The police officer who arrested me said my eyes were bloodshot and my face was flushed. I wasn’t impaired at all! What do having bloodshot eyes and a flushed face have to do with being under the influence?

In 1997, the National Highway Traffic and Highway Administration (NHTSA) commissioned a study entitled “The Detection of DWI at BACs Below 0.10.”  The objective of the study was to develop an appropriate set of behaviors that could be used by field officers to accurately identify motorists who were driving under the influence at the 0.08 level and to determine if cues are available that predict 0.04 and 0.02 BAC levels.

The study eliminated some cues as signs of impairment finding that they might be indicators more of social class than of alcohol impairment. For example, officers believed that drivers having a flushed or red face was an indication of a high BAC in some people. However, having a flushed or red face was also a characteristic of agricultural, oil field, and other outside work. Similarly, bloodshot eyes, while associated with alcohol consumption, could also be a trait of many shift workers and people who must work more than one job, as well as those afflicted by allergies. A disheveled appearance similarly is open to subjective interpretation.

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Can statements about a car crash be used against me? What is the accident report privilege?

Florida Statute Section 316.066(4) states:

[E]ach crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal. However, subject to the applicable rules of evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person involved in the crash if that person’s privilege against self-incrimination is not violated.

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What do police look for when searching alcohol-impaired drivers?

The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:                                               

  • Turning With a Wide Radius
  • Straddling center of lane marker
  • “Appearing to be drunk”
  • Almost striking object or vehicle
  • Weaving
  • Driving anywhere other than designated highway
  • Swerving
  • Driving more than 10 mph below speed limit
  • Stopping in traffic lane without cause
  • Following too closely
  • Drifting
  • Tires on center or lane marker
  • Braking erratically
  • Driving into opposing or crossing traffic
  • Signaling inconsistent with driving actions
  • Slow response to traffic signals
  • Stopping inappropriately (other than in lane)
  • Turning abruptly or illegally
  • Accelerating or decelerating rapidly
  • Headlights off

Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety.

If you or someone you know needs serious DUI defense, contact attorney Robert Malove.

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What should I say to an officer who asks me if I was drinking alcohol?

You are not required to answer potentially incriminating questions. A polite “I would like to speak with an attorney before I answer any questions” is a good reply. On the other hand, admitting that you had one or two beers is not incriminating: it is not sufficient to cause intoxication — and it may explain the odor of alcohol on the breath.

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Do I have a right to an attorney when I’m stopped by an officer and asked to take a field sobriety test?

In Florida, there is no right to speak to an attorney until after you have submitted to blood or breath testing at the station (or have refused to do so).

If you or someone you know needs serious DUI defense, contact attorney Robert Malove.

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What is the officer looking for at the original detention of the scene?

The traditional symptoms of intoxication taught at the police academies are:

  • Flushed face
  • Red, watery, glassy and/or bloodshot eyes
  • Odor of alcohol on breath
  • Slurred speech
  • Fumbling with wallet trying to get license
  • Failure to comprehend the officer’s questions
  • Staggering when exiting vehicle
  • Swaying/instability on feet
  • Leaning on car for support
  • Combative, argumentative, jovial or other “inappropriate” attitude
  • Soiled, rumpled, disorderly clothing
  • Stumbling while walking
  • Disorientation as to time and place
  • Inability to follow directions

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What should I do if I’m asked to take field sobriety tests?

There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests.

Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitably “fails.” Thus, in most cases, a polite refusal may be appropriate.

Recently, many states have begun following the federally-approved (National Highway Traffic Safety Administration) “standardized” field sobriety tests. These consist of a battery of three tests:

  • Heel-to-Toe (also referred to as “walk-and-turn”)
  • One-Leg Stand
  • Horizontal Gaze Nystagmus

All other field sobriety tests are disapproved. And unlike non-standardized tests, in which the officer subjectively decides whether the suspect passes or fails, the SFSTs are scored objectively—that is, a numerical score is assigned according to specific errors, or “clues.”

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Why did the officer make me follow a penlight with my eyes to the left and right?

This is the “horizontal gaze nystagmus” test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk (“nystagmus” is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eyes tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer’s ability to recognize nystagmus and estimate the angle of onset. Because of this and the fact that the test is not accepted by the medical community, it is not admissible in many states; it is, however, admissible in Florida, but is vulnerable to attack.

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Should I agree to take a chemical test? What happens if I don’t?

The adverse consequences to refusing to submit to a breath or blood test (or urine if neither is available or if drugs are suspected) are:

  • A driver’s license will be suspended for a minimum of one year rather than for a minimum of six months for blowing over the legal limit; if this is a second or subsequent refusal, the suspension is for eighteen months. A driver who refuses to submit to a breath test cannot obtain a hardship license that authorizes driving for business purposes until after 90-days without any permit expires.
  • A refusal, if alleged, is a first-degree misdemeanor. See § 316.1939, Fla.Stat. Refusal to submit to testing; penalties.
  • The fact of refusing can be introduced into evidence at trial as evidence of “consciousness of guilt.” Of course, the defense is free to offer other reasons for the refusal, such as fear of needles or inability to blow into the machine hard enough.

