A Veteran Lawyer’s Perspective

The Florida Administrative Driver License Suspension Law can be complicated and confusing. I strongly recommend that you consult with an experienced DUI defense attorney before deciding how to proceed. An experienced DUI defense attorney will understand the time limits and technicalities of this process and is well-suited to defend you at this stage of your case.

Arrested for DUI and Driving Privileges Suspended

In Florida, anyone arrested for DUI and who provides a breath test result over.08 will have their driving privileges suspended for six months by the Florida Department of Highway Safety and Motor Vehicles (DHSMV). In the case of a refusal to submit to a breath test, blood test or urine test (where applicable) DHSMV imposes a one year suspension, or an eighteen month suspension if the driver has had their privilege suspended previously for refusing to submit to the breath test, blood test or urine test.

What Happens Next?

The Florida Uniform Traffic Citation (yellow traffic ticket) charging you with DUI serves as a temporary driver license for ten calendar days from the date of your arrest. This “permit” allows driving for business or employment purposes. That means to and from work, on the job driving, food shopping, banking, court, your lawyer’s office…no pleasure driving.

Within ten days you can, and should, file an application for a Formal Review Hearing. This hearing affords you an opportunity to challenge the legality of the suspension of your driving privileges. An experienced DUI attorney will have the application for this hearing and can file it for you. In Miami, the DHSMV Field Hearing Office is located at 2515 West Flagler Street, Miami, Fl 33135. A filing fee of $25.00 is required. Assuming that your license was otherwise valid at the time of the arrest, you will get an extension of the ten-day permit which lasts an additional forty-two days. DHSMV must schedule the Formal Review Hearing within 30 days from the date it was requested.

Here is the text of the Florida Statute section applicable to this process:
322.2615 Suspension of License; Right to Review

(1)(a) A law enforcement officer or correctional officer shall, on behalf of the department, suspend the driving privilege of a person who is driving or in actual physical control of a motor vehicle and who has an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher, or of a person who has refused to submit to a urine test or a test of his or her breath-alcohol or blood-alcohol level. The officer shall take the person’s driver’s license and issue the person a 10-day temporary permit if the person is otherwise eligible for the driving privilege and shall issue the person a notice of suspension. If a blood test has been administered, the officer or the agency employing the officer shall transmit such results to the department within 5 days after receipt of the results. If the department then determines that the person had a blood-alcohol level or breath-alcohol level of 0.08 or higher, the department shall suspend the person’s driver’s license pursuant to subsection (3).

(b) The suspension under paragraph (a) shall be pursuant to, and the notice of suspension shall inform the driver of, the following:

1. a. The driver refused to submit to a lawful breath, blood, or urine test and his or her driving privilege is suspended for a period of 1 year for a first refusal or for a period of 18 months if his or her driving privilege has been previously suspended as a result of a refusal to submit to such a test; or

b. The driver was driving or in actual physical control of a motor vehicle and had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher and his or her driving privilege is suspended for a period of 6 months for a first offense or for a period of 1 year if his or her driving privilege has been previously suspended under this section.

2. The suspension period shall commence on the date of issuance of the notice of suspension.

3. The driver may request a formal or informal review of the suspension by the department within 10 days after the date of issuance of the notice of suspension.

4. The temporary permit issued at the time of suspension expires at midnight of the 10th day following the date of issuance of the notice of suspension.

5. The driver may submit to the department any materials relevant to the suspension.

(2) Except as provided in paragraph (1)(a), the law enforcement officer shall forward to the department, within 5 days after issuing the notice of suspension, the driver’s license; an affidavit stating the officer’s grounds for belief that the person was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances; the results of any breath or blood test or an affidavit stating that a breath, blood, or urine test was requested by a law enforcement officer or correctional officer and that the person refused to submit; the officer’s description of the person’s field sobriety test, if any; the notice of suspension; and a copy of the crash report, if any. The failure of the officer to submit materials within the 5-day period specified in this subsection and in subsection (1) does not affect the department’s ability to consider any evidence submitted at or prior to the hearing. The officer may also submit a copy of a videotape of the field sobriety test or the attempt to administer such test. Materials submitted to the department by a law enforcement agency or correctional agency shall be considered self-authenticating and shall be in the record for consideration by the hearing officer. Notwithstanding s. 316.066(7), the crash report shall be considered by the hearing officer.

