Former Prosecutor
Drug & Alcohol Cases
Driving Under the Influence (DUI)
Being over the legal limit of 0.08
Personal Experience
Superior criminal defense specializing in DUI charges. Call now or schedule an appointment to come into my Fort Lauderdale office for a free case evaluation. (map)
I have been handling DUI’s since I was a young prosecutor in 1979. I learned the basic tenets of how to prosecute these crimes when I was a prosecutor in the County Court Division of the Broward County State Attorney’s office, This experience translated itself into the knowledge I have used effectively in representing my clients in this area of the law whether it consists of clients charged with DUI’s after previous DUI convictions or in the most serious of cases like DUI Manslaughter where serious periods of incarceration can be faced by my clients.
DUI attorney with close to forty years of successful courtroom experience.
In a recent case after my client was convicted of reckless homicide after he allegedly tried to race and beat a train across a railroad crossing in Palm Beach County resulting in the death of his stepdaughter who was sitting in the back seat during the time of impact, the Fourth District Court of Appeal reversed his conviction due to the failure of the court to allow us to present certain expert evidence which would have exonerated my client since the crash we asserted was really caused by defective railroad crossing equipment and not my client’s actions, clearly demonstrating the importance of pursuing your defenses zealously through the appeal stage of a DUI manslaughter case if necessary.
It can Happen to Anyone
You just left a party, or perhaps a casual meeting with friends or you may have stopped at the bar on your way home from work and had a few drinks. Nobody offered to drive you home or thought you might be in need of a taxi because you seemed fine. But in fact, at the time of your departure your blood alcohol level may have exceeded 0.08 and if you were stopped by law enforcement in travels to your next destination it’s possible that you could be charged with the crime of DUI.
Driving under the influence (DUI) is a crime that most of us are guilty of at one time or another during our stay on the planet. But the only thing that makes it a potential life-changing event is if you’re stopped by police while in that condition.
The Breathalyzer Test
In most states in the U.S., the legal limit for a person to be considered inebriated is 0.08. That means that there is 8 parts alcohol out of 10000 in your bloodstream. It’s simply a percentage of alcohol found in the blood if you agree to a test by a BAC meter (Breathalyzer) if stopped by law enforcement.
So, you may ask, if I’m stopped by a cop and I know I’ve been drinking can I refuse to take a Breathalyzer if requested?
Well, that answer is a little tricky,
In Fort Lauderdale as well as throughout the state of Florida, you can refuse to take the test but there can be adverse ramifications if you do so. In fact, if you read the bottom of your state issued driver’s license you’ll see small text that reads: “Operator of a motor vehicle constitutes consent to any sobriety test required by law.” So actually, upon accepting your driver’s license you’ve automatically given your permission. This is known as implied consent.
But if you do refuse to take the test, the only beneficial scenario is that a prosecutor won’t have the results of the test to use against you if the case goes to trial if you were driving under the influence when you were stopped by law enforcement. But the downside may make it better not to decline.
By refusing to take the Breathalyzer, even if it’s the first time you’ve been pulled over, it’s likely that your license may be suspended for one full year. If it’s not the first time this has happened, you can be charged with a misdemeanor that can result with a penalty of up to one year in jail.
In two Florida Counties (Orange and Osceola) it may be to your benefit to take the test especially if it’s the first time this has happened and you believe your alcohol consumption was minimal. Those two counties have a program known as “pretrial diversion” where even if your breath test results are analyzed at up to double the legal limit (0.16) and you have no prior DUIs, drug convictions and haven’t taken advantage of this program before, the state will drop the charges once you undergo and finish it. But if you decline to take the Breathalyzer, you become disqualified from admittance to the program and the prosecution may use your refusal as evidence at trial that you were more than likely inebriated when you were stopped by police.
You should also keep in mind that this program is not free and does come with a number of tasks that must be achieved. A fine will need to be paid and the full cost of the program is also paid by the attendee. Once entered into the program a person will have to attend DUI School, perform a certain amount of community service and go through a sub-program termed “Victims’ Awareness (VAP)”. The VAP portion is sponsored by Mothers against Drunk Drivers) (MADD.
However, making it through the program successfully will guarantee all potential charges never going any further as well as allowing the individual’s record to be expunged for that arrest.
In all other counties throughout the state, once arrested, refusing to take the test will result in the suspension of your license for a one year period and it can be interpreted at trial as an admission of guilt which can be used as evidence against you at trial. In the instance that it’s not the first time this has occurred, and you were previously convicted of the charge, jail time will be mandatory. So the correct answer to the original question remains sketchy.
How do I Know if I’m Over the Legal Limit?
