This is a guest post by Minneapolis DWI and criminal defense attorney Douglas T. Kans of Kans Law Firm, LLC.

Specific amounts of marijuana will soon be legalized under Colorado and Washington state laws. Now, police officials from both states are figuring out how to keep impaired drivers from getting behind the wheel.

Washington DUI provisions have changed, with a new blood-test limit set for marijuana. Local police are currently under training to enforce this limit. A representative from Washington state patrol stated that impaired drivers are still going to be arrested, whether due to alcohol or drugs.

Colorado, on the other hand, will not be making any changes to their DUI/DUID laws at present, and so local police and authorities are left to worry about the impending effect on road safety.

Voters from Colorado and Washington passed measures earlier this month to regulate and tax the sale of marijuana for recreational use for adults over the age of 21. Although drugged driving remains to be illegal, law enforcement officials cannot help but wonder about whether or not there will be an increase of marijuana users on the road resulting from this ability to legally possess or buy this substance.

Drugged Driving Statistics

Studies show that drivers who are driving under the influence of drugs are more likely to drift and swerve. Marijuana, in particular, can cause a slow reaction time and dizziness.

Statistics from the National Highway Traffic Safety Administration (NHTSA) show that in 2009, one third of drivers who were fatally injured exhibited drug test results that were positive for substances other than alcohol. Over 16% of randomly stopped weekend nighttime drivers were positive for drugs in 2007.

Activists for marijuana legalization agree that drivers should not smoke and get behind the wheel. However, there has been great disagreement when it came to the matter of setting a standard equivalent to existing blood-alcohol limits.

Measuring How Stoned A Driver Is?

Majority of drugged driving convictions are based on police observations that are followed by a blood test later on. Unlike breath test machines, there is no accurate way to establish someone’s level of recent marijuana use. Some tests are able to pick up traces of marijuana that have been stored in one’s body for week and months, which has no value in a DWI case.

Also, unlike existing tests for alcohol, there is no easy way to determine one’s impairment from use of marijuana. Scientists are not able to identify how much marijuana it takes for an individual to test over the threshold.

Many defense attorneys are challenging this new law in Washington, as setting a strict standard that is similar to the BAC limit is unsupported by facts and evidence. The active ingredient in marijuana is THC, and no scientific studies support a clear level of THC impairment. Washington will be joining Pennsylvania with a legal limit of 5 nanograms of THC per milliliter of blood. Ohio and Nevada are two states that have a set legal limit of 2 nanograms. Florida, Arizona and Illinois are among twelve states that have zero- tolerance policies.

Colorado, which has an established medical marijuana industry, intentionally omitted a driving standard in their legalization measure as this particular issue has proven to be

divisive. The state has tried to set a THC driving limit three times, and has failed three times. Colorado lawmakers plan to once again discuss driving standards when they convene next year.

Most state laws, however, consider a person guilty of DUI if found operating a vehicle under the influence of marijuana and other controlled substances.

This is a guest post by Minneapolis DWI and criminal defense attorney Douglas T. Kans of Kans Law Firm, LLC.

After the ignition interlock, no DUI “condition” irritates clients more than substance abuse evaluations and the corresponding treatment. A little preventative education can go a long way to ease the pain and frustration of taking substance abuse treatment.  Accordingly, here is five things everyone arrested for DUI should know about substance abuse evaluations and treatment in Florida.

1.  I Completed DUI School.  Should I Get My Evaluation Done Even Though My Case is Still Pending?

Most likely yes.

Did the DMV “affirm” your drivers license suspension?  If they affirmed your suspension, then you will need to do the evaluation and subsequent treatment even if your DUI case is dismissed.  This is because the evaluation and treatment can be required both either an administrative suspension or for a DUI conviction.

If your attorney was able to win your administrative case and get your suspension invalidated, you still may want to take the evaluation and treatment and get started.  That is because for certain resolutions, even a reckless driving reduction will require DUI school and substance abused evaluation and treatment as a condition.  Talk to your tampa dui lawyer.  If this is likely to be a part of your final resolution, your lawyer will want you working on the treatment immediately. That is because treatment can be for weeks or even months, and is a condition of probation.  You cannot terminate probation until all conditions are done. Therefore, knocking out the conditions in advance can actually lessen the amount of time you will be on probation (and save you probationary fees, ect.).

