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Florida law provides the State with several alternative methods for proving the criminal charge of “Driving Under the Influence” in court. In order to prove the DUI case, the State must establish all of the following elements beyond and to the exclusion of any reasonable doubt:
As you can see, each element of the offense of DUI can be proven in the alternative depending on the nature of the case and its facts. Thus, a DUI charge can be brought depending on the nature of the substance that was alleged to have been consumed, whether the vehicle was in motion or parked with an individual seated in the driver’s seat, and whether the driver submitted to testing or refused the tests.
In order to attempt to prove the DUI case, the prosecutor will rely on three major categories of evidence:
Before making any decision on how best to proceed in your case, it is necessary to obtain all of the evidence in the State’s possession. This is accomplished by filing a “Demand for Discovery” in the court file. The filing of this pleading requires the State to furnish a copy of any written materials, such as the police report, witness list, and field sobriety testing documents to your attorney. It likewise permits the defense attorney to access a copy of all video recordings, 911 audio recordings, and dispatch records. In cases involving breath, blood, or urine test results, the defense attorney may also obtain a copy of the documents associated with the procedures used to collect and test the samples. Breath testing is the method preferred under the law to accomplish testing in Florida DUI cases. For that reason, the majority of DUI cases where testing occurred involve a review of the Intoxilyzer calibration and testing records.
Once obtained, these documents must then be thoroughly reviewed and analyzed by an attorney for the purpose of evaluating whether the State possesses sufficient evidence to prove the DUI case.
In DUI cases involving breath test results, the State will often rely heavily on readings that are in excess of .08 in order to secure a conviction. The prosecution can use this BAC evidence to satisfy one of the elements of the DUI charge, without the necessity of demonstrating impairment. This is the so-called DUI per se, where the operation of a motor vehicle with a BAC of .08 or higher is, in and of itself illegal, even if there was no improper driving and the driver appeared otherwise sober.
While it is certainly realistic to acknowledge that the State’s possession of breath test evidence showing a BAC “above the legal limit” is powerful evidence for the prosecution, it would be unwise to simply accept that the existence of breath test results that are a .08 or higher inevitably will lead to conviction. To the contrary, there are any number of reasons why breath test results may be ruled inadmissible or why a jury would harbor a reasonable doubt on the reliability of the readings obtained.
As a threshold matter, the State must demonstrate substantial compliance with Florida’s statutes, rules and regulations governing breath testing. These are detailed requirements that specify not only the procedures for evidentiary breath testing, but also provide for the proper maintenance and calibration of the breath test equipment itself. An examination of whether these procedures were followed by law enforcement can sometimes reveal a material deviation from the rules. Discovering such an issue then permits the defense to attack the admissibility of the test results in court. Should the results be excluded, the State is now deprived of a strong piece of prosecutorial evidence and the ability to even comment at trial about a request for a breath test, the test itself, or the results. An analysis of whether law enforcement followed Florida’s regulatory breath testing framework must include reviewing all of the following:
Our office can secure all of the necessary documentation from the FDLE and law enforcement to examine these critical issues. Any anomalies detected or a history of errors associated with the breath test machine used in your case could be useful for challenging the admissibility of the BAC results in court.
In a DUI case where the State will be relying on evidence of a BAC that is .08 or higher, the State is required to demonstrate that the defendant’s breath alcohol level exceeded .08 at the time of driving and not just at the time of testing. The prosecution benefits from a presumption built into Florida’s DUI statute. In that regard, the test results are presumed to be representative of the BAC at the time of driving. However, that presumption can be challenged and rebutted.
The appropriate method for doing so is through the use of the Rising Breath Alcohol defense. This defense relies on the actual scientific understanding of how the body absorbs and eliminates alcohol over time rather than a legal fiction designed to give the prosecutor a shortcut to conviction. Depending on the level of the BAC result, the Rising Breath Alcohol defense can be employed to argue that it was reasonably possible that you were operating the vehicle while your BAC was under .08. However, following the stop, investigation and arrest, as well as the possible delay for transport to the breath testing location, your body continued absorbing the alcohol you consumed. Thus, by the time you submitted to breath testing your BAC exceeded .08. Our office can perform a preliminary “retrograde extrapolation” that may be helpful in conducting negotiations in your case for reduction of the DUI charge. In the alternative, a report backed by expert testimony from a Forensic Toxicologist could cast significant reasonable doubt at trial that your BAC was .08 or higher at the time of driving.
Florida law dictates in precise terms the exact timing and method for law enforcement to request a driver submit to a breath test. In the event that the driver at first refuses, the warning required by law that follows is designed to encourage submission to the breath test by threatening a driver license suspension for refusing. Because the statute specifically outlines the information that is supposed to be imparted, courts have excluded breath test results that deviated significantly from the prescribed Implied Consent warning. In other words, if law enforcement misstates the law as it relates to taking a breath test, they do so at the peril of the results obtained. Common examples of this include advising a driver that they can “only get a hardship license if they blow,” misstating the length of the suspension period, or encouraging the breath test because “it will look better for you in court.” In other cases, law enforcement might tell an arrested person that they will only be able to get out of jail or can get out of jail sooner by agreeing to the breath test. By applying pressure and incentives that are not expressly permitted by Florida law, these coercive techniques are likewise grounds to suppress the breath test results.
