The first aspect of a Florida DUI that one must deal with is not the court…it is the DHSMV (Florida Department of Highway Safety and Motor Vehicles). Under the current State of Florida DUI law (8/26/2009) if a person takes a breath test and the results are over the legal limit of .08 then their Florida Driver’s License is suspended for 6 months. If they refused the breath test then their license is suspended for 1 full year or for 18 months if they previously refused. These suspensions can be challenged if a Formal Review Hearing is demanded with in 10 days of the date of arrest. In some situations a temporary driving permit is then given to the DUI arrestee which typically expires a few weeks after the hearing. During the hearing the Florida DUI Attorney can challenge the State’s evidence, question the State’s witnesses, present their own evidence and call their own witnesses. At the end of the hearing the Florida DUI Attorney may make motions demanding that the suspension be set aside. If the motions are granted then the Driver’s License is reinstated.

The Court battle is much longer and more complex than the Administrative battle. The Defendant (person arrested) must appear before the court at a hearing called an Arraignment. At this hearing he will be required by the court to enter a plea of Guilty or Not Guilty. If the plea is guilty then the court will sentence the defendant either on the spot or at a later date called a sentencing hearing. If the plea is not guilty then the Defendant may participate in the Discovery process. Discovery is the exchange of information between the two sides. It includes reports, pictures, videos, witness lists, statements, and testing data. Once the Discovery is completed the case will be set for a Trial. Either side may demand a Trial by Jury. If neither side wants a Jury Trial then a Judge Trial will be set. At either type of trial there is usually and opening statement with the State going first and Defense going second. Then the State presents its witnesses followed by the Defense witnesses. Once evidence is closed then each side gets a Closing Statement. The Jury is then instructed by the Judge and sent to deliberate. Once a verdict is returned by the Jury or Judge, it is read in open court. If the verdict is not guilty then the Defendant is released, if it is guilty then the Defendant is sentenced. If either side feels the Trial Judge made a mistake they have 30 days to file an appeal.

I am a practicing Florida DUI Attorney and a 13 year veteran of the Florida Criminal Justice system. I would recommend to anyone who is facing a DUI charge in Florida that they get an experienced and skilled Florida DUI Attorney to handle their case.

In June 2009 the program was focused on all of the Districts. Each night throughout June, a different area was scheduled for this activity. This included anything from heightened patrols, without BAT or transport, to Check Points and saturation patrols. Their purpose was to identify drivers suspected of some degree of intoxication while driving. These have been used from time to time.

For the full schedule showing the June 2009’s program activities, ‘click on’ the term Operation 3D  or you can search the term in your web browser. For example, all Districts of Hillsborough County get coverage at least two or three times during any month the program is used for enforcement. The way Operation 3D works is on a given night in a specific district, say for District IV in Southern Hillsborough County, it may have a heightened patrol and perhaps no BAT or transport for support. Other nights there may be heightened patrols with a BAT and a transport for support. These activities take place between the hours of 10PM and 5AM usually.

Knowing about this program allows the public an ability to plan personal activities to prevent unneeded stops and arrests. Hopefully this helps to change potentially dangerous habits. For example, if half the people who normally don’t consider drinking and driving a problem make plans to prevent the possibility of getting stopped and possibly arrested by staying at friends or having a designated driver that night, the negative statistics that arise from drunk driving may actually go down.

If this awareness creates new habits then the program will have achieved some success. There are two kinds of support being placed in the field. One is the use of a Full BAT Unit with remote booking and transport being provided or no BAT or transport conducting these. A BAT Unit test blood alcohol at remotely at a given location. Sometimes there are none used in a particular District, perhaps on week nights, when traffic is light. However no matter which support is used there can be secondary support, which includes the use of what is described as Heightened Patrol with Check Point & Saturation. In other Districts both the Lowman Check Point and Saturation is used.

The Operation 3D activity during June 2009 planned for 18 events with District positions set up. Through heightened visibility and demonstrating enforcement, the hope is to raise community awareness to the level of change in reducing the habit of driving under the influence or while drunk.

As with anything to do with the law, there are many subtleties to the law. This is especially true in regards to a DUI arrest even in Florida. Evidence requests need to be timely for a driver to defend himself. If a driver facing DUI charges does not have adequate time or experienced counsel.

If the subpoena is not handled properly and the officers and others involved do not do not produce the supporting documents an entire case can be invalidated according to Florida in certain cases. For one if the support documents of the officer’s case are not there for a DUI petitioner than a constitutional issue arises in the petitioner’s behalf. That issue is due process as the fact that the actual documents supporting the arresting officer’s contention are not present to be examined. Florida DMV expects to persevere someone needs to make after a DUI arrest needs to be made quickly. Given the tight time period it must be provided in less than a week, which is why an experienced DUI attorney needs to be in your corner as soon as possible after the arrest.

