This guide is in no way meant to advocate Drinking and Driving. In fact, it is meant to deter the very behavior by providing a glimpse of the ramifications that can occur from a DUI arrest. It will provide an overview of the process associated with a DUI Arrest in Florida, as well as the administrative sanctions that accompany a DUI Arrest. This guide will also provide information on DUI Laws, Fines, and penalties associated with a DUI arrest.
I have focused this Guide into several areas within the DUI arena:
1. Breath Test- There are alot of ways to attack a breath test from improper or untimely maintenance to samples too far apart.
a) Blood or Urine can be requested as well. Blood can be "physically taken" under some circumstances.
* You have to remember that if you submit to one test (Breath) and it yeilds negative results, you will be requested to give another test (Urine or Blood), and if you refuse the second test, then you will be charged with a refusal despite having consented to one test.
2. Field Sobriety Exercises- This is another area of great concern, and if there is video evidence, it generally will not match the arrest report. Look for inconsistencies.
3. Officer Testimony
4. DUI Agency Protocol during Checkpoints- Most reputable agencies will file and should follow an operational plan. This is important and an area of great concern. DUI plans are a good area to attack.
5. Observatio Time: This area you can usually obtain the video from the jail and ensure the officer watched the subject for the alloted 20 minutes, if not, then you could possibly have checmical test thrown out.
6. Establishing Actual Physical Control- This is not very difficult to establish, but has to be proven.
If you have the unfortunate experience to become involved under the circumstances of a suspected DUI, it will likely be from one of two ways.
1. Traffic Stop- here you will either be stopped for a traffic violation (speed, illegal turn, or other minor traffic infraction).
2. Traffic Accident- here, you will likely be involved in a traffic crash, and the officer will show up "after the fact", and have to ask you questions: REMEMBER you have rights under the 5th Amendment!!!
* If you are involved in a traffic accident, there is a Traffic Accident Report Privilege (TARP) in Florida. The TARP is there to protect your rights under the 5th Amendment. ** The reason to exclude information from the Accident Report to be allowed in Court is so people will freely and voluntarily provide information at the scene of a crash.
F.S.S 316.066 outlines the TARP:
Florida Statute 316.066 (4): States: Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal. However, subject to the applicable rules of evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person involved in the crash if that person’s privilege against self-incrimination is not violated. The results of breath, urine, and blood tests administered as provided in s. 316.1932 or s. 316.1933 are not confidential and are admissible into evidence in accordance with the provisions of s. 316.1934(2).
There are several Exceptions to the TARP:
1) Does not apply if the drivers identification is not clear.
2) It can be waived
3) If you refuse to submit to a sobriety test, it can be used against you.
4) 3rd Party information (witness)
5) Excited utterances (basically this is voluntary statement not solicited- SO BE CAREFUL WHAT YOU SAY!
If the Officer does both the Crash Investigation and the DUI Investigation, he must make a clear statement that he/she is now conducting a criminal investigation, followed by Miranda Warnings before any statements can be admitted. This is commonly called "changing hats".
Salama v. McGregor, 1995 Fla. App. LEXIS 5721 (Fla. Dist. Ct. App. 5th Dist. 1995)
Alexander v. Penske Logistics, Inc., 867 So. 2d 418 (Fla. Dist. Ct. App. 2003)
After the Investigation: You will likely be given the opportunity to perform some field sobriety exercises ( Finger to nose, walk and turn, one leg stand, HGN, and sometimes the rhomberg alphalbet test).
Depending on how you perform you may be arrested, or if you refuse, which you have every right to refuse these exercises (although it can be used as evidence in court under most circumstances, they have been denied by motions in; State v. Schutz, 2008 WI App 135, 313 Wis. 2d 833, 756 N.W.2d 811 (Ct. App. 2008), which was losely based on Miranda v. Arizona, as it relates to self-incrimination. Look for things like where the exercises took place, conditions, and what stage in the process (before/after arrest), as this will be determinitive in relying on Miranda Rights.
After the arrest, you will be taken to a jail or police station and offered a breath test and booked. Under Florida Law, if you refuse a breath test you will lose your license depending on whether this is your first, second, third refusal. The sanctions and fines increase with each occurrence. If you take the test, and are over the .08 limit, you will lose your license and be given a temporary permit to allow you to have a formal hearing with a hearing officer to determine the validity of your suspension. You will want a Lawyer for this stage as it is important to know your rights going into this hearing and wanting to keep a license. This is where you can get a work permit to drive until the suspension time clears. You need to be aware that this hearing happens quickly and your ability to drive is not determined by the criminal proceeding which takes place down the road.
The information provided within this guide is for instructional purposes only and should not be considered legal advice. For many questions, and to determine you legal rights the best answer may be to consult an attorney.