Most law enforcement agencies in Pinellas County now video record the request for breath testing and the reading of Implied Consent. Our office will obtain this video evidence and scrutinize this particular portion of the video to ensure that the request for the breath test was lawful. If it was not, we may decide to file a motion to suppress the breath test results. In the alternative, we may use the potential suppression issue as negotiation leverage with the prosecution.
As indicated previously, breath testing is the preferred method under the law for the detection and measurement of alcohol in the body in a DUI prosecution. While blood testing is more accurate than breath testing, the law is structured this way because the submission of breath samples is far less intrusive on an individual’s privacy and bodily autonomy than drawing blood from a person accused of DUI. However, Florida law does permit law enforcement to request a blood draw under certain limited circumstances. In other cases, Florida law provides law enforcement with the ability to accomplish a “forcible draw” even though the accused may not have consented to the taking of blood. Given that blood testing is purposely limited in this way, there are essentially three scenarios where a blood test may be part of the evidence in a DUI case:
If a person voluntarily consents to a blood draw, the results may be available to the prosecutor for use in court. As a practical matter, a scenario involving truly voluntary consent to a blood draw is rather rare. When we examine the admissibility of blood draw evidence in the context of a DUI charge where the blood was obtained based on so-called consent, we closely consider all of the surrounding circumstances. If law enforcement employed some pressure or inducement to obtain “consent” or failed to make clear that the test was purely voluntary, the blood draw results may be subject to exclusion. Some common situations where this is feasible may include:
You may note that all of these tactics introduce the specter of some consequence or reward that attaches to consenting to a blood draw. When these methods of “persuasion” are used, the consent is no longer purely voluntary. If a court finds that law enforcement coaxed, cajoled, or otherwise improperly influenced your decision to consent to a blood draw, the results would necessarily be excluded from use as evidence in court.
There have been a number of developments in DUI law over the past decade that have caused law enforcement to rely more extensively on search warrants to secure blood samples in DUI cases. In Florida, the issuance of a search warrant is only permitted in felony cases. Therefore, if your DUI case involved the execution of a search warrant for the purpose of obtaining blood, it is likely that a serious accident, death, or multiple prior DUI convictions are factors in your case. Florida law presently permits the taking of blood, even against a person’s will, if the DUI charge involves serious injury or death. However, the United States Supreme Court has held that law enforcement must obtain a warrant in order to conduct a blood draw, if an individual does not consent to the procedure. While there are a few exceptions to the warrant requirement, the urgency caused by the dissipation of alcohol from a suspect’s body over the passage of time is not, in and of itself a reason to forgo an application for a search warrant.
Despite the rather clear directive from the United States Supreme Court that a search warrant must be obtained prior to conducting a blood draw in the absence of consent, some law enforcement agencies have been slow to abide by this constitutional mandate. Accordingly, if you were charged with a felony DUI where a blood draw occurred, it is imperative to determine if law enforcement secured a warrant. It is equally important to review the application for the search warrant to determine if it stated probable cause and whether the warrant was properly issued by the reviewing judge. If no warrant was obtained, then the case must be scrutinized to determine if some exception to the warrant requirement was present. The failure to comply with the warrant requirement for a blood draw or a defective search warrant application are both potentially viable grounds to seek to exclude the blood test results from being used in court.
In some DUI cases, the person suspected of DUI is transported to a hospital. This may occur due to being injured in an accident, simply to be “checked out,” or due to suffering a medical episode during the investigation or arrest phase. Florida law anticipates that situations of this nature may occur that make the taking of a breath or urine sample “impossible” or “impractical.” Therefore, Florida law allows the police to request a blood sample from a person where there is probable cause to suspect the driver of DUI, the driver has been transported to the hospital, and the taking of a breath test (where alcohol is suspected) or a urine test (where drugs are suspected) has now become impossible or impractical.
If law enforcement obtained a blood sample from you in your DUI case under this justification, it is necessary to determine whether it was truly “impossible” or “impractical” to administer breath or urine tests or if it was merely inconvenient. Some relevant factors to consider include the reason for the visit to the hospital, what information law enforcement had as to how long the diagnosis or treatment would take, whether there were visible injuries to your mouth or face, the distance from the hospital to the police station, and whether law enforcement ever later asked for a breath or urine test following the doctor declaring you “medically cleared” to leave the hospital facility.
In some misdemeanor DUI cases, these circumstances may create a difficult problem for the prosecution. This is because the United States Supreme Court has ruled that a search warrant must be obtained before taking a person’s blood if they do not voluntarily consent. However, Florida law does not contain any provision allowing the issuance of a search warrant in misdemeanor cases. Thus, there are scenarios where law enforcement requests submission to a blood draw in a misdemeanor DUI where the individual has been transported to a hospital. The accused then refuses to consent, following which they are read Florida’s implied consent law threatening a driver license suspension and that the “refusal” will be used against them in court. This then causes the person to now change their mind and allow the blood draw. Nevertheless, such a sequence of events may provide an experienced DUI defense attorney with the appropriate basis to exclude the blood test results. The argument that should be employed is that although the Florida statutes permitted the request, there was no voluntary consent because of the threatened consequences. In the absence of consent, a warrant was required. Since Florida does not permit the issuance of a warrant in misdemeanor DUI cases, the blood sample was illegally obtained by the police. If the court were to agree with this line of argument, it would lead to suppression of the test results and the prosecution would be prohibited from using or commenting about the blood test evidence.
