Holiday Drinking: More Problems than a Hangover

With Thanksgiving, Christmas and New Year’s coming up we should all be aware of Florida's DUI laws. If you drink, please do so responsibly.

Did you know that it takes very little alcohol to put an average-sized man over a .08? Two martinis will do the trick. And for a woman, two glasses of champagne in an hour is enough to put her over the top. What that can mean is that a lapse in judgment or simply being in the wrong place at the wrong time (DUI roadblock, for example) can earn a set of silver bracelets and a ride to jail for Christmas.

Here are some things you should know:

Florida's administrative suspension laws will affect your driving privileges if you refuse the breath test or blow over a .08. There is also a 10 day time limit for filing an appeal of this suspension. Any conviction for DUI results in a permanent criminal record and can never be sealed or expunged.

There are a number of other consequences that flow from a DUI arrest/conviction such as fines, probation, DUI school, a possible ignition interlock device and guaranteed increased insurance rates.

Do I Take The Breath Test?

Having a .08 BAC you will set in motion an immediate DHSMV suspension of your driving privileges for six months and refusing the test will result in a suspension period of one year. DHSMV will impose an 18 month DUI refusal suspension, with no permit, for a second refusal. It's also important to know that a second refusal can be added as an additional charge punishable by up to one year in county jail.

Defenses to DUI Cases

There are dozens of valid legal defense to any DUI charge. I can determine which of those may be applicable in your case. I have had great success over the years while defending over 3,000 DUI and suspended license cases.

Jonathan Blecher is a former state prosecutor and a criminal defense attorney with offices in the Downtown Dadeland area. He has 31 years of criminal law experience. Contact Jonathan Blecher to schedule an appointment to learn more about any Miami DUI arrest.

Dispelling Miranda Rights Myths

Television and movies have made us all well-aware of the Miranda warnings that officers read off to suspects as they are being arrested. They go something along the lines of this:

“You have the right to remain silent. Anything you say or do can and will be held against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?” (Courtesy of the U.S. Courts website)

While these warnings actually are read to arrested individuals in real life, there are a few misconceptions about the Miranda warning that need to be addressed.

Before delving into these misconceptions, let’s take a look at why the Miranda warnings exist and how they came to be. The purpose of the reading of these warnings is to protect people’s Fifth Amendment right against coerced self-incrimination when they are being questioned by officers while they are in custody (usually once they have been arrested). It is also meant to protect individuals’ Sixth Amendment right to an attorney. The Miranda warnings specifically apply to custodial interrogations, or questioning of a person in the custody of law enforcement and their freedom is limited. The idea is to inform the suspect that they are not legally required to answer officers’ questions; that if the individual does choose to speak, his or her statements can be used as evidence in court; and that he or she can choose to consult with an attorney, and to have one present, before talking to law enforcement.

The Miranda warnings became part of an arrest and interrogation protocol from the 1966 U.S. Supreme Court case Miranda v. Arizona. In this case, the Supreme Court of the United States ruled that officers must warn detained individuals of their rights as outlined above before they are subject to custodial interrogation. The Court also ruled that a failure to provide such warning (or any violation of the person’s Fifth or Sixth rights) will lead to the person’s statements being deemed inadmissible in court—even if those statements indicate guilt. For more information about the Miranda v. Arizona case, click here.

Many people falsely believe that an officer failing to read a suspect his or her Miranda warnings at the time of arrest means that the arrested person cannot be convicted. This is not necessarily true. A failure of an officer to recite the Miranda warning simply means the suspect’s statements made in the custodial interrogation cannot be used in court as evidence. Oftentimes, this equates to the case being dismissed or the defendant winning the case, due to insufficient evidence. However, in some cases, there may be other strong evidence that is used to reach a conviction, even without the defendant’s inadmissible statements.

Another misconception is that individuals need to be read their Miranda warnings in any type of questioning—even pre-arrest or pre-custodial questioning in which the person willingly cooperates with the investigation. In these types of interrogations, the person being questioned is not being held in custody and therefore has the freedom to walk away from the interrogation at any time. Considering this fact, it is not mandatory for officers to warn these individuals of their Miranda Rights in these types of situations.

