DRUNK DRIVING

I CAN HELP!

Being arrested for a DUI is a difficult experience that can continue to effect your life in many negative ways for years to come. There are so many decisions that must be made, from whether you challenge the administrative driver's license suspension, to filing motions to suppress evidence against you, and even whether to go to trial. I have the skill and training to advise you on how these decisions may impact your ability to drive, your insurance payments, if you will be forced to have an interlock device installed in your vehicle, if you will be convicted of a crime, or if you will go to jail. Defending a DUI can be one of the most complex types of cases around and I have the experience to be able to identify all of the possible ramifications for you. I understand that a DUI arrest can be devastating for your family, job and finances and I will work day and night to help minimize its impact on your life.

During my three years as an Assistant State Attorney in Orange County, I was selected to be a DUI Specialist and served in that position for a year. I have been responsible for hundreds of DUI prosecutions and first-chaired multiple DUI trials. Also during my time as a DUI Specialist, I was the only prosecutor in Orange/Osceola Counties to participate in an Advanced DUI Seminar put on by the Florida Traffic Safety Resource Prosecutor Program, obtaining the most in-depth training on issues pertaining to Breath Testing, Drugged Driving Evaluations, and Forensic Toxicology.

Many challenges to your ability to drive after a DUI arrest are extremely time sensitive so do not wait to call or email for a consultation at 407-274-7501 or seth@sethhymanlaw.com.

DRIVER'S LICENSE
 

There are two types of driver's license suspensions: 1) administrative suspension by the Department of Highway Safety & Motor Vehicles ("DHSMV") and 2) judicial suspension ordered by a Judge during sentencing.

 

When you are arrested for a DUI/DWI, your driver's license will be immediately administratively suspended if you gave a breath sample over 0.08 (6 months if it's your 1st, or 12 months if it's your 2nd+) or if you refused (12 months if it's your 1st, or 18 months if it's your 2nd+). However, the physical DUI/DWI citation written by the Law Enforcement Officer ("LEO") acts as a temporary driver's license for 10 days. Within that 10 days, you have a few choices to make relating to applying for a business purpose only driver's license (also called a hardship license or BPO) and challenging the administrative suspension in a hearing. A BPO allows any driving necessary to maintain livelihood, including driving to and from work, necessary on-the-job driving, driving for educational purposes, and driving for church and for medical purposes.

First DUI/DWI

- You can either immediately apply for a BPO or elect to challenge the suspension in front of a hearing officer. The down side of challenging the suspension is if you lose, then you can't obtain a BPO for 30 days if you gave a breath sample or 90 days if you refused.

Second DUI/DWI

- A "hard suspension" is when you are not allowed to drive at all. A "soft suspension" is when the DHSMV gives you a limited ability to drive in certain circumstance, like a BPO. For a second DUI/DWI, there is a hard suspension of 30 days if you gave a breath sample over 0.08 or 90 days if you refused. Once you have satisfied the 30 day hard suspension, THEN you are able to apply for a BPO  on a blow of 0.08+. BUT if you have a second refusal, you can not get a BPO and your driver's license will be suspended for 18 months. Whether you win or lose the hearing, there are benefits to challenging the suspension. When you elect to go to hearing, the DHSMV gives you a 42 day BPO. If you lose the hearing, your hard suspension begins at the expiration of your 42 day BPO and after your 30 or 90 day hard suspension is over, you can apply for another BPO for the remainder of your suspension period.

Third DUI/DWI

- You can't get a BPO with 2 prior DUI/DWI's (or 2 refusals) so there is an even greater incentive to challenge the suspension at a hearing. If you don't agree with the decision by the hearing officer, you may appeal for a 1st-level review in the Circuit Court, and if you don't agree with their decision, a 2nd-level review is available in the District Court of Appeals ("DCA"). Note that the DCA can only determine if you were given due process and if the Circuit Court followed the law, they will not re-review the facts.

