LexisNexis Practice Guide: Florida DUI Law

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ISBN: 9781632836823
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With its easy-to-navigate table of contents, concise on-point writing, and abundant practical features, LexisNexis Practice Guide: Florida DUI Law provides an excellent source to help attorneys find answers to their questions about Florida DUI practice.

•  Appendix of forms contains dozens of sample forms attorneys can readily adapt for use in their practice.

•  Warnings, timing alerts, strategic points, and exceptions point out potential issues and help prevent practice missteps.

•  Checklists help ensure attorneys don't overlook important considerations or procedural steps in building a case.

•  Coauthor is well-known as expert in Florida DUI law. Practice guide combines on-point coverage of the law with practical, "how to" insights developed through author's years of practice experience.

•  Annual updating with replacement volumes ensures that all coverage remains current.

Coauthor Robert S. Reiff has more than 30 years of experience representing clients accused of DUI and other criminal offenses. He was the only DUI/DWI lawyer named by "Best Lawyers in Florida" for 2016 and was among just six attorneys selected as Super Lawyers in the Criminal Defense: DUI/DWI section for 2016.

Authors / Contributors

Table of Contents

About the Authors

Foreword



CHAPTER 1 THE BASICS

PART I: CHAPTER OVERVIEW

§ 1.01 Scope

§ 1.02 Basics of DUI Overview

PART II: THE ELEMENTS OF A DRINKING AND DRIVING CASE

§ 1.03 The Elements of a Drinking and Driving Case

PART III: DUI TRIAL AND COUNSEL RIGHTS

§ 1.04 The Right to a Jury Trial

§ 1.05 The Right (or Not) to an Attorney in a DUI Case

PART IV: OPERATING A VEHICLE

§ 1.06 Actual Physical Control

§ 1.07 Actual Physical Control as a Critical Element

§ 1.08 So Just What Is "Actual Physical Control"?

§ 1.09 Operability of a Vehicle

§ 1.10 "Stationary Shelter" Doctrine as Exception to Rule on Actual Physical Control

§ 1.11 Some Criteria to Examine in Order to Assess Actual Physical Control

CHAPTER 2 PHYSICAL SOBRIETY EXERCISES

PART I: CHAPTER OVERVIEW

§ 2.01 Scope

§ 2.02 Physical Sobriety Exercises Overview

PART II: EXERCISES IN GENERAL

§ 2.03 Improperly Given Exercises and Unreliability

§ 2.04 Abnormal Tests to Test Normal Faculties

§ 2.05 Reasonable Suspicion to Request a Defendant to Perform Field Sobriety Exercises

§ 2.06 Statements Made in the Course of Performing Field Sobriety Exercises

§ 2.07 Establishing Probable Cause: The Proper Use of the Roadside Exercises

PART III: SPECIFIC EXERCISES

§ 2.08 The Horizontal Gaze Nystagmus Test

§ 2.09 The Finger to Nose Exercise and "Simon Sez"

§ 2.10 Physical Sobriety Exercises and the “Too Drunk” Defendant

§ 2.11 Refusal to Perform Sobriety Exercises

§ 2.12 Involuntary Physical Sobriety Exercises

§ 2.13 Precluding the Use of the Word "Test" Regarding the Physical Sobriety Exercises

§ 2.14 Can the Court Require a Defendant to Perform Sobriety Exercises Before the Jury?

§ 2.15 Vestibular Disorders and FSTs

PART IV: ADMISSIBILITY AND OFFICER TESTIMONY

§ 2.16 United States v. Horn: Are Field Sobriety Exercises Admissible as Direct Evidence of Intoxication or Impairment?

§ 2.17 Things to Remember When Cross-Examining Police Officers

CHAPTER 3 ROADBLOCKS AND SOBRIETY CHECKPOINTS

PART I: CHAPTER OVERVIEW

§ 3.01 Scope

§ 3.02 Roadblocks Overview

PART II: CHECKPOINTS IN GENERAL

§ 3.03 Genesis: At the Border

§ 3.04 Random Driver's License Checks

§ 3.05 Drug Interdiction Checkpoints: A Lesson from the Supreme Court

PART III: DUI CHECKPOINTS

§ 3.06 Roadblocks and the Use of Guidelines to Police the Police

§ 3.07 The Prosecution has the Burden of Overcoming the Presumptive Unlawfulness of a Warrantless Seizure Via a DUI Roadblock

§ 3.08 DUI Roadblocks and Selective Enforcement

PART IV: CHECKPOINT LEGAL ISSUES

§ 3.09 Does the "Good Faith" Exception Save an Otherwise Unlawful Checkpoint?

§ 3.10 Are Roadblocks to Find Witnesses Permitted?

