According to Florida DUI law, after a DUI conviction, drivers are permitted to have limited and restricted driving privileges in some circumstances. It's important to remember both the court & DHSMV imposed suspension, so restrictions may differ in time and scope.
A Florida DHSMV suspension may take place as part of Florida's Administrative DUI Suspension law. This law as first enacted in 1990, and was one of the first of its kind in the U.S.
After a DUI arrest in Florida, a driver's license will be suspended for 6 months after a breath test over .08 or for 12 months if the driver refuses to submit to a breath, blood or urine test.
The driver has 10 days to either file a request for a Formal Review Hearing to challenge the legality of the suspension or a Review of Eligibility for a Business Purposes Only permit.
The Formal Review may result in an invalidation or sustaining of the suspension. If the suspension is sustained the driver will suffer a 30-day-no-driving period for a breath test case or a 90-day-no- driving period in the case of a refusal.
In either case, the driver can apply for the business permit after they have enrolled in an approved substance abuse education class.
A previous suspension for refusal will result in an 18 month suspension, with no business permit, however.
Florida courts must suspend a driver license after a DUI conviction. A first DUI conviction will result in a minimum 6 month suspension, up to one year. The defendant may be eligible for a business permit after completion of a substance abuse class, and must complete any treatment they require after an evaluation. A prior DUI conviction will make the driver ineligible for any permit for a minimum of one year for a 5 year suspension or 2 years on a 10 year suspension.
If you have been convicted of DUI and want to get a limited license, then please call my office to discuss your case!
There's a growing, and necessary, trend for lawyers to focus on a narrow area of law. That type of focus and specialization can offer clients the most effective representation for their case. Tough DUI laws and aggressive police tactics require top-level training in DUI defense practice, though.
There is a road map for becoming the best type of DUI lawyer. It requires discipline, effort, dedication and a genuine passion to focus on that area of criminal defense practice.
The most effective DUI lawyer is someone who makes the commitment to practice almost exclusively in DUI defense. A lawyer who takes on Divorces and Real Estate Closings and Personal Injury Cases absolutely cannot be effective doing all of those things at a high level. A "Jack of all trades, Master of none" cannot provide the type of DUI defense these cases require. Even criminal lawyers who defend murders and drug cases are not the best-suited to take on a DUI case. A plastic surgeon and a cardiologist are both skilled doctors, but you wouldn't ask the cardiologist to perform a face-lift, would you?
The most effective DUI lawyer will attend seminars on DUI practice, join organizations like the National College for DUI Defense, study scientific literature, frequently speak on DUI-related topics. That lawyer will know what evidence to gather from the prosecution, the crime labs, the DMV and from the crime scene itself. The most effective DUI lawyer will know what to look for and know where and how to get it.
The most effective DUI lawyer is someone who will charge a good fee for their work. Traffic "ticket defense teams" and volume law practices cannot, and don't, provide the level of attention needed to properly and effectively defend a DUI case. Even law firms with several lawyers shouldn't hand off their client's cases to whoever is available in court that day.
In counties like Miami-Dade, the case number starts with a letter. F is felony, and M is misdemeanor. You can look at the case number to know whether you are charged with one or the other. Follow this link to the Miami-Dade County Clerk online record search page. In other counties in Florida, there may be a combination of letters like CF or MM.
There are some crimes that are initially charged as a felony, but the crime could be charged as either a misdemeanor or felony, such as DUI. Your criminal lawyer should be contacted to get information about your specific charges and what can be done to either get the charges reduced or dismissed, or what the chances are for achieving an acquittal at trial.
Although a misdemeanor is far less serious than a felony, the penalties imposed by the court often include jail time (up to 12 months) and a long period of probation. If you already have been convicted of a similar misdemeanor, the prosecutor may decide to file felony charges rather than misdemeanor.