2.  Can I Appeal The Process or Get a Second Opinion

Yes, you can.  Whether or not you should do this depends on a few factors.

Length of Time of Treatment:  How long is the length of proposed treatment?  4-6 weeks?  If it is a relatively short duration, it may be a better use of time and money to just complete the classes, even if you disagree with the assessment.  The longer the term of treatment (20 weeks ?!?), the more rational a decision to contest the evalautors result becomes.

How To Appeal The Judge has the ability to waive this treatment, but Florida Statute 316.193 has certain requirements the Judge must follow in doing so.  You must first seek an independent psycho social investigation from an approved provider appointed by the Court.  This independent investigator shall have access to the original evaluation done by the DUI program.

The Court then must review both of the evaluations before making its decision whether or not to waive the requirement.  And you, the participant must pay for the process.

Talk to your lawyer after your first evaluation to help you analyze the cost-benefit of contesting the result.

3. What Are the Penalties If I Quit taking The Class

This depends.  Unfortunately, the Statue requires the substance abuse evaluation and treatment be a part of your Florida DUI probation.  if you do not complete the conditions of your probation, then your probation officer can violate you, have you arrested, and you have to go back to the Judge. So if you are on probation, the penalties can be severe.

Sometimes you will resolve your DUI case for a reckless driving or a dismissal where the substance abuse evaluation and treatment is not ordered as a condition of the probation.  In these cases, the question is whether you had to take the treatment as a result of the DMV affirming your suspension.  If so, then the DUI class is required to inform the DMV immediately that you have left your classes.  The DMV must suspend your license.

You may be able to receive a hardship permit once you re-enroll in substance abuse treatment.

4.  Who Is Responsible For Paying These Classes?

You.

5.  I Never Drink!  Why Do I Have To Take This Classes!

I have had clients who drink once a year be required to take lengthy classes.  I have had alcoholic clients have no classes ordered.  There does not seem to be any substantial rhyme or reason to the results of the evaluation and treatment required.  the best advice is to get your DUI school done immediately in every case, even if you are fighting the charge, and then do the evaluation.  When you get the results of your evaluation, discuss with your dui lawyer what the best course of action is to take.

If you are talking to me or another Florida DUI Attorney, the chances are pretty high that you are going to ask me the question above.  You already understand the penalties associated with a conviction for drunk driving.  So you want to know the chances that your dui attorney can resolve your case in non-dui fashion. The most common non-DUI sanction is a reckless driving.

Unfortunately, I am always asked these questions at an initial or secondary consultation. I will never know less about your case than I do at the first consult.  You have not been assigned a Judge or State Attorney yet.  We have not begun, let alone completed, the exhaustive discovery process.  We just don’t have the information needed to give you an answer.

However, I can, generally speaking, let you know if you’re in good position or bad position out the gate. So generally speaking, your chances of getting your DUI charge reduced increase if:

1.  You were respectful, compliant, and only talked in response to specific questions by the arresting officer.

DUI cases usually come with DUI videos.  These videos are reviewed by the prosecuting attorney.  Especially in “close call” cases, the prosecutor is more likely to work with your Tampa DUI lawyer if you are respectful and courteous to the man with a badge.

It is human nature to look for protagonists and antagonists, or good guys and bad guys.  Don’t let the jury see you on video and define you as the “bad guy’.

2.  Spoke coherently when you did speak

I believe the most difficult evidence to overcome in a Florida DUI case is slurred speech.  It is difficult to explain away slurred speech.  Loose lips sink ships, or at least in a DUI case, they can increase the chances of a DUI conviction.

3.   You refused the breath test (especially in Hillsborough County)

This is NOT to say that you should refuse the breath test.  Every case is different, and in certain cases, blowing into the breath machine can be helpful to your case (especially if your attorney gets the evidence of the breath test blow suppressed).  With that said, this article speaks in generalities, and all things being equal,  failing to blow into the breath machine is one less piece of evidence for the State to seek a conviction.

4.  You were stopped for weaving, failure to maintain a single lane, or another traffic violation.

Stops for non-criminal traffic citations are often questionable from a legal standpoint.  A bad stop can mean a reduction or even dismissal of your criminal charge.  Of course, accidents are bad.  State Attorneys are less likely to reduce your DUI charge when you are crashing into cars and walls.

