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Delgado & Romanik: Being stopped by a police officer is always an unsettling experience. Being asked to get out of the car and perform field sobriety tests on video is embarrassing and humiliating. You could be arrested for refusing to take a breath test, spend a night in jail, have your car towed, and lose your driver's license. If you have been charged with driving under the influence (DUI) of alcohol or a controlled substance, it is important to hire an attorney as soon as possible, or you may lose your license and driving privileges automatically.
ames Riecks: The DUI defense attorney you hire to represent you may hold the key to your driver's license, your freedom, and your future criminal record. If your attorney isn't willing to fight vigorously to protect your rights and future, you may face a penalty that will affect your life for years.
Simpson, Delgado & Romanik: Being stopped by a police officer is always an unsettling experience. Being asked to get out of the car and perform field sobriety tests on video is embarrassing and humiliating. You could be arrested for refusing to take a breath test, spend a night in jail, have your car towed, and lose your driver's license. If you have been charged with driving under the influence (DUI) of alcohol or a controlled substance, it is important to hire an attorney as soon as possible, or you may lose your license and driving privileges automatically.
Chanfrau & Chanfrau: If you or a loved one has been arrested on a DUI charge in Florida, it is vitally important that you contact one of our criminal defense lawyers immediately. Time is of the essence in these cases. Laws pertaining to positive breathalyzer tests, or refusals to take them, allow you only 10 days to appeal the suspension of your driver's license. And remember, a driver's license suspension is one of the lesser penalties of a DUI conviction. DUI offenses constitute a criminal record and can radically affect your future and reputation; they may even land you in jail.
Timothy Herring:
DUI FAQS

Legal advice for each situation can only be obtained by consulting directly with an attorney. This information should not be considered legal advice for any individual and is meant for general informational purposes only.

1. I just got arrested for DUI, can I wait until I go to court to take care of it?
If you do not apply for a DMV hearing within 10 days after your arrest (even though the hearing will be in the future), your Florida driving privilege will be suspended. The yellow ticket is your driving permit for ten days after your arrest if marked yes for “eligible for permit.” You may also be eligible for a temporary driver’s license. The length of the suspension depends on a number of factors including whether you took a breath test or refused. This suspension will happen while the criminal case is still pending or even if the criminal case is dismissed unless you file and prevail at the hearing.

When the officer stopped you, he acted as a police officer requiring you to deal with this case in the criminal courts and as an agent of the DMV starting a completely different process called an Administrative Suspension Process. The DMV’s decision does not affect the criminal court’s decision.

2. Should I apply or should I have an attorney apply for a DMV hearing?
It is best to have an attorney make the application, just to make sure that it is done correctly. If that can not be done the next best thing would be for you to make that application.

Regardless, if the application is not made within 10 calendar days, it will be too late. Sometimes, if good cause exists, we are able to get DMV hearings, even if application is made after the 10 day window.

3. What if I am from out of state and do not have a Florida license, do I still need to worry about setting a DMV hearing?
Yes. You should still apply for a DMV hearing.

It is your privilege to drive in Florida that is being suspended. If you do not wish that privilege to be suspended, you need to apply for that hearing. Also, the state that issued you your driver's license may take action against your privilege in that state, depending upon the nature of your suspension in Florida. This is a technical area for which you should seek the advice of an attorney experienced in this area.

4. Can these DMV hearings be won?
Yes, but not for the reasons you may think. The DMV will not consider the reasons why you need to drive. Their decision will be based only on the evidence presented and the facts. These hearings can be highly technical and won on technical issues. Success depends on a current and thorough understanding of the changing laws and conflicting cases that are relevant in this area.

5. What will happen to me in the Criminal Courts if I am convicted of DUI?
Anything from probation, a fine, a driver’s license suspension, a jail sentence, school, community service, the requirement of placing an interlock on your ignition switch, to State prison and a permanent driver’s license revocation (for a serious felony). This is all separate and apart from the DMV action discussed above.

