It is the law that all drivers must exercise “reasonable care under the circumstances,” while operating a motor vehicle. A failure to do this is considered negligence. When that negligence is caused by an intoxicated driver, you will unquestionably need legal representation.
Do Not Let Auto Insurance Companies Pressure You
Following a motor vehicle accident involving a drunk driver, the insurance company will pressure you for a quick and inexpensive settlement. Before providing them any information or signing any documents, contact Fort Lauderdale DUI attorney John P. Contini & Associates, P.A.
Drunk Driving Victims
If you are the victim in a drunk driving DUI accident, you are entitled to compensation for the injuries that you suffered because of the impaired and negligent driver’s actions. These include:
- Rental car expense or reimbursement;
- Medical expenses;
- Lost wages;
- Pain and suffering;
- Your rights to medical care and punitive damages.
Our Fort Lauderdale DUI Attorney’s main priority in representing victims injured in drunk driving accidents is to get the victim back to the condition they were in prior to the accident. Someone driving under the influence is operating a vehicle negligently and illegally. As the DUI accident victim, you are entitled to punitive damages above and beyond the other damages you suffered from the DUI accident.
Our Ft Lauderdale DUI lawyers regularly assist drunk driving victims in getting the proper legal documentation to assist in the financial recovery for their injuries as soon as possible. For more information about your rights after suffering a DUI-related injury in Florida, or to schedule an appointment with a Ft. Lauderdale personal injury lawyer, please contact us.
These are DUI cases in Cocoa Beach and Brevard County Florida — and though I’m a Ft. Lauderdale criminal defense lawyer, we can certainly benefit from many of these same arguments and attacks against the breathalyzer and intoxilyzer machines to help our own local clients. You gotta love the always lovable, uncommonly clever criminal defense lawyers:
Attack leveled on DUI device
Intoxilyzer test results questioned in court filing
Written by Stacey Barchenger FLORIDA TODAY
Attorneys in a Viera law firm are challenging the use of a machine commonly used by police to test blood-alcohol content, saying the machine was not properly approved 10 years ago.
Lawyers at Eisenmenger, Berry & Peters filed a petition with Florida’s Division of Administrative Hearings this week, challenging the use of the Intoxilyzer 8000 as a breath-testing device in impaired-driving prosecutions.
“The petitioners allege a conscious and deliberate effort by the Florida Department of Law Enforcement to withhold information about failures by the Intoxilyzer 8000 during its initial approval testing in 2002,” the firm said in a written release.
If an administrative law judge were to determine that FDLE withheld information and invalidates the rule approving use of the device, it could change the resources available to law enforcement officers and prosecutors in DUI cases across Florida.
FDLE officials said they were aware of the petition, but said it was too early in the process to respond.
“(The Intoxilyzer has) been challenged by defense attorneys numerous times in the state of Florida,” said Gretl Plessinger, a spokeswoman for FDLE. “It’s still in use.”
The petition is filed on behalf of 66 people with current Brevard County DUI cases who each were given a breath test using the Intoxilyzer. The rule in dispute affects what evidence can be used at trial, the attorneys said.
The attorneys allege that, when the machine was approved for use in 2002, it had failed at least three of four tests.
“It actually started smoking,” attorney Robert Berry said. “One of the machines started smoking.”
The attorneys say FDLE went ahead and got approval to use the device without notifying the public or state government officials of the test results.
Had the alleged failures been known at the time, it would have “significantly altered the debate about approval of the Intoxilyzer 8000 and ultimately the utilization of upwards of $3 million in taxpayer funds to purchase hundreds of these machines,” the petition reads.
Berry said he was aware that other attorneys had challenged versions of the Intoxilyzer’s software, but not the machine itself.
In 2009, a group of attorneys asked Brevard circuit judges to throw out breath-test results in 56 cases, arguing that the Intoxilyzer machines had parts other than those approved for use. The lawyers said the readings could then be inaccurate. But eight judges rejected the attorneys’ bid after hearing evidence that there is only one Intoxilyzer made and sold in the United States.
In addition to the Brevard cases, an administrative ruling for the attorneys based on the pending petition could have a more far reaching impact. It could, for example, mean FDLE would have to seek approval of the machine for a second time.
“The department would have the right to start from scratch and try and get the instrument approved again,” Berry said. “Hopefully this time they would have public hearings about it.”
It also could affect whether Intoxilyzer breath tests can be used in other pending DUI cases.
“If an administrative law judge says FDLE didn’t follow the law in approving the machine, it would be very difficult, I think, for judges in trial courts across the state to admit those results,” Berry said.
The case has been assigned to Judge Stuart Lerner, but has not been set for a hearing. Typically, administrative law hearings, which allow both sides to present evidence and witnesses to a judge, are held within 90 days, according to the Division of Administrative Hearings.
