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DUI Defense Basics

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DUI Defense Basics

This program is a comprehensive lecture by noted DUI expert and defense attorney, Robert S. “Bobby” Reiff, the author of "Drunk Driving and Related Vehicular Offenses (Lexis Law Publishing Company) and LexisNexis' "Florida DUI Practice Guide" series. In this program, Mr. Reiff provides both new and experienced DUI attorneys tips about DUI defense and how to win a DUI case. He will provide an overview of DUI case defense in both the administrative (driver's license) and criminal court forums, as well as tools for using common sense concepts to make the case for your clients.

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Robert Reiff
Owner
Law Offices of Robert S. Reiff, P.A.

Transcript

Robert Reiff - Hello, and welcome to DUI, DWI Defense, learning the basics. My name is Robert Bobby Reiff. I'm an attorney who has been practicing in this area of law for almost 40 years down in the Miami and Fort Lauderdale, Florida areas. So let's talk a little bit about DUI and DWI defense, and I'm gonna refer to it as DUI here on in, only because in south Florida, that's what we actually refer it to. But it has many names, whether it's driving under the influence, driving while intoxicated, driving while your ability is impaired or just the old save old, drunk driving, it's really all the same thing.

There's a famous football coach. His name was Vince Lombardi and he was the really one of the first great football coaches. And every year at the beginning of training camp, he would get up before all of his football players, he would hold up a football and he'd say, gentlemen, this is a football. Well, I'm kind of gonna do the same here today. So ladies and gentlemen, this is a DUI case and I'm gonna attack it from various avenues.

Now, certainly some of what I might be saying is familiar to you, but some of it may not be, and it might also jog some ideas in your head, might contact information. And the slides that go along with this presentation is in a PowerPoint presentation. My contact information is also there. So feel free to reach out to me if you should have any further questions, I'm more than happy to respond to emails or phone calls. And my contact information is there.

So ladies and gentlemen, this is a DUI case, and let's start at the very beginning, at the initial client meeting. I make use of a detailed client interview sheet, and I have the client complete those sheets before they even come into my office and I sit down and talk with them. So the first thing is, of course, how does your office look? Is it professional? Is it organized? The worst thing you can do is look totally disorganized or disheveled in your presentation, whether it's you personally, or your office in the eighties. I started my first job out of the prosecutor's office with an attorney who is one of the finest DUI defense attorneys there ever has been. We were so good that he was able to convince both the Wall Street Journal and 60 Minutes to write or record articles about how good firm we were. And as you can imagine, business just exploded after that. But I remember one time when a well healed client came into our office for a very big case, a DUI manslaughter case. And he walked in the office and he sat down at the couch and after a few minutes of waiting around, he basically said, oh, I gotta go. And he walked out and he went back to the referring attorney and he said, listen, I had to leave that attorney's office. And he said, why he's the best. He's the best one for your case, and he said, yeah, but I walked into the office and it was disgusting. It was a couch and this big space, and there were files all over and it was totally disorganized. And the lawyer said to him, listen, I get it. That they're a little disorganized, but he's the best one for you. Don't judge a book by its cover. And he did of course come back and we successfully represented him, but one of the things that always drove me nuts about working for this attorney is that he was so disorganized and he didn't care about how he looked, how he dressed or how our office looked. And thankfully, before I ended up moving on to my own practice, I was able to get him to change his presentation style a bit because let's face it folks, how you look, how your office looks goes a long way to whether or not the client believes in you. And if you have awards, if you've written books like I have on DUI defense, if you've been granted awards by any number of the companies out there that grant awards, well, put out those plaques, put out those awards, let the client see them, whether it's in your reception area or by your desk.

So when you get the client to fill out this interview sheet, what are you trying to do? Well, you're trying to get them to answer questions, both basic and explicit. What is it that they need to tell you? Well, they need to tell you a little bit about themselves and they need to answer questions about their medical history, about what they expect from you as their attorney. These are important questions that you need to have them answer. And once they answer it, you can follow up with them and get more details because you never know what's going to break a case in your favor. And if you don't ask the question, well, then it probably will go by the wayside. And you'll never know. So be detailed in these questionnaires, have them take the time and you don't have to sit there and ask them every individual question yourself, because that's what the questionnaire does. You just have to then look at it and say, wait a second. He said that he has spinal stenosis here, or he had surgery on his knee two weeks before he was arrested. I have to ask a few more questions about that.

Now, in any DUI situation, you're likely to going to have both an administrative and a criminal component to that. Now, what do I mean by that? Well, in most states, the mere fact that you were arrested for DUI and then either failed a breath test or refused to submit to one, or urine in or blood test where those are appropriate, can and will cause your license to be administratively suspended by your local department of highway safety and motor vehicles office, or department of revenue. Again, depending upon which state you practice. And you need to be aware of these things because like in any other case, there is a time limit and you have to take action within the appropriate time limit. In Florida, we have to request within 10 days, an administrative hearing and that administrative hearing has nothing to do with the criminal court. It has nothing to do with the criminal judge. It is merely before an agency with our department of highway safety and motor vehicles, an agency called the Bureau of Administrative Reviews. And you must make that request timely as I indicated.

