DUI Defense FAQs


Q: How Does The Court Decide On DUI Charges?
A: The anatomy of a DUI offense is based on many circumstances. To understand the best ways to defend a DUI case, it is first important to know the elements of the charge. For a simple DUI, the State must prove that the defendant was driving or in actual physical control of a motor vehicle. Secondly, they must prove that the defendant was under the influence of alcoholic beverages to the extent that his/her normal faculties were impaired or that his/her blood alcohol content was over .08 grams of alcohol per 100 ml of blood. The first question, which isn’t as obvious as it would seem, is can they prove you were driving or in actual physical control. If there was an accident and you are standing by the vehicle, the answer may be no even if you admitted driving. The state has to prove that a crime was committed before your statement comes in. If you were not in an accident, why did the officer stop you? If his reason was not valid all his observations after stopping you will be thrown out. This can be accomplished through a motion to suppress. The second question is impairment. Once the officer stopped you, why did he ask you to get out of the vehicle? If he did not have a valid reason a motion to suppress may be effective. What signs of impairment did the officer observe? Bloodshot eyes may be caused by it being late. An odor of alcoholic beverages has no bearing on how much someone has had to drink. Field sobriety exercises are often utilized to test someone’s “normal faculties,” but how often does someone walk a heel to toe line or balance on one leg? Calling the results of these exercises into question can save the day in defendant a DUI prosecution.
Q: What Is A Felony DUI?
A: There are several ways that a DUI can become a felony. If someone suffers serious bodily injury as a result of a DUI, the charge automatically becomes a third degree felony with a maximum penalty of up to five years in prison. If someone dies, the charge becomes DUI Manslaughter, a first degree felony with a maximum penalty of thirty years. If a DUI is a third within ten years of the last conviction, or a fourth DUI it becomes a felony. For obvious reasons individuals charged with felony DUI need to take their charges seriously. The State Is likely to seek incarceration for an extended period of time. Preparing a strong defense may be the only way to stay out of jail or prison. If a motion to dismiss or suppress is not an option in your case there are still actions which can reduce your penalties. You may be eligible for diversion. The State can even be forced to offer you diversion under certain circumstances. Beginning treatment on your own may show the State and Court that you take the matter seriously and are trying to deal with your drug problem.
Q: Am I Eligible For A Business/Hardship License?
A: Whether you are eligible for a hardship license is a question Faett and Darrow can answer for you. Moreimportantly, if you are eligible we can help prepare you for the questions the Department of Motor Vehicles will ask you and, if necessary, attend the hearing with you. The rules regarding first DUI suspensions have recently changed. If you are willing to waive your administrative hearing, you can get a business purpose license from the very beginning of your suspension. If you do not waive, you will have 30 days of hard time if you blew over the legal limit and 90 days of hard time if you refused the test once your permit expires. You will have to sign up for DUI school to get this permit. If you have been convicted of your first DUI, you have to have completed DUI school to get the permit. The following are Driver License Revocation Periods for DUI-s. 322.271, F.S. and s. 322.28,F.S. A. First Conviction: Minimum 180 days revocation, maximum 1 year. B. Second Conviction Within 5 Years: Minimum 5 years revocation. May be eligible for hardship reinstatement after 1 year. Other 2nd offenders same as “A” above. C. Third Conviction Within 10 Years of the second conviction: minimum 10 years revocation. May be eligIble for a hardship reinstatement after two years. D. Fourth Conviction, Regardless of When Prior Convictions Occurred) and Murder with Motor Vehicle: Mandatory permanent revocation. Can seek hardship reinstatement after five years. E. DUI Manslaughter: Mandatory permanent revocation. If no prior DUI related convictions, may be eligible for hardship reinstatement after 5 years. F. Manslaughter, DUI Serious Bodily Injury, or Vehicular Homicide Convictions: Minimum 3-year revocation. DUI Serious Bodily Injury having prior DUI conviction is same as “B-D” above.
Q: What Does A Violation Of Probation For A DUI Include?
A: DUI probation has more terms than almost any other forms of probation. It controls what you can consume, where you can go, and how you can get there. It is therefore not surprising that violations of probation for DUI’s are quite common. Even if you did not receive jail time originally the judge may order incarceration if you are found to have violated your probation. Due to the technical nature of probation violations it is important that you have an attorney experienced in handling DUI violations of probation. While our first goal is to win the violation, how you present yourself and what you do while waiting for a court date can have a great impact on your ultimate sentence. We can help you do what you need to do to get your life back in order and minimize your exposure.
Q: How Do I Challenge A Breath Test?
A: Just because you blew above the legal limit all is not lost. There are many ways to attack the validity of the breath test results. First, we look at the maintenance and certification of the particular machine in your case. How the test was administrated is also important (did you burp or vomit?). If the proper guidelines have not been followed we may be able to have the results kept out of court. It may also be possible to convince a jury that the breath test results are improper if the results are inconsistent with other signs of impairment. It is important that a qualified attorney analyze the breath test results in your case. The State will often go forward on breath results alone, and if they are not properly challenged it will be difficult for you to win your case.
Q: What Is Drug Court?
A: If you have a substance abuse program drug court may be an alternative for you. With a normal period of eighteen months, drug court is an intensive form of probation. You will have to attend meetings and treatment and go to court once a week. In some circumstances drug court is diversionary and charges will be dropped, in others it is probationary.
Q: Should I Request A DMV Hearing To Get My License Back?