§ 3.11 The Constitutionality of Ruse or Deceptive Checkpoints

§ 3.12 Merely Avoiding a Roadblock Does Not Necessarily Justify a Traffic Stop

CHAPTER 4 BREATH AND URINE TESTING

PART I: CHAPTER OVERVIEW

§ 4.01 Scope

§ 4.02 Breath and Urine Testing Overview

PART II: BREATH TESTS

§ 4.03 Factors Affecting Breath Test Accuracy

§ 4.04 The Science of It All

§ 4.05 Arrest Prior to Request to Submit to Breath Test

§ 4.06 Breath Test Results and "Presumptions"

§ 4.07 Breath Test Results Obtained at a Time Far Removed from the Operation of the Vehicle

§ 4.08 The Right to Consult with an Attorney Prior to the Breath Test: Unfortunately, It Does Not Exist in Florida

§ 4.09 Breath Tests and Use of the Custodian of Records to Introduce Breath Test or Breath Test Maintenance Records

§ 4.10 Breath Test Results Obtained as a Result of Improper Coercion

§ 4.11 Breath and Urine Test Results and Trial

§ 4.12 The Right to an Independent Test

§ 4.13 Preliminary Breath Tests and Admissibility in Evidence

§ 4.14 Security and the Breath Machine

§ 4.15 The "Volume Not Met" Sample

PART III URINE TESTS

§ 4.16 Urine Tests ("Oh, What a Waste")

PART IV BREATH TESTING—ADDITIONAL ISSUES

§ 4.17 Breath Testing and Schmerber, McNeely, and Birchfield

§ 4.18 The CMI Intoxilyzer 8000: Issues to Consider When Investigating the Breath Test Results

CHAPTER 5 ADMINISTRATIVE DRIVER’S LICENSE HEARINGS

PART I: CHAPTER OVERVIEW

§ 5.01 Scope

§ 5.02 Administrative Hearings Overview

PART II: JUVENILE OFFENDERS; REVIEW REQUESTS, AND INVALIDATION ISSUES

§ 5.03 DUI Administrative Hearings and the Juvenile Offender

§ 5.04 Formal Request for Review Must Be Made

§ 5.05 Invalidation Issues—What Are the Issues in Administrative Hearings?

PART III: DEFENSES

§ 5.06 Defense Tactics That Have Worked—A Look at How Creativity May Win Your Case

PART IV: EXCLUSIONARY RULE

§ 5.07 The Exclusionary Rule and Administrative Hearings

PART V: TESTIMONY AT HEARING

§ 5.08 Subpoenas, Hearsay, and Dealing with Officer's Lack of Recollection

PART VI: PRIOR CONVICTIONS OR REFUSALS

§ 5.09 Suspension Periods Based on Prior DUI Convictions or Refusal Suspensions

PART VII: USE IN CRIMINAL CASE

§ 5.10 Using Administrative Hearing to Defend Driver in Criminal Court

PART VIII: APPEALS

§ 5.11 Appeals

PART IX: FORMS AND CHECKLISTS


§ 5.12 CHECKLIST: Administrative Hearing Checklist
§ 5.13 FORM: Request for Copy of Paperwork

§ 5.14 FORM: Request for Formal Review Hearing

§ 5.15 FORM: Request for Temporary Driving Permit

CHAPTER 6 CROSS-EXAMINATION OF THE ARRESTING OFFICER

PART I: CHAPTER OVERVIEW

§ 6.01 Scope

§ 6.02 Cross-Examination of the Arresting Officer Overview

PART II: CROSS-EXAMINATION TECHNIQUES

§ 6.03 Preventing Officer From Giving "Opinion" of Guilt

§ 6.04 Establish the Ground Rules

§ 6.05 "Liar, Liar, Pants on Fire."

PART III: TYPICAL DUI INDICATORS IN OFFICER TESTIMONY

§ 6.06 Speeding

§ 6.07 Stumbling Out of the Vehicle

§ 6.08 Disheveled Clothes and Hair

§ 6.09 Flushed Face

§ 6.10 Bloodshot Eyes

§ 6.11 Odor of Alcoholic Beverage

PART IV: ROADSIDE SOBRIETY EXERCISES

§ 6.12 Roadside Sobriety Exercises

§ 6.13 "If a Picture Is Worth a Thousand Words, a Video May Silence the Prosecution’s Case."

§ 6.14 Custom and Practice

§ 6.15 Don’t Overlook the Mental Aspect

§ 6.16 Abnormal Tests [Exercises] to Test Normal Faculties

§ 6.17 "Don’t Try This at Home, Kiddies."

§ 6.18 "The Big Nevers."

§ 6.19 The Walk-the-Line Exercise

§ 6.20 Other Areas of Concern for the Walk-the-Line Exercise

§ 6.21 Things to Remember When Cross-Examining a Police Officer About the Field Sobriety Exercises

CHAPTER 7 ACCIDENT INVESTIGATION AND RECONSTRUCTION

PART I: CHAPTER OVERVIEW

§ 7.01 Scope

§ 7.02 Accident Investigation and Reconstruction Overview

PART II: DO I VISIT THE SCENE OF THE ACCIDENT?

