Miami Criminal Attorney Blog

In Miami, and the rest of Florida, if you get arrested for DUI and are given a breathalyzer test, you have the right to a second breath test from an independent source. The Florida Legislature has granted each driver the Statutory right to this independent breath test. All you have to do is ask, and pay, for it. One might ask, why bother? If it's that simple, why would the second test be any different from the first? There are two good answers to this. First, if you are refused the opportunity to a breath test you may win the case. Second, if you do get the second test, by the time you get there, your blood alcohol level might have decreased to a level below the legal limit.

Now that we know that we have the right to a second, independent breath test, how do we go about securing such a test? Picture this: you're in a police station at 3:00 am. You've just taken a breath test and you are over the legal limit. At this time you demand an independent breath test. The police have to give you access to a phone and a phone book. The rest is up to you.

It might surprise you how many people have made this simple request, "I'd like an independent breath test" and have not been provided a phone or a phone book. The failure of the police to give you those two things is sufficient to suppress the breath test they took. Once that scientific evidence is out, the question of impairment is one of opinion.

On the other hand, if we give the officers and troopers of Miami and South Florida the benefit of the doubt and presume that they do offer the accused a phone book and a phone. The accused then calls a toxicologist who does independent breath alcohol tests. By the time you get to the toxicologist or he gets to you, there is a great likelihood that your breath alcohol level will be lower.

Breath alcohol levels fluctuate in a curve. It goes up sharply over a half hour or so and then tapers off in the succeeding hours. Some have commented that you can "race a shot home." This statement is based on the theory if you drink a lot and then race home, you might not be drunk until you get there. (Not recommended.) This is the only time I see the independent test having the potential to hurt a defendant (if their breath alcohol level was still on the way up). However, it would have to be very close in time to the last drink. Given my experience with DUI arrests in South Florida, I think it very unlikely that anyone would have a rising breath alcohol level after they were given a breath test by an officer.

This is because the process of arrest takes a long time. By the time you leave the bar/party/dinner and get pulled over, get driven to the station, get processed and get the breath test it could be two or three hours later. Chances are that you blood alcohol level is on its way down by then. By the time you're given a phone and meet with the toxicologist, it might be another few hours. By that time, your breath alcohol level of a .09 might be a .04. That could be the difference between a DUI conviction and a handshake on the way out of court.

Miami-Dade, Broward, and Monroe Counties are inundated with "important" people who get arrested, particularly of DUI. The jails here have hosted a "who's who" of celebrities, from Al Capone to Donté Stalworth. Recently, an FBI agent was arrested for drunk driving near Oakland Park, Florida. His behavior during the arrest was a perfect example of how not to act when you are suspected of driving under the influence.

FBI Special Agent Jorge Miyar was pulled over at a DUI checkpoint on Oakland Park Boulevard near Northeast 17th avenue. The officer's first clue that Agent Miyar was intoxicated was when he ran over the curb. I will stand by my advice as a lawyer to all of you that running over a curb at a DUI check point is definitely not a good idea. It's not quite as bad a peeing on an officer's shoes, but it's definitely going to get you unwanted attention.

During the course of the interview, Special Agent Miyar told the investigating trooper, "I know I'm F-----, I've been drinking and I'm in an FBI car." He then went on to admit that he had been at a party where he had had about five beers. He took and flunked the field sobriety tests. However, he then refused to take the breathalyzer.

If there was ever any doubt that alcohol impairs your judgment, we can all look to Special Agent Miyar as an object lesson in the degenerative effects that booze has on the decision-making process. Needless to say, any lawyer worth his salt will tell you that you have the right to remain silent. That is not to say you should never speak to an officer, but confessing to the crime that the officer is investigating is certainly going to decrease you chances of getting a good plea bargain.

Just as you have the right to remain silent, you have the right to politely decline to perform the field sobriety exercises. There is no law that says you have to do the walk and turn or the Horizontal Gaze Nystagmus (HGN) test. The only thing this trained law enforcement officer refused was the breath test, but by that time, it was too late.

DUI cases are built on four things: driving pattern, statements, roadside tests, and the breath test. If you want to avoid a DUI: Don't swerve on the road or break any traffic laws. When you are pulled over, respectfully decline to answer any questions. When offered field sobriety exercises, respectfully decline to do so. Refusing to perform a breath test is also a crime, although it is infrequently charged. If you perform a breath test, you have the right to an independent test at your own expense. You should definitely avail yourself to that right. I'll explain why in my next article.

America is the land of opportunity and second chances and no city in America epitomizes this more than Miami, Florida. Armando "PittBull" Perez has been twice arrested for driving under the influence and once admitted to being a drug dealer in Miami. Typically, you would not expect someone with this type of pedigree to be awarded the keys to the city. However, on August 19, 2009, Commissioner Tomas Regalado did just that.

