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Additional Things you Should Know Before Being Stopped for DUI in Broward County

Drinking and driving lawyer Fort Lauderdale

In Florida, a motorist suspected and investigated for the crime of driving under the influence may be surprised to find that they are not given an opportunity to dispel the DUI investigators suspicions by submitting to an on-site breathalyzer test.

Broward County DUI Task Force does not use on site breath testing units.

Florida DUI law requires an arrest before a suspect is requested to submit to chemical testing and provide either a breath or urine sample depending on the facts of the case.

Intoxilyzer 8000 for Chemical Testing in DUI Investigation

In Broward County Florida, DUI task force has employed the use of CMI’s Intoxilyzer 8000 for several years. This sophisticated piece of equipment is regularly challenged by DUI defense attorneys to the inherent unfair and unconstitutional nature of its overall function in our criminal justice system. When maintained and calibrated properly the Intoxilyzer 8000 can accurately measure a person’s breath alcohol content. However, misuse by law enforcement in conjunction with the machines effectively proving an element of the crime of DUI.

Broward DUI Lawyer

Unconstitutional Nature of Florida DUI Prosecution

The fundamental principle of our criminal justice system is that the prosecutor be required to prove each and every element of a crime beyond into the exclusion of any and all reasonable doubt. There are no exceptions provided under the laws which we have all shared for over 200 years. Nonetheless, when Intoxilyzer’s report indicating that a DUI suspect blew a .08 or above is enough for them to find that the offender was under the influence to the extent that his or her normal faculties were impaired.

Recent changes in the manner in which the Florida Department of Motor Vehicles handles DUI investigations specific to license suspension has certainly changed the way that first-time offenders choose to either participate or not anticipate in a DUI investigation of which he or she is the subject.

The one question asked so frequently of veteran DUI defense attorneys, is now more easily answered. I’m speaking of course as to whether or not subject of a DUI investigation should participate in chemical testing should they have never been arrested for driving under the influence in the past.

To blow or not to blow…

The ramifications for refusal to submit to a breath test or first time DUI suspects are far less than in years prior according to DUI lawyers in Florida. Some may disagree, however, when you look at DUI defense and prosecution in its entirety, coupled with new administrative procedure implemented by the DMV, you can’t help but feel the lifting of potential stresses that even a first-time DUI offender faced with regard to Florida driver license suspension. The length of this suspension used to be significantly influenced by the way and manner in which a DUI suspect participated or refused to participate in the DUI task force officer’s investigation.

I have already been arrested, what’s the point in submitting to a breath test if the officer is not going to let me go home?

While some states employed the use of portable breath testing machines that were used on-site, Florida has required an arrest prior to any request or in some cases demand for chemical testing. This has in most cases left the DUI suspect both confused and frustrated at not only the legal system but the criminal investigation at hand. Most citizens who are under the stress of such an event fail entirely to see the logic in being cuffed, transported in a patrol car to a holding cell and then asked to submit to a breath test in order to confirm or dispel on investigating DUI officers suspicions.

Couple this with the likely fact that Miranda rights were not read to the suspect either. There would unlikely be an adequate response to that same DUI suspects request to consult with a criminal defense attorney. In a vast majority of cases that our DUI lawyers have seen in Broward County, little if anything is ever done by way of explanation to a DUI suspect as it pertains to when Miranda is required or why DUI suspects are not entitled to counsel in most cases.

Additional things that you should know prior to finding yourself the subject of a DUI investigation.

Many criminal defense attorneys in Broward County have gone as far as to say that certain law enforcement officers seem to respond to common requests of a subjects right to counsel in such a way that leads them to believe that their rights are being violated. The fact is, however that most elements of a DUI investigation involve the collection of non-testimonial evidence meaning that the DUI suspect is not questioned, rather observed and requested to submit to forensic testing. In such cases where a criminal suspect is not being interrogated, nor providing evidence that is testimonial nature, there is no right to consult with a criminal defense attorney.

Nonetheless, our nation’s highest courts have shamed police officers for the manner in which the outright denial of not only Miranda or Defense Counsel, was undertaken but also warned that the only nexus bridging the gap between modern DUI policing and an outright violation of a DUI suspect’s constitutional rights is the manner in which DUI task force conducts same. In Florida, officers who routinely make driving under the influence arrests are constantly reminded of the specific manner in which they are required to collect evidence and more importantly treat suspects.