Thus, the decision is one of weighing the likelihood of a potentially incriminating blood-alcohol result versus the consequences of refusing.

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Do I have a choice of chemical tests? Which one should I choose?

In Florida, someone who is arrested for DUI can be requested to submit to a breath or urine test. A person arrested may be asked to submit to a blood test where death or serious bodily injury is involved, and reasonable force may be used in order to obtain the blood sample.

Additionally, §316.1932 (1)(c), Fla.Stat., states:

“Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, deemed to have given his or her consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the purpose of determining the presence of chemical substances or controlled substances as provided in this section if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible.”

Also, §316.1932 (1)(c), Fla.Stat. states:

“The person tested may, at his or her own expense, have a physician, registered nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, or other person of his or her own choosing administer an independent test in addition to the test administered at the direction of the law enforcement officer for the purpose of determining the amount of alcohol in the person’s blood or breath or the presence of chemical substances or controlled substances at the time alleged, as shown by chemical analysis of his or her blood or urine, or by chemical or physical test of his or her breath. The failure or inability to obtain an independent test by a person does not preclude the admissibility in evidence of the test taken at the direction of the law enforcement officer. The law enforcement officer shall not interfere with the person’s opportunity to obtain the independent test and shall provide the person with timely telephone access to secure the test, but the burden is on the person to arrange and secure the test at the person’s own expense. Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate is urinalysis.”

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The officer never gave me a Miranda warning. Can I get my case dismissed?

No. After making an arrest, the police are supposed to read the person their Miranda rights making arrest asking any questions. Often, however, they do not. If the police interrogate someone they arrest without giving them their Miranda warnings, the consequence is that the prosecution cannot use any of the answers to the questions asked by the police.

The U.S. Supreme Court has stated:

  • The person in custody must, prior to interrogation, be clearly informed that they have the right to remain silent and that anything the person says will be used against that person in court;
  • The person must be clearly informed that they have the right to talk to an attorney and to have that attorney present during questioning; and
  • If they cannot afford to hire an attorney, one will be provided to represent them.

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What crimes will I be charged with?

The traditional offense is “driving under the influence of alcohol” (DUI). In recent years, however, 48 states have also enacted a second, so-called “per se” offense: driving with an unlawful blood-alcohol level (DUBAL), .08% or more. In Florida, there is a rebuttable presumption that a driver is guilty of DUI when the breath test result is above .08%.

Someone who refuses to submit to testing can be charged with the crime of refusal to submit to testing.

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After a breath test, my license was revoked and a suspension notice served. Is this allowed?

Agreed, it is blatantly unfair. But the law in Florida provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood or urine test, if the officer reasonably believes the result will be above the limit) or the individual refuses to take a chemical test.

WARNING: Be aware of a 10-day deadline for calling the Florida DMV to request a hearing on the suspension and to get an extension of the temporary license.

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What is a sentence enhancement?

Florida law increases the punishment in DUI cases if certain facts exist. The most common of these is an earlier conviction for the same or a similar offense within seven years of the current offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:

  • A child was in the car at the time.
  • The breath alcohol (BrAC) or blood alcohol concentration (BAC) was over .15%.
  • There was property damage or injury.
  • The defendant was under 21 (“zero tolerance” laws commonly require a much lower blood-alcohol level and impose longer license suspensions).

The existence of any personal injury caused by someone who is DUI elevates the offense to a felony. A death can trigger DUI Manslaughter murder charges.

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What is a “rising BAC defense?”

A driver is presumed to be DUI with a breath alcohol (BrAC) test result in excess of .08%. Sometimes a driver’s breath test result is over a .08 at the time of DRIVING—not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual’s BAC may continue to rise for some time after he is stopped and arrested.

Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .08%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been below .08%. In other words, the test result shows a blood-alcohol concentration above the legal limit—but his actual BAC AT THE TIME OF DRIVING was below.

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What is mouth alcohol? Can it affect the breath test in my DUI case?

“Mouth alcohol” refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine’s reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic “reflux” condition from gastric distress such as GERD or a hiatal hernia can cause elevated BAC readings.

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I was arrested for DUI, and now I have a “Business Purposes Only” driver’s license. What exactly are my restrictions?

After a DUI conviction, a court-ordered suspension may call for a business purpose only restriction. This means that you can only drive if it is necessary to maintain your livelihood. For example, on the job driving, driving to and from work, or driving for educational or medical purposes are permitted. Violating these restrictions is a second-degree misdemeanor, and you can be sentenced up to 60 days in jail. Violating will also lead to a revocation of the restricted license for the remainder of the driver’s original suspension or revocation term. Although certain activities such as driving to your attorney’s office or driving your children to school are “necessary to maintain livelihood” they are not expressly stated under Section 322.271, Florida Statues.

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