Criminal DUI Proceedings in St. Petersburg, Clearwater, and Tampa
In many instances, DUI is an "opinion" crime in that the decision to arrest is based on the opinion of the investigating officer (following certain purported observations of impairment). In some states, DUI is called "OUI" or "DWI", which are acronyms for "Operating While Intoxicated" or "Driving While Intoxicated". In Florida, DUI means "Driving While Impaired". Thus, a person does not have to be intoxicated to be arrested for DUI: if the officer is of the opinion that the driver is under the influence of alcohol (or drugs) to the extent that his or her normal faculties are impaired, an arrest will almost assuredly ensue. The flip side of that coin is that it is not illegal to take a drink and then drive in Florida. Just as "Driving While Intoxicated" is not a recognized crime in this state, neither is "Drinking and Driving". What is proscribed, to reiterate, is drinking to the point of impairment, and then driving. In a jury trial setting, the prosecutor will usually go to great lengths to ensure that potential jurors understand the distinction between driving while intoxicated, and driving while impaired. As a St. Petersburg DUI attorney, it is my job to ensure that jurors also understand (1) the distinction between drinking and driving; and drinking to the point of impairment and driving; and (2) that while the latter is illegal, the former is not. However it is done, this is a concept that must be effectively conveyed.
In formulating his or her opinion of impairment by drugs or alcohol, the arresting officer will take into account the accused person's driving pattern, which usually forms the basis for the initial stop. Was the person driving at an unreasonably excessive speed (too fast for conditions)? Was the person driving at an unreasonably slow speed? Was he or she weaving within the lane of travel? Was he or she failing to maintain a single lane? Was the driver involved in an accident? The officer will also look for additional clues of impairment upon making initial contact with the driver. Is there an odor of alcohol emanating from the interior of the vehicle or from the driver? Does the odor of alcohol become stronger as the driver speaks? Is the driver slurring his or her words or otherwise having difficulty with pronunciation? Are the driver's eyes bloodshot, watery, and/or glassy? Does the driver have difficulty locating and producing requesting documents (usually the driver's license, vehicle registration, and proof of insurance)? Does the driver have difficulty exiting the vehicle? Does the driver have difficulty walking from the vehicle to the roadside area where further questioning and (possibly) field sobriety exercises will be performed? Does the driver admit to drinking or ingesting drugs? If the driver agrees to perform field sobriety exercises, are there issues with physical coordination that suggest impairment? All of these observations (or lack of observations, as the case may be), will factor into the officer's opinion of impairment and, ultimately, whether he or she has probable cause to make an arrest. As a former Pinellas County state prosecutor, and St. Petersburg DUI attorney, I have seen remarkably few instances where a person suspected of DUI was not placed under arrest for DUI.
Following the arrest, the driver will be asked to submit to some form of test of his or her blood, breath, or urine. If the officer is not of the opinion that the driver is impaired by alcohol, but rather, a chemical or controlled substance, he or she will usually ask for a urine sample. If the officer is of the opinion that the person is impaired by alcohol, the officer will usually ask the person to submit to a breath test. Florida law limits the circumstances under which law enforcement can seek a blood sample, or compel one by force. These circumstances are detailed in the "Defenses" subsection herein but, suffice to say at this point, it usually requires that the administration of a breath test is impossible or impractical, or the DUI case involves serious bodily injury to the accused or some other person.
If the person refuses to submit to the required test, the officer will read something called "implied consent warnings". These warnings essentially state that in the event of a refusal, the driver will be subject to a license suspension for a certain period of time. If the driver persists in refusing, the refusal is used as evidence against him or her in the subsequent criminal proceeding and, to a greater extent, in a trial situation should the accused person elect to go that route. If the person is asked to submit to a breath test, and the results are above a 0.08, the offense becomes less of an opinion crime because there is now some hard empirical data from which jurors may presume impairment. The same can be said for a blood test which produces the same result. If the results are below the threshold at which Florida law presumes impairment (0.08), the prosecutor's job becomes very difficult. While the state can still prove impairment based on other evidence (the officer's opinion regarding impairment and the basis of that opinion, a video recording of FSTs performance, and any inculpatory statements of the accused regarding alcohol consumption and its effects), most jurors are highly disinclined to convict with a breath or blood test below a 0.08. You should know that a urine test is a qualitative test, and not a quantitative test. In other words, the test can show a positive result for a specified chemical or controlled substance, but cannot establish when the substance was ingested and, perhaps more importantly, how much was ingested. Here again, the state will look to other evidence, in conjunction with the positive result, to establish impairment (the officer's opinions based on observations made during the course of the DUI investigation, video recording(s), and inculpatory statements of the accused). If the urine results come back with no evidence of controlled substances, and there is no breath or blood test above a 0.08, the prosecution has got a problem. In most instances, the state will reduce the charge and, in some, may outright drop it.
