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Breath Test

One of the first questions we get when we talk to a prospective client who has been charged with DUI is, “Could I have refused the breath test?” The simple answer is, “Yes.” The more complicated answer follows.

When you are pulled over and suspected of driving under the influence, there are two standard tests that police will ask you to perform. One is the field sobriety test (physical coordination) and the other is a chemical test (blood, breath or urine). You are within your legal right to refuse to take the field tests as they are considered voluntary, however, current Florida law requires that you take a chemical test if requested, if the officer has probable cause to believe you were driving under the influence. Refusing a chemical test could have consequences, including another criminal charge.

Implied Consent

When you sign your driver’s license, you are giving implied consent. In other words, you are stating that if you are pulled over and suspected of DUI, you will perform the chemical tests that are asked of you. It does not mean, however, that you cannot refuse to do so. What it does mean is that if you change your mind and refuse, you can be charged with an additional crime.

Refusal

If you choose to refuse to take the test, you may face more severe penalties than if you had agreed to take the test. The penalties you can reasonably expect to face include a license suspension, fine, jail time and the required use of an interlock ignition device. The prosecution will attempt to use your refusal as evidence that you “must have” been intoxicated. Why would you have refused otherwise?

In Florida, you face a one year license suspension for your first refusal. A second or third refusal will have your license suspended for 18 months. Of course, an experienced attorney may be able to fight these penalties for you depending on the unique circumstances surrounding your arrest.

If you have been charged with DUI in Orlando, call our team of experienced attorneys. We will review the details of your stop and arrest and advise you of the options available to you. Your first consultation with our office is free. Call now or browse our website for more information about our firm and how we can assist you.

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What is Boating Under the Influence?

Boating under the influence (BUI) is very similar to driving under the influence (DUI). Boating while intoxicated is illegal in Florida, as in other states, and is treated just like drunk driving in a car. A boat is considered any type of motorized water vessel and can include fishing boats as well as pleasure craft. A police officer or wildlife officer is able to stop boaters who are operating a boat erratically or unsafely. A boat operator may be stopped on suspicion of BUI. Boat operation is not tied to your Florida driver’s license. However, if requested to do so, you must submit to taking a blood, breath, or urine test to determine BAC, blood alcohol concentration.

Implied Consent

In Florida, as in many states, drivers are consenting to take BAC tests when they receive their driver’s license. This law applies to cars and other motor vehicles. Operating a water vessel must be done legally. By operating a vessel you are agreeing to submit to this request. Failure to submit may result in additional charges and penalties. The legal limit in Florida for both DUI and BUI is a BAC of 0.08% for those over the age of 21. If you are under the age of 21 (legal drinking age) the BAC level is 0.02%.

BUI Penalties

The potential penalties for BUI are quite severe, even for first time offenders. A first time conviction can result in punishment with a fine of up to $1,000 and a jail sentence of up to 6 months. Additionally, there may be other penalties such as substance abuse treatment or rehabilitation, probation, and community service. Also, the boat that was operated may be impounded for 10 days. Subsequent convictions after an initial BUI will incur more severe penalties. A third or fourth BUI within 10 years of the first conviction is considered a felony. You must submit to BAC testing if requested. Failure to comply will result in misdemeanor charges and a possible fine of up to $500.

Defending BUI Charges

The first thing that must be determined in a BUI case is whether the arrest was done lawfully. The law can be rather complex in this area and there are many things that can affect the situation. If you have refused to submit to BAC testing you will be fined $500 unless you request a hearing within 30 days of your arrest. Because BUI arrests are different than DUI arrests, there are different procedures that must be followed. If the arrest is found to have been done correctly, other considerations must be reviewed. For example, the law enforcement officer must follow specific procedures when requesting a blood or urine BAC test. If the law was not adhered to during the arrest process, the BAC test may not be able to be used as evidence in the case. If you are faced with BUI charges it is best to seek guidance from an experienced attorney. Your lawyer will review your case and determine the best way to proceed.

