Gainesville Personal Injury, Divorce and Alimony Attorney

Recanting Refusal, Changing your Mind When arrested for DUI

After a DUI arrest in Florida, a person will be asked to submit a sample of their breath for analysis. Also referred to as taking the breath test. Upon refusing to provide a sample, the arresting officer is supposed to read a warning that the license will be suspended. Sometimes, people change their mind and provide a sample immediately. What if the officer says it is too late to blow and announces the arrestee has refused?

A person has changed their mind and agrees to take the chemical test, for breath, blood or urine. Now what? The answer is ‘it depends’. Having a changed mind may matter if (1) the request to submit to is made within a reasonable time after the refusal; (2) the test administered would still be accurate; (3) the machine or testing facility is still readily available; (4) there has been no substantial inconvenience or expense to the police; and (5) the Defendant has been in custody while under continuous observation.

The changing of the mind cannot be conditional. Presuming the above listed elements, then a criminal defense attorney can file a Motion to Suppress the refusal so that the State cannot make the argument in the criminal trial that “the Defendant refused because they were guilty”. The case is not necessarily dismissed, but a big piece of evidence can be missing from the prosecution’s case. In addition, long before a DUI trial, a DUI lawyer may be able to successfully challenge the automatic driver’s license suspension that results from refusal. A successful challenge will keep the refusal off of the Driver Record. That is important because a second refusal is a misdemeanor.

Driver’s license proceedings are at the Department of Highway Safety & Motor Vehicles, or DMV and are separate from the criminal proceedings in the courthouse. The Public Defender does not assist at the DMV and the accused must act within ten (10) days to protect the license.

DUI defense is technical and specialized. To schedule a strategy session with a DUI Defense lawyer, click, call or fill out the form

Gainesville (352) 371-9141

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DUI, the 20 minute observation & DHSMV Hearings

After an arrest for driving under the influence (DUI), if the driver is alleged to have refused to provide a breath sample or provided a sample resulting over .08, then the arrestee’s driver license is supposed to be automatically suspended. This suspension takes place after ten (10) days. A driver must apply to challenge the suspension at the Department of Highway Safety and Motor Vehicles (DHSMV) or DMV within those same ten (10) days. DHSMV blog.

Prior to collecting a breath sample for analysis, the machine operator is supposed to observe the arrested driver for twenty (20) minutes. This is designed to ensure an accurate sample by eliminating foreign objects, substances and things like regurgitation that can all affect the analysis of the sample. The required twenty (20) minute observation period is only one item that is subject to attack in the administrative license hearing.

At a hearing, the State must show competent substantial evidence to prove law enforcement conducted this observation period. Competent substantial evidence is evidence that will establish or cause the reasonable inference of a fact, such as whether the waiting or observation period occurred. Like many other aspects of criminal and traffic defense, the supporting documents can be vital to any challenge of the sample. There could be arguments based upon the lack of documents or based on the conflicts in the documents. The burden of proof at a driver license hearing is by a preponderance of the evidence, much lower than the beyond a reasonable doubt standard at the DUI trial.

Having a lawyer for these hearings is recommended because in any appeal of the Department’s decision, the Circuit Court will not reweigh evidence, nor to substitute its judgment for the findings of the hearing officer. Any review of the record determines whether the hearing officer’s findings were supported by competent, substantial evidence and whether the essential requirements of the law were applied.

DUI Defense is a technical area of practice; there are many avenues that are subject to attack. Every word used to communicate with the suspect can make a difference to what evidence is allowed to be presented to the jury. To hire a lawyer to assist in a DUI case of any kinds,please click, call, text (352) 371-9141 or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

DUI Refusal What You Don’t Say or Do Gets Held Against You Too

If a person accused of DUI refuses to submit to field sobriety exercises or to submit a breath sample a common concern is whether the refusal can be used against the DUI Defendant in Court. As to the driver’s license, being deemed to have refused will cause an automatic suspension unless a review hearing is requested and won at the Department of Highway Safety & Motor Vehicles (DHSMV).

The Implied Consent law states that “[t]he refusal to submit to a . . . breath test upon the request of a law enforcement officer . . . is admissible into evidence in any criminal proceeding”. Notwithstanding that, whether the State can use the evidence of refusing to submit to a breath sample in a DUI trial, is not absolute. Whether the State can use the refusal or whether the law enforcement officer’s accusation of refusal is proper can be challenged by seeking to exclude evidence in the criminal case and at a review hearing at the DHSMV.

