Attorney Matthew Gunter discusses why there is not a typical DUI defendant or common DUI client.
Interviewer: Let me ask you, how many DUI cases have you handled, ballpark?
Matthew: Well, as a prosecutor, handled over a thousand DUIs in the span of a couple of years.
Prosecuting them is a lot quicker. You’re doing them by volume. As a defense attorney, it’s probably in the hundreds. A lot more attention to detail goes into in each case. You are doing the case law research and what not, so a little bit more time goes into that. I have been practicing DUI defense for a year and a half since I’ve been with Katz and Phillips. Before that, I was a prosecutor for the State Attorney’s Office, for almost two years.
Interviewer: Is there a typical DUI defendant that you deal with? Is there a typical person as far as a defendant?
Matthew: There is no typical DUI client. Anyone can get a DUI, from the highest CEO to the person who’s unemployed, down on their luck individual. We get all walks of people, ages, gender, and races getting DUIs.
Interviewer: Have you seen people’s habits or behaviors change as the DUI laws have changed?
Matthew: Not so much. Since I’ve been practicing the DUI laws haven’t changed all too much. Since I’ve been practicing it’s been about the same. A lot of the same fact situations, a lot of the same life situations with the client. You have individuals around Christmas time who maybe they don’t have any family or anything like that, so they go drinking and make the decision to get behind the wheel. You see that a lot around certain holidays. You see a lot of the same stuff with individuals going through family issues or divorces and they drink and again make the decision to get behind the wheel.
Projecting Changes in Florida DUI Laws, Lowering the Legal Limit, and Medical Marijuana
Interviewer: Where do we see ourselves in the future? Are laws going to becoming stricter or are they becoming more lax, if they do change?
Matthew: Good question. The word was out a little while ago that there was some push to lower the legal limit. A while back there used to be a .10, it’s currently at .08 and I believe there was some talk to reduce it down to .06. I don’t know if that’s going to gain any traction or not, but certainly you have organizations such as Mothers Against Drunk Driving and Students Against Drunk Driving who are always trying to make the penalties harsher, make the blood alcohol legal limit a lot lower, so that’s one aspect of the changing laws.
In Florida, there’s now a push for medical marijuana and that’s going to be thrown into the thick of things. You can have people who are legally smoking marijuana and driving. That goes on now and it’s certainly illegal now to smoke marijuana. There’s a chance that law will pass and you’ll have people legally smoking marijuana and then driving. The legislature may look at that and try to make that a little bit stricter as well.
The Use of Medical Marijuana While Driving May Result in Being Charged with a DUI
Interviewer: If someone gets a medical marijuana DUI, how is that case going to be handled differently?
Matthew: As of right now, if someone gets pulled over for a DUI based upon a chemical substance such as marijuana, there’s no legal limit requirement. With alcohol you could be .06 and there’s no presumption of impairment; because, you’re under the legal limit. As of right now with marijuana, the State has to prove that you’re actually impaired by that marijuana, not that you are over some scientific limit. In other states that have recently passed medical marijuana and recreational marijuana, they’re looking at how much is in your system. Legislature will have to determine a scientific calculation as to when an individual would be impaired.
Interviewer: Wow. Let me ask you, have you noticed any patterns that differ between men and women?
Matthew: I wouldn’t say patterns. I would say that in my experience I’ve handled more men getting DUIs, more so than females. I suppose one pattern is a level of cooperation between men and women. I see women cooperating a lot more when it comes to the investigation itself, such as the field sobriety exercises and the Breathalyzer; whereas, men I’ve seen a lot more refusals. Not necessarily being jerks, but just refusing to submit to the Breathalyzer or the field sobriety exercises.
Interviewer: Are women treated any differently in the court? Are they prosecuted differently? Are they handled differently?
Matthew: You know, I have not seen anything to give me that impression and again that’s just my own experience. I’ve seen more men getting DUIs than females. I don’t have any numbers to back that up, but as far as in the courtroom goes, it’s been my experience that judges are fair for both sides, treat both sides equally as with the prosecutors. I’ve not seen any preferential treatment for either gender.
