SHOULD I HIRE A LAWYER FOR MY FLORIDA DUI ARREST?
January 29, 2010
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 4th and 5th 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 4th 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.
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.