In the case noted above before the District Court of Appeal’s First District here in Florida this exact issue was addressed successfully in the favor of the Petitioner, Gerald R. Lee in court documents. According to this appeals CASE NO. 1D08-2887, the Opinion was filed on March 10, 2009, with this set of circumstances. There are many complexities to be addressed in a circumstance involving a DUI, which a citizen needs to consider. First and most important is to secure legal counsel to overcome at least one provision in the DMV code. It is in Section 322.2615(6)(b) that states in part that “…a hearing officer may issue subpoenas for the officers and witnesses identified not only in the documents actually named in subsection (2), but also in “any [documentary] evidence submitted at or prior to the hearing.” ”.  As clear as this may seem, one can easily see that an experienced attorney with law, procedure and experience is a must. Dealing with this fine points are not to be taken lightly as enforcement is being stepped up all over Florida with such changes to the law as the new seatbelt law.

In this court document it listed among other things that Mr. Lee’s due process rights, a constitutional right, had been disrupted and prevented. Specifically, the court document commented that “A ruling constitutes a departure from ‘the essential requirements of law’ when it amounts to ‘a violation of a clearly established principle of law resulting in a miscarriage of justice.’”. Pretty clear it seems to the court when issues and events are overlooked like this. Of course, there is more to this case what can be said in only a few words and each case holds different facts as to what actually took place and as to adjudicating the case. This ruling by the Court of Appeal seems quite clear though. The hearing officer did not have the authority to issue the subpoenas. This sounds simple, but in fact it is truly how important procedures are in any legal dealings, especially with a DUI arrest.

The essence of the case is that the DMV allowed the evidence of the breathalyzer and its results, but did not allow the inspection reports of the device. Originally the lower court held that they were self authenticating and would be considered by the hearing officer. This was the twist in the case. The DMV would hear and consider this self authenticating evidence, but not allow the petitioner to cross examine the actual physical evidence or the persons responsible for the operation, maintenance or upkeep of the equipment. Something was missing for the petitioner, their rights to fully face their evidence and accuser. The Court of Appeal later found and held that the lower court had clearly prevented the petitioner’s right to due process. This was not an isolated case.

It was found that the case in the circuit court was flawed when facts were found that “the procedural due process rights afforded a driver when seeking review of a license suspension pursuant to section 322.2615 include “the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver.” hadn’t been made available to the petitioner.

If it isn’t, it’s usually overturned. An experienced and qualified DUI attorney can assist you in getting your case and the issues handled correctly.

As many states get tougher about the wearing of seatbelts as an issue, Florida too arrived with a new version. It was reported throughout the media and in The Miami Herald that Governor Charlie Crist signed legislation allowing police in Florida to ticket drivers specifically for not wearing seat belts. This reverses public policy on a decades old policy for seat belts in Florida.

The Governor signed the law for many reasons. Perhaps the easiest to understand is the approximately $35 million dollars of federal highway money for safety that Florida became eligible for if the state passed a bill crafted in this manner. Tampa’s AAA Auto Club South entity as well as other local public safety groups got the ball moving all made the goal to get the extra points that the federal money brings to Florida, especially in the current economy.

It was reported in the May 6th Miami Herald that Governor Crist had said lives would be saved and that it was government’s role to protect its people. It’s important to the Governor and the state government to protest its residents and citizens. Needless to say it’s obviously important in saving lives on the roads of Florida. The new law will go to work and starts doing its job come June 30th of 2009 by generating a fine of $30 for adults that are front seat violators. This goes along with the existing seatbelt law for minors, under 18 years of age.

The seatbelt issue came to the forefront after years of deaths and injuries caused in incidents where no restraints were in use by adult passengers in rear vehicle seats. Recently, Steve Bousquet of the Herald/Times Tallahassee Bureau reported on two families who lost their daughters as a result of not wearing seatbelts were killed in crashes and were present for this new laws signing.

As with any issue, and especially the lobbying needed to pass an issue, time can be a variable as to whether it’s this year or next. Legislation enactment has an uncertainty that is open ended. For the seatbelt issue, there is no more waiting, it is this year. Both sponsors were present for the signing.

AAA lobbied to get the new seatbelt Bill into law. Families and friends of people who had lost loved ones to not wearing seatbelts showed up for the signing of the Bill with the new laws sponsors, earlier in May of this year.

