Attorney Charles Scott is the author of a DUI defense book called “under the influence” on Amazon. Attorney Charles Scott has been representing individuals charged with DUI since 1996 in the courts of Pinellas County, Florida. Prior to 1996 Mr. Scott worked as an assistant State Attorney for the Pinellas County State Attorneys office prosecuting DUI cases. The experience Mr. Scott gained as a prosecutor, as well as defending DUI cases since 1996, and authoring a book on DUI defense, provide an extensive background in DUI defense and make Mr. Scott well qualified to represent individuals charged with DUI.
WHAT IS CONSIDERED DUI IN ST. PETERSBURG?
First, the law no longer refers to the crime as DWI (driving while intoxicated) in most states. The crime is now called DUI (driving under the influence). This definition carries with it many implications, and makes the police and prosecutor’s burden of proof much easier than proving DWI. You no longer have to be “intoxicated” to be charged and convicted of the crime. Many people mistakenly believe that if they are not falling down drunk, that they can drive. Unfortunately, police and prosecutors do not have this burden of proof, they only have to prove that you are under the influence of alcohol (or marijuana, or controlled substances such as medications) and your normal faculties are impaired.
ELEMENTS OF PROOF IN A DUI CASE
So just what do the police and prosecutors have to prove to convict you of the crime of DUI?.
First, that you were driving a car or other vehicle on the roads of your state. This part is usually self evident, either you were driving or you were not. If the officer sees you driving, it will be hard to overcome this element. What might surprise you is that you can get a DUI on a bicycle, moped or even roller skates. While in some states there is no requirement for a drivers license to drive a moped it is still possible to be charged with DUI on a moped. Probably the most surprising thing about DUI is that you can be charged and convicted of DUI just for sitting in your car behind the wheel. State laws allow for such a conviction under the theory of “actual physical control” or APC. Under this law, if you are in the car, the car is operational, (able to run) and the keys are in the car or in your pocket or purse, you are presumed to have the ability to navigate and control (drive) the vehicle.
The second element that must be proved is that you have consumed alcoholic beverages, or that you have ingested a controlled substance such as marijuana or even prescription pain medication or psychiatric medications. This is where many people make the police officers case for him, by making statements such as, “…I only had two beers officer”
The third element the State must prove is that you were under the influence of an alcoholic beverage or controlled substance to the extent that your normal faculties were impaired. This is where the officer’s subjective judgment comes into play, and a fertile area for defense. Most people are unaware of the types of things that provide evidence of impairment. Evidence of impairment may include watery eyes, glassy eyes, slurred speech, poor balance, fumbling with your wallet trying to get your license out, staggering, swaying, odor of alcohol on your breath, and a combative attitude. The third element may also be proven by evidence of a blood alcohol level in excess of the legal limit in that state. The legal limit for blood alcohol in Florida is .08.
Most states (including Florida ) have “implied consent” statutes, which require that you submit to a breath, blood or urine test for the purpose of determining your blood alcohol level. Here is an area that people seem to be confused about, and which requires some clarification. If your state has an implied consent statute, you must provide a breath or blood or urine sample, and failure to do so will usually result in your losing your license for one year. Often it is printed on your drivers license and would include language similar to the following: “acceptance and use of this license constitutes consent to any sobriety test required by law”. You have no choice, except to provide the sample or loose your license for a year, and you are not entitled to an attorney before making this decision.
Finally the state does not need to prove that you were impaired and that your blood alcohol was over the legal limit. In most states, the state needs only to prove that you were impaired, by evidence of impairment, OR that your blood alcohol was over the legal limit, not both.
HOW MANY DRINKS CAN YOU HAVE BEFORE YOU ARE IMPAIRED?
The law on DUI refers to blood alcohol levels as being within the legal limit and others, as over the legal limit. What the law utilizes is grams of ethanol per 100 milliliters of blood, or grams per deciliter. Thus if the legal limit is .10, this refers to .10 grams per 100 milliliters of blood, or .10 grams per deciliter of blood.
How can you determine your blood alcohol after a couple drinks?. Without a breath testing machine, you cannot know for sure, however you can estimate your blood alcohol level based on several considerations. There are many factors to consider including; whether you are drinking on a full stomach or an empty stomach, how fast you are drinking, your body weight, and how many drinks you have had. First, consider the rate of absorption of alcohol. When you consume a drink, what we typically mean is one ounce of 100 proof ethanol, one mixed drink, or one 12 ounce beer. If you happen to be at a bar where they pour them heavy one drink could be equal to two or three drinks, depending on how it was poured. The alcohol from that drink is absorbed [on an empty stomach] in about 30 to 45 minutes, however absorption may delayed up to 2 to 3 hours on a full stomach. The first drinks you consume will be absorbed faster than the later ones, as the rate of absorption decreases the more you have to drink. This effect is due to the fact that your digestive system will be slowed by the effects of alcohol.
