As a general rule, no. In my experience, the Intoxylizer 8000, which is currently the breath test used in the state of Florida, is not accurate. In order for the breath test to be admitted into evidence in a criminal trial in Florida, it is required that two samples of breath be obtained from the subject and those samples are allowed to vary as much as .02g/210L. In other words, if you take a breath test yielding for example results of .068g/210L on the first sample (which is under the legal limit) and you take a second sample yielding results of .088g/210L (a result over Florida’s legal limit) you could be convicted of DUI under the theory that you were driving with an unlawful breath alcohol level (DUBAL). Who knows what your actual breath alcohol level was in that instance. If you are arrested for Driving Under the Influence, law enforcement will read you Florida’s Implied Consent Law, which in essence tells you that your driver’s license will be revoked for one (1) year, or eighteen (18) months if you have previously refused to take a breath test. Law enforcement almost always fails to tell you that on a first refusal, you can obtain a hardship permit for up to 9 months out of that year.
You should also know that in Florida, it is a misdemeanor to refuse to take a breath test if you have previously refused a breath test on an earlier occasion.
While it is never a good idea to drive (or operate any machinery for that matter) after having consumed any alcoholic beverage, it is still legal in Florida to drive after doing so. However, it is not legal in Florida to drive under the influence of alcoholic beverages to the extent that one’s normal faculties are impaired and it is not legal to drive with an unlawful breath alcohol level regardless of whether or not one’s normal faculties impaired. Thus someone who has a high tolerance level could still be guilty of DUI if his/her breath alcohol concentration is .08g/210L or greater even if everything else is perfectly normal. This is one of many reasons I generally advise against taking a breath test.
The tables below should give you some idea of how much you can drink and still drive under Florida’s legal limit. In addition to the tables below, you should know that alcohol begins to enter and exit the human body immediately upon consumption and it takes anywhere between 45 and 90 minutes for a single alcoholic beverage to completely absorb in the blood stream depending on the contents of the stomach at the time of drinking. The higher the content of the stomach, the longer it takes a drink to absorb in the bloodstream. Alcohol exits the system at a rate of .025g/210L of breath in the average person.
DO NOT RELY ON THESE TABLES TO DETERMINE YOUR ABILITY TO SAFELY OPERATE A VEHICLE. YOU CAN STILL BE CONVICTED OF DUI EVEN IF YOUR BREATH ALCOHOL LEVEL IS UNDER THE LEGAL LIMIT.
I routinely advise against taking field sobriety tests in most cases. Field sobriety tests, unlike breath tests, are not required under Florida Law and your driver’s license cannot be suspended if you do not take a field sobriety test. Many of the test in my experience yield subjective results and they are not a true indicator of normal faculty impairment. In many cases, someone’s performance on these tests can be affected by nervousness, the environment (flashing lights, the temperature, etc…) or just plain lack or coordination. However, if you refuse to take a field sobriety test after being stopped for suspicion of DUI, you will most likely be arrested since failing a field sobriety test is not a prerequisite for a DUI arrest. If you are stopped on the side of the road and cannot decide whether to take a field sobriety test, feel free to call my after hours number at (850) 567-6008. I am available 24/7!
If your driver’s license was valid at the time you were arrested for driving under the influence, you will be issued a citation called a Florida DUI Uniform Traffic Citation. Read the bottom of the citation carefully. Florida law allows persons arrested for driving under the influence to drive for ten (10) days following the arrest using the uniform traffic citation as a driver’s license. In an abundance of caution, you should obtain a Florida ID card to identify yourself to law enforcement officers, financial institutions, and other places requiring ID’s. There is also a procedure to obtain a hardship permit after the ten (10) days on the citation expires. You should contact my office immediately and inquire about that procedure.