These are the circumstances upon which a criminal proceeding is initiated. What follows is an overview of what the state is required to prove, the presumptions of impairment (or lack of impairment) created by Florida law in DUI cases, and how you can expect the criminal side of your DUI case to progress, which will depend on where you were arrested (Pinellas or Hillsborough County) and the offense level (misdemeanor or felony). Once again, this is an overview. Specific questions should be directed to an experienced Tampa Bay area DUI lawyer.
What The State is Required to Prove
In Florida, the state can prove DUI two ways. In either scenario, however, the state is required to prove that the accused person was driving a motor vehicle or was in actual physical control of a motor vehicle at the time of the alleged offense. According to the Florida Standard Jury Instructions on DUI, "actual physical control of a vehicle" means that "the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether he or she is actually operating the vehicle at the time". Thus, if you decide to "sleep it off" in your car, and the keys are in your pocket, contact with a law enforcement officer may very well result in a DUI investigation and an arrest. Your vehicle does not have to be moving, or even started, for a DUI arrest to occur.
So what are the two ways DUI can be proven? Either (1) driving (or being in actual physical control of a motor vehicle) while under the influence of alcohol or chemical or controlled substances to extent your normal faculties are impaired; or (2) driving (or being in actual physical control of a motor vehicle) with an unlawful balance (0.08 or higher). The Florida Standard Jury Instruction on DUI reads as follows:
To prove the crime of driving under the influence, the State must prove the following two elements beyond a reasonable doubt:
- The defendant drove or was in actual physical control of a motor vehicle.
- While driving or in actual physical control of the vehicle, the defendant: a. was under the influence of [alcoholic beverages][a chemical substance][a controlled substance] to the extent that [his][her] normal faculties were impaired or b. had a [blood][breath] alcohol level of 0.08 or more grams of alcohol per [100 milliliters of blood][210 liters of breath].
Why is it necessary to afford the state two methods of proving DUI? Because not every one is going to agree to submit to a breath test or, where appropriate, a blood test. Many people refuse these tests for a variety of reasons, regardless of the potential license suspension implications a refusal carries. Where the state has a breath or blood test with results that exceed 0.08 grams of alcohol per 210 liters of breath or 100 milliliters of blood (as the case may be) the state will obviously seek to have this evidence admitted. In addition to introducing evidence that the defendant's breath or blood alcohol levels exceed the threshold at which Florida law presumes impairment, the state will also have the investigating officer testify as to his or her observations of impairment, any inculpatory statements made by the defendant during the course of the DUI investigation, and introduce a video recording of the defendant's field sobriety test performance, assuming one exists. Where there is a breath or blood test with results of 0.08 or higher, it will be the crux of the state's case.
Where the defendant refused the breath or blood test, the state will attempt to prove its case using the second avenue: impairment of "normal faculties". What are normal faculties? According to the standard jury instruction for DUI offenses in Florida, normal faculties "include, but are not limited to, the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives". Here again, the state will rely on the testimony of the arresting officer regarding purported signs of impairment, the accused's statements, and any video recordings of field sobriety test performance. The state will really emphasize the more punitive implications of a refusal for the accused person's driver's license. The periods of suspension for a refusal is always longer and the opportunity for a hardship license can be squashed where there is more than one refusal (e.g. a refusal in a prior DUI as well). The state will argue that the only reason a person would refuse to submit to the test, given the harsh driver license implications, is a consciousness of guilt. As a St. Petersburg DUI defense attorney, it is my job to set forth reasonable, plausible explanations for the client's refusal that are unrelated to consciousness of guilt. The reasons are plenary. Many people simply don't trust the reliability of these machines. Many have been told you should never blow no matter what. The client is usually told they are going to jail whether they blow or refuse, even if the results are below a 0.08 (which is true). Jurors are usually open to considering reasons for a refusal other than consciousness of guilt.
