Q: A friend of mine recently got charged with DUI. After meeting with a lawyer, he was told that he did all the wrong things during the stop. That has me thinking what are the right things to do? What happens when someone is stopped for DUI?
A: To help answer your question, I enlisted my associate Michelle White, Esq., who formerly worked in the Miami Dade Public Defender’s office. It is not illegal in Florida to drink and drive unless you have a blood alcohol level of .08 or higher or have been drinking to the point that your normal faculties are impaired.
Before an officer can conduct a traffic stop, he must have a reasonable suspicion that a motorist has committed, is committing, or is about to commit a crime. The intricacies of the reasonable suspicion standard are somewhat complex, but essentially it is viewed as less than probable cause but more than a mere hunch.
Any traffic violation, such as running a stop sign, driving without a license plate, current tag, or two operable tail lights, or speeding will give the officer grounds to stop you. Bear in mind that the reasonable suspicion standard only applies to the initial stop. In order to actually make an arrest, the officer must have probable cause to believe that a crime has been committed. Probable cause is a much higher standard and requires the officer have a belief, capable of being particularized, that the person being arrested is guilty. This means a hunch will not be enough for the officer to make an arrest.
Once a driver has been stopped, the officer will likely ask for license and registration and possibly some other preliminary questions. During this encounter the officer will determine whether he believes the driver may be impaired. If the officer suspects the driver may be impaired he is going to ask him to perform field sobriety exercises (FSEs). FSEs are a series of exercises designed to help an officer determine if a person’s normal faculties are impaired based on a series of clues.
An officer does not have to have probable cause to ask a driver to perform FSEs. All an officer needs is a reasonable suspicion that the driver may be DUI in order to request that he perform FSEs. No one is obligated to agree to perform FSEs, but keep in mind that if the driver refuses, he will likely be arrested. If the driver agrees to perform FSEs, the officer will keep track of every move made and look for clues of impairment such as loss of balance, lack of coordination, and inability to follow direction.
If the officer determines that the driver is impaired he will place him under arrest and transport him back to the station for further processing. Once under arrest, the officer will read the driver his rights under Miranda (i.e the right to remain silent and the right to have an attorney present during questioning) and ask him if he is willing to answer some questions. After the questioning period, the officer will likely offer the driver a breathalyzer test. Whether to take the breath test or not is an extremely important decision.
If the driver gives a breath sample and the reading is over .08 he is presumed to be DUI. This is very strong and incriminating evidence. However, if the driver refuses to give a breath sample, evidence of his refusal is admissible at trial and the state attorney will be allowed to tell the jury that he refused because he knew he was guilty.
Under Florida law, the driver’s license will be suspended immediately upon being arrested for DUI. The first 10 days after arrest the driver is allowed to drive with no restrictions. However, on the 11th day he will begin a 30 day period, known as hard suspension, where he will not be able to drive for any reason. After the 30 day period the driver will be eligible for a hardship license which allows him to drive for business, education, or medical purposes. If however, during the DUI investigation the driver refused to submit to a breathalyzer, the Department of Motor Vehicles will automatically suspend his license for 12 months and because of the refusal, the hard suspension period triples and he will not be eligible for a hardship license for at least 90 days.
If the driver is convicted of a DUI, the following penalties apply; for a first conviction a fine of up to $500 and imprisonment of up to six months. For a second conviction a fine of up to $1,000 and imprisonment of up to nine months. For either a first or second conviction the driver will also likely have his license suspended, be put on monthly reporting probation, be ordered to attend DUI school and be ordered to perform community service. The driver will be responsible for all costs of probation and DUI school. Be aware that a third conviction of DUI, within 10 years of the second, is a felony punishable by up to five years in prison.
As you can see, the consequences of a DUI conviction are severe. Anyone arrested for or charged with DUI should consult with an experienced attorney as soon as possible.
William G. Morris is an attorney with offices at 247 North Collier Boulevard. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.