SHOULD I HIRE A LAWYER FOR MY FLORIDA DUI ARREST?

Ok. So you went out one night and had a few too many and you got arrested for DUI. You sat in jail over night and finally bonded out or got ROR’d the next morning. You may even have blown over the legal limit. You feel bad physically from the arrest and spending the night in jail. You may also feel bad physically from the “few too many” that you had the night before. Many times I have been asked by potential clients that have blown over the .08 limit here in Florida, whether it is worth it to retain an attorney? The answer is yes. I know. Of course I am going to say that. I represent people that get arrested for DUI. That is true. While I would like you to hire me, ultimately I believe that no matter how your case looks at the beginning, it is always a good idea to hire an attorney for DUI cases. They are arguably the most complicated criminal cases to prosecute, and that includes murder cases.

The Administrative Suspension: Time is of the Essence

When you are arrested for DUI in the state of Florida, it triggers two separate procedures: the criminal prosecution, and the administrative suspension of your driver’s license. Once you are arrested for DUI, the clock is ticking. You have 10 calendar days from the date of the arrest to file a request with the Florida Department of Highway Safety and Motor Vehicles (DHSMV) for a review of your case to challenge the suspension of your driver’s license. If you fail to timely file this request, you will waive a very valuable right. Even if you are not convicted of the criminal case, you will have your driver’s license suspended while the criminal case is pending. Florida law allows for you to have a formal hearing to contest the sufficiency of the procedures followed which ultimately led to your administrative suspension. Of course having the hearing does not guarantee that the suspension will be overturned. However, it does happen. So why would you waive this right?

What Can My Attorney Do To Defend My DUI Charge?

It is important to remember that no attorney can tell you exactly how they are going to defend your case during that first phone call or initial office consultation. So when you call the attorney and tell him that you got arrested for DUI and your breath test was a .20, our work won’t really begin until we start reviewing the discovery (police reports, witness statements, video’s, crash reports, etc.). Only then will we begin to determine what defense if any is appropriate. However, there are several ways that we as criminal defense attorneys can help you during a criminal case in general and a DUI specifically.

Motions to Suppress In addition to the administrative process, you will be facing a criminal charge of DUI. When I was a prosecutor in Clearwater, Florida, I spent some of my time prosecuting exclusively criminal traffic court cases. During that time I read DUI report after DUI report. I can tell you that many, many times I read cases where police officers made glaring errors during the DUI arrest. Because of the rights guaranteed by the 4^th and 5^th Amendments to the United States Constitution, it doesn’t matter how many drinks you had; or how high your breath test was; or how poorly you performed on the field sobriety tests. If law enforcement violated your right to an unreasonable search and seizure, or violated your Miranda Rights, your attorney can do something about it. I remember sitting in my office and thinking to myself that I hoped this guy or that guy didn’t hire a lawyer to contest the charges because I would see that the arrested person could file a motion to suppress certain facts. I’m sure that there are prosecutors in every jurisdiction reading police reports and thinking the same thing. When evaluating your case and determining if there is a motion to suppress in your case, your attorney will look to see if the is a Motion to Suppress with respect to some of the following issues:

The Stop Often times the initial traffic stop by law enforcement was conducted in violation of the 4^th Amendment to the U.S. Constitution.Was there only minimal weaving over a short distance? Or was there some other minimal driving pattern that does not rise to the level ofreasonable suspicion required by law enforcement to make a traffic stop? If so, and the Court grants a Motion to Suppress then your case is over. If the initial stop is successfully suppressed, the State cannot go forward on the remaining facts of the DUI case.

Field Sobriety Tests (FST’S) Consumption of alcohol alone does notjustify a law enforcement officer’s request for FST’S. After a review of the evidence in your case it may be determined that after your routine traffic stop, the law enforcement officer only documented an odor of alcohol or blood shot watery eyes. Based on this, or some other fact, it may be possible to suppress the FST’s.

Violation of Miranda Warnings During the DUI investigation, did law enforcement fail to advise you that you have the right to an attorney during questioning? Or did they advise you improperly? Often times statements made by a criminal defendant are critical to the prosecutor’s case. If they are suppressed it could materially impact the State’s case.

Accident Report Privilege If a DUI investigation results after an automobile accident, Florida Law prohibits statements made to law enforcement officers during the initial crash investigation to be used in the subsequent criminal case. Frequently, critical statements are made during the crash investigation that can be suppressed in the criminal case.

Breath/Blood/Urine Tests Having a breath or blood alcohol level above a .08 does not mean that you are automatically going to be convicted of your DUI charge. Was the breath test instrument properly maintained, tested, and/or calibrated? Did law enforcement comply with proper procedures under the Implied Consent Law? Did law enforcement have the right to request or compel you did take a blood test? Was the blood test taken by a qualified person under the law? A positive urine test does not necessarily mean that the prosecutor can prove the case. Positive urine tests do not necessarily prove that you were under the influence of the drug or medication at the time of driving. This is an area of the law which often yields motions to suppress.

Refusal of Breath/Blood/Urine Tests During the DUI investigation did the law enforcement office fail follow the proper procedure or fail to provide the proper warnings required by the Implied Consent Law?

Reduction to a Reckless Driving Frequently, if the facts or evidenceof your case are such that a motion to suppress can be filed or prevails in court, or that the State’s case is weak, this can lead to the prosecutor concluding that reducing your charge to reckless driving is necessary or appropriate. There may be a myriad of other factors which may convince the prosecutor that a reduction to a reckless driving charge is warranted. A reckless driving conviction is ultimately better than a DUI conviction for a number of reasons including the fact that your driver’s license will not be suspended, and you will not have a DUI conviction which may enhance a future or past DUI conviction.