Whether the state proceeds under an "unlawful balance" theory (0.08 or higher) or an "impairment of normal faculties" theory, its burden of proof is "beyond a reasonable doubt". This is the state's burden of proof in any criminal proceeding, whether the charge is murder, grand theft, or DUI. It is the highest burden of proof in the American legal system. Also, each element of the offense must be proven beyond a reasonable doubt. It is not enough to prove that the person's breath or blood alcohol level exceeded a 0.08 or that his or her normal faculties were impaired. The state must also prove that the accused person was driving or in actual physical control of a motor vehicle at the time. As a former Pinellas County state prosecutor and St. Petersburg DUI lawyer, I can tell you that it is quite common to have a DUI case wherein the issue is whether the accused was driving or in actual physical control of a vehicle, as opposed to impairment. These scenarios can lead to some hotly contested jury trials.
"Presumptions of Impairment" in Florida DUI Cases
In DUI cases with a breath or blood test result, there are certain presumptions that will apply, pursuant to Florida Statutes section 316.1934(2)(a), (2)(b), and (2)(c).
In such cases, where requested, the jury will be instructed as follows (Fla. Standard Jury Instruction 28.1):
- If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath alcohol level of .05 or less, you shall presume [emphasis added] that the defendant was not under the influence of alcoholic beverages to the extent that [his][her] normal faculties were impaired; but this presumption [emphasis added] may be overcome by other evidence demonstrating that the defendant was under the influence of alcoholic beverages to the extent that [his][her] normal faculties were impaired.
- If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath alcohol level in excess of .05 but less than .08, that fact does not give rise to any presumption [emphasis added] that the defendant was or was not under the influence of alcoholic beverages to the extent [his][her] normal faculties were impaired. In such cases, you may consider that evidence along with other evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent to the extent that [his][her] normal faculties were impaired.
- If you find from the evidence that while driving or in actual physical control of a motor vehicle, the defendant had a blood or breath alcohol level of .08 or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcoholic beverages to the extent that [his][her] normal faculties were impaired. But this evidence may be contradicted or rebutted by other evidence demonstrating that the defendant was not under the influence of alcoholic beverages to the extent that [his][her] normal faculties were impaired.
You will notice that words "presume" and "presumption" are in paragraphs one and two, but there is no such verbiage in paragraph three (where there is evidence of a breath or blood test above a 0.08). This is not by accident.
In Wilhelm v. State of Florida, 568 So.2d 1 (Fla. 1990), the defendant was charged with vehicular homicide, DUI Manslaughter, and Manslaughter after his vehicle struck two others and a child occupant of the station wagon was killed. At trial, the state introduced evidence of a chemical test which showed the defendant's blood alcohol level to be .20. The defendant testified that all he has consumed was one beer and some Nyquil. The judge instructed the jury as follows: "If you find from the evidence that the defendant had point zero one percent or more by weight of alcohol in his blood, it is a prima facie case that the defendant was under influence of alcoholic beverages to the extent his normal faculties were impaired". He was convicted of DUI Manslaughter but was acquitted of the other two charges. On appeal, the defendant argued that the instruction impermissibly shifted the burden of proof to him on the element if intoxication, in violation of his due process rights, by requiring the jury to find intoxication if they found that he had the requisite blood alcohol level. The Florida Supreme Court agreed and reversed the conviction and remanded the case for a new trial. In its opinion, the Supreme Court noted that the absence of any language in the instruction stating that the defendant could rebut the evidence of blood-alcohol content as it related to intoxication, made it possible that the jury understood the instruction not only as a mandatory presumption, but one which is irrebuttable.
Here is the takeaway: where there is a breath or blood test at or below a 0.05, the defendant is presumed not to be impaired. If there is a blood or breath test over a 0.05 and below a 0.08, there is no presumption either way. A breath or blood test at or over 0.08 is evidence of impairment. That evidence is sufficient by itself to establish the defendant was under the influence of alcohol to the extent his or her normal faculties were impaired. If the defendant so chooses (remember, in a criminal case the defendant does not have to prove or disprove anything), he or she may present evidence to rebut the state's blood or breath test as it relates to the issue of impairment. Just because you are above a 0.08, does not mean you are impaired and this argument can be made to the jury. It is especially effective where there is evidence that the breath test machine was faulty in some way or had not been properly maintained.