Q. “If a police officer asks me to get out of my car and do these roadside drunk tests, do I have to do them?”
A. No. There is no legal requirement that you do these “roadside sobriety tests,” which they now call “field sobriety exercises” – since the Supreme Court disallowed “tests.” You cannot be arrested for the separate offense of “refusal to obey police officer,” for exercising your legal right to refuse to perform these “tests” or “exercises.” If you are arrested, it will not be a consequence of your refusal to perform these tests; it will be for the offense of DUI – for which you were going to be arrested by the same officer anyway!
The officer will inform you that your license will be suspended for 12 months for a 1st “refusal” to do the breathalyzer and 18 months for a 2nd refusal – and recently, they just made it a separate crime, a misdemeanor, for the “refusal” itself; but even with that, most folks rightfully refuse and take that administrative suspension risk and even that separate misdemeanor, rather than supply the prosecution with terribly damaging evidence of a high “blood alcohol level” (BAL) or breathalyzer reading – an almost certain jury conviction, assuming you’ve had a lot to drink, etc. Even with the separate “administrative” suspension for the “refusal,” your lawyer can get you a “work permit” so you’re better off refusing *if you know you’ll blow high on the breathalyzer …
You are not required to perform the roadsides – and almost nobody sober can do those! In fact, we get the officer to step down in front of the jury and demonstrate the “roadside” “tests,” and while nervous in court (like anyone else doing these “tests” on the street – with cars passing by at significant speeds with headlights in your face, while on gravel, with police lights strobing all about you), the officers invariably make a “mistake” on the same tests, so avoid doing the tests that only serve to give the officer things to write about, e.g., “the defendant missed their nose on the finger to nose test,” etc.
Q. “What do you do if you’re in an accident?”
Answer: Blame the other guy no matter what, since that’s what everyone else is doing.
The better answer: Call 911 and get emergency medical help immediately, assuming you’re physically able. You may be in shock and in trauma, and your injuries may not fully manifest themselves or be apparent to you for some time – or until after the shock and trauma wears off ; so again, ‘better to be safe than sorry,” and allow the paramedics to observe and treat you! Call your parents from your cell phone as soon as possible after the accident, and give them your location.
Be aware of the witnesses to the accident and attempt to prevail upon the witnesses to provide you with their names and contact information. Do NOT leave the scene under any circumstances before the police and paramedics arrive, lest you be arrested for the crime of “leaving the scene of an accident.” It will be a felony charge of “leaving the scene of an accident with injuries,” if someone is injured in the accident.
Q. “If someone gets drunk in my home and they end up hurting someone in a wreck, am I in trouble?”
A. If lawyers get involved, “yes.” Lawyers always get involved today, so the answer is always “yes.”Here is why:
If someone gets drunk at your house and you gave them enough alcohol to allow for them to get “impaired” and “over the limit” in DUI cases (.08 blood alcohol level” in Florida) – and they then get into a car accident resulting in death or serious injuries, you will be sued. A lawyer representing the injured person or the family of the person killed, will start with your homeowner’s policy, and build from there; but:
They just made it a little better for the homeowner or bar owners, inasmuch as the plaintiff must now prove that those who served the alcohol *knew* in advance of the drunk’s propensity to drink too much. This makes it easier for the bar owner and/or homeowner to ultimately prevail in the lawsuit.
Q. “Can I be charged with DUI when all I took was my own prescription medication?”
A. Absolutely, and it happens all the time. If your “own prescription medication” caused you to be “impaired” or “under the influence” of that particular “controlled substance” while “operating a motor vehicle,” then yes, absolutely, you can be charged under these circumstances with DUI.
Q. What do you do if you’re asked to take a breathalyzer test?
A. Inquire as to whether the officer knows if a 2 pencil is required for this test. Better answer: If you were not drinking alcohol, take the breath test. Why? If you refuse to take the breathalyzer/intoxilyzer test – and assuming the police officer had the requisite “cause” to request that you take the test, then you will suffer a “license revocation” of at least 12 months in most jurisdictions.
Q. ”Why are they prosecuting people for felonies and putting them away in State Prisons for drunk driving cases?”
A. ”Most States are doing this now, if they find from a criminal history (background check) “NCIC” (National Crime Information Check) that the individual has at least two (2) prior DUI or DWI (“driving under the influence” or “driving while intoxicated”) convictions in their life — and worse news for repeat offenders Most States are permitted to go back as far as their records/data collection allow — as far back as 20 years, to resurrect the prior offenses as predicate acts, to establish the current “felony DUI” charge and prosecution. In that case, sadly enough, the many productive years of sobriety in between the new offense and the very old, historical offenses, is unfortunately rendered meaningless.”