Attorney Christian A. Straile, LLC
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Posts tagged "DUI Lawyer"

DUI Actual Physical Control Not Just Being the Intoxicated Owner

An element the State has to prove in a DUI is that the accused was either driving or in "actual physical control" of the vehicle. Actual physical control sounds simple enough but the question of what is actual physical control has generated some interesting case law. Of note is that if the accused was not driving or the car was not moving, then the State can still prosecute a person having actual physical control.

Arrested for DUI, 10 days for what?

Arrested for DUI? Before going to court, a driver's license will be suspended 10 days after the DUI arrest if the person refused to give a breath sample or sumbmitted to the test and blew over a .08.   As to the license to drive, there are three options (1) request a hearing to reverse the suspension called a Formal Review Hearing, (2) request hearing for an immediate hardship license or (3) do nothing.  The choice to do nothing is a choice to accept a driver license suspension.  The deadline to file an election for a hearing at the Department of Highway Safety and Motor Vehicles (DHSMV) is also the same 10 day period before the suspension is imposed. The DUI citation is a driving permit for those same 10 days.

DUI Refusals

Arrested for DUI?  Refusal to submit a sample of breath, blood or urine is a criminal offense in Florida if the person's license has been suspended in the past for refusing to submit to testing. An officer can request a driver to blow into the breath machine if a person is lawfully arrested. Unfortunately, officers will put people down as having 'refused' a breath test even when a person tries to blow. In the context of urine, stage fright will still be marked as a refusal.

Driving While Under the Influence - Impaired Definition Coming Soon, Maybe

A frustrating issue defending those accused of Driving Under the Influence or DUI, has been the lack of a definition of the word "impaired" in the standard jury instructions. Without a breath, blood or urine result or sample the State of Florida must prove that the person is "impaired" in order to convict a person of DUI.  This is especially true if the accused is DUI by drugs or prescriptions. However, the Florida Supreme Court in issuing jury instructions has sought fit to leave the word "impaired" undefined.

Roadblocks or Roadside Safety Checkpoints

Roadblocks or "Roadside Safety Checkpoints" as they are referred to by law enforcement are legal only if the police follow the rules. Yes, the Constitution does still apply as do the laws of the State of Florida, even though it certainly does not feel like it or a particular law enforcement officer's god complex has raised its ugly head. In order to be legal, they have to have followed several steps including publishing an operational plan, communicating the plan and then actually complying with the operational plan.

Criminal Cases Involving an Auto accident

Auto accidents frequently give rise to criminal cases in addition to civil lawsuits and traffic tickets. For example law enforcement may charge a driver in a car crash with Reckless Driving with Property Damage, Vehicular Manslaughter, DUI Manslaughter, DUI with Serious Bodily Injury, DUI with Property Damage, Leaving the Scene of an Accident, Failure to Render Aid, etc. Vehicular Manslaughter is essentially Reckless Driving with a Death. If law enforcement does not believe a crime was committed, then the driver will be charged with careless driving. (More on the difference between Careless Driving and Reckless Driving)

Jurisdiction to Suspend a Driver's License for Refusal to Submit in a DUI

The Department of Highway Safety and Motor Vehicles ("DHSMV") has jursidcition to suspend licenses for refusal to submit a breath sample, however their jurisdiction must be properly obtained.  A person who is arrested for suspicion of Driving Under the Influence of drugs or alcohol ("DUI") in Florida will be asked to provide a sample of their breath by blowing into an Intoxilyzer 8000. If you refuse to blow, then your license will be suspended but you can challenge the suspension at an administrative hearing at the Department of Highway Safety and Motor Vehicles ("DHSMV"). There are several challenges that can be raised at a DMV hearing.

Traffic stops and vehicle searches

In criminal cases, searches resulting from vehicle stops have been hotly litigated since the automobile became available to the public in mass. Since cars are mobile and not as private as your home, the Supreme Court has interpreted the constitution to afford vehicle searches and seizures less protection.

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