How a DUI Charge Progresses in St. Petersburg, Clearwater, and Tampa
If you are arrested for DUI in Pinellas County, you will be brought to the Pinellas County Jail. If you are arrested in Hillsborough County, you will be brought to either the Orient Road or Falkneberg facilities. Under Florida law, you must be brought before a judge within 24 hours of your arrest, so that the judge can advise you of your charge(s), determine whether sufficient probable cause exists to hold you in lieu of bond, assess the propriety of the bond that has been set in your DUI case, and conduct a brief financial inquiry to determine whether you qualify (provisionally) for the services of the public defender. This is called a "first appearance" or an "advisory" hearing.
In Florida, you are entitled to a bond unless the offense is a capital or life felony and certain additional criteria are met. DUI offenses are not going to qualify for a no-bond status. For most DUI offenses, the bond will be pre-set set at around $500.00. If you post the bond before your advisory hearing, then you will, obviously, not be in attendance. This is not a "mandatory" hearing in the sense that your absence will result in the issuance of a warrant. When the judge calls your name, the clerk will announce "bonded" and the court will move on to the next case. Because Florida law requires a person to remain in custody for eight hours following a DUI arrest, you may not be in a position to bond out before the hearing. My experience over the years has been that most judges will release you on your own recognizance if this is a first time DUI offense. You will not likely be ROR'd if this is a second or subsequent DUI, there was an accident, or you have a history of failing to appear for court dates. The court can set conditions of your release as well. These can include a "no alcohol" provision and in some cases, the court will require you to wear a SCRAM monitor to ensure compliance with its order. A SCRAM monitor is worn around the ankle and measures the alcohol content of your sweat. A positive result will land you back in front of the judge and, possibly, back in jail. Again, most first time DUI offenders do not need to be concerned with higher bond amounts, no alcohol conditions or SCRAM monitoring.
The next court date in a DUI case is the arraignment date. If arrested in Pinellas County, the arraignment date will be printed at the bottom of your DUI citation. If the arrest occurred in the St. Petersburg area (south of Ulmerton Road), your arraignment will be set in South County Traffic Court. If your arrest occurred in Clearwater (north of Ulmerton Road) your case will be set in North County Traffic Court. If you arrested in Hillsborough County, the arraignment date may be printed along the bottom or you may be required to contact the traffic court clerk to schedule your arraignment within a certain period of time. The purpose of an arraignment is to have the accused person advised of the formal charges pending against him or her, and have that person enter a plea of some sort. There are three options: guilty, no contest, or not guilty.
Ordinarily, a person is not formally charged with a crime unless and until the state prosecutor files a charging document with the clerk of court, called an "Information". It is only if an Information is filed that an arraignment date is set. Traffic charges, at least at the misdemeanor level, are formally charged bycitation. This means that once the arresting officer files your DUI citation with the clerk of court, you are formally charged with DUI. There is no review process by a prosecutor, in misdemeanor DUI cases, prior to formal charges being filed against you. This puts the accused at a bit of a disadvantage because the DUI defense attorney is not in a position to point out potential problems with the state's case, prior to the filing of the formal charge, in an effort to negotiate the filing of a lesser charge, or none at all. In non-traffic criminal cases, this can certainly be done on a client's behalf and most prosecutors are willing to consider mitigating information from a criminal defense attorney before making a formal charging decision. As a Pinellas County state prosecutor, I always was. For further reading on this subject, see the "Affecting the Filing Decision" section of our website.
If you have an attorney, either court appointed or privately retained, that person will file, with the clerk of court, what is called a "Notice of Appearance" on your behalf. This lets the judge and the state know that you have a lawyer and who your lawyer is. If you were appointed an attorney, and thereafter hire private counsel, the public defender will usually move to withdraw (orally) at the first court date. The "Notice of Appearance" will almost always include a "Written Plea of Not Guilty", a "Demand For Discovery", and a demand for any and all exculpatory evidence against you, pursuant to Brady v. Maryland. Exculpatory evidence is evidence that tends to negate your guilt. The prosecutor is required by law to disclose all such evidence in his or her possession, whether you elect to participate in formal discovery or not. The effect of the "Written Plea of Not Guilty" is that neither you nor your attorney need to appear for the arraignment. Upon the filing of the written not guilty plea, the arraignment will be reset by the clerk of court for what is called a "Pre-trial Conference" hearing (in Pinellas County) or a "Disposition" hearing (in Hillsborough County). If you do not have an attorney, you must attend the arraignment. Failing to appear for the arraignment will result in a warrant being issued for your arrest.
