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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Can you be prosecuted for a DUI even if you did well on the field sobriety test?

Under the Influence lawyer Broward County

DUI police car recording
When facing a DUI charged in Broward County frequently the police officer making the arrest will have the DUI captured on tap through the in car video recorded.  This video can be used to the defense of the accused if their actions shown are viewed as normal. Meaning if the offender is seen as coherent and alert during the field sobriety test an DUI defense attorney can use this to their advantage.

First and foremost this video tap is used by police as evidence for their case. Knowing this the police will film the field sobriety test as a way to prove the individual was under the influence.

 

#DUI Q: Therefore if the individual is sober and passes the test, why did they get arrested?

 

According to DUI defense attorney William Moore, the answer for this is much more complicated then one may imagine. One reason the police may have arrested the accused is due to erratic driving or the police officer may have smelled alcohol on their breath.

It’s important to know that field sobriety tests are an objective measure on whether the individual is under the influence or not. In fact in some cases the blood alcohol level revels the person charged was not under the influence but still was arrested.

These types of cases hold a great argument for the defendant and may lead to the charges being completely dropped. If you feel that you have been wrongfully arrested and passed the field sobriety test contact our attorneys at William Moore Criminal Defense for further information on how we can defend your case.

William R. Moore Criminal Defense Attorneys

1 Financial Plaza #2500

Fort Lauderdale FL 33394


(954) 523-5333

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To Blow or Not to Blow: Whether or Not to Take the Breathalyzer Test

Our DUI Lawyers in Broward County have helped thousands.

Whether or not to take the breathalyzer test in the event a driver is pulled over is a question many people have wondered. The law says that submission to the test is required. In fact, pull out your driver’s license. In tiny, barely readable text across the bottom edge, the following words are printed: “Operation of a motor vehicle constitutes consent to any sobriety test required by law.”

Broward County DUI Attorney William Moore says that many people have never even noticed the implied consent language.
This means that merely by driving on a roadway in Florida, you have — by implication — given your consent to a breath, or if the law enforcement agency deems it necessary, urine or blood test. However, you should only be subjected to such testing in the first instance if the law enforcement officer has already determined that you appear to be impaired.
For instance, if a driver was pulled over for a violation such as bad tints on his windows (too dark) and the officer decides he might be impaired, there could be problems, depending on which signs of impairment are evidence. If the driver submits to a breath test and gets a reading of .000, the law enforcement officer would likely request a urine test. However, even if the urine shows prescription or illegal drugs that could be intoxicants, the fact is that the state must also show that the driver exhibited signs of impairment. This could be established by evidence such as the officer’s testimony that the person seemed confused and had watery, bloodshot eyes. Increasingly, however, DUI investigations are video-taped. Roadside field sobriety exercises are frequently recorded, as are the events at the breath test center. Jurors may view the videos and conclude that the driver appears to have his or her normal faculties.
There are penalties, including administrative suspension of your driver’s license, for refusing to submit to a breath test. If you have refused one or more previous times, you will likely be charged with criminal refusal of a sobriety test, which may carry penalties as severe as DUI itself. The refusal can also be used by the state at trial as evidence of guilt; however, the lack of results in the event the driver refuses to submit is also a lack of evidence, and the state must usually rely on the driver’s appearance in the video and the arresting officer’s testimony.

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DUI Video Evidence In Broward County

Drunk Driving Defense Lawyer in Fort Lauderdale, FL

Video evidence is among the most important evidence the Assistant State Attorney can use against a DUI defendant, but it can frequently work in the defendant’s favor, depending on what the video shows. There are any number of possible scenarios in which a DUI video provides evidence useful to a defendant, according to experienced Fort Lauderdale DUI attorney William Moore.
In the case of a DUI suspect who performs the roadside field sobriety exercises, decent or good performance can work in his favor. This is true regardless of whether or not there is a breath test reading. For instance, if the driver suspected of DUI performs the roadside tests reasonably well, especially in light of the fact that they are unusual activities drivers are not accustomed to performing, the video is more helpful to the suspect and his DUI defense attorney. One interesting argument in this scenario is when the driver actually receives a very high breath test reading. These two things occasionally happen. If a driver blows a 0.32 breath test reading — four times the “legal limit” at which intoxication is presumed — yet still performs the exercises well, a reasonable jury may well understand that the breathalyzer may have been faulty or inaccurate.
If a video captures the time leading up to a traffic stop, the driving pattern may also be under scrutiny. If a person is pulled over on suspicion of driving under the influence, the police officer will need to be able to justify the traffic stop. Failure to maintain a single lane, just by itself, will probably not cause reasonable suspicion for a traffic stop if the driver is not affecting other traffic. However, weaving, drifting into another lane, failing to go at a green light, and very slow driving speeds may all trigger traffic stops.
Another possible scenario would be when a non-English speaking driver is pulled over by an officer who cannot communicate effectively with him. As a result, the driver may not understand the instructions for either the roadside field sobriety tests or the breath test machine. If a police officer fails to adequately (or correctly) explain the consequences of refusal, regardless of the language the officer and the driver are communicating in, that may also work in a DUI defendant’s favor. Likewise, a police officer or breathalyzer operator who is extremely rude or expresses a bias may not win favor with a jury hearing the DUI case.