20+ years ago the higher courts may very well have been uneasy about the constitutionality of denying an individual right to counsel prior to submitting to chemical testing in addition to specifically requesting same. According to criminal defense attorney William Moore, however, the Florida court systems cognizance of our criminal justice systems treading lightly upon the rights of the accused has long been gone.

DUI prosecution in Florida has been a gateway that has led to the dilution of many of our constitutional rights claims Moore.

Prior to focusing on major crimes such as drug possession delivery and trafficking offenses in Broward County Florida, attorney William Moore focused intently on defending individuals charged with driving under the influence. He has extensive knowledge and experience in this complex area of criminal defense having tried over 200 criminal DUI jury trials in his first 15 years of practice. Much of this knowledge and unique experience has been shared their writings, criminal defense law lectures and radio show commentary.

For information about how to get specific materials with regard to any DUI defense issue or topic please contact

Criminal Defense Attorney William R. Moore

One Financial Plaza Suite 2500
Fort Lauderdale Florida, 33394 
954 – 523-5333
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Hiring an expert in preparation of a criminal case

Use of of experts in preparation of defense by criminal lawyers, by Criminal Lawyer William Moore.

The preparing of a case in defense of an accused varies according to crime type and specific facts. To an accused the process can seem both confusing and overwhelming. To an attorney who has been exclusively engaged in the practice of criminal law, the entire process is second nature. One obvious element to defense case preparation is a thorough review of all evidence regardless of that evidences admissibility. This is because even irrelevant evidence may lead to the discovery of information that tends to strengthen or even establish a viable defense that can be the difference between exoneration and conviction for committing a crime.

Investigating, Discovering and Effectively Presenting Favorable Evidence by a Defending Attorney.

Experienced Criminal Defense Lawyers often use professionals in investigating, discovering and effectively presenting favorable evidence. Expert testimony that favors the defendant may be used by the defending attorney not only in preparation of trial, but also in negotiating a breakdown or even dismissal of the criminal charges against the defendant of whom they represent. The determination to use an expert in the preparation of a client’s defense is often based on rules governing the admissibility of evidence under Florida Criminal Law. This is because opinions may not be expressed and introduced as evidence by witnesses during a criminal jury trial unless they qualify as and are declared an expert by the court. Under Florida criminal law, experts may only testify about their opinions if they fall under their area of expertise. The use of experts out of necessity required significant forward thinking on the part of the criminal defense attorney charged with defending an accused client. It is considered malpractice on the part of the defending lawyer in most circumstances whereby convincing opinion evidence is declared inadmissible simply because counsel was unfamiliar with our Florida Criminal Statutes specific to opinion testimony.

Examples of when a criminal defense lawyer would require an expert in order to present evidence in a criminal trial under Florida law:

– Where an attorney represents a defendant who is charged with possession of a controlled substance and there is evidence that the sophisticated instruments used to test the substance were not maintained, calibrated or operated correctly. – Where the defendant is alleged to have committed a sexual battery on an alleged victim which is corroborated by DNA testing and it is learned by the representing criminal lawyer that the DNA may have been cross-contaminated. – Where a defendant is accused of DUI Manslaughter and represented by a criminal lawyer who wishes to present tire skid-mark and headlamp impact-burn evidence that the accident was caused by the victim. All of the examples above are similar to evidence issues confronted by our lawyers on a regular basis.  Each illustration requires the use of an expert in order to preserve, present exculpatory evidence because: – what a lawyer says in trial is not considered evidence. – a lawyer may not comment on facts or opinions not in evidence. – opinion testimony may only be introduced into evidence through a qualified expert. Lawyers who practice criminal law should employ the use of experts in most circumstances where the client’s resources allow. A few criminal defense law firms employ experts where the area of defense is limited to a specific crime type such as DUI, sex crime and complex fraud or white collar crime.

Advice to Criminal Lawyers in Broward regarding Qualifying Experts

Always remember to explain admissibility issues with the client where an expert is being retained for the purpose of testifying on behalf of the defense at an up and coming trial. Florida criminal courts are generally lenient when it comes to qualifying a witness as an expert. This is most often beneficial to the defense, unless of course, where it is the prosecution who seeks to have an expert certified as same. Certain criminal judges in Broward County have developed a reputation for requiring that the intended expert require significant credentials in order to offer opinion testimony.  Many judges have refused to allow costly experts to testify. If this is even a remote possibility, it is always advisable to prepare the client in advance. Where experts are not independently employed by a defense law firm, a client must be informed prior to their financing an expert’s testimony.

