What Does DUI or Driving Under the Influence Mean?

There are many dangers associated with the act of driving under the influence (DUI). In addition to the dangers of causing an accident or suffering injury, the driver can face criminal penalties. Not all drivers who have been charged for drunk driving, however, are actually guilty. At Jonathan Blecher, P.A., I offer my experienced representation to help defend individuals charged with DUI.

DUI stands for driving under the influence, which is the term that the state of Florida uses to explain the crime of driving while intoxicated with alcohol or drugs. Any driver who is suspected of being in physical control of the vehicle can be charged with DUI under the state’s statute § 316.193.

There are different ways that “impaired” driving can be proven. If you have a blood alcohol content level of 0.08% or higher, prosecution will have a solid case against you. Other methods, such as field sobriety tests, can be used as tools against you by prosecution to prove your guilt. These, however, can be defended with a knowledgeable Miami DUI attorney who understands the state's DUI laws.

What is the impact of a DUI conviction on my life?

Drinking and driving is seen as a dangerous crime, and for that reason, the penalties carry a high degree of intensity. The state of Florida carries extensive penalties for individuals charged with DUI that can affect the alleged offender’s driving ability, job, and family. Even for just a first-time offense, the state imposes certain mandatory penalties for those who are convicted.

With the life-changing penalties that you can experience with a conviction, you do not want to risk a guilty plea. You will need to establish a strong defense method with the assistance of a knowledgeable attorney by your side. Contact my firm right away so that I can begin building a workable solution for your particular case. I am here to defend your rights and protect your future!

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. 

Charged With a Felony DUI?

What You Need to Know About a Felony DUI

Anytime someone is being charged with a DUI, they are facing serious legal consequences that can affect them for the rest of their life. From a first time conviction to being charged as a multiple and repeat offender, someone who is accused of driving under the influence is facing jail time, hefty fines, loss of employment, suspension of their driver’s license, mandatory participation in an alcohol treatment program and more.

While any DUI charge can have a significant impact on the life of the accused, some charges will punish the driver more than others. A felony DUI, for example, carries the highest penalties of all.

A felony DUI is usually charged when a driver has:

• 3 DUI convictions within 10 years
• 4 or more DUI convictions in their life
• Caused bodily injury as a result of driving under the influence

When a driver is facing felony DUI charges, they are looking at up to five years in prison and a $5,000 fine. In addition to these penalties, the driver will have their vehicle impounded and their driver’s license revoked.

If the driver is being charged with causing the death of another as a result of being under the influence when driving, they will face DUI manslaughter charges. This will be charged as a felony although it is different than a felony DUI charge. DUI manslaughter carries 15 years in prison and a $10,000 fine, as well as allowing the accused to face criminal charges from the family of the deceased.

Have you been charged with a felony DUI? You need aggressive legal representation right away! Who you choose to hire to defend you is critical, and with over 30 years of experience, my firm has successfully defended over 3,000 cases. Call us to learn how we can help you!

Holiday Drinking: More Problems than a Hangover

With Thanksgiving, Christmas and New Year’s coming up we should all be aware of Florida's DUI laws. If you drink, please do so responsibly.

Did you know that it takes very little alcohol to put an average-sized man over a .08? Two martinis will do the trick. And for a woman, two glasses of champagne in an hour is enough to put her over the top. What that can mean is that a lapse in judgment or simply being in the wrong place at the wrong time (DUI roadblock, for example) can earn a set of silver bracelets and a ride to jail for Christmas.

Here are some things you should know:

Florida's administrative suspension laws will affect your driving privileges if you refuse the breath test or blow over a .08. There is also a 10 day time limit for filing an appeal of this suspension. Any conviction for DUI results in a permanent criminal record and can never be sealed or expunged.

There are a number of other consequences that flow from a DUI arrest/conviction such as fines, probation, DUI school, a possible ignition interlock device and guaranteed increased insurance rates.

Do I Take The Breath Test?

Having a .08 BAC you will set in motion an immediate DHSMV suspension of your driving privileges for six months and refusing the test will result in a suspension period of one year. DHSMV will impose an 18 month DUI refusal suspension, with no permit, for a second refusal. It's also important to know that a second refusal can be added as an additional charge punishable by up to one year in county jail.

Defenses to DUI Cases

There are dozens of valid legal defense to any DUI charge. I can determine which of those may be applicable in your case. I have had great success over the years while defending over 3,000 DUI and suspended license cases.

Jonathan Blecher is a former state prosecutor and a criminal defense attorney with offices in the Downtown Dadeland area. He has 31 years of criminal law experience. Contact Jonathan Blecher to schedule an appointment to learn more about any Miami DUI arrest.

