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FAQs about Bankruptcy
Do I have to be drunk to be charged? No. A DUI charge simply means that a driver has consumed enough alcohol and/or drugs of any kind to make him or her a less safe driver. A minor traffic infraction, such as an improper lane change, disregarding a traffic signal, failure to yield, or diving too fast or too slowly -- combined with even a modest amount of alcohol, or any drugs -- may become a basis for a DUI charge. What alcohol level constitutes DUI? Under Florida law, a person over the age of 18 years is considered under the influence if he or she has a blood alcohol content (BAC) of .08% or higher and is in the physical control of a motor vehicle, whether the motor vehicle is being driven or not. A person with a BAC of .08% or higher is presumed to be under the influence and will be arrested. A driver is presumed not to be under the influence of alcohol with a BAC of under .05%, but could be charged, at the officer's discretion, if his or her BAC is .05% to .07%. NOTE: THE PENALTIES FOR DUI FOR PERSONS UNDER 18 YEARS OF AGE, PARTICIULARLY STUDENTS, CAN BE FAR REACHING AND COMPLEX, AND WILL NOT BE ADDRESSED FURTHER HERE. CALL US FOR QUESTIONS REGARDING UNDER-AGE DRIVERS. Drivers of commercial vehicles who may be convicted of DUI often find themselves unemployable as drivers for insurance reasons. What do police officers look for when searching for drunk drivers on the highways? The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration.
Speeding, incidentally, is not a symptom of DUI. Because of quicker judgment and reflextes, it may indicate sobriety. If I am stopped by a police officer and he asks me if I've been drinking, what should I say? You are not required to answer potentially incriminating questions. You should never tell the police anything about what you had to drink unless your truthful answer is "Nothing." Any other answer might be potentially incriminating. A polite "I would like to speak to an attorney before I answer any questions" is a good reply. Even the consumption of 1 or 2 beers within the hour before you were stopped could potentially give you a BAC level of .08% or higher. Remember, whatever your answer, the police officer will put it in his report and testify to it at a trial. Do I have a right to an attorney when I am stopped by an officer and asked to take a field sobriety test? In Florida you do not have the right to talk to an attorney prior to the police conducting a DUI investigation as part of a traffic stop. As a general rule, there is no right to an attorney until after you have been arrested. You do not have the right to consult with an attorney prior to deciding whether you will submit to either the field sobriety tests or to a legal breath-alcohol or chemical test. What is the police officer looking for during the initial roadside detention at the scene? The traditional symptoms of intoxication taught at the police acadmies are:
What should I do if I am asked to take field sobriety tests? There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a battery of three to five such tests. Unlike the chemical-breath tests, where refusal to submit may have serious consequences (such as suspension of your driver's license or being charged with a misdemeanor), you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest you before they ask you take the FSTs; the tests are simply additional evidence which the suspect inevitably "fails." Thus, in most cases a polite refusal may be appropriate. The only safe time to agree to take the FSTs is when you know you are not impaired because you have not been drinking or ingesting drugs. Why did the officer make me follow a penlight with eyes to the left and right? This is the "horizontal gaze nystagmus" test. The officer attempts to estimate the angle at thwich the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration of over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go. This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this, and other problems, the nystagmus test is not generally admissible at trial, although police officers continue to use the test for arrest purposes. If stopped, do I have to take the tests? The simple answer is "No." However, there could be severe consequenses to refusing, depending on which test you refuse. There are two types of tests used to determine your BAC: field sobriety tests and blood-alcohol/chemical tests.
