| Believe it or not, many people who think they performed poorly on the field sobriety exercise or who blew over the legal limit (.08) on the Intoxilyzer, are successful in getting their DUI charge dismissed or reduced. Take some of our Recent Court Victories for example.
PRIMARY EVIDENCE AGAINST YOU IS POLICE TESTIMONY
Let’s face it. In most DUI cases, the primary evidence presented by the prosecution will be in the form of Police Officer Testimony. Even where breath test results or a field sobriety video are used, the Police still must testify to explain the evidence. And, it is this testimony of the trained and experienced Police Officer that most DUI cases rely upon. This is why it is so important to have lawyers on your side who understand the importance of properly questioning the police.
THE FIRST STEP: THE DMV HEARING
The first step in questioning the Police in a DUI case is to conduct a Formal Review Hearing through the Department of Motor Vehicles (DMV) administrative review hearing process. Any time you submit a test to determine the alcohol or drug content, and that test is either over the legal limit (alcohol), or positive (illegal drugs), your driver’s license is suspended by the DMV. Additionally, any time you refuse such a test your driver’s license is suspended by the DMV. But remember these suspensions are subject to review by your lawyer at the administrative hearing. Now, of course, you can participate in this hearing to save your driver’s license if at all possible. But you must also take full advantage of the opportunity to question, at the minimum, the arresting officer and the breathalyzer officer (and nurse or paramedic in a blood draw case), about all aspects of your stop, detention, arrest and subsequent breath, blood or urine testing. This testimony is oftentimes critical in defending you in Criminal Court against your DUI charges!
- Question the officer’s experience, qualifications, and training in DUI related cases, not merely his/her patrol or arrest experience.
2. Determine if the officer has any bias towards drunk drivers or whether he/she is predisposed to believe someone is impaired (merely due to odor of alcohol, for example).
3. Question the officer about all aspects of the stop, not merely the field sobriety exercises. Did the officer even have “probable cause” to stop you in the first place? Many officers do not detail their reports and this is where effective questioning is critical.
4. Question the officer about observations, or lack of observations, which may be used to demonstrate your sobriety. This includes observation during field sobriety exercises and during other times which may not have been documented such as upon your exit from your vehicle or while you were at the jail, or your attitude, demeanor, clothing, hygiene, whether or not you ever used the bathroom during detention/arrest/booking, etc.
- Attack the officer’s reports and what they claim they observed, and question them as to whether there were, in fact, reasonable and innocent explanations for some or all of their observations.
- Question the officer’s memory of the events.
Many officers do not fully explain their observations of field sobriety exercises (FSEs), and therefore, tends to lead to a great deal of speculation, especially when there is no DUI video (but even when there is a video, the quality is sometimes degraded or the angle of view makes it difficult to corroborate the officer’s observations). As in most cases you only get one or two chances to question an officer under oath, so you have to ensure you take full advantage of the opportunity. Your lawyer should always consider the possibility of trial at the end of your case. Your Attorney should be qualified in the administration and evaluation of the FSE’s if he or she truly intends on challenging the FSE’s, make sure you Hire a Qualified DUI Firm to represent you!
There are a number of issues that must be covered during a breath test, such as:
- Were you under lawful arrest before being requested to take a breath test?
- Were you properly observed for at least twenty (20) minutes before you first breath sample?
- Did the officer ensure you did not take anything by mouth, belch or regurgitate during the twenty (20) minutes immediately before your breath sample?
- Was the breath testing machine properly calibrated?
- Was the proper maintenance performed on the breath testing machine by both the sheriff’s office and the Florida Department of Law Enforcement (FDLE)?
- Were you properly advised of the implied consent law?
- Was your breath, blood, and urine test done by you voluntarily and without any coercion, duress or trickery?
- Was the officer properly qualified to operate the breath test machine?
- Did the officer misinform you about a hardship license?
- Were your breath test results within the allowed perimeter?
- Were the officers reports filled out correctly?
- As with the arresting/back-up officers, what observations did the breath test operator make of you?
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