Tampa Sherriff's Department Gave Legal Advice to DUI Suspects

My colleagues at the Sammis Law Firm in Tampa, Florida alerted me to this practice by the Hillsborough County (FL) Sheriff's Office. It appears that the sheriffs took on a new role as legal advisors for their arrestees by handing out this flyer.

While nothing in the flyer is wrong, it’s incomplete and does not explain to the arrestee all of their legal options and secondary ramifications of electing to waive a formal review of the license suspension. And since when are police authorized to deliver legal advice to their prisoners?

What's Missing from This Notice?

It says nothing about the downside to electing to waive the formal review hearing. Waiving the Formal Review Hearing will result in a suspension for 6 months for a breath test over .08% and one year for a first refusal to submit to a chemical test.

It says nothing about the fact that this suspension will appear on your Florida driving record and could affect employment and insurance coverage. Some companies will treat the suspension as if it were a DUI conviction (which it's not) and not renew coverage.

It says nothing about the right to a formal review hearing to contest the legality of the suspension and that obtaining the business permit right now will toss that right in the garbage.

What Do You Give Up?

The Formal Review Hearing is a valuable discovery tool. The Bureau of Administrative Reviews will let us copy their entire file of police reports and breath testing/refusal. This gets me a leg up on prosecutors who won't see these documents for weeks. I also get to subpoena and take sworn statements of the police officers involved affording us a great opportunity for impeachment at a later time.

Since When Are Police Allowed to Dispense Legal Advice?

When my clients ask the police at the breath testing facility if they should take the breath test, the police invariably advise that they can't offer an opinion or give them advice. They tell my clients that if they refuse, their license will be suspended, which is all the law requires of them.

If a paralegal in my office were to give specific and material advice to a client about a legal matter, they might be subject to laws relating to the unauthorized practice of law. In these cases, the police are an adverse party who should steer clear of any advice or acts which could affect valuable legal rights.

The History of DUI Laws in the United States – 1960 to 1990

Driving while intoxicated is not a new problem. In fact, it's practically as old as the automobile itself. In this blog, we've been looking at the history of DUI laws and enforcement over the past weeks, beginning with the first such U.S. laws in 1907. The decades between 1960 and 1990 brought substantial changes both in how law enforcement deals with DUI offenses and also in public opinion.

While alcohol-related traffic accidents still account for more than 40 percent of all traffic fatalities in the United States, according to the National Highway Traffic Safety Administration (NHTSA), the number of traffic deaths has been reduced dramatically over the past 50 years.

MADD and DUI Laws

This shift is, in large part, contributable to one California mother's passion and loss. Candy Lightner started Mothers against Drunk Driving (MADD) in 1980 after her 13-year-old was struck and killed by a drunk driver with previous DUI convictions while she was walking home from school. Lightner and MADD worked diligently to change America's DUI laws and raise public opinion about the seriousness of drinking and driving. MADD is largely responsible for the lowering of the legal blood alcohol limit to .10% from .15% and a few years later to .08%. (Today's limit is .05%.) The organization also pushed for "zero tolerance" legislation for drivers under the age of 21. Such laws made it illegal for young drivers to operate a vehicle with a .01% or greater blood alcohol level.

MADD was also successful in lobbying Congress to raise the national drinking age, resulting in the minimum drinking age being raised from 18 to 21 years in 1984. Largely as a result of MADD's activity, 700 new drunk driving laws were passed in the United States between 1980 and 1985.

Student against drunk driving (SADD), formed in 1981, was another force in changing how young people look at drinking and driving. Today, this peer-driven group has 10,000 chapters in middle schools, high schools and colleges throughout the United States.

Drunk driving began to be taken seriously during the 1980s, both by citizens and by law enforcement. That work continued into the 1990s and beyond. In our next post, we'll look at how DUI laws changed from 1990 to the present day.

This is the third post of a four-part series on the history of DUI laws in the United States and their enforcement. Last time, we talked about DUI laws in the post World War II era. We hope you'll visit again over the next few weeks as we discuss how DUI laws in the United States have evolved over the past decades.

The History of DUI Laws in the United States – 1930 to 1960

The end of prohibition in 1933 brought alcohol back to American living rooms and restaurants. In addition, the gradual end of the Great Depression meant more average Americans were able to buy automobiles, often for the first time. This combination increased the number of alcohol-related accidents and re-focused America's attention on the problem of drinking and driving.

One of the most notable such accidents of that era involved best-selling author Margaret Mitchell, whose Civil War era novel, "Gone with the Wind" had earned her more than $1 million in royalties. Ms. Mitchell was crossing the street near her Atlanta home in 1949 when she was struck by an off-duty taxi driver motoring down the wrong side of the street. She died of her injuries several days later. The driver later admitted to having had several drinks.

