DUI FAQs

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.