So while the rules and regulations of how to handle that case is very different. And that's the subject of more detailed lecture that I will give in the future. Just suffice to say that you need to be aware of the fact that in most jurisdictions, a person's license will already be suspended when they first come into your office, or even when they first call you and you need to take action within a timely manner to address that. And of course, there's a criminal case, where you have to file pleadings, obtain discovery and do the general defense that you would in any criminal case. So let's just talk briefly about the administrative case. And again, this will be the subject of a more detailed lecture.

Now, in some states, they have a formal review or they will say, they waive your right to that formal review hearing. And we will instead just give you a permit to allow you to drive for the entire time period. Now, to me, that's a terrible trade off. Why would you waive your right to challenge the validity of the suspension, and hopefully be successful at that. And additionally, have an avenue to gain additional discovery. When all they're giving you is a temporary license throughout the time period. To me, that's not a good trade off because the long term detriment is that forever more, the person is gonna have on their driving record, that their suspension and was there. And that's a potentially devastating thing for any individual who is accused of being DUI. I've had a few cases where my clients have insisted they had to waive because of their job purposes. And I appreciate and understand that, But ultimately, they later came back to me and they said, this wasn't a good decision. I made the wrong decision.

So you requested administrative hearing. Well, make sure you file it in the appropriate jurisdiction. Whether in this case, it's administrative of jurisdiction, you must file it with them. Additionally, request a permit that allows your client to drive during the administrative process, because in most jurisdictions, they will give you a permit while you are contesting the administrative hearing and request a copy of the administrative hearing file. Don't assume that they have the paperwork in the administrative file, or that it is created properly. Do the necessary work to obtain that permit and obtain that paperwork, and do not issue subpoenas where you're eligible to do so. And you usually have the right to issue subpoenas until you've seen the paperwork in the file and know that it is proper and that it is in the proper order and properly executed. You can't notice until you get a copy of their file and there are times and they make mistakes, or they don't have the paperwork. Well, if you then subpoena the individual to testify, they can correct that. Well, you don't want to let them correct it, especially where they've made a mistake. That's snatching defeat from the joys of victory. So don't do that. Now, once you get that paperwork, review it, Take a look at it. Make sure the times and dates jive with each other, make sure the people who sign the paperwork are the right people, are all the needed papers in the file and in proper order? And to ensure that you do it correctly, I happen to have an administrative hearing checklist, and I show you an example in the PowerPoint paperwork, the PowerPoint presentation that will be submitted as part of this lecture. So make sure that you look at what you need to do properly and make sure that all of the paperwork is there.

Now, in any DUI case, I like to create what is called a case action sheet. And again, there is an example of such a sheet in the PowerPoint. And what I like to do is just have all the basic information on that sheet. And I like to put a picture of the client there as well, whether it be a copy of the booking photo or a photograph I take of them are internal purposes that I explained to them, that I then put on that case action sheet. Now, why do I do that? Well, first of all, case action sheet is important because you should be logging what is going on each time you go to court, whether it be the administrative for the criminal hearing, every time you appear on behalf client, you should make a note of it. That's important because let's face it. Folks, we get busy, we have lives outside of the courtroom, and we might forget things. Having that case action sheet to notate everything, that's going on will be very helpful.

Now, why do I put a picture of my client on that? Well, because folks, you'll get calls down the road, many years after you've closed out the case, you'll receive a call from the client. Hey, Bobby, you remember when you represented me on that DUI 10 years ago? Well, I'm applying for a job and I wanted to what to say, well, of course it's gonna be a little difficult for me to necessarily remember a name from 10 years ago, but because I can click a few buttons, pull up the case action sheet, see my notes, see the picture of the client, that usually jogs my memory pretty good. And so I see suggest that you use a case action sheet.

Now, the next thing, investigate your case. How do you investigate a case? Well, of course, review the police reports, but then check the scene, check the scene using Google earth, visit the scene yourself, especially if the case involves serious bodily injury or death. And of course, request discovery from the prosecution with specificity, meaning make sure you ask for everything in the moon, because if you don't make a specific request for everything, and then later on, you've discovered that they didn't timely provide it to you. The argument can be made well, they didn't specifically request it. So for all that argument, by asking for everything and anything, Google earth is a great tool folks. I remember early on in my career before we had the internet, yes, I'm that old. We on some of our bigger cases would literally have to rent out a commercial plane with a photographer on it. And they would have to fly over the intersection to take overhead pictures and it would cost us money, a lot of money to do that. Well, now you can do that without that expense. So use the Google earth to go to your intersection, both above and on the street and take a look at the intersection, take a look at the roadway, see if there's any idiosyncrasies to it.