5.  You have never been arrested for DUI before

The State Attorney will look at your criminal history, or lack thereof.  This is big in cases that “could go either way”.

Conversely, general speaking, your chances of getting your DUI reduced decrease if:

1.  You were a jerk to the arresting officer, and spoke excessively when you did not need to
2. Slurred your speech (noticeable) when you did speak
3. Your DUI investigation resulted from you causing an accident
4. You have been arrested for DUI before
5. You had a Possession of Controlled Substance or some other charge accompany your DUI.

Did I mention that we are talking in generalities?  Good. Remember every case is different.

Previously, I discussed the additional issues Doctors and Nurses face when arrested for DUI. There are not the only professional group whose regulatory body will bring down the hammer following a DUI arrest.  The FAA, the Federal Aviation Authority responsible for governing and licensing pilots, has strict requirements for those arrested and accused of Driving Under the Influence that your DUI Lawyer must be ready to handle.

Duty to Report

Unlike other professions, the Pilot licensed by the FAA has a “duty to report” any DUI arrest .  Normally, you are not under a duty to tell your employer anything if arrested for DUI unless you a have a specific employment contract stating otherwise.  If you are a pilot licensed by the FAA however, you must affirmatively report.  If you do not, you may run the risk of the Department of Transportation revoking your license via immediate order. If you have any questions about reporting, discuss with a DUI Lawyer.

You will likely need to report to the Civil Aviation Security Division no later than sixty (6) days after your arrest. If you apply for a Medical Certificate with the Aviation medical Authotrity, you need to affirmatively answer yes that you have a criminal charge pending from a driving under the influence arrest.  Review the application with your criminal defense attorney  to make sure it is completed accurately and appropriately.

Potential Administrative Actions

If you blew a breath test result that was higher than a .08 or of you refused the breath test at all, then you are facing an administrative suspension with the Department of Motor vehicles.  Your Florida DUI Attorney will have ten days from the date of your arrest to fight the suspension (and get you a temporary license).

Fighting the administrative suspension is critical for the airline pilot.  Having an administrative suspension of your drivers license can result in an emergency order from the DOT suspensing your pilot’s license.

Discuss with your lawyer going “full bore” at this hearing. You are entitled to have witnesses subpoened, all discovery disclosed, and if a breath test reading was taken, your attorney can pull and scrutizine all of the FLDE records and the local agencies mantainence records of the machine.  You need to be aggressive with this administrative hearing.

Bottom Line:  You Need to Report and Need to Fight

The bottom line is that pilots need to be aggressive and upfront about reporting the different phases of the DUI  with the FAA, while at the same time being agressive in court and administrative hearings in order to minimize the damage to the ability to fly.  A mistep can result in immediate permanent suspension of the license.   You cannot just wait till the criminal case is over.

I sympathize with my clients.  DUI’s are costly and carry a terrible social stigma.  But I really sympathize with the Doctors and Nurses I represent.  To effectively represent these health care professionals we need to dig into their DL administrative case and their Department of Health administrative case as well as defending the DUI charge.

The career consequences for a criminal charge for a health care practicioner is exceptionally harsh.  Your job and your license (ie., the piece of paper that allows you to earn your livelihood) are on the line.

For Florida Doctors and Nurses arrested for DUI, a DUI arrest arises two concerns to addres with their Florida DUI Attorney: 1. Will it affect my current employment, and 2. Will it affect my license.

A Caveat:  Prepare a Plan With Your Lawyer First

As an aside: Do not self-report or speak to an investigating agency without formulating a plan with your attorney first.  You have a right to remain silent: For now, use it.  Discuss the specific scenario of your case with your specific lawyer.  And by all means, when you do discuss your case with the agency whether in writing or orally, DO NOT LIE.  Do not be disengenious.  I represented a professional who took it about himself to answer a complaint in writing with his board without discussing the matter with me first.  He tried to lpay cute and smart with the semantics of his “arrest”. He ultimately got smacked.

