Attorney Steven Sessa’s Guide to DUI Defense

“This guide is NOT about what will make you feel better or trying to sell you on having an attorney represent you. This guide is about the TRUTH of an arrest for DUI.”

Attorney Steven Sessa

561-203-1609 

Our offices are conveniently located in downtown West Palm Beach near the main Palm Beach County Courthouse. Call us today to schedule a free, confidential consultation to discuss the facts of your case with an attorney over the phone, or in the office. Steven C. Sessa, PA is on call to answer your questions. Even a misdemeanor arrest for a first DUI can cause long-lasting and life changing consequences. Contact us today to find out what your need to do immediately to protect yourself after a DUI arrest. Meanwhile, spend some time reading this comprehensive handguide I have written that tells you the facts about what can and can’t be done, procedures, and what happens next after a DUI.

Why Experience in Defending Drunk Driving (DUI) Cases Matters

Attorney Steven Sessa tells you what to know when you have been arrested for DUI.

Attorney Steven Sessa tells you what to know when you have been arrested for DUI.

Focusing on DUI defense allows our lawyers to stay current on the most recent changes in Florida’s criminal statues and case law that impact DUI cases. We take a scholarly approach to filing and litigating motions to suppress evidence and motions to dismiss the criminal charges. Using innovative pre-trial motions is one important way to aggressively fight your DUI case.

The pre-trial motions ask the judge to throw out certain evidence against you or even dismiss the charges completely. If the judge decides that certain evidence cannot be used at trial, then the prosecutor may be more willing to offer to reduce the charges to a less serious offense such as reckless driving. Should your case go to trial, pretrial motions are extremely valuable in eliminating certain prejudicial evidence that may increase the opportunity for a “not guilty” verdict.

Why You Should Fight the DUI Charges

I created this guide to give you general information about ways to fight a DUI. Many people assume that the prosecutor will be able to obtain a conviction for DUI.

Many DUIs are resolved without a conviction, either because the prosecutor decides to reduce the charges to reckless driving prior to trial, the charges are dismissed by the court prior to trial, or the individual is found not guilty at trial.

Avoiding the Expenses Associated with a DUI Conviction

The costs associated with a DUI can be staggering

The costs associated with a DUI can be staggering

Most importantly, I want to provide you with general information about the possible DUI costs and fees that could result from not fighting the case aggressively. The costs, frankly, can be shockingly high. The direct costs are those imposed by the Court, including:

  • The possibility of jail time or incarceration;
  • Twelve months’ probation;
  • DUI school (either Level I or Level II);
  • fines and court costs;
  • costs of supervision, costs of investigation, and costs of prosecution;
  • community service hours or a buyout of those hours;
  • alcohol and substance abuse evaluation and follow up counseling;
  • attending the “victim impact panel,”
  • installation of the dreaded ignition interlock device; and
  • Vehicle impoundment.

Even more costly are the hidden costs of a DUI conviction which can include a dramatic increase in your automobile insurance premiums (including obtaining something called “FR-44 insurance” after a Florida DUI conviction). Lesser known indirect expenses can include increases in life or medical insurance, and the impact a criminal record might have on your future educational and employment opportunities. Obtaining an attorney as early as possible after the arrest is an important step towards preserving all legal avenues that you may have.

Indirect or Collateral Consequences of a DUI Arrest or Conviction

After a DUI arrest, certain indirect or collateral consequences occur. The consequences are particularly harsh for individuals in certain professions and those who require special state or federal certification, including doctors, lawyers, nurses and other health care professionals, school teachers, counselors, airline pilots, members of the military, and members of local, state or federal law enforcement agencies.

Drivers with CDL license in West Palm Beach face draconian sanctions after an arrest and/or conviction. College students can face immediate consequences to their educational opportunities, including a disciplinary hearing even if the college or university student ultimately avoids any DUI conviction.

I strive to protect our clients, not just from the direct consequences of the DUI arrest and prosecution, but also from many of the hidden and indirect consequences.