Now, when you request discovery, if you don't receive discovery that you're expecting obtain court orders, from the court of course, that compels the prosecution that provided to you, also figure out, are there any security videos or feeds from local businesses around the area? I've had cases happen at 7-Elevens. And so what I will do is send an investigator out to that 7-Eleven and get them to make a copy of the security video feeds. That can be very helpful. And you might see things that you otherwise would not know anything about. Check the history of the breath machine if applicable. So if they use a breath machine, there has to be a database of that machine. There has to be a database of everything that went on with that machine. Any inspections done, any time it was taken offline, there are resources available to you.

In Florida, we have the Florida Department of Law Enforcement's Website, which governs alcohol testing. I've given that website in the materials, so you can see what is there. And that can be very helpful. So find out what is the location where I can get the material. So if there's a breath test, well, you wanna know about the machine that was used specifically. Not generally, I'm talking about specifically, of course, you need to know generally, but I wanna know specifically about that machine. And so I'm gonna ask all the necessary questions and I'm gonna make the necessary requests for that in information.

Now, the next part is what I like to refer to as the importance of scheming. And I'll tell you why I tell this story, it's because sometimes we just don't take the time to really think about our cases. I had the great fortune of learning from many tremendous lawyers in my day. And one of those was a gentleman by the name of James, Jay Hogan. And Jay was one of the top criminal defense attorneys in the country. And he would fly all over the country to try federal cases. And he was the type of lawyer that other lawyers would take time out of their day to go to the courtroom. Usually the federal courtroom, to watch him, to watch him ply his trade, to cross examine witnesses, or give an opening and closing statement. And let me tell you folks, he was brilliant. And I had the opportunity to share space with him or almost 30 years. And towards the end of his career, when he was retired and he basically come in to kind of BS with everybody there and just go out to lunch. I remember one time him telling me Bobby, it drives me nuts, what these attorneys are doing these days. And I go, what do you mean, Jay? He goes, well, everybody's concerned about their emails and the internet and text messages. And nobody takes time to sit down and scheme. They get all this information, sure. The Internet's great for getting us information, but they don't stop to think about their case. They do out take time to scheme. And that's what I'm talking about here folks, you need to turn off the gadgets, to sit down and think several steps ahead to plan accordingly. If you're gonna cross examine a witness, okay. If the witness says X, then I need to say Y. If witness says A, I need to see B, you know, part of good cross examination is asking the question that no matter what the answer is, you get an answer that is successful for your client. That gives you something that you can work with. That there's no wiggle room for them to give an answer that hurts your defense. So take the time to scheme, take the time to figure that out.

Now, in one of my slides in the PowerPoint, I give you an example of one of my scheming. I had a young man who was arrested for DUI, and he was the owner of a local graphics company that did lot of the legal graphics. And he would make the real nice presentations for the big firms and the PI cases and the multimillion dollar cases. And I remember sitting down with him one time, talking about his case. And I said to him, listen, David, I've had this idea for a while. You know, I was thinking about breath tests. And I was thinking how all of the breath tests is really based upon a proverbial house of cards. I mean, they assume so many things that just aren't necessarily true, that when you look at all of them individually and then look at how they all interconnect, you realize that breath testing is all built on a proverbial house of cards. Can you do a PowerPoint presentation for me or in that case? Because this was early in my career, put it on a big poster board and let's call it a house of cards. And so he did so. And so I'm giving you an example of one of the PowerPoint presentations I did, which shows all of the individual cards. And I remember when I was speaking to him, he said, I don't understand necessarily. I said, literally get playing cards and put them together like the old game that we used to play, where we'd make a house with cards and show how flimsy it is, and so he got a deck of cards and put it together and I'm telling you, it's brilliant if I say so for myself. But the point is this, the house of cards idea and how we presented it was really, because I took the time to think, to least think about my cases about how I could use a certain creative concept to present that to a jury, to a prosecutor or to a judge. A

nd that's what you have to think about, okay, you're gonna make a presentation. Well, most of a us initially have to make that presentation to a prosecutor. If we are trying to convince the prosecutor to drop the charges or to reduce the DUI to a lesser offense, how do we present that? How do we take this great mass of evidence and present it to that prosecutor so that they look at it and say, you know, Bobby, you're right, I've got a problem with this case. Maybe I should drop it, or maybe I should offer you a better deal. How do I present my argument to a judge or to a jury, take the time to scheme. And I like to refer to this as the reverse jigsaw puzzle analogy as well, sometimes in order to properly defend your client, you have to do a reverse jigsaw puzzle. Think of a jigsaw puzzle that you've created. Well, once you've finished that jigsaw puzzle, you see the picture that they were intending to put together. Well, what if you did it by removing pieces? What if you start removing so many pieces that somebody looking at that picture can no longer identify what it is?