The first thing that many people say when they come into my office is “Mr. Cohen, I only had two drinks. I didn’t even feel a little bit high when I was pulled over”. But exceeding the legal limit of 0.08 is not difficult to do depending on numerous factors which I’ll speak about below.
Knowing how many drinks will put you over the legal limit is a question that can’t be answered with a fixed answer. The percentage of alcohol in a person’s system differs depending on numerous factors. The chief factor being the amount of water contained in your overall makeup which is basically established by your body’s size. The more you weigh, the more water is built-in to your body. The water acts in diluting the alcohol that is consumed.
So a person that weighs 150 pounds might drink two beers and reach a BAL that exceeds the legal limit of 0.08. But at the same time, his drinking buddy that weighs one hundred pounds more settles with a BAL well below that percentage. The higher your weight , the greater the amount of water exists in your body diluting the consumed alcohol and lowering your overall BAL. Additionally, the quantity of alcoholic beverages consumed per hour is a major factor. As the amount of drinks per hour is increased it greatly affects the steady increase of the percentage of alcohol in your bloodstream. The percentage/proof of certain types of alcoholic beverages can contain greater intensities of alcohol than other typical drinks, also contributing to a quicker rise in BAL.
There are certain elements that are just plain facts; gender being one of them. On average, a female’s body contains a lesser amount of water than that of a male. The female anatomy also carries a greater amount of fat cells than their male counterpart. Alcohol does not enter fat cells as well as other cells, so the combination of the volume of water and cellular makeup causes females to be predisposed to sustain more alcohol in their blood than a male will. Additionally, women have a smaller amount of dehydrogenase, an enzyme that breaks down alcohol in their system. And lastly, hormonal changes cause inebriation to occur faster a number of days prior to the onset of a woman’s menstrual cycle.
Your age also plays a role. An older adult, (male or female) is apt to have their BAL raised more than twenty percent higher than a younger individual.
Another obvious factor is the amount of food you’ve eaten before and during the time you were drinking. Any food present in your system absorbs a portion of the alcohol keeping your blood alcohol level at bay. Not eating before or during drinking will allow your blood alcohol level to climb unchecked sharply as opposed to if there is a substantial amount of food in your stomach.
Mixers
You might think that mixing a beverage with carbonated mixers such as club soda or tonic water will weaken a drink. But the exact opposite is true. Carbonated mixers cause your system to absorb alcohol more rapidly.
Increase in Tolerance to Alcohol
The human body will build up a tolerance to alcohol when a person drinks on a regular basis. Where it once was enough to have a drink or two for a person to reach the feeling of elation they were seeking, as time goes by more and more alcohol will be needed to reach the same result. Because of this difficulty, an individual who previously had two drinks and finished their session with a BAL under 0.08 may now exceed that percentage. Additionally, as a person increases their alcohol intake, they’re lack of control lessens and the urge to have “just one more” is increased potentially causing the person to wind up drinking much more than they first set out to.
The Effects of Medications
There are hundreds of medications that can have adverse effects during the intake of alcohol. Many of these medications will be labelled; displaying “not to take with alcohol” and the possible results of doing so, such as lightheadedness and drowsiness among others. But before you drink any alcoholic beverage you should check with your doctor or pharmacist whether a problem may exist by having a few drinks with the particular medication prescribed, if a notice isn’t printed on the label. In addition to causing a possible adverse reaction which could jeopardize your health, if pulled over by law enforcement while under the effects of the combination of the medication and alcohol your possibility of being arrested increases. Even if your BAL has not reached the legal limit, the combination of the medication taken in tandem with the alcohol may cause driving to appear erratic, getting unwanted noticed by observing police.
What are the Penalties for a Conviction for Driving Under the Influence (DUI) in Florida?
In the state of Florida, being legally inebriated would mean that a person would have a blood alcohol level of 0.08 percent or above. Drivers of commercial vehicles are limited to a blood alcohol level of 0.04 percent. In the case of a person under the age of twenty-one, the legal limit is 0.02 percent. Florida has a zero tolerance policy for drivers under that age and it calls for an automatic suspension of their license for six months if that blood alcohol level is reached and identified by law enforcement.
A conviction for Driving under the Influence of alcohol can result in serious penalties and/or fines. The best possible outcome for a first conviction would be a probationary sentence. In this case, a deal has been worked out with the prosecution to enforce an order made by a judge such as the enrollment in an alcohol and drug rehabilitation program. There would be no jail time involved but a visit to a probation officer would be mandatory upon conclusion of the case, usually on a monthly basis.
If a probationary sentence could not be achieved sterner penalties will apply.