You must also consider the elimination rate of alcohol. The body will eliminate alcohol at the same time you are consuming it, at the rate of approximately one drink per hour. Therefore, you may assume a rule of thumb that consuming one drink per hour is relatively safe, because you will also eliminate one drink per hour. This does not mean that you can spend all day drinking one per hour and still have a legal blood alcohol level. The body will retain some alcohol, and if you are eating at the same time as you are drinking, your rate of absorption and elimination will be delayed. The rate of absorption and elimination is the same for women and men, the only factor that you have to consider is body weight, and the number of drinks consumed.
There are also options for Ignition Interlock Systems to help you determine whether or not you are in a fit state to drive. These systems provide accurate results in seconds using the newest electrochemical sensor and LCD displays. You can learn more about these system and other safe driving practices at a DUI Driving School.
The following chart indicates the blood alcohol (ethanol) concentration for various body weights based on the number of drinks consumed
Number of Drinks
Using the chart above, if your body weight is 150 lbs, and you have consumed 6 drinks, your estimated blood alcohol level would be .151 which is almost twice the legal limit of .08 in most states. This chart assumes the number of drinks are “in your body” (absorbed) and you would have to adjust this table for elimination rates. Obviously, no chart can be developed for every possible circumstance, and this is a rule of thumb only (Do not rely on this chart). Your individual blood alcohol level may be greater or lesser than the amounts shown here based on how much food you have eaten, and the time period over which you consumed the drinks (remember the elimination rates discussed above). There is a practice known as “extrapolation” in which an expert (such as a forensic physician) can utilize complex computations, taking into account the rate of absorption and elimination, time factors, and consumption of food along with the alcohol, and arrive at a fairly accurate estimate of your blood alcohol level. This can be compared to the blood alcohol level that the breath test indicates was present in your system, and if there is a difference it might become part of your defense at trial. Further, your breath alcohol level at the time of driving may not have been the same as at the time of the breath test. Unless you have testimony in court by an extrapolation expert, the jury will be told that they may assume the blood alcohol level was the same at the time of driving as it was at the time of the breath test.
WHAT ARE FIELD SOBRITEY TASKS
Field Sobriety Tasks, also called divided attention tasks are intended as an indicator of impairment and may be used as evidence in court. There are four standardized tests that are used nationwide; (1) the walk and turn test, (2) the one leg stand test, (3) the finger to nose test, and (4) the alphabet test. The purpose of these tests is not to see how well you can walk a line or touch your nose, rather they are designed to determine whether you can perform a divided attention task. Divided attention means to do two things at one time, such as stand with your feet together and count or recite the alphabet. Part of the test is to determine how well you followed instructions, in addition to how well you actually performed the test. These tests are considered evidence and will be video taped and used against you in a court of law. Your performance on each task will be graded by the officer with regard to certain pass/fail criteria established for each test. These criteria include such things as stepping off the line, not touching your nose, messing up the alphabet, swaying, putting your foot down too soon, and starting the test before the officer completes his instructions. In addition any statements you make during the tests will be recorded.
HOW CAN AN ATTORNEY HELP WITH A DUI CHARGE?
The lawyers at The Law Offices of Charles D. Scott can assist you in two ways. First, if the evidence against you is such that the State can easily prove their case, the attorney can engage in plea bargain negotiations with the State Attorney on your behalf. Normally the State Attorney will not speak with an accused criminal defendant and you will not be able to negotiate a plea bargain outside the courtroom. Once you are in the courtroom the State will normally seek certain penalties and you are faced with a choice of pleading guilty and accepting the states offer with little or no negotiation. An attorney will work to obtain the minimum allowable penalty by law, also known as a minimum mandatory disposition. The reason it is called minimum mandatory is because certain penalties are mandatory under State law and cannot be waived or reduced, however there are other penalties that are negotiable.
Second, if the evidence against you is not entirely solid, and defenses exist, an attorney can take your case to trial and present your defenses to a jury. You are presumed innocent until proven guilty beyond a reasonable doubt, and it is the burden of the State Attorney to prove each and every element of the charge of DUI in court. Those elements are outlined above, and must be proven by competent evidence in a court of law. A DUI trial has certain risks, one is that any negotiations or plea bargain offers are no longer available once you have elected to take the case to trial and if you are found guilty the court may impose a harsher sentence than may have been offered during plea negotiations.