There is one caveat to the non-appearance rule where a written plea of not guilty has been entered. If you were arrested for a DUI in Pinellas County, and you were also arrested for a felony drug charge as part of the same episode, there is a likelihood that the drug charge will end up in drug court (Division N). The felony will be charged by Information and the DUI will, in all likelihood, be charged as count two (even though the citation was previously filed in traffic court by the arresting officer). You must attend the drug court arraignment whether you have an attorney or not, and whether the attorney has entered a written plea of not guilty or not. For more information, see the "Drug Court" and "Pinellas County Drug Court" sections of our website.
The next court date after the arraignment, is called a "pre-trial conference hearing" (in Pinellas County) or a "disposition hearing" (in Hillsborough County). In most instances, your appearance will not be required, unless you are going to resolve your case. Your DUI defense attorney will have you sign a waiver of your appearance at these hearings and he or she will attend on your behalf. You should be aware that there are some judges, particularly in felony court, that prefer the client to be present whether a waiver of appearance is filed nor not (unless the client resides outside the jurisdiction of the court). This is yet another example of where it pays to know your judge. The court will usually allow three to four pre-trial conferences before setting the matter for trial. During this time period, the discovery process is being completed and any pre-trial motions that need to be litigated, such as a motion to suppress, are filed and calendared for hearing. For more information, see the "Defensive Motions" section of our website. If there is a basis to seek a reduction in charge, it is during this time that those types negotiations ensue. On the defense side, it can take awhile to obtain all of the evidence in the case, draft a letter, and get an approval from the state (or not). As long as the case is moving toward resolution, the court will usually give you the time you need before setting the matter for trial.
If you are charged with a misdemeanor DUI, and you reside out of state, your attendance will not be required to enter a plea, if that is what you intend to do. Your DUI defense attorney will mail you what is called a "plea in absentia" and a fingerprint card. The plea in absentia will list all of the rights you have, and the rights you are giving up, by entering a plea of guilty or no contest (as opposed to taking the case to trial). You will be required to sign the pleading in the presence of a notary, and take the print card to a local law enforcement agency for fingerprinting. The cost for rolling your prints is typically around $15.00. Once that is complete, you mail the executed plea in absentia, fingerprint card, and a check (payable to the clerk of court to cover the applicable fines and costs), to your attorney who will file it in open court at a pre-trial or disposition hearing. You can report to probation by mail and, if all conditions of your DUI charge are complete by the time the PIA is filed, you may be allowed to terminate supervision immediately. You should know that this option does not apply to a felony DUI charge. If you are charged with a felony DUI offense, and you intend to enter a plea, you must be present in court to do that.
In most instances, DUI constitutes a misdemeanor offense. However, a DUI offense is a felony, under Florida law if (1) the accused person has three prior convictions for DUI (anywhere or at any time); (2) the offense results in serious bodily injury to another; or (3) the offense results in a death. The state may also prosecute a DUI offense as a felony if the accused person has two prior DUI convictions, at least one of which occurred within the past ten years. With regard to felony DUI charges based on priors, the relevant time frames are conviction to offense. Thus, if you have two prior DUIs, the date offense for the most recent prior DUI is outside of ten years, but the date of conviction for that prior offense is within ten years, the state may prosecute your charge as a felony.
Unlike a misdemeanor DUI, which is charged by citation, a felony DUI will ultimately be charged by Information (even though a citation is issued as the time of arrest). Because it is charged by information, there is room for pre-file negotiations with the prosecutor, which is something your St. Petersburg DUI attorney will want to actively engage in. Sometimes, the prior convictions are so old that no meaningful record conviction exists (i.e. a judgment and sentence form, filed with the clerk, with fingerprint cards). In a felony DUI prosecution, the trial is bifurcated, which means the jury will first consider whether the state has proven the elements of DUI beyond a reasonable doubt. During this phase of the trial, the jury is not made aware of the prior convictions. It is only if the jury finds the defendant guilty that the second phase of the proceeding ensues. It is during this phase that the state must prove up the prior convictions. If there is insufficient evidence of the requisite priors, and your St. Petersburg DUI defense attorney can point that out, the state may be willing to file what would otherwise be a felony as a misdemeanor. For a person with no prior felony convictions, this can be of tremendous benefit as diversion programs are not offered for DUI offenses in Pinellas and Hillsborough Counties, and withholding adjudication of guilt in a DUI case is prohibited under Florida law. You should also be aware that the prior pleas must have been "counseled" if they are to be used to enhance a pending DUI from a misdemeanor to a felony. This means that the accused person must have been represented by counsel at the time the prior plea was entered (either by a private attorney or a public defender). In situations involving serious bodily injury, it may be that the injuries sustained by the other driver were not severe enough to meet the statutory definition of serious bodily injury. In DUI cases involving serious bodily injury, the state will usually provide the alleged victim's medical records as part of discovery. If not, your St. Petersburg DUI attorney will want to take steps to obtain these records through other means. If the injuries do not rise to the level of "serious bodily injury" your attorney will be a better position to negotiate a more favorable resolution.
