In my 28 years of practicing criminal law, first as a prosecutor and now as a criminal defense attorney, I have handled many hundreds of DUI cases. Approximately 30 of those cases have culminated in a jury trial. As a result of that experience, I have been asked numerous times about what happens at a DUI traffic stop and the legal and evidentiary consequences of decisions made at the time of the stop. The following are some of the more common questions and my general responses to each:
1. “Should I Submit To a Breath Test??
Under Florida's “Implied Consent” law, by virtue of obtaining a driver's license in Florida, each driver gives implicit consent to a chemical test for alcohol or drugs. These tests can be used to obtain breath, urine, or blood samples. In reality, unless an accident involving serious bodily injury occurs, a driver can refuse to take the breath and/or blood test. The penalty is that his or her driver's license is immediately suspended for a period of 1 year for a first refusal and 18 months for a second refusal. Should you take the test ?? You must balance the risk of taking the test and possibly providing the state with basically all the evidence it needs to convict ( if the BAC is over a .08) versus losing your license automatically for 1 year or more and possibly providing your attorney with a fighting chance to either get the charge reduced or win at trial.
2. “Should I Take Field Sobriety Tests??”
During the course of all DUI stops, the investigating officer will request that the driver submits to roadside sobriety tests. These are now more commonly ( and comically ) referred to as Field Sobriety “Exercises” by officers when testifying at trial as if they are somehow therapeutic in nature. The bottom line is that the officer usually implies, and the driver misunderstands, that there is a legal requirement to submit to these tests. This is 100% incorrect. These tests are VOLUNTARY and there is no legal penalty for refusing them. I believe such tests to be highly subjective, affected by how they are administered, and just plain inaccurate. While the officer might also imply that a satisfactory performance on these tests might convince him to” let you go”, this is rarely the case.
3.” What Is a Formal Review Hearing??
Florida law provides for a hearing at which you can challenge the basis of the traffic stop made by the police and their subsequent request for a breath or other chemical test. These hearings must be requested in writing within 10 days of the arrest and are held at the local DMV office. There is a $25.00 charge to request such a hearing. While in most instances you should demand such a hearing, please understand that in the vast ( 95% or more) majority of these hearings, the decisions of the police officer are upheld. This hearing does give your attorney the opportunity to get an early “peek” at the police report and ask the officer questions under oath which are recorded on tape and may provide for useful impeachment of his or her testimony at trial.
4. “How Do I Get a Hardship License ??”
If your license is taken by the police officer following your arrest, you can use the traffic citation as a temporary license for 10 days. Depending on whether you took the breath test or not, you can obtain a “Hardship” or “Business Purposes” license once you have completed an approved DUI Course.These courses are available through the National Safety Council. If a breath test was taken, there is a 30-day wait to schedule a hearing to get a business purposes license; if the test was refused, you must wait 90 days.
5. “Can I Go To Jail and for How Long ?”
The maximum jail sentence for a first DUI with no accident is 6 months. If an accident is involved, the maximum sentence is 6 months. If a 2nd DUI occurs within 5 years of a prior conviction, there is a mandatory 10-day jail sentence. For a 3rd DUI within 10 years, 30 days in jail is mandatory.
As an attorney, I am constantly bombarded with information that can best be characterized as “street knowledge” and is uniformly wrong. A DUI charge can have serious and long term effects on your family, you job, and your freedom. Please do not rely upon what someone told you happened in their DUI case years ago in another state. At the Heyman Law Firm, I am always available to answer your questions, and if you are charged with DUI, I will provide you with an experienced, aggressive, and trial-tested defense.