FAQs

DON’T PANIC – REMAIN CALM!

If you are stopped by a police officer, DO NOT PANIC! Remain calm. If you panic and become nervous, that may increase the officer’s suspicions that you are impaired. As the officer is approaching your vehicle, think about where your registration, insurance, and license is – but DO NOT REACH FOR THEM YET. Instead, keep your hands on the wheel until the officer instructs you otherwise. If it is nighttime, you may turn on your vehicle’s interior light. That will allow the officer to see into your vehicle as (s)he approaches, and know that you are not reaching for a weapon or trying to conceal something. That will make the officer less nervous, and it also shows clear thinking – the opposite of impairment.

DON’T BE RUDE AND BELIGERENT

The side of the road is not the place to argue your innocence, and the police officer is not the person with whom to do it! Save it for the courtroom. No matter how right you think you are, or how wrong you believe the officer is, you will never benefit from being rude and belligerent to a police officer. It will ALWAYS hurt you. If you are rude and argumentative to a police officer, the officer will likely suspect you are impaired. The officer will also note your poor demeanor in the report, which the prosecutor will eventually see. A poor attitude to a police officer will make the prosecutor less inclined to give you a good deal on your case. Therefore, ALWAYS BE POLITE AND RESPECTFUL.

DON’T DEBATE YOUR CASE WITH THE OFFICER!

Do not try to talk your way out of trouble with the officer on the side of the road. Let your lawyer debate your case in the courtroom with the prosecutor. When a police officer is investigating a DUI offense, it is extremely unlikely that you will be able to talk your way out of trouble. Remember that your roadside encounter with the officer is likely being audio and video recorded. Therefore, the more you talk, the more potential evidence you are giving to the officer and the prosecutor which can later be used against you. Therefore, while you must be cordial with the officer at all times, you should not try to debate your case with the officer.

DO NOT GIVE UP YOUR RIGHTS!

Being polite and courteous is important. But helping the police officer and the state by providing them with evidence they will then use to prosecute you is another thing entirely. If you are arrested, the officer will likely read you your Miranda rights, and may give you a form with those rights written on it which the officer will ask you to sign. You have the right to remain silent! USE IT!!! Anything you say can, and almost definitely WILL be used against you. Do not give the police any more evidence by waiving your rights until you have the chance to speak with an attorney.

DO NOT REPRESENT YOURSELF!

Do you know whether the officer had a legal basis to stop your vehicle? Did the officer have a legal basis to detain you and commence a DUI investigation? Did the officer have the right to order you to step out of your vehicle? If you blew over a 0.08 or refused, and your licenses was taken by the officer, does that mean you cannot drive? An experienced DUI lawyer will know the answers to these questions, and can help you through the very complicated process of a DUI arrest and prosecution. An experienced DUI lawyer can also potentially spot legal issues that may help you avoid a DUI conviction. Do not handle a DUI case on your own!

Perhaps the most common question asked of lawyers who practice in the area of DUI defense is whether or not to provide a breath sample during the course of a DUI investigation. In Florida, however, the request by law enforcement to provide a breath sample occurs only after the person has already been arrested and is in the process of being booked into the county jail. Whether or not a driver should provide a breath (or urine) sample depends on the specific facts of each individual case. However, every Florida driver, by virtue of the fact that the person is driving within the State of Florida, has given consent to any sobriety test required by law. Don’t believe it? Check the bottom of your Florida driver’s license. Consequently, a refusal to submit to a test has significant administrative and legal consequences.

No. Contrary to a common misconception, Florida does not have a “legal limit.” Rather, a person is guilty of a DUI if they are driving (or in actual physical control) a motor vehicle and had a breath-alcohol level of .08 grams of alcohol per 210 liters of breath OR “was under the influence of alcoholic beverages… to the extent that his or her normal faculties were impaired.” Therefore, a person CAN be convicted of a DUI even if they blow below a 0.08. However, if the driver blows below a 0.08, their driver’s license will not be administratively suspended. If a driver blows a 0.08 or above, their driving privileges will be administratively suspended for six months, and they will be ineligible for a hardship license for a period of 30 days.

