In Florida, a motorist suspected and investigated for the crime of driving under the influence may be surprised to find that they are not given an opportunity to dispel the DUI investigators suspicions by submitting to an on-site breathalyzer test.
Broward County DUI Task Force does not use on site breath testing units.
Florida DUI law requires an arrest before a suspect is requested to submit to chemical testing and provide either a breath or urine sample depending on the facts of the case.
Intoxilyzer 8000 for Chemical Testing in DUI Investigation
In Broward County Florida, DUI task force has employed the use of CMI’s Intoxilyzer 8000 for several years. This sophisticated piece of equipment is regularly challenged by DUI defense attorneys to the inherent unfair and unconstitutional nature of its overall function in our criminal justice system. When maintained and calibrated properly the Intoxilyzer 8000 can accurately measure a person’s breath alcohol content. However, misuse by law enforcement in conjunction with the machines effectively proving an element of the crime of DUI.
Unconstitutional Nature of Florida DUI Prosecution
The fundamental principle of our criminal justice system is that the prosecutor be required to prove each and every element of a crime beyond into the exclusion of any and all reasonable doubt. There are no exceptions provided under the laws which we have all shared for over 200 years. Nonetheless, when Intoxilyzer’s report indicating that a DUI suspect blew a .08 or above is enough for them to find that the offender was under the influence to the extent that his or her normal faculties were impaired.
Recent changes in the manner in which the Florida Department of Motor Vehicles handles DUI investigations specific to license suspension has certainly changed the way that first-time offenders choose to either participate or not anticipate in a DUI investigation of which he or she is the subject.
The one question asked so frequently of veteran DUI defense attorneys, is now more easily answered. I’m speaking of course as to whether or not subject of a DUI investigation should participate in chemical testing should they have never been arrested for driving under the influence in the past.
To blow or not to blow…
The ramifications for refusal to submit to a breath test or first time DUI suspects are far less than in years prior according to DUI lawyers in Florida. Some may disagree, however, when you look at DUI defense and prosecution in its entirety, coupled with new administrative procedure implemented by the DMV, you can’t help but feel the lifting of potential stresses that even a first-time DUI offender faced with regard to Florida driver license suspension. The length of this suspension used to be significantly influenced by the way and manner in which a DUI suspect participated or refused to participate in the DUI task force officer’s investigation.
I have already been arrested, what’s the point in submitting to a breath test if the officer is not going to let me go home?
While some states employed the use of portable breath testing machines that were used on-site, Florida has required an arrest prior to any request or in some cases demand for chemical testing. This has in most cases left the DUI suspect both confused and frustrated at not only the legal system but the criminal investigation at hand. Most citizens who are under the stress of such an event fail entirely to see the logic in being cuffed, transported in a patrol car to a holding cell and then asked to submit to a breath test in order to confirm or dispel on investigating DUI officers suspicions.
Couple this with the likely fact that Miranda rights were not read to the suspect either. There would unlikely be an adequate response to that same DUI suspects request to consult with a criminal defense attorney. In a vast majority of cases that our DUI lawyers have seen in Broward County, little if anything is ever done by way of explanation to a DUI suspect as it pertains to when Miranda is required or why DUI suspects are not entitled to counsel in most cases.
Additional things that you should know prior to finding yourself the subject of a DUI investigation.
Many criminal defense attorneys in Broward County have gone as far as to say that certain law enforcement officers seem to respond to common requests of a subjects right to counsel in such a way that leads them to believe that their rights are being violated. The fact is, however that most elements of a DUI investigation involve the collection of non-testimonial evidence meaning that the DUI suspect is not questioned, rather observed and requested to submit to forensic testing. In such cases where a criminal suspect is not being interrogated, nor providing evidence that is testimonial nature, there is no right to consult with a criminal defense attorney.
Nonetheless, our nation’s highest courts have shamed police officers for the manner in which the outright denial of not only Miranda or Defense Counsel, was undertaken but also warned that the only nexus bridging the gap between modern DUI policing and an outright violation of a DUI suspect’s constitutional rights is the manner in which DUI task force conducts same. In Florida, officers who routinely make driving under the influence arrests are constantly reminded of the specific manner in which they are required to collect evidence and more importantly treat suspects.
20+ years ago the higher courts may very well have been uneasy about the constitutionality of denying an individual right to counsel prior to submitting to chemical testing in addition to specifically requesting same. According to criminal defense attorney William Moore, however, the Florida court systems cognizance of our criminal justice systems treading lightly upon the rights of the accused has long been gone.
DUI prosecution in Florida has been a gateway that has led to the dilution of many of our constitutional rights claims Moore.
Prior to focusing on major crimes such as drug possession delivery and trafficking offenses in Broward County Florida, attorney William Moore focused intently on defending individuals charged with driving under the influence. He has extensive knowledge and experience in this complex area of criminal defense having tried over 200 criminal DUI jury trials in his first 15 years of practice. Much of this knowledge and unique experience has been shared their writings, criminal defense law lectures and radio show commentary.
For information about how to get specific materials with regard to any DUI defense issue or topic please contact
Criminal Defense Attorney William R. Moore
One Financial Plaza Suite 2500
Fort Lauderdale Florida, 33394
954 – 523-5333