Florida DUI and DWI Legal Questions

You should have the right to have them tried separately.  Since you did not get a suspended license charge with the DUI I assume that it occurred at a later time or that the state attorney just picked up on the fact you were suspended at the time.  Felony usually means 2 or more prior drivining on suspensions.   Not sure what you mean by what is the case study. ... Read More

You should review the written retainer contract with your lawyer, it probably was a flat fee which included plea or trial.  I assume that at some point you entered a plea rather than going to trial. The decision to plead rather than go to trial is based upon the advice of your lawyer, which is what you paid for.  A lawyer will file a notice of appearance, request and review discovery from the state, obtain and review the dui video, and enter into negotiations with the state attorney and attend several court hearings before advising you of whether to go to trial or not. It is quite possible that the lawyer decided that you would have a losing case and if you went to trial you may have faced a jail sentence instead of probation as part of a plea. In many cases you are paying for the reputation and experience of the lawyer and some lawyers collect a flat fee which includes a trial.... Read More

A DUI cannot be expunged from your record and will stay on your permanent criminal record for ever. Unfortunately the reason for driving is not an element of the charge. The charge of DUI involves (1) driving on the roads of this state (2) consumed alcohol or controlled substances (3) normal faculties impaired or BAC >.08.  The reason for driving is not an element of the charge, nor is it a defense. If your friend was being harassed, she could have called the police, a taxi, or a friend to pick her up.  While the above may not be what you wanted to hear, it is the law. I believe in telling it like it is.... Read More

A motion to suppress is a motion filed by an attorney in an ongoing case in which the attorney alleges that certain evidence should be excluded from consideration by the court at trial. Examples include improperly obtained evidence, statements made when no Miranda warning was given, details of an improper traffic stop, etc.  Filing of the motion is only the first step. The attorney must then schedule a hearing on the motion and present his argument before the judge who will then make a ruling upon the motion. The Judge may grant,  deny, or grant part of the motion to suppress.  If a motion to suppress is granted, then the evidence that was suppressed cannot be used at trial.  Often winning a motion to suppress will encourage the State to offer a better plea agreement, or may give you an advantage at trial if key evidence cannot be presented by the State attorney.... Read More

You have the option of entering a plea deal on the DUI in court or taking the case to trial. At trial the state must prove (1) you were operating or in actual physical control of a motor vehicle (2) you had consumed alcohol or controlled substances (3) your blood alcohol was over .08 or your normal faculties were impaired.  In your case since there is no field sobriety test and no breath test it will be case of the officers opinion.  There may be a video of you taken at the scene, or at the police station. Sometimes the video is helpful for your case, or harmful. Your lawyer will review all the evidence in the case, including the police report, officers notes, video tapes, etc and then advise you whether you should take a plea deal or go to trial.  Without reviewing all the evidence in your case, it would be impossible for me to tell you what you should do.... Read More

Concussion is when there is a shaking or striking causes a person's brain to incur a trauma. The result can be that a person experiences nausea, vomiting, dizziness, unconsciousness, eye problems, or more. The concussion can be anywhere from mild to extreme. DUI is operating a motor vehicle while one's normal faculties are impaired due to drugs or alcohol. Of course, it is possible for someone to do both. A person could be drunk, get punched or in an accident, and suffer a concussion. The question for your case is what evidence does the state have that you were under the influence. If there is a blood test from the hospital that shows a large amount of alcohol in your system, or perhaps certain drugs, then it would be for a jury to decide whether you were guilty of DUI. The other question is how do you prove that you had a concussion. You might have to testify and that is always a dangerous path for a defendant to take.... Read More

Failure to appear in court will result in a warrant for your step sons arrest issued by PA nationwide, and a license suspension in PA. The courts in Florida will recriprocate with the license suspension and will take him into custody on the warrant if he has any contact with law enforcement. The best thing to do is go to PA and turn himself in and deal with the DUI charge, take care of business, then move to Florida. Simply moving to Florida will not solve the problem.... Read More

You certainly can get a DUI on a bicycle in Florida. The public policy behind this law is that you may hurt yourself or cause a traffic accident by riding your bicycle while impaired.  The facts you have mentioned pertain to the basis for the traffic stop and not whether you were impaired. A police officer does not have to have probable cause to make a traffic stop, only a reasonable belief that you violated a traffic law. Once he is in contact with you if he has reason to believe you are impaired, such as smelling alcohol, then he has probable cause to begin a dui investigation.... Read More

