As a Fort Lauderdale criminal defense attorney, I frequently get asked the question, “What should I do if I am arrested for Driving While Under the Influence (DUI) in Florida?” and “Should I provide a breath sample?” The answers to these questions vary on a case by case basis; there is no universal or “foolproof” answer. What an experienced criminal defense attorney can provide is guidance as to a driver’s options if they are pulled over for Driving While Under the Influence (DUI), how the police determine if a driver is impaired and debunk some common misstatements of the law.
In Florida, to prove the crime of Driving While Under the Influence (DUI), the State must prove that the driver was under the influence of drugs or alcohol to the extent that their “normal faculties” were impaired. “Normal faculties” include, but are not limited to, the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and in general, to normally perform the many mental and physical acts of our daily lives.
Not surprisingly, whether a driver is considered under the influence of drugs or alcohol to the extent that their normal faculties are impaired is impacted by many different factors such as:
a. Frequency of drugs/alcohol consumed;
b. Type of drugs/alcohol consumed;
c. When the drugs/alcohol were consumed;
d. How much food/water was consumed over the preceding few hours;
e. The driver’s age, weight, physical abilities and physical limitations (eyesight, hearing, etc.)
The police also place great weight in other factors before making a determination as to whether a driver is under the influence of drugs or alcohol such as:
f. The reason for pulling over the driver:
- Driving pattern, including the number of violations; and the severity of violations;
- Whether the driver was involved in an accident;
- Whether the driver committed a Moving Violation(s) (speeding, weaving, running a stop sign) or a Technical Violation(s) (loud exhaust, broken tail light);
g. The driver’s answers to law enforcements’ questions (i.e. were you drinking this evening?);
h. Did the driver provide law enforcement with their license, insurance and registration in a timely manner;
j. Does the driver exhibit:
- Glassy eyes;
- Watery eyes;
- Bloodshot eyes;
- Flushed face;
- Slurred or mumbled speech;
- Slow or lethargic movements;
- Lack of balance;
- Lack of coordination; and/or
- Odor of alcoholic beverage.
k. How did the driver perform on a series of roadside exercises such as:
- Walk and Turn;
- One Legged Stand;
- Alphabet (in some jurisdictions)
All of the factors listed above are crucial to law enforcement’s determination whether a
driver is driving under the influence of drugs or alcohol. Of all the factors, however, most experienced criminal defense attorneys will agree that the Court will oftentimes place the greatest weight in:
- Whether the police officer noticed an odor of alcoholic beverage emanating from the driver’s breath;
- Any statements by the driver admitting to the consumption of alcohol;
- Whether there are any open containers of alcohol in the vehicle; and
- The driving pattern.
It goes without saying that I do NOT encourage or promote individuals to drink and drive. However, in the event that a driver chooses to drink and drive, they should pay careful attention to following suggestions as it could possibly reduce their chances of being arrested for Driving While Under the Influence (DUI).
- Mask the odor of any alcohol beverage (i.e. gum, mints, Scope, etc.) before driving.
- Do not admit or tell the police officer that you consumed alcohol that evening. It is a misnomer that an individual will not be arrested if they tell the police officer that they only consumed two beers.
- Do not drive with open containers of alcohol.
- Do not speed or drive recklessly.
- Do not drive if your vehicle has any defects (i.e. expired tag, broken tail light).
In the event that law enforcement suspects that a driver is driving while under the influence (DUI), the police will inevitably ask the driver to submit to roadside exercises (see above). Any experienced criminal defense lawyer will tell you that the driver is not required to submit to these roadside exercises. I repeat, the driver is not required to submit to these roadside exercises; the roadside exercises are optional. In the event that the driver does not submit to the roadside exercises, the police officer can only base their determination of whether they have probable cause to arrest the driver based on the observations that they have made up until that point. That is why all experienced criminal defense attorneys should advise their clients not to give the police a reason to justify their arrest (odor of alcohol, open container, admissions to consuming alcohol, etc.).
In the event that a driver agrees to take the roadsides exercises, please understand that the police are looking for very specific clues that are not obvious to laymen. For example, here are the eight clues the police are looking for during the “walk and turn” exercise.
Does the driver:
- Lose his balance during instructions;
- Starts the exercise before being told to do so;
- Stops walking or pauses to regain balance;
- Touch his heel to toe (Leaves more than ½ space);
- Step off the line one or two times;
- Raise one or both arms six or more inches to regain balance;
- Turn correctly or loses balance during turn; and/or
- Take more or less than 9 steps in each direction.
Word of advice, listen very carefully to the officer’s instructions and follow them as closely as possible. The ability to follow instructions is a common element of all the roadside exercises.
In the event the police arrest a driver for Driving While Under the Influence (DUI), the driver will be given the opportunity to submit to a breath test. In the event that the driver declines to submit to a breath test, the police officer will read the driver the following Implied Consent Instruction:
If you fail to submit to the test I have requested of you, your privilege to operate a motor vehicle will be suspended for a period of one (1) year for a first refusal, or eighteen (18) months if your privilege has been previously suspended as a result of a refusal to submit to a lawful test of your breath, urine or blood. Additionally, if you refuse to submit to the test I have requested of you and if your driving privilege has been previously suspended for a prior refusal to submit to a lawful test of your breath, urine or blood, you will be committing a misdemeanor. Refusal to submit to the test I have requested of you is admissible into evidence in any criminal proceeding. Do you still refuse to submit to this test knowing that your driving privilege will be suspended for a period of at least one year and that you will be charged criminally for a subsequent refusal?
The million dollar question is whether a driver should submit to the breath test knowing their license will be suspended for a year on your first refusal? I cannot answer that question, as it once again determined on a case-by-case basis; however, please be advised of the following:
- A driver’s license will be suspended for ninety days even if the driver provides a breath sample (.08 or above).
- Typically, but not always, it is easier to defend a “refusal” to submit to a breath test at trial compared to an individual who provides a breath sample of .08 or above.
- If a driver submits a breath result of .15 or above, the driver will receive additional penalties (i.e. interlock device attached to your car) at a plea.
The best recommendation an experienced criminal defense lawyer can provide to avoid all penalties … DO NOT DRINK AND DRIVE.