In Pitbull's defense, and he seems to have had a very good one, he's only been convicted once and that was eight years ago. His more recent arrest, December 2007, had serious problems with the State's case. First, there was no breath test. Without that piece of scientific evidence, determining whether someone is drunk or not is very difficult, assuming they don't fall down or...

Obviously the question of whether someone is drunk or not is highly subjective, particularly if you do not know the person. Who's to say if a person is slurring their speech or just has an accent, especially in an international city like Miami. To deal with the variations from person to person, law enforcement developed the "Standardized Field Sobriety Exercises" also known as Road Side Exercises.

These Road Side Exercises are supposed to give an objective insight into a suspects ability to balance, listen, follow instructions and fine motor skills. For the Road Side Exercises to be effective, they must be done on a smooth, flat, well lit surface. In Pitbull's case, they were done on a hill.

With no breath test and no reliable SFST's Pitbull recently beat the 2007 driving under the influence charges. Shortly thereafter Commissioner Regalado was offering the keys to the city for Pitbull's service to the community. While I think we can all agree that if an officer fails to follow procedure, the case should suffer accordingly, I'm not sure that an acquittal necessarily warrants the keys to the city. It will be interesting to see how Pitbull handles his elevation to "role model" status.

Associated Press: Bilingual Rapper Pitbull gets key to city of MiamiAugust 2009

Many of you in Miami and South Florida have seen the commercials touting "Over the Limit, Under Arrest" depicting police pulling over drunk drivers with alcohol pouring out of their cars. These commercials and other initiatives are part of a nationwide effort to crack down on DUI.

As part of this initiative law enforcement has "vowed to arrest everyone found 'Over the Limit.'" However this statement is misleading and hides the real problems faced by local law enforcement. A suspected drunk driver is not given a breath test until after he is arrested. There are not hand held breath machines used in Miami-Dade or Broward Counties. Instead police officers rely on their observations of an impaired suspect and the extremely complicated field sobriety exercises.

In Florida, DUI officers receive an enormous amount of highly skilled and technical training. These officers, once trained are required to maintain logs of their observations to be compared to breathalyzer results to determine the accuracy of their conclusions. In fact, a truly competent DUI officer can determine a suspects breath alcohol level with out any equipment at all, by performing the horizontal gaze nystagmus test. Unfortunately, officers of this level of competence are few and in high demand.

When a traffic cop who has not had DUI training pulls over a suspected impaired driver, they will radio for a trained DUI officer to appear on the scene to perform the field sobriety exercises. If the results indicate impairment, the suspect is arrested and taken downtown for a breath test. However, if no DUI officer is available then the untrained or undertrained traffic cop must do the exercises himself and make a decision to arrest on only his opinion.

The very real fear caused by this "crackdown" is that as a result of the increased arrests, untrained officers will be left without assistance and encouraged to err on the side of arrest.

Wellington County News- Florida Law Enforcement to Launch Statewide Crackdown on Impaired and Unsafe Driving. Officers Vow to Arrest Everyone Found Driving 'Over the Limit.'
August 21, 2009 2:13 PM

Many criminal drunk driving cases in Miami, Ft. Lauderdale are won, not on the work of attorneys, but rather on one piece of evidence: the result of the breathalyzer test. The breathalyzer, specifically the "Intoxilizer" is a delicate instrument that must be carefully maintained. In fact, the Florida Department of Law Enforcement is responsible for calibrating and testing the accuracy of these breathalyzers against a control. The results of these tests are available to the public, and criminal defense attorneys throughout South Florida.

Recently it was discovered that one of the FDLE officers tasked with testing this equipment was tampering with the machines during the tests and thus skewing the results. Sandra Veiga was fired from the FDLE last October when it was discovered that she turned off breath-machines when it appeared they would fail inspection. The effect of this discovery has sent ripples through criminal defense community in South Florida.

In Broward County Florida, Judge Lee Jay Seidman excluded the breath results from a driving under the influence case where Ms. Veiga was a tester. There are hundreds of pending Broward cases that could result in a similar ruling from other judges. The question this raises is, what about the people who have already been convicted on the strength of breath tests where the intoxilyzer was maintained by Ms. Veiga?

It is rare to have a verdict or a plea overturned or set aside, however, this type of new evidence is exactly the circumstance that could bring about a new trial. Florida criminal law requires three things for a new trial based on newly discovered evidence: 1) the new evidence is material; (2) the new evidence probably would have changed the verdict; and (3) the evidence was difficult to discover.

There is no doubt that a case with a reliable breath result is completely different from one with a machine that was turned off every time it looked like it was going to fail. Accordingly, it may be difficult not to overturn these convictions

Miami Herald: Broward judge's ruling in DUI case could affect 1,000 cases
August 23, 2009