DUI's Make A New Year Not So Happy

New Year’s Eve is a time to celebrate, make resolutions, and ring in the 2012 year with some adult beverages. DUI’s make a New Year not so happy.  As wonderful as our City is, we suffer from a severe lack of practical public transportation and often times we have to drive long distances between where we live and where we want to go for fun. Police officers know this. We see them hanging out at busy intersections, at the bottom of our most traveled bridges, and in the middle of Jacksonville’s entertainment zones...waiting. You just finished dinner with friends and had a couple cocktails while you waited for your table. You are by yourself and have to drive home. Your last drink was over an hour ago and your home is 30 minutes away. You feel fine so you get in your car and head home. Then something that you did not expect happens, you get pulled over.

DUI is a serious crime. While it may only be a misdemeanor in the criminal Statutes, it’s serious because of the impact getting a DUI can have on your life. Imagine how difficult your life would become if you woke up tomorrow knowing you could not drive for at least six months. DUI is one of the only crimes on the books where you can be arrested purely on the police officer’s subjective opinion. This is important because while a police officer may believe you are under the influence, there are many things you can do to eliminate the evidence that you are under the influence. This begins while you’re driving.

While you are driving, eliminate any basis a police officer may have for pulling you over. Use common sense. When you’re driving at night, especially on the weekend, DO NOT SPEED. Use your turn signals when changing lanes. Stop completely at stop signs. Don’t accelerate through yellow lights. Don’t screech your tires. Any of the above will get you pulled over. If a police officer has no basis to pull you over, you can’t be charged with DUI. Before you start driving, know exactly where your license, registration and proof of insurance are. If a police officer sees you fumble for these documents, he will assume they are indicators of impairment.

If you happen to get stopped, especially late at night on a weekend, first remain calm and have your license, registration and proof of insurance ready for the police officer. Don’t give him or her any reason to suspect anything more than a traffic violation. If the officer starts asking you questions, speak slowly and calmly and answer the officer’s questions directly, but don’t admit to drinking alcohol under any circumstances. It is not against the law to drink and drive.

If the officer asks you to step out of the car you must comply. But, if the officer asks you to perform field sobriety exercises, you have no legal obligation to do so. These "exercises" are not exercises at all, but tests. They are tests designed to be failed. No one practices walking nine steps heel to toe in a straight line in two directions. Studies have shown that the majority of people, who attempt the standard field sobriety exercises sober, fail them. If you are not wearing flat soled shoes, have a bad knee, a bad back, are sick, even if you’re just cold, you have a valid reason for refusing the field sobriety exercises. Tell the officer why you don’t feel comfortable performing them. If you’ve had anything to drink, it’s most likely in your best interest not to perform them. If you don’t have a specific reason to refuse them, there’s nothing wrong in saying that you just don’t feel comfortable. If you haven’t had anything to drink, or you are otherwise sober, and you do feel comfortable performing the exercises, only perform the exercises if the officer can videotape you. This is important because regardless of how well you THINK you did, the officer will find things you did wrong. He won’t focus on the eight times you stepped correctly on the line, he’ll focus on the two times you didn’t. Or the fact you stood on one leg for the entire 30 seconds, he’ll focus on your arms going up and down to keep your balance. Once the officer writes a narrative of your performance, you won’t have any proof of how you actually did unless you have a videotape.

If the police officer does find probable cause that you are under the influence of alcohol, you will likely be arrested and taken to the police department. Once you are under arrest, you have the right to remain silent. Do not say anything at this point. Anything you say absolutely will be used against you. If you cry, the officer will interpret this as a sign of impairment. Any time you speak, you give the officer the ability to say that your speech is slurred, which is an indicator of impairment. If you are taken to the police station after being arrested for DUI, you will be given a breath test by blowing into an intoxilyzer; a machine that analyzes your breath to determine how much alcohol you have in your blood. Studies have shown these machines to be inaccurate. Refusal to provide a breath sample will result in your license being suspended for six months. If you don’t give a breath sample, there will be no evidence of your blood alcohol level. Therefore, if you haven’t had anything to drink, it is safe to give a breath sample. If you HAVE had anything to drink, even though you may not feel intoxicated or under the influence, an intoxilyzer that hasn’t been properly calibrated, can give a false reading. In other words, it could produce a reading of .09 when you are really .07. Once that test has been performed, it can’t be undone. However, if the officer had no probable caus e to pull you over in the first place or had no probable cause to arrest you, and you refuse to give a breath sample, you can challenge the automatic six month suspension by requesting a hearing with the Department of Motor Vehicles within 10 days of being arrested.

