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.

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

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.