Well, that's kind of what we need to do. Pick apart the prosecution's case piece by piece, make that puzzle such that an individual can no longer recognize it. How do you do that? Well, of course you start obtaining your discovery through whatever sources you can. You start attacking the evidence by your research, by your investigation, depositions, where they're permitted administrative hearing testimony, where you can get it and then start attacking it. And some of it is you attack it through motions in limine. I always file motions in limine to preclude the witness from referring to field sobriety tests as tests, there is case law that refers to them as exercises in says, in fact that an officer should not make reference to them as being tests, because that gives it an he of scientific reliability. When really there's nothing scientific about them at all. So you need to file motion to do that.

Now, what does it take for an officer to be certified in DUI investigations? The answer is, that's a misleading or a false question. No officer is certified in DUI investigations. Again, they're overstating their qualifications. Don't let them do that. There is no such thing as a certification process, they are trained in the state of Florida. Every officer goes through the police academy is trained in how to handle DUI investigations. That's it folks. There's no certification. They're not even given a certificate they're trained. And basically they're told, okay, now you can handle DUI investigations. Just like you can have a badge. You can have a gun, you can go out on patrol. So don't let them say that they are certified. And there's a subspecialty of DUI investigations called drug recognition evaluation. And while I won't go into all of the de tells of what it is, the training was first created to allow police officers to determine if somebody was impaired by drugs, because urine testing isn't necessarily reflective of impairment. It only shows that somebody has it in their waste product, their urine. And the training initially was created to address that issue for the police and prosecutors.

And somehow along the lines, these individuals started calling themselves experts. Even though it was drug recognition evaluation, they were saying, well, I'm a drug recognition expert. No, you're not a drug recognition expert. First of all, the training doesn't allow you to become an expert. And number two, who declared you an expert? Listen, only a court can declare a witness an expert, and I'll tell you that most of them have realized that they're not experts. So if you get one of those cases with a drug recognition evaluator, make sure you put limits on their case. That's what I call the beneficial effects of careful language management. You need to limit the prosecution's case. You need to take away the emphasis on the people who are testifying on their behalf and on the evidence that they are presenting. Listen, folks, jurors don't like things that don't make sense. So that's why some of your questions really have to be basic. And because jurors don't like things that don't make sense, it makes for interesting cross examination. If you've already gotten the court to argue, excuse me, to rule on your argument to say that no, the officer can't say that they're tests because they're not scientific. They're only exercises. Then you can ask questions like now, officer, do you usually exercise while wearing dress shoes? Do you access size in a suit? Do you exercise in a dress? That's the benefit of language. That's the benefit of scheming ahead.

Now next section of our discussion is what I call stupid is as stupid does, the absurdity of sobriety exercises. Now who came up with sobriety exercises? Well, actually police officers in the field, they just came up with things because they didn't know how to figure out if somebody was impaired or not from alcohol. So they just started doing crazy things like throwing coins on the ground or telling people to touch their finger, their nose, or reciting ABCs backwards or all kinds of crazy things. And literally when the first initial evaluations of what they were doing were determined, it was found that there was about 100 different sobriety exercises that were being administered around the country to try to determine impairment. And what happened is a graduate student in psychology. Yes, psychology, not medicine, psychology, decided that for her thesis paper, she was gonna do an analysis of the field sobriety exercises.

This was a woman later, doctor Marcelline Burns. And so she went around with sobriety, to different police officers and police agencies to look at the sobriety exercises they were administering. And she basically weeded down the 100 to about initially about 15 of the best to which I said, wait a second, did she ever bother to interview any doctors? To determine whether or not it was medically reliable, what these officers were doing? And of course the answer was no. She merely took police practices, weeded out the real bad ones and picked the best of the worst. That's right, the best of the worst. And by the way folks, that's a good line that I use in cross examining officers. So officer, you use the best of the worst that was available to you, that paints a picture, that paints a picture for your jury, for your judge. And one of the interesting things is that what they finally came up with the best ones, the walk and turn, the finger to the nose. The one leg stand are actually abnormal tasks to determine somebody sobriety. I mean, do we normally stand with one foot in the air? Of course not. Do we normally walk on a line touching heel to toe? Of course not. So now take that information and paint yourself a picture. Now officer, you said you were with Mr. Defendant throughout that evening, for instance, you initially asked him to exit the vehicle at that point, when he was walking around, outside your police vehicle, he was walking normally. Sure, the officer will usually say, so you then asked him to perform certain sobriety exercises. Yes, like touching his toes, were walking in a heel to toe manner, yes. Officer, when you're patrolling out on the streets, do you normally see somebody walking in a heel to toe manner as they're walking down the street? Of course not, they'll say, in fact officer, would it be fair to me for me to say that that would be an abnormal way of walking and you'd like do a double take and they would say, of course it is an abnormal way of walking. So you were attempting to determine if you had probable cause to arrest Mr. Defendant based upon asking him to perform abnormal tasks.