In DUI defense, every word spoken or read to the accused matters.  Omitting words or phrases can have devastating effects on the State’s case, which means it is a good thing for the DUI Defendant. In a recent case, a person accused of Leaving the Scene of an Accident with a Death, DUI Property Damage and DUI Manslaughter and failure to render aid had DUI convictions reversed because the Highway Patrol Trooper completely failed to read the implied consent warning. The entire trial is a do-over, but the State will not be able to use the evidence of refusal in the new trial.

The Implied Consent law, states that any person who accepts the privilege of driving within Florida, by so operating a vehicle, is deemed to have given consent to submit to an approved test, if the person is lawfully arrested for any offense allegedly committed while driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages. Then the law provides for what is known as the Implied Consent Warning. The law requires that the accused be told that failure to submit to any lawful breath test will result in a driver’s license suspension and the accused must be told that if the person’s license has been previously suspended as a result of a refusal to submit to lawful breath, urine, or blood test, then a refusal is a misdemeanor criminal offense. If these warnings are properly given, then absent other reasons to suppress the evidence, such as an unlawful stop, a Court should allow the refusal to be used against the accused at the DUI trial.

Having a refusal on the record can cause significant restrictions to a driver license in the future. DUI defense is highly technical and there a many pitfalls. To hire a lawyer to help defend a DUI, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

DUI Blood Testing the Unconscious Driver No Warrant Needed…Usually

In a DUI arrest, when a breath test is not available or feasible, or if the circumstances allow, law enforcement may seek a sample of the accused driver’s blood to determine a blood alcohol concentration or content (BAC). The question of whether and how the police may take the accused DUI driver’s blood has been considered by the United States Supreme Court in the last few years.

In those past cases, the Court held that an officer may conduct a BAC test if the facts of a particular case bring it within the exigent-circumstances exception to the general requirement of a warrant. Second, if an officer has probable cause to arrest a motorist for drunk driving, the officer may conduct a breath test (but not a blood test) under the rule allowing warrantless searches of a person incident to arrest. The Court has also has upheld the implied consent statutory scheme, warrants to secure a blood sample and warrantless blood draws in urgent situations but never considered a blood draw from an unconscious person.

Recently, the US Supreme Court considered the narrow question of whether a blood sample can be obtained when the driver is unconscious and therefore cannot be given a breath test, cannot refuse a breath test or withdraw their implied consent. Though an unconscious person cannot respond, it is not unusual in these cases that the officer does read implied consent to the knocked-out driver and the officer did in the case under consideration. The Court held that in cases of unconscious drivers, the exigent circumstances rule almost always permits a blood test without a warrant. The general rule for unconscious drivers is then that a warrant is not needed to take blood. 

The Court noted that drivers in an unconscious state are likely to be taken for medical attention and will have blood taken for diagnostic purposes.  Furthermore, the Court speculated that dispensing with the warrant requirement would lessen intrusions into the body by assuming that a second injection would be needed to get a separate legal blood test.

In the end the Court did not decide if, in fact the blood drawn in this case was appropriate, and sent the case back for further consideration. Things to consider regarding blood taken from a driver knocked unconscious now include whether the blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably believed that applying for a warrant would interfere with other pressing needs or duties such as traffic control after an accident.

As Justice Thomas pointed out, the Court gave us an ruling that says exigent circumstances are generally present except when they aren’t. We now have a general rule with exceptions that can be litigated to properly defend the DUI case. To begin strategizing with a lawyer about a DUI matter, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

DUI Conviction or Adjudication still required

In Florida, a person accused of DUI has faced mandatory adjudication, also known as conviction, for many decades. In cases where the Court is not restricted, it can also withhold adjudication which means that technically a person is not convicted. The difference can have far reaching consequences. For example, a DUI cannot be expunged because of the conviction and convictions stay on a driving history for up to seventy-five (75) years. Convictions also require higher surcharges and court costs. 

Recently, a bill was introduced that would have given back to judges the discretion to withhold adjudication in a DUI if accompanied by an ignition interlock device. In addition, there would have been assistance by subsidizing the costs of an ignition interlock device. Furthermore, there was retroactive application to allow people sentenced under the current law to petition the Court to enter a withhold of adjudication five (5) years after sentencing.

