Florida DUI Daytona Beach DUI Lawyer Phase 4 Breath Test or Refuse

As a Daytona Beach DUI lawyer and former DUI Assistant State Attorney in Daytona Beach Kevin J. Pitts has handled hundreds of DUI cases. The fourth phase of a Florida DUI case is the chemical test of your breath blood and or urine. When arrested decisions will have to be made on the breath test and/or urine test (you can be requested to do both breath and urine). Blood tests are most common in felony DUI cases. In a DUI with serious bodily injury or fatality a blood test is mandatory and can be taken by force. The decision to refuse or submit to a test is very important. Many individuals believe that if they have had a few drinks they should automatically refuse. The problem is that a refusal carries substantial consequences.

The first question that needs to be asked is are you more concerned about a DUI conviction or not being able to drive. No matter how high you blow you will be able to drive in a restricted capacity after 30 days without driving if the proper steps are taken. A first refusal would have a 90 day hard suspension without any hardship license. When should you submit to a breath test? If you primary concern is the restriction on your ability to drive. If your breath alcohol content is likely to be near or under the legal limit. If you are slightly over .08% the intoxilyzer has a 3 point or 3% inaccuracy disclosed by the manufacturer in paperwork. This is on controlled lab tests and is likely minimized for marketing. The breath test machine also uses a .02 tolerance to verify the results. Two tests are taken for verification. If you blow a .08% any result between .06% and .10% would be valid for the second test. If your breath alcohol content is near .08% these built in inaccuracies help you. A separate method to attack the results if they are around .08% is retrograde extrapolation. Retrograde extrapolation is the mathematical process by which the accused’s blood alcohol concentration at the time of driving is estimated by projecting backwards from your test result. You are not DUI for sitting in the police station over .08%. The blood alcohol content could increase or decrease between .015% and .02% per hour. If it could be higher or lower.That .02 could be your reasonable doubt and gives you a fighting chance of beating the case.

Some counties in Central Florida will reduce cases with lower breath alcohol content and some counties in Central Florida will divert the case allowing you to have an opportunity to have your DUI case dropped. Refusals sometimes receive reductions and diversions but it is generally a policy of prosecutors to fight harder when the accused refuses. When should you refuse a breath test? If it is clear that your breath alcohol content will far exceed the legal limit but only if punishment and convictions are your primary concern. You could still receive the administrative suspension regardless of the outcome of your criminal case. The administrative suspension on a first DUI refusal is 12 months with no driving for the first 90 days. A first DUI breath test suspension is 6 month with the first 30 days without driving. If your result is over .15% you will face an increased fine and interlock on your car but you will still be able to receive a hardship 30 days after your license is suspended. A DUI conviction can end some careers. If that is the case a double refusal might be the best option. No field sobriety exercises and no breath test. If you are a commercial driver refusing can cause additional issues by being calculated as a strike against you. If later convicted of DUI the two strikes could permanently suspend your CDL. You can always request a blood test and the officer has to reasonably accommodate you (give you a phone book and phone) or the case could be thrown out. It also lays the groundwork for refusing because of distrust of the machine not fear of guilt. Information provided by Daytona Beach DUI attorney Kevin J. Pitts.

Florida DUI Daytona Beach DUI Lawyer Phase 3 DUI Arrest

As a Daytona Beach DUI lawyer and former Daytona Beach Assistant State Attorney Kevin Pitts has handled hundreds of Volusia County DUI cases. A DUI case has four major phases and many smaller issues that can occur during the phases. The arrest for DUI is the third phase of a DUI case. If the officer does not have sufficient evidence to arrest you the breath test or refusal is going to be admitted into evidence. The case will be thrown out because the officer did not have enough evidence to arrest you and cannot accumulate additional evidence after the fact or after the unlawful arrest. If the officer does not have probable cause the state could not prove the case beyond a reasonable doubt. The DUI arrest is based on the optional field sobriety exercises and other observations by the officer during initial contact. Your driving pattern will also be considered in the decision to arrest. If the cop thinks they have enough you cannot do much at this point. Arrest is much different than conviction. An arrest will likely cause a few hours of discomfort and a conviction will be a thorn in the side for months. All police policies and procedures that I'm aware of require arrest if the officer has probable cause that you are impaired while driving. Do not beg for forgiveness and promise that you will never drink and drive again. What you say is documented and might be recorded by hidden cameras in the police car. They do not have to tell  you they are recording because you legally do not have a reasonable expectation of privacy on the side of the road or in the back of a police car. They do not have to read you Miranda rights and the statements in the back of the police car are usually considered spontaneous and are admissible in court. Miranda rights are only necessary for interrogation during custodial arrest. Basic booking information is not interrogation and roadside questioning is not custodial. Most experienced police officers will not interrogate you in the back of the car without mirandizing you. They are more than happy to let you talk, apologize and beg for forgiveness. The thought is only guilty people apologize and ask for forgiveness. The statements come in as an admission by a party opponent hearsay exception even if you do not take the stand. Be polite but firm with the officer. You do not want to look rude because the recording will likely be played for the jury. I you look like a jerk the jury will not feel bad about convicting you. If you are polite it might be a little bit harder for the jury to hang you. The only thing you are required to do pre-arrest is provide your license, insurance and registration. The police officer is not your friend. If he/she is asking you questions they are not there to help you. If they believe you are impaired they will not cut you a break. Use your manners but do not volunteer any information that is not required. The arrest is only the beginning of the actual case. You will have an opportunity to defend yourself with pre-trial motions and in front of a jury. The back seat of a police car is not the place to try your  case. Your audience’s job is to arrests people and they will usually error on the side of arrest. The fourth and final DUI DUI phase will be published when complete. Information provided by Daytona Beach DUI attorney Kevin J. Pitts.

