DUI or DWI

Field Sobriety Exercises, Breath Test, Arrest, Sentencing

At Bruck & Tischler we have a wealth of experience handling DUI and related traffic matters. Yehuda and Dustin have undergone extensive DUI training with the same instructors who conduct the police training. We will investigate the constitutionality of the traffic stop to determine if the officer had probable cause to stop or approach your vehicle. We will also review the procedures used to collect evidence to establish if the evidence was illegally obtained, consider the constitutionality of any statements you may have given the police to determine if they will be admissible in court, and challenge the accuracy of any tests administered by police. Furthermore, we are often able to interview the arresting police officer under oath with a court reporter present to investigate the case and build our defense.

 

We have the experience and expertise to represent you if you have been charged with an alcohol-related offense and we are available to handle both the criminal hearings and the formal administrative review hearing to challenge the suspension of your driving privileges. It is free to meet with us and discuss your case. At our meeting, we will conduct an in-depth analysis of your case and explain its strengths and weaknesses. 

 

The Anatomy of a DUI case

 

The following discussion summarizes the procedures followed in DUI cases in Florida and examines legal issues that arise from your first encounter with police through the point of booking into county jail and beyond.

 

The Basic DUI Laws in Florida

 

Florida Statute Section 316.193 makes it a crime to drive, or to be in actual physical control of, a motor vehicle while under the influence of alcohol or a controlled substance to the extent that your normal faculties are impaired, or with a blood alcohol level (BAC) of .08 or above. There are two ways for the state to prove that a person is guilty of DUI. The prosecutor can either show that the driver had a BAC in excess of .08 or, if there is no breath sample submitted, the state can attempt to prove that the driver’s normal faculties were impaired with the testimony of a witness (normally a police officer) showing that the driver displayed signs and symptoms of impairment. This is usually done with the officer’s testimony of the driver’s driving pattern, demeanor, and performance on Field Sobriety Exercises.

 

APC (Actual Physical Control)

 

Even if you were not actually driving your car, you may be charged with DUI, as the law makes it a crime to “drive or be in actual physical control” of a motor vehicle while under the influence. The law specifically defines “actual physical control” as: “The defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he][she] is actually operating the vehicle at the time.” In our jurisdiction, this means you may be arrested and prosecuted even if you are sitting in your car in a legal parking spot trying to sober up before you drive, or while waiting for a designated driver to arrive. Examples of APC cases prosecuted in Florida include people who were sitting in their car in front of their house because they were told to leave their home by a spouse. Or when air-conditioning was not working in their house and they decided to have a beer in an air-conditioned car in a parking lot. Even sitting on the bed of a pickup truck with the keys in the ignition is considered being in actual physical control in Florida.

 

“Normal Faculties”

 

As mentioned above, if a subject refuses a breath test, the state will proceed on the theory that while the subject’s BAC is not known, the subject’s normal faculties were impaired. The law defines normal faculties as follows: “Normal faculties include, but are not limited to, the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgements, act in emergencies and, in general, to normally perform the many mental and physical acts of daily life.” While the above definition is vague, officers in Florida normally testify that during a DUI investigation, they seek to evaluate the subject’s divided attention skills (the capacity to do more than one thing at a time), which are necessary to safely drive a car. To further complicate matters, the law gives no guidance on what level of impairment is unlawful by this statute.

 

Field Sobriety Exercises - The DUI Investigation

 

Field Sobriety Exercises, commonly referred to as Roadside Exercises or Roadsides, are a series of tests offered to an individual who police suspect are DUI. Once an officer stops someone for any reason and suspects that this person may be impaired, they will ask the person to perform Field Sobriety Exercises, or, more likely, they will call a DUI certified officer to the scene to instruct the driver on how to perform the Field Sobriety Exercises. While Field Sobriety Exercises are voluntary, refusing to perform them will likely result in a DUI arrest. Officers reason that only a guilty person would refuse to do the tests. It is also worthy to note that judges in our jurisdiction routinely find that the odor of alcohol, slurred speech and bloodshot eyes, together with refusing to do Field Sobriety Exercises, is enough probable cause to arrest someone for DUI. Indeed the purpose of Field Sobriety Exercises is to develop probable cause for a DUI arrest and the results are admissible in court as evidence that the subject’s normal faculties were impaired. There are five Field Sobriety Exercises normally offered to drivers in Florida who are stopped and suspected of DUI.

