DUI Enforcement officers and other law enforcement will swarm St. Pete Pride as over 200,000 will gather June 22, 2019 to support and celebrate Florida’s LGBTQ community at the St. Pete Pride Parade. The parade and street festival will take place this Saturday in the Grand Central District of St. Pete from 2pm to 11pm. Plan ahead. Do not drink and drive. Do not become another statistic. If you do get arrested Call Casey 813-222-2220
The parade will run on Central Ave between 22nd St and 32nd St. Traffic will start picking up around 2pm on Saturday when drivers head to the parade. DUIs will be highest from 9pm to midnight as the parade, concert and fireworks wrap up.
The US Supreme Court gave the OK to punish DUI defendants for breath test refusal. This allows Florida to give harsher penalties to defendants for their breath test refusals, even with no search warrant. The Court ruled DUI arrests Breath Tests are likely to happen. So, Breath Tests do NOT need a warrant.
Three Reasons Court Used to Justify Punishment of a DUI Refusal
Here is why the search-incident-to-arrest doctrine applies to breath and blood tests incident to such arrests.
“First, the physical intrusion is almost negligible. Breath tests “do not require piercing the skin” and entail “a minimum of inconvenience.””
“Second, breath tests are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath.”
“Finally, participation in a breath test is not an experience that is likely to cause any great enhancement in the embarrassment that is inherent in any arrest.”
The case is Birchfield V. North Dakota No. 14–1468. ( June 23, 2016). This was a combining of three cases: Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi.
History of Breath Testing
As far back as, 1905 the LA Times covered a felony manslaughter trial of B. Hook. Hook had been drinking whiskey with his friends and struck and killed a pedestrian. There was no reliable way to prove a driver’s drunkenness. Most roadside tests are subjective. The National Safety Council started a campaign in 1936.
If you drink, don’t drive.”
So after prohibition, police used the new Widmark Formula to determine blood alcohol concentration (BAC). The equation was innovative. The method used was difficult, messy and had unreliable results.
Widmark Formula
Later, in 1936, biochemist and toxicologist Harger patented the “Drunkometer.” The driver would blow into a small balloon. The officer would put the captured air into the Drunkometer. Alcohol produced a color change. The officer could measure and calculate the BAC. The results were reliable and accepted by the courts. Then Borkenstein patented the smaller and easier “Breathalyzer” in 1954.
Over time, improved Breath Test machines continue to improve. Today, devices detect alcohol more quickly and accurately than before. Some use infrared technology rather than a chemical reaction. The National Highway Traffic Safety Administration approves all breath testing machines used in courts. Federal Standards require the devices be accurate and reproducible at a variety of BAC levels.
20 Percent of Drivers Refuse a Breath Test
On average, over one-fifth of all drivers asked to submit to BAC testing in 2011 refused to do so. Source: NHTSA, E. Namuswe, H. Coleman, & A. Berning, Breath Test Refusal Rates in the United States— 2011 Update 1 (No. 811881, Mar. 2014).
To combat the problem of test refusal, some States have begun to enact laws making it a crime to refuse to undergo testing. The Federal Government also encourages this approach as a means for overcoming the incentive that drunk drivers have to refuse a test. It is a crime under state law to refuse to submit to a legally required BAC test.
Punishment for Refusing Breath Test
The officers asked Bernard to take a breath test. He refused. The officers told Bernard he had to comply. After he refused, prosecutors charged him with test refusal in the first degree because he had four prior impaired-driving convictions. The state prosecuted Birchfield for refusing a warrant-less blood draw. Bernard and Birchfield each refused to undergo a test. Each was convicted of a crime for his refusal. But Bernard refused a Breath Test and Birchfield refused a blood test. Beylund agreed to a blood test after police told him that the law requires it.
Success for all three depends on the idea that the law does not make someone submit to testing without a warrant. If warrant-less searches agree with the Fourth Amendment, then States may make laws demanding someone to submit to these tests.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” – Amendment IV
Search Incident to Arrest
In the three cases, the officers arrested the drivers for drunk driving. Next, they searched the drivers. Then the officers told the drivers the law required the search. The Court reflected on using the search-incident-to-arrest with breath and blood tests.
First, breath tests “do not require piercing the skin” and entail “a minimum of inconvenience.”
Second, breath tests are only reveal one bit of information, the amount of alcohol in the subject’s breath.
Finally, taking a breath test does not increase embarrassment of the arrest.
If every arrest required a search warrant, search warrants would inundate the courts.