When it is time to communicate with the board, you must take pains to do so accurately.  Misrepresenting facts or circumstances is the worst thing you can do.  Now, about dealing with your employer directly…

Employment Concerns

While there is alot I or other criminal defense lawyers can do, you are own your own when it comes to addressing your arrest with your employer.  Florida is an at-will employment state.  That means an employer (hospital or otherwise) can fire an employee for any reason at all outside as long as the health care professional’s constitutional rights are not violated.  You can’t fire someone for being black, female, or pregnant because these are protected classes.  You can fire someone because of a criminal conviction.

Usually I tell my clients that whether or not they tell their employer is up to them. You know your specific contractual agreements, relationships, job responsibilities, ect. with your employer.  However, with Nurses, Doctors, and other Health Care Professionals, they need to cosnider their self-reporting requirements to their respective DOH agencies when deciding if to tell their employers.  Which brings us to the second concern for Health Care Professionals:  Licensing concerns.

DOH And My Licenses

Both Nurses and Doctors are licensed through the State Run Department of Health (DOH).  The Florida Board of Nursing is the administrative agency assigned to handle, review, and potentially discipline nurses for criminal arrests, including DUI in Florida.  Physicians have to deal with the Board of Medicine.

Self Reporting, and Talking to the Board.

Health Care professionals are required to sellf report for  all convictions of non-minor traffic convictions, even if adjudication is withheld. This means that even if the charge of DUI is ultimately reduced to a reckless driving, and the DUI Attorney negotations a withhold of adjudication (“no conviction”), the Nurse or or other health care professional is still required to self report to the board.

And of course, the Board has the power to suspend the health care professional’sm license, mandate a $250-500 fine, or both after a hearing if one is requested.  You can read the administrative rules governing the Board and it’s sanction power of nurses for DUI or other convictions here.  The administrative rules provide a range of possible punishments.  However, the board has to power to deviate from this range based on  certain aggravating or mitigating punishments.  However, the burden of proof is on the Nurse (or her attorney), to show mitigating conduct by clear and convincing evidence.  For example, the Board may consider a Nurses “Efforts at Rehabilitation” when deciding on the punishment the Board will impose on the Nurse.

Department of Health at Your Court Hearing?

In any criminal proceeding against a person licensed by the department to practice a health care profession in this state, a  representative of the department may voluntarily appear and furnish pertinent information, make recommendations regarding specific conditions of probation, or provide any other assistance necessary to promote justice or protect the public.

The Department of Health can come into your court hearing, and make recommendations as to your criminal sentence (if you end up with one).  This is another reason that your dui lawyer must get intimately involved with your administrative situation to effectivlely handle your criminal charge.

Recently a criminal lawyer told me that he, ‘was over jury trials”.  Said he had not tried a case to jury in over two years.

What?  Is that possible and still be an effective dui attorney or criminal lawyer? No way.  As a dui lawyer, you will end up trying cases, regardless of jurisdiction.  For two reasons.  First, if you never try cases, then you have a reputation as someone who never tries cases.  The State Attorney or prosecutor then has precisely zero incentive to work out a deal with you. A prosecutor who knows the criminal defense attorney will not go to trial has nothing to lose if he or she decides to decline to, say, reduce that DUI charge to a reckless driving.  So, a dui lawyer who does not try cases will not get the deals that a lawyer who does try cases will get.

Second, you will have clients that cannot, absolutely cannot, have a DUI on their record that the State Attorney will not reduce their charge.  Your client hired you because he cannot have a DUI. State wont budge.  Judge has no authority to throw out charges.  Then, you must go to trial.

Caveat: non-jury trial should be a rarity.  You need to really, really know your Judge.  By convincing your client to go to trial in front of the Judge you are convincing him to forfeit his right to a trial by his peers.  When study after study reflects that a defendant is more likely to be exonerated by a Jury that a Judge, you need to pay attention.

With that said, this post is simply a few bits of advice for lawyers prepping for Jury trial.  We are always looking for new ideas, and maybe some of these will be of help to some of you.  I am always on the lookout for good nuggets of jury selection truth, so feel free to write in.

So here are a few Jury Selection rules that our dui lawyers utilize in preparation for every case.

