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Breaking Down the Three Types of DUI Prosecutions


Police and courts have worked for years to reduce the number of alcohol-related crashes. Most of these efforts involve tough new laws, like the per se intoxication law and the refusal-to-submit law.

Yet despite these laws, all three kinds of DUI cases are winnable. They each require a different approach.

Complete Refusal

Most people know they have the right to remain silent during police encounters. But most people do not know the extent of that right. Other than obeying basic commands, such as producing a drivers’ license, the right to remain silent usually includes the right to do nothing. When an officer asks you to stand on one leg or perform other field tests, you do not have to do them.

Complete refusal cases inevitably result in arrest. But when these cases get to court, the conviction rate is only about 40 percent. That’s because, to prove intoxication, the state must rely on weak circumstantial evidence, such as:

  • Erratic driving,
  • Odor of alcohol,
  • Unsteady balance, and
  • Bloodshot eyes.

At best, this evidence only proves alcohol consumption, and most people must consume at least three or four drinks before they are legally intoxicated. So, a Port St. Lucie DUI defense attorney can almost always obtain a favorable result in complete refusal cases. That could be a not-guilty verdict at trial or a plea to a lesser-included offense, like reckless driving.

Chemical Test Refusal

If the defendant performs field sobriety tests, the prosecutor has stronger circumstantial evidence of intoxication. So, in most jurisdictions, the conviction rate goes up to about 65 percent. It’s still possible to break down the three government-approved field sobriety tests, which are:

  • Horizontal Gaze Nystagmus: Many people take HGN tests at doctors’ offices. This is the “follow my finger with your eyes” test. If the person’s pupil moves involuntarily at certain angles, the person probably has nystagmus, and alcohol intoxication is a leading cause of nystagmus. But there is a big difference between a doctor-administered HGN test in a controlled environment and an officer-administered HGN test on a busy road at night.
  • One-Leg Stand: In this divided attention test, subjects must elevate one leg and balance on the other one. Even a slight mobility impairment makes it almost impossible to successfully complete this test.
  • Walk and Turn: The WAT is another divided attention test which measures physical dexterity and mental acuity. Subjects must walk a straight line heel to toe. Once again, test environment makes a big difference. It’s almost impossible to walk an imaginary line heel to toe in the dark, whether you are drunk or sober.

Unapproved field sobriety tests, like the finger-to-nose test, are usually either inadmissible or only admissible for limited purposes.

Chemical Test

If the defendant blows into a Breathalyzer or provides a blood sample, the conviction rate is usually around 90 percent. Because of the aforementioned per se law, people with BAC above the legal limit are intoxicated as a matter of law.

Nevertheless, there are some ways to challenge chemical test results in court. That’s especially true of breath tests. The Breathalyzer has a number of flaws. For example, if the defendant burped or vomited in the fifteen minutes prior to the test, the excess mouth alcohol may skew the Breathalyzer results. Since there is basically no required monitoring period in Florida, this approach is often effective in .08/.09 and other borderline BAC cases.

Blood tests are harder to challenge. However, there may be a gap in the chain of custody or another technical evidence flaw.

Count on an Experienced Lawyer

There is usually a defense to all three types of DUI prosecutions. For a free consultation with an experienced criminal defense attorney in Port St. Lucie, contact Eighmie Law Firm, P.A. We routinely handle matters throughout the Treasure Coast area.




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