Myth 1: You can’t be arrested for DUI if you were sitting in a parked car.
Yes you can. Florida statute §316.193(1) says you are guilty of DUI if you are driving or in actual physical control of a car while impaired. Actual physical control has been interpreted to include someone sleeping in a parked car with the keys in their pocket. This means that you can be arrested for DUI attempting to “sleep it off” in a bar/club parking lot, because the law does not recognize “sleeping it off” as a legal defense. For more information about your rights, contact Orlando DUI Lawyer Shane Fischer. The consultation is free and confidential. Additionally, I am available to meet with you after hours, or on weekends.
Myth 2: If you tell the police officer that you have back problems (or other medical condition) you won’t have to do DUI roadside tests.
There are several different tests officers can request you perform. If you have sore knees, back problems, or some other ailment the officer will simply have you perform an alternative test. Keep in mind, though, that if you claim you are too sick and weak to perform any test the officer will wonder how you are able to safely operate a car.
Myth 3: You have the right to call an attorney before taking the breath test.
You do not have the right to speak with an attorney prior to taking the breath test. This is because a breath test is considered a search, not testimony. Since you don’t have the right to an attorney before the police conduct a search, you don’t have the right to an attorney before taking a breath test. Consequently, demanding to speak with an attorney prior to taking a breath test will get you nowhere, and may be treated as a refusal to take the test for case purposes.
Myth 4: The police must read you your rights after they arrest you for DUI.
They only need to read you your rights if they are going to ask you questions following your arrest. Since a breath test is not an interrogation (see above), they do not have to read you your rights following your arrest, unless they want to ask you something (which they usually don’t).
Myth 5: If you chew a breath mint immediately prior to taking the breath test, the breath test machine won’t be able to tell the difference between the alcohol in your breath and the alcohol in the breath mint, resulting in dismissal of your DUI charge.
Maybe, but it will never happen. Prior to taking a breath test a police officer or breath test operator observes you for 20 minutes to make sure you don’t vomit, put anything into your mouth, or do anything else to compromise the integrity of the breath test. Additionally, since you are thoroughly searched before you are taken to a breath test facility, any breath mint, or other object you plan on using to disrupt the test, will be confiscated before you get anywhere near the breath test machine.
Myth 6: You can choose to have a blood test instead of a breath test.
Florida law allows you to have your own test in addition to the one requested by the police officer; however, you must first take the test the officer requests. If you do not take the officer’s test, you do not have a right to your own, independent test. Fla. Stat. §316.1932(1)(f)(3).
Myth 7: If you blow under .08, the police will let you go.
Fla. Stat. §316.193(9)(c) requires anyone who has been arrested for DUI be incarcerated for a minimum of 8 hours. This means that even if you are not legally impaired, you still won’t get out of jail for eight hours from the time you are arrested.
Myth 8: Refusing to blow into the breath test machine will make it harder for the Assistant State Attorney to convict me.
The appellate courts have held that refusal to blow into the breath test instrument is evidence of a guilty conscience. Additionally, refusal to take a breath test may be a separate crime! Fla. Stat. §316.1939 makes it a 1st degree misdemeanor for someone to refuse a breath test if their driving privilege has previously been suspended for refusing to take a breath test. Consequently, refusing to blow into the breath test machine may actually make it easier for the prosecuting attorney to convict you.
Myth 9: My previous DUI’s were so long ago they can’t be used against me.
There is no Statute of Limitations on prior DUI convictions for sentencing purposes. This means that your DUI convictions from decades ago can still be used to enhance your punishment. Of course, for felony DUI purposes, the Assistant State Attorney still has to prove your prior convictions beyond a reasonable doubt. If fingerprints don’t exist from your prior conviction, or if the Assistant State Attorney cannot obtain your old DUI paperwork, they may be prohibited from using your prior DUI’s against you. Contact DUI Attorney Shane Fischer for more information about the effect your prior DUI’s have on your current DUI charges.
Myth 10: My out-of-state DUI convictions won’t show up on my Florida record.
The Assistant State Attorney will order your out-of-state driving record to investigate prior DUI convictions. Since Florida treats out-of-state DUI convictions the same as Florida DUI’s for prior conviction purposes, you can be punished as a subsequent offender even if you have never been arrested for DUI in Florida.