1.  Have a “cheat sheet” of who you absolutely do not want on the Jury

OK.  So this is the stereotyping part of jury selection.  If you have found a better way, please let me know.  But with potentially 30 jury panelists on a DUI charge, and somewhere between 20-45 minutes to ask questions and get to know these folks, I think you have to sterotype in part.  If this seems counter-intuitive, read Malcolm Gladwell’s, “Blink”.

Here is what we do:  We think, well in advance, of who we would love to have on our jury.  Our prototypical jury member.  More importantly, we think about who we do not want to have.  We right it on a cheat sheet.  We then go into the courtroom, use the jury questionarres, and put solid Y or N’s next to 5-10 of the panelist who meet our criteria. This is before a single question is asked.   We look at every panelist, and see if our gut first impression confirms our feelings.

Then we have solid yes and no’s for some panelists.  Not everyone, but enough that we can focus our attention on a smaller number.  Dig deeper into these ones.  A rule of thumb is that a Yes can be turned into a No, but a No is rarely, if never, turned into a Yes.

A few quick good jurors in a DUI case with a refusal:  Salespeople, career women, nurses, North Eastern Men, and grade school teacher.  Extra plus for special needs teachers.

A few quick nos:  Past law enforcement, military (especially when more than 2 year stint), victims of DUI (duh), People with a dui on their record (seems counter-intuitive, but if they are really on your side, they will get caused by the State), divorced women, older women.

2.  Consider having a mini tabbed “book” of important cases for the Judge in Jury Selection

This one I feel strongly about.  Years ago, I attended a DUI Seminar where one of the presenters discussed creating a tabbed index of cases for his fourth amendment motions to suppress.  The idea is that there were about 20-30 cases, mostly county cases with a smattering of district court of appeals cases, that were used over and over again.  He tabbed the cases, created an index, and brought this into his motions.  It allowed him to flip to the cases quickly (and the Judge too) during argument, and gave him more credibility with the Judge.

Great idea.  I stole the idea, and applied it to Jury selection.  Specifically for cause challenges.

Judges, especially in misdemeanor cases (ie. DUI) hate cause strikes.  Well, they don’t hate cause strikes, but the jury panels are often much smaller in misdemeanor cases (20-30), and if too many prospective jurors get struck for cause, then the panel will be “busted”, and the case will need to be tried another day.  Judges hate this.. no Judge wants to waste part of their morning and not get the case off of their docket.

As a result, even well meaning Judges might be less inclined to grant your cause challenge if you don’t hold their feet to the fire.  Remember:  In DUI cases, a tampa dui attorney only gets 3 preemptory challenges (that’s three people from the panel that can be thrown off the Jury for no reason at all).  It is imperative to cause every Juror that may not be fair and impartial to your guy.  So how does a book of cases help?

Simply put, hardly any lawyers put case law on the record for cause challenges.  They blow smoke about ” a reasonable doubt as to the Juror’s ability to be fair and impartial” and that’s it.  This sort of argument is not very strong in front of a Judge, and the Judge may dny the cause challenge.  Or even worse, the Judge will say that you /the Judge/ or the State rehabilitated the prospective Juror. (I have always thought the idea that a Juror that could not be fair and impartial could then be rehabilitated by asking the right close ended question was ludicrous.  Imagine: “So, Mr. Jones, I understand that your  entire family was killed by a drunk driver, and you vowed that you would revenge their death in anyway possible, but I am asking you today (wink wink), can you be fair and impartial in spit of that past”?  The propsective juror may well answer yes because he knows the answer is supposed to be yes.  And everybody wants to give the right answer.

So, gather up your ten – fifteen  best cases for fair and impartiality: a couple for reasonable doubt, burden of proof, victim of crimes, family in law enforcement, ect. ect.  Tab them.  Create a book.  And when arguing to the Judge, and he seems to be leaning in favor of allowing your cause challenged prospective juror to stay, whip out the case law.  Read it on the record.  The Judge will go your way. It works.  I promise.

3.  Reasonable Doubt! Don’t Forget Reasonable Doubt!

This I feel strongly about.  Somewhere along the line, dui lawyers and criminal defense attorneys who do not try many cases start to worry that they will seem like they are hiding behind the law if they spend too much time on reasonable doubt.  ”They will think I am hiding behind the law” they say.

Yeah.  So what?