The answer depends on a number of factors:
1. Whether this is your first offense, or you have prior convictions.
2. Whether your blood alcohol was more than .20%
3. Whether or not there was an accident in this case, or in a case involving an earlier conviction.
4. You could be charged with a felony if someone was seriously injured or died, or if you had 2 prior convictions where the second conviction was within 10 years of the new DUI or you have three prior DUI convictions.
Only conferencing with an attorney in your case will give you information about your possible exposure to increased sentencing and what can be done to lessen that exposure.

6. Will hiring an attorney make a difference?
Generally, yes.

A well trained lawyer with experience in the area of DUI law can make a difference. A lawyer who is competent in this area may get cases dismissed, reduced or help to minimize the harm to the client.

The relationship between the administrative and criminal laws is a complicated area. An experienced lawyer can guide you through this process and answer your questions.

Also, at other times defendants are frequently not aware of their obligations after a conviction. One of the busiest areas of my practice is helping people answer new criminal charges and complications caused by not completing their post conviction responsibilities to the court. This is because some defendants do not realize all of their obligations to the court while on probation, or for that matter, how to deal with the Department of Motor Vehicles after a suspension. Almost all people charged with DUI need a knowledgeable and experienced lawyer to guide them through this complicated system.

7. I live out of state, do I need to return to Florida and what are some unusual problems I may face being from another state?
The first thing you should know is that if you are charged with misdemeanors and some felonies, your attorney may appear for you at pretrial hearings, saving you return trips to Florida.

Second, there are many obligations created by a conviction that appear to require an out of state resident charged with DUI to return to Florida to complete. However, a knowledgeable attorney may arrange for most, if not all, of your obligations to be completed out of state.

8. Do I have to be over .08% (the "legal limit") to be charged with DUI?
No. Many persons are often charged with Driving Under the Influence with a blood level below the .08% level. This is because the officer alleges your “normal faculties” are impaired.

9. What are some of the circumstances that may lead to me being charged with a felony?
A DUI charge may be a felony if one of the following is true:
1. You have two or more prior DUI's.
2. Someone was seriously injured in an accident that you were involved in while driving under the influence.
Brian Toung:
Drunk driving (DUI) is not a minor traffic offense, it is a serious criminal charge. A conviction for drunk driving (DUI) in Florida carries serious consequences. A first-offense drunk driving conviction will result in 50 hours of community service, 6 months of probation, large fines and court costs, alcohol education courses, and loss of your driver’s license for 6 months. A second or subsequent drunk driving (DUI) conviction can result in at least 10 days in jail, longer jail terms, larger fines, lengthy or lifetime license revocation, and imposition of an ignition interlock device for up to two years at a cost of seventy dollar per month. A third drunk driving (DUI) conviction can be raised to a felony, resulting in state prison time. A drunk driving conviction with aggravating factors, such as children in the car or an accident with injuries, is a felony and can result in several years of state prison time. Do not risk imposition of these serious penalties by proceeding without an experienced Daytona Beach, Florida drunk driving (DUI) defense attorney.

Drunk driving (DUI) cases are winnable... You DO NOT simply have to plead guilty.

In addition to your criminal case, your driver’s license suspension can be challenged in an administrative review hearing...