Obviously, medical personnel may take blood at the hospital for the purpose of diagnosis or treatment of a potential medical condition. This is generally referred to by prosecutors, defense attorneys, and judges as a “medical draw.” It is distinguished from the “legal draw” where law enforcement obtained the blood through consent or by search warrant. In cases where an individual was transported to a hospital and no legal draw was accomplished, it is quite common for the prosecutor to subpoena the medical records. The State must go about the procedure of subpoenaing the records carefully. First, the State must provide you with notice of their intent to issue the subpoena for your medical records. Second, the State must narrowly tailor the subpoena so that your privacy interests are not violated by an overly broad records disclosure. Third, the State must be able to demonstrate a connection between the medical records sought and the criminal offense of DUI. If you have received notice from the prosecutor that the State intends to issue a subpoena for your medical records, it is imperative that you contact a DUI defense attorney at once. In most circumstances, the law only permits an objection to the subpoena if it is challenged within 10 days of receipt of notice.
Even if the prosecution does obtain your medical records and has recourse to “medical blood draw” testing results, the readings may not be reliable or accurate.
You should know that, in general, medical records will report a blood alcohol level as a “serum blood” result. There is a fundamental difference between a “serum blood result” and a “whole blood result.”
Hospitals do not analyze whole blood for ethanol. They analyze only a part of whole blood called serum. Serum is the fluid that remains from a blood sample after extraction and/or distillation of blood cells, platelets, and fibrins (clotting agents). It is this serum that a hospital lab tests for the presence of ethanol and a myriad of other compounds.
Hospitals use serum instead of whole blood for lab analysis because the hospital needs a test that requires minimal sample preparation and can determine the presence of multiple compounds at the same time. Given these objectives and parameters, hospitals choose to perform enzymatic immunoassays known as EIA tests.
Serum is analyzed using an EIA analyzer to confirm the presence and quantity of a co-enzyme called NADH. When a person ingests ethanol, the body immediately recognizes it as a toxin and begins to metabolize it. An enzyme called alcohol dehydrogenase (“ADH”) and a co-enzyme called NAD begin the metabolic process. NADH is a by-product of this chemical metabolic reaction. The theory behind EIA ethanol testing is that if one knows how much NADH there is, one can mathematically calculate how much ethanol there must have been in the metabolic process to produce the NADH by-product.
The EIA process is quick. A hospital can have serum results within approximately 20 minutes. Although EIA instruments are widely accepted for clinical applications, they do have significant limitations. While EIA testing achieves clinical and diagnostic objectives, it is not forensically reliable for a DUI prosecution where a blood alcohol level needs to be proven beyond a reasonable doubt.
Hospital EIA testing cannot determine the presence of ethanol to the exclusion of every other substance. This is because EIA tests quantify the presence of NADH. While NADH is the by-product of the ethanol metabolic process, it is also the by-product of other metabolic processes. This means that EIA testing is cross-reactive: EIA tests identify the presence of NADH regardless of what underlying substance may have created its presence. This can often lead to a false-positive result.
In particular, the presence of lactate will generate the same NADH in blood that ethanol generates when it is being metabolized. In many cases, patients are brought into an emergency room suffering from trauma, such as shock and/or bleeding. When muscles are even briefly deprived of blood oxygen due to bleeding (hypoperfusion) or when blood pH changes due to bleeding (acidosis), the body reacts by immediately producing lactate. This lactate must be metabolized. In the process, NADH is generated and the NADH is present in the bloodstream when the hospital extracts blood for an EIA analysis. The EIA testing cannot differentiate between the NADH generated during ethanol metabolism versus NADH generated during lactate metabolism. EIA testing identifies and quantifies NADH, but it cannot tell us its source. The EIA testing may be identifying the presence of NADH generated solely from shock, bleeding, and lactate metabolism. In essence, the EIA test can suggest the presence of ethanol when there is none. EIA testing can likewise suggest an ethanol level wholly inconsistent with the true level. The high likelihood of false positives and the lack of specificity make EIA testing unsuitable for forensic purposes.
Additionally, because hospitals test serum and not whole blood, the result that is produced is higher than a more accurate whole blood forensic test. Serum is mostly water. Ethanol has an affinity for water since it is water-soluble. Therefore, there will be a higher concentration of ethanol in serum than in whole blood. This is, of course, problematic in a criminal prosecution since the State would have to demonstrate a whole blood BAC expression through expert testimony where a “conversion” has been conducted.
However, the exact conversion rate between serum ethanol levels and whole blood ethanol levels is impossible to accurately predict. This is because the amount of water in each individual’s blood is scientifically impossible to predict. The amount of water in any given person’s blood determines the conversion ratio. The amount of water in a person’s blood is based on the hematocrit or packed cell volume. The more red blood cells a person has, the less volume of water in their blood. Hematocrit between individuals can vary widely. Hematocrit in one individual can vary widely during the course of a day. Without knowing the precise hematocrit of someone’s blood, it is impossible to apply a linear conversion factor to translate a serum ethanol level to a whole blood ethanol level. There is no scientific consensus on any conversion factor and therefore, an ethanol expression by the hospital lab is useless for proving an unlawful blood alcohol level beyond a reasonable doubt in court.
