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Sabino Jauregui, Esq.
Dianne Jauregui, Esq.

Ex-prosecutors

1014 West 49 Street, Hialeah, FL. 33012

Office: 305.822.2901

E-Mail: reception@jaureguilaw.com
  • Ex-State Prosecutors have the experience to fight for you!
  • You are INNOCENT until proven guilty.
  • Certain Defenses or Technicalities may mean the difference between Guilt and Innocence.
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Driving Under the Influence Cases

A DUI  is the the most technical area of misdemeanor law. There are many ways to defend a DUI case. Below is some general information about the Florida DUI law. This is no substitute for legal advice. Every DUI case has a different set of facts and circumstances. We welcome you to contact us with any of your questions for a free consultation.

DRIVER'S LICENSE SUSPENSION

YOU ONLY HAVE 10 DAYS FROM THE DATE OF YOUR ARREST TO CONTEST YOUR DRIVER'S LICENSE SUSPENSION. We can help! Call The Law Offices of Jauregui & Jauregui, P.A. for a free consultation 305.822.2901. If you refused to take a breath, blood or urine test after being arrested for DUI in Florida, or if the results of your breath test were .08% blood-alcohol or above, your license will be suspended for 6 months to 18 months after the arrest unless you or your attorney file a written demand for an administrative hearing within 10 days after arrest.

WHAT IS A DUI?

But I wasn't drunk But I wasn't driving.

A DUI offense occurs when a person who is impaired by alcohol or another controlled substance drives a vehicle or is in actual physical control of a vehicle.

DUI STOP - WHAT HAPPENED ?

DRIVING PATTERN:

You were either pulled over, already stopped or involved in an accident and then the police suspected DUI

ROADSIDES:

DUI
Technically known as the Standardized Field Sobriety Test (SFST), the police likely asked you to perform a set of three standard tests. These tests are given to obtain indicators of impairment and establish probable cause for arrest for DUI.

The Three test SFTS are:

1. The horizontal gaze nystagmus (HGN)
2. The walk-and-turn
3. The one-leg stand.

HGN Testing : follow the pen.

While highly technical, most officers perform this test incorrectly. Horizontal gaze nystagmus is an involuntary jerking of the eyeball which occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his eyes. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, and if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.10 or greater. NHTSA research indicates that this test allows proper classification of approximately 77 percent of suspects. HGN may also indicate consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.

Divided Attention Testing walk the line and stand on one leg
The walk-and-turn test and one-leg stand test are "divided attention" tests. In the walk and turn test, a suspect is given a set of instructions and asked to follow those instructions. The instructions should be given as follows: Take nine steps, heel-to-toe, along a straight line. After taking the steps, turn on one the outer foot and return in the same manner in the opposite direction. The police look for at least seven indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, uses arms to balance, loses balance while turning, or takes an incorrect number of steps. In the one-leg stand test, a suspect is instructed to stand with one foot approximately six inches off the ground and count aloud until told to put the foot down. The police time the subject for a period of 30 seconds. The police look for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down .

Additional Tests:

In addition to the standardized tests, the police may have asked you to perform 2 more tests. In the finger to nose test, a suspect is told to close his eyes, stretch out his arms and touch the tip of his nose with the tip of his index finger and then remove his finger without being told to do so. A suspect is asked to do this 6 times, alternating left and right. The police look for five indicators of possible impairment. If the suspect does not maintain his eyes closed, missing the tip of his nose or the tip of his index finger, using the wrong hand as directed, and not removing his finger from his nose. In the Romberg Balance Test, the subject is told to stand at attention with feet together, and arms at his/her side. He is then instructed to tilt his head back and count slowly to 30 seconds.

After being arrested at the scene, the police transported you to a breath station. At the station, you were asked to submit to a breath test and/or a urine test as well as answer questions. This is where the paperwork is filled out and a picture of you may be taken. You are then transported to jail for a minimum of eight hours until released on bond.

What's Next: DUI defense

DUI

DUI Cases are unique in that they involve two court systems: the criminal court system and the administrative court system. A typical DUI involves the following steps in addition to the standard criminal defense stages: appearing at administrative license suspension hearings, preparing any applicable motions to dismiss your case, court appearances every 4-6 weeks, background investigations of the officers involved in the client's arrest, taking depositions of the police officers and any civilian witnesses, locating and interviewing witnesses that may help your case, consulting with DUI breath machine, urine or blood testing experts, if necessary reviewing breath test machine maintenance documents, consulting with an accident re-constructionist if property damage is involved, reviewing a videotape of the clients field sobriety exercises, preparing any applicable motions to suppress the government’s evidence, pre-trial conferences with our client and any defense witnesses. DO NOT PLEAD GUILTY TO ANY CHARGE BEFORE CONSULTING AN ATTORNEY. DUI cases can be won depending on the facts and circumstances, even if there is a breath test. In addition, the penalties are severe and can never be erased or sealed from your record. Do not make a life-altering decision without being sure that it is the right decision.

Penalties

Offense Fine (*1) Bac >= .20% or minor in car License Suspension Probation Jail Time Bac >= .20% or minor in car Impoundment
319.193(6)(d)

1st Offense

$250 - 505

$500 - 1000

180 days to 1y

1 year

0 to 6 months

0 to 9 months

10 days normally.

For 2nd conviction within 3 years then 30 days.

For 3rd conviction within 5 years then 90 days.

*Impound may not be concurrent with probation or jail. Impound on rentals or leases not to extend beyond the lease or rental agreement.