William Moore, Broward County

William Moore Criminal Defense Attorneys have utilized experts of all kinds over the years. For a list of experts commonly employed by criminal lawyers in preparing and arguing the defense of a defendant, see the followup post to this article. William Moore is a lawyer with William Moore Criminal Defense Attorneys: 1 Financial Plaza #2500 Fort Lauderdale FL 33394 (954) 523-5333 Email Attorney William R. Moore at wrdefense@gmail.com, williammoorelaw@aol.com Satellite Office: William Moore Criminal Defense Attorneys: 721 SE 13th St Fort Lauderdale FL 33316 (954) 656-6229

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When a Breath Test Operator Doesn’t Remember Conducting DUI Investigation?

DUI Lawyers in Broward County unanimously agree that in most cases it is a best practice in most circumstances to allow as much time as possible between the arrest of a client and the actual resolution of the case. This is especially true in cases involving an unfavorable breath test result.

Broward County DUI Lawyer
Breath Test Operators in Broward County Florida Rarely Admit to Having No Recollection of Conducting Chemical Testing in a DUI Investigation.

Independent Recollection or Testifying from Police Reports

This is due to the fact that breath test operators conduct so many chemical test investigations that it is likely that he or she will have no independent recollection of your DUI client, claims DUI Lawyer William Moore.

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Justin Bieber got a Bad Wrap

Justin Bieber was arrested in Fort Lauderdale and charged with a litany of crimes including DUI, driving on a suspended license, drag racing and Resisting Arrest in addition to the allegations that Bieber was incredibly belligerent.

Most surprising according to Local Broward Criminal Lawyer Moore were the representations that he also freely admitted that he had consumed alcohol to the point of being intoxicated, smoked marijuana and taken drugs. The investigating officer also considered Justin Bieber to be a threat of such significance that he was unable to conduct a DUI investigation at the scene and out of necessity had to physically restrain the pop star and place him under arrest. Some furtive movements on the part of Justin were taken to be significant and even dangerous.

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Understanding Breathalyzers

Florida, in addition to every other state, uses breath test devices to gauge whether or not a driver is intoxicated and, if so, to what degree. All 50 states have set the level at which the state presumes a driver is impaired (thus making driving in that condition a criminal offense) at 0.08 percent blood alcohol concentration, say Broward DUI attorney William Moore. Many, if not most, people are familiar with that particular component of the drunk driving statute, due largely to the campaigns waged by private organizations and law enforcement agencies against driving under the influence of alcohol. There is another provision, however, under which a motorist can be convicted of DUI: if he or she is actually impaired. For example, a person whose BAC, as determined by a breath test device, is only 0.05 percent can be arrested and convicted of DUI if there is other evidence to demonstrate impairment. According to Fort Lauderdale drunk driving lawyer William Moore Criminal Defense, the other evidence could take the form of testimony by a police officer or sheriff’s deputy regarding the motorist’s performance in roadside field sobriety tests, nystagmus tests on the eyes, slurred speech, and other symptoms of intoxication.
Breathalyzer results are important to the state’s case when prosecuting a DUI case. It is the only crime for which a criminal defendant can be convicted solely on the basis of the results of a mechanical device. There are a myriad of problems associated with breath test devices. They can be unreliable for a host of reasons, says Fort Lauderdale DUI Lawyer William Moore. For example, the devices are calibrated for an “average” person, one whose lung capacity is within that range, and is likely less reliable the farther from that “average” size a person taking the test actually is.
Additionally, some DUI lawyers believe that there is a confrontation problem. The manufacturer of the breath test equipment, a company called CMI, Incorporated, has refused to release the source code for the Intoxilyzer device. The source code is the computer coding that tells the machine what calculations to run. Because a DUI defendant cannot argue against the way the calculations are made, there is an analogy to being unable to confront an adverse witness.
A driver must generally submit to giving samples, including breath samples, for testing when he or she is under suspicion for driving under the influence. This is called implied consent and refers to the legal doctrine that a driver has already implicitly consented to providing samples by driving on Florida roadways or holding a Florida driver’s license.