Police, prosecutors, and judges in Florida take drunk driving (DUI) seriously. You need an aggressive and effective drunk driving (DUI) defense lawyer who takes defending you just as seriously.
Tonya Cromartie: It is the policy of the Florida State Attorneys Office not to speak to people charged with crimes. The State Attorneys Office will only speak with you through your Florida criminal defense attorney. It is important that the prosecutor assigned to handle your case hears your side before they make a decision to file charges if possible. Having a criminal defense attorney discuss your case with the prosecutor before charges are filed can result in an early resolution of the case, lesser charges being filed, or in some instances, the prosecutor deciding not file charges at all.
Gail Graziano: The crime of drunk driving is generally defined in two ways: (1) having a blood alcohol content above the limit set by law, or (2) driving under the influence of alcohol.
David Ege: You can be arrested for DUI by driving while over the legal BAC in your state or while impaired. But, you need not actually operate the car in order to be arrested. You can still be found guilty if you had the capability and power to dominate, direct, or regulate the vehicle, regardless of whether you were exercising that capability or power at the time of the arrest. In other words, simply sitting behind the wheel can lead to your arrest for DUI by being in actual physical control of the car.
Richard Whitson: Road blocks have been frequently been used for DUI investigations. Thus, in State v. Jones, the Florida Supreme Court established standards for this procedure. First, the roadblock must be established and operated according to detailed guidelines regarding the selection of vehicles, detention techniques, assignments and the disposition of vehicles so that little discretion is left to the officers conducting the road block.
Flem Whited: A person is guilty of driving under the influence if the person is driving or in actual physical control of a vehicle within this state while under the influence of alcohol, any chemical substance set for the in 877.111, or any substance controlled under chapter 893 of the Florida Statutes when affected to the extent that the person’s normal faculties are impaired or has a blood or breath alcohol level of 0.08 or greater.
David Kerce: DUI in the State of Florida is increasingly a targeted crime by law enforcement. Some counties and municipalities have devised special police units to do nothing but search the roads for drunk drivers. DUI in Florida is not limited to alcohol alone, but to certain other chemicals such as toluol, hexane, acetone, and other, or any controlled substance such as illegal drugs or regulated, but legal drugs.
Gregory Wagner: A person is guilty of the offense of driving under the influence and is subject to punishment as provided in the penalties section if the person is driving or in actual physical control of a vehicle within this state.
Thomas Mott:
KNOW YOUR LEGAL RIGHTS!

People who mean to be their own governors must arm themselves with the power which knowledge gives. -- James Madison letter to W. T. Barry, August 4, 1822

As a citizen of the United States, you have constitutional rights that protect you from unlawful police actions. Your constitutional rights protect you, if you are arrested and charged with a crime. These rights are fundamental to our free society they are not meaningless technicalities. The state has awesome power. The state is a very powerful prosecution machine. City, county, state and federal police agencies back up local prosecuting attorneys who have virtually unlimited resources to prosecute your case. All you have is yourself, your financial resources, your lawyer and your Constitutional Rights. These rights are a wise gift from our countrys founders, who had a very clear understanding of how fragile individual freedoms are when confronted by the awesome powers of the state. Do not be afraid to exercise your rights as an American. These rights keep individuals strong and keep the powers of government in check. Remember this: since the beginning of our great nation, many, many young Americans have shed their blood for your constitutional rightsvalue your rights accordingly. Additionally, while we should all respect police officers where respect is due, if a cop stops you and arrests you illegally, the cop is no better than a common criminal; no better than an armed kidnapper. Such illegal police conduct not only violates state constitutional and criminal law, it violates the supreme law of the landThe United States Constitution. Such police action is criminal behavior in every moral and legal sense of the term criminal. Police officers are not entitled to break the law to enforce the law; if they do it is a betrayal of their sworn duty to uphold the laws of their State and The United States America. As an American, your rights include:
ENFORCE AND EXERCISE YOUR RIGHTS!

A society of sheep will produce a government of wolves.-- Bertrand de Jouvenal

We all know how things are supposed to be "in theory." The harsh reality is that police can and often do anything they want out on the streets. Most cops are good citizens who do a good job for their communities. However, some cops abuse their power. Some cops won't hesitate to lie about their actions or your actions. Some are worse than others and a lot of cops may treat you differently if they realize you know your rights. The bad cops depend on fear and intimidation to get what they want. Don't let bad cops get away with more than they are allowed to because of fear and intimidation. If you run into a really bad cop, talking back to him and standing up for your rights might get you beaten up or killed, so be careful about the realistic limits of the law and of your rights as an American. Bad cops are perhaps the most dangerous members of our society, so pay attention when you encounter them. Stay in control of your words and actions. Do nothing to threaten a cop, and never make the mistake of touching a cop.