Stages of a DUI case in West Palm Beach, FL

After you arrest for DUI, your criminal defense lawyer can usually waive your appearance at many, if not all of the pre-trial court dates saving you the stress and inconvenience of going to court. Your DUI attorney in West Palm Beach will handle the various stages of your case including the following:

  • First appearance- a hearing scheduled within 24 hours of your arrest to inform you of the charges against you;
  • Bond reduction hearing (particularly in serious felony DUI cases if you have not already bonded out of jail);
  • Formal Review Hearing to fight the Administrative Suspension of your Driver’s License by the DMV;
  • Arraignment- to enter a plea of guilty or non-guilty;
  • Case Disposition Hearings- where the state typically has the discovery or police reports in your state;
  • Pre-trial Status Hearing;
  • Evidentiary Hearings on a Motion to Suppress Evidence or Dismiss the DUI Charge;
  • Pre-trial Conferences; and
  • Bench Trial or Jury

DUI Pre-Trial Motions and Challenges to the Prosecutor’s Case

For many individuals charged with DUI, the goal is to avoid a DUI conviction by getting the prosecutor to agree to reduce the case to reckless driving. Even once the charge is reduced to reckless driving, the terms of the deal can be negotiated including whether you are “adjudicated guilty” of reckless driving or whether the court will “withhold adjudication” which might allow you to seal the criminal record.

The DUI prosecutors with the State Attorney’s Office in West Palm Beach, Palm Beach County, Florida may agree to reduce drunk driving charges for a wide variety of reasons including Video Evidence. The State Attorney’s office is concerned about the jury returning a “not guilty” verdict if the driver does not look drunk, impaired or intoxicated on the DUI video. These videos can be from the Palm Beach County Sheriff’s Office’s central breath testing facility, at the police station during the breath test, or while the driver is read his implied consent warning after refusing to take a chemical test.

The Following are Issues in a DUI Case that May Lead to Suppression of Evidence:

 
Problem
BOOKING ROOM VIDEOS IN FLORIDA Many police stations videotape suspects at the police station, where their speech is clear and their balance is perfect, in spite of police testimony to the contrary.
EXPERT WITNESSES Expert witnesses are available to review the validity of breath tests, blood tests and field sobriety tests.
FAILURE TO PROVE DRIVING UNDER THE INFLUENCE IN FLORIDA A defendant’s admission to driving, without more, does not prove a charge of driving under the influence.
FAILURES TO PRODUCE DISPATCH TAPES IN FLORIDA Most stops of vehicles are recorded on dispatch tapes, as well as recording police communications regarding an arrest of an individual. Failure to preserve such tapes upon request can cause all evidence, which could have been recorded to be suppressed.
FORCED BLOOD DRAWS IN FLORIDA In some states, the police may not take a blood test against the driver’s consent where there has not been an injury involved, or the result is inadmissible.
 
Problem
INDEPENDENT WITNESSES IN FLORIDA Often times, independent witnesses to accidents, bartenders, hospital personnel and others can provide crucial evidence of the defendant’s sobriety.
IN-SQUAD VIDEOS IN FLORIDA more and more often, the suspect’s driving and performance on field tests is being recorded; often contradicting police testimony.
MISLEADING STATEMENTS BY POLICE OFFICERS IN FLORIDA Any misleading statement by the police regarding the consequences of taking (or refusing) a blood, breath, or urine test will cause the suspension to be reversed and removed from the driver’s record.
OFFICER’S PRIOR DISCIPLINARY RECORD IN FLORIDA A police officer’s previous disciplinary record can be used to attack the officer’s credibility.
POST-DRIVING ABSORPTION OF ALCOHOL IN FLORIDA The prosecutor must prove the blood or breath alcohol at the time of driving. Recent consumption of alcohol just prior to driving will cause the test results to be higher than what the true level was when the person was operating the automobile.
 
