Orlando DUI Defense Lawyer

The mistakes the officer made in your DUI case can mean the difference between a conviction and a dismissal.  Officers are trained to do DUI investigations properly but everyone makes mistakes, including police officers.  Chris is a former DUI prosecutor who has over 18 years of experience defending DUI charges in.  Chris uses his knowledge of how officers are trained to properly perform DUI investigations to determine what mistakes the officer made in your DUI case and hor those mistakes can help get your DUI charge dismissed.  DUI charges can be beaten for many reasons.  Chris has beaten them for many clients and he may be able to beat them for you.  The consultation is free so call 407-740-8300 or email Chris at chris@theorlandodefenselawyer.com to find out how Chris can help you.

Orlando DUI Suspension Lawyer

If you were arrested for DUI then your driver license is already suspended for at least 6 months if you blew over the legal limit and at least 1 year if you refused the breath test.  If you would like to know what can be done to get your driver license back call Chris at 407-740-8300 to discuss your Orlando DUI suspension.

Former DUI Prosecutor

As a former DUI prosecutor Chris has an understanding of what can be important to the prosecutor in your Orlando DUI case.  It is important to understand how the other side works.  Chris uses this understanding to determine what needs to be done to get the best possible outcome in your DUI case.  

Orlando DUI Defense Lawyer Since 1999

Chris has been defending individuals in Orlando charged with DUI since 1999.  Being an Orlando DUI defense lawyer for so long has given Chris the opportunity to spend a lot of time working with the judges and prosecutors in Orlando that handle DUI cases like yours.  Experience dealing with those judges and prosecutors is important in achieving the best results in your DUI case.  

Different Orlando DUI Defense Lawyers Get Different Results

When you have been charged with DUI in Orlando you need an aggressive, experienced, and knowledgeable lawyer like Chris to defend you.  A DUI conviction will stay on your record forever, therefore, it is important to be represented by the right lawyer.  The better prepared you are for your court appearance the more likely it is you will get a favorable outcome.  The best results possible are rarely obtained by just hoping for them.  Get the help you need at Chris S. Boatright, P.A. to get the best results possible.

Orlando DUI Defense Step One

Successfully defending an Orlando DUI charge starts by determining why you were stopped by the law enforcement officer. Most often the reason for the stop is a traffic infraction. Investigating the lawfulness of your stop is an important part of any Orlando DUI defense strategy.

My first step as your Orlando DUI defense lawyer is to discuss with you why the officer told you were being stopped and what you actually did and did not do. My next step is to review the police report and any tickets issued by the officer to determine if the reason told you by the officer for your traffic stop is the documented reason for the traffic stop. Based on my experience as an Orlando DUI defense lawyer since 1999 often times the reason for the traffic stop that the officer tells you and the reason for the traffic stop that the officer writes in the police report and issues tickets for are different. This is because officers will stop people for doing things out of the ordinary like a wide right turn out of a bar late at night or driving well below the posted speed limit in an area where people normally exceed the posted speed limit. However, making a wide turn or driving well below the posted speed limit are not illegal and, therefore, are not a lawful basis for an officer to conduct a traffic stop. The officer knows they need a lawful basis to conduct a traffic stop so the officer needs to write something in the police report that is a lawful basis to conduct a traffic stop so that is why the officer says you committed some actual traffic infraction.

My next step in determining the lawfulness your traffic stop is to read the Florida Statutes that the officer says you violated. Florida Statutes can be unclear on what specific acts violate the statute. Therefore, my next step is to research any applicable case law interpreting that Florida Statute. Once I have a clear understanding of what the Florida Statue says is unlawful and what the officer said you did and what you say you actually did and did not do if the traffic stop was unlawful then I start to put together my argument why your driving did not violate any Florida Statute and, therefore, the officer unlawfully stopped you. Pictures and/or video of the area or intersection where the alleged traffic violation occurred can be helpful in demonstrating that the officers reason for stopping you was invalid. Some officers have an in car video of the driving that was the basis for your stop but often times the officer does not.

If your stop was unlawful then as your Orlando DUI defense lawyer I will file a motion to suppress to challenge the lawfulness of your stop and ask the court to prohibit the prosecutor from introducing any evidence obtained from that unlawful stop at your trial. If the judge in your case agrees your traffic stop was unlawful then any evidence obtained as a result of that stop is inadmissible at the trial. This means the prosecutor in your trial would not be able to tell the jury for example that according to the officer you: had the odor of alcoholic beverages on your breath; made statements about consuming alcohol before driving; you allegedly performed poorly on field sobriety exercises; had breath test results over the legal limit or you refused a breath test. Basically the only thing the prosecutor could tell the jury about is how you were driving before you were stopped which is usually not even close to enough to get a guilty verdict in a DUI case which is why the prosecutor will normally either drop the DUI charge or appeal the ruling to try change the judge’s ruling to try to save the DUI charge.

