New Laws on DUI Administrative Suspension Formal Review Hearings

You Or Your Attorney Must Act Within the First Ten Days of Your DUI To Preserve Your Rights Under an Administrative Driver’s License Suspension!

An arrest for DUI in Pinellas, Hillsborough or other Florida counties will usually result in the confiscation of your driver’s license by the law enforcement officer. This is required by Florida Statute §322.2615 and is the beginning of the administrative suspension of your driver’s license. The administrative suspension of your license by the Department of Motor Vehicles (DMV) is separate and distinct from the criminal charge of DUI that you will be going to court for. The length of an administrative suspension for DUI varies depending upon the nature of the DUI and the past history of the driver. For example, a first time DUI arrest in which the driver agreed to give a breath sample that resulted in an .08% or higher blood alcohol reading will result in a six (6) month driver’s license suspension, the first thirty (30) days of which will be a “hard” suspension, during which no hardship work or business purposes permit will be allowed. For a second or greater DUI administrative suspension there will be a one year suspension. And the length of the suspensions are longer for those DUI’s in which the driver refused to give a breath sample (or urine or blood, if required by law). For a first time refusal the license suspension is one year, with a ninety (90) day “hard” suspension. New changes to this law, as of July 1, 2013, gives someone who has never before had a DUI Administrative Suspension the option of waiving their rights, explained below, to a Formal Review Hearing to contest the basis for the administrative hearing and to immediately get a “hardship” work or business purposes license, without having to go through the “hard” suspension period.

Even though the administrative suspension is initiated by the police officer who investigated the DUI, there is still a requirement under the U.S. Constitution and Florida law that a driver be given “due process”, or the opportunity to be heard and have both sides of the facts made known and considered before the suspension takes effect.

In the case of a DUI administrative suspension this due process requirement is provided by the issuance of a ten day driving permit by the police officer when the driver’s license is confiscated upon arrest. Each person arrested and charged with a DUI in Florida is normally given a “Florida DUI Uniform Traffic Citation”, which acts as the charging document for the DUI criminal proceedings in traffic court. However, the DUI traffic citation also acts as a temporary ten day driving permit, unless the driver has a previous DUI refusal to provide breath, urine or blood samples in their history. It is very important to keep the DUI Uniform Traffic Citation on the driver’s person while driving during the ten day period, since the Traffic Citation acts as your only driver’s license!

The DUI Traffic Citation also explains that the driver has the right to demand a Review Hearing before the Department of Motor Vehicle’s Bureau of Administrative Reviews within the ten day grace period. As of July 1, 2013, there has been an important change in the law governing these DUI license administrative suspensions. For a first time DUI administrative suspension you now have a choice of waiving the due process right to an administrative review hearing and getting an immediate “hardship license” in the form of either a work purposes or business purposes license. This means that for a first-time DUI you will not have to face either a thirty day “hard” suspension for a breath or blood test over .08% or a ninety day “hard” suspension for a refusal to take a breath, blood or urine test.  In order to prevent the “hard” suspension from automatically taking effect, you must go to the D.M.V. Bureau of Administrative Reviews office in your area before the ten days are up from the date of your DUI and sign a waiver of Formal Review Hearing. You would need to have already enrolled in DUI school and you have to pay a $12 fee for a ”hardship” license hearing, present proof of DUI school enrollment and pay a $200.00 driver’s license re-reinstatement fee. At the “hardship” license hearing the D.M.V. will determine if you are eligible for either a work purposes or business purposes hardship license. Reasons why someone would not be eligible for this immediate “hardship” license would include prior DUI’s, a prior refusal of breath, blood or urine DUI tests or if your driver’s license is suspended for other reasons unrelated to your DUI.

For those drivers accused of a DUI who have had prior DUI’s or prior refusals of alcohol tests, the “hard” suspension period will take effect at the end of the ten day grace period. You would still have the right to request a Formal Review Hearing in the first ten days from your DUI arrest in order to have the D.M.V. review whether the police officer had probable cause to confiscate your driver’s license. It is very important to take advantage of the opportunity for this “due process” review of the administrative suspension which was imposed by the police officer, since it not only would be the only opportunity to fight the suspension, but also in some cases allow for an extension of the driving grace period before the “hard” suspension takes effect.

The DMV Review Hearings for DUI administrative suspensions are held by an employee of the Florida DMV Bureau of Administrative Reviews. For a Formal Review Hearing the DMV must provide copies of the DUI “arrest packet” sent to them by the police agency which charged the DUI. Copies of any police reports, Intoxilyzer breath test results, breath test refusal forms and field sobriety test result forms must be provided to the driver or driver’s attorney prior to the hearing. Witnesses, including the arresting officer, the officer who made the traffic stop and the Intoxilyzer operator can be required to appear and testify under subpeona. The DMV hearing officer will have to consider the following issues in deciding whether to uphold or to dismiss the DUI administrative license suspension:

    • Whether any traffic stop of the driver by police was lawful;
    • Whether police had lawful probable cause that the driver was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances;
    • Whether the driver had a blood alcohol level of 0.08 % or higher,

or, if the driver refused to provide a breath, urine or blood sample as required by law,

  • Whether the driver refused to submit testing after being asked to do so by the police officer, and
  • Whether the driver was told that if he or she refused to submit to testing the privilege to operate a motor vehicle would be suspended for the appropriate periods of time.

In many cases a person who is charged with DUI can receive some benefit from the DMV Administrative Review Hearings process. Whether the administrative license suspension is dismissed completely due to the police or DMV’s failure to follow the requirements of Florida law or procedural requirements, or whether an extension of the initial driving grace period is obtained, there is every reason for a driver charged with DUI to take advantage of the due process afforded by the Review Hearing and no down-side.

