10 Ways to Fight a DUI
Fighting A DUI
Although a first DUI offense (in which no serious accident or injury occurs) does not normally result in a jail sentence, it carries consequences that can affect the rest of your life, including having a criminal record which cannot be sealed, difficulty obtaining insurance and an increase in insurance rates, and suspension of your driver’s license. At Fallgatter Catlin & Varon, P.A., we are experienced Jacksonville DUI Attorneys. Each case is different, but there are many ways to fight, and beat, a DUI conviction.
The Fourth Amendment of the U.S. Constitution and Florida’s Constitution, state that the police cannot stop someone, for a traffic violation, unless they have probable cause to believe a crime, or a traffic violation, has been committed. If you are stopped by the police without probable cause, we will file a Motion to Suppress Evidence, asking the court to suppress (that is, throw out) any evidence obtained as a result of the illegal stop. This would include any observations made by the police, your performance on Field Sobriety Exercises, any oral or written statements you made, and the results of any breath, blood, or urine tests, or the refusal to take such tests. If the evidence is suppressed by the court, the state cannot use the evidence to prosecute you for DUI, and therefore, must drop the DUI charge.
Section 901.15, Florida Statutes states that, in order to arrest someone, the police must have probable cause to believe they committed a crime. Probable cause is a level of reasonable belief, based on facts that can be articulated, that a crime has been committed, and that you committed it. Therefore, before making a DUI arrest, the police officer must possess enough facts to lead a reasonable person to believe that the crime was committed. If the police officer cannot satisfactorily establish probable cause for your DUI arrest, we will file a Motion to Suppress Evidence, asking the court to suppress any evidence obtained as a result of the illegal arrest. If the court grants the motion, any evidence obtained as a result of the arrest, including the results of any breath, blood, or urine tests, or the refusal to take such tests, would be suppressed, greatly limiting the state’s ability to prove DUI.
3.Improper Advisement of Miranda Rights
When you are detained by the police, before they can ask you any questions, they must read you your Miranda Warnings, make sure you understand those warnings, and ask if you agree to waive (or give up) your rights, and answer questions. If the police do not read you your rights, or do not read them properly, then you have not validly waived your Miranda rights. We will file a Motion to Suppress Statements, asking the court to suppress any statements you made, including any statements you made regarding drinks or drugs you ingested, and any statements made during the Field Sobriety Exercises, including your recitation of the alphabet during the Rhomberg Alphabet Exercise. If your statements are suppressed by the court, they cannot be used by the state to prosecute you for DUI.
4.No “Wheel” Witness – No Proof of Actual Physical Control of Vehicle
In order to prove the crime of DUI, the state must prove you had “actual physical control” of a motor vehicle. In order to prove “actual physical control,” there must be a witness who saw you behind the steering wheel. If no one can testify you were behind the wheel, the state cannot prove DUI, because they cannot prove you were in actual physical control of a motor vehicle.
5.No Proof of Impairment
In order to prove DUI, the state must prove that your normal faculties were impaired. This means that you did not have the ability to perform normal physical activities, such as talking, standing, and walking. Police officers typically report that drivers had slurred speech, swayed while standing, had trouble balancing, or stumbled while walking. However, there are many ways to refute this erroneous testimony. Often, the best evidence for lack of impairment is the DUI video recording from the patrol vehicle. A careful review of the video can establish your normal faculties were fine, and that you had no trouble speaking, standing, or walking.
Another helpful tool is the jail booking video. The Duval County Jail has cameras throughout their facility, and all of your actions (including standing and walking) are recorded. We always order all video footage of you, from the time you reach the jail until you are booked. This video often shows people arrested for DUI, standing, walking, and doing other normal activities without difficulty – and thus can refute any false claims made by the officer.
Lastly, people who were with you shortly before you began driving, or while you were driving, can testify to your lack of impairment, by confirming you were standing, walking, and talking normally. Video recordings and witness testimony are powerful tools to refute the police officer’s claim that your normal faculties were impaired.
In many situations, health or medical issues can cause a person to appear impaired. People who are overweight, over 60 years old, or who have leg, foot, or back pain, often have trouble performing Field Sobriety Exercises, such as the Walk and Turn Exercise or the One Leg Stand Exercise. Indeed, the rules the officers are supposed to follow generally prohibit them from administering the Field Sobriety Tests to anyone with such handicaps.
Also, lack of sleep, contact lenses, or allergies are just a few reasons why a person’s eyes might appear bloodshot or watery. A diabetic experiencing hypoglycemia may have slow and slurred speech, poor balance, impaired motor abilities, and may appear drowsy, flushed and disoriented. Diabetes may also cause inaccurate breath test results. We will carefully review your health and medical issues, and establish why they may have affected your ability to perform Field Sobriety Exercises, or made you appear impaired.
7.Breath Test Machine or Operator Problems
The Intoxilyzer 8000 is the current breath testing machine used in Florida. It must be properly maintained, tested, calibrated, and serviced by the Florida Department of Law Enforcement (FDLE). Maintenance records for each machine are published online on the FDLE website. If the machine was not properly maintained and serviced by FDLE, the results of your breath test are not valid, and must be thrown out.
The breath test operator must also be properly trained and licensed, and must continue to update his or her license regularly. If a breath test operator is not properly trained or licensed, the results of the breath test are inadmissible.
If the police arrest you for DUI, and suspect you are impaired by drugs, they will request a urine test. Unlike a breath or blood test, urine tests cannot measure the amount of drugs in your system, or the length of time a drug has been in your system. Therefore, it is impossible to tell from a urine test whether a drug has been recently consumed, or how much of the drug is in your system. This provides a good argument that you were not under the influence at the time you were driving, and/or that the amount of drugs in your system was minimal, and that your normal faculties were not impaired.
9.Post Driving Absorption of Alcohol
Alcohol is not immediately absorbed into the body. Every person’s body is different, but peak blood-alcohol concentration is not typically reached until between 30 and 90 minutes after an alcoholic drink is consumed. This is because alcohol is absorbed into the body primarily through the small intestine, and it takes time for the blood stream to carry the alcohol through the body. This fact can have important implications in DUI arrests.
If a person’s breath test shows a blood alcohol content of .08 percent or greater, it is possible to show that – although your blood alcohol level was over the legal limit at the time of the chemical test – it may not have been at the time you were driving. Alcohol from the last-ingested drink may not have yet been absorbed into your bloodstream. A careful analysis of the time of each alcoholic drink, the time of the stop, and the time the breath test was administered, can establish a lack of impairment at the time you were actually driving your vehicle, and thus a lack of proof of DUI.
10.Blood Tests – Improperly Obtained or Collected
Florida law states that blood may only be collected under certain circumstances, and then must be properly collected and preserved. When police lack the authority, under Florida’s implied consent statutes, to request a blood sample, the sample is inadmissible at trial. Furthermore, if the blood is improperly collected or stored, the results are also inadmissible.