The U.S. Supreme Court in Missouri v. McNeely held that compelling a potential drunk driver to submit to a blood test without a warrant is prohibited by the 4th Amendment protection against unreasonable search and seizures. In individual cases, exigent circumstances may permit a compelled blood draw based on the totality of the circumstances. In drunk driving cases, the natural dissipation of alcohol in the bloodstream does not constitute per se exigency sufficent to skip the constitutionally mandated step of getting a warrant. This is not to say that there couldn’t be circumstances that could compel a driver who refuses to provide a breath sample to succumb to a needle prick to take a blood draw from a vein, but it will be scrutinized much more carefully and have to have facts and circumstances to support it.
In the state of Florida, if you are driving under the influence and have a blood/breath alcohol level of .08 or higher you will be charged with a DUI. According to the Florida Department of Highway Safety and Motor Vehicles, the penalties upon conviction are the same but depending on certain factors such as prior convictions or if there was a minor in the car, the suspect will face heavier consequences.
Referenced from the Department of Highway and Safety and Motor Vehicles, here is an outline of the consequences and suspension laws for a DUI in Florida.
- Pay a fine anywhere between $500- $1000.
- 50 hours of community service is mandatory; you can either complete the community service or pay $10 for every hour that is required.
- Probation (should not exceed a year).
- You will not face more than 6 months jail time.
- Your license will be suspended anywhere from 180 days to a year.
- Mandatory DUI school before hardship reinstatement.
- Your car will be impounded 10 days.
If it is your first offense AND you have a BAL of .15 or higher or have a minor in the car your sanctions will worsen. Your fines will increase to $1,000-$2,000 and you could face up to 9 months in jail.
- A fine of $1,000- $2,000
- You will not face more than 9 months of jail time.
- If it is within 5 years of prior offense, license will be suspended for 5 years.
- Mandatory DUI school.
- Your car will be impounded for 30 days.
If you have a BAL of .15 or higher or a minor is present, your fines increase to $2,000-$4,000 and you can face up to 12 months in jail.
- A fine of $2,000-$5,000
- You will face at least 30 days of jail time but no more than 12 months.
- If it is within 10 years of prior offense, license will be suspended for 10 years.
- Mandatory DUI school.
- Your car will be impounded for 90 days.
Again, if you have a BAL of .15 or higher or a minor is present, your fines increase to no less than $4,000.
The most important thing you can do after receiving a DUI is to contact a criminal defense attorney. Hillsborough County is one of Florida’s most active counties in cracking down on drunk drivers. Generally speaking, if you are pulled over for DUI questioning, you will be arrested. Unfortunately you must pay the price, but having a Tampa defense attorney present throughout your process will ensure that you are making the right decisions as you go forward. A Board-Certified attorney should know the DUI laws like the back of their hand, so they will be able to educate you on what happens next.
Last Thursday, the Florida Supreme Court ruled that the state can no longer suspend motorist’s license if they refuse a DUI test. What’s the catch? That is only if the driver felt the refusal did not follow a lawful stop.
Prior to this ruling, Florida’s “implied consent” law required that if police officials had probable cause to pull a suspected motorist over and they denied the sobriety test, their license would immediately be suspended. Officials never had to consider the legality of the stop.
In the article, DUI License Suspension Rules Will Change After Ruling, attorney David Robbins says, “This gives defendants a fighting chance.” He and another attorney believed that since law enforcement had the ability to suspend someone’s license right on the spot, suspects had no chance to appeal the decision.
So what does the passing of this law tell us? It’s safe to say that we’ll see an uptick in the number of people that will challenge the lawfulness of their stop.
This law applies to DHSMV administrative suspension proceedings and excludes all criminal DUI cases.
Not too long ago, I touched upon the idea that Florida could see “no refusal” DUI checkpoints in the future, but last week Florida’s 5th District Court of Appeal put an end to that idea, at least for now. The court ruled that law enforcement cannot forcibly draw blood in a DUI investigation if it is a misdemeanor. The ruling still stands that blood can be drawn if it involves injury, death or if it is a felony case.
According to an article from Key News in Key West, attorneys on both sides of the argument agree on one thing: that blood tests are the most accurate of all sobriety tests. Where they differ is how the blood is used. Sam Kaufman, Key West defense attorney states,
“What they’re saying is that blood is not being used as a means to commit a crime…In other words, the statute states that evidence has to be property used to commit a crime. They’re saying that a person’s blood doesn’t fall into that category.”
Dennis Ward of Monroe County is for the “no refusal” forced DUI blood tests. He wants everyone who is pulled over and has a prior DUI to be subject to a blood test. Currently, the law stands that blood can only be drawn in felony cases. A suspect’s third DUI is only considered a felony if it happens within 10 years of the last convicted DUI but the fourth DUI is always a felony.
Ward says that this ruling is not going to stop his fight against drunk drivers. At this point in time he cannot do anything about first or second time offenders, but says this will not hold him back from moving forward with felony offenders.
Although this case stems from Key West, the article explains that this “ruling affects all of Florida because no other precedent has been set.” This sets back any movement towards the “no refusal” DUI check points coming to Tampa. It raises the question of whether or not the Geiss case mentioned in the previous post or any other current cases dealing with forced BAC tests will be appealed. Although the law has passed, this is likely not the last we will hear of the “no refusal” checkpoints and blood tests. This situation underlines the importance of effective legal representation if you’ve been charged with DUI/DWI.
