The DUI Process in the State of Florida:
DUI Defense Attorney Jason Cromey, Esq.
What to Expect: So, you or a loved one have been arrested for Driving Under the Influence. You probably have a thousand questions and don't know what is going to happen next. Here is a short roadmap to provide you with some understanding of what is to come.
The Bail process & Getting Help making Bail
Once you are arrested you will be taken to the county jail. At the jail you will be asked whether or not you want to take a breath test. I discuss the issue of whether or not you should take a breath test in another section. The general rule is that you will be kept in jail until your blood alcohol level is below the legal limit or until eight hours have passed. The typical bond for a first time DUI charge is $1,000. You can pay the full amount yourself — this is known as a cash bond. You can also contact a bail bondsman who will charge you a fee and post the bond for you. If you past a cash bond you will get your money back at the end of the case. If you use a bondsman you will not get your money back. The percentage you pay to the bondsman is a fee for their service and they will keep it. Once your bond is posted (and the enough time has passed) you will be released. Finally, when you are being released the jail will give you a court date.
Hardship Licenses and The 10 Day Window
Whether you blow over .08 or refuse to take a breath test, your driver's license is likely going to be suspended by the Department of Highway Safety and Motor Vehicles (DHSMV). The DUI ticket that the police officer gave you serves as a 10-day driving permit. For a first time DUI you have three choices you can make during this 10-day window:
- Do nothing and lose your license for up to a year;
- Request an Administrative Review hearing to challenge your suspension; or
- Waive your right to a review hearing and get a hardship license immediately.
Obviously, doing nothing is probably not the best idea. An Administrative Review hearing must be requested within ten days of your DUI arrest. You will be given a temporary driving permit to use until the DHSMV makes a decision in your case. These formal challenges to a license suspension are very difficult to win and, if you lose, you will have to go several months without any driver's license at all. It is important to discuss with your lawyer whether or not you should move forward with a formal review hearing. In some cases it makes sense, but in the majority of first time DUI cases your best bet is the third option.
For a first time DUI arrest you are typically able to waive your right to a formal review hearing and request the issuance of a hardship license. So what is a hardship license? Also called a "business purposes" license, a hardship license lets you drive anywhere you need to in order to "maintain your livelihood." You are allowed to drive to and from work, the grocery store, doctor appointments, pick up and drop off your children, etc.
In order to qualify for the hardship license your request must be made within ten (10) days of your arrest. However, there are other steps you must take to make sure that you qualify. You must, among other things, enroll in DUI school, which requires that you get a certified copy of your driving record from every state where you have had a driver's license.
Contact your DUI lawyer as soon as possible so they can walk you through the process, help you complete the forms, and start working on your case.
What does Arraignment mean? What should I expect at my Arraignment?
When you leave the jail after posting bail you will be given a court date usually scheduled for about three weeks after your arrest. That court date is what's called "arraignment." This is the court date where you are supposed to advised of the formal charges against you and you are given an opportunity to enter a plea. In almost every case the defendant will enter a plea of "not guilty." Many people are considered about telling a judge that they are not guilty when they know that they were drinking and driving. Clients are worried that the judge will think that they are lying and that the judge will hold it against them later. This is not the case. You need to enter a plea of "not guilty" in order to give your lawyer time to investigate your case, make sure that law enforcement did not violate your rights, file appropriate motions challenging evidence, and negotiate a resolution with the state.
If you hire a lawyer before your arraignment then you typically will not have to attend the court date. Your attorney will file their Notice of Appearance and they will file a written plea of not guilty and waiver of arraignment on your behalf. You cannot file these documents on your own — it can only be done by an attorney representing you on the case. Finally, whether you attend arraignment or your lawyer waives it, you will be given your next court date.
What do they mean by DUI Discovery?