§ 7.03 Benefits of Visiting the Accident Scene

PART III: DO I HIRE AN EXPERT?

§ 7.04 Introduction

§ 7.05 Criminal Cases

§ 7.06 Expert Referrals and Choosing an Expert

PART IV: SHARING THE INFORMATION

§ 7.07 Sharing the Case Information with the Expert

§ 7.08 Reconstructing the Accident

PART V: TIME AND DISTANCE

§ 7.09 Time and Distance in Accident Reconstruction

PART VI: THE "BLACK BOX"

§ 7.10 The Sensing Diagnostic Module, or "Black Box"

§ 7.11 Amount of Data Collected

CHAPTER 8 BOATING UNDER THE INFLUENCE

PART I: CHAPTER OVERVIEW

§ 8.01 Scope

§ 8.02 Boating Under the Influence Overview

PART II: KEY POINTS FOR THE MARITIME ENVIRONMENT
§ 8.03 Fourth Amendment Concepts on the Water

§ 8.04 Administrative Consequences of Refusing a Breath and/or Urine Test

§ 8.05 BUIs and the Preliminary Breath Test

§ 8.06 United States Coast Guard’s Unique View of BUI Cases

§ 8.07 Use of Physical Sobriety Exercises in BUI Case

CHAPTER 9 SELLING YOURSELF TO THE DUI CLIENT

PART I: CHAPTER OVERVIEW

§ 9.01 Scope

§ 9.02 Selling Yourself to the DUI Client Overview

PART II: THE DUI CLIENT

§ 9.03 The DUI Client Information Packet

§ 9.04 The DUI (or BUI) Client Interview Sheet

§ 9.05 Make No Promises

§ 9.06 Get It in Writing

§ 9.07 Once Hired, Make Sure You Cover All the Bases

§ 9.08 Explaining the Difference Between the Administrative Hearing and the Criminal Case

§ 9.09 Legal Expectations of Attorneys

PART III: PRACTITIONER TOOLS

§ 9.10 Getting the Client in the Door

§ 9.11 The Internet and Your Website

§ 9.12 Tools for the DUI Practitioner

PART IV: FORMS AND CHECKLISTS

§ 9.13 FORM: DUI Case Checklist

§ 9.14 FORM: AA Attendance Sheet

§ 9.15 FORM: Retainer Agreement: DUI Charge

§ 9.16 FORM: Credit Card Authorization

FORMS APPENDIX

Form FDL 1.01 Witness Statement Form

Form FDL 1.02 Confidential Witness Interview Sheet

Form FDL 1.03 Notice to Law Enforcement Officer of Deposition

Form FDL 1.04 Defendant's Motion for Order Permitting Misdemeanor Depositions

Form FDL 1.05 Order Permitting Misdemeanor Depositions

Form FDL 1.06 Defendant's Notice of Taking Depositions

Form FDL 1.07 Defendant's Notice of Hearing

Form FDL 1.08 Notice of Appearance & Plea of Not Guilty

Form FDL 1.09 Notice of Intent to Participate in Discovery and Demand for View of Evidence

Form FDL 1.10 Authorization to Represent in Absentia

Form FDL 1.11 BAR Subpoena for Officer

Form FDL 1.12 Authorization for Medical Records—HIPAA

Form FDL 1.13 Notice of Missing Intoxilyzer Documents

Form FDL 1.14 Affidavit to Remain on Bond

Form FDL 1.15 DHSMV Administrative Suspension Options

Form FDL 1.16 Official Form; HSMV 60012 (Rev. 05/15): Public Records Request for Video Recording

Form FDL 1.17 Video Review Form

Form FDL 1.18 DUI Client Interview Sheet

Form FDL 1.19 Sample DUI Jury Selection Questions

Form FDL 1.20 Expert Witness Letter

Form FDL 1.21 Notice to State and Defendant's Motion for Preservation and Production of Blood Sample for Independent Chemical Analysis

Form FDL 1.22 Sample Questions for the Blood/Urine Laboratory Director

Form FDL 1.23 Sample Questions for the Person Who Drew the Defendant's Blood

Form FDL 1.24 Motion in Limine to Preclude Use of the Word Test

Form FDL 1.25 Motion to Exclude Evidence of Civil Penalties

Form FDL 1.26 Letter to Insurance Company

Form FDL 1.27 Weather Documents Request Letter

Form FDL 1.28 Public Records Request Sample Letter

Form FDL 1.29 DUI Penalties Letter

Form FDL 1.30 Sample Letter Requesting Laboratory Testing Methods

Form FDL 1.31 Sample Letter Requesting Laboratory Testing Methods

Form FDL 1.32 Letter to Client Concerning Hardship License

Form FDL 1.33 Post-Representation Feedback Letter


INDEX