Articles Posted in DUI / BUI – Drunk Driving

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We have all seen Jacksonville Roadblocks. These are police created checkpoints that are intended to look for those driving under the influence. If someone is arrested at a Jacksonville DUI checkpoint, he or she may be able to challenge the legality of the stop. Florida courts have ruled that the state must prove the legality of these stops. As such, the state must show that “the officers in the field are governed by a set of neutral criteria procedures which field officers are to follow at the roadblocks.” Guy v. State, 33 Fla. L. Weekly D2238a (2nd DCA 2008). In Guy, the Second District Court of Appeals ruled that a sobriety checkpoint was unconstitutional, because it gave the officers the discretion to selectively stop vehicles in the event that traffic backed up.

If a person is charged with a crime when being stopped during a Jacksonville DUI roadblock, he or she should discuss the legality of the checkpoint with a Jacksonville DUI Attorney.

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When a Jacksonville driver receives a Driving Under the Influence (DUI) conviction, his driver’s license is suspended.  The more prior Jacksonville DUI charges that a driver has, the longer the suspension.  However, most people are eligible for a Florida hardship license, even if they have prior Jacksonville DUI convictions.

According to Florida Statute Section 322.271(2)(a), a hardship driver’s license cannot be granted to a person that has: 
  1. been convicted of DUI two times or 
  2. had his license suspended for refusal two or more times.  

This Florida law does not make an exception for Florida drivers with a refusal suspension.  However, Florida Statute Section 322.271(2)(b) allows a Jacksonville driver that has been previously convicted of DUI to petition for a hardship license, but there is a waiting period.  A Jacksonville DUI that resulted in a five year license suspension has a 12 month waiting period, and a Jacksonville DUI with a ten year license suspension has a 24 month waiting period.  After the waiting period has expired, a Jacksonville DUI lawyer can petition the department of motor vehicles and establish the basis for granting a hardship license.  

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1035921_gps_driving_2.jpgAfter a Jacksonville DUI arrest, normally, the driver receives a 10 day temporary driving permit.  During this time period, his Jacksonville DUI Attorney should request a DMV hearing which will occur within 30 days of such request.  During this 30 day period, the Jacksonville DMV will issue a temporary driving permit.  After the hearing, the DMV will either reverse the Jacksonville DUI suspension or uphold it.  If the DMV upholds the Florida driver’s license suspension, you may be eligible for a hardship license.

With Jacksonville DUI driver’s license suspensions, a driver normally falls under one of two categories. 
  1. Jacksonville DUI will a blood or breath alcohol level or .08 or higher:  In this scenario, a driver must wait 30 days, after the suspension occurred, before he can obtain a hardship license.  The clock does not begin to run until the Florida driver’s license is actually suspended, so you must wait until after the temporary driving permit expires.
  2. Jacksonville DUI where the driver refused the chemical test:  In this scenario, the driver must wait 90 days, instead of the 30 days stated above.  
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In Jacksonville, when a person is arrested for Driving While Under the Influence (DUI), the DUI driver is asked take a breath-test.  If the DUI driver refuses, his driver’s license will be suspended for 12 months pursuant to Florida Statute Section 322.2615.  However, before this occurs, the DUI driver is entitled to a hearing at the Florida Department of Highway Safety and Motor Vehicles (DMV).  
Today, I represented a person charged with a Jacksonville DUI at a DMV hearing.  The arresting officer was a Drug Recognition Expert (DRE), Officer M. T. Borgert.  At the start of the Jacksonville DMV hearing, I asked him about one of the Field Soberiety Tests that he administered called “HGN.”  This test is used in many Jacksonville DUI cases.  The officer moves a pen across the driver’s face to help him determine if the driver is driving under the influence.  The HGN test is a standard test that should be performed the same way every time.  However, in this Jacksonville DUI case, Officer Borgert did not perform the standardized test properly as evidenced by the DUI video.  Most people will watch a DUI video and not notice this, because it is not obvious.  As a Jacksonville DUI Attorney, I paid very close attention to the way he administered the test.  Therefore, I was able to discredit Officer Borgert’s testimony and the reliability of the HGN test at the Jacksonville DMV hearing.  
When I was in law school, I had a professor that always stated “the devil is in the details,” and as a Jacksonville DUI Attorney, I cannot agree more.  Jacksonville DUI Attorneys must pay close attention to every detail in a DUI case.  Field Sobriety Tests must be performed properly to be valid.  If you are arrested for DUI in Jacksonville, you should contact a Jacksonville DUI Attorney to evaluate your case.  

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Jacksonville DUI blood draws are only permitted under certain circumstances.  In a Jacksonville Driving Under the Influence (DUI) case, a police officer cannot force a driver to give a blood sample unless the Jacksonville DUI resulted in a car accident involving death or serious bodily injury (see Florida Statute Section 316.1933).  Some Jacksonville DUI officers have disregarded this Florida law, and forced blood test on drivers charged with DUI.  After the driver refuses the breath test, the Jacksonville DUI officer obtains a search warrant allowing him to force the blood draw.  Florida Statute Section 316.1933 clearly states that a blood draw is limited to a Jacksonville DUI that involved serious bodily injury.  This type of warrant gives another exception that the legislature did not create. If this occurs, a Jacksonville DUI Attorney should file a Motion to Suppress the results of the blood test.  

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329034_blood_test.jpgA driver charged with Driving Under the Influence (DUI) in Jacksonville has the option to refuse a breath and/or urine test under Florida’s Implied Consent Law.  If the driver refuses the breath or urine test, the refusal can be used against him, and if he submits to the testing, the results can be used against him.  

