From the International Journal Of Obesity, comes the surprising possibility that lowcarb dieters run the risk of failing both an ignition interlock and evidentiary (like back at the police station) breath test. The culprit seems to be the same that causes failure of the breath machine in diabetics: acetone and the acetone by product isopropnyl.
Low Carb diets are effective because the body, after a few days, goes into “ketosis”, utilizing fat as a primary energy source instead of carbohydrates and sugars. While this is fine for the dieting effect, the ketones released in ketosis then are broken down and release acetone and isopropynol into the blood stream.
It is one more thing you need to mention to your DUI Attorney in tampa or or elsewhere in Florida to aid him in preparing your defense.
Click here to read the study on low carb diets causing breath machines to fail in DUI cases in Florida and elsewhere.
Under category: Breath Test DUI | September 7th, 2011 | No Comments »
You were arrested for DUI. You blew into the machine, and the machine registered a .000. But you knew that already, because you did not have anything to drink! The officer then asks you to submit to a urine test. You do.
Months later, the lab results finally come back. You know that the results of the lab test can make or break your DUI case. And the results are in. The lab results show oxycodone, xanax, or another controlled substance in your system. You know that you were not DUI when the cop arrested you. You have a prescription. So what is your defense?
The Therapeutic Effect
While there are multiple defenses here, including exposing the urine test as being nearly meaningless, your best defense may the therapeutic effect defense. This applies if you are, indeed, under the care of a doctor and have been taking regular doses of your prescription drug for 2 weeks or more.
Side Effects of Narcotics and CNS Depressants
The two common prescription drug classes that appear in DUI cases in Tampa, Florida, and elsewhere are CNS Depressants and Narcotic Anagelsics. When we talk of CNS depressants, we are speaking of anti-anxiety drugs like alprazolam (xana), lorazapam, ect. When we are speaking of Narcotics, we are talking about pain relievers like hydrocodone, oxycodone, and methadone.
These two classes of drugs have different clinical purposes, but both have similar side effects. Specifically, both can cause sluggishness, drowsiness, and potentially impair normal faculties much in the way that alcohol does. As a result, it is illegal in Florida to drive to the extent your normal faculties are impaired by these drugs.
Tolerance Because of the Bodies Resiliency
While these side effects are common upon first dosage, the body is a remarkable thing. Specifically, the body develops a tolerance to the substances side effects over time. Accordingy to leading forensic toxicologists, the body can adapt to both of these classes and become tolerance in approximately two weeks. Meaning, assuming the patient/defendant has been taking a prescribed dosage regulary of either of these classes of drugs for in excess of two weeks, the individual should not be exhibiting any of the side effects that could cause DUI.
Putting the DUI Defense Together
Applying these defense to a drug dui cases requires the following:
- A Forensic Toxicologist (An expert): While it is possible to present this defense using the State’s own toxicologist, it is much more effective to have your own expert testify on your behalf. This assures that you can get everything your DUI Attorney needs as far as testimony out of the witnesses mouth and into the ears of the Jury. If the State toxicologist will give your DUI Lawyer ”
everything he wants”, then your expert will repeat the information to the Jury. And the more you can repeat important information to the Jury, the better. Finally, it allows your Drunk Driving Lawyer to hammer home the point in closing argument to the Jury with the, ‘Not only did you hear this from my witnesses mouth, but also from the State’s own witnesses”. Effective.
- Prescription Records: This is obvious, but to present a defense, it is always better to the get the evidence in front of the Jury to back up the claim.
- Someway to get the records into evidence: This can be the prescribing doctor, the defendant himself (not always recommended), or in some cases, the toxicologist. Depending on the Statements made by the DUI defendant to the arresting officer, the arresting officer himself can sometimes be used to get this fact in front of the jury.
Drug DUI Cases can, and in many cases should,be won. Your Tampa, Florida DUI Attorney has tools in his toolbox to blow up the State’s case in most DUI’s, but especially drug DUI’s. While it can be done without expert help, in most cases I strongly recommend looking to retain an expert witness to solidify your defense.
