Legal Advice - DUI




The Opinions Of Steven R. Tinsley, Attorney at Law




WARNING:        Free legal advice may only be worth the amount that you paid for it.


WARNING:          If this free legal advice is worth anything, it is worth whatever it is worth in Florida only.  Every State has its own DUI laws and nothing that follows is expected to have any application outside of Florida.


WARNING:             The author of this piece is not a board certified criminal defense attorney and cannot state that he specializes in any aspect of criminal law.


WARNING:             Some preaching may follow, however, if you bear up, eventually you may find some useful information about DUI’s in Florida.





          The first best plan to beat a DUI in Florida requires some cash.  Go to your local bank and purchase One Hundred dollars in American Express Money Orders.  Purchase the money orders in twenty or twenty five dollar denominations.  I recommend American Express because it is a well known and widely trusted financial institution, however, cash or any other widely negotiable instrument will do.  I only suggest American Express money orders because they are widely accepted and that is an important aspect of this plan.  When you need the money, you do not want to get bogged down in whether your money orders will be recognized or accepted.


          Once you have your money orders put them into the secret compartment that is manufactured into every American wallet.  If your wallet does not have one of these secret compartments, have someone show you where the secret compartment is located or go and buy a wallet that has one.  You are trying to avoid a six or seven thousand dollar criminal prosecution here.  Do not let fashion stand in your way.  Leave the money orders in the secret compartment.  Do not spend that money and do not use it for purchasing alcoholic beverages.  Take the wallet everywhere with you.


          If you find that you have consumed some volume of alcohol and you have any question about your ability to drive or about whether you are impaired, then call a cab for a ride home.  Use the money orders to pay for the cab.  If you cannot get home in a cab for less than one hundred dollars, have the cab take you to a motel.  Use the money orders for the motel.  If you cannot get to a motel for one hundred dollars ask the cab driver to take you to his house.  Give the money orders to the cab driver.


          If all else fails and you have no other option other than driving, sleep in a park and use the money orders for a blanket.  Sleeping in a park will probably cause you to be mugged or arrested.  This is where the plan begins to break down.  If you get arrested, use the money to bond out of jail.  What follows is free legal advice:  Do not offer the money to the law enforcement officers.  If you wake up to find that you are being attacked, getting mugged or otherwise being molested, throw the money orders at the muggers and run like hell.  You might get lucky and discover that your muggers take money orders.  If not, (some muggers are not in it for the money) and your muggers don’t take money orders, you are probably in for a rough night.  In which case, we should probably talk about your giving up alcohol.  If you had not drank so much, you would have probably been able to run a bit faster.


          I am not seriously suggesting that you sleep in a park or do something that will get you mugged or arrested, however, I am very serious about suggesting that you do not get behind the wheel of a vehicle, or even into your own back seat, if you are impaired by alcohol.  You may feel stupid after being arrested for sleeping in an alley, but that feeling is nothing when compared to the feeling you will get, if you have to look into the grill of your car for pieces of a pedestrian, after you have shredded one.  There is nothing like seeing legs sticking out of the front of your grillwork to make you realize that you should have called a cab.


          By the way, if your DUI is of the variety that involves evidence of a person’s legs sticking out of the front of your car, then you should know that your legal fees are going to be a tad high. 


          The smartest way to beat a DUI is to never have one in the first place.  It is a completely beatable charge in every case, if your defense starts from the back seat of a taxi. 




          In my opinion, what follows is true in about 97% of all DUI cases.  I do not believe that the average intelligent person (with no criminal experience) can read a Florida DUI citation and figure out what is happening to them.  This is important because a Florida DUI citation is, from a legal standpoint, a very complicated document that does a lot of stuff.  The Florida DUI citation is the driver’s legal notice that there are two legal proceedings that involve the driver.  THIS IS VITALLY IMPORTANT!  There are two cases charged against the driver in a typical DUI case, and by the time the driver has received his DUI citation, the driver has already lost one of the cases.  If the driver is going to try and redeem himself and his driving privilege, he only has ten days in which to start that process.  The process of challenging the lost case is called the formal review process and it has nothing to do with the driver’s hardship license. 


          The DUI citation is the formal notice to the arrested driver that the arresting officer has initiated, investigated and ruled upon the decision of whether to administratively suspend the driving privilege of the arrested driver.  The DUI citation is also the formal notice to the driver that the arresting officer has administratively suspended the driving privilege of the arrested person.  The DUI citation is also the formal notice to the driver that the only way the driver can challenge the administrative suspension is by applying for a FORMAL REVIEW.


          What is a formal review?  What is the formal review process?  How does one go about getting a formal review?  What is a person to do if one is to have a formal review?  How does one prepare for a formal review?  What kind of questions are going to be asked at a formal review?  Should I take any steps to have witnesses at my formal review?  How do I go about getting subpoenas issued for my formal review?


          These are all good questions.  I have never met a person accused of DUI who could give an intelligent answer to the above questions.  In my experience, only a very small percentage of the attorneys who practice DUI criminal defense can give intelligent answers to the above questions.