Because all Florida drivers have given consent to provide law enforcement officers a breath or urine sample upon reasonable suspicion of DUI, refusal to do so upon such a request has consequences. When a person refuses to take a sobriety test, the officer will immediately take possession of the person’s driver’s license and issue that person a summons for DUI. That summons acts as the driver’s license for a period of 10 days, after which the person’s driving privileges will be suspended unless the driver requests a formal hearing with the Department of Highway Safety and Motor Vehicles. Upon the expiration of the 10 days, or after an adverse ruling in the formal review hearing, the person’s driving privileges will be suspended for a period of one year if the driver has never before refused a sobriety test, and they will be ineligible for a hardship license for a period of 90 days. If the driver has previously refused a sobriety test, their privileges will be suspended for 18 months. Additionally, a subsequent refusal is itself a misdemeanor for which the person can be charged in addition to the DUI charge. Importantly, a driver whose driving privilege has been suspended due to a breath reading above a 0.08 or a refusal to provide a breath sample may qualify for an immediate hardship license if they waive their right to a formal hearing contesting the administrative suspension. However, that is generally a very bad idea.

1. Do the police have to have a reason to pull me over?

Yes, the police have to have a lawful reason to stop a vehicle. However, the Supreme Court of the United States has held that any traffic infraction, however minor, is a valid basis for a police officer to stop a vehicle, even if the true reason the police officer pulls that person over is for a reason other than to issue a traffic citation, such as to check whether the person is under the influence of alcohol or drugs. Therefore, if a police officer observes a vehicle crossing a lane divider, failing to use a turn signal, speeding, or even sees that the little light above the license plate is inoperable, all those may be valid reasons for a police officer to pull a vehicle over. However, on an occasion an officer will believe they have a valid legal reason to pull a vehicle over when in fact they do not. There are often subtle differences between a valid stop and an illegal stop, and an experienced DUI attorney can identify the difference. If the Judge rules that the stop was illegal, your entire DUI case may be dismissed, even if you have a breath reading in excess of a .08.

2.What should I do if I see police lights behind me and an officer is attempting to  pull me over?

If you find yourself in a situation where a police officer is trying to pull you over, remain calm. Find the nearest side street, business driveway, parking lot, or other safe, well-lit location to park. Avoid stopping on busy streets. Use your turn signal when turning, and maintain a safe and cautious speed. Remember, the police officer is likely already looking for signs of impairment, and probably has a dashboard video camera recording your vehicle. If you are nervous, it could affect your driving and which the police officer – and a jury – could erroneously believe is because of impairment rather than nerves. Therefore, always drive in a safe, cautious, and lawful manner.

3. What happens after I get pulled over?

When a police officer pulls you over, he or she may have been following you for some time prior to activating the overhead lights. During that time, the officer may have been running your license plate to see if your car has been reported stolen, if the license plate matched the vehicle, and if the registered owner has any outstanding warrants. If the officer has not done that while following you, the officer will likely do it after (s)he has pulled you over. They want to know whether you pose a potential threat to them or not. This may take several minutes, so what you SHOULD do it use this opportunity to relax, take a few deep breaths, and calm your nerves. Keep your hands on the steering wheel where the police officer can see them, and begin thinking about where your license, registration, and proof of insurance documents are. Do not start reaching for them, though. What you should NOT do is put gum in your mouth, put a penny under your tongue, light a cigarette, or anything else to try to hide alcohol on your breath. Those tricks don’t work, and they may raise the suspicion of the police officer. Once the police officer has run your tag, the officer will approach your vehicle and ask for your license, registration, and proof of insurance. Now is the time to retrieve those documents. It is best to keep them in one location so you can get quickly and without too much difficult. Remember, the officer is always looking for signs of impairment, and if you appear confused or have difficulty retrieving your documents, the officer will note that as a possible sign of impairment. While you are retrieving your documents, the officer will likely ask you a series of questions such as where you are coming from, where you are going, and whether you know that you violated some traffic infraction. There are three reasons the officer asks these questions, all geared toward detecting whether you are impaired. First, the officer is checking for divided attention skills – that is, can you simultaneously locate and retrieve your documents while at the same time listening and responding cogently to the officer’s questions. Individuals who are impaired by alcohol or other drugs have a difficult time doing two things at once. The second reason the officer asks these questions is to get you talking so that (s)he can smell your breath to determine whether you emit an odor of an alcoholic beverage (alcohol has no smell – it is the other ingredients in a drink that give that distinctive odor.) Finally, the officer will ask you these questions to see if you make any incriminating statements, for example that you are just coming from a bar, a sports event, or some other place where individuals often consume alcoholic beverages.

