DUI Attorney Michael Kessler
wrote the definitive book on DUI in Florida.
Table of Contents
Dedication
Chapter 1 - Introduction to Florida DUI-DWI Law
Chapter 2 - Being Confronted by the Police and Becoming a DUI-DWI Suspect – Which Factors and Evidence Will Hurt and Which Will Help?
| 2.0. | Purpose of this chapter |
| 2.1. | The two general types of DUI-DWI |
| 2.2. | Remain silent – it is your right! |
| 2.3. | Assume that everything is being recorded |
| 2.4. | Roadblock information and otherwise why the police stop you |
| 2.5. | Driving a Vehicle that Invites Being Pulled Over |
| 2.6. | Avoiding roadblocks |
| 2.7. | When Being Followed by Police, Don’t Pull Over Before Being Required to Do So |
| 2.8. | If you don’t agree to submit to pre-arrest field sobriety tests, will you lose your license? |
| 2.9. | If you refuse to submit to post-arrest chemical tests, will you lose you license |
| 2.10. | If you take the state’s “chemical” test(s), will you get to keep your license? |
| 2.11. | If you refuse the state’s tests, can you obtain a “work” permit? |
| 2.12. | Who can refuse to be tested? |
| 2.13. | Who should refuse to be tested? |
| 2.14. | Will your “refusal” be used against you in court? |
| 2.15. | Never attempt to perform the SFST’s or other voluntary field tests |
| 2.16. | Avoid "verbal gymnastics" or police officers' "Catch-22's" |
| 2.17. | Don't lose your composure or use bad language |
| 2.18. | Politely attempt to leave by cab, on foot or with a friend even if your car is towed |
| 2.19. | You are being arrested anyway – why is that? |
| 2.20. | You were given an advisement or warning of rights, and it was not the Miranda warning. What is it? |
| 2.21. | Can you obtain your own test(s)? If so, when and who pays? |
| 2.22. | Here are some things you can do if you are going out this evening and may have anything alcoholic at all to drink |
| 2.23. | Summary - what do I say and do if I am confronted by a police officer and suspected of DUI-DWI? |
Chapter 3 – You’ve Been Arrested, and Now You Are Being Taken to Jail. What Do You Do Now?
| 3.1. | Overview of this chapter’s purpose |
| 3.2. | In the process of being arrested |
| 3.2.1. | In the police vehicle and your time with the arresting officer(s) |
| 3.2.2. | Be polite with the jail personnel, but remain silent about your case facts |
| 3.2.3. | Note the names of every jail person you see as well as sober and credible cellmates |
| 3.2.4. | If “stonewalled” or ignored, use “911” to record your message |
| 3.2.5. | Get bond posted and get out of jail ASAP |
| 3.3. | What to do as soon as you are out of jail |
| 3.3.1 | Immediately write down all details of your events of the entire day of your arrest and the exact conversations between you and any law enforcement officer after the stop |
| 3.3.2. | Photographing your car (inside and out) and any containers from which evidence was seized when you pick it up |
| 3.4. | What to do after this |
| 3.4.1. | Keep your arrest details to yourself |
| 3.4.2. | Staying out of trouble while the case is pending |
| 3.4.3. | If (or when) you have your license back, get busy |
Chapter 4 - Locating, Investigating, Interviewing and Hiring the Best Available Attorney to Handle Your DUI-DWI Case
| 4.1. | Overview of this chapter |
| 4.2. | Locate and contact a “top” DUI-DWI attorney immediately
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| 4.3. | Choosing between the lawyers who appear to be the most qualified to help you
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| 4.3. | What do I do if I just cannot afford the TOP DUI-DWI lawyer in my area? |
| 4.4. | Don’t expect your attorney to be a magician |
| 4.5. | Don’t ask your attorney to be a crook |
| 4.6. | Treat your attorney’s staff like they are your family members |
| 4.7. | Providing input to your attorney, but not being a pest |
| 4.8. | After selecting an attorney, follow your attorney’s advice |
| 4.9. | Maintain a file with all your papers from legal counsel |
| 4.9.1. | Expect copies of all motions and filings |
| 4.9.2. | Expect any and all offers for a settlement or plea to be communicated to you |