Florida DUI Daytona Beach DUI Attorney Phase 2 Detention

As a Daytona Beach DUI lawyer and former Volusia County DUI prosecutor Kevin Pitts has handled hundreds of Central Florida DUIs. I previously posted about the stop the detention is the second phase. The police need three indicators of impairment to request field sobriety exercises based upon the Origi v. State. standard. Indicators that frequently appear in police reports are odor of alcohol, blood shot eyes, glassy/glossy eyes, fumbling or fidgeting with paperwork, thick tongued and slurred speech. Driving can be considered an additional indicator in some cases. Police almost always say they smell alcohol and odor is difficult to rebut because it is not preserved.

Make sure your documents are organized. You might want to get your license, registration and insurance card in a separate wallet and place it in a readily accessible area while driving. The officers will time you, watch if you pass over a document and if you give them an expired version that also considered an indicator of impairment. If you are unorganized you could easily be 1/3 of the way to being asked to perform field sobriety exercises. Organize your documents, talk as little as possible and refuse the voluntary field sobriety exercises. Why should you refuse the voluntary field sobriety exercises? The standard exercises are the walk and turn, one leg stand and horizontal gaze nystagmus (HGN). The finger to nose is often added. The HGN is rarely admissible because the officer has to be a Drug Recognition Expert (DRE). Some case law says that training plus hundreds or thousands of DUI investigations might be enough to testify about the HGN.

The three exercises are designed to observe indicators of impairment. You can show 2 indicators on each exercise before the cop can consider the performance of the exercise sufficient to arrest you. That sounds easy but when you hear what an indicator is you will understand why the optional exercises should not be performed. This is especially true on cases without video. On the finger to nose if you touch your nose with the pad of your finger you have demonstrated an indicator of impairment. If you do not immediately return your hand to your side after touching your nose it is considered another indicator of impairment. That would be a failure and you would be 1/3 of the way to being arrested. On the walk and turn if you start before the officer is completely done and raise your hands more than six inches for balance you fail. On the one leg stand if you sway and put your foot down or raise your hands over six inches for balance you have failed all three exercises. Making it through without stumbling is not enough to avoid arrest. You must follow every tiny detail to prevent arrest. The third phase will be soon. Information provided by Daytona Beach DUI attorney Kevin Pitts.

Florida DUI Phases 1 Daytona Beach DUI Attorney

A Florida DUI case has four major phases. The first phase is the traffic stop. In Florida DUI cases traffic stops are a heavily litigated area. Suppressing the traffic stop is like cutting the head off of the DUI case. It will immediately die if the stop is suppressed. If the breath test or refusal is suppressed the case will be wounded but can still survive. Preventable stops like window tint, modified exhaust, speeding, tag lights, expired tags and head lights are often difficult to suppress. Driving pattern, weaving, failure to maintain a single lane, improper u-turn and careless driving can be challenged in many cases if certain requirements are not met. Florida DUI crash cases can be difficult for the state as a result of the accident report privilege. The accident report privilege does not exist in leaving the scene cases. A Florida DUI property damage case is enhanced in Florida and has additional penalties. The stop is commonly challenged but not all stops are appropriate for a motion to suppress. If a motion to suppress is not appropriate for the stop many other areas can be challenged. The information was provided by Daytona Beach DUI attorney Kevin J. Pitts. Kevin J. Pitts has handled hundreds of DUI cases as a Daytona Beach prosecutor and Daytona Beach DUI lawyer. The second phase of a DUI case is the detention and field sobriety exercises. The second DUI phase will be posted in the near future.

What Is Reasonable Suspicion In Florida?

If you have been pulled over for a traffic stop detained by police or asked to perform field sobriety exercises you might be curios what the legal standard is for the police action. The standard to pull someone over for a traffic stop, to detain an individual or to request field sobriety exercises is reasonable suspicion. A police officer's bare suspicion of criminal activity is insufficient to justify an investigatory, or Terry, stop. State v. Walker, App. 2 Dist., 991 So.2d 928 (2008), rehearing denied. A mere hunch that criminal activity may be occurring is insufficient to constitute reasonable suspicion to justify stopping an individual. Berry v. State, App. 1 Dist., 973 So.2d 1255 (2008). Mere suspicion is not enough to support a stop. Newkirk v. State, App. 2 Dist., 964 So.2d 861 (2007). A police officer's founded suspicion for a valid investigatory stop cannot be based upon a mere hunch or guess. Williams v. State, App. 5 Dist., 910 So.2d 368 (2005). For more information go to Daytona Beach DUI lawyer Seminole County DUI attorney Kevin J. Pitts. 

New Florida Reckless Driving Law Daytona Beach Seminole County

A recent utilization of a 2009 Florida Statute by DHSMV is resulting in individuals who plea to reckless driving in Florida to be required after the resolution of the case to complete a four hour driving class. The class usually runs around $30 and can be completed online. It is not the type of thing that would force clients to trial but was not enforced for over a year and caught many clients, defense attorneys and prosecutors by surprise. Language about potentially suspending the privilege to drive caused concern. The statute was enacted in October of 2009. A few months ago clients started getting letters from DHSMV to complete the class or their license would be suspended. The surprising part of the additional class is that all parties agreed to a resolution of the case. The additional class was not part of the resolution. It is what is known as a collateral consequence. This recently was observed in Daytona Beach reckless driving cases that are DUI reductions. The reductions are commonly referred  to as a wet reckless. It is also a requirement for dry reckless cases. It is a Florida statute and will likely apply to Seminole County reckless driving cases, Orlando reckless driving cases, Volusia County reckless driving cases and all other Florida reckless driving cases. DHSMV is the cause of many of the collateral consequences of entering a plea such as being designated as a habitual traffic offender (HTO), DUI suspensions (if you plea to a first offense DUI and DHSMV finds out it is a second within 5 years your license will be suspended for 5 years not the 6 months or a year that was discussed in court), point suspensions and most recently an additional class requirement for reckless driving, racing on a highway, not stopping for a school bus, not stopping at a steady red indicator and failure to observe a traffic control device.