 

One of the most common misconceptions regarding a DUI charge is a person’s ability to “trick” a breathalyzer. There are several myths that surround the machine, and tall tales of beating the test are told with gusto. While breathalzyers do have their problems, there is no proven way to beat the machine. In fact, many of the methods that people believe will help them may end up hurting them.

Here are some of the more prevalent methods that you have heard for tricking the breathalyzer:

Put a Penny in Your Mouth
The story behind this fallacy is that the metal in the penny will react in such a way with the alcohol in your breath that the machine reads a number so high that it is unrealistic. The problem with this thinking lies in not knowing how the breathalyzer works. Deep lung air is what is blown in to the mouthpiece. Even if metal were to react with the alcohol, it would do so only in your mouth. While the machine can detect the air in your mouth, it doesn’t do so in a way that will send the results sky high.

Rinse with Mouthwash
Mouthwash contains alcohol. It makes very little sense to add alcohol to your breath if your goal is to beat a breathalyzer. When you gargle with, rinse with or swallow mouthwash before you take a breathalyzer, you could see the results climb slightly higher than they would have been otherwise. Never mind that you will have very little opportunity once you are in custody to rinse your mouth out with mouthwash.

Blowing Lightly
Believe it or not, police have experience in delivering breathalyzers. Add to that the fact that the machine will not register until you blow in a certain way and you can see why trying to blow using only the air in your mouth won’t work.

Drink Coffee, Soda, or Anything with Caffeine
Caffeine may give you more energy. It may even make you feel more awake. Those are the only things that caffeine will do for you. No matter how much coffee or soda you drink, you will not affect the concentration of alcohol in your system. That means that caffeine will not help you trick a breathalyzer.

In truth, there is nothing you can do that will fool a breathalyzer machine, nor is trying any of these tricks ever recommended. While many of these ideas sound plausible, they simply don’t work. If you have heard of any other ways to beat a breathalyzer, we would love to hear them!

If you or a loved one has been arrested for a DUI in Tampa, you need a lawyer you can trust on your side. Call us immediately so that we can begin working on your case. We are here for you – call now.


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Second Guessing Your Choices After a DUI

It isn’t unusual for anyone to replay a traffic stop in their minds. It is even more common when that traffic stop results in an arrest. You may be questioning what is going to happen to you if you cooperated and performed all tests requested of you. Here are answers to the questions that may be running through your mind.

1. I drank, but did I really drink enough to be considered drunk?

It comes as a bit of a surprise to people that it is not illegal in most states to drink and drive. What is illegal is to drink to the point of legal intoxication and then operate a motor vehicle. Having a single drink and getting behind the wheel is not against the law. Having so many drinks that your judgment is impaired and your ability to walk, talk, speak, hear, and drive normally is against the law.

2. Will performing the field sobriety test hurt me in court?

Any time an officer requests that you perform a field sobriety test, it is in an effort to gain evidence to use against you in court. That said, you are considered to be impaired when you are unable to perform normal, everyday tasks and functions. The majority of field sobriety tests do not ask you to perform normal tasks. When was the last time you stood on one leg for any length of time?

3. I blew into the machine. Am I going to jail?

The breathalyzer test is used to determine the amount of alcohol in your system. It is not able to judge your level of impairment. The only thing it produces is a number. A competent attorney can fight the results of the breathalyzer test you performed. Performing requested tests such as these does not mean you are going to jail, regardless of the number that was registered.

4. Is my driver’s license suspended forever?

 If this is your first DUI arrest, or even your second, it is only in the most extreme cases that you will permanently lose your license. We understand, however, that losing your license for any length of time can present a hardship. Many people do not realize that they have 10 days to request a formal hearing in front of the DMV. You may also be able to apply for a hardship license whether or not you performed a breathalyzer test.