HABITUAL TRAFFIC OFFENDER
 

The DHSMV will designate you a Habitual Traffic Offender ("HTO") if you have any combination of 3 DUI or Driving With A Suspended License convictions within a 5 year period. If you are labeled a HTO, your driver's license will be suspended by the DHSMV for 5 years. There are a few other ways to be designated an HTO including 15 convictions for moving violations (see 322.27). Most people don't realize that by merely paying a ticket, you are pleading guilty and will be assessed points. Many times, a Hearing Officer will be willing to withhold adjudication which results in no points being added to your driving record. If you have been labeled an HTO, after one year you may apply for a BPO.

REFUSE OR NOT, THAT IS THE QUESTION
 

There are pros and cons to participating in the many steps of a DUI/DWI investigation and only you can make that decision.

Traffic Stop

The Law Enforcement Officer ("LEO") can pull you over for committing a traffic infraction to write you a traffic ticket, or if they suspect you are ill, injured, or driving while impaired. You are required to give them your driver's license. You are required to exit the vehicle if they ask you to. But you are not required to answer any questions like "where are you coming from? where are you going? have you been drinking tonight? what did you drink? when did you last have a drink?" Everything you say will factor into their evaluation of if they are going to arrest you for a DUI/DWI and it will be used as evidence against you by the State.

Field Sobriety Exercises

Field Sobriety Exercises are voluntary. I repeat, Field Sobriety Exercises are voluntary. You are never required to perform them. The LEO must ask you if you will freely and voluntarily perform Field Sobriety Exercises and you have every right to say no. If you choose to take part in these complicated feats of balance and coordination, the LEO is looking for many different clues of impairment in each exercise and will use your performance in making a determination about whether to arrest you. Additionally, if you end up in trial a jury will usually be watching a video of you performing these challenges of dexterity. These are movements that you have never done before, can be effected by weight, age, physical limitation, have many steps, and are usually only explained once (sometimes very quickly). It is your choice whether to refuse, but by refusing, the State has less evidence to prove their case against you. Refusing Field Sobriety Exercises does not impact your driver's license in any way.

Implied Consent

Implied Consent only becomes an issue AFTER you are arrested for a DUI/DWI and taken to the breath center. All drivers on Florida roads are required by law to give a breath or urine sample after arrest for a DUI/DWI. On your driver's license it says "Operation of a motor vehicle constitutes consent to any sobriety test required by law." The LEO is required to read you what is called an "Implied Consent Warning" which states that you are required to give the breath and/or urine sample after arrest and if you refuse then your driver's license will be suspended for 12 months for the first refusal or 18 months for the second. Additionally, if you've refused before, a second refusal is a separate misdemeanor crime.

Refusal or not

If you refuse to give a breath sample, the State has less evidence against you. But as mentioned above, there are penalties for that decision. Even if you are found not guilty at trial or the State drops your case for the DUI/DWI, if it's your second refusal they may still go forward prosecuting the separate misdemeanor refusal charge. It does not get automatically dropped.

If you provide a breath sample, the State has to prove that you were either 0.08+ OR impaired. If you blow less than a 0.05 there is a legal presumption that you are not impaired. However, you may still be found guilty for DUI/DWI if you have any amount of alcohol in your system and the State can prove that you were impaired. There is a likelihood you will be asked for a urine sample if you blow less than 0.08 to determine if you have drugs in your body. This is because the combination of drugs and alcohol can increase the level of impairment on your ability to drive. Different factors go into whether each person is impaired, including weight, gender, tolerance, if you ate before drinking, drugs, etc.

Many people arrested for a DUI/DWI want to give a blood sample. You can not give a blood sample instead of breath and/or urine. After you give a valid breath and/or urine sample, then if you'd like to give a blood sample to disprove the results of the other test(s), the LEO is only required to facilitate your communication to a health care provider, which is basically a phone book and telephone. You have to arrange the blood draw. The LEO is not required to do anything more than give you a method to arrange that for yourself.

SETH@SETHHYMANLAW.COM (407) 274-7501

EXCLUSIVELY CRIMINAL DEFENSE. REPRESENTING CLIENTS THROUGHOUT CENTRAL FLORIDA.