Driving Under The Influence Of An Alcohol Or Chemical Substance
Being charged with a DUI is a serious offense. It is very important to secure legal representation immediately to avoid losing your license, paying large fines, or going to jail. If you or someone you know has been charged with a DUI or other traffic charge in Dade, Broward, Palm Beach, Martin and Saint Lucie Counties, please contact the Law Office of Roger P. Foley. Our Office provides a free DUI case evaluation. We will listen to the particular facts surrounding your arrest and assess the possible defenses of the case with you. We are fast and hard working, once retained our office will immediately begin preparing the necessary research and documentation so that your case is handled properly. We understand that you’re placing your confidence in our firm and we aim to make sure your rights are protected and that you get a quality defense.
Defending Your DUI Case:
When you are arrested for a DUI in Florida, you have two matters that need to be addressed:
In the criminal portion of your case, the State of Florida may file formal charges (An Information) against you for violation of Florida Statute § 316.193. If you are charged criminally with Driving Under the Influence you face a number of possible penalties including imprisonment, probation, fines, restitution, community service, mandatory DUI classes or substance abuse counseling, immobilization of your vehicle and more.
In addition to any criminal charges against you, the Department of Motor Vehicle (DMV) may impose administrative sanctions restricting or revoking your license, even before the criminal portion of your case has been settled. For example, your driver’s license will be suspended for 6 months if you blew a .08 or higher on the breath machine. If you refused to submit to a breath, blood, or urine test you will have your driver’s license suspended for 1 year, and if it is the second time refusing these tests then your driving priveleges will be suspended for 18 months. These suspensions will occur automatically if a Formal Review Hearing is not requested within 10 days of arrest. The opportunity for the defendant to prevent an administrative suspension can only occur if a request for a Formal Review Hearing is properly filed. If the request is filed in a timely manner, the individual charged with DUI will be issued a temporary permit to drive. Upon winning the Formal Review Hearing your driving privileges will be reinstated. Contact us immediately so our firm can prepare and file the necessary paperwork for you to have a Formal Review Hearing – it’s your right!
Bottom Line: Contact us within 10 days of your and our firm will get you a temporary permit to drive while we challenge the administrative suspension of your driver’s license. Having a valid driver’s license prior to the DUI arrest is necessary to obtain a temporary permit from the DMV.
Driving Under the Influence / Driving While Intoxicated- The Road Side Exercises, A.K.A Field Sobriety Exercises
Generally speaking what are Field Sobriety Tests?
They are not really tests but rather agility exercises that are highly subjective. In my opinion, these so-called tests are designed for failure. These tests/exercises were created to simulate and evaluate your “divided attention” abilities, skills that are necessary in driving an automobile. Unfortunately, there are many people who cannot perform these exercises, for many reasons not related to alcohol or chemical impairment, to the satisfaction of a police officer and are placed under arrest for DUI.
Do I have to submit to Field Sobriety Exercises?
No! Absolutely not! These exercises are voluntary! Unfortunately when a policeman requests that you do the exercises he will nearly always fail to inform you that they are voluntary. The police use these tests as evidence, however subjective, to substantiate your arrest. These exercises will be used against you in both a Court of Law and at the Department of Motor Vehicles. Remember your rights! You may politely refuse to perform the exercises. When you refuse the police will likely state, “Sir/Madam if you fail to perform said exercises I will have to arrest you based on my current observations of you.” You’re likely to be arrested anyway, so not making a fool of yourself on video or in the officer’s arrest report will likely be beneficial to your case. It is very difficult for the State to prosecute you criminally without evidence. Remember, performing the exercises and submitting to a breathalyzer is the evidence the state uses against you in court. Note: Refusing the breath test can have administrative consequences: usually a suspension of your driving privileges but that can be challenged too!
What is the difference between Field Sobriety Tests and Standardized Field Sobriety Tests?
When you are confronted by police to submit to these tests, you should understand that these tests are highly subjective and only three (3) of these tests have been accepted in the “scientific community.” Police often give additional tests but these tests are less reliable than the already subjective and unreliable “standardized” or “accepted” tests given to detect alcohol or chemical impairment.
What are the Standardized Field Sobriety Tests/Exercises?
First is the Nystagmus test (Horizontal and Vertical Gaze): The police officer will position an object, usually a lighted pen, 12-15 inches away from the subject’s face, and move the object from side to side while monitoring the subject’s eyes. The subject is told to follow the object with his/her eyes only and not to move their head, meanwhile, the police officer determines whether there is any involuntary jerking of the eyeball. Jerking or trembling may be a sign that the subject is under the influence of drugs or alcohol. The jerking or involuntary movement of the eyes while tracking the pen is also indicative of medical and physiological disorders other than alcohol and or chemical impairment.