Information About Orlando DUI Charges

DUI

Florida Statute section 316.193 states that a person is guilty of the offense of driving under the influence if the person is driving or in actual physical control of a vehicle within the state of Florida and the person is under the influence of alcoholic beverages, any chemical substance set forth in Florida Statute section 877.111, or any substance controlled under Florida Statute chapter 893, when affected to the extent that the person’s normal faculties are impaired.

Vehicle is every device, in, upon or by which any person or property is, or may be, transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks.

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.

Actual physical control of a vehicle means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

Alcoholic beverages are considered to be substances of any kind and description which contain alcohol.

This is the part of the statute the covers a general DUI, however, Florida Statute 316.193 also lists some more specific DUI charges that may be punished more severely than a general DUI such as DUI With a Breath Alcohol Level Above 0.15; DUI With Property Damage or Personal Injury; DUI Accompanied by a Minor; DUI With a Prior Conviction; DUI With Multiple Prior Convictions.

An arrest for any type of DUI will cause your license to be suspended by the Department of Highway Safety and Motor Vehicle (DHSMV) if your breath test results were .08 or higher or you refused to submit to a breath, blood or urine test.  This suspension is in addition to any suspension that may occur if you are convicted of DUI in criminal court.  As your attorney, I can assist you in aggressively challenging your criminal DUI charge and protecting your driving privileges.

Driver License Suspension

If you have been arrested for DUI and you submitted to a breath test and the results were above the legal limit then currently your driving privilege is suspended for a minimum of six months.  If you have been arrested for DUI and you refused to submit to a breath, blood or urine test then currently your driving privilege is suspended for a minimum of one year.

If your driving privilege has never been suspended for a DUI arrest then you have two options to try to get your driving privileges reinstated.  You can waive your right to a hearing to challenge the suspension of your driving privilege and immediately request a hardship license. This hardship license is for business purposes only.  This waiver must be done within ten days from the date of your DUI arrest at the Bureau of Administrative Reviews at DHSMV.  Or you can challenge this suspension of your driving privilege. To challenge the suspension of your driving privilege you must file a written request for a review hearing at the Bureau of Administrative Reviews at DHSMV within ten days of the date of your arrest for DUI.  If you do not timely and properly request a review hearing within ten days from the date of your arrest for DUI then you lose your right to challenge the suspension of your driving privilege.

If your driving privilege has been previously suspended for a DUI arrest then you cannot waive your right to challenge the suspension of your driving privilege and immediately request a hardship license.  You must challenge the suspension of your driving privilege by requesting a hearing.

As your attorney, I will review the facts of your case and help you decide whether to challenge the suspension of your driving privilege or waive that right and immediately request a hardship license.  I have over fifteen years experience defending people against driver license suspensions resulting from a DUI arrest and therefore I have the experience necessary to assist you in deciding what choice is best for you.

Traffic Infractions

Many people who are arrested for DUI where stopped by a law enforcement officer for allegedly committing a traffic infraction like speeding or running a stop sign.  However, some people who are arrested for DUI were not stopped by an officer for committing a traffic infraction, they were stopped because of how they were driving. Officers are trained to look for certain types of driving that may indicate impairment.  In your DUI case the reason why you were stopped may cause damaging evidence to be inadmissible which may result in your charge being reduced or dismissed.

Once the law enforcement officer conducts a traffic stop the officer will make contact with the person.  If upon contact the officer smells the odor of an alcoholic beverage coming from the breath of the person who is driving the officer will begin a DUI investigation.  Part of the DUI investigation will normally include the officer asking the person some questions to try to determine how many alcoholic beverages the person recently consumed before being stopped by the officer.  While the officer is questioning the person the officer is not only paying attention to the answers the officer is also looking to see if any other indicators of impairment exist.  A lack of indicators of impairment may cause damaging evidence to be inadmissible which can provide an effective argument as to why your DUI case should be reduced or dismissed.