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Pinellas Sheriff’s Office Conducting Increased DUI & Traffic Enforcement Over New Year’s 2013 Holiday

Pinellas Deputies Watching For DUI & Reckless Driving

The Pinellas County Sheriffs Department Has announced that it will maintain increased traffic enforcement of the Pinellas County roadways

DUI stop

throughout the New Year’s 2013 holiday. In addition they have announced that they will be continuing periodic DUI roadblocks at various locations throughout Pinellas County throughout the New Year 2013. A DUI roadblock, or “sobriety checkpoint”, is a location chosen by law enforcement on the public roads where they station several officers in order to wave over certain vehicles which drive up to that point. Among the officers stationed at a DUI roadblock are typically DUI investigators, Intoxylizer breath-test operators and drug-detection K-9 unit. The locations and times of the roadblocks are typically posted by the Sheriffs Office on their website ahead of time and reported in the local news media.

Because the cars and drivers at a DUI roadblock are being ordered to stop by the police usually without any advance reasonable suspicion or probable cause of illegal activity, the courts have ruled that the Fourth Amendment of the U.S. Constitution requires that the police operate the DUI roadblocks under specific vehicle selection procedures, duty assignments, detention techniques, and procedures for the disposition of vehicles which limit the discretion of the officers at the road block. The danger which the courts want to avoid is having police set up a roadblock and then only stop vehicles whose drivers look suspicious or otherwise don’t fit the officers’ idea of a model citizen.

In order to avoid giving police the opportunity to pick and choose who gets pulled over without any legal basis whatsoever, the courts require that each police agency setting up and running a DUI roadblock must prepare in advance specific written guidelines which detail a set of neutral criteria which will determine which cars get stopped for further investigation. See Guy v. State of Florida, 993 So.2d 77 (2008). Typically these criteria involve directions that each third, fourth, fifth or other number of vehicles will be pulled aside for investigation. The criteria cannot allow for officers at the scene of the roadblock to use their discretion in choosing which drivers get investigated.

While the Sheriff’s Office in Pinellas County has increased the use of DUI roadblocks this holiday season, they are often used year-round by other police department also. Many drivers are typically arrested during a DUI roadblock for crimes ranging from DUI, Driving While Licence Suspended, Drug Possession or even outstanding arrest warrants. If you or someone you know has been arrested at a DUI roadblock, you should contact an experienced criminal attorney to advise whether there are reasons to bring a motion to suppress or to dismiss, or issues which may mitigate the sentence in the case.

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Tampa Bay Area Traffic Tickets and Out of State Visitors

What Can the Out of State Tourist or Visitor Do When They Get a Traffic Citation in the St. Petersburg, Tampa or Clearwater Area?

Out-of-state convictions for traffic offenses will normally count against you on your home state driving record as well as on your insurance. Most states in the United States belong to the Drivers License Compact and the Non-Resident Violator Compact which are agreements by which the states agreed to share information on traffic offenses through a computerized database.  There are many things that an experienced attorney can do for a client’s traffic ticket other than the obvious of fighting it in a trial. In Florida a judge has the ability to prevent a driver’s insurance from being affected by the ticket by withholding adjudication of the ticket and thereby keeping points off of the driver’s record. In addition, there are sometimes legal issues which an attorney would be able to handle without the necessity of the driver actually appearing in court that could lead to dismissal or reduction of the ticket. Also, many people don’t realize that for a traffic infraction in Florida anyone who has an attorney representing them never has to show up in court unless they choose to, for instance in order to testify. Anyone who receives a traffic ticket whether in-state or out-of-state should always find an experienced attorney who lives in the jurisdiction with the ticket was issued to assist them with the ticket in order to avoid long-term and possibly severe consequences to their drivers license record and insurance premiums.  Attorney Garry Potts handles many traffic citation cases in the Tampa Bay area, including those received by out of state tourists and visitors to Clearwater, Tampa, St. Petersburg and the surrounding areas.  In most cases Mr. Potts can be retained by telephone and the ticketed person never has to return to Florida for court.  Reach Attorney Garry Potts at (727) 538-4166.

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New Laws on DUI Bureau of Administrative Reviews Formal Review Hearing

Clearwater, St. Petersburg or Tampa DUI Administrative Suspension – Attorney Garry Potts Handles the DMV Hearing as Part of the DUI Representation

You Or Your Attorney Must Act Within the First Ten Days of Your DUI To Preserve Your Rights Under an Administrative Driver’s License Suspension!

An arrest for DUI in Pinellas, Hillsborough or other Florida counties will usually result in the confiscation of your driver’s license by the law enforcement officer.  This is required by Florida Statute §322.2615 and is the beginning of the administrative suspension of your driver’s license.  The administrative suspension of your license by the Department of Motor Vehicles (DMV) is separate and distinct from the criminal charge of DUI that you will be going to court for.  The length of an administrative suspension for DUI varies depending upon the nature of the DUI and the past history of the driver.  For example, a first time DUI arrest in which the driver agreed to give a breath sample that resulted in an  .08% or higher blood alcohol reading will result in a six (6) month driver’s license suspension, the first thirty (30) days of which will be a “hard” suspension, during which no hardship work or business purposes permit will be allowed.  For a second or greater DUI administrative suspension there will be a one year suspension.  And the length of the suspensions are longer for those DUI’s in which the driver refused to give a breath sample (or urine or blood, if required by law).  For a first time refusal the license suspension is one year, with a ninety (90) day “hard” suspension.  New changes to this law, as of July 1, 2013, gives someone who has never before had a DUI Administrative Suspension the option of waiving their rights, explained below, to a Formal Review Hearing to contest the basis for the administrative hearing and to immediately get a “hardship” work or business purposes license, without having to go through the “hard” suspension period.

Even though the administrative suspension is initiated by the police officer who investigated the DUI, there is still a requirement under the U.S. Constitution and Florida law that a driver be given “due process”, or the opportunity to be heard and have both sides of the facts made known and considered before the suspension takes effect.

In the case of a DUI administrative suspension this due process requirement is provided by the issuance of a ten day driving permit by the police officer when the driver’s license is confiscated upon arrest.  Each person arrested and charged with a DUI in Florida is normally given a “Florida DUI Uniform Traffic Citation”, which acts as the charging document for the DUI criminal proceedings in traffic court.  However, the DUI traffic citation also acts as a temporary ten day driving permit, unless the driver has a previous DUI refusal to provide breath, urine or blood samples in their history.  It is very important to keep the DUI Uniform Traffic Citation on the driver’s person while driving during the ten day period, since the Traffic Citation acts as your only driver’s license! 