Deciding to Take a Breath Test or Perform the Field Sobriety Test and the Potential Consequences
Interviewer: Matthew, what should someone do when they are stopped for DUI? There are a lot of people that say, “Oh, one should always refuse a Breathalyzer, or one should always not do a field sobriety test.” What are the facts in that?
Matthew: Everyone’s situation is different and I’ll explain why. I don’t think an attorney can really ethically tell someone, don’t ever submit to the Breathalyzer; because, for instance if you’re ever arrested for a second DUI and you refuse a second time then that’s an added charge that they can tack on. It’s a charge of refusing a Breathalyzer after a prior refusal. If an attorney tells a potential individual, “hey, don’t submit to the Breathalyzer,” and that person has a prior refusal, that attorney is essentially saying, commit another offense and so they cannot do that. I will say that for a case that does not have a breath result, it certainly makes it a little bit tougher for the State to prove exactly how impaired someone was; however, the State does have an argument they can make at a trial and it’s called the consciousness of guilt argument. If the individual refused then the State’s going to say, “Well yes of course they refused; because, they knew that they were impaired and they didn’t want anyone know exactly how impaired they were.”
That’s one little hurdle that we always have to overcome. As far as the field sobriety exercises, there’s no legal repercussion with your driver’s license for refusing ; however, if you do refuse to do the field sobriety exercises at the roadside an officer will likely advise you that your refusal can be used against you in court. However, if the officer doesn’t let the motorist know that, then the prosecutor cannot make the consciousness of guilt argument at the trial.
Interviewer: What are some common misconceptions that people have?
Matthew: Well, one of the misconceptions is that just because someone blows over the legal limit leads automatically to a conviction. Florida’s statutes, when it comes to DUI, are set up in a way that that presumption of impairment can be rebutted. Say someone blew a .09 and that’s over the legal limit. If there’s evidence to show that the defendant is actually not impaired such as through field sobriety exercises or showing that their normal faculties are not impaired, then a jury can actually find that individual not guilty. Just an example, when I was a prosecutor, I had a case where a kid blew a .10. He was over the legal limit; however, on video the field sobriety exercises he looked great. He walked the line pretty well. He stood on one leg pretty well and he did the finger-to-nose exercise pretty well.
The jury said, “You know what me may be over the legal limit, but he doesn’t look impaired.” He was found not guilty.
Common Mistakes that People Make that Hurt their DUI Case
Interviewer: Wow. What are some of the common mistakes that a client will do that will hurt their case?
Matthew: One of the big mistakes that someone does is when an officer starts asking questions about where they came from, how much they had to drink and things like that. Those are questions that would be better left unanswered. That would be the appropriate time to say, I’m not going to speak unless I have an attorney present. Although, in those situations you’re technically not in custody under a lot of traffic stop scenarios, but again those are not questions that help your case whatsoever. We also have situations where clients hurt themselves in DUIs that involve accidents. A lot of times when the officer arrives on scene, let’s just say the defendant is outside of the vehicle and the officer can’t really place the defendant behind the wheel as the driver.
A lot of times we see cases where the officer just asks straight up, “Hey, were you driving this car?” The person admits to driving. That could sink that entire case just by that admission of driving. That’s another situation where just exercising your right to remain silent is probably the best course of action there.
Interviewer: When do Miranda Rights come into play? Is it when the police officer makes the arrest or is it before the arrest?
Matthew: Miranda Rights are triggered when two things happen. When 1) an individual is in custody and 2) an officer is asking incriminating questions or interrogating you. You have to have both of those conditions before Miranda Rights need to be read. It’s conceivable that someone could be arrested, put in the backseat, and not need to be read Miranda Rights because the officer is not asking any questions.
Interviewer: What do you mean by incriminating questions? What are some of these questions they’re going to ask?
Matthew: Incriminating questions could be questions that show evidence of committing the crime. Questions like, how much have you had to drink? What were you drinking? What timeframe? Those would be incriminating questions that could tend to show guilt. Questions such as what’s your date of birth, what street do you live on, or any biographical questions would not fall under the Miranda requirement.
Interviewer: Do police officers ever start asking incriminating questions before they give out Miranda Rights?