| 4.10. | Let your attorney decide which witnesses to interview |
| 4.11. | Follow your attorney’s advice on securing help from the best available expert witness(es) for your trial or motions |
| 4.12. | Assist your attorney in locating & staying in touch with fact witnesses and medical or other records |
| 4.13. | All lawyers were not created equal |
Chapter 5 - What Should You Be Doing to Prepare Your Legal Defense and Can You Drive After Your Arrest
| 5.0. | Purpose of this chapter |
| 5.1. | What happens if you get caught driving on a suspended license? |
| 5.2. | Is getting a “limited permit” the solution to your problems? |
| 5.3. | When can you get your license reinstated? |
| 5.4. | Can you just obtain a license in another state? |
| 5.5. | Can you drive on an “international” license here in the USA? |
| 5.6. | Once you are permitted to drive again, will things be back to normal? |
| 5.7. | Alcohol and drug assessment (and possible treatment) prior to going to trial |
| 5.8. | Should you go to “DUI-DWI school” prior to trial? |
| 5.9. | Cleaning up your driving history before your case reaches trial or final disposition |
| 5.10. | Make certain you have funds available to cover all costs |
| 5.11. | Keep your schedule flexible for court proceedings – save all vacation days |
| 5.12. | Community service is a good thing to do |
| 5.13. | Anxiety can be a killer! Seek professional counseling if needed |
| 5.14. | How will the judge or jury perceive you? |
Chapter 6 - Potential Defenses, Strategies and Tactics for Your DUI-DWI Case
| 6.0. | Purpose of this chapter |
| 6.1. | Defenses related to the legality or sufficiency of the indictment, accusation, complaint, information, or other charging instrument (such as a uniform traffic citation) |
| 6.2. | Defenses relating to an illegal search warrant, if applicable |
| 6.3. | Defenses related to the legality of a roadblock |
| 6.4. | Defenses related to the legality of the stop of your vehicle |
| 6.5. | Defenses related to the lawfulness of your arrest for DUI-DWI |
| 6.6. | Defenses related to an unlawful search and seizure and exclusion of illegally seized evidence |
| 6.7. | Defenses related to the violation by the police of your Fifth Amendment privilege against self-incrimination |
| 6.8. | Defenses related to the violation by the police of your constitutional or statutory right to counsel once arrested |
| 6.9. | Challenges to use of improper and non-standardized field sobriety evaluations |
| 6.10. | Challenges relating to the officer’s competence to administer field sobriety evaluations |
| 6.11. | Challenges to the officer’s ability and experience in determining an impaired driver from an unimpaired driver |
| 6.12. | Defenses relating to discovery abuse |
| 6.13. | Defenses relating to exculpatory lost video evidence |
| 6.14. | Defenses related to the failure of the police to comply with the requirements of the Florida implied consent statute |
| 6.15. | Defenses related to the failure of the police to comply with the requirements of the state’s independent test statute |
| 6.16. | Defenses related to prosecution's ability to prove the elements of the offense, other than impairment |
| 6.17. | Defenses related to the prosecution's ability to prove the required degree of intoxication other than by chemical testing |
| 6.18. | Defenses related to the admissibility of the prosecution's breath testing evidence |
| 6.19. | Defenses related to the failure of the police to comply with standard operating procedure during the arrest or forensic testing |
| 6.20. | Defenses related to the credibility of the prosecution's breath testing evidence |
| 6.21. | Defenses related to the admissibility of the prosecution's blood testing evidence |
| 6.22. | Defenses related to the credibility of the prosecution's blood testing evidence |
| 6.23. | Defenses related to police misconduct or perjury |
| 6.24. | The defense of an unconstitutional or invalidly-adopted drinking and driving statute or related ordinance |
| 6.25. | Defenses related to double jeopardy |
| 6.26. | Defenses related to collateral estoppel or res judicata |