Fourth Amendment Permits Warrant-less Breath Tests Incident to Arrests for DUI
Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrant-less breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great.” – Birchfield v. North Dakota, 136 S. Ct. 2160 – Supreme Court 2016
The Court decided breath tests do not need warrants during DUI arrests. The Court also decided that this does not apply to blood tests.
The Court decided breath tests do not need warrants during DUI arrests. The Court also decided that this does not apply to blood tests. First,the state did not prosecute Beylund for refusing a test. The state needs to re-evaluate that case. Second, Birchfield was threatened with an unlawful search and that the judgment affirming his conviction must be reversed. Finally, since the state prosecuted Bernard for refusing a warrant-less breath test. That test did not conflict with Fourth Amendment, Bernard had no right to refuse it.
What are the effects of THC on the brain of a driver?
DUI and cannabis information needs to be shared. For both DUI attorneys and medical experts in the courts, this is a concept known as THC Kinetics and involves the concept of Hysteresis. Recently I attended a seminar that covered key issues, Questions and Answers on Drug DUI with Dr. Stefan Rose of University Medical & Forensic Consultants, Inc. We learned that during the time of smoking marijuana and during the intoxication period (if one occurs) the blood and brain THC concentrations are in disequilibrium with each other. Another term for disequilibrium is “counterclockwise hysteresis”. When the THC blood levels are high the intoxication is low. When the THC blood levels are low, the intoxication (if present) is high, but only for a short time (minutes to an hour or so). Therefore it is IMPOSSIBLE to predict any pharmacologic effect at any point in time based on a blood THC test result. Nevertheless, there are harsh sanctions / penalties for refusing to take a test, when asked.
What is the scientific basis for urine testing and prediction of impairment by a driver?
NHTSA addresses Urine THC Kinetics in Drugs and Human Performance Study. With respect to Interpretation of Urine Test Results: Detection of total THC metabolites in urine, primarily THC-COOH-glucuronide, only indicates prior THC exposure. Detection time is well past the window of intoxication and impairment.
What do controlled clinical studies tell us about DUI and drug impacts on THC Cannabis impairment?
Published excretion data from controlled clinical studies may provide a reference for evaluating urine cannabinoid concentrations; however, these data are generally reflective of occasional marijuana use rather than heavy, chronic marijuana exposure. It can take as long as 4 hours for THC-COOH to appear in the urine at concentrations sufficient to trigger an immunoassay (at 50ng/mL) following smoking. Positive test results generally indicate use within 1-3 days; however, the detection window could be significantly longer following heavy, chronic, use. Following single doses of Marinol®, low levels of dronabinol (same as THC) metabolites are present for more than 5 weeks in urine. Low concentrations of THC have also been measured in over-the-counter hemp oil products – consumption of these products may produce positive urine cannabinoid test results.
What do we know about drug driving and THC Kinetics?
1. When smoking marijuana, THC is rapidly absorbed into the bloodstream from the alveoli in the lungs
2. The peak blood THC concentration occurs within minutes near or after the end of smoking
3. The THC goes through the blood to the organs and tissues of the body
4. As the blood THC concentration is falling the brain THC concentration is rising (hysteresis) therefore NO correlation of blood THC concentration to intoxication exists
5. The blood flow–peak determines the time to reach maximum THC concentrations in the various organs and tissues. The organs with the most blood flow have THC concentration the quickest
6. The organs with the highest blood flow are the brain, liver, kidneys and lungs
7. Skeletal muscle has low blood flow and fat tissue has very low blood flow
8. Fat accumulates THC slowly, and releases THC back into the bloodstream for days, weeks and months after the last dose of THC
9. Chronic marijuana users may have measurable residual THC levels in the blood for days and weeks after the last dose
10. A single blood THC result cannot determine when a person smoked marijuana or how much marijuana a person smoked!
11. A single blood THC result by itself cannot determine a person’s impairment from THC. Clinical correlation is necessary!
Can a THC Result Can ever Predict Impairment?
1. THC Blood : Serum ratio not known (if sample is serum)
2. THC Kinetic curve unknown (THC at driving not known)
3. THC Hysteresis effect not known
4. Residual THC in blood not known
5. THC drug-dose response not known
6. THCt olerance not known
7. CBD content and effect not known
8. Neurologic exam for THC effect not performed
9. Even NHTSA says it cannot be done!
How can a lawyer and an expert Challenge Blood Drug Results?
