Articles Posted in DUI

One of the key pieces of evidence in many criminal Florida DUI cases is the breathalyzer test, typically conducted with a brand of machine known as the “Intoxilyzer.” It is designed to measure a person’s blood-alcohol content by analyzing particles released in one’s breath.

But the science behind the machines has been sketchy, and there have been more than a few successful challenges to admitting this evidence. This can have a profound impact on a case, as evidenced by the recent outcome in a South Florida DUI manslaughter case.

According to news reports, a fatal accident in Bonita Springs in 2011 set off an emotional, four-year legal battle. Much of it was centered on whether the court should allow the results of the driver’s breathalyzer test, which indicated she had a blood-alcohol level of between .138 and .146 – nearly twice the legal limit of .08.
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Although the constitutionality of sobriety checkpoints has been challenged repeatedly across the country, it has consistently been upheld.

That being said, police agencies are held to strict standards regarding how these operations must be carried out.

Those include officers having a valid reason for establishing the checkpoint (high number of DUI arrest or alcohol-related accidents in a certain area). There must also be a specific plan regarding which vehicles will be stopped (i.e., every third car, every other car). Any deviation from that plan must be explained and may be grounds to challenge a subsequent arrest.
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Florida law requires drivers arrested for a DUI to take a breath, urine or blood test if the arrest is lawful and the officer has probable cause to believe you are under the influence of alcohol or drugs. Defendants may be asked to take more than one test and in order to be in compliance with the law, have to agree to all of them.

Refusal to submit to these tests will result in a one-year license suspension for the first-time offense, and that refusal could be used against you in criminal court.

There is much debate about whether refusal to testing actually helps a case. First of all, the license suspension is mandatory, regardless of whether you are later convicted of a Florida DUI. Also, the state is not required to show your blood-alcohol level was 0.08 percent or higher, which the legal limit for 21-and-over drivers. The state can use other circumstantial evidence to secure a conviction, including the fact that you refused the drug or alcohol testing. They might also point to officer observations of glassy eyes, slurred speech, the smell of alcohol or behaviors behind the wheel that might indicate intoxication. It’s worth noting too that in the event of an accident, investigators can force you to undergo alcohol testing involuntarily, so long as they first obtain a warrant signed by a judge for it.
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The case of Coffey v. Shiomoto involved a woman who was arrested for DUI, pleaded guilty to “wet reckless” (a lesser charge available in California, where this case originated) and then fought to have her administrative license suspension vacated.

Similar to what happens in Florida, a person arrested in California for drunk driving will automatically have his or her license suspended. Challenging license suspension is done through the Department of Motor Vehicles.

In this case, what she argued was the theory of rising blood alcohol as a defense. It’s based on the knowledge that there is a time lapse between when someone consumes a drink and when the alcohol from that drink becomes fully absorbed into the body. What this means is that a person may consume alcohol, get in a motor vehicle and be under the legal limit to drive. However, as time wears on, and while they continue to drive, their blood-alcohol may exceed the legal limit.
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For the death of a 6-year-old boy and injuring three others, a 20-year-old Davie man is facing serious felony charges that could send him to the prison for the next 35 years or more.

According to news reports, the suspect, who was 19 at the time of the wreck, had a blood-alcohol level that was 0.21, which is nearly three times the legal limit of 0.08 percent. He was also allegedly driving between 90 and 108 miles per hour on a road with a designated speed limit of 45 miles per hour.

He allegedly changed lanes several times in the moments before the crash. As he approached an intersection, he did not slow at all, and collided with another vehicle shortly before midnight. The 6-year-old was in that other vehicle, in the center of the rear seat.
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Following a Broward Circuit judge’s conviction for driving under the influence in Boca Raton, it was agreed she would suffer additional sanctions.

Those included a 20-day, unpaid suspension from the bench, a public reprimand and a $5,000 fine As well, she must undergo an evaluation for alcohol abuse and addiction and has to complete any recommended treatment, per the contract she holds with the Florida Lawyers Assistance Program. The Florida Judicial Qualifications Commission gave the judge 20 days to file a formal response to those recommendations, which are then forwarded to the Florida Supreme Court for final approval or rejection.

The decision stems from a conviction several months ago on two misdemeanor counts – driving under the influence of alcohol and reckless driving. Defendant judge was sentenced to house arrest for 20 days, and then one year of probation. Although this is the second DUI conviction the judge has received, the panel held the incidents were not reflective of her work, considering the first arrest occurred in 1988. Additionally, the panel found the most recent arrest did not affect her work on the bench, as her colleagues continue to hold her in high regard.
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In the last handful of years, state lawmakers have handed down increasingly tougher laws pertaining to leaving the scene of a crash – particularly when it involves a fatal crash. Those efforts include a measure last year that increased the penalty for leaving the scene of a deadly crash to a minimum mandatory four years in prison, same as what a defendant would receive for DUI manslaughter.

However, a recent Florida Supreme Court decision slightly turns the tables back in favor of defendants. The case is Florida v. Dorsett, and what the court ruled is that prosecutors have to show defendant had “actual knowledge” of a crash in order to secure a conviction for hit-and-run.

This new hurdle to prosecution is based on the principle that a driver can’t intentionally leave the scene of a crash he doesn’t know has occurred.
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A defendant in a DUI manslaughter case was five months pregnant with her fourth child when she received a sentence of 15 years for killing a pregnant woman outside a hotel in Fort Lauderdale three years ago.

Family members of the decedent, who was seven months pregnant with a son at the time of her death, called defendant’s decision to get pregnant with the criminal trial pending an act of manipulation intended to curry favor with the judge.

If that was the intention, it doesn’t seem to have been effective. Prosecutors sought 20 years for the crash, in which both mother and unborn child were killed. The judge handed down a sentence of 15 years, followed by 15 years of probation plus a permanent loss of driver’s license.
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Police officers swear the eyes never lie, at least when it comes to the horizontal gaze nystagmus exam.

The test is routinely used by police officers who suspect a driver is drunk as part of the field sobriety exam. It involves having a suspect follow a small object, such as a pen, with their eyes as the officer slowly moves it horizontally in front of them. The suspect is asked to do so without moving his or her head.

What the officer watches for is an involuntary jerking of the eyes, which is referred to as a nystagmus.
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DUI checkpoints occur nearly every day across the country, and up to several times a week in Florida. While some states refuse to allow them, sobriety checkpoints have been deemed constitutional by the U.S. Supreme Court and the Florida Supreme Court. Still, they continue to raise the ire of some drivers who insist they are an infringement on their liberties.

It was in this vein that a series of complied videos shot in recent Florida checkpoints went viral.

The clips show drivers approaching a DUI checkpoint. Each have a document placed in a clear, sealed bag outside that hangs outside their driver’s side window.

The document has the following text: “I remain silent. No searches. I want my lawyer.” The sign further instructs officers to place any citation under the windshield wiper. As the driver is neither required to sign a ticket or physically hand the officer his or her license, the note instructs officers the driver will not roll down the window. However, the paper does indicate, “I will comply with clearly-stated lawful orders.”
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