Field Sobriety Tests

The law enforcement officer in your case probably had you perform field sobriety tests.  How well you performed the field sobriety tests is an important factor in determining the outcome in your DUI case.  The better you performed on field sobriety tests in your DUI case, the better able I will be to convince the prosecutor to reduce or drop the DUI charge in your case.  Your performance of field sobriety tests may have been recorded which may assist us in proving that the officer incorrectly determined you were impaired.  The field sobriety tests most commonly used by an officer are the Horizontal Gaze Nystagmus, Walk-And-Turn and One-Leg Stand.

Horizontal Gaze Nystagmus Test is a test that involves the law enforcement officer checking your eyes to determine if nystagmus exists and if so at what degree nystagmus exists.  If the horizontal gaze nystagmus test was not administered properly the officer may have incorrectly believed you were impaired.

THE HORIZONTAL GAZE NYSTAGMUS TEST IS A TOOL FOR THE OFFICER TO OBSERVE VISIBLE SIGNS OF IMPAIRMENT IT IS NOT A PASS/FAIL TEST.

IF ANY ONE OF THE ELEMENTS OF THE HORIZONTAL GAZE NYSTAGMUS TEST IS CHANGED, THE VALIDITY MAY BE COMPROMISED.

Horizontal Gaze Nystagmus (HGN) is an involuntary jerking of the eyes, occurring as the eyes gaze to the side.  Although this type of nystagmus is indicative of alcohol impairment, its presence may also indicate use of certain other drugs.  Examples of other drugs are: central nervous system depressants, inhalants, and dissociative anesthetics such as pcp and its analogs.  The higher the degree of impairment, the sooner the nystagmus will be observable.

Procedures Of Horizontal Gaze Nystagmus Testing: The Three Clues

The Lack Of Smooth Pursuit (Clue Number One)

The eyes can be observed to jerk or “bounce” as they follow a smoothly moving stimulus, such as a pencil or penlight.  The eyes of an impaired person will not follow smoothly, i.e., a marble rolling across sand paper, or windshield wipers moving across a dry windshield.

Distinct And Sustained Nystagmus At Maximum Deviation (Clue Number Two)

Distinct and sustained nystagmus is evident when the eye is held at maximum deviation for a minimum of four seconds and continues to jerk toward the side.

Onset Of Nystagmus Prior To 45 Degrees (Clue Number Three)

The point at which the eye is first seen jerking.  If the jerking begins prior to 45 degrees it is evident that the person is legally impaired and, therefore, should be arrested for DUI.

It is important to administer the Horizontal Gaze Nystagmus Test using the following steps to ensure nothing is overlooked.  There are 10 steps in the systematic administration of the Horizontal Gaze Nystagmus Test.

Step 1: Check For Eyeglasses. (Note if subject wears contacts, especially colored contacts because some colored contacts may affect the ability to compare pupil size)

Begin by instructing the subject to remove eyeglasses, if worn.  It does not matter whether the person can see the stimulus with perfect clarity.  The person just needs to see it and be able to follow it.

Step 2: Verbal Instructions

Put feet together, hands at the side

Keep hand still

Look at the stimulus

Follow movement of the stimulus with the eyes only

Keep looking at the stimulus until told the test is over

Step 3: Position The Stimulus

Position the stimulus approximately 12-15 inches in front of the person’s nose, and slightly above eye level to commence the test.  Resting Nystagmus may be observed at this time.  Officers should note whether the subject displays Resting Nystagmus.

Step 4: Equal Pupil Size And Resting Nystagmus

Check for equal pupil size and Resting Nystagmus.

Step 5: Equal Tracking

Check for equal tracking.  Move the stimulus rapidly from center to far right, to far left and back to center.  The speed of the stimulus should be approximately the same speed used when checking for the lack of some pursuit.

Step 6: Lack Of Smooth Pursuit

Check the left eye for the lack of “smooth pursuit” clue.  If the eye is observed to jerk while moving, that is one clue.  Check the right eye for the lack of “smooth pursuit” clue and compare.

Step 7: Distinct And Sustained Nystagmus At Maximum Deviation

Check the right and left eye for the “distinct and sustained nystagmus at maximum deviation” clue.  If the jerkiness is distinct and sustained, that is one clue.

Step 8: Onset Of Nystagmus Prior to 45 Degrees

Check the left eye for the “onset of nystagmus prior to 45 degrees” clue.  If the jerking begins prior to 45 degrees, that is one clue.  Check the right eye for the “onset of nystagmus prior to 45 degrees” clue, and compare.

Step 9: Total The Clues

Maximum number of clues for each eye: 3

Total maximum number of clues possible for both eyes: 6

A total of 4 or more clues equals impairment.