You mentioned that you obtained a lawyer, I suppose my first question to you is have you discussed your concerns with your lawyer, as he/she would be in the best position to discuss your case. You did not state whether you submitted to a breath test, it sounds like you did not based upon what you wrote. If you submit to a breath test the results will either show you were not impaired as defined by a BAC under .08, or you were presumed impaired if BAC was over .o8.  If you refuse the breath test you give up the opportunity to show that your BAC was under .08.  As for the questions, field sobriety tests, and breath test, the law is clear that you are not entitled to a lawyer for field sobriety testing or breath testing. The only time you are entitled to a lawyer is during questioning. The officer should have read you your miranda rights before asking you any questions. however any spontaneous statement made by you which was not in response to a question, is evidence,  and not protected by Miranda. Most police have a video tape rolling in in the breath testing room and any statements made should be on tape. With regard to your passing or believing you passed the field sobriety tests, there are six to eight clues related to each test that determine whether you passed or not. These tests are divided attention tests and designed to not only assess your physical ability but also your mental ability to listen and follow direction, something which decreases with impairment. Many people believe they passed the field sobriety tests but actually failed based on the assessment criteria.  ... Read More

Many folks wrongly but reasonably believe that a police officer must immediately inform an arrested person that he or she has the right to remain silent and other rights.  They are referring to "Miranda" rights, or warnings, which in fact must be provided to an individual by a police officer if two conditions exist: First, the individual must be "in custody."  That doesn't necessarily require handcuffing or the actual restraint of one's physical liberty.  A person is "in custody" if, given all of the attendant circumstances, a reasonable person in the given situation would believe that he or she is not free to leave the presence of the officer.  Secondly, the officer must intend to ask questions of the person who is "in custody." Standard procedure by police in DUI investigations is to not provide Miranda warnings until after "non-testimonial" aspects of the investigation have occurred.  Those would include roadside sobriety tasking and breath, blood or urine gathering.  That is because they know that Miranda warnings may cause an arrested person to not cooperate with that part of the investigation. If a person, without Miranda warnings being provided, at any time during any investigation, states to a police officer that he or she wants to consult with a lawyer, or is unwilling to answer any questions, there can be no interrogation.   So, during the investigation when you mentioned your desire to speak to an attorney, you were then invoking your Constitutional rights to an attorney and to silence.... Read More

When you are eligible for reinstatement, whether on a restricted or full basis, you will be subjected to the ignition interlock requirement for a minimum of one year.   It is probable that at the time you were sentenced the judge pronounced that the term would be one year, although he or she could have enlarged that term. Also, the device must be installed at your expense.... Read More

Expunction of a DUI criminal history record is possible if (1) the charge was "nolle prossed" (dropped) by the prosecution (the State) or dismissed by the Court, and if (2) the person seeking expunction has never been convicted of any crime, misdemeanor or felony, or adjudicated to be delinquent as a juvenile of any felony or some misdemeanors, and if (3) the person has never previously been the recipient of a sealed or expunged criminal history record. Interestingly, and in my view very unfairly and in disregard of the basic principles within the criminal justice system, the legislature decided that a person cannot receive the benefit of expunction if he or she goes to trial and is found not guilty.  So, despite the Constitutionally guaranteed entitlements of the presumption of innocence and the right to a trial at which the government, which has made the charge(s), must prove its allegations, an accused individual who opts for a trial, and wins, is not eligible for expunction.   If the person seeking expunction is eligible, as confirmed by the Florida Department of Law Enforcement, he or she could then petition the Court to expunge the record, and the Court would hold a hearing and determine whether the request should be granted.  The Court is not obligated to order expunction even if eligibility exists, but in most jurisdictions a denial would be unusual.... Read More

Absolutely, you should consult with an experienced attorney, who would have many questions about the many issues inherent in any DUI matter.  Those questions would address details of the initial stop and detention, whether there was probable cause to justify the officer's request for a breath test, how it was requested, and many other issues.  It would be very unwise to receive the extremely damaging blemish of a DUI conviction on your record and to suffer its consequences without fully investigating and testing the prosecution's case.  Remember, you are presumed to be innocent, and although mere probable cause is required for an arrest, the much higher standard of proof beyond a reasonable doubt is required for a conviction. Regarding your driver license, you do have both the ability to challenge the suspension and to seek a hardship permit.  There are time limitations, however, and these issues would also be addressed during the consultation that you should seek.      ... Read More

You can't amend a dismissal. The dismissal means either the prosecutor or the judge through the case out. If the judge dismissed your case I don't believe that is a reason for the DHSMV to deny reinstating your license. Just because your case was dismissed you still have to take the DUI counterattack class and Victim Awareness Program in order to reinstate your license.... Read More