The DUI Traffic Citation also explains that the driver has the right to demand a Review Hearing before the Department of Motor Vehicle’s Bureau of Administrative Reviews within the ten day grace period.  As of July 1, 2013, there has been an important change in the law governing these DUI license administrative suspensions.  For a first time DUI administrative suspension you now have a choice of waiving the due process right to an administrative review hearing and getting an immediate “hardship license” in the form of either a work purposes or business purposes license.  This means that for a first-time DUI you will not have to face either a thirty day “hard” suspension for a breath or blood test over .08% or a ninety day “hard” suspension for a refusal to take a breath, blood or urine test.  However, by waiving the right to a Formal Review Hearing you accept the suspension and waive your right to contest it in exchange for not having to endure the “hard” suspension period of no driving at all.  In order to prevent the “hard” suspension from automatically taking effect, you must go to the D.M.V. Bureau of Administrative Reviews office in your area before the ten days are up from the date of your DUI and sign a waiver of Formal Review Hearing.  You would need to have already enrolled in DUI school and you have to pay a $12 fee for a “hardship” license hearing, present proof of DUI school enrollment and pay a $200.00 driver’s license re-reinstatement fee.  At the “hardship” license hearing the D.M.V. will determine if you are eligible for either a work purposes or business purposes hardship license.  Reasons why someone would not be eligible for this immediate “hardship” license would include prior DUI’s, a prior refusal of breath, blood or urine DUI tests or if your driver’s license is suspended for other reasons unrelated to your DUI.

For those drivers accused of a DUI who have had prior DUI’s or prior refusals of alcohol tests, the “hard” suspension period will take effect at the end of the ten day grace period.  You would still have the right to request a Formal Review Hearing in the first ten days from your DUI arrest in order to have the D.M.V. review whether the police officer had probable cause to confiscate your driver’s license.  It is very important to take advantage of the opportunity for this “due process” review of the administrative suspension which was imposed by the police officer, since it not only would be the only opportunity to fight the suspension, but also in some cases allow for an extension of the driving grace period before the “hard” suspension takes effect.

The DMV Review Hearings for DUI administrative suspensions are held by an employee of the Florida DMV Bureau of Administrative Reviews.  For a Formal Review Hearing the DMV must provide copies of the DUI “arrest packet” sent to them by the police agency which charged the DUI.  Copies of any police reports, Intoxilyzer breath test results, breath test refusal forms and field sobriety test result forms must be provided to the driver or driver’s attorney prior to the hearing.  Witnesses, including the arresting officer, the officer who made the traffic stop and the Intoxilyzer operator can be required to appear and testify under subpeona.  The DMV hearing officer will have to consider the following issues in deciding whether to uphold or to dismiss the DUI administrative license suspension:

    • Whether any traffic stop of the driver by police was lawful;
    • Whether police had lawful probable cause that the driver was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances;
    • Whether the driver had a blood alcohol level of 0.08 % or higher,

or, if the driver refused to provide a breath, urine or blood sample as required by law,

  • Whether the driver refused to submit testing after being asked to do so by the police officer, and
  • Whether the driver was told that if he or she refused to submit to testing the  privilege to operate a motor vehicle would be suspended for the appropriate periods of time.

In many cases a person who is charged with DUI can receive some benefit from the DMV Administrative Review Hearings process.  Whether the administrative license suspension is dismissed completely due to the police or DMV’s failure to follow the requirements of Florida law or procedural requirements, or whether an extension of the initial driving grace period is obtained, there is every reason for a driver charged with DUI to take advantage of the due process afforded by the Review Hearing and no down-side.

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Pinellas County DUI Roadblocks In Use For The Holiday Season

Pinellas DUI Checkpoints – This Christmas & New Year Season You Better Not Drive – Drunk!

DUI stopThis Holiday Season 2011 the Pinellas County Sheriffs Department has been setting up DUI roadblocks at various locations throughout Pinellas County.  A DUI roadblock, or “sobriety checkpoint”, is a location chosen by law enforcement on the public roads where they station several officers in order to wave over certain vehicles which drive up to that point.  Among the officers stationed at a DUI roadblock are typically DUI investigators, Intoxylizer breath-test operators and drug-detection K-9 units.  So far this year the Pinellas County Sheriffs Office has conducted these road blocks at locations on Alt. 19 in Palm Harbor, US 19 North in Clearwater, 137th Avenue Circle,  Madeira Beach and Ulmerton Road in Clearwater.  The locations and times of the roadblocks are typically posted by the Sheriffs Office on their website ahead of time and reported in the local news media.

Because the cars and drivers at a DUI roadblock are being ordered to stop by the police  usually without any advance reasonable suspicion or probable cause of illegal activity, the courts have ruled that the Fourth Amendment of the U.S. Constitution requires that the police operate the DUI roadblocks under specific vehicle selection procedures, duty assignments, detention techniques, and procedures for the disposition of vehicles which limit the discretion of the officers at the road block.  The danger which the courts want to avoid is having police set up a roadblock and then only stop vehicles whose drivers look suspicious or otherwise don’t fit the officers’ idea of a model citizen.

In order to avoid giving police the opportunity to pick and choose who gets pulled over without any legal basis whatsoever, the courts require that each police agency setting up and running a DUI roadblock must prepare in advance specific written guidelines which detail a set of neutral criteria which will determine which cars get stopped for further investigation.  See Guy v. State of Florida, 993 So.2d 77 (2008).  Typically these criteria involve directions that each third, fourth, fifth or other number of vehicles will be pulled aside for investigation.  The criteria cannot allow for officers at the scene of the roadblock to use their discretion in choosing which drivers get investigated.

While the Sheriff’s Office in Pinellas County has increased the use of DUI roadblocks this holiday season, they are often used year-round by other police department also.  Many drivers are typically arrested during a DUI roadblock for crimes ranging from DUI, Driving While Licence Suspended, Drug Possession or even outstanding arrest warrants.  If you or someone you know has been arrested at a DUI roadblock, you should contact an experienced criminal attorney to advise whether there are reasons to bring a motion to suppress or to dismiss, or issues which may mitigate the sentence in the case.

