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| Driving Under the Influence of Alcohol or Narcotics DUI's come in all shapes and sizes: bleary grandmothers who were overprescribed medication by their doctors--stopped for erratic driving, lawn service guys stopped for an illegal lane change and excessive speed--who later test positive for metabolized marijuana, people who provide a breath sample and blow twice the legal limit but who look completely sober in the police video, and people are were drunk, look drunk, sound drunk, and who drove drunk. Needless to say, every factual scenario is different. The bottom line is what is the evidence against the defendant?  The Breath Test
Breath testing equipment is used to assess how much alcohol a person has in his or her blood stream. The equipment is based on the premise that blood mixes with air in the lungs and that the "deep lung air," the air exhaled in the latter portion of a exhaled breath, will have a measurable amount of alcohol that predictably indicates the ratio of alcohol in the blood. Typically, several samples of breath are tested, along with a control sample. Each of the samples is expelled from the machine immediately, so samples may never be retested for accuracy. Alcohol may also be measured from a blood draw, and the sample may be retested later. An attorney may request records regarding when the machines were calibrated and tested. Police are supposed to observe a subject for 20 minutes prior to doing the breath test. This is because alcohol in the mouth--from a recent sip of a beverage, a burp, vomiting, or something else may make the test inaccurate. Ideally, the test measures the alcohol in the air from the deeper portion of the lung, not the alcohol content in somone's mouth. For this reason, police sometimes encourage people to "keep blowing." This results in an abnormally high reading, because the sample may capture an abnormally large amount of deep lung air. There may be penalties for refusing to provide a breath sample. If a person has previously been asked to provide a breath sample and refused, a second request that is refused is punishable by a 1st Degree Misdemeanor charge of Refusal to Provide a Breath Sample. Essentially, everyone gets one free pass to avoid the breath test, but after that, a second refusal is punishable by up to a year in jail.  Field Sobriety Tests
There is much more to field sobriety tests than meets the eye. Most people think that the tests are about being able to balance, walk along a line, or touch one's nose. However, police also take notes on how well people follow directions. They always make sure to ask you if you understood the directions prior to beginning. The fact that a person agrees they understood the directions is used against them in court. Police also ask if people are healthy or have health problems prior to giving the exam. Needless to say, a person with a medical condition that affects their balance or ability to follow directions will have a better argument at trial, compared to a person in perfect health. People may refuse to take the field sobriety tests. One common mistake is that people are told to walk nine steps up and back. If they walk more or less steps, even if they look completely sober, than this is a sign that they are drunk. They are instructed to turn at the end of the line in a certain way, by taking small steps. If they don't turn in the manner described by the officer, than they have again failed to follow directions--another sign of impairment. Unless the tests are video taped by the officer, than the police officer's notes will be the only record of the encounter. Police officers make notes on the appearance and behavior of a person, anything they say, how they smell, and about how many times they make any type of mistake. One of the most mysterious tests in the horizontal gaze nystagmus. Essentially, the officer uses a glowing wand to measure a person's neurological function, by measuring the ability of the subject's eye to track the glowing end of the wand as it is waved in front of their face. There are six possible clues of impairment, and typically no recording is made of the test. The officer's notes are the only record of the neurological response as measured by the law enforcement officer. Only specially trained officers are permitted to testify in court about the results of such a test. Part of the training they received is how to testify persuasively. Sometimes they even bring a inflatable eye ball into the court room to further illustrate their explanation of the test. DUI Penalties
DUI penalties get worse with every additional conviction for the crime. Furthermore, the Florida legislature has set minimum punishments for DUI convictions. That means if a person enters a plea to a DUI, there is a minimum punishment already set by law. Basically, a person may plea to the charge and hope to face only the minimum punishment, go to trial and fight the charge, or in good cases plea to a lesser charge such as reckless driving. Of course, there is always the chance that the police made a mistake and evidence may be suppressed. Penalties: First Conviction: A fine of not less than $250 or more than $500 AND imprisonment of not more than 6 months/probation of 12 months. Second Conviction: A fine of not less than $500 or more than $1,000 AND imprisonment of not more than 9 months/lengthy probation. Third Conviction (Remember: a third DUI conviction is a felony): A fine of not less than $1,000 or more than $2,500 AND imprisonment of not more than 12 months/lengthy probation.
NOTE: Any person who is convicted of a third or subsequent violation of this section is guilty of a Felony of the Third Degree; the fine imposed for such third or subsequent violation may not be less than $1,000. Third degree felonies are punishable by up to five years in prison. | |
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