Do not second-guess the decisions you made during your DUI traffic stop. You can’t undo time, but you can fight for your rights going forward. This is when you need the assistance of a proven DUI attorney. Contact our offices as soon as you are able so that we can help ensure that you are treated fairly and that your rights are protected. Call now.

A diversion program is designed to provide supervision as an alternative to confinement. In Florida, the pretrial diversion program (PTD) is offered through the State Attorney for those who are eligible.  Through your attorney, you may be able to inquire as to whether this is an option in your case. In our area, the program is supervised by Orange County Community Corrections.

Requirements for PTD

Only those who meet the basic eligibility requirements will be considered for the PTD program. The crime must be a misdemeanor and you must not have any prior convictions for a similar crime. You must be a legal resident. The program applies to first time DUI arrests as well as other offenses. Participation in the program must be approved by the State Attorney.

About PTD

If you are accepted for the PTD program it will be adapted for the specific type of crime that was charged. Generally, the program for misdemeanor cases runs for 6 months and includes at least 40 hours of community service. Also, for DUI cases, the program requires use of an ignition interlock device for a period of time, typically at least 6 months. Participants must attend classes as specified as part of the program.  Programs for DUI participants may last from 12 to 15 months and 50 hours of community service.

Participation in PTD

Even if you meet the basic requirements for the program, your participation must be approved by the State Attorney office. If eligible, your attorney will try to work out acceptance for you. Failure to complete the program will result in prosecution on the original charges. The program does not begin until the paperwork has been signed. Additionally, you must attend all future court hearings for your case. You will be responsible for the costs associated with participation in the program.

Advantages of the PTD Program

The main benefit of participating in the PTD program is that successful completion means that the charges are dropped and the matter is no longer active. You will not have a conviction on your record, keeping your record clean. The program offers you resources to make changes to your life so that you will not make the same mistake in the future. When you have been charged with a misdemeanor, contact an experienced criminal attorney to assist you in your case.

What is the Legal Drinking Limit in Florida?

Florida, like other states, has laws in place to prohibit people from driving while intoxicated. The legal limit in Florida is 0.08% blood alcohol concentration, or BAC. Drivers are not allowed to drive if their BAC reaches this level. This limit is strictly enforced. Drivers may be stopped for a traffic offense or as part of a checkpoint. If the officer has reason to believe you are driving impaired, you may be requested to perform a BAC test.

How BAC is Calculated?

The most effective way to calculate BAC is through the testing of blood or urine samples. Often, however, as part of a traffic stop, police utilize a breathalyzer test. This is a device that measures the BAC through the breath. Many factors determine the concentration of alcohol in the bloodstream. Some of the factors include the body weight, body fat, how much food has been consumed, and the amount of alcohol in the beverage, to name just a few. It is difficult to calculate your own BAC without the use of a device.

Implied Consent

Drivers in Florida have automatically consented to taking a BAC test if asked to do so by a member of law enforcement. Failure to comply may result in additional charges, which can cause your driver’s license to be suspended. In most cases, it is best to comply with the request. If you have been stopped for DUI you will want to speak to an attorney who focuses on DUI as soon as possible.

DUI Defense

Impaired driving means that your ability to make crucial decisions is not as good as it should be. Your driving may be impaired from the use of drugs or alcohol. If you have been arrested for DUI you can request to have independent testing completed. This will often help with your defense against these harsh charges. Contact your attorney quickly so that he may begin to review the situation as soon as possible in order to prepare a successful case.

Credit: 911 Bail Bonds Las Vegas (CC-BY-2.0)Sometimes suspected criminals are surprised when a judge does not allow them to be released on bail. The exchange recorded in this news article describes it quite well. The suspect complains that they did nothing wrong and the judge replies that the system is for people specifically like him.

If you are arrested, you may or may not be able to be released on bail. It depends on the severity of the crime and the opinion of the court whether or not you’ll show up again if they let you go. The idea behind paying bail or bond (the terms are very similar) is to ensure appearance in the court through a financial penalty. If you don’t show up, whoever paid bail will forfeit the money or property to the court.

