Why our DUI attorneys don’t think your DUI is unwinnable (and you shouldn’t either)
“I’m guilty. I drank and drove. End of story”.
As DUI attorneys, we hear it from people all the time. Instead of hiring a qualified DUI attorney, they walk into court and plead guilty. Often, they don’t realize the full extent of the punishment they have agreed to accept until they walk into the probationary office. They are shocked when they hear about the fines, classes and ignition interlock devices. The irony of having their license suspended for up to a year, while at the same time getting a notice in the mail that their car insurance premium has skyrocketed. The hundreds of dollars paid just to be on probation. The costs add up and up, but the people must pay it all or risk being sent to jail for violating their probation.
Sadly, they think there is nothing a Tampa or Pasco County DUI attorney can do for them. They may be surprised to find out that it is not against the law to drink and drive; only to drink so much that the ability to walk and talk and judge distances is impaired. Otherwise, why would almost every bar and restaurant that serves alcohol in the state of Florida have parking lots? They may be amazed to discover that a Florida Appellate Court has determined that those “tests” they did on the side of the road lack scientific validity. They may be astonished to learn that the arresting officer could have taken a common sense approach and asked them for a blood sample to test their blood alcohol levels, but instead chose to have them blow into a machine that may not have been calibrated correctly, so that the result obtained may not even be admissible at trial!
The truth is that there is a lot a criminal defense attorney could have done. Even the worst cases, the cases where victory in the courtroom seems impossible, may just be winnable after all. To illustrate how, let’s look at the two big questions a DUI Attorney should keep in mind as he begins to analyze the prosecutor’s case. First, should the evidence, if detrimental to the client’s cause, be admissible in court. Second, if the evidence is coming into trial, what does it really show?
Is the evidence admissible at trial?
You have rights. The founding fathers recognized 10 of your most important individual rights in the first ten amendments to the constitution, or the Bill of Rights. The fourth amendment, for example, protects the citizen from unreasonable searches and seizures from the government. Our very constitution then requires that the police, as government agents, act reasonably when they stop, detain, or frisk citizens like you.
For example, an officer on patrol can stop you for speeding if he has probable cause that you were, indeed, speeding. He can stop you for an expired tag, if he has probable cause to believe that your tag was, indeed, expired. The officer is allowed to stop you for the above mentioned traffic infractions if he has probable cause to believe that you committed the traffic infraction. He can also stop you if he has reasonable suspicion based on specific facts known to him that you have been, are, or will be committing a crime. An example of this is when an officer stops a vehicle because he thought the driver of the vehicle was DUI. If the officer had reasonable suspicion based on his observations of the person’s driving pattern, then he may stop the vehicle and investigate further.
However, an officer cannot make a stop unless he finds himself in one of these two situations. If the officer suspects that you were speeding, but did not actually see the driving himself, then the officer does not have the probable cause necessary to stop you for the traffic infraction of speeding. Likewise, if the officer has a gut feeling that a driver of a vehicle is DUI, but does not have a reasonable suspicion based on facts observed, he cannot stop the driver. A bare hunch or a guess won’t cut it.
We know the patrolman cannot just stop you without a good faith basis. But what’s to stop the police from ignoring your constitutional rights, and doing what they wish? Otherwise well meaning police officers have illegally detained citizens in order to determine if a crime is being committed. An illegally detained citizen has limited recourse if such a situation. After all, it’s the police we are talking about here. What incentive do they have to protect your rights?
The courts formulated a legal principle called the exclusionary rule as a mechanism to protect an individual’s constitutional rights. The courts will sometimes exclude evidence collected and obtained in violation of a citizen’s constitutional rights from a criminal prosecution. This exclusionary rule is not made to reward a citizen otherwise guilty of a crime. Rather, it’s intended to deter the police officers from utilizing illegal means to investigate potential crimes and gather possible evidence. Practically, the courts “slap the officer’s wrists” when he goes too far by throwing the evidence out of court. The hope is that the officer will think twice the next time he considers acting improperly.
For an example, an officer spots an individual driving down the road. He stops the individual for taking a wide turn. However, the wide turn did not affect any other traffic. Subsequent to the stop, the individual opens the door and 12 beer cans fall out. His eyes are bloodshot and watery, his speech is slurred, and there is an odor of alcohol on his breath. He is arrested and taken to the police station, where he registers a .25 on the breathalyzer machine.
In such a situation, the office may have violated the individual’s constitutional rights by illegally stopping the individual. While there is a “wide turn” traffic infraction, the wide turn must also be affecting traffic. (Note: What constitutes probable cause for a traffic infraction stop like for a “wide turn” violation can be very fact specific. You must consult with a lawyer to evaluate your individual situation). The individual’s lawyer would move the court to suppress the evidence seized as a result of the stop. That means that the lawyer would ask the judge to throw out the observations made by the officer after the bad stop, including the beer cans, the slurred speech, odor of alcohol, and bloodshot and watery eyes. Most importantly, the lawyer would ask the Judge to throw out the breathalyzer reading. In such a situation a trial would become unwinnable for the State, resulting in a dismissal of the case.
However, the exclusionary rule does not just apply to violations of an individual’s constitutional rights. Florida extends this protective measure to violations of the statutory protections that the lawmakers have put in place. For example, the attorney-client privilege is not enumerated in the constitution. This privilege, among others, is written into the laws by the state’s lawmakers. However, evidence obtained in a criminal case in violation of this statute would be thrown out of court just as if it was evidence gathered in violation of a constitutional right.
The Florida Legislature has written a statute dealing with DUI law. It’s called the implied consent law. Some text from the law can be seen on the bottom of a Florida Drivers license, where it says, “Operation of a motor vehicle constitutes consent to a sobriety test required by law”. If you blow over a .08 on the breathalyzer or refuse to take the test, the arresting officer will take your license. The power to take your license comes from the implied consent law.
However, the implied consent law actually protects individuals in many ways. It requires that police agencies only use certain approved, certified, and calibrated machines. The law further requires the machines to be in substantial compliance with an exhaustive list of rules and regulations governing the machines. These rules governing the breath test machines are statutory protections put in place by the lawmakers, just like the attorney-client privilege discussed above. If the breath test machines are not in substantial compliance with the rules, then the exclusionary rule may apply. Just like evidence obtained as a result of a bad stop, a breathalyzer result obtained when the rules were not followed correctly may result in the result being tossed out of court.
Hopefully, this helped summarize one of the basic issue of evidence admissability a Drunk Driving attorney will address with you. Next time, I’ll taslk abou the eivdence that does make its way into the courtroom, and what it really means.
Denmon & Denmon Tampa Bay Trial Lawyers 918 W Kennedy Blvd. , Tampa, FL, 33606
