"Drinking and driving" is a common misnomer. It is not a crime
to drink and drive. If you are 21 or older, you may consume alcohol and
then drive a car. There is no law in the State of Florida that makes it
illegal to drink alcohol and then operate a vehicle.
It is a crime, however, to be
while driving. The crime of
is committed when somebody operates a motor vehicle on any roadway in
the State of Florida, and at the time of operating that motor vehicle,
the driver has either a blood-alcohol content of .08 or higher, or their
"normal faculties are impaired" by drugs or alcohol.
"Normal faculties" include basic coordination, such as ability
to judge time and distance.
Many clients get nervous because they get pulled over and admit to the
police that they had consumed a few drinks. Is this an admission of guilt?
If the accused is a 200+ pound male, two or three beers is not likely to
cause him to become impaired. However, if the accused is a 100 pound female,
two or three beers may very well put her over the limit.
Everybody metabolizes alcohol differently, so impairment is a pretty subjective
measurement. So long as an accused person
refuses the breath test
, the only way to prove impairment is through the testimony of the arresting officer.
I can promise you (and if you just got arrested for DUI you will laugh
when you read this) that the officer's "assessment" of your
condition will sound a lot like this when he relays it in his or her report:
"Driver had slurred speech, flushed face, bloodshot, watery eyes,
and an odor of an alcoholic beverage."
Nearly all arrest reports for DUIs in Florida read the same. That's
because police officers must put specific language into their reports
so that their arrests will be upheld as valid, and judges will find probable
cause. If the arrest report is lacking, a judge could dismiss the case
at bond hearing.
If you submit to the breath test, an officer will have you blow into a
hose connected to a machine called the Intoxilyzer 8000. This machine
will analyze a sample of your breath to determine your blood-alcohol content.
The validity of this process has long been questioned by the scientific
community. But as of now, the results of an Intoxilyzer 8000 are almost
always admissible in court, unless some procedural or mechanical defect
If your breath reading is a .08 or higher, you will be considered legally
impaired. But even if your breath reading is under a .08, you may still
be arrested for DUI if the officer believes that your "normal faculties"
All a .08 reading is is a presumption of impairment. That means that in a DUI
, if the State properly admits the breath reading into evidence and it
is over a .08, the judge will instruct the jury that the accused is presumed
impaired. Arguments and evidence (if any) by the defense may rebut that
However, if the reading is less than .08, there is no presumption of impairment.
However, the State can still proceed in a prosecution under the theory
that the accused was impaired.
So in essence, drinking and driving is not the same as driving under the
influence. But still, I always urge people to exercise extreme caution
when going out at night. Even if you are not impaired, police officers
are always looking to make DUI arrests. There are good overtime and court
time hours available for cops involved in DUI arrests, so there is certainly
a monetary incentive to arrest you.
And from my experience...if a cop smells alcohol on your breath, you are
likely going to jail.
Use designated drivers when you can, or call a cab. It's a lot cheaper
to spend $50 on a cab ride than it is to get a DUI. Believe me.
But if you have been arrested for DUI in Miami-Dade County or Broward County,
today. I am a
Miami-Dade County criminal defense attorney who represents clients charged with DUI.