Problem
ANONYMOUS REPORT OF DRUNK DRIVING IN FLORIDA a car cannot be stopped simply because an anonymous citizen reported that the driver was drunk.
FAILURE TO DISCLOSE EXPERTS IN FLORIDA The failure of the prosecutor to disclose the state’s expert(s) will cause those witnesses to be barred from testifying against the defendant.
FAILURE TO MIRANDIZE IN FLORIDA Prosecutors may not use as evidence the statements of a defendant in custody for a DUI when the police have failed to properly issue Miranda Warnings.
FAILURE TO PROVIDE SPEEDY TRIAL IN FLORIDA If a client is not provided with a trial within a certain period of time, which varies between states, through delays of the court or prosecutor, the charges must be dismissed.
ILLEGAL SEARCH The police are prohibited from searching a person or the automobile for a minor traffic offense, and may not search a car without a driver’s consent or probable cause. Any evidence illegally obtained is not admissible in court.
ILLEGAL STOP OF PERSON OR VEHICLE IN FLORIDA a driver cannot be stopped unless the officer has a reasonable and articulate basis to believe that a traffic law or other law has been violated. Similarly, a person cannot be seized unless a violation has occurred.
 
Problem
LACK OF PROBABLE CAUSE TO ARREST IN FLORIDA A police officer must have specific and articulable facts to support any arrest for DUI, or the suspension will be reversed and the evidence suppressed at trial.
PRIOR INCONSISTENT STATEMENTS BY POLICE OFFICERS Any statement made by a police officer, verbally, in police reports, or at previous court proceedings may be used to attack that officer’s credibility.
PRIVATE PROPERTY IN FLORIDA A person who has not driven the car on a public highway cannot be suspended for drunk driving.
STATUTES OF LIMITATIONS IN FLORIDA A misdemeanor charge of DUI must be filed within a certain period of time (which varies between states) of the date of offense, or the charges will be dismissed outright.
WEAVING INSIDE THE LANES IS NOT ILLEGAL IN FLORIDA weaving without crossing any lines is not a violation of the law, and a vehicle cannot be stopped for that reason.
 
Problem
BAD WEATHER IN FLORIDA Weather reports establishing high winds, low visibility, and other conditions are available to explain poor driving or poor balance.
BREATH MACHINE NOT PROPERLY OPERATED IN FLORIDA The manufacturers of breath testing devices have specified protocols, which must be followed for a breath result to be valid. Failure to follow these requirements will result in improper readings.
BREATH TEST DEVICE NOT APPROVED IN FLORIDA A breath-testing instrument must be listed on the Federal List of Approved Breath Evidential Instruments and the ISP approved list of Devices, or the results are inadmissible.
BREATH TEST OPERATOR LICENSE EXPIRED IN FLORIDA Most states require that a Breath Test Operator must possess an unexpired operator’s license, or the breath test result is inadmissible.
BREATH TEST OPERATOR UNLICENSED IN FLORIDA Most states require a Breath Test Operator to possess a valid, unexpired operator’s license, or the breath test result is inadmissible.
BREATH TESTING IS INACCURATE IN FLORIDA virtually all experts concede that one breath test alone is unreliable. Breath testing is subject to various inaccuracies, including a variance as much s +/- 12.5%, non-specificity for ethanol, etc.
BREATHALYZER MACHINE MALFUNCTIONS IN FLORIDA Most states specify that if there is a malfunction or repair of the breath test instrument within a certain period of time before or after a suspect’s breath test, the results of the suspect’s test are presumed invalid.
FAILURE TO CONDUCT OBSERVATION PERIOD IN FLORIDA Most states require that a driver be observed continuously for a minimum period, such as twenty minutes, prior to a breath test in order for the results to be considered admissible and valid.
FAILURE TO RECORD CERTIFICATION TESTS IN FLORIDA the failure to include the value of the simulator solution used to test breath machines will cause the breath test results to be inadmissible in court against the driver.
FIELD SOBRIETY TEST IMPROPERLY ADMINISTERED IN FLORIDA According to the National Highway and Traffic Safety Administration, improperly administered field tests are not valid evidence of intoxication.
 