 

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DUI Sentences in Pinellas, Clearwater, St. Petersburg

DUI Penalties, Fines and Costs Can Be Harsh Under Florida Law

In Pinellas County there are approximately eight County Court Criminal Judges who may preside over your DUI case.  Your Pinellas County DUI case could be assigned to one of three courthouses:

  1. North Pinellas County Traffic Court, 29582 U.S. Hwy 19 North, Clearwater, FL 33761, if your DUI arrest occurred in the Clearwater, Palm Harbor areas north of Ulmerton Road;
  2. South Pinellas County Traffic Court, 1800 66th Street North, St. Petersburg, FL 33710, if your DUI occurred in the South Pinellas County / St. Petersburg area south of Ulmerton Road;
  3. Pinellas Criminal Courts Complex, 14250 49th Street North, Clearwater, FL 33762, if you have accompanying drug or other non-traffic criminal charges with your DUI, or if you wish to request a jury trial for your DUI, you will have your case transferred to one of the several County Court judges at the County Criminal Complex next to the jail on 49th Street.

DUI Costs Can Be Severe

Regardless of which judge you are in front of, you will be facing severe penalties and high fines, in addition to court costs, police investigative costs, costs of prosecution, restitution for any accident damages and additional costs for probation supervision, DUI school, vehicle interlock (breath test ignition locks) costs and costs of reinstating your driver’s license.  Many of these costs are unavoidable; many of the fines can be set at the judge’s discretion within a range.  In order to save you as much money as possible, Attorney Garry Potts will work to convince your judge to impose the lowest fines allowed by law.  He will also work to counsel you in the best way to minimize the time you spend on probation paying probation supervision costs.

A Look At Pinellas DUI Sentences

The Florida Statutes on DUI fines and court costs are very specific regarding the circumstances of each DUI.  Some common DUI scenarios and their possible sentences are:

  • First time DUI with an alcohol test refusal or blood alcohol level less than .15% – Minimum fine and costs of $983, up to $1,483; up to 12 months probation; from 6 to 12 months driver’s license revocation; up to 6 months jail; 10 day vehicle impound; DUI school & recommended alcohol counseling; 50 hours community service; police agency and State Attorney  investigative costs; Victim Impact Panel course, if ordered by court; no alcohol or visiting bars while on probation;
  • First time DUI with a blood alcohol level at or over .15% (or DUI with minor child in car) – Minimum fine and costs of $1,518 up to $2,518; up to 12 months probation; from 6 to 12 months driver’s license revocation; up to 9 months jail; mandatory ignition interlock system in car for at least 6 months; 10 day vehicle impound; DUI school & recommended alcohol counseling; 50 hours community service; police agency and State Attorney  investigative costs; Victim Impact Panel course, if ordered by court; no alcohol or visiting bars while on probation;
  • Second time DUI with an alcohol test refusal or blood alcohol level less than .15% – Minimum fine and costs of $1,518 up to $2,518; up to 12 months probation; 6 to 12 months (if first DUI was over 5 years previous) or 5 year (if within 5 years of first DUI) driver’s license revocation; up to 9 months jail with a MANDATORY 10 day jail sentence (if within 5 years of first DUI); mandatory ignition interlock system in car for one year; 30 day vehicle impound; Advanced Multi-offender DUI school & recommended alcohol counseling; police agency and State Attorney  investigative costs; Victim Impact Panel course, if ordered by court; no alcohol or visiting bars while on probation;
  • Second time DUI with a blood alcohol level at or more than .15% – Minimum fine and costs of $2,558 up to $4,558; up to 12 months probation; 6 to 12 months (if first DUI was over 5 years previous) or 5 year (if within 5 years of first DUI) driver’s license revocation; up to 9 months jail with a MANDATORY 10 day jail sentence; mandatory ignition interlock system in car for 2 years; 30 day vehicle impound; Advanced Multi-offender DUI school & recommended alcohol counseling; police agency and State Attorney  investigative costs; Victim Impact Panel course, if ordered by court; no alcohol or visiting bars while on probation;
  • Third time DUI with an alcohol test refusal or blood alcohol level less than .15%FELONY 3rd degree IF WITHIN 10 YEARS OF LAST DUI – Minimum fine and costs of $2,558 up to $5,558; up to 12 months probation if misdemeanor or 5 years probation if felony; 1 year (if last DUI was over 10 years previous) or 10 year (if within 10 years of last DUI) driver’s license revocation; up to 5 years prison with a MANDATORY 30 day jail sentence if within 10 years of last DUI, or up to 12 months jail if more than 10 years since last DUI ; mandatory ignition interlock system in car for 2 years; 90 day vehicle impound if within 10 years of last DUI or 10 days if over 10 years of last DUI; Advanced Multi-offender DUI school & recommended alcohol counseling; police agency and State Attorney  investigative costs; Victim Impact Panel course, if ordered by court; no alcohol or visiting bars while on probation.
  • Third time DUI with a blood alcohol level at or more than .15%FELONY 3rd degree IF WITHIN 10 YEARS OF LAST DUI – Minimum fine and costs of $4,558 up to $5,558; up to 12 months probation if misdemeanor or 5 years probation if felony; 1 year (if last DUI was over 10 years previous) or 10 year (if within 10 years of last DUI) driver’s license revocation; up to 5 years prison with a MANDATORY 30 day jail sentence if within 10 years of last DUI, or up to 12 months jail if more than 10 years since last DUI ; mandatory ignition interlock system in car for 2 years; 90 day vehicle impound if within 10 years of last DUI or 10 days if over 10 years of last DUI; Advanced Multi-offender DUI school & recommended alcohol counseling; police agency and State Attorney  investigative costs; Victim Impact Panel course, if ordered by court; no alcohol or visiting bars while on probation.

Fourth time DUI’s and over are usually prosecuted as third degree felonies, punishable up to 5 years in prison and require even higher fines and costs and will lead to a permanent driver’s license revocation.  DUI’s involving property damage, serious bodily injury or death are also treated more severely at sentencing.