4. Just because I drank before I drove my car, does that mean I am guilty of DUI?

No. It is not illegal in Florida to drive after you have consumed alcohol. It is illegal to drive after you have consumed enough alcohol to have a blood alcohol level of .08 or more grams of alcohol per 100 milliliters of blood; or have a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath; or are under the influence to the extent your normal faculties are impaired. Therefore, you can be convicted of DUI even if you blow under a .08!

5. How much alcohol can I drink before I am legally unable to drive?

That is impossible to determine because it depends on a variety of factors such as how much you have had to eat, how much sleep you have had, whether you are stressed, how much you weigh, your physical fitness level, whether you are male or female, and whether you are a frequent drinker or not, among other factors. Therefore, since this cannot be accurately predicted, the safest course of action is not to drive after you have had anything to drink, and have a designated driver. However, just because you may have consumed an alcoholic beverage prior to driving does not mean that you are breaking the law.

6. I was impaired, but the police officer never saw me driving my car.

That means that the officer cannot arrest me for DUI, right? Wrong! Florida law makes it illegal to drive or be in actual physical control of a vehicle while impaired. Therefore, if you are impaired while standing outside your vehicle with the keys in your hand, you can be lawfully arrested for DUI. If you are impaired and sitting in your vehicle but not driving, or even in the car with the engine off with your keys on the floorboard, in the center console, or on the passenger seat, you will be deemed to be in actual physical control of the vehicle and can therefore be lawfully arrested for DUI.

7.What if I know I am going to drink a lot, and therefore decide to ride my bike rather than drive my car? I cannot be arrested for DUI on a bike, right?

Wrong! In Florida, a bicycle is considered a vehicle, and therefore you can get a DUI if you are riding your bike on a public street while impaired. So is a scooter, a Segway, and even a cooler that had been modified with an engine and handlebars.

8.After an officer stops me, can he order me out of the car for no reason?

No. detaining a driver and ordering them out of the vehicle is considered a search and seizure
under the Fourth Amendment of the United States. Therefore, an officer may only detain a driver for as long as necessary to issue a citation for which the officer pulled the vehicle over, unless during the encounter the officer develops a reasonable suspicion that the driver is engaged in criminal activity, such as driving while impaired. An experienced DUI attorney may be able to challenge the lawfulness of the officer’s orders to get out of the car if the officer did not have reasonable suspicion of criminal activity.

9.What happens after an officer orders me out of the vehicle?

If the officer smells the odor of alcohol, sees your eyes being red and bloodshot, or observes
other indicial of impairment, the officer will likely ask you to exit your vehicle. At that point, the officer will ask you to perform some field sobriety exercises (“FSEs”). The first FSE the officer will do, perhaps before even asking if you will perform them, is the Horizontal Gaze Nystagmus test – the test where the officer asks you to follow a light with your eyes without moving your head. Other tests you may be asked to perform are called the One-Leg Stand, the Walk and Turn, and the Finger to Nose tests. All of these tests have been designed to enable the officer to determine whether you are impaired or not. Remember, the officer has a dashboard video camera and a lapel microphone, so everything you do and say is being recorded.