My name is Jonathan Blecher, and I am a Miami DUI lawyer with more than three decades of experience. If you believe that you were not properly read your Miranda warnings or that your Constitutional rights were violated during the arrest/interrogation process, do not hesitate to contact myfirm. I provide defense in cases involving DUI arrests and many other types of criminal charges.

Tampa Sherriff's Department Gave Legal Advice to DUI Suspects

My colleagues at the Sammis Law Firm in Tampa, Florida alerted me to this practice by the Hillsborough County (FL) Sheriff's Office. It appears that the sheriffs took on a new role as legal advisors for their arrestees by handing out this flyer.

While nothing in the flyer is wrong, it’s incomplete and does not explain to the arrestee all of their legal options and secondary ramifications of electing to waive a formal review of the license suspension. And since when are police authorized to deliver legal advice to their prisoners?

What's Missing from This Notice?

It says nothing about the downside to electing to waive the formal review hearing. Waiving the Formal Review Hearing will result in a suspension for 6 months for a breath test over .08% and one year for a first refusal to submit to a chemical test.

It says nothing about the fact that this suspension will appear on your Florida driving record and could affect employment and insurance coverage. Some companies will treat the suspension as if it were a DUI conviction (which it's not) and not renew coverage.

It says nothing about the right to a formal review hearing to contest the legality of the suspension and that obtaining the business permit right now will toss that right in the garbage.

What Do You Give Up?

The Formal Review Hearing is a valuable discovery tool. The Bureau of Administrative Reviews will let us copy their entire file of police reports and breath testing/refusal. This gets me a leg up on prosecutors who won't see these documents for weeks. I also get to subpoena and take sworn statements of the police officers involved affording us a great opportunity for impeachment at a later time.

Since When Are Police Allowed to Dispense Legal Advice?

When my clients ask the police at the breath testing facility if they should take the breath test, the police invariably advise that they can't offer an opinion or give them advice. They tell my clients that if they refuse, their license will be suspended, which is all the law requires of them.

If a paralegal in my office were to give specific and material advice to a client about a legal matter, they might be subject to laws relating to the unauthorized practice of law. In these cases, the police are an adverse party who should steer clear of any advice or acts which could affect valuable legal rights.

Jonathan B. Blecher Named One of the "10 Best" Florida DUI/DWI Lawyers

Miami, Florida attorney Jonathan Blecher has been honored by the American Institute of DUI/DWI Attorneys (AIDUIA), having been named one of the 10 Best Florida DUI lawyers. This is no small honor, since attorneys must meet extensive qualifications in order to make this list. The selection process involves nomination by at least one practicing attorney, as well as independent research by the AIDUIA team.

Attorney Blecher’s nomination alone is enough to show his dedication and commitment to DUI defense, as well as his recognition among his peers. He has proven himself to be a leader in his industry who is highly rated by clients and peers alike.

To be named one on of the “10 Best,” Attorney Blecher holds a perfect 10-out-of-10 rating for client satisfaction, with no negative feedback or complaints with the bar. He also meets the requirements of possessing an advanced degree, receiving awards, being involved with professional associations, being published, and having spoken publicly in his field. Lastly, he was approved by the AIDUIA Board of Regents, resulting in his selection to the 10 Best list.

Attorney Blecher recognizes what an honor it is to receive this recognition from the AIDUIA. His desire is to continue providing excellent counsel and outstanding DUI defense representation for each client who walks through his doors.

Licensed for over 30 years, Mr. Blecher focuses his practice at Jonathan Blecher, P.A. on DUI defense. He is rated AV-Preeminent® by Martindale-Hubbell®. His "Superb" 10.0 out of 10.0 rating on Avvo.com, a professional attorney ratings directory, from both clients and peers speaks to his superior qualifications. He has been named as one of Florida's Legal Elite, by Florida Trend Magazine and has been recognized as a Top Rated Lawyer in South Florida and a Top 100 Criminal Trial Lawyer in Florida by The National Trial Lawyers.

