On Monday August 11, 2008 we resolved a DUI case in which the prosecution offered to reduce the charges to reckless driving. A settlement of that nature is called a "breakdown" and it is a goal we seek on most of our DUI cases. Here is how we did it on this case:
The client was charged with DUI when the police arrived to the scene of an accident and made certain observations that led them to believe the client had been driving while impaired due to alcohol. The client was arrested and taken to a police station where he gave a breath sample. The readings were 0.18 and .17- the legal limit in Florida is 0.08.
There are certain rules and procedures police officers must follow if they want to obtain a breath sample that can be used in a case. One of the procedures is a "20 minute observation" in which the officer observes the individual to make certain that they do not drink or eat anything or vomit or burp. When alcohol is consumed it obviously is first in the stomach before it is absorbed by the intestines. If a person burps or vomits within twenty minutes of giving a breath sample the sample is not considered reliable because the action of burping or vomiting could bring alcohol in the stomach into the mouth.
In Florida most tests for a "blood alcohol level" consist of the use of a machine called an intoxilyzer 8000 that analyzes a breath sample and calculates a blood alcohol content. The Intoxilyzer 8000 has a specific start-up procedure that includes the officer entering the time when he or she first started to observe the driver for 20 minutes . In this case we noticed that there was approximately a one hour delay between the 20 minute observation period and the breath sample. We filed a motion to suppress which was heard by Judge Ortiz of the County Court bench in Dade County.
The officer had testified at a deposition prior to the motion that he had "no idea" what occurred after the twenty minute observation period and the time the breath sample was collected. At the motion to suppress, we learned that the officer had a second driver and was conducting a criminal DUI investigation of that person at the same time. The officer testified at the motion to suppress differently than he had at a deposition and said he had watched the driver during the entire time. Once we learned the name of the other driver we obtained paperwork on that case during a break in the court proceedings, and were able to show that the officer's testimony as to what he was doing and the time periods he said he was doing it were different than the reports he created. Essentially this boiled down to the difference between "observing" someone and being able to see someone in a room. The Judge agreed that the officer's actions were not consistent with the type of observation the law requires, and she granted the motion to suppress. Based on the officer's testimony the prosecution offered a breakdown to reckless driving which our client accepted.
Why did the client accept a plea to the reduced charges?
In Florida it is important to remember that when a person gives a breath sample above .08 the driver is prosecuted TWO DIFFERENT WAYS FOR DUI: 1) driving with an unlawful blood alcohol level; AND/OR 2) driving while impaired due to alcohol. A prosecution for driving while impaired does not require a breath sample. Therefore, in this case, although we were successful in getting the breath sample excluded from evidence, the prosecution could have proceeded with a prosecution for driving while impaired. Under all the circumstances of this case, the client agreed that it was in his best interest to settle the case for something other than a DUI. We were very pleased with the result and glad we could help this client.