Matthew: They can; however, what needs to be determined at that point is whether the person is in custody or not. A lot of times an individual can be pulled over for speeding. The individual might still be in their car and the officer through the window is asking questions like, “Well, where were you coming from? How much have you had to drink tonight? Since the individual is not in formal custody at that point, a lot of courts will say that Miranda is not required.
People Tend to Receive DUIs around Festive Holidays and Periods of Increased Police Patrol
Interviewer: Is there a different time of day or specific events that DUIs occur?
Matthew: Yes, obviously New Year’s holiday.
Interviewer: That’s tomorrow.
Matthew: That’s going to be a big day; because, yes, that is tomorrow. I’d imagine there’s going to be a lot of police out actively on DUI patrols, so this is one particular holiday that we would see an increase in DUI arrests. Whenever you have a three day weekend, like Memorial Day weekend or Labor Day weekend, people tend to do outdoor activities, barbecuing, drinking and that can lead to a lot of DUI arrests as well. Then again, as I previously mentioned, maybe sometimes around the Christmas holidays when you have individuals who are far from their family or don’t have their children with them, in depressed moods and that can lead to drinking and driving.
Being Stopped for a DUI after Tailgating at the Game
Interviewer: What about tailgating?
Matthew: Sure, in any college town, football weekends are going to be big. We live near the University of Central Florida, and we do get plenty of DUIs that stem from Saturday football games. Individuals who may not be going to the game, but they’ll go tailgate and when they leave to go home to watch the game or go to a bar they get stopped for speeding and the next thing you know they’re getting a DUI arrest.
Interviewer: When someone is arrested and charged how public is it going to be? Will work, their family, friends find out or is that something that’s going to be kind of quiet?
Matthew: Good question. That’s actually a big question that a lot of clients ask, will their work find out or family find out. I can tell you that no attorney is going to go blabbing to their client’s work or employers or family members about what happened. The only way that those individuals are going to find out about a DUI arrest and pending case is by doing the research themselves. Certainly anybody can go to the clerk’s webpage and type in a coworker’s name and see if they have any charges pending against them, or have had any charges against them; because, it is all public record. Same thing, family members can do that obviously. You also have certain media that posts mug shots. The Orlando Sentinel for instance every day posts all the arrests from the night prior, and they post the mug shots. That’s another way that if an employer searching through there they could run into an employee of theirs.
Interviewer: What have you observed about people’s mental state or their attitude once they’ve been arrested and once they start working with you?
Matthew: We get varying degrees of mental states. We get the individual who is very adamant that they weren’t impaired. When we get the video we’re going to see that they did well on the field sobriety exercises and that they were just the target of an overzealous cop. They want to challenge everything every step of the way and fight the case to the very end. That’s one type of individual that we get regularly. We also get the types who acknowledge that maybe they should not have been driving and they’re reaching out to an attorney just to try and get the best possible offer for them, not necessarily to make the case go away completely. Maybe they just want to try and get the best negotiated plea offer.
We also have the individuals who don’t want to partake in the legal process, they just want an attorney to handle it and be notified if they have to show up. They simply want to know when we’ve reached a resolution they are happy with and when they can accept the plea offer.
Having an Attorney Appear of Your Behalf for Court Hearings
Interviewer: How does that work, as far as the initial arraignment or the first initial hearing, how does that go? Does the client have to be there all the time, or can the lawyer sometimes work that for them?
Matthew: Sure, arraignment is one of the first court dates that an individual will have to go to. If an individual hires an attorney that will cancel that arraignment date, no one will have to go. The attorney won’t have to go. The client won’t have to go and in fact the judge won’t even call the case up. If an individual has not hired an attorney at that point, the defendant will have to appear in court and let the judge know if they’re pleading guilty or not guilty, if they’re seeking the services of the public defender, or if they’re going to hire a private attorney. Essentially arraignment is just the opportunity for the judge to tell the defendant what they’re being charged with.
It’s an opportunity for the prosecutor to make an initial plea offer if they have one. It’s up to the defendant to make a decision of how they wish to plea and let the judge know if they want the public defender or if they’re going to hire a private attorney.
Interviewer: I see. What about people that feel guilty and they want to plead guilty, do you ever have cases like that? They say, “Hey you know, should I just plead guilty?” What would you tell them?
