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Welcome to the Naples and Southwest Florida DUI Center

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Everything you need to know about a DUI in Florida:

What is a DUI in Florida?

Under Florida Law, a DUI occurs if:
Someone is driving or in actual physical control of a vehicle within this state, and:

  1. He/she is under the influence of alcoholic beverages, any chemical substance, or controlled substance, when affected to the extent that the person’s normal faculties are impaired; or
  2. He/she has a blood or breath alcohol level of 0.08 or more.

Florida Statute 316.193 controls the DUI Law in Florida.

Actual Physical Control

In Florida you can be prosecuted for a DUI even if you were not driving. If the Officer believes you are in “actual physical control” of the vehicle. Actual physical control requires only that you were within the vehicle and you are physically capable of starting the car. Hence, in Florida, there have been cases were people were convicted of a DUI even though they were in the back seat of the car sleeping. For this reason, it is important to hire an experienced Naples DUI Attorney that can advise you on the intricacies of “actual physical control” here in Florida.

Vehicle

In Florida you can be charged with a DUI on almost any vehicle.

  • Automobiles
  • Trucks
  • Motorcycles
  • Scooters
  • Bicycles
  • Riding Lawn Mower/ Tractors
  • Boats
  • Personal Water Craft

“WITHIN THE STATE”

In Florida you can be prosecuted for a DUI even if you were not driving on a public roadway. There have been many cases where DUI arrests have been made on private property, parking lots, in the woods, and even in a person’s own driveway. Florida courts have interpreted the language “within the state” very broadly. A skilled Naples criminal defense lawyer can advise you on the intricacies of this provision and all possible defenses available.

Here is a link to a Florida Attorney General Opinion addressing this issue:

Advisory Legal Opinion – AGO 2004-29

WHO MAKES DUI ARRESTS IN COLLIER COUNTY?

In Collier County Officers are constantly looking for impaired drivers. Routine traffic stops will often turn into DUI investigations. In Collier County there are Six Law Enforcement Agencies that conduct DUI Investigations.

Collier County Sheriff’s Office, Naples Police Department, Florida Highway Patrol, Marco Island Police Department, Florida Fish & Wildlife Commission and Seminole Police Department.

Most of the above listed agencies provide their officers with recording devices. As a result many DUI traffic stops in Collier County are recorded. This video can be a powerful weapon in the defense of a DUI in Florida. And Experienced Naples Criminal Defense Attorney can thoroughly review a DUI video and discuss how to fight a Driving Under the Influence charge.

TRAFFIC STOP

The Traffic stop may be based on a reasonable belief that you have been drinking. However, a Florida DUI traffic stop is typically prompted by a traffic violation, or perceived traffic violation. Typical traffic violations that may lead to a stop can include, but are not limited to:

  • Speeding.
  • Driving below the speed limit.
  • Failing to make a complete stop at a stop sign or traffic signal.
  • Failing to yield right of way
  • Failing to maintain lane (swerving).
  • Inoperable parts on the vehicle, broken tail light, brake light, head light, or cracked windshield
  • Having problems controlling the vehicle.
  • Turning too wide.
  • Hitting or almost hitting an object.
  • Driving the wrong way / direction of travel
  • Window Tint / Seatbelt violations

If you were stopped by an officer who did not provide the reason for the stop, you should note this and discuss it with an experienced Naples DUI lawyer. Lack of reasonable suspicion for a stop could be used as a defense to the driving under influence charge. Most officers have a check list of items they look for in any DUI investigation. At the top of this list is the suspect’s Driving pattern.

It is generally considered unlawful for an officer to detain you for an excessive period of time without a valid reason. What constitutes as excessive is open to interpretation. If an officer suspects a driver may be impaired the stop will take considerable more time than a normal traffic stop such as speeding.

INITIAL CONTACT

After an officer has stopped the vehicle, the officer will immediately begin looking for possible signs of impairment. Traffic stops are stressful situations to members of the public. Even common reactions to an officer’s questions or commands will often be mistakenly interpreted as signs of impairment. Officers will typically do the following during a Naples DUI traffic stop.

  • Request your driver’s license and proof of registration.
  • Conduct a search for any outstanding warrants on their computer.
  • Look from outside the vehicle at all visible areas for open alcohol containers and/or drug paraphernalia.
  • Inquiring if you’ve taken any medications / drugs or have consumed any alcohol.

If a driver informs, the officer that he/she has consumed alcohol, many officers in Collier County will ask the driver to rate their level of impairment on a scale of 1-10. This is a trick question, there is no right answer. Even an answer of a “1” one will be taken by the officer as an admission by the driver that they are impaired. If a person is not impaired then “0” would be the correct answer. But, often officers don’t include this as an option to the question. No matter the answer given, an experienced DUI attorney may be able to argue, the question is an interrogation by the officer and “Miranda warnings” should have been given. If it can be shown that the driver was in law enforcement custody at the time of the question, the answer may be suppressed.

Officers will also be watching and listening to how the driver responds to the questions as well as other physical observations. In particular the officer will be looking for:

  • Odor of Alcohol
  • Bloodshot, Glassy Eyes
  • Slurred Speech
  • Fumbling for requested documents
  • And perceived difficulty the driver has providing documents
  • Any difficulty understanding the questions

Your answers to these questions and the officer’s observations can be used to establish probable cause for a DUI. A skilled DUI Lawyer can advise your rights and possible defenses.

Field Sobriety Tests

Generally speaking there are potentially two forms of Field Sobriety Tests administered when someone is suspected of operating a vehicle while impaired by alcohol and/or drugs.

(1) The first form is called “Standardized Field Sobriety Exercises” or (FSE’s)

What are they?