The law of burden of proof beyond a reasonable doubt is the best tool you have in a criminal case.  Bar none.  DO NOT hide from it. Embrace it.  Then, when talking to the Jury, ASK THEM if they think you are hiding behind the law?  It is the elephant in the room, you say, and you got to ask.  Watch how they react.  Some jurors will be putt off that you even asked.  This is America, they will say.  Let them make the case for you.

Also remember:  You have the absolute right to ask every juror if they can follow the law regarding reasonable doubt.  Even with the toughest of Judges, you can ask  a variation following question:  ”If the case is over, and you do not have an abiding conviction of guilt, and therefore you have a reasonable doubt as to whether the state proved its case, will you follow the law”.  You have a right to ask this variation to every juror.  Ask as many as you want.  And if the State Attorney objects to this (for whatever reason), remind the Judge that case law says you could ask all of the Juror members… but you will of course not do that, provided he tells the State Attorney to quiet down.

And make sure you have a case to that effect in your mini booklet for jury selection.

State Attorney prosecuting you for a crime in Florida?  Prosecutor trying to convict you of Driving Under the Influence in the Sunshine State?  Well if you have to be prosecuted for a crime, Florida is one of the best places to go through the process.

Why?

Simply put:  Florida has a very liberal discovery process for the accused, and Florida has great public records laws (to go with the Federal Freedom of Information Act).

Discovery:  You Get to See Everything the State Has Against You

Officer accused you of driving drunk?  The State must provide the name and contact information for the officer.  Your Tampa DUI Attorney will get the opportunity to talk to the Officer outside the presence of the prosecutor. If the officer does not want to speak to your tampa dui lawyer, then your lawyer can move the court to take a deposition of the officer.  That means the Officer would need to come to your lawyer’s office and answer any and all relevant questions by your attorney, under oath, in the presence of a court report.

Video at the driving scene?  Your attorney can (and will ) get the video.  Video at the jail/in the car/ in central breath testing?  Your attorney is entitled to get the video.

Evidence that might be exculpatory (show that you might be innocent?)  If the State willfully refuses to turn it over and acts in bad faith, then you might be entitled to have your charges dismissed.

State wants to put a breath test operator on the stand?  The inspector that checks out your breath test once a month? Toxicologist who analyzed your urine or blood sample? Your attorney will be able to talk to all of these witnesses, and learn everything the State wants to use to try to prove its case agaisnt you.  You tampa dui lawyer will be entitled to review all of the reports and summaries prepared by these experts and witnesses to prepare your defense.

Public Records Requests:  Bypassing the State Attorney to Get More Records and Information

Your dui lawyer has other wonderful mechanisms to get information to scour to prepare your defense.  That breath test machine that you blew into that churned out that high reading?  Your attorney can order the mantaince logs for the machine since its inception.  Want to know when the last time the cylinders/gas/hoses were changed?  Your attorney will know by the time your case is over.  In fact, we are able to keep running records on all eight breath test machines in Hillsborough County.  Every time we get new information while working on a new client, we add the information to our breath test machine records.  As such, we know that one of the inox machines was shipped back to the manufacturer in the spring of 2011 because of abnormally high amounts of error readings.  We are able to use this information to help future clients who may have blow on the same machine. This makes winning your dui with a high breath test result that much easier.

And with the Florida Sunshine Act, getting public records form State employees (think Florida Department of Law Enforcement, or FLDE) has never been easier.  Just email Ms. Colston, records custodian, and she emails you back the requested documentation.  As I tell clients, just about the only thing we can’t get is the software code running the machine.. but that battle is being fought by DUI Lawyers in Florida as we speak.

Conclusion

Yeah, getting arrested sucks.  Facing prosecution for a DUI charge, with all of the rediculous, every increasing penalties, is scary.  But take comfort in knowing that you dui lawyers have access to the tools and information they need to defend you in your case.  There are other States and Jurisdictions (Federal Court comes to mind) that are more restrictive on the discovery requirements of the State.  Be glad you are not facing prosecution in those jurisdictions.

The point is that

Ideally, my clients would come to me with low, low blows. Or no blows at all. getting the charge reduced or dismissed would be simple, pleasant, and quick.

