It is completely normal to have a lot of questions after being arrested for a DUI. In the case you do get pulled over for such, the following knowledge is great to have.
1. What do cops often look for from drunk drivers on the road?
A large percentage of DUI arrest happen at night and on the weekends. This list shows signs drunk driving from most common to least common based on research from the National Highway Traffic Administration:
- Wide turn
- Straddling the center of a lane marker
- “Appearing to be drunk”
- Nearly hitting a vehicle or object
- Driving on surface other than the designated roadway
- Driving less than 10 mph under the limit
- Stopping abruptly in a traffic lane
- Following closely
- Tires touching the center or lane marker
- Randomly braking
- Driving into oncoming traffic
- Actual driving is inconsistent with signaling
- Delayed response to traffic signals
- Stopping inappropriately
- Sudden or illegal turning
- Speeding up or slowing down erratically
- Driving with no headlights on
2. If I happen to get stopped by a police officer what should I say if he asks if I have been drinking?
The smartest thing to do is to nicely explain that you “would like to speak with a DUI attorney before you answer any questions”. Be sure not to answer any incriminating questions; give as little information as possible without being rude or disrespectful. For example, saying you had a beer or two is not incriminating. It would explain any odor on your breath and is not enough to cause intoxication.
3. Do I have the right to an attorney if I am asked to take a field sobriety test?
The right to an attorney is stated under the Miranda Rights which do not take effect until you are actually placed under arrest. Majority of the time, when an officer asks you to complete the FST, s/he has already decided to arrest you; the tests just act as additional evidence. The most important thing is to request an attorney immediately and politely ask the officer to document the time of the request. The best thing to do is to hand over your driver’s license, registration, and proof of insurance and do nothing more. The less you do, the smaller amount of possible evidence there.
4. What do I do if I am asked to take field sobriety test?
There are a variety of tests an officer can choose to perform if you do agree to doing so. Usually, they pick three to six of them to carry out. As stated above, you are not legally required to submit to any FSTs. A respectful refusal to perform them is appropriate.
5. What signs of intoxication is the officer looking for when s/he first pulls me over?
Officers will note a combination of the following in their report:
- Red, watery, glassy, or bloodshot eyes
- Flushed face
- Slurred speech
- Argumentative or bad attitude
- Fumbling with wallet
- Unstable on feet
- Staggering when getting out of the vehicle
- Stumbling while walking
- Leaning on car for support or to balance
- Inability to understand the officer’s questions
- Odor of alcohol on breath
- Disoriented as to the time and place
- Inability to follow directions
6. Why did the officer make me follow a light with my eyes?
Technically this is called the horizontal gaze nystagmus. The officer performing the test does their best to guess the angle the eye begins to jerk. A jerk prior to 45 degrees general indicates that you have been drinking. In many states, this is not a justifiable exercise based on the “guessing” factor.
7. Do I have to agree to take a chemical test? What will happen if I choose not to?
Unfortunately, regardless of whether you agree or disagree to a chemical test, your license will be suspended. If you agree to one and it your first offense, it will be restricted for at least 90 days. If you refuse to submit to one, it may be suspended for a minimum of six months regardless if you are found guilty or not. If you know your BAC is close to or over the legal limit, your best option is to refuse a chemical test. By refusing, you are potentially saving yourself from evidence that could be used against you.
8. Do I have a choice in which chemical test I take? Which option should I choose?
The three BAC chemical tests that can be performed are the blood test, breath test, and urine test. Of these, the blood test is the most accurate and the urinalysis is the least accurate. If you are offered a choice and are completely confident that you are sober, a blood sample is your best choice since it is deemed most accurate. If you think your BAC is above the legal limit, urinalysis is your best option.
9. If the officer never read me my Miranda Rights can I have my case dismissed?
Technically, an officer is supposed to give a Miranda warning after you have been formally placed under arrest. Majority of the time, the officer will delay the actual arrest long enough for you to make multiple incriminating statements. The only consequence of a Miranda violation is that the State cannot use anything you said after your formal arrest as evidence; therefore, no, your case will not be dismissed. Again, the best option is to just say nothing at all.
10. Why am I charged with two crimes?
The traditional offense you will be charged with is a DUI, driving under the influence. Subsequently, you will have a second offense of driving with excessive BAC of over (.10%) if you submit to and fail the chemical test. Legally, you can be convicted of both but only punished for one of the offenses.
11. If I am considered innocent until proven guilty, why did the officer take my license and give me a notice of suspension after my breath test?
If the breath test result is over the legal limit, your license is subject to immediate suspension and confiscation under Florida Statute 322.2615.
It is important to remember there are two unrelated processes regarding your DUI. The criminal proceedings for the charges themselves and an administrative hearing before DMV in relation to your driving privileges. Remember- the administrative hearing must be requested within ten (10) days of your arrest date.
12. Is it possible to represent myself? What is an attorney able to do for me?
You do always have the option to represent yourself, but it is highly advised against. DUI charges and their processes are very complex with many issues that only a qualified attorney would know to look for and understand.