When a police officer stops you on the street, the law says that the stop will fall into one of three categories: (1)consensual contact, (2)detention and (3)arrest. Which category you're in determines how much power the cops have over you and what rights you have to counteract the police power.

CONSENSUAL POLICE-CITIZEN ENCOUNTERS

When the people fear the government, you have tyranny. When the government fears the people, you have freedom. -- Thomas Paine
The least intrusive police-citizen encounter is "consensual contact." This means that the officer comes up to you and asks, "can I speak with you?" If you say "yes," you have consented to have contact with the police. That is very bad. The result of such "consent" is that you won't have important "rights" under the Constitution. Especially if you think you may be guilty of something (you have a warrant out on you, you are carrying drugs, you just did something illegal), you should never consent to talk to a police officer. This may sound backwards to you. The normal impulse when confronted with a cop is to try to convince them that you aren't doing anything illegal. If you follow such an impulse, you are not likely to talk your way out of the situation and if the cop gets you on something, you won't be able to get out of it later in court. Never voluntarily talk to the police! If you don't think you are guilty of anything, it still isn't a good idea to consent to talk to a cop. You never know where the conversation will go or how the conversation will end up.

Some people might figure, "well, I'm not guilty of anything, so I'll let the police stop me and ask me a few questions and then I will be on my way." But, that is irresponsible and it is a big mistake, because it encourages cops to mess with your individual liberties, and it encourages a police state mentality. In addition, it will encourage the idea that people who don't want to talk to the police have something to hide.

Here is how to avoid a consensual encounter with the police: If the cop asks, "can I talk to you," answer with something like, "I'm sorry, I'm in a hurry and I don't have time to talk to you right now." If the cop insists, ask him, "Are you detaining me, or am I free to leave?" Ask this several times to make sure the cop will have a hard time denying it and saying you didn't mention it later if you end up in court. If it is really a consensual contact, the officer ought to let you go on your way, if you ask to go. If you don't actually ask to leave, the court will presume that you consented to whatever follows.

DETENTIONS:

"The Constitution is not neutral. It was designed to take the government off the backs of people." --William O. Douglas, Supreme Court Justice

The next category of police-citizen contact is called a detention. The police are only allowed to detain a citizen when there are specific facts that can be articulated supporting a reasonable suspicion that the citizen is involved in criminal activity. This means that cops can't detain you on a hunch, guess, or bare suspicion. Specific, articulable facts are facts that the police must have observed or otherwise learned about that link you with specific criminal activity. If the police detain you without such a factual foundation, the detention is illegal and whatever they obtain as a result of the detention (evidence or arrest) cannot be used against you in court. How does this all work in real life?
A common detention occurs in a DUI stop. Normally, the stop is based upon some traffic violation. Once the cop has you stopped, he must complete his business (ie: the detention) and let you go on your way, or arrest you. While the cop may have stopped you for speeding, or some other traffic violation, he really wants to arrest you, if he suspects you of DUI. To do this, he will try to get as much information from you as he can. He wants this information to help him establish probable cause, to justify arresting you. Do not give the cop probable cause to arrest you. Do not answer any questions that may incriminate you. You must provide your drivers license, registration, and proof of insurance, upon request. But, be careful not to volunteer any further information. Admitting to drinking alcohol will incriminate you, so be careful. You should never admit to having more than one drink. Typically, the cop will ask where you have been and where you are going, and also ask if you have been drinking, and if so how much. All of such questions are intended to establish probable cause to arrest you. You do not have to answer such questions. You may simply tell the cop that you would like an attorney present during such questioning. The cop will want you to perform the field sobriety tests (such as, the walk-and-turn, finger-to-nose, one-legged-stand, etc.). You do not have to take these tests. In Florida and most other states, you will not loose your license for refusing the field sobriety test. You should refuse to take the field tests, because the tests are designed to make you look drunk and to help establish probable cause to arrest you. If you refuse to take the breath or urine test, you can loose your license for one year. A DUI stop is not the only kind of detention.