Being caught in the criminal justice system is extremely dangerous, no matter what level the charges. Your first step should be to get legal representation. The system is geared to convict, and your life could take a serious turn for the worse if you are not represented by a qualified defense lawyer. The lawyer protects your rights as a defendant, negotiates to reduce a felony charge to a misdemeanor when possible, and is who stands between you and the serious consequences that could take place if you are not professionally defended.
According to Florida Law, any person who accepts the privilege of operating a motor vehicle consents to submit to an approved chemical test to check for illegal alcohol content or the presence of a controlled substance. Authorities use a breath or blood test for alcohol and a urine/blood test for drugs.
There is no requirement that the person must submit and register a breath alcohol reading. (Florida Implied Consent Law) This is significant, since the state will attempt to offer evidence of "refusal" at trial, and will be damaging as the state will argue that the refusal constituted consciousness of guilt. As any other evidence, the admissibility of it is judged by the standards of the following:
relevancy
reliability
accuracy
probative value
A defendant is not required to submit repeatedly to breath test analysis until he or she provides a satisfactory result or try to urinate in a cup if she honestly can't do it. All that is required is to submit to the best of his or her ability. It's for this reason that many courts across the country that all that is required by law is that the subject submit to the test, not pass or fail it, if in fact the defendant legitimately attempted to take the test and could not do so for medical, physical or mechanical reasons.
If you submitted to a breath test and weren't able to produce a result, then contact my office for a free consultation. I am an experienced DUI attorney in Miami who has defended thousands of people who have been wrongfully accused.
Missouri v. McNeely was decided earlier this year. The Supreme Court of the United States affirmed the judgment of the Missouri Supreme Court holding, that in a DUI investigation, "the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant."
What that means for the average person is that a police officer cannot hold you down while he sticks a needle into your arm to take your blood by force, at least not without a warrant. If the Court ruled differently officers might could have begun routinely taking blood by force if the person refused to submit to a breath test.
The attorney who represented McNeely, Steven Shapiro, offered his opinion: "We know from experience that drunk-driving laws can be strictly enforced without abandoning constitutional rights. Today's decision appropriately recognizes what half the states have already demonstrated – that maintaining highway safety does not require sacrificing personal privacy."
I came across a video posted by Justin McShane, a DUI attorney in Harrisburg, Pennsylvania, showing what happens during weekend DUI saturation event when the arresting officer wanted blood.
In Florida, however, police officers cannot get a warrant to take blood after a person suspected of a misdemeanor DUI refuses to submit to breath or urine testing. What does result is the following:
A "refusal" can be used against the person at trial as consciousness of guilt
A second refusal can is an additional criminal offense (up to 12 months in jail)
A one year administrative suspension of driving privileges, even if they are found not guilty at trial. Eighteen months for a second refusal.
If your blood was drawn without your consent after a DUI arrest, then please contact my office to discuss your case.
This scene is played out every day, all across the country. Drivers are stopped and arrested for DUI and read their Miranda warnings, either on the road or at the station. People are told they have the right to remain silent and they have the right to speak with an attorney and to have one present before any questioning takes place. Then, the officer questions them about whether they will agree to a breath, urine or blood test.
So, you think, "He just told me I have the right to remain silent and not incriminate myself, and that I could have a lawyer, why should I agree to take a test before talking to a lawyer?" Next, you ask the officer to call your attorney to help you decide if you should take the tests. But, he says you're not entitled to a lawyer before making that decision. Now you're confused.
State's laws about refusal to submit to testing vary around the country. In all states, though, there is an immediate license suspension for refusal, often for a longer period than if you take the test and blow over the limit. In Florida, for example, a second or subsequent refusal can result in an additional criminal charge. Florida, and most other states, permits prosecutors to argue that your refusal demonstrates consciousness of guilt to a jury.
This scenario has led to a judicially created "confusion doctrine". Think of the three very confusing things presented to a DUI suspect: 1) You have the right to remain silent and don't have to say anything that may incriminate you, 2) You can talk to an attorney and 3) You have to decide whether to take a testwhich might be incriminating without being able to talk to an attorney.
