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?
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