You could be released “on your own recognizance”, which means that the court trusts you to keep your promise to return to your trial. This happens most often with very minor crimes and ordinance violations. However, if you must pay bail there are generally three ways. One is to pay the court in cash. The second is to offer a property title of some kind to the court as surety. The last is to have a third party pay on your behalf with a surety bond.

However, if you are not able to get out on bail, it can severely hamper your ability to get your affairs in order before your case continues. The sooner you can get a lawyer on your side, the better your chances of getting your case dropped or your sentence reduced. They can even negotiate with the court about bail options if they can get on your side soon enough. If you have been arrested, call the law offices of Katz & Phillips as soon as possible. We can help.

 

My License Was Suspended – Can I Get It Back?

There are many reasons why your driver’s license may have been suspended. Whether you can regain your driving privileges depends on many factors. Each individual case is different, so it’s important to speak to an attorney to learn specifically what you can do to get it back. In Florida, one of the most common reasons for license suspension is DUI, driving under the influence. Except in extreme cases or in repeat DUI cases, your driver’s license will only be suspended, not revoked.

Suspension of License

A license suspension most offer occur for a period of 3 months, 6 months, and 1 year. If you have been found guilty of your first DUI, you will likely have your license suspended for a short period of time. It is important that your attorney present the reasons why you should keep your license the judge. Even though you may have a need to keep your license, it may be suspended. If it is, you may be able to file for a restricted license. A restricted license allows you to drive only under certain circumstances that are outlined in the order. For example, if you need your license to get to and from work, you may be granted a license that restricts you to driving only during specific hours and only to and from work.

Points

Florida uses the point system. If you are guilty of a moving violation you will be charged a number of points. The number of points that you receive depends on the infraction. More serious violations are charged a larger number of points. If you accumulate a number of points in 6 months, 1 year, or 18 months, the penalty may be a suspension of your driving privileges. If you have lost your license due to points, it’s likely that your insurance rates will go up and in some cases you may find it hard to get insurance.

Getting Your License Back

First and foremost, consult with an attorney to learn exactly what the options are in your situation. In many cases, there are some things that can be done to try to resolve the situation and at least get some temporary driving privileges. If you have recently been arrested for DUI and have had your license taken away, you may be able to get it back temporarily. You must request a DMV hearing within 10 days of your initial charge. During the hearing, your attorney will present reasons why you should keep your license. If granted, you’ll be able to retain driving privileges until your DUI court date.

 

What is a Bench Warrant?

An arrest warrant is a legal document that requires someone to be arrested. There are many reasons why an arrest warrant may be issued. They are routine in cases where a defendant fails to show up in court. If this occurs, the judge will issue an arrest warrant. A bench warrant is not exactly the same as an arrest warrant. A bench warrant specifically addresses a failure to appear at a scheduled court hearing or failing to pay a traffic ticket. A bench warrant allows police to make an arrest, should the person be located. This can happen in the course of a standard traffic stop.

What Happens If I Have an Outstanding Bench Warrant?

When the judge issues an arrest warrant, you may not know that it has been issued. However, if you are stopped for a routine traffic infraction, the police will find it when they run a check on your driver’s license. If there is an outstanding warrant, the police will take you into custody on the warrant. As with any type of arrest, you are entitled to rights – the police officer must read you your Miranda Rights. These include the right to remain silent and the right to an attorney. You are also informed that anything you say can be used in court. The police officer must also show you the arrest warrant upon your arrest.

What is the Difference between an Arrest Warrant and Bench Warrant?

An arrest warrant is issued for someone who is charged with a criminal offense while a bench warrant is typically for an act of contempt of court. Simply put, a bench warrant is usually for neglecting to show up for a scheduled court appearance. This is a crime against the court. Bench warrants can also be issued in civil cases. The end result of both types of warrants is the same. A warrant allows police to make an arrest. Because bench warrants aren’t for serious crimes, as regular arrest warrant may be, police generally do not actively pursue someone who has a bench warrant. Instead, if the person is stopped for some other reason, the police will act on the bench warrant once they become aware of it.