The class requirement comes from Florida Statute 322.0261(4). "The department shall identify any operator convicted of, or who pleaded nolo contendere to, a violation of s. 316.074(1), s. 316.075(1)(c)1., s. 316.172, s. 316.191, or s. 316.192 and shall require that operator, in addition to other applicable penalties, to attend a department-approved driver improvement course in order to maintain driving privileges. If the operator fails to complete the course within 90 days after receiving notice from the department, the operator's driver license shall be canceled by the department until the course is successfully completed." It appears to apply to violation of a traffic control device, steady red indicators, stopping for a school bus, racing on the highway and reckless driving. While a four hour basic driver improvement class that can be completed online is not an extreme measure it was not previously contemplated in many cases that were resolved. If you are charged with reckless driving and plan on entering a plea be prepared for the additional class requirement. If you have been arrested for a Daytona Beach reckless driving or Seminole County reckless driving contact Daytona Beach DUI lawyer Seminole County reckless driving attorney Kevin J. Pitts

Daytona Beach DUI Attorney Seminole County DUI Attorney Kevin J. Pitts

Daytona Beach DUI Attorney Seminole County DUI Attorney Kevin J. Pitts

Daytona Beach DUI Attorney Seminole County DUI Attorney Kevin J. Pitts

A DUI stop for driving on the shoulder might not be legal in Florida. Daytona Beach DUI Attorney Seminole County DUI Attorney Kevin J. Pitts

Florida DUI Stop For Driving Without Headlights On

If you are stopped for forgetting to turn on your headlights you might be able to suppress the stop. Each stop is fact specific so it is possible that some stops based on headlights might be valid while others could be suppressed. An old case from 1992 indicates that interfering with traffic or pedestrians might be a prerequisite to a valid headlight stop. In the case I am referring to the court decided that no evidence was presented to indicate the presence of other traffic on the roadway or the existence of endangerment to pedestrians or property resulting from the defendant's brief travels without her headlights on. She pulled onto a highway in front of a business and travelled just more than ½ a short city block, apparently without interfering with any other vehicular or pedestrian traffic, and turned on her headlights as she began to turn onto another street. Considering the nature of the deputy's inquiry of the driver and the circumstances and length of the detention and his acknowledgment that the point of origin of the vehicle was in an area known for high-drug activity, it is evident the State failed to demonstrate that the deputy was acting as a reasonable officer in stopping the defendant's vehicle, absent an invalid purpose, and, therefore, that this stop was not pretextual. State v. Lagree, 595 So. 2d 1029 (Fla. Dist. Ct. App. 1992). If you are stopped for not having your headlights on contact Daytona Beach DUI attorney Kevin J. Pitts.

            In the case referred to the defendant turned her headlights on. That is relevant because it would alleviate any concern the officer would have about invalid equipment. Once the officer observed the headlights on he could not justify the stop based on invalid equipment or acting as a good Samaritan. The case is old but has not received any negative treatment from other courts. The court later stated that they agree with the trial court's conclusion that pulling out of a parking lot and driving one-half of a small city block before putting headlights on is not such a circumstance that it can be assumed, without proof, that a reasonable officer would make the stop, when there was no proof that the area was not well-lit, and no proof that the brief period of driving without lights on caused any danger. State v. Lagree, 595 So. 2d 1029 (Fla. Dist. Ct. App. 1992). It appears that the ruling might have come out differently if the defendant wouldn’t have turned her lights on. Case law and facts determine the validity of a DUI stop. If you are stopped for a DUI in Volusia County contact Daytona Beach DUI lawyer Kevin J. Pitts. Mr. Pitts is also a Seminole County DUI lawyer with an office in Sanford.

Florida Implied Consent

The Florida Implied Consent can vary but it should be very similar to this. "If you fail to submit to the test I have requested of you, your privilege to operate a motor vehicle will be suspended for a period of one (1) year for a first refusal, or eighteen (18) months if your privilege has been previously suspended as a result of a refusal to submit to a lawful test of your breath, urine, or blood. Additionally, if you refuse to submit to the test I have requested of you and if your driving privilege has been previously suspended for a prior refusal to submit to a lawful test of your breath, urine, or blood, you will be committing a misdemeanor [per Florida Statute 319.1939]. Refusal to submit to the test I have requested is admissible into evidence in any criminal proceeding. If you still refuse to submit to this test, knowing that your driving privilege will be suspended for a period of at least one (1) year and that you may be charged criminally for any subsequent refusals?"

The purpose of implied consent is to insure that the accused is aware of the consequences of refusal. Consent is implied because it is a pre requisite to getting a Florida driver’s license.  In a perfect world the officer will advise the accused which test they are requesting. You can bet if you take the breath test and blow .000 they will change their mind and ask for urine. The only other option would be for the officer to admit they made a mistake. Once they make the determination that you are impaired they will not release you even if your results for the breath test are below .08%. What typically happens is if you are below the legal limit they will request urine. It takes 60-90 days to get the urine results so the truth will likely come out months later.