Now, again folks, that's red meat and I'm throwing out for the jury because again, they want things that make sense. And they're gonna suddenly sit there and say, you're right. That doesn't make a lot of sense. They were as asking them to do things that are not normal. That's important. And the other thing I like to do is I like to talk about how these are the type of tasks that practice makes perfect. And so I will often say to an officer, now officer, when you were young, did you ever play baseball? And I might get an objection from the prosecution, irrelevant, and I'll say, judge, may I have a few moments to develop this issue? And most of the judges, and again, this is where reputation comes into play. I haven't had a judge who wouldn't allow me to at least get into it a little. And I'll say, officer, the first time you were ever asked to hit a ball with a bat, would it be fair for me to say that chances are you probably missed the ball entirely? And they'll say, yeah, well, yeah, that makes sense. And it took you a while to be able to hit that ball with regularity, of course. And so practice as they refer to it, made perfect. And I'll say, well, yeah, you're right. Practice did help me. And of course, you know, that's almost a misleading statement to say practice makes perfect because nobody ends up being perfect. I mean, a professional ball player, they hit one out of every three baseballs into play and they're making hundreds of millions of dollars in their career. Most of us are never gonna get near the baseball field in the professional ranks. And they'll say, you're right.

So for instance, you know, little like putting an Ikea chest together, the first time you put that or any kind of thing together usually takes a long time because you're just not familiar with how to do it. And then after you do it, you say, oh, okay, now I get it. And if you had to put together another chest, you'd probably do it in half the time. And then if your job was to put together Ikea chest, you'd probably do it in a 10th of the time it took you the first time now, what am I doing here? Well, I'm making it abundantly clear that the first time an individual is ever being asked to perform a task, an abnormal one at that, it takes some time to get familiar with it, to practice it. And certainly if your client has never been arrested before for DUI, that is a wonderful argument because not only does it allow you to give them something they can rest on, that practice makes perfect, and the first time is the worst time, but it also gives you an opportunity to get the record something that ordinarily you can't get into the record, which is that your client has never been arrested for DUI before. So that's an important thing to bring out.

Also bring out that the officer's never met your client before. They don't know if he's athletic or she's athletic. Some people are more athletic than others and there's no baseline. I've gone through a number of medical tests in my lifetime. And I remember one time they found a minor tumor in my auditory canal, which kind of explain why I can never do the walk line, the line of the one leg stand exercise properly, I never quite figured it out until they told me that. And when they first did the MRI and they found that, I was kind of outta sorts for a while, oh my God, I have a tumor, I can't believe it. And until I spoke to the doctor and the doctor said, Bobby, nothing to worry about, we don't have a baseline, for all we know, you've had that tumor your entire life. We just found it in a routine test looking for something else. And this is probably nothing. So don't be concerned, but that's really struck me. They had no baseline. They had no idea how I normally looked, how I looked as a kid growing up, whether I had this always there. Well, the same thing applies to your client. The officer has no baseline. They've never seen them before. They've never asked them to walk a line, to stand with one foot in the air for 30 seconds. That's important.

And then of course the next section is, you want me to do what and where? I mean, this is on the side of the road folks. That's not exactly the type of place that you would ask people to do an exercise in. There are all kinds of pebbles. And I know, at least in my state and as is in most states, the roads are graded for drainage. That means they're sloping. The slope is built in, well, you've gotta point that out. And here's another common sense thing that you need to point out to the people that you're trying to convince. Even professionals make errors, even the best of the best screw up. And they screw up all the time, large and small. So I'll take whatever is the most recent example of somebody making an error and say, hey, did you watch the basketball game the other day? Did you see the guy who had the wide open man? But he ended up throwing the ball into the seats and he missed them.

So even people who practice, who are the best of the best, they make errors all the time. And again, it's not so much the answer that the witness, the officer is going to give you. It's the point that you're making to the people you're trying to convince. The first time is often the worst time. Not everybody is coordinated. And of course, having an officer pull you over with their lights and sirens on the side of a roadway is going to cause your individual to be nervous nerves on steadiness. They are something that goes together. And of course there are also these throwaway lines that I use, I'll get at an officer's rule say, well, he didn't follow my instructions, to which I'll retort, yeah, my teenager doesn't follow instructions either. Is he intoxicated? Or I'll say my spouse doesn't listen to me either. Should I cut them off? And of course, invariably, these kind of comments bring a laugh because of course people don't follow instructions, especially these days where we're so involved in so many things and always looking at our phones and our screens, people don't listen. That doesn't mean they're impaired.