Unfortunately, DUIs can happen to anyone. They do not discriminate on the basis of wealth, race, sex, or skin color. Every night of the week people just like you or I could get arrested for DUI who are not guilty of driving while under the influence to the point their normal faculties are impaired. Sometimes it’s about being at the wrong place at the wrong time. If you take all the right precautions and still get arrested, an experienced attorney with significant training and expertise in handling DUI cases can help you. Please stay safe this New Year’s weekend.

Jonathan Zisser, Esq.

DUI Attorney
Zisser Robison Brown Nowlis Maciejewski & Cabrey, P.A.
(904) 353-3222

Three Zisser, Robison, Brown, Nowlis, Maciejewski & Cabrey, P.A. Attorneys Named to Florida Super Lawyers List

         The law firm of Zisser, Robison, Brown, Nowlis, Maciejewski & Cabrey, P.A., is proud to announce the selection of three attorneys to the 2011 Florida Super Lawyers List, a Thomson Reuters Business. This is their sixth consecutive year on the Florida Super Lawyers List. 

Barry Zisser, senior partner for the firm, was selected for his practice in family law. Barry Zisser is a Master in the Florida Family Law American Inns of Court, a member of Board of Directors of the Jacksonville Jewish Federation, a founding member of the Jacksonville Jewish Foundation and a current member of the Board of Directors of the Foundation, past president of Beth Shalom Congregation and a member of its Board of Trustees. He received his B.S. from Brooklyn College and his J.D. from the University Of Florida College Of Law.    

Elliot Zisser, a Florida Bar Board-Certified Attorney in Marital and Family Law and managing partner of the firm. Elliot Zisser is a member and former president of the Florida Chapter of the American Academy of Matrimonial Lawyers, and was formerly on the Council of the Family Law Section of Florida Bar. He received his B.A. from Queens College of the City University of New York, and his J.D., with Honors, from The George Washington University Law School.

Donald M. Maciejewski, a Florida Bar Board-Certified Aviation Attorney and a partner in the firm, was selected for his practice in personal injury and products liability law. Prior to practicing law, Maciejewski was a commissioned officer and helicopter pilot in the U.S. Army. He received his Bachelor's degree from John Carroll University, his Master's degree from the University of Southern California, and his J.D. from the University Of Baltimore School Of Law.

The Florida Super Lawyers List is compromised of the top five percent of attorneys in the state, selected through a pool of candidates nominated by peers and reviewed by a blue ribbon panel. Evaluation criteria included significant cases and transactions, representative clients, experience, honors and awards, special licenses and certifications, law firm position, bar and professional activity, pro bono and community service, scholarly lectures and writing, and education and employment background.

“Car Survival 101- How to Keep Safe”

Every day in our law practice, we see people who are seriously injured, or have had a loved one killed in a vehicle-related accident. Many of these accidents are preventable, but people are often negligent, and do not use precautions or proper safety equipment. There are three things that you should do every time you ride in a car, or operate a motor-vehicle, that will reduce you chance of sustaining a serious injury or dying in a motor vehicle collision.

1. Never drink and drive. Statistically, over fifty percent of fatal accidents involve alcohol use as a primary factor in the cause of the crash. Make sure to have a designated driver, or call a cab, when consuming alcohol. A twenty-dollar (or less) cab ride is far less expensive than sustaining a serious injury or dying from a preventable crash. Never get behind the wheel, even in you have only had “two drinks”. Two drinks, depending on you height, weight, sex, and body type, can affect or impair your judgment and reaction time. Never drink and drive.

2. Always wear your seatbelt and shoulder harness assembly. Make it a point to never start your car, or ride as a passenger in a vehicle, unless you have an operational seatbelt and shoulder harness assembly available, and it is securely fastened. Most accidents involving the lack of seatbelt and shoulder harness use result in injuries which would not have occurred if the occupant was properly restrained. When a collision occurs, things move around in the vehicle. These “things” include you! By being restrained during a collision you will reduce the likelihood of injury, including flail injuries, as well as contact between your body parts and other portions of the vehicle (i.e. your head going through the windshield). If a vehicle does not have proper safety equipment, refuse to ride in the vehicle.

