Can a DUI Conviction Affect Child Custody?

If you were recently arrested for DUI and child custody is an issue, you may be wondering if a DUI conviction could have an impact on child custody, and understandably so!

Are you worried that if your children’s other parent learns of your DUI, that they will use this as an opportunity to gain custody? Unfortunately, a DUI conviction can have a bearing on child custody proceedings but it all depends on the facts of the case.

Why a DUI Could Pose a Problem

In theory, each child custody case boils down to the best interests of the children. Because good moral character is relevant to this determination, anyone with a criminal conviction may find a DUI a major factor in any subsequent child custody proceeding.

The court will consider the following factors:

• The criminal history of both parents
• The nature of the criminal offense
• Your blood alcohol concentration (BAC) at the time of arrest
• If your child was in the vehicle with you
• The age of the DUI conviction
• If there were other aggravating factors (e.g. if someone was hurt or killed)
• If you have multiple criminal convictions

Even though a DUI conviction is not a crime of violence, any drug or alcohol-related conviction can impact a child custody case. This is because family law judges view driving under the influence as reckless behavior that endangers minor children.

If the DUI conviction is old, you can present evidence proving that it was an isolated event. The judge’s focus will then shift on present day circumstances. In contrast, a recent DUI conviction shows poor judgment or dangerous behavior and will be more difficult to overcome in a child custody proceeding.

If you are sentenced to jail, especially for a second or subsequent DUI offense, the court will be concerned over how a sentence will create a stability issue for your children.

Generally, the family courts don’t like it when a child has to bounce around from relative to relative while you’re in jail. If your child’s other parent can establish that they can provide a stable environment, then your ex has a better chance of gaining full custody.

If the custody battle is close, a DUI conviction can be the final factor that tips the scales in your ex’s favor.

If you are facing DUI charges in Miami and are concerned about how a DUI conviction would impact your child custody case, contact me, Jonathan Blecher to work with a former prosecutor with over 30 years of experience!

Implied Consent Laws in Florida

Once you have received your driver’s license and signed your name,  you have agreed to abide by Florida’s Implied Consent Law. This law provides that, as part of using your privilege to drive, you consent to a blood, breath, or urine test to indicate your blood alcohol content or drug content at the time you were driving. If an accused driver refuses to take a BAC test, the Department of Highway Safety and Motor Vehicles (DHSMV) in Florida will take immediate administrative actions against their license.

What should I know about implied consent?

When a driver is stopped for DUI, a police officer may ask them to submit to preliminary tests. These are roadside sobriety tests, which will work to examine the motor skills of the driver and see if they match with the known motor impairments of someone with an elevated BAC. An officer may also ask you to take a breath test on the side of the road. Unless you have been formally placed in custody for driving under the influence, you can politely refuse to take any of these tests.

Any testing of BAC that occurs after a formal arrest is legally mandated. You can find yourself facing:

• 1 year license suspension for a first refusal
• 18 month license suspension for a second or subsequent refusal

The license suspension is action automatically taken by the DHSMV. When you go to court to fight against these accusations, refusing to take a BAC test while in custody can be used as evidence against you.

A driver that has been stopped for DUI must make every attempt to minimize the evidence against them. It is generally recommended that, unless you are completely sober, you refuse to take the test offered before your arrest. Be aware, however, that a second refusal could be charged as a first degree misdemeanor. Working with a skilled DUI defense attorney can help apply one of the many defenses to debunk breath test evidence, perhaps even getting the charges against you eliminated.

If you are wondering how you may be affected by a mandatory BAC test under Florida’s implied consent law, Attorney Jonathan Blecher can help. Contact the firm for a free initial case consultation and begin your defense against your DUI charges.

Horizontal Gaze Nystagmus Test

The Horizontal Gaze Nystagmus (HGN) test is a field sobriety test used by law enforcement to determine whether or not a suspected driver is under the influence of alcohol. The test involves an officer asking a driver to follow some stimulus, usually a pen, with their eyes to the left and right. The officer will then determine when the eye begins involuntarily jerking, or exhibiting nystagmus. While all eyes experience this involuntary twitch when looking at a significant angle, those with higher blood alcohol levels begin twitching sooner. According to the National Highway Transportation Safety Administration, HGN tests are 77% reliable in determining whether or not a driver’s BAC is above .10%.

How does an officer determine nystagmus?

A HGN test cannot confirm or deny the amount of alcohol that a suspected driver may have in their system, but indicates to the police officer that there may be some level of impairment present.

When testing HGN, an officer will check for the following questions:

1. Are the eyes moving smoothly from one side to the other or noticeably jerking?
2. Are the eyes jerking when they have moved as far as possible to one side?
3. Does the eye begin jerking before it has reached a 45-degree angle?