Suppose the police stop you because it is late at night, you are walking down the street, and you look suspicious, or strange, to the cops. The cop might ask, "Excuse me, may I talk to you?" If you reply, Yes, have just consented to talk to the police. That is not good, because the officer may notice something, after talking to you for a few seconds, that may give him justification to detain you or pat you down, search you or even arrest you. For example, if the cops notice a bulge in your clothing, they now have cause to detain you, pat you down and could eventually arrest you, if the bulge is pot or some other illegal substance. If, however, you replied, "No, I have to go," then the cops are supposed to let you go, because they do not have legal justification to detain you; they have no reasonable suspicion supported by specific facts that you are involved in criminal activity. The only facts they have is that you look suspicious.

If the cop says, "Well, you can't go," or otherwise detains you, then if they do find reason to arrest you, you may be able to get the case thrown out of court, because the original detention may have been illegal. If the officer detains you and finds nothing, you should complain to the city, a city representative or the police department. Often, when you start exercising and enforcing your rights and using terms like "detention, reasonable suspicion, specific facts, articulable facts, and probable cause, the cop is not going to mess with you.

A lot of a bad cops power comes from intimidation and public ignorance. It is crucial that you let the officer know that you are not consenting to talk to him, that you know what your rights are, that you are exercising those rights and that the only way you will talk to him is if he detains you. The cops may have justification in some cases to detain you, and there is nothing illegal about a police detention, if the cops have a reasonable suspicion of criminal activity supported by specific facts that can be articulated. On the other hand, not just anything is a "specific and articulable fact" supporting a suspicion that you are involved in criminal activity. There has to be more than a bare suspicion and the facts supporting the suspicion have to be specific.

A lot of police harassment situations involve the police stopping citizens because they look suspicious and then the bad cops go on a fishing expedition" looking for a valid reason to detain or arrest the innocent citizen. Do not consent to a police encounter that has no legal justification. Dont consent to a fishing expedition. Don't give the cop a chance to pin some bogus charge on you. Just say no to illegal police action!
ARRESTS

"Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. --George Washington, speech of January 7, 1790 in the Boston Independent Chronicle, January 14, 1790

The most serious police-citizen contact is an arrest. For an arrest, the police need a high level of suspicion of your involvement in criminal activitythe cops must have probable cause to justify an arrest. Probable cause can be a complicated concept. But, there is a simple definition of probable cause: that amount of evidence which would lead a reasonable person to conclude that a crime is being, is about to be, or has been committed, and that you committed the crime. Therefore, before a cop can arrest you, the cop must have enough evidence (facts, knowledge, etc.,) to lead a reasonable person to conclude that you had committed, were about to commit, or were in the process of committing a crime.

If you are arrested, the police can search you as part of the arrest. If the officer asks to search you without arresting you, you can say no. The police have the right to search for weapons if they feel in danger of being attacked. They are not allowed to search people for other items. In a lot of cases the police ask to search a citizen and get consent to search them. That is not a good thing. Individual liberties are sacred. Individual liberties are very rare in the history of the world. As Americans, we all have a duty to exercise our constitutional rights. Exercising constitutional rights keeps the rights strong and keeps America free. Waiving constitutional rights weakens and erodes the individual rights, and that in turn creates fertile soil for tyrants, dictators and a police state to grow.

If you consent to a search, even though the search isn't justified, it will be legal because you will have waived your individual right to be free from unreasonable searches by the cops. If the cop asks to search you or any of your property, tell them you don't have any weapons and ask if you are being detained, or if you are under arrest or if they have a warrant. If you aren't and they don't, tell them you are an American citizen and that you would prefer to exercise your Constitutional Right under the Fourth Amendment to be free from unreasonable searches.