Some judges will prohibit the introduction of "refusal" evidence if they find that the officer created a genuine confusion on the defendant's part that he could lawfully refuse to answer any questions after invoking his Miranda rights.
What is really going on here?
Breath testing laws around the country are based on the notion that driving is a privilege, not a right, and that your consent to take a chemical test is "implied". However, the "right to remain silent" only protects people from police questioning while in custody - not from giving the police physical evidence. So, while some states afford the "right to counsel' after an arrest, that right isn't afforded until after the police are done with you.
In most cases, DUI processing takes a few hours and police want to get their paperwork done, get you booked and get back on the road. So, telling you that you have the right to speak with an attorney is mostly hollow. It's the 'right to a lawyer when I'm ready" exception to the constitution.
The bottom line is that thinking you can speak to a lawyer after a DUI arrest may be a mistake on your part.
Social media websites present a new battleground for discovery disclosures and present ethical implications for attorneys. Clients need to be informed about the risk that social media can pose to them without overstepping the boundaries of ethical behavior.
Evidence and Social Media
Although it seems like an ordinary reaction to most social media blunders, it is unethical misconduct to suggest to your client that they remove something on their Facebook page, or other social media sites. An ounce of prevention is worth a pound of cure: make sure your clients know the risks and dangers of using social media and broadcasting their opinions on the case before they start using it. Even telling clients to set posts they have put online as private may be seen as a deliberate attempt to hide evidence.
Attempting to acquire evidence using social media without disclosing your identity, or failing to tell the person you are acquiring the data why you want it, may be considered "phishing" and is illegal under current law. All data accounts you use in any professional capacity need to have your name on them.
Florida's Rulings
In Florida, electronically stored information is discoverable, but information that is "not reasonably accessible" isn't discoverable unless you have good cause. If you or your client are convinced that evidenced that is crucial to your case can be discovered, you can request the production of evidence and specify the file format.
If your client has information behind a wall online (such as a post made exclusive to certain friends or associates) then it is recommended that you move for a protective order to keep the court out of your client's hidden posts. If you can get an agreement from the other party to keep social media out of the courtroom, you can come out ahead.
A recent appellate decision has suggested that there are limits as to what can be considered discoverable, especially in the case of wrongful death suits and personal injury suits. The Second District Court of Appeal found that discovery requests can only hone in on matters that specifically pertain to the case at hand. It is, therefore, hard to build a case based on the idea that someone may have been negligent or otherwise caused their own accident, or that they weren't experiencing the psychological toll they might have told the court they had, using social media.
The more slippery slope may be in criminal context. An attorney should be very careful when advising a client about posts made on social media sites, particularly when a client may have made admissions on line, or posted photographs or status updates that could be deemed evidence in the case.
Here is an example of such a post from a 2013 homicide in Miami-Dade County:
The National Highway Traffic Safety Administration collects statistics on impaired driving and publishes them for use by government agencies, law enforcement and the public.
According to a NHTSA report, 1 in 3 people will have their lives touched by a DUI-related incident, whether as a victim, witness or offender. The report also went on to conclude that men are twice as likely than women to have a blood alcohol content over .08, in cases of fatal motor vehicle crashes.
Underage drinkers, children and teens are particularly vulnerable, historically. During 2002, about twenty-five percent of fatal accidents involved teens aged 15 to 20 who had been drinking alcohol. Staggeringly, about 22% of crashes in which children died, involved alcohol.
Ten years later NHTSA's updated statistics paint an even bleaker picture for younger drivers, despite the fact that fatal alcohol-related crashes overall have been on a steady decline. The most vulnerable age group for fatal DUI crashes is the 21-24 year-olds. Thirty Two percent of those drivers involved in fatal crashes had a BAC over .08.