The timing of implied consent is incident lawful arrest. For the refusal to be admissible the State must show that the arrest was lawful. Statute permitting a police officer to suspend a motorist's driver's license for refusal to submit to a lawful breath test did not allow suspension to be predicated on refusal to take a breath test following an unlawful arrest, even though statute was amended to omit mention of a motorist's arrest or its lawfulness; obligation to take the breath test arose from Implied Consent Law, which required a lawful arrest. Dep't of Highway Safety & Motor Vehicles v. Pelham, 979 So. 2d 304 (Fla. Dist. Ct. App. 2008) review denied, 984 So. 2d 519 (Fla. 2008).

Breath Blood or Urine. Currently the appellate courts are split on the issue of requesting blood, breath or/and urine. Some of the recent case law has come out in favor of the state but the law might vary depending on the jurisdiction you reside in. A Florida Driver's license could not be suspended under implied consent law after driver refused to submit to breath test to determine blood alcohol content, where law enforcement officer gave driver implied consent warnings that erroneously informed driver that her driving privileges would be suspended if she refused to submit to a breath, blood, or urine test, when statute only authorized a breath test. State, Dept. of Highway Safety & Motor Vehicles v. Clark, 974 So. 2d 416 (Fla. Dist. Ct. App. 2007). The position is acknowledged as dicta in a footnote by the 3rd DCA in Boesch but was not ruled upon. “As Boesch's counsel certainly seems to have known, the separate implied consent statute applicable to blood tests, subsection 316.1933(1), Florida Statutes (2006), did not warrant a blood test in this case. Although we have not ruled (and do not here) on this point, at least one district court of appeal has held that the erroneous inclusion of the blood test implied consent warning may invalidate the breath test warning, preventing suspension of the defendant's license.” State, Dept. of Highway Safety & Motor Vehicles v. Boesch, 979 So. 2d 1024, 1027 (Fla. Dist. Ct. App. 2008), reh'g denied (Apr. 18, 2008). Other appellate courts have taken a different opinion focusing on the and/or meaning. Request that drivers who were arrested on suspicion of driving under the influence of alcohol (DUI) submit to a test of their “breath, blood, or urine” did not mislead drivers into thinking that they were required to submit to the more invasive blood or urine tests and, thus, did not preclude suspension of drivers' licenses to drive, pursuant to the implied consent law, based on their refusal to take any of the tests, even though implied consent law required only that drivers submit to a breath test; use of word “or” suggested that drivers had a choice as to the test to which they wished to submit. Dep't of Highway Safety & Motor Vehicles v. Nader, 4 So. 3d 705 (Fla. Dist. Ct. App. 2009) review granted, 36 So. 3d 84 (Fla. 2009). Implied consent warning that asked motorist to submit to a “breath, urine, or blood” test was not improper, and thus motorist's refusal to submit to a breath alcohol test in a driving under the influence (DUI) investigation warranted suspension of her driver's license, even if the circumstances justified only a breath test. Stevenson v. Dep't of Highway Safety & Motor Vehicles, 17 So. 3d 1260 (Fla. Dist. Ct. App. 2009).

Incorrect Implied Consent. The officer is not required to strictly comply with the reading of implied consent. Evidence that a suspect refused investigative testing is relevant because it tends to prove a consciousness of guilt, provided that the suspect first was informed that adverse consequences would flow from his or her refusal. Menna v. State, 846 So.2d 502, 505 (Fla.2003). Here, because Appellant was advised of at least one adverse consequence that would result from her refusal, her decision to refuse was relevant and the trial court did not abuse its discretion in admitting the evidence. Grzelka v. State, 881 So. 2d 633, 634-35 (Fla. Dist. Ct. App. 2004). Menna stands for the proposition that evidence can't be used against you if the request is believed to be optional without negative consequences. The trial court concluded that Menna was not told of any adverse consequences associated with refusing to take the test. Moreover, according to the officer, she was asked to submit to the test in a manner that made it seem optional. Thus, there were viable alternative explanations as to why she refused to take the test, including her desire to seek “safe harbor” or choosing to take the safest possible path totally devoid of negative consequences. Menna v. State, 846 So. 2d 502, 508 (Fla. 2003). Menna deals with a gunshot residue test but the logic is relevant to a breath test refusal without knowledge of the consequences. If you are arrested for a DUI contact Daytona Beach DUI attorney Kevin J. Pitts. 

Seminole County Breath Test Machine Issue (Intoxilyzer 8000)

Seminole County has 4 Intoxilyzer 8000's and this article will discuss serial numbers 80-001271 and 80-001272. The other 2 machines have a similar pattern but I have not had time to compile the data. Each month both machines are tested with the same three control solution lot numbers. Three tests are performed sometimes just minutes apart by the same breath test inspector. The machines test a .05 G/210L control solution a .08 G/210L control solution and a .20 G/210L control solution during the monthly inspection. I have reviewed the monthly inspections from January through September and compiled the data. The .05 G/210L shows an average variation of 6.6% between the two machines on the same .05 G/210L control solution lot # 200903B. The inaccuracy was most pronounced on 3/30/2010 when a 10% difference was observed and again on 6/30/2010 when a 10% difference was observed on 2 tests. The .08 G/210L shows an average variation of 6.12% between the two machines on the same .08 G/210L control solution lot # 200908B. A maximum variation was observed on the 6/30/2010 test when an 8.75% difference occurred twice on the .08 solution. The .20 G/210L shows an average variation of 7% between the two machines on the same .20 G/210L control solution lot # 200908C. A maximum variation was observed on the 9/29/2010 test when a 9% difference occurred on the .20 solution. This is disturbing considering that according to FDLE both machines are compliant. What is even more disturbing is that 80-001272 always reads lower then 80-1271 and has only been used once since October of 2009. It would appear that Seminole County prefers to use their +1 machine. I refer to it as the +1 because it appears to add a drink to your BAC free of charge (except for the DUI). The discrepancies have continued at least into November. What drives this issue home is that during the Sarasota source code litigation a document was released from CMI stating that the machine would be accurate within +/- .003 or 3% whichever is greater. With as much as a 10% difference in control tests the machines are not performing within the specifications set out by CMI. It appears that Seminole County has found a way to resolve this issue. It is pretty clever. They either stopped testing 80-001272 or stopped recording it in the public records. The last recorded test for 80-001272 is 11/1/10 @ 21:56. Intoxilyzer 80-001271 has been tested for accuracy 4 times since 11/1/10. It appears that Seminole County finally found out about the problem and eliminated it by either getting rid of or no longer testing the machine that reads lower. If you are arrested for a DUI contact Seminole County DUI attorney Kevin J. Pitts. If you are arrested for a Volusia County DUI go to Daytona Beach DUI attorney. The Law Offices of Kevin J. Pitts has offices in Sanford and Daytona Beach.