If your case involves the introduction of a “medical blood draw,” your attorney must greatly scrutinize any “medical blood” evidence that obtained through the execution of a subpoena. “Medical blood” and “legal blood” are not the same. This is because the serum testing method used in the hospital setting produces quick but unreliable results that do not carry weight equivalent to whole blood testing that occurs in a forensic criminal laboratory setting.
Just as with breath testing, Florida law has detailed procedures that specify the proper collection, storage, and testing of blood evidence that is obtained by the police for use in a DUI case. Accordingly, substantial compliance with these rules and regulations is required in order for the blood test results to be admitted as evidence in court. We will closely examine the police procedures, documentation, and testing methods to determine if these rules were followed. Some of the issues that we will consider are:
There are some DUI cases where law enforcement develops probable that an individual is impaired by a controlled substance or an illegal drug. In these cases, Florida law permits a police officer to seek a urine test. Frequently, the presence of drugs or drug paraphernalia inside the vehicle, the odor of recently smoked marijuana, or admissions by the accused are relied upon by the police in order to justify the lawfulness of requesting a urine sample.
The results of a urine test provide less information to the prosecution than a breath test or a blood test. This is because a urine test provides a qualitative measure instead of a quantitative one. In other words, urine testing can demonstrate that an individual consumed a certain drug or controlled substance at some point in the past. A urine test alone cannot demonstrate any specific level or concentration of the substance that was active in the bloodstream. Likewise, a urine test does not produce results that can be used to demonstrate that the substance found in the urine had caused a person to feel the effects of that substance at the time of driving.
In the Bodden case, the Florida Supreme Court recognized the limitations of urine testing:
We note that the testimony of the FDLE expert in this case further demonstrates the specific purpose and distinct nature of the urine test. According to the expert, unlike a breath or blood test which determines alcohol content, a level of impairment cannot be extrapolated from a drug concentration detected in a urine sample. In other words, it would be very difficult to conclude that a person was under the influence of a particular drug to the point that his or her normal faculties were impaired at the time of his or her arrest based solely on the presence of the drug in the person’s urine.
The limitations of urine testing leave a good deal of room to raise reasonable doubt. In other cases, the substances detected in the urine may not be controlled, or the test only turns up the inactive and non-psychoactive metabolite of the parent drug. An experienced DUI attorney can review the test results and formulate the appropriate arguments about the weight and persuasive value the test results should carry. These arguments can then be employed to negotiate with the prosecutor or to raise a reasonable doubt in court.
In other DUI cases, law enforcement may have sought a urine sample solely on the grounds that the person they arrested blew under the legal limit. However, in order for a request for a urine sample to be lawful in the context of DUI case, the officer must have actually possessed probable cause that the accused was impaired by drugs or alcohol. Simply casting about for additional testing because the breath test result was under “the legal limit” is not permitted by Florida law. Accordingly, the failure of law enforcement to make the request based on articulable facts supporting probable cause for drug impairment could render the urine test results subject to exclusion from use in court.
As discussed above, the results of a urine test are often relied upon by the prosecution to prove a DUI case where impairment by controlled substances or illegal drugs is alleged. A controlled substance is defined in Florida by Chapter 893 of the Florida Statutes. Specifically, Florida Statute §893.03 is the definitive list of all substances that are defined as controlled substances. Thus, as a threshold matter, the State must identify the particular controlled substance that was causing impairment. In the absence of any admissions, drug paraphernalia, drug residue, or a quantity of the substance in the vehicle, the urine test is the primary way to show that a controlled substance had been ingested in the past by the accused driver.
It is not only possible, but relatively common for drivers to be prosecuted for becoming impaired by a medication that they were lawfully prescribed by a doctor. Many of our clients are surprised to discover that having a prescription is not a defense to DUI. To the contrary, a prescription provides the lawful right to own, use, or possess the medication. However, it is nevertheless illegal to consume the prescription medication, become impaired, and then operate a motor vehicle while so impaired. Furthermore, it is also possible for the State to prove impairment if there is evidence that a driver consumed a combination of substances. Accordingly, some prosecutions may involve the detection of multiple illegal drugs as well as a breath alcohol reading.
Because of the limitations associated with urine testing, the prosecution may have more difficulty in proving a “drugged driving” case. If relying solely upon the urine sample, the State will need to show that the controlled substance was consumed close in time to the time of driving. Many controlled substances are detectable in the urine well after any psychoactive effect has come and gone. For example, the effects of marijuana may pass within a few hours of smoking a joint. However, the THC metabolites left over will be detectable in the urine for several weeks, if not more, depending on the frequency of use. The following chart provides an overview of some of the more common controlled substances and the length of time they remain detectable in a urine sample after ingestion:
Substance | Typical Urine Detection Period |
|---|---|
Amphetamine or methamphetamine | 2–4 days |
Barbiturates | |
Short-acting—Secobarbital | 1–2 days |
Long-acting—Pentobarbital | 2–4 days |
Phenobarbital | 10–20 days |
Benzodiazepines | |
Therapeutic dose | 3–7 days |
Chronic dosing | Up to 30 days |
Cocaine | 1–3 days |
Cannabinoids | |
Casual use | 1–3 days |
Daily use | 5–10 days |
Chronic use | Up to 30 days |
Ethanol (alcohol) | 12–24 hours |
Opioids (e.g., codeine, morphine) | 1–3 days |
Methadone | 2–4 days |
Propoxyphene | 6–48 hours |
Ecstasy/euphorics | 1–5 days |
PCP | |
Acute use | 2–7 days |
Chronic use | Up to 30 days |
Thus, it is entirely reasonable to conclude that simply because a controlled substance was present in a person’s urine, the use of that substance could have preceded the time of driving by many hours, days, or even weeks.
