I blew over .08, do I really need an attorney?

Posted October 19th, 2012 by Leah R with No Comments

The longer I practice as a lawyer in Clearwater, the more I realize how indiscriminate DUI arrests are.  Doctors, lawyers, CEOs, factory workers, teachers, laborers, all are subject to the long arm of the law.  In most every case I’ve been a part of, either as a criminal defense lawyer or as a state prosecutor, I have found that the DUI defendant is generally cut from a different cloth than the defendant accused of robbery with a weapon or brutally beating his spouse.  Most DUI clients have little or no prior criminal history and have, for the most part, followed the law throughout their life.  Following with this is the fact that most people arrested for DUI continue to follow the request of law enforcement and ultimately submit to a breath or urine test to measure their blood alcohol level or levels of narcotics in their system.  Finally, the vast majority of those who submit a breath test end up blowing over the legal limit in Florida, .08.  Many people are of the impression that a breath test above the legal limit removes any hope of a reduced charge or beating the DUI charge outright.  This just isn’t true.  Arrest is but the tip of the DUI iceberg.

As with any arrest, a DUI arrest in Florida must be conducted in a fashion so as not to violate an individuals right to be free from illegal search and seizure.  Further, when a breath sample is taken, the DUI officer must ensure that there is substantial compliance with the protocols mandated by Florida law for retrieval of same.  These issues must be reviewed by your attorney and often a good DUI lawyer can find an issue that can either be used as leverage to coax a charge reduction out of the State or if the issue identified is strong enough, a motion to suppress the arrest or breath sample.  These issues must be evaluated as soon as possible as time is of the essence in any DUI with a breath test above .08.

All lawyers have their own methods and protocols to case intake and review.  The first issue I evaluate is whether the officer had proper grounds to stop or detain my client.  In Florida it is necessary to either have probable cause that a driver has committed a civil traffic infraction or reasonable suspicion that a driver is committing a crime.  Without either, an officer can’t just turn on his blue lights, thereby seizing you, without just cause.  An example of one of my cases where this was relevant is State v. TE.  TE was witnessed falling off his motorcycle in the middle of a Pinellas County road by a lady behind him in her car.  Despite TE’s attempts to pick his motorcycle up, he kept dropping it in the road.  The lady called the police to the scene where they made contact with TE who was now standing on the side of the road a few feet from his motorcycle.  Ultimately the investigating officer arrested TE for DUI.  TE later submitted to a breath test and blew .278 and .282, over three times the legal limit in Florida.  I immediately recognized an issue with the arrest in TE’s case and filed a motion to suppress based on the State’s failure to show that TE had been involved in a traffic crash.  Florida case law defines a traffic crash as, “a breaking of pieces by or as if by collision” or “an instance of crashing.”  In order for someone in Florida to be arrested for Driving Under the Influence where a police officer did not see every element of the DUI occur, there must be a traffic crash per Florida Statute 316.645.  I was able to show at the motion hearing that no witness could testify damage occurred from my client dropping his motorcycle in the road and because of that there could be no proof of a traffic crash and ultimately the arrest was found to be unlawful.

If there is no issue with the stop, the next step is to evaluate whether the breath test was given in substantial compliance with the mandate of the law.  Fresh out of the State Attorney’s Office and in my first criminal defense job, I represented a woman who blew a .226 after her DUI arrest.  My client was leaving a convenience store where she made contact with police who warned her about not driving home.  She ignored their requests proceeded to drive and was pulled over.  After refusing field sobriety tests my client was subsequently asked to give a breath test and complied, blowing a .214 and .226.  Upon meeting with my client and an another attorney in that firm, it was decided that we should file a motion to suppress the breath test based on my client being misinformed of the consequences of failing to give a breath test.  At the motion to suppress hearing I was able to get the breath test operating officer to admit that he told my client that should would not be able to drive for a year if she refused the breath test.  I argued this is an incorrect statement of the law as a refusal to give a breath test initiates a suspension of an individual’s unrestricted privilege to drive as the individual can obtain a restricted license in most cases.  In my client’s case, she had no previous DUIs so she would have been eligible for a restricted license.  The Judge agreed with my argument and suppressed the breath test results.  Ultimately my client pled to a reckless driving charge reduction.

In addition to the prospect of dismissal or charge reduction, DUIs are the most complicated misdemeanors out there.  Not only is there a criminal charge involved, there is also administrative law at work.  The Florida Department of Highway Safety and Motor Vehicles will initiate a suspension on an individual’s driver’s license for a breath test above a .08 that can be challenged if the challenge is filed within 10 days of arrest.  These waters are rough but navigable with the right counsel.

All in all, a DUI charge could likely end in a DUI plea.  However, to summarily plea because you feel your case is hopeless is selling yourself short.  As an experienced DUI attorney I would advise everyone to hire a DUI lawyer if it’s feasible.  At minimum you will have a professional helping you through the process and if the facts give rise to it, you may find yourself in a better position than you would have been in had you pled.

The Mayberry Law Firm is a law firm focusing on DUI, Federal and State Criminal Defense, Personal Injury, Medical Malpractice, and Family Law.  If you’re in the need of an attorney please give us a call at 727-771-3847 or email us at info@mayberryfirm.com.

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