Enhanced Florida DUI Penalties ( BAC >.15% Or Child In The Car).

Florida First DUI BAC Greater Than .15% or Minor In The Vehicle

Fine: between $1000 and $2000

Driver’s License Revocation:180 days up to 1 year

Business Purpose Only: Must complete A DUI school and apply to department for hearing for possible hardship reinstatement. Mandatory ignition interlock device for up to six months for BAL of .15

DUI School For License Requirements: Must complete DUI school before hardship reinstatement. Customers who wait out revocation period before reinstatement need only show proof of enrollment or completion to become re-licensed. If customer enrolls and is reinstated after revocation period expires,failure to complete the DUI school within 90 days after reinstatement will result in license cancellation; the driver cannot then be re-licensed until DUI school is completed.

Community Service: Mandatory 50 hours of community service or additional fine of $10 for each hour of community service required

Probation: First conviction, total period of probation and incarceration may not exceed 1 year

Jail: Not more than 9 months

Conditions for Release From Jail: The person is no longer under the influence and; the person's normal faculties are no longer impaired, the person's blood/breath alcohol level is lower than 0.05; or eight hours have elapsed from the time the person was arrested.

Impound or Immobilization: 10 days that must not occur during incarceration

Refusal of Blood/Breath or Urine: Refusal: Refusal to submit to a breath, urine, or blood test is admissible as evidence in DUI criminal proceedings. Second or subsequent refusal (even if the prior DUI is dropped or reduced) is a misdemeanor of the first degree. Driver License Suspension Periods: First refusal, suspended for 1 year. Second or subsequent refusals, suspended for 18 months.

Administrative Suspension: First Suspension for Driving With an Unlawful Alcohol Level (.08 or above): 6 months. First Suspension for Refusal to Submit to Breath, Urine or Blood Test: 1 year. The suspension is effective immediately The officer will issue the driver a temporary permit valid for 10 days from the date of arrest, provided the driver is otherwise eligible. 

Review Hearings For Administrative Suspensions: Department of Highway Safety and Motor Vehicles may upon the request of the driver to conduct formal and informal reviews for the purpose of sustaining, amending or invalidating administrative suspensions and disqualifications. The decisions of the department shall not be considered in any trial for a violation of s. 316.193, F.S., nor shall any written statement submitted by a person in his request for review be admissible into evidence against him in any such trial. The disposition of any related criminal proceedings shall not affect a suspension/disqualification.

Administrative Suspension Business or Employment Reinstatement: Must show proof of enrollment in DUI school and apply for an administrative hearing for possible hardship reinstatement. For unlawful alcohol level must serve 30 days without driver license or permit prior to eligibility for hardship reinstatement. For first refusal must serve 90 days without driver license or permit prior to eligibility for hardship reinstatement. No hardship reinstatement for two or more refusals.

Adjudication and Sentencing: Judges are prohibited from deviating from the administrative suspension/revocation periods mandated by statute. The courts are prohibited from withholding adjudication in DUI cases; or from reducing a DUI charge if the defendant's blood alcohol was .15 or greater. If you are arrested for a DUI in Volusia County go to Daytona Beach DUI attorney, Daytona Beach criminal defense attorney. If you are arrested for a DUI in Seminole County go to Seminole County DUI attorney, Seminole County criminal defense attorney. Offices at 209 West First Street, Sanford, FL 32771 and 747 South Ridgewood Ave., #105 Daytona Beach, FL 32114. For free DUI information and sample forms go to Free DUI information and sample forms

Florida First DUI Penalties (without enhancement).

First Offense Florida DUI Penalties BAC below .15%

Fine: between $500 and $1,000 / a reduction to reckless driving reduces the mandatory fine but the fine often stays the same.

Driver’s License Revocation: minimum mandatory 180 days to a year/ reckless driving has no mandatory criminal license suspension (the administrative suspension can still be an issue when a DUI is reduced to reckless)

Business Purpose Only: Must complete DUI school, apply to department for hearing for possible hardship reinstatement.

DUI School For License Requirements: Must complete DUI school before hardship reinstatement. Customers who wait out revocation period before reinstatement need only show proof of enrollment or completion to become re-licensed. If customer enrolls and is reinstated after revocation period expires, failure to complete the DUI school within 90 days after reinstatement will result in license cancellation; the driver cannot then be re-licensed until DUI school is completed./ The DUI school can be ordered by the Judge in an alcohol related reckless. It is not mandatory but if your license is administratively suspended it is required for reinstatement.