With 15 years experience serving as a prosecutor in the Pinellas County State Attorney’s Office and over 8 years of DUI criminal defense since, Attorney Garry Potts knows the laws, the court system and procedures to work for you to minimize the penalties and inconveniences if you are facing sentencing on a DUI.  If you have a DUI or traffic ticket in the St. Petersburg area, email or call Attorney Garry Potts at (727) 538-4166 now for a free consultation.

 

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Attorney for St. Petersburg DUI | St. Pete, Clearwater, Tampa

DUI Cases in St. Pete

DUI Lawyer Garry Potts handles DUI and other traffic cases in the St. Petersburg Traffic Court.  With offices conveniently located in mid-Pinellas County, just off Ulmerton and easily accessible  from U.S.19, I-275 and Roosevelt Blvd., the Law Offices of Garry L. Potts are easily in reach of the Tampa Bay area’s criminal courthouses.

St. Petersburg South County Traffic Court is located at 1800 66th Street North, St. Petersburg, FL 33710 in the Tyrone Mall area.  Most traffic citations and DUI cases which occur south of Ulmerton in Pinellas County are assigned to the St. Petersburg Traffic Court for arraignment.  There are a full-time County Judge and an Assistant State Attorney prosecutor located there to handle the many traffic-related cases that pass through that courthouse every month.  Because they tend to specialize in DUI and traffic-related cases, and because of the volume of the caseload, it is often desirable to keep your DUI case at the traffic court location.  However, in some instances it may be preferable to seek to transfer your case to the Pinellas County Criminal Courts Complex, on 49th Street.  If you decide to fight your criminal charge and require the State to prove the charge before a jury, your case will have to be transferred to the Criminal Courts Complex for a jury trial.

In many cases the familiarity of the Judge and the prosecutor with DUI and other traffic offenses will make it desirable to keep the case at the traffic court  in order to work out the best sentencing agreement for a plea, or to attempt to have the charge reduced to a lesser charge.  An experienced criminal and DUI lawyer like Garry Potts will be able to review your case and advise you of the best ways to defend the charge or to negotiate an outcome that will allow you to get it behind you and get on with your life.

If you have a DUI or traffic ticket in the St. Petersburg area, call Attorney Garry Potts at (727) 538-4166 or email him now for a free consultation.

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DUI & Blood Alcohol – How Much is Too Much?

In previous articles we’ve gone over the two ways that the police and prosecutors use measurements of blood alcohol concentration (BAC) to prove a DUI charge. One is the well-known “over the limit” Unlawful Blood Alcohol law which makes it illegal to be in control of a vehicle while your blood contains .08% or more of alcohol. The other is through the presumption of impairment of normal faculties which the law provides for anyone whose BAC is .08% or more. Because the police and prosecutors rely heavily upon BAC measurements, it would be helpful to be able to supplement your self-evaluation of your condition of impairment for driving by being able to estimate in some way the point at which your drinking has reached the legal limit. Thus it is extremely important to understand how the amount that you drink and the timing of any drinks you have consumed are related to your blood alcohol level and your ability to drive safely and legally.

Don’t Leave Without Your Normal Faculties

Even though the police and the prosecutor may rely heavily on BAC measurement results, as taken by either a breath-test or a blood-draw, you should not use that as your only, or even your most important standard for making a decision whether or not to drive! Remember that what is really important for operating a vehicle is not some number from a machine, but your reaction time, coordination and ability to think clearly. These attributes are referred to as “normal faculties” in Florida DUI law. You may not and should not operate a vehicle if you have drunk alcohol to the extent that your normal faculties are impaired. The law defines normal faculties as “the ability to see, to hear, to walk, to talk, to judge distances, to drive, to make judgments, to act in emergencies and to normally perform the many mental and physical tasks of daily life.”

Before making the decision whether or not to drive, you must decide whether you are impaired from alcohol. You can ask others, hopefully sober themselves, for their opinion or you can make your own self assessment of your coordination and balance. Probably the best thing to keep in mind in deciding whether you are impaired from alcohol is to remember one wise rule: If you feel buzzed you shouldn’t drive! In other words, if you know that you are feeling the effects of your drinks, then regardless of what you think your BAC may be, you should not attempt to drive. However, even if you believe you feel fine, you may like to know if the numbers of drinks you have had have put your BAC over the legal limit.

Remember in School When They Said Math Would Be Important Some Day?

A mathematical formula which is very important to DUI cases is used to calculate the blood alcohol concentration which results from a given amount of alcohol drank over a known period of time by a person. Like most mathematical equations, it can be used in reverse to calculate an estimate of the number of drinks someone must have consumed in order to achieve a particular BAC. This formula has developed over the past century and has been modified over time to reflect better understanding of how the human body absorbs and eliminates alcohol.

The most widely used variation of this formula is called “Widmark’s Formula” after the Swedish scientist who initially developed it in the 1930’s:

C [mg/g] = A/(p [kg] x r).

In other words, the blood alcohol concentration (C) equals the amount of pure alcohol drank divided by the drinker’s weight (in kilograms) multiplied by the percent of body weight which is not bone or fat. In order to arrive at a BAC for a period of time after the alcohol had been consumed, it is necessary to subtract the amount of alcohol which is eliminated from the body over that period of time. Modern versions of Widmark’s formula also take into account other physiological factors, as well as trying to individualize the formula for different age, gender and body types.

As bad as sitting at a bar attempting to calculate your BAC from that equation may be, it is even worse when you consider that you would also have to calculate the amount of pure alcohol present in whatever your beverage(s) of choice had been. And the arithmetic doesn’t get any easier as you keep drinking!

O.K., Enough Math – Where’s the Short-Cut?

Even the most modern version of this equation makes assumptions about a person’s body and alcohol absorption and elimination rates which are average estimates. Therefore, it is highly unlikely that any calculation of BAC based upon the number of drinks consumed would be exactly accurate for your body or any other individual. However, it is possible to remember a simple rule which would give you an idea of where your BAC could stand in relation to the Florida legal limit of .08% BAC. A conservative estimate of where your drinking has put your blood alcohol level requires that you be able to accurately keep track of two things: the number of drinks you have had; and the number of complete hours that have passed since you started drinking (these must all be hours in which at least one drink was consumed – if you start drinking in the morning and then stop and later start drinking that night, no fair counting the hours in between!).