| 6.27. | Defenses related to the denial of your right to a speedy trial |
| 6.28. | The defense of necessity |
| 6.29. | The defense of duress |
| 6.30. | The defense of entrapment |
| 6.31. | The defense of the margin of error |
| 6.32. | The defense of different partition ratio than the breath machine is programmed to expect |
| 6.33. | Defenses related to preventing the enhancement of a drinking and driving offense |
Chapter 7 - Specific Challenges to Various Search and Seizure Issues That Can Force Total Dismissal of Your DUI-DWI Case
| 7.0. | Purpose of this chapter |
| 7.1. | Stopped based upon traffic offense or vehicle deficiency that is not actually an offense or deficiency |
| 7.2. | Stopped based upon an observed equipment defect that is not a legally required item of equipment |
| 7.3. | Stopped for a violation of law and the statute is unconstitutional |
| 7.4. | Stopped for a drive-out tag being on the vehicle, and the temporary tag is in good order |
| 7.5. | Stopped because vehicle is coming from an area where no residences currently are occupied |
| 7.6. | Stopped based solely upon a “be on the look out” (BOLO) call from a concerned citizen, and the information given is legally insufficient |
| 7.7. | Stopped at a roadblock that was illegally set up |
| 7.8. | Stopped at a roadblock that was not overseen and selected by a properly trained supervisory officer |
| 7.9. | Confronted by an officer in a legally parked car with no reason to suspect that a crime had been committed |
| 7.10. | Stopped because person turned around near a roadblock location |
| 7.11. | Stopped because officer had a hunch that a turn into an apartment parking lot was made to avoid a roadblock that was ahead |
| 7.12. | Stopped because the officer saw an unusual but insignificant driving error that did not rise to the level of being reasonable suspicion of impaired driving |
| 7.13. | Stopped after the officer’s driving actions causes or “creates” weaving due to the driver’s preoccupation with the “threatening” actions of the police car in the rear view mirror |
Chapter 8 - The “Discovery” Process: How Your Attorney Learns What Evidence the Prosecutor Has and Decides How to Challenge or Explain It
| 8.0. | Purpose of this chapter |
| 8.1. | The United States Supreme Court rulings set the “floor” below which Florida cannot go |
| 8.2. | Different tools can be used to uncover information relevant to your case |
| 8.2.1. | Subpoenas |
| 8.2.2. | Subpoena duces tecum (seeks documents or items to be brought with the person who is appearing pursuant to the subpoena) |
| 8.2.3. | Freedom of information act (F.O.I.A.) |
| 8.2.4. | Motion to produce |
| 8.2.5. | Depositions (available in Florida, and at Formal Review proceedings) |
| 8.2.6. | Private investigator |
| 8.2.7. | Officer’s disciplinary file |
| 8.2.8. | Officer’s training records for state police academy central records |
| 8.3. | A disclosure motion filed with the court and properly served upon the prosecutor will cause the list of possible witnesses against you to be produced |
| 8.4. | Reciprocal discovery rules may require your attorney to also disclose to prosecutor |
| 8.5. | Video tapes are generally discoverable |
| 8.6. | Look for private security video footage from a parking lot or business camera where your car was stopped |
| 8.7. | Police dispatch tapes and computer-aided dispatch (CAD) logs available from headquarters |
| 8.8. | Any “BOLO” cases likely will have the actual “911” entirely recorded |
| 8.9. | Accident reports from police department that investigated accident |
| 8.10. | Possibly use of an accident reconstructionist |
| 8.11. | Court rules may allow a prosecutor to file certain special motions (e.g., motion to request to use “prior acts” evidence at trial of current DUI-DWI) to seek to have your judge allow harmful evidence to be used against you at trial |
| 8.12. | Remember to give your lawyer sufficient time to use all of the discovery tools to your greatest benefit |
Chapter 9 - Implied Consent (Informed Consent) Laws: How to Use These Laws to Help You Win the Case
| 9.0. | Purpose of this chapter |
