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Edward J. Chandler, P.A.
708 East Atlantic Boulevard Telephone: (954) 788-1355
Pompano Beach, Fl 33060 Facsimile: (954) 788-1357
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If You Have Been Arrested for a Crime or are being Investigated for A Suspected Criminal Action, you need legal advice and the assistance of an Experienced Criminal Defense Lawyer. Call the Law Offices of Edward J. Chandler, P.A. to begin protecting your rights TODAY….Phone (954) 788-1355
Defending a DUI in Florida
Law enforcement officers (“LEOS”) are notorious for stopping a vehicle on a “hunch” that the driver has been drinking. Once stopped, the tools used by LEOS to evaluate a driver’s possible impairment are crude and inaccurate. Many LEOS making DUI arrests have limited or no experience in evaluating the effects of alcohol on the body. In turn the machines relied upon by LEOS to test your breath, blood, or urine for alcohol are subject to error. Additionally, these machines are tightly regulated and often are not properly maintained.
Before a trial is ever held, a DUI can be challenged on constitutional, legal, or administrative grounds. A successful challenge can result in key prosecutorial evidence being thrown out by the State. The primary areas for challenging a DUI are:
* The Stop * Field Sobriety Tests * The Breathalyzer (Blood Alcohol Measurement Tests) * Your Statements
So what does all of this mean? Simply put, the State needs all of their evidence to prevent a Court from dismissing the case due to lack of evidence or in order to present a strong case to a jury. If I challenge one link in the State’s case that results in evidence being thrown out (suppressed), the State may be prohibited from proceeding or forced to negotiate a deal to a lesser charge. In DUI defense, winning one battle can result in winning the war!
Challenging The Stop
The law is very clear that a law enforcement officer may only stop you for one of two reasons: (1) If the LEO has a reasonable suspicion that your are committing a traffic infraction, or (2) if the LEO has probable cause that you are committing a crime. However, many times it can be shown that the officer was mistaken in his reason for stopping you. If this is proven, all of the evidence in your case will be thrown out and the State will be forced to dismiss your case.
A rather simple example would be if an officer stopped you for an expired license plate and subsequently arrested you for being under the influence. If I can prove that your motor vehicle license was not expired and that the officer was therefore mistaken, the Judge will find that the officer made an illegal stop and throw out all of the evidence against you.
Challenging Field Sobriety Test
In most DUI cases, law enforcement will administer Field Sobriety Tests to determine if you should be arrested. The officer’s interpretation of these tests can be challenged or suppressed based on many factors. Does the officer know what your true balance and coordination is? Do you have any physical disabilities like a bad back or bad knees? Physical disabilities or injuries may affect your ability to perform the test, thereby making them unreliable and inadmissible. Is the officer qualified to perform the specific Field Sobriety Test? Some Field Sobriety tests, such as the HGN test (eyes following pen test), may only be performed and testified abut by certified alcohol recognition experts. Other tests, such as the reverse alphabet test are not deemed reliable by the courts.
Beating the Breathalyzer
As previously mentioned, the machines used by law enforcement are tightly regulated and subject to strict maintenance requirements to be deemed reliable. Additionally, the testing itself must be done in a very specific manner. The failure to either properly maintain the machines, or to conduct the tests in accordance with the standard testing procedures, can result in the breath test being thrown out altogether, no matter how high your test came back.
Did the officer observe you for a period of 20 minutes prior to taking the breath test? Did the officer tell you to “keep blowing” during the breath test? Did the officer calibrate the machine properly prior to beginning testing? Did the officer read you Florida’s Implied Consent Law or did the officer incorrectly state the implied consent law to you? The failure of an officer to do any of these simple steps, or possibly other steps not mentioned, may result in the breath test results being thrown out.
Throwing Your Statements Out
One of the most well known Miranda Warnings states: “Anything you say can be used against you in a court of law.” However, contrary to popular belief, an officer does not have to immediately read you your rights when stopping you for a traffic infraction. Upon initially being stopped, an officer is free to ask you common questions such as where are you coming from, where are you going, have you had anything to drink. Therefore it is important you watch what you say, especially if you have been drinking.
