FAQ's of DUI

The following list of behaviors in descending order of probability may indicate that a driver is intoxicated. It is based on research conducted by the National Highway Traffic Administration.

• Turning With a Wide Radius
• Straddling Center of Lane Marker
• "Appearing to be Drunk"
• Almost Striking Object or Vehicle
• Weaving
• Driving on Other Than Designated Highway
• Swerving
• Speed More Than 10 mph Below Limit
• Stopping Without Cause in Traffic Lane
• Following Too Closely
• Drifting
• Tires on Center or Lane Marker
• Braking Erratically
• Driving into Opposing or Crossing Traffic
• Signaling Inconsistent with Driving Actions
• Slow Response to Traffic Signals
• Stopping Inappropriately (Other Than in Lane)
• Turning Abruptly or Illegally
• Accelerating or Decelerating Rapidly
• Headlights Off
• Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety.

Police cannot force you to answer incriminating questions. You may simply say you prefer to speak with an attorney before answering any questions, or you may want to admit to having one or two beers, which would not render you intoxicated.

In Florida, you have no right to speak to an attorney until after you have submitted to blood or breath testing at the station (or have refused to do so).

Traditional symptoms of intoxication taught at the police academies are:

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

Unlike the chemical test, for which refusal to submit requires mandatory license suspension, you are not legally required to take any FSEs. You may choose to simply say no and not offer the officer any additional evidence of intoxication.

Many states have begun following National Highway Traffic Safety Administration "standardized" field sobriety exercises. These consist of a battery of three exercises:

• Heel-to-Toe (also referred to as "walk-and-turn")
• One-Leg Stand
• Horizontal Gaze Nystagmus

All other field sobriety exercises, including finger-to-nose, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, and hand pat, etc. are disapproved and based on an officer's subjective observations.

This is the "horizontal gaze nystagmus" test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety exercise has a number of problems, not the least of which is the non-medically trained police officer's ability to recognize nystagmus and estimate the angle of onset. Because of this and the fact that the test is not accepted by the medical community, it's admissibility depends on the judge you have and the county in which you were arrested.

You face three adverse consequences if you refuse to submit to a breath or blood test (or urine if neither is available or if drugs are suspected):

• Your driver's license may be suspended for one year for a first refusal and 18 months for a second refusal. Unlike a suspension for having over .08% blood-alcohol, there is no possibility of obtaining a work-restricted license.
• A second refusal can be filed as a separate crime in addition to DUI.
• The fact of refusing can be introduced at trial as evidence of "consciousness of guilt." Of course, the defense is free to offer other reasons for the refusal, such as fear of needles or inability to blow into the machine hard enough.

Thus, the decision is one of weighing the likelihood of an incriminating blood-alcohol result against the consequences of refusing.

No. If an officer fails to give you a 5th Amendment warning after he arrests you, prosecutors will not be permitted to use in court any statements you made following your arrest.

Of more significance in most cases is an officer's failure to advise you of the state's "implied consent" law - that is, your legal obligation to take a chemical test and the consequences if you refuse. This can affect the suspension of your license.

The traditional offense is "driving under the influence of alcohol" (DUI), or in some states, "operating while intoxicated" (OWI), or "driving while intoxicated" (DWI). Florida is one of 48 states to recently enact a second, so-called "per se" offense: driving with an excessive blood-alcohol concentration (either .08% or .10%). In those states, BOTH offenses are charged. You can even be convicted of both, but can be punished for only one.

If the case involves a refusal to submit to chemical testing, and you have a prior refusal, the refusal is a separate offense that will be charged.

It may seem unfair, but the law in Florida provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit (or, in the case of a blood or urine test, if the officer reasonably believes the result will be above the limit) or the individual refuses to take a chemical test.

WARNING: Be aware of a 10-day deadline for calling the Florida DMV to request a hearing on the suspension and to get an extension of the temporary license.