The most accurate test for determining the level of a controlled substance in a person’s body is a blood test. However, as discussed previously, the circumstances where a blood test can lawfully be sought or administered are limited to those cases where a person voluntarily consents to the blood draw, law enforcement has secured a search warrant, or the individual is unconscious and has appeared for treatment at a medical facility. However, where the State has obtained blood test evidence, it may then be possible for a toxicologist to testify that the level of the substance detected in the blood stream would or would not cause an impairment of normal faculties. Generally, when blood test results are available to the State, the defense must first concentrate on whether the blood draw was accomplished lawfully. If it appears that the blood test results are admissible, then close scrutiny of the actual levels of the substance in the bloodstream is necessary. In these cases, it is usually advisable to seek an evaluation by an independent forensic toxicologist of the results. Likewise, doubt may be cast on the results based on the methodology employed by the forensic laboratory that did the testing. Thus, even though blood may be the most accurate testing method, it is not necessarily a testing method that will produce admissible or even reliable evidence of guilt.
In some DUI cases, law enforcement may develop probable cause to believe an individual is under the influence of alcohol and a controlled substance. In these cases, law enforcement may request a breath test and a urine test. As mentioned above, such a request must be based on a probable cause belief that a controlled substance is causing impairment. It is insufficient to simply request a urine sample because the breath test came back under the legal limit. Even if the urine sample is positive for the presence of a controlled substance, the same weaknesses still exist with that particular method of testing. Likewise, the breath test is similarly assailable under the defense theories outlined earlier.
Cases involving urine testing are often amenable to a reduction due to the inherent weakness of the testing method in establishing that the controlled substance detected was actively causing impairment and not just indicative of use some time in the past. An experienced DUI defense attorney can outline these problems in a compelling fashion and seek to persuade the prosecutor that a reduction is warranted. Further, the legal complexities of obtaining a urine sample lawfully may be exploited to shake the prosecutor’s faith in their ability to secure a DUI conviction. Having a lawyer who is well versed in these matters and who can employ the appropriate arguments is critical to securing the best possible result.
When a driver refuses to cooperate with testing, that decision deprives the State Attorney’s Office of direct evidence establishing impairment. The prosecution no longer enjoys the benefit of being able to argue that the test results exceeded the level allowed by law. In urine testing cases, the State may be unable to prove the ingestion of a drug or controlled substance at all.
However, the State will instead employ a “consciousness of guilt” argument. A properly formulated consciousness of guilt argument claims that the defendant refused the test and the only reasonable explanation for that is the defendant knew he or she was impaired and would fail the test. The prosecution may also rely on the consequence of driver license suspension that attaches to a refusal in order to further bolster their argument. In that regard, the prosecution will claim that refusing a breath test despite the penalty of a suspended driver license is further evidence that the defendant knew the test would reveal he or she was impaired.
One counterargument that may negate the prosecution’s “consciousness of guilt” theory is that the accused had lost faith in the system to treat them fairly. Such an argument is available where law enforcement was rude, arrogant, or excessively physical with a person who was cooperative. Similarly, such an argument can be persuasive where an individual objectively did well on Field Sobriety Exercises but was nonetheless arrested for DUI. When a person is treated unfairly by those in authority, the only rational response is to cease cooperating. Thus, there may be reasonable doubt that the decision not to submit to testing was not motivated by a guilty conscience at all and instead by a desire to simply disengage from further dealings with an unfair or biased police officer.
In other cases, a person may initially refuse the breath test, but then later change their mind. If this “recantation” occurs within a reasonable amount of time, law enforcement is obligated to honor the decision to now submit to breath testing. A failure to do so could render the “refusal evidence” inadmissible in court.
A finding of “no refusal based on recantation” requires the accused to show five elements:
See Coman v. DHSMV, 6 Fla. L. Weekly Supp. 365 (11th Jud. Cir. Ct., April 7, 1999) and State v. Eng, 6 Fla. L. Weekly 649a (Fla. Pinellas Cty. Ct., Sept. 15, 1998).
In our experience, cases where a person refused to submit to testing, but looked non-impaired on Field Sobriety Exercises and on a general overall basis are some of the strongest candidates for a reduction to Reckless Driving.
The majority of Pinellas County DUI cases involve law enforcement requesting you to perform Field Sobriety Tests. These tests are made up of several tasks that are meant to simultaneously divide your attention and test your physical abilities and they play a crucial role in an officer’s decision about whether or not to make an arrest.
Some frequently used Field Sobriety Tests are:
In other situations, an officer might ask you to perform alternative tests. This might be due to a person’s age, physical/mental health, physical limitations, or the location of the traffic stop. Some alternatives exercises are:
During a DUI investigation, most Pinellas County law enforcement agencies utilize in-car dash cameras, body-worn cameras, or both, to record what you say, what you do, how you appear, and your performance on the Field Sobriety Tests. Obtaining this video allows your lawyer to make a comparison between the recorded events and what is written in the police report. A thorough review of the video footage and police report can uncover conflicts between the two and create room for reasonable doubt, thereby strengthening your case.
Obtaining the video also allows your lawyer to provide context to what an officer might see as impairment. For example, physical health, mental health, and other medical concerns might have impacted your ability to perform the Field Sobriety Exercises.