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Breath, Blood, and the Right to Confront Your Accuser in Broward County DUI Cases

Fort Lauderdale drinking and driving lawyer

Fort Lauderdale DUI attorney William Moore has studied criminal procedure extensively, especially as it pertains to DUI defense. The United States Constitution and the Florida Constitution provide many protections to criminal defendants, such as the right to a speedy and public trial, the right to trial by a jury of one’s peers, and the right to confront one’s own accuser. All of those rights are major tenets of the criminal justice system. The Founding Fathers, as well as legislatures and Supreme Court justices of later times, have steadily insisted that these rights be protected and, where necessary for fairness, expanded. For example, the case that required reading of Miranda rights prior to criminal interrogations was only decided in 1966. Similarly, women and African-Americans were not allowed to sit on juries until the twentieth century. Female and African-American criminal defendants were instead tried by all-white, entirely male juries – which does not really constitute a jury of one’s peers. Now, the law has expanded to prevent lawyers from striking potential jurors during the selection process on the sole grounds of race. Broward DUI Lawyer William Moore is especially interested in the constitutionality of stopping vehicles at sobriety checkpoints.

Fort Lauderdale DUI defense lawyer William Moore Criminal Defense is also concerned about the ongoing use of breath and blood alcohol testing as a constitutional matter. The Sixth Amendment of the United States Constitution guarantees the right to confront one’s accuser. This was included in the Bill of Rights to prevent the abuse of the criminal justice system with secret prosecutions or secret evidence. The Sixth Amendment reads as follows:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Florida and the other 49 states have “per se” driving under the influence laws, in addition to other DUI-related legislation. The per se laws provide that a person accused of DUI should be convicted if the prosecution can demonstrate that his blood or breath alcohol content met or exceeded the legal limit of 0.08. The constitutional issue is that the “accuser” is a machine.
To be convicted of DUI under the per se statute, Broward DUI defense attorney William Moore Criminal Defense says that the breath test machine must show a reading of at least 0.08 and the jury must believe its accuracy. Many factors interfere with the accuracy of the machine, such as mouth alcohol, body size, body temperature, and numerous other factors. Most problematically for confronting the “accuser” is the fact that the manufacturers of the Intoxilyzer machines used by Florida law enforcement agencies will not disclose how the machine works. The company has refused to disclose the machine’s software coding, making it impossible to understand how the machines operate and how accurate they really are.
One YouTube user has set out to demonstrate the unreliability of the Intoxilyzer:

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Breath tests unfair for women

Fort Lauderdale DUI lawyer William Ryan William Moore Criminal Defense knows that DUI issues for women have changed substantially over time. Years ago, women accounted for a very small percentage of total DUI arrests. In fact, fewer than ten percent of all DUI arrests were women drivers thirty years ago, although women account for about half of all drivers. Now, women account for between fifteen and twenty percent of DUI arrests, a sobering increase. A Broward County DUI attorney might ask himself: why are the rates for women rising so drastically?
The reason why women comprise more and more Fort Lauderdale DUI arrests is complicated. Any Fort Lauderdale DUI lawyer can tell you that, anecdotally, he sees more female clients than in the past. Changing social attitudes may result in more women going out in the evenings and consuming alcohol. The changes in attitudes are also reflected in police behavior: police may have taken a more protectionist stance decades ago and perhaps given an intoxicated female driver a ride home rather than to the jail cell. Now, Broward County police treat DUI offenders similarly regardless of their sex.
Another reason why the rates of women arrested for DUI in Broward County are increasing is testing conditions. Our Broward County DUI lawyer knows that the breathalyzers used in the state of Florida are calibrated for a man’s lungs and body composition. Because women generally have lower lung capacity, they blow higher blood alcohol content readings as measured by these devices. The Intoxilyzer breathalyzers are calibrated for the amount of air the average man could blow into the machine, so it does not account for the fact that the alcohol level a woman blows is likely to be somewhat less diluted by air than a man’s is. That means that a man and a woman who technically have the same blood alcohol content may blow different readings – and the woman’s will often be higher.
A Fort Lauderdale DUI lawyer might also tell you that the changes in the law in the 1990s have led to more DUIs for female drivers. The Mothers Against Drunk Driving nationwide campaign led every state to establish the blood alcohol level at which impairment is presumed at 0.08 percent, down from 0.10 percent in most states. The change in the law, coupled with higher police prioritization of DUIs, appears to have led to more arrests of women. One theory is that men may drink more heavily and be more likely to be arrested when pulled over, whereas women tended to drink somewhat less heavily and would not have been arrested with a blood alcohol level of 0.08 or 0.09. Of course, any Broward County DUI attorney knows that a driver can be arrested for DUI if she appears impaired, regardless of her blood alcohol content.