Tags: drug dui defense, drug in system dui, prescription drug defense dui, script for drug dui, urine test defense
Under category: Drug DUI Defense | September 4th, 2011 | No Comments »
Could you fail the breathalyzer test even if you have had nothing to drink? If you are a type I or II diabetic, the answer, according to a Jamaican policy study, is yes. DUI lawyers, beware.
The Jamaican Study
An independant health consultant at the Jamiacan Department of Parclinical Sciences recently published a stud conlcuding that some diabetic citizens were falsely convicted of DUI when they were not impaired by alcohol. The study concluded that diabetics whose insulin levels had dropped were likely to exhibit wobbliness and other signals that Jamiacan police confused with impairment. Then, when taken back to the Station and given a breath test, the defendants often failed the test even when they were not impaiured by alchohol. Eight of the studies diabetic participants who “failed the breath test” immediately had there blood tested for alchohol. As previousy discussed in this DUI blog blood testing is the most accurate way to determine blood alcohol levels, not breath tests.. Of those Eight, Four of the participants, or 50 percent, passed the blood test. That is an astronomically high failure rate..
It’s the Insulin, Stupid
The problem with diabetics and breath test machines has to deal with insulin. Diabetics have insulin deficiencies, requiring supplementation to mantain proper glucose levels in the diabetic. If the insulin level drops enough, then the body starts goig into ketosis, and ketones are released into the body. One particular keytone is a molecule called acetone. Acetone is present in all people to a small extent, but can be present in concrentations that a hundreds of times higher than a normal person in a diabetic who needs insulin.
Breath Test Machine Can’t Tell the Difference Between Ketones and Ethanol
Now, breath test machines measure molecules in the breath. The machine is looking for ethanol molecules. How does the machine recognize molecules? It has to do with passing light through the molecule and measuring the wavelength of light that results. Ethanol it turns out, has a wavelength of 3.4 microns. So, the machine, in part, looks for the amount of these microns and then calculates a breath test number.
But there are hundreds of chemicals in the human body that have the same wavelength. So the problem is that the machine is capable of mixing up other molecules with ethanol, or having false positives. One such molecule is acetone.
So, in the diabetics who need insulin, the acetone seems to be misinterpreted by the machine as ethanol. Then, the machine will spit out a number that is false and too high. As a result, you have false readings, and, in the case of the Jamacain study, false convictions.
If you are a diabetic and you failed a breath machine after a DUI arrest, it would be wise to consult with a DUI Lawyer to discuss if your breath results are wrong. Clicl here read the full Jamaican breath test DUI study.
Under category: Uncategorized | September 2nd, 2011 | 1 Comment »
If you were arrested for DUI recently and blew into the breath test machine, the results of that test might ultimately become inadmissible in court. From tampabay.com:
She (The breath test operator) continued, “I resigned my position because there was a breach of security in my office.”
Hyslop, a former Hernando County judge, was stunned.
She said that on numerous occasions since the Hernando Sheriff’s Office took over the jail in August 2010, deputies had entered her office without permission and had moved items, tampered with instruments and opened and viewed evidence without her authorization or knowledge.
That would violate the Florida Administrative Code, which states that evidentiary breath test instruments must be accessible only to people issued licenses by the state. The rule serves to protect the chain of evidence.
“I put my resignation in because I could no longer sign a breath test affidavit in good conscience that everything was true and accurate because I don’t know who was touching the instruments,” she said later, according to documents obtained by the Times.
Now, the article goes on to State that the Sherriff’s office has done an internal investigation and so far, the investigation shows no gross behavior or wrongdoing on the part of the jail. So the stories conflict as to what happened. Although it should be noted that the breath test operator made these allegations at a deposition. Meaning, after swearing under oath to, “tell the truth, the whole truth, and nothing but the truth”.
