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

Ocala (352) 694-4529

Florida Criminal Arraignments During COVID

Much has changed in the practice of Florida criminal defense during COVID. With varying orders being issued by the Florida Supreme Court, the Chief Judges of the Circuits, County and local municipalities, we are all dealing with the semi-shutdown as best we can. It seems that new orders, tweaking the last set, are made about every other week.

The common ground amongst the orders affecting the courthouses is that during the shutdown in-person hearings are to be rare. Many essential functions are deemed an exception to the rule and are taking place in person. A recent development from the Florida Supreme Court, was to add criminal arraignments to the list of those functions deemed essential to the system. Because arraignments are now on the list of essential proceedings, arraignments are held in person. That means the Defendant has to appear and enter the courthouse, wearing a face covering, of course.

Failing to appear at arraignment, or any other criminal court event will cause an arrest warrant to be issued for the Defendant. This is true even if the case is a misdemeanor, felony, or criminal traffic citation and the reason given is fear of COVID. While some people may be reasonably and actually scared of COVID, failing to appear is not the way to face the fear.

In Florida, but not all states or the Federal system, a person with a lawyer does not have to attend arraignment. A criminal lawyer can file paperwork to excuse the Defendant from arraignment and some, but not necessarily all, other court events. Unfortunately, unless a Public Defender was assigned at First Appearance, then a Defendant relying on the services of the Public Defender will have to physically appear at an in-person arraignment to have the Public Defender assigned. (First Appearance & Arraignment.)

A person criminally accused has rights and should use them. To hire a lawyer, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529