(3) If the department determines that the license should be suspended pursuant to this section and if the notice of suspension has not already been served upon the person by a law enforcement officer or correctional officer as provided in subsection (1), the department shall issue a notice of suspension and, unless the notice is mailed pursuant to s. 322.251, a temporary permit that expires 10 days after the date of issuance if the driver is otherwise eligible.

(4) If the person whose license was suspended requests an informal review pursuant to subparagraph (1)(b)3., the department shall conduct the informal review by a hearing officer employed by the department. Such informal review hearing shall consist solely of an examination by the department of the materials submitted by a law enforcement officer or correctional officer and by the person whose license was suspended, and the presence of an officer or witness is not required.

(5) After completion of the informal review, notice of the department’s decision sustaining, amending, or invalidating the suspension of the driver’s license of the person whose license was suspended must be provided to such person. Such notice must be mailed to the person at the last known address shown on the department’s records, or to the address provided in the law enforcement officer’s report if such address differs from the address of record, within 21 days after the expiration of the temporary permit issued pursuant to subsection (1) or subsection (3).

(6)(a) If the person whose license was suspended requests a formal review, the department must schedule a hearing to be held within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing.

(b) Such formal review hearing shall be held before a hearing officer employed by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses identified in documents in subsection (2), regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension. The party requesting the presence of a witness shall be responsible for the payment of any witness fees and for notifying in writing the state attorney’s office in the appropriate circuit of the issuance of the subpoena. If the person who requests a formal review hearing fails to appear and the hearing officer finds such failure to be without just cause, the right to a formal hearing is waived and the suspension shall be sustained.

(c) A party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides. A failure to comply with an order of the court shall result in a finding of contempt of court. However, a person is not in contempt while a subpoena is being challenged.

(d) The department must, within 7 working days after a formal review hearing, send notice to the person of the hearing officer’s decision as to whether sufficient cause exists to sustain, amend, or invalidate the suspension.

(7) In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension. The scope of the review shall be limited to the following issues:

(a) If the license was suspended for driving with an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher:

1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.

2. Whether the person whose license was suspended had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher as provided in s.316.193.

(b) If the license was suspended for refusal to submit to a breath, blood, or urine test:

1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.

2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.

3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.

(8) Based on the determination of the hearing officer pursuant to subsection (7) for both informal hearings under subsection (4) and formal hearings under subsection (6), the department shall:

(a) Sustain the suspension of the person’s driving privilege for a period of 1 year for a first refusal, or for a period of 18 months if the driving privilege of such person has been previously suspended as a result of a refusal to submit to such tests, if the person refused to submit to a lawful breath, blood, or urine test. The suspension period commences on the date of issuance of the notice of suspension.

(b) Sustain the suspension of the person’s driving privilege for a period of 6 months for a blood-alcohol level or breath-alcohol level of 0.08 or higher, or for a period of 1 year if the driving privilege of such person has been previously suspended under this section as a result of driving with an unlawful alcohol level. The suspension period commences on the date of issuance of the notice of suspension.

(9) A request for a formal review hearing or an informal review hearing shall not stay the suspension of the person’s driver’s license. If the department fails to schedule the formal review hearing to be held within 30 days after receipt of the request therefor, the department shall invalidate the suspension. If the scheduled hearing is continued at the department’s initiative, the department shall issue a temporary driving permit that shall be valid until the hearing is conducted if the person is otherwise eligible for the driving privilege. Such permit may not be issued to a person who sought and obtained a continuance of the hearing. The permit issued under this subsection shall authorize driving for business or employment use only.

(10) A person whose driver’s license is suspended under subsection (1) or subsection (3) may apply for issuance of a license for business or employment purposes only if the person is otherwise eligible for the driving privilege pursuant to s. 322.271.