Jonathan Blecher, P.A. is located in the Pinecrest/Dadeland area of Miami, Florida. Mr. Blecher can be reached at (305) 707-0036.

The History of DUI Laws in the United States – 1960 to 1990

Driving while intoxicated is not a new problem. In fact, it's practically as old as the automobile itself. In this blog, we've been looking at the history of DUI laws and enforcement over the past weeks, beginning with the first such U.S. laws in 1907. The decades between 1960 and 1990 brought substantial changes both in how law enforcement deals with DUI offenses and also in public opinion.

While alcohol-related traffic accidents still account for more than 40 percent of all traffic fatalities in the United States, according to the National Highway Traffic Safety Administration (NHTSA), the number of traffic deaths has been reduced dramatically over the past 50 years.

MADD and DUI Laws

This shift is, in large part, contributable to one California mother's passion and loss. Candy Lightner started Mothers against Drunk Driving (MADD) in 1980 after her 13-year-old was struck and killed by a drunk driver with previous DUI convictions while she was walking home from school. Lightner and MADD worked diligently to change America's DUI laws and raise public opinion about the seriousness of drinking and driving. MADD is largely responsible for the lowering of the legal blood alcohol limit to .10% from .15% and a few years later to .08%. (Today's limit is .05%.) The organization also pushed for "zero tolerance" legislation for drivers under the age of 21. Such laws made it illegal for young drivers to operate a vehicle with a .01% or greater blood alcohol level.

MADD was also successful in lobbying Congress to raise the national drinking age, resulting in the minimum drinking age being raised from 18 to 21 years in 1984. Largely as a result of MADD's activity, 700 new drunk driving laws were passed in the United States between 1980 and 1985.

Student against drunk driving (SADD), formed in 1981, was another force in changing how young people look at drinking and driving. Today, this peer-driven group has 10,000 chapters in middle schools, high schools and colleges throughout the United States.

Drunk driving began to be taken seriously during the 1980s, both by citizens and by law enforcement. That work continued into the 1990s and beyond. In our next post, we'll look at how DUI laws changed from 1990 to the present day.

This is the third post of a four-part series on the history of DUI laws in the United States and their enforcement. Last time, we talked about DUI laws in the post World War II era. We hope you'll visit again over the next few weeks as we discuss how DUI laws in the United States have evolved over the past decades.

The History of DUI Laws in the United States – 1930 to 1960

The end of prohibition in 1933 brought alcohol back to American living rooms and restaurants. In addition, the gradual end of the Great Depression meant more average Americans were able to buy automobiles, often for the first time. This combination increased the number of alcohol-related accidents and re-focused America's attention on the problem of drinking and driving.

One of the most notable such accidents of that era involved best-selling author Margaret Mitchell, whose Civil War era novel, "Gone with the Wind" had earned her more than $1 million in royalties. Ms. Mitchell was crossing the street near her Atlanta home in 1949 when she was struck by an off-duty taxi driver motoring down the wrong side of the street. She died of her injuries several days later. The driver later admitted to having had several drinks.

Measuring Blood Alcohol Levels

The first DUI laws in the United States prohibited driving drunk, but left it up to the arresting officers to determine what "drunk" meant. It wasn't until 1938—more than 30 years after the first DUI laws were enacted--that legal blood alcohol levels were set. The first breathalyzer, called the "drunk o meter," was created by Indiana University professor Rolla N. Harger in 1931. This early, balloon-like device would change color if a person's breath contained alcohol. (The present-day breathalyzer test was invented in 1954 by an Indiana State Police Captain.)

This era also saw the American Medical Association get involved in drinking, driving and public safety. They created a Committee to Study Problems of Motor Vehicle Accidents in 1938. This committee was partially responsible for setting the legal blood alcohol level at .15 and below. Indiana took this information and enacted the first Blood Alcohol Content (BAC) law in 1939.

As the "Mad Men" era of the 1950s and 1960s ended and with it much of the "glamor" of excessive drinking, organizations like MADD and SADD began to have political clout. In addition, DUI laws began to become more stringent as public opinion shifted to favor such laws. In our next post, we'll look at how DUI laws changed from 1960 to 1990.