As with all felony offenses in Florida, the court will take into account the accused person's sentencing guideline score in fashioning an appropriate (and legal) sentence. Unlike the federal system, sentencing guidelines in Florida are not "advisory" - there are a limited number of bases upon which the court can depart from the guidelines where the accused person is scoring mandatory prison. A person charged with a third DUI within ten years (remember, only one of the two prior convictions must be within ten years here), or a fourth DUI in a lifetime will not score mandatory prison unless he or she has other felony charges before the court for sentencing, or a significant prior record. Felony DUI charges based on priors constitute third degree felonies in Florida, which means that the maximum penalty that can be lawfully imposed is five years in the Florida Department of Corrections. DUI with serious bodily injury is also a third degree felony, but it will, in and of itself, score mandatory prison time. DUI manslaughter is a second degree felony, which means it is punishable by up to fifteen years in state prison. This offense will also score mandatory prison time, regardless of whether there are other offenses before the court for sentencing, and whether the person has a prior criminal history.
In all cases, the accused person will be required to complete DUI School, undergo an alcohol evaluation, and complete treatment if recommended. These conditions are requirements of probation and are also conditions precedent to obtaining a hardship license following the inevitable license suspension that will result at the time a plea is entered (remember, there are always two license suspensions to contend with in a DUI case - the administrative suspension, and the court imposed suspension). The length of the license suspension will depend on the number of prior DUI convictions the accuse person has. The greater the number of prior DUI convictions, the longer the period of suspension. The first time DUI offender will be eligible for a hardship license, with regard to the court imposed suspension, immediately after the conviction is entered as long as that person has completed the DUI school, the alcohol evaluation, and at least enrolled in treatment if is was recommended by the evaluator. In St. Petersburg, Clearwater, and Tampa traffic court, the judge will usually allow your probation to terminate as soon as all conditions of your DUI sentence are complete. Thus, there is often a double benefit to completing the DUI School, alcohol evaluation, and treatment before the plea is entered: (1) you can get a hardship license immediately (again, if you are a first time offender); and (2) you can get off probation almost immediately as well. As a St. Petersburg DUI attorney, I have my clients enroll in DUI School and undergo an alcohol evaluation immediately upon being retained. You should be aware that, generally, there is no provision for a hardship license for a second or subsequent DUI court imposed suspension. If the period of suspension is five years or longer (where, for example, you have two DUI convictions with five years), there may be some options. An experienced Tampa Bay area DUI attorney can provide additional details.
Unless this is your first DUI conviction with a breath or blood alcohol level below a .15, you will also be required to have an ignition interlock device installed in your car. The length of time you will be requited to maintain an interlock device will depend on the number of prior DUI convictions you have. This requirement, like the DUI school, alcohol evaluation, and treatment, will usually be imposed as a condition of probation (there are exceptions which, again, a qualified St. Petersburg DUI attorney can explain) and will always be a condition precedent to the issuance of a hardship license and or full license reinstatement.
There will be instances wherein the DUI case cannot be resolved through plea negotiations or through pre-trial motions, such as a motion to suppress the traffic stop and/or other evidence (for more information, see the "Defensive Motions" section of our website). In these in instances, the case will proceed to trial. An accused person has the right to a trial by jury, which he or she may waive and proceed to trial with the judge as the sole finder of fact (with the consent of the state). Unless the only reason you are proceeding to trial is to preserve an issue for appeal, I cannot think of any good reason you would want to waive your right to a jury trial. A DUI case, whether felony or misdemeanor, will be tried by a jury of six. A thorough and effective examination of the prospective jurors is critical in any criminal case, but this is especially so in a DUI case. There will, in all likelihood, be members of the panel who have been affected by a "drunk" driver or know someone who has. Some of them may be affiliated with anti drunk driving organizations such as MADD or SADD. Some may know police officers, prosecutors and/or probation officers on a personal level and may be inclined to allow those relationships to play a role in their deliberations. Fortunately, most prospective jurors are quite candid about the existence of these relationships and the extent to which they may affect that juror's ability to fairly and impartially determine the facts and apply the law as the judge instructs.