Problem
HOSPITAL BLOOD TEST INACCURATE IN FLORIDA Hospital blood tests overestimate a person’s true level by as much as 25% in healthy, uninjured individuals, and are not statistically reliable in severely injured persons.
INTERFERING SUBSTANCES IN FLORIDA Many items contain forms of alcohol, which may cause false results, such as asthma spray, cough drops, paints, fingernail polish. These items can cause the breath results to be invalid.
LACTATE RINGERS IN FLORIDA When hospital staff use lactate ringers during the treatment of a patient, the hospital blood serum results will report falsely elevated, and therefore invalid, readings.
MEDICAL AND HEALTH PROBLEMS IN FLORIDA Medical problems with legs, arms, neck, back and eyes can affect the results of field sobriety tests. Further, other medical conditions can also affect the validity of breath test results.
NON-STANDARDIZED FIELD TESTS ARE INVALID IN FLORIDA neither the Federal Government (NHTSA) nor medical science considers touching your finger to your nose, or saying the alphabet, or counting backwards, as valid sobriety tests.
POLICE BLOOD TEST INACCURATE IN FLORIDA Many times, police blood testing fails to follow prescribed rules of testing, analysis, or preservation recommendations.
PORTABLE BREATH TEST IMPROPERLY ADMINISTERED IN FLORIDA The manufacturers of portable breath testing devices require a minimum of two tests to consider the results evidential in nature.
PORTABLE BREATH TEST INADMISSIBLE IN FLORIDA Most states prohibit the use of portable breath testing results as evidence at trial in a DUI case.
STANDARD FIELD SOBRIETY TESTING IS INACCURATE IN FLORIDA in healthy individuals, the one-leg stand test is only 65% accurate, and the walk-and-turn test is only 68% accurate in determining if a person is under the influence. Those persons with injuries, medical conditions, 50 pounds or greater overweight, and 65 years or older cannot be validly judged by these tests.

Fighting the Administrative Suspension may be the Most Important Part of Your DUI

Your attorney in a misdemeanor DUI case does not generally have a right to take the officer’s deposition prior to trial or motions. In many ways the formal review hearing provides all of the same benefits of a deposition because your attorney can cross-examine all of the witnesses. That testimony can then be typed up into a transcript that can be used at trial or a motion hearing to impeach the officer’s testimony.

Florida law provides for a procedure to enforce noncompliance by a witness with the subpoena issued pursuant to Florida Statute Section 322.2615(6)(b) appears in the next succeeding subsection and reads as follows:

(c) A party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides. A failure to comply with an order of the court shall result in a finding of contempt of court. However, a person is not in contempt while a subpoena is being challenged. See State v Leyva, 65 So 3d 1137, 1138 [Fla Dist Ct App 2011].

Florida Administrative Suspension Laws for DUI

The Florida DUI laws concerning administrative suspension of your driver’s license are tough. Consult an attorney to find out how they can help you.

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The Process to Administrative Suspend your Driver’s License Begins Immediately after your DUI Arrest, so Act Fast!

After the DUI arrest, the officer will take your driver’s license and issue you a citation which contains a 10 day driving permit. During those 10 days you must request a formal review hearing to protect your driver’s license. If you fail to take the important step of demanding the formal review hearing then your driver’s license will be suspended for the following time periods shows in the following tabbed section.

The Hard Suspension Period:

The hard suspension period is the period during the suspension that you cannot drive for any reason. After you have severed the hard suspension period, you can apply for a hardship or “business purpose only” permit that allows you to time to work, school, or church.

  • Breath Test: If you took the breath test, then your Florida driver’s license may be suspended for 6 months with a 30 day hard suspension
  • DUI Refusal: If you refused, then your Florida driver’s license may be suspended for 12 months with a 90 day hard suspension
  • Breath Test: If you took the breath test, then your Florida driver’s license may be suspended for 12 month suspension with a 30 day hard suspension
  • DUI Refusal with a Prior High Breath Test: If you refused the test, and your first DUI suspension was after a breath test, then you will suffer a 12 month suspension with a 90 day hard suspension
  • DUI refusal with a Prior Refusal: If you refused the test, and your first suspension was after a refusal, then you will suffer a 18 month suspension with a 18 month hard suspension.
  • Breath Test: If you took the breath test then you will suffer a 12 month suspension with a 12 month hard suspension.
  • DUI Refusal without a Prior Refusal: If you refused the breath test and if all prior offenses were after a breath test, then may receive a 12 month suspension with a 12 month hard suspension.
  • DUI refusal with a Prior Refusal: If you refused the breath test and one of the prior offenses was after a refusal, then you will suffer a 18 month suspension with a 18 month hard suspension. 