2nd within 5 years

$500 - 1000

$1000 - 2000

5 years

1 year

10 days to 9 months

10 days to 12 months

2nd outside 5 years

$500 - 1000

$1000 - 2000

180 days to 1y

1 year

0 to 9 months

0 to 12 months

3rd within 10 years (charged as felony)

$1000 - 2500

$2000 to 5000

10 years

1 to 5 years

0 to 5 years

0 to 5 years

3rd outside 10 years

$1000 - 2500

$2000 to 5000

180 days to 1y

1 year

0 to 12 months

0 to 12 months

4th Offense (charged as misdemeanor)

$1000 - 2500

$2000 to 5000

Permanent

1 year

0 to 12 months

0 to 12 months

4th Offense (charged as felony)

$1000 - 5000

$1000 to 5000

Permanent

1 to 5 years
Guidelines

0 to 5 years
Guidelines

0 to 5 years
Guidelines

 

In 1st time DUI cases in which there involved minor children or a BAC over .20 the court shall for a period of up to six months order the installation of an ignition interlock device at the Defendant's sole expense on all vehicles in the Defendant's name or in joint name with another person at the time he qualifies for a permanent or restricted license. And for a second conviction involving the same contingencies said interlock device shall be for a period of at least two years.

Any person convicted of a second DUI must obtain at his sole expense, an ignition interlock device on all vehicles in his name or in joint name with another, prior to obtaining a permanent or restricted license.

Upon a third conviction within 10 years of any prior conviction, the court shall for a period of not less than two years order the installation of, an ignition interlock device at the Defendant's sole expense on all vehicles in the Defendant's name or in joint name with another person, at the time he qualifies for a permanent or restricted license.

Upon a third conviction outside of ten years of any prior conviction the court shall for a period of not less than two years order the installation of an ignition interlock device at the Defendant's sole expense on all vehicles in the Defendant's name or in joint name with another person at the time he qualifies for a permanent or restricted license.

What is the officer looking for during the initial detention at the scene?

The traditional symptoms of intoxication taught at the police academies are:

  1. Flushed face.
  2. Red, watery, glassy and/or bloodshot eyes.
  3. Odor of alcohol on breath.
  4. Slurred speech.
  5. Fumbling with wallet trying to get license.
  6. Failure to comprehend the officer's questions.
  7. Staggering when exiting vehicle.
  8. Swaying/instability on feet.
  9. Leaning on car for support.
  10. Combative, argumentative, jovial or other "inappropriate" attitude.
  11. Soiled, rumpled, disorderly clothing.
  12. Stumbling while walking.
  13. Disorientation as to time and place .
  14. Inability to follow directions.

What should I do if I am asked to take field sobriety tests?

There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, alphabet recitation, modified position of attention, fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests. Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect "ineviatably fails". Thus, in most cases a polite refusal may be appropriate.

What is a "rising BAC defense"?

It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING -- not at the time of being TESTED. Since it takes between 45 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested. Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .12%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .08%. In other words, the test result shows a blood-alcohol concentration above the legal limit -- but his actual BAC AT THE TIME OF DRIVING was below.

What is" Mouth Alcohol?"

DUI

"Mouth Alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat can have a huge impact. Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes of taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times.

What defenses are there in a DUI case?

Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:

Driving.
Intoxication is not enough: the prosecution must also prove that the defendant was driving. This may be difficult if, as in the case of accidents, there are no witnesses to his being the driver of the vehicle.
Probable cause. Evidence will be suppressed if the officer did not have legal cause to (a) stop, (b) detain, and (c) arrest. Sobriety roadblocks present particularly complex issues.

Miranda.
Incriminating statements may be suppressed if warnings were not given at the appropriate time.
Implied consent warnings. If the officer did not advise you of the consequences of refusing to take a chemical test, or gave it incorrectly, this may affect admissibility of the test results -- as well as the license suspension imposed by the motor vehicle department.

"Under the influence".
The officer's observations and opinions as to intoxication can be questioned -- the circumstances under which the field sobriety tests were given, for example, or the subjective (and predisposed) nature of what the officer considers as "failing". Witnesses can also testify that you were sober at the time of the alleged incident.

Blood-alcohol concentration.
There exists a wide range of potential problems with blood, breath or urine testing. "Non-specific" analysis, for example: most breath machines will register many chemical compounds found on the human breath as alcohol. And breath machines assume a 2100-to-1 ratio in converting alcohol in the breath into alcohol in the blood; in fact, this ratio varies widely from person to person (and within a person from one moment to another). Radio frequency interference can result in inaccurate readings. These and other defects in analysis can be brought out in cross-examination of the state's expert witness, and/or the defense can hire its own forensic chemist.

Testing during the absorptive phase.
The blood, breath or urine test will be unreliable if done while you are still actively absorbing alcohol (it takes 45 minutes to three hours to complete absorption; this can be delayed if food is present in the stomach). Thus, drinking "one for the road" can cause inaccurate test results.

Retrograde extrapolation.
This refers to the requirement that the BAC be "related back" in time from the test to the driving (see question #5). Again, a number of complex physiological problems are involved here.Regulation of blood-alcohol testing. The prosecution must prove that the blood, breath or urine test complied with state requirements as to calibration, maintenance, etc..

How can they charge me with DUI if they pulled me over for speeding?

The speeding offense provided the probable cause (valid reason) for the stop. If the law enforcement officer suspects you of driving under the influence after you are stopped (based on admissions, smell of alcohol or drugs etc.) you can be arrested for DUI. There is no requirement that police suspect you of driving under the influence prior to the stop in order to arrest you for DUI.

Why is there no speeding charge on my ticket, only a DUI?

The lesser speeding charge (infraction) is usually not charged because of the more serious DUI charge (misdemeanor). The speeding will be reflected in the police report.