Arrested for DUI or Drunk Driving?

Call DUI Attorney Tracey Kagan right away to save your drivers license get your criminal defense case started right away! you can get a free consultation at her Orlando Criminal Defense Law Firm by calling (407) 849-9990.

Florida DUI Charges

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In every state, it is a crime for a driver to operate a vehicle while impaired by the effects of alcohol or drugs. The specific offense may be called driving under the influence (DUI), driving while intoxicated (DWI), operating under the influence (OUI), and even operating a motor vehicle intoxicated (OMVI). Whatever the specific title, DUI laws make it unlawful for a person to operate a car, truck, motorcycle, or commercial vehicle if:

• The driver’s ability to safely operate the vehicle is impaired by the effects of alcohol, illegal drugs, prescribed medications such as painkillers, or even over-the-counter medications such as antihistamines; or
• The driver is intoxicated at a level above established DUI standards, such as blood-alcohol concentration (BAC).

Field Sobriety and Chemical Tests

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When a law enforcement officer makes a vehicle stop and suspects that the driver may be intoxicated, the officer will conduct a field sobriety test on the driver, and may ask for his or her consent to some form of chemical test for intoxication.

Field sobriety tests usually involve a police officer asking a driver to perform a number of tasks that assess any impairment of the person’s physical or cognitive ability. Examples of field sobriety tests include having the driver walk a straight line, heel to toe; having he or she recite the alphabet backwards; and the officer’s use of the “horizontal gaze nystagmus” (eye and penlight) test.

Chemical tests can be conducted during the vehicle stop, using a Breathalyzer that measures a driver’s blood-alcohol concentration (BAC), or at a hospital, where urine and blood tests can be performed. Many states allow a driver suspected of DUI to choose which type of chemical test is administered.

Implied Consent Laws

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All states have implied consent laws that require vehicle drivers to submit to some form of chemical test, such as breath, blood, or urine testing, if suspected of DUI. The logic behind such laws is that, by assuming the privilege of driving a vehicle on state roads and highways, drivers have effectively given their consent to DUI testing when a police officer reasonably believes the driver is under the influence of alcohol or drugs. If a driver refuses to submit to such testing, implied consent laws carry penalties such as mandatory suspension of a driver’s license, usually for six months to a year. Often, license sanctions for test refusal are more harsh than those imposed after DUI test failure. In most states a driver’s refusal to submit to a chemical test may be used to enhance the penalties imposed if he or she is eventually convicted for DUI.

“Per Se” and “Zero Tolerance” DUI Laws

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All states have DUI laws that deem “per se intoxicated” any driver with a blood-alcohol concentration (BAC) above a set limit (now .08 in all states). This means that drivers with a BAC at or above .08 are intoxicated in the eyes of the law, and no additional proof of driving impairment is necessary.

All states also carry “zero tolerance” laws that target drivers under the legal drinking age. These laws penalize persons under 21 for operating a vehicle with any trace of alcohol in their systems (a BAC above 0.0), or with negligible BAC levels such as .01 or .02.

Keep in mind that a driver may still be arrested and convicted for DUI without proof of “per se” intoxication, when other evidence of impaired driving is shown. For example, a driver with a .06 BAC level can be found guilty of DUI if an arresting law enforcement officer testifies that he observed the driver’s vehicle swerving badly, and that the driver exhibited both slurred speech and severe inattention during questioning after a vehicle stop.

DUI Convictions: Criminal Penalties

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A DUI conviction may carry serious criminal penalties including fines, jail time, probation, and community service. Some state laws impose certain minimum penalties for first-time offenses, then designate increased penalties for each DUI offense thereafter. The severity of criminal penalties will vary according to the circumstances of the offense, including:

• Whether the driver has a history of DUI violations;
• Whether the driver was operating a commercial vehicle at the time of the DUI;
• Whether the DUI violation occurred while there was a child in the vehicle;
• Whether the DUI violation occurred simultaneously with another dangerous moving violation, such as reckless driving;
• Whether the DUI violation involved a car accident in which property damage occurred;
• Whether the DUI violation involved a car accident in which another person was injured or killed; and
• Whether the driver was under the legal drinking age at the time of the DUI violation.