FREE LEGAL ADVICE:  If you do not know the answers to the questions in the paragraph above, you are going to need an attorney who does.  Just as importantly, you are going to need that attorney real soon.  If you wait ten days after your arrest to hire your attorney, you have probably waited too long.  FREE LEGAL ADVICE: You are going to want your lawyer to have as much time as possible to work on your case.  Interview a bunch of lawyers.  Ask them about the formal review process.  Find out if they are know legible on the subject of formal reviews.  If you want to get your drivers license back, it is probably going to be your attorney who gets it back for you.  Make sure your attorney can do that job for you.


          DUI’s are complicated legal problems and there are a lot of things you have to consider to fully appreciate the problems involved.  The first thing to realize, in my opinion, is that you are dealing with two cases, not one.




          I am told that in some states, if you have a substantial period during which you get no tickets or driving charges, the state will wipe your record clean and you get a clean slate for a driving history.  Sounds good.  That is not the case in Florida, however.


          A DUI is recorded on a Florida driving history first, as a conviction for the crime of DUI.  That entry will be accompanied by second entry noting that there has been a suspension of the driving privilege.  In addition to the conviction and the suspension for the conviction, the driving record will also note if there has been an administrative suspension for either driving with an unlawful breath or blood alcohol level or that there has been an administrative suspension for a refusal to submit to chemical testing.  Consequently, a single DUI can cause a person to have two suspensions of his or her privilege to drive in Florida.




Hell Yes!  You need an attorney very badly.




          I know a lot of very smart and knowledgeable people who say that the Intoxilyzer 5000 © (the breath testing device used in Florida) is a reliable testing device.  I tell my clients that if they really only had two beers over the course of the whole night (a statement I hear with surprising regularity) then they should take the breath test.  The breath testing machine can be used to prove innocence as well as guilt.  Generally, even a small person who is in reasonably good health can drink two normal sized beers over the course of an evening and still pass the test, that is, still have a lawful breath alcohol level.  If you know that you can pass the breath test, you would have to be an idiot to refuse to take the breath test.  The problem arises, however, when you are not confident that you will pass the breath test.

"Warning:  Do not read this as my permission to you to drive after having consumed two beers.  I have no idea what your tolerances are, and if you come back later and say that I said it was ok for you to drink and drive, then you are too stupid to pound sand with a hammer and should not be allowed to drive anyway.  Please exit my web page immediately and feel free to undertake some dangerous sporting activity that does not involve innocent bystanders."

          A person cannot be required to submit to a breath test against their will in Florida. 

A blood alcohol test is different.  The only way a person stopped in a traffic situation can be forced to submit to a blood alcohol test, in Florida, is if that person has been involved in an accident that has involved a death or serious bodily injury.  In that case, it does not matter if the driver refuses the blood alcohol test because the law enforcement officers are empowered to use physical force to draw blood for the alcohol test.  What follows is a legal truism:  It is generally a bad idea to do anything that causes a law enforcement officer to believe that he or she can use physical force to get blood out of you.


          Assuming that you have not been involved in a traffic incident involving death or serious bodily injury, and you have been arrested for DUI, you are going to have to ask yourself if you are going to submit to the breath test.  On one hand, if you refuse the test you will lose your driving privilege for one, or one and a half, years.  In addition, your hard suspension time (the time during which first offenders cannot get a work permit or hardship license) will triple to 90 days.  Furthermore, if your license has been previously suspended for refusing to submit to a breath test and you refuse to take a breath test a second time, you can be charged with a crime that is punishable by up to one year in the county jail.  In addition, if you refuse to submit to the breath test, the prosecutor will be allowed to tell your jury that the reason that you refused the breath test was because you had a conscious knowledge that you were guilty of DUI and that you refused to submit to the breath test in order to avoid being proven guilty by the machine.  On the other hand, I have spoken with individuals who have given me plausible reasons for why they do not trust the officers or their breath testing machines.  I have spoken with people, some of whom are former law enforcement officers, who believe that a breath testing devices can be caused to give higher readings under certain circumstances.  I have spoken with many individuals who were surprised by the attitude taken by their arresting officer.  Many of these people have told me that after having witnessed the behavior of, and the statements made by, their arresting officer(s), that they would never trust any testing process in which that officer had any ability to affect the test results.  Many of these individuals took the breath test, then lost their driving privilege and had to face a criminal prosecution where the breath test was going to be used against them and where they did not believe they were given a fair test. 


          You might have noticed that the above paragraph only re-stated the problem and that it did not answer the question.  Do you recall the question?  The question was, “SHOULD I TAKE THE BREATH TEST”.  I have not yet answered the question because it has several answers.  Here are a few of the questions that you could ask yourself in order to come up with your best answer.





1.       TAKE THE TEST AND PASS THE TEST:  Remember, you can’t be required to take the test unless you are under arrest.  That means that you will not be presented with the question of whether you are going to take the test until you have reached the stage where the officer has already decided to arrest you and transport you, physically, to a breath testing facility.  If you feel that you will pass the breath test, then I think you would be foolish not to take the breath test.  It