Eric J. Dirga, P.A.

A Florida Lawyer

Criminal Record Expungements, Criminal and Civil Traffic Cases, Suspended Driver's Licenses

733 West Colonial Drive, Orlando 32801 - (407) 841-5555

Florida DUI Frequently Asked Questions

Most people have many questions regarding an arrest for a DUI. For many it is there first encounter with the criminal justice system. I have listed here some questions that seem to recur for people in this situation. If you still have questions or would like to discuss your situation with an attorney please feel free to call anytime.

Let's end the myth - If you are arrested for DUI and Blow 0.000 across the board you will not be "un-arrested" and let go.

Q1. What does law enforcement look for when searching for drunk drivers?

A1. The following is a list of things that the police look for in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:

  • Turning With a Wide Radius
  • Straddling Center of Lane Marker. (I do this late at night on highways if I'm alone for safety)
  • "Appearing to be Drunk" (Classic - how subjective is that!)
  • Almost Striking Object or Vehicle
  • Weaving or Failure to Maintain a Single Lane (There is a lot of case law on this and there are defenses)
  • Driving on Other Than Designated Highway
  • Swerving
  • Speed More Than 10 mph Below Limit
  • Stopping Without Cause in Traffic Lane
  • Following Too Closely
  • Drifting (see Weaving, above)
  • Tires on Center or Lane Marker (same as Weaving, above)
  • Braking Erratically
  • Driving into Opposing or Crossing Traffic
  • Signaling Inconsistent with Driving Actions
  • Slow Response to Traffic Signals
  • Stopping Inappropriately (other than in lane)
  • Turning Abruptly or Illegally
  • Accelerating or Decelerating Rapidly
  • Headlights Off

Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety. However, it is a reason to stop you.

Q2. If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?

A2. You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. Be prepared for the police to tell you that you do not have a right to an attorney - they're wrong. Just politely tell them that you will remain silent (another right) unless your attorney is present. They will probably arrest you but at least you have not given them the noose to hang a DUI on you.

Remember, saying that you had one or two beers may not be factually incriminating (it is not sufficient to cause intoxication (unless the law continues to lower the legal limit) -- and it may explain the odor of alcohol on the breath), however, any admission to drinking will be used against you by the State of Florida to the fullest.

Q3. Do I have a right to an attorney when I'm stopped by an officer and asked to take a field sobriety test?

A3. In Florida, there is no right to speak to an attorney until after you have submitted to blood or breath testing at the station (or have refused to do so). This is because the Government finds it difficult to prove a case when they have no evidence. The Government's solution is to warp your RIGHT to counsel until after YOU HAVE GIVEN THEM the evidence they need to convict you (violating another of your RIGHTS, not to be made a witness against yourself). However, they cannot force you to talk or take the breath test (if there are injuries they may be able to draw your blood without your consent).

Warning: Refusing to take the breath test a second time is a misdemeanor offense in Florida.

Q4. What is the officer looking for during the initial detention at the scene?

A4. The traditional symptoms of intoxication taught at the police academies are:

  • Flushed face
  • Red, watery, glassy and/or bloodshot eyes
  • Odor of alcohol on breath
  • Slurred speech
  • Fumbling with wallet trying to get license
  • Failure to comprehend the officer's questions
  • Staggering when exiting vehicle
  • Swaying/instability on feet
  • Leaning on car for support
  • Combative, argumentative, jovial or other "inappropriate" attitude
  • Soiled, rumpled, disorderly clothing
  • Stumbling while walking
  • Disorientation as to time and place
  • Inability to follow directions

Let me say this - if you are arrested for DUI the police report will list, at a minimum, that your breath had the odor of alcohol, you had red, glassy, and/or bloodshot eyes, and your speech was slurred. This is in every DUI police report.

Q5. What should I do if I'm asked to take field sobriety tests?

A5. There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests. These tests are "designed" to determine if your normal faculties are impaired, however nothing they ask you to do relates to a normal faculty.

Similar to the breath or blood test, where refusal to submit may have serious consequences, a refusal to submit to field sobriety testing (FST) will be allowed into court in an attempt to show consciousness of guilt.

Should you take them? The reality is that officers have usually made up their minds to arrest when they ask you to submit to the FSTs; the tests are simply additional evidence which the suspect inevitably "fails" (remember that the officer giving the FSTs is also the grader!). Thus, in most cases a polite refusal may be appropriate.

Warning: Refusing can result in a longer administrative license suspension.

Q6. Why did the officer make me follow a penlight with my eyes to the left and right?

A6. This is the "horizontal gaze nystagmus" test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the test is not accepted by the medical community, it is not admissible in many states. In Florida, only a law enforcement officer specially trained can testify as to the results of the "horizontal gaze nystagmus" test; all officers can testify to your non-test behavior as they conduct this test. NOTE: Your arrest report will indicate nystagmus at maximum deviation - this is normal for everyone. Why the police list it is a mystery to me.

Q7. Should I agree to take a breath test? What happens if I don't?*

A7. There are four adverse consequences to refusing to submit to a breath or blood test (or urine if neither are available or if drugs are suspected):

  • For first time offenders, your driver's license will be suspended for 12 months rather than six months. The hardship period (when you are not eligible for a restricted license) jumps from 30 days to 90 days.
  • A second refusal, if alleged in the complaint, can be charged as a separate misdemeanor offense.
  • The fact of refusing can be introduced into evidence at trial as evidence of "consciousness of guilt." Of course, the defense is free to offer other reasons for the refusal, such as fear of needles or inability to blow into the machine hard enough.
  • In Seminole County, a refusal will preclude you from possibly being allowed to enter a pretrial diversion program. (The pretrial diversion program is available for those drivers who meet certain criteria and are charged with a simple DUI - no accident or injuries)

Thus, the decision is one of weighing the likelihood of an incriminating breath-alcohol result against the consequences of refusing.

