DUI Investigations Phase I | Vehicle in Motion

August 27, 2014 by
DUI Attorney | DUI Investigation

DUI Investigations

Fort Lauderdale DUI Attorney | Miami DUI Attorney

Phase I DUI Investigations | Vehicle in Motion

Police officer’s are trained to follow the guidelines set forth by the National Transportation and Safety Administration(NHTSA) when conducting a DUI investigation. The guidelines set forth 3 stages to every DUI arrest. The officers are trained to identify “cues” of impairment in each stage of the investigation. The cues are used to develop probable cause to support a traffic stop and an arrest.

Phase I, Vehicle In Motion Phase I of a DUI investigation is broken down into three subparts.  It consists of a) the observation of the vehicle while it is being driven; b) the decision to make a traffic stop; and c) observations made during the traffic stop. The initial observation of the vehicle begins when the officer, for whatever reason, notices the vehicle. The officer may have witnessed the driver commit a traffic infraction or just thought “Hey! Nice car!” The reason why the officer notices the vehicle is not relevant.

Once the officer notices the vehicle, the officer is trained to look for 24 specific cues that NHTSA has determined to have a statistically significant correlation to impairment. The correlation of the cues range from .35 to .90. Accordingly, one indication of impairment is not going to be probable cause for a DUI stop. The probability that an individual is impaired increases with the number of cues exhibited by the driver.  Typically, officers are looking for two or more cues.  It is important to realize that any traffic infraction can be used as a basis to stop a vehicle even if the infraction is not a specifically listed cue.

NHTSA has divided the driving behaviors into four categories:

  • Problems in maintaining proper lane position | Statistical Correlation to Impairment .50- .75

Weaving Weaving across lane lines Straddling a lane line Swerving Turning with a wide radius Drifting Almost striking a vehicle or other object

  • Speed and braking problems | Statistical Correlation to Impairment .45 – .70

Stopping problems (too far, too short, or too jerky) Accelerating or decelerating for no apparent reason Varying speed Slow speed (10+ mph under limit)

  • Vigilance problems |  Statistical Correlation to Impairment .55 – .65

Driving in opposing lanes or wrong way on one way Slow response to traffic signals Slow or failure to respond to officer’s signals Stopping in lane for no apparent reason Driving without headlights at night Failure to signal or signal inconsistent with action

  • Judgment problems. Statistical Correlation to Impairment .35 – .95

Following too closely Improper or unsafe lane change Illegal or improper turn Driving on other than designated roadway Stopping inappropriately in response to officer Inappropriate or unusual behavior (throwing objects, arguing, etc.) Appearing to be impaired

It should be noted that many times an individual is stopped for excessive speed and nothing more. Excessive speed is NOT an indication of impairment. However, varying speed and slow speed are indications.  Special attention should be paid to the police report to see which cues listed by the officer are statistically correlated.  Quite often, there are no statistically significant cues.  While it will not usually not win a motion to suppress based on the stop, if the officer also witnessed a traffic violation, it is nice to be able to highlight to the jury that there were no indications of impairment based on the driving pattern.

In trial, or in a hearing, the prosecution tends to point to 2 or 3 cues of impairment to establish that a person was too impaired to drive. A good defense strategy is to focus on the 21 or 22 things that the defendant did correctly. A cross examination focusing on what the defendant did right is an extremely effective strategy when there is a “double refusal” meaning that the defendant did not take the roadside sobriety exercises and the defendant did not take a breath, blood or urine test.

When selecting a DUI attorney, ask the attorney about his or her additional training and education with regard to the NHTSA Standardized Sobriety Tests and the 3 Phases of a DUI arrest.  The NHTSA Student Manual is available to attorneys and all serious DUI attorneys should have one.

For additional information, please contact

The Law Offices of Michael A. Dye, PA, 1 E Broward Blvd #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

Next: DUI Investigations Phase II

Filed Under: Criminal Lawyer, DUI Lawyer Tagged With: , , , , , , ,

Roadside Sobriety Exercises | Standardized Field Sobriety Tests

July 29, 2014 by
DUI Attorney

Police officer incorrectly administering the SFST’s.

DUI Attorney Miami | Criminal Lawyer Miami

Prior to being arrested for a DUI, and sometimes afterwards, the police often ask a defendant to submit to a series of exercises in order to determine the individual’s sobriety.  These exercises are known as the Standardized Field Sobriety Tests or SFST’s for short. The SFST’s is a series of 3 tests that the National Highway Transportation and Safety Administration has determined can be used to identify impairment in an individual.  The officer demonstrates and then observes the defendant perform the exercises.  The officer is trained to identify certain indicators of impairment that can be used to establish probable cause for an arrest or to simply pile on additional evidence of impairment.

The exercises must be administered and evaluated in a standardized fashion in order to ensure an accurate result.  The tests were developed by NHTSA in conjunction with the Southern California Research institute.  There are only 3 SFST’s that are statistically correlated to impairment.  Those tests are the Horizontal Gaze Nystagmus, the Walk-And-Turn and the One-Leg Stand.   These 3 tests are to be administered the same way every single time and evaluated through the use of strict criteria limiting an officer’s discretion as to what is a “pass” or what is a “fail.”