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Breath Tests in Broward County Called Into Question After Operator Fired

The South Florida Sun Sentinel has reported that the Florida Department of Law Enforcement in Fort Lauderdale-Dade County fired breathalyzer analyst Sandra Veiga last week. According to her dismissal notice, she improperly tested the Intoxilyzer 8000 machines, the only breath test analysis instruments approved for use in Florida. According to Florida criminal defense attorneys familiar with the case, the accuracy of as many as 10,000 breath tests used to test for DUI are in question in Fort Lauderdale-Dade County alone, with more in Broward and Monroe counties.
When Intoxilyzers appeared to be failing the required annual state accuracy test, Veiga violated the Fort Lauderdale-Dade department policy by turning off the machines. Her intervention in the machines’ processing prevented the Intoxilyzers from logging errors in a central database in Tallahassee. In addition, Veiga advised other police inspectors on her method of avoiding any record of a failing test. Such conduct calls into question the integrity of the Florida DUI Breath testing program and qualified DUI attorneys have already begun filing motions in Broward, Fort Lauderdale Dade and Fort Lauderdale Counties. Judges in Fort Lauderdale have been agreeable to continuing cases while further investigation continues while the court has been less liberal further south in Fort Lauderdale Dade.
DUI attorney William Moore, immediately filed motions to continue all of his DUI trials involving a breatholyzer upon first learning of Viega’s manipulating the machines in October. He has since been working closely with DUI Intoxilyzer experts in order to best defend against the State charges pending against his clients.
“DUI convictions have serious consequences on ones career goals, in addition to social stigma and DMV complications. When an technician actively takes steps to hide the fact that these machines are failing, we have to put each and every intoxylizer test into question.”
Despite the problem with the FDLE inspector, the Intoxilyzers were still separately inspected monthly by the police departments using them. The Fort Lauderdale-Dade State Attorney’s Office has already indicated that it believes the devices were operating accurately and prosecutors do not anticipate any problems with their DUI cases.
These recent Fort Lauderdale-Dade developments might make you wonder how accurate breath tests are typically. Well, the answer to that depends. The Intoxilyzer 8000 can produce inaccurately high results for numerous reasons.
The first is mouth alcohol, which can include alcohol trapped in the mouth due to extensive dental work, from vomiting, or recently consumed cough syrup. Additionally, if you have blood present in your mouth (perhaps from a recently acquired injury or severe gum disease), the alcohol in the blood will be factored into the reading.

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Florida Judge Dismisses Breath Evidence in 19 DUI Cases

Arrested in Fort Lauderdale | William R. Moore Criminal Defense Lawyer

After a regional alcohol-program coordinator for the Florida Department of Law Enforcement failed to perform a department inspection on an Intoxilyzer 8000 machine, Judge Joyce Williams has opted to toss out breach evidence in nineteen DUI cases that occurred between February 17, 2007 and May 17, 2007.
In most situations, DUI cases are resolved within months of the arrest, but several defense motions have caused delays, according to Assistant State Attorney Greg Marcille.
Yesterday, Judge Williams presided over a hearing where prosecutors attempted to re-introduce breath-test evidence into the effected DUI cases. Without breath-test evidence, the state would be forced to try the cases using other evidence including the smell of alcohol, driving patterns, statements from the defendants, or other physical indicators of intoxication.
Among those who are impacted by this decision is 29-year-old James Estel Gregg, who tested far above Florida’s legal blood alcohol level and showed signs of intoxication during three sobriety tests back in April, 2007.
Technical problem may blow DUI cases, PNJ.com, July 30, 2008

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Defective Breathalyzer for Rourke?

Arrested in Fort Lauderdale | William R. Moore Criminal Defense Lawyer

Last month, 1980’s movie icon Mickey Rourke was arrested for driving under the influence on a Vespa in Fort Lauderdale Beach. The Fort Lauderdale Herald is reporting that Rourke’s defense to the DUI charge is that the Breathalyzer used by the Fort Lauderdale Beach Police Department malfunctioned. Rourke’s attorney maintains that when Rourke first took the test the machine gave a blood alcohol reading of .081, just over the legal limit in Florida. However, a second test was administered later on and Rourke’s blood alcohol reading was said to be a .074. It is not determined whether the Fort Lauderdale-Dade County State Attorney’s office will drop the charges filed against Rourke.

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