(a) If the suspension of the driver’s license of the person for failure to submit to a breath, urine, or blood test is sustained, the person is not eligible to receive a license for business or employment purposes only, pursuant to s. 322.271, until 90 days have elapsed after the expiration of the last temporary permit issued. If the driver is not issued a 10-day permit pursuant to this section or s. 322.64 because he or she is ineligible for the permit and the suspension for failure to submit to a breath, urine, or blood test is not invalidated by the department, the driver is not eligible to receive a business or employment license pursuant to s. 322.271 until 90 days have elapsed from the date of the suspension.

(b) If the suspension of the driver’s license of the person relating to unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher is sustained, the person is not eligible to receive a license for business or employment purposes only pursuant to s. 322.271 until 30 days have elapsed after the expiration of the last temporary permit issued. If the driver is not issued a 10-day permit pursuant to this section or s. 322.64 because he or she is ineligible for the permit and the suspension relating to unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher is not invalidated by the department, the driver is not eligible to receive a business or employment license pursuant to s. 322.271 until 30 days have elapsed from the date of the suspension.

(11) The formal review hearing may be conducted upon a review of the reports of a law enforcement officer or a correctional officer, including documents relating to the administration of a breath test or blood test or the refusal to take either test or the refusal to take a urine test. However, as provided in subsection (6), the driver may subpoena the officer or any person who administered or analyzed a breath or blood test.

(12) The formal review hearing and the informal review hearing are exempt from the provisions of chapter 120. The department may adopt rules for the conduct of reviews under this section.

(13) A person may appeal any decision of the department sustaining a suspension of his or her driver’s license by a petition for writ of certiorari to the circuit court in the county wherein such person resides or wherein a formal or informal review was conducted pursuant to s. 322.31. However, an appeal shall not stay the suspension. A law enforcement agency may appeal any decision of the department invalidating a suspension by a petition for writ of certiorari to the circuit court in the county wherein a formal or informal review was conducted. This subsection shall not be construed to provide for a de novo appeal.

(14)(a) The decision of the department under this section or any circuit court review thereof may not be considered in any trial for a violation of s. 316.193, and a written statement submitted by a person in his or her request for departmental review under this section may not be admitted into evidence against him or her in any such trial.

(b) The disposition of any related criminal proceedings does not affect a suspension for refusal to submit to a blood, breath, or urine test imposed under this section.

(15) If the department suspends a person’s license under s. 322.2616, it may not also suspend the person’s license under this section for the same episode that was the basis for the suspension under s. 322.2616.

(16) The department shall invalidate a suspension for driving with an unlawful blood-alcohol level or breath-alcohol level imposed under this section if the suspended person is found not guilty at trial of an underlying violation of s. 316.193.

History.–s. 1, ch. 89-525; s. 4, ch. 90-329; s. 20, ch. 91-255; s. 5, ch. 93-124; s. 414, ch. 95-148; s. 2, ch. 95-186; s. 2, ch. 96-272; s. 11, ch. 96-330; s. 38, ch. 97-96; s. 43, ch. 99-248; s. 14, ch. 2001-196; ss. 20, 85, ch. 2005-164; s. 45, ch. 2006-290; s. 45, ch. 2007-5.
What if You Don’t Request the Review?

If you don’t request a Formal Review Hearing within ten days from the date of the arrest, DHSMV will sustain the suspension for the applicable period (six months, one year or eighteen months). In the case of a six month suspension, once the temporary permits expire, you are ineligible to drive for 30 days, as part of the six month suspension. After that period is up you can apply for a business purposes license (hardship license) after you provide proof of enrollment in an approved alcohol/substance abuse education program. In the case of a refusal suspension (one year) there is a 90 day ineligibility period as part of the one year suspension. In the case of a second or subsequent refusal, Florida law prohibits the issuance of any temporary/business or hardship permit for the entire eighteen month suspension period.

The Formal Review Hearing

Once you receive the Notice of Hearing from DHSMV, you will need to prepare a pre-hearing statement, defining the issues to be considered at the hearing. This is also the opportunity to request the issuance of subpoenas for any witness you want to question, including the police. You will also have the opportunity to review the entire file before you decide which witnesses you want to subpoena. Subpoenas need to be prepared, issued by DHSMV and served on the witnesses.