10.Do I have to do the FSEs?

No. A police officer cannot force you to perform these tests. However, if you decline to do the tests, the officer will likely say that your refusal to perform the tests can be used by that officer to determine whether you are impaired. What the officer means is that if you refuse to do them, you will be arrested.

11.Why can’t I just give a breath sample on the side of the road to prove that I am not
impaired?

In Florida, law enforcement officers are only allowed to conduct breath tests on machines that
have been approved for use by the Florida Department of Law Enforcement (“FDLE”). FDLE has not authorized hand-held breath test machines for use, and therefore a police officer may use such a devise on the side of the road to determine whether to arrest you or not. Moreover, even if your breath didn’t register alcohol, it is possible that you are impaired by a substance other than alcohol, which wouldn’t register on such a device. Therefore, you do not have the opportunity to provide a breath sample on the side of the road to avoid being arrested.

12. The officer didn’t read me my rights before asking me to do FSEs. Can I use this to get my case dismissed?

No. Police officers are not required to reason someone their Miranda rights (You have the right to remain silent, anything you say can AND WILL be used against you….etc.) unless that person is in custody, and being interrogated. Those terms have very specific meanings, but suffice it to say that being asked to do roadsides is not considered in custody, and it is not an interrogation. Therefore, an officer need not advise you of your rights prior to administering FSEs. Typically, an officer will only read you your rights after you have completed the FSEs and are under arrest. At that point, the officer will ask
you questions. You have the right to remain silent. Use it. Your silence cannot be used against you.

13. What happens after I have been arrested?

If the police officer concludes (s)he has probable cause to believe you were driving (or in actual physical control of) a vehicle, the officer will place you under arrest, put you in the back of the police car, and transport you to jail. There, you will be asked whether you will be willing to provide a breath sample to determine your breath-alcohol level. Bear in mind, you have already given consent to such a test – check the bottom of your Florida driver’s license. If you agree to provide a breath sample, the officer will sit you down and fill out paperwork for about twenty minutes. They are not stalling. Florida law requires that prior to providing a breath sample, a test subject be observed continuously by a law enforcement officer for twenty minutes to make sure the person does not vomit, burp, ingest anything,
or do anything else that would affect the test results. At the end of the observation period, you will be taken to a special room which houses the test equipment, where you will provide two samples. The machine will print a read-out of the results.

14. Should I blow or refuse?

That is probably the most frequently asked question of any DUI lawyer, yet one that an
experienced DUI lawyer cannot and should not answer definitively. The decision whether or not to provide a breath sample depends on a number of factors specific to each individual situation. However, since you have already given consent to a sobriety test since you were (presumably) operating a motor vehicle within the state of Florida, there are enhanced penalties for refusing to provide a breath sample.

15. What happens if I refuse to provide a breath sample?

If, after being asked by the police officer whether you will provide a breath sample (or urine
sample, if the officer believes you are impaired by something other than alcohol), you decline, the officer will read you something called “implied consent.” That is a form that states that driving a vehicle in Florida constitutes implied consent to any sobriety test, and refusal to do so will result in the automatic suspension of your driving privileges for 12 months, or 18 months if you have previously refused to provide a breath sample. In addition, if you have previously refused, a second or subsequent refusal is a misdemeanor criminal offense, for which you can be charged in addition to a DUI charge. The officer will then ask again whether, knowing these penalties, do you still refuse. If you persist in your refusal, you will then proceed to jail processing. There are important facts that the officer will not tell you about, however, pertaining to your ability to get a hardship license. Just because your license will be suspended for 12 or 18 months, that does not necessarily mean you will be unable to legally drive for 12 or 18 months – but the police officer does not have to and will not tell you that. But now you know.