 

These exercises are:

 

* Horizontal Gaze Nystagmus (HGN)

* Romberg Balance

* Walk and Turn Test

* One Leg Stand

* Finger to Nose Test

 

When administered properly under ideal conditions, these tests can be a useful tool to measure impairment. The following is an overview of each of Field Sobriety Exercise.

 

HGN

 

Horizontal Gaze Nystagmus or HGN is a test by which the officer inspects each eye with a stimulus (usually a pen or small light) to see if nystagmus is present. Nystagmus is the involuntary jerking of the eye as it moves from plane to plane (in this context, side to side, without moving the head). Alcohol is a Central Nervous System (CNS) depressant which causes this nystagmus. The nystagmus or jerking of the eye is involuntary in that it cannot be controlled and the subject will rarely know of its presence as it would normally not hinder vision. Officers are trained to detect HGN in three ways in each eye for a total of six possible cues or indicators of impairment.

 

First, an officer will check if the subject can smoothly follow the stimulus by moving it back and forth in front of the subject. Second, the officer will check if there are many who naturally have nystagmus, and many others that display nystagmus because of various medical conditions that cause nystagmus unrelated to alcohol. There is a distinct (or pronounced) nystagmus when the stimulus is held at the periphery of the subject’s vision (maximum deviation). Lastly, the officer will check whether the nystagmus occurs prior to the stimulus reaching a 45-degree angle. Some well-trained officers can calculate a subject’s BAC based on the angle of onset of nystagmus. This is called Tharp’s Equation.

 

Romberg Balance (Time Estimation)

 

This test simply requires the subject to stand with their feet together, eyes closed, and arms to the side while the counting to 30 seconds. The counting is to be done in the subject’s mind, not aloud. The officer will be looking out for four cues or indicators of impairment. First, whether the subject maintains closed eyes during the exercise. Second, whether the subject sways. Third, whether the subject needs to raise their arms for balance. Fourth, whether the subject’s internal clock can accurately estimate 30 seconds. Note: The Romberg Balance test is not a standardized field sobriety test recognized by the National Highway Transportation Safety Administration (NHTSA) as a reliable indicator of mental and physical impairment. Therefore, it holds less weight in court than a standardized test.

 

Walk and Turn

 

In this test, the subject is asked to walk nine steps along a line (there would not necessarily be a line if done on the side of a road) touching heal to toe and to then return nine steps back after properly turning around. Officers are trained to look for eight possible indicators of impairment: First, whether the subject loses balance during instructions. Second, whether the subject starts the test before being told to do so. Third, whether the subject needs to stop walking, or pauses, to regain balance. Fourth, whether the subject doesn’t touch heal to toe (leaves more than one-half inch of space). Fifth, whether the subject steps off of the line one or two times. Sixth, whether the subject raises one or both arms six or more inches to maintain balance. Seventh, whether the subject does not turn correctly or loses balance during turn. Eighth, whether the subject takes more or less than nine steps in each direction. If the subject steps off the line three or more times or is in danger of falling, officers are trained to mark on their report that the subject could not perform the test.

 

One-Leg Stand

 

In this test, the subject is asked to stand on one foot for 30 seconds (officers are trained to allow the subject to choose the foot and to inquire about any injuries that would affect their performance on this and any other test). Officers are trained to look for four indicators of impairment: First, if the subject sways. Second, if the subject needs to raise their arms more than six inches to maintain balance. Third, if the subject needs to hop on one leg to maintain balance. Fourth, if the subject needs to put a foot down one or two times. If the subject puts a foot down three or more times, officers are trained to mark on their report that the subject could not perform the test.

 

Finger to Nose

 

In this test, the subject is told to stand with their feet together and head tilted back with eyes closed. The subject is then instructed to touch the tip of his/her nose with the tip of their finger (not the pad of the finger) and to then return that hand to the starting position. This is done three times with each hand. Officers are trained to look for four possible indicators of impairment: First, whether the subject maintains their eyes closed. Second, whether the subject misses the tip of their nose. Third, whether the subject uses the wrong hand. Fourth, whether the subject removes their finger from their nose as instructed. Note: Like the Romberg Balance test, the finger-to-nose test is not a standardized field sobriety test recognized by the National Highway Transportation Safety Administration (NHTSA). Therefore, the finger-to-nose test as a reliable indicator of mental and physical impairment holds less weight in court than a standardized test.

