Van Riper | Nies Attorneys                         561-962-3130
Palm Beach DUI Defense
   
                        

DUI Defenses

Dedicated to our clients' needs...

Van Riper Nies Attorneys fight for their clients' legal and Constitutional rights.

Our  attorneys, Christian Van Riper and Tim Nies are experienced trial attorneys. Christian is a former Prosecutor for the State of Florida, where he prosecuted and tried many Driving Under the Influence (DUI) cases. From his years as a state attorney, Christian has a unique insight into how prosecutors evaluate DUI cases. Our attorney, Tim Nies,  is a U.S. Army Veteran, having served with the 75th Ranger Regiment, and a former insurance defense trial attorney where he litigated complex injury cases.

Below you will find a brief overview of the defenses we pursue in defending DUI charges against our clients:

Intoxication is not enough. The State of Florida must prove that you were driving the automobile. This may not be easy for the State to prove if you were not witnessed driving when law enforcement arrived. If there are no eye-witnesses to testify that you were the driver of the car, it will be very hard for the State to prove the DUI case.  

Challenging or disputing Probable Cause
for the initial traffic stop and arrest: By way of a motion to suppress, evidence will be suppressed (excluded from trial) if the police officer did not have probable cause for the traffic stop and arrest. Probable cause is the standard by which a law enforcement officer has the authority to make an arrest, conduct a search or obtain a warrant for an arrest. 

Failing to give Miranda warning
: Incriminating evidence (statements) may be suppressed if warnings were not given to you at the appropriate time. Miranda warning is a warning that a law enforcement officer must give to defendants (suspects) in police custody before they are questioned to inform they of their rights under the U.S. Constitution.

Challenging or Disputing Implied Consent Warnings
: If the arresting police officer did not advise you of the consequences or penalties of refusing to take a breathalyzer or other chemical test, or gave it incorrectly, this may influence the admissibility of the test results at trial, as well as the driver’s license suspension imposed by Florida’s DMSMV. 

Challenging or Disputing “Under the Influence”:
 The police officer's observations and opinions as to intoxication can be questioned at trial.  The situation under which the roadside sobriety tests were administered or what the law enforcement officer considers to show impairment will be examined and questioned at trial. Further, witnesses may testify at trial that you appeared to be sober and not impaired. 

Challenging the BAC (Blood-Alcohol Concentration):
There are many potential problems with breathalyzer testing. The breathalyzer test measures the amount of alcohol in a small sample of air exhaled by the driver. The problem is that this is an indirect method and subject to inconsistency and variability. The temperature, the chemical makeup of the driver’s breath or physical activity are a couple of the factors that lead to inconsistent, and therefore, questionable results. Further, breathalyzer test results may also be disputed on the basis of the training, skill and experience of the operator of the breathalyzer and the quality of the particular breathalyzer equipment.  

Testing During the Absorptive Phase
:  Test results may be inaccurate and unreliable if the breathalyzer, or other testing, is done while you are in the absorptive phase, meaning while your body is still absorbing alcohol. It takes about ½ - 3 hours for complete absorption of alcohol (depending on the food in your stomach). During the absorptive phase, the distribution of alcohol throughout the body is not the same. Uniformity of distribution (equilibrium), occurs just as absorption completes.

Relation Back Theory/ Retrograde Extrapolation
: This refers to the issue the Blood Alcohol Concentration being related back in time from when the breathalyzer test is administered to the time of operating the car. Such extrapolating, or guessing, backward is indeed a problem because the prosecution’s expert is merely guessing using average alcohol absorption and elimination rates.

Mouth Alcohol
:  This refers to the fact that other factors may create an erroneous blood alcohol concentration reading. For example, belching , vomiting or using mouthwash prior to the administration of the test.

Regulation of blood-alcohol testing
. The prosecution must prove that the breathalyzer or other testing such as blood was calibrated and maintained correctly pursuant to Florida requirements.  

Our attorneys will proactively and tenaciously defend you in court. That is our job. That is why our clients hire us.  We simply do not plead guilty for you to obtain a quick fee – we work hard for your freedom and are ready and willing to take your case to a jury.


For a free consultation and for more information about our DUI Defense practice, please call 561-962-3130, complete the form below or email us at christian@vanriperandnies.com.

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 DUI (Driving Under the Influence of Alcoholic Beverages, Chemical Substances or Controlled Substances). s. 316.193, F.S.

Under Florida law, DUI is one offense, proved by impairment of normal faculties or unlawful blood alcohol or breath alcohol level of .08 or above. The penalties upon conviction are the same, regardless of the manner in which the offense is proven.

Fine Schedule s. 316.193(2)(a)-(b), F.S.

  • First Conviction: Not less than $500, or more than $1,000. With Blood/Breath Alcohol Level (BAL) of .15 or higher or minor in the vehicle: Not less than $1,000, or more than $2,000.
  • Second Conviction: Not less than $1,000, or more than $2,000. With BAL of .15 or higher or minor in the vehicle: Not less than $2,000, or more than $4,000.
  • Third Conviction More than 10 years from second: Not less than $2,000, or more than $5,000. With BAL of .15 or higher or minor in the vehicle: Not less than $4,000.
  • Fourth or Subsequent Conviction: Not less than $2,000.

Community Service - s. 316.193 (6)(a), F.S.

First Conviction: Mandatory 50 hours of community service or additional fine of $10 for each hour of community service required.