16. What happens if I blow choose to blow, and it is above a .08?

If you elect to provide a breath sample, you will go through the process outlined above. The two results must be within a .02% of each other, or the results will be deemed invalid. If a valid result is obtained and the results are above a .08, the police officer will confiscate your driver’s license and issue you a DUI citation. On the bottom of the citation, there is a box which will be checked “Eligible for permit.” This DUI citation becomes your driver’s license for a period of 10 days, after which your privilege to drive a car is suspended for a period of six months – unless you take action to prevent the suspension from going into effect. However, while your license will be suspended for 6 months, you may
be eligible for a hardship license after only 30 days.

17. What happens if I provide a breath sample, but it is under a 0.08? Will I go free?

No. You have already been arrested when you are asked to provide a breath sample, and your
decision to blow or refuse will have no effect on your arrest. Contrary to a common misconception, Florida does not have a “legal limit.” Rather, a person is guilty of a DUI if they are driving (or in actual physical control of) a motor vehicle and had a breath-alcohol level of .08 grams of alcohol per 210 liters of breath OR “was under the influence of alcoholic beverages… to the extent that his or her normal faculties were impaired.” Therefore, a person CAN BE CONVICTED of a DUI even if they blow below a 0.08. Moreover, if the breath test results are not consistent with a level of impairment observed by the officer, the officer may believe the impairment (s)he is observing is a result of some substance other than alcohol, and will therefore ask you to provide a urine sample. Refusing to provide a urine sample carries the same penalties as refusing to provide a breath sample. However, if you blow and both test results are below a 0.08, the officer cannot confiscate your license, and your driving privileges will not be administratively suspended for six months. You will still have the pending criminal case, however, and therefore your license may in the future be
criminally suspended for six months.

18.What should I do after I get out of jail?

After you are processed through the jail, you will be required to wait 8 hours before you can get out. You will most likely have a bond, however the amount depends on a number of factors such as whether this is your first DUI arrest, whether there were any injuries or property damage, and a number of other factors. In some instances, you may be released on your own recognizance, meaning you will not have to post any bond. After you are released, you will probably be able to drive unrestricted for a period of 10 days (check the bottom of your DUI citation) after which your driving privileges will be suspended unless you contact DHSMV. If that deadline expires, it is gone. You cannot get an extension. In order to continue being able to drive legally, you must request a formal hearing with DHSMV to contest legality of the
administrative suspension of your driving privileges. It may seem like a lost cause and therefore not worthwhile. IT IS NOT! An experienced DUI attorney can identify potential issues which may be used to invalidate the suspension. Once you request a formal hearing, you will be issued a 42 day driving permit, and the hearing will be scheduled within 30 days. If the hearing officer concludes that your license should not be suspended, you will continue to be able to drive. If the hearing officer concludes that the suspension was legally valid, your license will be then be suspended, and you will have to serve the “hard” suspension before becoming eligible for a hardship license – during which you may not drive at all. In some circumstances, you may be immediately eligible for a hardship license, meaning that you will never have to serve a “hard” suspension, and you will never lose your ability to drive. However, in order to avail yourself of this, you have to waive your right to a formal review. That sounds like an attractive option – but it is almost ALWAYS A BAD IDEA. Don’t take the bait. A formal review is an important tool that an experienced DUI attorney can use to defend you in the criminal case. Other than a trial, the formal review is the only opportunity that your attorney will have to ask the officer questions under oath and get answers to important questions – and the prosecutor will not even be there! The officer’s testimony at the formal review can also be used later in the criminal case for a number of reasons. Not availing yourself of this important opportunity is almost always a bad idea!

19. If the Hearing Officer invalidates my suspension, will my criminal case be dismissed?

No. When you are arrested for DUI and either refuse or blow above a .08, you have two separate and distinct matters pending – the administrative case with the DHSMV and the criminal case with the State Attorneys’ Office. Each has its own set of rules, burdens of proof, procedures, and penalties, and just because you prevail in one does not mean you will prevail in the other. Most often the prosecutor handling your case will neither know nor care about what happens in the administrative case unless your attorney uses discovery obtained during the formal review in the criminal case.

