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If You Fail Field Sobriety Tests or Breath Test Can You Still Beat the DUI in Florida?
A successful outcome is different for different people charged with a DUI in Florida. Your options may depend partially on which county you receive the DUI in. Failing Field Sobriety Exercises or even the Breath Test does necessarily mean you can't have a good resolution.
Field Sobriety Tests / Exercises:
These are designed to fail. Many of them are not even admissible in court if your attorney files the right motions and sets them for hearing time before the trial.
The Walk and Turn is designed not just to measure your balance, but to follow the detailed instructions law enforcement gives, including how to stand, how to turn, how many steps, and touching heel to toe.
HGN: Horizontal Gaze Nystagmus is a test designed to catch two things, your ability to follow an object with your eyes without moving your head and Nystagmus, which is a shaking jerky motion that eyes make after drinking alcohol but which is also caused by other conditions. Testifying about Nystagmus requires expert education and experience, something most law enforcement do not possess.
The Romberg Test is where you close your eyes and count to 30 in your head and then let the officer know, to estimate your ability to perceive time. It is also a test for upper motor neuron disease and people with this condition will fall over when attempting this exercise even if they have not consumed alcohol.
Estimate on a scale of 0-10 with zero being completely sober and 10 being fall down drunk. This is completely subjective and people asked often don't understand. They often will say 4, 5, or 6 and then explain that they feel completely sober. The correct answer for this is always 0.
One Leg Balance test has you lift your leg off the ground about 6 inches and point your toes up with your head down and count to 30. This is difficult for even sober people with good dexterity. Law Enforcement will consider it a failure even if you complete the exercise without putting your foot down if you fail to keep your head down or hold your foot more of less than 6 inches.
Ultimately it's the jury who gets to decide how much weight to give these exercises. Some juries may be convinced of their effectiveness by law enforcement, but some may not give any weight to these exercises. It is important to have an effective attorney to convince the jury of how meaningless these exercises are.
The Breath Test in Florida is currently tested on an Intoxilyzer 8000 machine. It was initially approved by the Florida Department of Law Enforcement, but subsequent software updates have not. The private company who manufactures these machines has little interest in sharing its technology with criminal defense attorneys and experts, resulting in this machine often appearing to me a magic box that tells the jury of a person is impaired or not. Attorneys in several counties have been successful in challenging the reliability of the machine, which has resulted in breath tests being suppressed, at least in certain cases. Your attorney make convince the judge to order certain record be turned over relating to the machine, and if they are not, it could result in the suppression of evidence.
The judge may also order that your attorney be allowed to travel to the home office of the manufacturer in Kentucky to view their records. This will obviously cost you money, but may result in the suppression of your breath test results.
In some cases, when the appropriate motions are filed and hearings set, the state prosecutors will agree to favorable results in order to avoid going through these processes and to avoid the uncertainty of a judge's ruling.
Some counties have diversion programs and will under certain circumstances, allow DUI's into the program which may result in a full dismissal of the charge.
Ultimately, failing one or more of these tests and exercises isn't fatal to your case. Hire an experienced lawyer to fight for your interests.
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Written by: Indi V.
Date Published: 08/22/2015
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