Broward DUI Lawyer on Actual Physical Control of a Vehicle

Driving under the influence, as the name implies, usually actually involves driving. But Fort Lauderdale DUI lawyer Moore says that literal driving is not a requirement for the state to prove the a DUI charge. The Florida law that governs drunk driving, Fl. Stat. Section 316.193, requires only that the driver be in "actual physical control" of the vehicle. Most states have a similar or identical standard, which has tended to be construed rather broadly.

Surprisingly, Broward DUI lawyer Moore says that actual physical control may include just simply sitting in the driver’s seat in some instances. The car does not necessarily even need to be turned on. If the keys are in the ignition or even within reach, such as within the pocket of the person sitting in the driver’s seat, as well as other circumstances, law enforcement agents and the courts may consider the defendant to have been in actual physical control of the vehicle.

A driver -- or “driver,” as the case may be -- also does not need to necessarily be out on the road in order to be charged with DUI. Sitting in a car in a driveway, on private property, can still potentially subject the individual to a charge of driver under the influence so long as the law enforcement officer had a reason to investigate the situation. For example, if police were called to the home to sort out allegations of a domestic altercation, the situation could arise where one partner goes to the car to cool off. The police might also initiate an investigation if they see suspicious activity that warrants their attention, says Fort Lauderdale DUI lawyer, such as a person passed out in a car who may need medical attention.

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Broward DUI Defense & Video Evidence

Video evidence is among the most important evidence the Assistant State Attorney can use against a DUI defendant, but it can frequently work in the defendant’s favor, depending on what the video shows. There are any number of possible scenarios in which a DUI video provides evidence useful to a defendant, according to experienced Fort Lauderdale DUI attorney William Moore.

In the case of a DUI suspect who performs the roadside field sobriety exercises, decent or good performance can work in his favor. This is true regardless of whether or not there is a breath test reading. For instance, if the driver suspected of DUI performs the roadside tests reasonably well, especially in light of the fact that they are unusual activities drivers are not accustomed to performing, the video is more helpful to the suspect and his DUI defense attorney. One interesting argument in this scenario is when the driver actually receives a very high breath test reading. These two things occasionally happen. If a driver blows a 0.32 breath test reading -- four times the “legal limit” at which intoxication is presumed -- yet still performs the exercises well, a reasonable jury may well understand that the breathalyzer may have been faulty or inaccurate.

If a video captures the time leading up to a traffic stop, the driving pattern may also be under scrutiny. If a person is pulled over on suspicion of driving under the influence, the police officer will need to be able to justify the traffic stop. Failure to maintain a single lane, just by itself, will probably not cause reasonable suspicion for a traffic stop if the driver is not affecting other traffic. However, weaving, drifting into another lane, failing to go at a green light, and very slow driving speeds may all trigger traffic stops.

Another possible scenario would be when a non-English speaking driver is pulled over by an officer who cannot communicate effectively with him. As a result, the driver may not understand the instructions for either the roadside field sobriety tests or the breath test machine. If a police officer fails to adequately (or correctly) explain the consequences of refusal, regardless of the language the officer and the driver are communicating in, that may also work in a DUI defendant’s favor. Likewise, a police officer or breathalyzer operator who is extremely rude or expresses a bias may not win favor with a jury hearing the DUI case.

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Broward DUI Lawyer: Driving Under the Influence on a Bicycle

In the state of Florida -- surprisingly -- courts have ruled that it is possible to be arrested and convicted of DUI on a bicycle, says Fort Lauderdale DUI lawyer Moore. There are no precise figures available, but arrests of individuals riding a bike while (allegedly or actually) under the influence of alcohol or other substances are more common than one might imagine.

Implied consent is not applicable for a bicycle DUI. Implied consent refers to the fact that the operation of a motor vehicle -- generally a car -- on the roads in Florida necessarily means that the operator has consented to certain DUI testing when requested by a law enforcement officer, says Fort Lauderdale DUI lawyer Moore. Most often, this means a breathalyzer test.

The relevant section of the Florida statute states that committing a DUI involves a “vehicle,” which has been interpreted very broadly since its enactment A bicycle is not a motor vehicle, but can be taken on the public streets and roadways. There is also a colorable argument that bicycles, sharing the streets with cars, can pose a hazard to the safe flow of traffic and pedestrians if an operator is impaired, according to Broward DUI attorney Moore.