On the day of the hearing you should bring all of your witnesses. You will have the opportunity to question the police officers and witnesses.

The Florida Administrative Code 15A-6 governs the conduct of these hearings:
15A-6.013 Formal Review; Introduction of Evidence; Order

(1) Upon receipt of a timely request for formal review, the division shall schedule a hearing to be held within 30 days after the request is received by the division, unless waived by the driver.

(a) If the division is unable to schedule a hearing within the 30-day period, the division shall invalidate the suspension or disqualification. However, a continuance of a formal review scheduled to be heard within the 30-day period shall not affect the validity of the suspension or disqualification.

(b) If the formal review is not conducted within the 30-day period because it is continued at the initiative of the division, rather than at the request of a driver, the division shall issue to the driver a temporary driving permit, provided that the driver is otherwise eligible to drive. The permit, which shall authorize driving for business purposes only, shall be valid until the time of the hearing.

(2) The hearing officer may consider any report or photocopies of such report submitted by a law enforcement officer, correctional officer or law enforcement or correctional agency relating to the suspension of the driver, the administration or analysis of a breath or blood test, the maintenance of a breath testing instrument, or a refusal to submit to a breath, blood, or urine test, which has been filed prior to or at the review. Any such reports submitted to the hearing officer shall be in the record for consideration by the hearing officer.

No extrinsic evidence of authenticity as a condition precedent to admissibility is required.

(3) To be considered as evidence, any relevant document which is not self authenticating as provided by subsection (2) may be introduced into evidence at the formal review if it has been properly authenticated by a witness or under a statute permitting its introduction by another method of authentication.

(4) Oral evidence shall be taken only on oath or affirmation.

(5) The driver shall have the right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver.

(6) Any relevant evidence shall be admitted, provided that it is timely filed as provided in this rule. Relevant evidence is defined as evidence which tends to prove or disprove a material fact.

(7) The hearing officer shall determine whether the suspension or disqualification is supported by a preponderance of the evidence.

(a) The scope of the review shall be limited to the issues delineated in Sections 322.2615(7), 322.2616(8) or 322.64(7), F.S.

(b) The hearing officer shall restrict the course of the hearing and the evidence to the issues of fact and law raised in the notice of hearing or in any prehearing statement filed by the driver in response to the prehearing order issued pursuant to Rule 15A-6.011, F.A.C.

(c) The hearing officer is the sole decision maker as to the weight, relevance and credibility of any evidence presented.

(8) The testimony of any witness shall be under oath.

(9) The hearing officer may question any witness.

(10) The hearing officer, upon request at the hearing, may provide a reasonable time for a closing statement by the driver at the end of the hearing.

(11) The hearing officer is authorized to enter a final order. The hearing officer shall file the original order, HSMV Form 78060, with the clerk and the division shall transmit a copy of the order to the driver no later than seven (7) working days from the close of the hearing, unless waived by the driver.

(12) The date of rendition of a final order shall be the date of mailing entered on the driver license record.

Specific Authority 322.2615(12), 322.2616(13), 322.02(4), 322.64(12) FS. Law Implemented 322.2615, 322.2616, 322.64 FS. History–New 10-1-90, Amended 10-17-90, 10-7-91, 1-12-94, 1-2-96, 7-3-97, 3-11-07.

Scope of the Review

The scope of the Formal Review Hearing is fairly narrow. The burden of proof is whether the hearing officer has competent and substantial evidence to believe that

The arresting law enforcement officer had probable cause to believe that the driver was driving or in actual physical control of a motor vehicle in this state

The driver had a breath alcohol level over a .08

In the case of a refusal, whether the driver refused after being told that his driving privileges would be suspended if he refused

As you can see, it doesn’t take a lot of evidence to sustain this administrative suspension. However, experienced DUI defense lawyers are trained to challenge these hearings, often with notable success.
If You Win/If You Lose

If you win the hearing, your driving privileges are reinstated. If you lose the hearing, you will have to endure either a 30 or 90 day period during which you cannot drive. After those periods are up, you must provide DHSMV with proof of enrollment in an alcohol education program for consideration for a hardship license. If you are approved you must present this approval to a driver license examining office, take a written examination, and pay an administrative fee and a reinstatement fee and any license fee and provide proof of liability insurance on the arrest date.