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Evidence in DUI Trials — Fort Lauderdale DUI Lawyer

When a person is pulled over and the law enforcement officer conducts a DUI investigation, he or she is looking for one main thing: evidence that your normal faculties are impaired by a substance (alcohol or drugs). However, the police officer a couple of disadvantage in terms of accuracy in this investigation. The first is that law enforcement is unaware of what your particular normal faculties are. This means that if you have had a knee injury, for instance, doing a heel-to-toe walking pattern on the side of a highway may be difficult for you. Similarly, standing on one foot for a long period of time may cause you to sway for any number of medical reasons that do not reflect on your degree of intoxication or impairment, notes Fort Lauderdale DUI Lawyer William Moore.
There are three ways the police try to collect proof against a driver suspected of operating a motor vehicle while intoxicated. The first is by inquiring about alcohol usage, or interrogation about the matter. An officer could ask, for instance, if you have been drinking and if so, how much. The second matter the officer will look at is your performance on roadside field sobriety tests, in which you are asked to complete several physical activities (and follow instructions) to see how well you are able to complete the task. As mentioned before, standing on one leg, possibly while counting, or walking heel-to-toe for a certain number of steps are common tasks. The officer will evaluate your performance on these tasks, although his or her perception is highly subjective, and may be colored by the fact that the officer already suspects the driver is intoxicated. Perhaps the most important test the law enforcement officer will ask you to submit to is a breath test to check for alcohol in your system, more commonly known as a breathalyzer. Although there is evidence suggesting these machines are not nearly as accurate as police or the machines’ manufacturers claim they are, the results are still admissible in a court of law. You may also be asked to submit to a blood or urine test, depending on the circumstances.
The less proof of intoxication exists, or what law enforcement believes is evidence, the less likely a driver is to be convicted at trial. “Triple refusals” can therefore be useful to your DUI defense lawyer, although refusal can have other consequences, including a longer period of driver’s license revocation. Always consult an experienced Broward DUI attorney before making these decisions.
In addition to these tests, the law enforcement official is also checking other signs of intoxication. Bloodshot eyes are an indicator they use, but one which is mimicked by other issues. Foremost among these is dry contacts, but even just being tired after a long day or allergies could cause red eyes.
This article should not be construed as legal advice in any way. Additionally, please note that because the operation of a motor vehicle constitutes implied consent to testing. Further, refusing a second or subsequent time can result in separate criminal charges.

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Are Field Sobriety Excercises Voulantary?

Broward DUI defense law firm

In a Broward County DUI investigation an officer has no duty to tell a suspect that field sobriety tests are voluntary, that the individual has a right to refuse, the consequences of a refusal, or the consequences of failure. However, the officer cannot misstate the law or misinform the individual about his or her rights. Thus, the results of field sobriety exercises were inadmissible where the officer told the defendant that his only option was to arrest him if he did not submit, and he could be “unarrested” if his performance on the tests was satisfactory. Broward DUI attorneys also cite that the results of the sobriety tests were inadmissible where the officer told the defendant that his license would be suspended if he refused to do the exercises. So too, the officer’s representations that if the defendant passed the field sobriety tests and the breath tests, the DUI would “no longer exist,” and he could be immediately released upon posting bail for a license charge, were misleading and required exclusion of the test results. Under such circumstances, the sobriety exercises cannot even be considered for purposes of probable cause. But where the officer told the defendant he wasn’t going to force the defendant to perform any tests, incorrectly advising defendant that by accepting her driver’s license she consented to any sobriety test “requested by law,” rather than “required by law,” was insignificant and didn’t justify exclusion of the field sobriety tests. And where the officer asked the driver to submit to field sobriety exercises, compliance was not coerced merely because the officer informally discussed the implied consent law without being threatening in behavior or language.