For purposes of driver’s license suspension, the DUI must be in a motor vehicle, such as a car. The courts are split as to whether the typically mandatory driver’s license suspension periods are required when the DUI did not occur on a motor vehicle.

The third District Court of Appeals in the state of Florida dealt with this issue in 1987. The DCA concluded that, based on the statute, the Florida legislature had a broad definition of vehicle in mind when enacting the statute. Interestingly, the Florida Supreme Court has not weighed in on whether a DUI can be committed on a bicycle, and this opinion remains that legal standard as the only appellate opinion on the issue in this state.

A survey of other states shows that they have taken a varied approach. A number of jurisdictions have maintained that a DUI can only be committed on a motor vehicle, which can be more than just a car or truck. For instance, hooking up a lawnmower engine to a living room recliner and driving it around could result in a DUI arrest. Other states include non-motor vehicles, such as bicycles and even individuals who are riding on horseback.

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DUI Patrols for Halloween -- Broward DUI Attorney

Be careful, Halloween revelers! Holidays are a favorite time for local law enforcement to set up sobriety checkpoints. These checkpoints stop traffic, usually with blue police lights flashing, at predetermined locations, ostensibly to detect drivers who are intoxicated. Law enforcement officers typically claim that the DUI checkpoints protect the community from drivers whose intoxication would render the roads unsafe for the rest of the general public. Partygoers in the Himmarshee district or other areas with large Halloween celebrations are likely to find themselves under increased law enforcement scrutiny and should plan accordingly. Other popular times for DUI roadblocks are New Year’s Eve, Memorial Day, Labor Day, the Fourth of July, and around Christmas, according to Broward DUI attorney William Moore.

The realities of DUI checkpoints are, upon closer examination, more complicated. The politics of sobriety checkpoints are complicated, because while they are proclaimed as a first line of defense against driving under the influence of alcohol and/or other substances, they are also nearly always a tremendous moneymaking venture for these agencies. Often, law enforcement officers issue numerous citations for civil violations such as failure to use seat belts, expired car registration, driver’s licenses that have been expired only a very short period of time, no insurance, and the like.

The law requires that DUI roadblocks adhere to numerous rules in order to be compliant, so that the evidence can be admissible against a criminal defendant in court. For instance, if there is not a set method of determining which cars will be stopped (such as every other car or every fifth car), the evidence obtained will not be valid. Without neutral criteria for determining which cars to stop, officers’ biases or hunches could be the determining factor, notes Fort Lauderdale DUI lawyer Moore.

The Fourth Amendment to the United States Constitution, which prohibits certain types of searches, is the basis for restrictions on the way police conduct sobriety checkpoints. In the traditional traffic stop, police must have reasonable suspicion that a driver is breaking the law in order to pull him or her over. However, random roadblocks do not require individualized suspicion. Some scholars have argued that an examination of the Fifth Amendment protection against self-incrimination is also necessary, as field sobriety tests and breath test machines could produce incriminatory results that are used against a defendant in court. This is true even though Florida and other jurisdictions require by law through implied consent that a driver submit to breath alcohol testing when requested by law enforcement. Implied consent states that when a driver operates a motor vehicle, the driver is automatically consenting to these tests.

Article contributed by Mallory Lynn, Esq.

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Broward DUI Lawyer on the Confrontation Clause & DUI Issues

The Confrontation Clause is found in the Sixth Amendment of the United States Constitution and states as follows: "in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." This right is applied to prosecutions by states through incorporation by the Fourteenth Amendment, says Fort Lauderdale DUI lawyer Moore.

Crawford v. Washington was a Confrontation Clause case decided by the Supreme Court of the United States in 2004. Michael Crawford stabbed a man, Kenneth Lee, over a dispute related to Lee's alleged attempt to rape Sylvia Crawford, the wife of the defendant. Crawford claimed that at the time of the stabbing, he was under the impression that Lee had been armed and was thus acting in self-defense. Mrs. Crawford made conflicting statements to the police, first stating that she had not been present during the scuffle and later stating that she was present and Lee was unarmed. Her husband was charged in relation to the stabbing, says Broward DUI attorney Moore.

At trial, the prosecution used a tape of Mrs. Crawford's statement, over the objection of the defense. Mrs. Crawford could not be compelled to testify due to spousal privilege. Further, the defense contended that the defendant could not cross-examine Mrs. Crawford about her statement without the defendant being forced to waive the privilege. Crawford was convicted, but his conviction was overturned by the appellate court, then reinstated by the Washington Supreme Court. Ultimately, the U.S. Supreme Court heard the case. In a landmark decision, the Court held that where a witness would offer testimonial evidence, he or she must be made available for cross-examination by the defendant.