In order to count your drinks it is very important that you be accurate. One drink would equal a 12 ounce American beer, a drink made with an ounce and a half of 80 proof liquor, or 4 ounces of non-fortified wine. If you drink imported beer, 180 proof liquor or other drink stronger than those mentioned above, you must count each drink as two drinks. In addition, if you suspect that the bartender is pouring extra strong drinks for you (very common in bars where you get to know the staff) you need to count each drink as two drinks.

When you want to see if your BAC is near the legal limit, you should total up the number of full hours since you started drinking (and never stopped). Don’t count forty-five minutes as an hour, this needs to be full hours. Also, this calculation assumes that you began drinking with a zero BAC. So, you cannot use this simplified method if you already had alcohol in your body before you “started drinking”. Since alcohol is continuously being eliminated from your body by being metabolized and by leaving through your breath and urine on average rate of about equal to the amount of alcohol in one standard drink per hour, you can subtract the total hours since you started drinking from your total number of drinks. The result will be the approximate number of drinks worth of alcohol that remain in your body. From the number that remains you can get a conservative idea whether you would be close to the legal limit based upon the following:

Conservative Estimate of Drinks Remaining In Body to Reach Legal Limit – .08%

Weight Female Male
100 pounds 1 ½ drinks remaining N/A
125 – 140 pounds 2 drinks remaining N/A
150 – 160 pounds 2 ½ drinks remaining 3 drinks remaining
175 pounds N/A 3 ½ drinks remaining
200 pounds N/A 4 drinks remaining

For a woman who weighs 100 pounds, 1 ½ drinks remaining would put her just under the legal limit of .08; for 125 pounds, 2 drinks remaining would put her at just about the legal limit; for 140 pounds to 160 pounds, 2 ½ drinks would leave her close to the legal limit.

For men who weigh 150 pounds, 3 drinks remaining in the body would leave the BAC close to the legal limit; a 175 pound man with 3 ½ drinks remaining would be close to the legal limit and a 200 pound man could have 4 drinks remaining before being close to the legal limit.

For example, let’s say you were to start drinking at 5:00 pm and had two Belgium ales (which are stronger than American beer) and then switched to standard size vodka martinis and drank three of them until time to leave at 9:00 pm. You could figure out where your BAC was in relation to the legal limit by totaling your drinks – the ales count as two each – and getting the result of 4 + 3 = 7. Then count the hours which you have been drinking continuously, four, and subtract that from your total drinks, 7 – 4 = 3. From the table, you can see that all of the women weighing from 100 pounds to 160 pounds would be in danger of being over the legal limit, while men weighing 150 to 160 pounds would be at or close to the limit. So, all you would have to do is remember the number of drinks that applied to your sex and weight and hopefully, be able to count and remember while you are drinking.

The Best Advice? If You Think You Need This Calculation – Don’t Drive!

Remember, this calculation should not be the deciding factor in whether or not you drive. As discussed in previous articles and above, just because a person is not at or close to the legal limit does not mean that they are fit or legal to drive. DUI can be committed and proven based solely upon impairment of normal faculties alone, even if the BAC is less than .08%. It is quite possible and even normal for someone to have a BAC less than the .08% legal limit and still be too intoxicated and impaired from alcohol to drive legally or safely. So be smart and if you are drinking, use a designated driver or a taxi and don’t drive!

In every Florida and Clearwater, St. Petersburg and Tampa Bay area DUI case, there are many factors which need careful analysis by an experienced and aggressive DUI attorney. Sometimes what might seem to be an “open and shut” DUI case may actually be incapable of proof beyond a reasonable doubt by the prosecutor and could result in a dismissal, a not-guilty verdict or a reduction of the DUI charge to a lesser offense or more favorable DUI sentencing by the judge. If you or someone you know is facing a DUI in the Tampa Bay area, call the Office of Clearwater DUI Attorney Garry Potts at (727) 538-4166 today to schedule a free consultation.

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DUI Elements Explained – Unlawful Blood Alcohol Level (UBAL) DUI

You Have to Know Your Limits

In addition to proving a DUI based upon impaired normal faculties, Florida’s DUI law also sets an absolute limit on BAC at which no one may legally operate a vehicle, regardless of their impairment level. That limit, in Florida, is set at .08% BAC or more, at the time of driving. This is a separate way to commit, and for the State to prove, a DUI and it is called an Unlawful Blood Alcohol Level (UBAL) DUI. In addition, there are enhanced penalties for anyone operating a vehicle at a BAC of .15% or more. In Florida, a breath or blood test result could result in nearly absolute proof of the crime of DUI and lead to substantially harsher penalties than for a mere impaired faculties DUI, making it even more important to stay aware of how drinking effects your blood’s alcohol level.

You Already Consented

The primary means of enforcing DUI laws in Florida, and many other states, is through chemical testing of a suspected driver’s breath, blood or urine. The results of these tests enable the police and prosecutor to show evidence of either Unlawful Blood Alcohol Level DUI, or impaired driving DUI through the statutory presumptions. In Florida it is a pre-requisite to getting a driver’s license that you first consent to take any alcohol or drug test that is required by law. That consent, called an “implied consent”, is written on the bottom of your license and states that you agree to take any tests for alcohol or chemical substances which are required by law. The law requires a breath and / or urine test if a police officer has probable cause to believe that you have been driving, or in actual physical control of, a vehicle while under the influence of alcohol to the extent that your normal faculties are impaired. If you are, for some reason, unable to give a breath test, you can be required to submit to a blood draw in order to test your blood alcohol and chemical substance levels. Blood tests are also required by law in cases of accidents involving death or serious bodily injury.