Matthew: When we get the call from an individual just wanting to talk to an attorney maybe for an initial consultation and they say, “You know, I’m thinking about just going in, pleading guilty, and just getting it done with.” Certainly every person has a right to do that if they want to do that. However, a lot of times they’re not going to get the best offer initially. Although their police report or their recollection of the events may make them think that they have no defenses, a seasoned attorney can look at a police report, watch a video and find defenses, valid defenses that can be argued and mitigating the charges down to a lesser offense or even negotiating even a better plea offer.
I would submit to you that rarely is it in someone’s best interest to plea at arraignment and accept the State’s initial offer.
Pitfalls of Defending Yourself in a Criminal DUI Case
Interviewer: What about defending themselves? Have you had clients that try to say, “I’ll just go and do it myself.” What would you say to that client?
Matthew: For an individual who wants to represent themselves, we strongly advise against it, even in the simplest of cases. Those individuals aren’t trained in the rules of evidence. They’re not trained how to pick a jury if it ever gets that far. They’re not trained on the timeliness of filing motions or even how to file a motion. Whenever an individual is considering representing themselves I always explain to them that, “Hey if you need to get a root canal, you wouldn’t do that yourself would you?” You would go see a dentist. It’s similar to that type of scenario, only with the courts you’re dealing with your freedom. In a lot of respects there’s more on the line.
Interviewer: What are the differences in working with a private attorney and a public defender?
Matthew: The difference right off the bat is obviously the public defender is essentially a pro bono criminal defense attorney. The fee for that is usually $50.00 to get the public defender, whereas private attorney, you know that’s always negotiable how much they’re going to charge. As far as skill and experience goes, public defenders have to pass the same bar exam that any private attorney has to pass. A lot of times these public defenders go to the same school that private attorneys go to. The main noticeable difference is that a public defender is overworked a lot of times. They can’t devote the time and attention to each case to sit down with a client and speak to them about the ins and outs of the facts or what the plan of attack is for the case. A private attorney’s case load is a lot less and they can devote that extra time and attention to each individual.
At the end of the day, when it comes to skill, sometimes there are public defenders that are very seasoned attorneys who know what they’re doing. They’ve been in the game for quite some time. You also have public defenders, as well as private attorneys, who are new or don’t know exactly what they’re doing or just don’t have the skills that other attorneys have.
Interviewer: What do you think is the percentage of clients that become repeat DUI offenders? Is that something that happens often? Do people often get second DUIs?
Matthew: Yes. We see that more often than you’d imagine. We’ll see someone with a DUI from ten years ago, get a second one. It’s more rare to see somebody get two DUIs back-to-back within the same year, but when that does happen that’s a red flag that someone has a drinking problem, or they have some sort of issue that’s causing them to make these choices. Those are definitely the cases that really need an attorney looking after that person and advocating for their best interests. At that point they are looking at jail time and driver’s license revocations in the five year range. Those cases are always important.
Explaining the Difference between Alcohol DUIs, Marijuana DUIs, Illegal Drug DUIs, and Prescription Drug DUIs
Interviewer: Let’s talk about alcohol vs. marijuana or drugs vs. prescription medication. How are all those handled? Are there any differences in the way the cases are handled?
Matthew: Yes. For a DUI that involves alcohol, it’s very straightforward. You have a Breathalyzer machine that does print out with all the paperwork and certifications. You can see where that person was on the scale for breath alcohol. Those are very straightforward cases. Once you start dealing with someone who is under the influence of, let’s just say, painkillers the only way that you’re going to get that type of evidence is to do a urine sample or a blood sample. A Breathalyzer machine won’t tell you that someone is on painkillers. What the State Attorney’s Office has to do is send that urine sample off to the Florida Department of Law Enforcement and it can take several months to get the results back.
At that point, the urine sample can only show the existence of that chemical in in a defendant’s sysyem. It does not show how much is in their system. When a prosecutor gets the results back and let’s just say Oxycodone was in someone’s system, then that could be one pill, that could be two pills or it could be 15 pills. There’s just no way of telling from a urine sample. From a blood sample, it’s my understanding that they can determine how much is in your system, so that changes the tactics several different ways. With the urine sample, we go into court and we try and get experts to say, based upon the performance on field sobriety exercises, maybe an expert can testify that the person was not impaired even though they had it in their system.