"Discovery" is the term used to describe all the police reports, breath test results, witness lists, photographs, and videos that the government has in their possession and that could be used against you at trial. Between your arraignment and your second court date the discovery process begins. Your lawyer files a document notifying the state that you intend to participate in discovery and demanding that the state provide you with what they have. Your lawyer will review all the reports and the video. They should also provide you with the opportunity to review the documents so you can provide any input or insight you may have. The same is true with any photographs or videos the government provides. In nearly all DUI cases there will be video footage — whether it's from the breath test, a patrol car camera, or a body cam.
After a review of all the discovery — and discussions with you — your lawyer should have a pretty good idea about whether any motions need to be filed and whether the case is likely going to be a trial.
Plea Day/Pretrial Conference/Docket Day
The second court date that you have in a DUI case is called different things depending on the court house or county that you case is in. It usually falls about four or five weeks after your arraignment. Despite what it's called, this court date is meant for your lawyer to tell the judge one of three things: (1) your case is ready for trial, (2) there is a negotiated settlement in the case, or (3) more time is needed to complete discovery.
What exactly is a Plea? Are Pleas offered to every case?
Every case is difference and no results are guaranteed. That being said, a first-time DUI in our area will typically result in a sentence of one year of probation. This assumes that there were no aggravating factors such as children in the car, an accident, no prior DUI 's, and that the breath alcohol level was not through the roof. During the course of probation you will have to complete DUI school, have a substance abuse evaluation performed, comply with any substance abuse treatment that is required, perform 50 hours of community service work, attend a session of the Mothers Against Drunk Driving victim impact panel, submit to random drug and alcohol testing, pay court costs and costs of supervision, and stay out of trouble. The judge will also order your driver's license suspended for a period of six months. If you already have a hardship license then you will be able to schedule another hearing with the Office of Administrative Review to have your hardship license reinstated.
A second DUI may carry with it mandatory jail time under Florida law. If you second arrest occurs within five years of your first conviction then you must serve a mandatory ten days in the county jail. Florida statutes do allow you to get day-for-day jail time credit when you spend time in inpatient treatment. The license suspension will also be longer and you will be required to install an Ignition Interlock Device in your vehicle. This is the blow tube that is installed near your steering wheel that won't let your car start until you blow in to it and it does not detect any alcohol.
Under Florida law if you pick up a third DUI you could very well be facing a felony charge and therefore far more severe penalties. If you are arrested for your third DUI within ten (10) years of the date of conviction for your second DUI then you will likely be charged with a third degree felony and facing up to five (5) years in prison. If you find yourself in this position then you really need to reach out to a lawyer to discuss your case.
Finally, a fourth DUI in Florida is always a third degree felony and the possibility of going to prison is real. Contact an experience DUI to make sure that the case is examined from top to bottom.
What if I took my DUI case to Trial? Is it advisable to push it that far?
The decision to take your case to trial is your decision. Your lawyer is there to give you advice on how to proceed but it is not their choice to take the case to trial — that is always the client's choice. A trial can be held with or without a jury. A trial where the judge makes the decision about whether you're guilty is called a "judge trial" or "bench trial." Like the decision to go to trial, waiving a jury of your peers and leaving it all up to the judge is a decision that the client makes. Most lawyers would not recommend that you waive a jury trial unless there is a very good reason for doing so.
A jury trial begins with picking a jury. In a DUI case in Florida you are entitled to six (6) jurors. Jurors are citizens of your community who will listen to the evidence, determine what they believe the facts to be, and apply those facts to the law the judge instructs them on. Typically you will begin with around thirty prospective jurors. The judge will explain to the jury how the process works and what their role is. The prosecutor will ask the potential jurors questions, followed by your lawyer. Once both sides have had their opportunity to learn about the jurors the selection process begins. A "strike" is the term used to describe removing a juror from the group of six that will sit on the case. There are two types of strikes. The first is a strike "for cause." Cause strikes are used when a potential juror has expressed an opinion or position that is contrary to the law or otherwise establishes that there is a reasonable doubt about the juror's ability to be fair and impartial. There are no limits about how many cause strikes either side can make. The second type of challenge I called a "pre-emptory challenge." In a DUI case in Florida both sides — the government and the defendant — have six of these strikes they can use. So long as the reason to remove the juror is race and gender neutral, most justifications for removing juror are okay. For example, a potential juror has a brother-in-law who is a police officer. The potential juror has said that, despite what his brother-in-law does for a living, he can be fair and impartial. This juror could not be struck for cause. However, the defense would likely want to strike this juror out of concern that he will favor police officer testimony or the state's case. Therefore, the defense lawyer would use a pre-emptory strike on that juror.