During the investigation you might have felt nervous, fatigued, distracted, frustrated, or afraid. Reviewing the video on your own can assist your attorney understand how you as an individual experienced this arrest. By reviewing the video, you will also have firsthand knowledge of whether the audio and video quality poor, and if traffic, lighting, or weather impacted your performance.
Our office will closely scrutinize the video in your case with the goals of determining your driving pattern, your performance on Field Sobriety Tests, your speech, and your demeanor. We also use this video to apply the same level of scrutiny towards law enforcement to determine whether the DUI investigation was conducted in line with the standards set out by the National Highway and Traffic Safety Administration.
The facts of each case are unique and identifying the potential defenses that might be available is a task that should be entrusted to an experienced attorney. A careful review of the facts of your case, and a thorough understanding of the law might uncover ways to challenge the state’s case, such as:
These inquiries will assist your lawyer in determining whether measures such as a Motion to Suppress or Motion to Dismiss are available in your case.
Only the prosecutor can reduce your charge!
The criminal justice system involves an adversarial process, which means the state and defense are both seeking a resolution in the case that meets their best interests. The parties involved in a DUI case are the state, the defense, and the Court:
The criminal case is brought to the prosecutor by the police after an arrest is made. From there, the prosecutor’s primary is to seek justice – not just a conviction. Their obligation is to adhere to the law when reviewing a police officer’s investigation, deciding whether to file charges, when handling the case in court, and when negotiating an outcome with the defense.
The DUI defense lawyer is responsible for seeking the best possible outcome for their client. Most often this includes educating the client about the court system, advocating for the client in the courtroom, and negotiating with the prosecutor to reduce the charge from DUI to Reckless Driving.
The Judge is in charge of the courtroom and it is their job to move the case forward, to make sure the law is followed, and to confirm the sentence at the end of the case is lawful. It’s important to remember that the Judge is impartial, meaning they have “no skin in the game” and are required to be fair to both sides.
Therefore, despite what is widely believed, only the prosecutor can reduce a DUI charge to Reckless Driving. This is because the prosecutor is the one bringing the charge in the first place. This power makes it all the more necessary to hire an attorney who can successfully advocate for a reduction from DUI to Reckless Driving.
Obtaining the best possible outcome in each case requires an attorney to review the facts of your case, identify each and every possible weakness or defense, and, if possible, to litigate the case by filing motions that might lead to the suppression of evidence against you. These measures can weaken the state’s case against you and depend heavily on the attorney’s experience handling DUI cases.
The attorneys with the Law Offices of Marc N. Pelletier work as a team to produce the best possible outcome in each case. Attorney Marc N. Pelletier is a certified Breath Test Operator and Attorney Zachariah Wade is a former Traffic Homicide Prosecutor. Combining experience and working as a team is an approach that is applied to the review of police reports, affidavits, intoxilyzer maintenance records, and other documents. Experience as former state prosecutors also means this team of lawyers has handled thousands of requests for a reduction from DUI to Reckless Driving.
After thoroughly reviewing all aspects of a DUI case, the lawyers in our firm determine whether submitting a written request for a reduced charge to the Assistant State Attorney handling your case is a viable option. If so, detailed correspondence is prepared and submitted directly to the prosecutor to outline the weaknesses in their case against the strength in ours.
These weaknesses can come in the form of:
After our written correspondence is sent to the prosecutor it is permanently added to the prosecutor’s file and therefore available for their supervisor to review. As former Florida state prosecutors the lawyers with the Law Offices of Marc N. Pelletier know the value of a well-crafted written argument for the reduction from DUI to Reckless Driving.
Even if the prosecutor agrees to reduce a DUI charge to Reckless Driving, you may still have to complete tasks that would be imposed in a DUI case such as DUI school, community service hours, a monetary fine, and an alcohol evaluation. The trade off is that you would avoid the harm that comes with a DUI conviction and the prosecutor is able to resolve their case without litigation and without the possibility of losing the case to a Motion to Suppress or acquittal.
This “meeting of the minds” is referred to as a plea bargain and is generally accepted by the court. The benefit it shows in real life is keeping you free of a conviction for DUI while giving the prosecutor reassurance that you understand the seriousness of driving sober and that you don’t suffer from a substance abuse addiction/won’t be arrested for DUI again.
Because every DUI case is different, our free consultation will allow the attorneys in our firm to determine whether the following aspects of your case should be examined further:
After your consultation we will confirm an action plan that moves your case forward, allows us to thoroughly review all aspects of it, and to determine the admissibility of evidence that may weaken the state’s case while strengthening yours.
Some DUI cases involve a collision between a vehicle and a stationary object, such as a road sign, traffic control device (like a guardrail or fixed cones), or a tree. Other DUI cases involve a collision between two or more vehicles. Florida law permits the prosecutor to charge a DUI of this nature as a “DUI with Property Damage.” However, it is important to note that the “property damage” must be to property that belonged to a person other than the accused. A DUI with Property Damage charge is inappropriate where the damage occurred solely to the vehicle operated by the accused.
Florida law provides for potentially greater penalties in cases where there is damage that resulted to the property of another person. Primarily, the maximum possible jail sentence in a DUI with Property Damage case is up to one year (as compared to a maximum of six months jail for a 1st offense DUI that did not involve property damage).
