By law, an individual is not required to answer any questions that could incriminate them. An individual is allowed to ask to speak with an attorney before answering any questions. If you do state that you have been drinking, you are putting yourself in a dangerous position.

The following list, from most likely sign to least likely sign, is the possible signs of a drunken driver. This list was developed by the National Highway Traffic Administration)

• Negotiating a wide turn
• Straddling along the central marker between the lanes
• Appearing to be Drunk
• Near misses or hitting either another vehicle or an object
• Weaving between lanes
• Driving off of designated highway
• Swerving within the lane lines
• Speeding over 10 mph above the designated speed limit
• Questionable stops in traffic lanes
• Tailgating
• Drifting
• Driving over center marker between lanes
• Excessive braking
• Driving against traffic
• Questionable signaling
• Delayed reaction to traffic signals
• Inappropriate stopping or slowing
• Illegal or unwarranted turns
• Accelerating or slowing down quickly
• Driving without headlights on

It should be that excessive speeding is not a major symptom. Speeding requires quick reflexes and strong judgment, traits that are usually typical of a sober individual.

Police officers are trained to looks for specific signs:

• A flushed, or red, face
• Red, watery, glassy and/or bloodshot eyes
• Alcohol breath
• Incoherent or slurred speech
• Struggling to retrieve their license from a wallet
• Inability to comprehend the officer's questions
• Difficulty when exiting the vehicle
• Unable to stay balanced while standing
• Using the vehicle for stand support
• Aggressive or other inappropriate attitude
• Soiled, rumpled, disorderly clothing
• Inability to keep balance while walking
• No knowledge of time or current location
• Inability to comprehend and/or follow directions

There is no right to an attorney until the individual is given the opportunity to take a breath blood test, or refusal of taking a chemical test.

The police officer has several test options available. The most common are:

• Finger-to-nose
• Horizontal gaze nystagmus (HGN)
• Heel-to-toe walk
• Reciting of the alphabet
• Hand pat
• Fingers-to-thumb
• One-leg-stand
• Modified position of attention (the Rhomberg test)

The officer has most likely already made his judgment and decision of arrest before requesting a field sobriety test. When the suspect fails it is only validation for the officer and serves as additional evidence. Unlike the chemical tests, refusing to take a FST should not have any legal penalties. Politely declining the FST could be a valid option for the suspect to take.

Studies funded by the National Highway Traffic Safety Administration have concluded that only three of these test are reliable in determining if a driver is intoxicated: Heel-to-toe, one-leg-stand, and the horizontal gaze nystagmus test. These three tests use numerical scores which are specific to the suspect’s actions. The study also concluded that the other FSTs are unreliable and should be discouraged from being used.

This test is called the horizontal gaze nystagmus (HGN) test. Nystagmus is the medical term that describes a particular eye oscillation. The steadiness of the eyes while following the pen and the degree at which the eyes begin to move erratically indicate the level of alcohol in the blood of the suspect. The police officer attempts to determine if the angle of the eyes are less than 45 degrees. An angle of less than 45 generally indicates a blood-alcohol level of .05% or greater.

The horizontal gaze nystagmus test is still fairly new and has not been accepted for use in many states. Many medical professionals don not consider this test to be credible. It is also possible that some police officers performing this test are not qualified to administer the test. The untrained officer may not be able to negotiate the proper angle and hence misjudge nystagmus.

There are several penalties when an individual refuses to take one of the chemical tests:

• The suspect will receive a 1-year suspension of their license instead of the 4-month suspension. If it was the second offense within the last ten years, the license suspension will be 2-years. A work-restriction license option is available for those found guilty of driving under the influence, but that option will not be available if there was a refusal to take a chemical test.
• There is a mandatory jail sentence if the chemical test refusal was written in the complaint against the individual.
• The court and jury may see a refusal of a chemical test as a consciousness of guilt. Your defense could try other possibilities, such as a fear of needles or inability to register on the breathalyzer.

You can refuse to take the chemical test, but you must be aware of the heightened penalties you may receive for doing so.

Your case cannot be dismissed for this reason. While police officers are required to advise you of the 5th Amendment, it does not have to take place until after an arrest have taken place. This obligation is sometimes overlooked by the arresting officer.

Similar situations occur when the suspect is not informed of their rights with chemical testing. There is an implied consent law in Florida which deals with a suspect's legal requirement to consent to a chemical test and penalties if the suspect refuses. This is regulation the suspect must be aware of as it can affect the length of suspension of their driver’s license.

The charges involved in drunken driving are a complex subject and can be difficult to follow. The penalties are becoming gradually more severe and dealing with a case includes a range of administrative license, sentencing, evidentiary, constitutional, and procedural affairs.