| 9.1. | Explanation of implied consent laws in your state |
| 9.2. | Can a law enforcement officer make the request for an implied consent blood, breath or urine test due to an accident, with no traditional evidence of impairment due to injuries? |
| 9.3. | Does Florida require the officer to give a formal, pre-formatted advisement? |
| 9.4. | Do Florida laws require a valid arrest for DUI-DWI to occur prior to the implied consent advisements being read? |
| 9.5. | Does Florida mandate when the officer is required to give the implied consent notification, or otherwise lose the right to use the test results against you? |
| 9.6. | Are there criminal penalties for refusing testing? |
| 9.7. | What are the driving restrictions or loss of license penalties for refusal? |
| 9.8. | Can you refuse testing in Florida? |
| 9.9. | Does the procedure used in Florida comply with California v. Trombetta? |
| 9.10. | Is the sample being requested for implied consent usable for possible other crimes? |
| 9.11. | Do you have the right of counsel before agreeing to submit to the state’s test (or refusing to submit)? |
| 9.12. | Which instruments are approved for roadside preliminary breath testing? |
| 9.13. | Is the preliminary breath testing device in Florida part of the implied consent law, or is it a non-evidential test? |
| 9.14. | Does the officer have to advise you of your right to an independent test of your blood, breath or urine? |
| 9.15. | If you request an independent test, does the officer have to reasonably accommodate that request? |
| 9.16. | If you want to request an independent test, do you have to first submit to the State’s test? |
| 9.17. | For breath testing, what is Florida’s observation period (deprivation period) prior to taking the test? |
| 9.18. | How does implied consent law affect the administrative license suspension hearing in your case? |
| 9.18.1. | Appeals from an Adverse Ruling from an Administrative Court |
| 9.18.2. | Winning or Losing the Administrative Hearing Will Not Affect the Criminal Case Afterward |
| 9.19. | If you don’t understand English, and the implied consent was read to you in English, how does this affect the State’s tests? |
| 9.20. | If the officer misstates information or goes beyond the information required to be told to you, can this additional information result in your test result (or refusal) being excluded? |
| 9.21. | If you are hearing-impaired, does it make a difference that the officer would not get an interpreter? |
| 9.22. | If you asked to be taken to Acme Hospital for an independent test, and the officer declines because there are closer hospitals, does this matter? |
| 9.24. | If you learn that the hospital requires cash or a check for an independent test, and you need to be taken by an ATM machine for money, can the officer decline to do this for you? |
| 9.25. | If you have been injured in a collision and (due to injuries) submitting to the breath test would be painful or difficult, does this constitute refusal? |
| 9.26. | If you just never answer by saying “yes” or “no” to the request for a forensic test, does this constitute refusal? |
Chapter 10 - Understanding Breath, Blood, Urine, Saliva or other Forensic Testing and Your DUI-DWI Case
| 10.0. | Purpose of this chapter |
| 10.1. | Breath test — most common form of testing |
| 10.1.1. | How many breath samples must be collected for there to be a valid test? |
| 10.1.2. | Regulations or statutes requiring testing officer to follow specified protocol |
| 10.1.3. | Manner of blowing can alter final results |
| 10.1.4. | Air bag residue may cause elevated readings |
| 10.1.5. | Error readings and the importance of the follow-up by the testing officer |
| 10.1.6. | Retention of all test cards is mandatory, because they are part of your evidence |
| 10.1.8. | Computer database downloads and vital information from them |
| 10.1.9. | Person doing the testing must be currently certified to run the test |
| 10.1.10. | Periodic calibration checks and service records are critical to your defense |
| 10.2. | Blood test — most reliable and accurate form of testing |
| 10.2.1. | Gas chromatography for alcohol tests |