Nevertheless, if you do say something incriminating to law enforcement, I may still be able to suppress your incriminating statements. Generally, statements are challenged for either being obtained without informing a suspect of their right to remain silent or because the statements were made under Florida’s accident report privilege.
Your Right to Remain Silent
An officer only has to read you your rights when you are under arrest, or if you are no longer free to leave. Once an officer reads you your rights you should politely decline to speak with him any further and request an attorney.
A common problem that arises in DUI arrests is when it is clear that you are no longer free to leave, the officer never reads you your rights, and continues to question you about your activities prior to being stopped. This practice is illegal and any incriminating statements gained by an officer during this time can be thrown out by a judge.
Florida’s Accident Report Privilege
Many times, persons involved in an automobile accident are later accused of DUI. And in Florida, persons involved in an automobile accident are required by law to report the accident to authorities, raising the possibility that a person suspected of DUI may make incriminating statements to law enforcement regarding the accident. Fortunately, Florida law prohibits most statements given to law enforcement by drivers, owners, or occupants regarding an automobile accident from being used in a later civil or criminal trial. This is known as Florida’s Accident Report Privilege and the purpose of the privilege is to encourage witnesses to cooperate with law enforcement in the investigation of automobile accidents.
However, the Accident Report Privilege is not absolute and there is one major exception. If a law enforcement officer suspects that you are were driving under the influence, or committed another crime related to the crash, he may “switch hats” and inform you that he is no longer conducting a crash or accident investigation and that he is now beginning a criminal investigation related to the accident. To continue questioning you, the officer must then read you your rights if he wishes to continue. At this point you should decline to answer anymore questions and request a lawyer.
Many times the officer fails to state that he is “switching hats” and read you your rights. If an officer fails to properly “switch hats” or to read you your rights, any statements you make to the officer may be suppressed as being privileged under Florida’s Accident Report Privilege.
Be Careful with Spontaneous Statements
The biggest exception to your right to remain silent and the Accident Report Privilege occurs when you make a spontaneous statements. A spontaneous statement is one that is volunteered without being asked a question. Any spontaneous statements you make before or after being read your rights can be used against you, regardless if other statements are thrown out due to illegal police misconduct or the accident report privilege.
CALL ATTORNEY CHANDLER TODAY (954) 788-1355
DUI Drivers License Suspensions in Florida
As a result of your DUI arrest, your Driver License is subject to two separate suspensions and it is important that you know the difference between each type of suspension. * The first is known as an Administrative Suspension. * The second is known as a Criminal Suspension.
Most importantly, it is imperative that you are aware of Florida’s Ten Day Rule regarding your right to fight the Administrative Suspension. Administrative Suspension
The first Driver License suspension you are subject to is known as an Administrative Suspension. This suspension is imposed if, after your DUI arrest, you either
1. Refused to submit to a breath, urine or blood test, or
2. Submitted to a breath, urine or blood test and your blood alcohol level was found to be .08 or higher.
If you refused to submit to a BAC/BAL test, or if your BAC/BAL was over .08 your Driver License will be suspended for either 6 months, 1 year, or 18 months from the date of your arrest. If your license if suspended for either reason, you will be issued a temporary driving permit that expires at midnight on the 10th day following the date of your arrest.
Florida’s Ten Day Rule You only have 10 days from the date of your arrest to request a formal review hearing with the Department of Motor Vehicles to contest the Administrative License Suspension and attempt to get your license back. If you fail to request the hearing with the 10-day period, your license will be suspended for either 6 months, 1 year, or 18 months depending on the circumstances. It is important to contact me within the 10-day period.
If a formal review hearing is requested within the mandatory 10 days of your arrest, you will be issued a temporary license that is good until seven days after the hearing. The hearing will be set approximately 30 days after your arrest. At midnight of the 7th day after the hearing, however, until we either receive notice that we won, or if the suspension is upheld, your license is suspended. Otherwise, you only have 10 days to drive after you are arrested using your citation as a driving permit.
Obtaining a Hardship Driver License
If attorney Chandler is unable to successfully challenge the administrative suspension, you may still be eligible for a hardship license. To be eligible for a hardship license you must: (1) enroll in a DUI School, (2) serve the first 90 days of your one year of the administrative suspension, and (3) provide proof of enrollment in a DUI school to your local DHSMV Administrative Review Office. The review office will then process your hardship license application. If the review office gives you approval to reinstate your license early for hardship purposes, you must then present this approval to your local driver license office. Finally, you must complete the DUI school within 90 days of being given the hardship license. Failure to complete the DUI school will result in cancellation of your hardship license until the DUI school is completed.