For a first offense conviction of a DUI charge, a fine of up to $1000 would be imposed as well as the possibility of fifty hours of community service. A term of up to six months of incarceration could be sanctioned and if a minor is present in the vehicle or if the blood alcohol level exceeds 0.15 percent, when stopped by law enforcement, the term of incarceration can increase to up to nine months. Twelve hours of DUI School would be obligatory and the offender’s license would be suspended for six months. The offender may also have their vehicle impounded for a term of ten days.
A second conviction for DUI is punishable by a fine of up to $2000. A term of up to nine months of incarceration could be imposed and if a minor is present in the vehicle, or if the driver’s blood alcohol level exceeded 0.15 percent at the time the driver was stopped by law enforcement, the term of incarceration can increase to up to one year, with the fine swelling to not more than $4000. There is also a ten day mandatory minimum period of incarceration after a second offense. As is the case for a first conviction, the presence of a minor in the vehicle also drops the potential for arrest from a blood alcohol level of 0.08 percent to 0.02 percent. A completion of a DUI School course would be obligatory and the offender’s license could be suspended for up to five years. A hardship reinstatement could be applied for after one year as long as the school course had been completed. The offender may have their vehicle impounded for a term of thirty days. Additionally, if the offender’s blood alcohol level is found to be between 0.08 and 0.15 an ignition interlock device is required for one year and if their blood alcohol level is found to be greater than 0.15 the device will be required for two years.
A third conviction for DUI is punishable by fines in monetary amounts between $2000 and $5000. However, if a minor is present in the vehicle or if the blood alcohol level exceeds 0.15 percent at the time of the stop by police, a mandatory minimum fine of $4000 will be imposed as well as a thirty day mandatory minimum term of incarceration. The amount of the fine may be increased but the term of imprisonment is capped at one year. A third conviction within a period of ten years will elevate the crime from a misdemeanor to a third degree felony. The presence of a minor in the vehicle also drops the potential for arrest from a blood alcohol level of 0.08 percent to 0.02 percent. An offender’s license could be suspended for up to ten years if the offense takes place within a ten year period. Third offenses necessitate an ignition interlock device for two years and a conviction becomes the basis for ninety days of vehicle impound. A hardship reinstatement would not be available for two years and completion of a DUI School course would be compulsory before reinstatement would be considered.
More than three convictions for DUI are considered a chronic crime and will cause the revocation of the offender’s license for life. There is a five year maximum term of incarceration and a $2000 fine at minimum.
In 2010, a new law was introduced which since enacted has opened an ability to reverse these regulation.
The new law gives the offender the opportunity to get a restricted driver’s license if they have not driven a motor vehicle for at least ten years and have never been convicted for a manslaughter charge related to a DUI offense. They also would be required to complete an alcohol recovery program.
Summing up the penalties of driving under the influence of alcohol; any DUI is a crime. If a DUI is committed causing any property damage it’s a first-degree misdemeanor. A charge of DUI which results in serious bodily injury to another individual is a third-degree felony. An instance of a DUI conviction which resulted in the death of another person is categorized as DUI manslaughter which can be either a first or second degree felony, contingent on the circumstances of the crime.
There’s an App for That!
The best way to avoid a charge of DUI is to make sure you never put yourself in the position of being behind the wheel of a motor vehicle when your BAL exceeds 0.08 percent.
Modern technology has made it simple to find out if your blood alcohol level (BAL) is above the legal limit. Both Google Play (Android devices) and the Apple Store (IPhone) amongst many other sites on the Internet have Breathalyzer meter apps that can be configured to integrate with your cell phones. With this moderately priced software, there should never again be a reason for you not to call a cab or ask a friend to drive you home when your blood alcohol level is above the legal limit. Of course except if you’re too high to remember to use the device, just choose not to, or figure you’ll take a chance even though you know you shouldn’t.
Driving under the Influence of alcohol can result with unforgiving ramifications if a guilty verdict is obtained.
If you find yourself facing charges for Driving under the Influence of alcohol or if a friend or family member is charged or arrested for this offense it is crucial that an experienced criminal defense attorney is retained at the earliest possible interval as a case moves forward.
Mr. Cohen has tried a multitude of cases in this area of the law with favorable outcomes. He is recognized as an expert by Martindale-Hubbell®, a rating agency that is the standard for the acknowledgment of trusted lawyers that are in the top percentage of their craft in the field of criminal defense law as well as other areas of practice. He maintains an AV® Preeminent™ Peer Review RatingSM by this rating agency. His credentials are unequalled in the area of his specified field of criminal trial law among criminal attorneys who are established in South Florida area.
To read about Mr. Cohen’s qualifications and what you should do if you or someone close to you is arrested and charged with DUI, click here .
To read a recent article posted on my blog regarding DUI Vehicular Homicide (first -degree felony) where an ex-Miami Dolphin football player was sentenced to twenty years in prison, click here.