Community Service: Mandatory 50 hours of community service or additional fine of $10 for each hour of community service required if allowed by the Judge./ 50 hours of community service is not mandatory with a reckless driving but is often still a requirement.

Probation: First conviction, total period of probation and incarceration may not exceed 1 year.

Jail: Not more than 6 months

Conditions for Release: The person is no longer under the influence and; the person's normal faculties are no longer impaired, the person's blood/breath alcohol level is lower than 0.05; or eight hours have elapsed from the time the person was arrested.

Impound or Immobilization: 10 days that must not occur during incarceration./ Impound is generally part of a reckless driving sentence.

Refusal of Blood, Breath or Urine: Refusal: Refusal to submit to a breath, urine, or blood test is admissible as evidence in DUI criminal proceedings. Second or subsequent refusal (even if the prior DUI is dropped or reduced) is a misdemeanor of the first degree. Driver License Suspension Periods: First refusal, suspended for 1 year. Second or subsequent refusals, suspended for 18 months./ The reduction to reckless driving does not help the administrative suspension. It does help prevent the potential permanent revocation for 4 criminal DUI convictions.

Administrative Suspension: First Suspension for Driving With an Unlawful Alcohol Level (.08 or above): 6 months. First Suspension for Refusal to Submit to Breath, Urine or Blood Test: 1 year. The suspension is effective immediately The officer will issue the driver a temporary permit valid for 10 days from the date of arrest, provided the driver is otherwise eligible./ A reduction to reckless driving, a complete dismissal or a Nolle Prosequi by the state does not help you with the administrative suspension. The only way to prevent the administrative suspension is to request a formal review within 10 days and successfully challenge the suspension in a formal or informal hearing.

Review Hearings For Administrative Suspensions: Department of Highway Safety and Motor Vehicles may upon the request of the driver to conduct formal and informal reviews for the purpose of sustaining, amending or invalidating administrative suspensions and disqualifications. The decisions of the department shall not be considered in any trial for a violation of s. 316.193, F.S., (DUI) nor shall any written statement submitted by a person in his request for review be admissible into evidence against him in any such trial. The disposition of any related criminal proceedings shall not affect a suspension/disqualification.

Administrative Suspension Business or Employment Reinstatement: Must show proof of enrollment in DUI school and apply for an administrative hearing for possible hardship reinstatement. For unlawful alcohol level must serve 30 days without driver license or permit prior to eligibility for hardship reinstatement. For first refusal must serve 90 days without driver license or permit prior to eligibility for hardship reinstatement. No hardship reinstatement for two or more refusals.

Adjudication and Sentencing: Judges are prohibited from deviating from the administrative suspension/revocation periods mandated by statute. The courts are prohibited from withholding adjudication in DUI cases; or from reducing a DUI charge if the defendant's blood alcohol was .15 or greater. If you are arrested for a DUI in Volusia County go to Daytona Beach DUI attorney, Daytona Beach criminal defense attorney. If you are arrested for a DUI in Seminole County go to Seminole County DUI attorney, Seminole County criminal defense attorney. Offices at 209 West First Street, Sanford, FL 32771 and 747 South Ridgewood Ave., #105 Daytona Beach, FL 32114.

For free DUI information and sample forms go to Free DUI information and sample forms.

Should I Take The Breath Test After A DUI Arrest?

As a DUI attorney this is one of the most common questions I hear. The answer is it depends. Many people seem frustrated with this but I will explain. It depends on 4 things 1) location 2) amount you had to drink 3) what you are trying to avoid 4) your prior history. 

1) The location of your arrest can make a difference in your decision. This has to do with a couple different issues. Some counties are more lenient on low breath tests. Some counties in Central Florida tend to reward cooperation to some extent. This is done by allowing diversions in some of the counties in Central Florida. Other counties have unwritten policies of when to reduce cases. The prosecutor is not bound by the policy. Other counties claim to not allow equitable reductions. The counties were left out because policies are subject to change. Seminole County has had issues with breath test admissibility and the Seminole County breath test machines have recently registered readings with nearly a 10% variation between machines on control tests. The company that designs the machines (CMI) claims that the machines are accurate within 3% or .003 whichever is greater. If the machine is inadmissible your refusal could be used against you but the breath test result could not. Office policies are subject to change so that should also play a roll in your situation. It is impossible to know which Judge will handle your case prior to arrest so the admissibility cannot be determined prior to making the decision unless the jurisdiction has had the issue addressed on appeal or En banc. For more information about this issue go to Seminole County DUI attorney for my contact information.

2) The amount you had to drink is important to your decision. I always here "I had two drinks all night and didn't know if I would pass so I refused". Blood represents about 7% of the body mass or about 4.5 kg (volume ~ 4.4 liters) in a 64 kg (141 lb) person. Cameron, John R.; James G. Skofronick & Roderick M. Grant.Physics of the Body. Second Edition. Madison, WI: Medical Physics Publishing, 1999: 182. This equals about 149 ounces in a 141lb human. This means that a 141lb human could consume 1.192 ounces of alcohol in an hour. This is basically 2 12 oz. beers assuming 100% absorption and no metabolism by the liver. It gets more complicated when you calculate metabolism, digestion and after multiple hours of drinking the math becomes much more important. Your liver can metabolize approximately 1 drink per hour. The simple math would be 2 drinks in an hour 3 drinks in 2 hours 4 drinks in 3 hours and so on. If you have only consumed 2 drinks the entire night you might want to consider taking the breath test unless you are smaller than 140 lbs., the drinks contained more alcohol than a 12 oz. beer or you have impaired liver function. The defense usually contends that the cutoff is 2 drinks and as a prosecutor you are told that it is more like 4-6 drinks.