1. Challenge the chemical analysis for quantitative and qualitative accuracy. The quantitative value ALWAYS has error and uncertainty associated with it. Challenge the quantitative value through the ISO 17025 standard. Inspect ALL documents from the Laboratory Litigation Package and look for qualitative errors. A successful challenge to a driver’s license suspension can avoid a suspension.
2. Challenge the idea that a single blood drug test predicts blood drug concentration at the time of stop or crash. Blood drug concentrations are a moving target, and constantly changing. Therefore blood drug concentrations at the time of a stop or crash are unpredictable with a single blood drug test result. In fact, the only way to know the blood drug concentration is to have a blood sample taken at the time of the stop or crash
3. A blood drug concentration can NEVER predict the pharmacologic effect, or impairment on any individual even with known blood drug concentration! Pharmacology studies include populations of people, and those studies do not predict the pharmacologic effect on any individual because of the wide range of response to any drug. Modern medical pharmacology holds that doctrine to be true and cannot be changed for the sake of litigation. Counter-clockwise hysteresis of THC makes the prediction of impairment from a blood THC result IMPOSSIBLE.
What are important cross examination questions to ask in Drug DUI cases?
1. What type sample was analyzed? Whole blood, serum, plasma?
2. If serum/plasma, what was the whole blood: serum THC ratio?
3. What sample type are you referring to regarding any study of pharmaco-kinetics/pharmaco-dynamics?
4. Have you made the necessary correction in your calculations if the sample type is different?
5. How do you know what the defendant blood: serum THC ratio was?
6. What is the target organ that THC affects? (BRAIN)
7. What is the BRAIN THC concentration that causes impairment?
8. Was the BRAIN THC concentration measured?
9. A low blood THC concentration can mean a high or low brain concentration, correct?
10. Blood THC concentration does not predict BRAIN THC, does it?
11. How do you know what the defendant’s BRAIN THC concentration was?
12. Even if you knew the BRAIN THC concentration you would not know if that caused impairment, would you?
13. There is no published correlation between blood THC, BRAIN THC and impairment, is there?
Are Portable Alcohol Breath Testing Device Valid On Underage Drivers?
Yes. Under Florida Statute 322.2616, Portable Alcohol Breath Testing Device readings are admissible as evidence in administrative hearings for drivers with DUI Under 21. Seek assistance from Casey Ebsary by calling 813-222-2220.
An administrative driving privilege suspension, separate from criminal proceedings, awaits drivers under 21 with a breath or blood alcohol level of .02 or higher. Refusing a DUI test results in a one-year automatic suspension. For the right attorney, call 813-222-2220 and discuss with someone experienced in hundreds of DUI cases.
With a BAC over a 0.08, many Underage DUI drivers have the same issues as any other person charged with a DUI. Underage DUI drivers with a BAC over 0.08 face similar issues as other DUI offenders. For underage DUI charges in Hillsborough and Pinellas, call 813-222-2220 to potentially get “Charges Dropped … Warrant Canceled” with W.F. “Casey” Ebsary, Jr.
For underage DUI Hillsborough and Underage DUI Pinellas charges, call 813-222-2220, if anyone can get “Charges Dropped … Warrant Canceled” W.F. “Casey” Ebsary, Jr can.
DUI DHSMV Consequence
Consequences With DHSMV Administrative License Suspension
The administrative driving privilege suspension is completely separate from the criminal proceedings and does not reflect as a DUI on the driver’s record. Any driver under 21 years of age who is stopped by law enforcement and has a breath or blood alcohol level of .02 or higher will automatically have their driving privilege suspended for 6 months. If any driver refuses to take a DUI test, their driving privilege is automatically suspended for one year.
An administrative driving privilege suspension, separate from criminal proceedings, awaits drivers under 21 with a breath or blood alcohol level of .02 or higher. Refusing a DUI test results in a one-year automatic suspension. For the right attorney, call 813-222-2220 and discuss with someone experienced in hundreds of DUI cases.
Facing an Underage DUI charge in Florida? With a zero-tolerance policy, consequences extend beyond the courts to the Department of Highway Safety, insurance providers, schools, and employment. The National Highway Traffic Safety Administration reports 21% of male teen drivers in fatal crashes had a BAC above 0.01g/dL. Casey Ebsary, Jr., an experienced DUI attorney, is here to guide you through the complexities.
Under Florida Statute 322.2616, Portable Alcohol Breath Testing Device readings are admissible in administrative hearings for DUIs under 21. Casey Ebsary’s expertise ensures a thorough defense. From administrative consequences to insurance hikes, Casey fights to minimize the impact on your life.