So however you do it, make that point. And I'll get the officers often who will say, well field sobriety exercises are a tool I use to dispel my belief that he was impaired. Well, first of all, I have a lot of retorts. Number one, no individual, no citizen has to prove his or her innocence. We are all presumed innocents, and in fact, we are all presumed to be sober, But is it the right tool that they were using? That's something that you want people to remember. I get things times all the time where I'll get an officer who will have an individual say to them, hey, I have a bad back, and I really, you know, I've been had trouble walking and they'll go, well, just do the best you can do. And when not surprisingly, the person doesn't do as well as the officer expected, it leads to their arrest. So the officer was using the wrong tool. So I'll say now, officer, There are a lot of tools out there that somebody can purchase. I mean, most of us probably have in our garage, a whole set of different tools. I mean a bunch of screwdrivers, hammers, things like that. But if I'm trying to knock a nail into a wall, I'm not gonna take out the screwdriver. That's the wrong tool, isn't it? If I'm trying to screw in a nail, I'm not doing so with my hammer. Well, that's the argument that you're making here folks, if they're you using the wrong tool, you can use this as a part of your cross examination, or you can just wait and use it as part of your closing argument. Was the tool that they were using, the sobriety exercises, the wrong tool.

And I'll also tell you folks, again, I'm getting, I've been around a long time and I'm seeing less and less of the old school police officers. Those guys I knew from the eighties who were back administering sobriety exercises, using the wrong sobriety exercises. But occasionally I'll get one of them and I'll say to them, so, hey Joe, you remember that time? You used to throw the coins on the ground to say that, see if per people were impaired or not and they'll go, oh yeah, yeah. I remember doing that, that was pretty funny. Yeah, and I'll go, yeah. And it was later determined that that was totally inaccurate and not a good tool to determine if somebody was impaired and they'll say, yeah, yeah, we don't use it anymore. And I'll say, now officer, how many letters of apology did you send out? And they'll look at me sort of quizzically. And they'll say, letters of apology. What are you talking about? All those people that you arrested based upon an exercise that was later proved to be inaccurate. How many of them did your department apologize for, for improperly arresting and or convicting of DUI? And of course, finally, I'll get them to admit we didn't do that. No, I didn't send any of that.

Well that again has created something that can use that they were wrong using the wrong tool. And of course, that always leads to my follow up question. Now, officer, you can't guarantee to any of us that the tools that you're using today, the walk and turn the one leg stand won't down the road, be determined to be wholly inaccurate. And of course their answer is, I can't say that. And here's another thing folks, and this is really, really important. And people miss this all the time, why is an officer administering sobriety exercises? Because they're determining if they should arrest the individual for DUI, what is their standard, probable cause. But what is a jury standard beyond into the exclusion of every reasonable doubt? Well, point that out. So officer, you were administering these exercises to determine if you had probable cause. And as we all know, probable cause is more likely than not, and once you had Mr. Defendant performed these exercises, you found it was, you had probable cause. Well you later point out to the jury, that probable cause is a whole lot less a standard than they have, which is beyond and to the exclusion of every reasonable doubt. And there is even a chart here, which I have put in my materials, which you should look at, that talks about the standards of proof.

Okay. So let's talk a little bit about field sobriety exercises in a little bit more detail. There's some interesting language in the first manual that was created by Dr. Marcelline Burns. That's that psychologist that we were talking about, in 1983, she put together a manual and the language is really interesting because quite candidly, they were far more truthful back then than they later have become, now, why is that? Well, actually, Dr. Burns didn't write the manuals. She made several suggestions, but she later admitted in several depositions she had to sit for that she didn't write the manuals. They were written by the police. In fact, she even admitted in her depositions that she didn't review their manuals. She wasn't asked to review them or to check for accuracy of them before they were released to other police departments. And so while many of her initial suggestions were contained in those manuals, you shouldn't be surprised to later learn that many of them were removed or changed. Why, well, because smart defense attorneys were and using their own manuals to say, well, wait a second, you were taught to do A, B and C. You did X, Y, and Z. Or you were taught to look for this. And yet when Mr. Defendant had that, you did nothing with it. And by the way, folks, if you don't already have the field sobriety manuals in your library, download it, just do a Google search, you'll be able to find them. They're there, reach out to me. I'll be more than happy to email them to you, but let me tell you they're out there. And they are very interesting. And in that first manual, they had some language that was really quite interesting. And here's one of the parts, and I'm quoting here. Some people have difficulty with balance, even when sober, the test criteria for the walk and turn exercise is not necessarily valid For suspects who are 60 years of age or older or 50 pounds or more overweight.

Now the interesting thing is they subsequently remove some of that language, but that is really, really important. And in fact, the the manual goes on and says persons, and that's how they called it. Persons with injuries to their legs or with inner ear disorders may have difficulty with the exercises. That's important folks. They were taught to look for that. Be sure to question the officer about that, especially if your client is 60 years of age or older, or 50 pounds or more overweight, or they have injuries to their legs or inner ear disorders. And it was very interesting because the manual even said that how important it was that the officer know how to administer the exercise and that they administer it properly in each occasion. And they did this all caps, in bold and they wrote the following and I'm quoting here. It is necessary to emphasize this validation and that's of the sobriety exercises, applies only when the tests are administered in the prescribed standardized manner. The standardized clues are used to assess the suspect's performance. And the standardized criteria are employed to interpret that performance. If any one of the standardized field sobriety test elements are changed, the validity of those exercises, excuse me, is compromised, unquote.