Legally: What this Means For DUI Cases
Legally the fear for the State is that a DUI Lawyer writes, files and holds a hearing on a Motion in Limine asking for exclusion of the breath test result because the State cannot prove “substantial compliance” with the administrative code. It goes like this: 1. Law Enforcement would love to have blood results to show alcohol intoxication, if any, 2. Blood results are impractical, so we need a substitute, 3. Breath test results are the next best thing, but they are just a little bit on the hokey end, so 4. They need to be “scientifically valid” some way or another, so we write an adminsitrative code with some rules and regulations that the operators and inspectors must comply with when dealing with the machine. But it appears, 6. The operators and inspectors and whoever else decided to disregard the rules and procedures, so 7. The breath test results in (case open right now in Hernando County) are not in substantial compliance with the rules, so 8. Judge, you gotta throw them out.
Now, even if this happens, it is not neccessarily fatal tot he States case because even without breath results, the State is free to to use other evidence gathered before the results to try to prove up its case (think bad driving and video of DUI exercises). However, losing a breath result, especially a high result, can be difficult for the State to overcome.
It will be interesting to see how this plays out. Certain DUI Attorneys with good videos and driving patterns but breath test results over the limit may go for the gold, trying to get the case dismissed either by the State doing it voluntarily or by motion in front of the Judge. Other DUI Lawyers who may not have the best of facts (think accident, plus falling over drunk, plus bad breath test result) might try to use this issue as leverage to work out a reduction of the charge to a reckless or otherwise. Either way, it will be fun to see how it all plays out.
Under category: Breath Test DUI | August 31st, 2011 | 1 Comment »
Or, how invoking your right to remain silent can be the difference between a year in jail or no jail at all.
As a dui defense attorney will tell you, the little things can matter just as much as the big things in a DUI case. And that’s because the exclusionary rule in criminal law can mean that evidence of guilt, no matter how damning, can be excluded if the cops ‘do something wrong’. Most of the time ‘doing something wrong’ means a fourth amendment violation, or an unreasonable search or seizure (think a police officer stopping a car for no reason). But other times, the “something wrong” can be continuing to question a DUI suspect after Miranda is read. If this happens, the dui lawyer can ask the Judge to throw out any statements or confessions made after Miranda is read. And that can be the difference between potentially going to jail for a long time and going home with a reduced charge.
Consider the following example from a trial my office had last week:
The ‘Facts’ as we prepared for trial:
Client rear ends vehicle. Client has girl and baby in back seat. Cops come. Cops do DUI investigation on client, complete with video evidence, and arrest client. Client has a twelve pack of beer in the back of car, a pill bottle for a controlled substance, and admits to police that he has taken controlled substances. Client tests positive for four controlled substances in his urine, and blows a .007 into the machine.
The other ‘Facts” that made all the difference.
Client was not driving when the cops came to the scene. It was clients car, and he admitted to multiple officers that he was the driver both during the accident investigation and the during the police investigation. Importantly though, the admission made after the investigation began was made after client invoked Miranda. The officer continued with field sobriety exercises (which he can do), but during the exercises, client admitted after questioning that he was the driver.
Pretrial Motions: Excluding Statements
Now, going into the morning of trial, the State Attorney thought the main defense was that our client was not impaired. And truthfully, that was one of the defenses. We had hired a toxicologist to come in and explain to the jury that urine results were meaningless, and the client was not guilty of DUI. But what the State took for granted was that it could prove the client was driving the vehicle. Or, what the State likes to call, having a “wheel witness”. And the State did not have that. All the State had was the client’s admissions and other very circumstantial evidence (it was the client’s car, for example).
So, we asked the Court to exclude both statements by the client admitting to driving. The first statement was made during an accident investigation. Florida has a statutory privilege keeping statements made by a driver of a vehicle to a cop as part of an accident investigation from hurting them in court if the statements were elicited premiranda. So the first admission was out.
But the second one? Well, the cop knew he had to read Miranda to the defendant on scene because he needed to end the accident investigation to build his criminal case. However, in this case, the client said “No” when asked if he would like to speak to the cop. He invoked his right (a surprising rarity).
The Judge then agreed that Miranda was violated, and tossed that admission too. So what happened to the State’s case? Now, there was very limited evidence placing the defendant behind the wheel of the vehicle. Without a wheel witness or statements by the defendant, the State was in a tough position. Proceed to trial, and the Judge may through the whole thing out. So what happened?