Step 10: Check For Vertical Nystagmus

For standardization the testing officer should begin with the person’s left eye.  The officer should check for the first clue.  Next, the officer should check the right eye for the same clue.  The officer should repeat this procedure for each clue starting with the left eye, then right eye and compare and document the results.  It is possible that all three clues definitely will be found in one eye, while only two (or sometimes only one) will show up in the other eye.  It is always necessary to check both eyes, and to check them independently.  Notwithstanding, it is unlikely that the eyes of someone under the influence of alcohol will behave totally different.  Thus, if one eye shows all three clues distinctly while the other eye gives no evidence of nystagmus, the person may be suffering from a pathological disorder.  Pathological Nystagmus is caused by the presence of a specific pathological disorder, which include brain tumors, other brain damage, or some diseases of the inner ear.

The Mechanics Of Clue Number 1: Lack Of Smooth Pursuit

It is necessary to move the stimulus smoothly in order to check the eye’s ability to pursue smoothly.  The stimulus should be moved from center position, all the way out to the right side (checking person’s left eye) where the eye can go no further (checking person’s right eye) and then back to the center.  The stimulus must be moved steadily, at a speed that takes approximately 2 seconds to bring the eye from center to side.  In checking for this clue, the officer should make at least two complete passes in front of the eyes.  If the officer is still not able to determine whether or not the eye is jerking as it moves, additional passes may be made in front of the eyes.

The Mechanics Of Clue Number 2: Distinct And Sustained Nystagmus At Maximum Deviation

The officer should once again position the stimulus approximately 12-15 inches in front of the person’s nose and slightly above eye level.  The stimulus should be moved off to the right side (checking the person’s left eye) until the eye has gone as far as possible.  The officer should hold the stimulus steady at that position for a minimum of 4 seconds, and carefully watch the eye.  Then the officer should move the stimulus back across the person’s face all the way out to the left side (person’s right eye).  Four seconds will not cause Fatigue Nystagmus.  Fatigue Nystagmus may begin if a person’s eye is held at maximum deviation for more than 30 seconds.  The stimulus should be held steady and the eye watched carefully.  If the person is impaired, the eye is likely to exhibit definite, distinct and sustained jerking when held at maximum deviation for a minimum of four seconds.  In order to “count” this clue as evidence of impairment, the nystagmus must be distinct and sustained for a minimum of four seconds.  If the officer sees only slight nystagmus at this stage of the test, or if the officer has to convince themselves nystagmus is present, then it really isn’t there.

The Mechanics Of Clue Number 3: Onset Of Nystagmus Prior To 45 Degrees

The officer should once again, position the stimulus approximately 12-15 inches in front of the person’s  nose and slightly above eye level.  It is necessary to move the stimulus slowly to identify the point at which the eye begins to jerk.  The stimulus should be moved towards the right side (left eye) at a speed that would take approximately four seconds for the stimulus to reach a 45 degree angle.  As the stimulus is being slowly moved the officer should watch the eye carefully for any sign of jerking.  When jerking begins the officer should stop moving the stimulus and hold it steady at that position.  With the stimulus held steady the officer should look at the eye and verify that the jerking is continuing.  If the jerking is not evident with the stimulus held steady, the officer has not located the point of onset.  Therefore, the officer should resume moving the stimulus slowly toward the side until the jerking is noticed again.  Once the point of onset of nystagmus is located, the officer must determine if it is prior to 45 degrees.  If the onset of nystagmus occurs prior to or at 45 degrees there should be some white still showing in the corner of the eye.  The angle of onset of nystagmus is simply the point at which the eye is first seen jerking.  Generally speaking, the higher the blood alcohol content, the sooner the jerking will start as the eye moves toward the side.

During the Horizontal Gaze Nystagmus Test interpretation the officer should look for three clues of nystagmus in each eye or for a total of six clues.

Impairment Clues:

Lack Of Smooth Pursuit (The eye cannot follow a moving object smoothly.)

Distinct And Sustained Nystagmus At Maximum Deviation (Nystagmus is distinct and sustained when the eye is held at maximum deviation for a minimum of four seconds.)

Onset Of Nystagmus Prior To 45 Degrees

If four or more clues are observed by the officer it is likely the person is legally impaired and should be arrested for DUI.

The Walk-And-Turn Test is a test that involves the law enforcement officer having you stand in the heel-to-toe position during the instructions for the test and then walk nine heel-to-toe steps down a line and then turn around as instructed and walk nine heel-to-toe steps back down the line.  Many factors unrelated to the consumption of alcoholic beverages such as physical disabilities, nervousness and fatigue can cause you to perform poorly on this test.