 

The Arrest

 

Once Field Sobriety Exercises are complete, or if the subject refuses to do the exercises and the officer believes the subject to be impaired, the officer will place the subject under arrest and transport the subject to the police station. Generally, the subject’s car will get towed by a local towing agency that has a contract with the police department. In Miami-Dade County, officers normally wait for the arrested subject to reach the police station before asking if the subject is willing to take a breath test. In Broward and Monroe Counties, it is more commonplace for an officer to ask the question on the scene. This is likely because, in those counties, officers are more likely to be equipped with video cameras on their patrol cars. Therefore, any refusal would be recorded.

 

The Breath Test (In Cases Where No Accident Occurred)

 

Pursuant to the Florida Implied Consent Law, anyone who has obtained a driver's license in Florida is deemed to have consented to any sobriety test. In fact, if you take a look at the bottom of the picture-side of your Florida Driver License, it states “Operation of a motor vehicle constitutes consent to any sobriety test required by law.” Once a person is arrested for DUI, the arrestee is offered the opportunity to provide a breath sample to determine their BAC (blood alcohol content). The law is very specific and requires the officer to inform the arrestee of the implied consent law. The various police departments have forms to accommodate that requirement.

 

The implied consent law warns the subject of the consequence of refusing a breath test. The implied consent law states that if a person arrested for DUI refuses to submit a breath sample, the arrestee’s driver’s license will be suspended for 12 months. If the arrestee has previously refused to take a breath test, the suspension is for 18 months. It also warns the arrestee that the refusal will be admissible into evidence at any criminal proceeding and that it is a separate misdemeanor to refuse the breath test a second time (if you previously were arrested for DUI and refused to take the breath test). In addition, it offers the arrestee the opportunity to have other independent chemical or physical tests performed so long as the cost is absorbed by the arrestee.

 

However, if the arrestee opts for an alternate test, the police are only required to hand the arrestee a phone book. If the arrestee refuses the test, the officer will repeat, “Do you understand that refusing to take the breath (and/or urine) test will result in the suspension of your driving privilege for a minimum of 12 months?” If the arrestee responds “Yes,” the officer will ask, “Do you understand that refusing to take a breath (and/or urine) tests may result in an additional criminal charge?” If the arrestee responds “Yes,” the officer will then ask, “Do you still refuse to take the test?”

 

At this point, the subject will either refuse the test or take the test. Either way, whether the arrestee refuses to take the test or agrees to take the test, the resulting police action is the same; the arrestee will get booked into jail and held there for at least eight hours.

 

The Intoxilyzer Breath Testing Machine

 

The Intoxilyzer is the breath test machine used in our jurisdiction. Made by CMI, Inc., this machine is being used by many law enforcement agencies nationally and in many countries around the world. While the Intoxilyzer 8000 only tests the amount of alcohol in the breath (not the blood), it is premised on a complicated conversion ratio that deduces the blood alcohol level based on the amount of alcohol particles in the breath. The machine finds and measures the amount of alcohol particles through infrared spectrometry. The breath sample is introduced into the machine’s chamber where it passes through an infrared beam that can recognize alcohol and count the particles. The law requires, and the machine accommodates, two breath samples for each subject. Before giving the subject the test, the law requires that the police conduct a 20-minute observation period during which the police are supposed to watch the subject to make sure that the subject does not eat or regurgitate. This is to ensure that nothing is in the mouth at the time of the test that would interfere with the result.

 

The machine is supposed to check that a large enough breath sample is introduced by the subject. At a minimum it is suggested that the subject provide one liter of breath for an accurate reading. The machine is also designed to detect any alcohol in the mouth and should register an invalid sample signaling that mouth alcohol was detected in the event that mouth alcohol is present. This is supposed to protect the subject against inflated readings to do mouth alcohol. In addition, the machine has a slope detector to ensure that it is not the mouth alcohol that the infrared is counting but instead a breath which characteristically rises and then tapers off.

 

Breath Test Results over the Legal Limit

 

If the breath test results are above the legal limit, the Intoxilyzer machine will print out a receipt and the arrestee will next be questioned by the officer.