State was asking for 90 days in jail and a third time DUI conviction. We negotiated a reduction to a reckless driving and no time in jail. This made the state happy, because they got something. And the client was happy; because the trial was stressful enough and he didn’t want to take the risk the Jury did not like him and convicted him. In other words, because the client invoked his right to remain silent, he got a reckless driving and no jail. Had he admitted to driving, he would have had to take his chances in front of a Jury. And sometimes, the safe play is the best play.
Under category: Miranda Rights | August 30th, 2011 | No Comments »
A Full Service Criminal Defense, DUI, and Family Law Firm, located off Main Street in the heart of New Port Richey.
Denmon & Denmon Trial Lawyers, 5703 Main Street, New Port Richey, FL 34652, 727-753-0049
View Larger Map
Under category: Uncategorized | November 16th, 2010 | 1 Comment »
The truth be told, how you act and react during the couple of hours you interact with the arresting officer can make all the difference in whether you beat the DUI or not. So without further ado, the 3 most important things you can do to help your Defense Attorney beat your DUI.
First, a forewarning: If you are in anyway a close call when the cop investigates you, rest assured he will arrest you. Any DUI Lawyer or Criminal Attorney will tell you that the Officer is going to error on the side of caution. Consider: if the officer decided to let you go, and you were DUI, and you did then hurt someone, that Officer would lose his job and be vilified in the press. This of court leads us to rule Number one in beating a DUI:
1. Be Nice. Be Respectful. Be courteous.
It does not matter how sober or how drunk you are, if you act like a dummy in front of the cops, you will get burned. Ultimately there are a million factors that go into whether or not you can beat your DUI, but rest assured the most important thing is that you act like a gentleman on tape. Think about it: The person who has control over whether or not to reduce your charge to a reckless driving , or throw your butt in jail, is the prosecutor. The prosecutor will always review the video evidence before making a decision on how to proceed. If you look like a jerk, the prosecutor will have no sympathy for you. I have seen it time and time again, the prosecutor giving the reckless driving to the nice respectful person on the close calls, but not bending on the close calls for the jerks.
Further consider: If you go to trial, what version of you do you want the Jury to see? Juries are human. In every case, Juries are looking for the good guy, and the bad guy. Do you want to be the good guy that they feel sympathy for, that was unlawfully arrested by an over aggressive cop (the bad guy)? Or do you want to be the jerk client who made the cop’s life difficult, thus making the cop the good guy by process of elimination? The answer should be obvious.
2. If you think you are slurring your speech, then shut up! Only say yes sir and no sir.
The Jury will use its collective common sense in determining whether or not you are drunk. Ask any jury member during jury selection, “How can you tell if someone is intoxicated?”, and either there first or second answer will be , “slurred speech”. It goes hand and hand with being drunk. Therefore, if you might be slurring your speech, even if it is because you are tired, then shut up. Note this rule goes well with rule number one above, being respectful and courteous.
Alternatively, if you are right on, and are able to be articulate, then feel free to speak on the camera. but beware, many clients tell their DUI Lawyers that they were just dandy on scene, but th evideo suggests otherwise. Be sure.
3. If you really only had a beer or two, consider blowing into the breath test machine.
Many people think that they should refuse the breath test machine at all costs. This is not entirely accurate. Understand that the State has a very powerful, very legal argument if you refuse: That you did so because you had a guilty conscious, and knew you were guilty. This is very powerful indeed. Therefore, if you truly had only a beer or two, you may consider blowing into the machine. That will remove the argument from the State, and hopefully provide evidence for your DUI attorney that you were under the legal limit. Also, if there was a technical issue with the Machine, your defense attorney can present the issue if you have chosen to blow into the machine. If you have not blown, then any deficiency with the machine becomes irrelevant.
Alternatively, you may be the type of person who does not trust machines at all costs. This is fine, but consider letting the cop on scene know WHY you are not blowing.
Hopefully this will help you help your criminal attorney when you go into his office the day after your arrest.