20.What happens in the criminal case after I get out of jail?

After you are arrested, the State Attorneys’ Office will file a document called an “Information” which is the formal charging document. After that is filed, the Clerk of Court will set an arraignment date. You will not have to go to court on that date if you have hired an attorney. In fact, it is possible you may never have to go to court, or may have to go only one time. Your attorney will file a document with the Clerk which will serve as notice that you are represented by counsel, that you are entering a plea of not guilty, and that you are participating in the discovery process, meaning you want the police reports, videos, and all other evidence the State has in its possession. This is not automatic in Florida. If you don’t ask for it, you don’t get it. From that point on, depending on the specific facts of your particular case, your lawyer may file motions, negotiate with the State Attorneys’ Office to get the best possible plea deal, or set the matter for trial.

21.What are the penalties if I am convicted of DUI?

If your DUI does not involve property damage or personal injury, you face up to 6 months in jail for a first DUI, and 9 months in jail for a second DUI. A third DUI can be charged as a third degree felony, punishable for up to five years in state prison. However, those are the maximum penalties, not the penalties that will likely be assessed. The Florida Legislature has mandated the minimum penalties that must be imposed for a DUI. The standard sanction for a first DUI is a conviction, a fine of $500.00, 50 community service hours, 10 day impoundment of your vehicle (although that may be waived if there is a reason to do so), probation, payment of court costs, 6 months license suspension (although you may be eligible for a hardship license), and completion of DUI school (which you will have to do anyway in order to get a hardship license). If you blow over a .15, you may also be required to have an ignition interlock devise installed in your car (requiring you to blow in order to start your car) and an increased fine. If you are convicted of a second DUI, but your prior DUI was more than 5 years ago, the standard penalties are very similar to those of the first DUI, although the fine may be larger and the probation may be longer. However, if you are convicted of a DUI and your prior DUI was within 5 years, you will face a mandatory 10 days in jail and a 5 year revocation of your drivers’ license. A third or subsequent DUI can be charged as a felony.

1.If I am sitting in my car and am impaired, but the car is off and the keys are not in
the ignition, I cannot get arrested for DUI.

False. Florida law prohibits being impaired and driving OR being in actual physical control of a vehicle. Therefore, even if you are not driving and had not driven a car when the officer stops you, and hadn’t drive a car at all, if you are in the driver’s seat and have the physical ability to start and operate the car, the officer can arrest you for DUI.

2.If I get pulled over and I blow below a 0.08, the police will let me go.

False. The officer will not, and cannot ask you to provide a breath sample at the side of the road. The only authorized breath test a law enforcement officer can conduct takes place at the jail – after you have already been arrested! If you blow below a 0.08, you will not be un-arrested. Moreover, Florida law gives the State two ways to convict a person of DUI. One is if the person drove a vehicle with a BAC over 0.08. However, the State can also prove a DUI conviction by showing that a person drove (or was in actual physical control of) a vehicle “while under the influence to the extent their normal faculties were impaired.” Thus, you can be arrested, and even convicted of a DUI even if you blow below a 0.08.

3. If I am taking a prescription medication, and have a valid prescription for it, I cannot get a DUI for driving after taking my medication.

False. If you are impaired by medication, even medication for which you have a valid prescription, you still can be arrested and convicted of a DUI.

4. When I am asked by the police officer whether I will provide a breath sample, the officer may tell me that if I blow over a 0.08, I will lose my license for Six months.

True. The officer may tell you that blowing over a 0.08 will result in your license being suspended for six months. However, the law enforcement officer is not under an obligation to notify you of this.

5.If I blow over a 0.08, my license will be suspended for six months.