Wow, I mean, just remember last time you received an email in all caps, bold, they were trying to make a point to you, right? Whether it was absurd or not, they were trying to make a point. Well, what was the point that they were trying to make here? If you don't do it right then the validity isn't there. Well, guess what folks learn how they're supposed to do it to do it right, and if they don't do it right, be prepared to jump on the officer, whether it be by a motion to suppress or at a trial to show how they did it wrong. And when they did it wrong, the validity was compromised.

Now the next section I'd like to talk to you about is what I call Miranda and the DUI defendant. And I've submitted a chart in the PowerPoint materials that might help you with this, because this is a thing I find people all the time, just misunderstand, especially clients, but even most lawyers don't understand where your Miranda Rights really apply when it comes to DUI cases. So let's talk about that. You remember law school, you remember take in that criminal procedure class, that's when you were probably first really learned about the Miranda Rights, other than of course watching it on TV. But at least at that point, you, it was explained to you, custodial interrogation Miranda Rights only apply if you're in custody and you're being interrogated. So let's talk about that for a moment. Custodial. Well, is the citizen in custody when he or she is initially stopped? Well, certainly you're not free to leave. You can't go anywhere. I mean, if you tried to drive away from the officer, you'd get pulled over, probably beaten a bit and taken down the jail for fleeing of a police officer.

But surprisingly, the United States Supreme Court many years ago, stated in Berkemer V McCarty, that when an individual is initially stopped, they are not in custody. So you might ask, well, okay, but what if the officer pulls me over with their lights, maybe even the siren, they come up to my window and they say, sir, give me your driver's license, registration and insurance. Aren't I then in custody? And the answer again is no, according to Berkemer, you're not in custody. Even when they take those documents from you, you're still not in custody. You certainly can't go anywhere, but it's still not custodial. How about if the officer then says to you, well, okay, exit the vehicle. Nope, still not in custody, again, that's the case. So let's say the officer pulls you aside. He walks you between the vehicles and he says, okay, I'm now gonna ask you to perform some physical sobriety exercises. Are you in custody then? I mean, it certainly would make sense, but no folks, you're not in custody. Any pre-arrest sobriety exercises are non-custodial no, that's not the Berkemer case.

That however is a Supreme court case, Pennsylvania versus Muniz, Pennsylvania, Muniz, being asked to perform pre-arrest sobriety exercises are not considered custodial. And let's say for instance, they initially put you in handcuffs, put you in the back of a car because the first officer is too lazy to administer the sobriety exercises to you. And he decides to call somebody who might have a little bit more experience to come and do that. Are you in custody then, they have you in handcuffs. They take you out of the car. They then take the handcuffs off, okay. Now perform them. Sorry folks, Pennsylvania versus Muniz. You're still not in custody. Okay, so what if you're now arrested? Well, of course, once you're arrested, you're in custody, but once you are arrested, then you now have to proceed to the interrogation section. 'Cause again, as we learned in law school, custodial interrogation, part one now has finally been met. You've been arrested, but now two, you have to go to interrogation. So if you are then asked to identify yourself, oh, what's your name? Is that interrogation? No, Pennsylvania versus Muniz. You're not being interrogated. What if they ask you certain questions, pre-arrest mind you, about where you are coming from or where you may have been drinking or whether you've been drinking? Well, not only do you have the custody issue it at hand, but you also have that it is not considered interrogation. And it go, that goes back to the Berkemer V McCarty case. And how about if you're asked to perform field sobriety exercises again no, that's not interrogation because they're only asking you to perform some exercises. And what if they are asked some questions pre-arrest concerning the field sobriety exercises, again no, that's Muniz. How about if they ask you to submit to a breath test or a blood test or a urine test? Well, again, no, that's not interrogation. Well, how out post arrest? They now want to ask you some questions about whether you've been drinking or where you were well, yes, finally. That's where Miranda rights come into play. So you see that for most parts, Miranda rights do not apply.

Now let's touch briefly on breath tests. Again, this is a subject that is far too broad for me to address at this point. And that will probably be the subject of a further lecture, but remember the difference between accuracy and precision and think of it like a bullseye. Okay, in fact, I've used bullseyes before, I've gone to Google, printed out a big bullseye and I'll be prepared to show the jury the difference. Well, you might think, well Bobby, what's the difference and why does it matter? Well, when we have somebody submit to a test, whether it be a breath test or a blood test, we are more concerned with accuracy. We want that test result to truly reflect how much alcohol they had in their system at the time they were operating their motor vehicle. But just because a machine might say, well, this is our test result. And it's very close in time, excuse me, close to each other. That it must be accurate isn't correct. If I shoot an arrow at a target or I shoot a gun at a target and I continually miss far to the left, but I keep hitting in the same spot to the left. Well, I'm precise because I keep hitting the same spot, but I'm not accurate because I'm not hitting the middle where I'm supposed to be hitting. That's a big difference in that you need to post out, point out to your jury. Or if you're making an argument to the judge, that there is a difference between precision and accuracy, breath tests must be both accurate and precise. They must have the ability to hit the target value coupled with the ability to do it consistently.

