Most people are surprised to learn that it is not against the law to drink and drive. It only becomes illegal if you drink too much and have a breath alcohol reading in excess of .08 or your normal faculties are impaired.
Normal faculties are defined in Florida’s DUI law as those abilities to walk, talk, judge distances, safely operate a vehicle, and to perform the normal functions of every day life. Evaluating "normal faculties" entails a review of any driving infractions, an examination of your speech to detect slurring of words, and the performance of roadside Field Sobriety Exercises (Finger to Nose, Walk and Turn, One-Leg Stand, Recitation of Alphabet, etc.).
Did You Know...
That your breath test results could prove that you were not impaired?
Having an "unlawful breath or blood alcohol level" is defined in Florida DUI law as a series of presumptions. If you are a .01 to a .05 you are presumed to be not impaired. So, if someone tells you never to blow into the Intoxilyzer machine, that could be bad advice, if in fact, you hadn't had much to drink. Having a breath test reading in this area would carry a presumption of non-impairment. On the other hand, if you are a .06 to a .07, there is neither a presumption for or against impairment. However, you can still be found guilty of a DUI if your breath test reading is in this area, so long as there is additional evidence of impairment. In other words, if you're a .07, but you're driving on the wrong side of the Howard Franklin bridge, you could still be found guilty. From a practical standpoint, however, most people who are a .06 to a .07 tend to be excellent candidates to have their case reduced to a reckless driving charge. Now if you're a .08 or above, that carries a presumption under the law that you are, in fact, impaired.
Did You Know...
That if you refuse the breath test, you deprive the prosecutor of one of only two methods of securing a conviction?
If you refuse to submit to the Intoxilyzer, the prosecutor will not have an "unlawful breath alcohol level" to introduce into evidence. He therefore must seek a conviction based on his contention that your "normal faculties were impaired," as well as an argument that "your refusal suggests a consciousness of guilt" on your part. The prosecutor would likely use an argument such as this:
"You know ladies and gentlemen, the driver was given an opportunity to provide a breath test sample. Why, he was even told if he didn't blow into the machine he would suffer an automatic 12 month suspension of his driving privilege. Can you imagine the inconvenience of not having a license for twelve months? But rather then let you know what his true breath alcohol level was, he choose to refuse that test and suffer the administrative driver's license suspension."
It should be pointed out that the Florida Legislature wants to arm the prosecutor with a breath test reading. For that reason, a law was passed making your second refusal to submit a breath sample to the Intoxilyzer a separate criminal offense.
Did You Know...
That some DUI cases can be good candidates for reduction to the offense of reckless driving?
Having your case reduced to a reckless driving can be very beneficial since DUI penalties in Florida can often be harsh. In addition, a reduction good save thousands of dollars on auto insurance premiums. So what type of DUI cases are typically the best candidates for such a reduction?
No accident: Having an accident or leaving the scene of an accident is an aggravating factor. Prosecutors believe that a jury might consider an accident such that, someone could have died or that there could have been serious injury. So, in cases where there is no accident, the case may tend to be viewed more favorably.
The driver was polite, cooperative, and respectful to the officer: The opposite behavior... boisterous, loud, and argumentative tends to suggest that it may be the alcohol doing the talking.
No alcohol containers were found in the vehicle: If you had an alcohol container in the vehicle, it tends to suggest that not only were you drinking and driving, but were actually drinking while you were driving.
The driver made no incriminating statements regarding alcohol: If you told the officer that you had only one or two drinks that might not hurt your chances for a reduction. On the other hand, making a statement that you had numerous drinks or that you drank a six pack could be very incriminating. Prosecutors know that an admission, such as, "I had a six pack" can be very damaging because juries will often hear the "six pack" and disregard the fact that consumption might have taken place over the whole day.
The driver displays a good performance of field sobriety testing: A DUI case is unusual from the standpoint that the jury gets to go back to the "scene of the crime." Unless you refused the field sobriety tests, the jury can look at your performance, look at your physical characteristics, listen to your voice, determine whether your speech is slurred, thick-tongued, or mush-mouthed, and then draw their own conclusions. Because, after all, it's the officer offering his opinion that you were impaired. The officer can testify that in his opinion, you were unfit to be behind the wheel or to be driving. That sounds pretty good, but of course you must remember that the officer has an interest in the outcome of the case. Likewise, if the driver took the stand and testified that he drank a beer or two, but that it didn't affect his ability to safely operate the vehicle, that may sound good as well. Of course, the driver himself has an interest in the outcome. But, the videotape speaks for itself. When a Pinellas County prosecutor evaluates your DUI case in considering a possible reduction to a reckless driving charge, he looks at the videotape from the standpoint of, how would a jury react to the contents of the tape? What conclusions would a jury reach upon watching it?
Because the facts of each case are different, the decision as to whether to submit to a breath test cannot be made in a vacume. In addition, your choice will likely be further complicated by the anticipated nervousness and anxiety associated with a police investigation and an arrest. But, in our experience, a greater number of “refusal” cases tend to get get reduced then cases built upon Intoxiliyzer results. Obviously, the other factors outlined above will play a large part in your chance for a reduction.
On the other hand, having a breath test reading that is under the legal limit could potentially provide compelling evidence supporting an outright motion to dismiss the DUI charge. In the end, the single best course of action may be to carefully monitor your alcohol consumption so that you can make a better informed decision about whether to submit to a breath test or refuse it. Perhaps an even better method is to avoid the issue altogether and use a designated driver or taxi if you are concerned that you may be over the legal limit.
The Law Offices of Russo & Russo
St. Petersburg / Clearwater DUI Defense Attorneys
Former State Prosecutors
877 Executive Center Drive West Suite #112
St. Petersburg, FL 33702
Free Consultations
(727) 578-0303
St. Petersburg / Clearwater DUI Defense: www.duistpetersburglawyer.com
Pinellas County Criminal Defense Attorneys Offer Possible Solutions: www.defensehelp.com
Related Links:
Learn about DUI & Your Florida Driving Privilege
Information about DUI & Drugs / Medication
Examining Your Roadside Field Sobriety Tests
Fewer Police Officers in Pinellas County Means Less DUI Arrests
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