Punishments for a DUI Conviction in Florida

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A person who is convicted of drunk driving most likely faces some or all of the following in terms of punishment: a fine; time in jail; suspension, restriction, or revocation of the defendant’s driver’s license; probation; enrollment and completion of a course in drunk driving or alcoholism. In addition to these, states have also developed other penalties or requirements that drunk drivers must fulfill.

One requirement that has become more common throughout the nation involves the use of an ignition-interlock device. Such a device captures a driver’s breath and analyzes the BAC of the driver. The device only allows the driver to start the vehicle when the breath analyzer reads below a certain level, such as .02 percent.

Another form of punishment is the impounding of a drunk driver’s vehicle for a certain period of time. A more serious form of this punishment is the forfeiture of a vehicle, meaning that a court can order the sale of a person’s car after the person has had multiple convictions for drunk driving.

States have also modified their statutes to provide for enhanced sentences under some circumstances. These sentence enhancements may apply when one of the following events occur:

(1) The defendant’s BAC is very high, such as above .20 percent.
(2) The defendant refuses to submit to chemical testing.
(3) The defendant greatly exceeds the speed limit or drives recklessly while drunk.
(4) A child under the age of 14 is in the car when the defendant is driving drunk.
(5) Drunk driving is accompanied with an accident or injury to another person.

Elements of the Offense

Most state laws define crimes of drunk driving as follows: driving a motor vehicle on a road or highway while under the influence of alcohol. Newer statutes also provide for a per se offense, which a person commits when driving a motor vehicle on a road or highway with a blood-alcohol concentration of .08 percent.

Several state statutes require that a defendant was driving a vehicle in order to be convicted of a drunk driving offense. Other states use the terms operating a vehicle or being in physical control of the vehicle. These terms are not normally synonymous, and so it is important to determine how an individual state defines the term in the statute.

A number of issues may arise that relate to the “driving” element of a drunk driving offense. For instance, a person may be in a car but has not turned on the ignition. The question in some cases is whether the person was driving or operating a vehicle or whether the person was using the vehicle as a temporary shelter. Courts in various jurisdictions have identified several factors that may be used to determine whether someone has been driving a vehicle. Some of these include the following:

Field evidence may fall into one of five categories, including the following:

• Testimony regarding the defendant’s unusual driving
• Testimony regarding the defendant’s conduct or physical appearance
• Incriminating statements made by the defendant
• Testimony regarding the defendant’s performance during a field sobriety test
• Tapes, film, and/or photographs taken at the scene where the defendant was driving and/or arrested

Police officers will often look at the defendant’s physical appearance and symptoms of drunk driving in order to determine whether the defendant is intoxicated. The following are some of the more common symptoms of intoxication:

• The defendant’s clothes are disheveled
• The defendant has not shaved or combed his or her hair
• The defendant’s eyes appear to be red, glassy, or bloodshot
• The defendant’s face appears to be flushed
• The defendant’s breath smells like alcohol
• The defendant’s speech is thick and slurred

The defendant’s BAC level will be determined through one of three methods. The most common of these methods involves an analysis of the defendant’s breath. Other tests analyze the blood or urine of the defendant. Refinements in the methods by which a defendant’s BAC is determined have strengthened the ability of prosecutors to prove this BAC. However, these tests are not above reproach, and skilled criminal defense attorneys can often successfully attack the methods by which the defendant’s BAC was analyzed.

If you or a loved one is arrested for a DUI or drunk driving, then Call Orlando DUI Defense Attorney TRACEY KAGAN to get a free legal consultation 24/7 at (407) 849-9990