For a defense tailored to your situation, call Casey at 813-222-2220. He answers the phone personally, ready to help you navigate the legal challenges and potentially get charges dropped. Don’t face it alone—let Casey be your advocate.
“The RIGHT Attorney” Call 813-222-2220 and talk to an attorney who has been at court for 100s of DUIs
Auto Insurance Center an industry news website has valuable information. As many as half of auto insurance companies will not offer coverage or will discontinue coverage of a minor with a DUI. A family policy with an underage DUI will likely double or triple the cost. A teen’s own already expensive policy, sometimes $500 monthly will easily increase to $800 monthly. The Zebra an auto insurance comparison/shopping website states that on average a DUI increases insurance rates 50%. The average Florida insurance rates are $1878.19 with no DUI. The average Florida insurance rate with a DUI is $2833.59. The DUI will continue to affect these costs for 5 years.
In short, up to half of insurance companies may discontinue coverage for minors with a DUI, potentially doubling or tripling policy costs. A DUI can increase insurance rates by 50%, affecting costs for five years. To address these issues, call 813-222-2220 for expert legal assistance.
“DUI Dropped” Call an expert attorney at 813-222-2220
DUI Schools Consequence
Consequences With Schools
Many schools have clauses in the Code of Conduct that allow the school to administer disciplinary procedures even when the courts have dropped the case. Hillsborough County Code of Conduct states that a student arrested or charged “may be suspended from extracurricular activities and/or excluded from school.”
University of South Florida Code of Conduct states “referral to the student judicial process” for students who had a Breath Alcohol Level of .02 or higher.
University of Tampa Code of Conduct actually specifies that it does not allow “[p]ossessing, consuming or being under the influence of alcoholic beverages under the legal drinking age” and does not allow “[o]perating a motor vehicle while impaired by alcohol as defined under Federal and Florida law.” Students with DUI charges in Pinellas County and their parents are required to enroll in Pinellas County Schools’ drug/alcohol educational program as well as suspensions.
Eckerd College Code of Conduct also prohibits underage drinking and DUI.
What Happens when a College Student Gets Arrested for DUI? DUI and College Students
Most colleges have an honor code where even though conduct that may have resulted in criminal charges did not occur on campus, the people still can be charged under the student honor code. It’s really important that both parts of the case be addressed.
The honor code usually will not allow an attorney to appear on your behalf therefore, it’s important for an attorney to prepare you for that hearing. The criminal case will proceed notwithstanding whatever happens to you in college.
Many schools impose disciplinary procedures for DUI cases, even if dropped by the courts. Code of Conduct clauses allow for suspensions and exclusions from extracurricular activities. For advice and representation, call 813-222-2220.
Some jobs routinely run Criminal Records Search before hiring. Many jobs require a drivers license including: truck drivers, pizza delivery, flower delivery, Lyft, Uber, newspaper delivery, automotive sales, car rental agents, car washers, cable TV installation & repair, construction, manufacturing, security, utilities and unions jobs including electricians and plumbers. Without a license it may be harder to obtain a new job or to continue at a current job. Also without a license, reliable transportation to and from the job becomes complicated, sometimes nearly impossible.
We knew a young man in Tampa without a license that lived 13.4 mi from his job. Since he had no drivers license, it took him between 1.5 – 2.5 hours on the bus each way. If he had to be at work before 7am or if he had to work after 9pm, he simply had to find another way because the buses were not running.
Many of these DUI issues are addressed in our videos library. Call an expert attorney at 813.222.2220
Florida Statutes Title XXXIV. Alcoholic Beverages and Tobacco § 562.11
(1)(a)1. A person may not sell, give, serve, or permit to be served alcoholic beverages to a person under 21 years of age or permit a person under 21 years of age to consume such beverages on the licensed premises. A person who violates this subparagraph commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. A person who violates this subparagraph a second or subsequent time within 1 year after a prior conviction commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
2. In addition to any other penalty imposed for a violation of subparagraph 1., the court may order the Department of Highway Safety and Motor Vehicles to withhold the issuance of, or suspend or revoke, the driver license or driving privilege, as provided in s. 322.057, of any person who violates subparagraph 1. This subparagraph does not apply to a licensee, as defined in s. 561.01, who violates subparagraph 1. while acting within the scope of his or her license or an employee or agent of a licensee, as defined in s. 561.01, who violates subparagraph 1. while engaged within the scope of his or her employment or agency.