 

Breath Test Results below the Legal Limit

 

Many people assume that if they provide a breath sample and the results are below the legal limit of .08, they will be released because it shows that the officer’s arrest was invalid and they are not impaired. This is not true. If the results are close to the legal limit, the prosecution of the case will likely proceed on the theory that the arrestee sobered up to a certain extent while being transported to the station to take the test, (this usually takes anywhere from a half hour to two hours depending on the department and how busy they are) but was over the legal limit at the time of driving. This method is commonly referred to as retrograde extrapolation.

 

The same theory is commonly used by a DUI defense attorney whose client tests over the legal limit to argue the opposite proposition that, while the client provided a breath sample over the legal limit some time after being stopped by the police, using retrograde extrapolation, the client may have been below the legal limit prior to driving and getting stopped. As intimated above, retrograde extrapolation is a means of deducing what a person’s BAC was at the time they were pulled over by using the breath results and calculating the rate at which the body eliminates or absorbs alcohol during the time that elapsed between driving and taking the test. The reason this is done is readily understood when one considers that it is not a crime to be over the legal limit at the time that one is sitting in the police station prepared to take a breath test, but rather, it is a crime to be driving over the legal limit. Since, there can be considerable lag time between the driving and testing, this calculation may be necessary to ascertain the BAC at the time of driving.

 

Alcohol is first absorbed by the body and then broken down by the digestive system. Next, alcohol is eliminated from the body. A drinker experiences this as “getting drunk” and “sobering up.” The effects of alcohol absorption and elimination resemble a bell-shaped curve with the top of the curve being the peak impairment and the bottom of the scale representing time from left to right. There are three possible conclusions of any retrograde extrapolation. One, the subject had a higher BAC at the time he/she was driving as he/she was done drinking long before getting into the car and was eliminating alcohol during the time that elapsed between driving and taking the test. In this scenario, the driver may be over the legal limit at the time of driving, but under the limit at the time of testing. The second possibility is that the subject had a lower BAC at the time he/she was pulled over as he/she was done drinking not long before getting into the car and was still absorbing alcohol during the time that elapsed between the driving and the test taking. In this scenario, the driver may not be over the legal limit at the time of driving but may over the legal limit at the time of testing. The third possibility is that the subject’s BAC was the same at the time of the testing and the time of driving as the driver “peaked” somewhere in between the driving and testing.

 

If the breath test results are well below the legal limit, and the officer suspects that the breath test results are too low considering the arrestee’s performance on the Field Sobriety Exercises, (in other words, the arrestee seemed very impaired at the Field Sobriety Exercises well beyond what the breath test is showing) the officer will likely consider that the arrestee is also under the influence of drugs. In that case, a Drug Recognition Expert (DRE) will be called in to do another more involved set of Field Sobriety Exercises to determine if the arrestee is under the influence of drugs. Next the arrestee will be asked for a urine sample.

 

Drug and Marijuana Cases

 

A person suspected of being under the influence of drugs is taken into another room of the police station where a DRE evaluation is done. The DRE evaluation consists of all of the same exercises mentioned earlier with some additional drug specific tests. The Drug Recognition Expert, who is normally a DUI officer with some additional training, will first ask a series of questions  including, present time and location, and time and nature of last meal and sleep. The DRE will then inquire about any injuries or ailments that the subject may have and any medication the subject may be taking. The DRE will also document the subject’s coordination, attitude, and whether there is anything noteworthy about the subject’s breath, speech or face. The DRE will check the subject’s pulse, blood pressure, body temperature, pupil size and reaction to light, muscle tone, nasal area, arms and mouth.

 

Based of that evaluation, the DRE will give an opinion as to what drug(s) the subject is under the influence of. The DRE will then request a confirmatory urine sample which is later tested at a laboratory. In marijuana cases and, to a lesser extent in cocaine and other drug cases that like cocaine do not remain in the urine for very long, the state must prove not just that there was marijuana in the subject’s urine, but must prove that the subject was under the influence of marijuana at the time that the subject was driving. So the DRE must be able to say that the positive urine is not the result of marijuana smoked a few days or weeks ago. But instead must be sure that the subject was actually under the influence of marijuana at the time that they were driving.

