In Florida, the State has two equally valid ways of proving a DUI.  Both require the State of Florida to prove that you were driving or in actual physical control of a vehicle within this State.  However, that is where the similarities end.  Our previous post focused on the Per Se or DUBAL method to prove a DUI.  This article will focus on the Normal Faculty Method.

Normal Faculties Impaired

In cases where the driver refused to take a breath test, or the results of that test were determined to be inadmissible, the State can still go forward with the charges and attempt to prove a DUI using the Normal Faculties method.

To prove a DUI using the normal faculties method, the State of Florida must prove:

• You drove or were in actual physical control of a vehicle within this state (as mentioned above);

AND

• You were under the influence of alcohol, a chemical substance, or a controlled substance to the extent that your normal faculties were impaired.

What are Normal Faculties?

When the State is using this method to prove a DUI, the Judge will read the jury Florida’s Standardized Jury Instruction which defines normal faculties.

The definition of normal faculties is:

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.

The state will attempt to use the arresting officer’s observations and opinions from the scene of the arrest.  These will include: the driving pattern, the stopping of the vehicle, face to face contact with the driver, the driver’s exit from the vehicle, the driver’s behavior at roadside, field sobriety exercises, and any refusal to take a requested test.

Fortunately, these days most DUI roadside encounters are video recorded.  These videos often portray a scene very differently than the one described in the officer’s report.  We have even had cases where the officer claims to have observed our client performing the walk and turn exercise extremely poorly, saying in his report that the client stepped out of the start position numerous times, stepped off the line between 3-5 times while walking, failed to touch heel to toe between 3-5 times, made an improper turn and did not count his steps out loud.  Watching the video, none of the items described in the report happened. Had there been no video recording, we would not have been able to show the officer was incorrect in his observations.

Defeating Normal Faculty DUIs in Central Florida

Depending on the facts of your particular case there are many different trial strategies that can be employed to attempt to defeat a DUI when the state uses the Normal Faculty approach to proving the crime.  If you did well on the Field Sobriety Exercises, yet according to the officer’s scoring criteria still failed them, we can regrade them using a fair scoring method.  Using this defense, we have been able to show juries that our clients did 98% of everything the officer asked them to do correctly but was still arrested for DUI.  Comparing that to a test in school where a 98% is an “A,” it is easy for a jury to see how absurd convicting for DUI based on the evidence present would be.  In one case, where the officer did not demonstrate the exercises perfectly, we were able to use the State’s own scoring criteria to show that the officer had actually done worse on the exercises than our client who was accused of DUI.  Our closing argument was basically that if you convicted our client, you had to convict the officer too.  The jury came back “Not Guilty.”

Call the Board-Certified DUI Defense Attorneys at Katz & Phillips Today to Discuss Your Case

The Expert DUI attorneys at Katz & Phillips, P.A. will analyze the facts of your case and provide advice based on your individual situation.  We are happy to discuss what strategies can be employed to win your case with you when you call.  We look forward to speaking with you and answering all your questions.  In all criminal cases, you, the client, decide whether or not to take a plea offer.  It is our job to make sure you have the information to make the best decision for you and your family.  Of course, we love to go to trial, so we never pressure our clients to take a deal.  We hope you call to discuss your case with us.

In Florida, the State has two equally valid ways of proving a DUI.  Both require the State of Florida to prove that you were driving or in actual physical control of a vehicle within this State.  However, that is where the similarities end.  This article will focus on the Per Se DUI.  Click here to read about DUIs proven using the Normal Faculty Method.

PER SE DUI (DUBAL)

A Per se DUI also known as DUBAL (Driving with Unlawful Balance) is proven by the results of a Breath or Blood test.  A Per Se DUI can only be proven in the case of alcohol, and cannot be used to prove a DUI based on chemical or controlled substances.  In Florida, once an officer makes an arrest for DUI, they can ask the person to take a breath test.  The use of blood tests are severely restricted in Florida, but a Per Se DUI can also be proven in cases where a blood test is administered.

To prove a DUI using the Per Se method, the state must prove:

• You drove or were in actual physical control of a vehicle within this state (as mentioned above);

AND

• A) you had a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or

1. B) you had a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

No Per Se DUI if the Breath Test is Refused

In Florida, you must first be placed under arrest for DUI before a request for a breath test is valid and lawful.  If you are asked to take a breath test prior to being arrested and you refuse, in most cases the refusal will not be able to be used against you as the request is invalid.  Further, once you are arrested, an officer can only ask that you take a breath test.  If you say no, there are penalties that are applied against you.  See our article on Implied Consent to learn more about breath test refusals.  However, if you refuse, the State cannot prove your DUI using the Per Se or DUBAL method.  A breath test (if admissible) is a very strong piece of evidence for the State at trial.

No Per Se DUI if the Breath Test Result is Suppressed

In most Florida counties the results of the breath test are admissible in a trial against you, unless there was something about your particular test that was done improperly.  However, the Law Offices of Katz & Phillips, P.A. have participated as co-counsel or lead counsel in major decisions affecting the admissibility of breath test results using the Intoxilyzer 8000 (the only machine approved for use in Florida) in Orange, Seminole, Osceola, and Lake Counties.  Because of work we did alone (Lake and Seminole Counties) and work with did with a select few other local attorneys (Orange, Seminole, and Osceola Counties), tens of thousands of breath test results have been suppressed in Florida, which means they were not admissible as evidence in court against the driver.

An Experienced Central Florida Attorney Can Help with Per Se or DUBAL DUIs

Believe it or not, even if you have blown over the legal limit you still have a chance to be found not guilty by a jury.  Our expert DUI defense attorneys have experience defending thousands of clients who took the breath test a blew over the legal limit.  All hope is not lost.  First, it may be possible to get your breath test score suppressed.  It does not matter what your score results were if the Judge rules that the state cannot mention the breath test to the jury.  Further, there are other defenses even if the score is admissible.  One such defense is the disconnect defense.  There are times that the breath test result is outrageously high and yet the person stopped for DUI looks sober on the roadside a jail videos.  A jury can choose to disbelieve a number produced by a machine and instead use their common sense.  Remember the State must prove beyond and to the exclusion of all reasonable doubt that the driver is guilty.  Even with a high breath test score, a video showing a person behaving normally can convince a jury not to put any credibility into the breath test score and result in reasonable doubt and a not guilty verdict.

Call the Orange County Office of Katz & Phillips, P.A. Today to Discuss Your Case.

            The Board-Certified Expert DUI Defense attorneys at Katz & Phillips, P.A. are always happy to discuss the particular facts of your case with you.  Our experienced team will take the time to look through your police report and discuss how we can help you based on the facts of your case.  Call today.  Remember that you only have 10 days from the date of your arrest to protect your driving privilege.  We look forward to speaking with you.