Drivers with out-of-state licenses will lose the privilege to drive in Florida, and their home state may revoke their residential driver's license. In addition to the police chemical test performed by the police, you have the right to request to take an independent test with qualified personnel of your choice and at your own expense (usually at a hospital or other testing lab). If you request an independent test, the police are required to take you to a testing facility that is within a reasonable driving distance and within a reasonable time period after the police tests have been completed and you have been placed under arrest for DUI. Should I agree to take a chemical test? What happens if I don't? In Florida, the consequences of refusing to submit to a blood, breath or urine test vary. In Florida there generally two adverse results:
The decision whether to take the test or refuse to take the test is one of weighing the likelihood of an adverse test result against the adverse consequence of having your driver's license suspended. Do I have a choice of chemical tests? Which should I choose? In Florida you do not have choice of breath, blood or urine tests. The police will offer you only a breath test under normal circumstances. Analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate by far, however, is urinalysis. Thus, if you are confident that you are sober, a blood sample is the wise choice. In Florida, you can request that the police permit you to have an independent blood test done when they have completed processing you, although you will have to pay for this test yourself. If you request an independent blood test the police are obligated to take you to a test facility for the testing where one is reasonably available. The officer never gave me a "Miranda" warning. Can I get my case dismissed? No. The officer is supposed to give a Miranda warnings (right to an attorney, etc.) only after an arrest. Often, however, the police do not give the warnings. The only consequence is that the State can not use any of your answers to questions asked by the police after your arrest. Will my license be suspended on a first arrest? Yes, you will receive an administrative suspension of your driving privilege if you are arrested and/or your test results are .08 % or higher. The police officer will give you a 30-day temporary permit (usually your DUI ticket). The Department of Motor Vehicles (DMV) will conduct an informal or formal hearing ( if within 10 days of your arrest you request a formal hearing) within 30 days from the date of your arrest to determine if your driving privilege should be suspended. If your driving privilege is suspended, the suspension shall be for a period of 1 year for a first refusal to submit to a breath test or for a period of 18 months for a second refusal, or if you submitted to a breath test, for a period of 6 months for a first DUI offense or 1 year for a 2nd offense. The period of the administrative suspension starts on the day of your arrest. This administrative suspension is NOT a part of any criminal prosecution for DUI by the State. If you are convicted at a criminal DUI trial you will receive another suspension, usually for six months, as a part of the criminal penalty. This criminal suspension begins on the date that you are sentenced. CAUTION: IF YOUR LICENSE IS SUSPENDED EITHER IN THE MANNER DESCRIBED ABOVE OR IF YOU REFUSE TO TAKE THE TESTS, YOU MUST FILE A REQUEST FOR A HEARING WITHIN 10 BUSINESS DAYS IN ORDER TO HAVE A FORMAL REVIEW. FAILURE TO DO SO COULD COST YOU BOTH YOUR RIGHTS TO APPEAL AS WELL AS YOUR LICENSE. CALL OUR OFFICE IMMEDIATELY TO REQUEST A HEARING! How accurate is the breath test? The Intoxilyzer 5000 is just a machine, affected by outside forces. The machine does not allow for individual variations and other factors such as mechanical failures. Other bodily chemicals, even foods such as white bread, may also influence the test results. What happens to my car when I'm arrested? Always ask to leave your vehicle at it's present location and tell the officer you will release him and the police department from all liability resulting from the vehicle remaining at the location. Another driver may not always be allowed to drive your car home. Most likely it will be towed at your expense, usually at a cost of $50 to $200, not to mention the aggravation of reclaiming your automobile from the wrecker service. What is a nolo contendere plea? A "nolo" is a plea that allows you to dispose of your case without admitting guilt. The only benefit derived from this plea is that it cannot be used against you in a subsequent civil action. It is treated as a guilty plea by the criminal court and you will be sentenced in accordance with the DUI statutory sentencing. What is a "rising BAC defense"? It is unlawful to have an excessive blood-alcohol concentration (BAC) at the time of DRIVING -- not at the time of being TESTED. Since it takes between 30 minutes and 3 hours for alcohol to be absorbed into the system, an individual's BAC may continue to rise for some time after he is stopped and arrested. Commonly, it is an hour or more after the stop when the blood, breath or urine test is given to the suspect. Assume that the result is .10%. If the suspect has continued to absorb alcohol since he was stopped, his BAC at the time he was driving may have been only .07%. In other words, the test result shows a blood-alcohol concentration above the legal limit -- but his actual BAC AT THE TIME OF DRIVING was below. What is "mouth alcohol"? "Mouth alcohol" refers to the existence of any alcohol in the mouth or esophagus. If this is present during a breath test, then the results will be falsely high. This is because the breath machine assumes that the breath is from the lungs; for complex physiological reasons, its internal computer multiplies the amount of alcohol by 2100. Thus, even a tiny amount of alcohol breathed directly into the machine from the mouth or throat rather than from the lungs can have a significant impact. Mouth alcohol can be caused in many ways. Belching, burping, hiccupping or vomiting within 20 minutes before taking the test can bring vapor from alcoholic beverages still in the stomach up into the mouth and throat. Taking a breath freshener can send a machine's reading way up (such products as Binaca and Listerine have alcohol in them); cough syrups and other products also contain alcohol. Dental bridges and dental caps can trap alcohol. Blood in the mouth from an injury is yet another source of inaccurate breath test results: breathed into the mouthpiece, any alcohol in the blood will be multiplied 2100 times. A chronic "reflux" condition from gastric distress or a hiatal hernia can cause elevated BAC readings. What defenses are there in a DUI case? Potential defenses in a given drunk driving case are almost limitless due to the complexities of the offense. Roughly speaking, however, the majority can be broken down into the following areas:
What happens if I am arrested in possession of drugs, i.e., marijuana or cocaine? If convicted of even simple possession, you will lose your driver's license for 6 months. This is true even if no vehicle was involved in the offense. What are my options if arrested? You have 3 choices:
Should I hire a lawyer? No, if you feel that you have up-to-date knowledge of the law in this area and the experience necessary to represent yourself. Most people do not have this knowledge, especially at this time when the laws are changing so rapidly and becoming more punitive and complex. Yes, if you feel a qualified and professional attorney concentrating on such issues can represent your case more effectively than you. In this case you may not have time to shop around for a lawyer. You will need experienced and diligent legal representation as soon as possible.