Denmon & Denmon Trial Lawyers, 918 W Kenendy Blvd, Tampa, FL 33606, 813-554-3232
If you need to contact a DUI Attorney, feel free to contact Christian or Nicole Denmon.
Under category: Uncategorized | November 16th, 2010 | No Comments »
Often, clients ask our Tampa DUI Lawyers about the possibility of getting their pending DUI reduced to a reckless driving charge. The reduced charge of reckless driving is often a possibility. However, while people often ask for the reduction, they are often unsure what the actual benefits are to receiving such a sentence. There are five main reasons that a Tampa DUI Attorney seeks to get your DUI charge reduced to the charge of reckless driving as part of a plea bargain.
1. It’s cheaper
DUI’s are expensive. The legislature has decided to impose massive fines on those convicted of DUI. The fines and court costs for a first time DUI are upwards of $1K. If the breath test was taken and the result was over a .15, the costs go up to $1.5K. A second DUI within 5 years of a prior DUI conviction will result in a 2.5K fine. And a third DUI within 10 years can result in a court costs in excess of 4K! These costs do not include probationary costs, which are between $50-$60 monthly.
A reckless driving charge does not carry with it these ridiculous costs. The fine is often as low as $500.
2. Less Social Stigma
Arguably the most painful part of being arrested for a DUI is the potential social stigma that it carries. MADD, or Mothers Against Drunk Driving, have helped spearhead a national movement vilifying drunk driving. Now, employers often ask specifically in employment applications if the applicant has ever been convicted of DUI, or driving under the influence.
A reduction of the charge to a reckless driving is a way to resolve the criminal matter without assuming the intense social stigma and ramifications that accompany a DUI conviction.
3. No mandatory license suspension
A DUI conviction requires the DMV to suspend your license for a minimum of 6 months for a first offense. But repeat offenders suffer harsher penalties. A second DUI conviction within 5 years a prior conviction requires a minimum five year suspension. A third DUI conviction within 10 years a prior conviction requires a minimum 10 year suspension. And a fourth conviction for DUI, regardless of the date of the prior convictions, is a lifetime revocation. This is required by law; a Judge must impose these sanctions.
A reckless driving conviction, however, does not require a license suspension. That means regardless of the number of DUI’s in your past, a reduction of your DUI charge to a reckless driving may keep you on the road.
4. No mandatory jail time
Jail time often accompanies enhanced DUI’s. In fact, a second DUI within 5 years of a previous DUI conviction requires ten days in jail. A third DUI conviction within ten years of a previous DUI conviction requires 30 days in jail. A felony DUI can be punished by up to five years in prison!
If your DUI s reduced to a reckless driving, no jail is required under the law, regardless of how many DUI’s are in your past.
5. No insurance premium increases
A DUI conviction will increase your insurance premiums. Florida Law, for example, requires every driver convicted of a DUI in the State of Florida to increase the amount of bodily injury coverage hey carry. This is known as a FR-44 form. This can get quite costly. A reduction of the DUI charge to a reckless driving may help you avoid being required to obtain these costly insurance premiums.
Call a DUI Attorney today
If you have been charged with a DUI in Tampa, New Port Richey, Clearwater, or St. Petersburg, contact a DUI Attorney today at 813-554-3232 (Hillsborough) or 727-753-0049 (Pasco and Pinellas). Ask to speak directly to a DUI Attorney. We are located at 918 W Kennedy Blvd. , Tampa, FL, 33606
Under category: Uncategorized | July 29th, 2010 | 1 Comment »
From Tampabay.com
” TAMPA — Actor Joseph Gannascoli, who played Vito Spatafore on The Sopranos, was arrested early Friday in Tampa on a DUI charge.
Gannascoli of East Rockaway, N.Y., was arrested at 3:05 a.m. at 3629 W Kennedy Blvd., just east of Dale Mabry Highway. His blood-alcohol level was listed as 0.111.
He was in Tampa for a public appearance for his cigar, the Cugine. Gannascoli was driving a 2010 Dodge sedan when he made a wide right turn onto Kennedy Boulevard from Armenia Avenue, according to an arrest affidavit.
