  
  • MINIMUM: No statutory minimum
  • MAXIMUM: 12 months
COMMUNITY SERVICE HOURS: 
  • MINIMUM: 50 hours (or $10/hour if judge allows)
  • MAXIMUM:  No statutory maximum
IGNITION INTERLOCK:
  • MINIMUM - None (6 months if .15 BAC or more)
  • MAXIMUM - 12 months 
IMPOUNDMENT: 10 day vehicle impoundment/immobilization required, unless family has no other transportation. 

DUI SCHOOL REQUIRED.
VICTIM IMPACT SCHOOL MAY BE REQUIRED. 


What are the consequences for a Second DUI?

JAIL:
  • MINIMUM - 10 days if prior DUI was within 5 years of conviction; no minimum jail sentence if prior DUI was outside 5 years. 
  • MAXIMUM - Up to 9 months (Up to 12 months if BAC is .15 or higher or if a minor is in the car; up to 12 months if property damage or personal injury). 
FINE:
  • MINIMUM - $1000 ($2000 if BAC is .15 or higher or a minor is in the vehicle)
  • MAXIMUM - $2000 ($4000 if BAC is .15 or higher or a minor is in the vehicle)
DRIVER'S LICENSE SUSPENSION:
  • MINIMUM - 5 year revocation if conviction within 5 years of prior DUI (eligible for hardship license after 1 year); if conviction outside 5 years of prior conviction, minimum 180 day revocation.  
  • MAXIMUM - No statutory maximum
PROBATION:  
  • MINIMUM: No statutory minimum
  • MAXIMUM: 12 months

COMMUNITY SERVICE HOURS: 
  • MINIMUM: No statutory minimum
  • MAXIMUM:  No statutory maximum

IGNITION INTERLOCK:
  • MINIMUM - Mandatory 1 year (2 years if .15 or more)
  • MAXIMUM - No statutory maximum

IMPOUNDMENT: 30 day vehicle impoundment/immobilization required if conviction is within 5 years of first DUI, unless family has no other transportation. 

DUI SCHOOL REQUIRED.
VICTIM IMPACT SCHOOL MAY BE REQUIRED. 


What are the consequences for a Third DUI?

JAIL:
  • MINIMUM - 30 days if DUI is within 10 years of prior DUI; no minimum jail sentence if not within 10 years. 
  • MAXIMUM - Up to 12 months (Up to 5 years as a 3rd Degree Felony if third violation occurs within 10 years of of prior conviction).  
FINE:
  • MINIMUM - $2000 ($4000 if BAC is .15 or higher or a minor is in the vehicle)
  • MAXIMUM - $5000 
DRIVER'S LICENSE REVOCATION:
  • MINIMUM - 10 years if conviction within 10 years of prior DUI (maybe eligible for a hardship license after 2 years)
PROBATION:  
  • MINIMUM: No statutory minimum
  • MAXIMUM: 12 months (5 years if filed as a felony)

IMPOUNDMENT: 90 day vehicle impoundment/immobilization required if conviction within 10 years of prior DUIs, unless family has no other transportation. 

IGNITION INTERLOCK:
  • MINIMUM -Mandatory 2 year (if 3rd w/in 10 years or qualify for permanent or restricted license)
  • MAXIMUM - No statutory maximum
DUI SCHOOL REQUIRED.
VICTIM IMPACT SCHOOL MAY BE REQUIRED. 

* A third DUI within 10 years can be prosecuted as a felony, which would increase the maximum sentence to 5 years in prison and a maximum fine of $5000.  

What are the consequences for a Fourth DUI? Is it a Felony?

JAIL:
  • MINIMUM - No mandatory minimim jail sentence
  • MAXIMUM - Up to 5 years in prison.  
* A 4th or subsequent DUI can be prosecuted as a felony regardless of when the prior DUI's occurred.  However, there are legal requirements for the State to be able to use those prior convictions against you to obtain a felony conviction.  

FINE:
  • MINIMUM - $2000 ($4000 if BAC is .15 or higher or a minor is in the vehicle)
DRIVER'S LICENSE SUSPENSION:
  • MINIMUM - Mandatory permanent revocation (No hardship license permitted)
PROBATION:  
  • MINIMUM: No statutory minimum
  • MAXIMUM: 5 years

What is a Wet Reckless?

Sometimes the prosecutor and the defense attorney may agree to a "Wet Reckless."  Basically, a "wet reckless" is a plea to the charge of Reckless Driving, with all the terms and conditions of probation of a DUI.  The benefits are that you may be able to receive a withhold of adjudication on a Reckless Driving, as opposed to a mandatory adjudication of guilty on a DUI.  You also will not be subject to enhanced penalties should you receive a second DUI.  The stigma of having been convicted of a DUI is also worse than a conviction for Reckless Driving.  A "Wet Reckless" is usually negotiated when the evidence of impairment is somewhat weak, but there is still a chance that a jury could come back guilty on the DUI.  Whether a prosecutor offers a "Wet Reckless" and whether you accept it depend on the evidence and your risk tolerance on whether you want to risk going to trial.  The risk depends on the evidence, the judge in the case, and other factors.  Talk to your criminal defense attorney about a Wet Reckless. 


These are only a small sampling of issues and laws pertaining to DUI cases in the State of Florida.  Call us for a free consultation on your DUI case so we can answer all of your questions.  Put the power of four prior prosecutors with big firm experience, and small office care to work for you. 

Call Shorstein, Lasnetski & Gihon now at
904-642-3332 (Jacksonville) or 407-228-2019 (Orlando).
 
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