3) What you are trying to avoid should play a substantial role in your decision. This sounds like a stupid question but the answer should have a big impact on your decision. If you are trying to avoid losing your driver’s license the breath test might be a better option for you. The odds are stacked against the accused in a DUI. You will face two separate suspensions. After a criminal DUI suspension you are eligible for a hardship immediately as long as the appropriate class in your jurisdiction is completed (counter attack in Seminole and Orange and Alcohol Safety and Education Class in Volusia) on a first DUI. The problem is that the criminal suspension is only half the battle. You will also face an administrative suspension. The administrative suspension can be successfully challenged but they are designed to be difficult. The suspension automatically occurs if a hearing is not requested within 10 days. It is also based on a substantial competent evidence standard. The United States Supreme Court defines “substantial competent evidence” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  Pierce v. Underwood, 487 U.S. 552. This is relevant because the first time refusal hard suspension is 90 days. A first time BAC over .08% hard suspension is 30 days. The stop challenges are the same either way. With a refusal implied consent can be challenged but the accused does not have standing to challenge the machine. If you blow then you would have standing to challenge the machine. The success rate is lower in the administrative review cases than in the criminal case. A new law that was passed last year basically allows the officer to skip the hearing. The accused license prior to the law would be restored if the officer did not show up. The new law states that A party may seek enforcement of a subpoena by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides. This does not mean that the administrative review cannot be won it just shows that an attempt has been made to stack the odds in the states favor. Technical errors in the documents can be very successful grounds for overturning the administrative suspension. The hearing also allows the defense an opportunity to question the officer under oath prior to speaking with the state in most cases. If you are more worried about a DUI conviction than the license suspension the state will have less evidence if you refuse. Although if you are under the limit and refuse the state will have a case against you based on consciousness of guilt. This argument is not as strong as a high breath test result but does carry some weight.
4) Your prior history makes a big difference in your case. If you have a prior refusal the second refusal is a first degree misdemeanor punishable by up to 364 days in jail or 12 months of probation and a $1000 fine. The second refusal also carries an 18 month hard administrative suspension without the possibility of a hardship permit. A second DUI within 5 years has a minimum 10 day jail sentence. A third DUI with a prior in the last 10 years can be charged as a felony and results in a 10 year to lifetime license suspension. A fourth DUI carries an automatic lifetime license revocation. A new law makes it possible to get the license reinstated after 10 years with significant restrictions. On a second DUI outside of 5 years with a prior refusal it might be in your best interest to take a breath test because you would be exposed to a 30 day hard suspension compared to 18 months if you refused. The maximum suspension would be 1 year. If you are looking at a fourth DUI and feel that you will be over the limit the 18 month administrative suspension is the least of your worries because the criminal is required to give you a lifetime suspension if convicted. If the case is negotiated and the state stipulates that it is a first DUI you will still face a permanent revocation when The Department of Highway Safety and Motor Vehicles receives the conviction. The decision to blow or refuse can be complex and requires many factors to be considered. What is in your best interest depends on your individual circumstances. Daytona Beach DUI attorney. Offices at 209 West First Street, Sanford, FL 32771 and 747 South Ridgewood Ave., #105 Daytona Beach, FL 32114. For free DUI information go to Free DUI information.

Central Florida DUI Attorney, Daytona Beach DUI Attorney, Criminal Defense Lawyer | Kevin J. Pitts

If you are arrested for a DUI in Volusia County go to Central Florida DUI Attorney, Daytona Beach DUI Attorney, Criminal Defense Lawyer | Kevin J. Pitts. Offices in Daytona Beach and Sanford.

Easy ways you can prevent a DUI stop

Easy ways you can prevent a DUI stop

How you can reduce your risk of being arrested for a DUI.

How You Can Prevent A DUI Arrest?

Not all DUI arrest can be prevented but a few simple steps can prevent many of the stops that end in a DUI arrest. Some of these areas are not only easy to prevent but also can be difficult to litigate. A tag light stop is an example of a preventable stop that is often upheld by courts. 

Always walk around your car to make sure it is in good working order if you have been drinking or are on prescription medication and decide to drive. One of the most common preventable reasons for a DUI stop is the tag light or license plate light. This is a favorite stop method in jurisdictions that aggressively enforce DUI laws. If both lights are out it is difficult to defend. That does not mean all hope is lost because a DUI has other areas to challenge. If you make the decision to drive after drinking do a simple walk around your car to make sure your lights are in working order. A $1 light could cost you thousands in fines, attorney fees and increased insurance cost. Generally speaking if both lights are out at night the stop is valid. If 1 light is out the stop can be challenged by your attorney. Different lights have different rules for example 2 of the 3 brake lights must be operable. White light coming from a brake light can also provide grounds for a valid stop. A simple walk around your car can almost eliminate equipment stops. If you are arrested for a Central Florida DUI equipment stop contact Central Florida DUI attorney. Visit my Seminole County office at 209 West First Street, Sanford, FL 32771.  

Be careful with altered equipment and loud music.

Excessive window tint, loud music and loud mufflers are all common issues that result in DUI stops. Loud music might be a form of expression but if it is “plainly audible at a distance of 100 feet or more from the motor vehicle" then it's a basis for a stop. An officer can also make a stop for an extremely loud or defective muffler. Excessive Window tint is another basis for a stop. Some case law indicates that the legality of the tint might not be the standard instead it is the officer's belief of the legality. In Wimberly the issue was whether the officers had probable cause to believe that the windows of the car in which Wimberly was riding were illegally tinted, not whether the windows were actually illegally tinted. State v. Wimberly, 988 So. 2d 116. So it is possible that a legal tint could result in a valid stop if the officer's mistake of fact is reasonable. The windows in Wimberly were 35% when the minimum transparency is 28%. If you are arrested for a window tint stop in the Daytona Beach area go Daytona Beach DUI attorney. Visit my new office at 747 South Ridgewood Ave., #105 Daytona Beach, FL 32114. to 

Try not to make it easy for the police and State Attorney's office.