At the time of your license reinstatement you must take the required examination, and pay an administrative fee and a reinstatement fee and any license fee required. Additionally, proof of liability insurance on the arrest date, proof of current liability coverage, and a reinstatement fee will be required.
As previously mentioned, there are two suspensions involved with a DUI charge, the administrative suspension and the Criminal Suspension. Unfortunately, if you are eventually convicted of DUI, another mandatory 6 or 12 month suspension begins on the date of conviction and the judge will suspend your hardship license.
Therefore, if there is a strong possibility of a DUI conviction, it may not be worthwhile get your hardship license until the Criminal Suspension has been imposed. Otherwise, you would then have to pay another fee to reinstate your hardship license. However, you would not be required to re-enroll in the DUI school. Nevertheless, if you eventually beat the DUI, your license will not be suspended a second time and you will only have to complete the administrative suspension.
Criminal Suspension Periods
Depending on the degree of DUI you are charged with, the following criminal suspension periods would be imposed if eventually convicted. After that are the eligibility requirements for a hardship license if your were to experience a Criminal Suspension.
1. First Conviction: Minimum 180 days revocation, maximum 1 year.
2. 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.
3. Third Conviction Within 10 Years: Minimum 10 years revocation. May be eligible for hardship reinstatement after 2 years. Other 3rd offenders same as “A” above; one conviction more than 10 years prior and one within 5 years, same as “B” above.
4. Fourth Conviction, Regardless of When Prior Convictions Occurred) and Murder with Motor Vehicle: Mandatory permanent revocation. No hardship reinstatement.
5. DUI Manslaughter: Mandatory permanent revocation. If no prior DUI related convictions, may be eligible for hardship reinstatement after 5 years.
6. 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.
Eligibility for Hardship License
Depending on the degree of DUI you were convicted of, the following requirements must be met in order to be eligible for a hardship license following a criminal suspension.
* First Conviction: Must complete DUI school, apply to department for hearing for possible hardship reinstatement. Mandatory ignition interlock device for six months for BAL of .20 or higher, effective 07/03.
* Second Convictions (or more): No hardship license except as provided below. Mandatory ignition interlock device for one year, effective 07/03.
* Second Conviction Within 5 Years: (5 Year Revocation) May apply for hardship reinstatement hearing after one year. Must complete DUI school and remain in the DUI supervision program for the remainder of the revocation period (failure to report for counseling or treatment shall result in cancellation of the hardship license). Applicant may not have consumed any alcoholic beverage or controlled substance or driven a motor vehicle for 12 months prior to reinstatement.
* Third Conviction Within 10 Years: (10 Year Revocation) May apply for hardship reinstatement hearing after two years. Must complete DUI school and remain in the DUI supervision program for the remainder of the revocation period (failure to report for counseling or treatment shall result in the cancellation of the hardship license). Applicant may not have consumed any alcoholic beverage or controlled substance or driven a motor vehicle for 12 months prior to reinstatement. Mandatory ignition interlock device for two years, effective 07/03.
* DUI Manslaughter With No Prior DUI Related Conviction: (Permanent Revocation): May be eligible for hardship reinstatement after 5 years have expired from date of revocation or expired from date of term of incarceration provided the following requirements have been met: (1) Has not been arrested for a drug-related offense for at least 5 years prior to the hearing; (2) Has not driven a motor vehicle without a license for at least 5 years prior to the hearing; (3) Has been alcohol and drug-free for at least 5 years prior to the hearing; and (4) Must complete a DUI school and must be supervised under the DUI program for the remainder of the revocation period (failure to report for counseling or treatment shall result in cancellation of the hardship license).
* Manslaughter, DUI Serious Bodily Injury, or Vehicular Homicide Convictions: (3 Year Revocation): May immediately apply for hardship reinstatement hearing. Must complete DUI school or advanced driver improvement course.
The specific and most current DUI penalties may be found in Section 316.193, Florida Statutes.