Winning DUI Cases in Miami, Florida
Roadside Sobriety Exercises
In addition to breath test results, prosecutors will attempt to prove a DUI arrestee’s normal faculties were impaired by showing performance on the roadside sobriety exercises. Don't be fooled. No matter how agile, the odds of you someone passing these exercises is bad. These tests are designed for failure. People who have had nothing to drink fail these tests. Each will not only test your physical ability but also your mental abilities. Imagine yourself walking the plank while at the same time being required to remember the names of the 13 Original Colonies and you will have some understanding of what it is like to undergo the Standard Field Sobriety Exercises.
For example, during the “Walk-and-Turn” exercise the driver is instructed to stand in a ready stance with heel touching his toe and hands at sides. He must remain in this position during the instructions. Then, he is then instructed to walk nine steps touching heel to toe on each and counting aloud each step. At the end of nine steps the driver is instructed to make a turn consisting of four small steps, then proceed to take nine steps back to the start, again touching heel to toe with his hands at his sides.
This isn’t easy. There are over eight ways to show a sign of impairment on each step. And with eighteen steps and one turn that number of chances to fail is 145. You only get one chance to get something wrong. Two "cues" will constitute a failure of that test. So, if you raise your hands from your sides over six (6) inches on the first step that is one mistake. If you raise your hands one more time, or even if you fail to put them down on your second step, that's two cues and you fail. Think back to grade school. If you scored 143 out of 145 that would be a 98% and you would probably get the highest grade in that class. A 98% on the walk-and-turn test is an F. This scenario is very similar on all other Roadside Sobriety Exercises. Each has a variety of instructions and actions. Each one is designed to make you fail and provide further evidence for the police to use against you.
If you have been asked to exit your vehicle the officer believes he has enough evidence already to arrest you for DUI. Therefore, taking these exercises and even passing them will not ensure that you will be going home. It is to your advantage to refuse these exercises. They are not mandatory and your license will not be suspended for a refusal. Ask the officer if they are voluntary, which they are. When he says “Yes.”, which he will 95% of the time, your refusal cannot be used against you.
Breath Alcohol at Time of Driving: Retrograde Extrapolation
The state must prove your blood alcohol content at the time you were driving. Your breath reading an hour or two later is not what proves you guilty of DUI. Your breath test results at the time you were driving are what are important. Your breath test results at the time you were driving had a lot to do with how much you weigh, your metabolism, what you ate, how much you ate, when you ate, what you drank, how much you drank, when you started and when you stopped drinking. In order for the state to prove that you were over the .08 legal limit at the time you were driving, they will have to “extrapolate”, or estimate, what your breath alcohol reading was at the time you were first stopped
Non Compliance with FDLE Rules
The Florida Department of Law Enforcement enacts rules that law enforcement must follow before and after administering any breath, blood or urine test. If police fail to follow any of these very specific rules an experienced Miami DUI Lawyer can file a motion to suppress the breath reading based on non-compliance with FDLE rules.
The Confusion Doctrine
If an officer mixes up the order in which he reads Miranda rights and Implied Consent Warnings, you may win a Motion to Suppress the evidence of a breath test, or a refusal to submit to a breath test.
What are Miranda Rights? The United States and Florida Constitutions proscribe that a person has the absolute constitutional right to remain silent and not incriminate himself or provide evidence against him. That is, a person does not have to say or do anything that may implicate him in a crime. A police officer must read you these Miranda Rights in every DUI where the police intend to question you. If a person chooses to exercise this constitutional right to remain silent, their silence cannot be used against them. This is called exercising your “Miranda Rights”.
Implied Consent Warnings
Implied Consent warnings are generally read to a person before administering any breath, blood or urine test. Implied Consent warnings advise an arrested person that if she or he fails to submit to a breath, blood or urine test, they will lose their license for a year for a first refusal and any refusal can be used against them in court. Sometimes in a DUI a police officer may read a person their “Miranda Rights,” before “Implied Consent.” If this happens, an attorney can file a motion to suppress for violating the confusion doctrine. Further, in many cases the officers do not have sufficient probable cause to request blood or urine tests. Yet, they often request them. Any refusal to submit to those tests may be inadmissible in court.
Violation of The Twenty Minute Observation Period
FDLE rules require that an officer observe you for twenty minutes prior to administering a breath test. The reason behind this rule is to make reasonably certain that the arrestee does not regurgitate, throw up, burp, or have anything in his mouth or throat prior to administering the breath test. Anything in a person’s mouth immediately prior to a breath test can cause a false reading. For example if a person takes a swig of vodka, does not swallow and just spits it out.
The breathalyzer may give a false high reading for up to 20 minutes. This is called mouth alcohol. Although the machine has a mouth alcohol detector, often the machine will give a false breath reading. If the officer failed to observe you for those 20 minutes prior to the testing your breath test results can be suppressed. For example, many officers like to count the time they took to transport you to the station as part of the 20 minutes.