What to Do if Arrested on a Bench Warrant

A bench warrant arrest, like any arrest, requires the police to bring you to jail. You’ll be booked at the police station. After an arrest, the defendant will be brought before a judge for a first appearance or hearing. At the hearing the judge will provide you with the details of the crime and set bail. In some cases, especially if this is your first offense, the judge may release you on your own recognizance. The judge also sets a hearing date. It is essential to seek legal representation as soon as possible after being arrested. Your attorney will review your case and help to present your defense to get the best possible results for your case.

Drug checkpoints have recently been in the news. What are drug checkpoints and are they legal? Drug checkpoints are areas designated by law enforcement for vehicle inspection. Checkpoints are typically set up for DUI, drunk driving. DUI checkpoints have been a subject of controversy but have been deemed legal in a Supreme Court ruling. Drug checkpoints, however, are not included in this ruling. In fact, the drug checkpoints in question actually did not exist. Law enforcement used fake drug checkpoint signs to catch drivers who potentially had illegal drugs. The signs were designed specifically to deceive – no such checkpoint ever existed. Instead, the police watched drivers after they passed the sign. They then stopped those who pulled over after reading the sign.

Drug Checkpoints Don’t Exist

The fact is, drug checkpoints do not exist – they aren’t currently legal. No police department is able to legally operate such a checkpoint. These checkpoints don’t actually exist. Only signs exist. These signs are blatantly lying to the public since there is no checkpoint ahead. The only reason for the signs is to try to catch people who may be potentially carrying drugs. If you have been caught by such a scheme there are a few things that you should do.

  • Don’t say anything. It’s best to immediately invoke your right to remain silent until you contact an attorney.
  • Don’t argue with the police. While the checkpoint sign is not legal, you’ve been stopped by law enforcement and must treat officers with respect.
  • Make a note of the date and time of the stop as well as the circumstances of the occurrence.
  • Speak to an experienced attorney immediately.

 

Seeking Help after a Fake Checkpoint Stop

The local police certainly must feel as if they have a right to use a fake drug checkpoint sign. However, a skilled attorney will often be able to successfully fight your case in court. There are many factors that must be considered in such a situation. Your lawyer will want to view the sign as well as any police video taken of your stop and arrest. While you may be guilty of having had drugs in the vehicle, the police may not have had a right to search your car. It’s essential to recall every detail of the stop and subsequent arrest in order for your attorney to prepare your defense. If the stop or search was indeed done illegally, the prosecutor may not have enough evidence to continue forward with your case.

Your lawyer will work with the prosecutor to try to resolve the issue before it gets to court. If your case does proceed, your attorney will present your defense and try to achieve the best possible outcome. In these types of cases, if the sign placement was not done in accordance with the law, the traffic stop was probably not legally made. The most important take-away from this is – don’t believe every sign you read. If you do get sucked into this scam, seek legal help immediately.

 

Do I Need Representation by A Lawyer?

If you have been arrested on criminal charges the U.S. Constitution affords everyone certain rights. One of these is the right to be represented in court by a lawyer. Those who are charged with minor crimes may elect to represent themselves and even some people charged with felonies have chosen self-representation. The statistics show, however, that regardless of the offense, those represented by a lawyer tend to have more favorable outcomes than those without. Those who are unable to afford an attorney can have one appointed by the court. Many people who are able to pay for an attorney wonder whether they should retain one to represent them. In most cases, the answer is yes.