There are a few factors that can affect the outcome of an HGN test. A suspect that is wearing eyeglasses may make it more difficult for the officer to see the angle at which the suspect’s eyes begin to twitch. Additionally, if the HGN test is not administered in a well-lit area, the officer may not be able to tell when nystagmus occurs. Suspects should not be facing headlights or the lights of a police vehicle since this can cause nystagmus without the help of alcohol. If any of these apply in a suspected driver’s case, the results of the HGN test may be inadmissible in court. 

There are other defenses to HGN tests, including the ability of the officer to determine a 45-degree angle, the presence of prescription drugs in the body of the accused, the presence of a head injury, and more. Working with a DUI defense attorney will be the best bet in clarifying the cause of nystagmus and whether the results of this test can be permitted in court. 

Margin of Error in a Blood Test

 Some drivers assume that a blood draw test will prove that they are not driving drunk; however, this can be a false assumption. There is little room to argue that the blood alcohol instrument (Gas Chromatograph) has a significant error, sufficient to create reasonable doubt that the defendant is guilty.

When it comes to testing for blood alcohol concentration (BAC) in a driver’s system, blood testing is a relatively reliable method. Defendants can still attempt to challenge blood test results, but they should have an understanding of the margin of error in a blood test.

One such claim from defendants is that the blood testing instrument measured and reported something other than ethyl alcohol, in effect artificially increasing the reported BAC. Gas chromatography happens to be the method used by most, if not all labs to test alcohol in the blood, and it is a universally accepted separation science.

With this method, an instrument separates the sample in the column, and measures the amount of the substances it tests; each substance comes out of the column at different, yet specific times. Because this method separates volatile substances such as ethyl alcohol and isopropyl alcohol before the analysis, gas chromatography is highly specific and does not allow the interference of other substances.

Gas chromatography has been proven to differentiate other volatile substances from ethyl alcohol, and this validation has been conducted extensively by the scientific community. Further, the lab that conducted the analysis should be able to provide supporting testimony in court.

In an effort to ensure accuracy when testing a defendant’s blood for alcohol, state labs are in the practice of conducting duplicate tests on DUI blood samples. This methodology analyzes a subject’s blood twice by using separate portions of the sample. Additionally, dual columns are often used, thereby testing each portion of a duplicate twice.

In the scientific and legal communities, dual column gas chromatography is considered the “gold standard” for analyzing a defendant’s blood alcohol.

Arrested for DUI? Contact me today!

If you are facing DUI charges in South Florida, know that you do have options! As a Miami DUI defense attorney, I have defended over 3,000 cases since 1982, and I welcome the opportunity to help you, too.

Not only am I a member of the National College for DUI Defense, but I am a former prosecutor. I understand Florida’s DUI laws inside and out and I know which DUI defenses work, and which ones have less chance for success in court.

Contact my office today to schedule your free case evaluation!

The Need of Search Warrants for Blood Samples

It might seem as if the laws are stacked against drivers who might possibly be convicted with a DUI, but there's still hope for them thanks to the 4^th Amendment and its ban on unreasonable searches, especially in regards to blood tests for the purpose of obtaining a BAC reading.

Recently, the Supreme Court ruled against a prosecution's appeal to exempt the requirement of a search warrant in the case of an arresting officer and a DUI driver who would not consent to a blood test. While prosecution argued that the forcible nature of the blood test was necessary in getting dissipating evidence from the offender, justices were steadfast on the law that requires officers to obtain a warrant. And the fact that getting one by phone or computer was a viable option and can be done within a matter of minutes supported the case of the defense even more.

Advantages for DUI Drivers

The Fourth Amendment guards against unreasonable searches and seizures that would invade an individual's privacy and a search warrant along with probable cause is the only way to get around this ban. DUI drivers can utilize their rights according to this amendment when a blood test is being requested of them. If the police officer does not present a search warrant sanctioned by a judge, then they are not required to comply with having their blood drawn.

In addition, this also gives DUI drivers an advantage over any incriminating evidence that might be gathered against them. Even if somehow law enforcement was able to obtain blood sample from the offender and their blood alcohol levels are exceedingly above the limit, this evidence is inadmissible in a court hearing if a search warrant was never issued. This could also result in the case being dismissed.

If the arresting officer follows through with applying for a search warrant, the process can take several minutes or even hours. This allotted delay will give the driver more time for their BAL to dissipate which may or may not put them within the legal BAC limit.

Case by Case Contingency

While this can greatly affect the outcome of several cases in favor of the defense, not all DUI drivers will be able to benefit from the Fourth Amendment. Because according to the Supreme Court, warrantless blood draws can still be a possibility but only on a case by case basis and will rely hugely on the "totality of circumstances". So for now, the privacy of your blood is safe until a search warrant is present; unless of course you just happen to be one of the exceptions to the rule.

Have more questions about your DUI case? Call Attorney Jonathan Blecher, P.A. to discuss your situation during a free case evaluation. Attorney Blecher has been defending DUI cases in Miami for over three decades and has the knowledge you need on your side.