Even where the degree of the property damage may be slight, such as paint transfer or scuff marks, the State may still pursue a DUI with Property Damage charge. In these cases, it may be appropriate to argue that no damage actually occurred or that the alleged damage was pre-existing and did not result from the contact between the vehicle and the other property involved. In other cases, it may be reasonable to argue that a “crash” did not occur at all. This argument may be available where an accused’s vehicle came to rest in a ditch, was mired in a muddy shoulder, or where contact between the vehicle and another object occurred but no actual damage resulted from the impact.
From the perspective of the State, an “accident case” allows the prosecutor to advance the argument that the collision was the natural result of the driver’s normal faculties having been impaired. Of course, accidents occur on the roadways of Pinellas County, and indeed, all across Florida every day, where alcohol or drugs play no role whatsoever. There are many reasons why an accident can occur that have nothing to do with the impairment of normal faculties. These factors include distracted driving, bad weather, poor road conditions, road debris, and the unpredictable actions of other drivers. Accordingly, in DUI cases involving accidents, it is important to review law enforcement’s accident investigation and all of the attendant facts and circumstances that led up to the collision. It may also be necessary to gather statements from eyewitnesses or to seek video from nearby businesses or homes that may have had active video surveillance.
When a DUI case involves an accident, it adds an additional layer of legal complexity to the case. Law enforcement must undertake an accident investigation as a civil matter. In other words, when the police approach an accident scene, their initial duty is to determine what happened and who was at fault (if anyone) for the collision. The involved parties and witnesses have a corresponding legal duty to speak to the police and provide information in that regard. However, if law enforcement elects to then proceed to a criminal investigation, such as DUI, the investigating officer must inform the suspect that they are now investigating a crime and that the suspect has the right to remain silent. This transition from a civil accident investigation to a criminal investigation is referred to as the “changing of hats.” In order to “change hats” properly, the police must read the suspect the Miranda Warnings, informing the suspect of the right to remain silent, have counsel present for any questions, and that anything that the accused may say can and will be used against them in court. In some DUI cases, law enforcement fails to “change hats” properly or simply launches into a criminal investigation at the accident scene. Under those circumstances, it may be possible to seek exclusion of any damaging statements gathered from the accused and to eliminate the verbal component of Field Sobriety Exercises from being admitted into evidence.
Where an accident is involved, the evidence available to the prosecutor may be limited for other reasons. For example, if the accused was transported to the hospital from the scene, it is unlikely that Field Sobriety Exercises were administered. Likewise, the police may have gathered little evidence demonstrating an impairment of normal faculties due to the lack of an opportunity to observe the accused in an uninjured state or to question the accused extensively while medical treatment was ongoing. For those reasons, the State’s case may hinge solely on the admission of blood test results. Accordingly, efforts to exclude those test results may be successful in derailing the prosecution and result in a reduction of the charge or even an outright dismissal.
DUI cases that involve property damage may cause the prosecutor to seek restitution for expenses related to the collision. In some cases, the alleged victim may be out of pocket for a deductible, rental car expense, or lost income. When restitution becomes an issue, an experienced criminal defense attorney can insist that the State produce documentation to justify the dollar amounts sought. It may also be wise to provide proof that insurance has covered all or some of the damages already. In other cases, the payment of the restitution amounts may be a useful bargaining chip for negotiating the best possible outcome.
Florida law imposes more significant penalties in DUI cases where an injury resulted from the accused’s operation of a vehicle. The more severe the injury, the greater the penalties become. In that regard, a DUI case where injury is alleged may be prosecuted as a first degree misdemeanor, with a maximum possible penalty of one year in jail. In DUI cases with “serious bodily injury” the charge may be pursued as a third degree felony. This offense is punishable by up to five years in prison. A DUI case where it is alleged that the death of another human being resulted from the collision may be prosecuted as DUI Manslaughter. This is a second degree felony that carries a maximum of fifteen years in prison. Due to the sentencing structures created by the Florida Legislature, a DUI Manslaughter carries a mandatory minimum prison sentence of no less than four years. However, it is not at all unusual for the State to seek a prison sentence that is ten years or more.
Beyond the other defense strategies discussed in this book, a key component of defending accident cases that involve injury is to examine the question of “causation.” In Florida, the prosecutor must prove that the accused’s impaired operation of a vehicle “caused or contributed to” the injury, serious injury, or death. For this reason, great consideration must be given to the circumstances in which the accident occurred. It may be possible to argue that the accident was simply unavoidable given traffic conditions, the nature of the road, the actions of other drivers, or a combination of all of these factors.
In other cases, it may be advisable to focus on the nature of the injury itself. The term “serious bodily injury” is defined by Florida law as an injury that is permanent in nature, disfiguring, and/or causes a lasting diminishment of function. In some cases, the alleged victim may have fully recovered, thus preventing the State from claiming that the injury was serious. In other cases, the injury may simply fail to rise to the level of serious bodily injury as contemplated by the law. For example, a broken nose, sprains, bruising, cuts, and scrapes are generally not sufficient to sustain a conviction for DUI with serious bodily injury.
Thus, it is important to closely review any medical records relating to the alleged victim’s physical condition. Notes by a physician that all or most function has been restored through treatment can negate a claim that the case should be classified as a felony based on the severity of the injury alone. Similarly, questioning the alleged victim about the impact that the injury has had on the person’s ability to work, complete daily activities, and enjoy leisure time can prove illuminating about whether the injury was truly serious. Pursuing these facts can greatly impact the range of possible penalties, avoid conviction for a felony, and decrease or eliminate the jail or prison sanction that might otherwise be imposed.
