Florida DUI Defense Attorney Exposes Conflicting Testimony When Driver Blows Over 3X's the Legal Limit, Resulting in Reinstatement of Driving Privileges

FLORIDA, March 22 /PRNewswire/ -- Florida DUI Attorneys expose the denial of rights to a man who could not speak English during a DUI arrest.

On the morning of January 5th, a driver was pulled over for failing to maintain a lane, where he had driven off of the roadway four times.  After the 4th swerve into the grass, a Florida State Trooper initiated a traffic stop.  When the officer approached the vehicle he noticed an extremely strong odor of alcohol emitting from the facial area of the driver. It was also observed that there was an empty upside down beer can in the cup holder, and a box of beer on the passenger side floorboard.

Officers administered field sobriety exercises (FSEs) where the driver performed poorly.  He was then arrested and charged with DUI.  

Both arresting officers were present and testified at the Formal Administrative Review Hearing (FAH).

The Breath Technician, a two year veteran with a valid certification, testified that the arresting officer conducted the 20 minute observation period, and was also present in the breathalyzer testing room.  He also stated that he was not aware of any problems with the breathalyzer machine, and had used this specific machine before.  When the test was completed, the driver blew a .269, three times over the legal limit.  Prior to the breath test being administered, Miranda and Implied Consent had been translated by the officer, as the driver did not speak English.  

A Musca Law Attorney had asked "if the Department has an implied consent form already translated in Spanish?" The response was "I do not think that they do, but I feel that the officer was fluent enough in Spanish to provide a proper translation."   The hearing officer then asked if the driver had understood the direction given to him in the breath room, and he had stated that he did understand (contrary to his earlier testimony that he could not communicate with the driver in English.)

The arresting officer, a 4 year veteran with the Florida Highway Patrol, was not a DRE (drug recognition expert) and other than being a certified breath technician, he has not received any additional DUI training beyond the academy.  He testified that he did not remember if he was in the breath room for the breath test, and does not remember who performed the 20 minute observation period. He does however, recall the period of time from the time of the arrest on the scene until they arrived at the police station.   He also stated that he does not speak Spanish, although, another officer that arrived on the scene to observe was in fact bi-lingual, yet, he did not translate.  The officer testified that he gave the driver FSE instructions in English, and that the driver understood and did not request a translator.

Most telling was the diverging testimony relating to time periods.  Time is of the essence in DUI testing; transport should be rapid, because alcohol consumed shortly before driving may not have entered the bloodstream when the person was driving, but it may affect test results later.  Prior to the test, a person must be observed constantly for a 20-minute period to ensure that he has not vomited or regurgitated any alcohol, which can produce an erroneously high breath test result.   In this case, the only explanation for the lengthy transport time was that the arrest took place "way out" on a highway.  The technician said the Trooper had conducted the required 20-minute observation period, but the same Trooper said he couldn't remember who did it.    

The hearing officer granted the attorney's motion to reinstate, regardless of the driver's extremely high breath result, based on the violation of the 20-minute observation period requirement, without hearing further available evidence.  While the results of the hearing are not binding on the court that will hear this man's criminal case, all of the issues raised in this unusually egregious case are expected to be extremely persuasive in garnering a dismissal of the charges.

    
    
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SOURCE Musca Law