Second, is the Walk and Turn Test: The subject is required to take nine (9) heel-to-toe steps while balancing on a marked or imaginary line, turning in a particular manner, and returning to the starting position by taking (9) nine heel-to-toe steps back along the same line. While performing this exercise the police officer determines whether:
Remember, whether the subject passes or fails depends only on the opinion of the officer, therefore, two different officers administering the same test to the same individual can have differing results. Are you willing to rely on an officer’s subjective opinion as to whether you’re impaired?
The Third and final test is the One Leg Stand: The subject is instructed to stand with their feet together, arms down at their side, and then told to raise either leg, left or right, (their choice) six inches off the ground while counting out loud until the police officer tells them to stop. In this test, the police officer determines whether:
Again, whether the subject passes or fails the test is determined solely by the officer administering the test.
What are the other Field Sobriety Tests/Exercises?
Rhomberg Balance Test: The subject is instructed to stand still with his/her hands at their side, feet together, close their eyes, tilt his/her head back, and estimates the passage of 30 seconds. The police officer in this test is attempting to determine whether:
Finger to Nose: The subject is instructed to stand with their feet together and eyes closed while holding their arms horizontally to their side and alternately bringing their index finger to the tip of their nose. The police officer indicates “left” or “right” while the subject alternates hands accordingly. In this test, the police officer is looking to see if:
Keep in mind that a skilled Florida Criminal/DUI lawyer will know how to handle Field Sobriety Tests in court so to better represent you in your DUI case. Attorney Roger P. Foley and his staff are well versed in the Standardized Field Sobriety Tests/Exercises and their unreliability. Each and every test, as well as, the police officers administering the tests, have flaws and Mr. Foley aims to point them out to each and every juror in trial. Through cross examination of witnesses, a skilled attorney can demonstrate numerous reasons that these tests are unreliable and should not be considered reliable proof of impairment.
If you or someone you know is charged with Driving Under the Influence (DUI), contact Mr. Foley immediately for a free consultation. Mr. Foley will answer your questions and develop a course of action in your case. Time is critical so don’t delay.
The Law Office of Roger P. Foley handles cases in Miami-Dade, Broward, Palm Beach, Martin, and Saint Lucie Counties.
Most Current Information, but subject to change at any time.
|1st Offense||2nd Offense within 5 years of prior conviction||2nd Offense outside 5 years of prior conviction||3rd Offense within 10 years of prior conviction||3rd Offense outside 10 years of prior conviction||4th or Subsequent Conviction|
|Adjudication of Guilt (Conviction)||Mandatory||Mandatory||Mandatory||Mandatory||Mandatory||Mandatory|
|Jail||0-180 Days||10-270 Days||0-270 Days||30-364 Days||0-364 Days||0-364 Days|
|Jail (Enhanced)*||0-270 Days||10-364 Days||0-364 Days||30-364 Days||0-364 Days||0-364 Days|
|Fine (Enhanced)*||$1,000-$2,000||$2,000-$4,000||$2,000-$4,000||$4,000 minimum||$4,000 minimum||$4,000 minimum|
|Monthly Reporting Probation||Up to 12 Months||Up to 12 Months||Up to 12 Months||Up to 12 Months||Up to 12 Months||Up to 12 Months|
| Driver’s License/ Priviledge Suspension
|Community Service Hours||50 Hours||Not Mandatory||Not Mandatory||Not Mandatory||Not Mandatory||Not Mandatory|
|DUI Substance Abuse Course||Mandatory||Mandatory||Mandatory||Mandatory||Mandatory||Mandatory|
|Vehicle Immobilization for the vehicle the defendant was operating or a vehicle registered to the defendant||10 Days Minimum||30 Days Minimum||10 Days Minimum||90 Days Minimum||10 Days Minimum||90 Days Minimum|
| Interlock Device
for all vehicles individually or jointly leased or owned by the defendant and routinely operated by the defendant
|Not Mandatory||1 Year Minimum||1 Year Minimum||2 Years Minimum||2 Years Minimum||2 Years Minimum|
| Interlock Device (Enhanced)*
for all vehicles individually or jointly leased or owned by the defendant and routinely operated by the defendant
|6 Month Minimum||2 Years Minimum||2 Years Minimum||2 Years Minimum||2 Years Minimum||2 Years Minimum
[As of July 1, 2010:
5 Years Minimum]
|* An offense is considered “Enhanced” above when the defendant is charged with having a breath or blood alcohol level of .15 or above for offenses committed on or after October 1, 2008, a breath or blood alcohol level of .20 or above for offenses committed prior to October 1, 2008, or being accompanied in the motor vehicle or vessel by a person under the age of 18 years old.|
|The above minimum fines apply to offenses that occured on or after July 1, 2008. For offenses that occurred prior to July 1, 2008, the fines are one half of those stated above.|
|If the offense charges causing damage to the person or property of another, the defendant commits a Misdemeanor of the First Degree, and can be sentenced from 0 to 1 year in jail, 0 to 12 months or probation, and up to a $1,000 fine.|