THE WALK AND TURN TEST IS A TOOL FOR THE OFFICER TO OBSERVE VISIBLE SIGNS OF IMPAIRMENT IT IS NOT A PASS/FAIL TEST.

IF ANY ONE OF THE ELEMENTS OF THE WALK AND TURN TEST IS CHANGED, THE VALIDITY MAY BE COMPROMISED.

The walk and turn test is a divided attention test consisting of two stages:

Instructional Stage

Walking Stage

In the Instructional Stage, the person must stand with their feet in a heel to toe position, keeping their arms at their sides, and listen to the instructions.

In the Walking Stage the subject takes nine heel to toe steps, turns in a provided manner, and uses the other foot to take nine heel to toe steps, turns in a provided manner, and uses the other foot to take several small steps to complete the turn.

The walk and turn exercise should be administered and interpreted in a standardized manner, i.e., the same way every time.

Officers administering the walk and turn test should observe the person’s performance for eight clues.  These eight clues are:

Cannot keep balance while listening to the instructions

Starts too soon

Stops while walking

Does not touch heel to toe

Steps off the line

Uses arms to balance

Improper turn

Incorrect number of steps

Inability to complete the walk and turn test may occur when the subject is in danger of falling or otherwise cannot complete the test.

If a person exhibits two or more clues on the walk and turn test or fails to complete the walk and turn test the person is considered to be legally impaired and should be arrested for DUI.

Walk And Turn Test Instructions

For the walk and turn test the officer should explain the test requirements by giving instructions accompanied by demonstrations.  The officer should say:

Place your left foot on the line(real or imaginary).

Place your right foot on the line ahead of the left foot, with the heel of your right foot against the toe of the left foot.

Place your arms down at your sides.

Maintain this position until I have completed the instructions.

Do not start to walk until told to do so.

Do you understand the instructions so far?(The officer should make sure the person understands.)

When I tell you to start, take nine heel to toe steps down the line and, turn, and take nine heel to toe steps down the line.

When you turn, keep the front(lead) foot on the line, and turn by taking a series of small steps with the other foot like this(demonstration).

While you are walking, keep your arms at sides, watch your feet at all times, and count your steps out loud.

Once you start walking, don’t stop until you have completed the test.

Do you understand the instructions?(Make sure the person understands the instructions)

Begin the test.

Whenever possible, the walk and turn test should be conducted on a reasonably dry, hard, level, non-slippery surface.

There should be sufficient room for a person to complete nine heel to toe steps.

Officers are instructed to limit their movement which may distract the person during the test.

When evaluating the person’s performance on the walk and turn test the officer will consider it an impairment clue if:

The person does not maintain the heel to toe position throughout the instructions(The person’s feet must actually break apart or step off the line.)  It is not an impairment clue if the person sways or uses their arms to balance but maintains the heel to toe position.

The person begins the test before being told to begin by the officer.

The person stops while walking.  It is not an impairment clue if the person merely walks slowly.

The person leaves a space of more than one half inch between the hell and toe on any step.

The steps so that one foot is entirely of the line.

The person raises one or both arms more than 6 inches from their sides in order to maintain balance.

The person removes the front foot from the line while turning.  It is also considered an impairment clue if the person has not followed directions as demonstrated, i.e., spines or pivots around or loses balance while turning.

The person takes more or fewer than nine steps in either direction.

The original studies attempting to validate the walk and turn test as being able to determine impairment suggested that individuals over 65 years of age or people with back, leg or inner ear problems had difficulty performing the walk and turn exercise.

The original studies attempting to validate the walk and turn test also suggested that individuals wearing heels of more than 2 inches high should be given the opportunity to remove their shoes.

The One-Leg Stand Test is a test that involves having you hold one leg approximately six inches above the ground for period of thirty seconds.  Many people find it difficult to stand on one leg for thirty seconds even if they have not consumed any alcoholic beverages prior to performing the test.

Just like the Walk-And-Turn Test, many factors unrelated to the consumption of alcoholic beverages such as physical disabilities, nervousness and fatigue can cause you to perform poorly on this test.

THE ONE LEG STAND TEST IS A TOOL FOR THE OFFICER TO OBSERVE VISIBLE SIGNS OF IMPAIRMENT IT IS NOT A PASS/FAIL TEST.

IF ANY ONE OF THE ELEMENTS OF THE ONE LEG STAND TEST IS CHANGED, THE VALIDITY MAY BE COMPROMISED.