The results of this hearing have no bearing or effect on the disposition of your criminal case, and vice versa.

MIAMI BEACH, Fla. (AP)—Miami Dolphins cornerback Will Allen has been charged with driving under the influence.

Allen was arrested Saturday in Miami Beach and being held at the Pretrial Detention Center in Miami on $1,000 bond.

A spokesman for the Dolphins declined comment, saying the team only recently learned about the incident.

According to an arrest affidavit, Allen drove up to a roadway blocked by police and told them he needed to get through. An officer reported that Allen smelled of alcohol and had bloodshot, watery eyes.

Records did not indicate whether he has obtained an attorney.

A nine-year NFL veteran, Allen missed the final 10 games last season because of a knee injury that required surgery.

The cost of hiring a good DUI lawyer varies by jurisdiction.

 You should expect to pay more in large metro areas than in small towns in rural areas. You should expect to pay more for a second offense than a first. You should expect to pay more for a felony DUI than for a misdemeanor. With that in mind, you will find a wide range of fees.

Typically, the top DUI lawyers charge more than new lawyers, or lawyers with lesser skills or reputations. However, there are some good DUI attorneys charging less than some terrible ones. For this reason, price alone should not be your main criteria when selecting an attorney to represent you. As a general rule, when it comes to legal representation, you should not expect anything for free.

A DUI lawyer in private practice will probably not agree to take your case pro bono (for free), even if you have a good case, and even if you shouldn’t have been charged with the offense in the first place. The best way to get a feel for attorneys’ fees in your area is to call around and get several quotes. When the economy is good, many lawyers try to charge as much as possible for each client. When the economy is poor, there are often “bottom-feeder” lawyers who charge insanely low prices for defending DUI cases (say less than $2,000.00 for the whole case) with the idea of getting a high volume of business and driving better lawyers out of business. These “bargain” lawyers typically take on way too many cases to be effective in any of them and often times leave their clients wondering whether they would have been better off with a public defender.

If you want an excellent DUI lawyer (and you should), expect to pay for it. Expect to pay between $4,000.00 and $10,000.00 or more depending on the location, the facts and complexity of the case, your criminal history and other factors. High quality DUI lawyers charge substantial amounts of money to put their expertise and skills to work for you. They often times don’t make any more money than the “bargain” or “bottom-feeder” lawyers, because excellent DUI lawyers are excellent because they view their profession as a calling and accept far fewer cases so they can do the best possible job for each and every client.

Money isn’t always the only determining factor of whether you will be able to hire the best DUI lawyer in your area. The truly excellent DUI lawyers get plenty of referrals and don’t have to beg or bargain for cases. Some will assess you to see if your expectations are realistic and if you personality will be a pleasant one for them to work with. (As an aside, “bargain” lawyers don’t care about their clients’ personalities because typically they plead them guilty at the first possibile opportunity and therefore don’t have to spend much time with them anyways.) Top DUI lawyers spend a LOT of time with their clients and earn their fees.

Please visit the other pages of MY WEBSITE.

Driving Under the Influence (DUI), Driving While Intoxicated (DWI), Operating Under the Influence (OUI), all mean the same thing in each state – that you were impaired by a substance while driving. It is generally charged as a misdemeanor if it is a first offense unless someone was injured or killed while a defendant was driving under the influence. It is generally a enhanceable offense, meaning each time that you are convicted your punishment will increase and at some point can be charged as a felony. It can result in license suspension or restriction, require the installation of interlock ignition devices (which are paid at your expense) and expensive classes or fines to regain your license. In some states the punishment is harsher if driving on a revoked license because of a DUI as opposed to just driving on a revoked license.

Driving while under the influence can be based on consumption of alcohol, drugs or a combination of both. Statutes with specific BAC levels are charged in conjunction with general DUI statutes for driving while under the influence as alternate theories of the same crime . You can be convicted of both, but you cannot be punished for both. A level of .08% is the BAC level in all states. One can still be charged if under .08% if their driving is impaired. The consumption of any drug which impairs a person, is one that can be used to charge a defendant with this offense. This includes prescription drugs or other drugs consumed otherwise lawfully.