 

Accident Cases (No Serious Injury)

 

There are special considerations in DUI cases that start out with an officer responding to a traffic accident. Firstly, it is commonplace for the drivers and passengers of both vehicles involved in an accident to have exited the car by the time the police arrive. Therefore, the officer may not be able to establish in court that the defendant was “driving or in actual physical control” of the car to prove the DUI charge. In such cases, the state must rely on civilian witnesses to prove their case. That has its problems as civilians rarely have an incentive to get involved in the criminal proceeding. Secondly, oftentimes civilians, either because of their condition after the accident or because more than one person exited the defendant’s car, do not know who was operating the vehicle.

 

The other special consideration worthy of note at this point is the law of accident report privilege. The law states that comments made by those involved in a car accident to the police cannot be used in a court of law in a criminal proceeding unless there was proper “changing of the hats” by the officer. Changing of the hats is a phrase used to describe the officer’s advice to the person involved in the accident that the officer has concluded the accident investigation and is commencing a criminal investigation. In an accident case where an officer doesn’t inform the subject that the accident investigation is ending and that the DUI investigation is beginning, any statements made by the subject will likely be inadmissible in a criminal DUI case.

 

Accident Cases Involving Serious Bodily Injury or Death

 

The law in Florida allows an officer to forcibly draw blood from a DUI suspect if they were involved in an accident that resulted in serious bodily injury or death. This is either done at the scene of the accident or, in cases where the suspect is injured, at the hospital where the suspect is being treated.

 

Jail

 

Once the DUI investigation is complete, the officer will transport the arrestee to the county jail to be booked and photographed (yes, the picture may show up at trial). The law requires the arrestee to remain in jail for eight hours. After eight hours, the arrestee can post bond and be released. If bond is not posted, the arrestee will go before a judge within 24 hours for a hearing where the judge will consider conditions of release including non-monetary conditions.

 

Minimum Mandatory DUI Penalties and Sentences in Florida

 

The minimum mandatory sentence for a first DUI is:

 

* Adjudication (criminal conviction)

* Six months of reporting probation

* Six-month driver’s license suspension (eligible for hardship/work license after completion of a Florida DUI program)

* Attend a DUI program

* Victim impact panel (presentation by MAAD)

* $250 fine

* 10-day vehicle impoundment

* 50 hours of community service

* Court costs

* $25 donation to Ryder Trauma Center

 

The minimum mandatory sentence for a second DUI not within 5 years of the previous DUI is:

 

* Adjudication (criminal conviction)

* Six months of reporting probation

* Six-month driver’s license suspension (eligible for hardship/work license after completion of DUI program

* Extended DUI program

* Victim Impact Panel (presentation by MAAD

* $500 fine

* 10-day vehicle impoundment

* 50 community service hours

* Court costs

* $25 donation to Ryder Trauma Center

* One-year ignition interlock (device placed on car that requires a breath sample to start the car)

 

The minimum mandatory sentence for a second DUI within five years of the previous DUI is:

 

* Adjudication (criminal conviction)

* One-year of reporting probation

* Five-year driver license suspension

* Extended DUI School

* Victim Impact Panel (presentation by MAAD)

* $500 fine

* 30-day vehicle impoundment

* 50 hours of community service

* Court costs

* $25 donation to Ryder Trauma Center

* One-year ignition interlock (device placed on car that requires a breath sample to start the car)

* 10 days in jail

 

The minimum mandatory sentence for a third DUI not within 10 years of a previous DUI is:

 

* Adjudication (criminal conviction)

* One-year of INTAP probation, (a more intensive probation program)

* Five-year drivers license suspension

* Extended DUI program

* Victim impact panel (presentation by MAAD)

* $1000 fine

* 90-day vehicle impoundment

* 50 hours of community service

* Court costs

* $50 donation to Ryder Traum

* Two-year ignition interlock (device placed on car that requires a breath sample to start the car)

* No drinking or driving for one year

* Alcoholics Anonymous (AA) three times per week for a year

 

The minimum mandatory sentence for a third DUI within 10 years of a previous DUI is:

 

* Adjudication (criminal conviction)

* One-year of INTAP probation (a more intensive probation program

* Five-year drivers license suspension

* Extended DUI School

* Victim Impact Panel (presentation by MAAD)

* $1000 fine

* 90-day vehicle impoundment

* 50 hours of community service

* Court costs

* $50 donation to Ryder Trauma Center

* Two-year ignition interlock (device placed on car that requires a breath sample to start the car)

* No drinking or driving for one year

* Alcoholics Anonymous (AA) three times per week for a year

* 30 days in jail

 

 

 

 

 

 

 

 

 

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