Complex Legal System

Our legal system does have some complexities to it. The laws are always being revised and refined. Those without a legal background and with no experience won’t know these laws. In many cases an experienced attorney knows how to handle charges like yours and understands the intricacies of the law in regards to your situation. Every case is different and has a unique set of circumstances. A knowledgeable attorney knows how to best defend you against the charges. Your lawyer is always on your side and will assist in your defense to get you the best outcome possible. Your rights must always be protected throughout the process and your attorney is the best one to take on this task. An aggressive strategy is often necessary in defending against some charges.

Why Not Represent Myself?

Sometimes the charges are minor. If the charges and potential consequences are insignificant there may be little harm in self-representation. However, when you are charged with a serious crime or when the penalties are strong, it is usually best to seek professional help from a lawyer with experience in the necessary type of law. When should you seek professional representation from an attorney may include:

  • If the case is going to trial
  • If you have a prior criminal background
  • If found guilty the potential penalties include prison
  • If you are in custody and unable to access adequate information to defend yourself
  • If you are fearful of the criminal process and unsure of how to proceed

Hiring an Attorney

If you have been arrested or accused of a crime you’ll want to consider hiring an attorney. When choosing representation it’s best to pick a lawyer who focuses on cases similar to yours. For example, you’ll want to choose a lawyer with a specialty in DUI cases if you’ve been charged with DUI. It is always best to get your lawyer involved as soon as possible after the arrest. This will help your case because the attorney will be better able to access information, gather data, and learn details that could help in providing a successful defense. Your lawyer will discuss the case with you and answer any questions you may have. The attorney will be able to sort through the legal system to guide you through the process for the best outcome possible.

 

How Do I Defend A White Collar Crime?

White collar crimes are quite common. They fall into a large range of different crimes and may be either misdemeanors or felonies. White collar crimes typically are committed using resources such as computers and finances rather than with weapons. Those charge with white collar crimes may be committed by business professionals, doctors, bankers, and others. For this reason, these types of crimes are considered “white collar” crimes. White collar crimes can be just as serious, or more serious, than other crimes. If you have been charged with a white collar crime it is important to seek assistance from an experienced criminal attorney as soon as possible. Because these types of crimes often involve quite a bit of evidence, the sooner you get your lawyer involved the better.

Common White Collar Crimes

There are many types of crimes that are considered white collar crimes. Some of the most common white collar crimes include:

  • Computer crimes
  • Insider trading
  • Securities fraud
  • Credit card fraud
  • Medicare fraud
  • Embezzlement
  • Money laundering
  • Identity theft
  • Income tax evasion
  • Bankruptcy fraud

Most often, white collar crimes involve schemes to get money from others using illegal methods. For example, someone may make large purchases on their credit cards with the intent of declaring bankruptcy to avoid paying. In some cases, both corporations and employees may be charged with a crime. If you are found guilty of white collar crimes, the penalties may include fines, jail time, and restitution. Restitution means repayment to the victims.

Defending White Collar Crimes

There are a wide variety of white collar crimes and the severity of each one varies as well. Very often, an arrest for a white collar crime occurs after a lengthy investigation. The investigation may be completed by either State or Federal agencies. There is usually a large amount of evidence that may have been gathered. This requires a strong defense team who will be able to gather and review the details of the case. If you have been questioned in regards to a potential white collar crime it is best to have your attorney present throughout such sessions. Do not destroy records or otherwise try to hide potential evidence because this could be considered concealment. Concealment will result in harsher penalties if you are found guilty. Remember that just because the crime was not a violent one doesn’t mean that it won’t be prosecuted. In fact, more and more white collar crimes are being investigated and prosecuted than ever before.

What to Do if You’re Charged with a White Collar Crime

The first thing to do if you’re indicted or arrested for a white collar crime is contact a lawyer with experience handling these types of cases. Immediate representation is essential to a successful defense. Because these types of cases often involve a great deal of information, they may be complex. While the charges may be unsettling, keep in mind that you aren’t yet guilty. A knowledgeable defense attorney will be able to answer your questions and assist you every step of the way. Your lawyer will work to ensure that you are properly represented and your rights are protected.