Generally speaking DUIs are much more complicated crimes than most people would think and consulting an attorney with expertise in this area is highly recommended. Blood alcohol can be affected by blood conditions (diabetes) or other medical conditions (GERDs), or circumstances of the tests (faulty equipment, improper administration of the machine, improper maintenance, chewing gum, passage of time between driving and administration of the test, etc.)

Some defenses include emergency, privilege, rising blood alcohol, and the no driving defense. Emergency would include having to get to a hospital or having to get someone who cannot drive themselves to the hospital because they were about to die. Not wanting to leave your car parked at the bar is not an emergency or a defense of any kind. Privilege would be if an officer directed you to move a car and you were obeying his order. Your mother ordering you to move the car would not qualify. No driving defense is simply that, the defendant was not driving while intoxicated. Examples of this would be someone who was a passenger in a vehicle, their friend pulled over to let them get air on the side of the road, officers come up and assume the drunk person is the one who was driving.

The rising blood alcohol defense is one in which the defendant states that at the time of driving they were below a .08, even if they were higher than a .08 at a later time. If a person takes a couple shots back to back then hops in a car right away, the alcohol may not have hit their system yet. At the time they are pulled over, officers would administer the preliminary alcohol breath test and let’s say after the battery of FSTs (field sobriety tests) and having waited a half hour or so after those FSTs, the BAC registers at a .08. Later at the station, the defendant takes another breath test and it registers at a .10. This is because it takes time for alcohol to absorb into the blood stream so now it is fully absorbed and defendant’s BAC is at its apex. By deduction, this means the defendant was even further below .08 at the time of driving. This would only be successful if the defendant displayed normal driving, ie. defendant was pulled over for tinted windows or busted taillight as opposed to weaving in and out of the lanes. Also consider, many jury instructions state that a BAC can be assumed for three hours before and after giving that test. So juries are allowed to assume that the person was a .10 three hours before and three hours after giving that test. Because so many people do despise DUIs as a jury, fighting any DUI is difficult and working with your attorney to discuss strategy is very important, even if you think you have a “winnable” case.

Elements, crimes and defenses vary from state to state and within the federal system. If you or someone you know is charged with any crime , as always, you should consult a local attorney, licensed to practice in your jurisdiction and preferably one practicing only criminal law. For DUIs it is suggested you seek out a criminal defense attorney in which the majority of their practice is focused on DUIs. You can always look for your local criminal attorney at www.avvo.com

You’ve just been arrested for DUI. And, like in the movies, the officer reads you the “Miranda” rights: “You have the right to remain silent”, he tells you, “You have the right to an attorney”

And then the very next thing he asks if if you’ll take a breath or a blood test.
Now, wait a minute, you think to yourself. He just said I have a right to remain silent. Why should I agree to take a test? The 5th Amendment says I don’t have to incriminate myself. Something’s not right here…. And anyway, you think, do I really have to take a test? Are those breathalyzers accurate? Would a blood test be better?

Well, you think, he said I have a right to counsel: I’d better call my lawyer and get his advice before I decide whether to take a test or not, and which one I should take.

So you tell the officer you wish to remain silent, and you want to make a call on your cell phone to your attorney. “Are you refusing to take a test?” he asks darkly. “I just want to talk to my attorney,” you reply. “Your funeral,” the officer says.

Now, what did he mean by that?

What he meant was that, depending upon the state, a refusal to submit to chemical testing will trigger increased penalties — mandatory jail terms and longer driver’s license suspensions over and above the usual DUI penalties — and may even be considered a separate criminal offense. And, in most states, the jury will be instructed by the judge that this refusal can be viewed as “consciousness of guilt”.

Believing you have constitutional rights in a DUI case can be very dangerous. What happened was very common — what is called “officer-induced confusion”. Three apparently contradictory things are communicated to the (confused and very frightened) person arrested for DUI: (1) you can remain silent and refuse to possibly incriminate yourself, (2) you can consult with a lawyer, and (3) you have to take a chemical test that may incriminate you — without speaking with an attorney. What would the normal person conclude?