Even though you have already consented to giving breath, blood or urine for DUI testing when you applied for and received your license, you will still be given an opportunity to refuse such tests in most cases. Only if the police have probable cause to suspect you of DUI in an accident involving death or serious bodily injury does the law allow the police to use force in order to draw your blood. Otherwise, you can refuse to give samples of your breath, blood or urine. However, a refusal to provide such samples will result in greater penalties than if you provided them. The first time in your life that you refuse a lawful request by police for a breath, blood or urine test your driver’s license will be administratively suspended by the Florida Department of Motor Vehicles for one year, with a ninety-day “hard” suspension before you are eligible for a hardship work or business-purposes license. The second time in your life that you refuse the tests you will receive an eighteen month suspension, with no chance of getting a hardship license. In addition, the second and subsequent refusals are also criminal charges, punishable as a first degree misdemeanor (same as a standard DUI, maximum of up to one year jail or probation). Therefore, the decision whether to submit to DUI chemical testing is very important and should not be taken lightly.

Under the Law Everyone is Average

The use of BAC to provide evidence of a DUI was made possible by the development of measuring instruments which are capable of determining the amount of alcohol in an individual’s blood. Although all are machines and thus capable of erroneous results if not calibrated, maintained or operated properly, the most accurate of these test instruments measure alcohol content directly from a blood sample. At times, Florida law allows the police to request, or obtain a blood sample from drivers suspected of DUI. The request for a blood sample generally occurs when a DUI suspect is unable to provide a breath sample, or when the DUI investigation results from an accident causing death or serious bodily injury. Otherwise, because drawing blood is considered somewhat intrusive and a burden, the police have come to rely upon machines which attempt to measure blood alcohol from a sample of breath. Mathematical formulas have been developed which determined a ratio of alcohol in the blood to alcohol in the breath. In Florida law, that ratio is set at 1 unit of blood to 2100 units of breath. In other words, breath test machines, by law, all work under the assumption that the amount of alcohol present in 1 unit of blood is the same amount that is present in 2100 units of breath. The fact that this is a mere average which is applied to every person necessarily results in inaccurate results for some people whose metabolism are not average. This potential inaccuracy is another very important factor in defending a DUI case based upon breath test results and the subject of a future article.

What Goes in Must Come Out

Another factor in blood alcohol DUI cases which is very important to review for a defense at trial is the absorption and elimination of alcohol in your body. Alcohol enters the body once it is drunk through the linings of the esophagus, stomach and small intestines. Roughly 80% of the alcohol that ends up in the blood is absorbed from the small intestine. Before it enters the intestine, the alcohol first must pass through your stomach. If you have not eaten recently, the alcohol will generally pass through the stomach more quickly. Consuming food while or just before you drink will slow down its passage to the intestine and also slow its absorption into the blood stream. Thus, the amount of time for the alcohol in your drink to make its way to your blood stream can vary from between thirty minutes on an empty stomach to a couple of hours on a full stomach.

In addition, alcohol is continuously being eliminated from your body by being metabolized and by leaving through your breath and urine. The rate of elimination varies from person to person, depending upon physical factors and metabolism, but on average is about equal to the amount of alcohol in one standard drink per hour. There is little that can be done to increase this rate, so dancing or other physical exertion will generally not lessen the time that you are intoxicated. So, even as you are drinking and your body absorbs alcohol into your blood stream, it is also getting rid of about one drink’s worth per hour by either burning it off or eliminating it through your breath and urine.

It’s All a Matter of Timing

The significance of the absorption – elimination roller-coaster ride that alcohol takes in your body is that your blood alcohol content is continually changing over time. Thus, the blood alcohol reading that you get when you take a breath, blood or urine test at the request of the police will probably not be the same blood alcohol level that you had when the police saw you driving and pulled you over. And it is the alcohol content of your blood at the time you were driving that is legally significant for proof of a DUI, not the blood alcohol level nearly an hour later at the police station where you took the breath test! That is why an experienced, knowledgeable DUI attorney will ask you to recall not only the time period and number of drinks you may have had, but also about your food consumption before, during and after you drank. This delayed timing of the level of alcohol in your blood can also be deceptive in your self-evaluation of your condition of impairment for driving, since you can easily become more impaired even several minutes after you finish drinking and while you are already driving. Thus it is extremely important to understand how the amount that you drink and the timing of any drinks you have consumed are related to your blood alcohol level and your ability to drive safely and legally. In the next post we will discuss methods to keep track of how your drinks are effecting your blood alcohol content.

In every Florida and Clearwater, St. Petersburg and Tampa Bay area DUI case, there are many factors which need careful analysis by an experienced and aggressive DUI attorney. Sometimes what might seem to be an “open and shut” DUI case may actually be incapable of proof beyond a reasonable doubt by the prosecutor and could result in a dismissal, a not-guilty verdict or a reduction of the DUI charge to a lesser offense. If you or someone you know is facing a DUI in the Tampa Bay area, call the Office of Clearwater DUI Attorney Garry Potts at (727) 538-4166 today to schedule a free consultation.

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DUI Elements Explained – Impaired Driving Under the Influence

In Florida, the criminal offense of Driving Under the Influence (DUI) can be committed in more than one way.  At its core, DUI laws seek to prevent the operation of vehicles by those who have had their reaction time, coordination and ability to think clearly impaired by alcohol or chemical substances.  Thus, for any DUI case, the prosecution must be able to prove beyond a reasonable doubt that:  1) the accused person has ingested alcohol or drugs; 2) that it has had an effect, or influence, on them; 3) to the extent that their abilities, or “normal faculties” have become impaired.  Because determining and later proving the extent of a person’s impairment of “normal faculties” due to alcohol can be subjective and sometimes difficult, the law also allows a DUI charge to be proven based upon the amount of alcohol in the body, as measured by a percentage by weight of alcohol in the blood, or breath.  It thus becomes important for anyone who chooses to drive a vehicle after drinking alcohol to be able to make a clear judgment as to whether they are over the “legal limit” before deciding to drive, or at times, whether to consent to a breath or blood test.

Proof of Impairment DUI – Walking the Walk and Talking the Talk

One way that a DUI may be proven in Florida is called an “impaired driving” DUI.  The Florida DUI statute, section 316.193(1)(a), prohibits driving while under the influence of alcohol or a controlled or chemical substance “to the extent that the person’s normal faculties are impaired”.  The law defines normal faculties as “the ability to see, to hear, to walk, to talk, to judge distances, to drive, to make judgments, to act in emergencies and to normally perform the many mental and physical tasks of daily life.”  There are generally two ways that police officers and prosecutors use to provide proof of impairment from alcohol or drugs by a driver:  1) how you act; and, 2) what you tell them.