This is the second post of a four-part series on the history of DUI laws in the United States and their enforcement. Last time, we talked about how DUI laws began in this country. We hope you'll visit again over the next few weeks as we discuss how DUI laws in the United States have evolved over the past decades.

The Early History of DUI Laws in the United States

Alcohol-related traffic accidents account for more than 40 percent of all traffic fatalities in the United States, according to the National Highway Traffic Safety Administration (NHTSA.) To help combat this alarming statistic, all 50 U.S. states have laws against driving under the influence of alcohol or other controlled substances (DUI). Sometimes also called DWI (driving while intoxicated) or OVI (operating a vehicle while intoxicated), these laws first started to appear in the early part of the 20th century. Today, nearly one in every ten criminal arrests in the United States is for DUI, according to the NHTSA.

History of DUI Laws

The problem of driving while intoxicated is nearly as old as the automobile itself and is not specifically an American problem. In fact, the first DUI arrest occurred in London in 1897, according to History.com, when George Smith ran his cab into the side of a building. (He pled guilty and was fined 25 shillings.) In the United States, Massachusetts was the first state to enact a DUI statute, in 1907.

They were followed by California and New York State in 1910. The other 45 states (at that time) followed soon after that. Early laws prohibited driving while intoxicated, but didn't define what that meant. It wasn't until nearly twenty years later that the first blood alcohol limit was set.

Prohibition and DUI Enforcement

Prohibition in the United States, which lasted between 1920 and 1933, helped to reduce (but not eliminate completely) driving under the influence in the United States. Perhaps even more effective at controlling the problem in this era was the stock market crash of 1929 and the Great Depression that followed. This forced many Americans to give up their cars or put off buying one for more than a decade.

The repeal of the Volstead Act in 1933 ended prohibition and made drinking alcohol legal again in the United States. As more and more Americans became able to afford an automobile, the problem of drunk driving began to rear its ugly head again. In our next post, we'll look at how DUI laws changed in the prosperous post-World War II era.

This is the first post of a four-part series on the history of DUI laws in the United States and their enforcement. We hope you'll visit again over the next few weeks as we discuss how DUI laws in the United States have evolved over the past decades.

MADD Pushes Connecticut Legislature on IID

Ignition interlock devices (IIDs) have been required for all convicted DUI offenders in Connecticut since 2011, even for first offenders. However, first-time offenders who chose to complete a first-offender diversion program are not mentioned in the laws regarding first-time DUI offenders. Connecticut SB 465 makes it clear that IIDs are still required for first-time offenders who choose to enter diversion programs.

In Florida, not all counties have diversion programs for first offenders. Only Miami, West Palm Beach, The Florida Keys, Gainesville and Orlando have such programs. Most, if not all of them, require an ignition interlock device for a specified periods as a condition of the program, though without uniformity between jurisdictions. Oddly enough, only first offenders who are actually convicted of DUI (whether by plea or trial) are required to have an IID ONLY if their BrAC was over a .149 or they had a minor in the car at the time of the arrest.

Interestingly, MADD pushed long and hard for the Connecticut Legislature to close the loophole in their laws, which allowed diversionary DUI cases to avoid the IID. Yet, on the MADD website's FAQ page the following appears:

"Does MADD advocate for ignition interlocks in all cars? 

No. MADD advocates requiring ignition interlocks only for convicted drunk drivers with an illegal blood alcohol concentration of .08 or greater."

Florida DUI Penalties

For people convicted of a DUI in Florida, the penalties may be far more severe than you think. This is true whether the conviction is for a first-time DUI or for multiple DUI convictions. Florida Department of Highway Safety and Motor Vehicles data shows that there were more than 30,000 DUI convictions during 2011, the result of more than 55,722 citations for DUI. Understanding the potential penalties of a conviction is important if you are charged with DUI.

First Convictions Are Still Devastating

The penalties for a first DUI conviction are very severe and have serious financial consequences. The overall cost of a first DUI conviction can be as much as $8,000 when you combine fines, legal costs and administrative costs. A Miami DUI Lawyer can help.

