FORMER STATE PROSECUTOR
DUI Defenses in Tampa & Hillsborough County
Increasingly, the police are under great pressure from advocacy groups to make more DUI arrests. Understandably, this has resulted in a larger number of “borderline” cases, and cases in which an arrest should not have been made at all. The prosecutor's burden in proving a DUI charge is governed by the same rules of law and evidence required by the courts in other criminal cases. However, unlike most charges, the State can rely on the arresting officer's opinion of your impairment, as it relates to your ability to drive and whether your normal faculties were impaired. In addition, there may also be scientific evidence such as a breath or blood test. In a typical DUI prosecution the state presents evidence regarding your driving pattern, your performance on “field sobriety tests”, and the results of your breath test. Although the evidence against a driver may seem strong at first glance, there are strong defenses to the different segments of the state's case. A lack of evidence can be brought to the prosecutor's attention to secure a reduction to a lesser charge such as reckless driving, or possibly a complete dismissal of the case.
Usually in a DUI case the officer documents what you did wrong, not what you did right. For instance, the officer's report may indicate you were weaving. However, officers usually don't document proper driving behavior such as following the speed limit, that you were a proper distance from other vehicles, and you obeyed all traffic signs.
There may be other factors to mitigate the effect of any mistakes on the road, such as: road condition (i.e. lack of lighting, road construction, adverse weather conditions, traffic congestion), confusing road signs, you're unfamiliarity with the area, and mechanical difficulties with your vehicle.
In addition, if the officer did not have a valid legal reason to stop your vehicle the court may exclude all evidence against you, including breath tests results and the officer's opinion and observations. Fighting a Search and Seizure violation by the officer requires a competent attorney with the facts on your side, and could ultimately result in the dismissal of your charge.
Field Sobriety Tests
As part of an officer's DUI investigation they typically request a driver to perform field sobriety tests. These tests could include standing on one leg, touching your finger to your nose, reciting the alphabet, and walking each step with the heal of one foot touching the toe of the other in the straight line. The officer then “scores” your performance on these tests to determine whether a driver should be arrested. Most people are surprised to learn the criteria for “scoring” is very strict on the driver, i.e. more than one small mistake on a test is considered a failure. For example, the “heal-to-toe” test has more than a dozen scoring criteria. If a driver misses or forgets more than one step the result is scored as a failure and the driver may be susceptible to arrest. This may be the case even if the driver has physical disabilities.
Generally, most police agencies videotape your performance of the field sobriety tests. If a videotape exists, I will order a copy of the videotape and we can fully review and evaluate your performance on the field sobriety tests. We can determine if your performance on the tests is consistent with the officer's version in his police report. As an attorney practicing criminal law for over twenty-five (25) years and as a former police officer, I have decades of experience reviewing officer recordings of DUI arrests. The videotape can be compelling evidence and a person who looks good performing the tests can often be a good candidate for a reduction of the DUI charge regardless of the “score” given by the officer.
The Breath Test
There are also defenses to the State's scientific evidence. The breath test results may be inaccurate or unreliable for a variety of reasons. Inaccurate intoxilyzer readings could be caused by such things as the failure of the police to observe you for 20 minutes before the test, the lack of proper training and licensing of the operator, and hiccups or burping. Occasionally, an exceptional performance of the field sobriety tests on videotape can cast doubt on the accuracy of a high breath test result.
Recently, the Hillsborough County State Attorney’s Office instituted the RIDR (“Rider”) Program for 1st time DUI offenders. The Program allows those with no prior DUI’s to participate in the Program and eventually receive a reduced charge of Reckless Driving. This reduced charge eliminates the need for a driver to maintain FR-44 insurance for 3 years. (This insurance rider is very expensive- generally costing an additional 2-3 thousand dollars extra each year).
Additionally, if you are eligible for the Program the State Attorney will recommend to the Judge you receive a “Withholding of Adjudication”. This allows for a sentencing on a Reckless Driving without being formally convicted. Without a conviction, and absent any other record, the driver can then petition to Seal their arrest record. A “withholding of Adjudication” also means you will not get any points on your driving record.
First time offenders are eligible if they have no other DUI arrests and either refuse a breath test or have an alcohol reading below .20. Disqualifiers include accident cases and those in which a minor is present in the vehicle. There are 3 levels to the Program. If you receive a DUI please contact our office and we will investigate if you’re eligible for the RIDR Program.