Now you might think, well, they have a breath test operator. They know what they're doing. No, they don't. Most prosecutors, witnesses, at least for breath testing aren't experts in anything. They don't understand anything. I mean, they were given a course, usually a 28 hour course and basically said, here you go. You're now allowed to administer breath tests, but they don't have any background in science. They don't have a medical degree. A science degree, never took scientific courses in college, engineering degrees, computer science, computer training. They have none of that. And what I like to do is I always request from a central database that we have in Florida, which is the Florida depart of law enforcement, a copy of an officer's global and alcohol training records, 'cause that will tell me their educational background and any training they've received. And quickly, this will be pointed out to your fact finder, your jury or your judge that this person and, all they took was a brief course. And that doesn't mean that they really know anything about what to do, they just push a few buttons.

So let's talk about the machine briefly. Breath test machines cost roughly $6,000 each, that's right, $6,000 and you can own a breath test machine, compare that with the gas chromatography, which is used to test blood, that costs half a mill million give or take. So you see how much more, a more precise machine costs to first purchase. And I'm not even talking about the cost of maintaining it. In Florida, we use an Intoxilizer 8,000. That doesn't mean that there have been 7,999 prior versions of this machine. Nope, it replaced a 5,000. So make sure you point out, well there haven't been all these different numbers. Number of machines, the numbering system is arbitrary. And in fact, while Florida uses them, in Tennessee and some provinces in Canada, they rejected the 8,000 Intoxilizer said, they're just not accurate enough, we won't use them. You can't use them here. It's interesting in Florida, we still use the 8,000, but for at least five years, they've been a more streamlined machine, an 9,000 that has been produced by the manufacturer. But Florida doesn't use the 9,000. They're still using the 8,000. You might say, Bobby, why would they use the new machine, well it's pretty simple. They're too cheap to pay to replace it. And one of the things that I've done over the years is I've obtained warranty from the manufacturer. In the case of the Intoxilizer, it's a one year limited warranty and the machine is not warranted for fitness or specific use. Wow. Think about that and think about how could use that in both your cross examination and your closing. Think about how important it is for you to find out how old is the machine that your police department is using.

And what is the history of the machine? I'm gonna very briefly end this presentation with a quick story. Many years ago, there was a national case about some airline pilots who attempted to get on a flight. I believe it was, well let me not even say, I'm not sure the airline, but they started to get ready to take off a flight from Miami International Airport. And they had been drinking the night before. And when they were coning through the entryway, one of the people there smelt some alcohol from them and said, wait, this is a little strange. We need to check this further. And so they basically stopped them on the plane, pulled them off the plane, administered some sobriety exercises and then gave them a breath test. And they registered just above the legal limit of a 0.08. And they prosecuted him for DUI. And I was initially contacted by one of the pilots. He ended up not hiring me because he felt I was too expensive, which probably wasn't the best move because he hired a cheaper lawyer who didn't do any of the things I'm talking about today.

And I thought it was very interesting 'cause after the trial started, I was asked to present on Nancy Grace's show. And I remember her saying one of the first questions. Well, but they have a breath test result. That's accurate, that tells me that they were impaired. And I'll say, Nancy, do you know anything about the history of at machine both generally and specific. She goes, no, I don't know much about them. I just know that's what they use. And I go, well, aside from the general assumptions that it's based upon, that may be incorrect. Did you know that this particular machine that they used to test the pilot's breath was 15 years old and she said, wow, I didn't know it was that old. I said, do you have any scientific devices in your use? Whether it be a computer, a laptop, a cell phone that is 15 years old? And she said, well of course not. In fact it would be fair for me to say that the technology would've been antiquated by the time it would be used 15 years later, if you still had one of those devices. And she said, yeah, probably. And you make a good point. And then I said to her, Nancy, did you understand, do you know that the machine that they used to test these pilots breath had been condemned by the Miami Dade Police Department. And I stopped her in her tracks. Like she was stunned and she said condemned. And I said, that's layer language, Nancy. I have the form and I pulled out the form for my briefcase. It says condemned. They used that terminology, not me. They condemned this machine. They condemned it five years ago. And guess what? This is what they used to test their breath. How accurate do you think their test results were? Of course I made my point. Did the lawyers for the pilots make that point? No, because they didn't do their homework and they should have.

Ladies and gentlemen, again, I want to thank you for your time for listening to me today. My information is a part of materials and certainly is part of the PowerPoint presentation. But if you have any questions again, my name is Robert Bobby Reiff is REIFF as in French fry, I can be reached. My office number is 305 854 5511. Or perhaps the best way to get me is just, you can find my email address at my website, which is easy enough to find, it is DUIlawoffice.com, DUIlawoffice.com. Thank you for being here today. And for listening to this presentation, I hope you learned a few things. Take care.

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