Well, let’s take a closer look at the laws involved here…

First, the so-called “implied consent” laws say that a person driving on the state’s highway impliedly consents to a chemical test when requested by an officer. Second, the Fifth Amendment right to “remain silent”, or not incriminate yourself, protects you from custodial interrogation, not from having to give physical evidence. Third, the U.S. Supreme Court has been vague on how the right to counsel applies in a DUI case (the well-known “DUI double standard”).

As a result, some states permit the right to counsel after an arrest; most, however, deny the arrestee any access to a lawyer in a DUI case until after the police are through with him — even if he is arrested, taken to the station, and held in handcuffs until he is tested (the post-arrest process can take up to two hours or more). So when the officer said you had a right to counsel, that wasn’t quite true. He should have said, “You have a right to counsel….usually, but since this is a DUI arrest you can’t talk to one for an hour or two”. (As we say, “the DUI exception to the Constitution”.)

What if you change your mind five minutes later and agree to take a test? Some courts have reasoned that if a short delay does not affect the value of the test, there is no good reason for not letting the suspect take the test

Translation: tough luck all around. Granted it’s all very confusing, and the courts don’t all agree, but you are going to be prosecuted and punished for refusing to take a test. Put another way, believing you really have a constitutional right not to incriminate yourself and to talk with an attorney in a DUI case can get you into a lot of trouble.

Thanks to Brian Tennebaum’s post on his blog with this Gallup study:

U.S. Clergy, Bankers See New Lows in Honesty/Ethics Ratings

Police officers’ image recovers

The government has dropped all conspiracy and money-laundering charges against Miami defense attorney Benedict Kuehne.

Kuehne was indicted two years ago for writing letters to another attorney, Roy Black, saying Black’s fees from a convicted Colombian drug trafficker were clean money. The government alleges Kuehne knew the money was dirty.

But the U.S. Department of Justice entered an order Wednesday dismissing the case.

The order refers to the fact that count one of the third amended indictment had been dismissed already.

Kuehne enjoyed support from much of the legal community during his legal fight. In a prepared statement Wednesday, he thanked the DOJ for withdrawing the case.

“I want to, once again, thank the many members of our community who have, over the past two years, so consistently expressed their confidence in my innocence,” Kuehne said in the press release.

Kuehne originally was charged with money-laundering conspiracy and concealment in connection with the legal defense of convicted Colombian drug trafficker Fabio Ochoa Vasquez.

In December 2002, Ochoa Vasquez’ s criminal defense team hired Kuehne to conduct an independent investigation into the source of funds used to pay for millions of dollars in legal fees. Kuehne wrote six letters to the defense team and Black, saying he had conducted a thorough investigation. But the government charges that Kuehne “knew that the funds used by Vasquez Ochoa consisted of, or at least were commingled with, proceeds of drug trafficking.”

Click here to read the dismissal order.

Chicago, IL. Nov. 13 –Chicago oolice officer Richard Fiorito is now facing 37 lawsuits alleging he intentionally targeted gay and lesbian drivers to issue false DUI arrests.

The lawsuits claim Fiorito was looking to capitalize on overtime pay issued to police officers when they appear in court to testify in a DUI case. Fiorito made 313 DUI arrests between January of 2007 and June of 2008; the officer was even honored by MADD for his efforts. Most of these arrests were against gay and lesbian suspects. He supposedly targeted these individuals when they left gay and lesbian bars or frequented gay and lesbian areas.

New dash cam evidence is pointing to the fact these arrest reports may have been exaggerated if not totally falsified…

Fiorito has been placed on desk duty since the charges were first issued in early October. 16 more plaintiffs recently joined the case with the original 21, leading the total to 37 lawsuits against the officer. All testimony from Fiorito in any of these pending DUI cases will be on hold until internal investigations from the Cook County State Attorney’s Office and Independent Police Review Authority are complete.

Fiorito is not the only Chicago officer accused of these types of arrests in the previous few years. Officer John Haleas was suspected to be guilty of perjury last year, having about 50 cases dismissed, but was exonerated of criminal charges.