A typical first DUI conviction can result in:

·         Fines – You may be expected to pay fines of a minimum of $500 for a first conviction.

·         Community Service – Sentencing includes community service requirements of at least 50 hours.

·         Probation – A DUI conviction will result in probation of up to one year.

·         Jail – A court may order a county jail term of up to six months for a first conviction.

·         License Suspension – A first DUI conviction will result in a suspension of driving privileges for at least 180 days.

·         Substance Abuse Classes – A DUI conviction will require you to take a 12 hour DUI course, and counseling, if required by an evaluation.

·         Ignition Interlock Device – A judge may order an interlock device for a first DUI conviction.

In addition to these penalties, chances are a conviction will also result in an increased auto insurance. This increased rate will likely remain on your insurance for at least one year and as much as three, which means this particular consequence will be an ongoing expense. If you lose your driver's license, you may also be facing problems with your employment, if driving was a necessary part of your job.

When you are arrested for a DUI in Miami, it is important that you contact a DUI attorney in Miami Florida for assistance. An attorney can help you mount a successful defense and avoid facing harsh penalties.

Miami DUI Attorney Jonathan Blecher has over 30 years of experience representing clients in DUI cases with positive results. Call our office or sendus an email to schedule a free, no obligation consultation.

The Need of Search Warrants for Blood Samples

It might seem as if the laws are stacked against drivers who might possibly be convicted with a DUI, but there's still hope for them thanks to the 4^th Amendment and its ban on unreasonable searches, especially in regards to blood tests for the purpose of obtaining a BAC reading.

Recently, the Supreme Court ruled against a prosecution's appeal to exempt the requirement of a search warrant in the case of an arresting officer and a DUI driver who would not consent to a blood test. While prosecution argued that the forcible nature of the blood test was necessary in getting dissipating evidence from the offender, justices were steadfast on the law that requires officers to obtain a warrant. And the fact that getting one by phone or computer was a viable option and can be done within a matter of minutes supported the case of the defense even more.

Advantages for DUI Drivers

The Fourth Amendment guards against unreasonable searches and seizures that would invade an individual's privacy and a search warrant along with probable cause is the only way to get around this ban. DUI drivers can utilize their rights according to this amendment when a blood test is being requested of them. If the police officer does not present a search warrant sanctioned by a judge, then they are not required to comply with having their blood drawn.

In addition, this also gives DUI drivers an advantage over any incriminating evidence that might be gathered against them. Even if somehow law enforcement was able to obtain blood sample from the offender and their blood alcohol levels are exceedingly above the limit, this evidence is inadmissible in a court hearing if a search warrant was never issued. This could also result in the case being dismissed.

If the arresting officer follows through with applying for a search warrant, the process can take several minutes or even hours. This allotted delay will give the driver more time for their BAL to dissipate which may or may not put them within the legal BAC limit.

Case by Case Contingency

While this can greatly affect the outcome of several cases in favor of the defense, not all DUI drivers will be able to benefit from the Fourth Amendment. Because according to the Supreme Court, warrantless blood draws can still be a possibility but only on a case by case basis and will rely hugely on the "totality of circumstances". So for now, the privacy of your blood is safe until a search warrant is present; unless of course you just happen to be one of the exceptions to the rule.

Have more questions about your DUI case? Call Attorney Jonathan Blecher, P.A. to discuss your situation during a free case evaluation. Attorney Blecher has been defending DUI cases in Miami for over three decades and has the knowledge you need on your side.

Jonathan Blecher Appears on Radio Talk Show

I had the pleasure of being invited to appear as a guest on a local radio program, Fried on Business, which is heard every Thursday from 5-6 PM on 880AM-The Biz, Miami's Bloomberg Radio affiliate. I appear on Jim Fried's program as a legal consultant on criminal law issues, particularly DUI and the business surrounding it.

This episode revolved around DUI and the holiday season. Jim and I discussed what rights people have during a DUI traffic stop, DUI sobriety checkpoints and whether roadside sobriety exercises are mandatory, or even fair. We also talked about breath, blood and urine testing and driver license suspensions that stem from a DUI arrest.