*Currently, in Orange and Osceola Counties the breath test does not come into evidence so taking it has no bad effects. In fact, refusing it in those two counties has worse ramifications.

Q8. Do I have a choice of breath tests? Which should I choose?

A8. No. In Florida law enforcement is restricted in which test they can impose. As the accused you can ask to have your blood tested at your own expense if you submit to law enforcement's test. It is strongly suggested that if you submit to a breath test you immediately ask to have a blood test taken at you own expense.

Q9. The officer never gave me a Miranda warning: Can I get my case dismissed?

A9. No. The officer is supposed to give a 5th Amendment warning after he arrests you and before any questioning. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest. Questions regarding the FSTs or whether you will submit to a breath test have been made "exempt" from 5th and 6th Amendment protections.

Of more consequence in most cases is the failure to advise you of the state's "implied consent" law - that is, your legal obligation to take a chemical test and the results if you refuse. This can effect the suspension of your license.

Q10. What crimes will I be charged with?

A10. The traditional offense is "driving under the influence of alcohol" (DUI), or in some states, "operating while intoxicated" (OWI), or "driving while intoxicated" (DWI). In recent years, however, 48 states have also enacted a second, so-called "per se" offense: driving with an excessive blood-alcohol concentration (either .08% or .10%). In those states, BOTH offenses are charged. Florida does not have these separate offenses but allows the prosecutor to prove its case by either method (normal faculties impaired or BAC greater than or equal to 0.08).

If the case involves a refusal to submit to chemical testing, of course, only the traditional offense will be charged but the refusal will be allowed in as evidence.

Q11. The officer took my license and issued me a citation that suspended my license: How can he do that if I'm presumed innocent?

A11. You're presumed innocent under the law. This will apply in Court. However, law enforcement has pretty much made up their mind once they ask you to submit to field sobriety exercises. If they ask you to do these things, consider yourself going to jail, regardless of what a subsequent breath test result reveals. The law in Florida provides for an immediate administrative suspension and confiscation of the license if you are issued a DUI citation. There is no presumption of innocence with your "privilege" to drive.

WARNING: Be aware of a 10-day deadline for setting a formal review hearing before the Florida DMV to request a hearing on the suspension and to get an extension of the temporary license. Go to my Self Help page for more info.

Q12. Can I represent myself? What can a lawyer do for me?

A12. You can represent yourself -- although it is not a good idea. "Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.

What can a lawyer do? Nothing (or worse) if he is not qualified in this highly specialized field -- no more than a family doctor could help with brain surgery. A qualified attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.

Q13. What is the punishment for drunk driving?

A13. In Florida, a first offense with no "enhancements" (see #14) will involve a fine of about $250-500, a 180-365 day license restriction (in addition to the DMV suspension), attendance at a DUI Counter-attack Class and the Victim Awareness Program, completion of 50 hours (minimum) community service, and probation for 12 months. A short jail sentence may or may not be required; for a second offense, it almost certainly will. Additional punishment may involve ignition interlock devices, AA meetings, and/or impounding of the vehicle.

Q14. What is a sentence "enhancement?"

A14. Florida law increases the punishment in drunk driving cases if certain facts exist. The most common of these is an earlier conviction for the same or a similar offense within five years of the current offense. Other commonly encountered enhancements (which must usually be alleged in the complaint) include:

  • A child (under age 18) was in the car at the time.
  • The driver had a CDL and at the time was driving a commercial vehicle.
  • The blood-alcohol concentration was over .20%.
  • The defendant refused to submit to a breath test.
  • There was property damage or injury.
  • The defendant was under 21 ("zero tolerance" laws commonly require a much lower blood-alcohol level, and impose longer license suspensions).

The existence of serious bodily injury caused by drunk driving elevates the offense to a felony. A death can trigger manslaughter or even, if special circumstances exist, murder charges.

Q15. What is a "rising BAC defense?"

A15. It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING -- not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested.

Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit -- but his actual BAC AT THE TIME OF DRIVING was below.

This defense may cripple the state's reliance on the breath test results, but they still can pursue there case by exhibiting evidence to prove that the driver's "normal faculties were impaired."

Q16. What is "mouth alcohol?"

A16. "Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings.

Q17. What defenses are there in a DUI case?

A17. Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:

  • Driving. Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of some accidents, there are no witnesses to his being the driver of the vehicle.
  • Probable cause. Evidence will be suppressed if the officer did not have legal cause to(a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.
  • Miranda. Incriminating statements may be suppressed if warnings were not given at the appropriate time.
  • Implied consent warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, in some states (including Florida) this may affect admissibility of the test results or refusal -- as well as the license suspension imposed by the motor vehicle department.
  • "Under the influence." The officer's observations and opinions as to intoxication can be questioned -- the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing." Also, witnesses can testify that you appeared to be sober.
  • Blood-alcohol concentration. There exists a wide range of potential problems with blood, breath or urine testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist.
  • Testing during the absorptive phase. The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 30 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results.
  • Retrograde extrapolation. This refers to the requirement that the BAC be "related back" in time from the test to the driving. Again, a number of complex physiological problems are involved here.
  • Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc.
  • License suspension hearings. A number of issues can be raised in the context of an administrative hearing before the state's department of motor vehicles.

To Speak to Eric J Dirga, a Florida Criminal Defense Attorney

I represent people who have been charged with criminal offenses. I defend my clients from misdemeanors and felonies charges. I have been practicing criminal law since 1995. Main locations of practice are in Orlando, Kissimmee, Sanford and surrounding Florida counties. Call (407) 841-5555 to set up a time for a consultation either over the phone or in person.

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