True. If you blow over a 0.08, the police officer acting as an agent of the Department of Highway Safety and Motor Vehicles, will confiscate your physical license, and your license will be administratively suspended for six months unless you successfully challenge the suspension in a formal hearing.

6.If I blow over a 0.08, I will not be able to drive for six months.

False. If you blow over a 0.08, you may be eligible for a hardship license 30 days after your license was suspended. In fact, you may even be eligible for a hardship immediately after being arrested, with no loss of driving privileges.

7. If I refuse a breath test, the officer will advise me that my driver’s license will be
suspended for a year, or 18 months if I have previously refused to take a sobriety test.

True. Florida has a law called “Implied Consent.” It says that by driving a vehicle in Florida, you have implicitly given consent for any lawful sobriety test. If you are asked for such a test and you refuse, the officer must read you the Implied Consent Warning which states, in part, that if you refuse to provide a sobriety test, your license will be suspended for a year, or 18 months if you have previously refused.

8. If I refuse to provide a breath or urine sample upon request by a law enforcement officer, my license actually will be suspended for a year or 18 months if I have previously refused.

True. If you refuse to submit to a sobriety test, the police officer acting as an agent of the Department of Highway Safety and Motor Vehicles, will confiscate your physical license, and your license will be administratively suspended for one year, or 18 months if you have previously refused such a test, unless you successfully challenge the suspension in a formal hearing.

9. If I refuse to provide a breath or urine sample upon request by a law enforcement officer, I will not be able to drive for a year, or 18 months if I have previously refused a sobriety test.

False. You may be eligible for a hardship license 90 days after your suspension, or even in some cases immediately.

10.It is legal to refuse to provide a breath sample.

False. If you refuse to provide a breath sample, you are violating an administrative regulation and your license will be suspended as a result. Moreover, if you have previously refused to provide a breath sample, a second or subsequent refusal is itself a misdemeanor for which you can be charged independently of any DUI offense. In other words, even if you are not guilty of DUI, you can still be charged and convicted of a crime!

11.The police can pull me over for no reason just to see if I am impaired.

False. The police have to have a valid reason to stop your vehicle. However, the threshold for what constitutes a valid stop is very low. If the police observe any traffic infraction at all, that provides them with a lawful justification for stopping your vehicle. For example, if a police officer notices that your license plate light is out, that is a sufficient basis to conduct a traffic stop, even if the real reason the officer stopped you is to see if you are impaired.

12. A police officer has to see some indication that you are driving impaired, such as
weaving, inexplicable speeding up and slowing down, or stopping beyond a intersection marker, in order to conduct a lawful traffic stop.

False. As long as the police observe a traffic infraction – even a non-moving violation like an inoperable tail light, the officer can conduct a traffic stop.

13. If I blow over a 0.08, there is no use in fighting a DUI conviction.

False. There are always a number of challenges that can be brought to defend against a DUI conviction. For example, an experienced DUI attorney will be able to determine if the police violated your rights in conducting the stop of the vehicle. If the Judge rules the stop was illegal, all the evidence after that stop will be off limits to the State – and your DUI case will likely be reduced to a less severe charge or completely dropped – even if you have a very high breath reading. There are also a number of challenges that can be brought to the accuracy of the breath test machine. There is always hope. There are always defenses.

14. If I am arrested for DUI, it is important that I consult with an experienced DUI attorney as soon as I can after I get out of jail.

True. One of the most important considerations someone facing a DUI charge has to make is whether to ask for a formal hearing or to waive a formal hearing. You only have 10 days after your arrest to make that decision. If you do not ask for or waive your right to a formal hearing within 10 days, you have forfeited the right to do either. As a result, you lose the benefit of a formal hearing (of which there are many) and you also lose the right to apply immediately for a hardship license – and you have gotten nothing in return. Don’t let the ten day deadline expire. Get with an experience DUI attorney as soon as you can.