The unfortunate reality is that the standardized administration and evaluation of the SFST’s is largely ignored by police departments and individual police officers.  The exercises are frequently administered and evaluated incorrectly leading the officer to form an opinion that can not be validated by any of the studies or research.  Additionally, officers that are not properly trained often use improvised exercises that have been found to have no correlation to impairment.  The most common of these tests are the “finger to nose” test, any test involving the alphabet and a wide variety of different counting exercises using your fingers.  Do not be mistaken, those tests are not approved to detect impairment.  Many DUI attorneys are not familiar with the concepts involved with the SFST’s.

When consulting with a criminal lawyer concerning your DUI case, you should ask the lawyer:

1)  Are you familiar with the SFST’s?

2)  What additional training have you received in the administration and interpretation of the SFST’s?

3)  Do you own a copy of the NHTSA SFST Manual?

4)  Approximately how many trials have you had where you cross examined the arresting officer concerning the NHTSA criteria?

DUI Attorney, Michael Dye received additional training in the administration and interpretation of the SFST’s from Doug Scott, a pioneer in the field of the Drug Recognition Expert Program, who is recognized as an expert in the administration and interpretation of the SFST’s.  Mr. Dye has the most current version of the NHTSA SFST Student Manual and actively utilizes it as reference and impeachment material in both depositions and trials.  Mr. Dye has cross examined the arresting officer regarding the SFST’s in over 20 trials and numerous depositions.

For additional information, please contact

The Law Offices of Michael A. Dye, PA, 1 E Broward Blvd #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

Filed Under: 4th Amendment, Criminal Lawyer, DRE, Drug Recognition Expert, DUI Drug, DUI Lawyer, Roadside Sobriety Tests, Search and Seizure, Standardized Field Sobriety Tests Tagged With: , , ,

Drugged Driving | DRE | Drug Recognition Expert

July 15, 2014 by
DUI Lawyer DRE

Detecting DUI Drug Impairment

Drug Recognition Expert Testimony

The Drug Recognition Expert program was developed by the Los Angeles Police Department in 1979. With the growing rise in illicit drug use prosecutors were often not able to successfully prosecute an individual for DUI if the defendant was not impaired by alcohol. The DRE program was designed to assist police officers in determining the type of substance which is impairing a driver. The Drug Recognition Expert is allowed to testify as to his findings as an expert witness. This means that he is allowed to give an “expert opinion” as to what substance impaired the driver. DRE testimony in and of itself may be useful to the prosecution in certain cases where impairment is clearly from a certain controlled substance. An example would be an empty bottle of 90 xanax in the driver’s name filled 30 minutes before the time of the stop which is laying in the center console while the driver is passed out at a stop light. However, it doesn’t take an expert to reach a conclusion in such a scenario. Drug recognition expert testimony is most powerful in conjunction with scientific testing of blood or urine. DRE testimony has glaring holes even in conjunction with the testing of biological fluids.

Not All Judges are Buying It

Several courts have held that the 12 step drug recognition expert protocol does not pass the Frye Test as it is not widely accepted by the scientific community. As such, certain courts will not permit a drug recognition expert to testify as to his findings.

For Good Reason

One particular case arising out of Maryland in 2012 specifically highlighted the problems with the DRE protocol. Initially, 12 step examination of a suspect is not standardized. This means that a drug recognition expert does not have to perform the 12 step examination on every single individual he investigates. The DRE has the unfettered discretion to utilize the steps that he wants and to discard the remaining. However, the 12 step process is “preferred.” A DRE will not change his opinion even if scientific testing of a biological fluid reveals no impairing substances. The rational provided is that there are limitations on what laboratories can and cannot detect. While this is true, the proponents of DRE testimony and its accuracy would have the court and jury believe that a non-standardized optional 12 step evaluation conducted by a non-medical professional which is not corroborated by any other evidence is somehow more sophisticated and advanced than the current scientific techniques used by the crime laboratories.

In its opinion, the court further elaborated that the DRE training program improperly classified certain drugs into single categories, misstated the physical and mental effects of certain drugs. The court excluded the DRE testimony ruling that any opinion based on the DRE training given at the time was specious at best.

Drug Recognition Expert Ruling

Hire an Attorney Who is Experienced in Defending DUI Drug Cases

Your choice of an attorney can make or break your case.   Especially when your case concerns scientific and quasi scientific evidence.  This is a complex area where science meets law and there are not many attorneys that have any additional training or experience to handle these types of cases.  You might not remember whether you were examined by a DRE under certain circumstances.  Accordingly, if you are arrested for a DUI by drug impairment, you should always consult an attorney who is familiar with the science behind the drug testing and the DRE protocol.