Often the most important evidence used by the authorities to prove impairment DUI is the information given to them by the accused driver.  As part of a standard DUI investigation, law enforcement officers in Florida follow fairly standard procedures and use similar forms.  One form used in a DUI investigation by all police agencies in the Tampa Bay area is called an Alcohol Influence Report (AIR), with various supplemental forms.  These forms guide the officer in a DUI investigation by asking for certain questions and observations to be made of the DUI suspect.  For example, nearly every form calls for certain questions to be asked of the suspect which inquire as to whether alcoholic beverages have been consumed, what type and how many drinks.  There are further questions as to the time and place the drinking occurred.  A driver in Florida is not required to answer these questions!  Although you may not, and should not, lie to the police during an official investigation, the only questions you are required by law to answer are to provide your truthful name, date of birth, address and, if involved in an accident, an account of how the accident occurred, solely for purposes of an accident investigation and not as part of a criminal DUI investigation.  Despite this, many drivers volunteer their drinking history to the investigating officer, including the number of drinks and the name of the bar where their credit card slips can be located to further assist the prosecutor in the tally of alcohol consumption.  (If this sounds unlikely to happen, rest assured that the author has, on more than one occasion while he was a prosecutor in Pinellas County, subpoenaed credit card receipts from bars in order to aid in proving an otherwise weak DUI case).  The value to the police and prosecution of the suspect’s own admissions as to consuming several drinks prior to driving is invaluable for proving a DUI case.

The other main type of evidence in impairment DUI cases comes from the officer’ observations of the suspect driver’s physical characteristics and actions.  The officers typically note such information on standard forms which are used in nearly every DUI case in the Tampa Bay area – odor of breath, speech, attitude, balance exiting the car and walking, and so forth.  The standard forms have checklists for recording observations, such as “bloodshot”, “mumbling”, “unsteady”, “confused” and so forth.  One such DUI Supplement checklist in common use lists over thirty “impaired” observations for possible checking and only six “normal” observations.  Rest assured that during a DUI investigation, the officers are not focused on making you look good!

Another method that law enforcement officers use to collect information and provide proof of impairment for a DUI case is the Field Sobriety Test (FST).  Field Sobriety Tests were developed from research sponsored by the Federal National Highway Traffic Safety Administration (NHTSA) in an attempt to provide pseudo-scientific evidence for what are essentially subjective observations by a police officer of a suspect.  FST’s consist of an eye exam followed by two or three physical tasks. The eye exam given by police officers during a DUI investigation is called the Horizontal Gaze Nystagmus test (HGN) in which the officer will ask you to hold your head still while your eyes follow a light. The officer is looking at your eyes as you move them from side to side in order to detect rapid spasms.  Although alcohol can cause a person’s eyes to spasm while moving them from side to side, there are other causes of these spasms or nystagmus which may be misinterpreted by the officer. At any rate, the results are not recorded or objective and the judge and jury will only have the officer’s word as to what your eyes did during that test. The physical tests consist of the Walk and Turn and One Leg Stand.  Sometimes a police officer will also use the Finger to Nose test.  These tests are designed as “divided attention” tests and meant to distract the person taking them.  They can be difficult to do, especially under the stress of a police investigation by the side of a busy highway and often at night. The instructions for each test are detailed and officers often have learned to say them in a manner that can be somewhat confusing in order to make the DUI suspect appear “impaired”.

Don’t Walk, Don’t Talk

You should politely decline to answer any DUI related questions the officer asks of you (other than ID information as noted above) or to take any of the field sobriety tests. There is no penalty for declining to answer a police officer’s questions.  It is not admissible in court and judges and prosecutors know that the refusal to talk is worthless as evidence. The only penalty for not taking field sobriety tests is that the judge and jury will be told that you refused them, as if that in itself is an indication of your guilty conscience. However, it is easy to explain to a jury or the judge that you are not particularly coordinated and that you didn’t believe you could perform on the side of the road at that time.

How the Legislature Made it Easier to Prove Impairment

Because gathering evidence of someone’s impairment of normal faculties due to ingesting alcohol or other substances can be difficult and subjective, the DUI laws have included the ability to prove impairment by the amount of alcohol present in someone’s blood or breath.  Thus, under Florida’s DUI laws, if a person has a Blood Alcohol Concentration (BAC) of .08% or more, they are presumed by law to be impaired.  If their BAC is .05% or less, the law presumes that they are not impaired.  Between .05% and .08%, there is no presumption and the proof of impairment must rely upon other evidence, such as bad driving, slurred speech, swaying, poor balance and inability to follow instructions or perform tasks requiring divided attention (Field Sobriety Tests, or FST’s).  Therefore, a breath test result could be very important evidence in determining whether a person was too impaired to drive or not.  The decision whether or not to take a breath test is not an easy one to make, especially after a few cocktails!  Breath tests as administered in the Clearwater, St. Petersburg and Tampa Bay areas by Intoxilyzer machines can be a little like playing the tables in Las Vegas.  Future blog posts will talk more about Florida DUI law as it involves Blood Alcohol Concentrations and breath and blood tests.

In every Florida and Clearwater, St. Petersburg and Tampa Bay area DUI case, there are many factors which need careful analysis by an experienced and aggressive DUI attorney.  Sometimes what might seem to be an “open and shut” DUI case may actually be incapable of proof beyond a reasonable doubt by the prosecutor and could result in a dismissal, a not-guilty verdict or a reduction of the DUI charge to a lesser offense.  If a DUI leads to sentencing, an experienced attorney can work to keep the DUI sentence imposed as minimal as allowed by law and to lessen the impact of the DUI on your life and your wallet.  If you or someone you know is facing a DUI in the Tampa Bay area, call the Office of Clearwater DUI Attorney Garry Potts at (727) 538-4166 today to schedule a free consultation.

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