Jim's viewer's wanted to know what the penalties are for a DUI conviction in Florida and we went into some detail on that topic. We discussed how there are potential, long-term, negative collateral consequences that could flow from a DUI conviction including strangled employment opportunities, increased insurance rates and even immigration concerns. Did you know that Canada will turn you away at the border if they discover a U.S. DUI conviction on your record, unless you undergo a 5-year rehabilitation period?

We also discussed the concerns over distracted driving, which poses an even greater safety risk than DUI. A study by Car and Driver magazine concluded that reaction time and stopping distance was more severely affected by texting and reading e-mail than it was by driving with a blood alcohol of .08.

Listen to the interview by clicking here.

Back on Track Miami Diversion Program Changes

The Miami-Dade State Attorney's Office met with Mothers Against Drunk Driving representatives recently to discuss the Back on Track Program, a DUI diversion program for first offenders in Miami. As usually happens when political forces are brought to bear, the MADD Mothers got their way and forced prosecutors to beef up the conditions of the program.

Program participants in Tier One (under .15 BAC) will be required to install an ignition interlock device on their car for 90 days. Tier Two participants will be required to install the device for 180 days.

The program was designed to focus on first time DUI offenders, with no aggravating circumstances surrounding their cases, such as minors in the car, accidents or very high breath/blood test results. It's creation followed the path of successful programs Alachua County (Gainesville) and Orange County (Orlando), the focus of which was to educate first-time offenders, sting their pocketbooks, but not saddle them with a DUI conviction for life—all very reasonable pursuits.

Enter MADD, who tried to force additional program conditions that demonize first offenders. First, they proposed adding a SCRAM alcohol monitoring bracelet for defined time periods. Then they tried adding a "no drink order" during the entire period of program participation, 6-12 months.

Zero tolerance has long been the goal of MADD, starting from the time when they changed their slogan from "Don't Drive Drunk" to "Don't Drink and Drive."

"We believe the best practice is not to drink and drive and that means zero. If that's neo-prohibitionist, then we are." – Chuck Hurley, Former MADD CEO.

"MADD's stance is that ONE drink is too many." – Kelly Larkin, Executive Director of MADD Southern Arizona.

"While a lot of attention is paid to the serious problem of the repeat offender we don't want to overlook the casual drinker." – Karolyn Nunnalee, Former MADD President in USA TODAY.

MADD has pushed for Ignition Interlock Devices for all people convicted of DUI and, at last count, has been successful in doing so in 20 states, most recently Maine and Tennessee. In Florida, the IID is required after a first DUI conviction, if the BrAC is .15 or greater or a minor is in the car.

Fortunately, reasonable minds prevailed at the Miami-Dade State Attorney's Office.

What Happens if I Refuse a Breath Test in Florida?

Any person who gets a Florida driver license consents to submit to a breath, blood or urine test if requested by an officer who has probable cause to believe that they are driving under the influence of alcohol or a controlled or chemical substance. The police officer gets to decide which test they want you to perform.

In Florida, a refusal will result in an immediate suspension of your driving privileges for one year. The DUI ticket will be a temporary license for 10 days and you will have only this same 10 day period to request an appeal of this suspension with the Department of Highway Safety and Motor Vehicles.

The state will attempt to use the refusal to submit as evidence of guilt against you at trial, but there are ways to combat this. For example, some police officers charge a "refusal" if the arrestee is unable to provide the sample, not intentionally refusing, just physically unable. The law requires that a driver submit to the test to the best of his ability.

Often police will confuse the arrestee with the reading of Miranda warnings prior to the breath test request. While an arrestee is not entitled to an attorney before submitting to a breath test, if they are advised that they have a right to not answer any questions and have a lawyer present, that creates confusion and may be grounds to suppress the evidence of refusal.

Sometimes, arrestees will initially refuse yet change their minds a short time later. Police officers will lose patience with this type of situation and will most often write it up as a "refusal". In fact, provided there was no impediment to providing the test, no unreasonable amount of time lapsed and the defendant was constantly being observed, courts have held the arrestee "cured" the refusal.