My office can provide you with a free evaluation of your case. To obtain a free consultation, call (321) 784-4957 or E-MAIL me at bgreen14@aol.com.
What should I do if I am injured in an accident? You should seek immediate medical attention and follow the doctor's orders. If you are able, you should get the names, addresses, and telephone numbers of any other person involved and other pertinent information the situation requires. If you are not able to do so, someone else should do it for you. As soon as you are able, you should consult a lawyer. Meanwhile, you should not make any statements to anyone about the accident, especially insurance adjusters. Remember that Insurance Companies' true motive is to pay as little on your claim as possible without regard to what is fair for you. You should not settle your case by yourself. DON'T SIGN ANYTHING! You may have a "case" if you or a family member have been seriously injured due to the negligence or fault of some else. You may have a "case" if a family member has been killed due to the negligence or fault of someone else. Typical types of negligence cases include:
The best way to find out if you have a "case" is to consult with an attorney. If you are not already represented by an attorney, you can call me at (321) 784-4957 and set up a FREE consultation and I will review your situation and evaluate whether or not you may be entitled to recover for your injuries. You can also submit a request for help by filling out the contact form. What happens when I come to your office? You will be meeting with myself or another attorney whom I work with who has many years of experieince in the field. We will take the basic information from you that we need for our files and to evaluate your case. We will conduct a second meeting with you to discuss the merits of your case with you after we have properly evaluated your case. What information will you need from me? The more information you give us, the better we can maintain your file. The following is a check list of information that we will need:
What is the most important thing I can do? The most important thing for you to do is to GET WELL! Do exactly what your doctor tells you to do. That includes going to physical therapy as often as prescirbed. Don't worry about the money. If you do not have insurance, many doctors will accept an assignment of the proceeds from your future lawsuit. What should I do about the car? We will discuss your options at the office conference. For now, it is important that you obtain a written estimate of the damage from an auto body repair shop and bring that estimate to me. I will forward it to the proper insurance company. Should I keep a Diary? The more records I have, the more prepared I will be to settle or try your case. Keep a daily record of what is happening to you from the day of the accident onward. This should include your medical problems, lost time from work, how you are feeling and activities that you are not able to do for yourself or that others have to do for you. Put in the diary any other matter that you believe is significant. Who should I talk to about the case? Absolutely no one without your attorney's permission. Insurance companies and lawyers for insurance companies may try to contact you. Do not give them any information. This could be harmful to your case at a later date. When will my case be settled? Generally, your case will not be settled until you are fully recovered. Of course, this varies with each person and the nature of the injuries sustained. If you are injured badly, your case will take longer to settle. The more rapidly you get well, the sooner your case can be settled. Therefore it is important that you do everything your doctors says to do. If the insurance company resists making a fair and reasonable offer, then we will take your case to trial in an expedient manner. How much is my case worth? No one can give an estimate or predict what your case is worth. the amount that you receive will depend on a number of factors, including the severity of your injuries. Getting back your health is more important than the money. Make your health your number one priority. What award or settlement will I get? Generally, you will make a claim for medical expenses, pain and suffering, and loss of wages or income. If your injuries result in permanent anatomical impairment, there are other damages to which you will be entitled. What you ultimately will recover depends upon the variables related to your case. Every case is different. What about the attorney fee? One unique aspect of the field of injury law is the existence of the contingency fee arrangement which is a percentage of the net recovery, if any. The fee percentage is regulated by the Florida Bar and is usually one-third of any recovery. If there is no recovery then there is no attorney's fee. You, the client, do not pay any attorney's fee out of your own pocket. There may be other costs, however, such as for doctors, medical records, litigation expenses, etc., which you would be liable for if there is a recovery. The contingency fee arrangement permits you to employ the services of an attorney, one capable of pursuing the appropriate legal theories and devoting the necessary financial resources. At a time when you cannot normally afford to incur hourly legal charges or to engage expensive investigators or experts, the contingency fee arrangement assures that your rights can be protected and pursued. Your attorney traditionally agrees to charge a fee for services only if the claim is successful and only in an agreed percentage of the economic recovery actually made. When the wrongdoer is usually well represented by professional adjusters, investigators, experts, defense attorneys, the victim benefits tremendously from the ability to retain skilled advocates on a contingency fee basis.
DISCLAIMER Burton J. Green is licensed to practice law solely in the State of Florida. This office cannot give legal advice on this site. The information contained in this web site is a simplified explanation provided for educational purposes only and the reading of this information does not establish an attorney-client relationship. It is not intended as legal advice and should not be construed as such. The law of each state may vary as well as the rules and procedures of each county. This is an advertisement and you should seek legal counseling before acting upon this information. If you need legal advice regarding Florida or federal law, please call my office to review the specific facts of your case at 321 784-4957, toll free 1-866-784-4957, or email me at bgreen14@aol.com.
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