The Confrontation Clause does not, it would seem, apply to machines. This is an important distinction for DUI cases, notes Broward DUI lawyer Moore. Although the company that manufactures the breathalyzer machines used in Florida and other states has been ordered by several courts to release its source code -- the computer programming that tells the machine how to calculate the breath alcohol in the sample produced by a suspect -- the company has repeatedly refused to do so, citing in part a trade secret. However, a DUI defendant can still contest the accuracy of the machines, usually through the use of expert testimony regarding the reliability of the breathalyzer, its biases, and the margin of error inherent in the results produced. In fact, breathalyzer machine operators in the state of Florida must obtain two breath samples within 0.02 of one another in order to proceed with the breath.

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Broward DUI Attorney -- Drivers License Administrative Suspension Issues

A DUI arrest in the state of Florida can be devastating. It can have a long-term effect on your future, including your prospects for employment, or even continuing at the job you already have. For many, a valid driver's license is necessary for work. Truck drivers and taxi operators come to mind immediately, but other professions require that workers drive regularly. For example, Fort Lauderdale DUI lawyer William Moore drives to court. Even driving just to get to your place of employment is important, as is driving children or other family members to school, doctor's appointments, and the like.

After a driver is arrested for driving under the influence in Florida, he or she has only 10 days in which to formally challenge the administrative suspension of his or her drivers license by the Florida Department of Highway Safety and Motor Vehicles. Broward DUI lawyer Moore provides representation at these hearings. The arresting law enforcement officer may appear at the hearing and provide testimony regarding the reasons for the traffic stop. The administrative suspension of the drivers license is a separate matter from the criminal case. In fact, even if a defendant goes to trial and is found not guilty of DUI by a judge or jury, the driver's license suspension by the FDHSMV is not invalidated at that point. If the defendant did not successfully challenge the suspension in the 10 day period following the arrest, the drivers license will not be reinstated until after the suspension period runs and the defendant applies for reinstatement with the FDHSMV, according to Broward DUI lawyer Moore.

It is important to remember not to drive unless your license is valid. Drivers licenses can be suspended for failure to pay tickets, a DUI arrest, and having child support in arrears. However, driving with a suspended license may sound like a simple traffic ticket, but is actually a fairly serious criminal matter. It is not uncommon in many jurisdictions in Florida for the prosecutor to seek significant time in jail -- for instance, 30 days -- simply for an arrest for operating a motor vehicle with a suspended license. Such an arrest could also constitute a violation of the terms of dui probation, which usually includes reporting, attending DUI school, attending a victim impact panel, the payment of various fees and fines, and not driving or picking up new criminal charges. In terms of operation of a motor vehicle in violation of a drivers license suspension, the definition of what constitutes a motor vehicle can also be fairly broad, encompassing many of the scooters popular to cruise around the beach in Fort Lauderdale.

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Driver’s License Charges Addressed by a Broward DUI Attorney

Having a driver’s license is extremely important to virtually every adult. Most of us drive every single day -- to and from work, to pick up the kids from school or take them to soccer practice, to pick up dry-cleaning or take-out food after a long day at the office, or just to go out to the movies. In any case, not having a driver’s license is difficult and can result in traffic tickets or criminal charges, in addition to collateral consequences such as losing or being unable to find employment.

You can be charged with driving without a valid driver’s license if you never actually had a driver’s license. Driving with an expired license can also be a criminal matter, notes Fort Lauderdale criminal attorney Moore. Perhaps the most common situation, however, is driving with a suspended driver’s license. Driver’s licenses can be administratively suspended by the Florida Department of Highway Safety and Motor Vehicles for a number of reasons. An arrest for driving under the influence, even if you have not been convicted, will suspend your driver’s license, and refusing a breath, blood, or urine test at a law enforcement officer’s request can lengthen the period for which the license will be suspended (however, the suspension can be challenged by a Fort Lauderdale DUI lawyer within 10 days of your arrest). Additionally, a drug-related conviction -- even misdemeanor simple possession of marijuana -- can result in a suspension of your driving privileges for two years. Many people are also surprised to learn that falling behind on child support payments can also result in a suspended driver’s license. Modifying child support can be tricky, especially if arrears (back payments still owed) have accrued, and the economic problems in Broward County have worsened the problem.

