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Driving while under the Influence

You or a loved one were just arrested for DUI. What happens next?

If you or a loved one was just arrested for a DUI, they will be provided an arraignment following their release from jail. The arraignment date is about thirty (30) days after the date of arrest. At the arraignment, the formal charges will be read and a plea of not guilty is entered by the attorney. The arraignment is not the time or place where a trial occurs. The officer will not be present at the arraignment. This proceeding is more of a formality than a substantive proceeding. As such, a lawyer can waive the arraignment and enter a written plea of not guilty on behalf of the client. Additionally, the lawyer may waive their client's presence for future court dates. This will save the client from taking off work for court dates that are not substantively important in the case.

What are the penalties for a DUI?

A DUI is a very severe crime in the state of Florida. Florida Statutes 316.193 require that if a person pleads guilty or is found guilty of DUI at trial, there is a mandatory conviction. Meaning that a DUI will permanently be on your record and it can never be sealed or expunged, even if that person has a clean record. As if the stigma of a DUI on a record is not enough, a first DUI is punishable by up to six months in jail and a $1,000.00 fine. The penalties for a DUI can also include a driver's license revocation for a minimum of six months, twelve months of probation, community service hours, immobilizing your car, completing DUI school and any recommended treatment, attending a Victim Impact Panel course, an ignition interlock and no possession or consumption of drugs or alcohol. There are DUI enhancement factors that can increase jail time, fine amounts, and the other penalties. These enhancement factors include prior DUIs (2nd DUI, 3rd DUIs, and 4th or more DUIs), high breath alcohol readings, accidents resulting from the DUI, and the presence of children in any of the vehicles involved.

Can a person be arrested for Driving While Under the Influence of drugs?

It is a common thought that a DUI is always alcohol related, but a DUI may also be drug related. If a person is arrested for a drug-related DUI, then the officer will ask for a urine or blood test. A breath test only tests for alcohol content, but urine or blood tests look for drugs. These tests look for illegal drugs as well as legally prescribed medications. A person may be arrested and charged for a DUI even if they only took their prescribed medication. The blood and urine tests do not have a specific legal or illegal limit for drugs like the 0.08 limit for alcohol. This makes it all the more imperative to hire an experienced DUI lawyer.

What if you passed the field sobriety exercises?

Before a person is arrested for DUI, the officer will generally ask the individual to perform a series of sobriety exercises. Contrary to popular belief, these sobriety exercises are not tests. They are not pass or fail, and they are not graded. An officer is not even allowed to refer to them as tests in a courtroom or proclaim that a person failed them. Typically, an officer will describe in general details that an individual performed poorly on the field sobriety exercises. As the name states, these exercises are supposed to help the officer determine whether a person is sober and should be driving. However, the exercises are subjective in nature. There is no objective criteria that requires an office to make an arrest if one performs the exercises poorly.

The general exercises include the pen light task (also known as the Horizontal Gaze Nystagmus task), the walk and turn task, the one-leg stand task, the finger to nose task, and the Romberg alphabet task. Since all of these tasks are subjective, a person may perform well on the exercises, but the officer may disagree and still decide to make an arrest for DUI.

These exercises may or may not be captured on camera. Not all police departments have body-worn cameras and not all police department patrol cars have in-car dash cameras. It is not a requirement that the exercises be recorded on video. If the exercises are not recorded on video, then the testimony of the officer becomes a crucial piece of the case in determining whether a person is guilty of DUI. The officer must be skillfully cross-examined on what he did and did not do and on the observations he made and did not make. A successful cross-examination of the arresting officer in a DUI case can be the difference between a person being convicted or acquitted.

What about your license?

After a person is arrested for a DUI, they are asked to provide a breath sample to determine their blood alcohol content (BAC). The legal limit in Florida is a 0.08. If a person blows a 0.08 or above, their driver's license is suspended for a year being over the legal limit. If a person refuses to blow, their license is suspended for six (6) months.  However, in either situation, you are eligible to challenge the license suspension. There are only ten (10) days to challenge the driver's license suspension. If this deadline is missed, the suspension then becomes effective. During the ten (10) days following the arrest for DUI, the citation you received for the DUI will act as a hardship driver's license. In certain situations, you may be able to obtain a hardship license immediately. A hardship license allows a person with a suspended license to drive for work purposes, doctor office visits, and grocery shopping. An experienced DUI lawyer can help you through the intricacies of driver's license and hardship license issues with the DMV. 

Should you blow into the breath test?

The police do not ask for a person to blow a breath sample until after the individual has been arrested for a DUI. Oddly enough, even if a person blows a breath alcohol level under the legal limit of 0.08, they will not be “un-arrested” or released from jail. The person will remain in jail for at least the next eight (8) hours. 

It is also important to consider that if a person blows a breath alcohol level over 0.15, the individual will be subjected to enhanced penalties for DUI. If a person has previously refused to provide a breath sample and they refuse a second breath sample, they may be charged with a crime for continuing to decline the breath sample.

How long will a DUI case last?

Each case is different, but most DUI cases last between six (6) months and a year.

What is the Reckless Diversion program and are you eligible for it?

Some prosecution offices have started diversion programs for first time DUI offenders. This means that if a person has no prior criminal record, they may be eligible to have the charge of DUI plead down to the lesser charge of Reckless Driving. There are other factors that the prosecution investigates to determine whether to offer a person a diversion program. The prosecutors will examine how high the breath test was and whether there was a crash. Sometimes, a prosecutor is on the fence when deciding to offer diversion. Other times, a prosecutor will not offer diversion initially. A DUI lawyer can bring up issues in the case to the prosecutor's attention to convince them to break the case down from a DUI to Reckless Driving. 

What's the difference between a DUI and Reckless Driving?

Both are criminal offenses, but Reckless Driving is only punishable by a maximum of three (3) months in jail and a maximum $500.00 fine. Another difference is that Reckless Driving does not require a mandatory conviction pursuant to statute like a DUI does. This is an important difference because if a conviction is avoided, it may be possible to expunge the case. Additionally, a DUI is an enhancement-based crime. In other words, the more DUI convictions a person receives, the more severe the penalties a person faces. Reckless Driving penalties do not increase for the more Reckless Driving convictions a person receives.

How much does a DUI lawyer cost?

It depends. The cost of a DUI lawyer can vary as there are some lawyers that are more expensive than others. It will also depend on how you are charged. For instance, a third DUI will be more expensive than a first DUI offense. Additionally, some cases are more complex than others. The lawyer will not know the details and circumstances of your case until they speak with you and review the police reports. We would recommend that you sit down with a lawyer to go over the details of your case so they can give you a better idea of the costs.

What do you look for when hiring a DUI lawyer?

First, find out if the lawyer practices criminal law regularly. A DUI is a technical crime with a tremendous number of nuances. You want an attorney that regularly handles these cases so they can properly advise you regarding driver's license issues and criminal court issues. Additionally, you want your lawyer to know the prosecutors who may be handling the case and the judge who will be presiding over the case. Second, find out how many DUI cases the lawyer has handled and how many DUI trials the lawyer has had. A successful DUI defense lawyer will have handled too many DUI cases and trials to count.

Contact the law firm of Keller, Melchiorre & Walsh at (561)295-5825 if you or a loved one has been charged with a DUI. Click here to read what our clients say about us.

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