But that’s not the way it works sometimes. Clients come in ashamed and nervous because of a breath test result that is two or three times the legal limit. Ashamed that they have such an embarrassing high result. Nervous because they are convinced they will end up with a DUI on their record. And they should be nervous. I mean, DUI’s are serious business. But convinced that they will have a DUI on their record? No way.

I mean, I tell them they might end up with a DUI.  Their are no guarantees in this business (and any lawyer who does make a guarantee should be disbarred).  And yes, all things being equal, you would probably rather have a refusal than a .25 blow.

But these DUI’s are winnable.  They are won all the time.  And in certain cases, (like the ones with solid video evidence should an apparently sober client) I would prefer an astronomically high breath test result over a more mundane .12-.15.

But no matter how high the breath test result, there is no guarantee the breath test result will come into evidence.  If your Tampa DUI Lawyer can get the Judge to toss out the breath test result in a suppression or limine motion, then you are on the fast track to a reduction or dismissal of the charge.  And the most common way for a dui lawyer to get the breath test tossed is to show that the breath test operator or inspector does not have your breath test machine substantially compliant with the rules.

Substantial Compliance:  What Are We Talking About?

Well, the DUI statute addresses the issue.  The lawmakers want to make sure that whatever chemical evidence is procured, that it be somewhat reliable.  So they require substantial compliance with a bloat-load of administrative rules.  Such as:

So a substantial defect means the test is out, and an insubstantial defect means the test is in.  But what is substantial?  That’s where your Tampa DUI lawyer comes in to play.

Case Law:  Examples of Where Other Judges Have Booted Test Results

When it comes to arguing to remove breath test results, a big part of what we do is go through “the rules” in the Florida Administrative Code to see if any of the rules were not followed in the client’s particular case.  Practically speaking, we have a checklist that we run through in every case to see where and if an inspector, breath test operator, or machine itself goofed.

With that said, ever now and then other attorneys in the State bring issues before  the other Judges in the state, and help clarify what issues are substantial.   So for example,

A machine acting up just enough over the course of one month may not be in substantial compliance so tat the reliability of the tests are in question.  Or at least the Hillsborough judge above though so last March. For another example, consider:

To expand on the situation above:  The “Rules” dictate how and in what manner a breath test inspector must do his monthly maintenance and his monthly inspections.  One of the things the inspector will do is to test the machines reaction to mouth alcohol by swishing a concentration of alcohol in his or her moth and then blowing into the machine. In this case above, the dui lawyer asked the Judge to supress the breath test result because the inspector would dab the alcohol concentration around her lips and mouth instead of swishing it in her mouth pursuant to rules.

And the result?  The trial judged tossed the breath result.  The State appealed to the circuit court, and the circuit court affirmed the trial courts order.  So the defendant one.

What was the breath test result in this case?  I don’t know.  It does not matter.  That’s the point.

I went into more detail on this over at my main Tampa DUI Attorney website, but this is just too silly not to mention again.  Florida lawmakers are proposing a DUI rewrite that would make it a per se Drug DUI if you drive with drugs or drug metabolites in your urine.

The language is as follows:

The person[would be DUI] if they have in his blood or urine a substance identified as a Controlled substance in  Level II, Level II, or Level IV, or one of its metabolites or analogs.

So what does that mean exactly?

To best illustrate, take the following example:

Tommy smokes pot.  Tommy is fat.  Tommy is inactive.

Tommy smokes Marijuana frequently until he gets put on probation on February 1st, 2012 for… possessing pot.   Then, Tommy has to quit cold turkey.  He does not want to fail a drug test and get carted to jail for violating his probation.

Weeks later, Tommy feels great.  He is clean.  He is most certainly not under the influence.

But Tommy is probably violating the law according to the Statute.  In fact, if Tommy’s urine showed trace amounts of marijuana or marijuana metabolites, he would be guilty (per se law, so a Jury would have to find him guilty absent a jury pardon) of DUI.  He would violate his probation.  Tommy would probably go to jail.

Why?  Well, Tommy’s urine is going to show a break down of Marijuana for quite sometime.  He is a big boy, and all that THC from the Marijuana is getting stored in his fat.  It will be weeks or more before it is broken down because Tommy is inactive.  In fact it may be up to 6 weeks or more and he will still be showing metabolites in his system.

Does that make any sense?

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.