Unfortunately, the bill will not become a law and a DUI arrest means that the defendant is still facing mandatory conviction or adjudication. DUI law is technical and involves many aspects of law, procedure and science. To get the firm started on the case, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

SB 612 (2019).

DUI and the Ignition Interlock Device

In DUI defense a common question or problem involves the “ignition interlock device”. The law on the ignition interlock device states that the Department of Highway Safety and Motor Vehicles “shall require the placement of a department-approved ignition interlock device for any person convicted of committing an offense of driving under the influence as specified”. 

If specified, the Department of Highway Safety and Motor Vehicles is mandated to impose the condition on a driver even if the Court fails to make the ignition interlock a condition of probation. Even if not required, the Court can add an interlock requirement. Proof of installing the device is required before issuing a permanent or restricted driver license. An interlock device, must be placed on all vehicles that are individually or jointly leased or owned and routinely operated by the convicted person.

The time an ignition interlock device needs to be installed varies from six (6) months to five (5) years depending on how many DUI convictions the person has in their past. In some instances, an interlock is required for a first DUI. For purposes of counting prior DUI offenses, any similar alcohol-related or drug-related traffic offense is counted as a conviction of driving under the influence. This is also true for enhancing a DUI. Alcohol related offenses could be a lesser charge than DUI in another state.

If a case is resolved, then it may be too late to remove the interlock requirement. These issues need to be worked out prior to sentencing. To hire a lawyer to defend a DUI of any kind, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

DUI Actual Physical Control Not Just Being the Intoxicated Owner

An element the State has to prove in a DUI is that the accused was either driving or in “actual physical control” of the vehicle. Actual physical control sounds simple enough but the question of what is actual physical control has generated some interesting case law. Of note is that if the accused was not driving or the car was not moving, then the State can still prosecute a person having actual physical control. 

Actual physical control typically means a defendant must be physically in or on the vehicle. In addition, the accused must have the capability to operate the vehicle, regardless of whether the vehicle is being operated. Some defendants have been found to be in actual physical control while sleeping if for example they are in the driver’s seat with the keys in the ignition. Keys nearby has also been found sufficient.

If a vehicle is jointly occupied or attended too, then there needs to be independent proof of the person that was driving. For example, in a recent case, two people were found leaning against a car that had been in a minor crash. The owner of the vehicle was leaning on the driver’s side and a second person on the passenger side of the vehicle and the keys were in the ignition when the cops arrived and began the DUI investigation.

Of course, the intoxicated owner was arrested. The Court reversed the driver’s conviction declining to find the owner in actual physical control. The Court found that that it would be an impermissible stretch to accept the State’s argument “that two persons can be standing outside of a vehicle and the vehicle’s intoxicated owner can be arrested and convicted of driving under the influence because he or she is intoxicated and the registered owner of the vehicle.” In the case there was no independent evidence of who was driving. Of note to this writer is the importance of the accident report privilege and the attorney’s probable use of it to exclude evidence from the hearing.

Criminal traffic and DUI defense can be technical areas of practice. Not knowing the entanglements of the law such as how and why the accident report privilege wins cases can ruin the case and the life it affects. Please click, call or fill out the form below to hire an experienced DUI attorney.

Gainesville (352) 371-9141

Ocala (352) 694-4529


Griffin v. State, 457 So. 2d 1070 (Fla. 2d DCA 1984) (defendant who was asleep was in actual physical control of the vehicle).

Howell v. State (11th Circuit March 5, 2019).

Traffic Crash, DUI and the Accident Report Privilege

A car accident leads to a traffic crash investigation which often time leads to criminal charges such as drunk driving or DUI. Floridians should be aware that the law requires them to cooperate with a traffic crash investigation. The intent behind the reporting requirement is to encourage true and uninhibited reporting of accidents, with the ultimate goal of making highways safer. 

The safety goal must be balanced against the right to remain silent or the right to be free from self-incrimination. Therefore, there is what lawyers refer to as a savings clause that statements made during a crash investigation are to be considered without prejudice reporting person and the statements may not be used as evidence at trial in a prosecution for driving while impaired, DUI or in any trial, civil or criminal. Statements obtained from the driver pursuant to an automobile accident report requirement imposed by law cannot later be used later or any other criminal or civil case. This is how the firm defends against citations for careless driving when there are no witnesses or evidence other than that evidence protected by the accident report privilege.