3. A court that withholds the issuance of, or suspends or revokes, the driver license or driving privilege of a person pursuant to subparagraph 2. may direct the Department of Highway Safety and Motor Vehicles to issue the person a license for driving privilege restricted to business purposes only, as defined in s. 322.271, if he or she is otherwise qualified.
(b) A licensee, or his or her or its agents, officers, servants, or employees, may not provide alcoholic beverages to a person younger than 21 years of age who is employed by the licensee except as authorized pursuant to s. 562.111 or s. 562.13, and may not permit a person younger than 21 years of age who is employed by the licensee to consume alcoholic beverages on the licensed premises or elsewhere while in the scope of employment. A licensee, or his or her or its agents, officers, servants, or employees, who violates this paragraph commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. This paragraph may be cited as “the Christopher Fugate Act.”
(c) A licensee who violates paragraph (a) shall have a complete defense to any civil action therefor, except for any administrative action by the division under the Beverage Law, if, at the time the alcoholic beverage was sold, given, served, or permitted to be served, the person falsely evidenced that he or she was of legal age to purchase or consume the alcoholic beverage and the appearance of the person was such that an ordinarily prudent person would believe him or her to be of legal age to purchase or consume the alcoholic beverage and if the licensee carefully checked one of the following forms of identification with respect to the person: a driver license, an identification card issued under the provisions of s. 322.051 or, if the person is physically handicapped as defined in s. 553.45(1), a comparable identification card issued by another state which indicates the person’s age, a passport, or a United States Uniformed Services identification card, and acted in good faith and in reliance upon the representation and appearance of the person in the belief that he or she was of legal age to purchase or consume the alcoholic beverage. Nothing herein shall negate any cause of action which arose prior to June 2, 1978.
(d) Any person charged with a violation of paragraph (a) has a complete defense if, at the time the alcoholic beverage was sold, given, served, or permitted to be served:
1. The buyer or recipient falsely evidenced that he or she was 21 years of age or older;
2. The appearance of the buyer or recipient was such that a prudent person would believe the buyer or recipient to be 21 years of age or older; and
3. Such person carefully checked a driver license or an identification card issued by this state or another state of the United States, a passport, or a United States Uniformed Services identification card presented by the buyer or recipient and acted in good faith and in reliance upon the representation and appearance of the buyer or recipient in the belief that the buyer or recipient was 21 years of age or older.
(2) It is unlawful for any person to misrepresent or misstate his or her age or the age of any other person for the purpose of inducing any licensee or his or her agents or employees to sell, give, serve, or deliver any alcoholic beverages to a person under 21 years of age, or for any person under 21 years of age to purchase or attempt to purchase alcoholic beverages.
(a) Anyone convicted of violating the provisions of this subsection is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(b) Any person under the age of 17 years who violates such provisions shall be within the jurisdiction of the judge of the circuit court and shall be dealt with as a juvenile delinquent according to law.
(c) In addition to any other penalty imposed for a violation of this subsection, if a person uses a driver license or identification card issued by the Department of Highway Safety and Motor Vehicles in violation of this subsection, the court:
1. May order the person to participate in public service or a community work project for a period not to exceed 40 hours; and
2. Shall direct the Department of Highway Safety and Motor Vehicles to withhold issuance of, or suspend or revoke, the person’s driver license or driving privilege, as provided in s. 322.056.
(3) Any person under the age of 21 years testifying in any criminal prosecution or in any hearing before the division involving the violation by any other person of the provisions of this section may, at the discretion of the prosecuting officer, be given full and complete immunity from prosecution for any violation of law revealed in such testimony that may be or may tend to be self-incriminating, and any such person under 21 years of age so testifying, whether under subpoena or otherwise, shall be compelled to give any such testimony in such prosecution or hearing for which immunity from prosecution therefor is given.
(4) This section does not apply to a person who gives, serves, or permits to be served an alcoholic beverage to a student who is at least 18 years of age, if the alcoholic beverage is delivered as part of the student’s required curriculum at a postsecondary educational institution that is institutionally accredited by an agency recognized by the United States Department of Education and is licensed or exempt from licensure pursuant to the provisions of chapter 1005 or that is a public postsecondary education institution; if the student is enrolled in the college and is required to taste alcoholic beverages that are provided only for instructional purposes during classes conducted under the supervision of authorized instructional personnel pursuant to such a curriculum; if the alcoholic beverages are never offered for consumption or imbibed by such a student and at all times remain in the possession and control of such instructional personnel, who must be 21 years of age or older; and if each participating student executes a waiver and consent in favor of the state and indemnifies the state and holds it harmless.