In Florida, DUI is known as a crime on enhancement. This means if you have a prior DUI conviction (even one from another state), the penalty for any subsequent DUI will be enhanced based on the prior conviction. A first conviction in Florida carries the following mandatory minimum sentence:
Adjudication of Guilt*
Fines and Court Costs of approximately $1000.00
Six (6) Months Probation
Six (6) Months Driver’s License Revocation**
DUI School Level I
Fifty (50) Hours of Community Service
Victim Awareness/Impact Panel
Ten (10) Day Car Impoundment
Six (6) Month Ignition Interlock Device***
*Most offenses in Florida allow first offenders to enter into a plea agreement or otherwise become eligible to have their adjudication of guilt withheld. This means that a person is not convicted and in most instances, he or she can then have his record sealed. Florida Law requires an adjudication of guilt for anyone who pleads no contest or who goes to trial and is found guilty. Consequently, a DUI can never be sealed and it stays on one’s criminal record for life. One way around this part of the DUI penalty is to have the charge of DUI amended to Reckless Driving which does not require an adjudication of guilt. (See answer to next question).
**If you took a breath test with results over Florida’s legal limit of .08g/210L or if you refused a breath test, this revocation is separate from the driver’s license suspension that began on the date of your arrest. This revocation begins on the date of conviction. However, many times, it is possible to get a hardship driver’s license during the entire length of this revocation. My office can assist you in obtaining that permit.
***The ignition interlock device is mandatory for first offenses only for those persons convicted of DUI who took a breath test yielding results of .15g/210L. An ignition interlock device is a breath test that attaches to your automobile’s ignition system and it requires the driver take a breath test yielding negative results for alcohol before the car will start.
Penalties for second and subsequent DUI’s are substantially more harsh than those associated with a first offense and they differ depending on when a person’s prior offense(s) occurred. Suffice it to say that a five year driver’s license revocation along with a mandatory jail sentence is required for a second DUI occurring within five (5) years of a prior DUI conviction and a third offense within ten (10) years of any prior offense can be charged as a 3rd degree felony with a mandatory (10) year driver’s license revocation and a maximum sentence of five (5) years in State Prison.
Many times DUI charges are “reduced” to the charge of reckless driving. This is not actually a reduction of charges; rather, it is an amendment. DUI in Florida carries with it a mandatory minimum penalty which requires an adjudication of guilt. If someone has been adjudicated guilty, it means they have been convicted. When someone enters a plea of no contest to reckless driving, Florida Law does not require the judge to adjudicate that person guilty; rather, the judge may withhold the adjudication which means that person has not been “convicted”. Moreover, unlike a DUI conviction, the disposition of a reckless driving charge usually does not increase ones insurance rates, does not carry a driver’s license revocation with it, and it can be sealed at a later date in many cases. A judge is not authorized to “reduce” a DUI charge to reckless driving. This can only be achieved through plea negotiations with the prosecuting attorney. Often times my clients instruct me to do those negotiations with the goal of achieving an amendment of the DUI charge. I have achieved this result for many clients over the years and you should feel free to ask me about the possibility of doing this in your case at our initial consultation.
The Florida Department of Highway Safety and Motor Vehicles produces three types of driving records: 1) a lifetime driving history, 2) a seven (7) year driving history, and 3) and three (3) year driving history. Most insurance companies randomly order three year driving histories from the Florida Department of Highway Safety and Motor Vehicles. Sometimes insurance companies never even find out about a person’s arrest for driving under the influence. You should read your insurance policy very closely to see if you are required to notify your insurance company of such an arrest as your failure to do so in some instances may lead the insurance company to deny coverage of a future accident. Studies show that a DUI conviction typically raises insurance premiums up to three times the current premium. Moreover, many times a DUI conviction can lead an insurance company to drop you as a customer. However, if your charge is amended to reckless driving or you win your DUI case, your insurance rates usually will not be affected.
Florida Law gives those who take a breath test the right to an independent blood test if they request it. However, the test must be secured at the person’s own expense and law enforcement no longer has a duty to assist such a person in obtaining an independent blood test. Law enforcement may not interfere with a person’s right to obtain the independent test and they must provide the person tested with access to a telephone for purposes of securing the test if they are in custody. If law enforcement interferes with someone who is trying to secure an independent blood test or otherwise takes steps to prevent one from obtaining such a test, many times the breath test law enforcement administered can be thrown out of court. I am happy to meet with you and give you my opinion on whether your case meets the criteria set forth in that law.