3. Keep tires and brakes in good condition. Never cut corners to save money when it comes to repairing or replacing tires or brakes. Tires and brakes can save your life. Most accidents involving a panic stop, such as in an emergency situation, or when trying to avoid debris in the road, are caused due to worn brakes and/or tires. Make it a point to do a monthly safety inspection of your vehicle. This takes less than five minutes. Check your tire pressure weekly, and if you find your car pulling to one side or the other while driving, take the vehicle into the shop to check the alignment and tire wear. If tires are irregularly worn or balding, replace them immediately. If your brakes are mushy or make noise when you apply them, have them repaired or replaced. Sometimes all you need to do is replace the brake pads in order to maintain a safe braking system. If when you brake, the car vibrates or pulls, you may need new rotors.

During your safety check, make sure your horn works, as well as your signal lights, brake lights, parking lights, and high beams. Taking time to make sure your safety devices work and that tires and brakes are in good order will help you avoid preventable accidents.

by: Donald M. Maciejewski, Esq.

"Air Travelers Take Note - U.S. Orders Better Consumer Protection for Lost Bags and Bumping"

Have you ever boarded a flight heading out on vacation, and get to your destination only to find that the airline has “lost” your bags? Ever been told that your flight was “oversold”, and therefore you were “bumped”? Bummer!

Good news! Air travelers were given better protection against these issues a few weeks ago when Transportation Secretary Ray LaHood announced that, “Airline passengers have a right to be treated fairly.” Secretary LaHood went on to state, “It is just common sense that if an airline loses your bag, or you get bumped from a flight because it was oversold, you should be reimbursed.” Finally air travelers will be getting compensated for lost luggage and missed flights!

New regulations become effective this August requiring airlines to reimburse passengers for lost baggage fees, and will provide travelers who are involuntarily ‘bumped’ from flights with greater compensation. In addition, there will be an expansion on the current ban on lengthy tarmac delays; and hidden fees that were not formerly disclosed by the airlines to its customers will be eliminated. New rules will also require U.S. airlines to provide basic services, such as access to lavatories and water, in the event of an extended tarmac delay.

Currently, ‘bumped’ passengers are entitled to cash, up to $400.00, if the airline can get them to the destination in a short period of time. In August 2011 this will be increased to $800.00. For those facing even longer delays, the maximum compensation will increase from $650.00 to $1300.00, which will be indexed for inflation.

If the airline loses your bags, you will be reimbursed for bag fees, and you will be able to make a claim for the contents of your lost luggage.

Donald M. Maciejewski, Esq.                                                                                     

Board Certified Aviation Law Attorney

When Will the FAA Finally "Wake Up"

Recently, the flying public has been told of a rash of incidents where air traffic controllers are falling asleep on duty and planes are without ATC guidance. There have been 7 separate reported incidents (no one really knows how many other controllers fell asleep but were not caught) and this past week, the FAA came out with a new set of rules regarding rest times between shifts and how controllers can swap or bid on shifts. The FAA believes that this will fix the problem.

In 20 plus years of doing aircraft accident litigation there have been many cases we have handled where controllers were inattentive to duty or asleep or otherwise preoccupied with something other than their job. A controller sleeping on the job is no big news. In the incident at Washington-Reagan National Airport, where a single controller on duty was essentially a night watchman at an airport with a curfew, it’s not only likely, but really quite common that sleeping on the job occurs. When will the FAA go into true damage control to prevent controllers from sleeping on the job? If you notice, the FAA has made no explanation or excuses for controllers sleeping on the job.

Hopefully new FAA administrator, CAPT Randy Babbitt, who is a former airline captain and union leader, will lay down the law. CAPT Babbitt does know how to tackle tough problems, but the FAA is an agency that has lots of things broken and CAPT Babbitt has inherited a mess that is going to require some tough procedural changes and accountability.

Air traffic controllers have an average annual salary of more than $160,000. They work in shifts, have mandatory rest time between shifts and receive mandatory work breaks. There is simply no reason for falling asleep on the job.

Attorney Donald Maciejewski 
Florida Bar Board Certified in Aviation