An attorney has the ability to review the case for defects, move to suppress evidence, access evidence of certain things such as the maintenance records for a breath machine or dash cam videos, negotiate with the state for a lesser charge or reduced consequences, challenge the administrative hearing for your driving privileges, exc.
13. How do I find a qualified DUI attorney?
The best way to find an attorney is by word of mouth and looking at their reputation. If at all possible, asking other attorneys who they would go to if they were to get a DUI is the best way to find a strongly qualified one to represent you. When meeting with an attorney, be sure that they have experience in DUI cases, that they have a reputation for going to trial rather than just pleading out when necessary, and that all financial and legal terms of representation are clearly documented.
14. How much will it cost to get an attorney?
Costs will obviously depend on who you decide to represent you, their credentials, and where you live. Some other factors that reflect costs are:
- Is the offense a misdemeanor or a felony?
- Trial and appeal fees may be separate than the original cost.
- Administrative hearing costs may or may not be included.
- Majority of other processing and court fees will be separate from the original agreement.
- Some attorneys charge a fixed fee per hour and others may ask for a retainer in advance with following payments based on a contracted payment plan.
15. What is sentence enhancement?
If you have been previously convicted of a DUI, usually within ten (10) years, this could cause your consequences to be stronger. Another common charge enhancement is a BAC of over .16%.
16. What is a “Rising BAC Defense”?
Generally, it takes between forty-five (45) minutes and three (3) hours for alcohol to start being absorbed into your system. Because of this, your BAC can continue to rise from the time you are stopped until the time of arrest or the time the chemical test is performed. This defense is to force the state to prove that your BAC was above the legal limit at the time you were driving, not the time you were stopped, beyond a reasonable doubt.
17. What is “mouth alcohol”?
This simply refers to any alcohol within the mouth or esophagus. It can be caused by belching, hiccupping, vomiting, or burping within twenty (20) minutes of taking the test. Even simple things such as using Listerine can contribute to this.
18. What defenses can be used in a DUI case?
Because DUIs are such complex offenses, the options for defense are nearly unlimited. The following are some options your attorney may suggest:
- Lack of Reasonable or Articulable Suspicion to Stop or Probable Cause to Arrest
- Evidence can be suppressed if officers did not have probable cause to stop, detain, and arrest you.
- Lack of Driving or Actual Physical Control
- The State must be able to prove that you were driving the vehicle while under the influence; simply stating that you were intoxicated is not enough.
- Miranda Violation
- Statements you make might be suppressed if you were not read your Mirandas at the appropriate time.
- Subjective Nature of the Offense/Erroneous Nature of the Evidence
- The State’s evidence for a DUI case is almost always reliable on the subjective statements given by the arresting officer. They are nearly unverifiable; therefore, the opinions have the ability to be questioned during trial. A DUI arrest can also give the arresting officer multiple overtime hours, translating to increased pay, which can be an argued motive as well.
- Deficient “Implied Consent” Warnings
- If you are not told the consequences of refusing to participate in a chemical test or if the instructions in performing so were given incorrectly, this could affect the validity of the results.
- Blood-Alcohol Concentration
- Inherent Margin of Error
- Most breathalyzer machines have an acknowledged 10% margin of error. This means that even if everything is done properly during testing, there is still a 10%+/- margin of error.
- Core Body Temperature Variation
- Breathalyzer machines assume that every person has the exact same body temperature of 37 degrees Celsius. For every degree above that, the machine will read 6.8% higher than the actual BAC. Because the core body temp of every individual is different, it is important that the attorney forces the state officer to admit that he has no clue what your actual body temp was at the time of testing.
- Non-specific and Cumulative Analysis
- Breathalyzer machines are designed to measure the methyl tail of any hydrocarbon present and is not ethyl alcohol specific. In a normal, sober, human being, many of these hydrocarbons exist. Because the machine does not differentiate between the different alcohols, the BAC detected could be completely off.
- Partition Ratio Variation
- In order for alcohol to effectively impair you, it must have reached the central nervous system through the blood. Alcohol on your breath cannot impair you.
- Radio Frequency Interference
- Detectors are not often tested and calibrated; therefore, they can be deemed inaccurate if appropriate.
- Inherent Margin of Error
- Regulation of Blood-Alcohol Testing
- The state must be able to prove that all testing conditions and equipment used were correctly calibrated and explained. Any evidence suppressed cannot hurt you when you go to trial!
- License Suspension Hearings
- The administrative hearing with DMV is a great way to get discovery on the state’s defense. This will help you to understand their side of the story and prepare for trial against that.
19. What should I do if I am stopped for a DUI?
- Immediately request an attorney and ask the officer to document the time requested.
- Politely refuse to answer any questions other than your name and address.
- Always be polite to the officer and produce the documents s/he is requesting (driver’s license, proof of insurance, and registration).
- Refuse all field sobriety tests.
- Refuse chemical tests unless you are positive you are under the legal limit.