Avoiding or Surviving a Florida DUI: Questions and Answers

How long will I have my temporary driving permit?

Your “temporary permit” or, as it is often referred to, “business purposes only” license is valid at least until the formal review hearing. The date of the formal review hearing will be set by the DMV(Department of Motor Vehicles). In Florida, your hearing will be scheduled about three to four weeks from the date of your arrest.

What happens to my license after the hearing?

Very simply, if we win the DMV hearing, you will get your license back. If we lose, your license will be suspended for at least 6months if you blew over a .08 (the legal limit in Florida). If you refused to blow and this was your first time you have refused, your license will be suspended for a minimum of 12 months. If you have refused to blow before, your license will be suspended for a minimum of 18 months.

It is very important to understand that — unfortunately- most of the time we will lose the DMV hearing. I know that is probably not what you wanted to hear, but this guide is about the TRUTH.

Even if we lose at the formal review hearing with the DMV, it is not all bad news. The great thing about the hearing is that it is like a free deposition. Lawyers use depositions as a discovery tool to gather information. A deposition allows the lawyer to subpoena witnesses to come talk to the lawyer. Everything is recorded and the lawyer gets to ask the witnesses questions, review all the police reports and maintenance information on the breath machine. Basically, the deposition allows the lawyer to uncover any and all weaknesses in the State’s case.  This is unique in Florida because you generally are entitled to depositions only in felony cases (a crime punishable by at least a year and a day in prison). The moral is you should hire a board certified criminal trial lawyer who loves to fight DUI cases immediately to uncover weaknesses in the State’s case against you.

Can I get a hardship license even if we lose the DMV hearing?

The short answer: “Yes – if you are eligible.” You may be eligible for a hardship license if this is your first DUI and you either blew over a .08 or you refused the breath test. If this is your first DUI and you blew over a .08, you can apply for a hardship license after the 30 days of hard-time (no driving). People at the DMV typically call it “hard-time” which just means during that time you cannot drive. You are not eligible for a hardship license during the ” hard-time” no driving period. You must also enroll in the DUI school, and get a hand written copy of your driving record from the clerk’s office to take to the DMV and pay them money.

If this is your first DUI and you refused the breath test, you can apply for a hardship license after 90 days of hard time (no driving). You must also enroll in the DUI school and get a hand written copy of your driving record from the clerk’s office to take to the DMV and pay them money. There are two ways a drivers license can be suspended in a DUI case. First, the DMV can administratively  suspend your driver’s license. Second, a driver’s license can be suspended in a criminal case.

Remember, Drinking and Driving is NEVER a good idea and I urge you to call a friend or take a taxi if you are under the influence. Hopefully you are reading this for information about DUI before you are do it, and it deters you from doing so. But should you be arrested, I created this guide to give you very general information about ways to fight a DUI case in Palm Beach County, FL. Find out more about West Palm Beach and Palm Beach County DUI fees and costs that can result from not fighting the charges. While this guide contains general information on DUI facts and defenses, statistics, and consequences in Florida, no substitute exists for speaking directly with a criminal defense lawyer about the particular facts of your misdemeanor or felony case so that you can receive advice on how to proceed.

Contact us to discuss the criminal offense of a DUI (also known as driving under the influence of alcohol or drugs, drunk driving, driving while intoxicated, operating a vehicle under the influence, impaired driving, buzzed driving, impaired driving or drinking and driving). Our drunk driving lawyers provide free initial consultations over the phone or in the office. Hire a DUI attorney that will fight for the best possible results in your case.

561-203-1609