Once the jury is selected, the state and the defense will make an opening statement (if they so choose), which is meant to provide the jury with an overview of what they expect the evidence to show. In Pinellas county, opening statements will commence immediately after jury selection. In Hillsborough and Pasco counties, jury selection will usually be on one day, and opening statements will commence later in the week. The state will put its case on first which involves calling a number of witnesses (such as the officer who conducted the traffic stop, the officer who conducted the DUI investigation (which may be someone other than the stop officer), the breath test administrator (where applicable) and breath test maintenance personnel (again, where applicable)). Through these witnesses, the state will seek to introduce tangible evidence, including video recordings of the stop, video recordings of the accused person's performance on field sobriety exercises, and sometimes, the person's interaction with the breath test operator following the arrest. If breath or blood samples were obtained, the state will seek to introduce the results of the associated chemical tests. Where a urine sample was submitted, and chemical or controlled substances were detected, the state will seek to admit this type of evidence as well, and may call expert witnesses to testify on issues related to the impairing effects of such controlled substance and how they interact with each other and/or with alcohol. Of course the defense will have the opportunity to confront and cross examine each and every witness that the state calls as part of its case-in-chief.
Following the state's presentation of witness testimony and other evidence, the defense will have the opportunity to call witnesses, including the defendant himself or herself, and to present evidence. Remember, however, that in any criminal case, the accused person has no burden of proof whatsoever; he or she is not required to prove or disprove anything. The burden is on the state and that burden does not shift. In any criminal case, the state is required to prove each element of each charge beyond a reasonable doubt, and a DUI case is no different. It is the highest burden of proof in the American legal system. If the defense elects to call witnesses, then the state will have the same opportunity to cross examine those witnesses. The decision to call witnesses (especially the defendant) and to present evidence is one that must be carefully considered and thoroughly discussed between the attorney and the client. Following the defendant's case in chief (if the defense elects to put on a case) both the state and the defense will have an opportunity to make a closing argument. Closing arguments are an opportunity for the state and the defense to present an overview of what they beleive the evidence has shown, and to apply the evidence and testimony to the applicable law. Closing arguments are not evidence and cannot be considered as such by the jury. In Florida, the state has the opportunity to make the its closing argument first. The defense goes second and, thereafter, the state will be entitled to present a rebuttal argument to the jury. The state always goes first and always goes last, with the defense presentation in between. For more information, see the Trial section of our website.
DUI law is complicated. There are many components to it, and a thorough working knowledge of both Florida DUI law and local courtroom practice is essential to successfully navigating the DUI mine field. St. Petersburg DUI attorney Donald J. Kilfin has handled hundreds of DUI cases as both a Pinellas County state prosecutor and Tampa Bay area criminal defense attorney.
If you have been arrested for a DUI in St. Petersburg, Clearwater, or Tampa, The Kilfin Law Firm, P.C. can help. Contact us today.
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From the minute I spoke with Mr. Kilfin, I knew I was in the best hands for my situation. He is a complete professional; an ...Michelle
The light on my families darkest days
Swift action led to my brothers successful defense in 2and degree murder arrest, well spoken and sharp mind but also down to ...Jaroy
Aparte de eso, luego, será muy pertenecer a un test de personalidad cuesta sospechar. Ver teléfono... A mi me da la ...Teresa
Appreciative beyond words
Never have I been in a situation where I felt so helpless, but Mr. Kilfin changed that. He was kind, caring and considerate. ...Happy client
The Best of The Best. As loyal they come
Being from other State, and facing Two Felony Charges, ( over a stupid Cell phone ) I need someone that would have my back ...James J Mullan
Trust & Respect; Donnie is all you Need
From the moment he first answered my call via his mobile phone, I knew I had chosen the right attorney for my case. I had ...Richard M
A " Stellar Gentleman" that's the only way to describe Donnie Kilfin...
"Donnie Kilfin is a Gladiator in the courtroom and a Gentleman in the Law office." End of story.Matthew C,
Donnie is the Best!
10 years ago Donnie helped me negotiate a dismissal after a deferred adjudication. Over the past few months he's helped me ...DB