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People's Law Guide

 

DUI Info. The Police Won't Tell You

04/08/12

DUI INFO. THE POLICE WON’T TELL YOU

    What You Don’t Know Can Get You Convicted In Court and Fired At Work


Friends often ask me what they should know if a police officer pulls their vehicle over to ask them DUI-related questions. After cautioning them about the dangers of driving while drunk or stoned, I also inform them that innocent people do get arrested and even convicted for criminal DUI charges. Most people believe they would be “just fine” if subjected to the high-anxiety inducing experience of a DUI traffic stop. Most people, perhaps not surprisingly, don’t have a clue of what their legal rights are when pulled over, the legal defense strategies which can uncover sometimes dubious DUI arrests and how being convicted of a criminal DUI charge can derail their career and professional goals.

Though no single “checklist” can be complete, here are some essential bits of information everyone who drives should know, even if they “never touch the stuff”:

1.    Of all the criminal offenses outlawed in Florida, DUI has among the most severe  consequences.  Unlike other crimes which at first blush may seem to be more serious, (including many felony offenses involving theft or possession of “hard core” illegal drugs), all defendants pleading No Contest to DUI offenses, and all persons found guilty of DUI charges after trials, must be penalized with life-long convictions unremovable by the record sealing process. When handing down sentences to persons charged with crimes other than DUI offenses, judges often spare defendants of the harsh consequences stemming from formal “convictions.”  Wanting to provide lenient treatment to first time offenders, especially young adults, judges frequently “withhold adjudication” when those appearing before them are found guilty of non-DUI offenses. However, Florida law forbids judges from such leniency when passing sentences to first-time offenders charged with DUI crimes not involving damage from crashes.   

The issuance of an official adjudication / criminal conviction to persons entering into a pre-trial plea bargain to a DUI crime and to those found guilty of these offenses at trial causes severe educational and career-related consequences.  Employers and professional licensing boards are leery of persons whose criminal records bare life-long DUI related convictions. Colleges, most employers and all occupational licensing boards require applicants to disclose having been convicted of criminal offenses. Employers and colleges fear that even a single driving incident involving abuse of alcohol or use of illegal drugs can be repeated.  Heightened concerns about safety on campus and in the workplace lead to rejections despite having the types of grades or work experience which would typically result in eager acceptances.  Educational institutions and employers “think twice” before “welcoming” someone now viewed as a “security risk”.  Professional licenses boards admitting into their ranks attorneys, teachers, physicians, nurses, accountants, real estate agents, and others  scrutinize those with criminal records blemished by DUI convictions. Even when professional boards do grant licenses to persons having a single DUI conviction, they almost always do so conditionally, requiring prolonged attendance in mental health counseling programs, or satisfying other stringent probationary requirements.

2.    Worn or defective vehicle parts can make innocent drivers look impaired by DUI.  Probably 90% of all DUI arrest reports contain claims drivers were weaving, even if their vehicle never even touched the painted lane lines to its left or right. This frequently cited reason for stopping motorists occurs even to blameless motorists.  With vehicle use and the passage time, every car or truck suffers wear and tear to  alignment, shock absorbers, steering mechanisms, ball joints, axles and tires. These are among the mechanical parts playing the most havoc to a vehicle’s capability of moving head in a straight fashion. With degradation occurring gradually over time, drivers rarely realize when their vehicles drift one way or the other, and are unaware of the frequent need to compensate by turning the steering wheel in the opposite to “compensate.”

When an arresting officer cites weaving for pulling over a car or truck, I instruct my client to bring their vehicle to a reputable mechanic to be thoroughly checked-out for the types of problems capable of causing side to side shifts. I insist my client have the mechanic write a detailed invoice describing all the vehicular defects found, and then to ensure safe driving by fully repairing all the defects. If the case proceeds to trial, I issue a subpoena to the mechanic or repair shop manager to obtain their testimony about each defective part which caused the client’s vehicle to pull to the left or right, or otherwise led to a weaving pattern.

3.    Pay policies can cause questionable DUI arrests. Police officers are compensated with overtime pay or “comp. time” for making DUI arrests. Some officers pull more money from overtime pay than from their regular pay. Who can question jurors for having ethical concerns when wondering if police department pay policies are turning law enforcement officers into “commissioned salespeople?”

Why do I obtain the payroll files of officers who arrest my clients on DUI charges? Police departments don’t “build-into” work shifts the anticipated time for work generated by making arrests. Jurors are entitled to know when police departments award officers with extra pay or comp. time off from work when DUI arrests extend their work beyond the 40 hours allocated in their work-shifts. If you were a juror, how would you feel when learning an arresting officer received extra money from time-and-a-half pay or was provided with comp. time work-leave for each and every DUI arrest made?  For example, officers assigned to nighttime parol shifts automatically obtain overtime pay from “additional” work hours attending daytime appearances at Motor Vehicle Department licencing hearings, case depositions and courtroom proceedings. Officers can obtain additional overtime pay or comp. time by making arrests at the tail-end of shifts, so that arrest processing time extends their workday pay beyond the eight hours of allocated work. 