The next part of the trial is opening statements. These statements are not evidence or arguments. Rather, it is an opportunity for both sides to tell the jury what they expect the evidence will be at trial. The prosecutor will go first, followed by the defense attorney.
Once opening statements are finished the evidence portion of the trial begins. Because the government has the burden of proving beyond a reasonable doubt that you are guilty of DUI they have to go first. In a typical DUI case the state will call the police officer that stopped you and arrested you, any other police officers that may have been involved in the field sobriety exercises, the person who operated the breath testing machine, and the person who maintains the breath testing machine. If there are any videos then the prosecutor will usually introduce those as well. Your lawyer will have an opportunity to cross examine the government witnesses after they are done being asked questions by the government.
After the state rests their case your lawyer will usually make a Motion for Judgment of Acquittal. This is a motion asking the judge to throw out, or dismiss, the case because the government failed to present enough evidence to support the charges.
If the judge denies your motion then it is your opportunity to put on evidence. Contrary to what many people think, it is not uncommon for a defense lawyer not to put on any evidence of their own. In a typical DUI case much of the evidence that the defense lawyer will argue to the jury will come from the cross-examination of the police officers and the DUI videos. As a defendant in a criminal case you have a constitutional right to testify on your own behalf, as well as the constitutional right to remain silent. Your lawyer will have a discussion with you about whether or not to take the witness stand. Just like the decision to go to trial, the decision about whether or not to testify is entirely up to the client. The lawyer is simply there to provide the client with advice. Once the defense has rested their case your lawyer will renew the Motion for Judgment of Acquittal.
Closing arguments are the last stage of the DUI trial. The state will make the first argument to the jury, asking that the jury convict the defendant because the state has proved DUI beyond a reasonable doubt. Like opening statements, closing arguments are not evidence. They are simply the opportunity for the lawyers to provide their opinion as to what the facts are and how the law applies to those facts. After the prosecutor finishes his argument it is the defense lawyers turn. Your lawyer will argue, among other things, that the prosecutor failed to prove the crime of DUI beyond a reasonable doubt. Finally, the prosecutor gets one more opportunity to convince the jury to side with them.
Once it is all said and done the jury will meet in private and discuss the case. This process is called deliberation. A jury verdict in Florida must be unanimous. When the jury reaches a decision they will let the judge know. The judge will then bring the jury in and have them announce their verdict of guilty or not guilty.
Field Sobriety Exercises
Everyone has heard about field sobriety exercises — stand on one leg, walk the line, etc. For the most part these "exercises" were developed by the National Highway Traffic Safety Administration as ways to determine whether somebody was over the legal limit or under the influence to the point that their normal faculties are impaired. These exercises are not easy. They require physical skills. Each exercise also has a list of instructions that must be followed to the T. The combination of physical requirements and mental gymnastics make for a difficult series of tasks to "pass."
For example, the first exercise that a police officer will usually ask you to do is called the walk-and-turn. Remember that at this point you are standing on the side of the road. You have just been pulled over by the police. You are being accused of committing the crime of DUI. You have never been in trouble before. The patrol lights are flashing, cars are whizzing by, and you are more nervous than you have ever been. Every instruction you forget or get wrong is a "cue" that you are impaired. Every wobble to the left or right is a "cue" that you are DUI. Under these circumstances the officer is going to instruct you to do the following things:
- Stand in one place.
- Place one foot in front of the other, with the heel of the front foot touching the toe of your other foot.