One of the major factors that can affect the severity of a DUI charge is the existence of one or more convictions for a previous DUI offense. Florida law permits the prosecutor to rely upon a prior conviction that occurred in Florida or any other jurisdiction within the United States. While the age of a prior conviction will affect the possible range of penalties, it is important to understand that a prior from long ago can still “count” towards an enhancement of the current DUI offense. Contrary to popular belief, a prior DUI does not “drop off” of a person’s record or become ineligible for use as an enhancement after a certain number of years. In fact, a fourth offense DUI, which is often prosecuted as a felony offense, can be proved even if all of the other prior convictions are many years removed from the instant DUI charge.
In misdemeanor cases, the State is permitted to rely upon the Florida Driver License Record in order to “prove” the fact of the prior conviction in court. All that is needed is an entry on the Florida Driver License Record demonstrating a conviction for DUI. In some instances, an out-of-state DUI conviction will nevertheless appear on a Florida Driver License Record. This can occur when a person obtains a hardship license in Florida while their license is suspended for DUI in another state. It may also occur when a person registers for DUI School in Florida and has to supply out-of-state driver license records from another state. On those occasions, the Florida DHSMV will “import” the record of convictions from the other state on to the Florida Driver License Record.
In the absence of the prior conviction appearing on a Florida Driver License Record, the State will have to rely upon the court records from the prior DUI proceeding. This can be more challenging for the prosecutor. In many instances, court records from before “the age of computers” are incomplete, ambiguous, or outright unavailable. Likewise, in felony cases, the State is required to prove the fact of multiple prior DUI convictions beyond a reasonable doubt. As a result, the only documents that will suffice are certified copies of the prior convictions from the court where the conviction was had.
When the State relies on documents from another court system, it is critical for an experienced DUI defense attorney to scrutinize the records carefully. Some of the major considerations include:
The way that a prior DUI conviction affects the minimum and maximum penalties is calculated is based on both the recency and number of prior offenses. Florida law directs the courts to look to the amount of time that has passed from the date of conviction to the date of the new arrest. This prevents an accused from delaying the ultimate outcome of the new DUI charge in order to escape the enhanced penalties that are predicated on the new charge being within 5 or 10 years of a prior conviction, as the case may be.
For a third offense, only one prior conviction need be within 10 years of the current DUI arrest. The other prior conviction can be of any age. Thus, if you hear a person refer to a DUI as “a third within ten,” that terminology is misleading, as all three convictions need not to have occurred within the 10 year period. Rather, the State may prosecute a third offense DUI when two priors exist and only one of those prior convictions occurred within ten years of the new DUI charge.
The Florida Legislature has required the judges of this state to impose certain penalties upon conviction for a DUI. While the judge retains discretion to impose penalties that are greater than the minimums, the judge may not fail to impose penalties that are less than those required by Florida law. The following table sets forth the minimum and maximum penalties associated with a DUI where a prior offense is involved:
1st Offense DUI
1st Offense DUI with a BAC of .15 or higher or a minor in the vehicle
2nd Offense DUI within 5 years
2nd Offense DUI within 5 years with a BAC of .15 or higher or a minor in the vehicle
2nd Offense DUI outside of 5 years
2nd DUI Offense outside of 5 years with a BAC of .15 or higher or a minor in the vehicle
3rd DUI Offense within 10 years of the most recent prior conviction
3rd DUI Offense within 10 years of the most recent prior conviction with a BAC of .15 or higher or a minor in the vehicle
3rd Offense DUI outside of 10 years of the most recent prior conviction
3rd Offense DUI outside of 10 years of the most recent prior conviction, BAC .15 or higher or minor in the vehicle
4th DUI within lifetime
Even in cases where conviction appears inevitable, a skilled DUI defense attorney may be able to help minimize the impact of these mandatory minimum penalties. For example, it may be wise to complete some or all of the mandatory obligations in advance of resolving the case in court in order to qualify for an early release from the term of probation. In other cases, the completion of a residential treatment program may be helpful for reducing or outright avoiding additional jail time. For DUI cases that are first offenses, resolving the case after the DUI School has been completed can facilitate a quick reinstatement of driving privileges.
The Pinellas County State Attorney’s Office has implemented a program known as DROP (DUI Rehabilitation of Offenders Program). This program is designed for persons who have never been convicted of a previous DUI offense or had a previous DUI offense reduced to Reckless Driving. While every application is reviewed for participation in the DROP program on a case by case basis, there are certain threshold criteria for participation. A defendant can be eligible for D.R.O.P. if:
If accepted, the State will agree to a reduction of the DUI charge to Reckless Driving upon completion of the program’s conditions. If you may be eligible to participate in the DROP Program, we will counsel you on the conditions that you need to complete and the required time frames. We will also review your case to determine if the DROP Program is the best option for resolving your case. In some cases, participation in DROP can be very beneficial, as it results in a reduction of the DUI charge. However, in other cases where the evidence is weak or the breath test result is below a .08, a more beneficial disposition than that offered by DROP may be achieved. Thus, before resolving the DUI case through a DROP disposition, it is still important to review all of the evidence in the case before selecting DROP as the preferable method for resolution.
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