If you decide to drive under the influence try to avoid speeding and other distractions such as radios and phones. If the advice in this guide is followed many of the stops would be based on erratic driving, weaving, failure to maintain a single lane and other areas that are much easier for your attorney to work with. In aggressive DUI jurisdictions if you have any of these basic equipment violations in an enforcement area you can almost guarantee that the officers will stop to take a look. A tag light might not be a big deal but a DUI or drug seizure is. The inoperable tag lights is the officers admission ticket to take a look at you. If you have not been drinking the stop will likely be quick and painless but if you have had a few drinks you will likely find yourself on a one way track to jail. The optional field sobriety exercises are like running through a mine field hoping that you don’t step on anything. If you make it through then you get to run through it on the next exercise. If you are arrested for a DUI in Volusia County go to Daytona Beach DUI attorney. If you are arrested for a DUI in Seminole County go to Seminole County DUI attorney.

How to prevent being arrested for a DUI.

One of the most common preventable reasons for a DUI stop is the tag light or license plate light. This is a favorite stop method in jurisdictions that aggressively enforce DUI laws. The stop is very difficult for an attorney to defend against. The case law is very strong for the state. I have listed some summaries of tag light case law. If you make the decision to drive after drinking do a simple walk around your car to make sure your lights are in working order. A $1 light could cost you $5000-$10000 in fines, attorney fees and increased insurance cost. A deputy's observation from 40 to 50 feet away that tag light of defendant's vehicle was not working was sufficient to provide probable cause to believe that tag light was in fact inoperable and, thus, to justify a traffic stop, whether or not deputy inspected vehicle after stopping defendant. State v. Lee, 957 So. 2d 76 (Fla. Dist. Ct. App. 2007). In contrast Police officer's belief that defendant's vehicle had an equipment violation because only one tag light was working was a mistake of law that did not establish probable cause to stop the vehicle. The stop of defendant's vehicle was not authorized under statute allowing vehicle stops for a vehicle that is unsafe or not equipped as required by law, where the state did not show that the malfunctioning of one of the vehicle's two tag lights rendered the vehicle not equipped as required by law or unsafe. Langello v. State, 970 So. 2d 491 (Fla. Dist. Ct. App. 2007). Police had probable cause to stop vehicle where license tag illuminating light was not on when headlights were on, in violation of statute, even though stop took place before sunset and headlights were not required to be on. Andrews v. State, 540 So. 2d 210 (Fla. Dist. Ct. App. 1989). Generally speaking a Florida DUI tag light stop is difficult to suppress. On the other hand tag light stops do not carry a lot of weight with a jury unless the prosecutor has additional evidence of impairment. If you have been arrested for a DUI contact Daytona Beach DUI attorney Kevin J. Pitts. Kevin J. Pitts handles Central Florida DUI cases in Volusia, Seminole, Lake and Orange county. Mr. Pitts handles cases in other Central Florida counties on a case by case basis.

Central_Florida_DUI_Attorney: Unusual Driving and Failure to Maintain a Single Lane Florida DUI Stop.

Central_Florida_DUI_Attorney: Unusual Driving and Failure to Maintain a Single Lane Florida DUI Stop.

Unusual Driving and Failure to Maintain a Single Lane Florida DUI Stop.

Unusual driving and suspicion of impairment has been a heavily litigated area in Florida. In recent years the State's ability to use this standard for stops has been curtailed. An example of this is when a defendant was observed by an officer, around 3:00 a.m., weaving from one lane to another. The record does not show the crime with which the defendant was charged, but the officer stopped her because she was concerned that the driving pattern indicated the driver "could possibly be under the influence of—she could possibly be sick. You know, there were numerous other things that could be going on." The defendant moved to suppress the DUI stop on the ground that the officer had no reasonable suspicion to stop her, and the trial court granted the motion, stating that the officer did not specifically suspect DUI and noting that there was no one else on the road. Weaving, or failure to maintain a single lane, may or may not establish reasonable suspicion for a traffic stop. Weiss v. State, 965 So. 2d 842, 843 (Fla. 4th DCA 2007). See also Donaldson and Nicholas which stand for the proposition that for unusual driving or suspicion of impairment The State needs to show a driving pattern. Donaldson v. State, 803 So. 2d 856, 860 (Fla. 4th DCA 2002).Nicholas v. State, 857 So.2d 980 ( Fla. 4th DCA 2003). For a DUI case summary go to Daytona Beach Florida DUI Information.

For a Florida DUI stop for failure to maintain a single lane to be valid it must affect traffic. An officer observed a driver cross the right hand lane three times. No evidence was presented to show that he went far over the line or that any other driver was endangered. The court held that the stop for failure to maintain a single lane was illegal. The court stated that a violation of Florida Statute 316.089 does not occur in isolation but requires evidence that the driver created a reasonable safety concern. Crooks v. State, 710 So.2d 1041 (Fla. 2d DCA 1998). The 5th District Court of Appeals adopted the Crooks standard in Jordan. The Court stated that the statute recognizes that it is not practicable, perhaps not even possible for a motorist to maintain a single lane at all times.Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002). For more information go to Daytona Beach DUI attorney.