I have often said that a Florida DUI case is more complex than a murder case. Indeed, Florida DUI law is becoming more and more strict every time the legislature goes into session and it is perhaps the most litigated of all criminal cases. Consequently, the Appellate Courts hand down rulings that affect DUI cases almost on a weekly basis. I think it is important in a DUI case to have a lawyer who has dedicated his practice to this area of the law, and I have. A DUI trial is not anything like a speeding ticket trial. While anyone has a right to represent himself/herself, it is not advisable in a DUI case. Most DUI trials are held in front of a jury with professional witnesses (police officers) who are trained to testify against the accused. President Abraham Lincoln once said “A man who represents himself has a fool for a client”. I agree with him.
The Court system is set up in this country so that citizens do not have the burden of proving themselves innocent when the State brings charges against them. That burden rests entirely on the government. Thus criminal defense lawyer’s focus is not on whether his or her client is guilty; rather, it is entirely on whether the state can prove his or her client’s guilt. Moreover, often times, law enforcement does not follow the correct procedure when making an arrest or conducting its investigation. When this happens, certain aspects of a case can be “thrown out of court” or suppressed. Experienced lawyers are trained to recognize these issues and use them to benefit their clients. I am happy to discuss this further at your free initial consultation.
You should also know that even if you don’t wish to contest the DUI charge, when you go to Court, the State will be represented by a lawyer who, no doubt, knows the judge well and he or she will be asking that judge to punish you. Doesn’t it make sense that you should be represented by a lawyer to?
More often than not, the police do not read Miranda rights to someone who has been arrested for DUI. However, the fact that the police did not read you your rights is usually not enough to have your case thrown out. It is however, enough to have incriminating statements you may have made thrown out in many circumstances. The best advice when dealing with law enforcement in any situation is to remember a quote attributed to one of my favorite judges who has since passed away: “Even the fish doesn’t get in trouble until he opens his mouth”.
Under Florida Law, a breath test is mandatory and a law enforcement officer can threaten the suspension of your driver’s license if you do not take the test.* However, that is all that law enforcement may threaten you with if you indicate you do not wish to take the breath test. If for example, law enforcement told you that you would not be released from jail unless you took a breath test, or if they told you that you could not go to the bathroom until you took a breath test, you may be eligible to have your breath test thrown out which may result in having your DUI charges “reduced” or “dismissed”.
*This law does not apply to cases that involve death or serious bodily injury.
Florida Law states that one can be convicted of DUI if they are in “actual physical control” of a vehicle while under the influence of alcoholic beverages to the extent that their normal faculties are impaired. Thus it is not uncommon to see the client who was merely trying to “sleep it off” in the parking lot before going home to wind up in jail charged with a DUI. However, in most cases it is not illegal to sleep in a car and sometimes the DUI charge in that instance can be challenged based on law enforcement’s illegal detention of the car’s occupant. Feel free to call me if you are in this situation to see if your DUI charge can be challenged. As a side note, if you find yourself in this predicament, you would be well advised to get rid of the car keys and put them somewhere that is not readily accessible (nowhere inside the car) before you decide to “sleep it off” in the parking lot.
Each DUI case is different. In my career, I have won cases outright even though the driver took a breath test with results over four times the legal limit and I have seen cases lost where the driver took a breath test and yielded results under the legal limit. Every jury is different and it is not uncommon for two judges to hear the same fact pattern and walk away with different opinions. While not every case can be won, I strive to do whatever it takes within the bounds of the law and the Florida Bar’s rules of professional responsibility to provide the results my clients want.
Absolutely not. You have a right to remain silent and you should use it. You should also know that it is a common law enforcement tactic to tell a suspect that he is needed for an interview. Of course this is not true and when the suspect arrives at the police station, he or she is arrested and taken to jail. If the police want to interview you about something, tell them to interview your lawyer and give me a call.
You should never allow law enforcement to search your home or car unless they have a warrant. Think about it. While you may think you have no contraband inside your residence or conveyance, how many people have been in your home or car? Who knows what they left there? If the police show up at your home without a warrant and want to search, you should tell them that they will only be allowed to search your home if your lawyer gives them permission. Then call me (after hours if need be) at (850) 567-6008 or at the office (850) 222-4005.