After the turn, the report states, he started to straddle the lane marker. He kept driving and straddled another lane marker before a Tampa police officer pulled him over. ”
—
The fourth amendment protects Mr. Gannascoli from unreasonable governmental searches and seizures. Our very constitution then requires that the police, as government agents, act reasonably when they stop, detain, or frisk citizens like you.
Tampa Police would be justified stopping Mr. Gannascoli in one of two scenarios: if they had probable cause Mr. Gannascoli committed a traffic infraction, or if they had reasonable suspicion Mr. Gannascoli committed a crime (DUI). A Drunk Driving Lawyer in Tampa can examine the case to see if there was a legal basis to stop.
To have probable cause that Mr. Gannascoli committed a “wide turn” or “failure to maintain a single lane” traffic infraction, Florida courts have said that Mr. Gannascoli must also have affected traffic by his driving. In other words, the traffic infraction must also have presented a danger to those around him.
To have reasonable suspicion that Mr. Gannascoli was committing the crime of DUI, the officer must be able to point to specific and articulable facts that led him to believe Mr. Gannascoli was DUI, and not just changing a CD, talking on the phone, ect.
If the Tampa officer did not have reasonable suspicion of a crime or probable cause of a traffic infraction, then the stop may have been invalid, and the Tampa criminal dui lawyer for Mr. Gannascoli may be entitled to have the evidence in his case suppressed.
To read more about Mr. Gannascoli and his DUI arrest, click here.
Under category: Uncategorized | June 21st, 2010 | No Comments »
The cop stopped you for whatever reason, and smelled alcohol on your breath. He did his investigation and arrested you for DUI. In Hillsborough or Pinellas County, he took you back to “central breath testing”, observed you for at least twenty minutes, and finally, asked you to submit to a Breath Test. You cooperated. You blew into the machine. You could not speak to a Tampa DUI Attorney .
The results were high. Higher than a .08. Higher than the “legal limit”. A feeling of dread over takes you. Hope is lost, right?
Not necessarily. Because assuming for the sake of argument that breath test machine was working and got a true result, the resulting BAC could only be a valid measurement of the alcohol going through your veins at the time of the test.
But DUI is driving under the influence. It is not sitting in central breath testing under the influence.
How much time has passed between the moment the officer stopped you and the moment you actually blew into the machine? An hour? An Hour and a half? Two hours? Even Longer?
What is clear is that the more time that passes between the moment that officer seized you and the moment you blew into the machine, the more meaningless the results of the breathalyzer becomes. It has to do with the rate of absorption of the alcohol into the blood stream.
Alcohol does not enter your blood stream the moment you ingest it. Rather, it goes down to your stomach where it is slowly broken down and absorbed. The speed of absorption is dependent on multiple factors such as age, general health and fitness, metabolism, and the other contents of the stomach at the time of ingestion.
So there is a period of time after ingestion of a particular quantity of alcohol where your BAC steadily rises to its peak BAC. Then, as the body processes the alcohol, the amount of alcohol then lowers until eventually there is no more alcohol in the system. It generally takes around an hour after ingestion for alcohol to hit its peak BAC.
Imagine the following situation: A driver knows its last call, pounds a couple of beers, then gets in his car to drive to his home, five minutes away. That driver may have a BAC under .08 when he gets in his car. He may have continued to have a BAC under .08 as he drives home. He may have made it home and into bed with a BAC under a .08. However, his BAC may continue to rise after he got into bed, until it reaches a peak level that may have been in excess of .08.
What if that driver was stopped and ultimately arrested for DUI? If an hour passed between the time he was driving and the time the blows were obtained, his breath test results may be significantly higher than what they were at the time he was driving.
It is difficult to tell one way or the other. Your Tampa DUI Attorney may attempt to higher an expert in to try to quantify what the BAC would have been at the time of driving based on what the BAC was at the time of the blow. Alternatively, your Tampa Criminal Attorney may choose to dismiss the results of the test as unreliable because of the length of time between the driving and the breath results. That decision is one that must be made on a case by case basis, taking into account the particular facts of your case.
Under category: Uncategorized | May 22nd, 2010 | No Comments »
|