The one leg stand test is a divided attention test consisting of two stages:

Instructional Stage

Balance And Counting Stage

In the Instructional Stage, the person must stand with their feet together, keep their arms at their sides, and listen to the instructions.

In the Balance And Counting Stage the person must raise one foot, either foot, with the raised foot approximately six inches off the ground, with both legs straight and the raised foot parallel to the ground.  The person while looking at the elevated foot, should count out loud in the following manner: “One thousand one, “one thousand two”, “one thousand three” until told to stop.  The leg should be raised for a second period.  The timing of the 30 second period by the officer is an important part of the One Leg Stand Test.

The one leg stand test should be administered and interpreted in a standardized manner, i.e., the same way every time.

Officers administering the one leg stand test should observe the person’s performance for four clues.  These four clues are:

Sways while balancing

Uses arms to balance

Hopping

Puts foot down

Inability to complete the walk and turn test may occur when the subject is in danger of falling or otherwise cannot complete the exercise.

Each clue may appear several times, but still should only be considered one clue by the officer.

If a person exhibits two or more clues on the walk and turn test or fails to complete the walk and turn test the person is considered to be legally impaired and should be arrested for DUI.

One Leg Stand Test Instructions

For the one leg stand test the officer should explain the test requirements by giving instructions, accompanied by demonstrations.  The officer should say:

Please stand with your feet together and your arms down at the sides, like this.

Do not start to perform the test until I tell you to do so.

Do you understand the instructions so far?

When I tell you to start, raise either leg with the foot approximately six inches off the ground, keeping your foot parallel to the ground.

Keep both legs straight and your arms at your side.

While holding that position, count out loud in the following manner: “one thousand one”, “one thousand two”, one thousand three”, and so on until told to stop.

Keep your arms at your sides at all times and keep watching the raised foot.

Do you understand.

Go ahead and perform the test.(The officer should always time the 30 seconds.  The test should be discontinued after 30 seconds.)

When evaluating the person’s performance on the one leg stand test the officer will consider it an impairment clue if:

The person sways while balancing.  This refers to side to side or back and forth motion while the subject maintains the One Leg Stand Test position.  Slight tremors of the foot or body should not be interpreted as swaying.

Uses arms to balance.  The person moves their arms 6 or more inches from the side of the body in order to keep balance.

Hopping.  The person is able to keep one foot off the ground, but resorts to hopping in order to maintain balance.

Puts foot down.  The person is not able to maintain the One Leg Stand Test position, putting the foot down one or more times during the 30 second count.

If the person puts the foot down, the officer should instruct the person to pick the foot up again and continue counting from the point at which the foot touched.

If the person can’t do the test, the officer should record the observed clues and document the reason for not completing the test, e.g. person’s safety.

The officer should observe the person from a safe distance and minimize movement during the test so as to not to interfere.  If the person puts the foot down, the officer should instruct the person to pick the foot up again and continue counting.

If the person exhibits two or more clues on the One Leg Stand Test or fails to complete the One Leg Stand Test the person is considered to be legally impaired and should be arrested.

Each clue may appear several times, but still only constitutes one clue.

The One Leg Stand Test requires a reasonably dry, hard, level, and non slippery surface.

The original studies attempting to validate the One Leg Stand Test as being able to determine impairment suggested that individuals over 65 years of age or people with back, leg or inner ear problems; or people who are overweight by 50 or more pounds may have difficulty performing the One Leg Stand Test.

The original studies attempting to validate the One Leg Stand Test also suggested that individuals wearing heels of more than 2 inches high should be given the opportunity to remove their shoes.

Breath Test

Once you have been arrested for DUI normally the law enforcement officer will transport you to a breath test facility to perform a breath test.  The breath test will normally be performed using an instrument called an Intoxilyzer 8000.  Your breath test results may be inadmissible if your breath test was not incidental to a lawful arrest and administered at the request of a law enforcement officer who had reasonable cause to believe you were driving or you were in actual physical control of a motor vehicle within the state of Florida while under the influence of alcoholic beverages.

The Intoxilyzer 8000 is the only evidentiary breath test instrument used in Florida in a DUI case.  The Intoxilyzer 8000 breath test results can be inaccurate and can be inadmissible for many reasons.  Some of the reasons that the Intoxilyzer 8000 breath test results can be inaccurate and inadmissible may include: lack of a proper twenty-minute observation period; invalid breath test operator permit; invalid agency inspector permit; improper instrument inspection; improper instrument maintenance; failed monthly instrument inspection; failed annual instrument inspection; improper test administration and instrument error.  As your lawyer, I can challenge the admissibility of your breath test results.  The inadmissibility of your breath test results can have a positive impact on your DUI case.