If you were given a notice to appear on a criminal case (even if it was for something as minor as possession of alcohol by a person under 21), this is considered an arrest. This means that when it comes time to apply for a job, you will have to answer “yes” to the question “Have you ever been arrested?” It makes no difference to the prospective employer whether or not you were carted off to jail. The fact that you have an arrest on your record may affect your ability to obtain gainful employment. Even if you think the incident is relatively minor, it will cost you nothing to contact me and get a free consultation.
You should contact me immediately before you talk to the police. Many times these types of cases can be resolved before charges are brought.
Currently, Florida Law does not allow the possession of any amount of marijuana for any purpose. Indeed, possession of a small amount is a misdemeanor punishable by up to a year in jail and a TWO YEAR DRIVER’S LICENSE REVOCATION!
If you are in this predicament, you have been caught up in Florida’s Habitual Traffic Offender (HTO) Law. HTO status is given to persons who have been adjudicated guilty of three or more predicate traffic offenses in the past five (5) years. Many times, those prior convictions can be set aside, especially if you were convicted and did not have a lawyer representing you. Feel free to call my office to see if you qualify to have one of your convictions set aside.
If you have ever been adjudicated guilty of any offense, the answer is no. If you entered a plea of no contest to a criminal offense and the adjudication is withheld, chances are you are eligible for a sealing. If you completed a diversion program, pre-trial intervention, or drug court, chances are you are eligible for an expungement. If your record is sealed or expunged, you can lawfully answer “no” on most employment applications if you are asked if you have a criminal record. Florida law does not permit certain offenses to be sealed or expunged. I handle sealings and expungements statewide and I am happy to tell you whether you are eligible for one.
Drug Court is a diversion/pre-trial intervention program that handles felony drug cases that do not involve the sale or trafficking of drugs. It is primarily for first offenders and it focuses on rehabilitation rather than punishment. Someone who successfully completes drug court will have their charges dismissed and in most cases, they can expunge their records. However, the program is not always easy to complete. As with any criminal court proceeding, it is advisable to obtain the services of a lawyer not only to help you gain entrance into the program but to help you stay in the program.
If you are asking this question, you probably do not qualify for the public defender. The public defender’s office is funded by the taxpayers to provide legal representation in criminal cases for indigent persons who cannot afford a lawyer. If you cannot afford a lawyer, you should definitely seek the services of a public defender. However, should you obtain the services of the public defender, you do not get a choice of which lawyer in that office will represent you. Moreover, you should be aware that the Public Defender’s Office is made up of lawyers who work tirelessly for very little pay and handle an overwhelming caseload. You should treat them with utmost respect.
No. Not only is it unethical and illegal for a criminal defense lawyer to offer any sort of guarantee of the outcome in a criminal case, it is down right stupid. Lawyers are permitted to give advice and opinions on the viability of a defense, but they are not permitted to guarantee results. Criminal cases have a life of their own and no-one can predict the future. If a lawyer attempts to make such a guarantee, you do not want him or her representing you. I guarantee every client that I will “exert my best effort at all times in preparation, trial or anything necessary to be done on my client’s behalf” and should you give me the privilege of being your lawyer, I will put that guarantee in writing!
A common misunderstanding is that the victim of a crime is responsible for “pressing charges”. This is not the case. The alleged victim doesn’t press anything; rather, he or she merely reports the crime to state or federal law enforcement who passes the case on to the appropriate prosecuting authority after an investigation is completed. It is therefore, the prosecutor who “presses” the charges and not the alleged victim. Since the prosecutor is the only one “pressing” the charges, he or she is the only one who can drop the charges. That is why a criminal case is always titled as “State vs. Name of Person Charged”. While most prosecutors will listen to the wishes of alleged victims (this is even more so when the victim wants a harsh sentence), they are not bound by the victims wishes and it is not uncommon for a prosecutor to seek a conviction against the will of the alleged victim. If you are charged with a crime and the alleged victim wants to drop the charges, this does not mean you are in the clear. Contact me immediately.
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