Sometimes, an experienced Broward DUI lawyer can negotiate a great deal with the State Attorney’s Office -- such as dropping the case if you can come back to court with a valid driver’s license. Of course, these types of agreements depend on which courtroom your case is in, the individual circumstances of your case, and other factors. Sometimes, reinstatement of your license or obtaining a valid license is impossible, but options such as completing classes or just paying court costs can resolve the matter. Also, criminal defendants have the right to a trial, with DUIs being the most commonly tried criminal traffic cases, and Broward DUI lawyer Moore regularly handles these types of cases.

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Broward DUI Attorney -- Twin Brother of Jose Conseco Arrested on Suspicion of DUI

According to Broward DUI attorney William Moore, Ozzie Conseco is the identical twin brother of Jose Conseco, the former Major League Baseball Player. Ozzie also participated in professional baseball, playing in 24 games in with the St. Louis Cardinals and the Oakland A’s in the early 1990s. He has also played in Japan and in other leagues in the United States. Ozzie was selected by the New York Yankees in the second round of the 1983 draft. His brother Jose hit more than 400 career home runs while playing in the major leagues, notes sports buff and Fort Lauderdale DUI lawyer Moore.

Ozzie was recently arrested in Florida for DUI, according to media reports. His BAC was reportedly between 0.108 and 0.109. Initial news reports make no mention of a crash associated with the DUI arrest, notes Broward DUI lawyer Moore.

Ozzie Conseco has been previously arrested in Florida twice before, although never previously for drivind under the influence. In 2003, police pulled him over due to “bad tints” (windows tinted darker than the law allows) and determined that he was driving with a suspended license. When law enforcement officials searched his car, they found an illegal steroid, along with a syringe. Ozzie spent four months in jail as a result of the incident.

On the night of Halloween in 2001, Jose and Ozzie Conseco were both arrested following an incident in Miami Beach. The pair got into a fight with tourists visiting the area from California. The dispute turned physical. The tourists suffered injuries as a result of the fight: one required numerous stitches on his lip, while the other had a broken nose. Both of the Conseco twins pleaded guilty to felony aggravated battery charges, although neither was required to spend any time in jail. Ozzie Conseco was sentenced to 18 months of probation, anger management classes, and 200 hours of community service.

First DUIs in the state of Florida, where the defendant is convicted after a trial or pleads guilty, do not usually result in time in jail, although there are exceptions. Aggravating circumstances, DUI arrests in other states, injuries, accidents, and the like can result in harsher sentencing in some instances.

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Driving Under the Influence & Prescrption Drugs -- Broward DUI Attorney

Alcohol consumption is not necessary for a person to be arrested and convicted of driving under the influence, says Broward DUI lawyer William Moore. Alcohol is easier to quantify through the use of a breath test. Although urinalysis can detect the presence of drugs, the test does not show the amount that was present in a person’s system at the time of the test. Only a blood test quantifies the amount.

In cases where a blood test was actually obtained, the results will usually be interpreted by a toxicologist, who will be called by the state to testify regarding the substances actually present as well as the amount of the drugs present. For example, just knowing that a driver had a breath test of 0.02 -- well under the per se limit of 0.08 at which the law presumes a driver to be too impaired to operate a motor vehicle -- combined with the presence of Xanax in the body is insufficient to prove a DUI. However, if a toxicologist is present with the results of a blood test, that information can be key for a jury to make a decision regarding a person’s guilt. If the Xanax was at therapeutic levels, or the level generally prescribed by a physician, the person is less likely to be found guilty of driving under the influence. If, however, the levels are several times higher than the therapeutic dose, the case is more difficult. This is particularly true where the blood test results conflict with statements made by the defendant following his arrest regarding how much Xanax he took.

Generally, the police will also need a reason to request testing beyond a breathalyzer. For a urine test, there must be probable cause to believe that the person has drugs in his or her system. Blood draws are more complicated. The first reason a police officer can require a blood draw, even forcible, is following an accident with a fatality or where there were serious bodily injuries. The second would be where it is impractical to use a breath test, such as a driver who is unconscious or is being treated in a hospital. The third way for a blood draw to come about is if the driver consents to it, after being informed that it is an alternative to a breath test. Drivers do not have a choice of test, even though there is evidence that blood tests are more accurate than the breathalyzer machine, notes Fort Lauderdale DUI lawyer Moore.

Article provided by Mallory Lynn, Esq.

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