15. It is illegal to drink and drive in Florida.

False. It is illegal to be under the influence to the extent your normal faculties are impaired and drive (or be in actual physical control of) a vehicle. A DUI officer will always write that his probable cause was based, in part, on the smell of alcohol on the person’s breath. There are numerous problems with such statements. First, alcohol has no odor, so the officer cannot smell alcohol on anyone’s breath. Any odor is from the other ingredients in an alcoholic drink, not the alcohol itself. Moreover, even if the person does have the odor of an alcoholic beverage on their breath, that is evidence of consumption of alcohol. However, the odor alone cannot determine how recently a person consumed alcohol, or how much they consumed. Consequently, the odor of alcohol on one’s breath is not evidence of any crime because it is not illegal to drive after you have been drinking in Florida.

16.If the officer wants me to do field sobriety exercises, I have no choice. I have to do them.

False. You may lawfully refuse to participate in field sobriety exercises. Moreover, unlike refusing a breath test, your license will not be automatically suspended for refusing to do the exercises. However, your refusal to do those exercises will be used by the officer in making his decision as to whether he has probable cause to arrest you. (In other words, if you refuse you will be arrested. However, if you are at the point where an officer asks you to do such exercises, you probably will be arrested whether you do them or not.) Your refusal will also be used by the prosecutor as evidence that you were conscious of your guilt, which is why you refused to do them.

17. Police have special training which allows them to detect impairment in drivers.

False. While police and prosecutors will claim that the police have such training, that claim has been shown to be false. Contrary to what police and prosecutors might claim, even law enforcement officers that have undergone special training do not have any more ability to determine impairment than ordinary citizens. Police and DUI prosecutors will often suggest to jurors that officers who have undergone specialized training specific to DUI detection have a greater ability to determine when a person suspect is under the influence of alcohol, and therefore jurors should rely on the officer’s opinion that the defendant was, in fact, impaired. A controlled study conducted by Rutgers University’s Alcohol Behavior Research Laboratory determined that claim is false. Law enforcement officers’ ability to determine a person’s level of impairment was no more accurate than that of bartenders or social drinkers. More importantly, none of the three groups of individuals – experienced police officers, bartenders and social drinkers – correctly judged levels of intoxication more than 25 percent
of the time. In other words, even cops got it wrong 75 percent of the time.

18. If I am arrested for DUI, it will just be the cop’s word against mine.

False. Most often, DUI arrests are videotaped with audio. That means you will be able to actually see what the police officer did, see how you performed on field sobriety tests, and compare the video to the police officer’s written report. To the extent that there are inconsistencies, that undermines the credibility of the police officer which helps your case. Moreover, video and audio evidence is always very powerful and persuasive. Therefore, if you do not appear or sound impaired on the video, that may help you avoid a DUI conviction even if the police officer’s report says you were impaired.

19. I was drunk, so I didn’t drive. I road my bicycle to the bar, instead. I am safe.

False. You can be convicted of a DUI if you are operating a vehicle. In Florida, a bicycle is considered a vehicle. Therefore, you can get arrested and convicted of a DUI while riding a bike.

20. If I refuse a breath test, the police officers can force me to take a blood test in order to determine my BAC.

False. Law enforcement may only take blood to determine a person’s BAC if the person is involved in a car accident involving serious bodily injury or death, and the police officer has reasonable suspicion that the person was driving while impaired. Law enforcement may even use reasonable force to help authorized medical personnel take your blood to determine your BAC, even if you do not provide consent to do so.

21.If I show signs of impairment, but blow below a 0.08, the officer may ask that I provide a urine sample, and if I refuse, it will be just as if I refused to provide a breath sample.

True. If an officer observes impairment that is inconsistent with the breath test results, that officer may suspect impairment by drugs other than alcohol. In such a situation, the officer may ask you to provide a urine sample. Driving a vehicle in Florida constitutes consent to submit to any sobriety test, not just a breath test. Thus, if you refuse to provide a urine sample upon request, your license will be suspended just as if you refused to provide a breath sample.