A: During the ten days following your arrest you have to make a decision as to whether to request a hearing with the Department of Motor Vehicles. If it is your first DUI arrest you may have the option to waive this hearing and be given a work permit for the entire period of your suspension. However, you may still want to request the hearing if there is a valid basis to challenge the suspension. It is essential that you talk to a qualified attorney before making this decision. The Faett Firm has handled numerous Department of Motor Vehicle suspension hearings. We can help you decide whether to request a hearing or waive that right if you are eligible. We will assist you with preparing and filing the necessary paperwork either way you decide to proceed.
Q: Driving Under The Influence With Drugs?
A: You can be accused and convicted of DUI even if you have not had a drop to drink. In addition to it being illegal to drive under the influence of alcohol, Florida Statute 316.193 makes it illegal to drive under the influence of a controlled substance if your normal faculties are impaired. If you are suspected of being under the influence of a controlled substance the arresting officer will usually bring a “drug recognition evaluator” in to give you tests at the jail. The standard for testimony from such witnesses at trial has changed. In the past, Florida used the Frye standard. The Federal or Daubert standard was recently adopted. The Faett Firm has motions pending to challenge the admissibility of such testimony under the new standard. This area of law if likely to be heavily litigated over the next few years and our firm is ready to jump into the fray. The charge of driving under the influence of a controlled substance requires experienced defense. The drug recognition evaluator will normally request a urine sample. Even if this sample tests positive, it may be possible to exclude it if it does not quantify the amount of drugs in the urine, making it useless at telling when the person took them. The specific officer’s training and experience in recognizing impairment is also important.
Q: Driving Under The Influence With An Underage
A: The criminal rules and penalties for a driver under the age of 21 who is convicted of DUI are the same as those for adults (with the exception of the fact that people under the age of 18 cannot be sent to jail). There are, however, more strict administrative penalties for underage individuals. The blood alcohol level which triggers an administrative suspension for underage drivers is .02 as opposed to .08. This means that if an underage driver has consumed even a minimal amount of alcohol they can face an administrative suspension of 6 months. While the criminal law requirement s for underage DUIs are the same, prosecutors often take them more seriously. Obviously, if an individual is underage and has been drinking they were breaking the law prohibiting possession of alcohol even before they got behind the wheel. Prosecutors often take this into account, along with a desire to teach an underage driver a lesson, and seek more serious penalties. If you are underage and either charged with a DUI and/or facing an administrative suspension, it is important that you seek counsel and defense yourself.
Q: Driving Under The Influence With A Suspended License
A: Not having a valid license due to suspension can snowball on someone if they are not careful. The first offense, if you do not know it is suspended, is only a traffic ticket. If you know your license is suspended the first offense is a second degree misdemeanor. A second offense with knowledge is a first degree misdemeanor. A third offense, or if your license is suspended as a habitual traffic offender, is a third degree felony. If you have three suspended license charges within a five year period (or a combination with other offenses) your license will be suspended for five years as a habitual offender. For this reason it is important to be sure that you properly challenge even your first charge of driving with license suspended.
Q: What Is The Purpose Of A Field Sobriety Test?
A: Unless you were injured in an accident it is highly probable that the officer who investigated you for DUI asked you to perform field sobriety exercises. In the Twentieth Judicial Circuit there are three basic tests utilized by law enforcement: HORIZONTAL GAZE NYSTAGMUS During this exercise the officer will ask that you follow a pen with your eyes. He is looking to see whether your eyes jump as they follow and at certain points. He will also look to see whether you keep your head still, sway, or raise your arms and your general ability to follow instructions. WALK AND TURN During this exercise, the officer will request that you walk nine steps forward heel to toe, perform a turn in a specified manner, then return the nine steps. They will look to see whether you touch heel to toe, sway, raise your arms for balance, step off the line, take the wrong number of steps, or perform an improper turn. ONE LEG STAND During this exercise the officer will ask you to count to thirty while balancing on one leg. He is looking to see if you are able to maintain the position, whether you sway, your ability to estimate time, and your ability to follow directions. There are other field sobriety exercises which may be used, but in general the officers in our jurisdiction limit to those described above. The idea behind these exercises is to determine whether someone’s “normal faculties” are impaired. It is important, however, to point a few things out to a jury. The officer seldom knows what someone’s “normal faculties” are. An eighteen year old Olympic gymnast is likely to perform much better on the walk and turn, regardless of impairment, than a 57 year old teacher. Additionally, the exercises are anything but “normal” activities. In fact, an officer would probably become very suspicious were he to see someone walking down the street heel to toe or standing on the corner on one leg.
Q: What Charges Require An Ignition Interlock?
A: Florida statutes now require the installation of an “ignition interlock” device on the automobiles of people convicted of committing certain types of DUI’s (see below). An ignition interlock device is, for all practical purposes, a breathalyzer attached to the ignition of the car. The person who wants to drive the car has to blow in the machine to get it to start, and upon being prompted to keep it running while driving. If the person blows an alcohol level of .05% or more the vehicle will not start. On a first conviction for DUI with no enhancements the ignition interlock is only required if it is ordered by the court. On a first conviction where the accused blew a .15 or above, a minimum of six months is required. On a second conviction (with no enhancements) a minimum of one year is required. On a second conviction where the accused blew a .15 or above or there was a minor in the car a minimum of two years is required. On a third conviction a minimum of two years is required. On a fourth or more conviction a minimum of five years is required.

Josh Faett, Esq.

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