Probation - s. 316.193 (5)(6), F.S.

First conviction, total period of probation and incarceration may not exceed 1 year.

Imprisonment- s. 316.193 (2)(a) 2, 4(b), (6)(j), F.S.

At court's discretion, sentencing terms may be served in a residential alcoholism or drug abuse treatment program, credited toward term of imprisonment.

  • First Conviction: Not more than 6 months. With BAL of .15 or higher or minor in the vehicle: Not more than 9 months.
  • Second Conviction: Not more than 9 months. With BAL of .15 or higher or minor in the vehicle: Not more than 12 months. If second conviction within 5 years, mandatory imprisonment of at least 10 days. At least 48 hours of confinement must be consecutive.
  • Third Conviction: If third conviction within 10 years, mandatory imprisonment of at least 30 days. At least 48 hours of confinement must be consecutive. If third conviction more than 10 years, imprisonment for not more than 12 months.
  • Fourth or Subsequent Conviction: Not more than 5 years or as provided in s.775.084, Florida Statutes, as habitual/violent offender.

Impoundment of Immobilization of Vehicle - s. 316.193 (6), F.S.

Unless the family of the defendant has no other transportation: First conviction = 10 days; second conviction within 5 years = 30 days; third conviction within 10 years = 90 days. Impoundment or immobilization must not occur concurrently with incarceration. The court may dismiss the order of impoundment of any vehicles that are owned by the defendant if they are operated solely by the employees of the defendant or any business owned by the defendant.

Conditions for Release of Persons Arrested for DUI-s. 316.193 (9), F.S.

  • The person is no longer under the influence and;
  • The person's normal faculties are no longer impaired
  • The person's blood/breath alcohol level is lower than 0.05; or
  • Eight hours have elapsed from the time the person was arrested.

DUI Misdemeanor Conviction: (Accident Involving Property Damage or Personal Injury)-s. 316.193 (3), F.S.

Any person who causes property damage or personal injury to another while driving under the influence is guilty of a First Degree Misdemeanor (not more than $1,000 fine or 1-year imprisonment).

DUI Felony Conviction: (Repeat Offenders or Accidents Involving Serious Bodily Injury)-s. 316.193 (2),(3) F.S.

  • Any person convicted of a third DUI within 10 years or a fourth or subsequent DUI commits a Third Degree Felony (not more than $5,000 fine and/or 5 years imprisonment).
  • Any person who causes serious bodily injury while driving under the influence is guilty of a Third Degree Felony (not more than $5,000 fine and/or 5 years imprisonment) or if habitual/violent felony offender as provided in s. 775.084, F.S.

Manslaughter and Vehicular Homicide-s. 316.193 (3), F.S.

  • DUI/Manslaughter: Second Degree Felony (not more than $10,000 fine and/or 15 years imprisonment).
  • DUI Manslaughter/Leaving the Scene: A driver convicted of DUI Manslaughter who knew/should have known accident occurred; and failed to give information or render aid is guilty of a First Degree Felony (not more than $10,000 fine and/or 30 years imprisonment).
  • Vehicular Homicide: Second Degree Felony (not more than $10,000 fine and/or 15 years imprisonment).
  • Vehicular Homicide/Leaving the Scene: A driver convicted of vehicular homicide who left the scene of an accident is guilty of a First Degree Felony (nor more than $10,000 fine and/or 30 years imprisonment).

Driver License Revocation Periods for DUI-s. 322.271, F.S. and s. 322.28,F.S.

A. First Conviction: Minimum 180 days revocation, maximum 1 year.

B. Second Conviction Within 5 Years: Minimum 5 years revocation. May be eligible for hardship reinstatement after 1 year. Other 2nd offenders same as "A" above.

C. Third Conviction Within 10 Years of the second conviction: minimum 10 years revocation. May be eligable for a hardship reinstatement after two years.

D. Fourth Conviction, Regardless of When Prior Convictions Occurred) and Murder with Motor Vehicle: Mandatory permanent revocation. No hardship reinstatement.

E. DUI Manslaughter: Mandatory permanent revocation. If no prior DUI related convictions, may be eligible for hardship reinstatement after 5 years.

F. Manslaughter, DUI Serious Bodily Injury, or Vehicular Homicide Convictions: Minimum 3-year revocation. DUI Serious Bodily Injury having prior DUI conviction is same as "B-D" above.

 

Commercial Motor Vehicles (CMV) - Alcohol-Related Convictions/Disqualifications-s. 322.61, F.S.

  • Persons convicted of driving a commercial motor vehicle with a blood alcohol level of .04 or above: driving a motor vehicle while he or she is under the influence of alcohol or a controlled substance or refusing to submit to a test to determine the alcohol concentration while driving a commercial motor vehicle, driving a commercial motor vehicle while under the influence of alcohol or controlled substance, or driving a commercial motor vehicle while in possession of a controlled substance shall be disqualified from operating a commercial motor vehicle for a period of 1 year. This is in addition to any provisions of s. 316.193 for DUI convictions.
  • Second or subsequent conviction of any of the above offenses arising out of separate incidents will result in a permanent disqualification from operating a commercial motor vehicle.

There are no provisions for persons disqualified from operating a commercial motor vehicle to obtain a hardship (business or employment) license to operate a commercial motor vehicle.  Maritime injury attorneys - Port St. Lucie, FL. Defenses to a DWI. Driving under the influence of drugs lawyers.  Florida DUI lawyers.  

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