FSE’s are series of standardized physical and/or cognitive performance tests given to a driver under suspicion of Driving Under the Influence. A driver’s performance on the tests may provide law enforcement with probable cause to arrest the driver for DUI. The results of the FSE’s may be used as evidence in court.

Standard Field Sobriety Tests (FSTs) include:

  • Horizontal Gaze Nystagmus (HGN)
  • Walk-and-Turn (WAT)
  • One-Leg Stand (OLS)

The National Highway Traffic Safety Administration (NHTSA) developed a standardized system for law enforcement to administer the Field Sobriety Exercises. Law enforcement agencies throughout Collier County and Naples use the NHTSA suggested Field Sobriety Exercises. Throughout Florida and most of the United States the NHTSA training methods are used by Law Enforcement in both in statewide and local police academies.

These tests are often unreliable, and administered improperly by law enforcement. A skilled Naples DUI lawyer will be able to advise their client’s on the top ten ways to attack the reliability of FSE’s.

What is Horizontal Gaze Nystagmus (HGN)?

Law enforcement will begin the Horizontal Gaze Nystagmus test by saying, “I am now going to check your eyes.” In fact, the officer is not conducting an eye exam. Instead they are looking for certain signs of impairment called Nystagmus. Nystagmus is the involuntary jerking or twitching of the eyeball over which a person has no control. Consumption of alcohol or other drugs may cause Nystagmus. However, there are many other reasons Nystagmus may be present or observed.

Officers are trained to administer a HGN Test by having the suspect track with their eyes an object moved horizontally across their gaze. The officer is looking for the suspect’s eyeball to jerk as he/she tracks the object being moved. The officer is looking the following signs of impairment:

  • Lack of smooth pursuit while tracking the object.
  • Distinct and sustained nystagmus at maximum deviation.
  • The Onset of nystagmus at prior to a 45 degrees angle.

This test like other Field Sobriety Tests is only considered reliable if it is administered properly. Any Top Naples DUI Attorney will be able to consult with a client and advise them if the HGN test was administered properly. Because the reliability of this test can often be attacked by a skilled DUI lawyer. Many courts will not allow the results of the HGN test to be admitted in court. Naples DUI attorneys can often argue motions to exclude any mention of HGN during trial by arguing the officer is not adequately trained. However, even if HGN testing is excluded at trial, it may be used as the basis for probable cause for a DUI arrest.

Here is a link to a video demonstrating (HGN): https://www.youtube.com/watch?v=9fQ2Zaiay2U

What is the Walk-and-Turn (WAT) test?

The Walk and Turn Test is referred to as a divided attention test. A suspect must follow verbal instructions while also performing physical tasks. Impaired drivers may have difficulty performing tests requiring their attention to be divided between mental and physical tasks. In the Walk and Turn Test, a suspect is told to remain in a start position touching there the heel to toe of their feet together. They are then given instructions to take nine steps touching heel-to-toe along a straight line. After taking the nine steps, the suspect must turn on one foot in a series of small steps in a controlled manner and return to the line now facing the opposite direction. The suspect will then be asked to take nine steps back to the starting position. The suspect will also be asked to count aloud the steps taken along the line.

The officer is looking for the following signs of impairment:

  • Inability to keep balance while listening to instructions
  • Beginning before told to start
  • Loosing balance while walking
  • Not touching heel to toe
  • Stepping off the line
  • Using arms to balance
  • Making an improper turn
  • Taking an incorrect number of steps

Here is a link to a video showing the Walk and Turn Test: https://www.youtube.com/watch?v=5BG48Bt2_u8

What is the One Leg Stand Test?

The one leg stand test is a standardized field sobriety test that police use as a means of determining is a suspect is under the influence of alcohol and/or drugs. The test typically lasts for 30 seconds. The officer asks the suspect to select whichever foot is most comfortable and lift it up approximately six inches from the ground. The suspect is instructed to court a loud by thousands. “one thousand-one, one thousand two” , ect. The suspect continues to count until told to stop by the officer.

The Suspect is also instructed to keep his eyes on the lifted foot and keep his arms by his sides while performing the test. The officer looks for certain signs of impairment such as:

  • Swaying
  • Using arms to balance
  • Hopping
  • Putting foot down
  • Not looking down at foot
  • Not keeping foot parallel with the ground

After viewing any of the above clues, the officer will often jump to the conclusion that the person is impaired by alcohol and/or drugs.

Here is a link to a video showing the One Leg Stand Test: https://www.youtube.com/watch?v=7g7vA_qlcko

Officers are taught to administer this test in a very meticulous method. Nonetheless, police frequently instruct and demonstrate this test incorrectly. It the test is administered incorrectly then the officer may be subject to attacks on the accuracies of the test.

A Top Naples Criminal Defense Attorney will be able to advise clients on the various ways to attack the one leg stand test. Often the officer does not take into account the footwear of the suspect. The ground conditions may be unstable or at an incline. The weather conditions including wind, rain, etc., can effect a person’s performance on this test. Most importantly, a person’s physical injuries can greatly effect a person’s ability to perform this exercise.

While the three standard tests above are most commonly used, local law enforcement agencies have the latitude to introduce other tests as they see fit. When a driver discloses during the course of a DUI investigation that they have physical ailments or limitations that prohibit them from completing the Standardized Field Sobriety Exercises the below tests may also be requested. In Collier County these may include:

  • Finger-to-Nose Test
  • Romberg Test (estimate of 30 seconds, counting internally)
  • Alphabet Test


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Contact a diligent Florida DUI defense lawyer for a free initial consultation

The Law Office of Donald P. Day represents Collier County residents who have been charged with driving under the influence and other criminal offenses. Please call 239-234-2239 or contact us online to schedule a free initial consultation at our Naples office.

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