Actual Physical Control
The state must prove you were in actual physical control. You do not have to be driving the car to be charged with DUI. Being asleep in a parked vehicle can be a basis for a DUI prosecution. We can challenge this type of case and have done so with great success. Did you have an accident? If you were not inside your vehicle when the police arrived it may be impossible for the state to prove you were driving. Many times the state cannot secure the attendance of these witnesses and very often those that do appear cannot identify the Defendant in court.
Motion to Exclude HGN (eye test)
One of the road tests the officer administered to you before you were arrested was the Horizontal Gaze Nystagmus (H.G.N.). Florida Law requires that “There must be a confirmatory blood, breath, or urine test before H.G.N. evidence is admissible.” Cropper v. State, 11th Judicial Circuit, Case # 98-436 AC, Lower Case # 431701 X, Opinion filed February 29, 2000, citing Bowen v. State, 24 Fla. L. Weekly D2709 (3d DCA1999);Faries v. State, 711 So. 2d 597 (Fla. 3d DCA 1998). What that means is if you didn’t blow, the HGN test the officer gave you at the side of the road may be inadmissible in court.
Motion to Suppress BloodTest Results
Florida law and the Constitution of the United States prohibit the police from taking your blood for a DUI investigation unless there has been a death or serious bodily injury and reasonable cause to believe that you were under the influence of alcohol to the extent that your normal faculties are impaired.
Florida Statute Section 316.1933 reads:
“...if a law enforcement officer has probable cause to believe that a motor vehicle driven by or in the actual physical control of a person under the influence of alcoholic beverages, any chemical substances has caused the death or serious bodily injury of a human being, such person shall submit, upon request of a law enforcement officer, to a test of the person’s blood...”
If the State cannot show that there was probable cause that there was a death or serious bodily injury the blood draw is inadmissible.
Illegal Stop of Your Vehicle
Before an officer can stop an individual he must have "founded" or reasonable suspicion that the individual has committed, is committing, or is about to commit a crime. Fla. Stat. 901.151(2). A "mere" or bare suspicion will not suffice. State v. Beja , 451 So.2d 882 (Fla. 4th DCA 1984). In order to stop an automobile and to request ID from its occupants, it is required that the officer have a founded or reasonable suspicion which requires further investigation. Lewis v. State , 337 So.2d 1031 (Fla. 2nd DCA 1976). Any evidence obtained by virtue of an illegal seizure in violation of Florida Statute 901.151(2) and the Fourth and Fourteenth Amendments of the Constitution of the United States is suppressible.
DUI Cases Can Be Won
As your Miami 1st DUI Lawyer who specializes in DUI law, I can provide you with experienced and aggressive defense. I will be as creative as possible to help you win your DUI case. My firm knows how to assist those who have been arrested for their 1st DUI charge and are in need of strong defense. In many cases, I can direct you to an appropriate DUI diversion program to lessen the weight of a DUI. Here are some examples of how our creativity can work for you.
CASE HISTORY #1
Client was asleep in her car in a parking lot. The keys were in the ignition, the car was running and in park.
Police officers woke her up, smelled alcohol on her breath, observed her mumble when she spoke and had difficulty with her balance. When the officers asked her to submit to roadside sobriety tests, she refused and was arrested. She refused the breath test.
In order to prove DUI, Florida law requires the state to establish beyond a reasonable doubt that someone was driving or in actual physical control of a vehicle while under the influence of alcohol to the extent that their normal faculties are impaired. “Actual physical control” is defined as being in or on a vehicle AND having the present capability to operate the vehicle. Because she was asleep in the car, there was no way she could have had the capability to operate the vehicle.
NO DUI CONVICTION
CASE HISTORY #2
Client and friend parked on grassy area off Old Cutler Road in South Miami-Dade. A police officer drove up alongside their car and alleged in his reports that he smelled the sweet odor of marijuana from their car, though he didn’t observe any marijuana. Client tells us he was smoking a clove cigarette. The officer also alleges that the car was parked on the bike path which my client denied.
We confronted the officer in court with several packages of clove cigarettes. He admitted that the smell was consistent with the sweet aroma of marijuana and that might have been what he smelled. We also presented photos of the car in the same spot as well as live testimony from witnesses who observed the car not on the bike path the night of the arrest.
NO DUI CONVICTION
CASE HISTORY #3
Client is a young man, 21 years old, 5’10”, and a very slim 130 pounds. He was arrested on the Rickenbacker Causeway near Key Biscayne. The police officer had the client perform Roadside Sobriety Exercises on the causeway. Client advised us that the wind was gusting, perhaps 20-30 miles an hour and his performance on the exercises was poor as a result.
We obtained Wind Gust Recording Charts from the United States National Climatic Data Center, in Asheville, N.C. which established the gusting wind conditions at that specific location. We established that the test conditions that night were unfair, tainted and the results of the tests could not be used as evidence.
NO DUI CONVICTION