“In the Beginning”
What a good day this has been! What a bad day this has been! What a day this has been. It was a lapse in judgment? No matter now. The blue lights came out of nowhere; then they were in your rear window and they didn’t suddenly pull out beside you and go flying up the road. They stayed right there behind you – even when you pulled over. The officer is still sitting in his car and you know he is getting information on you and your vehicle, at this point you realize that you may need a criminal defense attorney. You sit there and think about what’s going on. You were driving straight and under control. Yes, you had a drink or two, but you are “fine”. There is no reason for me to be pulled over. This better not be about a tail-light or something. You check your breath on the palm of your hand. Prepare to be stopped for a while – legally, the officer is supposed to observe you for 20 minutes prior to taking any actions with or against you.
The manner by which you handle yourself during a traffic stop is an integral part of your well-being. Ideally, you want to portray yourself in such a way that the officer simply sends you on your way in the end with a bit of advice regarding your safety while driving – the officer was “simply trying to look out for your well-being”. Although you may know a variety of legal issues that may help you get out of a DUI charge, you want to avoid being cited or arrested. Once the arrest is made, it becomes an expensive endeavor to minimize or make the charge go away. So, where do you start? Always try to be polite, in control of yourself and, don’t be offensive.
The fact is, in DUI cases, that just a little over half (roughly 63-67%) of the cases end in DUI convictions. Many cases are settled prior to trial as “reckless driving” charges. Many cases are challenged early on and simply go away. Some of the reasons that DUI cases are defeated are health-related as follows:
- Field Sobriety Tests/Evaluations (FSE) are extremely faulty, what with all the ailments and conditions that people are subject to. People, young and old, can relate to sports and other injuries that can infringe on the accuracy of a “field test”. The officer is responsible for observing you for more than twenty (20) minutes prior to administering a “breath test”. Bad knees, back injuries, foot and ankle issues, weight issues and various chronic ailments and conditions can severely affect a person’s balance on a routine basis. If the FSE is being recorded, you should speak about these “issues” as the officer asks you to perform various balance tasks; “my friends always call me a klutz since I have had my back issues…”. You are making your own record of the event that the officer can listen to, and, possibly work with you or it can be part of your evidence if charges are made and defenses are necessary. Many health issues that you may live with are known but not always documented. Back issues are a favorite.
- The breathalyzer reading from a breath test can be affected by various issues of health. The ketosis in people with diabetes can totally affect breathalyzer readings. Ketones have the same chemical makeup as isopropyl alcohol. Many people with a family history of diabetes can have the genetic makeup for diabetes. It can be something you’re not being treated for but “is there, but I just try to show care because of my family history”. Breathalyzers do not measure the alcohol in a person’s bloodstream; they only measure alcohol in the air in the mouth of a person and attempt to convert that measurement into a “guesstimate” of the measurement that “could be found” in the bloodstream. Another of the major health issues that many people live with is gastroesophageal reflux disease (“acid reflux” or “GERD”). It is a quiet, accepted disease that usually receives a knowledgeable “nod” when mentioned. In people with GERD, undigested alcohol from the degeneration of food can flow back in the air through the esophagus to the mouth and give a reading on a breathalyzer on a regular basis. Once again, this is a disease that a person can readily have and not have a record of treatment for . . . something that be put on the record prior to an arrest situation arising.
- In Florida, two (2) breath tests are required to be taken by the breath test operator and those two (2) tests cannot have readings more than 0.02 in difference. A third test is required to confirm the first, or the second, test. Otherwise, they may be suppressed as evidence in a trial. Breathalyzers must be certified and updated on a regular basis, as do the methods of the breath test administrator. Uniformity is the key in this very judgmental, but not totally reliable, scientific method. The intensity of the breath blown into the test machine and the length of time that a person blows into the test machine are protocols set forth by the manufacturer of the breathalyzer/breath test. Proper operation, as per the manufacturer’s protocols, as well as the proper maintenance of the machine are records that law enforcement needs to keep and to have available as evidence at trial.
- Drawing blood for testing for analysis of alcohol content is a heavily-proceduralized method for a multitude of reasons. Florida Law allows the taking of blood in situations such as hospitalization for medical treatment from an accident, etc., if a breath test is not practical. Consent to draw blood is usually an issue due to the idea of self-incrimination from a person who may not be cognizant to make decisions alone. Additionally, the contents (and levels of various contents) can be affected in the bloodstream from many causes. Weight, muscle and fat content of the person is one of the contributing factors to a varied reading of a blood test. Inconsistency can be proven on a regular basis that can lead to “doubt” when it comes to a verdict in a DUI case.
Good day or bad day….no one relishes the idea of watching law enforcement professional pulling up behind you and, after a quick assessment, hitting the flashing lights. The important thing is to keep your wits about you. Everyone gets a bit nervous. Be well-mannered and be observant. Start preparing your story in a way that the law enforcement officer will understand that he or she will not have the only story.