Interviewer: I see. Which are the more challenging ones to defend? Explore that if you would.
Matthew: Well, the more challenging one and the more common is obviously the DUI with alcohol with the breath. Those are always challenging trying to keep the breath excluded from trial. The rarer of the circumstances are the chemical impairment cases with blood draws, but once you get a case like that it can get costly. You’re now looking at the decision to hire an expert to come in and review the results of the blood work and to testify that “I don’t think that they would be impaired by certain quantities.” You also have that expert testifying that it’s in their opinion that they are impaired or not impaired based on how they did on the tests, but it can get very technical and those cases can be challenging for both sides.
Most Common Prescription Medications Associated With Charges for DUI
Interviewer: With some of the prescription medications, what sort of medications are you seeing?
Matthew: We see a lot of painkillers. That’s fairly the most common. Actually, they are more common than an arrest than a DUI for cocaine or marijuana impairment. I think that with today’s world everybody it seems is on some sort of pain medication and it’s just so easily accessible that’s one of the most common in my opinion, DUI chemical cases.
Interviewer: In DUI cases, how does the DMV come into play?
Matthew: The DMV has to determine 1) whether the motorist refused a Breathalyzer or submitted to the Breathalyzer. If an individual refuses a Breathalyzer test or any chemical test for that matter, there’s a refusal, and the DMV is going to suspend that motorist for one year for a first time refusal. If the motorist submits to the Breathalyzer and they’re over the legal limit, they’re going to receive a license suspension for six months. Certainly if they blow under the legal limit, there’s not going to be a suspension.
I can tell you that for cases involving a urine sample or a blood sample, since the results take a while to come back, as long as you submit to those requests, the DMV is not going to suspend you. You may end up being suspended through the court system, but you would not be through the DMV.
Interviewer: With the DMV how long does that, it’s a separate trial, right? How long does take for the court trial?
Matthew: There is an administrative process to that. Let’s just say you blew over .08. You submitted to the Breathalyzer, but you blew over the legal limit. Within ten days of your arrest your license is going to be suspended for six months. Essentially you have two options to choose from when it comes to the DMV. The first option involves requesting a hearing with the DMV to go before a hearing officer and make legal arguments as to why the license should be given back to you. Those arguments include things like lack of reasonable suspicion to pull over a vehicle, lack of probable cause of a traffic infraction.
We argue lack of reasonable suspicion to detain somebody for DUI investigation and lastly we argue lack of probable cause for arrest. There’s also some technical arguments that can go into play, such as if the breath machine is not properly calibrated, they’re not certified or up-to-date. We can win those hearings if the documentation isn’t signed correctly or if they forget certain aspects of the documentation. If we win that hearing, the person’s license is reinstated. If we lose that hearing, the license is still suspended for six months; however, an individual can get a hardship license after 30 days. For that first 30 days there’s what we call a blackout period where you cannot drive whatsoever.
The first option, just to reiterate, is contesting the license from being suspended with the DMV. The second option is where you tell the DMV you want to waive your right to that hearing and so long as you enroll in the DUI Counter Attack Class. You can show the DMV you’ve enrolled and they’ll let you get a hardship license immediately. Your license will still be suspended for six months; however, like I said you would get your hardship license immediately and won’t have to go through that 30 day blackout period.
Explaining the DUI Counter Attack Class and DUI Counselor Evaluations
Interviewer: You mentioned a Counter Attack Class, what does that entail?
Matthew: The Counter Attack Class is essentially a statewide DUI awareness class. The courts will impose that class on that if you’re ever convicted or plea to DUI. It’s done through various agencies, depending on what county you’re in, but it’s almost always required that you complete that class whenever there’s a DUI arrest. It usually involves an alcohol evaluation with a counselor and that counselor will determine what your alcohol drinking tendencies are, when you started drinking, how often you drink, what quantity you drink, and things like that and will determine whether the individual needs any follow up treatment sessions. Some people don’t need any follow up treatment; because, the counselor has determined that the individual does not have a drinking issue and maybe it was an isolated incident. However, there are those individuals that have to come back for several weeks of sessions; because, the counselor has deemed it necessary.