DUI Test Refusal

After you have been arrested for DUI the law enforcement officer will normally request that you submit to a breath, blood and/or urine test.  You may have chosen not to take the breath, blood and/or urine test or you may have attempted to take the breath, blood and/or urine test, but you were unable to properly perform the test.  As your lawyer, I can challenge the admissibility of your breath, blood and/or urine test refusal.  The inadmissibility of your breath, blood and/or urine test refusal can have a positive effect on the outcome of your DUI case.

People refuse to submit to a breath, blood and/or urine test for many different reasons: because they were treated unfairly by a law enforcement officer; because they were not read the Miranda rights; because they ask to speak to a lawyer and were told they could not speak to a lawyer prior to deciding whether to submit to a breath, blood and/or urine test; because they heard from someone else that you should never take a breath, blood and/or urine test if you are arrested for DUI and because they have read about how unreliable breath, blood and/or urine test results can be in Florida.

Breath Test Refusal

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages. The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages. The administration of a breath test does not preclude the administration of another type of test. The person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such a test or tests, and shall also be told that if he or she refuses to submit to a lawful test of his or her breath and his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties. The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.

(1) Any person who has refused to submit to a chemical or physical test of his or her breath, blood, or urine, as described in Florida Statute 316.1932, and whose driving privilege was previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, and:

(a) Who the arresting law enforcement officer had probable cause to believe was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages, chemical substances, or controlled substances;

(b) Who was placed under lawful arrest for a violation of Florida Statute 316.193 unless such test was requested pursuant to Florida Statute 316.1932(1)(c);

(c) Who was informed that, if he or she refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months;

(d) Who was informed that a refusal to submit to a lawful test of his or her breath, urine, or blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor; and

(e) Who, after having been so informed, refused to submit to any such test when requested to do so by a law enforcement officer or correctional officer commits a misdemeanor of the first degree and is subject to punishment as provided in Florida Statute 775.082 or Florida Statute 775.083.

(2) The disposition of any administrative proceeding that relates to the suspension of a person’s driving privilege does not affect a criminal action under this section.

(3) The disposition of a criminal action under this section does not affect any administrative proceeding that relates to the suspension of a person’s driving privilege. The department’s records showing that a person’s license has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood shall be admissible and shall create a rebuttable presumption of such suspension.

Blood Test Refusal

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by operating such vehicle, deemed to have given his or her consent to submit to an approved blood test for the purpose of determining the alcoholic content of the blood or a blood test for the purpose of determining the presence of chemical substances or controlled substances as provided in this section if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and the person appears for treatment at a hospital, clinic, or other medical facility and the administration of a breath or urine test is impractical or impossible. As used in this paragraph, the term “other medical facility” includes an ambulance or other medical emergency vehicle. The blood test shall be performed in a reasonable manner. Any person who is incapable of refusal by reason of unconsciousness or other mental or physical condition is deemed not to have withdrawn his or her consent to such test. A blood test may be administered whether or not the person is told that his or her failure to submit to such a blood test will result in the suspension of the person’s privilege to operate a motor vehicle upon the public highways of this state and that a refusal to submit to a lawful test of his or her blood, if his or her driving privilege has been previously suspended for refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor. Any person who is capable of refusal shall be told that his or her failure to submit to such a blood test will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of the person has been suspended previously as a result of a refusal to submit to such a test or tests, and that a refusal to submit to a lawful test of his or her blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor. The refusal to submit to a blood test upon the request of a law enforcement officer is admissible in evidence in any criminal proceeding.

Urine Test Refusal

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to a urine test for the purpose of detecting the presence of chemical substances as set forth in Florida Statute 877.111 or controlled substances if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of chemical substances or controlled substances. The urine test must be incidental to a lawful arrest and administered at a detention facility or any other facility, mobile or otherwise, which is equipped to administer such tests at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of a motor vehicle within this state while under the influence of chemical substances or controlled substances. The urine test shall be administered at a detention facility or any other facility, mobile or otherwise, which is equipped to administer such test in a reasonable manner that will ensure the accuracy of the specimen and maintain the privacy of the individual involved. The administration of a urine test does not preclude the administration of another type of test. The person shall be told that his or her failure to submit to any lawful test of his or her urine will result in the suspension of the person’s privilege to operate a motor vehicle for a period of 1 year for the first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such a test or tests, and shall also be told that if he or she refuses to submit to a lawful test of his or her urine and his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, he or she commits a misdemeanor in addition to any other penalties. The refusal to submit to a urine test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.

