DUI investigations in Broward County Florida have troubled Sergeants due to the time that it takes a detective to conduct an adequate investigation under Florida law. According to attorney William R. Moore, investigations typically take about 6 hours. A majority of this time is spent transporting a suspect to the Breath Alcohol Testing Facility. Once at the BAT facility, it is a fairly lengthy process before the individual is tested. As a result, perhaps due to the lack of funding, we have seen less DUI arrests and a drastic reduction in the number of DUI Task Force Detectives.
An arrest is required prior to requesting and administering breath tests.
Many people believe that officers test individuals at the scene using portable breath testing equipment which hasn’t been the case until now. Florida has only authorized the use of CMI’s Intoxilyzer 8000 for use in testing a suspect’s breath/blood alcohol level and this device is not conducive to being housed in a vehicle. Under Florida law, Intoxilyzers must be kept in a secure environment that is clean, dry and free from airborne chemicals such as ethanol. Criminal defense attorneys have understood these requirements to be the rationale behind officers not having them installed into the patrol cars of DUI Task Force Members.
A pilot test of “in-car breathtesting”
Despite regulation tending to restrict the use of breath testing equipment in police cruisers, one DUI Investigator in Broward County is utilizing an Intoxilyzer 8000 which has been specially mounted in his patrol car to make arrests. The reason for which is undoubtedly to cut down the time required to conduct a full DUI investigation through utilization of the Breath Alcohol Testing Facility. It is estimated that, should in car breath testing be permitted, DUI investigations could be cut from 6 hours to under an hour and a half.
Criminal offenses such as DUIManslaughter almost always include a civil lawsuit seeking damages from the offenders insurance company. In many instances however, the maximum policy limits do not fully compensate the victim’s family. Sometimes the offender didn’t carry automobile insurance at all.
Establishing that restitution to the victim outweighs the need for a prison sentence
Under Florida Statute § 921.0026, the judge can consider during a motion for a downward departure that the need for payment of restitution to the victim outweighs the need for a prison sentence.
A defendant serving a mandatory prison sentence obviously will not be able to make restitution payments to the victim’s family. Where this is an issue, the victims loved ones may be willing to testify that a defendant would better serve them on probation where they can work and make amortized payments over the length of their probationary sentence.
Negotiate with the attorney representing the family
Discussing options with the civil attorney representing the victim’s family may provide an avenue for a criminal defense attorney to file a motion for downward departure and either avoid or reduce the time of incarceration sentence. At the very least effort should be made to communicate with counsel for the victims loved ones to determine if this may be a viable option.
For more information about this article contact attorney William Moore at 954-523-5333
NHTSA seeks lower DUI limit as part of it’s Zero Alcohol Impaired Driving Fatalities campaign
The National Highway traffic Safety Association is pushing to reduce the legal limit from .08 to .05 nationally over the next 10 years. The “Vision Zero” campaign seems to rival even MADD’s assault aimed at toughening drunk driving laws over the past few decades. Ironically Mother’s Against Drunk Driving has publicly refused to assist NHTSA in this regard. Currently only one state has passed the .05 BAC law, although it will not actually be implemented until December 2018. Other states have indicated a willingness to follow suit. Florida has not shown an interest in lowering its legal limit.
“We’re actually seeing some leniency over the past few years in South Florida when it comes to “Driving Under the Influence.” This leniency, born out of necessity, is the direct result of MADD’s success in directing any conceivable resource in our criminal justice system toward Impaired Driving, which happens to be an incredibly expensive offense to police. Even the Florida Department of Motor Vehicles has lightened their administrative rules over the past decade as they pertain to obtaining a hardship permit following an arrest. Requests for administrative review hearings had bogged down department’s ability to function throughout the state. Eventually the department just said “fine, you can drive for business purposes following an arrest without having to go through any “hard time” (time without any form of driving). It was a major change that favors the offender here in Florida.
South Florida Drunk Driving policing and prosecution is questionably inconsistent
An examination of the Tri-County area with respect to arresting and prosecuting impaired drivers raises some significant questions. At the same time that Miami-Dade and Palm Beach County were implementing diversion programs to deal with the sheer number of arrests, Broward County all but did away with the DUI task force and has seen less DUI arrests than ever. Broward County is the only of the tri-Counties to have no diversion program and despite its unexplainable decrease in apparent impaired driving offenders, its neighboring counties still continue to allow first offenders an opportunity to participate in a program another case dismissed. Diversion programs are frowned upon by groups such as MADD in that offenders know that they get one free bite at the apple and are not deterred from having a few drinks and getting behind the wheel.
It is estimated that .05 Legal Limit will be implemented Nationally within the next 10 years in that the federal government will likely deny road and highway funding to states that refuse to lower their blood alcohol content statutes. It is also claimed that a uniform national .05 limit will save 1,800 lives annually although just how these numbers were calculated is somewhat suspect considering all of the factors that could influence changes one way or another.
“Logic would dictate that the increasing popularity of rideshare services such as Uber and Lyft would naturally result in a decreased number of DUI related accidents. What we are seeing however is a radical inconsistency among major US cities with reference to Ridesharing and the number of impaired driving incidents.
Could it be that NHTSA’s Aggressive Zero DUI Fatalities campaign is designed to siphon credit from growing Rideshare popularity?
If you hit a parked car and are unable to find the owner, most people understand the law to require that the driver at fault leave a note with his or her contact information. Under Florida law, however, this isn’t quite enough as Florida statutes require that the accident be reported to the local police department.
Attorney William R. Moore also cautions that it is always a good idea to report a fender bender to the local police even where the other party does not wish to do so. We have seen many cases where the so-called victim agreed that the damage was nonexistent or so minor that an accident need not be reported only to find that they later contacted their insurance carrier and reported a hit-and-run.
Remember, if you are involved in an accident that does not involve injury, you must stop your vehicle at the nearest safe location. Information such as your name, address and registration number must be provided. Always contact law enforcement as well.
A driver’s decision whether or not to submit to the Intoxilyzer when under investigation for DUI in Florida may be different now than it was a few years ago.
Avoid giving prosecutors evidence needed to convict you
Evidence of impairment by alcohol obtained by a certified breast testing instruments such as the Intoxilyzer 8000 is powerful evidence that can be used by prosecutors to convict the defendant. Provided that you have never refused in the past, it may be advisable not to produce a chemical sample in light of the fact that as of 2013, persons arrested for DUI may receive an automatic hardship license by waving their formal review hearing. There is no longer a 90 day “no license” for those who refuse.
Do not refuse a second time
It is never advisable to refuse a second time if suspected of misdemeanor DUI as this is an independent and more severe criminal offense in Florida.