Matthew: Yes. For DUIs in Orange County and Osceola County, they have instituted a diversionary program for DUIs. That program is essentially a contract with the State Attorney’s Office and the defendant. The judge does not come into play with this program; however, the contract is offered to the defendant and they have to do all the DUI sanctions. You have to do all the sanctions that you would have received if you were found guilty at a trial. After you complete all those sanctions, so long as you’ve done everything correctly and you haven’t gotten in trouble again after six to nine months; the State Attorney’s Office will dismiss the case.
You never have to accept a plea in court. You never have to go to trial. You’re never convicted of the DUI itself. There are a few things that would prevent somebody from being offered that contract. We’re always on the lookout for those issues whenever we meet with somebody. Generally, if you blow over .22, that will exclude you from being offered the pre-trial diversion contract. If you cause an accident, that would also make you ineligible. Additionally, if you were a blatant jerk to the cop, prosecutors will often not offer diversion, if you were very uncooperative in a personal way. Any type of driving pattern that would put someone’s life in danger is always a concern and could make somebody ineligible from the contract.
12 Months of Probation Mandatory for a DUI
Interviewer: What warrants probation? Is Probation Mandatory?
Matthew: Yes, the court will put you on 12 months of probation for DUI. The purpose of probation is to ensure that a defendant will complete all of the conditions or sanctions or pay the fines. If an individual does not abide by those conditions or complete the classes as instructed, the judge will violate the defendant’s probation and that person is now subjected to jail time. They will be picked up on a warrant, taken to jail, and held on no bond until that probation violation is resolved. Essentially the judge could re-sentence a person with maybe more penalties than they originally had.
Florida uses Interlock Devices to Monitor People Who Blow over .15 or Receive 2nd DUIs
Interviewer: Does Florida use interlock devices in cars? How do the devices work?
Matthew: Yes. The State of Florida does utilize the interlock device in certain circumstances. The device is connected to the ignition console of a vehicle. For the vehicle to be started, the driver has to blow into the mouthpiece and the vehicle will not start if there’s alcohol in that person’s breath. Once they blow and it reads no alcohol, the vehicle will start. The machine may also require a subsequent breath sample while driving actually. If that’s not provided, then from what I’ve been told the vehicle could become inoperable if the sample is not provided. I don’t know for sure, but I’ve been told that it does request a sample at times while you’re driving.
Interviewer: Now is that given to everyone that’s on probation?
Matthew: Not everybody. Usually the interlock device is required for individuals who blow over .15. It’s required for individuals who may have a prior DUI and now they have a second. Technically, the prosecutor making a plea offer for a first time offender who blew just over the legal limit can always make the device a condition of the offer. That’s just part of the negotiations.
Predicted Timeline for a Typical DUI case
Interviewer: How long could a DUI case last?
Matthew: A DUI case can last anywhere between two to four months. Four months if it’s going to be a trial case. There’s a lot of prepping that goes into it, as well as hearings before you can really say “hey, this case is definitely going to be a trial case”. For cases that go smoothly, where we know that they can be worked out or that there are issues and we’re going to win: a case can be resolved in a two month timeframe.
Interviewer: Let’s talk about cases where someone is seriously harmed as a result of the DUI. What would happen in that person’s case?
Matthew: In those types of cases, whenever you have great bodily injury, the police may attempt to take a blood sample. There are circumstances where blood could be drawn only pursuant to a warrant, but in great bodily injury cases they do have the ability to do a blood draw. That can make a case tough to defend because blood draws tend to be more accurate. There’s a set of procedures that the blood draw has to go through to make sure it is not contaminated and the blood doesn’t start to coagulate which could alter the sample itself. Those types of cases are always very serious cases and again that’s the type of case where we see red flags and know we’re going to be in it for the long haul.
Medical Conditions and Disorders that Potentially Can Have an Effect on DUIs
Interviewer: Are there any sort of medical disorders or conditions that people should bring up to you that could help their case?