It is possible but not advisable for you to represent yourself. Drunk driving defense is very complex, and a conviction comes with increasingly serious consequences. Procedural, evidentiary, constitutional, sentencing and administrative license issues can present challenge for those inexperienced in DUI defense.

A qualified drunk driving defense attorney can take a host of beneficial actions, including review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, and contest the administrative license suspension.

An attorney's experience, reputation and geographic location can contribute to the fees you will pay. Generally, the more skilled an attorney, and the larger the city, the higher the fee. Further, DUI attorneys who take on fewer cases in order to devote more time to those clients often charge more.

A general practitioner in a small rural community may charge only $500-1000; a DUI specialist with a national reputation may charge up to $15,000 or more, depending on the facts. Generally speaking, you can expect to pay $3,500 to $7,500 for an experienced and reputable DUI attorney to represent you in a first-offense drunk driving case without an accident, with the DMV license suspension hearing included.

Additional factors may impact the fees:

• Is the offense a misdemeanor or felony?
• If prior convictions are alleged, the procedures for attacking them may add to the cost.
• Are trial or appeals included?
• Administrative license suspension procedures may also be extra.
• The lawyer may charge a comprehensive fixed fee, or may ask for a retainer in advance - to be applied against hourly charges.
• Expert witness fees, independent blood analysis, service of subpoenas, etc., may be extra.

Whatever the fee quoted, you can ask for a written agreement.

At Krauss, Fishman & Gamm, you will get a written agreement signed by the firm after we fully explain all terms to you.

You may be charged with DUI if you have a blood-alcohol concentration (BAC) above the legal limit at the time of DRIVING -- not at the time of being TESTED. Since it takes between 30 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 a DUI suspect. If the test shows the BAC is .10% and the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit - but his actual BAC AT THE TIME OF DRIVING may have been below the legal limit.

"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. Even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact.

Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before 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. A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings.

A wide range of potential defenses exists, including:

• Blood-alcohol concentration (BAC). Chemical tests to determine alcohol content present a variety of defenses. Many tests are not specific, they register many chemical compounds as alcohol. The ratio for converting breath alcohol to blood alcohol varies greatly from person to person. Even radio frequencies can interfere with a test. We have the expertise to challenge these test results.
• Implied consent warnings. The arresting officer must properly inform you of the consequences of refusing a breath, blood or urine test. Failure to do so could result in exclusion of the test results in your criminal and DMV case.
• License suspension hearings. We can raise a number of separate issues at your DMV hearing.
• Miranda Warnings. An arresting officer must read you your Miranda rights or face losing any incriminating statements you make.
• Operation. In addition to proving intoxication, the prosecutor must also prove that you were driving. This may be difficult in some instances, including unwitnessed accidents.
• Probable cause. If the police officer lacked a legal reason to stop you, any evidence obtained after the traffic stop may be suppressed or inadmissible. We have had significant experience challenging probable cause issues involving sobriety roadblocks or checkpoints.
• Regulation of blood-alcohol testing. The arresting officer must use properly calibrated and tested equipment when conducting BAC testing, and the prosecutor must prove the state standards were met in your test.
• Retrograde extrapolation. This complex process is used to interpret test results taken hours after your arrest to determine your BAC at the time you were driving.
• Testing during the absorptive phase. Chemical tests can be skewed if taken while you are still absorbing alcohol; it usually takes 30 minute to 3 hours to fully absorb alcohol.
• "Under the influence." An officer's interpretation of field sobriety exercises is subjective and can be challenged with testimony from other witnesses.

An experienced drunk driving lawyer is the best source, of course. Short of that, go to a law library (at courthouses and law schools) and research DUI law and blood-alcohol analysis.

AN ATTORNEY AT KRAUSS, FISHMAN & GAMM IS AVAILABLE 24 HOURS, FREE OF CHARGE TO ANSWER ANY AND ALL QUESTIONS REGARDING YOUR DUI CASE.

CALL TOLL FREE AT 1-866-50-DEFEND OR 1-866-503-3336.