The right to counsel and the Fifth Amendment privilege against self-incrimination raise other potential constitutional issues. However, these rights do not apply to field sobriety exercises. There is no right to consult with a qualified Broward County DUI attorney “at the sobriety testing stages of a DUI investigation.” Similarly, the privilege against self-incrimination has no impact on the admissibility of field sobriety test results.

Broward County DUI attorneys warn that such tests are not testimonial. As previously noted, they produce evidence of physical characteristics, which constitutes physical evidence. Accordingly, the privilege against self-incrimination does not bar the introduction of field sobriety tests results. In fact, this privilege does not even bar the court from compelling the defendant to perform the tests in the courtroom. It should be noted, however, that some court decisions have found that certain types of field sobriety tests do elicit testimonial evidence and, therefore, implicate the privilege against self-incrimination and Miranda issues.

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Broward County DUI Defense Attorneys: HGN Tests (Pen Light)

HGN (Pen Light Test)

Broward County DUI defense attorneys routinely see DUI investigators conducting the pen light exercise when conducting an investigation. The proper name for this test is Horizontal Gaze Nystagmus and it is designed to detect impairment based on a jerking of the eye at certain angles. HGN exercises are unique in that of all standard field sobriety exercises, HGN is a medical test requiring certain training an experience before being admissible in a defendants Broward County DUI trial.
Broward County DUI Attorney William Moore Criminal Defense explains that a 1981 study concluded that the Gaze Nystagmus could correctly identify participants at or above a BAC of 0.10 seventy-seven percent (77%) of the time, that the walk and turn test could correctly identify participants as being at or above a BAC of 0.10 sixty-eight percent (68%) of the time and the one leg stand test could correctly identify participants at or above a BAC of 0.10 sixty-five percent (65%) of the time. Further, the study stated that when the results of the Gaze Nystagmus with the walk and turn test were combined, they could accurately identify a person at or above a BAC of 0.10 level eighty percent (80%) of the time. Not to be forgotten, the authors also noted a 32% false arrest rate in the overall statistics.
Another NHTSA commissioned study was conducted in 1983. This study was to standardize practical and effective procedures for police officers to use in reaching a decision regarding the arrest of a possible DUI driver. The results of this study echoed the statistical results of the laboratory testing summarized in 1981 by Tharp, Burns and Moskowitz in Development and Field Tests for DUI Arrests.
NHTSA funded yet another study to validate the SFSTs. A study
conducted in Colorado in 1995 was commissioned to examine the results of arrests from seven Colorado law enforcement agencies. A Colorado Validation Study of the Standardized Field Sobriety Test (SFST) Battery (1995) In this study officers were old to identify drivers who had a BAC over 0.05% (between 0.05%).099%) and also drivers who had a BAC over 0.10%. The study found that officers were 86% correct in their determination to arrest or release a motorist.
For more information on HGN, contact our Broward County office today.

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MIAMI-DADE DOES NOT VIDEOTAPE DUI INVESTIGATIONS.

Criminal Lawyers in Broward County | William R. Moore Attorney 954-523-5333

Videotaping road sobriety exercises is standard procedure in even some of Florida’s smallest counties. Fort Lauderdale-Dade however, still rejects the use of in-car video camera systems for its DUI task force. The cost of the dash mounted patrol car camera is approximately $5000. Equipping the cars of every DUI task force officer wouldn’t make a dent in the overall budget of the Fort Lauderdale-Dade police force. Nonetheless, task force officers don’t have cameras and videotaping is not standard procedure.
In direct contrast, in Broward and Broward County where videotaping is standard procedure, an officer’s failure to do so during a DUI investigation may allow for challenges based on “failure to videotape” motions (A/K/A failure to preserve evidence motions). In Fort Lauderdale-Dade however, the issue is not the failure to preserve evidence but the failure to gather and preserve evidence in a particular manner. As videotaping is not standard procedure in Fort Lauderdale-Dade, the courts have held that law enforcement is not required to collect evidence in a manner dictated by the accused. Consequently, at this time, failure to preserve evidence motions based on a lack of videotape are not successful. Videotaped evidence can be a double-edged sword. I have forgotten more cases than I remember where videotape evidence exonerated a defendant of their DUI. By the same token, a poor videotape that is admissible into evidence can be extremely damaging to a defendant’s case.

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