The information contained in this article is not intended to provide you with legal advice about your specific criminal case. Only a lawyer you hire should make decisions on your behalf. The information I will be discussing is general in nature and applies to most states, however, I am a Tampa criminal defense attorney, so the information is based on that experience.
The Stop:
When you are pulled over by law enforcement, they must be able to establish a valid legal reason for the stop. Many DUI cases are dismissed because the officer did not establish a valid legal stop. There are many reasons for an officer to pull you over, including civil traffic infractions (speed, stop sign, red light, headlight, tail light…) or if he suspects that you are committing a criminal offense (usually DUI).
If the officer suspects you are DUI, he must have reasonable suspicion that you are under the influence of alcohol or drugs. This can occur if the officer sees you swerving in and out of your lane, weaving within your lane, speeding up then slowing down, or any other erratic driving pattern. However, the caselaw on this type of stop is very case specific. Each case has its own set of facts and you must be able to show the judge why your facts don’t rise to the level of reasonable suspicion.
Initial Encounter:
After the officer has made a valid stop, he will come up to your vehicle. They will usually ask for your license and registration. At this point, the officer will probable state that he “could smell the odor of an alcoholic beverage emanating from the drivers breath.” This is the standard language that will be used by most officers in their police reports. Other things they will be looking for include, 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, and inability to follow directions. If they smell alcohol or see other signs, they will ask you to exit your vehicle.
Initial Questioning:
At this point most officer will ask you if you have had anything to drink tonight? DO NOT ANSWER THIS QUESTION! Don’t try to be nice and honest, because the officer will try to use the answer against you in court. They might also ask you where you were coming from, don’t tell them. They cannot arrest you for not answering these type of questions. Some judges have ruled that in order for the officers to ask these initial questions, they must read you your rights.
Field Sobriety Exercises (FSE):
Horizontal gaze nystagmus (HGN)
Police officers typically start off the FSEs by conducting what is called the HGN Test. This is when they take a small light, move it different directions and test your eyes. HGN refers to a lateral or horizontal jerking when the eye gazes to the side. In the impaired driving context, alcohol consumption or consumption of certain other central nervous system depressants, inhalants or phencyclidine, hinders the ability of the brain to correctly control eye muscles, therefore causing the jerk or bounce associated with HGN. As the degree of impairment becomes greater, the jerking or bouncing, i.e. the nystagmus, becomes more pronounced. This is assessed in the horizontal gaze nystagmus test. Most officers are not certified to conduct this exam and testify in court to its results, so it is usually irrelevant.
Walk and TurnThe DUI suspect is instructed to place their left foot on the line, and subsequently place their right foot on the line ahead of their left foot, with the heel of their right foot lined up against toe of their left foot, which must be demonstrated to the suspect undergoing the testing. In the absence of police officer demonstration, the instructions given alone will decrease the validity of the test. They must then take nine heel to toe steps, turn around, and take nine heel to toe steps back to their original starting point. The police officer must demonstrate two or three heel to toe steps for the drunk driving suspect prior to administering the test. One Leg StandThe DUI suspect should be allowed to stand on either leg that they prefer. The suspect is instructed to keep the raised foot about six inches above the ground. While they are in a standing position, they are to count out loud for a duration of 30 seconds, and the police officer will demonstrate the count as "one-one thousandth, "two-one thousandth, etc., all the way to thirty-one thousandth. The suspect is directed to look down at their foot while counting, and throughout the duration of the entire test, while keeping their arms at their sides at all times. They are told to refrain from hopping or swaying while standing. Other TestsThere are a few other test that the officer may use including the finger to nose, alphabet test, and counting test. These tests are usually used if the officer feels he did not have enough to make the arrested based on the first three exercises.
Video of the Field Sobriety Exercises
Most law enforcement agencies tape the DUI exercises and use them as evidence against the accused. However, this can also be your best defense. The video is evidence that the prosecution MUST turn over to you, when you make the request. Many DUI charges are reduced or dismissed because the person looks excellent on the video. And this performance is many times conflicting with what the officer writes in his report.
The Breath Test: Blow or Refuse?
If you get to this point, you are probably under arrest. Many agencies do not have mobile breath alcohol testing devices, so they will make the arrest based on the filed sobriety exercise and then ask you to take the breath test at a central location.
I cannot tell you to always refuse or always take the breath tests. That is a decision that you will need to make on your own. There are advantages and disadvantages to both which I will discuss.
If you refuse to take the breath test, your license will be suspended for a longer period of time. In Florida instead of 6 months for a first DUI, it will be suspended for 12 months. However, if you do refuse, the prosecution cannot tell the jurors in your case that you were over the legal limit of .08. All they can say is that you refused to take the test. But why would someone refuse? Because they were guilty, right? Or because they didn’t trust the machine, were afraid, did not have an attorney to ask what to do, they weren’t going to be “unarrested” if the blew under the legal limit.
If you take the test, and blow over the .08 limit, your license in Florida will only be suspended for 6 months. However, the prosecution will have an easier time proving the case against you. All they need to do is show the jury that you were driving and were over the legal limit. However, if you think you will blow under the limit, then it would be a good idea to take the test, because then it will be very difficult for the prosecution to convince 6 jurors that you were DUI.
Should I hire an attorney?
A DUI can have a damaging effect on your life. Some of the consequences include fines, probation, license suspension, and even jail. The information above may seem like a lot, but that is just a very brief overview of the process. There are many other defenses available to you that you may not know about that an attorney does. Hiring the right attorney is even more important, because if you get the wrong one, you are just wasting your money. I would recommend that the attorney you are going to hire is a former prosecutor. I am not only saying this because I am one, but because they have certain advantages that other attorneys do not. We understand thee system from the opposite side, know what the flaws are in the prosecutions case, and have worked with many of the prosecutors and judges. I am not saying that this will lead to your case getting dismissed, but why not have this advantage.
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About Me: Mustafa Ameen, Esq. is a former prosecutor from Tampa, Florida and is now a Tampa criminal defense attorney. He has handled all types of criminal cases including DUI, driving on suspended license, assault, battery, domestic violence, drug charges including possession of marijuana, cocaine, drug trafficking, violation of probation, misdemeanors and felony charges.
Homepage: http://www.notguiltyfl.com/
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