Matthew: Sure. Whenever we do our initial consultation and we’re getting the facts of the case, a good attorney will always ask, “Hey is there any medical condition that may have affected your performance on the field sobriety exercise or even the Breathalyzer machine?” For certain diabetics, their condition could alter the breath sample. It could actually also make it appear that they have alcohol on their breath.
An officer may think they smell alcohol on a person’s breath, but it really could be their diabetic condition. Physical defects in ankles, feet, and knees can always affect field sobriety exercises. There’s the eye pen test where you’ve got to follow the pen with your eyes. If someone has a glass eye, obviously that needs to be known not only to the officer on scene, but also to the attorney when they’re fighting the case. If someone has problems with epilepsy or things like that, that can affect their performance on the pen to eye test as well.
Interviewer: Wow, I see. What if there was a minor in the car at the time someone was stopped for a DUI?
Matthew: Individuals can be charged with a DUI with a minor in the vehicle. That’s always a serious case and that’s actually one of the factors that can make somebody ineligible for pretrial diversion. You’re definitely looking at enhanced penalties and sanctions against the defendant whenever you have an aggravating factor like that.
Success Stories in Defending DUI Cases
Interviewer: Could you tell us maybe of a particular case a DUI that was one of your favorite victories or something that was a unique?
Matthew: I had a DUI case where an individual was pulled over for something relatively minor. It was just a regular traffic infraction. There was no driving pattern that would make the officer think that the individual was impaired. Once the DUI investigation started on paper and the police report, the officer notated certain things like a slurred speech that the individual was mumbling and just had an overall slow demeanor. On paper the case did not look good. However, once we received the video, it was very interesting. My client sounded very clear in the video. In fact, the officer sounded mumbled and had a drawl, like a southern drawl to his speech.
At the hearings the judge actually commented in open court, “I can actually understand your client more than I can the officer.” Needless to say, the judge found that there was not enough evidence to warrant detaining my client for a DUI and the case was ultimately dismissed. That was a great victory. That client was very appreciative and was involved in the case from start to finish. We always enjoy representing those types of clients. They’re involved and they are able to help themselves with the process as it goes.
Interviewer: What are some things people should look for when deciding to hire an attorney? What are some red flags they should be aware of?
Matthew: I would suggest they try and find an attorney that you get a good vibe from. At the end of the day you have a business relationship with this individual and this is an individual that’s looking out for your freedoms. As far as red flags go, you know in this profession no attorney can ever guarantee a particular outcome. In fact, I would say that that’s unethical. No attorney has a crystal ball and can say with 100% certainty that “this” will happen or “this” won’t happen. That’s one red flag to look out for. If you are in a consultation and an attorney is guaranteeing certain things, or certain outcomes, I would say beware.
You want an attorney that has experience in the community. Hiring an attorney from central Florida to represent you down in south Florida may not be the wisest of decisions. That attorney doesn’t have the local experience. Oftentimes a local attorney may have the inside track when it comes to dealing with these judges, what works, what doesn’t work, and things like that. Getting someone local is very important in a lot of situations.
Florida Does Not Have a Shelter Rule or Safe Harbor Defense in DUI Cases
Interviewer: Is there sort of a shelter rule defense, like maybe if someone pulls over in a vehicle because they’ve had too much to drink and they want to wait it out?
Matthew: Florida does not have anything like a shelter rule when it comes to DUI. The State has to prove is that an individual was in actual physical control of the vehicle. If an individual is pulled over in a parking lot sleeping it off and the State feels that that individual was in actual physical control of the vehicle, even if the vehicle is turned off, then they can move forward on the case and can actually still be convicted. The keys don’t even have to be in the ignition. Say the keys were in the backseat floorboard or the keys were in the trunk or maybe on the roof of the vehicle, that’s where legal argument comes in. A good attorney will argue that a person wasn’t in actual physical control of the vehicle and could not immediately start the car and begin driving impaired. It’s a case by case, fact by fact basis, but there is no shelter or safe harbor for pulling somebody over.
I will tell you this though, in my experience prosecutors do take that into account when making plea offers. If there’s evidence to suggest that an individual was trying to do the right thing, very honorable prosecutors will make better offers with the understanding that that person was trying to not drink and drive and was trying to do the right thing.