A significant number of my clients fall into the 18-25 age range. Many are college students coming back from a night out on South Beach or a football game. This group is particularly susceptible to DUI arrests for several reasons: Group pressure to drink or do drugs in excess, poor judgment /decision making and lack of driving experience.
Interestingly, texting while driving is six times more dangerous than driving under the influence of alcohol. NHTSA studies reflect that texting takes a driver’s eyes off the road for about five seconds. At 55 mph, imagine driving a regulation American football field with your eyes closed.
Teen drivers are the most vulnerable to this behavior. According to NHTSA's 2009 studies, over 15 percent of teen drivers involved in fatal crashes were reported to have been distracted and texting has replaced drunk driving as the leading cause of accidents.
The responsibility rests on parents to speak to their kids about these dangers and to formulate a contract with them, such as the one below, to make the family accountable to each other for responsible driving behaviors.
Parent-Teen Driving Contract
DISTRACTED DRIVING: In 2011, for drivers 15-19 years old involved in fatal crashes, 21 percent of the distracted drivers were distracted by the use of cell phones.
DUI laws around the country have been enforced against people riding golf carts, motorized bar stools, Zamboni ice cleaners and horses. Those cases have been prosecuted and won because the facts fell into some convoluted definition of "vehicle" or "conveyance" or "vessel". And, either a judge or jury bought the argument.
In Alaska - land of nature, wildlife, freedom and Sarah Palin - a man was arrested and charged for "driving under the influence of alcohol, floating in a raft on a river through Fairbanks". There are a few ways to look at these types of cases. First, does the object you are "in or on" constitute a vehicle? Second, could you really hurt yourself or someone else in it, even if your BAC was over the legal limit?
In Alaska, many people get around by boat and the waterways are an essential means of transportation. Their DUI statute reads:
"[a] person commits the crime of driving while under the influence of an alcoholic beverage, inhalant, or controlled substance if the person operates or drives a motor vehicle or operates an aircraft or a watercraft while under the influence of alcohol".
The law also goes on to define "operating a watercraft" as "navigate a vessel for means of transportation on water". Floating in a raft on a river is not "navigating", it's floating. If by navigating they want to include my hands used to steer my inflatable raft, then lock me up.
For more information about my firm Jonathan Blecher, P.A. and my qualifications, please visit my website www.duilawdefense.com.
According to statistics from the Miami Beach Police Department, the total number of arrests on the Beach are nearly half of what they were during last year's "Urban Weekend". Sgt. Bobby Hernandez, a Miami Beach PD spokesman, thinks that a combination of education and community outreach to visitors as well a shift in police tactics are the main causes for the decrease.
Chilling Effect on Chilling for the Weekend
In past years, MBPD conducted "license plate checks", as seen above, on the causeways leading to and from the Beach, slowing down traffic and making it otherwise uncomfortable to get to the scene. This year's efforts included highly-visible CCTV cameras at main locations, and street-level ambassadors preaching chill. Combine that with the well-traveled word that troublemakers WILL get a skull-bashing and go to jail as well as a wild-west shootout on Washington Avenue in 2011 might have had something to do with it.
Here are the stats from the MBPD:
2014 Total Arrests: 191 Arrests by Race: 118 black males, 58 white males, 9 black females, 6 white females Felony Arrests: 41 Felonies by Crime: 17 drugs, 15 "other felonies," 4 battery on a police officer, 2 aggravated battery, 1 aggravated assault, one robbery, 1 "CCF" - carrying a concealed firearm Total Calls for Service: 1,685 2013 Total Arrests: 357 Arrests by Race: 207 black males, 108 white males, 23 black females, 19 white females Felony Arrests: 65 Felonies by Crime: 3 aggravated assault, 4 CCF, 28 drugs, 6 battery on a PO, 24 "other felonies" Total Calls for Service: 2,075 For more information about my firm Jonathan Blecher, P.A. and my qualifications, please visit my website www.duilawdefense.com.
