Understanding A DUI Charge
In Florida a DUI charge includes an administrative suspension of your driving privilege at the time of your arrest. Your DUI citation acts as a temporary permit for only 10 days following your arrest.
A DUI charge based upon the appearance of the motorist is generally brought with a separate charge based solely upon the motorist’s breath or blood alcohol content. In the first instance, it is the appearance of the motorist that counts. In other words, did he or she appear drunk? The second, however, is far more problematic. DUI is only one of a few crimes that can be proven entirely by the results of a scientific test.
Some individuals who are not intoxicated may naturally tend to exhibit what appear to be signs of intoxication, such as bloodshot eyes, swaying gait and mumbled speech. These, coupled with the strong odor of alcohol, which even one alcoholic beverage may produce, creates a strong possibility that even in the absence of a chemical test, a sober motorist could be convicted.
If, on the other hand, a motorist decides to submit to a chemical test, conviction along with the social and financial problems it entails, frequently depends upon the accuracy of a breath test.
Is chemical testing always accurate? Statistically, no. The problem lies in that fact that each and every test depends upon a presumed relationship between breath and blood alcohol. Dependent upon a lung-blood ratio reached by the National Safety Council in 1952, all breath testing ignores the fact that the ratio varies both with time and the individual tested. For instance, if the motorist is tested before the alcohol consumed has been completely distributed throughout the body, it is possible for the results of a breath test to be three times higher than his or her actual blood alcohol content. Further, there exists the effect of other chemicals which are commonly found on the breath of human beings. The development of modern breath testing equipment is rife with efforts of designers to minimize the impact of mouth alcohol, acetone, methane and others.
Not confined solely to science, breath test difficulties can be found in the manner in which breath test programs are administered. In 1991, after more than three years of litigation, I was able to prove to the satisfaction of New York’s highest courts that a Pennsylvania firm which was manufacturing breath test chemicals was engaged in fraudulently certifying lot verification and quality control.
Nor has fraud been confined in breath test chemicals. A study from five precincts in Massachusetts and California published in 1989 conclusively showed breath test operators to be setting Breathalyzer test results falsely high. Closer to home, last spring, a New York State Federal Court overturned the conviction of an individual convicted of DUI Murder when it found that two New York Troopers has falsified reports, placed pieces of the defendant’s car at the scene of an accident and attached strands of the victim’s hair to the defendant’s automobile while the vehicle was impounded.
Finally, there exists the human factor. Because of the nature of the alcoholism, an alcoholic who is convicted of a DUI is condemned to continually repeat that offense irrespective of the number of times that he or she is convicted. A sad fact is that much needed treatment is unavailable following conviction either as a result of jail or the lack of insurance coverage. Moreover, when the defendant is the predicate officer, it may very well be the best interests of society dictate that incarceration not be imposed. Presently, an individual sentenced to State prison for felony DUI will serve approximately two years. In the absence of treatment, all this sentence will do is insure that the motorist loses his or her job, loses his or her family and loses any meaningful efforts toward rehabilitation.
Thus, as unpalatable as it may seem to some, it is not only proper that the DUI defendant be afforded a vigorous defense, but such is a Constitutional imperative if the interests of justice, society, and the defendant are to be adequately preserved.