“It can and does happen to anyone.”
DUI charges rank among the Top 5 charges in Hillsborough and Pinellas County. Hillsborough County alone is ranked one of the highest charging DUI counties in the state of Florida. There are a couple of things that you probably don’t know about a DUI that you should…
- – The DUI charge has two components creating two separate cases. Administrative (Dept. of Highway Safety and Motor Vehicles) and Criminal.
– Enrolling quickly in DUI school could help with your criminal case.
– You have a strict 10 calendar day deadline from the date of your arrest to file a Formal Review Hearing with the DHSMV.
– Previous DUI/DWI cases are considered a prior conviction, no matter what state.
– A DUI usually consists of driving under the influence of alcohol, but could also mean driving impaired by drugs; even prescription drugs.
– There are many possible penalties for a DUI. For a guideline of Florida’s DUI penalties contact a Criminal Defense Attorney.
If you unfortunately do happen to get arrested for a DUI, the most important thing you can do is contact a Criminal Lawyer as soon as possible. The lawyer can advise you the rest of the way after your arrest. Knowing what to do and expect during the investigation process is also very important.
Towards the end of last year, we heard the idea that “no refusal” DUI checkpoints could be introduced to Tampa’s fight against drunk driving.
The “no refusal” checkpoints would consist of having a judge on scene, allowing them to issue a warrant for the driver in question requiring that they take a blood test to acquire if the driver was intoxicated.
Currently, a blood test is only to be used when there is serious injury or death involved. Obviously anyone can agree to a consensual blood test but it is very unlikely that anyone would.
According to an article from Floridatoday.com, an appeals court in Daytona on Tuesday questioned whether or not law enforcement could forcefully obtain a blood sample in certain DUI cases. This case dates back to 2009 when Gregory Geiss was pulled over for swerving between lanes. There was no serious injury or death involved but a judge was on scene, a warrant was issued, he had to take a blood test and was charged with a DUI.
The judge in the 2009 case did not allow the blood evidence to be used in the courtroom, but later the state appealed. Two arguments surfaced: Is blood a searchable property? Is the searching of blood an invasion of privacy?
According to the article, Defense Attorney Ernest Chang called the forced tests, “a judicial expansion of powers.”
In 2003, there was a similar case where the defendant was charged with a DUI because of a blood test. In this case, a panel of circuit judges decided in favor of the state 2-1.
It will be interesting to see how the circuit judges in Daytona decide on the Geiss case. With what has happened in past cases, and the decision of this case, we will see if the “no refusal” DUI checkpoints will make way to Tampa anytime soon, or if the current publicity to the Geiss case will put a hold on that.
There is literally an app for everything these days; a food guide, calorie counter, music streamer… DUI checkpoint finder? Applications such as “Trapster”, “PhantomAlert” and “iRadar” are driving alert applications that notify drivers of speed traps, red light cameras, school zones and DUI checkpoints.
These apps are facing scrutiny from US Senators specifically for the DUI checkpoint feature. Senators Harry Reid, Charles E. Shumer, Frank R. Lautenberg and Tom Udall wrote a letter to Apple asking for the applications to be banned unless altered so that the DUI feature is removed.
In the article, Senators Ask Apple to Pull DUI Checkpoint Apps, we are introduced to the argument of whether or not the application helps or hinders the safety of the public. Captain Paul Starks of the Montgomery County (Md.) Police Department fears that the application will not stop people from drinking and driving but will only be used when people have been drinking and want to drive. He remarks,
“They’re only thinking of one consequence, and that’s being arrested. They’re not thinking of ending the lives of other motorists, pedestrians, other passengers in their cars or themselves.”
In the same article, Joe Scott, CEO and founder of PhantomAlert argues that they are doing the same thing police departments are doing to deter people from drinking and driving, the only difference is that the app puts awareness in real time. He stated that
“If they really understood what we are doing and aim to achieve, they would actually support us.”
So what it boils down to is whether or not this app is actually helping the safety of the public, or creating a tool that drunk drivers can use to dodge a DUI checkpoint and possible arrest. Could this be something that police officers and attorneys will have to start considering when investigating a DUI case?
The applications have not yet been removed but it will be interesting to see how Apple and other parties involved will respond.
With Hillsborough County ranked as one of the highest charging DUI counties in the state of Florida, Tampa Criminal Defense Lawyer Lori D. Palmieri addresses what you should know about a DUI and the investigation process.
In this video hosted on the Palmieri Law YouTube channel, Palmieri generally states that if an impaired driver is pulled over for DUI questioning, they are going to jail. What people may not know is that the decisions they make during the investigation are very critical.
“By submitting to a field sobriety test, you are giving the State of Florida evidence of your impairment. By submitting to a breath test, you are giving the State of Florida the ability to prove a DUI against you with a blood alcohol or breath alcohol of over 0.8.”
There are different possible outcomes when facing a DUI depending on the county court and the administrative court. The county court charges could include probation, the payment of fees and fines, attendance in DUI school, the installation of an ignition interlock device in your car and county jail time. When dealing with administrative court it is possible that the State of Florida will suspend your driving privilege.
After you have resolved your DUI case in court, and want to obtain your hardship license from DHSMV, you are now required to present a CERTIFIED COPYof the disposition. This document can only be obtained from the traffic clerk. DHSMV will no longer accept the abstract given to you in court. Call with any questions.