DUI Book – Table of Contents

DUI Attorney Michael Kessler wrote the definitive book on DUI in Florida.

Table of Contents – The DUI Book – Florida Edition


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

  • 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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