Measuring Blood Alcohol Levels

The first DUI laws in the United States prohibited driving drunk, but left it up to the arresting officers to determine what "drunk" meant. It wasn't until 1938—more than 30 years after the first DUI laws were enacted--that legal blood alcohol levels were set. The first breathalyzer, called the "drunk o meter," was created by Indiana University professor Rolla N. Harger in 1931. This early, balloon-like device would change color if a person's breath contained alcohol. (The present-day breathalyzer test was invented in 1954 by an Indiana State Police Captain.)

This era also saw the American Medical Association get involved in drinking, driving and public safety. They created a Committee to Study Problems of Motor Vehicle Accidents in 1938. This committee was partially responsible for setting the legal blood alcohol level at .15 and below. Indiana took this information and enacted the first Blood Alcohol Content (BAC) law in 1939.

As the "Mad Men" era of the 1950s and 1960s ended and with it much of the "glamor" of excessive drinking, organizations like MADD and SADD began to have political clout. In addition, DUI laws began to become more stringent as public opinion shifted to favor such laws. In our next post, we'll look at how DUI laws changed from 1960 to 1990.

This is the second post of a four-part series on the history of DUI laws in the United States and their enforcement. Last time, we talked about how DUI laws began in this country. We hope you'll visit again over the next few weeks as we discuss how DUI laws in the United States have evolved over the past decades.

The Early History of DUI Laws in the United States

Alcohol-related traffic accidents account for more than 40 percent of all traffic fatalities in the United States, according to the National Highway Traffic Safety Administration (NHTSA.) To help combat this alarming statistic, all 50 U.S. states have laws against driving under the influence of alcohol or other controlled substances (DUI). Sometimes also called DWI (driving while intoxicated) or OVI (operating a vehicle while intoxicated), these laws first started to appear in the early part of the 20th century. Today, nearly one in every ten criminal arrests in the United States is for DUI, according to the NHTSA.

History of DUI Laws

The problem of driving while intoxicated is nearly as old as the automobile itself and is not specifically an American problem. In fact, the first DUI arrest occurred in London in 1897, according to History.com, when George Smith ran his cab into the side of a building. (He pled guilty and was fined 25 shillings.) In the United States, Massachusetts was the first state to enact a DUI statute, in 1907.

They were followed by California and New York State in 1910. The other 45 states (at that time) followed soon after that. Early laws prohibited driving while intoxicated, but didn't define what that meant. It wasn't until nearly twenty years later that the first blood alcohol limit was set.

Prohibition and DUI Enforcement

Prohibition in the United States, which lasted between 1920 and 1933, helped to reduce (but not eliminate completely) driving under the influence in the United States. Perhaps even more effective at controlling the problem in this era was the stock market crash of 1929 and the Great Depression that followed. This forced many Americans to give up their cars or put off buying one for more than a decade.

The repeal of the Volstead Act in 1933 ended prohibition and made drinking alcohol legal again in the United States. As more and more Americans became able to afford an automobile, the problem of drunk driving began to rear its ugly head again. In our next post, we'll look at how DUI laws changed in the prosperous post-World War II era.

This is the first post of a four-part series on the history of DUI laws in the United States and their enforcement. We hope you'll visit again over the next few weeks as we discuss how DUI laws in the United States have evolved over the past decades.

Is My Name Going to Be in the Paper After a Drunk Driving Arrest and What Can I Do About It?

Other people's misfortunes are always a source of interest. That's why newspapers continue to publish a "police blotter" of DUI arrests. It sells papers.

Newspapers themselves have dwindled in popularity as electronic sources of information have grown in popularity over the past two decades. Editors face less space in the print edition, lower ad revenues, less newsroom resources, less staff and an aging readership. Smart newspapers are using multimedia tools to enhance stories' relevance and accessibility. Online editions are easy to access by phone, tablet or desktop... and that creates reach and a fluid revenue stream.

You will find DUI mug shots in many papers, and online editions around the country. Police agencies will either buy space as an advertisement or the paper will use the unsold space as a way of drawing readership with the stated purpose of public responsibility.

Papers cloak themselves in the first amendment and argue protected speech. While the newspapers are a traditionally protected area of speech and commerce, the real problem is the mug shot websites that have sprouted up over the years. These sites purport to be providing a public service from public information sources, when it seems that the goal is to hold your mug shot hostage until you pay have it removed.

Recently, however, one of these mug shot companies, justmugshots.com, suffered a setback in U.S. District Court in Tampa, Florida and must defend a lawsuit against charges of privacy invasion and unfair trade. The New York Times recently reported that MasterCard, AMEX, PayPal and Discover would break ties with these types of companies.