 
4.    If a police officer is inexperienced or poorly trained, innocent motorists can be mistaken for being drunk or high. Only a handful of police officers have college degrees, and of these, few have had significant training in health-related matters. Prior to serving in law enforcement, a large number of officers worked in low-wage retail or restaurant jobs.  Of those who served in the military, few had duty assignments relating to work in first aid or healthcare. Yet these are the same police officers who determine that physical characteristics of motorists arrested for DUI were caused by alcohol or drug use, as opposed to health-related factors.

Horizontal Gaze-Nystagmus or HGN exams, when carefully performed, may indicate that alcohol consumption has impaired the movement of pupils within our eyes. For physicians specializing in eye care, “HGN” exams can be quite difficult to perform - even within carefully controlled indoor environments. Using flashlights pens or their fingers, police officers administer these same eye exams in outdoor locations visually contaminated by headlights from on-coming traffic, overhead streetlights and other distractions. Opthomologists finding “HGN” challenging to perform have years of training and experience. Police officers typically attend training sessions where HGN is lectured on for less than an hour.

“Divided-Attention” / Roadside Sobriety Tests can “trip up” those who are nervous, unfamiliar with the exercises, older persons, less than stellar athletes and those having medical or health related conditions. Law enforcement officers ask motorists to perform a series of physical exercises in dark, unfamiliar surroundings.  When told to walk, heel-to-toe, in a straight line back and forth, frequently there is no visual line to be walked along. Instead, motorist are commonly asked to maintain ideal balance while following along an imaginary line, on poorly lit surfaces which can be uneven, non-level and even unpaved. 

5.    The police department knows which arresting officers  have  fibbed before.  When fired, suspended or otherwise punished by those high up in the chain of command, police officers make use of their “contractual rights” to file appeals to be decided at “arbitration hearings.” Even when found to have committed lies or perjury offenses they were accused of committing, officers win a number of these hearings, where arbitrators order police departments to fully re-instate the same officers punished just months earlier.

When arresting officers make case-related claims denied by my clients, I make use of the Florida Public Records Act to review their files kept in Internal Affairs and the Human Resources departments.  If an officer’s file contains one or more “write-ups” for dishonesty or untruthfulness, it is good practice to issue subpoenas summoning to the trial all high-level commanders who reviewed the accusations against the arresting officer prior to authorizing the implementation of discipline. Once placed on the witness stand, a DUI defense attorney can question high level officials about the arresting officer’s reputation regarding truthfulness and honesty. No high ranking member of law enforcement would have first granted approval to fire, suspend or otherwise discipline a police officer unless fully satisfied that the officer to be sanctioned could not be relied upon to be truthful or honest. Carefully planned questions - at trial or pre-trial depositions - will cause sergeants, lieutenants, captains and other important members of police departments to concede when officers have a reputation for being untruthful and dishonest.
 
In Florida, if stopped by the police, here’s what drivers’ should not do:

+    Do not answer any questions about where you are coming from or if you had anything to drink. No person is required to answer these questions.

+    Do not exit your vehicle prematurely. Stay inside until the officer first fully and clearly states  you are under arrest.  Unless placed under arrest, you are not required to leave the confines of your car, where it is more difficult for a police officer to observe characteristics and behaviors which may cause  him / her to assume you are impaired by alcohol or drugs.

+    Do not permit the officer to perform an HGN eye test.   This test can only be performed when drivers give “consent.”  In Florida, drivers may lawfully decline participation in an HGN / Horizontal Gaze Nystagmus” eye exam.

+    Do not agree to take any “physical” balance tests, such as those requiring you to walk a line, stand steady with one leg in the air, or close your eyes while you attempt to bring your finger-tip to the extreme end of your nose. These tests can only be performed if drivers give “consent.” In Florida, motorists are allowed to decline to take these balance tests. During my experience as a DUI defense attorney, after first working as a prosecutor, I have never seen it written in an arrest report that a motorist has performed well on even one of these tests.

Drivers are commonly told refusing to answer these questions or take any of these tests will cause him / her the opportunity to change their minds and believe you can safely drive and need not be arrested.  Once the officer has requested you to consent to any of these, there is a high probability that the decision has already been made to place you under arrest.  Your consenting to take these tests will provide the officer with additional opportunities to reach conclusions - truthfully or untruthfully - that you performed badly because you were drunk or high.   

In Florida, if stopped by the police, here’s what the law requires drivers to do:

+    Agree to take a breath test and to provide a urine sample.  If a DUI arrest occurs after the occurrence of a serious injury, drivers are required to consent to a blood test. Even if the test comes back with “bad news,” there are lot’s of reasons why judges sometimes refuse to permit prosecuting attorneys to introduce these test results into evidence. For example:

a.    The Breath Test Machine may not have passed its monthly inspection check.

b.    Urine tests will indicate the presence of substances ingested too long ago to have affected a motorist at time of driving.
 
c.    Blood may have been obtained by someone not lawfully permitted to withdraw it for use in criminal prosecutions.  Prior to being analyzed, the blood sample may have been contaminated through poor storage practices.

Be aware that the State of Florida has a relatively new law which makes it a separate, independent crime to refuse to take a breath, urine or blood test.  An experienced DUI defense attorney will know what strategies to apply to protect the legal interests of persons who take the tests and about circumstances which may block these test results from being permitted to be introduced into evidence at trial. Also, since laws vary throughout the 50 states, the contents of this article apply only to persons pulled over and / or arrested for DUI within the State of Florida.

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