The accident report privilege extends beyond statements at the scene of the accident. The privilege can protect statements made to an investigating officer at a hospital by the driver of an automobile. In order for law enforcement to use statements by the defendant for a criminal investigation the defendant’s Miranda warnings must be given. Statements made during a criminal investigation are inadmissible unless the person is advised that the criminal investigation has begun and the person has been informed of his or her constitutional rights.

Knowing the traffic law and the interplay with the evidence code and the constitution comes in handy in defending a DUI, traffic citations or any other criminal case stemming from a traffic crash. Lawyers could rebuild transmissions or perform brain surgery and you could handle your own case, it is just not the way to get the best results possible. Instead, you should at least talk to a lawyer about your case. Please click, call or fill out the form to hire a lawyer to help with the case.

Gainesville (352) 371-9141

Ocala (352) 694-4529

New York DWAI & Enhancement of Florida DUI

There are all kinds of urban myths in DUI / DWI law. In the context of a Florida DUI, a Florida appellate court has interpreted Florida law as allowing a conviction to a New York charge of driving while alcohol impaired (DWAI), section 1192 (1), to be used to enhance a Florida DUI. In addition, a conviction to a New York DWAI can be used for purposes of suspending a Florida driver’s license. This strikes many as odd since the New York offense of DWAI is specifically not a DUI pursuant to New York law. Many people are surprised to learn that what one state does not consider a DUI is treated as such in Florida.

Both Florida cases that stand for this proposition came from the 4th District Court of Appeal (DCA). Unfortunately, there are two Districts that agree with the logic. Due to a conflict of interest, a Florida driver’s license case was assigned to the 3rd DCA. The 3rd DCA, upheld the Department of Highway Safety and Motor Vehicle’s (DHSMV) decision to equate a New York DWAI to a Florida DUI for purposes of suspending a Florida driver’s license. This means that the 3rd agrees with the 4th. The lack of an inter-district conflict of opinion means that this law binds trial courts in all of Florida’s 67 counties.

How any out of state (not Florida) prior alcohol related traffic offense will be viewed by the Florida courts is a question of law. The first step is to compare the elements and the second to research the case law. However, all is not what it seems; do not be misinformed or proceed without having the issue researched independently. Click, call or fill out the form to hire a Florida DUI Defense Attorney.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Dawson v. State 19 So. 3d 1001 (3d acting as 4th DCA 2009).

Dipietro v. State 992 So. 2d 880 (4th DCA 2008).

Arrested for DUI, 10 days for what?

Arrested for DUI? Before going to court, a driver’s license will be suspended 10 days after the DUI arrest if the person refused to give a breath sample or sumbmitted to the test and blew over a .08.   As to the license to drive, there are three options (1) request a hearing to reverse the suspension called a Formal Review Hearing, (2) request hearing for an immediate hardship license or (3) do nothing.  The choice to do nothing is a choice to accept a driver license suspension.  The deadline to file an election for a hearing at the Department of Highway Safety and Motor Vehicles (DHSMV) is also the same 10 day period before the suspension is imposed. The DUI citation is a driving permit for those same 10 days. 

The automatic suspension and resulting drivers license proceedings have nothing to do with and are completely separate and apart from the criminal DUI case in the court house. To illustrate the different procedures, think of courthouse and the building where a person goes to get a driver’s license. Those buildings are usually completely separate buildings.  Because the proceedings are separate, the Public Defender’s Office will generally not represent people in driver’s license hearings.  Furthermore, waiting until arraignment or to meet a Public Defender before deciding to hire a private lawyer will almost always mean that the opportunity to have a DHSMV Hearing and reverse the suspsension is lost.

Do not do nothing. If nothing is done within 10 days after being arrested for DUI, then the license of the accused is automatically suspended. Sometimes these hearings are exremely beneficial to defending a DUI.  Even if the DUI arrest is beyond 10 days old, a lawyer can help.  Please click, fill out the form or call to hire a lawyer to defend your DUI.

Gainesville (352) 371-9141

Ocala (352) 694-4529