For additional information, please contact

The Law Offices of Michael A. Dye, PA, 1 E Broward Blvd #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

Filed Under: DRE, Drug Recognition Expert, DUI Drug, DUI Lawyer Tagged With: , , ,

Drugged Driving | Urinalysis | Metabolite DUI

July 5, 2014 by

DUI Lawyer Explains the Limitations of Urinalysis in DUI Drug Cases

Blood, urine and hair are the three commonly accepted methods drug testing.  Pursuant to Florida Law, law enforcement is limited in its ability to secure a blood sample from a suspected impaired driver and hair follicle testing is not an approved test for DUI investigations.  Accordingly, when it comes to DUI under a drug impairment theory, a urinalysis is typically used to determine the presence of an impairing substance.  There are exceptions with regard to blood and the police may obtain a blood sample for testing under limited circumstances.

A DUI drug case with a urinalysis as evidence of impairment should be difficult if not impossible for a case to prove.  A urinalysis is incapable of determining when substances were ingested. It is an established fact that a urinalysis will yield a positive test result for impairing substances long after the cessation of impairing effects.

A basic understanding of human physiology is required to understand why a urine test cannot prove impairment. In addition to human physiology, it is necessary to have a general understanding of the scientific principals behind the testing methods. With regard to physiology, the issue comes down to the difference between the renal system and the circulatory system. With regard to the scientific principals, it is imperative to know what constitutes a positive test result.

Regarding the systems, there are three main points to remember. Point 1: The renal system produces and eliminates urine. Point 2: The circulatory system can be looked at as a blood distribution network. Point 3: For the purposes of a DUI urinalysis, there is no correlation between the renal and circulatory systems.

For purposes of determining the impairment of an individual, the only thing that matters is what substances are in the blood. As such a urinalysis testing for impairing substances is an indirect test. In order for a urinalysis to be useful as an indirect test, there must be a correlation between what is found in the urine and what is contained in the blood. As stated above, there is no correlation between the two. Urinalysis in a DUI case will almost always be a qualitative analysis meaning that the lab only tested for the presence of a given substance. A qualitative analysis of urine gives no information as to whether a suspect is impaired. It does not tell how much or when a drug was ingested. The results are simply a “marker” indicating prior exposure to a substance. Performing a quantitative analysis is possible, but it is also pointless. Determining how much of a given substance is present in a suspects urine is irrelevant because of the lack of correlation between urine and blood.

The amount of time that it takes a drug to be undetectable in urine varies by drug. A classic example of this is marijuana. Marijuana’s effects typically last for two to three hours. However, marijuana’s metabolites are highly fat-soluble. Therefore, the THC and metabolites are stored in body fat. Individuals can show up positive on a urinalysis for a DUI up to four weeks after smoking marijuana. The actual length of time depends on the frequency of use and amount used.

While marijuana is an extreme example detection times, other drugs render the results of a urinalysis in a DUI irrelevant. For example, the metabolites of cocaine can be detected in urine for two to five days after use. Likewise, amphetamines have a short detection window, but can still be found in urine up to five days after use.

Drug metabolism is the breakdown of the parent compound into metabolites. A parent compound is the actual substance that is ingested. A metabolite is the byproduct of the parent compound when the parent compound is “broken down” through the biochemical process after ingested.

Metabolites can be divided into two categories for purposes of a DUI. A metabolite can either be active or inactive. In simple terms, an active metabolite of an impairing substance will have an impairing effect. An inactive metabolite is simply a marker of prior use and has no impairing effect on the individual.

A problem arises in DUI urine testing when an inactive metabolite yields a positive result on a urinalysis. For example, the main metabolite of marijuana is THC-COOH. THC-COOH is a nonpsychoactive substance and highly fat soluble. As such, THC-COOH has no impairing effect on an individual. However, it is detectable in urine for 3 to 4 weeks after using marijuana. The vast majority of tests currently used to determine if an individual has ingested marijuana do not test for THC and do not test for active metabolites of THC. The preliminary and confirmatory tests do not test for any substance that would cause impairment. Accordingly, if an individual tests positive for marijuana, he or she has only tested positive for the inactive metabolite of marijuana. The only thing that this would prove is that the individual smoked marijuana sometime within the last 3 to 4 weeks.

There is a four point analysis to defending a DUI urinalyses case. Issue 1: It is crucial to know exactly what substance is being tested for in the urinalysis. Issue 2: Research what exactly constitutes a positive result. Issue 3: Assuming the test is accurate, identify the time range in which the substance could have been ingested. Issue 4: Compare the known effect of the drug on an individual’s behavior. Compare the known effects against the DUI video, the officer’s report and a DRE report if any.

In order for the state to prove a DUI, the state must prove that an individual was impaired. Urinalysis alone can not prove impairment. The results of a urinalysis should be considered by an attorney defending a DUI case. However, with an effective cross examination of the State’s expert, the results of a urinalysis usually do not carry much weight.

For additional information, please contact DUI Lawyer Michael Dye at:

The Law Offices of Michael A. Dye, PA, 1 E Broward Blvd #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286

Filed Under: DUI Drug, DUI Lawyer, Metabolite DUI, Uncategorized, Urinalysis Tagged With: , , , , , , , ,