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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
3.3.1Immediately 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

  • A. References from friends or any lawyer you might know personally
  • B. Community and Courthouse Reputation
  • C. Advanced Training
  • D. Specialized Membership or Professional Affiliations
  • E. Disciplinary Actions
4.3.Choosing between the lawyers who appear to be the most qualified to help you

  • A. Seminar Speaker
  • B. Fees and Fee Structure
  • C. Focus of practice
  • D. Years in Practice
  • E. Lawyer-Staff ratio
  • F. Caseload
  • G. Use of Technology
  • H. Promising too much
  • J. Educational Background
  • J. Publications
  • K. Promotional Materials
  • L. Conflicts of Interest
  • M. Engagement Letters
  • N. Language Skills
  • O. Ethics
  • P. Personality Compatibility
  • Q. Communication
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

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Disclaimer: At the Kessler Law Firm, we treat every client and case individually. We do not run a factory or cookie-cutter business. While we cannot guarantee how your case will end, we do guarantee the quality of our work and our dedication to helping you achieve the best possible outcome.Of course, the information provided on this website is not legal advice about your case; any exchange of info via this website does not create an attorney-client relationship.

Cities we service in FL: Port St. Lucie, Fort Pierce, Stuart, Vero Beach, Delray Beach, West Palm Beach

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