- Keep your arms by your side and do not use them for balance.
- Stand in that position during the remaining instructions and do not start until you are told.
- Take 9 steps forward.
- Stay on the line (which is likely imaginary)
- Count each step out loud.
- Touch heel to toe on each step.
- Keep your hands by your side.
- Look down at the line as you walk.
- After your ninth step turn, keeping one foot on the ground and pivot in a circle, taking short steps with in a circle with your other foot.
- Take 9 steps back.
- Stay on the line.
- Count each step out loud.
- Touch heel to toe on each step.
- Keep your hands by your side.
- Look down at the line as you walk.
Don't forget that during all these instructions you are standing one foot in front of the other, heel to toe. Obviously, under these circumstances, it is understandable that someone would forget one of the instructions, step of the line, or have to ask a question. However, the officer and prosecutor will argue that those "mistakes" are proof that you are drunk.
The other exercises, including the Horizontal Gaze Nystagmus, the Finger-to-Nose, the Rhomberg Alphabet exercise, are not any easier and have a similar number of instructions. If you have been arrested and charged with DUI it is incredibly important that you have a lawyer who is familiar with these exercises and instructions. It is important that your lawyer knows these exercises backwards and forwards so they can explain to the jury that you did exactly what we would expect someone to do based upon the conditions and your nerves.
The Breath Test
One of the most common questions I get from friends, clients, and strangers is whether or not they should take the breath test. Under Florida law, by driving on the roads of Florida you have consented to submit to a breath test. If you look at the front of your Florida Driver's License in the middle on the bottom is the following line: "Operation of a motor vehicles constitutes consent to any sobriety test required by law." Based on this implied consent if you refuse to provide a breath test your license will be suspended for a period of twelve months. If you have refused in the past then a second refusal will be charged as a crime, a second degree misdemeanor, and you will lose your license for eighteen months.
As I said, if you refuse to provide a breath sample your license will be suspended. However, your license will also be suspended if you blow over .08. In either scenario — a refusal or over the limit — for a first time arrest you will be able to get a hardship license almost immediately. The big drawback to providing a breath sample is that now the government has a test result from what they will present to the jury as a high piece of perfect equipment. In order to prove DUI the state only has to prove that you were (1) in actual physical control of a vehicle (2) on the streets or highways of the state (3) with a blood alcohol content over .08. With a breath test the prosecutor's job just became a whole lot easier.
The other big concern is that the breathalyzer is not a flawless machine. While the science is complicated, here is a good example of why you should be concerned about the accuracy of this machine: Under the rules and statutes in Florida when a breath test is performed at least two samples must be taken from the suspect. In order for the test to be valid the two samples must be within .02 of each other. For example, a suspect blows in to the machine and the breath test shows that he has a breath alcohol concentration of 0.100. He blows into the machine a second time and the result comes back as 0.079. In this case the test would be considered invalid. However, if the second blow had been 0.08 then the test would have been legally valid. The machine is built to require that the results of the two test are within 25% of the legal limit. Seriously — that's the requirement for this machine. Think of a scale. Imagine you step on the scale and it says you weigh 200 pounds. You step off and get back on. Now it tells you that you weigh 150 pounds. You would probably throw the scale in the garbage. However, if this was a breath testing machine then these results would be perfectly reasonable, accurate, and reliable according to the government. The prosecutor would have no problem using that scale to see how much they weigh.
Even more disturbing is that the entire breath testing machine is essentially based on computer code that analyzes, converts, calculates, and interprets the breath sample. One company out of Kentucky, CMI, Inc., has the exclusive contract with the State of Florida for breath testing machines. However, the company refuses over and over to turn over the computer codes. Instead, the government and the company just tell the citizens of the state to trust the machine because it would be financially negative for CMI, Inc., to let the competition know how their machines truly work.
Ultimately, Florida law basically requires that a driver submit to a breath test. However, at least the first time you are arrested for DUI, there are reasons to exercise your ability to decline the test.