In some Jacksonville DUI cases, the police officer may request a blood draw.  According to Florida Statute Section 316.1932, a police officer may request a blood test if the driver is at a medical facility for treatment, and administering a breath or urine test would not be practical.  If a Jacksonville DUI case falls under this statute and the driver is conscious, he has the option of refusing the test.  Under Florida Statute Section 316.1933, a police officer can force a driver to submit to a blood test if the Jacksonville DUI case involves death or serious bodily injury.  If blood is drawn in violation of Florida law, a Jacksonville DUI lawyer should file a Motion to Suppress the results of the blood-draw.  

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Jacksonville DUI officers administer the Horizontal Gaze Nystagmus test is as a standard field sobriety test.  A Jacksonville DUI defendant can defend against the HGN test in many ways.

  1. There are medical reasons that Jacksonville DUI suspect may exhibit nystagmus (jerking of the eye), other than due to alcohol impairment.  Nystagmus can result due to pathological disorders, such as brian tumors, brian damage, and brian injuries.  This can be noted if the Jacksonville DUI defendant has pupils that are different sizes, the eyes jerk even when the DUI suspect is looking strait ahead, or the eye’s do not track together.
  2. The Jacksonville DUI officer did not perform the test correctly.  Some police officers will hold the pen light too close or too far from the Jacksonville DUI suspect’s face.  It should be 12 to 15 inches from his face.  The police officer moves the object too slowly or quickly, instead or slowly and smoothly.  The police officer does not make a strait line, and curves the pen to the side, upward, or downward.    
To learn more about Jacksonville DUI HGN tests contact a Jacksonville DUI lawyer or visit Jacksonville DUI HGN Test Information blog.  

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Horizontal Gaze Nystagmus (HGN) test is a field sobriety test that is used in Jacksonville DUI cases.  The Jacksonville DUI officer uses a pen light to track the DUI suspect’s eyes.  The DUI officer looks for three clues on each eye.  

  1. Smooth Pursuit:  The Jacksonville DUI officer moves the pen light smoothly and slowly from the center all the way out to his right side, checking the Jacksonville DUI suspect’s left eye. Then, the DUI officer moves it his left side, checking the DUI suspect’s right eye.  The Jacksonville DUI officer returns the pen light back to the center of the driver’s face.  This takes approximately two seconds.  The Jacksonville DUI officer must do this portion of the test at least twice.  He is looking for the eye to “lack smooth pursuit” and make a jerking motion.  
  2. Nystagmus at Maximum Deviation:  The Jacksonville DUI officer holds the pen light as far to the right as possible, checking the Jacksonville DUI suspect’s right eye.  He is looking for a distinct and sustained jerking of the eye.  The Jacksonville DUI officer does the same to the right eye.  He must check each eye at least twice.  
  3. Nystagmus Prior to 45 Degrees:  The Jacksonville DUI officer uses the pen light to notice when the eye begins jerking.  Usually, the officer is looking for the Jacksonville DUI suspect’s eyes to begin jerking before the pen light reaches a 45 degree angle.  The 45 degree angle occurs approximately at the Jacksonville DUI suspect’s shoulders.  This is also performed twice on each eye.  
To learn about defenses to Jacksonville DUI HGN test, contact a Jacksonville DUI lawyer or visit Defenses to Jacksonville DUI HGN Blog.  

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Jacksonville Florida DUI Officers use a field sobriety test called the walk and turn test in order to determine if a Jacksonville DUI suspect is impaired by alcohol.  The Jacksonville DUI officer gives the driver instructions about the test.  While he is giving instructions, the Jacksonville Florida DUI suspect must keep the left foot directly in front of the right foot and keep his arms by his side.  If the Jacksonville DUI suspect is unable to maintain his balance, the DUI officer will hold this against him.  Once the test begins, the driver must take nine heel-to-toe steps down a line, turn using small steps with only one foot, and walk back nine more steps in the same fashion.  If the Jacksonville DUI suspect misses his heel to toe by only one-half inch, the officer will note this as a clue that the driver is impaired.  The Jacksonville DUI suspect must watch his feet the entire time, keep his arms by his side, and count the steps out loud. If Jacksonville Florida DUI suspect fails to perform any of these properly, the DUI officer will consider this as a sign that the Jacksonville DUI suspect is impaired.   
To learn about defenses to the Jacksonville DUI Walk and Turn Test, contact a Jacksonville DUI Attorney or visit Jacksonville DUI Walk and Turn Test Defense blog.  

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Jacksonville DUI Field Sobriety Tests include the One-Leg Stand test.  Florida DUI officers use this test to determine if a Jacksonville DUI suspect is impaired.  This test is a DUI test that divides the Jacksonville DUI suspect’s attentions and judges his ability to follow instructions, balance, and count aloud.  The test is divided into two stages: the instructions stage and the performance stage.  During the instruction phase, the Jacksonville DUI suspect  stand with his feet together and his arms by his side, while the Jacksonville DUI officer give the instructions.  The Jacksonville Florida DUI officer is watching the Jacksonville DUI suspect sways or loses his balance.  During the performance stage, the Jacksonville DUI suspect is required to lift one leg about 6 inches off the ground.  The Jacksonville DUI suspect must stand with both legs strait, look at his foot, and count to 30 seconds.  The Jacksonville DUI officer is looking for four clues: (1) swaying, (2) using arms to balance, (3) putting the foot down prematurely, and (4) hopping.  If the Jacksonville DUI suspect does two of the things lifted above, the Jacksonville DUI officer will imply that he is impaired. 

To learn more about Jacksonville DUI One-Leg Stand test and defenses associated Jacksonville DUI charges contact a Jacksonville DUI lawyer or visit Jacksonville DUI One-Leg Stand Defense blog.  
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