They may ask many times and seem to be acting with complete authority. But, just say no to illegal police action. Tell them you will not let them search you unless they arrest you or have a warrant. You may want to reassure them that you don't have a weapon. If they and search you anyway and find something, you may be able to get the case thrown out of court.

If the cop is a good cop and obeying the law while enforcing the law, then the cop should leave you alone. The fact that you refused to be searched does not make you more "suspicious" and give them an excuse to search. Of course as stated above, the police may ignore all of these laws and they may be less than polite and may even use unlawful force. When a cop gets out of control, deal with the situation carefully. But, don't voluntarily consent to a police-citizen encounter, and dont consent to a search.

WHAT SHOULD YOU DO IF YOU ARE ARRESTED?

As nightfall does not come at once, neither does oppression. In both instances, there's a twilight where everything remains seemingly unchanged, and it is in such twilight that we must be aware of change in the air, however slight, lest we become unwitting victims of the darkness. William O. Douglas, Supreme Court Justice
Being arrested can be a very frightening and confusing experience. Knowing what your rights are at least gives you some guidelines to follow. If you are arrested, the most important things for you to remember are: (1) Anything you can say can and will be used against you; and (2) You have the right to ask for an attorney to be present before you can be questioned. No matter what the reason for your arrest, the police are required by law to inform you of the charges against you. Before you are questioned, they must tell you that you have the right not to answer any question or give any statement because your answers or statements may be used against you at a later time. You may have heard of this right under the name of Miranda warnings. Remember, you do not have to answer any questions; your silence cannot be used against you. Blurting out statements to the police at the time of arrest can result in those statements being used against you. If you are arrested, you have the right to know the name of the arresting officers you are dealing with. This is your right by law and by custom. Do not try to make bargains with the police. In most cases, it is best to keep your mouth shut. The job of the cops is simply to take you into custody and build the case against you. Trying to bribe an arresting officer and resisting arrest are other crimes that you can be charged with. The police do not have the authority to make binding deals for the state. It is up to your defense4 attorney to negotiate with the prosecuting attorney and the police, if your case reaches that point. You have the right to make one telephone call as soon as practicable after you are brought to a police station. You may call a family member, a friend, your attorney, or anyone else who can help you. The police have a right to complete their booking procedure before you are allowed to use the telephone. The booking procedure will consist of giving the police basic information about yourself, being fingerprinted and photographed. Remember, you should not talk to anyone about your arrest. If you cannot afford a private attorney, the Public Defender's office will be appointed to represent you. The Public Defender's office is staffed with attorneys available to give you important legal advice following your arrest. However, you will not likely have any meaningful contact with a public defender until just before or after arraignment. If at all possible, you should have an attorney present when talking to cops. If you have strong ties to the community, own a home, have local relatives, a job, etc., you may be released on your own recognizancewhich means you do not have to pay any money to get out of jail or post any kind of other property, and you promise to appear in court when directed. You may also be released on bail, which involves the posting of either cash or a surety bond as security for your court appearance. Bail bonds from licensed sureties are usually available at a cost of 10 percent of the amount of bail. The decision to release you or the amount of bail can often be made by someone at the jail. You should find out who is in charge of pretrial release at the jail. Normally, information about how to get in touch with a licensed bail surety is posted in the booking area. If you are taken into custody and booked into the jail and are not released within 24 hours, you must be brought before a judge. At that appearance, the judge will inform you of the charge against you and also ask you whether you can afford to hire an attorney. If the judge decides you cannot afford to hire your own private lawyer, the judge will appoint the public defender's office to represent you. At this time, you can also ask the judge to reconsider the amount of bail that has been set based on your ties to the community, financial resources, employment record, or any other factors. Upon arrival at the jail, or shortly thereafter, you will be given an opportunity to contact your attorney. The attorney may arrange for the posting of the bond and may appear in court with you to ask the judge to lower the bail amount. If you are arrested, remember you have the protections of the Constitution of the United States and of the State of Florida. You do not have to answer any questions, and you have the right to demand an attorney as soon as you are taken into custody.

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