Trial In the state of Florida, you have the right to a jury trial to contest your DUI charge. If you are unable to resolve your case through the normal course of litigation and plea discussion, and you have carefully consulted with your attorney, a trial may be the best way to resolve your case. In Florida on a typical misdemeanor DUI case, the prosecutor must convince 6 jurors that you are guilty beyond a reasonable doubt. Again, depending on the facts of your case, this may be a tall order for the prosecutor.

CONCLUSION

You can never judge any criminal case and DUI cases in particular, just based on the arrest, video, and breath test alone. There are many other factors to consider. Going into court and pleading to a DUI without consulting with an attorney can be a big mistake. An experienced CLEARWATER DUI LAWYER can help you navigate through the complicated process and help you get the best disposition possible.

DOMESTIC BATTERY IN FLORIDA: It’s Not Like Every Other Crime

Hard Line Approach 

As a practicing criminal defense attorney, I often receive calls from individuals who have either been arrested for domestic battery, or from the “victim” of domestic battery calling on behalf of the arrested person.  More often than not, if it is the “victim” they tell me that they didn’t want the police to actually make an arrest.  However, once that call is made to law enforcement regarding a DOMESTIC VIOLENCE incident, usually someone is going to jail.  Florida Law specifically states that domestic violence shall be treated as a criminal act rather than a private matter.  As a result, during a domestic violence incident, from the very first contact with law enforcement; there is a pro-prosecution mentality even if the alleged victim does not want to cooperate in the prosecution.  Obviously, the reasoning behind this position is the State’s public interest in “protecting” the victim of domestic violence.  In addition to the overall pro-prosecution mentality of law enforcement and the State Attorney’s Office, there are additional laws which effectively treat a “domestic violence” case differently than any other crime. 

Not Entitled to a Bond Until You Appear Before a Judge 

Once arrested, unlike most other crimes, you will not be able to post a bond and get out of jail until you appear before a judge.  So what that means is that if you are arrested for a domestic violence offense, you will sit in jail until you are your “first appearance” hearing.  Here in Pinellas County, for instance, if you are arrested for a felony charge, you will not even get in front of a judge until the afternoon.  Often times, as a condition of bond, you are not allowed to have contact with the alleged victim or their place of residence, even if the arrested person owns the residence. 

The State Attorney Makes the Decision Whether to Prosecute  

Truth be told, the State Attorney makes the decision whether to prosecute a case in every instance.  However, in a garden variety crime, such as theft or a simple battery, under most circumstances, if the victim doesn’t want the State to prosecute then usually that case is dropped.  That is usually NOT the case when it comes to prosecuting domestic violence cases.  If the alleged victim does not want the case prosecuted, or is actually refusing to cooperate with the prosecution, if the State Attorney believes there is sufficient evidence to proceed, they will do so.  

Serious Consequences and Penalties 

Cannot Seal or Expunge a Domestic Violence Case Resolved with a Guilty or No Contest Plea   

Like just about everything else involving domestic violence cases, entering a plea to any charge labeled as “domestic violence” carries potentially serious consequences down the road.  These consequences may not be readily apparent at the time of the plea.  For instance, I have seen as a former prosecutor and now as a defense attorney, people in jail at the “first appearance” hearing after they have spent a night in jail on a simple misdemeanor domestic battery arrest.  Perhaps it is their first arrest ever.  They are scared; perhaps hungry; have no money with them at that moment, and all they want to do is get out of jail.  It is at this point that the judge offers to withhold adjudication and put them on probation.  The person is told that they are not convicted.  The arrested person changes his plea to the charge and gets out of jail.  Well what just happened?  That arrest offense will NEVER come off of your record.  Under Florida Law, any disposition of a domestic violence case which involves a guilty or no contest plea, even if adjudication is withheld, CANNOT be sealed or expunged.  I have had numerous calls from people trying to seal or expunge a case where they were arrested for domestic violence and pled to it without consulting with an attorney only to learn later that this arrest will remain on their record forever.  This type of arrest or charge can seriously impact someone looking for employment or for those looking to advance in their current employment. 

Stringent Probation Requirements 

If you change your plea to an offense involving domestic violence, Florida Law requires that the offender successfully enter into and complete of family violence counseling which usually takes six months to complete.  Your sentence may also include provisions such as no contact with the victim, alcohol evaluation and treatment, psychological evaluation and treatment, and restitution. 

Jail or Prison 

Some instances, depending on the facts alleged or the prior record of the arrested person, may lead to increased jail time or enhanced penalties such as: 

• If a person is convicted of Domestic Violence with Bodily Harm you are facing a minimum of 5 days in the county jail.

 

• If convicted of Aggravated Domestic Battery, even without any prior criminal record, you are facing a mandatory state prison sentence under the State Criminal Punishment Code and possibly as much as 15 years in prison.

 

• Florida Law states that if a person has a previous conviction for domestic battery, even if there was a withhold of adjudication, a subsequent conviction for an act of domestic battery can be charged as a felony with a maximum penalty of up to 5 years in prison.

  

Impact on Divorce and Custody Cases 

  

• An arrest or conviction for domestic violence can be used to your detriment in a subsequent or pending divorce matter with the alleged victim especially if there are children in the home and they have witnessed the alleged acts of domestic violence. 

  

Impact on the Ownership, Use, or Possession of Firearms 

• Florida Law requires the suspension of your concealed weapons permit if you are arrested for an act of domestic violence.

  

• FEDERAL LAW prohibits a person convicted of an act of domestic violence from using, owning or possessing a firearm.

  

Conclusion 

Once the phone call is made to law enforcement for a domestic violence case, Florida Law is going to take over and these cases are not taken lightly.  If you are arrested for any act of domestic violence you should take it as seriously as the State of Florida does by calling a Clearwater Domestic Violence Attorney for help.  My initial consultion is always free.