Perhaps increased awareness will help encourage people to wear their seatbelts and reduce injuries and deaths as a result. Police are enforcing the new law from June 30th, 2009 forward.

It is not uncommon for people to refuse submitting to a breath test when stopped by police for a suspected DUI. Whether it happens a lot or not is not at issue. It seems what is at issue is whether one can be compelled to do so, given the current writing and application of Florida law. However, being forced to submit to the test may seem rather harsh. This occurred to two people last year, according to an article by Paul Pinkham on June 18, 2009 at Jacksonville.com/News. The article is entitled Duval judges don’t agree on blood draws for DUI suspects. A circuit judge is now assigned to settle the issue.

To summarize it, one could characterize it as it is possible that issuing a warrant to take blood may occur is certain and it is uncertain whether the results will be suppressed or not by a judge. In this article there were similarities from what Pinkham reported, but he said there ere not many. Every case is different and has different fact patterns affecting its outcome. Among legal professionals the term fact pattern is commonly use in the course of their work when referring to the facts and how there are arranged.

In one case the judge found the forced taking of blood to violate Florida law. He then suppressed it as evidence. In the other case the forced taking of blood was allowed and accepted it as evidence. In the first case when the evidence was suppressed the prosecutors appealed the ruling, as a matter of course.

An appellate judge has been assigned to sort this out. It will be interesting to see how the issue of the forced removal of bodily fluids is considered by the courts in Florida. It can go many ways and leave both cases as they currently stand. The question that seems to beg for uniformity is when is it OK to refuse the test, and when isn’t it? Anyone who has ever had a few drinks, then driven, and is concerned if they will be at risk will most likely be keeping an ear to the wind for what the judge determines.

Other opinions may be found in the judiciary. It also may be possible there is current case law for attorneys on both sides of the issue to argue and use. The result will be interesting and affect many lives. Other judges will surely have diverse viewpoints on this important issue. An appeal is certain regardless of what the decision is made from the new judge.
How will this affect Florida drivers? One can only guess. Since Florida drivers seem to be able to refuse these tests, what the final outcome will be is up in the air; even with the implied consent in Florida law. Other states have implied consent features in their driving laws.

Florida will have a new ruling on the issue of forced evidence taking in misdemeanor cases soon, regardless. Perhaps an issue that will be argued and considered is where do the boundaries of evidence begin and end?

MADD, Mothers against Drunk Drivers suggest this solution to the drunken driving problem that exists. By using a designated driver you are not in a situation to be arrested. Arranging for a reliable designated driver may be a challenge if all your friends or fellow participants are planning to consume alcohol also. You and your friends can pool together and hire a limo service if the occasion is special enough and may be a fun way to prevent any problems that driving drunk can cause.

Another possible alternative for greater safety and fun is staying at the event if it is at a hotel. There will be no worries about driving and what may happen and then you can return the next day. If it is at friend’s home, one time you can stay at their place and the next time they can stay with you; neither of you driving after drinking. Most people who drink recreationally on weekends or on special occasions aren’t always able to make the event into a mini-vacation to handle frequent activities of celebrations involving alcohol consumption. People can make arrangements with friends to have mutual get-togethers and stay over to eliminate the possibility of driving drunk.

In many communities there is some sort of a community based Designated Driver Program. These offer solutions including providing transportation home for impaired drivers. One such local program around the Tampa area has been the “Tow to Go” program helping people and their cars get home safely. Check with local community resources to find out the particulars to help prevent the possibility of a possible arrest with assistance this program offers.

 Something some people used last holiday season around the Tampa area was an Alcohol Breath Tester key ring, though cannot claim to know or endorse these as foolproof. Making arrangements for public transportation or taking a cab are reliable. It may seem inconvenient but can save the time and hassle a DUI causes in life. Asking a friend to be the designated driver may be uncomfortable, but is less uncomfortable than a roadside stop and a DUI arrest. Finding the friend who really won’t drink may be hard, but you can offer to return the favor for another event in the future.

Following the alcohol beverage industry’s suggestion to drink responsibly is definitely wise. Plan ahead, if in doubt about whether you’ve had to drink, err on the side of caution and don’t drive. Better yet give your keys to a trusted friend to help watch out for you. Sometimes others can see when we have too much to drink. Taking a little extra care can save the time and expense that comes with a DUI stop and arrest.

These suggestions may work if you use them. Perhaps there are only two guarantees. One if you don’t drink you probably won’t drive drunk. The other is if you do drink and drive the possibly of being stopped becomes more likely the more often you do it.