A general attorney will have little to offer or possibly even hurt your case because they are generally unqualified or inexperienced for such a particular field. Comparing a general attorney to a DUI defense attorney is much like comparing a family practitioner to a brain surgeon. A qualified DUI lawyer can do several things to help improve your situation. A DUI attorney knows many of the particulars involved and can request measurements and maintenance records of the breath machine and have blood samples reanalyzed. They can also challenge evidence, look for possible flaws in the case, negotiate reduced penalties and sentences, contest the administrative license suspension, or obtain expert witnesses for the case. An experienced DUI attorney can be very beneficial to you with your case.

There are many different factors involved in each individual case. A definitive answer to this question is not simple. While the particulars of cases and penalties differ from court to court, a first offense will include these penalties:

• A fine of approximately $1,700
• 3, 6, or 9 months of enrollment and attendance in a DUI class
• Probation up to three years
• 90 day license restriction (Note: this is in addition to the DMV suspension you may receive)
• A jail sentence of 4 days to 6 months.

Second and subsequent offenses will trigger longer jail terms and longer license suspensions or revocations. Additional penalties include community service, AA meetings, and ignition interlock devices.

In the state of Florida, it is against the law to have a BAC over the .08% limit while driving, not at the time the chemical test is given. Studies have shown that it can take the human body anywhere between 30 minutes and 3 hours for the alcohol to be absorbed. It is conceivable that an individual's BAC could rise after he was stopped and arrested.

The time elapsed between when the suspect is arrested and when the chemical test is administered is approximately an hour. The test could show a level of .10% but because the alcohol was being absorbed, it could have been .07% while the suspect was driving. The suspects' true BAC while driving was within the legal limits even though the test results showed an illegal level.

The term "mouth alcohol" refers to the presence alcohol in the mouth. A breath test result will show higher than normal results if the suspect has mouth alcohol. The breathalyzer uses a complex formula that takes the amount of alcohol and multiplies it by 2100 to get its results. The machine assumes the breath starts from the lungs. Factors such as these can create discrepancies is test results.

There are other potential reasons for having mouth alcohol:

• Breath fresheners do have trace amounts of alcohol. Products such as Listerine and Binaca contain small levels of alcohol and can certainly affect breath test results. Cough medicines such as NyQuil also contain alcohol and can affect test results the same way.
• Bodily functions such as hiccups, burps, or even vomit can also affect the test results. Actions such as these bring the vapors of alcohol from the stomach back up to the mouth.
• A hiatal hernia can also cause elevated test results.
• Dental caps and bridges can capture alcohol in a crevice and be blown out by a breath.
• If the suspect has a chronic reflux condition, alcohol can travel up from gastric distress.

Each case has its own intricacies and have their own unique variables, thus the defenses are nearly unlimited. It is feasible to categorize some of the defenses into specific areas:

• Probable cause: The officer needs a valid reason to stop, detain, or arrest a suspect. Sobriety checkpoints do cause several complicated issues with probable cause.
• The Miranda Warning: If the Miranda Warning was not given at the proper time, any incriminating statements made by the individual can be denied.
• Chemical tests taken during the absorptive phase: The notion of drinking one for the road can create inaccurate results with the breath tests. It takes the body anywhere from 30 minutes to 3 hours to fully absorb alcohol into the system. Any chemical testing done during this time may not be accurate. Food in the stomach can elongate the absorptive phase.
• Driving While Intoxicated: This charge is often not satisfactory in DUI cases and can be difficult to prove. For example, if there was an accident where there were no witnesses present, the prosecution cannot prove the suspect was the driver.
• Under the influence: many of the FST results can be questioned since the ultimate decision is left to the officer. What the officer observes and what he defines as failing can create a bias. Should there be any witnesses present, they can testify that the individual did not appear to be intoxicated.
• Regulation of chemical testing: The burden is on the prosecution to prove that all instruments used for chemical testing have met all state requirements. This includes maintenance and calibration.
• Retrograde extrapolation (Refer to question #17): This term refers to the time requirement between the arrest and when the chemical test is administered. The BAC is refers to when the time the test was taken, not when the suspect was driving. Many physiological issues can occur.
• License suspension hearings: there are a number of issues that can be brought up during the administrative hearing with the DMV.
• Implied consent warnings: In California, along with several other states, the conditions under which the chemical test was given could affect its authenticity. Situations such as this can occur if the officer fails to inform the individual of the possible penalties for refusing a chemical test, or if the Miranda warning was given improperly. this situation can also affect the administrative hearing with the DMV)
• Blood-alcohol concentration: There are a number of issues brought up with the chemical test. Most breathalyzers used by police agencies will record chemical compounds, other than alcohol, that can be found in human body that can register as alcohol. There can be inaccurate results due to radio frequency interference as well. All breathalyzers use an assumption that there is a 2100:1 ratio when converting alcohol found in the breath compared to that found in the blood. This ratio is a generalization and in reality differs between individuals. These potential defects, along with several others, can be questioned when the defense is cross-examining expert witnesses. The defense can also hire their own expert witnesses to contest these issues as well.