Additional Misdemeanor Charge For DUI Test Refusal With A Prior DUI Test Refusal

(1) Any person who has refused to submit to a chemical or physical test of his or her breath, blood, or urine, as described in Florida Statute 316.1932, and whose driving privilege was previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, and:

(a) Who the arresting law enforcement officer had probable cause to believe was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages, chemical substances, or controlled substances;

(b) Who was placed under lawful arrest for a violation of Florida Statute 316.193 unless such test was requested pursuant to Florida Statute 316.1932(1)(c);

(c) Who was informed that, if he or she refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months;

(d) Who was informed that a refusal to submit to a lawful test of his or her breath, urine, or blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor; and

(e) Who, after having been so informed, refused to submit to any such test when requested to do so by a law enforcement officer or correctional officer commits a misdemeanor of the first degree and is subject to punishment as provided in Florida Statute 775.082 or Florida Statute 775.083.

(2) The disposition of any administrative proceeding that relates to the suspension of a person’s driving privilege does not affect a criminal action under this section.

(3) The disposition of a criminal action under this section does not affect any administrative proceeding that relates to the suspension of a person’s driving privilege. The department’s records showing that a person’s license has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood shall be admissible and shall create a rebuttable presumption of such suspension.

Orange County Pretrial Diversion Program For DUI Charges

This is a deferred prosecution program for selected DUI charges and for selected individuals.  This program is offered by the Office of the State Attorney and supervised by Orange County Community Corrections.  Successful completion of the Orange County Misdemeanor Pretrial Diversion Program will result in the dismissal of your charge(s) by the Office of the State Attorney.

Eligibility

  1. You must have no prior sentence, conviction or dismissal for a similar charge, no prior felony convictions, no prior convictions for charges ineligible for diversion, and no prior adult diversion/deferred prosecution programs.
  2. You must be a legal resident of the United States.
  3. You must have no more than one prior misdemeanor conviction.
  4. Your charge(s) must have no more than $1,000 in restitution.
  5. You must be approved by the Office of the State Attorney.

Program Details 

      LEVEL 1

  1. Program length is 12 months
  2. Program cost is $600
  3. Program intake fee is an additional $20
  4. Program drug testing fee is an additional $17
  5. Program phone reporting fee is an additional $6-$7 per month
  6. Program Office of the State Attorney fee is an additional $50
  7. You must perform a minimum of 50 hours of alternative community work service
  8. DUI school
  9. Victim impact class through MADD or Florida Safety Council
  10. 10 day vehicle impoundment/immobilization
  11. $500 monetary contribution to Central Florida MADD or Victims Service Center
  12. Law enforcement investigative costs
  13. Random observed urine screens
  14. You are responsible for any additional costs for classes and evaluations

      LEVEL 2 

  1. Program length is 15 months
  2. Program cost is $750
  3. Program intake fee is an additional $20
  4. Program drug testing fee is an additional $17
  5. Program phone reporting fee is an additional $6-$7 per month
  6. Program Office of the State Attorney fee is an additional $50
  7. You must perform a minimum of 50 hours of alternative community work service
  8. DUI school
  9. Victim impact class through MADD or Florida Safety Council
  10. 6 month mandatory ignition interlock device
  11. $1,000 monetary contribution to Central Florida MADD or Victims Service Center
  12. Law enforcement investigative costs
  13. Random observed urine screens
  14. You are responsible for any additional costs for classes and evaluations

Orlando DUI Penalties

The penalties for a DUI conviction are dependent on the type of DUI you are charged with.  There are different types of DUI charges such as: DUI; DUI With a Breath Alcohol Level Above 0.15; DUI With Property Damage or Personal Injury; DUI Accompanied by a Minor; DUI With a Prior Conviction; DUI With Multiple Prior Convictions.  A DUI which has a blood-alcohol level or breath-alcohol level of 0.15 or higher; causes property damage or personal injury; was accompanied by a minor; has one or more prior convictions can be punished more severely.

It is important that you know what penalties you may be facing.  As your lawyer, I can advise you what specific penalties apply to your type of DUI charge.  Some of the penalties for a DUI conviction may include: Jail or Prison time; Probation; Driver’s license suspension or revocation; Ignition interlock device; Vehicle impoundment; Counter attack program; Counseling; Victim awareness class; Community service; Cost of investigation; Cost of prosecution; Fines and/or Court costs.

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