Sunday, November 13, 2011

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.

Saturday, November 12, 2011

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.